Delhi District Court
Om Prakash vs Land Acquisition Collector on 3 May, 2021
IN THE COURT OF SH. MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE -1 + MACT (NW)
ROHINI COURTS : DELHI
UID/CNR NO.DL NW-01-000597-2013
LAC No. 210/16 (New)
LAC No. 120A/13 (Old)
[Old Case: more than 8 years old]
IN RE :
1. Om Prakash,
S/o Late Shri Fateh Singh,
R/o Village & PO Karala, Delhi.
2. Ram Kishan (Now deceased)
Through LR's
a) Shanti,
W/o late Shri Ram Kishan
b) Sanay Kumar,
S/o Late Shri Ram Kihsan
Both Residents of 1047, Batt Para Pana,
Village Karala, Delhi-110081.
c) Anil Kumar
S/o Late Shri Ram Kishan,
R/o 948, Near Old Mandir,
Village Karala, Delhi-110081.
3. Jagdish,
S/o Late Shri Fateh Singh,
R/o VPO Karala,Delhi.
4. Krishan Kumar (Now deceased)
Through LR's
a) Veermati W/o Late Krishan,
b) Yogesh Mathur S/o Late Krishan,
c) Geeta D/o Late Krishan,
All R/o VPO Karala,Delhi.
d) Sunita Mathur, D/o Late Shri Krishan,
W/o Shri Atul Nain,
R/o VPO Jatkhor, Delhi.
5. Raj Singh,
6. Sunil,
Both S/o Shri Bhoop Singh,
R/o VPO Karala, Delhi .... Petitioner/Claimant
Versus
1. Land Acquisition Collector,
Kanjhawla (District North-West), Delhi./
Union of India, service to be effected through
Tis Hazari Courts, Delhi.
2. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi. .....Respondents
Village:- Karala Notification U/S 4 of L. A Act. F.11(19)/2001/L&B/LA/20112 dt. 21.03.2003 Notification U/s 6 of L. A Act. F.11(19)/2004/L&B/LA/28199 dt. 19.03.2004 Award No. 22/2005-06 Date of Announcement / Award: 02-01-2006 Date of Receipt of Reference : 30.04.2013 First date before the undersigned: 26.11.2018 Date on which reserved : 30.04.2021 Date of Decision : 03.05.2021 Appearance: Shri Neeraj Dahiya, Ld. counsel for the Petitioner.
Shri R.K. Mittal, Ld. Counsel for the Union of India.
Ms. Renu Gupta, Ld. Counsel for DDA.
REFERENCE PETITION UNDER SECTION 18 OF THE LAND ACQUISITION ACT, 1894 JUDGMENT / AWARD (Under Section 26 of the Land Acquisition Act, 1894)
1. This is a reference petition u/s 18 of Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), filed by the petitioners mentioned aforesaid for enhancement of compensation awarded by the Land Acquisition Collector (North- West) (hereinafter called 'the LAC' ) for acquisition of their land for public purpose.
2. Vide notification No. F.11(19)/2001/L&B/LA/20112 dt. 21.03.2003 under Section 4 and declaration bearing no. F.11 (19)/2004/L&B/LA/28199 dt. 19.03.2004 under Section 6 of the Land Acquisition Act, for land ad-measuring 3244 bighas and 15 biswa (including the land of the petitioners as detailed in the statement under Section 19 of the Act), situated in the revenue estate of village Karala, Delhi, was acquired by the Government for public purposes namely "for Rohini Residential Scheme under planned development of Delhi". The Land Acquisition Collector after completing all the requisite formalities as provided under the Act, announced the Award bearing no.22 of 2005-06 dated 02.01.2006 of village Karala and awarded compensation at the uniform rate of Rs.15,70,000/- per acre or Rs. 16,354.16/- per biswa for the entire acquired land in addition to solatium, additional amount and interests etc.
3. The petitioners have claimed to be the owners/Bhumidars in cultivated possession of their 1/5th share each of Om Parkash, Ram Kishan, Jagdish & Krishan and 1/10th share of petitioners Sunil & Raj Singh under acquisition out of khasra no. 56/4/1 min(1-5), 56/7/1 min (1-13-1/2), 56/13 min(0-9), 56/14/2 min 2-5), total measuring 5 Bighas 12- 1/2 biswas in land situated in the revenue estate of village Karala, Delhi.
