Gujarat High Court
Illiyasbhai Alibhai Patel vs State Of Gujarat & on 26 February, 2013
Author: Jayant Patel
Bench: Jayant Patel
ILLIYASBHAI ALIBHAI PATELV/SSTATE OF GUJARAT C/SCA/12348/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12348 of 2012 ================================================================ ILLIYASBHAI ALIBHAI PATEL & 9....Petitioner(s) Versus STATE OF GUJARAT & 2....Respondent(s) ================================================================ Appearance: MR PP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1 - 10 MR JAYSWAL AGP for the Respondent(s) No. 1 - 2 MR HEMANG M SHAH, ADVOCATE for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 26/02/2013 ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) The petitioners have preferred the present petition for appropriate writ to quash and set aside the decision dated 16.12.2011 as well as 20.12.2011 of the Special Land Acquisition Officer; whereby, the reference application was treated as barred by limitation and it is prayed by the petitioners that the District Court should decide the reference on merits.
We have heard Mr.Majmudar learned counsel appearing for the petitioners and Mr.Jayswal learned AGP for the respondent-State.
It is an admitted position that proceedings under the Land Acquisition Act started from 26.4.1995 and the award was passed on 26.3.1997. It further appears from the affidavit-in-reply filed on behalf of respondent dated 5th January, 2013 that the compensation has been received by the petitioners in the year 1997. It is also admitted position that reference application has not been made within 6 months from the date of receipt of compensation and the present reference application came to be made on 19.11.2011 after about 14 years from the date on which the compensation is paid.
Mr.Majmudar, learned counsel appearing for the petitioners by relying upon the decision of the Apex Court, in case of Bhagwan Das and Others V/s. State of Uttar Pradesh and Others reported in (2010) 3 SCC 545;
submitted that as per the affidavit-in-reply filed, the notice under Section 12(2) after the award was sent but proof for receipt of such notice by the petitioners is not available on record. He submitted that if the contents of the award was not known to the petitioners and was not intimated to the petitioners, the reference could not be said to be barred.
It is submitted that therefore, the decision of the District Court to refer back the matter to the Special Land Acquisition Officer for examination the point of limitation and subsequent decision of Special Land Acquisition Officer for rejecting the reference as barred are bad in law and this Court may interfere.
It deserves to be recorded that the Apex Court in case of Bhagwan Das and Others (Supra), at paragraph No.28 has made the concluding observations for the legal position prevailing as per Section 18 of the Act as under:
The following position therefore emerges from the interpretation of the proviso to Section 18 of the Act.
If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector s award itself.
If the award is not made in presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of receipt of the notice from the Collector under Section 12(2).
If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under Section 12(2) of the Act was the date of knowledge of the contents of the award.
Even if it is considered that principles laid down by the Apex Court would apply then also, by sub-clause (iii) of the above referred principles shows that the application has to be made within a period of 6 months from the date of which the person concerned either actually or constructively came to know about the contents of the Award. Further, at paragraph No.31, in the very decision, the Apex Court has observed thus:
31 Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the mahazar / panchnama/ proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person interested, not being in possession of the acquired land and the name of the State or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances not to do so.
As per the aforesaid view of the Apex Court, the actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount from the award, which is actual position in the present case, inasmuch as, the compensation has been paid in the year 1997 and the reference application is made for the first time in the year 2011 after 14 years.
Under these circumstances, as reference application was clearly barred beyond the period of 6 months that too, after about 13 years and 6 months, it cannot be said that the decision taken was arbitrary even on the part of the learned District Judge, since there was no finding recorded by the Special Land Acquisition Officer, prior to making reference to the District Court, nor it could be said that the Special Land Acquisition Officer has committed any error for examination of the question of limitation.
Under the circumstances, we find that no case is made out for interference to the decision of the District Court for referring the matter to the Special Land Acquisition Officer nor the matter calls for interference against decision of the Special Land Acquisition Officer for finding that the reference was barred by limitation.
Under the circumstances, the petition is dismissed. Notice discharged.
(JAYANT PATEL, J.) (MOHINDER PAL, J.) ashish Page 6 of 6