Bombay High Court
The State Of Maharashtra Through The ... vs Keru Baban Avhad on 10 April, 2008
Author: Swatanter Kumar
Bench: Swatanter Kumar, J.P. Devadhar
JUDGMENT Swatanter Kumar, C.J.
1. The State of Maharashtra through the Special Land Acquisition Officer (hereinafter referred to as SLAO), Upper Godavari Project, Karanjwan Dam, acquired the lands situated at village Malegaon and Sinnar, Taluka Sinnar, District Nashik by issuing notification under Section 32(2) of the Maharashtra Industrial Development Corporation Act (hereinafter referred to as MID Act) on 9th February, 1989 for the public purpose. The land was sought to be acquired from the revenue estate of the village Sinner and Malegaon, Taluka Sinnar, District Nashik for Industrial Estate, Malegaon of MID project. In furtherance to the notification under Section 32(2) which is at parity with the notification under Section 4 of the Land Acquisition Act, the appropriate authority further issued notification under Section 32(1) of the Act (equivalent to Section 6 of the Land Acquisition Act, 1894) on 28th December, 1989. The SLAO after following the prescribed procedure vide his award dated 20th June, 1994 awarded different compensation to the owners of the lands while bifurcating the land into Jirayat, Bagayat and PotKharaba. Following were the compensation awarded:
1. @ Rs. 40,000/- to Rs. 42,000/- per hectore for Jirayat land.
2. Rs. 60,000/- to Rs. 63,000/- per hectore for Bagayat land; and
3. @ Rs. 200/- per hectore for potkharab land.
2. The claimants felt aggrieved by the compensation awarded for acquisition of their lands and made applications on 26.9.1994 under Section 34 of the MID Act (equivalent to Section 18 of the Land Acquisition Act, 1894) which, in turn, were referred by the SLAO for adjudication to the court of competent jurisdiction. The parties have led oral as well as documentary evidence before the reference court and the reference court while maintaining the categorisation of the lands made by the Collector, further divided and classified them into two groups viz. lands having road frontage and other interior lands. The compensation was enhanced as follows:
Lands with Road Frontage-
(a) Bagayat @ Rs. 1,45,000/- per hectare
(b) Jirayat @ Rs. 97,000/- per hectare
(c) Pot Kharaba @ Rs. 48,000/- per hectare Interior Lands
(a) Bagayat @ Rs. 1,26,500/- per hectare
(b) Jirayat @ Rs. 84,000/- per hectare
(c) Pot Kharaba @ Rs. 42,000/- per hectare However, the claimants in their claims under Section 34(1) of the MID Act (Section 18 of the Land Acquisition Act, 1894) had claimed compensation at the rate of Rs. 2,50,000/- per hectare for the land having road frontage and @ Rs. 2,25,000/- per hectare for interior. It is averred that the possession of the land was taken on 1st March, 1989 and the amount of compensation was received by the claimants on/or about 7th July, 1994. Various references were disposed of by the learned reference court vide its judgment and award dated 12th May, 2003. Aggrieved from the said judgment, both the State as well as claimants have filed appeals in this court. The State has come up in 88 appeals praying for reduction of the compensation whereas the claimants have filed 80 appeals praying for higher compensation. Claimants have also filed crossobjection in one appeal. Besides this, two applications have been filed, one in First Appeal Nos. 1334 of 2003 and the other in Crossobjection (St.) No. 27195 of 2005 in First Appeal No. 1860 of 2003, for substituting the names of the parties and for condonation of delay in filing the crossobjections respectively.
3. At the very outset, we may notice that there was no serious opposition to these two applications and in any case, for the reasons stated in these applications, we see no reason to decline the reliefs prayed for. As nearly 168 appeals and one crossobjection against the same judgment have been heard, no prejudice would be caused to any of the parties if the delay in filing the crossobjection in one of the appeals is condoned and is also directed to be heard alongwith the other appeals. Substitution of parties is a result of death of one of the parties and the heirs are sought to be brought on record. Resultantly, both these applications are allowed and relief claimed in terms of prayer (a) is made absolute.
4. As already noticed, the claimants have prayed in their appeals that compensation awarded to them should be enhanced to Rs. 2,50,000/- and Rs. 2,25,000/- depending upon the land abutting the road and interior lands. According to the State, the compensation awarded is liable to be reduced with reference to the evidence on record as the learned reference court has erred in determining the fair market value of the land in consonance with the factors stated under Section 3(5) of the MID Act.
5. Besides the contention on merits of the case, a preliminary objection was raised on behalf of the State that the applications filed under Section 34 of the MID Act (equivalent to Section 18 applications under the Land Acquisition Act) were barred by time and all such applications ought to have been rejected by the reference court. The applications before the SLAO being barred by time, all subsequent proceedings would be deemed to be ineffective in law and the learned reference court had no jurisdiction to make an award much less enhance the compensation payable for acquisition of the land in question. In this regard, it was contended that the award was declared under Section 33 of the MID Act on 20th June, 1994, the compensation was paid to the claimants on 7th July, 1994 and the applications under Section 34 of the MID Act were filed on 26th September, 1994. In terms of Section 34, the application for enhancement of compensation against an award of the Collector can be filed within sixty days from date of Award. Apparently, the applications were filed beyond sixty days and as such, neither the Collector had jurisdiction to make a reference nor the reference court could have entertained these references and enhanced the compensation. The bar is to the very entertainment of such applications as there is no power to condone the delay caused for filing reference. The reference court lacks jurisdiction to make such an award as the references were barred by limitation prescribed under Section 34 of the MID Act.