4. The petitioners being aggrieved by the market value determined by the LAC vide award no. 22/2005-06/DC(N-W) which was announced on 02-01-2006, challenged the said award on the grounds as detailed in the reference petition which are summarized as under: -
(i) That the Land Acquisition Collector has only adopted policy taken by Government which was applicable on 09.08.2001 and the Land Acquisition Collector did not enquire about the actual market value at the time of notification u/s 4 of LAC Act..
(ii) That the land under acquisition is similar, identical and levelled also as has already been acquired by the Government for the colony known as Rohini, and the DDA is selling the land in already acquired land at auction which is much higher than the rate announced by the LAC.
sharing
(iii) That the LAC ignored the fact that land under acquisition is having all the modern facilities in and around the acquired land i.e. metaled road, sweet water, telephone facilities, levelled land which can fetch a very high market value and the LAC also did not consider the latest policy adopted by Delhi Government which declared that the market value in Delhi shall not be less than Rs.26 lakh per acre and could have deducted Rs.2,000/- per bigha per year from the rate fixed by Govt. of Delhi in this award also.
(iv) That the LAC has simply stated that the land under acquisition is governed by the provision of Delhi Land Reforms Act which strictly prohibits to use the land under acquisition except them provided in DLR Act. It is further averred that if the land under acquisition is sold out in open market then the exact and real market value shall not be less than Rs.50 lacs per acre but the LAC did not consider all the facts in assessing the market value at the time of notification under Section 4 of the LA Act,
(v) That LAC did not try to find out the actual market value at the time of notification under section 4 of the LA Act of the acquired land.
(vi.) That LAC further ignored the registered Sale deed of adjoining village i.e. village Shahbad Daulatpur, much prior to the notification under section 4 of the LA Act of this Village which can also be the basis of assessing the actual and real market value of the acquired land.
vii) That all the develop colonies which had already been developed by the DDA known as Rohini, Narela Township, Pappan Kalan are also nearer to the land acquired under this Award but the Ld. LAC did not consider the actual and real market value of the acquired land under this award.
(viii) That the market value as assessed by the LAC is too low, arbitrary and does not represent the actual and true market value of the acquired land under Section 4 of the LA Act,
(ix) That the LAC has not given the rate of interest and other interest as provided under the LA Act as amended upto date.sharing
(x) That the petitioner has not received any notice under Section 12 (2) of the LA act nor he was present at the time of announcement of Award thus the present Reference petition under Section 18 of the LA Act is being filed.
5. The petitioner has prayed for enhancement in compensation already granted by LAC for the acquired land at the rate of Rs. 10,000/- per sq. yards alongwith other statutory benefits.
6. Respondent no.1 i.e. Union of India filed their WS thereby contesting the present petition. The respondent no. 1 in their Written Statement has taken objection by contending that the Land Acquisition Collector while passing the Award has taken into consideration all legal requirements and material on record and has rightly assessed the true market value of land on the date of notification u/s 4 of the LA Act and the compensation assessed and awarded by the Land Acquisition Collector is just, legal, proper, sufficient and reasonable. It has further been averred in the Written Statement that the compensation of the acquired land has already been paid by the LAC to the petitioner and the claim of the petitioner is highly excessive, unjustified and denied. On merits, It has further been stated that the reference is liable to be dismissed with heavy costs and the petitioner is not entitled to any enhancement over and above the value assessed by the LAC.
7. Respondent No.2 DDA has filed its Written Statement and in the written Statement, all the averments as pleaded in the reference petition have been denied . It has been contended that the LAC while making Award No. 22 of 2005-06 relating to the village Karala, Delhi had taken into consideration the market value of the land on the basis of sale deeds of the adjoining lands of the area as well as other documents which were made available and produced before the Land Acquisition Collector. Moreover the area of the land and other appurtenances amenities/facilities were also taken into consideration while assessing the compensation by the Land Acquisition Collector and hence the reference under reply for enhancement of the amount of compensation is not justified and is not maintainable and is liable to be dismissed. It has further been contended that the amount awarded by the Land Acquisition Collector in the present case is adequate, sufficient, just and legal.
