Shriram Gopaldas Khathod vs The State Of Maharashtra And ...
2017 Latest Caselaw 1315 Bom

                                          1
                                                                 W.P.No.6164/15

                                        REPORTED

                     IN THE HIGH COURT OF JUDICATURE AT

                                          BOMBAY

                                   BENCH AT AURANGABAD.


                               WRIT PETITION NO.6164 OF 2015


          Shri Shriram Gopaldas Khatod,
          Age 48 years, Occ.Agri.&
          Business, R/o Jainagar,
          Kavyarathunwala Chowk,
          Jalgaon, Tq. and Dist.
          Jalgaon.                      ... Petitioner.

                           Versus

          1.The State of Maharashtra,
          through its Secretary,
          Urban Development Department,
          Mantralaya, Mumbai.

          2. The Collector, Jalgaon,
          Tq. and Dist.Jalgaon.

          3. The Municipal Corporation,
          Jalgaon, through its
          Commissioner, Jalgaon.

          4. The Special Land Acquisition
          Officer, Jalgaon.             ... Respondents.

                                              ...

          Mr.V.D.Sapkal, advocate holding for
          Mr.V.B.Jagtap, advocate for the petitioner.
          Mr.M.B.Bharaswadkar, A.G.P. for the State.
          Mr.V.D.Gunale, advocate for Respondent No.3.


                                    CORAM : S.V.GANGAPURWALA AND
                                            K.L.WADANE,JJ.




::: Uploaded on - 31/03/2017                        ::: Downloaded on - 01/04/2017 01:07:14 :::
                                             2
                                                                    W.P.No.6164/15


                             Reserved on:01.03.2017.
                           Pronounced on:31.03.2017.


          JUDGMENT (Per S.V.Gangapurwala,J.)

1. The petitioner seeks declaration that

the proceedings of proposal bearing No.SR 71/2000

in respect of acquisition of petitioner's land

has lapsed U/s 11A of the Land Acquisition Act,

1894 (hereinafter referred to as Act of 1894) and

further declaration that the award annexed at

Exh.V of the petition is not made within two

years from date of Section 6 Declaration and

therefore, proceeding has lapsed U/s 11A of the

Act of 1894. The petitioner seeks directions

against Respondent Nos.2 and 4 to initiate land

acquisition proceedings under provisions of Right

to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act,

2013 (hereinafter referred to as Act of 2013).

2. The following facts are undisputed :

a) The Notification U/s 4 of the Act of

1894 is issued on 21.9.2011;

W.P.No.6164/15

b) The declaration U/s 6 of the Act, 1894

is issued on 23.11.2012;

c) The Draft award was prepared by SLAO on

12.6.2013;

d) The Collector under communication

dt.31.7.2013 approved the draft award prepared by

SLAO;

          e)               The           petitioner                 was              paid

          Rs.1,35,16,800/-              (One     crore      thirty        five       lacs

          sixteen          thousand       eight     hundred           only)             on

          10.1.2013            and     another    Rs.32,00,000/-               (Rupees

thirty two lacs) on 12.9.2013;

f) The possession of the land is taken

over by Municipal Council from petitioner under

agreement dt.8.12.1999;

g) The final award is signed on 12.10.2013

by SLAO.

3. Mr.Sapkal, learned counsel for the

W.P.No.6164/15

petitioner in lucid manner put forth following

propositions :

(i) The award U/s 11 has to be passed

within two years from the date of declaration U/s

6 of the Act, 1894, failing which the award

stands lapsed U/s 11A of the Act, 1894.

(ii) The award has to be passed on the day

so fixed or on any adjourned date. In the

present case the SLAO had not given any date for

passing the award. The award has been signed by

SLAO without intimating date on which the award

is to be passed. There is no publication of the

award.

