Bombay High Court
Mah.State Electricity Board vs Dr.Sheshrao Baliram Ingole And Anr on 2 February, 2016
Author: R.K. Deshpande
Bench: R.K. Deshpande
1
fa518.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.518 OF 2003
Maharashtra State Power Generation Co. Ltd.,
(Formerly known as Maharashtra State
Electricity Board),
through its Executive Engineer (Civil),
Civil Division No.IV,
C.S.T.P.S. (Urjanagar),
Distt. Chandrapur. ig ... Appellant
Versus
1. Dr. Sheshrao Baliram Ingole,
Aged about 55 years,
Occupation - Medical Practitioner,
R/o Mayur Apartment,
Mul Road, Chandrapur,
Tq. and District Chandrapur.
2. State of Maharashtra,
through the Collector,
Chandrapur. ... Respondents
Shri G.E. Moharir, Advocate for Appellant.
Shri R.K. Maheshwari, Advocate, holding for Shri Anand
Parchure, Advocate for Respondent No.1.
Shri M.M. Ekre, Assistant Government Pleader for Respondent
No.2.
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2
fa518.03.odt
Coram : R.K. Deshpande, J.
Dated : 2nd February, 2016 Oral Judgment :
1. In Land Acquisition Reference Case No.28 of 1991, the Reference Court, acting under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"), has enhanced the compensation from Rs.1,75,000/- to Rs.9,25,650/-
per hectare, after deducting the amount already paid to the respondent No.1/claimant. Apart from this, the claimant is also held entitled to the statutory benefits consequently available in law. This first appeal has been preferred by the acquiring body, challenging the enhancement of compensation.
2. Shri Moharir, the learned counsel appearing for the appellant-acquiring body, has urged :
(1) that the matter be remanded back to the Reference Court, as the appellant was not permitted to file written statement and was not ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 3 fa518.03.odt joined in the reference as party-respondent;
(2) that the reference should have been dismissed as barred by limitation; and (3) that the Reference Court has committed an error in enhancing the compensation.
3. The points for determination are as under :
(a) Whether the matter is required to be remanded back to the Reference Court to provide an opportunity to the appellant to file written statement and further to participate in the proceedings to defend the claim for enhancement of compensation?;
(b) Whether the reference was liable to be dismissed as barred by time, as provided under Section 18(2) of the said Act?;
(c) Whether the enhancement of compensation by the Reference Court from Rs.1,75,000/- to Rs.9,25,650/- per hectare is supported by the relevant and admissible evidence on record?; and ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 4 fa518.03.odt
(d) What should be the order?
As to Point No.(a) :
4. The undisputed factual position is that an application under Order I, Rule 10 of the Code of Civil Procedure was preferred by the appellant for being joined as the party-respondent on 25-6-1992, and it was marked as Exhibit 10.
It was opposed by the claimant by filing the reply at Exhibit 13.
In view of the provision of Section 50(2) of the said Act, the Reference Court allowed the said application by an order dated 19-10-1994. However, it is an undisputed position that -
(i) actual amendment was not carried out by joining the appellant as the party-respondent in the appeal; (ii) the appellant did not file the written statement on record; and (iii) the appellant has extensively cross-examined the witnesses examined by the claimant.
5. Mere technicalities of failure to join the appellant as the party-respondent in the reference proceedings cannot defeat ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 5 fa518.03.odt the ends of justice. The application was allowed for joining the appellant as the party-respondent in the reference proceedings by an order dated 19-10-1994. The appellant was thus well aware that it is permitted to defend the proceedings and was required to file the written statement. The appellant has not chosen to file the written statement, but has chosen to participate in the proceedings by merely cross-examining the witnesses. The appellant has not chosen to lead any evidence - either oral or documentary. In these facts and circumstances, it cannot be said that the order suffers from miscarriage of justice on account of the fact that the amendment for joining the appellant as the party-respondent was not carried out till the date on which the matter was closed for judgment. The contention is, therefore, rejected.
As to Point No.(b) :
6. Since lot of debate, supported by the decisions on the question of bar of limitation, as provided under sub-section (2) of Section 18 of the Land Acquisition Act, 1984, has taken place, it ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 6 fa518.03.odt will have to be discussed in detail.
The relevant provisions of the Constitution and of the Land Acquisition Act :
7. Article 300A of the Constitution of India states that no person shall be deprived of his property save by authority of law.
Article 31-A deals with saving of laws providing for acquisition of estates, etc. In terms of sub-clause (a) under clause (1) of Article 31-A, notwithstanding anything contained in Article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such right shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or 19. The second proviso therein is relevant and the same is reproduced below :
"Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 7 fa518.03.odt structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof. "
(Emphasis supplied) In terms of the aforesaid proviso, it shall not be lawful for the State to acquire any land or any portion thereof held by any person under his personal cultivation within the prescribed ceiling limit with or without any building or structure thereon or appurtenant thereto, unless the law relating to such acquisition provides for payment of compensation at a rate which shall not be less than the market value thereof.
Law laid down on the constitutional provisions by the Apex Court :
8. In the decision of the Constitution Bench of the Apex Court in the case of Dattatraya Govind Mahajan and others v. The State of Maharashtra and another, reported in AIR 1977 SC 915, the question of constitutional validity of the provisions of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 was considered on the touchstone of the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 8 fa518.03.odt proviso to clause (1) of Article 31-A of the Constitution of India and the validity was upheld. The Apex Court has held in para 7 that the object and purpose of introducing Articles 31-A of the Constitution of India was to protect agrarian reform legislation from its invalidation on the ground of being violative of Articles 14 and 19 of the Constitution of India. It is held that Article 31-A carves out an exception to the applicability of Article 31 and also Articles 14 and 19 and immunizes certain categories of agrarian reform legislation from attack on the ground that they violate any of these three articles. Even if any agrarian reform legislation falling within the specified categories infringes Articles 14, 19 and 31, it would not be invalid.
