Raja Harish Chandra Raj Singh Vs. The
Deputy Land Acquisition Officer & ANR [1961] INSC 130 (30 March 1961)
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1961 AIR 1500 1962 SCR (1) 676
CITATOR INFO :
RF 1963 SC1604 (1,5) D 1969 SC 323 (8) RF
1970 SC 214 (13) R 1974 SC 923 (45A) R 1975 SC2085 (9) RF 1976 SC2101 (11) RF
1979 SC 404 (17) R 1980 SC 15 (1) R 1980 SC 775 (11) APL 1981 SC 427 (5) R 1986
SC1164 (5) RF 1986 SC1805 (5) D 1989 SC 239 (3,4,5) RF 1991 SC2141 (10)
ACT:
Limitation-Land Acquisition-Award by
Collector-Notice Of award not given-Application for reference to Court-Time for
making-Land Acquisition Act, 1894 (1 of 1894), s. r8.
HEADNOTE:
Certain lands belonging to the appellant were
compulsorily acquired. The Collector made an award with respect to the amount
of compensation, signed and filed it in his office as required by S. 12(1) Land
Acquisition Act on March 19, 1950.
But no notice of the award, as required by s.
12(2), was given to the appellant. The appellant came to know of the award on
or about January 13, 1953, and on February 24, 1953, he filed an application
under s. 18 requiring that the matter be referred for the determination of the
Court. The proviso to s. 18 prescribes that in cases where a person was not
present or represented at the time of the making of the award the application
under s. 18 shall be made within six weeks of the receipt of the notice from
the Collector under s. 12(2), or "within six months from the date of the
award", whichever shall expire first. The appellant's application was
dismissed as time barred on the ground that it was made beyond six months of
the date of the award.
Held, that the application made by the
appellant under s. 18 of the Act was not beyond time. The award of the
Collector was not a decision but an offer of compensation on behalf of the
Government to the owner of the property and it was not effective until it was
communicated to the owner. The making of the award did not consist merely in
the physical act of writing the award or signing it or filing it in the office
of the Collector; it also involved the communication of the award to the owner
either actually or constructively.
Consequently, the expression "the date
of the award" in the proviso to s. 18 meant the date when the award was
communicated to the owner or is known by him either actually or constructively.
The application in the present case was made within six months of the date when
the appellants came to know of the award and was within the period prescribed.
Ezra v. The Secretary of State, (1903) I.L.R.
30 Cal. 36 and Ezra v. Secretary of State for India, (1905) I.L.R. 32 Cal, 605,
applied.
Magdonald v. The Secretary of State for India
in Council, (1905) 4 Ind. C. 914 and Hari Das Pal v. The Municipal Board,
Lucknow, (1914) 22 Ind. C. 652, approved.
677 Jahangir Bemanji v. G. D. Gaikwad, A.I.R.
1954 Bom. 419 and State of Travancore Cochin v. Narayani Amma Ponnamma, A.I.R.
1958 Kerala 272, disapproved.
O. A. O. A. M. Muthia Chettiar v. The Commissioner
of Income-tax, Madras, I.L.R. 195i Mad. 815, Annamalai Chetti v. Col. T. G. The
Cloeta, (1883) I.L.R. 6 Mad. 189. and E. V. E. Swaminathan.The Alias
Chidambaram Pillai v. Letchmanan Chettiar, (1930) I.L.R.Acqu 53 Mad. 491,
referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 25 and 26 of 1958.
Appeals from the judgments and orders dated
August 7, 1956, of the Allahabad High Court in Special Appeals Nos. 151 and 152
of 1955.
C. B. Agarwala, A. N. Goyal and Mohan Lal
Agarwala, for the appellant.
Gopi Nath Dikshit and C. P. Lal, for the
respondents.
1961. March 30. The Judgment of the Court was
delivered by GAJENDRAGADKAR, J.-These two appeals arise out Gajen, of two writ
petitions filed by the appellant Raja Harish Chandra Raj Singh against the
respondents the Deputy Land Acquisition Officer and another in the Allahabad
High Court and they were based on the same facts and asked for the same relief.
Both of them raise a short common question of limitation the decision of which
would depend upon the determination of the scope and effect of the provisions
of the proviso to s. 18 of the Land Acquisition Act I of 1894 (hereafter called
the Act). Since the facts in both the appeals are substantially the same we
would refer to the facts in Civil Appeal No. 25 of 1958. The decision in this
appeal would govern the decision of the other appeal, Civil Appeal No. 26 of
1958.
