Delhi High Court
Kartar Singh vs Union Of India & Anr. on 16 May, 2013
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 16.05.2013
+ LA APP No.383/2009
KARTAR SINGH ..... Appellant
Through: Dr. Vijendra Mahndiyan and Ms. Fallavi
Awasthi, Advocates
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Sanjay Kumar Pathak, Adv.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
The land of the appellant was notified by way of notification dated 24.7.1998
issued under Section 4 of the Land Acquisition Act, followed by declaration dated
4.8.1998 under Section 6 of the aforesaid Act. The award number
06/LAC/CL/2000 came to be passed by the Land Acquisition Collector on
3.8.2000. The compensation was fixed by the Land Acquisition Collector @
Rs.11.20 lac per acre. Being dissatisfied with the compensation awarded to him,
the appellant sought a reference under Section 18 of the Land Acquisition Act. The
reference was forwarded by the Land Acquisition Collector on 30.5.2001.
However, while forwarding the reference, the Land Acquisition Collector, recorded
that a notice under Section 12(2) of the Act dated 30.5.2001 was sent to the
appellant which was received by him on 2.6.2001 and despite that he had submitted
the reference on 12.9.2001, which was beyond three months, though it ought to
have been within 42 days and, therefore, the reference petition was rejected on
17.3.2004.
2. On the reference being made to the learned Additional District Judge, a
written statement was filed by the respondent-Union of India and in the said written
statement a preliminary objection was taken that the reference was barred by
limitation and, therefore, was not maintainable. It was further stated in the written
statement that despite issue of statutory notice on the petitioner, he failed to file the
reference petition within the prescribed period and, therefore, the petition was
barred by limitation. No replication to the written statement was filed and no issue
on the plea of limitation taken by the respondent was framed. The learned
Additional District Judge vide impugned order dated 24.12.2008 rejected the
reference as barred by limitation.
Section 18(2) of the Land Acquisition Act which prescribes the period of
limitation for filing reference under sub section 1 of the said Section reads as
under:
"(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."
3. It would thus be seen that if a person seeking reference was present either in
person or through a counsel at the time the award was made, the reference is to be
sought within six weeks from the date of the award and in other cases it can be
sought within six weeks of receipt of notice from the Collector under Section 12(2)
of the Act or within six months from the date of the award, whichever period
expires first.
4. A perusal of award in question would show that it does not indicate that on
3.8.2000 the appellant or his counsel was present at the time it was announced. A
perusal of notice dated 30.5.2001 issued by the Land Acquisition Collector to the
appellant Kartar Singh would show that the said notice purports to have been
received by one Ajit Singh on 2.6.2001. The report on the notice does not indicate
the relationship of Mr. Ajit Singh with the appellant but, it is otherwise an admitted
case as he is the son of the appellant.
5. Section 45 of the Land Acquisition Act prescribes the mode of service of
notice and to the extent it is relevant, the said Section reads as under:
"45. Service of notices.-
(1) Service of any notice under this Act shall be made by
delivering or tendering a copy thereof signed, in the case of a
notice section 4, by the officer therein mentioned, and, in the
case of any notice, by or by order of the Collector or the Judge.
(2) Whenever it may be practicable, the service of the notice
shall be made on the person therein named.
(3) When such person cannot be found, the service may be
made on any adult male member of his family residing with
him; and, if no such adult male member can be found, the
notice may be served by fixing the copy on the outer door of the
house in which the person therein named ordinarily dwells or
carries on business, or by fixing a copy thereof in some
conspicuous place in the office of the officer aforesaid or of the
Collector or in the court- house, and also in some conspicuous
part of the land to be acquired: Provided that, if the Collector or
Judge shall so direct, a notice may be sent by post, in a letter
addressed to the person named therein at his last known
residence, address or place of business and 6[ registered under
sections 28 and 29 of the Indian Post Office Act, 1898 (6 of
1898 ), and service of it may be proved by the production of the
addressee' s receipt."
It would be seen form a perusal of the above section that ordinarily a notice
issued under the provisions of the Act including notice under Section 12 thereof is
required to be tendered to the person to whom the notice is addressed. It is only in
case such a person cannot be found that the service can be made on an adult male
of his family residing with him and if no such adult member can be found, the
notice can be affixed on the outer door of the house in which the person named in
the notice ordinarily resides or carries on business or it can be affixed in
conspicuous place in the office of the concerned officer or of collector or on the
Court house as also on conspicuous part of the acquired land. The report on the
notice dated 30.5.2001 does not indicate that the appellant Kartar Singh was not
found present when the notice was taken by the process server to his residence.
One possibility is that the appellant was not available at his residence and,
therefore, notice was served upon his son. The other possibility can be that though
the appellant was present, his son of his own took the notice or was directed by the
appellant to take the notice on his behalf.
6. As noted earlier, no replication was filed by the appellant to the written
statement of the respondent before the Reference Court. No issue with respect to
limitation was framed by the Reference Court. In my view, considering that the
respondent had taken a preliminary objection that the reference was barred by
limitation, it was necessary for the Reference Court to frame an issue on the point
of limitation and thereafter given an opportunity to the parties to lead evidence on
that issue.
If the plea of limitation can be decided without recording evidence, it may
not be necessary to frame an issue before returning a finding on such a plea. If,
however, the decision on a plea of limitation requires recording of evidence, it
would not be appropriate to return a finding without framing an issue and giving an
opportunity to the parties to lead evidence by disputing the factual aspect of the
issue.
7. Had the learned Additional District Judge framed an issue on the point of
limitation, the appellant would have got an opportunity to place his stand before the
Court and lead evidence in support of the stand taken by him. Had the appellant
filed replication and admitted receipt of notice by his son on 2.6.2001, probably
evidence might not have been necessary but, considering the fact that neither the
appellant of his own filed any replication nor was he asked to do so despite plea of
limitation taken by the respondent in its written statement, recording of evidence
was necessary before returning a finding on the issue of limitation which the
respondent had taken in its written statement. In fact the Reference Court did not at
all go into the issue of service of notice and returned a finding on limitation merely
on the basis of the endorsement made by the Land Acquisition Collector.
8. Mr. Pathak, learned counsel for the respondent states that since the appellant
did not contest the plea of limitation taken in the written statement by filing a
replication and did not claim that the notice was not received by his son or that his
son despite receiving the notice did not inform him and also did not take a plea that
notice in accordance with Section 45 of the Act had not been served upon the
appellant, there is no justification in remanding the matter back to the Reference
Court and there was no necessity for the Reference Court to frame an issue on this
aspect. However, I do not find any force in these submissions. In my view in the
absence of admission of receipt of notice by the appellant, the learned Additional
District Judge without framing an issue, and recording evidence, could not have
returned a finding on the issue of limitation even if no replication was filed by the
appellant for the simple reason that the issue of limitation having been raised by the
respondent, it was for the respondent to prove the service of notice under Section
12 of the Act upon the son of the appellant.
For the reasons stated herein above, the learned order dated 24.12.2008
passed by the learned Additional District Judge is set aside and the matter is
remanded back to him for framing an issue on the point of limitation, give
opportunity to the parties to lead evidence on the said issue and thereafter pass an
appropriate order in accordance with law. The parties shall appear before the
learned District Judge on 8.7.2013. The fresh order in terms of the above directions
shall be passed by the learned Additional District Judge within six months of the
parties appearing before him. The appeal stands disposed of.
The trial court record be sent back forthwith along with a copy of this order.
V.K. JAIN, J
MAY 16, 2013
rd