(iii) The Award does not become final unless

and until the same is communicated to the

petitioner or to beneficiaries. That is the

purport of Section 12(2) OF THE Act, 1894. The

learned counsel to substantiate his contention

relies on the judgment of the Apex Court in the

case of "Raja Harish Chandra Raj Singh Vs. The

Deputy Land Acquisition Officer and another"

W.P.No.6164/15

reported in AIR 1961 Supreme Court 1500 (1). The

learned counsel submits that the award is in Law

offer. It involves communication of offer to the

party whose land is sought to be acquired. The

date of award used in the proviso of Section

12(2) must mean the date when the award is either

communicated to the party or is known by him

either actually or constructively. The learned

counsel also relies on another judgment of the

Apex Court in the case of "Premji Nathu Vs. State

of Gujarat and another" reported in AIR 2012

Supreme Court 1624 and submits that the judgment

in the of "Raja Harish Chandra Raj Singh Vs. The

Deputy Land Acquisition Officer and another"

(supra) is considered in the later judgment of

the Apex Court.

(iv) Passing of award does not mean merely

signing of the award by SLAO and placing it in

his drawer. It is required to be made known to

the person in whose favour the same is passed.

(v) For the first time the petitioner got

information about award being signed by SLAO on

W.P.No.6164/15

21.2.2015 when on an application filed by the

petitioner under Right to Information Act, the

petitioner was given copy of alleged

communication dt.20.6.2014.

(vi) The SLAO was demanding deposit of

remaining amount from Municipal Council vide

various communications in 2014, such as

communication dt.15.2.2014, 1.7.2014, 18.2.2015.

The amount was required to be deposited by

Municipal Corporation for enabling SLAO to pass

the award. In absence of deposit of amount, SLAO

would not have passed an order.

(vii) The Government has delegated its power

under proviso to Section 11 giving approval to

the award to the Commissioner. In the present

case approval is given by Collector. The

acquisition for aforesaid reasons stand lapsed

and the Respondents need to be directed to take

up fresh acquisition proceedings under Act of

2013.

4. Mrs.M.A.Deshpande, learned Additional

W.P.No.6164/15

Government Pleader, during the course of her

erudite arguments canvassed following

submissions:

i) The award has been passed within two

years from the date of declaration U/s 6 of 1984

Act;

ii) The provisions of 1894 Act, do not

prescribe publication of award nor mandates

passing the award in presence of parties. The

award already signed by SLAO becomes an award as

soon as it is approved by the Government without

any alteration. The learned Additional

Government Pleader relies on the judgment of the

Apex Court in the case of "Smt.Bailamma @

Doddabailamma (Dead) and others Vs. Poornaprajna

House Building Co-operative Society and others"

dt.31.1.2006.

iii) The factum of communication of the

award and its contents would be relevant for the

purpose of computing period of limitation for

filing reference U/s 18 of Act 1894 and to that

W.P.No.6164/15

extent Section 12(2) would be relevant.

iv) The petitioner had the knowledge of the

award. The SLAO vide his letter dt.20.6.2014

communicated to the petitioner that final award

has been passed on 12.10.2013. He also made it

clear to the petitioner that his demand for

initiation of acquisition proceedings under Act

of 2013 is erroneous and said request is

rejected.

v) The Government has delegated its powers

under proviso to Section 11 of approval to the

award to Collector under GR dt.25.10.2011.

5. The learned counsel for Municipal

Corporation adopts the arguments of learned

Additional Government Pleader and further relies

on the judgment of the Apex Court in the case of

"Bihar State Housing Board Vs. State of Bihar and

others" reported in (2003) 10 SCC 1.

6. We have considered the submissions

canvassed by the learned counsel for respective

W.P.No.6164/15

parties.

7. The spectrum of the debate between the

parties is construing the effective date of the

award signed by the SLAO U/s 11 of the Act 1894.

8. Section 11 A of the Act 1894 mandates

an award U/s 11 to be made within two years from

the date of publication of the declaration.

Failure to make an award within two years from

the date of publication of declaration entails

consequence of acquisition proceedings being

lapsed.