The appellant Raja Harish Chandra Raj Singh
was the proprietor of a village Beljuri in the District of Nainital.
It appears that proceedings for compulsory
acquisition of land including the said village for a public purpose were
commenced by respondent 2, the State of Uttar Pradesh;
notifications under ss. 4 and 6 of the Act
were issued in that behalf, and the 678 provisions of s. 17 were also made
applicable. Accordingly, after the notice under s. 9(1) of the Act was
published possession of land was taken by the Collector on March 19, 1960.
Thereupon the appellant filed his claim to compensation for the land acquired
in accordance with s.
9(2), and proceedings were held by the Deputy
Land Acquisition Officer, respondent 1, for determining the amount of
compensation. It appears that in these proceedings an award was made, signed
and filed in his office by respondent I on March 25, 1951. No notice of this
award was, however, given to the appellant as required by s. 12(2) and it was
only on or about January 13, 1953 that he received information about the making
of the said award.
The appellant then filed an application on
February 24, 1953 under a. 18 requiring that the matter be referred for the
determination of the Court, as, according to the appellant, the compensation
amount determined by respondent I was quite inadequate. Respondent I took the
view that the application thus made by the appellant was beyond time under the
proviso to s. 18 and so he rejected it. The appellant then filed a writ
petition in the Allahabad High Court on December 21,1953 in which he claimed
appropriate reliefs in respect of the order passed by respondent I on his
application made under a. 18. This petition was heard by Mehrotra, J. and was
allowed. The learned Judge directed respondent 1 to consider the application
made by the appellant on the merits and deal with it in accordance with law. He
held that in dealing with the said application respondent 1 should treat the
application as filed in time. Against this decision the respondents preferred
an appeal to a Division Bench of the said High Court. Mootham, C. J. and
Chaturvedi, J., who heard this appeal took the view that the application filed
by the appellant under s. 18 of the Act was barred by time, and so they allowed
the appeal, set aside the order passed by Mehrotra, J. and dismissed the writ
petition filed by the appellant. The appellant then moved for and obtained a
certificate from the said High Court and it is with this certificate that he
has come to this 670 Court in the present appeal; and so the short question
which the appellant raises for our decision is whether the application filed by
him under s. 18 of the Act( was in time or not.
Before proceeding to construe the material
provisions of s. 18 it is necessary to refer very briefly to, some other
sections of the Act which are relevant in( order to appreciate the background
of the scheme in relation to land acquisition proceedings. Section 4 deals with
the publication of the preliminary notification and prescribes the powers of
the appropriate officers. Whenever it appears to the appropriate Government
that land in any locality is needed for any public purpose a notification to
that effect shall be published in the official gazette and a public notice of
its substance shall be given at convenient places in the said locality; that is
the effect of s. 4(1). Section 4(2) deals with the powers of the appropriate
authorities. Section 5-A provides for the hearing of objections filed by
persons interested in any land which has been notified under s. 4(1). After the
objections are thus considered a declaration that land is required for a public
purpose follows under s. 6(1). Section 6(2) provides for the publication of the
said declaration; and s. 6(3) makes the declaration conclusive evidence that
the land is needed for a public purpose. Section 9 requires the Collector to
give public notice in the manner specified stating that the Government intend
to take possession of the land and calling for claim,% to compensation in
respect of all interests in such land. Section 9(2) prescribes the particulars
of such notice, and s. 9(3) an 4) provide for the manner of serving such
notice. Section II deals with the enquiry and provides for the making of the
award by the Collector. Section 12(l) then lays down that the award when made
by the Collector shall be filed in his office, and shall, except as otherwise
provided, be final and conclusive evidence as between the Collector and the
persons interested whether they have respectively appeared before the Collector
or not, of the true area and value of the land, and the apportionment of the
compensation 680 among the persons interested. Section 12(2) is important.
It makes it obligatory on the Collector to
give immediate notice of his award to such of the persons interested as are not
present personally or by their representatives when the award is made. It is
common ground that no such notice was given by respondent 1 to the appellant.
That briefly is the scheme of the relevant provisions of Part II of the, Act
which deals with acquisition.
Part III which deals with reference to Court
and procedure thereon opens with s. 18. Section 18(1) provides that any person
interested who has not accepted the award may, by written application to the
Collector, require that the matter be referred by him for determination of the
Court, inter alia, whether the amount of compensation is adequate or not. It is
under this provision that the appellant made an application from which the
present appeal arises.
