Himachal Pradesh High Court
Date Of Decision: 27.12.2024 vs State Of Himachal Pradesh And Ors on 27 December, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:16371
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 9803 of 2023
Date of Decision: 27.12.2024
_____________________________________________________________________
Varinder Dharmani
.........Petitioner
Versus
State of Himachal Pradesh and Ors.
.......Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr. Y.P. Sood, Advocate.
For the respondent: Mr. Anup Rattan, Advocate General with Mr.
Rajan Kahol and Mr. B.C. Verma, Additional
Advocates General with Mr. Ravi Chauhan,
Deputy Advocate General.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with order dated 8.9.2023 (Annexure P-2) passed by the Land Acquisition Collector, North Zone HPPWD Kangra, District Kangra, Himachal Pradesh, in case/application No. 366 titled Varinder Dharmani v. State of Himachal Pradesh and Ors., whereby prayer made on behalf of the petitioner herein to make reference under Section 18 of the Land Acquisition Act(in short "Act"), came to be refused on the ground of limitation, petitioner herein has approached this Court in the instant proceedings filed Article 226 of the Constitution of India, praying therein to set aside aforesaid order and direct Land Acquisition Collector, North
-2- 2024:HHC:16371 Zone, HPPWD Kangra to make reference to learned District Judge concerned under Section 18 of the Act.
2. Precisely, the facts of the case as emerge from the record are that land comprising of khata/khatoni 235/375 Khasra No. 1847/1 area measuring 0-03-40 Hect. situate in Mohal Behdala Tehsil and Distruct Una, came to be acquired for upgradation of Nangal- Amb-Mubarkpur-Talwara road vide award No. 54 announced on 6.7.2009. Notification under Section 4 of the Land Acquisition Act was issued on 11.1.2007 by the Principal Secretary (PW) to the Government of Himachal Pradesh. Though objections in terms of provisions contained under Section 5A of the Act, were invited, but since no objections were received, District Level Negotiation Committee pursuant to notification dated 13.7.2004, proceeded to finalize the negotiated rate. Market value of land in Mohal Behdala was determined to be Rs. 27,000/- per marla by the District Level Negotiation Committee after alleged negotiation with interest holder and same was further approved by the Government of Himachal Pradesh vide letter dated 16.3.2009. On the basis of aforesaid negotiations, award No. 54, which is claimed to be negotiated, was announced on 6.7.2009. As per reply filed by the respondent as well as record made available to this court, some of the land owners were paid compensation in terms of so called negotiated award dated
-3- 2024:HHC:16371 4.7.2011, whereas petitioner received the compensation qua his share on 24.8.2023.
3. Though compensation in terms of award detailed herein above was received by the petitioner on 24.8.2023, but prior to such date, he had already filed an application under Section 18 of the Act, praying therein to Land Acquisition Collector to make reference to the learned District Judge, however vide impugned order dated 8.9.2023, afore prayer of him came to be rejected on the ground of delay. In the afore background, petitioner has approached this Court in the instant proceedings.
4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Y.P. Sood, learned counsel for the petitioner is that the Land Acquisition Collector, while considering prayer made on behalf of the petitioner failed to take note of fact that factum with regard to passing of the award dated 6.7.2009, was not in the knowledge of the petitioner, rather such fact came in his notice in the month of May 2023 and as such, there was otherwise no occasion, if any, for the Land Acquisition Collector, to reject the application for making reference to the learned District Judge under Section 18 of the Act on the point of limitation. Mr. Sood, though admitted factum with regard to receipt of compensation on 24.8.2023 on the basis of award dated 6.7.2009, but vehemently argued that neither at the time of passing of award,
-4- 2024:HHC:16371 petitioner herein was associated nor there is anything on record suggestive of the fact that after passing of the aforesaid award, notice under Section 12 of the Act, was ever issued, thereby calling upon the claimant to receive the amount of compensation. Mr. Sood further argued that otherwise also, by now it is well settled that prayer, if any, made by the claimant to the Land Acquisition Collector to forward the reference to learned District Judge cannot be rejected on the ground of limitation, rather question of limitation can only be decided by the learned District Judge. To substantiate his aforesaid prayer, he invited attention of this Court to judgment dated 26.3.2024, passed by this Court in CWP No. 9022 of 2022, titled Bal Krishan v. The HP Power Corporation Ltd and Anr. (along with connected matters) and judgment dated 2.8.2017, passed by coordinate Bench of this Court in CWP No. 2736 of 2012, Liaq Ram v. State of Himachal Pradesh and another (alongwith connected matters).
