Himachal Pradesh High Court
Ashwani Kumar & Ors vs Union Of India & Ors on 21 December, 2023
Bench: M.S. Ramachandra Rao, Jyotsna Rewal Dua
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.4176 of 2013 Reserved on:05.12.2023 .
Pronounced on:21.12.2023 Ashwani Kumar & Ors. ......Appellants Versus Union of India & Ors. ...Respondents _________________________________________________________ Coram:
of Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice. Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
rt Whether approved for reporting?
For the appellants : Mr. Rajive Bhalla, Sr. Advocate (through V.C.) with Mr. Umesh Kanwar, Mr. Suneet Verma and Mr. Varun Puri, Advocates.
For the respondents : Mr. Balram Sharma, Deputy Solicitor General of India, for respondents no.1 & 2/Union of India.
Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals, and Mr. Sidharth Jalta & Mr. Arsh Rattan, Deputy Advocate Generals, for respondent no.3/State.
M.S. Ramachandra Rao, Chief Justice.
This Regular First Appeal is preferred by the appellants herein under Section 54 of the Land Acquisition Act, 1894 (in short "the Act") challenging the judgment and decree passed by the Additional District Judge-III, Kangra at Dharamshala ( for short "Additional ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 2 District Judge"/ "Reference Court"), in RBT Reference Case No.11- I/2005/03 dt. 06.08.2013.
2) The said reference had been made under Section 18 and 30 of .
the Land Acquisition Act, 1894 by the Land Acquisition Collector, Nurpur.
3) A Notification under Section 4(1) of the Act had been published on 15.12.2000 acquiring the land of extent 19-11-35 hectares of comprised in Khasra nos.11 to 21, Plots-11, situated in Mohal & Mauza Damtal, Tehsil Indora, District Kangra, Himachal rt Pradesh for the purpose of construction of a civil enclave at Pathankot Airforce Station by the Airport Authority of India ( respondent no.2).
4) This included an extent of 18-23-83 hectares owned by the Thakur Ram Gopal Temple Trust, Damtal (Mandir, Damtal) in Khasra No.s 11,12,19 and 21 of the said village ( for short 'the subject land"). The said trust has been suo moto impleaded as respondent no.4 in this RFA vide order dt. 05.12.2023 passed by this Court.
5) Notice under Section 9 of the Act was issued by the Land Acquisition Collector to the appellants treating them as "persons interested".
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 36) The appellants' on 16.4.2001 replied to the said notice under section 9 of the Act received by them claiming to be partners of a firm M/s Kangra Bajri Company, Damtal which was engaged .
in extraction of stone, bajri etc. They contended that a lease was granted in favor of appellant No.s 1-4 for 50 years till 9.9.2035 under a regd. lease deed dt. 10.09.1985 in respect of the subject land owned by Thakur Ram Gopal Temple Trust, Damtal. They of also stated that they were doing business of extraction of stones, bajri and sand which is supplied to crusher owners and in the rt open market and in turn make the stone ballast to bajri and sand etc. They also claimed to be owning their own crusher namely Lakshmi Stone Crusher and the material extracted from the said land is also used by them for the said purpose. They claimed they would lose the business because of the acquisition of the land. They claimed that as lessees they would get 75% share of the compensation for the land and the owners would get only 25%. According to them the market value would be not less than Rs. 6 crores. They claimed Rs.4.5 Cr of this as compensation for land apart from Rs.50,00,000/- for loss of machinery and Rs.1 cr for displacement and loss of business. Thus they claimed as total compensation a sum of Rs. 6 cr.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 4The award dt.27.6.2001 passed by the Land Acquisition Collector
7) An award was passed being Award no. 1/2001 by the Land .
Acquisition Collector, Nurpur on 27.06.2001 who also mentioned the fact that notice under Section 9 of the Act had been issued to the appellants, apart from the land owner i.e., Temple Officer, Damtal.
of
8) He also mentioned in the award that the appellants had produced a copy of the lease deed and claimed Rs. 6 crores as rt compensation.
9) But the appellants' claim for compensation was rejected by the Land Acquisition Collector in his Award on the ground that out of total 44 Khasra numbers measuring 129-72-23 hectares acquired, the appellants had taken on lease from the Mandir Damtal in 1985 only 18-23-83 hectares in Khasra nos.11, 12, 19 & 21, and that compensation for entire loss of business and machinery for such a very small part of the land cannot be awarded. He stated that the appellants can be exempted proportionate amount of rent to be paid by them for the part of land under acquisition for the remaining period of the lease period from the date of taking over of possession of that land by the Government.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 510) He recorded that the land under acquisition is recorded as "Gair Mumkin" and small part of land is recorded as "Barani Abal"
and one year average market value of the land adjoining Mohal .