9. While dealing with Article 31-A of the Constitution of India, the Apex Court in para 8 of the aforesaid judgment holds that the second proviso says that even where a law makes any provision for acquisition by the State of any estate and thus falls within one of the categories specified in Article 31-A, it would not qualify for immunity under the provisions of that Article, if it ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 9 fa518.03.odt seeks to acquire any portion of the land held by a person under his personal cultivation which is within the ceiling limit applicable to him under any law for the time being in force and such a law, in order to be valid, would have to provide for payment of compensation at a rate which shall not be less than the market value of the land sought to be acquired. If further holds that this provision is couched in negative language and it imposes a fetter on the exercise of the legislative power of the State, and this limitation is the measure of fundamental right conferred on the owner of the land. It holds that the restriction on legislative competence and conferment of right on the holder of the land within the ceiling limit are complementary to each other, and they are merely two different facets of the same provision.
10. The Apex Court, in the aforesaid decision, clearly expressed the view that the second proviso to clause (1) of Article 31-A does confer a fundamental right to provide for payment of compensation at a rate not less than the market value ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 10 fa518.03.odt of the land thereof. Shri Justice V.R. Krishna Iyer (as he then was), who wrote separate but concurring judgment, also expressed the view that the second proviso to clause (1) of Article 31-A creates a fundamental right. In the same para of the aforesaid judgment, the Apex Court also rejected the contention that but for the second proviso even if a law authorizing acquisition of land within the ceiling limit did not provide for payment of compensation, it would be protected from invalidation under Article 31-A. The Court held that, that was not the result, which the Parliament favoured.
11. In the decision of the Apex Court in the case of K.P. Plantation Private Limited and another v. State of Karnataka, decided by the Constitution Bench and reported in (2011) 9 SCC 1, the question involved was regarding validity of Section 110 of the Karnataka Land Reforms Act, 1961, which empowered the authority to issue the notification withdrawing the exemption granted from acquisition under Section 107(1)(vi) of the said Act. While considering such challenge, the Apex Court ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 11 fa518.03.odt decided the question as to whether the concept of eminent domain has to be read into Article 300-A of the Constitution of India and in the Statutes enacted to deprive a person of his property.
12. In para 164 of the aforesaid decision of the Apex Court, the Objects and Reasons to introduce Article 300-A of the Constitution of India by way of the Forty-fourth Amendment, are reproduced as under :
"3. In view of the special position sought to be given to fundamental rights, the right to property, which has been the occasion for more than one amendment of the Constitution, would cease to be a fundamental right and become only a legal right. Necessary amendments for this purpose are being made to Article 19 and Article 31 is being deleted. It would, however, be ensured that the removal of property from the list of fundamental rights would not affect the right of minorities to establish and administer educational institutions of their choice.
4. Similarly, the right of persons holding land for personal cultivation and within the ceiling limit to receive compensation at the market value would not be affected.
5. Property, while ceasing to be a fundamental right, would, however, be given express recognition as a legal ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 12 fa518.03.odt right, provision being made that no person shall be deprived of his property save in accordance with law."
13. In para 166 of the aforesaid decision of the Apex Court, it is stated that Article 300-A of the Constitution of India reveals as under :
"1. Right to acquire, hold and dispose of property has ceased to be a fundamental right under the Constitution of India.
2. Legislature can deprive a person of his property only by authority of law.
3. Right to acquire, hold and dispose of property is not a basic feature of the Constitution, but only a constitutional right.
4. Right to property, since no more a fundamental right, the jurisdiction of the Supreme Court under Article 32 cannot be generally invoked, aggrieved person has to approach the High Court under Article 226 of the Constitution."
14. In the case of eminent domain, two tests are required to be satisfied, viz. - (i) the acquisition is for public purpose, and
(ii) the payment of adequate compensation. In para 178, the Apex Court held in the aforesaid decision that the principles of ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 13 fa518.03.odt eminent domain as such, are not seen incorporated in Article 300-A, as we see, in Article 30(1-A), as well as in the second proviso to Article 31-A(1) though we can infer those principles in Article 300-A. In para 181, it is held that public purpose is, therefore, a condition precedent for invoking Article 300-A. It holds in para 178 that the second proviso to Article 31-A(1) prohibits the legislature from making a law which does not contain a provision for payment of compensation at a rate not less than the market value which follows that a law which does not contain such provision shall be invalid and the acquisition proceedings would be rendered void.
15. Para 189 of the aforesaid decision is most relevant, and it is reproduced below :
"189. Requirement of public purpose, for deprivation of a person of his property under Article 300-A, is a precondition, but no compensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such a limitation by itself will not make legislation invalid or unconstitutional or ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 14 fa518.03.odt confiscatory. In other words, the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors."
It is held by the Apex Court that the right to claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.
16. In para 192, the Apex Court has made a distinction between the cases of "no" compensation and "nil" compensation.
It has been held that a law seeking to acquire private property for public purpose cannot say that "no compensation shall be paid".
However, there could be a law awarding "nil" compensation in cases where the State undertakes to discharge the liabilities charged on the property under acquisition and onus is on the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 15 fa518.03.odt Government to establish validity of such law.
17. In para 221, the Apex Court has answered the reference, and clause (e) therein being relevant, is reproduced below :
"221(e) Public purpose is a precondition for deprivation of a person from his property under Article 300-A and the right to claim compensation is also inbuilt in that article and when a person is deprived of his property the State has to justify both the grounds which may depend on scheme of the statute, legislative policy, object and purpose of the legislature and other related factors."
18. In the decision in the case of Laxman Lal (Dead) Through LRs. and another v. State of Rajasthan and others, reported in (2013) 3 SCC 764, the Apex Court has explained the doctrine of eminent domain to mean that it is the right or power of a sovereign State to appropriate the private property within the territorial sovereignty to public uses or purposes, which is inherent in the Government. Article 300-A of the Constitution of India states that no person shall be deprived of his property save ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 16 fa518.03.odt by authority of law. The Apex Court has held in para 16 of the said decision that though the right to property is no longer a fundamental right but the constitutional protection continues inasmuch as without the authority of law, a person cannot be deprived of his property. If the State intends to appropriate the private property without the owners' consent by acting under the statutory provisions for compulsory acquisition, the procedure authorized by law has to be mandatorily and compulsorily followed.