Section 18(2) requires that the application
shall state the grounds on which objection to the award is taken. These grounds
have been stated by the appellant in his application. The proviso to s. 18
deals with the question of limitation. It prescribes 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 s. 12(2), or within
six months from the date of the Collector's award whichever shall first expire.
The appellant's case falls under the latter part of el. (b) of the proviso. It
has been held by the Allahabad High Court that since the application made by
the appellant before respondent I was made beyond six months from the date of the
award in question it was beyond time.
The view taken by the High Court proceeds on
the literal construction of the relevant clause. As we have already seen the
award was signed and delivered in his office by respondent 1 on March 25, 1951
and the application by the appellant was made under s. 18 on February 24, 1953.
It has been held that the effect of the relevant 681 clause is that the
application made by the appellant is plainly beyond the six months permitted by
the said clause and so respondent I was right in rejecting it as barred by
time. The question which arises for our decision is whether this literal and
mechanical way of construing the relevant clause is justified in A law. It is
obvious that the effect of this construction is that if a person does not know
about the making of the award and is himself not to blame for not knowing about
the award his right to make an application under s. 18 may in many cases be
rendered ineffective. If the effect of the relevant provision unambiguously is
as held by the High Court the unfortunate consequence which may flow from it
may not have a material or a decisive bearing.
If, on the other hand, it is possible
reasonably to construe the said provision so as to avoid such a consequence it
would be legitimate for the Court to do so. We must therefore enquire whether
the relevant provision is capable of the construction for which the appellant
contends, and that naturally raises the question as to what is the meaning of
the expression "the day of the Collector's award".
In 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 cannot be treated as a decision; it is
in law an offer or tender of the 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 s. 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 86 682 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.
The Secretary of State (1). 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
considerations 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 cannot require that the value
fixed by its own 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 for India (2 ), and their Lordships 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 cannot be reasonably excluded. Thus considered the
date of the award cannot be determined solely by reference to the time when the
award is signed by the Collector or delivered by him in his office;
it must (1) (1903) I.L.R. 30 Cal. 36, 86.
(2) (1905) I.L.R. 32 Cal. 605.
683 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.
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 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 684 construe the words "from the
date of the Collector's award" used in the proviso to s. 18 in a literal
or mechanical way.
In this connection it is material to recall
the fact that under s. 12(2) it is obligatory on the Collector to give
immediate notice of the award to the persons interested a,, are not present
personally or by their representatives when the award is made. This requirement
itself postulates the necessity of the communication of the award to the party
concerned. The Legislature recognised that the making of the award under s. 11
followed by its filing under s. 12(1) would not meet the requirements of
justice before bringing the award into force. It thought that the communication
of the award to the party concerned was also necessary, and so by the use of
the mandatory words an obligation is placed on the Collector to communicate the
award immediately to the person concerned. It is significant that the section
requires the Collector to give notice of the award immediately after making it.
This provision lends support to the view which we have taken about the
construction of the expression "from the date of the Collector's
award" in the proviso to s. 18. It is because communication of the order
is regarded by the Legislature as necessary that s.
12(2) has imposed an obligation on the
Collector and if the relevant clause in the proviso is read in the light of
this statutory requirement it tends to show that the literal and mechanical
construction of the said clause would be wholly inappropriate. It would indeed
be a very curious result that the failure of the Collector to discharge his
obligation under s. 12(2) should directly tend to make ineffective the right of
the party to make an application under s. 18, and this result could not
possibly have been intended by the legislature.
It may now be convenient to refer to some
judicial decisions bearing on this point. In Magdonald v. The Secretary of
State, for India in Council (1) Rattigan and Shah Din, JJ. held that under the
proviso to s. 18 until an award is announced or communicated to the parties
concerned it cannot be said to be legally made.
(1) (1005) 4 Ind. C. 914.
685 An award under the Act, it was observed
in the judgment, is in the nature of a tender and obviously no tender can be
made unless it is brought to the(-, knowledge of the person to whom it is made.
The learned Judges observed that this proposition seemed to them to be
self-evident. The same view has been expressed by the Oudh Judicial
Commissioner in Hari Das Pal v. The Municipal Board, Lucknow (1).
On the other hand, in Jehangir Bomanji v. G.
