Delhi District Court
Sh. Azad Singh(Deceased) Through Lr'S vs Union Of India on 14 January, 2021
IN THE COURT OF SH. MUKESH KUMAR GUPTA:
ADDITIONAL DISTRICT JUDGE -1 + MACT (NW)
ROHINI COURTS : DELHI
UID/CNR NO.DL NW-01-000303-2012
LAC No.175/16 (New)
LAC No.1990A/12 (Old)
[Old Case: more than 8 years old]
IN RE :
1. Sh. Azad Singh(Deceased) through LR's
(a) Leela Wati (Widow)
W/o Late Shri Azad Singh,
(b) Ajay Singh (Son)
(c) Vijay Mathur (Son)
Both S/o Late Shri Azad Singh,
All R/o B-272, Pana Devi Wara,
VPO Karala Delhi-110082.
(d) Poonam (Daughter)
W/o Shri Kuldeep Singh,
R/o New Roshan Pura, Najafarh
2. Lakhmi Chand (Deceased Through LR's)
(a) Smt. Man Kaur
Widow of late Shri Lakhmi Chand,
R/o Flat No.61, Kirshi Apartment,
APMC Cooperative, GH Society,
Sector-13, Rohini, Delhi.
(b) Shri Tej Ram Mathur, (Deceased son) through LR's),
(i) Raj Rati,
W/o Late Shri Tej Ram Mathur,
(ii) Ashish
S/o Late Shri Tej Ram Mathur,
Both R/o Flat No.61, Kirshi Apartment,
APMC Co-operative, GH Society,
Sector-13, Rohini, Delhi.
(iii) Ruchi Mathur,
W/o Shri Rakesh Malik,
R/o A-27, Vandana Appartment,
Sector-13, Rohini, Delhi.
(c) Shri Om Prakash
(d) Sh. Ramesh Kumar,
(e) Shri Suresh Kumar,
All Sons of Late Shri Lakhmi Chand,
All R/o House No. 932, Panna Devi Wara,
Village & PO Karala, Delhi.
(f) Smt. Chandri Devi,
W/o Shri Harpal Singh,
R/o 437, Type Four Quarter,
Laxmi Bai Nagar, New Delhi-23.
(g) Smt. Kaushalya Devi,
W/o Shri Ramesh Chander,
R/o EC-149, Maya Enclave,
Hari Nagar, Delhi.
.... Petitioners.
Versus
1. Union of India
Through: Land Acquisition Collector (North),
D.C. Complex, Alipur, Delhi.
2. Delhi Development Authority,
Through its Vice Chairman,
At INA, Vikas Sadan, New Delhi. ........Respondents
Village Karala Notification U/S 4 of L. A Act. F.11(19)/2001/L&B/LA/20112 dt. 21.03.2003 Notification U/s 6 of L. A Act. F.11 (19)/2004/L&B/LA/28199 dt. 19.03.2004 Award No. 22/2005-06 Date of Announcement / Award 02-01-2006 Date of Receipt of Reference : 18.12.2012 First date before the undersigned: 19.09.2018 Date of Arguments : 08.01.2021 Date of Decision:14.01.2021
Appearance: Shri R.S. Dalal, Ld. Counsel for the Petitioners.
Shri Vinay Kumar, Ld. Counsel for Union of India Ms. Renu Gupta , Ld. Counsel for DDA.
REFERENCE PETITION UNDER SECTION 18 OF THE LAND ACQUISITION ACT, 1894 JUDGMENT / AWARD (Under Section 26 of the Land Acquisition Act, 1894)
1. This is a reference petition u/s 18 of Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), filed by the deceased petitioners Azad Singh and Shri Lakhmi Chand mentioned aforesaid for enhancement of compensation awarded by the Land Acquisition Collector (North-West) (hereinafter called 'the LAC' ) for acquisition of their land for public purpose.
2. Vide notification No. F.11(19)/2001/L&B/LA/20112 dt. 21.03.2003 under Section 4 and declaration bearing no. F.11 (19)/2004/L&B/LA/28199 dt. 19.03.2004 under Section 6 of the Land Acquisition Act, for land ad-measuring 3244 bighas and 15 biswas (including the land of the deceased petitioners Shri Azad Singh and Shri Lakhmi Chand as detailed in the statement under Section 19 of the Act), situated in the revenue estate of village Karala, Delhi, was acquired by the Government for public purposes namely "for Rohini Residential Scheme under planned development of Delhi". The Land Acquisition Collector after completing all the requisite formalities as provided under the Act, announced the Award bearing no.22 of 2005-06 dated 02.01.2006 of village Karala and awarded compensation at the uniform rate of Rs.15,70,000/- per acre or Rs. 16,354.16/- per biswa for the entire acquired land in addition to solatium and additional amount etc.