19. The law laid down by the Apex Court in the aforesaid judgments can be summarized as under :
(1) Right to acquire, hold and dispose of the property has ceased to be a fundamental right under the Constitution of India, but it continues to be a legal or a constitutional right, namely that no person can be deprived of his property save and except by and in accordance with law, which can be enforced by invoking jurisdiction under Article 226 of the Constitution of India and not under Article 32.::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 17
fa518.03.odt (2) Article 300-A as well as Article 31-A with second proviso in the Constitution of India contain a power of eminent domain to appropriate the private property, which should satisfy two tests - (i) the acquisition is for public purpose, and (ii) the payment of adequate compensation, which should not be less than the market value of the land.
(3)The second proviso below clause (1) of Article 31-A of the Constitution of India confers an independent fundamental right to get the payment of compensation at a rate not less than the market value of the land thereof, and if the law authorizing acquisition of the land does not make any such provision, then it would not qualify for protection or immunity under Article 31-A of the Constitution of India and it can be declared as void.
(4) There is a distinction between the cases of "no" compensation and "nil" compensation. The law seeking to acquire the private property for public purpose cannot say that no compensation shall be paid. However, there could be a law awarding nil compensation in cases where the State undertakes to ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 18 fa518.03.odt discharge the liabilities charge on the property under acquisition.
(5) It is the constitutional obligation upon the State to see that a person gets compensation at a rate not less than the market value of the land acquired, and if it wanted to defend the enforcement of fundamental right under the second proviso below clause (1) of Article 31-A of the Constitution of India, it is for the State to justify its stand on justifiable grounds. Thus, the burden of proof lies upon the State.
20. The Land Acquisition Act, 1894 is a piece of legislation enacted to exercise the power of eminent domain to compulsorily acquire the land by extinguishing the rights therein of the persons or the owners. Section 4 deals with publication of preliminary notification and inviting objections, the consideration of which is done under Section 5-A of the said Act by granting hearing on the objections, if any, raised and the ultimate declaration that the land is required for public purpose is done by issuing declaration in the notification, as required by Section 6 of the said Act.
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21. Section 11 deals with the enquiry and passing of the award by the Collector and it contemplates that while making the award, the Collector needs to determine - (i) the true area of the land, (ii) the compensation which in his opinion should be allowed for the land, and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claim, he has information, whether or not they have respectively appeared before him.
22. Section 12 of the said Act is relevant and it is reproduced below :
"12. Award of Collector when to be final.--(1) Such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested.
(2) The Collector shall give immediate notice of his ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 20 fa518.03.odt award to such of the persons interested as are not present personally or by their representatives when the award is made."
The provision states that the award shall be filed in the Collector's office and shall, except as provided in the Act, be final and conclusive evidence, as between the Collector and the persons interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land, and the apportionment of the compensation among the persons interested. Sub-section (2) of Section 12 mandates that the Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
23. Section 18 of the Land Acquisition Act gives a right to the owner or person interested, who has not accepted the award 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, ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 21 fa518.03.odt the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Section 18 of the Land Acquisition Act being relevant is reproduced below :
"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 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 is taken:(3)
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."::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 22
fa518.03.odt It would thus be clear that the person interested, who has received the compensation under protest, is required to state in his application for reference the grounds on which he objects to the compensation awarded by the Collector within six weeks from the date of the award when either he was present or represented by a counsel or an agent, or within six weeks from the date of receipt of the notice from the Collector sent under Section 12, sub-section (2) or within six months from the date of the award made by the Collector, whichever period shall first expire.
24. Section 23 of the Land Acquisition Act deals with the matters to be considered in determining compensation, and sub-section (1) therein states that in determining the amount of compensation to be awarded for the land acquired under this Act, the Collector shall take into consideration - first, the market value of the land at the date of the publication of the notification under Section 4, sub-section (1). The said provision also deals ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 23 fa518.03.odt with the other aspects of the matter, which are not relevant for the purposes of the present case.
25. Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act have been enacted to discharge the constitutional obligation of the State under Article 300-A of the Constitution of India to provide for payment of the compensation for acquisition of land, which shall not be less than the market value of the land and to effectuate the fundamental right conferred by the second proviso below Article 31-A of the Constitution of India to get the market value of the land in the mode and manner prescribed under the provisions of the Land Acquisition Act. If the Collector wanted to urge that - (i) the procedure prescribed under Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act has been mandatorily and compulsorily followed, and (ii) the person is not entitled to seek enforcement of the constitutional obligation under Article 300-A or the fundamental right conferred by the second proviso below Article 31-A, the burden of proof shall be upon the Collector to justify its stand by ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 24 fa518.03.odt necessary pleading and proof.
Law laid down by the Apex Court on the question of bar of limitation under the provisions of the Land Acquisition Act :
26. In the backdrop of the aforesaid provisions of the law and the decisions of the Apex Court, the question of bar of limitation, as prescribed in clauses (a) and (b) of the proviso below sub-section (2) of Section 18 of the Land Acquisition Act, will have to be considered. The decisions of the Apex Court construing the expression "from the date of the Collector's award"
need to be seen.
27. In the decision of the Apex Court in the case of Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Anr., reported in AIR 1961 SC 1500, the award was passed under Section 11 of the Land Acquisition Act on 25-3-1951. No notice of this award was given to the appellant, as required by Section 12(2) of the said Act and it was only on or about 13-1-1953 that he received information about the making of the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 25 fa518.03.odt said award, the appellant filed an application under Section 18 of the said Act for determination of market value of the land on 24-2-1953. The case of the appellant before the Apex Court fell under the later part of clause (b) of the proviso, as is clear from para 4 of the judgment. The Land Acquisition Officer took the view that the application was barred by time under the proviso to Section 18 of the said Act and he rejected it. In a writ petition, the learned Single Judge set aside this order and directed consideration of the application on its own merits in accordance with law. In appeal before the Division Bench, the decision of the learned Single Judge was set aside and the application under Section 18 of the said Act was dismissed as barred by time. This was the subject-matter of challenge before the Apex Court and the appeal was allowed by setting aside the decision of the Division Bench and restoring the decision of the learned Single Judge. The question was whether the application filed under Section 18 of the said Act was in time or not.
