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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.

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Comunidade of Bambolim v. Manguesh Betu Kankonkar (Bombay) (Panaji Bench) Law Finder Doc Id
# 233421
2001(Sup) BCR 99 : 2001(2) Mh.LJ 160 : 2001(2) ALL MR 691
BOMBAY HIGH COURT
(Panaji Bench)
Before:- V.C. Daga, J.
Civil Revision Application No. 91 of 2000. D/d. 14.7.2000.
Comunidade of Bambolim - Petitioner
Versus
Manguesh Betu Kankonkar - Respondent
For the Petitioner :- S.S. Kantak, Advocate.
For the Respondent :- S.G. Dessai, Sr. A. with D.S. Naik, Advocate.
Land Acquisition Act, 1894 Sections 18 , 30 & 31 (2)
Cases Referred :-
1. Arulmighu Lakshnninarasinthastuamy Temple Singirigudi v. Union of India and others, 1996(6) S.C.C.
408.
2. Dr. G.H. Grant v. The State of Bihar, AIR 1966 Supreme Court 237.
3. Ferro Alloys Corprn. Ltd. and another v. Union of India and others, AIR 1999 Supreme Court 1236.
4. Shri Babusso Godu Gaunso v. Shri Suryakant Moga Gaunso and others, First Civil Appeal No. 49 of
90. D/d. 9.10.1992.
5. Govind Narayan Lotlikar v. Smt. Savitribai Roghuvira Lotlikar and others, AIR 1987 Bombay 32.
6. R.G. Anand v. M/s. Delux Films, AIR 1978 Supreme Court 1613.
7. Shri Deo Sansthan Chinchwad and others Appellants v. Chintaman Dharnidhar Deo and another,
Respondent, AIR 1962 Bombay 214.
8. State of Bihar v. Dhirendra Kumar and others, AIR 1995 Supreme Court 1955.
9. State of Mizoram v. Biakchhawna, 1995(1) S.C.C. 156.
JUDGMENT
V.C. Daga, J. - The revision is directed against the order dated 5th January, 2000 passed by the Civil
Judge, Sr. Dvn. at Panaji in Execution Application No. 46/89/A. This revision raises an important
question as to whether the suit, at the instance of a person, who claims entitlement to compensation
awarded or to a part thereof; in acquisition proceedings, to which he was not a party, is maintainable.

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The facts are not in dispute. However, in order to appreciate the relevant question, the facts in
nutshell are as under : -
2. The Government of Goa, Daman and Diu on deciding to widen the Panaji/Barnbolim/Siridao-Agacaim
road, being National Highway 17-A, called upon the Deputy Collector, Goa North Division, Panaji, to
draw acquisition proceedings under the Land Acquisition Act, 1894 (hereinafter referred to as the
"Act" for the sake of brevity). In the said acquisition proceedings, the present respondent received no
notice under the relevant provisions of the Act, of the Land Acquisition proceedings, bearing No. L.A.O.
386. Every interested person is required to make a statement regarding the interest of any other
person in the land sought to be acquired. However, it appears that, inspite of the Land Acquisition
Officer having called upon the petitioner to furnish information of the interested persons, interested
in the land sought to be acquired, the petitioner did not state interest of the respondent in the land
and failed to furnish all the required information and suppressed the subsisting tenancy rights of the
respondents and his interest in the land sought to be acquired.
3. The Deputy Collector, Goa, Daman and Diu, Panaji, acting as Land Acquisition Officer, made an
Award on 24-3-1981 under the provisions of section 11 of the Act; wherein part of the property
'Odlem Ran', having cashew garden, belonging to the petitioner, of which the respondent was a tenant
was acquired. The Land Acquisition Officer determined the compensation in the sum of Rs. 3,14,468.68,
and paid the said amount of compensation to the petitioner. Since the petitioner did not disclose the
interest of the respondent, he was unaware of the acquisition proceedings, with the result the entire
amount of compensation was received by the petitioner and nothing was paid to the respondent
although he was entitled to receive 50% of the compensation being legal tenant of the land.
