Bombay High Court
3] Sunita Milind Nigade (Deshmukh vs Special Land Acquisition Officer ... on 22 November, 2013
Bench: R.M. Savant
cra-329.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.329 OF 2013
1] Sunil Dattatray Nigade (Deshmukh) ]
Age 47 Yrs, Occ Agricultural ]
]
2] Suhas Dattatray Nigade (Deshmukh) ]
Age 43 Yrs, Occ Agricultural ]
]
3] Sunita Milind Nigade (Deshmukh) ]
Age 29 Yrs, Occ Agricultural
ig ]
]
4] Aishwarya Milind Nigade (Deshmukh) ]
Age 18 Yrs, Occ Student ]
]
5] Master Shrenik Milind Nigade (Deshmukh) ]
Age 16 Yrs. , Occ. Student ]
Applicant No.4 --- Minor through her Mother &]
Natural Guardian - Applicant No.3 ]
All Residents of At Shirvale (Shirala) ]
Taluka Khandala, District Satara. ]..... Applicants.
Versus
1] Special Land Acquisition Officer for Morba ]
Dam and Sub Divisional Officer, Panvel ]
Division, Panvel ]
]
2] The State of Maharashtra, ]
(copy of the Application to be served on Addl. ]
Govt. Pleader, High Court, Appellate Side. ]..... Respondents.
Mr. C G Gavnekar for the Applicants.
Dr. Jayshree B Kurup `B' Counsel for the State.
CORAM : R. M. SAVANT, J.
DATE : 22nd November 2013
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P.C.
1 Admit, with the consent of the learned counsel parties taken up for
hearing. Heard the learned counsel for the parties.
2 The revisionary jurisdiction of this Court under Section 115 of the
Code of Civil Procedure is invoked against the order dated 23/11/2012 passed
by the Sub Divisional Officer, Sub Division Panvel by which order the
Application filed by the Applicants for making a Reference under Section 18 of
the Land Acquisition Act 1894 ("the said Act" for short) came to be rejected on
the ground of limitation.
3 The Applicants are the heirs of one Smt.Sushila @ Sunita
Dattatray Nigade who was the co-owner of the land which was the subject
matter of acquisition, along with her brother Narayan Wamanrao Deshmukh
and other brothers. The said land was inherited by them from their deceased
father Waman Anandrao Deshmukh. The said Sushila after her marriage
started residing at Sherval, Taluka Khandala, District Satara. The said Sushila
expired on 14/1/1987 leaving behind the Applicant Nos.1 and 2, and their
brother Milind who died on 5/2/2010 who left behind Applicant Nos.3 to 5 as
his legal heirs.
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4 The lands in question situated at village Padge, Taluka Khalapur
District Raigad, were notified for acquisition under Section 4 of the said Act on
10/9/1987 and the public purpose was for Morbe Dam Project. The said
Sushila was the co-owner of various Survey Numbers being Survey Nos. 10, 14,
19,20, and 23 in village Padage Tal.Khalapur, Dist. Raigad. The declaration
under Section 6 of the said Act was issued on 20/6/1988 and was published in
the official gazette on 30/6/1988. Notices under Section 9(3)(4) came to be
issued on 14/11/1988, however, the same were not served upon the Applicants
or their mother Sushila as the said Sushila had left the village and had expired
in the year 1987. The Award under Section 12 in respect of the said lands
came to be declared on 12/7/1990 in Special Acquisition Case No.235. It
appears that the other family members being the heirs of the original owner
accepted the compensation under protest except Shushila and filed an
application for matter being referred to under Section 18 of the said Act.
5 It is the case of the Applicants that the Applicant No.1 during the
course of making inquiry in respect of the lands which were belonging to
Sushila at village Chowk that he discovered that the lands in question were
acquired and the Award in respect thereof was declared on 12/7/1990. The
Applicant No.1 thereafter took steps to obtain certified copy of the Award and
obtained the same on 18/7/2012, after which he immediately filed an
application along with other applications on 3/8/2012 to the Respondent No.1
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for making a Reference under Section 18 of the said Act, which application was
enclosed with the necessary court fee stamps. The Respondent No.1 has
rejected the said application for the reasons which have been mentioned herein
above by the order dated 23/11/2012. The principal ground on which the
application has been rejected is that, there is a delay of more than 20 years in
filing the application considering the date of the Award. As indicated above it
is the said order dated 23/11/2012 which is the subject matter of the above
Civil Revision Application.
6 Heard the learned counsel for the parties. The learned counsel
appearing on behalf of the Applicants Shri Gavnekar would contend that
Section 18 of the said Act postulates the time withing which an application for
reference being made has to be filed. The said provision carves out two
categories. The first category is of a person who is present when the Award is
made, and the second category is of a person who is not present in respect of
which category the period of six months from the Award is presented. The
learned counsel for the Applicants would contend that the Applicants belong to
the second category and since the Applicants have acquired knowledge of the
Award on 11/7/2012, the application as filed cannot be said to be barred by
limitation. The learned counsel would contend that the References in respect of
other branches of the family are as yet pending before the District Court.
