Karnataka High Court
H Hanumappa vs Department Of Commerce & Industries on 14 November, 2013
Bench: N.Kumar, Rathnakala
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14th DAY OF NOVEMBER 2013
PRESENT
THE HON'BLE MR. JUSTICE N. KUMAR
AND
THE HON'BLE MRS. JUSTICE RATHNAKALA
WA No.15250 OF 2011(LA-KIADB)
IN
W.P.No.18232/2011(LA-KIADB)
BETWEEN;
1.H HANUMAPPA
Age:65 YEARS
S/O LATE A L HANUMANTHAPPA
NO.120, AVALAHALLI VILLAGE
UTTARAHALLI HOBLI
BANGALORE SOUTH TALUK.
2.SMT SHARADAMMA
W/O LATE A L HANUMANTHAPPA
Age:80 YEARS
NO.4, AVALAHALLI
MYSORE ROAD,
BANGALORE-26
3.SMT CHIKKAMMA @ SHARADHA
Age:46 YEARS
D/O A L HANUMANTHAPPA
W/O SRI KRISHNASWAMY
NO.6, 11TH CROSS, 3RD STAGE,
GIRINAGARA, BANGALORE-85
2
4.SMT H KEMPAMMA
D/O ALTE A L HANUMANTHAPPA
Age:50 YEARS, W/O SRI H C HANUMAIAH
NO.7, 5TH B CROSS,
3RD STAGE, GIRINAGARA, BANGALORE 85
5.SMT RATHNAPRAKASH
D/O A L HANUMANTHAPPA
Age:48 YEARS, W/O A PRAKASH
NO.30/74, 2ND MAIN RAOD,
11TH CROSS (GURUMURTHY REDDY
COMPOUND) YASHAVANTHAPURA
BANGALORE 560 022
6.SMT H PADMA
D/O LATE A L HANUMANTHAPPA
Age:45 YEARS, W/O SRI A T VASU
NO.202/A, SUGUNA APARTMENT
(OPP. TO RTO OFFICE)
SUBHASH BRIDEG, AHMEDABAD 380 027
GUJARATH STATE. ...APPELLANTS
(By Sriyuths. C M NAGABUSHANA & UDAY.K.S.,
ADVOCATES)
AND:
1.DEPARTMENT OF COMMERCE & INDUSTRIES
STATE OF KARNATAKA, VIKASA SOUDHA
DR.B R AMBEDKAR VEEDHI, BANGALORE
REP.BY ITS SECRETARY.
2.THE SPECIAL LAND ACQUISITION OFFICER-NO.1
KARNATAKA INDUSTRIAL AREA
DEVELOPMENT BOARD(BMICP)
MOURYA MANSION, IST CROSS
GANDHINAGARA, BANGALORE 9
3.NANDI INFRASTRUCTURE CORRIDOR ENTERPRISES
LTD., NO.1, MIDFORD HOUSE
3
MIDFORD GARDEN,
M.G.ROAD, BANGALORE 560 001
BY ITS MANAGING DIRECTOR.
4. NANDI ECONOMIC CORRIDOR
ENTERPRISES LIMITED,
NO.1, MIDFORD HOUSE
MIDFORD GARDENS,
OFF.M.G.ROAD, BANGALORE 560 001
REPTD. BY ITS CONSTITUTED ATTORNEY
...RESPONDENTS
(By Sri.S.V. GIRIKUMAR, AGA FOR R-1 AND R-2
SRI. SANDEEP PATIL, SPL. COUNSEL FOR R-1 7 R-2
SRI.R.V.S. NAIK FOR M/S. KIND AND PARTRIDGE,
ADV, FOR R-3; SRI. MATHAPATHI & DESHPANDE,
ADVOCATE FOR R-4)
-0-0-0-0-0-
THIS WRIT APPEAL IS FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET
ASIDE THE ORDER PASSED IN THE WRIT PETITION
NO.18232/2011(LA-KIADB) DATED 30/06/2011.
This appeal coming on for hearing this day, N.
KUMAR, J. delivered the following:-
JUDGMENT
This writ appeal is filed challenging the order passed by the learned Single Judge who has declined to entertain the writ petition on the ground that the impugned endorsement in the writ petition would not call for any interference.