3. The deceased petitioners Shri Azad Singh and Shri Lakhmi Chand have claimed to be the owners/Bhumidars in cultivated possession of their 1/3rd share in land under acquisition out of khasra no. 46//10/2 min (1-10 ½ and 11 min (4-06) total measuring 5 Bighas 16 ½ Biswas situated in the revenue estate of village Karala.
4. The petitioners being aggrieved by the market value determined by the LAC vide award no. 22/2005-06/DC(N-W) which was announced on 02-01-2006, challenged the said award on the grounds as detailed in the reference petition which are summarized as under: -
(i) That the petitioners/claimants are the bhumidars/owners and are in physical cultivatory possession of their entire acquired land, structures, crops and trees etc. wherein they are interested persons/claimants, even though the same is not specifically stated in the present reference petition as they have no knowledge of the full contents of the award and the copy of the award has not been supplied so far by the Land Acquisition Collector (N/W) to the petitioners/claimants.
(ii) that the petitioners/claimants have filed this reference petition, reserving their rights to add or to amend the reference petition as they have no knowledge of full contents of the award.
(iii) that the market value of the acquired land etc. as assessed/awarded by the Land Acquisition Collector is too, low, unreasonable and inadequate and against the facts and is not keeping in view of the valuation of the acquired land as on the date of notification u/s 4 of the LA Act.
(iv) that the method adopted by the Land Acquisition Collector in assessing the market value of the acquired land is incorrect and baseless and not in accordance with the provisions of law and no proper reason has been mentioned in the award for fixing the market value of the acquired land etc.
(v) that the Price/Market value of the land acquired etc. in the locality at the time of notification under section 4 of the Act was not less than Rs.20,00,000/- per bigha.
(vi) that the acquired land etc. of the petitioners/claimants is very fertile for growing all types of vegetables etc. and the potential value of the same is very high in comparison to the other lands of the adjoining villages.
(vii) The Land Acquisition Collector (N/W) should have taken into consideration all the amenities and facilities which are available to the acquired land such as, Transport, Electricity, Drinking water, Schools, colleges, hospitals and other commercial facilities prior to the date of the notification u/s 4 and is also surrounded by the main pucca road, pathways i.e. outer ring road and is very near to the Railway Station such as Shakur Basti Railways Station. Badli Railway Station, Nangloi Railway Station, Azadpur Subzi Mandi etc.
(viii) The acquired land of the petitioners is also very near to the well developed and approved colonies of DDA and MCD, residential-cum-
commercial/industrial complex/commercial complex, such as Badli Industrial Complex etc. and the market value of the acquired land should have been assessed at the rate of Rs.20,00,000/- per bigha for agricultural land.
(ix) The Land Acquisition Collector should have taken into consideration all the latest/highest sale transaction of the same village and adjoining villages also, nature and purpose of acquisition by the acquiring authority/government/DDA and the date of notification u/s 4 of the Act before the announcement of the award and there are certain trees, borings, well for which compensation has been assessed at very low, incorrect and unreasonable and is against the facts and the claimants/petitioners claim compensation amount for tubewell in khasra No.46/11 which the petitioners have claimed Rs.50,000/- but the LAC has not awarded any compensation for the tube well.
(x) The Land Acquisition Collector has not assessed/awarded the interest to the claimants/petitioners under the provisions of law and also not paid the interest after the announcement of the award till the date of payment.
(xi) That the deceased petitioners have not received any notice under Section 12(2) of the Land Acquisition Act nor he was present at the time of announcement of Award
5. The petitioners have prayed for enhancement of acquired land at the rate of Rs.20,00,000/- per bigha and Rs.50,000/- for the well, tube well etc. and the price for crops has also to be determined and the same be paid. The petitioners have further prayed for solatium amount and interest till the date of payment of compensation amount assessed/awarded and further interest on enhanced amount till the date of deposit and additional amount 12% per annum on the entire market value under section 23 (1A) of the LA Act as amended up to date from the date of notification u/s 4 of the LA Act. The petitioners have finally prayed for severance charges for loss of profession/business of agriculture.
6. The respondent no. 1/Union of India filed their WS thereby contesting the present petition. The respondent no. 1/ Union of India in their Written Statement has taken preliminary objections contending that the petition/reference is not maintainable as the deceased petitioners have failed to furnish any evidence in respect of the relief claimed. It has further been averred that the LAC has already assessed the market value of the land in question, taking into consideration the prevailing market rates of the land at the time of notification u/s 4 of the Act and also considering the existing locations, surroundings, availability of Civic Amenities and other resources, if any, available near the land in question. It has further been averred that the petitioners have not brought any specific and cogent evidence on record to claim a higher compensation as such the order passed by LAC is a reasoned one and hence the present petition is liable to be dismissed. On merits, the respondent no. 1/ Union of India denied the averments pleaded in the reference petition. It has also been denied that the deceased petitioners have enjoyed all types of facilities/amenities as alleged. It has further been stated that the reference is liable to be dismissed with heavy costs and the petitioners are not entitled to any enhancement over and above the value assessed by the LAC.
