Agya Pal Sareen vs Addl. District Magistrate Land ...
2023 Latest Caselaw 12669 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						          A.F.R.
 
							Reserved on:19.04.2023
 
							Delivered on: 25.04.2023
 

 

 
Court No. - 39
 

 
Case :- WRIT - C No. - 26600 of 2007
 

 
Petitioner :- Agya Pal Sareen
 
Respondent :- Addl. District Magistrate Land Acquisition And Others
 
Counsel for Petitioner :- R.K. Pandey
 
Counsel for Respondent :- C.S.C.,Anuj Srivastava,V.P. Mathur
 

 
Hon'ble Salil Kumar Rai,J.

Hon'ble Arun Kumar Singh Deshwal,J.

(Delivered by Hon'ble Arun Kumar Singh Deshwal, J.)

1. Heard learned counsel for the petitioner, Sri Anuj Srivastava, learned counsel for the respondent no.2 and learned Standing Counsel for the respondent Nos.1 and 3.

2. By means of present petition, the petitioner has challenged the order dated 27/28.04.2007 passed by respondent no.1 by which application for petitioner under Section 18 of U.P. Land Acquisition Act, 1894 (hereinafter referred to as the ''Act, 1894') for referring the matter for determination of court regarding amount of compensation was rejected on the ground that the same was time barred.

3. Factual matrix of the present case is that the State has issued notification dated 06.01.1992 under Section 4 of the ''Act, 1894' and thereafter notification dated 22.09.1992 under Section 6 of the ''Act, 1894' for acquiring the land for plan development by respondent no.2- Noida Development Authority. By way of above notification, 1/3rd part in Khasra No. 151 belongs to petitioner in village Hazipur, Pargana and Tehsil Dadari, District- Gautam Budh Nagar was acquired. The award for the portion land of the petitioner in Khasra No.151 was also given on 13.01.2004 by respondent No.1. After delivering the award, registered notice dated 12.08.2004 under Section 12(2) of ''Act, 1894' was also issued to the petitioner which was received by the petitioner admittedly on 24.08.2004. After receiving the aforesaid notice, petitioner filed an objection dated 25.08.2004 against the notice dated 12.08.2004 but no action was taken. Thereafter the petitioner submitted an application dated 20.09.2004 before the Collector, Gautambudh Nagar under Section 18 of the ''Act, 1894' to refer the matter to the Court for determination of higher/correct compensation for the acquired land of the petitioner. When the above application dated 20.09.2004 remained undisposed then the petitioner preferred a Writ Petition No. 6180 of 2007 before this Court and the same was disposed of by order dated 08.02.2007 directing the Collector to decide the application dated 20.09.2004 submitted by the petitioner under Section 18 of the ''Act, 1894'.

4. In pursuance of the order dated 08.02.2007 of this Court, respondent no.1 has passed the impugned order dated 27.04.2007 after hearing the parties including the petitioner and rejected the same on the ground that the same is time barred because the application of the petitioner under Section 18 was submitted on 20.09.2004 but as per Section 18(2)(b) of the ''Act, 1894'. It should have been filed within six months from the date of award i.e. till 12.07.2004.

5. Contention of learned counsel for the petitioner is that the impugned order dated 27/28.04.2007 passed by the respondent no.1 is absolutely erroneous because the petitioner first time came to know about the award dated 13.01.2004 only after receiving the notice dated 12.04.2004 under Section 12(2) of the ''Act, 1894' on 24.08.2004. Thereafter he immediately filed his application dated 20.09.2004 under Section 18 of the ''Act, 1894' therefore, the same was within six weeks from the date of receiving the notice under Section 12(2) of the ''Act, 1894'. Therefore, his application under Section 18 of the Act, 1894 was well within time and therefore prayed for quashing of the impugned order.

