Madhya Pradesh High Court
Bhura vs The State Of Madhya Pradesh on 16 September, 2015
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C.R. No.129/2015
16.9.2015
Shri Shailendra Mukati, learned counsel for the petitioner.
Shri Rohit Mangal, learned counsel for the State.
Heard finally with consent.
This revision petition under Section 115 of the CPC is
directed against the order of the District Judge dated 2.12.2014
rejecting the petitioner's application for reference under Section
18 of the Land Acquisition Act, on the ground of limitation.
The impugned order reveals that the award was passed
on 8.9.2003 and thereafter the reference application under
Section 18 was filed on 7.12.2011. It has been noted that no
intimation under Section 12(2) of the Land Acquisition Act was
given.
When the matter is taken up today, learned counsel
appearing for the petitioner has submitted that a batch of
revision petitions involving the same issue in the similar
circumstances when the reference was rejected on the ground
of limitation, have been decided by order dated 24.6.2015 in
C.R. No.42/2015 in the matter of Somli Vs. State of M.P. and
other connected petitions and this Court has set aside the
impugned order and remitted the matter back to the District
Judge for deciding the reference on merit.
Counsel for the respondent has not disputed the above
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submission.
This court in the matter of Somli (Supra) has passed the following order :-
Regard being had to the similitude in the controversy involved in the present cases, the civil revisions were analogously heard and by a common order, they are being disposed of by this Court. Facts of Civil Revision No.42/2015 are narrated hereunder.
2- The applicant before this Court, who is a tribal living in a remote village of Tehsil and District Jhabua which is a scheduled area, is aggrieved by the order dated 02/12/2014 passed by the learned District Judge, Jhabua in Misc. Civil Case (Land Acquisition) No.62/2013 (Somli Vs. State of M.P.).
3- The facts of the case reveal that the land acquisition proceedings were initiated in respect of land belonging to a tribal lady and an award was passed on 08/09/2003. The amount of compensation was paid on 17/10/2003. No notice or information as required under Sec.12(2) of the Land Acquisition Act was furnished to the present applicant Somli and after expiry of about 8 years she has approached the Collector by filing an appropriate application under Sec.18 of the Land Acquisition Act.
4- The application was forwarded by Collector to the District Judge as required under the Act and the learned District Judge has dismissed the application on the ground of limitation as the application was not preferred within a period of six months. Learned District Judge has also observed that the applicant has received the compensation without any protest, 3 therefore, she is not entitled to made a reference under Sec.18 of the Act.
5- Objection is raised in respect of the present civil revision by respondent - State of M. P. and it is argued that the civil revision is not maintainable and an appeal under Sec.54 of the Land Acquisition Act is maintainable. 6- Learned counsel for the applicant has placed reliance upon the judgment delivered by Bombay High Court in the case of Mangilal Jawanmal & Others Vs. The Spl. Land Acquisition Officer (I), Thana reported in AIR 1978 Bombay 325. Para 8 of the aforesaid judgment reads as under:-
"8. We shall first deal with the preliminary objection that has been raised by Mr. Kotwal to the maintainability of the special civil application as well as the revision applications. According to Mr. Kotwal under Section 26 read with Section 54 of the said Act, an appeal has been provided for to this Court against every award that would be made by the Civil Court in a reference made to it by the Collector and since in these cases the references were rejected by the Joint Judge, Thana, on the ground that they were not maintainable because the condition precedent pertaining to limitation had not been satisfied the petitioners who were aggrieved by that order ought to have preferred an appeal to this Court under Section 54 of the Act and in view of this alternate remedy that was available to the petitioners, the writ petition as well as the two revisional applications should be held to be not maintainable or incompetent. It is not possible to accept this submission of Mr. Kotwal for the simple reason that what has been provided by Section 54 of the Act is that "an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court" and what constitutes an award of the Civil Court has been provided for in Section 26 of the Act which says that 4 "every award under this Part shall be in writing signed by the Judge and shall specify the amount awarded under clause first of Sub-sections (1) of Section 23, and also the amounts (if any respectively awarded under each of the other clauses of the same Sub-section, together with the grounds of awarding each of the said amounts." Sub-section (2) of Section 26 provides that "every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2), and Section 2, Clause (9) respectively of the Civil P. C., 1908". It will thus appear clear that under Section 54 read with Section 26, it is only against an award as contemplated tinder Section 26 that an appeal has been provided for under Section 54. In other words, an appeal will He against any award or part of the award which specifies the amount awarded under one or the other clauses of Section 23 and which also specifies the amounts respectively awarded under each of the said clauses together with the grounds of awarding each of the said amounts. In each one of the three cases before us, no awards as contemplated by Section 26 was made. Actually in Civil Revision Application. No. 736 of 1975 the order challenged is not of the Civil Court at all but the order of the Special Land Acquisition Officer refusing to make the reference on the ground that the application for reference was barred by time while in the other two cases the order passed by the Civil Court rejecting the references was on the ground that the applications seeking references were barred by limitation. In other words, no award as contemplated by Section 26 of the Act has come into existence in any of these three cases with the result that Section 54 would not come into operation, Having regard to this position it seems to us clear that the remedy by way of appeal as contemplated by Section 54 of the Act was not available to the petitioners and therefore the preliminary contention is liable to be rejected."5
7- The contention of learned counsel for the applicant is that as no award has been passed then the only remedy available the applicant is to file a civil revision. He has also placed reliance upon the judgment delivered by the Apex Court in the case of Sunderlal Vs. Paramsukhdas and others reported in AIR 1968 SC 366. Paragraph 21 of the aforesaid judgment reads as under:-
"(21) This leaves only the two points regarding the jurisdiction of the High Court. In our view, the High Court is quite right in holding that the orders of the Civil Judge, dated April 9, 1962, were not awards within s. 54 of the Act. The awards had still to be made. If no appeal lay, then the revisions were competent and the High Court was right in entertaining the revisions because the Civil Judge had either refused to exercise jurisdiction vesting in him or had acted with material irregularity in the exercise of his jurisdiction."