7. Respondent No.2 DDA has filed Written Statement and in the written Statement, all averments have been denied as pleaded in the reference petition. It has been contended that the LAC while making Award No. 22 of 2005-06 relating to the village Karala, Delhi had taken into consideration the market value of the land on the basis of sale deeds of the adjoining lands of the area as well as other documents which were made available and produced before the Land Acquisition Collector. Moreover the area of the land and other appurtenances amenities/facilities were also taken into consideration while assessing the compensation by the Land Acquisition Collector and hence the reference under reply for enhancement of the amount of compensation is not justified and is not maintainable and is liable to be dismissed. It has further been contended that the amount awarded by the Land Acquisition Collector in the present case is adequate, sufficient, just and legal. Objection has also been taken with respect to the limitation that the present reference petition is barred by the period of limitation and is not maintainable. It has also been contended that the directions of L&B department, after announcement of award reference/request should be forwarded by LAC to the Court within 60 days from the date of filing of the reference. It has further been contended that The reference petition has not been forwarded to the Court within 60 days from the filing of the same and hence DDA/beneficiary of land is not liable to pay interest, if any, for the delayed period. It has also been contended that since the petitioners are not admitted to be the owners/bhumidars with respect to the land in question and as such he has no locus standi to file the present petition for enhancement of compensation. On merits, it has been contended that the land in question situated in the revenue estate of village Karala, Delhi as detailed in the statement u/s 19 of the Land Acquisition Act has been acquired vide award No.22 of 2005-06 and notification under section 4 has been issued F.11(19)/2001/L&B/LA/18032 dt. 21.03.2003 Notification U/s 6 of L. A Act. Vide F.11 (19)/2004/L&B/LA/18 dt. 19.03.2004 and physical possession of the land has been taken over by the Delhi Development Authority on 25.07.2006 from LAC/L&B and the same has been transferred to RPD.1 of the DDA on 18.07.07. It has been denied that the compensation awarded to the deceased petitioners is inadequate. It has been prayed that the petition be dismissed as being without any merits.
8. During the pendency of the case, petitioner No.1 Shri Azad Singh has expired on 21.10.2009 and an application u/o XXII rule 3 CPC for bringing the LR's of deceased petitioner No.1 Shri Azad Singh has been filed which was allowed vide order dated 23.10.2013 and all the LRs of deceased Azad Singh were brought on record. Similarly, the LR's of deceased Lakhmi Chand who has also expired on 28.10.2006 moved an application u/o 22 rule 3 CPC for bringing the LR's of deceased Lakhmi Chand which was allowed vide order dated 23.10.2013 and all the LRs of Deceased Lakhmi Chand were brought on record. In the similar way, the wife of deceased petitioner No.2 also expired on 12.04.2014 and an application u/o 22 Rule 3 CPC on behalf of LR's has also been allowed vide order dated 01.08.2017. Likewise on death of one of the sons of deceased petitioner Lakhmi Chand, LR's were brought on record vide order dated 16.12.2020.
9. On the basis of pleadings of the parties and documents filed on record, the following issues were framed by the court on 19.09.2018. ISSUES.
1. Whether the petitioners are entitled for enhancement in compensation, if yes, then to what extent? OPP
2. Relief.
10. In order to prove their case, petitioners have examined one Satish son of late Lakhmi Chand as PW1 who reiterated the contents of petition on oath as exhibited the same as Ex.PW1/1. He has relied upon the evidence led by the petitioner in case bearing No.178/16 (new) and 1967A/12 (old) titled Pardeep Mathur Vs. Union of India & Anr. Similarly, on behalf of remaining petitioners, the counsel has also relied upon the evidence led by the petitioner in the aforesaid case. However, no specific separate additional evidence for enhancement of compensation has been led.
11. On the other hand, the respondent no. 1 i.e UOI has only relied upon the award dated 02.01.2006 passed by LAC as Ex.R-1 and also adopted the evidence led on behalf of Union of India in Pradeep Mathur case (supra) and has not led any separate evidence and respondent No.2 i.e. DDA has also adopted the evidence as led by Union of India.
