Gujarat High Court
Govind Devraj Khatariya vs State Of Gujarat & on 28 March, 2016
Author: Akil Kureshi
Bench: Akil Kureshi, Z.K.Saiyed
C/SCA/20071/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 20071 of 2015
TO
SPECIAL CIVIL APPLICATION NO. 20084 of 2015
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GOVIND DEVRAJ KHATARIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR VIJAY H NANGESH, ADVOCATE for the Petitioner(s) No. 1
MR KRUTIK PANDYA, AGP for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 28/03/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. These petitions arise in common background. We may record facts as arising in SCA No.20071 of 2015.
2. Petitioner has challenged an order dated 18.11.2014 as at Annexure-A to the petition passed by the respondent No.2 - Special Land Acquisition Officer rejecting the petitioner's request for making reference for compensation for the petitioner's land acquired by the State authorities. Petitioner is owner and occupier of land bearing survey No.278/2 of village Bitavaladiya, Page 1 of 12 HC-NIC Page 1 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER Tal. Anjar, Dist. Kutch. Such land came to be acquired by the State authorities for public purpose. For such purpose, notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 11.07.2012. Notification under Section 6 of the Act was published on 07.12.2012. Award under Section 11 of the Act was passed on 16.08.2013. Dissatisfied with the compensation awarded by the Special Land Acquisition Officer, the petitioner sought reference under Section 18 of the Act by filing application dated 05.09.2014 In such application, it was averred that the notice under Section 12(2) of the Act was not served, procedure of serving such notice was opposed to the procedure laid down under Section 45 of the Act. It was contended that the endorsement on the RPAD of the addressee having refused to accept the notice was false. It was contended that at no point of time, copy of the award was supplied to the petitioner. Inter alia on such grounds, it was asserted that the application for reference was within the time envisaged under Section 18 of the Act.
3. The Special Land Acquisition Officer fixed the hearing of such application and after hearing the parties, by impugned order dismissed the same. In such order, he recorded that the Surveyor had tried to serve the notice in person. Notice was also dispatched through Page 2 of 12 HC-NIC Page 2 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER Registered AD which was not accepted. Therefore, application under Section 18(1) of the Act is liable to be dismissed. He dismissed the same being time barred.
4. In response to notice issued, respondents have appeared and filed affidavit dated 19.02.2016. In such affidavit, the respondents have relied on a 'rojkam' dated 03.09.2013 in which it was recorded that the officers had gone to the Panchayat office for payment of compensation under the award to the 19 land owners. However, none of them come forward to receive the payment. Nobody was present. This rojkam was signed by the Government authorities as well as Talati-cum-Mantri of the village. The respondents have also relied on further rojkam dated 29.11.2013 in which it was recorded that second attempt was made on that day. The village people refused to accept the notices or to sign the rojkam. They demanded that the compensation be paid at par with other land owners at the 'jantri' rates. The respondents have also relied on third rojkam dated 18.12.2013 which records the third attempt of service of the notices. In such rojkam also, it was recorded that the land owners demanded compensation at the jantri rates. The second and third rojkams dated 29.11.2013 and 18.12.2013 respectively, unlike the first rojkam dated 03.09.2013 did not carry signatures of anyone else except Page 3 of 12 HC-NIC Page 3 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER Deputy Executive Engineer. The respondents have also relied on the postal endorsement dated 31.08.2013 that the addressee having refused to accept the post, the same is returned undelivered.
5. On the basis of such attempts at serving notices to the land owners, the respondents would contend that the application for reference was beyond the period of limitation envisaged under Section 18 of the Act and was therefore, rightly rejected by the competent authority.
6. On the other hand, learned Counsel Shri Nangesh for the petitioners submitted that the rojkams do not establish any genuine attempt at tendering or serving the notices. The postal endorsement is not accurate. In any case, the procedure for serving the notice envisaged under Section 45 of the Act was not followed. None of the documents contain either copy of the award or contents thereof, without which it would be impossible for the claimants to raise objections and seek a reference.
7. In this context, Counsel relied on following decisions:-
I. Division Bench judgment of this Court in case of Mavji Bhoja Koli Vs. State of Page 4 of 12 HC-NIC Page 4 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER Gujarat, reported in 2014 (1) GLR, page No.53.
II. In case of Bhagvwan Das & Ors. Vs. State of Uttar Pradesh & Ors., reported in (2010) 3 SCC, page No.545. III. In case of Premji Nathu Vs. State of Gujarat & Ors., reported in (2012) 5 SCC, page No.250.
8. Facts may be summarized thus. The Land Acquisition Officer passed his award on 16.08.2013. The petitioners filed application for reference on 26.05.2014. Such reference applications were rejected by impugned order dated 18.11.2014 on the ground of limitation. The respondents rely on three failed attempts at serving the notices under Section 12(2) on the claimants and the postal endorsement of the addressee refusing to accept the post to contend that there was sufficient service of notices and that therefore, application for reference made after six weeks of the knowledge of the award would be barred by limitation.