8- His contention is that in light of the aforesaid judgment as no award has been passed under Sec.54 of the Act, the question of filing an appeal does not arise. He has also drawn the attention of this Court towards the statutory provisions governing the field as contained in Sec.23, 26 and 54 of the Act.
9- On the other hand, learned counsel for the respondent/State has placed heavy reliance on Sec.115 of the Code of Civil Procedure, 1908 and she has argued before this Court that no such revision is maintainable.
10- This Court carefully gone through the aforesaid statutory provision of Sec.23, 26 and 54 of the Act which reads as under:-
"23. Matters to be considered on determining compensation. - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-6
first, the market-value of the land at the date of the publication of the [notification under section 4, sub- section (1)];
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of serving such land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
[(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation. - In computing the period referred to in this sub- section, any period or periods during which the proceedings 7 for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.] (2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition."
26. Forms of awards. - [(1)] Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub- section, together with the grounds of awarding each of the said amounts.
[(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2. clause (2), and section 2, clause (9), respectively of the Code of Civil Procedure 1908 (5 of 1908).] [54. Appeals in proceedings before Court. - Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to 4[the Supreme Court] subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof.]"
11- This Court is of the considered opinion that the order passed by the learned District Judge is revisable. Not only this, this Court is dealing with a tribal lady who is illiterate, does 8 not have any knowledge of law, financial means and she belongs to lowest strata of the society. In the considered opinion of this Court and especially in the light of the judgment delivered by the Bombay High Court in the case of Mangilal Jawanmal (supra) and in the light of the judgment delivered by the Apex Court in the case of Sunderlal (supra) the revision is certainly maintainable.
12- The other aspect of the case is whether the reference which was made after expiry of the limitation was to be decided on merits or not.
13- The Division Bench of this Court in the case of Kabul Singh and others Vs. State of M. P. and others reported in 2012(4) MPLJ 61 even though the person therein has accepted the award, has held that there is no particular form of protest provided under Sec.31(2) of the Land Acquisition Act and mere acceptance of compensation does not deprive the land owners to lodge a protest by way of seeking a reference, and therefore, merely because the applicant who is a tribal illiterate lady has received the compensation, it will not mean that she is not entitled to made a reference, keeping in view the judgment delivered by the Division Bench of this Court.
14- There is certainly a delay in filing the reference by the present applicant. In almost similar circumstances the Division Bench of Orissa High Court, in the matter of grant of compensation and reference under Sec.18 especially in case of a tribal, has held that rejection of reference especially when the Collector has failed to understand that the applicants is a rustic tribal, is bad in law. 15- The present revision is maintainable 9 and the tribals can make a request even after receiving the compensation. It is an admitted fact that the present applicant is a tribal lady living in a scheduled area of Jhabua district and therefore, in the considered opinion of this Court the delay in making reference, in the peculiar facts and circumstances of the case, will not deprive a tribal person of the remedy available under Sec.18 of the Land Acquisition Act.
16- Resultantly, the impugned order dated 02/12/2014 is hereby quashed. The matter is remanded back to the learned District Judge, Jhabua to proceed ahead with the reference on merits. As it is a old case of a tribal person, learned District Judge is also directed to decide the matter as expeditiously as possible preferably within a period of six months from the date of receipt of certified copy of this order. 17- All other connected civil revisions, as they also relates to illiterate tribal persons, are also allowed on similar line. Learned District Judge is directed to hear all other cases on merits. 18- With the aforesaid observation, the civil revision stand allowed alongwith other connected revisions which are arising out of the same dispute. The applicants are directed to appear before the learned District Judge on 06/07/2015."
Since it is undisputed between the counsel for the parties that the present matter also stands on the same footing, therefore, on the basis of the reasons which have been assigned by this Court in the order dated 24.6.2015 in the matter of Somli (supra), the present writ petition is also 10 allowed and the impugned order dated 2.12.2014 passed by the learned District Judge dismissing the reference on the ground of limitation is set aside, and the matter is remitted back for fresh decision on merit by the learned District Judge.
Revision petition is accordingly disposed of. C.C. as per rules.
(Prakash Shrivastava) Judge trilok