4. The present respondent Manguesh sometime in the month of October, 1981 came to know about the
acquisition proceedings when the road widening work was taken up by the Government in the
acquired land. He immediately; thereafter issued a notice to the petitioner on 18-10-81 calling upon
him to pay half of the awarded amount to which the petitioner did not reply. He therefore filed
Special Civil Suit No. 125/1982/A in the Court of Civil Judge, S.D. at Panaji on 30th September, 1982
against the petitioner seeking money decree in the sum of Rs. 1,57,234.34 being 50% of the amount of
compensation received by the petitioner with interest at the rate 6% per annum from the date of
filing of the suit till recovery.
5. The aforesaid suit was decreed on 31st July, 1986. Being aggrieved by the said decree, the petitioner
filed First Appeal No. 81/86 in the High Court on 24-10-86. The said First Appeal was dismissed by the
High Court, on merits, on 14-12-1987. In the aforesaid proceedings, at no point of time either the
maintainability of the suit or the jurisdiction of the Civil Court, to entertain the suit, was challenged
by the petitioner (defendant in the suit). Though in the plaint it was specifically pleaded by the
respondent (plaintiff in the suit) that the Civil Court has jurisdiction to entertain and try the suit, the
said averments were not denied in the written statement by the petitioner while contesting the suit.
Consequently, the pleadings pertaining to jurisdiction of the Civil Court to entertain and try the suit
were deemed to have been admitted in view of Order 8, Rule 5 of C.P.C. with the result no issue was
required to be framed or tried relating to jurisdiction of the Civil Court.
6. The petitioner after having suffered the aforesaid decree and after having lost the First Appeal in
the High Court filed inter-pleader suit being Special Civil Suit No. 117/88/A, on 11-7-88, in the Court of
Civil Judge, Sr. Dvn. at Panaji against the respondent and two other sets of tenants, contending therein
that apart from the respondent, the said two sets of tenants are also claiming 500 of the awarded
compensation as tenants, showing readiness and willingness to pay share to such persons as may be
entitled thereto as tenants of the acquired land and further admitted that the petitioner has no claim

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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to 50% of the awarded compensation. In the said suit, the petitioner claimed relief for restraining the
respondent from taking any proceedings against the petitioner in respect of the acquired land and the
compensation and further pleaded that impleaded defendants be directed to inter-plead together
concerning claim of their tenancy in respect of the acquired land. On being noticed, the present
respondent filed his written statement on 14-11-1988. However, the said suit was dismissed, on 24- 10-
99, against the defendants No. 1 to 5 under Order 9, Rule 8 of C.P.C. and against L.Rs. of defendant No.
6 under Order 9, Rule 3 of C.P.C. and thus the proceedings were closed.
7. The respondent having obtained decree in Special Civil Suit No. 125/82/A filed Execution
Proceedings on 12-7-1989 being Execution Application No. 46/89/A to execute the decree.
8. On being noticed, the petitioner appeared and filed objections to the execution proceedings on 3-1-
1989 and contended that in the inter-pleader suit the rights of the decree holder, to the compensation
granted under the decree, are in dispute. Petitioner also prayed for stay of the execution proceedings.
In other words the petitioner did not file any significant objection to the execution of the decree
except one pointed out hereinabove.
9. The aforesaid award was a subject matter of reference under sections 18 and 30 of the Act, at the
instance of one Shri Atmaram Mulgaonkar and the legal heirs of late Yeshwant Gaums as they were
claiming interest in the land. The said Land Acquisition Reference was registered as Land Acquisition
Case No. 15/84.
