Bombay High Court
Smt. Parvati Tukaram Shinde And ... vs Add. Dist. Collector And Special ... on 28 August, 2015
Bench: R.M. Savant
CRA-855 & 856-13.doc 28.08.2015
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO.855 OF 2013
Shri. Mahadeo Bapu Shinde ]
Age:-adult, Occu:-Agri, ]
R/A:-Shindewadi (Wing), ]
Tal. Karad, Dist:-Satara ].. Applicant
Versus
1. Add. Dist Collector and Special ]
Land Acquisition Officer No.4 ]
Dist:-Satara Tal & Dist:-Satara ]
2. District Collector Satara ]
3. State of Maharashtra ].. Respondents
WITH
CIVIL REVISION APPLICATION NO.856 OF 2013
1. Smt. Parvati Tukaram Shinde ]
Age:-Adult, Occ:-Housewife, ]
R/A:-Shindewadi (Wing), ]
Tal. Karad, District:-Satara ]
2. Shri. Nitin Tukaram Shinde ]
Age:-Adult, Occ:-Housewife, ]
R/A:-Shindewadi (Wing), ]
Tal. Karad, District:-Satara ]
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CRA-855 & 856-13.doc 28.08.2015
3. Shri. Sachin Tukaram Shinde, ]
Age:-Adult, Occ:-Housewife, ]
R/A:-Shindewadi (Wing), ]
Tal. Karad, District:-Satara ].. Applicants
Versus
1. Add. Dist Collector and Special ]
Land Acquisition Officer No.4 ]
Dist:-Satara Tal & Dist:-Satara
ig ]
2. District Collector Satara ]
3. State of Maharashtra ].. Respondents
Shri. Ajit Kenjale a/w Shri. Rajesh Dharap, for the Applicants.
Shri. Rajan Pawar, AGP for the Respondents.
CORAM : R.M. SAVANT, J.
DATE : 28th AUGUST, 2015
ORAL JUDGMENT
1. Admit, with the consent of the Learned Counsel for the parties
heard forthwith.
2. The Revisionary Jurisdiction of this Court is invoked against
the orders both dated 06.05.2013 passed by the Deputy Collector (Land
Acquisition) No.4, Satara, by which orders, the application filed by the
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Applicant/Applicants abovenamed for making a reference under Section
18 of the Land Acquisition Act, 1894 came to be rejected on the ground of
limitation. The Applicant/Applicants are the persons from whom lands
have been acquired for the "Vang Irrigation Project" and more especially
for the rehabilitation of the persons affected by the said project. It appears
that after following the gamut of the process as contemplated by the said
Act, an Award came to be declared in respect of the lands of the
Applicants on 29.01.2003. In so far as the Applicant Shri. Mahadeo Bapu
Shinde is concerned, the land to the extent of 32 Ares was acquired and in
so far as the Applicants Smt. Parvati Tukaram Shinde and others are
concerned, land to the extent of 37 Ares was acquired. (The Applicant/
Applicants would hereinafter be referred to as "the Applicants" for the
sake of convenience). The notice under Section 12(2) of the said Act came
to be served upon Applicants on 12.03.2008 which is evidenced by the
signature of the wife of the Applicant Shri. Mahadeo Shinde and the
signature of the heir of the original owner on the acknowledgement sheet
meant for the same. The Applicants filed an application for a reference to
be made under Section 18 seeking enhancement of the compensation on
24.09.2013 which was filed in the office of the Special Land Acquisition
Officer. Since the application filed by the Applicants was belated, the
Special Land Acquisition Officer kept the hearing of the applications on
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10.12.2013 on which day the advocates representing the Applicants made
the following submissions, that the Applicants were not present when the
Award was declared, that the notices under Section 12(2) have not been
served on the Applicants that the Awards were not served upon the
Applicants along with the notice, that they have not accepted the amounts
under the Award and that the lands are still in possession of the
Applicants. The Special Land Acquisition Officer considered the said
grounds/contentions raised on behalf of the Applicants and having regard
to the time frame which is prescribed by the proviso to Section 18(2) of
the said Act held that the application for reference made by the Applicants
was beyond the period prescribed by the proviso to the said Section 18(2).
The Special Land Acquisition Officer also adverted to the fact that though
the notice under Section 12(2) was served on the Applicants on
12.03.2008, an application for certified copy was made sometime in
August 2012 and the certified copy of the Awards was obtained on
13.08.2012 whereafter the application was made on 24.09.2012 and
hence, there is no explanation for the period between March 2008 to
24.09.2012 i.e. for the period of more than 4 years. The Special Land
Acquisition Officer observed that though the Applicants had acquired
knowledge of the Award, they had done nothing till the year 2012 in the
matter of seeking enhancement. As indicated above, it is the said orders
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both dated 06.05.2013 passed by the Deputy Collector (Land Acquisition)
No.4, Satara, which are taken exception to by way of the above Civil
Revision Applications.
