Kamalakshy and Others vs The District Collector and Another

A.R. Lakshmanan, J.—Heard Mr. V. Chitambaresh for the Petitioners and Mr. P.K. Ravikrishnan, learned Government Pleader, for the Respondents.

Lands belonging to Petitioners 1 and 2 and the predecessor-in-interest of Petitioners 3 and 4 were acquired by the Respondents. Petitioners filed their objections to the notices received u/s 9(3) of the Land Acquisition Act, 1894 (for short ''the Act''). True copies of the objections filed in this regard dated 1st December L995, 20th December 1995 and 22nd March 1996 are marked is Exts. P-1, P-2 and P-3 respectively. It is specificity stated in the said Exhibits that the matter may be referred to the Land Acquisition Court in case the compensation claimed by the land owners at the rate of Rs. 3,000 per Cent is not awarded. The third Petitioner, as the power of Attorney Holder of the land owners, subsequently received notice of awards u/s 12(2) of the Act specifying the amount awarded as compensation for acquisition. The said notices issued by the second Respondent are marked as Exts. P-4, P-5 and P-6 respectively. It is seen from the notices that compensation has been awarded below the rate of Rs. 3,000 per Cent claimed. According to the Petitioners, the request for reference is already embodied in the objections filed by the land owners through their Power of Attorney Holder and moreover, the third Petitioner, as the Power of Attorney Holderof the land owners, appeared in person on the date specified in the notices and received the compensation by cheque under protest. Thus, Petitioners say that the compensation amount was received only under protest indicating the insufficiency of the amount awarded. According to Mr. Chitambaresh, receipt of money under protest in the circumstances itself is sufficient and more to have the matter referred u/s 18 of the Act. The objections as well as the conduct of receiving money under protest were made long before the period fixed for. reference u/s 18(2) of the Act. The third Petitioner sent a reminder reiterating the request for a reference u/s 18 of the Act. Exts. P-7, P-8 and P-9 dated 16th December 1996 are the reminders sent by the third Respondent. They refer to the objections already filed for reference and also the compensation amount received under protest. However, the second Respondent seems to have thought that the reminders are the requests far reference and it is filed out of time. Such a stand taken by the second Respondent, according to the Petitioners, would defeat , the very object of the Act causing injury to the land owners. Therefore, they have filed the present Original Petition to issue a writ of mandamus directing the Special Tahsildar, Land Acquisition, Palakkad to refer the matter covered by Exts. P-4 to P-6 notices to the Land Acquisition Court u/s 18 of the Act and call for the records relating to land acquisition of the land belonging to them to verify the receipt of compensation amount under protest warranting a reference.

In the Original Petition, a ground has been taken by the Petitioners in the following terms:

It is submitted that the time limit prescribed for seeking reference to the land acquisition Court is six weeks within the date of receipt of the notice u/s 12(2) of the Act. The request for refererce as embodied in Exts. P-1 to P-3 objections have been made well within the time prescribed. The compensation amount has also been received under protest within six weeks of the receipt of Exts. P-4 to P-6 notices. The conduct of the land owners clearly disclosed their eagerness to have the matter referred for enhanced compensation u/s 20 of the Act. vide Mathew Ouseph v. District Collector (I.L.R. 1976 Ker 28) and State of Kerala v. C.R. Viran 1984 KLT 837). The failure to refer the matter as sought is clearly vitiated by arbitrariness and violative of Article 14 of the Constitution of India.

A statement was filed in the Original Petition on behalf of the second Respondent. Lands belonging to the Petitioners were acquired as per different awards of different Land Acquisition Officers as shown below:

Name of L.A.O. Sy. No. Extent (Hect.) Amount of award Award No. and date Date of receipt of 12 (2) notice Date of payment of L.A. compensation

1 2 3 4 5 6 7

Spl. Tah. (L.A.) No. I

Spl. Tah. (L.A.) No. III

Spl. Tah. (L.A.) No. III 545/2 546/2

547/2

560/2/3 0.9510 0.1840

0.4865

1.5550 0.0250 239303

88478

292489 1/96 11-1-1996

1/96 23-1-1996

3/96 31-5-1996 6-3-1996

26-3-1996

29-7-1996 16-3-1196

29-3-1996

16-8-1996

It is submitted by the second Respondent that as per Section 18 of the Act, the person who has not accepted the award may, by written application to the Land Acquisition Officer, require that the matter may be referred by the Land Acquisition Officer for determination of the Court. The said application should contain the grounds on which objection to the award is made, the amount of compensation, the person to whom it is payable and the apportionment among the persons. The written application should be made within six weeks from the date of award of the Land Acquisition Officer, if the person or his representative is present at the time of making award and in other cases, the time limit for filing written application is within six weeks from the date of receipt of Section 12(2) notice or within six months from the date of award, whichever is earlier. In the case on hand, the Petitioners were not present while making the award.

