Himachal Pradesh High Court
Ved Parkash Mittal vs The Land Acquisition Collector & ... on 14 March, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RFA No. 226 of 2019
.
Date of decision: 14.3.2023
Ved Parkash Mittal. ...Appellant.
Versus
The Land Acquisition Collector & another. ...Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Appellant. Mr.Arsh Rattan, Advocate.
For the Respondents: Mr.Harinder Singh Rawat, Additional
Advocate General.
Vivek Singh Thakur, Judge (Oral)
This appeal has been preferred against award dated 22.2.2019 passed by Reference Court, i.e. Additional District Judge-II, Una, District Una, H.P. in LAC Petition RBT No. 39/2017/2013, titled as Ved Parkash Mittal Vs. LAC and another, whereby claim of the appellant, for enhancing the compensation has been rejected.
2. Undisputedly, land belonging to the petitioner, alongwith other land situated in Up Mohal Ram Nagar, Tehsil Amb, District Una, H.P., was acquired by issuing Notification dated 19.12.1995 under Section 4 of the Land Acquisition Act (for short the Act) for public purpose, i.e. setting up industrial area.
3. After completing due process, Land Acquisition Collector had announced Award No. 1 of 1996 on 3.10.1996, determining the value of land, as mutually agreed between the State and land owners, at the rate of 10,000/- per Kanal without any interest etc. thereon. As per Award, it was decided in the negotiation meeting that no solatin and interest will be given. Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 2 RFA No. 226 of 2019
4. It is case of the appellant that he is owner in possession of land to the extent of ¼th share in joint land holding comprised in Khata No. 71, Khatauni No. 119, Khasra Nos. 262 and 264, measuring 22111-25 .
hectares (57 Kanals 12 Marlas) situated in Up Mohal Ram Nagar, Tehsil Amb, District Una, H.P. and out of the aforesaid land Government of Himachal Pradesh, through Industrial Department, had acquired 14367-50 hectares land compromised in Khasra No. 264 and entries to that effect had been made in the record of rights vide Intkal/Mutation No. 223, dated 13.5.1999.
5. It is further case of the appellant that he had no knowledge about acquisition as well as passing of aforesaid Award, as he, being permanent resident of House No. ET 775/2, Krishan Nagar, Jallandhar (Punjab), presently is residing at 99 Tara Crescent, Markham, Ontario, L3S4S8, Canada for the purpose of earning his livelihood since last 30 years from the filing of Reference Petition.
6. As per appellant, he was never served with notice under Section 12(2) of the Land Acquisition Act, despite the fact that he had duly authorized representatives at his permanent place of residence at Jallandhar, but no such notice was ever issued to them and he was out of country for last 30 years and he had no access to newspapers having circulation in the area. Further that, Land Acquisition Collector did not take any tangible steps for his service either in person or through his representatives as provided under Section 12(2) of the Act and, therefore, in absence of any notice of acquisition proceedings, appellant has a legal right to raise objection to the Award within six months from the date of acquiring knowledge. It is claim of the appellant that he acquired the knowledge about acquisition of his land four weeks back from January, 2013 when he obtained copies of revenue records and copy of Award dated 3.10.1996. ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 3 RFA No. 226 of 2019
7. According to appellant, amount of compensation has been assessed and paid to all co-owners without taking into consideration the fact that some of these persons were not in possession of acquired portion of .
land but are enjoying the remaining portion of the joint holding and, therefore, they were not entitled to receive the compensation.
8. It is further claim of the appellant that because of acquisition in reference, his land holdings has been divided into pieces because of setting up of industrial area and adjacent land of the appellant has also been wasted and rendered useless for residential and agricultural purpose because of air, noise and water pollution and risk of fire. Whereas Land Acquisition Collector has not considered this aspect of matter while passing the impugned award, and thereby, depriving appellant from fair and just compensation for which he is legally entitled. It has further been claimed by appellant that land taken in possession is more than the land actually acquired and possession on the spot has been taken of a entirely different land and, therefore, appellant is entitled for the compensation with regard to excess land taken in possession by the Department.
9. Appellant has also claimed that Land Acquisition Collector has failed to take into consideration provisions of Section 23 of the Act, particularly with respect to damages of about 3,00,000/- sustained by appellant with respect to standing timber and Khair and other trees on the land at the time of taking possession of land.
10. It has been claimed by the appellant that value of acquired land is not less than 3,000/- per square meter and as such he is entitled for enhanced compensation on the said rate and further in case delivery of ownership rights of any existing plot lying vacant in the industrial area is granted to him to establish industrial unit in State of Himachal Pradesh, then he is ready and willing to accept the same in lieu of amount of compensation and further that being land owner he has a preferential right for allotment of ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 4 RFA No. 226 of 2019 plot in the industrial area. Lastly, it has been claimed by the appellant that he has also legal right to file Civil Suit or Writ Petition for revocation of entire acquisition proceedings since the purpose of establishing the industrial area .
has failed as so many plots are lying vacant.
