Mulla Abdul Razac., v. Mulla Ibrahim (Dec) Thr. His Lrs. and 14 Ors.,

Santosh IN THE HIGH COURT OF BOMBAY AT GOA

WRIT PETITIONS NO. 1050, 1051, 1052 & 1053 OF 2018

Mulla Abdul Razac, Son of late Mulla Patcha, 51 years of age, r/o Flat No. 1, Montopio Police Qtrs., Comba, Margao – Goa. …. Petitioner.

Versus

¶1Mulla Ibrahim (S.D. through his legal representative) a) Smt. Hafiba Bi Mulla Ibrahim, (since deceased) Wife of late Mulla Ibrahim, b) Mulla Murtuza Ibrahim, Son of late Mulla Ibrahim, c) Mulla Zaibunisabi Murtuza, Daughter of late Mulla Ibrahim, d) Sayed Babasaheb, (since deceased) e) Sayed Rabiyabi Babasaheb, f) Mohamad Hanif Khan, g) Hamidabi Hanif Khan, h) Shaik Abutahir Muzawar,

i) Shaikh Ramizabi Abutahir, j) Miss Noor Nisabi Ibrahim, All r/o Sahapur, Bandora, Ponda – Goa.

¶2Mulla Abdul Latif (S.D. Through his legal representative) a) Mrs Sakina Mulla (deceased) b) Mulla Abdul Rehman, c) Mulla Rahimtulla, d) Mulla Kasim, e) Mulla Iqbal, All r/o near Police Station, Siroda. f) Amudabi Shaikh, Major of age, r/o Commerce Centre, B-wing, Flat No. D-2, 4 th Floor, Vasco-da-Gama. g) Noorjanbi Khan, C/o Mohamed Khan, r/o Kundaikar Chawl, Nr. Davarlim Masjid, Indona Davorlim, Margao Goa. h) Sazia @ Kusum Khan, r/o GI, Pankaraj Bldg., Opp. to Mitai Mandir, Tonca, Caranzalem

i) Hasina Shaikh, r/o Kurtarkar Arcade, Flat No. T-16, 3 rd Floor, Kaziwada, Ponda. j) Mumtaj Bi Mulla, r/o near Police Out post, Siroda

¶3Mulla Hassan (S.D. through his legal representatives) a) Hfiza Mulla (deceased) b) Mulla Anwar, c) Mulla Farroq, d) Mulla Nazir, e) Mulla Salim f) Mulla Aslam, All r/o Shahapur Bandora, Ponda Goa.

¶4Mulla Ali (S.D. through his legal representatives) a) Kulsumti Ali Mulla (deceased) b) Mulla Javed, (since deceased) c) Mrs. Mulla Javed, d) Mulla Rasid, (since deceased) e) Sakiba Rasid Mulla, f) Mulla Vahid, g) Mrs. Mulla Vahid, h) Farida Bi Raziabi, 4(h)(i) Farida Bi, 4(h)(ii) Razia Bi

i) Kamal Shaikh, Major of age, All r/o Shahapur, Bandora, Ponda Goa.

¶5Mulla Insuf (S.D. through his legal representatives) a) Mulla Iklak, r/o Shahapur, Bandora, Ponda Goa.

¶6Mulla Abdul Gani (S.D. through his legal representatives) a)Mulla Noor Mohamad, r/o Shahapur, Bandora, Ponda Goa.

