Gujarat High Court
Shabhaibhai Ramabhai Since Decd. ... vs State Of Gujarat & 2 on 4 July, 2017
Author: Akil Kureshi
Bench: Akil Kureshi, Biren Vaishnav
C/SCA/2964/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2964 of 2017
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SHABHAIBHAI RAMABHAI SINCE DECD. THROUGH HIS
HEIRS....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR VIJAY N RAVAL, ADVOCATE for the Petitioner(s) No. 1
BHARGAV KARIA & ASSO, ADVOCATE for the Respondent(s) No. 3
MR PRANAV TRIVEDI, ASST GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 04/07/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. The petitioner has challenged the communication dated 06.10.2016 and has prayed for a direction to the respondents to decide the petitioner's reference application dated 03.10.2016.
2. Brief facts are as under:
2.1 The petitioner is the owner of land bearing Survey No. 191 admeasuring 22 Are 03 sq.mt situated in village Wajewal, Taluka Thasara, District Kheda. The State Government Page 1 of 8 HC-NIC Page 1 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER proposed to acquire the said land along with other adjacent lands for which a notification under Section 4 of the Land Acquisition Act, 1894 ('the Act' for short) was issued on 07.02.2007. Notice under Section 6 of the Act was issued on 23.07.2007 at which stage the petitioner had also filed his objections to the proposed acquisition. According to the petitioner, for a long time thereafter, there was no communication from the Special Land Acquisition Officer in connection with the petitioner's land and the compensation to be paid for the acquisition of the same. We may record that according to the petitioner, the possession of the land was taken over even before the publication of the notification under Section 4 of the Act.
2.2 It appears that an award was passed by the Land Acquisition Officer in case of the petitioner's land and other lands covered under the same acquisition notification on 31.01.2009. According to the petitioner, though required under the law, communication of such award was not made by the Special Land Acquisition Officer to the petitioner. The petitioner, therefore, on 07.04.1014 wrote a letter to the Land Acquisition Officer inquiring as to whether in connection with his land any award has been passed or not. According to the petitioner, in response to such letter, the Land Acquisition Officer supplied a copy of the award dated 31.01.2009 to the petitioner on 16.05.2016. The petitioner thereupon wrote to the Land Acquisition Officer on 26.05.2016 seeking a reference to the District Court under Section 18 of the Act.
This request was turned down by the Land Acquisition Officer by impugned communication dated 03.10.2016 on the ground that the award was passed on 31.01.2009 and the reference Page 2 of 8 HC-NIC Page 2 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER was sought on 26.05.2016 which was after much delay. The request for reference was thus beyond limitation.
3. To challenge such a communication, the petitioner in the present petition has averred that no communication of the award was made to the petitioner in terms of Section 12(2) of the Act. It was only when the petitioner inquired with the Land Acquisition Officer under letter dated 07.04.2014 that a copy of the land acquisition award was made available on 16.05.2016. In terms of the provisions of sub-section (2) of Section 18 of the Land Acquisition Act, according to the counsel for the petitioner, therefore, the request for reference could not even be rejected as time barred.
4. On the other hand, the State authorities have filed replies dated 03.07.2017 and 04.07.2017 mainly contending that a sum of Rs.10,140/- was paid to the petitioner through cheque dated 18.11.2010 by way of compensation. Such compensation was received by the petitioner shortly thereafter and the petitioner thus knew about the factum of the award having been passed by the Land Acquisition Officer. He, therefore, could not have moved the Land Acquisition Officer for making the reference long thereafter in May 2016. The respondents, however, do not dispute the petitioner's assertion that no communication under section 12(2) of the Act was ever made to the petitioner.
5. Few undisputed facts, therefore, are that:
(i) The award was passed by the Special Land Acquisition Officer on 31.01.2009.Page 3 of 8
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(ii) The petitioner was paid compensation as per such award under a cheque dated 18.11.2010. The petitioner does not dispute having received the amount of compensation of Rs.10,140/-.
(iii) The Collector had not sent a notice of his award to the petitioner in terms of Section 12(2) of the Act.
(iv) The petitioner was supplied a copy of the Land Acquisition Officer award on or around 16.05.2016.