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2. The subject-matter of these proceedings is the land bearing survey No.71/3 measuring 6 acres 30 guntas situated in Hosakerehalli Village, Uttarahalli Hobli, Bangalore South Taluk. The said land originally belonged to Sri. A.L. Hanumanthappa. The appellants are his children. The said A.L. Hanumanthappa died on 19.7.1985. After his death the name of the first appellant was mutated in the revenue records. The State of Karnataka issued a notification under Section 28(1) of the Karnataka Industrial Areas Development Act, 1966 (hereinafter referred to as "KIAD Act") notifying the said land for industrial purpose. No objections were filed by these appellants. Therefore, a final notification under Section 28(4) of the Act came to be issued on 8.4.2003. The appellant did not challenge the acquisition proceedings. However, on 23.8.2007 an award came to be passed. On the day the award was passed, the appellants were not present before the LAO. The LAO sent the compensation amount to the reference Court under Sections 30 and 31(1) of the L.A. Act. 5 Though no notice was served from the reference Court, the first appellant appeared before the reference Court. His sisters also filed an application for impleadment and appeared before the reference Court. On their submission that there is no dispute between them regarding the apportionment of compensation, an order came to be passed on 7.9.2010 apportioning the compensation in favour of the appellants. The case of the appellants is that only on receipt of the said amount, they came to know that the compensation awarded is Rs.6 Lakhs per acre. Being aggrieved by the same immediately they made an application to the Special Deputy Commissioner on 7.2.2011 requesting him to refer the matter to the civil Court under Section 18 of the L.A.Act. Further, they pointed out that in respect of 26 guntas of "A" kharab land no award has been passed and therefore they requested to take appropriate steps to pass award in respect of the said land.
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3. On receipt of the said application, an endorsement came to be issued on 28.3.2011 pointing out that the award notice under Section 12(2) of the LA act was served on the appellants on 13.2.2008. The application requesting for a reference under Section 18 of the Act has to be made within 90 days from the date of service of notice of the award and as the request made now is beyond 90 days their request for reference cannot be granted. Aggrieved by the said endorsement the petitioners preferred writ petition before this Court contending that no notice under Section 12(2) of the Act was served on the appellants.
4. The learned single Judge after referring to Sections 12 and 18 of the Act has held that what is to be considered is the knowledge of the award. Even if no notice was served, once the land owner comes to know of the passing of such an award, the limitation starts from the date of knowledge. When the appellants appeared before the reference Court, they were aware of the passing of the award. They have not filed an 7 application immediately thereafter. They have waited till the order apportioning the amount is passed and it is only thereafter, they have approached the Deputy Commissioner, which is clearly barred by time and therefore, the endorsement issued is in accordance with law and no case for interference with the said endorsement is made out. Accordingly, the writ petition came to be dismissed. Being aggrieved by the said order, the appellants are before this Court.
5. The learned counsel appearing for the appellants assailing the impugned order of the learned single Judge contends that in the first place admittedly along with the award a copy of the award was not even sent and therefore the question of due service of notice of the award as contended by the second respondent is not tenable. Secondly, he contended that it is only when an order apportioning the amount of compensation awarded was passed he came to know that only Rs.6 Lakhs was awarded per acre and till such time he was not aware of the amount of compensation 8 awarded. From that date within 90 days an application is made. The endorsement stating that the award was duly served as far back as 13.3.2008 is incorrect. Therefore, the endorsement issued is liable to be set aside.
6. Per contra, the learned counsel for the Board submitted that after the passing of the award a notice of the award was sent to the first appellant. May be there was a typographical error in mentioning his father's name instead of his name. But the notice was sent to the address given by the first appellant. Therefore, it cannot be said that the said notice is not a valid notice or that the said notice is not duly served. The said notice was sent by certificate of posting. Therefore, he submits that the learned Single Judge was justified in not interfering with the endorsement issued.
7. The learned counsel appearing for the beneficiary adopting the arguments of the learned counsel for the second respondent submitted that when 9 once the award was sent to the reference Court and in those proceedings, the appellant appeared and on their request an order apportioning the compensation is made, it is not open to them to contend that till then they were not aware of the contents of the award. Therefore, the authorities were justified in declining to make a reference under Section 18.
8. Section 12 of the Act provides 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 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 appointment of the compensation among the persons interested.
(2) The Collector shall give immediate 10 notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.
9. Section 18 deals with reference to Court, which reads as under:-
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 person 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:
Provided that every such application shall be made-11
(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.
10. Section 45 of the Act deals with service of notice which reads as under:-
45. Service of notices. - (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 section 4, by the officer therein mentioned, and, in the case of any notice, by or by 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.
(3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and, if no such adult male member 12 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 6[registered under sections 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."
