Raja Khima vs State of Gujarat and Others

H.K. Rathod, J.—Heard learned Advocate Mr. H.H. Joshi appearing on behalf of appellant and learned A.G.Ps. Mr. Sharma and Mr. Raval appearing on behalf of respondents-State Authorities in all matters.

Considering submissions made by all learned Advocates, each First Appeals are admitted.

Learned A.G.Ps. Mr. Sharma and Mr. Raval waives service of notice of admission on behalf of respondents-State authorities.

With consent of all learned Advocates appearing on behalf of respective parties, present group of First Appeals is taken up for hearing and final disposal today.

This group of appeals are filed by appellants claimants by challenging common award passed by 9th Additional Senior Civil Judge, Jamnagar in Land Reference Case Nos. 640 to 685 of 1987 decided on 25th April, 2006. The Reference Court has dismissed each Reference on ground of limitation only.

Learned Advocate Mr. Joshi submitted that appellants are original owner of land situated at village Kharavedha in Taluka and District Jamnagar and also he has constructed property in the said village, in which, appellant is residing with his family. The appellant submits that subsequently, notification u/s 4 of Land Acquisition Act was issued by State Government to acquire land for purpose of Und Irrigation Scheme. The appellant further submits that notification u/s 4 was issued on 25th March, 1982, and subsequently, appellant has filed objection with regard to said notification along with other similarly situated persons. The appellant submits that subsequently, notification u/s 6 was also issued and also notification u/s 9 was issued by respondents and final award was declared on 31st July, 1984, in which, Special Land Acquisition Officer has awarded Re. 1-00 per sq.mtrs., for open piece of land under which category of construction of house is situated viz., different land category is decided by respondents, and accordingly, award is declared. The said award is declared by Collector under provisions of Section 11 of Land Acquisition Act (for short ''L.A. Act''), but appellant has not received any notice from respondents and at the same time, compensation is not received by appellant. However, at same time, other similarly situated persons whose land and building were acquired by respondents, they have also requested before Collector and Collector has referred matter to Reference Court. As compensation awarded by Collector is not just and proper, and accordingly, said dispute is referred for adjudication before District Court by way of different Land Acquisition Reference Case Nos. 51 to 107 of 1985. These references were also submitted by similarly situated persons those who have made reference before District Court, whereby, District Court has passed award and order in such reference on 30th March, 1987. When appellant came to know about award and order is passed with effect to similarly situated land is also accepted by respondents and paid higher compensation to concerned claimants, under these circumstances, appellant had approached Collector to prefer matter for awarding compensation as claimed by others. Accordingly, said matter is referred to District Court for reference. However, District Court has framed preliminary issue with regard to limitation considering language of Section 18, respondents have taken objection that there is a period of six months, and therefore, Reference Court has no jurisdiction to condone delay, and accordingly, claimant is not entitled for compensation as claimed. The appellant submits that if District Court has limited issue also decided other issue as per evidence produced by appellant in said reference. However, after considering facts, reference of appellant is dismissed with costs. Thereafter, appellant has approached this Court by way of Spl.C.A. Nos. 5909 to 5949 of 2007, but when appellant is having statutory remedy by way of filing appeal u/s 54 of Land Acquisition Act read with Section 96 of C.P.C., therefore, group of petitions was withdrawn and accordingly, disposed of on 22nd June, 2007. Thereafter, present appeals are preferred by appellants claimants.

