Allowed

Gazinddin , Ghazi Patel, v. State of Andhra pradesh

Telangana HC31 Oct 2013WP/4046/2006

Case brief

AI extract

What is this about?

A single-judge court allowed a writ petition challenging an endorsement rejecting a Section 18 reference application due to missing date and signature. The court held evidence of no notice under Section 12(2) prevented limitation from accruing.

What did the court decide?

Writ petition allowed; impugned endorsement set aside; respondent directed to refer matter for Section 18 decision within two months.

Gazinddin , Ghazi Patel, Vs State of Andhra pradesh — Land Acquisition | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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W.P.No.4046 of 2006

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ORDER:

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This writ petition, under Article 226 of the Constitution of India, has been filed assailing the Endorsement No.B3/1313/05 dated 14.10.2005 issued by the Revenue Divisional Officer, Sangareddy, Medak district, respondent herein.

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2. The facts, in brief, which are essential for the purpose of resolving the controversy, are as under:

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3. It is the case of the petitioners in the affidavit filed in support of the writ petition that their father owned an extent of Ac.2.15 guntas of land in Survey No.25/3 of Narayankhed village and mandal, Medak district; the said land was acquired for the purpose of construction of Government Hospital under the provisions of Land Acquisition Act, 1894 (hereinafter for short ‘the Act’) and Award No.B3-18/74 dated 1.12.1983 was passed; as there was a rival claim from one Sadullah S/o Gudu Saheb, the matter was referred to the Civil Court under Sections 30 and 31 of the Act and the same was numbered as O.P.No.14 of 1986 on the file of Court of SubCourt, Sangareddy; pending O.P.No.14 of 1986, petitioners father died and vide I.A.No.309 of 1987 the legal representatives were brought on record as claimants 3 to 9; claimant No.2, Sadullah did not file any claim statement nor filed any documents; by order dated 27.7.1987 O.P.No.14 of 1986 was ordered stating that claimants 3 to 9 i.e. legal representatives of claimant No.1 are alone entitled for entire compensation with accrued interest, but not claimant No.2; after the award was passed the father of petitioners made an application under Section 18 of the Act to refer the matter for enhancement; having kept the matter pending, the Revenue Divisional Officer issued in the impugned endorsement dated 14.10.2005 on a representation made by the petitioners dated 8.12.2004, rejecting the

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request on the ground that the claim being barred by limitation. Assailing the validity and the legal acceptability of the said endorsement dated 14.10.2005, the present writ petition has been filed, raising a number of contentions. The petitioners also filed an additional affidavit, stating that no notice under Section 12(2) of the Act was served on their father, as such the limitation would not commence.

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4. Resisting the averments made in the affidavit filed in support of the writ petition, the respondent herein filed counter affidavit, stating that on 18.12.2004 Sri Ghazi Patel and (4) others submitted a petition through counsel with a request to refer the matter under Section 18 of the Act on the claim made by original pattadar Mr.Ibrahim and that on receipt of the said petition, the original records have been traced out and verified about the availability of Section 18 petitions. It is further stated in the counter affidavit that on verification of office record, a petition under Section 18 of the Act to refer the matter to the Civil Court filed by Mr.Ibrahim S/o Gulam Moiuddin, resident of Narayankhed is available in respect of Sy.No.25/3, extent of Ac.2.15 guntas, situated at Narayankhed village and taluk, Medak district. It is further stated that on a perusal of the petition, no signature/initial of any competent officer is available on the petition; moreover atleast there is no date of filing of petition mentioned either by the petitioner or by any competent official in the said petition and no office seal is affixed and in the absence of official seal or initial, the application was treated as invalid one to refer the matter to the Civil Court under the provisions of the Act. Pleading in the manner indicated above, the respondent herein prayed this Court to dismiss the writ petition. 5. Heard Sri K.Raji Reddy, learned counsel for petitioners and the learned Government Pleader for Land Acquisition and perused the material available on record.