10. Pending aforesaid execution, the said land acquisition reference was tried by the Addl. District
Judge, Panaji, who rejected the said reference holding that the applicants, therein, had no interest in
the land but the present respondent had interest on the date when the land was acquired. The
relevant portion from the said judgment is as under :-
"From the above evidence it is clear that none of the applicants/claimants are the tenants of the
suit property as they have never paid any rent to respondent No. 2 Comunidade and the late
father of the applicant No. 1 had paid the rent only for 2 years in 1970-71 and that too it was for
plucking of cashew fruits. As per the judgment in Special Civil Suit No. 125/82/A filed by
Manguesh Betu Kankonkar the trial Court i.e. the Court of Civil Judge, Senior Division at Panaji
has held that the said Manguesh Kankonkar is the tenant of the suit property and as such he is
entitled to 50% of the total compensation awarded by the L.A.O. i.e. Rs. 1,57,234.34 p besides
interest at the rate of 6% p.a. This judgment of the trial Court has been also confirmed by the
judgment of the Hon'ble High Court, Panaji Bench in First Appeal No. 81/86 exh.Rw. 3/C. Even the
respondents' witnesses have admitted that the said Manguesh Kankonkar was the tenant of the
suit property. The applicants/claimants have failed to produce any declaration of their tenancy
given by the Competent mamlatdar in respect of the suit property nor they have produced any
rent receipts to show that either of them were the tenant of the suit property at the time of
section 4 notification acquiring the land for road widening."
(Emphasis supplied).
11. The executing Court on 27-7-1999 passed an order attaching Rs. 3,20,000/- from the Bank account of
the petitioner. It is only thereafter the petitioner filed the fresh objections on 28-5-99 which were
replied by the respondent on 27-10- 99. In the objection filed by the petitioner, an objection was raised
to the executability of the decree on the ground that the Land Acquisition Act being self contained
Code, the Civil Court had no jurisdiction to pass decree in Special Civil Suit No. 125/1982/A. Thus the
same was obtained from a Court which has no inherent jurisdiction to entertain and try the suit. In

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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the submission of the petitioner, the Court passing the decree suffered from inherent lack of
jurisdiction and therefore the decree was a nullity. According to the petitioner/objector, it was
obligatory on the part of the respondent to have invoked jurisdiction of the Land Acquisition Officer
under section 30 of the Act and ought to have established his rights to claim 50% of amount of
compensation in the reference proceedings.
12. The said objection was replied by the respondent/decree-holder and after hearing the parties to
the execution proceedings, the trial Court dismissed the said objection holding that the
respondent/decree holder was not a party before the Land Acquisition Officer, hence he could not
have raised an objection under section 30 of the Act. The executing Court found that the only recourse
open to him was to file suit against the petitioner which he did and it was further held that the Civil
Suit filed by the respondent being merely for recovery of money was perfectly maintainable. As such
the Court below held that the Civil Court did have jurisdiction to decide the suit and the decree
passed therein cannot be termed as a nullity. The Court below further held that the executing Court
cannot go behind the decree and rejected the objections holding it to be without any merits.
13. Being aggrieved by the aforesaid order of the executing Court, the revisional jurisdiction of this
Court is invoked to challenge the said order.
14. The only ground canvassed by the petitioner in support of his submission was that in the event of
any dispute as to the entitlement of a person to receive compensation or the apportionment thereof, it
was obligatory on the part of the respondent to have applied for a reference to the Civil Court under
section 30 of the Act. The Civil Court had no jurisdiction to entertain and try such a suit. The learned
Counsel for the petitioner further went on to submit that the decree of the Civil Court suffered from
inherent lack of jurisdiction as the suit itself was not maintainable. Consequently, the decree sought to
be executed cannot be allowed to be executed, it being a nullity. In his submission, the said objection
could be raised even before the executing Court. The reliance was placed on the judgments of the
Apex Court in the matter of (State of Bihar v. Dhirendra Kumar and others), AIR 1995
Supreme Court 1955 , (State of Mizoram v. Biakchhawna), 1995(1) S.C.C. 156 and (Arulmighu
Lakshminarasimhaswamy Temple Singirigudi v. Union of India and others), 1996(6) S.C.C.
408.
15. The learned Counsel appearing for the respondent filed an affidavit of the respondent on record,
and brought all the relevant facts on record and submitted that the objections sought to be raised to
the execution of the decree are not only utterly untenable but amounts to abuse of the process of law.