11. Respondents have asserted service of appellant with notice under Section 9 of the Land Acquisition Act dated 12.7.1996 which was dispatched to him vide dispatch No. 2148 on the address 'Ved Parkash s/o Sh. Chaman Lal S/o Sh. Gainda Mal R/o Krishna Nagar Jallandhar Punjab' and also on 6.10.1996 under Section 12(2) of the Act was sent to him on the address and thus it has been claimed that appellant was having complete knowledge of passing of Award as well as entire acquisition proceedings since inception and, therefore, it has been contended that reference petition was beyond the prescribed period of limitation in terms of Section 18 of the Land Acquisition Act and thus not maintainable.
12. It has been contended on behalf of respondents that provisions of Section 23 have been taken into account by the Land Acquisition Collector at the time of making Award and further that all plots of the industrial area have been allotted and there is no surplus land available and the fact that since 1997 units are working which is in the knowledge of the appellant.
13. It has been contended on behalf of respondents that value of land was determined by the negotiation committee in the meeting held on 6.8.1996 and keeping in view the prevalent market value of the land in the vicinity and indices thereof, value of land was assessed as 10,000/- per kanal without any interest and solatium thereon, but including cost of trees which was assessed by the Forest Department and further that other co- sharers have already received the amount without any protest. ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 5 RFA No. 226 of 2019
14. It has been submitted that amount of compensation of appellant is lying with the Collector and the appellant was again requested to collect the same from Collector, but he did not collect the same.
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15. To substantiate his claim, appellant had appeared in the witness box as PW-1 and has filed affidavit in his examination-in-chief and he has also tendered in his evidence his first Indian Passport Ex. PW-1/A, second Indian Passport Ex. PW-1/B, first Canadian Passport Ex. PW-1/C and other Canadian Passports Ex. PW-1/D, Ex. PW-1/E, Ex. PW-1/F and Ex. PW-1/G. He has placed on record bill Ex. PW-1/H of his mobile issued at his address of Jallandhar and he has also placed on record information received under Right to Information Act on record as mark A to mark E.
16. Appellant has also examined PW-2 Subash Chand alongwith his Rashion Card Ex. PW-2/A to establish that the said person was continuously residing in House No. EF 775/2 Krishan Nagar, Jallandhar (Punjab) and no notice ever was served on the said address by respondents. On behalf of appellant, two sale deeds Ex. PA and PB were also submitted to substantiate claim of the appellant qua the value of land.
17. Respondents have examined RW-1 Virender Kumar, Registration Clerk from Tehsil Office Amb, District Una, who proved on record sale deeds Ex. RW-1/A and Ex. RW-1/B to justify the value of land determined by the Land Acquisition Collector. In evidence, on behalf of respondents document Ex D1 (five years average), Ex. D2 (1 year average) and receipts of co-owners of the appellant, with respect to receiving of compensation Ex. D3 to Ex. D6, have been placed on record.
18. Reference Court, after taking into consideration the entire material placed before it including documents Ex. R1 to R9 placed on record during cross-examination of PW-1-appellant, has dismissed the Reference Petition on merits by holding that the said petition was time barred. ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 6 RFA No. 226 of 2019
19. To substantiate that petition was to be considered within limitation period, appellant has relied upon Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer and another, AIR 1961 .
Supreme Court 1500; Premji Nathu Vs. State of Gujarat and another, (2012) 5 SCC 250; and Vijay Mahadeorao Kubade Vs. State of Maharashtra through the Collector, (2018) 8 SCC 266 and has contended that as notice under Section 12 (2) of the Act was not served upon the appellant and he obtained the knowledge of passing of award and contents thereof after obtaining the copy thereof and therefore, Court has committed a mistake by holding that Reference Petition was barred by limitation.
20. Sections 12 and 18 of the Land Acquisition Act, 1894 read as under:-
"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 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 interested.
(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."
21. The Supreme Court in Raja Harish Chandera Raj's case, has observed as under:-
"(6) ...... 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 "the date of the award" 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. In our opinion, therefore, it would be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to S. 18 in a literal or mechanical way. (7) In this connection it is material to recall the fact that under S. 12(2) it is obligatory on the Collector to give immediate notice of the award to the persons interested a,, are not present personally or by ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 7 RFA No. 226 of 2019 their representatives when the award is made. This requirement itself postulates the necessity of the communication of the award to the party concerned. The Legislature recognised that the making of the award under S. 11 followed by its filing under S. 12(1) would not .
meet the requirements of justice before bringing the award into force. It thought that the communication of the award to the party concerned was also necessary, and so by the use of the mandatory words an obligation is placed on the Collector to communicate the award immediately to the person concerned. It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression "from the date of the Collector's award" in the proviso to S. 18. It is because communication of the order is regarded by the Legislature as necessary that S. 12(2) has imposed an obligation on the Collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate. It would indeed be a very curious result that the failure of the Collector to discharge his obligation under S. 12(2) should directly tend to make ineffective the right of the party to make an application under S. 18, and this result could not possibly have been intended by the legislature.