Objections has also been taken with respect to the limitation that the present reference petition is barred by the period of limitation and is not maintainable. It has also been contended that the directions of L & B department, after announcement of award reference/request should be forwarded by LAC to the Ld. Court within 60 days from the date of filing of the reference. It has been contended that the present reference petition has not been forwarded to the Ld. Court within 60 days from the filing of the reference by the petitioner. Hence, DDA/beneficiary of land is not liable to pay interest, if any, for the delayed period. It has also been contended that since the petitioner is not admitted to be the owner/bhumidar with respect to the land in question and as such she has no locus standi to file the present petition for enhancement of compensation. On merits, it has been contended that the land in question situated in the revenue estate of village Karala, Delhi as detailed in the statement u/s 19 of the Land Acquisition Act which has been acquired vide award No.22 of 2005-06 and notification under section 4 has been issued F.11(19)/2001/L&B/LA/18032 dt. 21.03.2003 Notification U/s 6 of L. A Act. Vide F.11 (19)/2004/L&B/LA/18 dt. 19.03.2004 and physical possession of the land has been taken over by the Delhi Development Authority on 25.07.2006 from LAC/L&B and the same has been transferred to RPD.1 of the DDA on 18.07.2007. It has been denied that the compensation awarded to the petitioner is inadequate. It has been prayed that present petition be dismissed.
8. During the pendency of the case, petitioner No.4 Shri Krishan Kumar has expired on 26.09.2011 and an application u/o XXII rule 3 CPC for bringing the LR's of deceased petitioner No.4 Shri Krishan Kumar has been filed which was allowed vide order dated 05.08.2014 and all the LRs of deceased Krishan Kumar were brought on record. Similarly, the LR's of deceased Petitioner No.2 Shri Ram Kishan who has also expired on 01.10.2016 moved an application u/o 22 rule 3 CPC for bringing the LR's of deceased Ram Kishan which was allowed vide order dated 08.05.2017 and all the LRs of Deceased Ram Kishan were brought on record.
9. On the basis of pleadings of the parties and documents filed on record, the following issues were framed by the court on 15.10.2014.
ISSUES.
1. Whether the petitioners are entitled for enhancement in compensation, if yes, then to what extent? OPP
2. Relief.
10. In order to prove their case, initially, the petitioners through their counsel have relied upon the evidence led by the petitioner in case bearing No.178/16 (new) and 1967A/12 (old) titled Pardeep Mathur Vs. Union of India & Anr. However, no specific separate additional evidence for enhancement of compensation has been led. Thereafter on application u/s 151 CPC, court vide order dated 28.02.2020 allowed the petitioners to lead additional evidence on the aspect of limitation and accordingly, petitioner No.2 himself as PW1 filed evidence by way of Affidavit as Ex.PWA/1 and PW2 Shri Kunj Bihar Kanoongo posted in the office of North West Delhi.
11. In the cross-examination of PW1 Shri Jagdish, he has denied the suggestion that he had knowledge of the award since inception in the year 2005-06. He has also denied the suggestion that his representative or petitioners used to go to ADM office at the time of award proceedings. However, he has admitted that he had applied for the compensation after he had come to know the compensation after the award was passed. He admitted that he had applied for compensation once other people started going to the ADM office for lifting of compensation as per the award. In the cross-examination, he has been confronted with the application as Ex.PW1/X- 1 by which he has applied for lifting of compensation. He has also contended that actually he did not remember whether they have applied together but he admitted and identified the signature of his brother on the application Ex.PW1/X-1. The affidavit accompanied the application has also exhibited as Ex.PW1/X-2 which bears the date as 20th February at point 'X' and signature, He has also admitted that they have received the compensation in respect of the acquired land from LAC on the basis of the aforesaid application. He had denied the suggestion that he had come to the knowledge of the award immediately on its passing and also he had acquired knowledge of the same only when the possession of the land.
12. On the other hand, the respondent no. 1 i.e UOI has tendered the award dated 02.01.2006 passed by LAC as Ex.R-1 and also adopted the evidence led on behalf of Union of India in Pradeep Mathur case (supra) and has not led any separate evidence. The respondent No.2 DDA through its counsel has also adopted the evidence led by respondent No.1 i.e. Union of India.