6. In response to this preliminary objection, the claimants have also raised an objection to the maintainability of the State appeals as according to them, the award/judgment made under Section 34(2) of the Act is final and no appeal is maintainable against the award dated 20th June, 1994. Such an award attains finality and is incapable of being questioned in an appeal as the MID Act does not contain any provision of appeal like the provisions under the Land Acquisition Act where an award of the reference court is specifically appealable. In the alternative, it was contended that the references preferred by the claimants under Section 34 were not barred by time in asmuch as they had no knowledge of pronouncement of the award as on 20th June, 1994 and even when they received the compensation on 7th July, 1994, they were not aware about the contents of the award as such the period of sixty days had not expired on the date of filing of the applications viz. 26th September, 1994. According to them, the applications were in time and for this proposition, they relied upon the Division Bench judgment of this court in Maharashtra Industrial Development Corporation, Nagpur v. Shaikh Khatinabi wd/o Abdul Gaffar Shaikh and Ors. . In some of the cases, it is claimed that the claimants had applied for the certified copy of the awards and that period is to be excluded and also that in some other cases, the payments were received subsequent to 7th July, 1994 and as such, even on facts, the applications were within time. In Appeal Nos. 1776 of 2003, 1779 of 2003, 1780 of 1003, 1784 of 2003, 1786 of 2003, 1794 of 2003, 1797 of 2003, 1818 of 2003, 1832 of 2003, 1837 of 2003, 1840 of 2003, 1844 of 2003 and 1847 of 2003, separate affidavits have been filed by the claimants in this regard.
7. It will be appropriate for us to deal with the objection taken by the claimants in regard to the maintainability of the appeal. The argument on behalf of the appellant is that the decision rendered by the reference court under Section 34(2) of the MID Act attains finality and it is not appealable as the provisions of the Civil Procedure Code have no application. Reliance was placed by the judgment of the Supreme Court in Subal Paul v. Malina Paul and Anr. , where the Supreme Court while interpreting the expression "In accordance with the provisions of the Code of Civil Procedure, 1908" occurring in Section 299 of the Succession Act, had held that this expression is not to confer any substantive right on the parties. It is merely a procedural right. The right to appeal would be controlled by provision of Section 299 of the Succession Act and not Section 104 of the Civil Procedure Code. Following observations of the court are relied upon:
21. If a right of appeal is provided for under the Act, the limitation thereof must also be provided therein. A right of appeal which is provided under the Letters Patent cannot be said to be restricted. Limitation of a right of appeal, in the absence of any provision in a statute cannot be readily inferred. It is now well settled that the appellate jurisdiction of a superior court is not taken as excluded simply because the subordinate court exercises its special jurisdiction. In G.P. Singh's Principles of Statutory Interpretation, it is stated:
The appellate and revisional jurisdiction of superior courts is not taken as excluded simply because the subordinate court exercises a special jurisdiction. The reason is that when a special Act on matters governed by that Act confers a jurisdiction to an established court, as distinguished from a persona designata, without any words of limitation, then, the ordinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted.
22. But an exception to the aforementioned rule is on matters where the special Act sets out a selfcontained code, the applicability of the general law procedure would be impliedly excluded. See Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki.
8. Reference was also made in the case of State of Haryana v. Maruti Udyog Ltd. and Ors. wherein it is held as under:
There cannot be any dispute that right of appeal is the creature of the statute and has to be exercised within the limits and according to the procedure provided by law. It is filed for invoking the powers of a superior court to redress the error of the court below, if any. No right of appeal can be conferred except by express words. An appeal, for its maintainability, must have a clear authority of law.
9. It cannot be disputed that the order and judgment made under Section 34 of the Act would be a decree under the Code of Civil Procedure and as such, would be appealable. The concept of finality stated in Section 34 has to be given a limited meaning. These provisions are incapable of wiping out a remedy of appeal against the decree under the provisions of Section 96 of the Civil Procedure Code. Even the judgment of the Supreme Court in the case of Maruti Udyog Ltd. (supra) does not lay down any principle or a statement of law that appeal against such orders is impermissible. In fact, as far as this court is concerned, this question is no more res integra and has been squarely answered by Division Bench of this court in the case of State of Maharashtra and Anr. v. Chandrakant @ Pomaji Vastudev Somshetti (since deceased by LRs) and Ors. where the court held as under:
6. Reference is required to be made to Sub-section (2) if Section 34 which provides that the decision of the Court on such reference, and subject only to such decision, the decision of the Collector determining the amount of the compensation shall be final. It was suggested that Sub-section (2) of Section 34 makes the decision of the District Court on reference final and, therefore, appeal is not permissible against the said decision. It is not possible to accede to the submission. The State Legislature by substituting Sub-section (1) of Section 34 of the Act made its intention clear that the provisions of part III of the Land Acquisition Act shall mutatis mutandis apply to the proceedings of reference to the District Court under Sub-section (1) of Section 34. The State Legislature was fully conscious that the decision of the Court would be a decree under the Code of Civil Procedure and the grounds for the award a judgment under the Code. Once the award becomes a decree and the grounds become a judgment, then such award or judgment would be appealable under Section 96 of the Code of Civil Procedure, if delivered by a District Court and under Clause (15) of the Letters Patent, if delivered by s Single Judge of the High Court. The reference under Sub-section (1) of Section 34 of the Act is to be made to the "Court" as defined in the Land Acquisition Act and that means a principal Civil Court of original jurisdiction. In our judgment, the expression "decision of the Court" under Sub-section (2) of Section 34 of the Act cannot be restricted only to the principal Civil Court of original jurisdiction, but extended to the decision of the Court in accordance with the hierarchy of Courts. The appeal against the decree or judgment of the principal Civil Court 15 of original jurisdiction is nothing but a continuation of proceedings commenced by reference to the original court. The appeal being continuity of the original proceedings, the expression "decision of the Court" on such reference under Sub-section (2) of Section 34 brings within its sweep not only the decision of the District Court but also the decision of the High Court in appeal and further the decision of the Supreme