9. The provisions from Section 4 to 11 lay

down the various steps and stages from the

publication of Notification U/s 4 till passing of

the award U/s 11.

10. Section 4 deals with issuance of

preliminary Notification. Whenever it appears to

the appropriate Government that land in any

locality is needed or likely to be needed for

public purpose, a notification to that effect is

W.P.No.6164/15

required to be published in official gazette and

in two daily newspapers circulating in that

locality of which one shall be in regional

language. Interested person is entitled to raise

an objection. The same is required to be decided

by the authority. Thereafter, if the appropriate

Government is satisfied that any particular land

is needed for a public purpose then declaration

shall be made as per Section 6 by publication in

the official gazette and two daily newspapers, of

which one shall be in regional language. The

further stage is of taking order of acquisition,

measurement of land, notice to interested person

and lastly an award U/s 11 of the Act.

11. Section 4 mandates Notification to be

published so also Section 6 requires declaration

to be published. However, Section 11 or 12 does

not require an award to be published in any mode

or manner. The award made U/s 11 is required to

be filed in the Collector Offrice i.e. SLAO. As

per Section 12(1) award filed in Collector Office

shall be final and conclusive evidence as between

the Collector and the persons interested, of the

W.P.No.6164/15

true value of the area and value of the land and

the apportionment of the compensation among the

persons entitled irrespective of the fact whether

persons interested have appeared before the

Collector or not. Section 12(2) requires Notice

to be given of the award to such persons who are

not present when the award is made.

12. The scheme of the act as discussed

above nowhere contemplates preparing and signing

the award only in the presence of interested

persons nor any consequence is provided of the

notice of award not being given to interested

persons. On the contrary, Section 12(2) suggests

that award shall be filed in Collector Office and

same shall be final and conclusive evidence. No

doubt, Section 12(2) requires notice to be given

to interested person of the award who is not

present however, further consequences of not

issuing immediate notice is not laid down. The

notice U/s 12(2) would be relevant for construing

the limitation for filing reference U/s 18 of the

Act 1894.

W.P.No.6164/15

13. In the case of "Raja Harish Chandra Raj

Singh Vs. The Deputy Land Acquisition Officer and

another" (supra) the Apex Court has observed that

the award made by the Collector is in law no more

than offer made on behalf of Government to the

owner of the property. The making of the award

must involve communication of the offer to the

party concerned. It would be appropriate to

reproduce the relevant extract of the said

judgment.

"5. In the dealing with this

question it is relevant to bear in mind

the legal character of the award made

by the Collector under S.12. In a

sense it is 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 can not be treated as a decision;

it is in law an offer or tender of the

W.P.No.6164/15

compensation determined by the

Collector to the owner of the property

under acquisition. If the owner

accepts the offer no further

proceeding 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

judicially 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 offer made by

the Collector on behalf of the

Government to the owner of the property

for his acceptance. In Ezra V.

Secretary of State ILR 30 Cal 36 at

W.P.No.6164/15

p.86, it has been held that "the

meaning to be attached to the word

"award" under S.11 and its nature and

effect must be arrived at not from the

mere use of the same expression in both

instances but from the examination of

the provisions of the law relating to

the Collector's proceedings culminating

in the award. The consideration to

which we have referred satisfy us that

the Collector acts in the matter of the

enquiry and the valuation of the land

only as an agent of the Government and

not as a judicial officer; and that

consequently, although the Government

is bound by his proceedings, the

persons interested are not concluded by

his finding regarding the value of the

land or the compensation to be

awarded."