Learned Advocate Mr. Joshi submitted that Reference Court has passed an award is contrary to law, evidence and facts on record which resulted into miscarriage of justice. He submitted that Reference Court ought to have seen that as soon as appellant came to know that reference similarly situated persons has already allowed by Reference Court, therefore, applicant has made application immediately to concerned authority and concerned authority has accepted the same and referred reference to Court for adjudication. Therefore, question of delay of raising reference before Reference Court does not arise. He also pointed out that Reference Court ought to have seen that appellant has admittedly not received any compensation as well as not knowing with regard to award declared by Collector. He further submitted that Reference Court ought to have seen that even considering provisions of Section 28 also appellant even otherwise entitled to higher compensation as per Section 28A of L.A. Act. He also pointed out that Reference Court ought to have seen that as per legal position of law, six weeks provided u/s 12 is considered from date of knowledge. However, appellant has not received any notice u/s 12(2) of Land Acquisition Act from Collector. He submitted that Reference Court has committed an error in holding that there is a clear bar u/s 18 read with Section 12 of Land Acquisition Act and application has been made beyond period of six weeks from date of award of Collector. The Reference Court has committed an error in holding that Collector has not directed to decide whether application filed by appellant is within time or barred by limitation. He further submitted that Reference Court erred in holding that Collector should refer matter to Reference Court leading question open, so that, party can lead evidence on point of limitation, which can be decided by Reference Court. The Land Acquisition Officer (for short ''L.A.O.'') has made an award on 31st July, 1984 and claimant has filed reference on 21st December, 1987. He submitted that Reference Court has committed error in holding that as per statement made by claimant in reference case, one Ganesh Chaku has obtained certified copy of award on 15th December, 1984, which is decided by District Court, Jamnagar on 30th March, 1982 and from that date, appellant has made application for Reference, but appellant has not specifically shown date of knowledge of award and prudentially drafted that appellant has come to know recently. The Reference Court has not considered undisputed facts that no notice was served to appellant u/s 12(2) of L.A. Act. The appellant has not shown specific date in his deposition and he stated in cyclostyle manner, therefore, it can be said that appellant is aware about award passed by L.A.O. in years 1984 and 1985. He submitted that appellant has admitted in his cross-examination that he has received amount of award after filing present reference, but has not produced written objection raised before Mamlatdar and also stated that he has not filed any objection except filing this Reference. These aspects have not been properly appreciated by Reference Court. The Reference Court has committed an error in holding that after passing award by Reference Court granted nine months period is over, and therefore, Reference is filed within time-limit. He submitted that notice u/s 12(2) is mandatory and also committed an error in coming to conclusion that it is not necessary notice contains contention of its manner observed above. In short, his submission is that Reference Court has committed gross error in rejecting reference only on grounds of limitation without appreciating evidence on record, and there was no evidence produced on record by respondents before Reference Court for proving facts that appellants have knowledge of award from particular date.

Learned Advocate Mr. H.H. Joshi relied upon decisions i.e. (i) in case of Nirmala Bala Sen Vs. Jatindra Nath Sen, and (ii) in case of Gopalbhai Becharbhai v. State of Gujarat and Anr. reported in AIR 1989 Guj. 56. He also relied upon decision of this Court in case of Rajat Hirabhai Motibhai and Ors. v. Deputy Collector, Land Acquisition & Rehabilitation, Panam Project, Godhra and Ors. reported in AIR 1985 Guj. 170 , in case of Special Deputy Collector, Land Acquisition (S.S.P.), Kurnool Vs. C. Sai Reddy and Others, and in case of Parsottambhai Maganbhai Patel and Others Vs. State of Gujarat through Deputy Collector Modasa and Another, Except that, learned Advocate Mr. Joshi has not made any other submissions and not cited any other decisions in support of his submission before this Court.

Learned A.G.P. Mr. Sharma as well as Mr. Raval raised contentions before this Court that Reference Court has rightly examined issue on basis of record and Reference Court has not committed any error which requires interference by this Court. They submitted that claimant had not taken any objections when amount of award was disbursed by respondents. At the time of inquiry, claimant had not demanded which he claimed in reference case. The reference is barred by limitation. The claimant did not produce any documentary evidence before L.A.O. for his consideration. According to them, at the time of hearing, claimants had not raised any objection and claimants had not served notice u/s 12(2) of the Act. It is contended that price of land and constructed property is considered at rate of Government and classification of houses are prepared by technical staff and price of constructed property is valued as per rates of Government. The price of open land is considered as per market value and at the time of measurement, there were no trees in acquired land property and denying all averments made in Para 5 of reference. According to them, claimants are not entitled for enhancement of compensation as claimed. In short, submissions of both learned A.G.Ps. are that Reference Court has properly dealt with matters for deciding question of limitation and rightly come to conclusion. For that, no interference is required by this Court.