Mohtli is Rs.39.44 paise per centere and that of "Gair Mumkin"
land is Rs.15.62 per centere. According to him, this rate has been approved by the District Collector on 16.06.2001. He stated that out of this land, the land owners are entitled at the of rate of 30% under Section 23(2) of the Act.
11) He calculated the total amount of compensation to be rt Rs.41,53,895.92 and fixed the entitlement of the Temple/Mandir Damtal at Rs.37,03,468/.
12) This award of 27.06.2001 does not show the presence of any of the parties at the time of pronouncement of the award.
13) Copy of the award was also not marked to the appellants.
14) There is no evidence that the Land Acquisition Collector, Nupur had issued any notice to the appellants under Section 12(2) of the Act of his passing of the award as "persons interested"
though he had heard the appellants' objections under Section 9 of the Act as recorded in the award itself.::: Downloaded on - 21/12/2023 20:37:35 :::CIS 6
The application dt.18.3.2002 filed by appellants seeking reference under section 18 of the Act
15) An application under Section 18 read with Section 30 of the Act seeking reference was filed on 18.03.2002 by the appellants .
seeking enhancement of the amount of compensation. They also sought for apportionment of compensation between the temple which was the owner and themselves.
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16) It was this reference which was made by the Land Acquisition Collector to the Additional District Judge-III, Kangra at rt Dharamshala which was registered as RBT Case No.11- I/2005/03 dt. 18.03.2002.
The contentions of the appellants in the application for reference
17) The appellants contended that after filing of objections under Section 9 of the Act, they had not been given any notice by the Land Acquisition Collector before making the award, and that no notice of the award under section 12(2) of the Act was also issued to them at any stage.
18) They contended that they could not possibly know of the award having been made; that they came to know about passing of the award when they inquired from other land owners; and that the first time they came to know about passing of the award was 11.03.2002. They alleged that they immediately made an ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 7 application for obtaining certified copy of the award, which was made available on 13.02.2002.
19) They also mentioned that they had separately made an .
application on 14.07.2001, which was received by the Collector on 24.07.2001, but no response was given to it and it was ordered to be filed.
20) According to them, the period of six months for making of application seeking reference under Section 18 of the Act would commence from the date they had actual or constructive rt knowledge of making of the award; and mere knowledge of making of the acquisition, or the pendency of acquisition proceedings, or issuance of notifications under Sections 4 & 6 of the Act, would not constitute either actual or constructive notice of making of the award.
The stand of the Defence estate Officer ( respondent no.1)
21) After the reference was made to the Court of Additional District Judge-III, Kangra at Dharamshala, the Defence Estates Officer,Pathankot Circle, filed a reply on behalf of the Union of India, stating that the land was not acquired for defence use but was acquired by Airport Authority of India to establish/construct their civil enclave/terminals. They also stated that the Ministry of Civil Aviation is the concerned authority and the Ministry of ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 8 Defence is not a necessary party and they should be deleted from the array of party.
The stand of Airport Authority of India (respondent no.2) .
22) Respondent no.2, i.e. the Airport of India, filed a reply, stating that the application under Section 18 of the Land Acquisition Act, was time barred.
23) It also contended that the appellants did not have any right to of claim any compensation.
Stand of the State of Himachal Pradesh rep. by the Collector,
24) rt Kangra (respondent no.3) The State of Himachal Pradesh through the Collector, Kangra District, which is the 3rd respondent in the appeal, filed a reply admitting the status of the petitioners-appellants as lessees (in Para-2 of their reply).
25) They stated that the 2nd appellant is described by the appellants as Narinder Nath s/o Sh. Ram Ditta, but he is actually the son of Sh. Onkar Nath.
26) It was denied that the appellants were running a partnership business in the name & style of M/s Kangra Bajri Company Damtal for want of knowledge.
27) It is then stated that the registered lease deed relied on by the appellants being document no.297 dt. 10.09.1985 is a forged document.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 928) It was however admitted that application under Section 9 of the Act had been filed on 16.04.2001 on behalf of the appellants before the Land Acquisition Collector, claiming Rs.6 crores as .
compensation.
29) It was denied that the appellants were entitled to 75% of the assessed compensation after apportionment with the land owner, and it is stated that the appellants were not entitled to any of compensation on account of displacement and loss of business.
