Gujarat High Court
Patel Ramesh Gaga & 3 vs General Manager - Sardar Sarovar ... on 28 September, 2015
Author: Akil Kureshi
Bench: Akil Kureshi, Mohinder Pal
C/SCA/4586/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4586 of 2015
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PATEL RAMESH GAGA & 3....Petitioner(s)
Versus
GENERAL MANAGER - SARDAR SAROVAR NARMADA NIGAM LTD &
4....Respondent(s)
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Appearance:
MR VL THAKKAR, ADVOCATE for the Petitioner(s) No. 1 - 4
MR DHAWAN JAYSWAL, AGP for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1 - 5
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 28/09/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has challenged an order dated 20.11.2014 passed by the Special Land Acquisition Officer produced at Annexure-A to the petition.
2. Briefly stated facts are as under:-
2.1 Petitioners are all owners of different parcels of lands situated in village Changa, Taluka Kankrej, Dist. Banaskantha. Said lands were acquired by the Government for irrigation project, for which notice under Sections 4 and 6 of the Land Acquisition Act, 1894 were Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER issued 06.07.2009 and 11.08.2009 respectively. Award under Section 11 of the Act was passed on 06.09.2012. It is not in dispute that the petitioners were not present when such award was declared by the Special Land Acquisition Officer. Notice under Section 12(2) of the Act was served on 07.11.2012, admittedly, however, without copy of the award. The petitioners were paid compensation on 06.01.2014. Thereupon the petitioners applied for copy of the award of the Land Acquisition Officer, which, according to the petitioners, was made available on 15.03.2014. The petitioners thereupon sought reference under Section 18 of the Act by filing application dated 10.04.2014. This application came to be rejected by the Special Land Acquisition Officer by the impugned order, in which he held that since the application was received after the period of limitation prescribed under the law, the request for reference cannot be granted.
3. Learned Counsel for the petitioners submitted that in terms of Section 18 of the Act, the petitioner had a right to seek reference within a period of 6 months from the date of knowledge of the award. In the present case, the petitioners received the compensation on 06.01.2014 and immediately sought a copy of the award, which was made available only on 15.03.2014 and within Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER less than a month thereof, application for reference was made.
4. On the other hand, learned AGP submitted that notice under Section 12(2) was served on 07.11.2012.
Such notice contained particulars such as extent of land under acquisition, the amount of compensation payable with attendant benefits and the apportionment, if any. These are the essential contents of the award which were required to be communicated to the petitioners, which having been done under notice under Section 12(2) of the Act, the petitioners ought to have sought a Reference within 6 weeks of service of such notice. In this context, Counsel relied on the decision of Full Bench of this Court in case of Special Land Acquisition Officer, Himmatnagar Vs. Nathaji Kacharaji, died through Heir Dhulaji Nathaji, reported in 2001 (3) GLH, page No.312. Counsel also relied on decision of the Supreme Court in case of Bhagwan Das & Ors. Vs. State of U.P. & Ors., reported in AIR 2010 SC, page No.1532 and contended that after knowledge of the award, actual or constructive, application for reference must be made within six weeks and not six months as urged by the petitioners.
5. As noted, facts are not in dispute. Award was declared by the Special Land Acquisition Officer in absence of the petitioners. In the notice under Section Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER 12(2), the extent of land under acquisition and the compensation payable were mentioned. However, copy of the award was not supplied. After payment of compensation in January 2014, upon being asked, the petitioners were supplied copy of the award on 15.03.2014. Application for reference was made on 10.04.2014.
6. Section 18 of the Act pertains to Reference and reads as under:-
"18. Reference to Court-(1) Any person interested who has not accepted the award 1 [or the amendment] thereof may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award 1 [or the amendment] 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 1 [or the amendment] within six weeks from the date of the Collector's award 1 [or the amendment].