5. While refuting aforesaid submissions made by the learned counsel for the petitioner, Mr. Rajan Kahol, learned Additional Advocate General while referring to the reply filed by the respondents, vehemently argued that factum with regard to passing of negotiated award was very much in the knowledge of the petitioner, but yet he failed to submit application to Land Acquisition Collector for making reference to the learned District Judge under Section 18 of the Act within prescribed period of limitation. While making this Court peruse
-5- 2024:HHC:16371 Minutes of Meeting of Negotiation Committee held on 26.12.2008 (Annexure R-1), Mr. Kahol, argued that due notice to general public was given with regard to passing of the negotiated award. He further submitted that otherwise also, petition at hand filed by the petitioner deserves dismissal on account of the fact that petitioner has already received amount of compensation pursuant to the negotiated award.
6. I have heard the learned counsel for the parties and gone through record of the case.
7. Before ascertaining the correctness of rival submissions made by the learned counsel for the parties, it is pertinent to take note of the fact that this Court, having taken note of the submissions made by the learned counsel for the petitioner with regard to non- association of the petitioner at the time of passing of the so called negotiated award specifically called upon the respondent to produce the record. Though in terms of direction issued by this Court, respondent-State has produced record, but same nowhere suggests that after passing of negotiated award dated 6.7.2009, notice, if any, under Section 12 of the Act was issued to the petitioner thereby calling upon him to receive the amount of compensation. Similarly, this Court was unable to lay its hand on material, if any, suggestive of the fact that at the time of passing of negotiated award, petitioner herein was associated, rather careful perusal of Minutes of Meeting held on 26.12.2008 (Annexure R-1) clearly reveals that only officials were associated and
-6- 2024:HHC:16371 none of the claimants including the petitioner was ever associated. If it is so, there appears to be merit in the contention of Mr. Y.P. Sood, learned counsel for the petitioner that factum with regard to passing of negotiated award was not in the knowledge of the petitioner.
8. Mr. Rajan Kahol, learned Additional Advocate General has also not been able to place on record notice, if any, issued to the petitioner in person in terms of the Section 9 of the Act before passing of the award. Though learned Additional Advocate General, while making this court peruse general notice issued before passing of award, attempted to argue that once notice to general public was issued under Section 9, there was no requirement, if any, to issue notice in person to the petitioner. Since there is nothing on record suggestive of the fact that after passing of so called negotiated award, petitioner herein was associated, compliance under Section 9 of the Act, may not be of much relevance, however, compliance of Section 12 may be relevant in the case at hand for ascertaining correctness of submissions made by Mr. Y.P. Sood, learned counsel for the petitioner, that factum of passing of award dated 6.7.2009, which is being claimed to be negotiated award by the respondent was not in the knowledge of the petitioner. Had the respondent department issued notice, if any, under Section 12, this Court would have permitted the respondent to claim that factum with regard to passing of so called negotiated award was very much in the knowledge of the petitioner.
-7- 2024:HHC:16371
9. Though, for the reasons discussed herein above, this Court is convinced that plausible explanation was rendered on record by the petitioner with regard to delay, if any in approaching the Land Acquisition Collector for making reference to the learned District Judge under Section 18 of the Act, but even otherwise, Land Acquisition Collector had no authority, whatsoever, to reject the application filed by the petitioner for making reference to the learned District Judge, on the ground of limitation.
