Gujarat High Court
Jasubhai Somabhai Patel vs State Of Gujarat & 2 on 11 July, 2017
Author: Biren Vaishnav
Bench: Akil Kureshi, Biren Vaishnav
C/SCA/2963/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2963 of 2017
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JASUBHAI SOMABHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIJAY N RAVAL, ADVOCATE for the Petitioner(s) No. 1
BHARGAV KARIA & ASSO, ADVOCATE for the Respondent(s) No. 3
MR PRANAV TRIVEDI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 11/07/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV)
1. By way of this petition under Article 226 of the Constitution of India, the petitioner challenges the communication dated 03.10.2016 by which the respondent no. 2 has rejected the application dated 14.09.2016 of the petitioner seeking to make reference under Section 18 of the Land Acquisition Act, 1894 ('the Act' for short). The ground on which such application has been rejected is that though the award was published on 24.04.2006, the application for making a reference was not made within the time stipulated under Section 18 of the Act.
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2. The petitioner is the owner of land bearing Survey No. 270 admeasuring 00-08-64 situated in village Ajroli, Taluka :
Thasara, District : Kheda. A notification under Section 4 of the Act was issued on 25.06.2004 and notification under Section 6 of the Act was issued on 16.08.2004. Having not received an award under the Act, the petitioner applied to the respondent no. 2 on 24.03.2014 inquiring as to whether an award under the Act for the lands in question was passed. It was only on 04.04.2016 that the respondent informed the petitioner that the award in question was passed. It was subsequently on 09.09.2016 that the petitioner received a letter dated 31.08.2016 informing him that the award qua the land in question has been passed on 24.04.2006 and a copy thereof was also supplied with the award. It is in these facts that the petitioner has come before this Court requesting the Court that reference be made under Section 18 of the Act in view of the fact that it was for the first time on 09.09.2016 that the petitioner was made aware of the award in question.
3. An affidavit-in-reply has been filed by the respondents.
To the contention that the notice under Section 12(2) of the Act was not received by the petitioner, the only averment made in the reply is that the copy of notice under section 12(2) of the Act is not available on record.
4. Having heard learned counsel Mr. Vijay Raval for the petitioner and learned Assistant Government Pleader Mr. Pranav Trivedi for the respondents, what needs to be appreciated is that :
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(a) The award of the Land Acquisition Officer was passed on 24.04.2006;
(b) The amount of compensation as is evident from the affidavit-in-reply was paid on 25.06.2007;
(c ) No notice under section 12(2) of the Act was served on the petitioner;
(d) The copy of the award was supplied to the petitioner only with the communication dated 31.08.2016 which he received on 09.09.2016.
(e) The petitioner made an application on 14.09.2016 seeking reference to the District Court which was rejected by the respondent no. 2 vide communication dated 03.10.2016.
4.1 By the impugned communication dated 03.10.2016, the petitioner's request for making a reference under Section 18 of the Act has been turned down only on the ground that the application seeking reference was made beyond the stipulated time as prescribed under Section 18 of the Act. Perusal of Section 18 of the Act indicates that the same pertains to reference to a Court. It is clear that a reference, under Section 18(1), can relate to four objections namely the measurement of the land, the amount of compensation, the persons to whom it is payable and the apportionment of the compensation among the persons interested. Sub-section (2) of Section 18 requires that the application shall state the grounds on which the objections to the award is taken. Proviso to Section 18(2) lays down the period of limitation and provides that the application for reference shall be made (a) if the person making the application is present or represented Page 3 of 8 HC-NIC Page 3 of 8 Created On Mon Aug 14 10:02:58 IST 2017 C/SCA/2963/2017 ORDER before the Collector at the time when the award was passed, within six weeks from the date of the award and (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12(2) of the Act or within six months from the date of the Collector's award whichever expires earlier. It is evident from the facts of the present case that though the award was passed on 24.04.2006, notice under Section 12(2) of the Act was not served on the petitioner. It was for the first time by communication dated 31.08.2016 which he received on 09.09.2016 that the petitioner was made aware of the award. The petitioner thereafter immediately made an application on 14.09.2016 seeking reference.
5. Mr. Raval, learned advocate for the petitioner has relied on a judgement rendered by this Court in Special Civil Application No. 2964 of 2017 dated 04.07.2017. This Court while analyzing the facts similar to the present case has held as under:
"7. Since it is not the case of the respondents that the petitioner or his representative was present before the Collector when the award was passed, the case of the petitioner would fall in clause (b) of the proviso. In such a case, the period of limitation would be six weeks of the receipt of the notice under section 12(2) of the Act or six months from the date of the award whichever is earlier. In the present case, as stated by the respondents in the affidavit dated 04.07.2017, there is no record to suggest that the notice under section 12(2) of the Act was served on the petitioner. The case of the petitioner would, therefore, fall under the latter expression of clause
(b) of the proviso.