I have considered submissions made by all learned Advocates appearing on behalf of respective parties. The issues have been framed by Reference Court vide Exh. 8, where issue No. 4(A) is a preliminary issue framed by Reference Court on basis of pleadings as to whether claimant''s petition is barred by law of limitation along with other issues? According to Reference Court, issue of limitation is required to be decided first before determining other issues in contravention. The Reference Court has considered Section 18 and Section 12(2) of L.A. Act. The L.A.O. concerned has made award on 31st July, 1984 and reference was filed on 21st December, 1987. The Reference Court has relied upon one Ganesh Chaku resident of Khoravadha village has applied for certified copy of award on 17th November, 1984 and he get it same on 15th December, 1984. Thereafter, recently, he came to know the facts of award. It is also admitted position on record that respondent has not produced any notice of award u/s 12(2) of Act, therefore, no notice was received by appellant, but as per statement made by claimant in reference case. That Ganesh Chaku has obtained certified copy of award on 15th December 1984. It transpires from judgment produced by claimant Exh. 22 when Ganesh Chaku was a claimant in L.R.C. No. 73 of 1985 which has been decided by District Court, Jamnagar on 30th March, 1987. At this stage, it is necessary to note that Ganesh Chaku is one of claimant in L.R.C. No. 73 of 1985 is not included in group of these appeals or reference. Shri Ganesh Chaku is having separate reference of L.R.C. No. 73 of 1985 which has been decided on 30th March, 1987. Shri Ganesh Chaku wants benefit of award passed by L.A.O. in respect of present appellant, therefore, he obtained copy of award, but that fact was not known to any of appellant. Shri Ganesh Chaku was not examined before Reference Court. On behalf of appellant, one Shri N. L. Rathod vide Exh. 17 was examined to prove facts that Section 12(2) notice was served to claimant, for that, no materials was produced on record by respondent and there was no evidence on record produced by appellant that at the time of passing award by Collector, these appellants were remained present or their representatives were also remained present. Therefore, in absence of that document, Reference Court has committed gross error in relying upon merely certified copy of award Exh. 22 produced by appellant. Shri Ganesh Chaku is not a claimant in this group of appeals, but he is having separate reference. Therefore, relying upon Exh. 22 considered date of knowledge of claimant 15th December, 1984 and on that basis, Reference Court has come to conclusion that reference is barred by limitation. The Reference Court has also committed an error that reference which has been filed by appellant is prepared in cyclostyle manner in year of 1985, but it has been filed in year of 1987 which suggests that appellant must have knowledge of award in year of 1985. But, for that, except presumption, there was no specific evidence produced by respondent before Reference Court and claimant Shri Laxman Exh. 14 was examined and no question was asked in cross-examination. The claimants have not accepted amount of compensation when Mamlatdar came for disbursing amount of compensation and raised objection that compensation is less and inadequate. Therefore, appellants have filed written objections when amount of compensation is to be disbursed by Mamlatdar to claimant. Therefore, Reference Court has come to conclusion that a moment claimant must have to make inquiry in respect of award or to apply for certified copy of award when amount of compensation is disbursed by Mamlatdar, on that occasion, claimant should raise objection. The amount of compensation received by appellant after filing reference petition with protest, but claimants have not produced written objection raised before Mamlatdar, therefore, Reference Court has come to conclusion that no such objection was raised by appellant. The Reference Court has not believed evidence of claimant Exh. 14 and cross-examination of it that reference is made after receiving information by appellant in respect of other award passed by Collector for similarly situated claimant, therefore, prior to that, appellants have no knowledge of award declared by Collector. The appellants having knowledge after receiving information in respect of award passed by Collector in favour of similarly situated claimant, and thereafter, reference has been filed by appellant. So, reference was filed within six months from date of knowledge, and accordingly, evidence of claimant has not been properly appreciated by Reference Court and there was no evidence of Ganesh Chaku was held before Reference Court and Reference Court has merely presumed fact that because of Ganesh Chaku obtained certified copy of award received on 15th December, 1984, therefore, from that date onwards, appellants were having knowledge of award, but not filed reference within a period of six months. Before Reference Court, respondent has led oral evidence of Shri N. L. Rathod, Exh. 17 who has not rebutted evidence of claimant appellant. The Reference Court has only considered pleadings of parties and then presumed certain things against appellants. For that, there was no evidence on record before Reference Court. Section 12(2) notice was not received by appellant and no such record was produced by respondent before Reference Court. The date of knowledge not proved by respondents by leading proper evidence. So, reference cannot be considered as barred by limitation. The appellant has made very clear case before Reference Court that a moment, appellants were having information of award passed by Collector in favour of similarly situated claimants, then, immediately, reference was filed u/s 18 on 21st December, 1987 after passing nine months from judgment passed in cognate matters of Ganesh Chaku and others who have benefited in terms of money. The presumption of Reference Court is that claimants have received compensation under protest, but manner in which, claimant has deposed that he has received amount of compensation after filing of these reference cases, meaning thereby, he has knowledge about order passed by Special Land Acquisition Officer prior to filing of these reference petitions, but nowhere he has stated date of knowledge and date of which, he had applied for copy of award and obtained same. This observation made by Reference Court on Page 39 is contrary to evidence of claimant led before Reference Court as referred in Para 24 of award. The said presumption is having no legal base, because, merely, claimant has deposed that he has received amount of compensation after filing these reference cases, that does not mean that prior to receiving amount of compensation, claimants must have knowledge or having information of award. The appellant was not having any information or knowledge about award passed by Sp. L.A.O. prior to filing these reference cases. Therefore, Reference Court has committed gross error in dismissing reference only on ground of limitation when Section 12(2) notice was not received by claimant being an admitted position between parties. The written arguments Exh. 19 is not properly appreciated by Reference Court and also not appreciated decision relied upon by appellant. The Reference Court has only relied upon date of award 15th December, 1984 and petition filed on 21st December, 1987 and Ganesh Chaku obtained certified copy on 15th December, 1984, but there was no iota of evidence on record that claimants were aware about or having knowledge of award on 15th December, 1984 or thereafter. So, fact of knowledge of appellant is not proved by respondents when respondent is raising contention before Reference Court that reference is time-barred. So, a party who raised contention must have to prove by proper evidence before Reference Court, but knowledge of appellant not proved by leading evidence by respondent before Reference Court and no documents were also produced on record to prove contentions raised by respondent before Reference Court. Therefore, there was no positive evidence produced by respondents before Reference Court that claimants having knowledge of award with a particular date and reference was filed after a period of six months. The respondent has also not produced any evidence in respect of fact that when L.A.O. has passed an award whether claimants were remained present or not and Section 12(2) notices were served to claimants or not. In absence of this evidence, Reference Court has committed an error in presuming certain things against appellant without having cogent evidence on record.