Court. The State Legislature in its wisdom retained the provisions of Sub-section (2) of Section 34 after substituting Sub-section (1) and thereby made it clear that the expression "decision of the Court" on such reference should not be construed in an artificial manner so as to prevent either the claimant or the State Government from filing an appeal to the High Court. In our judgment, Sub-section (2) only provides that the decision of the Court on such reference whether by the trial Court or by the appellate Court or by the Supreme Court shall be conclusive and shall not be questioned in any other forum by filing any other proceedings. This construction would subserve the intent of the Legislature and would advance the cause of justice. We are conscious that the right to an appeal is a creation of statute, but on a plain reading of the provisions of Sub-section (2) of Section 26 of the Land Acquisition Act and the provisions of Section 34 of the Act, it is clear that the decision of the District Court is subject to an appeal to the High Court and further to the Supreme Court. "Accordingly, we hold that the impugned judgment of the Assistant Judge is open to an appeal and the writ petitions filed by the State Government and the claimants are not maintainable. Mr. Sawant, learned Counsel appearing for the Government, and Mr. Abhyankar, Mr. Bhonsale and other Counsel appearing on behalf of various claimants, seek permission to convert the writ petitions into appeals. Permission granted on the Counsel giving an undertaking to pay the requisite Courtfees within a period of four weeks from today. Mr. Mengane, learned Counsel appearing for the petitioner in Writ Petition No. 1023 of 1984 sought permission to withdraw the petition and that permission being granted, conversion is not sought in that matter.
10. In Maharashtra Industrial Development Corporation Through Regional Office, M.I.D.C. Nashik v. Ahmad Abdul Raheman 2003 Vol. 105 (2) Bom. L.R. 712, the Division Bench of this court has also taken the same view and held as under:
6. As per the old scheme of Section 34, the proceedings before the Court were by way of an appeal against the decision of the Collector in determining the amount of compensation, whereas in the amended provision, the said proceedings are in the nature of a reference and, therefore, the decision of the reference Court shall be an award within the meaning of Section 26(2) of the Land Acquisition Act.
7. We conclude that these appeals are maintainable Under Section 96 of the C.P.C. and the provisions of Sub-section 2 of Section 34 of the Industrial Development Act, in any way, do not hamper the remedy of an appeal Under Section 96 of the C.P.C.
11. In view of the above enunciated principle of law which leaves no doubt that the appeal is maintainable in the normal course under the provisions of the Civil Procedure Code and we have no hesitation in rejecting the contentions raised by the respondents.
12. Now we will proceed to discuss the merit or otherwise of the principal contention raised on behalf of the State that no references could have been made under Section 34 of the MID Act and, thus, no award in law could have been passed by the reference court. The judgment and award being not in existence in law, no appeals could be maintained before this court against the judgment and award dated 20th June, 1994. The appeals filed by the claimants, therefore, cannot be entertained and should be dismissed. This contention is based on the premise that MID Act is a selfcontained special Act. Notification under Section 32(1) of the MID Act was issued on 3rd November, 1988 while under Section 33(2) it was issued on 9.2.1989. The award was passed by the SLAO while exercising his power under Section 33 of that Act on 20th June, 1994. Compensation was disbursed to the land owners on 7th July, 1994. The applications under Section 34 of the Land Acquisition Act for claiming higher compensation ought to have been made within sixty days from date of decision while they were made to the Collector on 26th September, 1994. Unlike Section 18 of the Land Acquisition Act, Section 34 of the MID Act has no variable periods for filing applications for enhancement of compensation. It only provides one period of limitation that is "within sixty days from the date of the decision by a written application to the Collector and the matter be referred by the Collector for determination of court as defined under the Land Acquisition Act. "Section 34 like Section 18 does not give any power either to the Collector or to the court to condone the delay if the application is filed beyond the prescribed period of limitation.
13. It may be noticed that provisions of Part III of the Land Acquisition Act have been made applicable to the determination of compensation in regard to reference made by the Collector under Section 34 of the Act.
14. The learned Counsel appearing for the claimants argued that an application for reference filed beyond the period of sixty days could be entertained as Part III of the Land Acquisition Act is made applicable to such application and in any case, some of the applications were still filed within time. As the claimants were not present at the time of pronouncement of the award the expression "date of decision" has to be interpreted so as to be the date on which the award was communicated to the claimants and they became aware of the contents of the award so as to enable them to file applications under Section 34 of the Act. At this stage, it may be useful to notice that some affidavits were filed during the course of arguments showing that some of the claimants have received compensation subsequent to 7th July, 1994 and they had filed the application within sixty days from such date of such knowledge. It is contended that those appeals, in any case, cannot be treated as not maintainable, even if the arguments of the State are accepted. It is also the contention of the claimants that when they were given compensation on 7th July, 1994, they were not aware about the extent of rate of compensation, area and the amount payable to them on account of interest. In absence of these details, they could not have preferred application under Section 34 of the MID Act and some of the claimants have even applied for the copy of award to the Land Acquisition collector and the copy was received on 29th September, 1994. It may also be noted that in some cases, the applications for reference were filed on or after 26th September, 1994. In order to examine the legal aspect of these provisions relatable to limitation, it will be appropriate to refer to the language used by the Legislature in Section 34 of the Maharashtra Industrial Development Act and Section 18 of the Land Acquisition Act. Section 34 of the Maharashtra Industrial Development Act, 1961
34. [(1) Any person aggrieved by the decision of the Collector determining the amount of compensation may, within sixty days from the date of such decision, in so far as it affects him, by written application to the Collector require that the matter be referred by him for determination of the Court as defined in the Land Acquisition Act, 1894, in its application to the State of Maharashtra, and when any such application is made the provisions of Part III of the said Act shall mutatis mutandis apply to further proceedings in respect thereof.] (2) The decision of the Court [on such reference], and subject only to such decision, the decision of the Collector determining the amount of the compensation, shall be final.