10. Aforesaid issue is no more res integra, rather stands adjudicated by this Court in catena of cases. In judgment dated 21.12.2024, passed in CWP No. 1682 of 2024, titled Brikam Chand & Anr v. National Hydro-electric Power Corporation Ltd and Ors, this Court has held as under :
"6. At this stage, it would be apt to take note of judgment dated 08.10.2018 passed by Division Bench of this Court in Joginder Singh & Ors. Vs. The Land Acquisition Collector and Anr., wherein it came to be ruled that the question as to whether or not, a reference under Section 18 of the Act, should be entertained on merit or should it be turned down on the ground of limitation, is adjudicateable by Reference Court only i.e. learned District Judge/ Additional District Judge and such power cannot be assumed by the Land Acquisition Collector, who is merely required to refer the application to the Court of competent jurisdiction. Relevant para of the afore judgment reads as under:
"2. We have heard learned counsel for the parties and are of the considered view that the question as to whether or not, a reference under Section 18 of the Act, should be entertained on merit or should it be turned down on the ground of limitation, is adjudicateable by the Reference Court only, namely, the Court of
-8- 2024:HHC:16371 District Judge/Additional District Judge and such power cannot be assumed by the Land Acquisition Collector, who is merely required to refer the application to the Court of competent jurisdiction. Such a view in detail has been taken by the learned Single Judge of this Court vide judgment dated 06.07.2018 passed in CMPMO No.237 of 2017 titled as Jalmi Ram and Others vs. The Land Acquisition Collector and another. 3. Finding no exception to the view taken in the said decision, the writ petition is allowed in part and the impugned order dated 28.07.2017 (Annexure P-4) passed by the Land Acquisition Collector, is set-aside, who is directed to refer the matter to the Court of competent jurisdiction. 4. We make it clear that we have not expressed any view on the point of limitation or delay, which shall be independently adjudicated by the Court concerned, in accordance with law. Reference shall be made within a period of two months."
7. Reliance is also placed upon judgment passed by Coordinate Bench of this Court in CWP No. 2736 of 2012 titled as Liaq Ram & Ors. Vs. State of Himachal Pradesh & Anr. Relevant paras of the afore judgment read as under.
"5. It is settled law that on receipt of an application for reference it is mandatory for the Collector to make a reference under Section 18 of the Land Acquisition Act in the manner prescribed under Section 19 thereof. It is further settled law that it is not for the Collector to decide and reject reference under Section 18 of the Land Acquisition Act but he has to refer the same leaving the question open to be decided by learned Reference Court to which reference is made under Section 18 of the Land Acquisition Act as to what relief the applicant is entitled to. Reference Court has wide powers to throw out a reference petition under Section 18 if it comes to the conclusion that the award was accepted without any protest or that the award was a consent award or otherwise.
6. Therefore, in the present cases, in my considered view, the Land Acquisition Collector erred in not forwarding the applications so received under Section 18 of the Land Acquisition Act to learned Reference Court because the effect of
-9- 2024:HHC:16371 the award having been declared null and void by this Court obviously could have been taken care of by learned Reference Court while answering the reference petitions.
7. Accordingly, all these petitions are disposed of with the direction that the Collector shall forthwith forward all the reference petitions to learned Reference Court and thereafter, learned Reference Court shall answer the same in accordance with law. It goes without saying that learned Reference Court shall be at liberty to answer reference petitions by taking into consideration the factum of the award against which reference petitions were filed having been declared null and void by this Court in CWP No. 2385 of 2010 decided on 26.04.2011 and any other fact having bearing on the same being placed before learned Reference Court by the parties concerned."