Before Reference Court, on behalf of respondents, one Deputy Executive Engineer Mr. N. L. Rathod, Irrigation Department, Jamnagar vide Exh. 17 was examined, but no documentary evidence was produced by respondent before Reference Court. One claimant Mr. Laxman was examined before Reference Court and previous award was produced by claimant Exh. 22 in respect of L.R.C. Nos. 51 to 107 of 1985. The written arguments were produced by claimant at Exh. 19 and by respondent Exh. 21. These are only evidence available before Reference Court. But, facts remained that witness of respondent has also not proved date of knowledge or receive information about award passed by L.A.O. Section 12(2) notice was not received by appellants. Ganesh Chaku was not examined before Reference Court. In his case, reference has been decided by Reference Court, Jamnagar on 30th March 1987 in L.R.C. No. 73 of 1985, but he was not party to this group of reference decided by Reference Court, Jamnagar. Therefore, according to averments made in reference case by appellant that it has come to know recently, but contention of respondents raised before Reference Court that reference is time-barred which must have to be proved by respondents before Reference Court by leading proper evidence on record. After reference was made, compensation was paid. When L.A.O. declared award, at that occasion, presence of appellant was not proved by respondents. So, in this background, conclusion of Reference Court that reference is time-barred while deciding issue No. 4A is based on not legal evidence and also not given cogent reason in support of its conclusion while deciding Issue No. 4A. Merely, Reference Court has believed having presumption against appellant without any legal base.