13. I have heard the Ld. Counsels for the parties and have perused the entire record including the documents and the evidence led by the parties. I have given a thoughtful consideration to the same.
ISSUE NO. 1 : -"Whether petitioners are entitled for enhancement in compensation, if yes, then to what extentt" OPP
14. During the perusal of the record, doubts have come in respect of the present reference petition being filed beyond the period of limitation as the award was made by the LAC on 02.01.2006 while the application for reference u/s 18 of Act was filed by the petitioners before LAC on 03.11.2006. The question being legal in nature, therefore, requires to be decided first. In any case, the entitlement to the enhancement in compensation as mentioned in the issue is imperatively the legal entitlement of the petitioners.
15. It may further be seen that the onus to prove this issue was upon the petitioners. It is settled proposition of law that the onus to prove the market value of the acquired land or inadequacy of compensation awarded by LAC is always upon the petitioners. The aforesaid proposition of law has been authoritatively held by our Hon'ble Supreme Court in State of UP & Anr Vs. Rajender Singh, AIR 1996 SC 1564 as under:
"The onus is on the petitioners to prove that their lands are capable of fetching higher compensation then what has been determined by the LAC and that he is entitled for enhanced compensation".
16. The petitioners have averred in this petition that award was announced in their absence and they were neither present nor representated by authorized person when the LAC has passed the award nor had complete knowledge of contents of award at the time the reference petition was drawn. It has been further specifically averred in the petition that the petitioners have not been served with the notice u/s 12 (2) of the LA Act, and so that the reference petition has filed within the period of limitation as provided under the law.
17. Ld. Counsel for petitioners Shri Dahiya has vehemently contended that besides being absent at the time of passing of the award by LAC, no notice under section 12(2) of the Act has been served upon the petitioners. It has further been submitted that no intimation was ever given to the petitioners regarding passing of the award by LAC as stipulated under the Act. Petitioners have averred in the petition that they have no knowledge of contention of the award in question and they did not accept the compensation in respect of the acquired land as award was passed in their absence. He has further sought to rely upon the certified copies of the LAC file for considering the same within the purview of section 114(e) and (f) read with section 79 and 81 of the Indian Evidence Act, 1872 to show that the petitioners/representatives were not present at the time when the collector announced the award. Relying upon the judgment of Hon'ble Apex Court in AIR 1961 SC 1500 Raja Harish Chander Raj Singh Vs. Deputy Land Acquisition Officer & Ors, reiterated by the Division Bench of our Hon'ble High Court in WP(C) No. 10039/2016 Shanti Devi & Ors. Vs. Union of India, Ld. Counsel for petitioners had stated that "the date of the award" under proviso to section 18 of the Act shall be the date on which the award was communicated or made known to the owners or interested person actually or constructively.
18. Further relying upon the judgment of Hon'ble Supreme Court in AIR 1963 SC 1604 titled State of Punjab Vs. Mst Qaisar Jehan Begum and Ors.. it has further been sought to be argued that even the Hon'ble Supreme Court has gone to the extent of clarifying that knowledge of award does not mean a mere knowledge of the fact that an award has been made but must relate to the contents of the award which may be known to the petitioners/interested persons either actually or constructively. Hon'ble Apex Court has even laid down that knowledge of essential contents of the award should be read within the meaning of section 18(2) of the Act having regard to scheme of the Act. Ld. Counsel has finally sought to rely upon a recent judgment of Hon'ble Apex Court in Bhagwan Das and Others Vs. State of Uttar Pradesh & Others (2010) 3 SCC 545 thereby arguing that if a person is not present at the time when collector has made an award and a notice u/s 12 (2) of the Act has also not been served upon him then only way to decipher knowledge for interested person is either the interested person has drawn the compensation or has participated in the mazhar/possession proceedings or has filed a case challanging award wherein documentary evidence or any statement on oath about the contents of knowledge in any other proceedings before any authority is made. He has argued that at best the date of knowledge or the date of constructive knowledge in this case shall be the date on which the possession of the land of the petitioners was taken which is 25.07.2006 and the petition being filed on 03.11.2006 is as such well within the period of 6 months as stipulated under proviso to Section 18(2) of the Act. He has finally argued that the compensation in respect of acquired land has been accepted by the petitioners under protest and the application for reference u/s 18 of the Act being filed within limitation, the petitioners are entitled for enhancement in compensation.