28. In the aforesaid decision, the Apex Court considered the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 26 fa518.03.odt question as to what is the meaning of the expression "the date of the Collector's award" used in clauses (a) and (b) in the proviso below sub-section (2) of Section 18 of the Land Acquisition Act.
The Apex Court considered the provisions of Sections 11, 12(2) and 18 of the said Act. In the cases falling under clause (a) of the proviso, it is held that if the award is pronounced in the presence of the parties whose rights are affected by it, it can be said to be made when pronounced. If the date for pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced, the said award is said to be communicated to the said party, even if the said party is not actually present on the date of its pronouncement. In the cases falling under clause (b) of the proviso, it is held that if without notice of the date of its pronouncement the 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 ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 27 fa518.03.odt expression "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. The Apex Court has opined that 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.
29. The view taken by the Apex Court in the aforesaid decision in the cases covered by clause (b) is supported by reasons. The Apex Court considered that 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 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 the cases of award made under the Act cannot be reasonably excluded. The Apex Court holds that 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;
::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 28fa518.03.odt it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. The Apex Court held that the Legislature recognized that making of the award under Section 11 followed by its filing under Section 12(1) would not meet the requirements of justice before bringing the award into force. It thought that the communication of the award to the party concerned was also necessary and the obligation upon the Collector tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate and failure of the Collector to discharge his obligation under Section 12(2) produce curious result of making ineffective, the right of the party to make an application under Section 18, and this result could not possibly have been intended by the Legislature.
30. A three Judges' Bench of the Apex Court in the case of State of Punjab v. Mst Qaisar Jehan Begum and another, reported in AIR 1963 SC 1604, it was a case where the Collector made an ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 29 fa518.03.odt award on 25-10-1953, the amount of compensation was paid on 22-7-1955, and on 30-9-1955, the respondents made an application to the Collector for reference under Section 18 of the Land Acquisition Act, alleging that they knew about the award on 22-7-1955 when they received the compensation amount. The Civil Court to which the reference was made, came to the conclusion that the reference was barred by time by expressing a doubt as to whether the respondents were entitled to count the period of limitation from the date of knowledge, but even if it is assumed to be so, the date of knowledge must be taken to be 24-12-1954, when the respondents made an application for interim payment and, therefore, the reference sought was barred by time. The High Court allowed the revision application and set aside the order of the Civil Court and directed dealing of the reference on its own merits. This was the subject-matter of challenge before the Apex Court.
31. A three Judges' Bench of the Apex Court in the aforesaid judgment considered the provisions of Section 12 of the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 30 fa518.03.odt Land Acquisition Act and the decision in Raja Harish Chandra Raj Singh's case, cited supra, earlier decided by it. On interpretation of clause (a) in the proviso under Section 18, it is held that when a party is present in a 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. The Apex Court recorded the finding in respect of clause (b) of the proviso that admittedly the award was never communicated to the respondents. While dealing with the contention that the date of knowledge must be taken to be 24-12-1954, the Apex Court observed that the knowledge of the award 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 which must be made known either actually or constructively. If the award is communicated to a party under Section 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of award whether he reads it or not. The Court held that the date of knowledge in the said case should be taken as 22-7-1955 when the amount of compensation was paid and, therefore, the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 31 fa518.03.odt application for reference made on 30-9-1955 was clearly within a period of six months from the date of that award and it was not barred by time within the meaning of the second part of clause (b) of the proviso to Section 18 of the said Act.
32. In the decision of the Apex Court delivered by a Bench of two Judges in the case of State of Punjab and another v.
Satinder Bir Singh, reported in (1995) 3 SCC 330, it was a case where the Collector made his award under Section 11 of the Land Acquisition Act on 1-8-1970. He issued the notice under Section 12(2) of the said Act, which was received by the respondent on 22-9-1970. The compensation was received under protest on 29-9-1970 and thereafter an application under Section 18 of the said Act was made on 21-1-1971 seeking reference to the Civil Court. The Collector rejected the said application as barred by limitation. The High Court in revision set aside the decision of the Collector, holding that the notice did not contain all the details as to how the market value of the land was evaluated; the respondent was not in a position to know the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 32 fa518.03.odt determination of the compensation for making an application for reference under Section 18 and the Court held that it was not a proper notice and the limitation prescribed under Section 18(2) of the said Act was not applicable. The Apex Court set aside the decision of the High Court and rejected the application under Section 18 of the said Act as barred by limitation.
33. In para 8 of the aforesaid decision, the Apex Court has held that from a conjoint reading of Sections 11 and 12 of the Land Acquisition Act, it is clear that notice is only an intimation of making of the award requiring the owner or person interested to receive compensation awarded under Section 11 of the said Act. It holds that it is not necessary that a notice should contain all the details of the award including his consideration and its manner of determination of the compensation, as opined by the learned Judge of the High Court. It is held that the statutory operation of limitation mentioned by Section 18(2) of the said Act does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form.
::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:30 ::: 33fa518.03.odt It holds that the limitation begins to operate from the moment the notice under Section 12(2) is received or as envisaged by Section 18(2). The said decision has been followed by the another Bench of two Judges of the Apex Court in the case of Poshetty & Ors. v. State of Andhra Pradesh, reported in 1996(4) CCC 15 (SC).
