Bhagwan
Das & Ors. Vs. State of.U.P. & Ors. [2010] INSC 150 (26 February 2010)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 2069-2070
OF 2010 [Arising out of SLP(C) Nos.24191-92 of 2008] Bhagwan Das & Ors.
....Appellants versus State of UP & Ors. ...Respondents With CIVIL APPEAL
NOS. 2071-2072 OF 2010 [Arising out of SLP(C) Nos.24193-94 of 2008] Nayantara
Gupta & Ors. ....Appellants versus State of UP & Ors. ...Respondents
R. V.
RAVEENDRAN, J.
1.
Leave granted.
2.
The lands of appellants within the municipal limits of Bisanda
were acquired for establishing a Upmandi by Krishi Utpadan Mandi Samiti under
preliminary notification dated 31.01.2004 and final notification dated
20.03.2006. An award was made by the Land Acquisition Collector on 14.03.2007.
The appellants were served a notice 2 on 25.10.2007 by the office of the
Collector to appear and receive the compensation. The respondents made
enquiries and on 16.11.2007 learnt that an award had been made on 14.3.2007.
Immediately they made an application seeking a reference under section 18 of
the Land Acquisition Act, 1894 (`Act' for short) to the civil court for
determination of compensation. The Collector, Banda vide his order dated
19.12.2007 rejected the application seeking reference, on the ground that it
was made beyond a period of six months from the date of the award, prescribed
under Section 18(2) of the Act. The appellants filed a writ petition for
quashing the said order dated 19.12.2007 and seeking a direction to the Land
Acquisition Collector to refer their claim for increase in compensation to the
civil court. The writ petition was dismissed on 17.01.2008 as not maintainable,
on the ground that an alternative remedy, by way of an appeal under section 54
of the Act, was available against the order dated 19.12.2007 passed by the Land
Acquisition Officer. The appellants filed a review petition pointing out that
Section 54 of the Act was inapplicable as it only provides for appeals against
awards of courts.
The
review petition was dismissed by order dated 5.5.2008, on the ground that the
appellants ought to have filed an application for condonation of delay along
with the application for reference, before the 3 Land Acquisition Collector.
The appellants have challenged the said orders dated 17.01.2008 and 05.05.2008
in these appeals by special leave.
3.
The following questions arise for consideration, on the
contentions urged :
(a)
Whether an appeal would lie under Section 54 of the Act against the order of
the Collector refusing to make a reference? (b) Whether the Collector can
condone the delay in filing an application seeking reference, if sufficient
cause is shown? (c) Whether the period of six months under clause (b) of the
proviso to section 18 of the Act should be reckoned from the date of knowledge
of the award of the Collector or from the date of award itself? (d) Whether the
appellants were entitled to relief?
4.
We may, to begin with, refer to the provisions of the Act which
are relevant for considering these questions. Section 11 of the Act provides
for an enquiry into objections and making of an award by the Collector.
Sub-Section
(2) of Section 12 requires the Collector shall give immediate notice of his
award to such of the persons interested as were not present personally or by
their representatives when the award was made. Section 18 providing for
Reference to Court is extracted below:- 4 "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 persons 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:
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".
(emphasis
supplied) Section 54 of the Act providing for appeals. The said section reads:
"54.
Appeals in proceedings before court - Subject to the provisions of the Code of Civil
Procedure, 1908, applicable to appeals from original decrees, and
notwithstanding anything to the contrary in any enactment for the time being in
force, an appeal shall only lie in any proceedings under this Act to the High
Court from the award, or from any part of the award, of the Court and from any
decree of the High Court passed on such appeal as aforesaid an appeal shall lie
to the Supreme Court subject to the provisions contained in Section 110 of the
Code of Civil Procedure, 1908 and in Order XLIV thereof".
Re :
Question (a)
5.