Therefore, according to my opinion, in such circumstances, finding given by Reference Court is baseless and perverse. In such circumstances, it is a duty of Reference Court that Reference Court must have to consider only evidence on record and not to presume something which are not on record.

The said view has been taken by Calcutta High Court in case of Nirmala Bala Sen Vs. Jatindra Nath Sen, . The relevant discussion is made in Para 4 which is quoted as under:

The petitioner states that she did not receive any notice u/s 12(2) though it appears, it was served on her son. It will be seen under Sub-section (2) of Section 45 that it is always desirable whenever practicable that the service of the notice shall be made on the person named therein. Sub-section (3) provides that if such person cannot be found service may be made on any adult member residing with him. This provision, it appears to us, does not imply that in the even of a casual absence of the person interest, the notice is to be served on any other adult member of the family. The use of the word ''cannot'' in Sub-section (3) is of significance and it amounts in our opinion to habitual absence of the person interest at the recorded address and not to a casual absence of such person. In the facts and circumstances of the case, it would appear that the notice was served on the very first attempt on the son of the petitioner and this service cannot be considered to be a proper service of the notice u/s 12(2) of the Act in the context of the discussion indicated above. We accordingly hold that in this circumstances, the question of limitation of the application u/s 18 does not arise, and accordingly, the Additional Land Acquisition Officer committed error in exercise of jurisdiction in holding that the application for reference was time-barred. We therefore set aside the impugned order and hold that the application u/s 18 was not time-barred. We further direct that this application will not be entertained and considered in accordance with law. It however appears that the application u/s 18 suffers from lack of material particulars. The petitioner will furnish the number of items in the award in respect of which reference is sought to be made together with the names of the persons concerned against whom the relief is claimed. Such supplementary statement will be filed by the petitioner within a month from the date of arrival of the records at the office of the L.A. Collector, and in default, the application as originally filed will be dealt with and disposed of by the authority concerned in accordance with law.

The Division Bench of this Court has also taken said view in case of Rajat Hirabhai Motibhai and Ors. v. Deputy Collector, Land Acquisition & Rehabilitation, Panam Project, Godhra and Ors. reported in AIR 1985 Guj. 170. The relevant observations are made in Paras 3 and 4 which are quoted as under:

The question, therefore, is whether u/s 12(2) of the Land Acquisition Act, there is an obligation upon the Collector merely to intimate about the passing of the award or he is obliged to convey the matters contained in the award by serving either a copy of the award or the essential part of it. In State of Punjab Vs. Mst. Qaisar Jehan Begum and Another, the Supreme Court had occasion to consider the purpose of the notice u/s 12(2) in the context of a plea as to whether mere knowledge of the passing of the award would be sufficient as a starting point reckoned for the purpose of filing a reference application. It is in dealing with this that the Supreme Court observed:

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 u/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 Court has expressed the same view referring to the abovesaid decision in Rasulkhanji v. H.P. Rathod 1975 GLR 911. In this view, it is clear that there is an obligation on the part of the Collector not merely to intimate about the passing of the award, but he has to communicate the essential contents of the award, if not a copy of the award. That has not been fulfilled in this case and we direct that this shall be done within a month.