34. The Division Benches of this Court in the cases of Smt. Laxmibai Narayan Patil & Anr. v. State of Maharashtra & Anr., reported in 1998(1) CCC 104 (Bom.), and Sadashiorao Balaji Satone and others v. The State of Maharashtra and others, reported in 2004 AIHC 989, relying upon the decision of the Apex Court in Satinder Bir Singh's case, cited supra, have held that the period for obtaining the certified copy of the award is not liable to be excluded and the limitation prescribed under Section 18(2) of the Land Acquisition Act starts running from the date when the notice disclosing the true area of the land and the compensation awarded was received by the claimant.
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35. A Bench consisting of two Judges of the Apex Court again considered the question in its decision in the case of Bhagwan Das & Ors. v. State of U.P. and Ors., reported in AIR 2010 SC 1532. It was a case where an award was made by the Land Acquisition Collector on 14-3-2007 and the appellants were served with the notice on 25-10-2007 to appear before the Collector and receive the amount of compensation. The appellants learnt that the award was made on 14-3-2007 and immediately, therefore, moved an application seeking reference under Section 18 of the Land Acquisition Act on 16-11-2007.
The Collector rejected the application as barred by time, as prescribed under Section 18(2) of the said Act. A writ petition preferred was dismissed on 17-1-2008, and this is how the matter was before the Apex Court. The Apex Court allowed the appeal, set aside the decisions and directed consideration of the matter on merits.
36. The Apex Court considered the two important questions - (i) whether the Collector can condone the delay in ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 35 fa518.03.odt filing an application seeking reference if sufficient cause is shown, and (ii) whether the period of six months under clause (b) of the proviso to Section 18 of the Land Acquisition Act should be reckoned from the date of knowledge of the award of the Collector or from the date of the award itself. The Court held that Section 5 of the Limitation Act cannot be invoked for extension of the period of limitation prescribed under the proviso to Section 18(2) of the Land Acquisition Act and the Collector cannot entertain any application for extension nor extend the bar for seeking the reference, even if there are genuine and bona fide grounds for condoning the delay. Relying upon the two decisions of the Apex Court in the cases of Raja Harish Chandra Raj Singh and Mst. Qaisar Jehan Begum, cited supra, decided in the years 1961 and 1963 respectively, the Apex Court reiterated the view that the words "date of the Collector's award" occurring in proviso (b) to Section 18 of the Land Acquisition Act require 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.
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37. In para 11 of the aforesaid decision in the case of Bhagwan Das, the Apex Court has considered the consequences of literal and mechanical construction of the expression "from the date of the Collector's award" employed in clause (b) in the proviso below sub-section (2) of Section 18 of the said Act, and it is as under :
"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 '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 ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 37 fa518.03.odt 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 300-A 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 regard as referring to the date of knowledge of the essential contents of the award, and not the actual date of the Collector's award."
(Emphasis supplied) The Apex Court considered that the award is only an offer on behalf of the Government, and 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, and invariably the land loser has to make a reference under Section 18 of the Land Acquisition Act for enhancement of compensation. The right to seek a reference to the Civil Court does not accrue unless the award is made. The Court has held ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 38 fa518.03.odt that if the words "date of the Collector's award" are literally interpreted, the effect would be that on expiry of six months from the date of the award, even though the claimant had no notice of the award, he would lose the right to seek a reference, and this will lead to arbitrary and unreasonable discrimination between those who are notified of the award and those who are not notified of the award. It is further held that 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 300-A of the Constitution of India.
38. In the aforesaid decision in in the case of Bhagwan Das, the Apex Court also considered the question of burden of proof. It is held in para 13 as under :
"13. 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 that he (or his representative) ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 39 fa518.03.odt 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 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. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the Mahazar/Panchanama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person interested, not being in possession of the acquired land and the name of the State or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances to not to do so."
Thus, the initial onus is on the person making reference seeking ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 40 fa518.03.odt the benefit of six months' period from the date of knowledge to prove 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 Land Acquisition Act, and that he did not have the knowledge of the contents of the award during the period of six months prior to filing of the application for reference. It is held that the onus is discharged by asserting these facts on oath and it is not expected to prove negative. The Court further holds that 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 said Act, or that he had knowledge of the contents of the award. If further holds that actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the Mahazar/Panchanama/proceedings delivering possession of the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 41 fa518.03.odt acquired land in pursuance of the acquisition, or had filed a case challenging the award, or had acknowledged the making of the award in any document or any statement on oath or evidence.
The Court held that in the absence of such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances to not to do so.
39. In the decision of a three Judges' Bench of the Apex Court in the case of Premji Nathu v. State of Gujarat and Anr., reported in AIR 2012 SC 1624, it was a case where the Collector issued the notice to the appellant under Section 12(2) of the Land Acquisition Act, which was received by him on 22-2-1985.
Similar notices were received by the other land owners on 22-2-1985 and 23-2-1985. As the copy of the award was not annexed with the notice, the appellant obtained the certified copy thereof through his Advocate and then submitted an application dated 8-4-1085 to the Collector for making reference to the Court for enhancement of compensation with solatium ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 42 fa518.03.odt and interest. The Reference Court did not frame any issue of limitation, but concluded that the land owners were interested to enhancement of compensation. However, the application under Section 18(2)(b) of the said Act was dismissed as barred by limitation. The Apex Court allowed the appeal, holding that the claimants were entitled to enhancement of compensation, as was held by the Reference Court along with all statutory benefits.
40. The Apex Court in para 15 of the aforesaid decision, considered the question as to whether the service of notice under Section 12(2) of the said Act was sufficient to start counting the period of limitation and held that the copy of the award was not served upon the appellant along with the notice and without that, the appellant could not have effectively made an application for seeking reference. It was held that on behalf of the State Government, no evidence was produced before the Reference Court to show that copy of the award was sent to the appellant along with the notice, and this aspect was totally ignored by the Reference Court, which mechanical concluded ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 43 fa518.03.odt that the application was barred by time, as specified in Section 18(2)(b) of the said Act, and the High Court also committed a serious error in approving such a view.