12. I have heard the Ld. Counsels for the parties and have perused the entire record including the documents and the evidence led by the parties. I have given a thoughtful consideration to the same. My issue-wise findings and determination are as under: -
ISSUE NO. 1 : -"Whether petitioner is entitled to the enhancement in compensation, if so, to what amount"
13. During the perusal of the record, doubts have come in respect of the present reference petition being filed beyond the period of limitation as the award was made by the LAC on 02.01.2006 while the application for reference u/s 18 of Act was filed by the petitioners before LAC on 04.10.2006. The question being legal in nature, therefore, requires to be decided first. In any case, the entitlement to the enhancement in compensation as mentioned in the issue is imperatively the legal entitlement of the petitioners.
14. It may further be seen that the onus to prove this issue was upon the petitioners. It is settled proposition of law that the onus to prove the market value of the acquired land or inadequacy of compensation awarded by LAC is always upon the petitioners. The aforesaid proposition of law has been authoritatively held by our Hon'ble Supreme Court in State of UP & Anr Vs. Rajender Singh, AIR 1996 SC 1564 as under:
"The onus is on the petitioners to prove that their lands are capable of fetching higher compensation then what has been determined by the LAC and that he is entitled for enhanced compensation".
15. The petitioners have averred in this petition that award was announced in their absence and they were neither present nor representated by authorized person when the LAC has passed the award nor had complete knowledge of contents of award at the time the reference petition was drawn. However, it may be seen that the petitioners have not led any specific evidence on this aspect that the reference petition has been filed within the period of limitation as provided u/s 18 (2)(b) of the Land Acquisition Act, 1894.
16. Ld. Counsel for petitioners Shri Dalal has vehemently argued that besides being absent at the time of passing of the award by LAC, no notice under section 12(2) of the Act has been served upon the petitioners. It has further been submitted that no intimation was ever given to the petitioners regarding passing of the award by LAC as stipulated under the Act. Petitioners have averred in the petition that they have no knowledge of contention of the award in question and they did not accept the compensation in respect of the acquired land as award was passed in their absence. They have further reserved their right to amend the reference petition on the ground that as and when they will have complete knowledge of the contents of the award, they would add or amend the reference petition. He has further sought to rely upon the certified copies of the LAC file for considering the same within the purview of section 114(e) and (f) read with section 79 and 81 of the Indian Evidence Act, 1872 to show that the petitioners/representatives were not present at the time when the collector announced the award. Relying upon the judgment of Hon'ble Apex Court in AIR 1961 SC 1500 Raja Harish Chander Raj Singh Vs. Deputy Land Acquisition Officer & Ors, reiterated by the Division Bench of our Hon'ble High Court in WP(C) No. 10039/2016 Shanti Devi & Ors. Vs. Union of India, Ld. Counsel for petitioners had stated that "the date of the award" under proviso to section 18 of the Act shall be the date on which the award was communicated or made known to the owners or interested person actually or constructively.
17. Further relying upon the judgment of Hon'ble Supreme Court in AIR 1963 SC 1604 titled State of Punjab Vs. Mst Qaisar Jehan Begum and Ors.. it has further been sought to be argued that even the Hon'ble Supreme Court has gone to the extent of clarifying that knowledge of award does not mean a mere knowledge of the fact that an award has been made but must relate to the essential contents of the award which may be known to the petitioners/interested persons either actually or constructively. Hon'ble Apex Court has even laid down that knowledge of essential contents of the award should be read within the meaning of section 18(2) of the Act having regard to scheme of the Act. Ld. Counsel has finally sought to rely upon a recent judgment of Hon'ble Apex Court in Bhagwan Das and Others Vs. State of Uttar Pradesh & Others (2010) 3 SCC 545 thereby arguing that if a person is not present at the time when collector has made an award and a notice u/s 12 (2) of the Act has also not been served upon him then only way to decipher knowledge for interested person is either the interested person has drawn the compensation or has participated in the mazhar/possession proceedings or has filed a case challanging award wherein documentary evidence or any statement on oath about the contents of knowledge in any other proceedings before any authority is made. He has argued that at best the date of knowledge or the date of constructive knowledge in this case shall be the date on which the possession of the land of the petitioners was taken which is 25.07.2006 and the petition being filed on 04.10.2006 is as such well within the period of 6 months as stipulated under proviso to Section 18(2) of the Act. He has finally argued that the compensation in respect of acquired land has been accepted by the petitioners under protest and the application for reference u/s 18 of the Act being filed within limitation, the petitioners are entitled for enhancement in compensation.