30) A strange plea is raised that since the appellants had been heard rt by the Land Acquisition Collector in support of their claim on 16.04.2001 itself, and so there was no legal necessity to issue them a separate notice after the award was made. It was further stated that notice under Section 12(2) of the Act was also not required to be issued.
Rejoinder filed by the appellants in the Reference Court
31) Rejoinder was filed thereto by the appellants admitting that the description of the 2nd appellant was Narender Nath s/o Onkar Nath, as claimed the by the 3rd respondent.
32) It was denied that the registered sale deed dt. 10.09.1985 executed in favour of the firm M/s Kangra Bajri Company Damtal was a forged document.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 1033) It was contended that the appellants had not been heard and their claim was not properly addressed before the same was disposed of by the Land Acquisition Collector. They also stated that there .
was legal necessity to issue to the appellants a separate notice under Section 12(2) of the Act after the award had been made.
34) It was also denied that the reference petition was time barred.
Other events before the Reference court of
35) Before the Court of the Additional District Judge, the appellants examined PW-1 to PW-4 and marked Ex.PW-2/A to Ex.PW-4/A, rt while the respondents examined RW-1 to RW-3 and marked Ex.RW-1 & Ex.RW-1/A to Ex.RW-2/B. The impugned judgment of the Additional District Judge in the reference.
36) The Reference Court/ the Additional District Judge held that the 1st respondent was an unnecessary party and the 2 nd respondent was the necessary party.
37) The Additional District Judge held that though the appellants had contended that registered lease deed dt. 10.09.1985 was executed in their favour, the said lease deed had not been produced by them to prove the fact that they are in possession of the land acquired as "lessees".
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 1138) He also held that petitioner no.2, who was examined as PW-3, had also stated that he had not produced the registered lease deed or copy of the Jamabandi to show their possession nor any .
record had been produced to show that they are partners in M/s Kangra Bajri Company, Damtal and that the said Company was doing work on the acquired land.
39) The Additional District Judge held that it was for the appellants of to prove the existence of said Company of the appellants and possession of the appellants on the acquired land, since the rt respondents were denying the existence of the Company and the possession of the appellants on the acquired land as "lessees".
40) He also blamed the appellants for not producing the award dt. 27.06.2001 passed by the Land Acquisition Collector, though the same is part of the record of the said Court. However, in the later part of his judgment, he noticed that the said award was produced and is on record and that it was admitted by the parties, though not exhibited.
41) The Additional District Judge noted that correct description of the 2nd appellant was not mentioned since he was really the son of Onkar Nath and not the son of Ram Datta, and concluded that the averments of the reference petition itself were not correct.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 1242) According to him, the award indicates that before the Land Acquisition Collector, appellants had filed a written claim that they have rights in the acquired land and he had rejected their .
claim.
43) From this, he concluded that the appellants were knowing about the proceedings and they joined the proceedings before the Land Acquisition Collector; and since the award was passed on of 27.06.2001, it was the duty of the appellants to seek reference within six months of the award, i.e. before 27.06.2012 (sic.
rt 27.12.2001) as required under Section 18(2) of the Act. Since they have filed the application for reference on 18.03.2002 after lapse of six months, the reference petition itself is barred by limitation.
44) He rejected the plea of the appellants that they had no notice of the passing of the award by the Land Acquisition Collector by stating that the award shows that written claim was filed by the appellants and this was decided on merits after considering the same; that appellants participated in the proceedings before the Land Acquisition Collector and the award shows that their claim was decided on merits; and it gives rise to inference that the appellants were present at the time of the award. He also stated ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 13 that no evidence has been led by the appellants to show that they were not knowing about the award.
45) He then went on to hold that the Land Acquisition Collector had .
paid compensation on the basis of one year market value of land and adequate compensation had been awarded, but no sale deed of land of the same Mohall had been filed by the appellants to show that the value of the land is more than the given of compensation and assessed by the Land Acquisition Collector.
46) He held that the appellants failed to prove that the land was not rt correctly assessed for compensation and inadequate compensation had been granted.
47) He even held that the appellants did not prove that they have taken the acquired land on lease, that no interest had been granted as per law and they had no cause of action to seek reference.
The instant RFA
48) Challenging the said award, this RFA had been filed by the appellants.
