Allowed

Lachhi Ram v. State

Himachal Pradesh HC4 Oct 2017CWP/10819/2012

Case brief

AI extract

What is this about?

A landowner challenged rejection of an application for enhanced compensation as time-barred where the award copy did not accompany the statutory notice. The Court set aside the rejection and directed the Collector to refer the application to the District Judge for determination.

What did the court decide?

Collector’s rejection order quashed; Land Acquisition Collector directed to refer the compensation application to the District Judge for determination.

Lachhi Ram Vs State — Land Acquisition | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 10819 of 2012 Decided on: 04.10.2017

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Lachhi Ram …Petitioner

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Versus

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State of H.P. & Ors. ...Respondents

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Coram

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The Hon’ble Mr.Justice Tarlok Singh Chauhan, Judge.

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Whether approved for reporting? No.

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For the petitioner: Mr. Dibender Gosh, Advocate. For the respondents: Mr. J. S. Guleria, Asstt. A.G.

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Justice Tarlok Singh Chauhan, Judge (Oral)

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This writ petition has been filed with the following

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substantive prayers:-

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“(i) That a Writ in the nature of Certiorari may very kindly be issued and the order dated 10.6.2009 (Annexure P-4) refusing to refer the matter to the learned District Judge for determination of the court may kindly be quashed and set aside.

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(ii) That a Writ in the nature of Mandamus may be issued directing the respondents to refer the matter to the learned District Judge for determination of the court on the application submitted by the Petitioner (Annexure P-2).”

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The facts lying in a narrow compass.

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The land of the petitioner was acquired after following

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the due process of law. The Collector, Land Acquisition passed his award on 21.7.2008 in absence of the petitioner. Therefore, notice under Section 12 (2) of the Land Acquisition Act (for short the ‘ Act ’)

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was issued to the petitioner which was received by his son on 23.12.2008.

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Thereafter, the petitioner applied for the certified copy of the award and on receipt thereof, on 06.02.2009 he filed an application under Section 18 of the Act before the Land Acquisition Collector to refer the matter for enhancement of the compensation to the learned District Judge. However, the Collector, dismissed this application by holding that the same to be time barred by three (3) days.

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Therefore, the sole question which required to be determined is whether the Reference Petition could have been held to be time barred, more particularly, when admittedly no copy of award was accompanying the notice served upon the son of the petitioner under Section 12(2) of the Act.

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Sections 12 and 18 of the Act, which have bearing on the decision of this petition read thus:-

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“ 12. Award of Collector when to be final .-(1) Such award shall be filed in the Collector’s office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

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(2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.

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18. Reference to Court .-(1) 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 be to

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the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.

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(2) The application shall state the grounds on which objection to the award is taken:

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Provided that every such application shall be made,-

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(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector’s award;

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(b) In other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire.

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A bare perusal of the above reproduced provisions shows that by virtue of Section 12(1), an award passed by the Collector is treated final and conclusive evidence of the area and value of the land and apportionment of the compensation among the persons interested. In terms of Section 12(2), the Collector is required to give notice of award to the interested persons who are not present either personally or through their representatives at the time of passing of award. Section 18(1) provides for making of reference by the Collector to the Court for the determination of the amount of compensation etc. Section 18(2) lays down that an application for reference shall be made within six weeks from the date of the Collector’s award, if at the time of making of award the person seeking reference was present or was represented before the Collector. If the person is not present or is not represented before the Collector, then the application for reference has to be made within

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six weeks of the receipt of notice under Section 12(2) or within six

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months from the date of the passing of the award by the Collector, whichever period shall first expire.

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The reason for providing six months from the date of the award for making an application seeking reference, where the applicant did not receive a notice under Section 12(2) of the Act, while providing only six weeks from the date of receipt of notice under Section 12(2) of the Act for making an application for reference where the applicant has received a notice under Section 12(2) of the Act is obvious. When a notice under Section 12(2) of the Act is received, the person interested is made aware of all relevant particulars of the award which enables him to decide whether he should seek reference or not. On the other hand, if he only comes to know that an award has been made, he would require further time to make enquiries or secure copies so that he can ascertain the relevant particulars of the award. When needs to be emphasized is that alongwith the notice issued under Section 12(2) of the Act, the land owner who is not present or is not represented before the Collector at the time of making of award should be supplied with a copy thereof so that he may effectively exercise his right under Section 18(1) to seek reference to the Court.