18. Ld. Counsel for Respondent no.1 Shri Vinay Kumar has vehemently argued that the reference is blatantly time barred and liable to be dismissed at the outset as the petitioners have filed the present reference on 04.10.2006 much beyond the time provided under the Act when the award in question was passed by the LAC on 02.01.2006. He has further argued that a present reference petition under the Act should have been filed either within 6 (six) weeks from the date of collector's award, if a person making a reference who was present or represented before the collector at the time when the award was made by LAC in terms of section 18 (2)(a) of LA Act, or should have been filed within 6 weeks of receipt of the notice from the collector u/s 12 (2) of LA Act or within the outer limit of 6 months from the date of Collector's award, whichever period shall first expire and, therefore, considering the dates present reference petition is clearly beyond limitation. He has further vehemently argued that judgments relied upon by Ld. Counsel for petitioners in Shanti Devi (supra) and Harish Chander Raj Singh (supra) has no relevance to the facts of the present case as they operate on completely different facts. Ld. Counsel for respondent has even gone to argue that entire petition filed before the LAC and referred to this court does not mention as to when and how knowledge of passing of the award was acquired by the petitioners. It has further been sought to argue that incidentally the petition/reference filed before the court, itself shows that the date of 26.05.2006 on which the petitioners and counsel has signed it which shows that the petitioners had acquired knowledge of the fact. Ld. Counsel Shri Vinay Kumar has argued that if the petitioners have came to know about the passing of award when possession of the land was taken i.e. 25.07.2006, how did they sign the reference petition on 26.05.2006 which shows that the petitioners had knowledge of the award on the date when it was passed itself. Ld. Counsel has even gone to the extent that the petitioners might be present themselves or through their representatives at the time of passing of awardnwqdf which they have concealed. He has relied upon the judgment of Hon'ble Supreme Court in State of Karnataka Vs. Laxuman, Appeal(Civil) 2024 of 1999 and Smt. Radhika Devi & Ors. Vs. The State of West Bengal & Ors., WP No. 4809 (W) of 2007 decided on 16.02.2009 to buttress his point. He has reiterated that the petition being filed beyond the period of limitation, should be rejected outrightly.
19. A careful perusal of the record, the arguments advanced and the law on the field raise an important legal aspect before the court in as much as the court has to examine the aspect of limitation for filing an application by an interested person for reference before the LAC as provided in the proviso to sub section (2) of Section 18 of the Act, besides examining the scheme of the Act to understand the interplay of Section 9, 11 and 18 of the Act. This requires a little elucidation.
20. At the outset, the relevant extracts of Section 9, 11 and 18 arereproduced as under:-
"9. Notice to persons interested-(1) The Collector shall then cause public notice to be given at convenient places on or near the land to be taken, stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed, and shall require all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned(such time not being earlier than fifteen days after the date of publications of the notice), and to state the nature of their respective interests in the land and the amount and particulars of their claims to compensation for such interests, and their objections(if any) to the measurement made under section 8. The Collector may, in any case, require such statement to be made in writing and signed by the party or his agent."
"11. Enquiry and award by Collector-(1) On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections(if any) which any person interested has stated pursuant to a notice given under section 9 to the measurement made under section 8, and into the value of the land (at the date of the publication of the notification under section 4, sub-section(1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him;
[Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf;
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.] "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 the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2) or within six months from the date of the Collector's award, whichever period shall first expire".
21. A simple examination of these sections in the light of the law settled by the Hon'ble Supreme Court and High Courts shows that once the notification u/s 4 of the Act and the declaration u/s 6 of the Act for acquisition of land for public purpose ( or for a company) is made by the appropriate government through collector and the order for acquisition of land has been taken by the collector from the appropriate Government, he is mandatorily required to give a public notice to all such interested on two aspects, one, informing the intention of the Government to take possession of the land and two, to enable all interested persons in such land to file their respective claims. This notice u/s 9 of the Act has to be an effective notice and is required to be given to all including occupier/known or person believed to have interest in the land. The section further provides that if the interested person resides outside or elsewhere and has no agent on the spot then he has to be informed through post on his last known address of residence or place of business. The very purpose of this notice is to facilitate all the interested persons to approach the collector with their claims for the purpose of enquiry and the award which the collector is required to make u/s 11 of the Act. Further, once the enquiry concluded by the collector after consideration of not only the claims but all other relevant factors, he has to make an award clearly mentioning the true area of land, the compensation which in his opinion should be allowed for restituting the affected person for acquisition of land and even the apportionment of said compensation amongst all the persons known or believe to have interest in the acquired land.