Section 54 of the Act provides for an appeal from the award of the
court in any proceedings under the Act to the High Court, and from 5 the decree
of the High Court to the Supreme Court. Section 3(d) of the Act defines the
expression "court" to mean a principal civil court of original
jurisdiction, unless the appropriate Government has appointed a special officer
within any specified local limits to perform functions of the court under the
Act. On the other hand, the expression "Collector" is defined in
section 2(c) of the Act as the Collector of a district, and includes a Deputy
Commissioner and any officer specially appointed by the appropriate Government
to perform the functions of a Collector under the Act. The decision of the
Collector made after an enquiry under section 11 with the previous approval of
the appropriate Government or its authorized officer is termed as the `award of
the Collector'. The determination by a court under section 26 of the Act in a
reference by the Collector is termed as an `award of the court' which shall be
deemed to be a decree. Thus there is a difference between an `award of the
Collector' which is an offer of compensation by the Collector as the agent of
the Government, and `an award of the court' which is a determination of the
compensation by a civil court on a reference by the Collector.
Further,
the Collector can either make a reference or refuse to make a reference to the
court under section 18 of the Act or under section 30 of the Act, and such
orders of the Collector are merely acts of a Statutory 6 Authority in exercise
of statutory functions and are not adjudicatory in nature. Such orders are not
awards. The Land Acquisition Collector is not a Court, nor his award or order,
an award of the Court. While the proceedings of a court resulting in an award
of the court are judicial proceedings, neither the proceedings of the Collector
under section 11 of the Act resulting in an award of the Collector, nor the
proceedings relating to an application seeking reference, are judicial
proceedings.
Section
54 does not provide for appeals against the awards or orders of Land
Acquisition Collector. Hence the assumption of the High Court that an order of
the Collector refusing to refer a claim for increase in compensation to the
civil court under section 18(1) of the Act, is an `award of the court'
appealable under section 54 of the Act, is wholly erroneous.
Re :
Question (b)
6.
The proviso to section 18 requires that an application by a person
interested, to the Collector, seeking reference of his claim for higher
compensation for determination by the Court, shall be made within six weeks
from the date of the Collector's award, if such person was present or
represented before the Collector, at the time when the award was 7 made. If
not, the application for reference shall have to be made within six weeks of
the receipt of the notice of the Collector under Section 12(2) or within six
months from the date of the Collector's award, whichever period shall first
expire.
7.
In Officer on Special Duty (Land Acquisition) & Anr. v. Shah
Manilal Chandulal & Ors. [1996 (9) SCC 414], this Court held that in view
of the special limitation provided under the proviso to section 18 of the Act,
section 29(2) of the Limitation Act, cannot be applied to the proviso to
section 18 of the Act; and therefore, the benefit of sections 4 to 24 of Limitation Act 1963, will not be available in regard to applications under
section 18(1) of the Act. It was also held that as the Collector is not a court
when he discharges his functions as a statutory authority under section 18(1)
of the Act, section 5 of the Limitation Act 1963 cannot be invoked for extension of the period of limitation prescribed
under the proviso to section 18(2) of the Act. As the Collector is not a civil
court and as the provisions of Section 5 of the Limitation Act, 1963 have not been made applicable to proceedings before the
Collector under the Act, and as there is no provision in the Act enabling the
Land Acquisition Collector to extend the time for making an application for
reference, the 8 Collector cannot entertain any application for extension, nor
extend the time for seeking reference, even if there are genuine and bonafide
grounds for condoning delay. This view was reiterated in Steel Authority of
India Ltd. vs. S.U.T.N.I. Sangam and others [2009 (16) SCC 1].
Therefore,
the observation of the High Court that an application for condonation of delay
could have been made by the person interested, is incorrect.
We should
however notice that there is an apparent inconsistency in two observations of
this Court in S.U.T.N.I. Sangam (supra). In the earlier part of the decision,
this Court observed : "The proceedings under the Land Acquisition
Collector is of an administrative nature and not of a judicial or quasi
judicial character." However, in a latter part of the said decision (at
para 75 of the report), this Court observed : "Land Acquisition Collector
is a statutory authority. The proceeding before the Land Acquisition Collector
is a quasi-judicial proceeding." As the said inconsistency has no bearing
upon the issue on hand, we do not propose to consider it in this case, but
leave the clarification to be done in an appropriate decision.