¶7Mulla Mohamad Mirza (deceased) a) Mulla Mohamad Zaruddin, b) Mulla Yakub, c) Mulla Amodasab (deceased) 7(c)(i) Mr. Mulla Mohamed Zahid, (Power of Attorney in favour of Mulla Zahiruddin revoked vide deed of revocation dated 09/01/2015) 7(c)(ii) Miss Reshma Mulla, Both r/o Shapur, Ponda. Presently residing At Flat No. 101, Block B, Alfattaim Building, Khalid Bin Waleed Stree, Bur – Dubai, UAE (Power of attorney in favour of Mulla Zahiruddin revoked vide Deed of Revocation dated 15/04/2015) d) Mulla Usman (deceased) All resident of Shahapur, Bandora, Ponda Goa. 7(d)(i) Mr. Zameer Usman Mulla, r/o Rahmani Building, B/19, First floor, Opp. Railway Station, Mumbra Dist. Thane 400612 (Power of attorney in favour of Mulla Zahiruddin revoked vide Deed of Revocation dated 29/12/2014) 7(d)(ii) Mr. Zakir Usman Mulla, r/o Radisson Blu Hotel, Dubai Deira Creek, Baniyas Road, P.O. Box 476, Dubai – UAE (Power of attorney in favour of Mulla Zahiruddin revoked vide Deed of Revocation dated 28/12/2014) 7(d)(iii) Miss Zaheera Usman Mulla, r/o Rahmani Building, B/19, First floor, Opp. Railway Station, Mumbra Dist. Thane 400612 (Power of attorney in favour of Mulla Zahiruddin revoked vide Deed of Revocation dated 29/12/2014) 7(e) Mirza Zahiruddin Mulla major of age, son of Mulla Zahiruddin r/o Near Maruti Temple, Shapur, Ponda Goa. 7(f) Faizan Zahiruddin Mulla 15 years of age, son of Shri Mulla Zahiruddin r/o Near Maruti Temple, Shapur, Ponda Goa. Represented herein by his father & Natural Guardian Mulla Zahiruddin, major of age, Businessman, Resident of Shapur, Ponda Goa

¶8Abdul Karim Mulla (S.D. through his legal representatives) a) Razia Bi, r/o 237, Sacherpir Street, Camp, Pune.

¶9Mulla Mohamed Husain (S.D. through his legal representatives) a) Mulla Mohamed Hussain, (since deceased) b) Mulla Mohamed Ayub, (since deceased) c) Mulla Mohamed Aslam, d) Mulla Mohamd Afzal, e) Mulla Mohamed Allbodine, f) Mulla Mohamed Mansur, g) Fatima Bi, (since deceased) h) Asmat Bi,

i) Mumtaz Bi, j) Shaida Bi k) Shaireta Bi, All r/o Shahapur, Bandora, Ponda Goa.

¶10Mulla Abas (S.D. through his legal representative) a)Mulla Javed, r/o 237, Sacherpir Street, Camp, Pune.

¶11Mulla Hanza (deceased) 11(a) Istiyaz Mulla Son of deceased Mulla Hamza Major of age, service, bachelor, 11(b) Rafiq Mulla Son of deceased Mulla Hamza Major of age, businessman, married to 11(c) Mrs. Irfama Bi, Daughter in law of deceased Mulla Hamza Major of age, housewife 11(d) Imtiyaz Mulla, (since deceased) Son of deceased Mulla Hamza Major of age, businessman, bachelor All resident of Flat No. G-2, Macedo Apartments, St. Cruz, Ponda Goa. 11(e) Waheeda Shaikh Daughter of deceased Mulla Hamza Major of age, housewife and her husband 11(f) Sheikh Ayoob Son in law of deceased Mulla Hamza Major of age, businessman Both residing at H. No. 1009, Demani Cuncoliem, Salcete Goa. 11(g) Mrs. Sajeeda Khan Daughter of deceased Mulla Hamza Major of age, housewife, married to 11(h) Mr. Karim Khan @ Yunus Khan (since deceased) Son in law of deceased Mulla Hamza Major of age, both r/o H. No. 277, Malbhat, Margao, Salcete Goa. 11(i) Mrs. Farida Khan, Daughter of deceased Mulla Hamza, Major of age, housewife, married to 11(j) Mr. Khan Majid, Son in law of deceased Mulla Hamza Major of age, Govt. Servant Both residing at H. No. 31, Near Market Yard, Valpoi. 11(k) Mrs. Faimida Khan Daughter of deceased Mulla Hamza Major of age, housewife, married to 11(l) Mr. Shaikh Hussain Son in law of deceased Mulla Hamza Major of age, service, Both residing at Opposite Rohidas Chodankar, H. No. 7, Sasmollem, Baina, Vasco-da-Gama, Goa.

¶12Mulla Abdul Samad (S.D. through his legal representatives) a)Zainat Bi, b)Mulla Ismail, c)Mulla Izaz, d)Mulla Aktar, e)Safina Bi, f)Rahana Bi, All r/o Shahapur, Bandora, Ponda Goa.

¶13Mulla Mohamed Salia r/o Antruz Nagar, Curti, Ponda Goa.

¶14Mulla Abubkar r/o Shahapur, Bandora, Ponda Goa.