41. In the recent decision of a three Judges' Bench of the Apex Court in the case of Madan and another v. State of Maharashtra, reported in (2014) 2 SCC 720, it was a case where the award was passed on 16-8-1985, and in the reference under Section 30 of the Land Acquisition Act disposed of on 4-9-1991, it was held that the appellants are entitled to compensation in respect of 20 acres of acquired land and the remaining parties for compensation in respect of remainder of the acquired land.
The claimants received the compensation on 5-9-1991, and within a period of six weeks therefrom, the reference was sought under Section 18 of the said Act for enhancement of compensation. The Reference Court enhanced the compensation, and in an appeal filed before the High Court, it was held that the reference was barred by limitation. This is how the case was before the Apex Court. It was held that for the first time ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 44 fa518.03.odt on 4-9-1991 (date of the order under Section 30 of the Act) that the appellants came to know that they were entitled to compensation and the quantum thereof. The reference made under Section 18 was within a period of six weeks from 4-9-1991, and the High Court committed an error in holding that the reference was barred by limitation.
42. In para 11 of the aforesaid decision, the Apex Court has held that one of the options open to the Collector is to make a reference to the question of apportionment of compensation to the Court under Section 30 of the said Act, and the other is to relegate the parties to the remedy of the suit. It is held that in either situation, the right to receive the compensation under the award would crystallize after apportionment is made in favour of the claimant. It is only thereafter that the reference under Section 18 of the said Act for enhanced compensation can be legitimately sought by the claimant, in whose favour the order of apportionment is passed either by the Court in reference under Section 30 of the said Act, or in the civil suit, as the case may be.
::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 45fa518.03.odt Summary of the law laid down by the Apex Court :
43. Keeping in view the law laid down by the Apex Court in the decisions in the cases of (a) Raja Harish Chandra, (b) Mst.
Qaisar Jehan Begum, (c) Bhagwan Das, (d) Premji Nathu, and
(e) Madan and another, cited supra, the following principles emerge -
(i) In the cases falling under clause (a) of the proviso below sub-section (2) of Section 18 of the Land Acquisition Act, if the person making the reference ("the claimant") was present or represented before the Collector at the time when the award is made, it can be said to be made when it is so pronounced and the period of limitation starts running from that date, and after expiry of the period of six weeks from such date, the reference has to be dismissed as barred by the law of limitation.
(ii) If the date for pronouncement of the award is communicated to the claimant and it is ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 46 fa518.03.odt accordingly pronounced on the date so previously announced, the said award is said to be communicated to the claimant concerned even if he is not actually present on the date of its pronouncement and the period of limitation shall lapse after six weeks from the date of such pronouncement.
(iii) In the cases falling in first part of clause (b) in the proviso below sub-section (2) of Section 18 of the said Act, what is relevant to be established is the receipt of notice from the Collector under Section 12, sub-section (2) of the Land Acquisition Act, and the period of six weeks prescribed therein starts running from the date of either actual or constructive knowledge of essential contents of the award and it is not a mere knowledge of the fact that the award has been made is sufficient, to hold that the period of limitation starts running from such date without there being any communication, bringing to the notice of the party concerned, the essential contents of the award, either actual or constructive.
(iv) In the cases falling in second part of clause (b) in the proviso below sub-section (2) of Section 18 of the Land Acquisition Act, the same principles ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 47 fa518.03.odt laid down in respect of first part of clause (b) therein, would apply for starting the period of limitation, but in such a case, the limitation would expire after expiry of six months from the date of the Collector's award.
(v) In all the cases, the dispute shall pertain only to the starting and running date or dates, as the case may be, to count the period of limitation. In none of the cases, the Courts are empowered or competent to condone the delay caused in seeking reference after expiry of the period of limitation so prescribed.
44. No doubt, the two decisions of the Apex Court in the cases of Satinder Bir Singh and Poshetty & Ors., which are followed by the Division Benches of this Court in the cases of Smt. Laxmibai Narayan Patil and Sadashiorao Balaji Satone, deal with the controversy of limitation, as contemplated by clause (b) of the proviso to sub-section (2) of Section 18 of the Land Acquisition Act. The ratio of the decision of the Apex Court in Satinder Bir Singh's case is that it is not necessary that a notice under sub-section (2) of Section 12 of the said Act should ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 48 fa518.03.odt contain all the details of the award including his consideration and its manner of determination of the compensation, and that the statutory operation of limitation does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form.
45. The ratio of the decision in aforesaid two cases, which is followed in other cases, is directly in conflict with the ratio of the decisions of the Apex Court in the cases of Raja Harish Chandra Raj Singh, Mst. Qaisar Jehan Begum, Bhagwan Das, Premji Nathu, and Madan and others. The decisions of the Apex Court in the cases of Satinder Bir Singh, and Poshetty and others are rendered by the two Judges, whereas, the decision of the Apex Court in the cases of Mst. Qaisar Jehan Begum, Premji Nathu, and Madan are delivered by the three Judges. The law laid down by the larger Benches is, therefore, binding. The Apex Court in its decision in the case of Mst. Qaisar Jehan Begum has enhanced the ratio of the earlier Division Bench decision in the case of Raja Harish Chandra Raj Singh, and it is held that the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 49 fa518.03.odt limitation shall start running from the date of either actual or constructive knowledge of the essential contents of the award and it is not a mere knowledge of the fact that the award has been made, that is sufficient, to hold that the period of limitation starts running from such date.
The questions of law for determination :
46. It is not the case of any of the parties that either the Collector or the Court exercising jurisdiction under Section 18 of the Land Acquisition Act to determine the market value of the land, has power to condone the delay caused in filing reference beyond the period stipulated in clauses (a) and (b) of the proviso below sub-section (2) therein. In fact, the point is no longer res integra in view of the decision of the Apex Court in the case of Bhagwan Das, cited supra, wherein it has been held that Section 5 of the Limitation Act cannot be invoked for extension of the period of limitation prescribed under the proviso to Section 18(2) of the said Act and the Collector cannot entertain any application for extension nor extend the bar for seeking the ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 50 fa518.03.odt reference, even if there are genuine or bona fide grounds for condoning the delay. While considering the bar of limitation under Section 18 of the said Act, it is not the question of condonation of delay, which is required to be considered, but it is the question of starting point of limitation, which is required to be considered. Hence, the following two questions are required to be considered -
(i) what should be the starting point of limitation, as prescribed in clauses (a) and (b) of the proviso below sub-section (2) of Section 18 of the Land Acquisition Act?, and
(ii) upon whom the burden of proof lies to establish that the reference preferred under Section 18 of the said Act is barred by the law of limitation?