3. The Learned Counsel for the Applicants Shri. Ajit Kenjale
would submit that since the notice in terms of Section 45 is required to be
served on the person concerned and in his absence on the male adult
member of the family, the notice served on the wife of the land holder
Shri. Mahadeo Shinde or the heir of the original land holder in the second
matter cannot be said to be a proper service in the eyes of law. The
Learned Counsel would contend that the Award in question was also not
annexed to the notice issued under Section 12(2) and the Applicants got
knowledge of the Award only when a certified copy was furnished to them
on 13.08.2012 and therefore the reference filed on 22.09.2012 was within
limitation. The Learned Counsel sought to place reliance on the judgment
of this Court in Civil Revision Application No.329 of 2013 decided on
22.11.2013 in the matter of Sunil Dattatray Nigade (Deshmukh) and
others Vs. Special Land Acquisition Officer and another, the judgment of
a Learned Single Judge of this Court reported in 2014(1) Mh.L.J. 458 in
the matter of Madhav s/o Gundaji Shingade and others Vs. State of
Maharashtra and others and lastly the judgment of the Apex Court
reported in (2012) 5 SCC 250 in the matter of Premji Nathu Vs. State of
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Gujarat and another in support of the said contention. The Learned
Counsel would contend that considering that Section 18 is a beneficial
provision a liberal view is required to be taken and in support of the said
contention the Learned Counsel sought to place reliance on the judgment
of the Division Bench of this Court reported in 2009(6) Mh.L.J. 311 in
the matter of Akkalkot Municipal Council Vs. Vasantrao Tulsiram
Kharade and others. It was lastly the contention of the Learned Counsel
for the Applicants that the Special Land Acquisition Officer has erred in
rejecting the applications for making a reference.
4. Per contra, the Learned AGP Shri. Rajan Pawar would support
the impugned order passed by the Special Land Acquisition Officer. It was
the contention of the Learned AGP that in terms of Section 18(2) specific
time limit has been prescribed for making an application for reference in
various contingencies and in the case where notice is served under Section
12(2) of the said Act, the period for applying for making a reference is six
weeks. It was the submission of the Learned AGP that in the instant case,
though the notice was served on 12.03.2008 the Applicants made an
application for the copy of the Award only in the year 2012 i.e. after a
period of four years of the said notice being issued under Section 12(2).
The Learned Counsel would contend that the instant case is not a case
where notice under Section 12(2) was not served on the Applicants and
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therefore, the limitation which is applicable in cases where knowledge is
acquired, in the absence of the notice being served cannot be applied.
5. Having heard the Learned Counsel for the parties, I have
considered the rival contentions. The question that arises for consideration
is whether the applications filed by the Revision Applicants for making a
reference under Section 18 of the said Act can be said to be within the
time frame prescribed by the said provision. It would therefore be gainful
to reproduce Section 18(2) and the proviso thereof.
"Section 18(1)........................
(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."
6. A reading of the proviso therefore discloses that where a
notice is served under Section 12(2) the period of limitation prescribed is
six weeks from the receipt of the notice. In the instant case, in terms of the
facts as have unfolded, the notice under Section 12(2) was served on
12.03.2008 and thereafter the application for reference was made on
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24.09.2012. The same was obviously not within the period prescribed in
the proviso to Sub Section (2) to Section 18.
7. Now coming to the contention of the Learned Counsel for the
Applicants that the notice was not served as per the requirement of
Section 45 of the said Act. The acknowledgment sheet which has been
annexed to the affidavit in reply filed on behalf of the State discloses that
in respect of the Applicant Shri. Mahadeo Shinde the notice was served on
his wife Smt. Nanda as probably Shri. Mahadeo Shinde was not available
in the house when the notice was sought to be served. In so far as the
second Applicant Shri. Tukaram Shinde is concerned, the notice was
served on one of his heirs. The service of notice is not disputed on behalf
of the Applicants but what is sought to be contended is that the said
service was not in terms of Section 45 of the said Act. In so far as Section
45 is concerned, it postulates that whenever it is practicable, the service of
the notice shall be made on the person therein named and when such
person cannot be found, the service may be made on any adult male
member of his family residing with him. The objection to the service in
respect of the Applicant Shri. Mahadeo Shinde is on the ground that it is
served on his wife and not on an adult member. In my view, it is not
possible to accept the said contention having regard to the fact that the
service was effected on the wife of the said Shri. Mahadeo Shinde. The
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intent behind the notice being served on an adult member is to probably
see to it that a responsible member of the family is served with the notice
and therefore, even if the notice is served on the wife of the Applicant, it
cannot be said that there is violation of Section 45 of the said Act. The
same analogy would also apply to the service effected on the heir of the
Applicant Shri. Tukaram Shinde in the companion matter as by the time
the notice under Section 12(2) was issued the said Shri. Tukaram Shinde
had expired and therefore obviously was not available for effecting
service. In my view, therefore, the contention of the Learned Counsel for
the Applicants on the aspect of there being no proper service on the
original owners cannot be accepted.