22. Section 18 of the Act, on the other hand provides a remedy in the form of a reference to the court of law for any objection as to measurement of land, the amount of compensation, the person to whom it is payable, or the apportionment of compensation among the person interested. The application for reference is required to be made in writing specifying the grounds on which objections to the award is taken. At the same time, the application in order to be a valid reference, is required to be made within the limitation period stipulated under the proviso to sub section 2 of Section 18 of the Act,. An additional requirement for making a valid application in case of inadequacy of compensation is either non-acceptance or acceptance under protest of the Award Amount(1997 9 SCC 710 Land Acquisition Officer Vs. Shiv Bhai). The Act clearly provides commencement of limitation from the moment award is made by the LAC. The conscious use of the phrase at the time when the collector made his award by the legislature in a statute reflect that for the purpose of limitation, it is not the enquiry but the moment of making the award by the LAC which is relevant. The legislature in his wisdom has thus provided mandatory issue of notice u/s 9 of the Act for the purpose of filing the claims by the interested person which is prior to initiation of enquiry proceedings by the LAC while the limitation commence at the time of making of the award which means at the time the enquiry is concluded or terminated by the LAC. Thus, Section 9 and 11 are closely co-related while limitation period prescribed under section 18 of the Act is totally different from the issuance of notice or participation of the interested person in the award proceedings. This position is further clarified by Section 12 of the Act, which provides the award of the collector to be final and conclusive as between the collector and the person interested in respect of area and value of the land and apportionment of the compensation among the person interested. The award of the collector is final irrespective of the fact that the interested person had appeared before the Collector or not. The law provides for the eventuality where the interested persons are not present at the time when the award was made by the collector by incorporating sub section 2 in Section 12 of the Act, where the collector requires to give and immediate notice of his award (not merely of the intention of the Government to acquire the land as provided under section 9 of the Act ) to such interested persons as were not present personally or by their representative when the award was made. In simple words, at the time of making the award the collector is required to specify who all were present (either personally or through representative) when the award was made, otherwise, he is required to give a notice u/s 12(2) of the Act to the interested person. It is this preposition of Section 12(2) which finds mention in proviso to Section 18(2) of the Act and lays down the commencement point for the purpose of limitation for making an application for reference before the collector.
23. Now adverting to limitation as provided under proviso to section 18(2) of the Act, The proviso provides two eventualities and three periods. Eventuality one when the applicant is present either personally or represented through his representative before the collector at the time when the collector made his award, the limitation for filing the application in such an eventuality is six weeks from the date of collector's award. Eventuality two when the applicant is not present (personally or through representative) at the time when the collector made his award. Now, this eventuality provides for two periods- First when the applicant has received a notice u/s 12(2) of the Act, in such case the limitation is six weeks from the date of receipt of the notice. And second when the applicant has not received a notice u/s 12 (2) of the Act, in such case the limitation for filing the application for reference is six months from the date of collector's award. Interestingly, the second eventuality also perceives a situation where a notice u/s 12(2) of the Act is received in a delayed time and provides for the period of six months from the date of award or six weeks from the date of award, if the notice u/s 12 (2) of the Act is received. In such case, the limitation shall commence from the date or the period which expires first.
24. It is settled preposition of law laid down by the Hon'ble Apex Court that the validity of a reference petition can only be decided by a Civil Court. Reliance placed on (1997) 9 SCC 710 Land Acquisition Officer Vs. Shiva Bhai. Further, Section 5 of Limitation Act has no application since the Land Acquisition Act 1894 is a complete code in itself and only Civil Court is competent to decide whether reference within a period prescribed by proviso to of Section 18 (2) of the Act. Reliance placed on (1996) 2 JT (SC) 278 titled Officer on Special Duty Vs. Shah Mani Lal Chandu Lal.
25. The Hon'ble Supreme Court in Raja Harish Chander Raj Singh (supra) has held that the award of collector is not a decision but an offer of compensation on behalf of a Government to the owner of the property and it is not effective until it was communicated to the owner. The making of the award did not consist merely on the act of writing of the award or signing it or filing it in the office of Collector but it also involves the communication of the award to the owner either actually or constructively.
26. The aforesaid preposition of law was further clarified or elucidated by Hon'ble Apex Court in State of Punjab Vs. Mst Qaisar Jehan Begum and Ors case (Supra) wherein it has been held 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 knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under section 12(2) of the Act, the Party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in court either personally or through his representative when the award is made by the collector, it must be presumed that he knows the contents of the award, Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award".
The Hon'ble Supreme Court further in case of Madan & Anr. Vs. State of Maharashtra decided on 06.12.2013 (Civil Appeal No.10813 of 2013) has held that "it will be a unreasonable to construe the words from the date of collector's award in proviso to section 18 in a literal or mechanical way.
27. The entire gamut of law was duly examined/explained and elucidated by Hon'ble Apex Court in celebrated judgment of Bhagwan Dass Vs. State of Uttar Pradesh 2010 IV SCC 545 wherein which the Hon'ble Apex Court not only interpreted the entire aspect of limitation for filing a reference petition u/s 18 of the Act but has also gone to the extent of explaining the procedure whereby the same can be deciphered by the reference court. The Hon'ble Apex Court while examining the entire law on the field has simply explained that while there is tendency of collector to be conservative in making the award which resulted in a less market value being offered by Land owners/interested persons. As a result of which, the scheme of Act provides a inbuilt mechanism, so that land looser can approach the Civil Court u/s 18 of the Act, to get the market value as compensation which he could not seek unless the award is making by the Collector which he has to have a correct knowledge of the contents of the award and accordingly the words provides u/s 18 of the Act i.e. date of collector award cannot be allowed to literally interpreted as the same would be contrary to the spirit of the Act. Unless the procedure under the Act is fair reasonable and non-discriminatory, it will run the risk of being violative of Article 14 and Article 300- A of the Constitution of India and thus the words "date of collector award" occurring the proviso (b) to Section 18 requires to be read as refering to the date of knowledge of essential contents of the award and not the actual date of collector award.