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6. It is contended by the learned counsel for the petitioners that the action of the Revenue Divisional Officer, the respondent herein, in

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rejecting the request of the petitioners is erroneous, contrary to law and violative of Articles 14 and 16 of the Constitution of India and it is further contended by the learned counsel that having admitted the receipt of application under Section 18 of the Act and availability of the same in the records, it would not be proper on the part of the authorities to reject the request and it is also contended that no notice under Section 12(2) of the Act was served on the father of the petitioners. In support of his contentions, the learned counsel for the petitioners places reliance on the judgment of this Court in Special Deputy Collector, L.A. Unit, Singareni

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Collieries Co. Ltd., Godavarikhani v. Dasari Ramulu and others^[1] and Paragraphs 22, 34 and 36 of the said judgment read as under:

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“22. Thus the conspectus of law referred to above by the Counsel for the parties emerges thus:

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(1) The limitation for seeking reference under Section 18 commences from the date of service of notice in Form 9 on the claimant.

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(2) In view of Section 18(2) of the Act the date of knowledge by the affected party, the actual or constructive, would be the date of commencement of limitation.

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(3) Knowledge has been defined as meaning that it must relate to the essential content of the award.

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(4) When no notice under Section 12(2) was served there is no difficulty in holding that the period of limitation did not start.

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(5) It is incumbent on the part of the Government that the knowledge of the award is brought home either actually or constructively.

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(6) There can be no valid notice under Section 12(2) until the essential content of the award was brought home to the party affected by actually communicating the award.

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(7) Notice under Section 12(2) of the Act is the statutory notice which has the effect of curtailing the limitation for making an application for reference for cases felling under Section 18(2)(b) where no notice was served under Section 12 and the limitation of six months is provided from the date of award.

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(8) Pendency of reference under Section 30 does not operate as bar for making reference under Section 18.

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(9) The acquisition of land by the State is the exercise of police powers or sovereign powers depriving the person of his property against his will. Constitution provides only one protection to the person interested in the property, that the same can be acquired for

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public purpose in accordance with law established subject to payment of compensation. The statutory provision needs to be strictly construed. Acquisition can only be made in accordance with the procedure prescribed by the Land Acquisition Act subject to the rights conferred by the Act on the person interested.

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(10) It is well established that legal fiction should be taken to a logical end. Plain meaning of the Legislation has to be adopted irrespective of the consequences specially the provisions of limitation provided by the Act as it curtails the remedy and does not obliterate the right.

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34. In view of the observations made above we are of the considered view that:

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(1) In Andhra Pradesh the limitation for seeking the reference under Section 18 is two months statutorily provided from the date of service of the notice by the Collector of the award;

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(2) The notice under Section 30 by the Court even if served by the Collector cannot be equated with the notice under Section 12(2) required to be served for the purpose of commencement of the limitation under Section 18(2)(b);

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(3) Since the mode of service of notice has not been provided for, the question of service of notice as a fact can be found in the facts and circumstances of each individual case.

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(4) The burden of alleging and proving of the service of notice either actually or constructively, is on the State when the State intends to take advantage contending that the application seeking reference under Section 18 is barred by limitation. It is for the State to show the date on which the claimant acquired actually or constructively the knowledge of the award from which the period of limitation would commence.

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36. We need not refer back the case to the learned single Judge after determining the question referred to the Full Bench as the facts arc not in dispute. There is no plea of the State when the respondents acquired the knowledge, actual or constructive, of the award, which would amount to service of notice as envisaged under Section 12(2) of the Act. Thus, no period of limitation having been commenced as concedediy no notice having been served the application seeking reference under Section 18 would be within limitation. Thus, the order of the learned single Judge is affirmed. The appellants are directed to refer the matter to the Collector for decision on the objections under Section 18 to the civil Court. No other point has been raised. The appeal is dismissed. No order as to costs.”