(v) The petitioner sought a reference under section 18 of the Act under such award on 26.05.2016.
(vi) By impugned communication dated 03.10.2016 such request was turned down on the ground that the application was barred by limitation.
6. Section 18 of the Act pertains to reference to a Court. In terms of sub-section (1) of Section 18, any person who is interested but has not accepted the award can by writing to the Collector require that the matter be referred to the Court for determination of his objections regarding measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation amongst persons interested. Sub-section (2) of Section 18 requires that the application shall state the grounds on which the objections to the award is taken. Proviso to Section 18 lays down the period of limitation and provides that the application for reference shall be made (a) if the person making the application is present or represented before the Collector at the time when the award was passed, within six weeks from the date of the award and (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12(2) of the Act or within six months from the date of the Page 4 of 8 HC-NIC Page 4 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER Collector's award whichever expires earlier.
7. Since it is not the case of the respondents that the petitioner or his representative was present before the Collector when the award was passed, the case of the petitioner would fall in clause (b) of the proviso. In such a case, the period of limitation would be six weeks of the receipt of the notice under section 12(2) of the Act or six months from the date of the award whichever is earlier. In the present case, as stated by the respondents in the affidavit dated 04.07.2017, there is no record to suggest that the notice under section 12(2) of the Act was served on the petitioner. The case of the petitioner would, therefore, fall under the latter expression of clause (b) of the proviso.
8. Though this proviso in plain terms provides for limitation of six months from the date of the Collector's award, the same has come up for judicial interpretation earlier. In case of Premji Nathu vs. State of Gujarat and Another reported in AIR 2012 SC 1624, the Supreme Court considered the case where the Collector had served notice under section 12(2) of the Act but such notice was not accompanied by a copy of the award. In this background, it was held and observed as under:
"10. An analysis of the above reproduced provisions shows that by virtue of Section 12(1), an award made by the Collector is treated 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.Page 5 of 8
HC-NIC Page 5 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER 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.
11. 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. 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."
9. In case of Bhagwan Das And Others vs. State of U.P. And Others with Nayantara Gupta And Others vs. State of U.P And Others reported in AIR 2010 SC 1532, the Page 6 of 8 HC-NIC Page 6 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER Supreme Court laid down following principles:
"12. The following position therefore emerges from the interpretation of the proviso to section 18 of the Act :
(i) If the award is made in the presence of the person interested (or his authorised representative), he has to make the application within six weeks from the date of the Collector's award itself.
(ii) If the award is not made in the presence of the person interested (or his authorised representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2).
(iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award.
(iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award. A person who fails to make an application for reference within the time prescribed is not without remedy. It is open to him to make an application under section 28A of the Act, on the basis of an award of the court in respect of the other lands covered by the same acquisition notification, if there is an increase. Be that as it may."
[Emphasis Supplied]
10. Learned counsel for the petitioner drew our attention to Page 7 of 8 HC-NIC Page 7 of 8 Created On Sun Jul 23 10:52:16 IST 2017 C/SCA/2964/2017 ORDER two Division Bench judgements of this court in the case of Galabsang Abhuji vs. Special Land Acquisition Officer, Narmada Yojana reported in 2013(4) GLR 3085 and order dated 28.09.2015 in case of Patel Ramesh Gaga vs. General Manager, Sardar Sarovar Narmada Nigam Ltd. & Others passed in Special Civil Application No. 4586 of 2015 in which similar issues were considered by this Court. However, when we have two direct decisions of the Supreme Court, it is not necessary to delve at any length on the observations by the Division Benches.
11. In facts of the case, therefore, we have no hesitation in holding that the respondents erred in holding the application of the petitioner time barred. Therefore, the communication dated 03.10.2016 is set aside. The respondents shall make a reference to the appropriate court as requested by the petitioner in his reference application dated 26.05.2016. This shall be done latest by 31.07.2017. Petition is disposed of accordingly.
(AKIL KURESHI, J.) (BIREN VAISHNAV, J.) divya Page 8 of 8 HC-NIC Page 8 of 8 Created On Sun Jul 23 10:52:16 IST 2017