6. Counsel for the respondent no.2 as well as Standing Counsel for the State have submitted that the impugned order is absolutely correct because application of the petitioner under Section 18 of the ''Act, 1894' was time barred because the same was filed beyond six months from the date of award and also relied upon the judgements Officer on Special Duty (Land Acquisition) and Ors. vs Shah Manilal Chandulal and Ors. reported in (1996) 9 SCC 414 and Bhagwan Das vs State of U.P. reported in (2010) 3 SCC 545 to show that Section 5 of Limitation Act is not applicable in the application under Section 18 of the ''Act, 1894'.

7. Considering the rival contention of parties and perusal of record, we find it is admitted position that the petitioner submitted his application under Section 18 of the ''Act, 1894' on 20.09.2004 though he received notice dated 12.04.2004 under Section 12(2) of the ''Act, 1894' on 24.08.2004.

8. Section 18(2) of the ''Act, 1894' provides the limitation for filing the application for referring the matter to the court. For ready reference, Section 18 of the ''Act, 1894' is quoted hereinbelow;

"18(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."

9. From perusal of Section 18(2)(a) of the ''Act, 1894', it is clear that if the person/tenure holder was present or represented before the Collector at the time of making award then the limitation period is six weeks from the date of Collector's award. While Section 18(2)(b) provides in other cases, where the person was not present/ represented before the Collector at the time of making award then limitation period would be six weeks from the date of receipt of the notice from the Collector under Section 12(2) of the Act, 1894 or within six months from the date of Collector's award, whichever period shall first expire.

10. Hon'ble Supreme Court in the case of Madan and another vs State of Maharashtra reported in (2014) 2 SCC 720 observed that expression the date of Collector's award used in proviso (b) to Section 18(2) of the Act must be understood to mean that date when the award is either communicated to the party or is known by him either actually or constructively. It was further held in the above judgement that it will be unreasonable to construe the words "from the date of Collector's award" used in proviso to Section 18 in a literal or mechanical way.  Para 9 and 10 of the judgement Madan and another (supra) is quoted hereinbelow;

"9. From the order dated 29.10.1993 passed in L.A.R. No. 75/1992, it is, inter alia, clear that there was a dispute amongst the land owners (the appellants are one set of such land owners) in respect of their respective shares in the acquired land on account of which no apportionment of compensation was made by the Collector who made a Reference under Section 30 of the Act to the court. Further, in the order dated 29.10.1993 it is recorded that the appellants had no knowledge of the Award till the order dated 4.9.1991 came to be passed in the Reference under Section 30. In Harish Chandra Raj Singh (supra) this Court has held that the expression "the date of the award" used in proviso (b) to Section 18(2) of the Act must be understood to mean the date when the award is either communicated to the party or is known by him either actually or constructively. It was further held by this Court that it will be unreasonable to construe the words "from the date of the Collector's award" used in the proviso to Section 18 in a literal or mechanical way. In the present case, it has already been noticed that a finding has been recorded by the Reference Court in its order dated 29.10.1993 that "the petitioners had no knowledge about the passing of the award till the date of payment of compensation on 5.9.1991 because they were held entitled to receive the compensation after the decision of Reference under Section 30 dated 4.9.1991."

10. What transpires from the above is that it is for the first time on 4.9.1991 (date of the order under Section 30 of the Act) that the appellants came to know that they were entitled to compensation and the quantum thereof. It is not in dispute that the Reference under Section 18 was made within 6 weeks from the said date i.e. 4.9.1991. In the above facts, it is difficult to subscribe to the view taken by the High Court to hold that the Reference under Section 18 was barred by limitation."

11 Similarly in the judgement of Vijay Mahadeo Rao Kubade vs State of Maharashtra reported in (2018) 8 SCC 266. Hon'ble Supreme Court observed that if the land owner did not get copy of award along with notice under Section 12(2) of ''Act, 1894' then notice will not be treated as valid notice, therefore, subsequent submission of application for reference under Section 18(2) will not be treated as time barred. Paras 10 and 11 of the aforesaid judgement are being quoted hereinbelow;

"10. Learned   counsel   for   the   petitioner,   Ms.   Bansuri   Swaraj, relies   on   the  judgment of Premji Nathu v. State of Gujarat and Anr., (2012) 5 SCC  250, wherein this court has observed as under;­

"20. In the light of the above, it is to be seen  whether   the   conclusion   recorded   by the   Reference   Court, which has been approved by the High Court that the application filed by the appellant was barred by time is legally sustainable.