(8) It may now be convenient to refer to some judicial decisions bearing on this point. In Magdonald v. The Secretary of State, for India in Council (1) Rattigan and Shah Din, JJ. held that under the proviso to S. 18 until an award is announced or communicated to the parties concerned it cannot be said to be legally made. An award under the Act, it was observed in the judgment, is in the nature of a tender and obviously no tender can be made unless it is brought to the knowledge of the person to whom it is made. The learned Judges observed that this proposition seemed to them to be self-evident. The same view has been expressed by the Oudh Judicial Commissioner in Hari Das Pal v. The Municipal Board, Lucknow, 22 Ind Cas 652 (Oudh)."
22. In State of Punjab Vs. Qaisar Jehan Begum, AIR 1963 SC 1604, the Supreme Court has held as under:-
"5....It seems clear to us that the ratio of the decision in Harish Chandra Case is that the party affected by the award must know it, actually or constructively, and the period of six months will run from ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 8 RFA No. 226 of 2019 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. The contents may be known either actually or constructively. If the .
award is communicated to a party under Section 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."
23. In Bhagwan Das Vs. State of U.P., (2010) 3 SCC 545, the Supreme Court has held as under:-
"28 (i) 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.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under Section 12(2).
(iii) 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.
... ... ....
30. When a person interested makes an application for reference seeking the benefit of six months' period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference. This onus is ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 9 RFA No. 226 of 2019 discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or .
through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award.
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."
24. Referring Qaisar Jehan Begum and Bhagwan Dass cases, the Supreme Court in Premji Nathu's case has observed as under:-
"21. A careful reading of the averments contained in paragraph 2 of the application filed by the appellant under Section 18(1) shows that the notice issued by the Collector under Section 12(2) was served upon him on 22.2.1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 8.4.1985 for making a reference to the Court. This implies that copy of the award had not been sent to the appellant along with the notice and without that he could not have effectively made an application for seeking reference.
22. On behalf of the State Government, no evidence was produced before the Reference Court to show that copy of the award was sent to the appellant along with the notice. Unfortunately, while deciding issue No.3, this aspect has been totally ignored by the Reference Court which mechanically concluded that the application filed on 8.4.1985 was beyond the time specified in Section 18(2)(b). The learned Single Judge of the High Court also committed serious error by approving the view taken by the Reference Court, albeit without ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 10 RFA No. 226 of 2019 considering the fact that the notice issued by the Collector under Section 12(2) was not accompanied by a copy of the award which was essential for effective exercise of right vested in the appellant to seek reference under Section 18(1)"
.
25. Relying upon aforesaid proposition of law, the Supreme Court in Vijay Mahadeorao Kubade's case has held as under:-
"11. Learned counsel appearing on behalf of the Government, has not disputed the aforesaid proposition of law. Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 4-12-1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 4-12-1987, under sub-section (2) of Section 12 of the Land Acquisition Act, until the appellant received a certified copy of the award, which he did on 3- 2-1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation."
26. In present case, though it is claimed by respondents-State that notice under Section 9 as well as 12(2) of the Act was sent and served upon the appellant, however, on perusal of record, it is evident that said notices were purported to have been sent on the address "Ved Parkash S/o Sh. Chaman Lal S/o Sh. Gainda Mal R/o Krishna Nagar Jallandhar Punjab", whereas complete and correct address of the appellant is "Ved Parkash Mittal S/o Sh. Chaman Lal S/o Sh. Genda Mal, R/o E.F 775/2, Krishan Nagar, Jallandhar (Punjab)". Appellant has examined a witness to substantiate his claim that authorized person was available at his address to receive the notice, but no notice was ever served. From the incomplete address, it can be presumed that notice could not have reached the appellant or his representative. In present case, on behalf of respondents- State, no other evidence has been produced to show that copy of Award was also sent alongwith notice. Neither it has been pleaded in the reply to the reference petition nor any evidence has been adduced by respondents- State to establish supply of copy of award alongwith notice, therefore, even ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 11 RFA No. 226 of 2019 if it is presumed that notice sent to the appellant was served upon him, even then in absence of accompanying copy of award, in view of above referred proposition of law propounded by the Supreme Court, there is no valid .
service of notice upon the appellant and there is non-compliance of Section 12(2) of the Act.
27. Admittedly appellant is an interested person in terms of Sections 12 and 18 of the Act and he was not present personally or by his representative when award was made. There is no material on record to establish that appellant ever had acquired any knowledge about initiation of proceedings of acquisition or passing of Award by Land Acquisition Collector.
