Calcutta High Court
Sambhu Nath Kshetry And Ors. vs State Of West Bengal And Ors. on 28 August, 2001
Equivalent citations: (2002)1CALLT170(HC)
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. The petitioners were interested in the award as a co-sharer in respect of the award declared jointly in favour of all the co-sharers without apportionment by the Collector. The Collector deposited the amount under Section 31(2) of the Land Acquisition Act 1894 in the Court. The learned Land Acquisition Judge had apportioned the amount between the co-sharers. While the other co-sharers had applied for reference under Section 18 within the time provided under proviso to Sub-section (2) of Section 18. The petitioner had made such application after the apportionment and allegedly after having withdrawn the money so apportioned. The Land Acquisition Collector had rejected the said application under Section 18 by an order date 19th June, 2000, which has since been challenged in this petition.
2. Mr. Dasgupta, the learned counsel for the respondents had contended that the petitioner had produced the original deeds on 2nd September. 1998 and hearing took place on 15th September, 1998, in which the petitioner was present. Joint award was declared on 23rd October, 1998. On 20th May, 1999 the Collector had deposited the amounts under Section 31(2) before the Land Acquisition Judge. By a notice dated 16th June, 1999, annexure P-2 to the writ application, the petitioners were informed about the joint award. The said intimation was received by the petitioners on 22nd June, 1999. The petitioners had also made 2 applications before the learned Land Acquisition Judge praying for apportionment of the award among the co-sharers. On 18th November, 1999 the learned Land Acquisition Judge allowed the apportionment and permitted to withdraw the amount and that the amount have been believed to be withdrawn by the petitioners. On 29th December, 1999 the petitioners filed two applications before the Collector seeking a reference to the learned Land Acquisition Judge. On I9th June, 2000 the Collector as mentioned above, had rejected the said applications.
3. According to Mr. Dasgupta, even though the petitioners might not have received the notice under Section 12(2) but the petitioners had knowledge of the award on receipt of the notice dated 16th June, 1999 on 22nd of June, 1999. Therefore, the limitation as provided in Sub-section (2) of Section 18 will start running on and from 22nd June, 1999. Thus the application for reference made on 22nd December, 1999 is out of time and Collector has no jurisdiction to refer the same. Therefore, the order was rightly passed rejecting the application. Elaborating his submission he contended that there is no provision for condoning the delay. At the same time, Collector is the only authority who can make the reference. Alternatively, he contended that as soon he participated in the proceedings under Section 31(2), knowledge of the petitioners shall be deemed to have been acquired. Therefore, the petitioner cannot get the benefit of such application having been made after the time had expired. He had also relied on various decisions in support of his contention to which reference would be made at appropriate stage.
4. Mr. Bera, learned counsel for the petitioners, on the other hand, contended that the reference under Section 31 is not a reference under Section 18 and the learned Land Acquisition Judge cannot go beyond the award and question the quantum of the award. He is only concerned With the question of apportionment. He contends that it is only the date of knowledge from which the limitation would run when the award is not declared in his presence. Admittedly, no notice under Section 12(2) was served on the petitioners. As such Clause (b) of Section 18(2) would be applicable, which is six months from the date of knowledge. He then contends that the date of knowledge must be the knowledge of the contents of the award. If a notice under Section 12(2) is served in that event it should be deemed to be the knowledge of the contents of the award. In the absence of any notice under Section 12(2) the notice dated 16th June, 1999 which does not contain the details of the award, cannot be treated to be a notice equivalent to a notice under Section 12(2) nor the receipt of such notice would be treated to be the knowledge of the contents of the award. By means of a Supplementary affidavit he had pointed out that only after inspection of the records the knowledge of the award could be deciphered on 10th August, 1999 as pleaded in paragraphs 6 and 7 of the Supplementary affidavit. Thus the application having been made on 29th June. 1999 is well within six months from 10th August, 1999 and as such the order dated 19th June, 2000 rejecting the reference on the ground of limitation cannot be sustained. He had also relied on some decisions in support of his contention to which reference would be made at appropriate stage.
5. I have heard the respective counsel at length.
6. Admittedly, the reference for apportionment under Section 30 may also be made through a reference under Section 18. But in this case, the reference has not been made under Section 18 nor was it a reference under Section 30. Admittedly, it was a case covered under Section 31 (2) of the said Act which is apparent from the records of the case. Neither Mr. Dasgupta has contended otherwise.