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This is so held by the Hon’ble Supreme Court in Premji Nath vs. State of Gujarat, AIR 2012 SC 1624 . The issue involved in the instant lis so far as this Court is concerned is no longer res integra in view of lucid exposition of law by this Court in Hari Singh Vs. General

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Manager, 2016 (2) ILR 896 wherein it was observed as under:-

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[16] Mr. Anuj Nag, Advocate has vehemently argued that the reference petitions have not been filed within the period of limitation. However, the fact of the matter is that the Award was made on 27.1.1999. The reference petitions were received in the Reference Court on 4.12.1999 though filed on 20.2.1999. It has come in the statement of PW-8 Chaman Lal Patwari, Thein Dam, Land Acquisition Office Dalhousie that before sending the land reference petitions to the Court, the same were lying with the Senior Assistant of Land Acquisition Collector. He has sought voluntary retirement. It was the responsibility of the Land Acquisition Collector to send the references within the period prescribed. Moreover, in the present case, no notice under Section 12 (2) of the Act was issued to the claimants. Award was made in the absence of the claimants. The delay, in fact, was on the part of the Land Acquisition Collector and the claimants can not be held responsible for the same. Thus, the reference court has rightly concluded that the reference petitions were within limitation.

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[17] Their Lordships of the Hon'ble Supreme Court in State of Punjab vs. Mst. Qaisar Jehan Begum and another, 1963 AIR(SC) 1604 have held that where the award was never communicated to the party the question is when did the party know the award either actually or constructively. Knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. Their Lordships have held as under:

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[5] As to the second part of cl. (b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandra s case, 1962 1 SCR 676. It was there observed that a literal and mechanical construction of the words "six months from the date of Collector's award" occurring in the second part of cl. (b) of the proviso would not be appropriate and "the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned counsel for the appellant has

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placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24,1954. He has pointed out that the learned Subordinate Judge relied on this petition as showing the respondents date of knowledge and there are no reasons why we should take a different view. It seems clear to us that the ratio of the decision in Harish Chandra s case, 1962 1 SCR 676 is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12 (2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it. or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated December 24, 1954 that the respondents had knowledge of the award one of the respondents gave evidence before the learned Subordinate Judge and she said :

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"The application marked as Ex. D-1 was given by me but the amount of compensation was not known to me, nor did I know about acquisition of the land. Chaudhari Mohd. Sadiq, my Karinda had told me on the day I filed the said application that the land had been acquired by the Government."

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This evidence was not seriously contradicted on behalf of the appellant and the learned Subordinate Judge did not reject it. It is worthy of the note that before the Collector also the appellant did not seriously challenge the statement of the respondents that they came to know of the award on July 22, 1955 the date on which the compensation was paid. On the reply which the appellant filed before the learned Subordinate Judge there was no contradiction of the averment that the respondents had come to know of the award on July 22, 1955. That being the position we have come to the conclusion that the date of knowledge in this case was July 22, 1955. The application for a reference was clearly made within six months from that date and was not therefore barred by time within the meaning of the second part of cl. (b) of the proviso to S.18 of the Act.

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[18] Their Lordships of the Hon'ble Supreme Court in Pratap Narain vs. The Chief Commissioner, Delhi and others, 1969 3 SCC 631, have held that in a case where the appellant had not received any notice of the making of the award and consequently his application under section 18 was within time, this plea was not

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controverted by the respondents, the Land Acquisition Officer was not justified in refusing to exercise his statutory duty. Their Lordships have held as under:

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[3] The appellant's case is that he had not received any notice of the making of the award and consequently his application under section 18 was within time. This plea had not been controverted by the respondents in this court. The records produced by the appellant lend support to that plea. Hence prima facie the appellant's application under Section 18 was within time, see Raja Harish Chandcra Raj Singh v. The Deputy Land Acquisition Officer and another and State of Punjab v. Mst. Osisar Jehan Begum and Another. If the allegations made by the appellant are accepted as correct as we have to do on the basis of the pleadings and material before us then there is no doubt that the land Acquisition Officer was not justified in refusing to exercise his statutory duty.