Contentions of appellants
(a) The impugned judgment passed by the Additional District Judge is contrary to evidence on record and law and is perverse;
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 14(b) The reasons given by the Land Acquisition Collector for denying compensation to the appellants are perverse and has caused miscarriage of justice, and as such, the said .
award was required to be modified by the Additional District Judge;
(c) The Additional District Judge failed to note that the 3rd respondent had admitted that the appellants were of Pattadars in possession and that they were tenants; and erred in holding that the appellants had not been in rt possession of the subject land or that they were not partners of M/s Kangra Bajri Company;
(d) The Additional District Judge erred in holding that the appellants had not produced the award, without appreciating the fact that the appellants were not made aware of the passing of the award by the Land Acquisition Collector;
(e) The Additional District Judge erred in coming to the conclusion that the appellants had knowledge about the proceedings as they had joined the proceedings before the Land Acquisition Collector; and for that reason inferring that they had knowledge of passing of the award on 27.06.2001, though they were not present at the time of ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 15 passing of the award, and no notice under Section 12(2) of the Act had been issued to them by the Land Acquisition Collector;
.
(f) The Additional District Judge erred in holding that the reference petition is barred by limitation; &
(g) The Additional District Judge erred in not enhancing the compensation.
of Contentions of the respondents
49) The Deputy Solicitor General of India, appearing for the 2nd rt respondent and the Additional Advocate General, appearing for the 3rd respondent, refuted the said contentions and supported the order of the trial Court.
50) Vide a separate order passed today we had allowed CMP.NO.14182 of 2021 filed by the appellants under order 41 Rule 27 CPC for adducing additional evidence and the said exhibits are marked as Ex.A1 to A.25.
Consideration of the merits
51) We shall first consider the question whether the appellants have interest in the subject land to enable them to seek a reference under Section 18 of the Land Acquisition Act or not.
52) The fact that the Land Acquisition Collector, Nurpur had himself issued a notice to the appellants under Section 9 of the ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 16 Act, accepting them as "persons interested" as defined under Section 3 (b) of the Act is clear from the copy of the award dt.
27.06.2001 passed by him.
.
53) He specifically referred in the said award to the fact that the appellants had even produced a copy of the lease deed.
54) Even the 3rd respondent in his reply filed before the Additional District Judge, at Para-2, admitted the status of the appellants as of lessees in the subject land.
55) The appellants have now filed as additional evidence the rt certified copy of the regd.lease deed executed in their favor by the Mahant of the Temple, Damtal as Ex.A-9. It shows they were tenants of the land owner Mandir, Damtal and that the tenancy is for 50 years from 1985 to 2035.
56) The record of the Land Acquisition Collector forwarded to the Reference court itself shows that a copy of the regd.lease had been produced before the Land Acquisition Collector and even the Jamabandi was available before him . This shows the possession of the appellants 1-4 of the subject land as lessees.
57) When the possession of appellants as lessees of the subject land had even been admitted by respondent No.3 in it's reply filed before him (in para 2), the Additional District Judge could not have held that they have no possession of the subject land as ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 17 lessees on account of on-production of the lease deed and Jamabandi before him by the appellants. He could not have ignored the admission of the respondent no.3 in their plea that .
appellants were lessees of the subject land and were in possession thereof.
58) The partnership deed of M/s Kangra Bajri Company was no doubt not produced by the appellants, but the lease was not in of favor of the said firm but in favor of the appellants 1-4. The appellants have filed as additional evidence Ex.A-25 showing rt that such a firm existed and they were partners.
59) The fact that the firm was doing extraction of stones, bajri, sand etc., was spoken to by PW2 and PW3 in their evidence. They even clarified the correct description of appellant No.2 as son of Sh.Onkarnath and not as son of Sh.Ram Ditta. This was a mere error in description of appellant No.2 and once it was clarified by the appellants themselves, he could not have held that averments in the Sec.18 application were incorrect.
60) The respondent No.3 though pleaded that the regd.lease deed was forged did not adduce any evidence in that regard before the Reference court/Additional District Judge. So the genuineness of the said lease deed cannot be doubted.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 1861) In Meher Rusi Dalal v. Union of India1, the Supreme court declared that under Land Acquisition Act,1894, a tenant would be entitled to share in compensation. It held:
.
"18. Of course if the respondents had a right as tenants they would be entitled to share in the compensation."