9 Re :
Question (c)
8.
Clause (b) of the proviso to section 18 requires a person
interested who has not accepted the award, to make an application to the
Collector requiring him to refer the matter for determination of the court,
within six weeks of the receipt of the notice from the Collector under section
12(2) or within six months from the date of the Collector's award whichever
period first expires, if he or his representative was not present before the
Collector at the time of making of the award.
9.
The reason for providing six months from the date of the award for
making an application seeking reference, where the applicant did not receive a
notice under section 12(2) of the Act, while providing only six weeks from the
date of receipt of notice under section 12(2) of the Act for making an
application for reference where the applicant has received a notice under
section 12(2) of the Act is obvious. When a notice under section 12(2) of the
Act is received, the land owner or person interested is made aware of all
relevant particulars of the award which enables him to decide whether he should
seek reference or not. On the other hand, if he only comes to know that an
award has been made, he would require further time to make enquiries or secure
copies so that he can ascertain 10 the relevant particulars of the award.
10.
The term 'date of the Collector's award' occurring in clause (b)
of the proviso, has been interpreted by this Court in several cases. We may
refer to a few of them.
10.1) In
Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer [AIR 1961 SC
1500], this Court held :
"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 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 11 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 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 Section 18 in a
literal or mechanical way."
(emphasis
supplied) 10.2) In State of Punjab v. Mst. Qaisar Jehan Begum & Anr. [AIR
1963 SC 1604], this Court reiterated the principles stated in Raja Harish
Chandra Raj Singh (supra) and further held as follows :
"It
seems clear to us that the ratio of the decision in Harish Chandra's case
(supra) is that the party affected by the award must know it, actually or
constructively, and the period of six months will run from the date of that
knowledge. Now, knowledge of the award does not mean a mere knowledge of the
fact that an award has been made. The knowledge must relate to the essential
contents of the award. These contents may be known either actually or
constructively. If the award is communicated to a party under S. 12(2) of the
Act, the party must be obviously fixed with knowledge of the contents of the
award whether he reads it or not. Similarly when a party is 12 present in court
either personally or through his representative when the award is made by the
Collector, it must be presumed that he knows the contents of the award. Having
regard to the scheme of the Act we think that knowledge of the award must mean
knowledge of the essential contents of the award."
(emphasis
supplied) 10.3) In Parsottambhai Maganbhai Patel & Ors. vs. State of
Gujarat through Dy. Collector Modasa & Anr. [2005 (7) SCC 431] and in Steel
Authority of India Ltd. vs. S.U.T.N.I Sangam [2009 (16) SCC 1], the aforesaid
principles were followed and reiterated by this Court.
11.
When a land is acquired and an award is made under section 11 of
the Act, the Collector becomes entitled to take possession of the acquired
land. The award being only an offer on behalf of the Government, there is
always a tendency on the part of the Collector to be conservative in making the
award, which results in less than the market value being offered. Invariably
the land loser is required to make an application under section 18 of the Act
to get the market value as compensation. The land loser does not get a right to
seek reference to the civil court unless the award is made. This means that he
can make an application seeking reference only when he knows that an award has
been made. If the words six months from the `date of the Collector's award' 13
should be literally interpreted as referring to the date of the award and not
the date of knowledge of the award, it will lead to unjust and absurd results.
For example, the Collector may choose to make an award but not to issue any
notice under section 12(2) of the Act, either due to negligence or oversight or
due to any ulterior reasons. Or he may send a notice but may not bother to
ensure that it is served on the land owner as required under section 45 of the
Act. If the words `date of the Collector's award' are literally interpreted,
the effect would be that on the expiry of six months from the date of award,
even though the claimant had no notice of the award, he would lose the right to
seek a reference. That will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are not notified of
the award. Unless the procedure under the Act is fair, reasonable and
non-discriminatory, it will run the risk of being branded as being violative of
Article 14 as also Article 300A of the Constitution of India. To avoid such
consequences, the words `date of the collector's award' occurring in proviso
(b) to section 18 requires to be read as referring to the date of knowledge of
the essential contents of the award, and not the actual date of the Collector's
award.