Under Karnataka amendment to Section 18, the proviso to Sub-Section(2) is substituted, which reads as under:-
"Provided that every such application shall be made within ninety days from the date of the notice from the Deputy Commissioner under sub-section(2) of Section 12."
The Apex Court in the case of Premji Nathu .vs. State of Gujarat and another [(2012) 5 Supreme Court 13 Cases 250] after adverting to the aforesaid provisions held as under:-
"12. An analysis of the above reproduced provisions shows that by virtue of Section 12(1), an award made by the Collector is treated as final and conclusive evidence of the true area and value of the land and apportionment of the compensation among the persons interested. In terms of Section 12(2), the Collector is required to give notice of his award to the interested persons who are not present either personally or through their representatives at the time of making of award.
13.Section 18(1) provides for making of reference by the Collector to the Court for the determination of the amount of compensation etc. Section 18(2) lays down that an application for reference shall be made within six weeks from the date of the Collector's award, if at the time of making of award the person seeking reference was present or was represented before the Collector. If the person is not present or is not represented before the Collector, then the application for reference has to be made within six weeks of the receipt of notice under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire.14
14. The reason for providing six months from the date of the award for making an application seeking reference, where the applicant did not receive a notice under Section 12(2) of the Act, while providing only six weeks from the date of receipt of notice under Section 12(2) of the Act for making an application for reference where the applicant has received a notice under Section 12(2) of the Act is obvious. When a notice under Section 12(2) of the Act is received, the landowner or person interested is made aware of all relevant particulars of the award which enables him to decide whether he should seek reference or not. On the other hand, if he only comes to know that an award has been made, he would require further time to make enquiries or secure copies so that he can ascertain the relevant particulars of the award.
15. What needs to be emphasised is that along with the notice issued under Section 12(2) of the Act, the land owner who is not present or is not represented before the Collector at the time of making of award should be supplied with a copy thereof so that he may effectively exercise his right under Section 18(1) to seek reference to the Court.
16. In Harish Chandra Raj Singh v. Land Acquisition Officer, AIR 1961 SC 1500, this Court was called upon to decide whether the 15 expression 'date of award' is to be interpreted with reference to the time when the award is signed by the Collector or from the date the affected party comes to know about the same and held as under: (AIR pp.1503-04, paras 5-6) "5. ..... Therefore, if 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 cases of award made under the Act cannot be reasonably excluded. Thus considered 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; it must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words 'the date of the award' occurring in the relevant section would not be appropriate.
6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately 16 affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the Office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively . If the award is pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the 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. Similarly if without notice of the date of its pronouncement an 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 expression 'the date of the award' used in the proviso must mean the date when the award is either 17 communicated to the party or is known by him either actually or constructively. In our opinion, therefore, 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."
(emphasis supplied)
17. In State of Punjab v. Qaisar Jehan Begum, the principle laid down in Harish Chandra's case was reiterated and it was held: (AIR 1963 SC 1607, para 5) "5. ... It seems clear to us that the ratio of the decision in Harish Chandra case is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, 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. These contents may be 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 the award whether he reads it or not. Similarly when a party is present in 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. Having regard to the scheme of the Act we think that 18 knowledge of the award must mean knowledge of the essential contents of the award."
(emphasis supplied)
18. In Bhagwan Das v. State of Uttar Pradesh this Court interpreted Section 18 and laid down the following propositions: (SCC pp.553054, para 28) "(i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under Section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under Section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six 19 months for making the application on the ground that the date of receipt of notice under Section 12(2) of the Act was the date of knowledge of the contents of the award."
The Court in Bhagwan Das then held:
(SCC p.554, paras 30-31) "30. When a person interested makes an application for reference seeking the benefit of six months' period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference.
This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under Section 12(2) of the Act, or that he had knowledge of the contents of the award.
31. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had 20 received or drawn the compensation amount for the acquired land, or had attested the mahazar/panchnama/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 not to do so."