Section 12(2) notices were received by the Petitioners on 6th March 1996, 26th March 1996 and 29th July 1996 as detailed in the schedule above. So, it is submitted on behalf of the Respondents that the time limit of six weeks from the date of receipt of Section 12(2) notices expired on 17th April 1.996 in the first case, on 7th May 1996 in the second case and on 8th September 1996 in the third case. But, the Petitioners have filed separate written representations in all the three cases only on 17th December 1996, that is, long after the expiry of six weeks from the date of service of Section 12(2) notices. As six months from the date of award expired after the expiry of six weeks period from the date of receipt of Section 12(2) notices, the provision relating to six months period from the date of award did not press into service in this case. Thus, it is submitted that the written application contemplated in Section 18 of the Act has been filed after the stipulated period only and hence the request for reference u/s 18 cannot be accepted. Under Annexure-I dated 23rd December 1996, the application dated 17th December 1996 was rejected as time-barred. It is also stated in the statement that filing claim statement u/s 18 which is before the land acquisition award and the noting in the cheque leaf that the amount awarded is accepted under protest, is sufficient for referring the matter to the civil Court is contrary to Section 18 which provides for written application and that too specifying the grounds of objections and again within the time limit specified. The reference Court is competent only to adjudicate only those matters which are stated in the written application u/s 18 of the Act and that the Court has no jurisdiction to adjLidicate other matters which are in Section 9 claim statement or those which the awardee raises afresh in the Court after the written application u/s 18 of the Act.

When the question came up for consideration before K.S. Radhakrishnan, J., the learned Judge thought it fit to refer the matter to a Division Bench for its authoritative pronouncement as the question involved in this case is an important question of general interest. Before the learned Judge, a Division Bench decision of the Madras High Court in Venkatasami Naidu and Others Vs. The State of Madras, and Anr. decision of a learned Single Judge of the Madras High Court in Narayanaswamy and Another Vs. The Special Tahsildar for Land Acqusition, Adi Dravidar Welfare and Another, . and Trichur Dist. Co-operative Bank v. Dist. Collector 1963 KLT 193 and were cited.

Before us also, the learned Counsel for the petisioner cited the above two decisions apart from other decisions. The earliest decision on this point is a very short judgment of a Division Bench of the Madras High Court reported in Venkatasami Naidu and Others Vs. The State of Madras, . In that case, a writ of mandamus to direct the Tahsildar and Land Acquisition Officer, Krishnagiri to make a reference u/s 18 of the Act was filed. The award in that case was delivered on 22nd September 1957. Within six weeks there from, i. e., on 7th October 1957 the Appellants therein addressed a letter to the Tahsildar and Land Acquisition Officer expressing their displeasure on the amount fixed as compensation and stating that the amount of compensation which included the value of site as well as standing trees was very low. In other words, Appellants wanted the Tahsildar to take appropriate steps to secure that end as otherwise there will be no meaning for that letter at all. After referring to a similar situation in W.A. 150 of 1963, Their Lordships held that the implication of that letter was that the Appellants did not accept the estimate and that they sought for a reference to court. The Bench held that they have no hesitation in holding that the implication of the letter was that they have asked for a reference u/s 18 of the Act. In that view of the matter, the appeal was allowed and a writ was issued in terms prayed for.