Then the High Court has added that such

tender once made is binding on the

Government and the Government can not

require that the value fixed by its own

W.P.No.6164/15

officer acting on its behalf should be

open to question at its own instance

before the Civil Court. The said case

was taken before the Privy Council in

Ezra V. Secretary of State, ILR 32 Cal

605 (PC), and their Lordship have

expressly approved of the observations

made by the High Court to which we have

just referred. 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. That is the normal

requirement under the contract law and

its applicability to cases of award

made under the Act can not be

reasonably excluded. Thus considered

the date of the award can not be

determined solely by reference to the

time when the award is signed by the

Collector or delivered by him in his

W.P.No.6164/15

office; it must involve the

consideration of the question as to

when it was known to the party

concerned either actually or

constructively. If that be the true

position then the literal and

mechanical construction of the words

"the date of the award" occurring in

the relevant section would not be

appropriate.

                               6.    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 person, it is essentially fair

and just that the said decision should

be communicated to the said party. The

knowledge of the party affected by such

W.P.No.6164/15

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, 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

W.P.No.6164/15

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 fairplay 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."

14. The aforesaid judgment was followed by

Apex Court in case of "Premji Nathu Vs. State of

Gujarat and another" (supra).

15. Sections 11, 11-A and 12 of the Act

W.P.No.6164/15

1894 further fell for consideration before the

Apex Court in case of "Bailamma @ Doddabailamma

(Dead) and others Vs. Poornaprajna House Building

Cooperative Society and others" (supra). The

Apex Court observed thus :

"The Collector is required to

hear the persons interested and enquire

into the objections, if any, raised by

them on the points which he is required

to determine. It is possible to

conceive that he may hear the

objections on several dates having

regard to the number of objectors and

the nature of the dispute that may

arise, where-after he must make up his

mind and prepare his award. It is not

expected of him that he should prepare

his award in presence of the persons

interested, since the Collector may

take some time to make up his mind on

the matters he is required to

incorporate in his award. Thereafter,

he is required to send his award to the

Government for approval. The approval

W.P.No.6164/15

of the award may take some time, and it

is not known to the Collector as to

when the Government will approve the

award. However, after the award is

approved, if there is no alteration in

the award, he is required to notify the

parties concerned about the award. He

may do so by fixing a date on which the

parties may be required to appear for

pronouncement of the award, or he may

inform them by giving them written

notice of the award. This is because

an award is in the nature of an offer

and must be communicated to the persons

to whom the offer is made. There is

nothing in Section 11 which expressly

requires the Collector to announce his

award in the presence of the persons

interested, though there is nothing

which prevents him from declaring the

award on a date fixed by him for the

purpose. However, having regard to the

provisions of Section 12(2) of the Act,

he must give immediate notice to such

W.P.No.6164/15

of the persons interested as are not

present personally or by their

representative when the award is made.