21.  A  careful reading of the averments contained in Para 2 of the application filed by the appellant under Section   18(1) shows that the  notice issued   by the Collector under Section 12(2) was served upon him on 22.2.1985. Thereafter, his advocate obtained certified copy of the award and filed application dated 08.04.1985 for making a reference to the Court. This implies that the copy of the award had not been sent to  the  appellant  along with the notice and   without that he could not have effectively made an application  for seeking reference.

22.  On behalf of the State Government, no evidence was produced before the Reference Court to show that the copy of the award was sent to the appellant along with the notice. Unfortunately, while deciding Issue 3, this aspect has been totally ignored by the Reference Court which mechanically concluded that the application filed on 8­.4.­1985 was beyond the time specified in Section 18(2)(b). The learned Single Judge of the High Court also committed serious error by approving the view taken by the Reference Court, albeit without considering the fact that the notice issued by the Collector under Section 12(2) was notice was essential for effective exercise of right vested in the appellant to seek reference under Section 18(1). (emphasis supplied).

11. The learned counsel  appearing  on  behalf  of  the  Government, has not disputed the aforesaid proposition of law. Accordingly, we are of the opinion that the aforesaid observations are squarely applicable to the present case as the notice dated 04.12.1987, was not accompanied with the award. In this case, there could not have been a valid notice of the award, by letter dated 04.12.1987, under sub-section (2) of Section 12 of the Land Acquisition Act, until the appellant received a certified copy of the award, which he did on 03.02.1988. Therefore, the reference for enhancement was, accordingly, not barred by limitation."

12. From perusal of record, it is clear that notice dated 12.04.2004 under Section 12(2) of Land Acquisition Act served upon the petitioner on 24.08.2004 was not accompanied with the copy of the award dated 13.01.2004 and petitioner came to know about the award dated 13.01.2004 only after receiving the copy of the notice dated 12.08.2004 under Section 12(2) of the Act, 1894. From legal position discussed above, it is clear that the date of Collector's award mentioned in proviso (b) to Section 18(2) of the ''Act, 1894' must be treated the date on which the petitioner came to know about the aforesaid award. Admittedly, the petitioner came to know about the award dated 13.01.2004 only after notice under Section 12(2) dated 12.08.2004.

13. In view of above time period of six month from the date of Collector's award will commence from 24.08.2004 the date on which the petitioner came to know about the award dated 13.01.2004. It is undisputed that the petitioner has submitted application under Section 18(2) before the Collector on 20.09.2004 which was within six weeks from the date of receipt of notice dated 12.08.2004 under Section 12(2) of the ''Act, 1894'. Therefore on harmonious interpretation of proviso (b) of Section 18(2) of the ''Act, 1894' with the law laid down by the Apex Court as mentioned above six months period from the date of Collector's award will start from 24.08.2004 and that will expire on 24.02.2005 and six weeks from the date of receipt of notice dated 12.08.2004 received on 24.08.2004 will expire on 05.10.2004. Therefore the period six weeks from the date of receipt of notice under Section 12(2) had expired first on 5th October, 2004 and six months time form the date of Collector's award had expired subsequently i.e. on 24.02.2005.

Therefore, application of the petitioner dated 20.09.2004 was well within time within six weeks of notice under Section 12(2), therefore, the impugned order dated 27.04.2017 rejecting the application dated 20.09.2004 of the petitioner as time barred is absolutely erroneous hence liable to be quashed. Therefore, the same is quashed and the respondent no.1 is directed to pass appropriate order on the application dated 20.09.2004 of the petitioner under Section 18 of the ''Act, 1894' for referring his case to Court for determination of compensation treating the same within time.

14. Aforesaid exercise will be completed by respondent no.1 within a period of three months from the date of receiving the copy of this order.

15. In view of above, present writ petition is allowed. No order as to cost.

Order Date :- 25.04.2023

A. Kr.