Narayanaswamy and Another Vs. The Special Tahsildar for Land Acqusition, Adi Dravidar Welfare and Another, was rendered by K.M. Natarajan, J. of the Madras High Court. The learned Judge has also followed the ruling reported in Venkatasami Naidu and Others Vs. The State of Madras, which, according to him, squarely applies to the facts and circumstances of the case before him and applying the said ratio, the learned Judge held that the writ petition has to be allowed and the matter has to be referred to the civil court for adjudication. In that case, a writ of mandamus directing the Special Tahsildar to refer the matter to the civil court for determining the amount of compensation payable to the writ Petitioner was field. The Petitioner appeared before the Tahsildar and he was informed that a sum of Rs. 5,390.65 was being awarded as compensation to him towards his share. Immediately the Petitioner told the Tahsildar that the amount as determined by him was very low and that the Petitioner was not prepared to accept the said sum for which the Tahsildar replied that if the Petitioner was disputing the correctness of the amount awarded, he could receive the said sum under protest and ultimately the civil court, on a, reference u/s 18 of the Act, would decide the correct amount of compensation payable to his share. Therefore, the Petitioner received the sum under protest. He had also sent a receipt stating "received under protest". Subsequently, the Petitioner was expecting the Tahsildar to refer the matter relating to determination of amount towards compensation to the civil court. But, he came to know that the Tahsildar had referred the matter for enhanced compensation in respect of other land owners. It was contended by the State that notices u/s 9(3) and 10 of the Act were issued on 13th March 1984 and after the receipt of the said notices, Petitioner also appeared for enquiry and that compensation amount was also received by him under protest. However, no application was received from the Petitioner within six weeks for referring the matter to the civil court as contemplated u/s 18 of the Act. The learned Judge, after referring to two earlier decisions, held that the ratio laid down by the Division Bench in Venkatasami Naidu and Others Vs. The State of Madras, squarely applies to the facts and circumstances of the case and applying the said ratio, the writ petition was allowed and the matter was referred to the civil court for adjudication.

However, the very recent judgment of the Supreme Court in Land Acquisition Officer Vs. Shivbai and others, will set at rest the point now raised by the Petitioners in this case. In that case, notification was issued u/s 4(1) of the Act on 19th August 1965. After completion of the enquiry u/s 11, the award came to be made on the same date. A writ petition was filed in 1986 by two persons claiming that they had filed an application under protest, but reference u/s 18 was not made. The learned Single Judge directed an enquiry whether notice u/s 12(2) and the award were served on the claimants as per the law then existing; if notice was not served, to take necessary action of reference. In Writ Appeal, it was confirmed. Thereafter, reference was made in O.P. 198 of 1990. An application was filed seeking remission of the reference on the ground that it was obtained fraudulently with the connivance of the Land Acquisition Officer and was barred by limitation. The Additional District Judge dismissed the said application. Another application filed for impleading other persons was allowed by the District Judge. On the basis thereof, the reference was answered by enhancing the compensation ranging between Rs. 2000 to Rs. 3000 per acre. On appeal, the Division Bench has confi rmed the enhanced compensation. Thus, an appeal was filed before the Supreme Court by Special Leave.

Before the Supreme Court, the acquittance register was produced which established that on the day when the award came to be passed, the claimants were present and the amounts were received by them without protest on 25th November 1965 and two of them who were not present, received the compensation two days thereafter, namely, on 27th November 1965. While considering the question whether the reference application has to be made within two months from the date of award, the Supreme Court held that when the parties were present at the time when the award came to be made, the notice under Clause (b) of the proviso to Sub-section (2) of Section 18 was not necessary and as a consequence, within six weeks from the date of the award an application is required to be made for reference u/s 18. If the amount is received without protest, by operation of second proviso to Sub-section (2) of Section 31, such person who has received the amount without protest is not entitled to seek a reference u/s 18 of the Act. In paragraph 8, the Supreme Court has observed as follows:

Shri C. Sitaramaiah, learned Senior Counsel appealing for the Respondents, contends that on the Division Bench''s directing to make enquiry into the matter, the Land Acquisition Officer himself has referred the matter. Unless there is a proof of service of the notice of the award under Sub-section (2) of Section 12, the limitation does not start. We are unable to agree with the learned Counsel. It is now settled law that it is not necessary that the award or its copy should be served on the claimant along with notice u/s 12(2) of the Act. If the parties are not present on the date the award came to be passed, then Collector/Land Acquisition Officer shall give immediate notice of his award. The limitation begins to run from the date of the notice as per the proviso to Section 18(2). The date of the award and the date of the receipt of the compensation were incidentally the same. Under these circumstances, it must be presumed that they were present on the date when the award was made and the compensation was received without any protest. Under these circumstances, they are not entitled to seek any reference.