8. Now, coming to the judgments cited on behalf of the
Applicants. In so far as the judgment of this Court in Sunil Dattatray
Nigade (Deshmukh)'s case (supra) is concerned, the said case was not a
case where a notice under Section 12(2) was issued and was a case
covered by the second part of the proviso that is where the limitation
starts after acquisition of knowledge of the Award. It is in the context of
the fact that since the Award was received by the claimant therein
sometime in the year 2012 and the application for making reference was
filed thereafter this Court by relying upon the judgment of the Apex Court
in the case of Raja Harish Chandra Raj Singh Vs. The Deputy Land
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Acquisition Officer and another reported in AIR 1961 SC 1500 held that
the date of knowledge actual or constructive of making of the Award by
the Collector was the defining aspect and in the facts of the said case had
allowed the said Writ Petition. However, in the instant case the notice
under Section 12(2) being served on the Applicants herein, the said
judgment would have no application.
9. Now, coming to the judgment in Madhav s/o Gundaji
Shingade and others case (supra), in the said case, the notice under Section
12(2) was served and immediately within two months thereafter an
application was made by the Claimant for a copy of the Award which was
made available to him on 09.11.2012 and the reference was filed on
19.11.2012. It is in the said context that the Learned Single Judge of this
Court held that the reference as filed was within time. In the instant case,
as indicated above the Applicants have done nothing from the year 2008
till 2012 and therefore, the said judgment would not aid the Applicants.
10. In so far as the judgment of the Apex Court in Premji Nathu's
case (supra), it is in the facts of the said case, where an application for
copy of the Award was made on 22.02.1985. Thereafter, the applicant's
advocate obtained certified copy of the Award and filed application on
08.04.1985 that the Apex Court held that though the application for
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reference was filed on 08.04.2015 which was beyond the period of
limitation prescribed by Section 18(2)(b), however, since the copies of the
Award were not annexed to the notice under Section 12(2) the reference
as filed was within limitation. This case is also a case where an application
for the copy of the Award was made within two months of the notice
under Section 12(2) being received and it is in the said context that the
Apex Court held that though the period prescribed for filing the reference
was over however in view of the fact that copy of the Award was not
annexed to the notice issued under Section 12(2) the reference filed was
within time. In the instant case, as indicated above, right from the year
2008 when the 12(2) notice was issued till September 2012, no steps were
taken by the Applicants to obtain a copy of the Award and to make an
application for reference.
11. In so far as the judgment of the Division Bench of this Court
in Akkalkot Municipal Council's case (supra), though undoubtedly in
paragraph 40, the Division Bench has observed that an interpretation
which is more favourable to the land owner should be adopted specially
when the Act provides for due and fair compensation to the owner. In my
view, in the facts of the present case, the said approach cannot be adopted
as the Applicants have to blame themselves for unduly delaying the matter
by more than 4 ½ years. This is a case where after the receipt of the notice
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under Section 12(2), the original owners/Claimants have not taken any
steps towards applying for making a reference. Indulgence could have
been shown to the Applicants who are undoubtedly the deprived land
holders if on account of circumstances beyond their control, there was a
minor delay in filing the application for reference. However, the facts as
are prevailing in the present Civil Revision Applications as indicated above
are otherwise and there is a huge delay of 4 ½ years in filing the
application for making a reference. The facts in the instant cases are such
which operate as a constraint on this Court to make any order in favour of
the Applicants. In that view of the matter, the impugned orders passed by
the Special Land Acquisition Officer rejecting the applications for
reference on the ground of limitation do not suffer from any error or any
other illegality or infirmity for this Court to exercise its Revisionary
Jurisdiction. The Civil Revision Applications are accordingly dismissed.
[R.M. SAVANT, J]
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