Section 18 of the Land Acquisition Act, 1894
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 persons 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,
(a) if he 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.
15. Section 34 of the MID Act clearly states the period of limitation i.e. sixty days from the date of decision of the Collector. It has a further requirement that the right to file an application is to a person aggrieved and to the extent in so far as it affects him. The applicant is required to make a written application. Another important feature of Section 34(1) is that it is to be determined by the court as defined under the Land Acquisition Act and when such application is made, the provisions of Part III of that Act are mutatis mutandis apply to further proceedings in respect thereof. In other words, Part III of the Land Acquisition Act would control "further proceedings" i.e. after filing of the application. The language of the section, thus, makes it amply clear that application will be filed before the Collector in terms of Section 34 of the MID Act and that Act will control and regulate the filing of the proceedings of the application and once the ingredients of Section 34(1) are satisfied, the Collector would make a reference. It is only after the reference is made to the court of competent jurisdiction that Part III of Land Acquisition Act would come into play. As far as Section 18 of the Land Acquisition Act is concerned, it is equivalent to Section 34 of the Act, can hardly be taken recourse to. The intent of the legislature that the proceedings before the court are to be taken recourse to in the manner provided under Part III which operate mutatis mutandis to the provisions of the MID Act and not to the exclusion of the provisions of MID Act. The Collector would be required to file a statement before the court as envisaged under Section 19 of the Land Acquisition Act, the scope of the enquiry and the powers of the court and the methodology to be adopted by the reference court will be in consonance with the provisions of Sections 21 to 23 of the Land Acquisition Act. The matters to be neglected in determining the compensation shall guide the court in terms of Section 24 of the Act, obviously, the award, costs and interest would be determined by the court and the award be made in terms of Sections 25 to 28A of Part III of the Land Acquisition Act. All these provisions are primarily procedural and regulatory. They do not vest any part with a substantive right. The provisions of the Civil Procedure Code to their limited extent as provided under Section 53 of the Land Acquisition Act would also be applicable. In other words, the proceedings before the reference court are regulated by the provisions of MID Act, Part III of the Land Acquisition Act and the provisions of Civil Procedure Code in so far as they are applicable.
16. The Supreme Court in Shri Ramtanu Cooperative Housing Society Ltd. and Anr. v. State of Maharashtra and Ors. , while holding that the MID Act is a valid piece of legislation comparing relevant provisions of the Land Acquisition Act and MID Act, it is held as follows:
21. Counsel on behalf of the petitioners contended that there was procedural discrimination between the Land Acquisition Act and the Act in the present case. It was said that there was a special procedure designed by the Land Acquisition Act for acquisition of land for the companies whereas in the present case the State was acquiring land for companies without adopting the procedure of the Land Acquisition Act. It is to be remembered that the Act in the present case is a special one having the specific and special purpose of growth, development and organisation of industries in the State of Maharashtra. The Act has its own procedure and there is no provision in the Act for acquisition of land for a company as in the case of Land Acquisition Act. In the present Case, acquisition under the Act is for the purpose of development of industrial estates or industrial areas by the Corporation or any other purpose in furtherance of the objects of the Act. The policy underlying the Act is not acquisition of land for any company but for the one and only purpose of development, organisation and growth of industrial estates and industrial areas. The Act is designed to have a planned industrial city as opposed to haphazard growth of industrial areas in all parts of the State. The Act is intended to prevent growth of industrial in the developed parts of the State. Industries are therefore to be set up in the developing or new parts of the State where new industrial towns will be brought into existence. The object of the Act is to carve out planned areas for industries. One one side there will be engineering industries and on the other there will be chemical industries. There will be localisation of industries with the result that the residents and dwellers of towns and cities will not suffer either from the polluted air or obnoxious chemicals of industries or the dense growth of industries and industrial population, within and nearabout the residential areas. The Land Acquisition Act is a general Act and that is why there is specific provision for acquisition of land by the State for public purpose and acquisition of land by the State for companies. The present Act on the other hand is designed for the sole purpose of development of industrial areas and industrial estates and growth and development of industries within the State. Industrial undertakings or persons who are engaged in industries all become entitled to the facilities on such industrial growth. Under the Land Acquisition Act acquisition is at the instance of and for the benefit of a company, whereas under the present Act acquisition is solely by the State for public purposes. The two Acts are dissimilar in situations and circumstances.
17. The provisions of Section 18 of the Land Acquisition Act provide for different limitations relatable to presence at the time of announcement of award and from date of service of notice under Section 12(2) which is six weeks or finally, six months from the date of the Award. This varied period of limitations is not contemplated under Section 34 of the MID Act and which gives a right to the claimant to file applications for determination of compensation by the court of competent jurisdiction within sixty days from the date of decision of the Collector.