D. Gaikwad (2) the Bombay High Court has taken the view that the element of
notice is only an essential ingredient of the first part of cl. (b) of the
proviso to s.18 which prescribes the period of limitation as six weeks from the
date of the receipt of the notice from the Collector, not of the second part
which prescribes the maximum period of six months from the date of the
Collector's award in absolute terms. According to that decision, as far as the
limitation under the latter part is concerned it runs from the date of the
award and the date of the award has nothing whatever to (lo with the notice
which the Collector has to give under s. 12(2). In our opinion this decision is
based on a misconstruction of the relevant clause in the proviso to s. 18. The
same comment falls to be made in regard to the decision of the Kerala High
Court in State of Travancore-Cochin v. Narayani Amma Ponnamma (3).
It may, however, be pertinent to point out
that the Bombay High Court has taken a somewhat different view in dealing with
the effect of the provision as to limitation prescribed by s. 33A(2) of the
Indian Income-tax Act. This provision prescribes limitation for an application
by an assessee for the revision of the specified class of orders, and it says
that such an application should be made within one year from the date of the
order. It is significant that while providing for a similar period of
limitation s. 33(1) specifically lays down that the limitation of sixty days
therein prescribed is to be calculated from the date on which the order in
question is communicated to the (1) (1914) 22 Ind. C. 652. (2) A.I.R. 1954 Bom.
419, (3) A.I.R. (1958) Kerala 272.
686 assessee. In other words, in prescribing limitation
s. 33(1) expressly provides for the commencement of the period from the date of
the communication of the order, whereas s.
33A(2) does not refer to any such
communication; and naturally the argument was that communication was irrelevant
under s. 33A(2) and limitation would commence as from 'the making of the order
without reference to its communication.
This argument was rejected by the Bombay High
Court and it was hold that it would be a reasonable interpretation to hold that
the making of the order implies notice of the said order, either actual or
constructive, to the party affected by it. It would not be easy to reconcile
this decision and particularly the reasons given in its support with the
decision of the same High Court in the case of Jehangir Bomanji (1). The
relevant clause under s. 33A(2) of the Indian Income-tax Act has also been
similarly construed by the Madras High Court in O.A.O.A.M. Muthia Chettiar v.
The Commissioner of Income-tax, Madras (2). "If a person is given a right
to resort to a remedy to get rid of an adverse order within a prescribed
time", observed Rajamannar, C.J., "limitation should not be computed
from a date earlier than that on which the party aggrieved actually knew of the
order or had an opportunity of knowing the order, and therefore must be
presumed to have the knowledge of the order". In other words the Madras
High Court has taken the view that the omission to use the words "from the
date of communication" in s. 33A(2) does not mean that limitation can
start to run against a party even before the party either knew or should have
known about the said order. In our opinion this conclusion is obviously right.
A similar question arose before the Madras
High Court in Annamalai Chetti v. Col. J. G. Cloete(3). Section 25 of the
Madras Boundary Act XXVIII of 1860 limited the time within which a suit may be
brought to set side the decision of the settlement officer to two months from
the date of the award, and (1) A.I.R 1954 Bom. 419. (2) I.L.R. 1951 Mad. 815.
(3) (1883) I.L. R. 6 Mad. 1 89.
687 so the question arose as to when the time
would begin to run. The High Court held that the time can begin to run only
from the date on which the decision is communicated to the parties. "If
there was any decision at all in the sense of the Act", says the judgment,
"it could not date earlier than the date of the communication of it to the
parties;
otherwise they might, be barred of their
right, of appeal without any knowledge of the decision having been
passed".
Adopting the same principle a, similar
construction has been placed by the Madras High Court in K. V. E. Swaminathan
alias Chidambaram Pillai v. Letchmanan Chettiar (1). On the limitation
provisions contained in ss. 73(1) and 77(l) of the Indian Registration Act XVI of
1908. It was held that in a case where an order was not passed in the presence
of the parties or after notice to them of the date when the order would be
passed the expression "within thirty days after the making of the
order" used in the said sections means within thirty days after the date
on which the communication of the order reached the parties affected by it.
These decisions show that where the rights of a person are affected by any
order and limitation is prescribed for the enforcement of the remedy by the
person aggrieved against the said order by reference to the making of the said
order, the making of the order must mean either actual or constructive
communication of the said order to the party concerned. Therefore, we are
satisfied that the High Court of Allahabad was in error in coming to the
conclusion that the application made by the appellant in the present
proceedings was barred under the proviso to s. 18 of the Act.
In the result we allow the appeal, set aside
the orders passed by Mootham, C. J. and Chaturvedi, J., and restore those of
Mehrotra, J. In the circumstances of this case there would be no order as to
costs.
Appeal allowed.
(1) (1930) I.L.R. 53 Mad491.
Back