¶15Late Mulla Abdul Kadar (since deceased) Represented by his LRs a) Mr. Mulla Issac, b) Mrs. Taiyab Bi, c) Smt. Khatija Bi, d) Mr. Shaikh Dawood (since deceased) Amendment carried out as per order dated 18/02/2016 e) Mr. Shaikh Irshad, f) Mr. Shaikh Kassim, r/o Shahapur, Bandora, Ponda Goa. ….. Respondents. Mr A.D. Bhobe with Ms Annelise Fernandes, Advocates for the Petitioners.

Mr John Abeau Lobo, Advocate for Respondent No. 1(e)

CORAM :

M. S. SONAK, J. DATE : th March 2023 ORAL JUDGMENT :

¶1Heard Mr A.D. Bhobe for the Petitioner and Mr John Lobo for Respondent No.1(e) in all these Petitions. The endorsement dated 8/11/2018 confirms that all the Respondents have been served.

¶2This Court, by an order dated 25/10/2018, while issuing notices to the Respondents, had made it clear that all these Petitions would be taken up for final disposal at the admission stage. This was more so since proceedings before the Reference Court were also stayed by this Court.

¶3Accordingly, Rule is issued in all these Petitions, and these Petitions are taken up for final disposal.

¶4The challenge in this Petition is to the separate but identical orders dated 10/8/2018, dismissing the Petitioner's applications for impleadment as a party in the references under Section 30 of the Land Acquisition Act, 1894 (said Act) on the ground that though, factually a reference was made concerning the Petitioner, due to a clerical error on the part of the Collector's Office, the Petitioner's name remained to be included in the references forwarded to the District Court

¶5The learned Reference Court, relying upon the decision of Shayamali Das vs. Illa Chowdhry & ors. - Appeal (Civil) 4632 of 2006, has held that Order 1, Rule 10(2) of CPC does not apply to a reference under Section 30 of the said Act. Therefore, the Petitioner's applications for impleadment in the three pending references were rejected.

¶6The Reference Court has also noted that Section 30 of the said Act does not postulate any time limit as such. Therefore, a reference under Section 30 can be made at any point in time if such an application is made to the Collector. In short, the Reference Court virtually advises the Petitioner to approach the Collector once again and urge a fresh reference under Section 30 of the said Act because there is no time limit as such within which such a reference can be applied for or made.

¶7Mr Lobo, learned Counsel for Respondent No.1(e), endorses the reasoning of the learned Reference Court by submitting that the Reference Court had no power or jurisdiction to implead the Petitioner as a party in the pending references. He relied upon Hafix Ismail Shaikh and ors vs. Special Land Acquisition Officer, Panvel, and ors. [2005 (3) Mh.L.J. 232 in support of this endorsement of the view taken by the Reference Court.

¶8Hafix Ismail Shaikh (supra) holds that the parties, who had not applied for enhancement, cannot be entitled to enhancement in the absence of their applying for enhancement against their share. Accordingly, the issue involved in Hafix Ismail Shaikh (supra) was different from the issue involved in the present Petitions. Similarly, even the issue in Shayamali Das (supra) was different. The third party, who had never raised any dispute before the Land Acquisition Officer about apportionment or enhancement, attempted to seek impleadment directly before the Reference Court in the pending reference under Section 30 of the said Act. It is in the above circumstances that it was held that the Reference Court could not, by resorting to the provisions of Order 1, Rule 10 of CPC, broaden the scope of the reference.

¶9However, the position in the present Petitions is entirely different. Here, the Petitioner, even within the time prescribed for applying a reference under Section 18 of the said Act, had applied the Collector/LAO raising disputes of the rate and apportionment. In these applications, the Petitioner had claimed the co-ownership regarding the acquired property. Some genealogy, in support of such a claim, was also provided. Besides, the Petitioner had expressed dissatisfaction with the quantum of compensation, as also the issue of apportionment was clearly raised by the Petitioner before the Collector/LAO.

¶10Since there were disputes amongst the co-owners or the alleged co-owners, the Collector/LAO made a reference under Section 30 of the said Act to the Reference Court vide letter dated th February 2014. However, in this letter, the Petitioner's name was omitted. This position was accepted by the Collector/LAO in his letter dated 12 th April 2017, addressed to the Reference Court.

¶11The communication dated 12 th April 2017 is extremely important and, therefore, the same is transcribed below for the convenience of reference : " No.2-2-2011/LAND/M-532 Office of the Deputy Collector & S.D.O.