In conclusion, the Supreme Court held that the claimants who receive compensation under protest and who make application u/s 18(1) alone are entitled to seek a reference; third parties, who have been impleaded, have no right to claim higher compensation by circumventing the process of reference u/s 18. Under these circumstances, the Supreme Court held that the reference itself is without any jurisdiction and barred by limitation and, therefore, the award of the reference court is clearly illegal. The appeal was allowed and the judgment of the reference court as well as that of the High Court were set aside.

It is thus clear from the judgment of the Supreme Court that the claimants who receive compensation under protest and who make application u/s 18(1) of the Act alone are entitled to seek a reference. In view of the Judgment of the Supreme Court in Land Acquisition Officer Vs. Shivbai and others, , the Judgments of the Madras High Court, cited by learned Counsel for the Petitioners, in Venkatasami Naidu and Others Vs. The State of Madras, and Narayanaswamy and Another Vs. The Special Tahsildar for Land Acqusition, Adi Dravidar Welfare and Another, refered to above, are no longer good law.

This Bench, (AR.L. J and K.N.K.J.) in a very recent judgment in W.A. 1872 of 1998 dated 17th September 1998, has taken the following view:

To demand a reference u/s 18 of the Act, a written application is mandatory and the demand for a reference in such application should be clear. The existence of an award is an essential first requisite to confer the jurisdiction on the Collector to make a reference. There is no provision in the Act authorising the aggrieved claimant to approach directly the civil court of original jurisdiction for a reference u/s 18 of the Act. The aggrieved party is to apply to the Land Acquisition Officer or the Collector inviting him to make a reference. But, before the Collector can make a reference, he must be satisfied that the application is by a person interested, that such person has not accepted the award and that the dispute raised by the person is with regard to the amount of compensation. In the instant case, the Collector has refused to make a reference on the ground that the applicant has not applied in writing, but has applied through his lawyer and, therefore, the said application for reference is not compentent. As already stated, a reference can be invited only by a person interested. A person interested is one who is directly or indirectly interested in the title of the land or in the amount of compensation, the person to whom it is payable or the apportionment of compensation. In our opinion,''any person interested'' appearing in Section 18 has to be given a plain and natural meaning, namely, a person who had an interest in the land. In this case, a person interested has invited the reference through his attorney and, therefore the said attorney, on instructions from his client, is competent to invite a reference u/s 18 of the Act and the act done by the said attorney shall be construed as an act of the person interested himself.

In our opinion, if the conditions stipulated u/s 18 are fulfilled, the Land Acquisition Officer/Collector is bound to make a reference. He cannot come to his own conclusion that the person seeking reference is not the person interested and refuse to make the reference. When there is a proper application u/s 18(1), it is obligatory on the Land Acquisition Officer to make a reference and any refusal by him will be illegal.

Thus, it is seen that the action taken by the counsel''and assented to by his client/''person interested'' is binding upon the client/ "interested person" since it is expressly authorised and ratified by the client. Hence, we are of the opinion, that the notice sent through the lawyer on behalf of the person interested is valid in law.

In the concluding portion, the Division Bench said that the action of the Appellants therein in not entertaining the claim made by the Respondent through Ext. P-2 was illegal and arbitrary and against the provisions of the Act. In that view of the matter, the Bench directed the Land Acquisition Officer to refer the matter u/s 18 of the Act.

As already noticed, Section 18(1) has two limbs. The first limb of the section deals with a situation of a person interested who has not accepted the award and the second limb deals with a written application to the Collector by the party who accepted the award under protest requiring the Collector to refer the matter for determination of the court with reference to the amount of compensation etc. Therefore, two conditions have to be fulfilled u/s 18 of the Act. A mere receipt of amount under protest is not sufficient to satisfy the requirement of Section 18.

Following the decision of the Supreme Court in Land Acquisition Officer Vs. Shivbai and others, and the judgment in W.A. 1872 of 1998* rendered by this Bench, the present Original Petition has necessarily to fail. We also hold that filing of claim statement u/s 9 by the Petitioners, which is before the land acquisition award, and noting in cheque leaf that the amount awarded is accepted under protest are not sufficient for referring the matter to the civil court u/s 18 of the Act.

The reference is answered accordingly. The Original Petition is dismissed. No costs.