28. The Hon'ble Apex Court has further laid down that when a person interested makes an application for reference seeking the benefit of 6 months period from the date of knowledge, the initial onus is upon him to show that he or his representative was not present when the award was made and that he did not receive any notice under Section 12(2) of the Act and he had no knowledge about the contents of the award during the period of first 6 months prior to filing of the application for reference. This onus is discharged once the petitioner asserts this facts on oath and he is not expected to prove the negative. Once the initial onus is discharged by the Claimant it shifts upon the respondent/LAC to rebut or establish that the person interested was present either in person or through his representative at the time when award was made or he has received a notice u/s 12 of the Act or he had knowledge of the contents of the award. Now first two eventualities can be shown from the record itself while the 3 rd eventuality of knowledge has to be established by the collector by leading cogent evidence or by way of established or proving that the person interested had either received or drawn the compensation amount for the acquired land or was present and attested the Mahazar/Panchnama/proceedings,delivering possession of the acquired land in pursuance of the acquisition or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement or on oath or evidence and in absence of such evidence by the collector, the claim of the person interested that he did not have knowledge earlier will be accepted, unless there are compelling circumstances not to do so.
29. The aforesaid preposition of law has been applied and reiterated by our own Hon'ble High Court in Shanti Devi (Supra) where it has been held that Land Acquisition Act being a complete code itself does not permit the application of general principles of law regarding Limitation and Limitation u/s 18(2) of the Act should commence from the date, the petitioner has constructive and/or actual knowledge or the information of the award including itself essential ingredients and shall expire on lapse of 6 months thereof.
30. Applying the aforesaid preposition of law to the facts of the present case, it may be seen that the petitioners have duly averred in the petition regarding their absence of complete knowledge about the full contents/ingredients of the award passed by Land Acquisition Collector on 02.01.2006 . It has also come on record by way of their averments and even by way of certifies copies of award proceedings accepted on record vide order dated 22.12.2020 and this court which are not only relevant for the purpose of present testimony but are also admissible in view of presumption laid down u/s 79 of the Indian Evidence Act read with section 114(e) and (f). The certified copies which contains the noting of LAC clearly shows that no presence was recorded by the collector at the time the award was made and it has been simply written in the order by LAC that award has been announced in open court in presence of interested persons who chose to be present. Interestingly, no such reference of those persons chose to be present has been made by the LAC which is a mandatory requirement of Section 12 of the Act. This being the position taken on the yardstick of preponderance of probabilities, the petitioners have proved that they were not present at the time of collector made an award taking them out of the purview of first eventuality referred to above and laid down in proviso to section 18(2) of the Act. Petitioners have claimed that they have not served with any notice under section 12(2) of the Act. Nothing has been shown on record by the respondent to prove that the petitioners were ever served with a notice u/s 12 (2) of the Act. Even, the internal noting of the LAC file does not show any acknowledgment or even any notice u/s 12 (2) of the Act being given to the petitioners. The respondents were required to prove the same in order to avail the benefit of taking the reference petition out of limitation. Thus two facts stands proved, one that the petitioners were not present at the time of award and second that notice u/s 12 (2) of the Act being not served upon them.