He tried to substantiate his submission from the undisputed facts that the Special Civil Suit No.
125/82/A for recovery of 50% of the amount of compensation filed against the petitioner was bitterly
contested by the petitioner wherein no objection was raised to the jurisdiction of the Civil Court or to
the maintainability of the suit. He further submitted that even in the appeal before the High Court no
such contention was raised. Consequently, he submitted that the decree suffered by the petitioner and
the findings recorded therein that the respondent is entitled for 50% of the amount of compensation
would operate as res judicata between the parties and the said objection could not have been allowed
to be raised, at this stage, in the execution proceeding. He contended that the executing Court rightly
rejected the said objection and placed reliance on the judgment of the Apex Court in the matter of
(Ferro Alloys Corprn. Ltd. and another v. Union of India and others), AIR 1999 Supreme
Court 1236 and further submitted that the objection sought to be raised before the executing Court
might and ought to have been made a ground of defence or attack for the decision of the Court in the
earlier proceedings. Not having raised such objections, the said issue will have to be treated as issue
in decision and as such the said finding would operate as res judicata and placed reliance on the

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Submitted By: Adv.Vijay P. Mahajan (Waghodkar)Raver.
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judgment of the Apex Court in (R. G. Anand v. M/s. Delux Films), AIR 1978 Supreme Court
1613.
16. Learned Counsel appearing for the respondent further submitted that the petitioner having failed
to raise an objection to the execution of the decree within a period of three years, his objection under
section 47 by application dated 25- 8-99 was barred by limitation. In his submission the application
under section 47 of C.P.C. will attract Article 137 of the Limitation Act. Thus, according to him the
rejection of the objections by the executing Court can be supported on this count also. He further
contended that apart from the aforesaid technical objections, the suit filed by the respondent for
claiming 50% amount of the compensation from the petitioner was perfectly maintainable and the
maintainability of such a suit has been recognised by the Apex Court and also by this Court. He sought
to place reliance on the judgment of the Apex Court in the matter of (Dr. G.H. Grant v. The State
of Bihar), AIR 1966 Supreme Court 237 , (Govind Narayan Lotlikar v. Smt. Savitribai
Roghuvira Lotlikar and others), AIR 1987 Bombay, 32 and also brought to my notice unreported
judgment of this Court in First Civil Appeal No. 49/90 decided by Single Judge of this Court on
9th October, 1992 in the matter of(Shri Babusso Godu Gaunso v. Shri Suryakant Moga
Gaunso and others) ", (Per N.P. Chapalgaonker, J.) In this backdrop, he requested for dismissal of the
revision with costs.
17. It is true that when a special statute has created a machinery for granting reliefs which are
awardable only under that statute, the jurisdiction of the Civil Court under section 9 of the C.P.C.
cannot be invoked for the same relief. section 18 of the Land Acquisition Act provides for reference to
the Civil Court in case the compensation awarded by the Land Acquisition Officer is not acceptable to
the claimant and the law provides that if he accepts the amount under protest and prays for a
reference to be made under section 18 of the Act a reference shall be made. Therefore civil suit for
enhancement of compensation is not maintainable in case the amount is not accepted by the party
under protest and reference under section 18 is not prayed. The second proviso to sub-section (2) of
section 31 of the Land Acquisition Act, 1894 makes it clear that if a person has received compensation
without registering his protest, he is not entitled to make an application under section 18 and the
remedy provided by the statute is barred. Needless to say the general remedy by recourse to the Civil
Court is also barred. To receive compensation for the land compulsorily acquired is a right created by
the Land Acquisition Act and will have to be exercised by following the procedure laid down by the
statute. In this behalf, in support of this submission, the learned Counsel appearing for the petitioner
relied on State of Mizoram v. Biakchhawna, 1995(1) S.C.C. 156. However, the subsequent
discussion would show that the question involved in the present case is little different which was not
for consideration in the said judgment of the Apex Court.