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[19] Learned Single Judge of Delhi High Court in S. Gulab Singh vs. Union of India and another, 1973 AIR(Del) 231 while relying State of Punjab vs. Mst. Qaisar Jehan Begum and another, 1963 AIR(SC) 1604 has held that where a person has no notice under section 12 (2), an application filed by him within six months from the date of knowledge of essential contents of the award is competent. Learned Single Judge has held as under:

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[2] It is not disputed that the name of the petitioner is not shown as owner in the revenue records. The Land Acquisition Collector had made the award in December, 1958 and the application of the petitioner to make a reference under Section 18 was made on 8-2- 1962 (copy of which is Annexure-A to the Writ Petition). He has mentioned therein that no notice either under Section 9 or Section 12 (2) of the Act was served upon him and that only less than a month prior to the application he came to know that his land was acquired. The petition is sought to be resisted on the ground that no notice was served on the petitioner since he was not a person interested in the property in question and yet it is contended that his application was barred by time. Section 18 of the Act enables an application by a "person interested" not accepting the award to be referred by the Collector for the determination of the Court for determining the amount of compensation. Such an application has to be made

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(a) within six weeks from the date of the Collector's award if the person making it was present or was represented before the Collector at the time when he made the award;

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(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.

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This provision was interpreted by the Supreme Court in Harish Chandra Raj Singh v. Deputy Land Acquisition Officer, 1961 AIR(SC) 1500. Gajendragadkar, J. (as his Lordship then was) explained the legal position in the following terms :

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"The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to Section 18 in a literal or mechanical way".

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[3] It was specifically observed by S. K. Das, J. in State of Punjab v. Mst. Qaisar Jeham Begum, 1963 AIR(SC) 1604 that knowledge of the award does not mean a mere knowledge of the fact that an award has been made and that the knowledge must relate to the essential contents of the award which may be known actually or constructively. The impugned order dismissing the application for making a reference under Section 18 of the Act on the ground that it had not been filed within a period of six months from the date of the Collector's award is not correct and has to be quashed. It is hereby quashed.

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[20] Division Bench of Bombay High Court in State of Maharashtra and another vs. Abdul Sattar and others, 1995 AIR(Bom) 85 has held that no notice under section 12 (2) issued to the claimants, the application for reference made few days after claimants received payment is well within time prescribed. Division Bench has held as under:

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[8] It is an admitted fact that the award passed by the Special Land Acquisition Officer does not bear the date. That necessarily means that it was not known when the award was passed. The record also does not show that any notice was served on any of the claimants under section 12(2) of the Act. No office copy of such notice having been issued finds place in the record. The claimant No.1 has stated that no notice was served on any of the claimants intimating about the passing of the award. It may be stated that, as observed by the Court below, the payment was received by the claimants under protest on 20-6-1977 and the application for reference was made on or about 1-71977 but it was sent to the Court on 1-4-1980. It is clear from the record that none of the claimants had any knowledge about passing of the award untill they received the amount of compensation under protest. The Court below was, therefore, justified in recording a finding that the application for reference to the Court under section 18 of the Act was well within six months from the date of passing of the award by the Special Land Acquisition Officer. The learned Special Counsel for the appellants has not been able to dis-lodge this finding of fact recorded by the Court below. There is, therefore, no force in the contention of the learned Counsel

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for the appellant that application for reference was not within the time prescribed under Clause (a) of sub-section (2) of section 18 of the Act. The application for reference was well within the time under clause (b) of sub-section (2) of section 18 of the Act.