19. Ld. Counsel for Respondent no.1 Shri R.K. Mittal has vehemently argued that the reference is blatantly time barred and liable to be dismissed at the outset as the petitioners have filed the present reference on 03.11.2006 much beyond the time provided under the Act when the award in question was passed by the LAC on 02.01.2006. He has further argued that a present reference petition under the Act should have been filed either within 6 (six) weeks from the date of collector's award, if a person making a reference who was present or represented before the collector at the time when the award was made by LAC in terms of section 18 (2)(a) of LA Act, or should have been filed within 6 weeks of receipt of the notice from the collector u/s 12 (2) of LA Act or within the outer limit of 6 months from the date of Collector's award, whichever period shall first expire and, therefore, considering the dates present reference petition is clearly beyond limitation. He has further vehemently argued that judgments relied upon by Ld. Counsel for petitioners in Shanti Devi (supra) and Harish Chander Raj Singh (supra) has no relevance to the facts of the present case as they operate on completely different facts. Ld. Counsel for respondent has even gone to argue that entire petition filed before the LAC and referred to this court does not specifically mention as to when and how knowledge of passing of the award was acquired by the petitioners. It has further been sought to argue that even the petitioners have moved an application for compensation amount of the land in question on 20.02.2006 which bears the signature of all the petitioners and received the same vide cheque dated 28.09.2006 which itself shows that the date of 20.02.2006 on which the petitioners and counsel has signed it which shows that the petitioners had acquired knowledge of the fact. He has relied upon the judgment of Hon'ble Supreme Court in State of Karnataka Vs. Laxuman, Appeal(Civil) 2024 of 1999 and Smt. Radhika Devi & Ors. Vs. The State of West Bengal & Ors., WP No. 4809 (W) of 2007 decided on 16.02.2009 to buttress his point. He has reiterated that the petition being filed beyond the period of limitation, should be rejected outrightly.
20. A careful perusal of the record, the arguments advanced and the law on the field raise an important legal aspect before the court in as much as the court has to examine the aspect of limitation for filing an application by an interested person for reference before the LAC as provided in the proviso to sub section (2) sharingof Section 18 of the Act, besides examining the scheme of the Act to understand the interplay of Section 9, 11 and 18 of the Act. This requires a little elucidation.
21. At the outset, the relevant extracts of Section 9, 11 and 18 are reproduced as under:-
"9. Notice to persons interested-(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned(such time not being earlier than fifteen days after the date of publications of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections(if any) to the measurement made under section 8. The Collector may, in any case, require such statement to be made in writing and signed by the party or his agent."
"11. Enquiry and award by Collector-(1) On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections(if any) which any person interested has stated pursuant to a notice given under section 9 to the measurement made under section 8, and into the value of the land (at the date of the publication of the notification under section 4, sub-section(1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him;
[Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf;
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.] "18. Reference to Court (1) Any person interested 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 interested.
(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 under section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire".
22. A simple examination of these sections in the light of the law settled by the Hon'ble Supreme Court and High Courts shows that once the notification u/s 4 of the Act and the declaration u/s 6 of the Act for acquisition of land for public purpose ( or for a company) is made by the appropriate Government through collector and the order for acquisition of land has been taken by the collector from the appropriate Government, he is mandatorily required to give a public notice to all such interested on two aspects, one, informing the intention of the Government to take possession of the land and two, to enable all interested persons in such land to file their respective claims. This notice u/s 9 of the Act has to be an effective notice and is required to be given to all including occupier/known or person believed to have interest in the land. The section further provides that if the interested person resides outside or elsewhere and has no agent on the spot then he has to be informed through post on his last known address of residence or place of business. The vesharingry purpose of this notice is to facilitate all the interested persons to approach the collector with their claims for the purpose of enquiry and the award which the collector is required to make u/s 11 of the Act. Further, once the enquiry concluded by the collector after consideration of not only the claims but all other relevant factors, he has to make an award clearly mentioning the true area of land, the compensation which in his opinion should be allowed for restituting the affected person for acquisition of land and even the apportionment of said compensation amongst all the persons known or believe to have interest in the acquired land.