18. Under section 30 a discretion is vested in the Collector to refer the matter in case a dispute arises
as to the apportionment of the compensation under section 11 or any part thereof. This is a
discretionary power of the Collector, he may or may not refer such dispute for the decision of the
Court. It becomes thus clear from the scheme of the Act that there are four kinds of disputes that can
be referred to the Court for determination. These disputes are in respect of the measurement of the
area acquired, receipt of the quantum of fair compensation, or the apportionment of the awarded
compensation and finally in respect of persons to whom compensation is payable. These disputes are
manifestly the disputes by the persons who are before the Collector, for obviously, the Collector will
not be aware of the claims of the person who are not before him and think they have a right to share
or interest in the acquired land and therefore are entitled to the awarded compensation or part
thereof. This being the case, this dispute referred to in section 30 is the dispute of the interested
persons who are before the Collector and, has raised before him the said dispute. This dispute is the

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one which is referred by the Collector for determination of the Court.

19. The dispute in respect of apportionment may also arise in respect of the claimants if they are
more than one and in such a case, reference can be made by the Land Acquisition Officer to the Civil
Court. But the scope under section 30 is limited only to the matter referred to the Court and the
reference would only be in respect of the dispute between the claimants who have appeared before
the Land Acquisition Officer. If a party is not served with a notice under section 9 or notice of award
under sub-section (2) of section 12 and is not before the Land Acquisition Officer, but had certain
interest in the property or had a share in the property acquired, he is not precluded of filing civil suit
to get compensation in respect of his share against a person who has received compensation amount
by invoking the remedy under section 9 of C.P.C. If a person is held to be a claimant by the Land
Acquisition Officer and amount of compensation is paid to him, it is not a decision of title and person
who are sharers, but who are not served with notice in the land acquisition proceedings are not
bound by such finding recorded. A Civil Suit by such persons is always competent.
20. The aforesaid interpretation get support from the third proviso to sub- section (2) of section 30 of
the Land Acquisition Act which provides that nothing therein shall affect the liability of a person who
may receive the whole or any part of the compensation awarded under the Act to pay the same to the
person lawfully entitled thereto. Therefore, the right which is already in existence is recognised by
this proviso to sub-section (2) of section 31.
21. The aforesaid position of law has further been made clear by this Court in the case of (Shri Deo
Sansthan Chinchuwad and others v. Chintaman Dharnidhar Deo and another, Respondents),
AIR 1962 Bombay 214. Therefore, the right, which is already in existence, is recognised by this
proviso to sub-section (2) of section 31. If a person claims his share from another person who has
received the compensation, he is not claiming any special right created by the Land Acquisition Act,
1894 and is claiming his right which he can establish in the Civil Court. This proposition is no more res
integra. In the case of Shri Deo Sansthan Chinchwad and others Appellants v. Chintaman
Dharnidhar Deo and another, Respondent, AIR 1962 Bombay 214 a Division Bench of this Court
was pleased to hold as follows : -
"Unless the claim of a person who is lawfully entitled to a share in the compensation money, is
already adjudicated upon under the provision of the Land Acquisition Act or such person having
had notice of such proceedings, appears therein and fails to assert and prosecute his claim to a
share in accordance with the provisions of that Act, he would be entitled under section 31(2)
proviso 3, to file a suit to recover his share from the person who may have received the whole
or any part of the compensation amount awarded under the Act."
22. The learned Counsel for the petitioner further relied upon the judgment of the Apex Court in the
matter of State of Bihar v. Dhirendra Kumar and others, AIR 1995 Supreme Court 1955. In
this case, the Apex Court was mainly dealing with the question relating to the maintainability of the
suit challenging the validity of notification under section 4 and declaration under section 6 of the Land
Acquisition Act. The Apex Court was pleased to hold that the Civil Court has no jurisdiction to go into
the question of validity or legality of the notification under section 4 and declaration under section 6
except by the High Court in proceedings under Article 226 of the Constitution. In the wake of this
question, the Apex Court was pleased to hold that the Civil Suit was not maintainable. In my opinion,
the said judgment is of no assistance to the applicant. He further relied upon the judgment of the
Supreme Court in the matter of Arulmighu Lakshnninarasinthastuamy Temple Singirigudi v.