31. Once the aforesaid two facts are proved the only eventuality left before the court is to scrutinize and ascertain the date of actual or constructive knowledge of petitioners in respect of collector's award. Now the respondents have claimed that the petitioners had full knowledge of the date of award itself when they might have present either personally or through their representative but have concealed the same. Later on, it has been sought to be argued that in any case the fact that the petition is carrying the date of 26.05.2006 alongwith the signature of petitioners, shows that the petitioners had full knowledge of the contents of the award on either 26.05.2006 or any date prior thereto. On the other hand, the petitioners had claimed that they had come to actual or constructively knowledge of the award only when the actual physical possession of their land was taken by respondents on 25.07.2006 which can be seen from the Kabza Karyawahi (possession proceedings) by the Revenue Officer which are already part of record and certified copies of which has also been filed by the petitioners and thus the limitation should commence from 25.07.2006. It has further been sought to be brought before the court that PW1 in his deposition has duly exhibited the reference petition on oath besides filing the specific affidavit regarding the knowledge being attained only on the date of possession proceedings and the limitation should commence from 25.07.2006 itself. Now this requires a critical examination. First of all, it may be seen that the petitioners clearly mention that petitioners had no knowledge of the contents of the award. It has also been proved on record by way of deposition of PW1, the certified copies of the Award Proceedings of Land Acquisition Collector that the petitioners were not present or served with the notice u/s 12 (2) of the Act. However, it is also an interesting fact to be noted that the petition is signed and dated on 26.05.2006. The petition also contains the schedule of land which is also signed and dated on 26.05.2006. If the petitioners have to rely upon the petition, they could not choose to rely upon the certain part of it and ignore the date of 26.05.2006. Now admittedly, the petitioners had sufficient knowledge of the award on 26.05.2006, though they have reserved their right to amend the same and further kept it open to add/delete the contents of the reference petition, but ironically they have chosen not to do so, which clearly shows that the petitioners at least had knowledge of the essential contents of the award at least on 26.05.2006. The respondents on their part has only made arguments that interested petitioners had knowledge prior to, but nothing on record in accordance with law has brought to the knowledge of the court to prove the same. The petitioners having discharged its essential onus of proving the requisite facts as per the judgment of Hon'ble Apex Court in Bhagwan Dass (supra), the onus shifts upon the respondents to prove otherwise or rebut the same. This being the position, this court taken on the yardstick of preponderance of probabilities is of the view that the contention of the petitioners regarding knowledge being attained on the day of Kabza Karyawahi only as also the contention of the respondents that the petitioners had knowledge on 02.01.2006 on the date of passing of the award itself are both liable to be rejected and on the basis of record, this court is of the considered view that the date of knowledge of award by petitioners comes out to be 26.05.2006 and is, accordingly considered as the date of constructive knowledge from which date the limitation shall also commence. The reference petition is admittedly filed on 04.10.2006 and is incidentally well within the purview of period of 6 months from the aforesaid date of commencement of limitation i.e. 26.05.2006. The reference is, accordingly held to be a valid reference filed within a prescribed period of 6 months.
32. Now adverting to the entitlement to the enhanced compensation, in order to prove their case, the petitioners have adopted the evidence led in case Pradeep Mathur Vs. Union of India & Anr. LAC No. 178/16 (New), LAC No. 1967A/121 (Old). During the course of arguments, Ld. Counsel for petitioners has relied upon the judgment passed in the aforementioned case on 01.10.2019 and has argued that the petitioners may also be awarded compensation as awarded to the petitioner in the aforementioned case.
33. Even, the respondents have also relied upon the evidence led by the respondents in the aforementioned case and no separate evidence has been led by them in the present case.
34. Since the fair market value of the land situated in village Karala and covered by the award-in-question has already been determined by this court in judgment dated 01.10.2019 in Pradeep Mathur's case (supra) and no separate evidence has been led by either parties. Thus, this court has no reason or evidence to deviate therefrom.
35. In the aforesaid case, this court had adjudicated the market value of land of village Karala acquired through Award No.22 of 2005-06 dated 02.01.2006 as Rs. 19,73,583/- per acre i.e. an enhancement of Rs.4,03,583/- per acre has been given. There is no evidence on record to gather that the land of the petitioners herein was in any way inferior to the land involved in Pradeep Mathur's Case. The petitioners are, accordingly entitled to the same compensation for the land as was awarded in Pradeep Mathur's case (supra). Therefore, this court adjudicate the market value of acquired land of the petitioners as enumerated in statement under section 19 of the Act as Rs.19,73,583/- per acre thereby giving an enhancement of Rs.4,03,583/- per acre.
36. The petitioners have not led any evidence with respect to alleged damages of the growing crops, tube wells and structures or other claims. Therefore, the petitioners shall not be entitled to any damages on the aforesaid counts. This issue is decided accordingly.
ISSUE NO. 2 :- RELIEF
37. In view of the findings on Issue No.1, the petitioners are granted the following reliefs:-
1) Fair Market value of land of petitioners as detailed in Statement u/s 19 of LA Act, @ Rs.19,73,583/- per acre. An enhancement of Rs.4,03,583/- per acre is accordingly accorded.
2) Additional amount @ 12% ( in terms of Section 23 (1A) of the Act).
3) Solatium @ 30% on the enhanced compensation ( in terms of S.23 (2) of the Act).
4) Interest @ 9% per annum for the first year and 15% per annum for the subsequent year till the payment of enhanced compensation by LAC is made (in terms of Section 28 of the Act).
38. Reference petition is accordingly, answered with parties to bear their own respective costs.
39. File be consigned to Record Room after due completion.
Passed & announced in (MUKESH KUMAR GUPTA) open court today i.e. ADJ-1 + MACT (NW) DISTRICT: 14.01.2021 ROHINI: DELHI (PK)