62) In Union of India v. A. Ajit Singh2, the Supreme Court had discussed the principles governing apportionment of compensa-
of tion between a landlord and a tenant in the following terms:
" 7. ....The right of tenancy is a right under which a tenant is rt entitled to enjoy the possessory title and enjoyment of the leased land subject to covenants relating to ejection after due determination of tenancy. It is seen that the lease was granted in 1949 and it was terminated in 1960 and the acquisition was initiated in 1967 on which date he continued to be in posses-
sion of the property; therefore, this Court has to consider the apportionment of the compensation on that basis. The judgment in Mangat Ram v. State of Haryana31 relates to the commer- cial premises which was acquired by the Government and the apportionment of the compensation was made at 75% and 25% to the tenant and the landlord respectively. It was challenged by the landlord for full payment. In that perspective, this Court up- held the grant of the apportionment at 75% and 25% to the ten- ant and the landlord respectively.
8. The case of Inder Parshad v. Union of India4 relates to the acquisition of the nazul land in respect of which lease was granted for 99 years to the tenant. On reference under Section 1 (2004) 7 SCC 362, at page 370 2 (1997) 6 SCC 50, at page 52 3 (1996) 8 SCC 664 4 (1994) 5 SCC 239 ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 19 30, the Reference Court had apportioned the compensation @ 2/3rd and 1/3rd to tenant and landlord respectively. That order was modified on appeal by the High Court at 75% and 25% re-
spectively. The State did not file any appeal; the tenant claimed .
the entire compensation in the appeal. This Court upheld the determination at 75% and 25% between the tenant and the landlord respectively.
9. In Col. Sir Harinder Singh Brar Bans Bahadur v. Bihari Lal5 since under the Tenancy Act, the tenant is entitled to the entire land, this Court held that the tenant is entitled to the to-
of tal compensation and the landlord is not entitled to any com- pensation. In view of the fact that the appellant is challenging the apportionment, we think that 60% of the compensation to rt the tenant would be justified. The Court is required to take into consideration relevant factors, viz., the duration of the lease, the nature of the right to enjoyment of the leasehold interest and the improvements the tenant made on the land etc. It is equally settled law that if the Government is the owner of the land, before initiating the acquisition, it is entitled to terminate the lease and take possession of the lands in terms of the lease. Necessarily, in the above case the tenant cannot have any right to compensation as he is bound by the terms of the lease. In a case where the Government, in spite of the covenant contained in the sale deed, chooses to acquire the land, necessarily the tenancy right of a tenant is required to be assessed and the compensation has to be awarded suitably. In view of the fact that the lease is for 99 years and the part of the lease has been enjoyed for a period of 18 years, we think that the apportion- ment of the compensation in the ratio of 60% to the tenant and 40% to the landlord would be a reasonable ratio and payment should accordingly be made."
5(1994) 4 SCC 523 ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 20
63) However we are not expressing any opinion in the instant appeal about the ratio of compensation which the appellants should get in view of the course of action adopted by us in this case as will .
be indicated below. Suffice it to say that the appellants cannot be denied a share in the compensation awarded for the above subject land.
64) The Land Acquisition Collector had rejected their claim for of compensation not on the ground that they were not tenants or on the ground that they were not in possession, but on the ground rt that the extent of the land in their possession as tenants is only a very small part of the land which was acquired. This is perverse because no matter what the extent of land leased to them is, the appellants cannot be deprived totally of a share in the compensation.
65) One of the reasons assigned by the Additional District Judgefor denying the appellants a share in the compensation was that the Land Acquisition Collector had rejected their claim. This cannot, in our opinion, be a valid ground to reject their claim for compensation, if the reason given by the said authority is perverse.
66) Next we shall deal with the question whether the reference petition filed on 18.03.2002 by the appellants seeking reference ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 21 under Sections 18 & 30 of the Act in respect of award passed on 27.06.2001, is barred by limitation, as held by the Additional District Judge or not.
.
67) Section 18 of the Land Acquisition Act, 1894, states as under:-
"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 of 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 rt 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."
68) According to the proviso (a) of sub-Section (2) of section 18, if the person making application was present or represented before ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 22 the Collector at the time when he made his award, then the application for reference should be made within six weeks from the date of the Collector's award.
.
69) In the instant case, the award itself does not indicate that anybody was present or represented when the Collector made the award. Therefore, the appellants' seeking a reference under Section 18 of the Act within six weeks' period from the date of of the Collector's award cannot arise.
70) In other cases, the proviso (b) of sub-Section (2) of section 18 rt requires that application for seeking reference should be made within six weeks of receipt of notice from the Collector under Section 12(2) of the Act, or within six months from the date of the Collector's award, whichever period shall first expire.