23. Section 18 of the Act, on the other hand provides a remedy in the form of a reference to the court of law for any objection as to measurement of land, the amount of compensation, the person to whom it is payable, or the apportionment of compensation among the person interested. The application for reference is required to be made in writing specifying the grounds on which objections to the award is taken. At the same time, the application in order to be a valid reference, is required to be made within the limitation period stipulated under the proviso to sub section 2 of Section 18 of the Act,. An additional requirement for making a valid application in case of inadequacy of compensation is either non-acceptance or acceptance under protest of the Award Amount(1997 9 SCC 710 Land Acquisition Officer Vs. Shiv Bhai). The Act clearly provides commencement of limitation from the moment award is made by the LAC. The conscious use of the phrase at the time when the collector made his award by the legislature in a statute reflect that for the purpose of limitation, it is not the enquiry but the moment of making the award by the LAC which is relevant. The legislature in his wisdom has thus provided mandatory issue of notice u/s 9 of the Act for the purpose of filing the claims by the interested person which is prior to initiation of enquiry proceedings by the LAC while the limitation commence at the time of making of the award which means at the time the enquiry is concluded or terminated by the LAC. Thus, Section 9 and 11 are closely co-related while limitation period prescribed under section 18 of the Act is totally different from the issuance of notice or participation of the interested person in the award proceedings. This position is further clarified by Section 12 of the Act, which provides the award of the collector to be final and conclusive as between the collector and the person interested in respect of area and value of the land and apportionment of the compensation among the person interested. The award of the collector is final irrespective of the fact that the interested person had appeared before the Collector or not. The law provides for the eventuality where the interested persons are not present at the time when the award was made by the collector by incorporating sub section 2 in Section 12 of the Act, where the collector requires to give and immediate notice of his award (not merely of the intention of the Government to acquire the land as provided under section 9 of the Act ) to such interested persons as were not present personally or by their representative when the award was made. In simple words, at the time of making the award the collector is required to specify who all were present (either personally or through representative) when the award was made, otherwise, he is required to give a notice u/s 12(2) of the Act to the interested person. It is this preposition of Section 12(2) which finds mention in proviso to Section 18(2) of the Act and lays down the commencement point for the purpose of limitation for making an application for reference before the collector.
24. Now adverting to limitation as provided under proviso to section 18(2) of the Act, The proviso provides two eventualities and three periods. Eventuality one when the applicant is present either personally or represented through his representative before the collector at the time when the collector made his award, the limitation for filing the application in such an eventuality is six weeks from the date of collector's award. Eventuality two when the applicant is not present (personally or through representative) at the time when the collector made his award. Now, this eventuality provides for two periods- First when the applicant has received a notice u/s 12(2) of the Act, in such case the limitation is six weeks from the date of receipt of the notice. And second when the applicant has not received a notice u/s 12 (2) of the Act, in such case the limitation for filing the application for reference is six months from the date of collector's award.
Interestingly, the second eventuality also perceives a situation where a notice u/s 12(2) of the Act is received in a delayed time and provides for the period of six months from the date of award or six weeks from the date of award, if the notice u/s 12 (2) of the Act is received. In such case, the limitation shall commence from the date or the period which expires first.
25. It is settled preposition of law laid down by the Hon'ble Apex Court that the validity of a reference petition can only be decided by a Civil Court. Reliance placed on (1997) 9 SCC 710 Land Acquisition Officer Vs. Shiva Bhai. Further, Section 5 of Limitation Act has no application since the Land Acquisition Act 1894 is a complete code in itself and only Civil Court is competent to decide whether reference within a period prescribed by proviso to of Section 18 (2) of the Act. Reliance placed on (1996) 2 JT (SC) 278 titled Officer on Special Duty Vs. Shah Mani Lal Chandu Lal.