8. Though this proviso in plain terms provides for limitation of six months from the date of the Page 4 of 8 HC-NIC Page 4 of 8 Created On Mon Aug 14 10:02:58 IST 2017 C/SCA/2963/2017 ORDER Collector's award, the same has come up for judicial interpretation earlier. In case of Premji Nathu vs. State of Gujarat and Another reported in AIR 2012 SC 1624, the Supreme Court considered the case where the Collector had served notice under section 12(2) of the Act but such notice was not accompanied by a copy of the award. In this background, it was held and observed as under:
"10. An analysis of the above reproduced provisions shows that by virtue of Section 12(1), an award made by the Collector is treated final and conclusive evidence of the true area and value of the land and apportionment of the compensation among the persons interested. In terms of Section 12(2), the Collector is required to give notice of his award to the interested persons who are not present either personally or through their representatives at the time of making of award. Section 18(1) provides for making of reference by the Collector to the Court for the determination of the amount of compensation etc. Section 18(2) lays down that an application for reference shall be made within six weeks from the date of the Collector's award, if at the time of making of award the person seeking reference was present or was represented before the Collector. If the person is not present or is not represented before the Collector, then the application for reference has to be made within six weeks of the receipt of notice under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire.
11. The reason for providing six months from the date of the award for making an application seeking reference, where the applicant did not receive a notice under Section 12(2) of the Act, while Page 5 of 8 HC-NIC Page 5 of 8 Created On Mon Aug 14 10:02:58 IST 2017 C/SCA/2963/2017 ORDER providing only six weeks from the date of receipt of notice under Section 12(2) of the Act for making an application for reference where the applicant has received a notice under Section 12(2) of the Act is obvious. When a notice under Section 12(2) of the Act is received, the landowner or person interested is made aware of all relevant particulars of the award which enables him to decide whether he should seek reference or not. On the other hand, if he only comes to know that an award has been made, he would require further time to make enquiries or secure copies so that he can ascertain the relevant particulars of the award. What needs to be emphasised is that along with the notice issued under Section 12(2) of the Act, the land owner who is not present or is not represented before the Collector at the time of making of award should be supplied with a copy thereof so that he may effectively exercise his right under Section 18(1) to seek reference to the Court."
9. In case of Bhagwan Das And Others vs. State of U.P. And Others with Nayantara Gupta And Others vs. State of U.P And Others reported in AIR 2010 SC 1532, the Supreme Court laid down following principles:
"12. 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 authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his Page 6 of 8 HC-NIC Page 6 of 8 Created On Mon Aug 14 10:02:58 IST 2017 C/SCA/2963/2017 ORDER authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award. A person who fails to make an application for reference within the time prescribed is not without remedy. It is open to him to make an application under section 28A of the Act, on the basis of an award of the court in respect of the other lands covered by the same acquisition notification, if there is an increase. Be that as it may."
[Emphasis Supplied]
10. Learned counsel for the petitioner drew our attention to two Division Bench judgements of this court in the case of Galabsang Abhuji vs. Special Land Acquisition Officer, Narmada Yojana reported in 2013(4) GLR 3085 and order dated 28.09.2015 in case of Patel Ramesh Gaga vs. General Manager, Sardar Sarovar Narmada Nigam Ltd. & Others passed in Special Civil Page 7 of 8 HC-NIC Page 7 of 8 Created On Mon Aug 14 10:02:58 IST 2017 C/SCA/2963/2017 ORDER Application No. 4586 of 2015 in which similar issues were considered by this Court. However, when we have two direct decisions of the Supreme Court, it is not necessary to delve at any length on the observations by the Division Benches."
6. In the present case, after the petitioner received the communication dated 31.08.2016 on 09.09.2016, he made an application before the Land Acquisition Officer seeking reference to the District Court on 14.09.2016 which is well within the stipulated time as prescribed under Section 18 of the Act. In absence of notice under section 12(2) of the Act and in view of the fact that the petitioner was made aware of the award only when he received the communication dated 31.08.2016 coupled with the position of law as explained by the judgement rendered in Special Civil Application No. 2964 of 2017, the petition deserves to be allowed. It cannot be said that the application of the petitioner seeking reference was time barred.
7. Accordingly, the communication dated 03.10.2016 holding that the application seeking reference is time barred is set aside. The respondents are directed to make a reference to the appropriate court as requested by the petitioner latest by 31.07.2017. Petition is allowed accordingly.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 8 of 8 HC-NIC Page 8 of 8 Created On Mon Aug 14 10:02:58 IST 2017