11. Reliance is also placed upon judgment dated 26.3.2024, passed by this Court in CWP No. 9022 of 2022, titled Bal Krishan v. The HP Power Corporation Ltd and Anr. (along with connected matters), relevant paras whereof are reproduced herein below:
"6.Needless to say, there is a difference between "constructive knowledge" and "actual knowledge" of passing/making of the award. "Constructive knowledge", if any, would commence from the date factum with regard to passing of the award, came to the notice of the petitioners and they obtained certified copy of the award whereas date of "actual knowledge" would commence from the date certified copy of award, came in their hand.
7.As per Section 12 (2) of the Act, Collector is duty bound to give immediate notice of award to the persons interested or their representatives when the award is made so that objection, if any, on behalf of the claimants, are filed within stipulated time. Section 18 clearly provides that if in case, a person does not accept the award, he may file written application to the Collector, requiring therein matter to be referred by the Collector to the competent court of law for determination of the compensation as well as apportionment etc. Though Section 18 (2) provides that an application or reference shall
- 10 - 2024:HHC:16371 be made within six weeks from the date of Collector's award if at the time of making award, person seeking reference was present or was represented before the Collector but if the person is not present or is not represented before the Collector, then the application has to be made within six months from the date of receipt of notice under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
8.In the instant case, as has been claimed by the claimants, neither notice, if any, under Section 12 (2) was ever issued nor factum with regard to passing of the award was in their knowledge. In that eventuality, Collector, while considering prayer made on behalf of the petitioners had no option but to make reference to the competent court of law for determination of the compensation and for settlement of other disputes, if any.
9. Reliance in this regard is placed upon judgment passed by the Hon'ble Apex Court in Premji Nathu v. State of Gujarat and Anr., (2012) 5 SCC 250, relevant para Nos. 12 to 16, of the aforesaid judgment read 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 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.
- 11 - 2024:HHC:16371
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 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:
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
- 12 - 2024:HHC:16371 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 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 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
- 13 - 2024:HHC:16371 Collector's award' used in the proviso to Section 18 in a literal or mechanical way." (emphasis supplied)"
12. Reliance is also placed upon judgment dated 26.3.2024, passed by this Court in CWP No. 2736 of 2012, titled Liaq Ram v.
State of Himachal Pradesh and another (alongwith connected matters), wherein it has been held as under:
"5. It is settled law that on receipt of an application for reference it is mandatory for the Collector to make a reference under Section 18 of the Land Acquisition Act in the manner prescribed under Section 19 thereof. It is further settled law that it is not for the Collector to decide and reject reference under Section 18 of the Land Acquisition Act but he has to refer the same leaving the question open to be decided by learned Reference Court to which reference is made under Section 18 of the Land Acquisition Act as to what relief the applicant is entitled to. Reference Court has wide powers to throw out a reference petition under Section 18 if it comes to the conclusion that the award was accepted without any protest or that the award was a consent award or otherwise.
6. Therefore, in the present cases, in my considered view, the Land Acquisition Collector erred in not forwarding the applications so received under Section 18 of the Land Acquisition Act to learned Reference Court because the effect of the award having been declared null and void by this Court obviously could have been taken care of by learned Reference Court while answering the reference petitions.
7. Accordingly, all these petitions are disposed of with the direction that the Collector shall forthwith forward all the reference petitions to learned Reference Court and thereafter, learned Reference Court shall answer the same in accordance with law. It goes without saying that learned Reference Court shall be at liberty to answer reference petitions by taking into consideration the factum of the award against which reference petitions were filed having been declared null and void by this Court in CWP No. 2385 of 2010 decided on 26.04.2011 and any other fact having bearing on the same being placed before learned Reference Court by the parties concerned."
- 14 - 2024:HHC:16371
13. Consequently, in view of the above, this court finds merit in the present petition and same is allowed. Impugned order dated 8.9.2023 (Annexure P-2) is quashed and set aside with a direction to Land Acquisition Collector to make reference to the learned District Judge concerned, on the application filed by the petitioner expeditiously, preferably, within four weeks. All pending application stand disposed of.
December 27, 2024 (Sandeep Sharma), Manjit Judge