26. The Hon'ble Supreme Court in Raja Harish Chander Raj Singh (supra) has held that the award of collector is not a decision but an offer of compensation on behalf of a Government to the owner of the property and it is not effective until it was communicated to the owner. The making of the award did not consist merely on the act of writing of the award or signing it or filing it in the office of Collector but it also involves the communication of the award to the owner either actually or constructively.
27. The aforesaid preposition of law was further clarified or elucidated by Hon'ble Apex Court in State of Punjab Vs. Mst Qaisar Jehan Begum and Ors case (Supra) wherein it has been held 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 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 under section 12(2) of the Act, the Party must be obsharingviously 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".
The Hon'ble Supreme Court further in case of Madan & Anr. Vs. State of Maharashtra decided on 06.12.2013 (Civil Appeal No.10813 of 2013) has held that "it will be a unreasonable to construe the words from the date of collector's award in proviso to section 18 in a literal or mechanical way.
28. The entire gamut of law was duly examined/explained and elucidated by Hon'ble Apex Court in celebrated judgment of Bhagwan Dass Vs. State of Uttar Pradesh 2010 IV SCC 545 wherein which the Hon'ble Apex Court not only interpreted the entire aspect of limitation for filing a reference petition u/s 18 of the Act but has also gone to the extent of explaining the procedure whereby the same can be deciphered by the reference court. The Hon'ble Apex Court while examining the entire law on the field has simply explained that while there is tendency of collector to be conservative in making the award which resulted in a less market value being offered by Land owners/interested persons. As a result of which, the scheme of Act provides a inbuilt mechanism, so that land looser can approach the Civil Court u/s 18 of the Act, to get the market value as compensation which he could not seek unless the award is making by the Collector which he has to have a correct knowledge of the contents of the award and accordingly the words provides u/s 18 of the Act i.e. date of collector award cannot be allowed to literally interpreted as the same would be contrary to the spirit of the Act. Unless the procedure under the Act is fair reasonable and non-discriminatory, it will run the risk of being violative of Article 14 and Article 300- A of the Constitution of India and thus the words "date of collector award" occurring the proviso (b) to Section 18 requires to be read as referring to the date of knowledge of contents of the award and not the actual date of collector award.
29. The Hon'ble Apex Court has further laid down that when a person interested makes an application for reference seeking the benefit of 6 months period from the date of knowledge, the initial onus is upon him to show that he or his representative was not present when the award was made and that he did not receive any notice under Section 12(2) of the Act and he had no knowledge about the contents of the award during the period of first 6 months prior to filing of the application for reference. This onus is discharged once the petitioner asserts this facts on oath and he is not expected to prove the negative. Once the initial onus is discharged by the Claimant it shifts upon the respondent/LAC to rebut or establish that the person interested was present either in person or through his representative at the time when award was made or he has received a notice u/s 12 of the Act or he had knowledge of the contents of the award. Now first two eventualities can be shown from the record itself while the 3rd eventuality of knowledge has to be established by the collector by leading cogent evidence or by way of established or proving that the person interested had either received or drawn the compensation amount for the acquired land or was present and 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 or on oath or evidence and in absence of 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.
30. The aforesaid preposition of law has been applied and reiterated by our own Hon'ble High Court in Shanti Devi (Supra) where it has been held that Land Acquisition Act being a complete code itself does not permit the application of general principles of law regarding Limitation and Limitation u/s 18(2) of the Act should commence from the date, the petitioner has constructive and/or actual knowledge or the information of the award including itself essential ingredients and shall expire on lapse of 6 months thereof.
31. Applying the aforesaid preposition of law to the facts of the present case, it may be seen that the petitioners have duly averred in para No.3 of the petition that they were not present at the time the award was passed by the collector on 02.01.2006 nor they have received any notice u/s 12(2) of LA Act. This contention have been refuted by the Union of India by stating that notice under LA Act, were duly issued. The aforesaid contentions have been duly proved on record by deposition of PW1 Shri Jagdish and has also been shown by the certified copies of award proceedings Ex.PW2/2 and Ex.PW2/3 where it has mentioned by the collector that the award has been announced in the presence of three land owners and one advocate, with the name of the petitioners or their representatives be completely absent. The aforesaid certified copies are otherwise also admissible in view of presumption laid down u/s 79 of the Indian Evidence Act read with section 114(e) and (f). The certified copies which contains the noting of LAC clearly shows that no presence was recorded by the collector at the time the award except what has been mentioned aforesaid. This being the factual position taken on the yardstick of preponderance of probabilities, the petitioners have proved that they were not present at the time, the collector made the award taking them out of the purview of first eventuality referred to above and laid down in proviso to section 18(2) of the Act.