71) Admittedly, no notice under Section 12(2) of the Act was issued by the Land Acquisition Collector, Nurpur, to the appellants. In fact, the stand in the reply filed by the respondents before the Additional District Judge was that he need not issue such a notice at all to the appellants.
72) Proviso (b) to Section 18(2) of the Act, no doubt mentions that the six months' period is to be counted from the date of Collector's award.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 2373) But the said provision has been interpreted by the Supreme Court in Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and another6, wherein, it was held as .
under:-
"5. .....Therefore, if the award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property then the making of the award as of properly understood must involve the communication of the offer to the party concerned. That is the normal requirement under the contract law and its applicability to cases of award rt made under the Act cannot be reasonably excluded. Thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words 'the date of the award' occurring in the relevant section would not be appropriate.
6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of 6 AIR 1961 SC 1500 ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 24 the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the .
physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it it can be said to be of made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said rt to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present, the award can be said to be made when it is communicated to the party later. 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 Section 18 in a literal or mechanical way."
(emphasis supplied) ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 25
74) Again in State of Punjab vs. Qaisar Jehan Begum & another 7, it was held as under:-
"5. .........It seems clear to us that the ratio of the .
decision in Harish Chandra's case (supra) 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 of 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 rt 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. ......" (emphasis supplied)
75) In Parsottambhai Maganbhai Patel vs. State of Gujarat through Deputy Collector, Modasa & Anr.8, and in M/s Steel Authority of India Ltd. vs. SUTNI Sangam & Ors.9., these principles were followed and reiterated.7
AIR 1963 SC 1604 8 (2005) 7 SCC 431 9 (2009) 16 SCC 1 ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 26
76) In Bhagwan Dass & Others vs. State of Uttar Pradesh & Others10, after considering the above judgments, the Supreme Court held as under:-
.
"24. When a land is acquired and an award is made under Section 11 of the Act, the Collector becomes entitled to take possession of the acquired land. The award being only an offer on behalf of the Government, there is always a tendency on the part of the Collector to be conservative in making the of award, which results in less than the market value being offered.
25. Invariably the land loser is required to make an rt application under Section 18 of the Act to get the market value as compensation. The land loser does not get a right to seek reference to the civil court unless the award is made. This means that he can make an application seeking reference only when he knows that an award has been made.
26. If the words six months from the "date of the Collector's award" should be literally interpreted as referring to the date of the award and not the date of knowledge of the award, it will lead to unjust and absurd results. For example, the Collector may choose to make an award but not to issue any notice under Section 12(2) of the Act, either due to negligence or oversight or due to any ulterior reasons. Or he may send a notice but may not bother to ensure that it is served on the land owner as required under Section 45 of the Act. If the words `date of the Collector's award' are literally interpreted, the effect would be that on the expiry of six months 10 (2010) 3 SCC 545 ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 27 from the date of award, even though the claimant had no notice of the award, he would lose the right to seek a reference. That will lead to arbitrary and unreasonable discrimination between those who are notified of the award .
and those who are not notified of the award.
27. Unless the procedure under the Act is fair, reasonable and non-discriminatory, it will run the risk of being branded as being violative of Article 14 as also Article 300A of the Constitution of India. To avoid such consequences, of the words `date of the collector's award' occurring in proviso
(b) to Section 18 requires to be read as referring to the date of knowledge of the essential contents of the award, and not the rt actual date of the Collector's award.
28. The following position therefore emerges from the interpretation of the proviso to Section 18 of the Act :
(i) If the award is made in the presence of the person interested (or his authorized 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 authorized 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.::: Downloaded on - 21/12/2023 20:37:35 :::CIS 28
(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." (emphasis supplied)
77) In view of the aforesaid judgments, it is important that there of should be knowledge attributable to the appellants of the essential contents of the award and not merely the actual date of rt the Collector's award. There is no evidence adduced by the respondents on this aspect.
78) In the instant case, the question of constructive knowledge of the award cannot be presumed as has been done by the Additional District Judge from the mere fact that the appellants' application under Section 9 of the Act had been considered by the Land Acquisition Collector in his Award no.1 of 2001 passed on 27.06.2001, or that they had participated in proceedings before the Collector on 16.4.2001.
79) This is because unless the final award of the Land Acquisition Collector is made known/communicated to the appellant in a manner known to law, they would not know the contents of the same in order to decide whether or not to seek a reference.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 2980) Therefore, we hold that the Additional District Judge erred in holding that the application seeking reference made by the appellants was barred by time.
.