18. The expression 'date of decision of the Collector' must be given its proper meaning. Date of decision obviously, is when the decision is taken and is made known to the affected parties. Taking any other approach may not be in consonance with the legislative scheme of the provisions of either Land Acquisition Act or the MID Act. Determination of market value by the Collector is process of adjudication and thus, it must essentially be made known to the person for whose benefit or knowledge such decision is being taken. Unless the person concerned knows about the basic reasoning or essential elements of the decision he cannot express his grievances as an aggrieved party. An aggrieved party would be able to have recourse to remedy of appeal in an appropriate and effective manner only if aggrieved party is made to know about the contents of the award of the Collector. This could be by virtue of showing that at the time of the award being made or published, the party was present and, thus, actually had knowledge about the material contents of the award or was actually paid compensation in terms of the award or the copy of the award was received by the claimant in accordance with law. There is hardly any other mode by which knowledge of an award of the Collector may be attributed to the aggrieved person. No mode of service of award has been spelt out in the MID Act and, thus, commonly known modes in general law will be applicable to such situation. The law relating to Acquisition is a law which shows the predominant domain of the State to have compulsory Acquisition of land for the public purpose and the Collector is expected to pass an award determining the market value which the claimant would be entitled to receive as a matter of right in lieu of their acquired lands. Thus, it is a right of great value which is given to the claimants and the law should protect such a right rather than to adopt an approach which would frustrate such a right. In other words, the scheme of the MID Act shows that its provisions contained in Chapter 6 relating to acquisition and disposal of land are para materia to various provisions of the Land Acquisition Act. Section 32(2) requires a notification equivalent to Section 4 under the Land Acquisition Act and Section 32(1) contemplates a declaration in terms of Section 6 while other provisions of Section 32 relates to hearing of objections and their disposal in accordance with law. Sections 33(1) to 33(4) relates to determination of compensation and Section 33(5) speaks of determination of compensation on the principle enunciated in Section 23 and 24 of the Land Acquisition Act. Interestingly and unlike the provisions of Land Acquisition Act, the provisions of Section 34(2) of the MID Act attaches finality to the award of the Collector. This, we are noticing only to lay emphasis on the decision of the Collector and importance of it being brought to the notice of the person aggrieved (claimant) so as to enable him to take recourse to the remedy contemplated under Section 34(1) of the Act. How that decision is to be served upon the aggrieved person is not spelt out in the MID Act while under the Land Acquisition Act how notices have to be issued in relation to pronouncement of award is specified under Section 12(2) of the Act. Be that as it may, we have no hesitation in coming to the conclusion that the award of the Collector should be actually served upon the claimant or he should be present at the time of pronouncement of the award and/or it should be with certainty shown that he had the knowledge of the award and essential contents thereof which would in normal course enable him to avail of the remedy under Section 34(1) of the Act. It is not clear intimation of contents of the pronouncement or the decision which would satisfy the prerequisites of the obligation placed upon the State/Collector but the rule of fair play and natural justice would require that award of the Collector or its essential features should be made known to the claimants. In this regard, reference can be made to the case of Shri Bale Ram v. Land Acquisition Collector 2005 (121) Delhi Law Times 454, where the entire scheme under the Land Acquisition Act was discussed and while referring to the judgments of the Supreme Court, the court observed as under:
The controversy in the present case is further narrowed in view of the common stand taken by the parties before us. The learned Counsel appearing for the respondents, during the course of argument fairly stated that there is nothing on record to show that petitioners were present when the award was made. He also further conceded that the authorities concerned did not issue any specific notice to the petitioners or even in general, as required under Section 12(2) of the Act. The obvious result thereof is that the case of the petitioners cannot be rejected and in fact has not been rejected for filing an application beyond the prescribed period in terms of proviso (a) to Section 18(2) and first part of proviso (b) to Section 18(2) of the Act. The only objection raised on behalf of the respondents is that the petitioners have failed to make an application under Section 18 of the Act to the Collector within six months from the date of the Award. It is for this reason alone that the application of the petitioners have been dismissed.
According to the petitioners, they have filed their applications for enhancement of compensation within a period of six months from the date of knowledge of award passed by the Collector. On the other hand, the contention of the respondent is that the applications filed by the petitioners are beyond the prescribed period of limitation and have rightly been rejected by the Competent Authority. It is an admitted fact on records that compensation was received by the petitioners on 15th April, 2002 while the award was announced on 19th June, 1992. They filed applications for reference to the Court of Competent Jurisdiction under Section 18 of the Act on 30th May, 2002 and 3 June, 2002 respectively. In the application filed by the petitioners, copy of which is annexed to the writ petition as annexure A3, It has been specifically stated that the petitioners were not present at the time of making the award nor any notices were issued to them under Section 12(2) of the Act. It is claimed by the petitioners that they came to know only on 15.4.2002 when they received compensation from the Land Acquisition Collector and have filed the application under Section 18 within the prescribed period. In the award which has been annexed to the petition as annexure A1 by the petitioners themselves, It has been recorded that notices under Sections 9 and 10 of the Act had been issued to all the Interested persons and they had filed claims which have been noticed at serial No. 68 of the award In relation to Zile Singh and Bale Ram both. It is also clear from the records produced before us by the respondents that the petitioners had filed their applications for payment of compensation on 231 March, 2001 making a reference to the date and number of the award, the extent of land acquired and that the payment should be made to them In terms of the award. From this application two important facts are clear; firstly, that the petitioners did not, submit this letter under protest; secondly they knew that for the acquired land they have been awarded compensation. Not only this, Bale Ram filed various documents including the surety bonds, indemnity bonds wherein exact amount of compensation to the extent of Rs. 1,79,188/was mentioned which according to the petitioners was the compensation payable to him for acquisition of his entire land in terms of the award. The matter remained pending before the authorities and finally for the amount indicated in the indemnity bond, a cheque was issued by the respondents on 15th Apr11, 2002. Similar documents were also executed by Zile Singh. From the other file produced by the respondents, it is clear that possession of the land was taken by the respondents vide Kabza Karbai dated 25th January, 2000 wherein officers of different departments had taken physical possession of the property and the authorities had also issued a `public notice on or about 30th May, 2001 stating therein that all Interested parties who have applied for compensation alongwith requisite documents were requested to collect 80% of their compensation from the office of the Land Acquisition Collector. This notice was given to at the Panchayat Ghar and even copies thereof were delivered to the Pradhan of the Village Shri Rattan Singh. Various villagers had signed the said public notice.