Thus viewed, there can be no doubt that

after the award is approved the same

becomes an offer to be made to the

persons interested, and this can be

done by either giving notice to the

persons interested of the date on which

he may orally pronounce the award, or

by giving written notice of the award

to the persons interested. The

question of limitation for filing a

reference under Section 18 or Section

30 of the Act has to be determined by

reference to the date on which the

award was either pronounced before the

parties who were present, or the date

of the receipt of notice of the award

by those not present. The mere fact

that the Collector did not pronounce

the award after notice in the presence

of the parties interested will not

invalidate the award, though it may

W.P.No.6164/15

have a bearing on the question of

limitation in the matter of seeking a

reference under Section 18 or 30 of the

Act. The award which has already been

signed by the Collector becomes an

award as soon as it is approved by the

Government without any alteration. At

best the appellants can contend that it

becomes an award when notice is given

to the parties interested. Viewed from

any angle, having regard to the fact

that there is no dispute that the

Government granted its approval on

16.11.1992 and notices were issued

under Section 12(2) of the Act on

Nobvember 20, 1992, it must be held

that the award was made within the

period prescribed by Section 11A of the

Act. There was really no necessity for

the Collector to sign the award again,

nor does Section 11 require that for

the purpose of pronouncing the award

notice should be given by the Collector

to the persons interested. Section 11

W.P.No.6164/15

requires notice to be given for the

purpose of hearing objections. After

the objections are heard, the Collector

has to apply his mind to all the

relevant facts and circumstances and

prepare an award whereafter he is

required to send it to the Government

for approval. There is nothing in

Section 11 which requires him to give

notice to the persons interested of the

date for pronouncement of the award,

though, as we have observed earlier,

there is also nothing which prevents

him from giving such notice. We agree

with the finding of the High Court that

once it is shown that the award was

made and signed and approved by the

Government within the period prescribed

by Section 11A of the Act an award is

validly made. In the instant case, we

have satisfied ourselves that the award

was received by the Deputy Commissioner

after approval, and notice was

thereafter issued under Section 12(2)

W.P.No.6164/15

of the Act on November 20, 1992."

16. In case of Raja Harish Chandra Raj

Singh Vs. The Deputy Land Acquisition Officer and

another (supra), the Apex Court was concerned

with proviso to Section 18 of 1894 Act, whereas

in case of "Baliamma @ Doddabailamma (Dead) and

others Vs.Poornaprajna House Building Cooperative

Society and others" (supra) the matter was with

regard to lapsing of acquisition U/s 11-A of 1894

Act. It is settled proposition that judgment of

the Apex Court can not be read as Euclid theorem.

It has to be read in the context it is delivered.

In Bailamma (supra) the Apex Court has observed

that after the draft award is approved by the

Government, there is no necessity for the

Collector to sign the award again. The facts of

the present case are nearer to the case of

Bailamma (supra). The same is required to be

followed.

17. In the instant case the declaration U/s

6 is made on 23.11.2012. The draft award is

prepared on 12.6.2013 and it is sent to

W.P.No.6164/15

Government for approval. The approval to the

award was granted on 3l.7.2013. As per the

judgment in Bailamma's case (supra), the

authority is not required to again sign the award

after approval of Government. Still, in the

present case the award is signed on 12.10.2013

after approval of the Government. The same is

in limitation.

18. The matter can also be viewed from

other angle. After the final award was signed on

12.10.2013, the petitioner had on 15.12.2012 and

26.3.2014 written letters stating that he has not

received rental compensation and as per Section

24 of 2013 Act, the acquisition proceedings

lapse. The SLAO under his letter dt.20.6.2014

communicated the petitioner that final award is

passed on 12.10.2013 and 90% out of advance 80%

compensation is already paid and further

provisions of Act 2013 shall not apply. The said

letter dt.20.6.2014 is received by the petitioner

on 25.6.2014. The petitioner has put an

endorsement on said letter that he has not

received the copy of award and notice U/s 12(2),

W.P.No.6164/15

as such acquisition proceedings has lapsed. The

said letter is well within two years from the

declaration dt.23.11.2012 U/s 6. The petitioner

as such had the constructive notice of the

award. The judgment of the Apex Court in case of

"Raja Harish Chandra Raj Singh Vs. The Deputy

Land Acquisition Officer and another" (supra)

relied by the petitioner also states that the

"date of award" used in proviso must mean the

date when the award is either communicated to the

party or is known by him either actually or

constructively. The Apex Court was referring to

proviso of Section 18, still even if contention

of petitioner is accepted that knowledge of the

award being passed would be relevant date, the

petitioner had constructive knowledge of the

award on 20.6.2014 i.e. when the SLAO

communicated him that award is passed on

12.10.2013 and that acquisition does not lapse.

The said letter is received by the petitioner on

25.6.2014. The same is within the period of two

years from declaration dt.23.11.2012.

19. Viewing the case either way as

W.P.No.6164/15

contended the award does not lapse.

20. The other objection of the petitioner

that the award was required to be approved by the

Divisional Commissioner does not require further

deliberation. The Government under its order

dt.25.10.2011 has delegated its power of approval

to the award upto four crore to the Collector.

21. In view of the aforesaid, the Writ

Petition as such is dismissed. However,there

shall be no order as to costs.

(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)

asp/office/wp6164.15

W.P.No.6164/15