32. Petitioners have claimed that they have not been served with any notice under section 12(2) of the Act, which has also come in the clear and categoric deposition of PW1 in Ex.PW1/A. Nothing has been shown on record by the respondent to prove that the petitioners were ever served with a notice u/s 12 (2) of the Act. Even, the internal noting of the summoned LAC file does not show any acknowledgment or even any notice u/s 12 (2) of the Act being given to the petitioners. The respondents were required to prove the same in order to avail the benefit of taking the reference petition out of limitation. Thus, two facts stands proved, one that the petitioners were not present at the time of award and second that notice u/s 12 (2) of the Act being not served upon them.
33. Once the aforesaid two facts are proved, the only eventuality left before the court is to scrutinize and ascertain the date of actual or constructive knowledge of petitioners in respect of the collector's award. Now in terms of judgment of Hon'ble Apex Court laid down in Bhagwan Dass (supra), the petitioners are only required to aver that he did not have the knowledge of the award during the period of 6 months prior to the filing of the application for reference and the onus is discharged once these facts are asserted on oath which PW1 has duly done in his deposition by deposing that the deponent got the constructive knowledge of the award only on 25.07.2006 when the acquired land was possessed and handed over to DDA (Kabza Karyawahi Ex.PW2/1). Now it is for the LAC to establish otherwise by discharging the shifted onus that the petitioners actually had knowledge of the contents of the award. It may be seen that during cross-examination PW1 has been consented with the original records received from the LAC, more particularly, the application Ex.PW1/X-1 moved by the petitioners before the LAC for receiving the compensation. The application is duly supported by the affidavits of the petitioners including affidavit of PW1 Jagdish (Ex.PW1/X-2). The documents specifically mention about the details of the award, the land being free from any dispute and the entitlement of the petitioners to receive the compensation amount pursuant to the award. Interestingly, the application specifies that the applicants (petitioners herein) shall receive the compensation amount under protest and subject to filing of (a) reference under section 18 of the LA Act. PW1 during his testimony has duly admitted that the application and the supporting affidavit Ex.PW1/X-2 bears his signature on 20th February, 2006 which simply means that the application was moved by the petitioners on 20.02.2006, a fact which can also be demonstrated from the endorsement of the office of the ADM dated 20.02.2006. This being the factual position the petitioners have acquired the actual or even constructive knowledge either prior to 20.02.2006 or at best on 20.02.2006 and as such the respondent has been able to discharge the shifted onus of establishing the petitioner's actual or constructive knowledge of the award on 20.02.2006 and in terms of para No. 31 of the judgment of Hon'ble Apex Court in Bhagwan Dass (supra).
34. Now this being the established position, the date for commencement of Limitation under Section 18(2) of the Act, shall be taken as 20.02.2006. The petition having been filed on 03.11.2006 is clearly beyond the limitation period of 6 months from the date of commencement. The reference petition being clearly time barred cannot be held to be a valid reference and is liable to be dismissed as such.
35. In view of he aforesaid discussion and findings of the court, it is held that the reference petition has been filed beyond the period of limitation and the petitioners shall not be legally entitled to any enhancement in compensation. This issue is decided accordingly.
ISSUE NO. 2 : Relief
36. In view of aforesaid discussion and findings on issue No.1, the petitioners shall not be entitled to any enhancement in compensation. As such, no enhancement award is passed in favour of petitioners and the petition is, accordingly dismissed.
37. Reference petition is accordingly, answered with parties to bear their own respective costs.
38. Decree Sheet be drawn accordingly.
39. File be consigned to Record Room after due completion.
Passed & announced in (MUKESH KUMAR GUPTA) open court today i.e. ADJ-1 + MACT (NORTH WEST) : 03.05.2021 ROHINI: DELHI (PK)