On the strength of the counteraffidavit and the records produced before us during the course of hearing by the respondents, it Is vehemently contended that petitioners have not disclosed true facts before the Court in the writ petition and they had definite knowledge of the award and its contents on 23 March, 2001. The petitioners could file the application under Section 18 of the Act at best within six months thereof which they failed. Thus, the applications have been rightly rejected by the authorities. We have already noticed that it is not the case of any of the parties before us that the rejection was on any other ground except that it has not been filed within six months from the date of Collectors award. Therefore, we have to construe what is the reasonable and correct interpretation of the language within six months from the date of Collectors award appearing in later part of proviso (b) to Section 18. Section 11 of the Act Imposes an obligation upon the Collector to make an award while Section 11(a) further imposes a limitation within which such an award shall be made. Section 12(2) requires the Collector to give immediately notice of his award to such Interested persons as are not present personally or by their representative when the award is made. The period of limitation specified under Section 18 of the Act In no certain terms relates to this obligation imposed upon the Collector under Section 12(2) of the Act. If such a notice is not issued by the Collector and if the person was not present at the time of making an award, the Collector cannot reject an application of the owner under the proviso (a) and first part of proviso (b) as well to Section 18(2) of the Act. Where the citizen Is required to act within the stipulated period, there the authorities should also not lightly take their obligations particularly when they are statutory In nature. The legislature In Its wisdom has directed the Collector to Issue a notice under Section 12(2) of the Act, has obvious reasons behind It. Firstly, the persons who are not present at the time of making of the award would be informed about the passing of the award and secondly the disbursement of compensation could be effected expeditiously and at the same time the land owners who are not satisfied with the award and have not so accepted it, would be liable to file application within six weeks of receipt of this notice. We would expect and In fact direct the concerned authorities In the State Administration to ensure that due steps, as contemplated under these provisions, are taken by the Land Acquisition Authorities within time and without fault. We express a pious hope that the higher authorities in the hierarchy of the State would take notice of these observations and act In accordance with law by issuance of proper guidelines and instructions to the concerned quarters. The award of the Collector is an expression capable of receiving a simple meaning. It obviously means the day on which the award is made or announced by the Collector. The most important incident is as to when the award is communicated or the interested person received the knowledge thereof. The making or announcement of the award would be relevant only In relation to the persons who were present at the time of the award, but such a date would be inconsequential for the persons who were not present on that date. For them, it will be the date on which the award was actually communicated to them or the date on which they have knowledge about the essential ingredients of the award whether actual or constructive. Thus it is not intimation alone of the award to the land owners or interested person but the essential requirements of fair play and natural justice is that the date of Collector's award used In the proviso should mean the date on which the award is known by the parties either actually or constructively. The language of the proviso cannot be given a literal or mechanical meaning. 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. Important feature of this aspect is that applicant must know the contents of the award which are material for him to take further steps in accordance with law. A person who has not accepted the award and has received the compensation under protest would be able to take effective recourse to the provisions of Section 18 of the Act praying for a reference to the Court of competent jurisdiction for enhancement of the awarded compensation only If he is aware about the extent of compensation, the extent of land and the number as well as the market value of the land determined thereunder. These basis would constitute a complete cause of action for an applicant desirous of invoking the provision of Section 18 of the Act and subject to the conditions stipulated in law. Filing of an application within time is a sine qua none for its entertainment by the Collector in terms of the provisions of the statute. As the Collector is discharging its statutory functions he is bound by the provisions of the statute. The Land Acquisition Act is a complete court in itself and does not permit for application of general principles of law and even of the Limitation Act by the Collector. The Collector In fact has no power to condone the delay. Thus essentially he would have to reject an application which is beyond the prescribed period of limitation as per the provisions of Section 18 of the Act. The Supreme Court In the case of Officer on Special Duty (Land Acquisition) & Mr. v. Shah Manual Chandulal and Ors. held in unambiguous term that the Act clearly makes a distinction between the Collector and the Court. This dichotomy cannot be loose sight of and the Land Acquisition Collector has no power to condone the delay.
Earlier the view taken by some of the High Courts was that mere intimation of the award would be sufficient and the prescribed period of limitation of six months would commence from that date, when the award was announced and mere intimation was sent to the claimant. In view of the judgment of the Supreme Court, this view cannot be regarded as correct law. The most fair and reasonable construction of this proviso would be the date of knowledge of contents of the award which would be sufficient to enable the applicant to pursue his remedy like a common prudent man and in accordance with law. Unlike other proviso to section, sources of information or knowledge would not be a material consideration. It is the ultimate provided by the legislature for preferring an application under Section 18 of the Act. In other cases, it would be within six weeks from the date of receipt of notice by the claimant under Section 12(2) and in the event of the party being present at the time of announcement of the award within six weeks from the Collector's award. In no event, the Collector would have jurisdiction to entertain and make a reference to the Court of competent jurisdiction under Section 18 of the Act in excess of six months from the date of Collector's award. In other words, within six months from the date, the party had constructed and/or actual knowledge or Information of the award in regard to Its essential features. The last part of the second proviso has not defined the word "Collectors Award" and this would have to be gathered from the facts and circumstances of each case but in view of the principle aforestated. Once the award has been made and the party has knowledge about its ingredients, the time limit on a realistic interpretation would commence from that date and has expired on lapse of six months. Prohibition of limitation in a statute Is normally to be construed strictly and the equitable or ethical consideration would not normally be with the courts in giving it totally a liberal interpretation so as to wipe out the very effect of the limitation clause.