7. Section 31(2) entires the Collector to deposit the amount of the award to the Court, to which the reference under Section 18 lies, on any of the grounds provided in Sub-section (2). Dispute as to apportionment is also one of the grounds for depositing such amount. Thus a deposit under Section 31(2) is not a reference within the meaning of Section 18. Therefore, the learned Land Acquisition Judge, while exercising jurisdiction under Section 31(2) of the said Act cannot go beyond the award nor can it question the quantum, as was held is Kothamasu Kanakarathamma and Others v. State of Andhra Pradesh and Others, .
8. The Land Acquisition Judge had apportioned the amount between the co-sharers which might have been withdrawn. However, it is contended by the petitioner that he has withdrawn on protest.
9. The reference under Section 18 is to be made before the Collector. The expression used in Sub-section 2 of Section 31 'the Court to which the reference under-sectlon 18 would be submitted' refers only to the Court where the amount is to be deposited under Section 31. It does not imply making of reference under-section 18 before the Court.The second proviso to Sub-section 2 of Section 31 also does not Indicate making of application for reference in the Court. Both in Sub-section 2 and in the second proviso reference under-section 18' an application under-sectlon 18' refers to Section 18 Itself. It clearly indicates that reference is to be made under-Section 18. Section 18 postulates making of application for reference before the Collector. By reason of this expression used in Section 31 the provision of Section 18 had never been intended to be affected. Neither the legislature have ever intended any making of application for reference within the scope of Section 31 before the Court. The provision of Section 31 makes it clear that even when Section 31 is resorted to Section 18 remains open. Section 18 requires making of application for reference without receiving the amount. Whereas Section 31 Implies making of application for reference even after receiving of the compensation but only on protest.
10. Section 18 prescribes a time limit for making an application for reference The said time limit runs from the date of making the award. It can not run from the date of apportionment or a decision under Section 31. Section 31 is a stage after the award is made. It is a stage when an award is made and the amounts are nor received by the parties interested. Thus, the limitation referred to in Section 18 starts running from the making of the award. It is not dependant on the situation contemplated under Section 31. Thus, the contention that the point of limitation would start from the date of the order passed under Section 31 is wholly out of place. It can not be contended that after the appointment the award is known to the party. It is only the share of the party in the award is determined under Section 31. It is not the making of the award which is already made. It resolves the dispute with regard to the share of parties in the award, after it is made.
11. Thus, it is the award made by the Collector which is the basis, and it is the date of making such award from which the time limit runs, for making the application for reference before the collector and not elsewhere. There is a marked distinction between the provisions of Section 30 and Section 31. Section 30 is a stage before the award is made finally by the collector and it can be made suo mo(o by him. Whereas Section 31(2) deals with a stage after the award is made. Similarly Section 18 deals with reference after the award is made upon application by a person (Saibash Chandra Sarkar v, Sri Vijay Chand Mahapat AIR 1922 Calcutta 4; 26 CWN 506: 65 1C 711).
12. When the claimant is not served with the notice under-section 12(2) an application under-section 18 can be filed within six months from the date of knowledge of the award. Jaswant Rai v. L.A. Collector ; K. Seshachalam v. District Collector, Guntur 1955 Andhra WR 772. A person having received compensation under protest is entitled to make a reference under-section 18(2) proviso (b) within six months from the date of knowledge where notice under Section 12(2) has not been served. Receipt of certified copy has no relevance when a notice under-section 12(2) is served and a reference is to be made within six weeks. Since receipt of certified copy would amount to a knowledge from which six months is the limitation but as soon as a notice under-section 12(2) is served the question of knowledge records to the limitation of six weeks, (State of Punjab v. Satindar Bir Singh ,).
13. The object of service of notice under-section 12(2) is to communicate to the person the news of the award and the contents thereof. An obligation is cast on the collector not merely to intimate the information of the passing of the award but also to communicate the essential contents of the award, if not a copy of the award, (Rajat Hira Bhai, Moti Bhai v. Deputy Collector Land Acquisition Panam Project, Godhara ).