In view of what we have said about the obligation of the Collector, it follows that the time for reckoning the period for filing a reference application will commence with the service of the copy of the award and if such an application is made within time, thereafter, it shall be disposed of in accordance with law.

The same view has been also taken by Division Bench of this Court in case of Gopalbhai Becharbhai v. State of Gujarat and Anr. reported in AIR 1989 Guj. 56. The relevant Para 2 is quoted as under:

This Special Civil Application is filed for quashing and setting aside the order at Annexure ''C to the Special Civil Application and also to direct the respondent No. 2 in this petition to make a reference to the District Court as prayed for by the petitioner, by issuing a suitable writ, direction or order. This matter pertains to the land acquisition effected by respondent No. 2. In this matter, the award was passed as early as 26-6-1981. Notice u/s 12(2) of the Land Acquisition Act was issued on 18-9-1981. The petitioner actually received copy of the award on 30-5-1985. Immediately thereafter, the petitioner filed an application before the 2nd respondent, requesting him to refer the matter u/s 18 of the Land Acquisition Act to the District Court. This application was filed on 30-7-1985. The 2nd respondent rejected this application as time-barred. While rejecting the application, the 2nd respondent has taken into consideration the date of the award, which is 26-6-1981 and the notice, which is dated 18-9-1981 and came to the conclusion that there is an inordinate delay in making the application. No doubt, the application has to be made within 6 weeks, as per the provisions of the Act. In the decision in the case of Rajat Hirabhai Motibhai and Others Vs. Deputy Collector, Land Acquisition and Rehabilitation, Panam Project, Godhra and Others, a Bench of our High Court has clearly held that the notice in law is deemed to have been served only when the copy of the contents of the Award is served on the party concerned. In this case, copy of the Award was served only on 30-5-1985. Hence, according to this judgment, limitation starts only from 30-5-1985. No doubt, there is two weeks'' delay in filing the application by the petitioner for the purpose of directing the 2nd respondent to refer the matter u/s 18 to the District Court. In the decision in the case of Mohan Vasta v. State of Gujarat reported in 1985 GLH 199 : AIR 1985 Guj. 115 it has been clearly held that Section 5 of the Limitation Act is applicable for an application for reference u/s 18 of the Land Acquisition Act. In view of this specific observation made by the Bench of our High Court in the above said decision, there cannot be any difficulty for respondent No. 2 to condone the delay and refer the matter to the District Court u/s of the Act, inasmuch as there is only two weeks'' delay in this case. We have examined ourselves the reasons for such delay in preferring the application u/s 18. If only the 2nd respondent had understood the prevailing position of the law as to when exactly the limitation starts running against such a party, he would have definitely condoned the delay of two weeks, which has occurred in this case. We find that the petitioner is a poor agriculturist and has rushed up to the 2nd respondent for filing necessary application, even though, there is a delay of two weeks in doing so. The reasons given by the petitioner in his application filed before the 2nd respondent, in our view, sufficiently explains the delay of two weeks, that has occurred in this case. We are satisfied that there is sufficient explanation for such a delay of two weeks by the petitioner herein, and as such, following the decision referred to above, we direct the 2nd respondent to refer the matter to the District Court u/s 18 of the Land Acquisition Act, within six weeks from this date. Rule is made absolute with the above-said observations. There will be no order as to costs.

The Andhra Pradesh High Court has also taken same view in case of Special Deputy Collector, Land Acquisition (S.S.P.), Kurnool Vs. C. Sai Reddy and Others, Paras 3 to 5 and 7 are relevant, therefore, the same are quoted as under:

The right to seek a reference is provided u/s 18(2) of the Act. If a person is not present when the award was made, as per the amendment made in the year 1959 under Act 20 of 1959, the person must seek a reference within two months from the date of service of notice from the Collector u/s 12(2). With respect to the compensation determined as payable to the persons interested, the persons who have put in a claim, have been given a right to seek a reference. In other words, the persons whose property is being compulsorily acquired for a public purpose, is entitled to seek a reference within the period stipulated under the Act which period would begin to run from "the notice of the award to such of the persons interested as are not present," It is, therefore, necessary to determine what the notice u/s 12(2) of the Act should contain. When Section 12(2) requires the Collector to give a notice of his award, it must necessarily mean, in our view, the award itself. Mere intimation that in respect of certain lands, certain amount is payable to a certain person, does not constitute a notice of the award. The award contemplated by Section 11 of the Act must be with reference to the date of the notification. It must contain the claim made by the claimant. If there is a dispute as to the measurement of the land acquired, there should be determination of the extent and if there is a dispute as to the amount of compensation payable for such land, it should be determined having regard to the factors mentioned in Sections 23 and 24 of the Act. If, in a particular case, the land has been taken possession of invoking the emergency provisions, the claimant would be entitled not merely to the value of the land as such but also interest from the date of taking possession. If there is a dispute as to the person or persons entitled to receive compensation, the Land Acquisition Officer is required to determine the person or persons entitled to receive compensation and if there are more than one person he has to apportion the compensation among the persons, who according to him, are entitled to receive compensation. It is left to the discretion of the Collector u/s 29 to apportion the amount among several claimants or refer the dispute as to apportionment to the Court u/s 30. Nonetheless, these are the several matters which have to be recorded in the award and u/s 12(2) of the Act, the Collector is required to give notice of such award. A mere statement as is referred to above on which the signatures of some of the claimants have been obtained, in our opinion, does not constitute notice of the award made by the Collector, nor does it fulfil the requirements of Section 12(2) of the Act.

The learned Government Pleader Mr. Innayya Reddy, however, contended that the expression "notice of his award" envisaged by Section 12(2) does not mean that the award itself should be served on the claimants. According to him, it is enough if the extent of the land acquired, the total amount of compensation determined as payable to the claimants, the name of the claimant entitled to receive the same are furnished and that would constitute sufficient notice of the award and fulfill the requirement of Section 12(2). If within two months of receipt of such a notice an application is not made, then under the proviso (b) of Section 18(2) the claimant would be disentitled to seek a reference under the Act. We are unable to agree with this contention. In order that a person may be entitled to seek a reference, he must know on what grounds his claim for a higher amount of compensation has been rejected. He must also know whether the Collector has determined the compensation with reference to the date of the notification. If there is a dispute as to the apportionment, on what grounds his claim has been rejected or accepted only in part, as the case may be, should be made known to the claimant. Without knowing the basis on which a lesser amount is awarded, he would not be in a position to seek a reference. The law would not except the claimant to seek a reference in every case irrespective of whether the amount awarded is reasonable or not. The legislature in incorporating Sub-section (2) of Section 12 could not have intended only the substance of the award to be intimated to the claimants. In our view, the expression "notice of the award" occurring in Sub-section (2) of Section 12 clearly postulates that the award as such should have been communicated to the claimants.

The Supreme Court in State of Punjab Vs. Mst. Qaisar Jehan Begum and Another, dealing with proviso (b) to Sub-section (2) of Section 18 of the Act which lays down inter alia that reference may be sought "within six weeks from the date of the Collector''s award" which words are deleted by Act 22 of 1959 in the application of the Land Acquisition Act to the State of Andhra Pradesh observed that any period of limitation should commence from the date of the knowledge of the award. As to what constitutes "knowledge" the Supreme Court held thus (at p. 1607):

It seems clear to us that the ratio of the decision in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and Another, 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 u/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.

xxx xxx xxx

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.

On the facts of that case, the Court held that merely because the claimant had filed a petition on a particular date, though it was with reference to the land acquired and the compensation paid, he could not be attributed knowledge of the award. If knowledge of the award means knowledge of the essential particulars, the present notice u/s 12(2) does not even refer to the essential particulars, nor does it make a mention of the claim made by the writ petitioners. It does not refer to the date of taking possession nor the amount awarded towards the value of the land, or structures and the interest if any paid. It does not state what the decision of the Land Acquisition Officer was with reference to the rival claims, if any, made. In those circumstances, it cannot be said that the claimants were given notice of the award.

