Gujarat High Court
Galabsang Abhuji vs Special Land Acquisition on 27 June, 2013
Author: Jayant Patel
Bench: Jayant Patel
GALABSANG ABHUJI....Petitioner(s)V/SSPECIAL LAND ACQUISITION OFFICER....Respondent(s) C/SCA/7624/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7624 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ GALABSANG ABHUJI....Petitioner(s) Versus SPECIAL LAND ACQUISITION OFFICER....Respondent(s) ================================================================ Appearance: MR KM SHETH, ADVOCATE for the Petitioner(s) No. 1 MR DHAWAN M. JAYSWAL, AGP for the Respondent(s) No. 1 NOTICE SERVED for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL and HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 27/06/2013 ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL) Rule.
Learned A.G.P. Mr. Jayswal waives notice of Rule. The matter is finally heard.
The petitioner has preferred the present petition for challenging the legality and validity of the order dated 22.2.2013 passed by the respondent whereby the application of the petitioner under Section 18 of the Land Acquisition Act (for short the Act ) has been dismissed on the ground that the same was time barred.
The short facts of the case appears to be that the land of the petitioner was acquired for the construction of Jinjuwada Branch Canal of Narmada Project. The notification under Section 4 as well as under Section 6 were published and thereafter the Award was passed on 7.2.2011 by the Special Land Acquisition Officer whereby he awarded the compensation at Rs.7.61 per sq. meter for irrigated land and Rs.5.07 per sq. meter for non-irrigated land. As per the petitioner, on 16.5.2011, within a period of 6 months from the date of the Award, dispute was raised under Section 18 for additional compensation. However, the said application came to be dismissed by the impugned order (Annexure A). Under the circumstances the present petition before this Court.
We have heard Mr. Sheth for the petitioner and Mr. Jayswal, learned A.G.P. for the respondent.
It appears from the statement made in the petition as well as from the Affidavit in Reply and Rejoinder that as per the petitioner no notice under Section 12(2) of the Act was ever served upon him, whereas as per the respondent, Notice under Section 12(2) was served upon one Fatesing Kanthaji since he accepted the notice on behalf of the petitioner. The respondent has also stated that the notice has been sent by U.P.C. and there is further confirmation of the receipt of the notice through Fatesing by the son of the petitioner and under these circumstances it has been submitted on behalf of the respondent that the statutory period had expired if considered from the date of the service of the notice under Section 12(2) of the Act and, therefore, the respondent has rightly rejected the application under Section 18 of the Act being time barred.
Section 12 of the Act, for ready reference, reads as under :
12. Award of Collector when to be final (1) Such award shall be filed in the Collector s office and shall, except as herein after 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 apportunment of the compensation among the persons interested.
(2) 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.
The aforesaid section shows that the Collector has to give notice of the award to the person concerned or by their representative when the award is made. In the present case, it is an admitted position that the notice is not served upon the petitioner. No authentic document is produced on behalf of the respondent to show that Fatesing Kanthaji, served with the notice, was the authorized representative of the petitioner. Be it recorded that Fatesing Kanthaji is not even the family member of the petitioner. Therefore, as such the notice under Section 12(2) of the Act could not be said as served upon the petitioner or his authorized representative.
The attempt made to contend that the notice was served by UPC also cannot be countenanced and it can be said that such procedure adopted is contrary to the statutory provision inasmuch as Section 45 of the Act provides for a particular mode and the manner of effecting service of the Notice. Section 45 of the Act reads as under :
45. Service of notice (1) Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed in the case of a notice under Section 4, by the officer therein mentioned and in the case of any other notice by an order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice shall be made on the person therein named.
When such person cannot be 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 fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing 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.
Provided 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 [registered under section 28 and 29 of the Indian Post Office Act, 1898 (6 of 1898)], and service of it may be proved by the production of the addressee s receipt.
The aforesaid proviso to sub-section (3) makes it clear that the amendment has been made by the Parliament in the year 1984 whereby when the notice is to be sent by the Collector or a Judge, a Notice may be required to be served through registered post only. Under these circumstances the mod adopted for sending the notice by UPC cannot be said as valid in the eye of law.
If the service of the Notice under Section 12(2) of the Act is invalid then it could not be said that the dispute under Section 18 was barred on the date when it was made. Further, as per Section 18(2), clause (b), for other cases such dispute could be raised within 6 months from the date of the Collector s Award. The dispute, in the present case, has been raised within a period of 6 months from the date of the Award and, therefore, it cannot be said that the dispute under Section 18 or that the application for raising dispute under Section 18 for additional compensation was barred.
In view of the aforesaid observation and discussion the impugned order (Annexure A) deserves to be quashed and set aside and hence it is quashed and set aside with further direction that as the application under Section 18 made by the petitioner was not barred by limitation, and it is obligatory upon the respondent to refer the mater to Reference Court for adjudication, the respondent shall refer the matter to the appropriate Court for adjudication in accordance with law. Such exercise shall be completed within a period of 8 weeks from today.
Before parting, we may record that it has transpired during the course of hearing that as per learned A.G.P. since the Notices under Section 12(2) are to be served in bulk, the procedure is being followed by the Special Land Acquisition Officer for sending such notices by UPC which, as per the view taken by us herein above, is not the correct procedure, more particularly, after amendment under Section 45(3) of the Act. Therefore, we find it proper that the aforesaid aspect is brought to the notice of the Secretary, Revenue Department of the State Government in order to see that there is proper compliance to the procedure for sending the notices under the Land Acquisition Act by registered A.D. Post and not by UPC. The office shall send the copy of this order to the Secretary, Revenue Department of the State Government for appropriate action so as to inform all concerned Special Land Acquisition Officers in this regard. Such action may be taken within a period of 3 months from the receipt of the order and the report shall be submitted to the Registrar General of this Court. If the report is not submitted, the matter shall be placed before this Court for further orders.
The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs.
(JAYANT PATEL, J.) (Z.K.SAIYED, J.) SAS Page 7 of 7