9. For several reasons, we cannot uphold the order of the Special Land Acquisition Officer. Firstly, except for the first rojkam dated 03.09.2013, neither of the two later rojkams contain any supporting signatures of Page 5 of 12 HC-NIC Page 5 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER independent witnesses or even Talati-cum-Mantri. These two rojkams dated 29.11.2013 and 18.12.2013 carry signature only of the Deputy Executive Engineer. In these two rojkams, it is generally recorded that when contacted, the claimants refused to accept the compensation or give their signatures. They insisted on payment of compensation at jantri rates. It is not recorded who were such persons who were contacted. Mere general statement would not establish tendering notice to all claimants. The rojkam dated 03.09.2013 also would not establish the tendering of the notices to the claimants. It only records that the authorities had visited the village and had camped themselves at Panchayat site, but none of the claimants come forward to receive the compensation. In fact, the rojkam specifically recorded that none of the claimants were present. We fail to see how there can be tendering of notices or compensation in absence of the claimants.
10. Section 45 of the Act lays down the procedure for service of notice. Sub-section (1) thereof provides that service of any notice under the Act shall be made by delivering or tendering a copy thereof signed in case of a notice under Section 4, by the officer mentioned therein and in case of any other notice, by an order of the Collector of the Judge. Sub-section (2) of Section Page 6 of 12 HC-NIC Page 6 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER 45 provides that whenever it may be practicable, the service of the notice shall be made on the person named therein. Under sub-section (3) of Section 45, when such person is not found, the service may be made on any adult male member of the family residing with him and if no such adult male member can be found, the notice may be served by affixing the copy on the outer door of the house in which the person ordinarily dwells or carries on business or by affixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the Court house and also in some conspicuous part of the land to be acquired. Proviso to Section 45 provides that if the Collector or Judge shall so direct, a notice may be sent by post in a letter addressed to the person named therein at his last known residence, address or place of business and service of it may be proved by production of the addressee's receipt.
11. Thus, ordinarily, notices under the Act would be served in terms of sub-section (1) to sub-section (3) of Section 45 and the mode of service is provided in the proviso through postal dispatch if so directed by the Collector.
12. Section 12 of the Act pertains to award of the Collector when to be final. Under sub-section (1) of Page 7 of 12 HC-NIC Page 7 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER Section 12, award of the Collector would be filed in the Collector's office and would be conclusive evidence as between the Collector and the persons interested, whether they appeared before the Collector or not regarding true area and value of the land and apportionment of the compensation amongst the persons interested. Under sub- section (2) of Section 12, the Collector would give immediate notice of his award to such persons interested as are not present personally or by their representatives when the award is made.
13. Section 18 of the Act, as is well known, pertains to reference to the Court. Under sub-section (1) of Section 18, any person interested who has not accepted the award, may by written application to the Collector seek a reference for determination of the Court regarding measurement of the land, amount of compensation, the persons to whom it is payable or the apportionment of the compensation amongst the persons interested. Under proviso to Section 18 every such application would be made 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 and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12(2) or within six months from the date of Page 8 of 12 HC-NIC Page 8 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER the Collector's award whichever expires first.
14. In the context of this period of limitation prescribed under Section 18 for making an application for reference, the Supreme Court in case of Bhagwan Das (supra) held and observed as under:-
"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 authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice,he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award.
30. When a person interested makes an application for reference seeking the benefit of six months period from the date of knowledge, the initial onus is on him to prove Page 9 of 12 HC-NIC Page 9 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award."
15. Referring to and relying upon the said decision of the Supreme Court in case of Bhagwan Das (supra), Division Bench of this Court in case of Mavji Bhoja Koli (supra), observed as under:-
"10. The aforesaid shows that the burden is upon the respondent to show that the notice under Section 12(2) was served and the another aspect is that notice under Section 12(2) for the above referred decision should stay (sic) the contents of the award."
16. In the present case, it is undisputed that none of the claimants were present when the Special Land Acquisition Officer passed his award. It was, therefore, necessary to issue notice as referred to under Section 12(2) of the Act. The rojkams merely record visits by the Executive Engineer to the village, but does not record any further details. In the first rojkam, which was signed by several other witnesses, it was only Page 10 of 12 HC-NIC Page 10 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER recored that no one remained present. It is quite different from suggesting that persons remained present and either accepted the notice or refused to accept the same, in which case, the constructive notice can be attributed. The later two rojkams do not record any signature other than that of the Executive Engineer. Such rojkams also do not contain details of persons who were offered compensation and tendered notices but refused to accept the same.
17. In any case, it does not come on record that in any of the the communications copy of the award or even the basic details of the award were communicated or sought to be communicated. As observed by the Supreme ? Court in case of Bhagwan Das (supra), the claimant needs to establish that he did not have knowledge of the contents of the award. Thus, not the knowledge of the award but knowledge of the contents of the award is of significance. Under the circumstances, assertion of the petitioners that they neither had actual nor constructive notice of the award and that therefore their applications for reference were not hit by limitation prescribed under Section 18 of the Act must be accepted. After the petitioners established the primary facts, the respondents failed to establish that either notices were duly served with contents of the award or that the Page 11 of 12 HC-NIC Page 11 of 12 Created On Wed Mar 30 00:52:51 IST 2016 C/SCA/20071/2015 ORDER claimants had constructive notice of the awards.
18. Under the circumstances, the impugned orders Annexure-A in all petitions are set aside. The Special Land Acquisition Officer shall make a reference in each of the cases to the competent Reference Court. All petitions disposed of accordingly.
Direct service permitted.
(AKIL KURESHI, J.) (Z.K.SAIYED, J.) SHITOLE Page 12 of 12 HC-NIC Page 12 of 12 Created On Wed Mar 30 00:52:51 IST 2016