Reliance placed by the petitioners upon the Judgments of the Supreme Court aforereferred is certainly well founded. It is a settled principle that the knowledge must relate to essential contents of the award and not merely the information that the Collector has passed the award. It will be necessary for us to refer to the relevant dictum of the supreme Court in this regard. In the case of Raja Harish Chandra (supra), the Court held as under:
The award made by the Collector under Section 12 is, in a sence, a decision of the Collector reached by him after holding an enquiry as prescribed by the Act. It is a decision, inter alia, in respect of the amount of compensation which should be paid to the person interested in the property acquired; but legally the award cannot be treated as a decision; it is in law an offer or tender of the compensation determined by the Collector to the owner of the property under acquisition. If the owner accepts the offer no further proceedings is required to be taken; the amount is paid and compensation proceedings are concluded. If, however, the owner does not accept the offer, Section 18 gives him the statutory right of having the question determined by Court, and it is the amount of compensation which the Court may determine that would bind both the owner and the Collector. In that case, it is on the amount thus determined prejudicially that the acquisition proceedings would be concluded. It is because of this nature of the award that the award can be appropriately described as a tender or after made by the Collector on behalf of the Government to the owner of the property for acceptance. 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. 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.
This principle was reiterated with approval by the Supreme Court in the case of Mst. Quiser Jehan Begum (supra) with further expansion to the word knowledge and/or information of the award' and clearly interpreting the expression six months from the date of Collector's award, the Court held as under:
(5) As to the second part of Clause (b) of the proviso, the true scope and effect thereof was considered by this Court In Harish Chandra's case, 19621 SCR 676 : AIR 1961 SC 1500 (supra). It was there observed that a liberal and mechanical construction of the words "six months from the date of 'the Collector's award: occurring in the second part of Clause (b) of the proviso would not be appropriate and" 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...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. "Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned Counsel for the appellant has placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24, 1954. He has pointed out that the learned Subordinate Judge relied on this petition as showing the respondents' date of knowledge and there are no reasons why we should take a different view. It seems clear to us that the ratio of the decision in Harish Chandras case 19621 SCR 676 : AIR 1961 SC 1500 (supra) 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 awards 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 knowledge of the award must mean knowledge of the essential contents of the award.
In the case of Bharat Chand Dilwali v. 42 UOI 1988 Rajdhani Law Reporter 224 as well as a Division Bench of Gujrat High Court in the case of Rsulkhanji Sardar Mabomad Khanji v. H.P. Rathod 3rd Spl Land Acquisition Officer Ahmd and Anr. 1975 (16) Gujrat Law Reporter 911 took the view that mere knowledge of the award or taking part in the proceedings under Section 30 of the Act would not be helpful for holding that limitation had commenced from such a date. For this purpose, the date would be when either the award was communicated to the party actually or he had knowledge of essential contents of the award actually or constructively. Now we would apply to the above well settled principles of law to the facts of the present case. In this regard, at the very outset, we may also notice that complete and correct facts have not been disclosed by the petitioners in these petitions. The award was announced on 1 9m June. 1992 and possession of the property in question was taken on 25 January, 2000. The claimants were obviously fully aware about the acquisition proceedings and they filed the application for receiving of compensation on 23 June, 2001. In this application reference was made to the essential features Including the number of the award. In regard to amount of compensation payable to the petitioners they had specified definite figures in the indemnity bonds and other documents annexed with the applications or filed subsequent thereto. The indemnity bond and surety bonds and other documents were filed by Bale Barn on 3rd December 2001 while the application was filed on 23 March, 2001. These documents clearly show that the petitioners had complete and full knowledge and information about the passing of the award and essential contents thereof for the purposes of upholding their remedy under Section 18 of the Act in accordance with law. The limitation for filing an application by the petitioner under Section 18 thus would commence at best from 23 March, 2001 and even if any liberal attitude, which is not called for, is given to the petitioners, then the limitation would commence from December, 2001 and would expire on 23rd September, 2001 and June, 2001 while admittedly the application under Section 18 of the Act was filed on 30th May, 2002 and 3 June, 2002. The Supreme Court in the case of Msmt. Qalsar Jehan Begum supra) had granted relief to the petitioner because their Lordships of the Supreme Court as a finding of fact held that the claimants had no knowledge of the contents of the award and did not know the amount of compensation which have been awarded. This Judgment, therefore, is of no help to the petitioners as they themselves had submitted all necessary documents for payment of compensation Including all essential contents required for that purpose.
19. In the present case, the award was prepared on 20th April, 1994 while it was declared on 20th June, 1994. Admittedly, the compensation was received by the claimants on 7th July, 1994 and the applications under Section 34(1) were made by the claimants on 26th September, 1994. According to the State, the limitation should be computed from 20th April, 1994 and in any case, at best even if taken from subsequent dates of 20th June, 1994 and 7th July, 1994, the petitions under Section 34(1) having been filed on 26th September, 1994 were barred by time as such the claimants would not be entitled to any relief. It may be noticed that even according to the claimants, they had received the compensation on 7th July, 1994 and upto 21st July, 1994. It is also not in dispute that the applications were filed by the claimants on 26th September, 1994. They claimed to have applied for certified copies, of course, no details thereof have been furnished in any of the appeals and it is not even clear whether the certified copies were received and as such appeals were filed subsequent thereto.
