Brikam Chand and Another Vs Nhepcl and Others

Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for respondents No. 2 & 3-State.

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Sandeep Sharma, J. (Oral)

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Precisely, the question, which needs to be determined in

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the case at hand is that “whether Land Acquisition Collector has power to reject the application made by the claimant for making reference under Section 18 of the Land Acquisition Act, 1989 (hereinafter “Act”) to learned District Judge on the ground of limitation or not”.

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Petitioners herein filed an application under Section 18 of the Act in the Court of Collector Land Acquisition, NHPC Bihali, on 23.07.2018 averring therein that vide notification Vidyut Chh (5)

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18/2006 dated 01.12.2006 issued under Section 4 of the Act, land of the petitioners situate in Phati Manyashi Kothi Banogi, Sub Tehsil Sainj, District Kullu, Himachal Pradesh, was acquired for the construction of Parvati Hydro Electric Project in Phati Kotla (Annexure P-4) . Petitioners claimed that notices under Section 9 of the Act were issued to them and thereafter, they filed objections regarding the value of land and houses etc. but respondent No. 1 without considering their objections, proceeded to pass Award No. 38/2008 for Phati Manyashi at their back. Petitioners claimed that no notice under Section 12(2) of the Act was served upon them, as such, they never came to know about the passing of aforesaid award, rather factum with regard to passing of award came to their knowledge in the month of June, 2018 when other land holders received the enhanced amount of compensation under same award. While rendering aforesaid explanation on record qua delay in maintaining the reference petition under Section 18 of the Act, petitioners requested Collector Land Acquisition, NHPC Bihali to make a reference to learned District Judge under Section 18 of the Act, however such prayer of them came to be rejected vide order dated 18.09.2023 (Annexure P-4) on the ground of limitation.

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Collector Land Acquisition, while passing aforesaid order, held that as per Clause (b) of proviso to Section 18 of the Act, the

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application for reference should be made within six months from the date of the Collector’s award/date of constructive knowledge of award of Collector. Collector Land Acquisition further held that since application having been filed by the petitioners under Section 18 of the Act, requesting therein to make a reference to Collector has been made by the applicant on 23.07.2018 after a period of nine years and nine months from the date of receipt of payment i.e. 04.09.2008, which is much beyond the prescribed period of limitation, prayer made on behalf of petitioners to make a reference to learned District Judge is not maintainable. In the aforesaid background, petitioners have approached this Court in the instant proceedings, praying therein to set aside the aforesaid order passed by learned District Judge with further direction to make a reference to learned District Judge, Kullu.

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Pursuant to notices issued in the instant proceedings, respondents have filed reply, wherein attempt has been made to defeat the claim of the petitioners on the ground of limitation. Mr. C.N.Singh, learned counsel representing the respondent No. 1, while supporting the impugned order, specifically referred to Clause (b) of proviso to Section 18 of the Act to contend that since there is specific period of limitation provided under the aforesaid provision of law, coupled with the fact that petitioners herein have approached Land Acquisition Officer to make a reference after inordinate delay of nine years and nine months, and no plausible explanation ever came to be rendered

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on record qua the aforesaid delay, no illegality can be said to have been committed by the learned Court below, while passing impugned order.

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Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned order, this Court finds force in the submission of Mr. Maan Singh, learned counsel for the petitioners, that Land Acquisition Collector could not have rejected the prayer made on behalf of petitioners to make a reference to learned District Judge under Section 18 of the Act on the ground of limitation. Aforesaid issue is no more res integra, rather stands duly adjudicated by this Court in catena of cases.

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At this stage, it would be apt to take note of judgment dated 08.10.2018 passed by Division Bench of this Court in Joginder Singh & Ors. Vs. The Land Acquisition Collector and Anr. , wherein it came to be ruled that the question as to whether or not, a reference under Section 18 of the Act, should be entertained on merit or should it be turned down on the ground of limitation, is adjudicateable by Reference Court only i.e. learned District Judge/ Additional District Judge and such power cannot be assumed by the Land Acquisition Collector, who is merely required to refer the

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application to the Court of competent jurisdiction. Relevant para of the

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afore judgment reads as under:

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“2. We have heard learned counsel for the parties and are of the considered view that the question as to whether or not, a reference under Section 18 of the Act, should be entertained on merit or should it be turned down on the ground of limitation, is adjudicateable by the Reference Court only, namely, the Court of District Judge/Additional District Judge and such power cannot be assumed by the Land Acquisition Collector, who is merely required to refer the application to the Court of competent jurisdiction. Such a view in detail has been taken by the learned Single Judge of this Court vide judgment dated 06.07.2018 passed in CMPMO No.237 of 2017 titled as Jalmi Ram and Others vs. The Land Acquisition Collector and another. 3. Finding no exception to the view taken in the said decision, the writ petition is allowed in part and the impugned order dated 28.07.2017 (Annexure P-4) passed by the Land Acquisition Collector, is set-aside, who is directed to refer the matter to the Court of competent jurisdiction. 4. We make it clear that we have not expressed any view on the point of limitation or delay, which shall be independently adjudicated by the Court concerned, in accordance with law. Reference shall be made within a period of two months.”

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Reliance is also placed upon judgment passed by Coordinate Bench of this Court in CWP No. 2736 of 2012 titled as

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Liaq Ram & Ors. Vs. State of Himachal Pradesh & Anr. Relevant

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paras of the afore judgment read as under.

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“5. It is settled law that on receipt of an application for reference it is mandatory for the Collector to make a reference under Section 18 of the Land Acquisition Act in the manner prescribed under Section 19 thereof. It is further settled law that it is not for the Collector to decide and reject reference under Section 18 of the Land Acquisition Act but he has to refer the same leaving the question open to be decided by learned

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Reference Court to which reference is made under Section 18 of the Land Acquisition Act as to what relief the applicant is entitled to. Reference Court has wide powers to throw out a reference petition under Section 18 if it comes to the conclusion that the award was accepted without any protest or that the award was a consent award or otherwise.

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6. Therefore, in the present cases, in my considered view, the Land Acquisition Collector erred in not forwarding the applications so received under Section 18 of the Land Acquisition Act to learned Reference Court because the effect of the award having been declared null and void by this Court obviously could have been taken care of by learned Reference Court while answering the reference petitions.

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7. Accordingly, all these petitions are disposed of with the direction that the Collector shall forthwith forward all the reference petitions to learned Reference Court and thereafter, learned Reference Court shall answer the same in accordance with law. It goes without saying that learned Reference Court shall be at liberty to answer reference petitions by taking into consideration the factum of the award against which reference petitions were filed having been declared null and void by this Court in CWP No. 2385 of 2010 decided on 26.04.2011 and any other fact having bearing on the same being placed before learned Reference Court by the parties concerned.

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In view of aforesaid definite law laid down by Division

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Bench of this Court, prayer made on behalf of petitioners deserves to be allowed.

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Consequently, in view of the above, the present petition is allowed and impugned order dated 18.09.2023 (Annexure P-4) is quashed and set aside with a direction to respondent No. 3 to make a reference to learned District Judge on the basis of application made by

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the petitioners under Section 18 of the Act, expeditiously, preferably within a period of four weeks. Pending applications, if any, stand

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disposed of.

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December 21, 2024 (Sandeep Sharma), (Sunil) Judge

Brikam Chand and Another v. Nhepcl and Others

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Brikam Chand and Another v. Nhepcl and Others

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