81) Therefore, the judgment and decree passed by the Reference Court/Additional District Judge Kangra-III at Dharamshala, in RBT Reference Case No.11-I/2005/03 dt. 06.08.2013 cannot be sustained and is set aside and the RFA is allowed subject to the of following directions.
82) Having regard to the findings recorded above, we are of the rt considered opinion that (a) the portion of compensation which the appellants are entitled to and (b) the question of enhancement of compensation, if any, is required to be considered by the trial Court afresh.
83) We therefore allow this RFA and remand the matter to the Additional District Judge-III, Kangra at Dharamshala in exercise of our power under Order 41 Rule 25 CPC, to decide the following issues:-
(a). What share in the compensation for the acquisition of the subject land the appellants are entitled to; &
(b). Whether any case has been made out by the appellants for enhancement of compensation for the subject land in their occupation which has been acquired by the respondents.::: Downloaded on - 21/12/2023 20:37:35 :::CIS 30
84) All the parties are permitted to lead evidence on these aspects and the Additional District Judge shall return the evidence to this Court together with his findings and the reasons thereon by .
31st July, 2024.
85) List on 1st August, 2024.
(M.S. Ramachandra Rao)
Chief Justice
of
(Jyotsna Rewal Dua)
December 21, 2023 rt Judge
(Yashwant)
::: Downloaded on - 21/12/2023 20:37:35 :::CIS
31
Appendix of additional evidence allowed vide separate order dt. 21.12.2023 in CMP.No.14182 of 2021 Exhibits Particulars Ex.A-1. Certified copy of award dt. 06.03.1985 in .
Arbitration Case no.23 of 1984, titled Balwant Singh vs. Union of India.
Ex.A-2 Certified copy of order dated 17.12.2008, passed by the High Court of Punjab & of Haryana in FAO No.834 of 1085, in case titled as Balwant Singh & Others vs. U.O.I. & Ors. Ex. A-3 rt Certified copy of order dt. 15.10.2012, passed by the Supreme Court of India in SLP, titled as U.O.I. & Ors. vs. Balwant Singh & Ors.
Ex. A-4 Uncertified copy of award dt. 22.09.1983, passed by the Arbitrator (Additional District Judge, Shimla, in Reference no.25 of 1978/1 of 1983 (Mandir Dhamtal & Anr. Vs. Union of India) Ex. A-5 Certified copy of judgment dt. 08.01.1991 in FAO no.257 of 1983 (U.O.I. vs. Mandir Damtal & Others), passed by the High Court of Himachal Pradesh, Shimla. along with uncertified copy of award dated 12.09.1983, in RefeerenceNo.25 of 1978/1 of 1983, (Mandir Damtal & Anr. vs. U.O.I.), Ex. A-6 Certified copy of Jamabandi for land in Village Beli Mahanta which was acquired for construction of Military Hospital Pathankot.
::: Downloaded on - 21/12/2023 20:37:35 :::CIS 32Ex. A-7 Copy of Aks Shajra in Village-Beli Mahanta, Tehsil Indora, District Kangra.
Ex. A-8 Copy of certified copy of judgment dt.
21.09.2001 in CWP no.438 of 1999 .
(Harbhajan Singh vs. State of H.P. & Others), passed by the High Court of Himachal Pradesh along with Un-certified copy of report of Deputy Commissioner, Kangra dt. 04.01.1999.
of Ex. A-9 Copy of certified copy of registered Lease Deed dt. 10.09.1985 registered with the Registrar Nurpur, H.P. in favour of Ashwani rt Kumar, Narender Nath, Gagan Singh and Chhaya Katoch.
Ex. A-10 Copy of Jamabandi for the Year 1995-96 of Village Damtal, Tehsil Indora, District Kangra, Khewat No.62, Khatauni No.08, showing Mandir Damtal as owner and Ashwani Kumar & Others in possession on the basis of Lease Deed for area acquired for the construction of Civil Airport Pathankot, Kh.10, 11, 12, 19 & 21. Ex. A-11 Certified copy of Temple Commissions Reference Petition No.1/16/03 Regd. No.4/2014, date of decision 2/8/2017. Land acquired for construction of Pathankot Airport (Civil).
Ex. A-12 Copy of award dt. 15.02.2012, passed by Additional District Judge, Gurdaspur, in LAC ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 33 Case no.10 of 25.03.2004 (Jagir Singh vs. Chairman Airport Authority of India & others), land acquired for the construction of Pathankot Airport (Civil)-Land, falling in .