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[21] Learned Single Judge of Karnataka High Court in The Spl. Land Acquisition Officer vs. Tukkareddy, 1996 AIR(Kar) 26 has held that if the authority does not act at all, the entire period that has elapsed as a result on the part of the default of the authority will on an analogy of the provisions of section 15 (2) of the Limitation Act necessarily have to be excluded while computing limitation. In this case also, the application was filed in time but there was delay in making reference on the part of the authorities.

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[22] Their Lordships of the Hon'ble Supreme Court in Bhagwan Das and others vs. State of Uttar Pradesh and others, 2010 3 SCC 545 have held that if person interested or his representative was not present when the award was made, and if he does not receive notice under section 12 (2) from Collector, he can make application within six months of the date on which he actually or constructively came to know about contents of the award. Their Lordships have held as under:

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[28] The following position therefore emerges from the interpretation of the proviso to section 18 of the Act :

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(i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.

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(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2).

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(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.

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(iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section

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12(2) of the Act was the date of knowledge of the contents of the award.

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[23] Their Lordships of the Hon'ble Supreme in Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and another, 2011 6 SCC 47 have held that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector under section 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fair play and natural justice. Their Lordships have held as under:

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[6] There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect person, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot, consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector : it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fairplay and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to S. 18 in a literal or mechanical way.

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[11] A similar question arose before the Madras High Court in Annamalai Chetti v. Col. J. G. Cloete, 1883 6 ILR(Mad) 189, Section 25 of the Madras Boundary Act XXVIII of 1860 limited the time within which a suit may be brought to set aside the decision of the settlement officer to two months from the date of the award, and so the question arose as to when the time would begin to run. The High Court held that the time can begin to run only from the date on which the decision is communicated to the parties. "If there was any decision at all in the sense of the Act", says the judgment, "it could not date earlier than the date of the communication of it to the parties; otherwise they might be barred of their right of appeal without any knowledge of the having been passed". Adopting the same principle a similar construction has been placed by the Madras High Court in Swaminathan v. Lakshmanan Chettiar, 1930 AIR(Mad) 490 on the limitation provisions contained in Ss. 73 (1) and 77(1) of the Indian Registration Act XVI of 1908. It was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed the expression "within thirty days after the making of the order" used in the said sections means within thirty days after the date on which the communication of the order reached the parties affected by it. These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. Therefore, we are satisfied that the High Court of Allahabad was in error in coming to the conclusion that the application made by the appellant in the present proceedings was barred under the proviso to S. 18 of the Act.

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[24] Their Lordships of the Hon'ble Supreme Court in Premji Nathu vs. State of Gujarat and another, 2012 5 SCC 250 have held that the landowner who is not present or is not represented before Collector at the time of making of award should be supplied with a copy of award so that he may effectively exercise his right of reference under section 18 (1) of the Limitation Act. Their Lordships have held as under:

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[10] An analysis of the above reproduced provisions shows that by virtue of Section 12(1), an award made by the Collector is treated final and conclusive evidence of the true area and value of the land and apportionment of the compensation among the persons interested. In terms of Section 12(2), the Collector is required to give notice of his award to the interested persons who are not present either personally or through their representatives at the time of making of award.

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13. Section 18(1) provides for making of reference by the Collector to the Court for the determination of the amount of compensation etc. Section 18(2) lays down that an

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application for reference shall be made within six weeks from the date of the Collector's award, if at the time of making of award the person seeking reference was present or was represented before the Collector. If the person is not present or is not represented before the Collector, then the application for reference has to be made within six weeks of the receipt of notice under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire.