Since, the notice u/s 12(2) itself has not been issued as contemplated by the Act and the statement prepared in respect of the lands acquired referred to above, in our view, (does not?) constitute "notice of the award", the writ petitioners are not precluded from seeking a reference u/s 18(2) beyond the period of two months from the date of the award.

In 2005, the Apex Court has also taken the same view in case of Parsottambhai Maganbhai Patel and Others Vs. State of Gujarat through Deputy Collector Modasa and Another, The relevant Para 7 is quoted as under:

This Court, therefore, held that the limitation under the latter part of Section 18(2)(b) of the Act has to be computed having regard to the date on which the claimants got knowledge of the declaration of the award either actual or constructive. This principle, however, will apply only to cases where the applicant was not present or represented when the award was made, or where no notice u/s 12(2) was served upon him. It will also apply to a case where the date for the pronouncement of the award is communicated to the parties, and it is accordingly, pronounced on the date previously announced by the Court, even if, the parties are not actually present on the date of its pronouncement. Coming to the facts of the instant case, the High Court has not rejected the plea of the appellants that they came to know of the award only when compensation was being paid to them in July, 1988. They had therefore filed the application u/s 18 of the Act on September 22, 1988 well within the period of limitation. The Reference Court recorded a finding in favour of the appellants, but the High Court has reversed that finding without applying the principle laid down in Raja Harish Chandra (supra). Moreover, we find from the grounds of appeal filed before the High Court that the assertion of the claimants that they came to know of the declaration of the award only when compensation was being paid to them in July, 1988 has not even been challenged.

Section 12 and Section 18 of Land Acquisition Act, 1894 are quoted as under:

Section 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 apportionment of the compensation among the persons interest.

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

Section 18. Reference to Court: (1) Any person interest 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 persons to whom it is payable or the apportionment of the compensation among the persons interest.

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

Provided that every such application shall be made,:

(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;

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

The Reference Court has merely relied upon simply knowledge which was also presumed without any legal base, but knowledge of award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relates to essential contents of award. These contents may be known either actually or constructively. If award is communicated to a party u/s 12(2) of the Act, a party must be obviously fixed with its knowledge of contents of award whether he reads it or not. Having regard to scheme of Act, knowledge of award must mean knowledge of essential contents of the award.

The aforesaid view has been taken by Apex Court in case of State of Punjab Vs. Mst. Qaisar Jehan Begum and Another, Therefore, period of limitation should commence from date of knowledge of award and knowledge has been interpreted by Apex Court in aforesaid decision at Page 1607. In facts of this case, undisputedly, Section 12(2) notice was not received by claimants and it is not a case of respondents that such notice was served/communicated to appellants. No records were produced by respondents to prove the facts that Section 12(2) notice was communicated to appellants and contents of award were communicated to appellants. So, mere knowledge which presumed by Reference Court is an erroneous finding without any proof thereof produced by respondents. Therefore, in view of aforesaid decision, issue No. 4A which is decided by Reference Court is an erroneous decision in absence of relevant evidence and Reference Court has committed gross error in coming to conclusion that reference is barred by limitation.

Therefore, according to my opinion, common award passed by Reference Court, Jamnagar in L.R.C. Nos. 640 to 685 of 1987 dated 25th April, 2006 are required to be quashed and set aside. Accordingly, aforesaid award in question is hereby quashed and set aside while remanding back entire group of matters to Reference Court, Jamnagar, holding that reference is not barred by limitation and all references are maintainable and there is no delay in filing reference by appellants, to entertain reference on merits and decide it on merits after giving reasonable opportunity of hearing to respective parties in accordance with law within a period of three months from date of receiving copy of this order.

Accordingly, First Appeals are allowed. No order as to costs.