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7. Per contra, it is strenuously contended by the learned Government Pleader for Land Acquisition that the request made in the writ petition does

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not deserve any consideration and the application submitted by the father of the petitioners is time barred and the provisions of Section 18 of the Act would not permit the authorities to entertain such time barred applications and requested to dismiss the writ petition.

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8. Now the points for consideration are whether the impugned endorsement dated 14.10.2005 issued by the Revenue Divisional Officer, respondent herein, is sustainable and whether the petitioners are entitled for the relief prayed for?

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9. The provisions of law, which are relevant and germane, for the purpose of resolving the issue are Sections 12 and 18 of the Act, which read as under:

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“12. Award of Collector when to be final.-

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(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 appointment 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.-

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(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 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: 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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10. The Land Acquisition Act is a beneficial piece of legislation, which is intended to safeguard the interest and rights of the persons deprived of their properties due to compulsory acquisition of the properties. In the instant case, the respondent is neither disputing the receipt of application under Section 18 of the Act filed by the father of the petitioners nor the availability of the same in the records maintained by the office of the respondent authorities. The only reason assigned by the respondent in the impugned endorsement is that the application submitted by the father of the petitioners does not contain the date, signature and seal of the competent officer. The said reason, in the thoughtful and considered opinion of this Court, is highly preposterous, irrational and cannot be countenanced. The action of the respondent authorities, after receipt of the application filed by the father of petitioners, in not putting the date of signature and seal is a fault, which cannot be attributable either to the petitioners or their deceased father. The said fault cannot be permitted to be used as a shield by the respondent nor it can be a defence for the respondent authorities for depriving the claimants of their constitutional and statutory rights enshrined under Article 300-A of the Constitution of India and under Section 18 of the Act. For the latches, if any, on the part of the authorities, the land owners, whose lands are taken compulsorily under the provisions of the Act, cannot be penalised and the benefit should necessarily go to the claimants only and the claim of the petitioners cannot be scuttled at the threshold for invoking the statutory remedies and the same cannot be, by any stretch of imagination, the intention of the legislature. Another significant aspect, which needs mention at this juncture is that it is the categoric case of the petitioners herein that the father of the petitioners was not served with notice under Section 12(2) of the Act. There is absolutely no answer for the said statement made by the

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petitioners herein by way of additional affidavit before this Court. In the absence of the same, this Court has no other option except to draw an inference in favour of the petitioners and a negative inference against the respondent authorities. After thoughtful consideration of the issue in the present writ petition and keeping in view the object and intention of provisions of Land Acquisition Act and the provisions under Article 300-A of the Constitution of India and having regard to the factual situation and the legal position, this Court is of the considered opinion that the writ petitioners have made out a case, warranting interference of this Court under Article 226 of the Constitution of India. Therefore, this Court is also of the opinion that the petitioners herein cannot be denied the benefit of reference under Section 18 of the Act.

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11. For the reasons recorded supra and having regard to the observations made in the preceding paragraphs, this Court deems it appropriate to allow the writ petition. Accordingly, the writ petition is allowed, setting aside the order passed by the Revenue Divisional Officer, Sangareddy, Medak district, respondent herein in Endorsement No.B3/1313/05 dated 14.10.2005 and the respondent is further directed to take appropriate action for referring the matter with regard to the claim of petitioners under Section 18 of the Land Acquisition Act, 1894 within a period of two months from the date of receipt of a copy of this order. As a sequel, the miscellaneous petitions, if any, stand closed. There shall be no order as to costs.

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______________ A.V.SESHA SAI, J

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Date: 31.10.2013 DA

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI

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W.P.No.4046 of 2006

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31.10.2013

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[1] 2000(2) ALT 83 (FB)

Gazinddin , Ghazi Patel, v. State of Andhra pradesh

Case brief

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Gazinddin , Ghazi Patel, v. State of Andhra pradesh

Case brief

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