Hari Lal Kotwal & Ors. vs Union of India & Ors.

T.S. Doabia.

The issue is purely legal. Written objections are not necessary.

Heard.

Admitted.

With the consent of the parties, this petition is taken up for final disposal.

The petitioner submits that the Land Acquisition Collector, Bhaderwah, has taken an arroneous view in not referring the application submited u/s

18 of the J&K Land Acquisition Act, Samvat 1990, to the reference Court. The facts in brief are as under:

The land belonging to the petitioner was subject matter of acquisition. This is not in dispute. An award had also been given by the Land

Acquisition Collector. This is also not disputed. The further fact is that the petitinoer submitted an application seeking a reference to the Reference

Court. This has been declined vide order Annexure T'. The short order passed by the Sub Divisional Magistrate, while exercising the powers of

Collector, Land Acquisition, Bhaderwah, reads as under:

Application of Petitioners for reference under Section 18/31 of Land Acquisition Act.

The award for the said land was made on 08.06.96 by the Collector, Land Acquisition, Bhaderwah. Therefore, it cannot be referred to court as

per section 18 of the Land Acquisition Act, as more than six months has lapsed from the date of award and the date of filing application. The

amount of compensation is not disputed as said by the petitioner. Hence, it cannot be referred to Court u/s 31 of the Land Acquisition Act. The file

be consigned to record after due completion.

The reasoning given by the aforementioned officer is not forwarding the application is that the application is belated.

It be seen that the question as to whether the reference application is within limitation or not, would be dependent upon the fact as to when the

petitioners came to know about the award. If the petitioners were present at the time when the award was announced then, the limitation would

start from that date. If the land owner is not present and the award is given in his absence, then the limitation would start from the date of

knowledge. This precise question was considered by the Supreme Court of India in the case reported as 'State of Punjab Vs. Mst. Jehan Begum,

1964(1) SCR 971. The view expressed by the Supreme Court in so far as it is relevant for this point is as under:

Clause(a) of the proviso is clearly not applicable in the present case, because admittedly the respondents were neither present not were

represented before the Collector when the latter made his award. The first part of Cl. (b) is also not applicable, because the respondents did not

receive any notice from the Collector under Subs(2) of S.12 of the Act. That subsection requires the Collector to 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. Clearly enough, the

respondents herein were entitled to a notice under subSec. 920 of S. 12 but admittedly no notice was issued to them.

As to the second part of cl.(b) of the proviso, the true scope and effect thereof was considered by this Court in Raja Harsih Chandra's case. It

was there observed that a literal and mechanical construction of the words ""six months from the date of the Collector's award"" occuring 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 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 reason why we should take a different view. It seems clear to us that the ratio of the decision in Raja Harish Chandra's

case, 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 knwon 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.

This question of limitation would depend upon the fact as to whether the award was passed in the presence of parties or otherwise. This is a

question of fact. Collector cannot decide the same.

The question as to whether a reference is barred or not, has necessarioly to be decided by the reference Court. The Collector, Land Acquisition

cannot pronounce upon the matter. He is simply to refer the matter to the reference court. It is the reference court, who is to ultimately decide as to

whether the reference application was within limitation or suffered from any other lacuna, which prevents its decision on merits. This aspect of the

matter was considered by a Full Bench of Punjab & Haryana High Court in the case reported as Sher Singh Vs. Union of India' AIR 1983 Punjab

& Haryana 107. The relevant observations made are as under:

It is thus manifest that the correctness of the rival claims on either side have to be decided in a proper forum. This is obviously the Court of the

District Judge which can adequately pronounce upon the question whether a reference was duly made to the Collector and, if so, regarding the

validity. This is not well settled by the decision of the Full Bench in M/s Swatantra Land and Finance Private Ltd. V. State of Haryana, AIR 1975

Punj and Har. 52 holding that it is open to the District Judge to go behind the reference and examine its validity. There in it was observed as

follows:

It will be the duty of the District Judge to adjudicate on all such objections raised by the respondent, who is intereseted in defeating the application

on any ground opon to him under the law. It is, therefore, necessary, before adjudicating on the matters mentioned in the application on the matters

mentioned in the application to hold that the proceedings were initiated to hold that the proceedings were initiated in accordance with law which

means that all the conditions precedent mentioned in Section 18 of the Act had been complied with. The making of the application within time is

one of such conditions precedent. If that condition is not complied with, the District Judge will have no jurisdiction to proceed with that

application.

As has already been observed herein the petitioner at the very threhold is being denied even an adjudication of his claim that he had preferred a

reference under Section 18 and the respondents had failed in their statutory duty to forward the same. It is manifest that the valuable substantive

right conferred upon the landowners for claiming enhancement of compensation under S. 18 of the Act cannot be eroded or set at naught by petty

procedural wrangles.

Accordingly, we would herein direct that on a proper application (precisely detailing his claim of having filed an application under S. 18 of the Act)

made by the writ petitioner to the Collector/the latter shall refer the same to the District Court, which will then proceed to decide the contentions

dispute between the parties, whether the stand of the petitioner herein is correct or otherwise. In the event of the matter being decided in favour of

the writ petitioner, the District Court would inevitably proceed to try and adjudicate on the reference under Section 18 of the Act.

Thus, the Collector, Land Acquisition was not right in not referring the matter to the Reference Court. This would now be referred. The

Reference Court would be at liberty to go into the question as to whether the application preferred by the petitioner u/s 18 was barred of limitation

and as to whether, it is not entertainable on account of any other factor. After deciding the aforementioned preliminary issues, the Reference Court,

if it finds that the petition is maintainable, it would proceed to decide the matter on merits, The Land Acquisition Collector would accordingly take

steps with a view to make a reference within a period of four weeks. The period of four weeks would being from the date of copy of this order is

made available to him, by the petitioner.

In the meanwhile amount shall not be disbursed. Its disbursal shall depend upon the order which may be passed by the reference court.

Disposed of accordingly.