Punjab.
Ex. A-13 Certified copy of award dt. 01/2006-2007, passed for the acquisition of land of Village- Channi, Khanpur, Milwan, Tamota, Surajpur- Jikla, Sirat, Damtal, Mohtali, Reserved Forest of Damtal and Village Bhadroya, for broadening of NH-1-A, Village in Tehsil Indora, District rt Kangra, H.P. Ex. A-14 Certified copy of order dt. 10.01.2020 in Case No.280/2007, titled Madhan Singh vs. U.O.I, passed by Divisional Commissioner, Kangra (Arbitrator). Award passed for the construction of NH-1A at Village Khanpur (under Appeal) in Tehsil Indora, District Kangra, H.P. Appeal arising out of Award dt. 01-2006-2007.
Ex. A-15 Copy of Jamabandi 2001-2002 Kh. no.11 to Kh.20 depicting land acquired for construction of Pathankot Civil Airport of Mandir Damtal in Village-Damtal, Tehsil Indora, District Kangra. Land acquired of Mandir Damtal.
Ex. A-16 Copy of AksChajra prepared by Patwari Damtal depicting the distance between land acquired of Mandir Damtal in Village-Damtal, Tehsil Indora, District Kangra, H.P., for ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 34 Pathankot Airport - Kh. no.11 to Kh.20 and Kh. no.1661 i.e. land acquired of Madir Damtal in Village-Damtal for the construction of NH-1-A. .
Ex. A-17 Copy of Jamabandi for the Year 2015-2016 of Kh. no.1661 showing the area was acquired by PW Department NH-1 of Mandir Damtal. Land as shown in AKS CHAJRA.
of Ex. A-18 Copy of Notification 3A & 3B for the Village Daulatplur, Tehsil Pathankot, Punjab, for the construction of NH-1A in Village Daulatpur, rt Tehsil Pathankot, Punjab. (National Highways Authority).
Ex. A-19 Certified copy of order passed by the Arbitrator, Divisional Commissioner, Jalandhar, in Case no.MA 1995 of 2011 fixing the rate of land in Village Daulatpur, Punjab, @ 7,00,000 per marla decided on 09.12.2012.
Ex. A-20 Copy of judgment dt. 30.03.2016 in FAO no.7390 of 2014 (U.O.I. and Anr. vs. Jugal Kishore & Others), passed by the High Court of Punjab & Haryana, justifying and fixing the award of Rs.4,50,000/- per marla for construction of NH-1A in Village Daulatpur, District Pathankot, Punjab.
Ex. A-21 Certified copy of order passed by the Supreme Court of India in Case of Union of India vs. Tarsem Singh, Civil Appeal no.7064 of 2019, ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 35 endorsing the rate of Rs.4,50,000/- per marla in Village Daulatpur, District Pathankot, Punjab, discussed as ground no.4 at page 35 of the judgment.
.
Ex. A-22 Jamabandi for the year 2013-2014, Hadbast no.331 of Village Daulatpur, Tehsil and District Pathankot, bearing Kh. no.1036 to Kh. No.1053, land acquired for the construction of National Highway (NH-1A).
of Ex. A-23 AKS CHAJRA of Village Daulatpur, Tehsil & District Pathankot, bearig Kh. no.1036 to Kh. rt No.1053, land acquired for the construction of National Highway (NH-1A). Also showing the boundary of Village Damtal (H.P.) and Village Daulatpur, District Pathankot, Punjab (adjoining villages).
Ex. A-24 Copy of site plan showing the location of land acquired for construction of Civil Airport Pathankot in Village & Mauza Damtal, Tehsil Indora, by Varinder Salaria (DACH), Building Designer & Estimator. Showing the distance from land acquired for the Pathankot Airport (Civil) from NH-1A in Punjab and also showing the distance of land acquired for NH- 1A and Pathankot Airport Civil in Himachal Pradesh.
Ex. A-25 Copy of record in case titled Income Tax Case ITA no.32 of 2003 (Commissioner of Income ::: Downloaded on - 21/12/2023 20:37:35 :::CIS 36 Tax vs. Sh. Gagan Singh Katoch). Showing the income derived by Sh. Ganga Singh (Gagan Singh) Katoch from M/s Kangra Bajri Company, Village and Post Office Damtal, .
Tehsil Indora, District Kangra, for the Assessment Year 1985-86 to Assessment Year 1993-94.
of rt ::: Downloaded on - 21/12/2023 20:37:35 :::CIS