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[25] Their Lordships of the Hon'ble Supreme Court in Madan and another vs. State of Maharashtra, 2014 2 SCC 720, have held that the date of the Collector's award used in proviso (b) to section 18 (2) must be understood to mean the date when award is either communicated to party or is known by him either actually or constructively. Their Lordships have held as under:

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[9] From the order dated 29.10.1993 passed in L.A.R. No. 75/1992, it is, inter alia, clear that there was a dispute amongst the land owners (the appellants are one set of such land owners) in respect of their respective shares in the acquired land on account of which no apportionment of compensation was made by the Collector who made a Reference under Section 30 of the Act to the court. Further, in the order dated 29.10.1993 it is recorded that the appellants had no knowledge of the Award till the order dated 4.9.1991 came to be passed in the Reference under Section 30. In Raja Harish Chandra Raj Singh this Court has held that the expression "the date of the award" used in proviso (b) to Section 18(2) of the Act must be understood to mean the date when the award is either communicated to the party or is known by him either actually or constructively. It was further held by this Court that it will be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to Section 18 in a literal or mechanical way. In the present case, it has already been noticed that a finding has been recorded by the Reference Court in its order dated 29.10.1993 that "the petitioners had no knowledge about the passing of the award till the date of payment of compensation on 5.9.1991 because they were held entitled to receive the compensation after the decision of Reference under Section 30 dated 4.9.1991."

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[10] What transpires from the above is that it is for the first time on 4.9.1991 (date of the order under Section 30 of the Act) that the appellants came to know that they were entitled to compensation and the quantum thereof. It is not in dispute that the Reference under Section 18 was made within 6 weeks from the said date i.e. 4.9.1991. In the above facts, it is difficult to subscribe to the view taken by the High Court to hold that the Reference under Section 18 was barred by limitation.

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[13] For the reasons aforesaid, we hold that the High Court had erred in allowing the appeal filed by the State and reversing the order dated 29.10.1993 passed by the Second

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Additional District Judge, Beed. The award of compensation in the instant case having been made by the Collector as far back as in the year 1985 and the amount involved being exceedingly small we have considered the basis on which enhancement of compensation was made by the learned Reference Court in its order dated 29.10.1993. On such scrutiny, we do not find any error in the view taken by the learned Reference Court. Therefore, in the peculiar facts of the case, while allowing this appeal and setting aside the order dated 09.09.2008 passed by the High Court we deem it proper to restore the order dated 29.10.1993 passed by the Second Additional District Judge in L.A.R. No.75 of 1995.

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[26] Their Lordships of the Hon'ble Supreme Court in Rajasthan Housing Board versus New Pink City Nirman Sahkari Samiti Limited and another, 2015 7 SCC 601 have held that the limitation period of six months from date of award for making reference to court commences from the date of actual or constructive knowledge of award. Their Lordships have held as under:

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[11] The provisions of Rajasthan Land Acquisition Act are in pari materia with the provisions of the Land Acquisition Act, 1894 and section 12 of the Act of 1953 is extracted hereinbelow :

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"12. Award of Collector when to be final.-(1) Such award shall be filed in the Collector's officer and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.

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(2) The Collector shall give immediate notice of his award or the amendment thereof to such of the persons interested as are not present personally or by their representatives when the award or the amendment thereof is made."

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Section 12(2) requires immediate notice to be given of the award to such of the persons interested as are not present personally or by their representative/s when the award is made. Section 18(2) of the Act of 1953 requires to file the objections within six weeks from the date of the award if the person or the representative was present when the award was made. In other cases, within six weeks of the receipt of notice from the Collector under section 12(2) or within six months from the date of the award whichever period shall first expire.

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In view of the law expounded above, the order passed by the Collector on 10.06.2009 is clearly not sustainable as it failed to take into consideration the legal position as referred to above.

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In view of the above discussion, the petition succeeds and accordingly the order dated 10.06.2009 (Annexure P-4) whereby the Collector, refused to refer the matter to the learned District Judge for determination is quashed and set aside and the Land Acquisition Collector (Respondent No.2) is directed to refer the matter to the learned District Judge for determination on the application (Annexure P-2) submitted by the petitioner.

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Needless to say that the learned District Judge shall proceed to decide the compensation strictly in accordance with law.

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With the aforesaid observations, the petition is disposed of, leaving parties to bear their own cost. Pending application, if any, stands disposed of.

Judge.

October 4, 2017

sanjeev

(Tarlok Singh Chauhan),

Lachhi Ram v. State

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Lachhi Ram v. State

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