(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 1 [or the amendment], whichever period shall first expire.Page 4 of 10
HC-NIC Page 4 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER
7. In terms of sub-section (2) of Section 18 thus, application for Reference has to be made within six weeks from the date of the Collector's award, if the person making such an application was present when the award was made. In other cases, period of limitation would be six weeks of the receipt of notice from the Collector under Section 12(2) or six months from the date of Collector's award whichever is earlier. It is now judicially interpreted that mere service of notice under Section 12(2) would not be sufficient since it is against the award that the person interested can seek reference. Without being aware about the contents of the award, he would have no meaningful right to seek enhancement. Likewise, though the plain language of Clause (b) of sub- section (2) of Section 18 refers to six months from the date of Collector's award, it is interpreted that starting point for limitation would be the knowledge of the award by the Collector, either actual or constructive. In this respect, we may refer to the decision of the Supreme Court in case of Premji Nathu Vs. State of Gujarat & Anr., reported in (2012) 5 SCC, page No.250, in which the land owners were served with notice under Section 12(2) of the Act without a copy of the award. They applied for certified copy of the award and soon after having received copies, applied for reference Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER under Section 18(1) of the Act. The Court found that the State had not produced any evidence to show that the copy of the award was attached with the notice under Section 12(2) of the Act. It was also found that the land owner was not present when the Land Acquisition Officer declared his award. Under such circumstances, the Court held that the land owner, who is not present or represented before the Collector at the time of making award, should be supplied with the copy of the award so that he may effectively exercise his right under Section 18(1) of the Act. It was observed that:-
"21. A careful reading of the averments contained in paragraph 2 of the application filed by the appellant under Section 18(1) shows that the notice issued by the Collector under Section 12(2) was served upon him on 22.2.1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 8.4.1985 for making a reference to the Court. This implies that copy of the award had not been sent to the appellant along with the notice and without that he could not have effectively made an application for seeking reference."
8. In case of Bhagwan Das (supra), the Supreme Court reiterated that the expression "date of the Collector's award" occurring in Clause-(b) of sub-section (2) of Section 18 would mean the knowledge of the award which may be either actual or constructive. Referring to several other decisions on the point, the Court held and observed as under:-
Page 6 of 10
HC-NIC Page 6 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER "11. 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 award, which results in less than the market value being offered. Invariably the land loser is required to make an 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. 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 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. 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, 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 actual date of the Collector's award."
9. Learned AGP, however, relied on the conclusions Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER of the Court on the interpretation of Section 18 in para- 12 of the judgment and in particular, sub-para4 thereof, which reads as under:-
"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 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.
10. Reference to the notice under Section 12(2) of Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER the Act must be understood in the context of the provisions contained in Clause-(b) of sub-section (2) of Section 18, which as noted above, provides for period of limitation for seeking a reference. In case of service of notice under Section 12(2), the period of limitation prescribed is six weeks on service of the notice whereas if no such notice is served, six months from the date of the award of the Collector, which, as noted above, judicially interpreted would mean the date of knowledge of the award of the Collector either actual or constructive. Therefore, the concept of limitation of six weeks from the date of service of notice under Section 12(2) cannot be imputed for reckoning the period of limitation from the date of knowledge of the Collector's award either actual or constructive.
11. In case of Special Land Acquisition Officer, Himmatnagar Vs. Nathaji Kacharaji (supra), relied upon by the learned AGP, Full Bench was primarily considering whether the Collector had power to condone the delay in making application for Reference under Section 18 of the Act and further, whether the knowledge, actual or constructive, could be imputed upon service of notice under Section 12(2) of the Act where the essential contents of the award were communicated but not the details of the award itself. Insofar as the first issue, Page 9 of 10 HC-NIC Page 9 of 10 Created On Thu Oct 01 00:45:35 IST 2015 C/SCA/4586/2015 ORDER viz. question of condonation of delay, the issue is covered by series of decisions including that of the Supreme Court in case of Bhagwan Das (supra), with which, in any case, we are not concerned in the present petition. Regarding question of knowledge of the award, the Supreme Court in case of Premji Nathu (supra), having given benefit to the land owners when the notice under Section 12(2) of the Act was not accompanied by copy of the award, we must follow suit. In the present case, as noted, even if payment of compensation can be treated to be constructive notice of the award, petitioners, having promptly applied for copy of the award and upon being supplied, having sought a Reference within less than one month thereof, in our opinion, the Special Land Acquisition Officer committed an error in declining to make such an award on the ground of limitation. The petition is allowed. The Special Land Acquisition Officer shall make a Reference in terms of Section 18 of the Act within one month from the date of receipt of copy of this order.
(AKIL KURESHI, J.) (MOHINDER PAL, J.) SHITOLE Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Oct 01 00:45:35 IST 2015