As to Question No.(i) :
47. The Court, acting under Section 18 of the Land Acquisition Act, has to determine the objections as regards -
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(i) the true area of the land, (ii) the compensation, which, in his opinion, should be allowed for the land, and (iii) the apportionment of compensation amongst all the persons to whom it is payable or the persons known or believed to be interested in the land. Such an award passed under Section 11 of the said Act is merely an offer for compensation by the Collector. The offer has to be communicated to the persons having a right to receive compensation. A statutory right to approach the Court for determination of the market value of the land, provided under Section 18 of the said Act, accrues only upon communication of the essential contents of the award. The limitation prescribed under Section 18 of the said Act, therefore, starts running from the date of actual or constructive knowledge of the essential contents of the award.
48. Section 18 of the said Act provides an opportunity to raise grounds on which the objection to the award is taken and it confers a power upon the Court, rather than the Collector, to determine the market value of the land under acquisition. This ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 52 fa518.03.odt opportunity to raise objection is not an empty formality, but it is for effectively exercising the fundamental right under the second proviso below clause (1) of Article 31-A of the Constitution of India for determination by the Court of the true market value of the land under acquisition. Such a fundamental right cannot be effectively exercised without knowing actually or constructively the essential contents of the award, i.e. the mode, manner and the basis of determination of the offer received from the Collector. In the absence of such knowledge, no protest can be raised, as contemplated by sub-section (1) of Section 18 of the said Act, and there is no jurisdiction with the Collector or the Court, acting under Section 18, to permit the amendment of the Reference to raise additional grounds or additional compensation after getting knowledge of the essential contents of the award.
49. The very object of sub-section (2) of Section 12 of the said Act to give notice of award only to such persons interested as were not present personally or by their representatives when ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 53 fa518.03.odt the award was made, is to enable them to raise effective objections to such award to have a market value of their land under acquisition. Otherwise, it would produce curious result of making ineffective this right, and such result could not possibly have been intended by the Legislature, as observed by the Apex Court in Raja Harish Chandra Raj Singh's case, cited supra.
50. Applying the aforesaid principles of law laid down by the Apex Court, it will have to be decided in the facts and circumstances of each case the date from which the period of limitation prescribed under clauses (a) and (b) of the proviso below sub-section (2) of Section 18 of the Land Acquisition Act shall start running. The question No.(i) is, therefore, answered accordingly.
As to Question No.(ii) :
51. Coming to the second question of law regarding burden of proof, no doubt the normal principle is that the burden to prove that the claim is within limitation is upon the person or ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 54 fa518.03.odt party, who comes before the Court, to establish it and it is only upon leading evidence that the onus shall shift upon the respondent or the other side. The Apex Court in the cases of Laxman Lal and K.P. Plantation Private Limited, has held, as has been pointed out in the initial paras, that it is the constitutional obligation upon the State to pay the compensation at a rate which is not less than the market value of the land, as prescribed under the second proviso to clause (1) of Article 31-A of the Constitution of India. It is, therefore, for the State to justify its stand that all the steps, as are required to be taken under sub-section (2) of Section 12 read with Section 18 of the said Act, have been followed, and that the claimant has failed to approach the Court within the time prescribed under clause (a) and (b) below proviso to sub-section (2) of Section 18 of the Land Acquisition Act. If the Collector or the State wanted to prevent the claimant from seeking enforcement of constitutional obligation or fundamental right, then the initial burden is upon it to make out a case by necessary pleadings and proof by leading evidence to show that the claim is barred by the law of limitation, ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 55 fa518.03.odt as prescribed under clauses (a) and (b) below sub-section (2) of Section 18 of the said Act, which shall be subject to evidence in rebuttal.
52. Even the language of the clauses (a) and (b) below sub-section (2) of Section 18 of the said Act requires the Collector to establish the fact that the claimant, as contemplated by clause (a), was present or represented before him at the time when the award was made, and in other cases covered by clause (b), that the claimant had actual or constructive knowledge of the essential contents of the award and that the reference was not preferred within a period of six weeks or six months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to plead and prove that the reference preferred under Section 18 of the said Act was barred by the law of limitation. It is, therefore, for the State, acting through the Collector, to discharge its burden if it wanted to deny a fundamental right to the claimant to get the market value of the land acquired determined by the Court, ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 56 fa518.03.odt by seeking reference under Section 18 of the said Act.
53. It is not expected from the claimant to plead and prove the negative facts that he was not present or was not represented before the Collector when the award was made, as contemplated by clause (a) below sub-section (2) of Section 18 of the Land Acquisition Act, or any other cases covered by clause (b) therein, that he was not having the actual or constructed knowledge of the essential contents of the award so as to prefer a reference under Section 18 of the said Act either within a period of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make such pleading in the reference petition under Section 18 of the said Act, but absence of such pleading would not be enough to deprive the claimant of a right to seek a reference for compensation at a market value of the land under acquisition.
The question No.(ii) is answered accordingly.
54. On the question of limitation, the specific averment in ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 57 fa518.03.odt para 10 of the reference application under Section 18 of the Land Acquisition in the present case is as under :
"10. The applicant came to know about the passing of award on receipt of notice u/s 12(2) of Land Acquisition Act on 28/6/1990 and 10/7/1990. However, he was not aware about the contents of the award. He received the certified copy of the order on 24/7/1990 and at that time they got full knowledge of the contents of the award. The application is within time. The compensation amount has been received by the applicant under protest."