14. Now the question that arises is the question of limitation under Section 18. Section 18 prescribes in Sub-section (2) in Clause (a) that if the person is present or represented before the Collector when the award is made, the time for making application under Section 18 before the Collector is six weeks from the date of the award. While Clause (b) provides the period would be six weeks from the date of receipt of a notice under Section 12(2) of the said Act from the Collector or within six months from the dale of the Collector's award whichever first expire. Now the apex Court had held that this six months from the date of the award is to be treated from the date of the knowledge of the award and such knowledge is meant to be knowledge of the contents of the award. It has to be found out from the notice itself whether the notice was sent disclosing the contents of the award or it was possible for the claimant to gather the knowledge with regard to the contents of the award from the notice. It could have been gathered from the notice under Section 12(2) and then it was six weeks from the date of receipt. Since there was no notice under Section 12(2), admittedly, as was pointed out is the order dated 19th June, 2000 by the Collector himself, the period would be six months from the date of the award. is State of Punjab v. Mst. Qaisar Jehan Begam and Another the apex Court had held that period of six months is to be calculated from the date of the knowledge of the award and not from the date of the award. Inasmuch as unless there is a knowledge of the award by the claimant, the period cannot be said to have been running from the dale of the award. These proposition appears to be a settled proposition of law with which Mr. Dasgupta had not joined issue. He had only relied on the facts in order to contend that the petitioner had knowledge of the award having received the notices dated 22nd June, 1999 or by reason of his participation in the proceedings before the learned Land Acquisition Judge. Moreover, he had relied on the decision is the case of Mohammed Hasnuddin v. State of Maharashtra reported is in order to contend that this Court cannot go Into the question with regard to the limitation once the time is found to have expired since Section 5 of the Limitation Act has no manner of application and the Court cannot go beyond the reference to verify whether the application for reference was filed within the prescribed period. This question is not relevant for our present purpose since in this case the reference has not yet been made. On the other hand, it is yet to be made. Therefore, at this stage, while exercising writ Jurisdiction, this Court can look Into the question as to whether the Collector was right is refusing the reference on the ground that the application was not made within the time. In other wards, if made1 within time, the Collector can not refuse a reference. Therefore, it is a question of exercising the statutory obligation by the collector. Court in exercise of writ jurldlction, very well examine whether the collector has discharged his statutory obligation. Section 18 confers a legal right to seek a reference by a claimant. It can not be denied if made within time. Therefore, the above decision has no manner of application is this case.
15. He then refers to the decision in Jaswant Rai v. Land Acquisition Collector, Punjab Urban Land Development Mohali and Others., reported is . This decision supports the contention of Mr. Bera to the extent that the six months period, in the absence of any notice under Section 12(2) when the claimant was absent at the time of declaring the award, would expire from the date of knowledge of the claimant with regard to the award. This decision does not support Mr. Dasgupta's contention for which it was cited.
16. Mr. Dasgupta has also cited the decision in Rajshekhar Babu v. Deputy Collector (Land Acquisition) Hyderabad and others, reported is in order to contend that though the notice may not be a notice under Section 12(2), yet if the notice mentions the amount of the award, in that event, it would be presumed to be the knowledge of the award by the Claimant. Therefore, in the present case, by reason of such" notice dated 19th June, 1999 received on 22nd June, 1999, the claimant had knowledge and cannot claim otherwise. This question requires to be examined which I will do at a later stage.
17. Mr. Dasgupta had also relied on a decision in Officer on Special Duty (Land Acquisition) and Another v. Shah Manilal Chandulal and Others. reported is , in support of his contention that the Collector while making reference under Section 18 acts as statutory authority and not as the Court and as such Section 5 does not apply. is the present case there is no application for Section 5 and the claimant/petitioner had never prayed for condonation of delay. Be that as it may, it is a settled proposition of law and as such it need no repeatltion.