20. The applications for reference filed by the claimants prima facie appear to be barred by time as they have been filed much beyond the period of 60 days from the date of decision of the Collector and even from the date of disbursement of compensation to them. Since it is not the case pleaded before us that the claimants were present at the time of declaration of the Award, the Court cannot draw any presumption that the claimants were in knowledge of the award and/or its contents on 20th June, 1994 i.e. the date of declaration of award. We have already discussed above that in order to make the remedy fruitful and effective, it is necessary that the claimants should have knowledge of the essential ingredients of the Award. These essentials would be declaration of the award, the details of the land acquired, rate at which compensation is awarded and bare minimum reasons to support those finding. Reference can usefully be made to the judgments of the various Courts, including this Court in the case of Maharashtra Industrial Development Corporation, Nagpur v. Shaikh Khatinabi wd/o Abdul Gaffar Shaikh and Ors. as also the Supreme Court in the case of Mahadeo Bajirao Patil v. State of Maharashtra and Ors. . It has been unambiguously held in those cases that mere declaration of award per se is not a notice to the claimants and the claimants should know or have proper knowledge of the essentials of the Award which will be required for making the remedy of appeal effective and purposeful.
21. In the present case, all these ingredients came to the knowledge of the claimants on 7th July, 1994 when they received compensation in terms of the Award already declared on 20th June, 1994. Once compensation so determined was actually paid to them and received by them, whether with or without prejudice, it would satisfy the basic requirements of knowledge about the declaration of award as it would fairly provide them the required information for taking recourse to their remedy under Section 34 (1) of the MID Act. The cases in which affidavits have been filed by the claimants to show that they had received payments beyond 7th July, 1994, and in any case 21st July, 1994, certain evidence is required to be led before their claims can be rejected as being barred by time by the Reference Court.
22. The other important aspect of the case is whether the provisions of Section 5 of the Limitation Act or any other provisions could be invoked by the Collector or the Reference Court to condone the delay in filing petitions under Section 18 of the Act and under Section 34(1) of the MID Act. Both these provisions which prescribe for a specific period of limitation do not empower the Collector or the Court to condone the delay in filing a petition for reference. It is thus clear that wherever the petition filed under Section 18 of the Act is barred by time, the Collector or the Court has no jurisdiction to condone the delay. Similarly, if a petition is filed under Section 34(1) of the MID Act, it must be filed within a period of sixty days from the date of the decision of the Collector and/or at best from a date which could be construed to be the date when the claimants had a fair knowledge about the essential features of the award. But once that date is known and/or determined, in that event, there is no power vested in the Collector or the Court to condone the delay in filing the appeal. In this regard, reference can be made to the judgment of the Supreme Court in the case of Officer on Special Duty (Land Acquisition) and Anr. v. Shah Manilal Chandulal and Ors. . Reference in this regard can also be made to the judgment of the Supreme Court in the case of Mahadeo Bajirao Patil (supra).
23. It is also a settled principle of law that the authority concerned loses its power to make a reference and in fact the powers stand extinguished simultaneously with the extinction of the claimants right to get a reference made to the Court. The reference has to be made within the prescribed period of limitation. In the case of State of Karnataka v. Laxuman , the Court held as under.
Then the question is, whether in the context of Section 18 of the Karnataka amendment, the decision of this Court in Thakoredas and our discussion as above, Section of the Limitation Act could be invoked or would apply to an application under Section 18(3)(b) of the Act. This Court has held that Section 5 of the Limitation Act has no application to proceedings before the Collector or Deputy Commissioner here, while entertaining an application for reference. We see no reason not to accept that position. Then arises the question whether Section 5 could be invoked before the Land Acquisition Act while making an application under Section 18(3)(b) of the Act. We have held in agreement with the earlier Division Bench of the Karnataka High Court, that the right to have a reference enforced through court or through the Deputy Commissioner becomes extinguished on the expiry of three years and 90 days from the date of the application for reference made in time. Consistent with this position it has necessarily to be held that Section 5 of the Limitation Act would not be available since the consequence of not enforcing the right to have a reference made on the scheme of Section 18 of the Act, as obtaining in Karnataka, is to put an end to the right to have a reference at all. Since in that sense it is an extinguishment of the right, the right cannot be revived by resorting to Section 5 of the Limitation Act. We may incidentally notice that in Thakoredas this Court rejected the application under Section 18(3)(b) of the Act which was beyond time, though, of course, there was no specific discussion on this aspect.
24. The period of limitation cannot be extended by the Collector or the Courts and, therefore, reference should essentially be filed within the prescribed period of limitation under Section 34(1) of the MID Act.
25. In view of our detailed discussion and the submissions made by the learned Counsel appearing for the respective parties, we order as under.
(i) The appeals filed by the claimants where they had received compensation as on 7th July, 1994 and even upto 21st July, 1994, and since claim petitions have been filed on or after 26th September, 1994, all those claim petitions are dismissed on the ground that their claims before the Collector in terms of Section 34(1) of the MID Act were barred by time and as such were not maintainable.
(ii) In Appeal Nos. 1776, 1779, 1780, 1784, 1786, 1794, 1797, 1818, 1832, 1837, 1840, 1844 and 1847 of 2003, where the claimants have filed affidavits to show that they had received payments after 21st July, 1994 and even received certified copy of the award subsequent thereto, the award of the reference Court is set aside, however, with a further direction that the Reference Court shall go into the question of limitation i.e. whether the references filed by them under Section 34(1) of the MID Act were within time or not, after giving parties an opportunity to lead evidence on this issue relating to limitation.
(iii) If the above issue is answered in favour of the claimants, the Court shall then proceed to determine the compensation afresh on the basis of evidence on record and in accordance with law.
(iv) In view of our above finding, all the appeals filed by the State are wholly and/or partially accepted to the extent indicated above. No order as to costs.