Ponda Sub-Division, Pond, Goa. Dated: 12/04/2017. To, The District and Sessions Judge, District and Sessions Court, Ponda-Goa. Sub: L.A. for Establishment of transport office and other infrastructure at Ponda in Ponda Taluka. Sir, In continuation of our letter No. 2-2-2011/LAND/666 dated 28/02/2014, on account of sheer omission on our part, the name & address of the interested party in relation to the land acquired for the purpose of establishing transport office and other infrastructure at Ponda was left out. In order to fill up the gap the name of following person may also be taken into consideration while determining the quantum of shares u/s 30 of the L.A. Act, 1894.

¶1Mullam Abdul Ruzac FN. 1 st Moniopio Police Qts. Comba, Margao, Goa. Yours faithfully,

Sd/- (Paresh M. Faldessai) Deputy Collector & S.D.O. Ponda Sub-Division, Ponda-Goa. "

¶12Mr Bhobe, learned Counsel for the Petitioner submitted that the Petitioner made inquiries with the Collector/LAO about the fate of their references. Accordingly, they were informed that the references have already been made to the Reference Court, and the Petitioner should inquire with the Reference Court. Upon undertaking such inquiries, the Petitioner realised that though the reference had been made, his name was inadvertently excluded from the letter by which such reference was made.

¶13In the above peculiar circumstances, the Petitioner applied for him to be included in the pending references. These applications were, however, rejected by the impugned orders dated 10/8/2018 for the above reasons. Hence, the present Petitions.

¶14The Petitioner, in this case, as noted above, had raised the dispute about his entitlement and apportionment before the Collector/LAO. Though no period of limitation as such is prescribed, the record bears out that applications raising such dispute were filed before the Collector/LAO within the time limit prescribed, even for seeking reference under Section 18 of the said Act. A reference under Section 18 is considerably wider than a reference under Section 30 of the said Act. Section 18 refers to any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection is to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.

¶15Section 30 of the said Act, refers to disputes as to apportionment. It provides that when an amount of compensation has been settled under section 11 if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the Court.

¶16In this case, the record bears out that not only was the Petitioner's application raising a dispute of apportionment duly made to the Collector/LAO, but the Collector/LAO had every intention to refer even this dispute for determination of the Reference Court. It is only due to some inadvertent clerical error that the Petitioner's name was omitted. This is evident and, even otherwise, accepted by the Collector/LAO in his communication dated 12/4/2017 transcribed above.

¶17In the above peculiar circumstances, the Reference Court should have included the Petitioner in the pending references rather than advising the Petitioner to approach the Collector again for fresh references. Even if, such fresh references were to be made, such fresh references would have to be decided along with the pending references. Such multiplicity should have been avoided in the peculiar facts and circumstances of the present case.

¶18As pointed out earlier, it is not a case where the Petitioner raised no dispute of apportionment before the Collector/LAO, but, for the first time, sought impleadment before the Reference Court to raise such dispute of apportionment. However, the Reference Court did not consider this crucial factor. Further, the Reference Court, with respect, erred in refusing to take cognizance of the Collector/LAO's above-transcribed communication dated 12/4/2017, though the Petitioner's contention was mainly based upon the said communication.

¶19The Rule is made absolute in all these Petitions for all the above reasons. Accordingly, the impugned orders dated 10/08/2018 are set aside. The Reference Court is directed to include the Petitioner in the pending references so that all issues of apportionment are determined in the pending references by affording reasonable opportunity to all the parties to establish their own claims.

¶20It is made clear that this Court has not even remotely gone into the issues of actual apportionment, entitlement, etc. Therefore, all such questions are left open to be determined by the Reference Court in accord with the law and the evidence that the parties produce before the Reference Court. Further, in this regard, all contentions of all parties are kept explicitly open.

¶21The Rule is made absolute in the above terms, without any cost orders. Misc. Civil Applications, if any, are also disposed of.

¶22Ad interim orders granted earlier, are hereby, vacated. Parties are directed to appear before the Reference Court on 3rd April 2023 at 10.00 a.m. If any of the Respondents do not appear, the Reference Court must issue notices to them, or if any Counsel is appearing on their behalf, then to such Counsel.

M. S. SONAK, J. SANTOSH S MHAMAL Date: 2023.03.18 13:44:14 +05'30'