18. Thus, now we are left only with the question as to whether the receipt of notice dated 16th June. 1999 received on 22nd June. 1999 would be treated to be the date of knowledge of the award. The decision in the Andhra Pradesh case Rajsekhar Babu, (supra), might have some implication. In the present case the Collector had proceeded on the said basis that the petitioner had knowledge from 22nd June, J999. The notices, however, mentioned the amount of the joint award. But it did not disclose anything else. Therefore, it has to be examined in the light of the decision in the case of Mst. Qaisar Jehan Begum and Another (supra). In the said case, it was held that the claimant must have knowledge with regard to the contents of the award. The knowledge 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. Thus contents may be known either actually or constructively. In the present case, only the amount of the award was made known to the petitioner. But nothing was disclosed as to whether what amount was to be paid to the authority under the Urban Land Ceiling and Regulation Act and what amount was payable to the petitioners or as to how the calculation was made on what was the area for which the award was declared. Admittedly, a part of the compensation was held by the Collector to be payable to the Urban Land Ceiling Authority. Thus, the content with regard to the measurement of the area as well as the quantum payable to the Urban Land Ceiling Authority or to the petitioner, are relevant factors relating to the contents of the award. These were not available from the notice dated 16th June, 1999. Therefore, in the light of the decision in Mst. Qaisar Jehan Begum and Another (supra). the said notice dated 19th June, 1999 cannot be treated to be a notice from which the petitioner could have gathered the contents of the award. I find that the statements made in paragraphs 6 and 7 of the supplementary affidavit having not been contradicted, the same should be the date of knowledge of the award, namely, 10th August. 1999 from which the reference was sought for within time, namely on 29th December, 1999 before the expiry of six months from 10th August, 1999.
19. Be that as it may, even if the application under Section 18 is rejected since the other claimants had made reference is respect of the same award within time and the said reference is pending before the learned Land Acquisition Judge, Section 28A would be attracted in the case of the petitioner if the reference succeeds and he may also claim the relief under Section 28A of the said Act. Therefore, it would be wholly a technical ground to refuse the relief under Section 18 even if it is held that the petitioner had acquired knowledge upon receipt of the notice dated 16th June, 1999 on 22nd June, 1999. In as much as is case the other claimants succeed in the reference in that event, the petitioner would also be entitled to its benefit under Section 28A.
20. The claimants who failed to apply for a reference under Section 18 are entitled to take the benefit under Section 28A for re-determination of the compensation. It excludes claims who sought for and secured a reference under Section 18 (Scheduled Castes Co-operative Land Owning Society Ltd. v. Union of India ). Section 28A is inserted to remove inequality is the payment of compensation for same or similar quality of land to different persons. It gives a further relief to seek re-determination of the compensation by Court when one of the claimants had secured higher compensation through Court. But it does not apply to a person who had made a reference. Section 28A is a complete Code in itself. It provides a substantive right to a person interested in the compensation under Section 11, not received or if he had received it with protest. The non-obstante clause leaves the rigour of the bar created by Section 18(1) and the second proviso to Section 31 and makes such person eligible at par with other claimant to receive similar compensation in respect of land covered by the same notification.
21. In Babuaram v. State of Uttar Pradesh , it was held that the making of an application beyond time is also a failure to make an application. When an application for reference is rejected, it is deemed that there was no application under Section 18. It is only when a valid reference is made an application of Section 28A is excluded. This decision was affirmed in Babuaram and Ors. v. State of Uttar Pradesh & Another . This remedy can be availed of before the Collector and is to be made within ninety days from the date of the award and is restricted to persons who did not apply for reference under Section 18, (Mewa Ram v. State of Haiyana . As observed earlier such person shall mean who had not only applied for but had also secured a reference, similar view taken in Sarbesh Kumar v. Slate of Punjab , wherein it was held that refusal to entertain an application to a collector as time barred is as good as application not made. In Hukam Chand and Ors. v. State of Haryana , it was held that application of Section 28A is included even when a person is unsuccessful after a reference is made.
22. For all these reasons, as discussed above, it appears that the petitioner had acquired knowledge on 10 August, 1999 and therefore, the application under Section 18 of the Land Reforms Act was made within time viz; six months time having been made on 29th July, 1999.
23. The writ petition is allowed. The order dated 19th June, 1999 impugned in this writ petition is liable to be quashed and Is, accordingly, quashed. Let a writ of certiorari do Issue accordingly. The Collector is here by directed to make the reference under Section 18 in terms of Section 19 within a period of four weeks from the date of communication of this order.
This application is thus disposed of.
There will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, office is directed to deliver the same within 7 days.
W.P. No. 2242(w) of 2001 Hearing concluded.
Mr. Dasgupta points out that he wants to look into the records in order or Interpret the decision cited in State of Punjab v. Mst. Quaisar Jehan Begum and Another, with reference to the record in order to justify the application of the ratio decided the reim, in the present case.
In the circumstances, let this matter be treated as "heard-in-part" and let it appear for further hearing under the heading "for orders" on Wednesday next (22-8-2001).