28. In aforesaid facts and circumstances, claim of the appellant is to be accepted that he acquired the knowledge about the contents of award after receiving certified copy of Award, which was received by him four weeks back from January, 2013 and accordingly reference for enhancement filed by the appellant was not barred by limitation.
29. Reference Court, apart from issue of delay, has also adjudicated Reference Petition on merits by discussing other evidence on record lead by the parties.
30. Appellant has claimed that area in excess has been taken in possession by the Department, but no evidence has been adduced in this regard. Even otherwise, in case of taking of possession by the Department of area other than the acquired, land owner is always entitled to avail appropriate remedy including filing of Civil Suit to protect and assert his right on his property, so taken in possession unlawfully.
31. Appellant has claimed that value of land was at the rate of 3,000/- per Sq meter. To substantiate his claim no other documents except sale deeds Ex. PA and PB have been placed on record on behalf of ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 12 RFA No. 226 of 2019 appellant. Whereas respondents have placed on record sale deeds Ex. RW-1/A and Ex. RW-1/B.
32. It is now settled that for determining the fair and just value of .
the land under acquisition, exemplar transaction deeds of the land of the same area or adjoining area having the similar potential and quality, of the period proximate to the date of notification issued under Section 4 of the Act, shall be relevant. Sale deeds relied upon by the appellant pertain to the year 2013-14, as they were executed on 28.11.2013 and 9.7.2014, respectively, whereas acquisition took place in the year 1995. Therefore, Reference Court has rightly discarded these sale deeds by not taking into consideration for determining the value of the land.
33. Sale deeds Ex. RW-1/A is dated 16.5.1996, whereas sale deed Ex. RW-1/B is dated 19.10.1996. These sale deeds pertain to a period within 1 year from the date of notification but are of the subsequent date to the date of issuance of Notification under Section 4 of the Act. Further as per sale deed Ex. RW-1/A, value of land would become less than 10,000/- per kanal which is a lesser amount than the amount determined by the Land Acquisition Collector in the award and, therefore, this sale deed cannot be taken into consideration because Reference Court, as provided under Section 25 of the Act, cannot determine the value of the land less than the value determined by the Land Acquisition Collector. Sale deed Ex. RW-1/B also pertains to the time subsequent to issuance of notification under Section 4 of the Act and it pertains to a small piece of land, whereby 253 square decimeter land was sold for a consideration of 10,000/-, therefore, this sale deed is also not relevant for determining the value of the land.
34. There is no other evidence, placed on record, by the parties. In absence of any proximate sale deed, value of the land as determined in the award by Land Acquisition Collector on the basis of negotiation between the parties is to be considered a just and fair value of the land as land ::: Downloaded on - 14/03/2023 20:43:30 :::CIS 13 RFA No. 226 of 2019 owners had consented in the meeting of negotiation for determining the said value.
35. Appellant was not party to the negotiation, but in absence of .
any material on record Reference Court has rightly upheld the value of land at the rate of 10,000/- per Kanal. However, petitioner was not party to the consent of land owners to abundon the claim of solatium as well as interest, as permissible under law to the land owners for acquisition of land. Therefore, consent of other land owner, not to claim solatium and interest cannot be thrusted upon the appellant. Therefore, appellant shall be entitled for compensation at the rate of 10,000/- per Kanal with all statutory benefits including solatium and interest etc. as permissible under law.
36. It is also noticeable, as claimed by respondents in reply to the Reference Petition that after determining the amount of compensation payable to the appellant, the same is lying with the Collector and has not been deposited in the Court, as provided under Section 31 of the Act. Section 31 of the Act reads as under:-
"31. Payment of compensation or deposit of same in Court.--
(1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted:
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section.::: Downloaded on - 14/03/2023 20:43:30 :::CIS 14 RFA No. 226 of 2019
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.
.
(3) Notwithstanding anything in this section, the Collector may, with the sanction of [appropriate Government] instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof."
37. Appellant was not available at the time of announcing Award and tendering the payment and not any payment was tendered to him even at the address of Jalandhar, but the amount has been kept by the Collector with him. Appellant has not consented to receive it and, there was no other competent person to receive the same and, therefore, as per Section 31(2) of the Act, the amount of compensation was to be deposited in the Court to which Reference under Section 18 of the Act would have been submitted, but Collector has failed to do so, therefore, appellant shall be entitled for benefits including interest accruing on the amount of compensation from the date as provided under law till its full and final payment to the appellant by the Land Acquisition Collector or deposit of the same with the Reference Court.
The appeal is allowed in aforesaid terms.
(Vivek Singh Thakur), th 14 March, 2023 Judge.
(Keshav) ::: Downloaded on - 14/03/2023 20:43:30 :::CIS