Raigad Alibag.
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7 On behalf of the Respondents the learned AGP would support the
impugned order and would contend that the case of the Applicants that they
have acquired knowledge of the Award on 11/7/2012 for the first time cannot
be accepted in the teeth of the fact that other branches have accepted the
compensation under protest and had also filed the applications for Reference
being made. The learned AGP would contend that since there is a delay of
more than 20 years, no indulgence can be shown to the Applicants.
8 Having heard the learned counsel for the parties I have bestowed
my anxious consideration to the rival contentions. In the context of the issue
which arises for consideration in the above Civil Revision Application, it would
be apposite to refer to Section 18 of the said Act and the same is reproduced
herein :-
"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 person 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:
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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."
The proviso to Section 18 of the said Act controls the aspect as to when an
application for making a Reference can be filed. The said provision has been
subject matter of interpretation by the Apex Court and the Apex Court has held
that in respect of proviso (b) the period of 6 months for making of an
application for reference cannot be the date of making of the Award but would
be the date of the knowledge actual or constructive of making of the Award by
the Collector. A useful reference can be made to the Judgment of the Apex
Court reported AIR 1961 SC 1500 in the matter of Raja Harish Chandra Raj
Singh v/s. The Deputy Land Acquisition officer and anr. Paragraph 6 of the
said Judgment is relevant in the context of the issue in the present Civil
Revision Application and the same is reproduced herein under :-
There is yet another point which leads to the same
conclusion. If the award is treated as an administrative
decision taken by the Collector in the matter of the
valuation of the property sought to be acquired it is
clear that the said decision ultimately affects the' rights
of the owner of the property and in that sense, like all
decisions which affect persons, it is essentially fair and
just that the said decision should be communicated to
the said party. The knowledge of the party affected by
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such a decision, either actual or constructive, 'is an
essential element which must be satisfied before the
decision can be brought into force. Thus considered the
making of the award cannot consist merely in the
physical act of writing the award or signing it or even
filing it in the office of the Collector; it must involve the
communication of the said award to the party
concerned either actually or constructively. If the award
is pronounced in the presence of the party whose rights
are affected by it can be said to be made when
pronounced. If the date for the pronouncement of the
award is communicated to the party and it is
accordingly pronounced on the date previously
announced the award is said to be communicated to
the said party even if the said party is not actually
present on the date of its pronouncement. Similarly if
without notice of the date of its pronouncement an
award is pronounced and a party is not present the
award can be said to be made when it is communicated
to the party later. The knowledge of the party affected
by the award, either actual or constructive, being an
essential requirement of fair-play and natural justice
the expression "the date of the award" used in the
proviso must mean the date when the award is either
communicated to the party or is known by him either
actually or constructively. In our opinion, therefore, it
would be unreasonable to construe the words "from the
date of the Collector's award" used in the proviso to s.
18 in a literal or mechanical way.
(emphasis supplied)
Hence the Apex Court has held that the words "from the date of the Collector's
award" used in the proviso to Section 18 should not be construed in a literal
or mechanical way and must mean the date when the Award is communicated
to the party or is known by him either actually or constructively.
9 In the instant case it is an undisputed position that no notices were
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served upon the said Sushila. It is required to be noted that the said Sushila
died in the year 1987 and she was residing at Satara whereas the subject lands
are in District Raigad. The said Sushila had 1/7th share in the lands which were
original owned by her father. In my view, therefore, the case of the Applicants
that they acquired knowledge of the Award passed on 11/7/2012 commends
acceptance. The Trial Court has rejected the said case of the Applicants on the
ground that other branches have accepted the compensation and have filed the
applications for reference and their references are pending. It would have been
another matter if the compensation was to have been accepted by the
Applicants, but such is not the case here. Even in the Affidavit in Reply the
stand taken is on the basis of delay and not on the basis that the Applicants are
now estopped from making an application for reference. In my view, therefore,
the impugned order dated 23/11/2012 is required to be quashed and set aside
and is accordingly quashed and set aside and the Application dated 3/8/2012
is accordingly allowed. The Respondent No.1 is directed to make a reference
under Section 18 of the Land Acquisition Act in so far as the Applicants are
concerned. Since Application has been returned, the Applicants are permitted
to file the said returned application with the Respondent No.1 who accordingly
would make a reference. The Civil Revision Application is accordingly allowed
to the aforesaid extent with the parties to bear their respective costs of the Civil
Revision Application.
[R.M.SAVANT, J]
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