The Collector at whose instance the land was acquired, had raised the question of limitation and the appellant was cross-
examined. The relevant portion of which, is reproduced below :
"The award was passed on 2/5/90. I have filed copy of Award on record. It is at Ex.35. I had gone through the contents of the same. Its contents are correct. It is not correct to say that the reference application filed by me was out of limitation. It is not correct to say that the case is not tenable in this Court."
The appellant has been extensively cross-examined by the Collector but not on the point of limitation. It is, therefore, ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 58 fa518.03.odt amply proved that though the award was passed on 2-5-1990, the claimant got the knowledge of the essential contents of the award upon receiving the certified copy on 24-7-1990 and the reference was preferred under Section 18 of the Land Acquisition Act on 8-8-1990, which was within a period of six months from the date of the knowledge of the essential contents of the award. It was, therefore, perfectly within the period of limitation.
As to Point Nos.(c) and (d) :
55. In paras 10 and 14, the Reference Court has held that the market value of the land acquired is required to be determined at the rate of Rs.10.50 per square foot, whereas in para 21, the Reference Court has held that the market value of the land acquired was Rs.8.50 per square foot, and therefore, the applicant is entitled to get compensation at the rate of Rs.9,25,630/- per hectare (in the operative portion, the compensation is granted at the rate of Rs.9,25,650/- per hectare).
The reliance is placed upon Exhibits 28 and 29, which are the letters said to have been issued by the Tahsildar in the Office of ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 59 fa518.03.odt Collector of Stamps and Valuation at Chandrapur, which show the consideration of Rs.15,000/- for sale of 278.73 sq.mtrs., Plot No.23 in Survey No.76/2. Exhibit 30 relied upon is also the communication by the Deputy Registrar (Stamps), addressed to third person, calling upon him to pay the stamp duty on the valuation of land at Rs.1,380/-. None of these three documents at Exhibits 28, 29 and 30 can be considered as an evidence to determine the market value of the land Survey No.76/2-A, which is under acquisition.
56. Be that as it may, if the value of the land in Exhibit 28 is to be taken into consideration, it is of Rs.15,000/- for sale of 278.73 sq.mtrs. of land, which is equivalent to 3,000 sq.ft., the rate would be Rs.5/- per square foot. Exhibit 30, the communication, does not indicate either the land survey number or the area in respect of which the valuation of Rs.3,180/- is shown. Hence, it is not relevant for determination of compensation. Except this, there is no other document relied upon by the Reference Court to grant the enhancement of ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 60 fa518.03.odt compensation. The Reference Court has, therefore, committed an error in enhancing the compensation to Rs.9,25,650/- without there being any evidence in support of it.
57. The Reference Court has referred to the document at Exhibit 93, which is the sale index, showing sale of 3,400 sq.ft. of land for Rs.3,400/- on 19-6-1984. The another portion of the same land having area of 3,000 sq.ft. was sold for Rs.3,000/- on 27-11-1984. These sale indices indicate the value of the land at the rate of Re.1/- per square foot. Even if 10% is added towards increase per year, the amount would not exceed the rate of Rs.1.70 per square foot. If the market value is calculated at this rate in respect of the land under acquisition, then it would certainly be less than Rs.1,75,000/- per hectare awarded by the Land Acquisition Officer. The Reference Court has, therefore, committed an error in granting enhancement, ignoring the rate reflected by Exhibit 93, the sale index in respect of the same land.
If the market value of the land in question is to be determined by assuming that it is the non-agricultural land, then necessary ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 61 fa518.03.odt deduction on account of development will also have to be considered. All such aspects are ignored by the Reference Court.
The enhancement granted cannot, therefore, be sustained.
58. Shri Maheshwari, the learned counsel appearing for the claimant, has urged that the appellant - Maharashtra State Electricity Board (now Maharashtra State Power General Company Limited) had failed to file written statement to oppose the claim for enhancement of compensation made in the reference. He has, therefore, urged that the appellant was not entitled to file an appeal challenging such enhancement. The contention cannot be accepted. It is for the claimant to establish the entitlement for the market value of the land. Even if the appellant had failed to file written statement opposing the claim for enhancement, that by itself would not be enough to deny the appellant the right of appeal, which is available in law, as provided under Section 54 of the Land Acquisition Act. The appellant is entitled to point out to the Court that the claimant has to stand on his legs, and in the absence of any evidence in ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 62 fa518.03.odt support of the findings recorded, the appellant is entitled to challenge such findings by filing an appeal. The appeal cannot be dismissed on that ground, and the contention is, therefore, rejected.
59. In the result, the appeal is allowed. The judgment and order dated 30-4-2003 passed by the learned Joint Civil Judge, Senior Division, Chandrapur, in Land Acquisition Reference Case No.28 of 1991, is hereby quashed and set aside. The Land Acquisition Reference Case No.28 of 1991 stands dismissed. No order as to costs.
60. It is informed that the appellant has deposited in this Court the entire decretal amount of Rs.38,38,618/-. The claimant is permitted to withdraw certain amount upon furnishing security to the satisfaction of the Reference Court, and the claimant has actually withdrawn such amount. In view of this, the claimant is directed to re-deposit the amount so withdrawn, in this Court within a period of eight weeks from ::: Uploaded on - 26/02/2016 ::: Downloaded on - 31/07/2016 03:26:31 ::: 63 fa518.03.odt today, failing which the appellant shall be entitled to enforce the security so furnished to get the amount realized along with interest at the rate of 4% per annum from the date of withdrawal till its re-deposit. The appellant shall be entitled to withdraw the balance amount lying in deposit in this Court along with interest, if any accrued thereon.
61. At this stage, Shri Maheshwari, the learned counsel for the respondent No.1/claimant, seeks stay of the aforesaid portion of the order permitting the appellant to enforce the security to realize the amount so withdrawn. In view of the fact that this Court has already granted the claimant six weeks' time for re-deposit of the amount in this Court, the question of enforcing the order for a period of eight weeks by the appellant does not arise. Hence, the request of the learned counsel for the respondent No.1/claimant for stay of the order is rejected.
JUDGE.
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