Union of India and others 1996(6) S.C.C. 408. In this case, the Apex Court was dealing with the
question as to what would be the proper procedure if dispute relating to title of the property involved

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in the proceedings initiated under Land Acquisition Act is raised. While answering this question, the
Apex Court ruled that the legal recourse open is to seek reference under section 30 of the Act.
However, from the said judgment, it is clear that if the parties are before the Land Acquisition Officer
then in that event there is no other alternative but to seek a reference under section 30 of the Act.
However, question involved in the present case was what should be the remedy for a person who was
not present before the Collector or Land Acquisition Officer in the award proceedings. Under these
circumstances, none of the cases sought to be relied upon are applicable to the controversy involved
in the present case.
23. The learned Counsel appearing for the respondent, sought to place reliance on the judgment of the
Apex Court in the matter of Dr. G.H. Grant v. The State of Bihar, AIR 1966 Supreme Court 237
wherein the Apex Court was dealing with a direct question as to what happens, if a person who has
not appeared in the acquisition proceedings before the Collector, may be for want of notice. While
answering this question, the Apex Court held that such a person may raise a dispute relating to
apportionment and may apply to the Court for reference under section 30 for determination of his
right to compensation which may have existed before the award or which may have devolved upon
him since the award. The Apex Court found that since no period of limitation has been prescribed
under section 30 the claimant may approach the Collector who may refer the dispute in his discretion
to the Civil Court or may relegate to the person raising dispute to agitate the same in a suit and pay
the compensation in the manner prescribed by his award. Thus it would be clear that the Apex Court
while dealing with the scheme of the Land Acquisition Act, in general and, in the light of section 30 of
the Act, in particular; specifically, held that a separate suit is maintainable.
24. This High Court, dealing with the question, can a District Court in a reference under section 30 of
the Act implead person who claim to be a person entitled to compensation awarded in land
acquisition proceeding or to a part thereof or claims to be interested in the acquired property when
such person was not a party or present before the Collector? This Court in Govind v. Smt. Savitribai
(supra) answered that the doors of the Civil Court are always open to such person and such person
can always approach the Civil Court with a suit to get his right duly determined.
25. In the light of the aforesaid plethora of decisions, I am unable to accept the contention raised by
the applicant and I am of the considered opinion for the reasons stated in the foregoing paragraphs
that the Civil Suit in the facts and circumstances of the present case was perfectly maintainable and
the Civil Court had a jurisdiction to entertain and try the suit.
26. The admitted facts extracted hereinabove and in the wake of earlier litigation between the parties,
a decree passed by the Civil Court in Special Civil Suit No. 125/1982/A dated 30-9-82 and confirmation
thereof on 14-12-87 in First Appeal No. 81/84; on merits, and the said judgment having become final,
will operate as res judicata between the parties under section 11. of C.P.C. and the same is binding on
the petitioner.
27. The petitioner having failed to challenge the jurisdiction of the Civil Court and having failed to
contest the maintainability of the suit, the said issue will have to be treated as an issue in trial and
the said judgments would also operate as constructive res judicata between the parties. On this count
also the objection raised by the petitioner to the execution of the decree must fail.
28. Having said so, I do not feel it necessary to decide the third challenge to the order namely; that
the objection raised under section 47 of C.P.C. is barred by limitation, not having raised within the
period of three years, as required under Article 137 of the Limitation Act, 1963 as the said question is
a mixed question of fact and law. The said question was never raised before the executing Court

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Therefore, I do not propose to deal with this issue in the present revision application.
29. In the result, the order of the trial Court is confirmed. The revision application is dismissed with
costs quantified in the sum of Rs. 3,000/-.
Revision application dismissed.

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