Interpreting the provisions introduced by way of Karnataka amendment by Section 18, this Court in the case of K. Laqkshminarayana Sastry .vs. Land Acquisition Officer [ILR 1994 KAR 2119] held as under:-
"3. The second ground on which reference was rejected is that the claimant had knowledge of the Award even before 90 days of the application of 21 the reference dated 18-1-1990. That question will depend upon the interpretation of Section 18 of the Land Acquisition Act as amended by the Karnataka Land Acquisition Amendment Act, 1961 (Karnataka Act No. 17/61). Under the Central Act, the proviso to Section 18(2) provides the period of limitation for making an application for reference to the Court before the Land Acquisition Officer. The Central Act provides for two periods of limitation, viz., if the person making the application for reference was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award and in other cases, within six weeks of the receipt of the notice from the Collector under Section 12 sub-section (2) or within six months for the date of the Collector's award, whichever period shall first expire. But this proviso is not in force in the Karnataka State as the proviso to Section 18(2) of the Central Act was 22 substituted by another proviso which reads as follows:
"Provided that every such application shall be made within ninety days from the date of service of the notice from the Deputy Commissioner, under sub- section (2) of Section 12."
From the aforesaid proviso, as introduced in the Karnataka State, it is absolutely clear that there is only one period of limitation for making application for reference under Section 18 of the Land Acquisition Act, viz., within 90 days from the date of service of notice from the Deputy Commissioner under sub-section (2) of Section 12.
In other words, the period of limitation will begin to run only from the date of notice under sub-section (2) of Section 12 and the question of knowledge of the award is immaterial in calculating the period of limitation for making an application for reference to the Civil Court under Section 18 of the Land Acquisition Act. The proviso as 23 introduced by the Karnataka Land Acquisition (Amendment) Act is absolutely clear that the starting point of the period of limitation is the date of service of notice under sub-section (2) of Section 12 only and not any other date. When the Land Acquisition Act as amended in the Karnataka State provides only for one period of limitation, any application filed within that time shall be deemed to be within time and the reference cannot be rejected on the ground that the applicant had knowledge of the Award before that date".
From the aforesaid statutory provisions and the judgments, it is clear that after an award is passed under Section 11 the Collector shall give immediate notice of the award to such of the persons interested as are not present personally or by their representatives when the award is made. Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by 24 the Collector for the determination of the Court, whether the amount of the compensation paid is proper or not. However, in the said application, he shall set out the grounds on which he is not accepting the award. The proviso to the said provision makes it clear that such an application has to be made within six weeks from the date of the Collector's award if the owner of the land was present or represented before the Collector at the time of passing of the award. In the Karnataka amendment, in substitution of the said proviso, a provision was added to the effect that every application shall be made within 90 days from the date of service of notice from the Deputy Commissioner under sub-section (2) of Section 12. Therefore, service of notice of the award assumes importance.
9. In the instant case, the specific case of the second respondent is after the passing of the award, notice of the award was sent to the appellant on 2.2.2008 by way of certificate of posting. The award is 25 addressed to H. Hanumanthppa bin late A.L.Hanumanthappa. The first appellant is Hanumappa. Hanumanthappa is his father. Therefore, it is obvious that the notice of the award under Section 12(2) is not addressed to the first appellant at all. Similarly, no notice is sent to the other members of the family. Even that notice was sent by certificate of posting and admittedly, it is not served. Therefore, that cannot be the date of service of notice on the first appellant. Therefore, the authorities were not justified in holding that notice was duly served on the first appellant on 13.2.2008 and therefore, erred in stating that the application seeking reference is beyond time.
10. Now the next question for consideration is whether the participation of the appellants in the reference proceedings under Sections 30 and 31 of the L.A. Act would constitute notice of passing of the award and whether from that date within 90 days they should have filed an application before the LAO seeking reference. Assuming that the Deputy Commissioner 26 fails to make a reference, it is open to the appellants to approach the civil Court under Section 18(3) of the Act seeking a direction to the Deputy Commissioner to make a reference. It is at that stage, the reference Court has to go into the question whether the application made by the appellants before the Deputy Commissioner was within time or is barred by time. In the facts of this case, keeping in mind the statutory provisions referred to supra and other judgments of the Apex Court, no case is made out for issuing a direction to the Deputy Commissioner for making reference, as that cannot be gone into in these proceedings.
11. In the result, I proceed to pass the following:-
ORDER
(a)The writ petition is allowed.
(b) The order passed by the learned Single Judge is set aside. The endorsement issued by the KIADB-2nd respondent is quashed.27
(c) It is open to the appellants to make an application before the reference Court as still three years period prescribed under Section 18(3) of the Act has not expired as three years period has to be computed from 7.1.2011.
(d) If such a proceeding is
initiated, every one will have an
opportunity to put forth their contention and the reference Court shall decide all the questions arising between the parties. Therefore, all contentions are left open.
Ordered accordingly.
Sd/-
JUDGE.
Sd/-
JUDGE.
*alb/-.