12.
The following position therefore emerges from the interpretation
of the proviso to section 18 of the Act :
(i) If
the award is made in the presence of the person interested (or his authorised
representative), he has to make the application within six weeks from the date
of the Collector's award itself.
(ii) If
the award is not made in the presence of the person interested (or his
authorised representative), he has to make the application seeking reference
within six weeks of the receipt of the notice from the Collector under section
12(2).
(iii) If
the person interested (or his representative) was not present when the award is
made, and if he does not receive the notice under Section 12(2) from the
Collector, he has to make the application within six months of the date on
which he actually or constructively came to know about the contents of the award.
(iv) If a
person interested receives a notice under section 12(2) of the Act, after the
expiry of six weeks from the date of receipt of such notice, he cannot claim
the benefit of the provision for six months for making the application on the
ground that the date of receipt of notice under section 12(2) of the Act was
the date of knowledge of the contents of the award.
A person
who fails to make an application for reference within the time 15 prescribed is
not without remedy. It is open to him to make an application under section 28A
of the Act, on the basis of an award of the court in respect of the other lands
covered by the same acquisition notification, if there is an increase. Be that
as it may.
13.
When a person interested makes an application for reference
seeking the benefit of six months period from the date of knowledge, the
initial onus is on him to prove that he (or his representative) was not present
when the award was made, that he did not receive any notice under Section 12(2)
of the Act, and that he did not have the knowledge of the contents of the award
during a period of six months prior to the filing the application for
reference. This onus is discharged by asserting these facts on oath. He is not
expected to prove the negative. Once the initial onus is discharged by the
claimant/person interested, it is for the Land Acquisition Collector to
establish that the person interested was present either in person or through
his representative when the award was made, or that he had received a notice
under Section 12(2) of the Act, or that he had knowledge of the contents of the
award. Actual or constructive knowledge of the contents of the award can be
established by the Collector by proving that the person interested had received
or drawn the 16 compensation amount for the acquired land, or had attested the
Mahazar/ Panchnama/proceedings delivering possession of the acquired land in
pursuance of the acquisition, or had filed a case challenging the award or had
acknowledged the making of the award in any document or in statement on oath or
evidence. The person interested, not being in possession of the acquired land
and the name of the state or its transferee being entered in the revenue
municipal records coupled with delay, can also lead to an inference of
constructive knowledge. In the absence of any such evidence by the Collector,
the claim of the person interested that he did not have knowledge earlier will
be accepted, unless there are compelling circumstances to not to do so.
Re :
Question (d)
14.
In this case, it is not in dispute that the award was not made in
the presence of the claimant-land owner. The claimant has asserted that the
award was not made in the presence of either himself or his representative, and
no notice of the award under section 12(2) of the Act was tendered to him. He
has also asserted that he became aware of the award only when he received the
notice dated 25.10.2007 calling upon him to receive the payment of the award.
The respondents contend that a 17 notice dated 30.3.2007 was issued under
section 12(2) of the Act, to all the interested land-owners including the
appellants. But it is admitted that the said notice was not sent by post nor
served on the land-owners. There is also no evidence that the said notice was tendered
personally to them or that they refused to accept it. The respondent has
produced a copy of a notice dated 30.3.2007 with an endorsement of the person
who was sent to serve the notice which reads as under : "As per your order
I went to village Bishanda and informed the farmers but they refused to put
their signatures. Report is submitted." A vague endorsement that the
person who had to serve the notice went to village and informed the farmers, is
not the same as notice being specifically tendered to the person concerned. The
endorsement-cum-report does not mention or identify the farmers to whom he
spoke or which of them refused to put their signatures. In the absence of any
evidence placed by the Collector to show knowledge on the part of the appellants,
the claim of the appellants that they became aware that an award was made only
when the notice dated 25.10.2007 was tendered to them and they became aware of
the contents of the award only on 16.11.2007 has to be accepted. In the
circumstances, the date of the award should be taken as 16.11.2007. The
application filed on 16.11.2007 was therefore in time. The Land 18 Acquisition
Collector ought to have entertained the application seeking reference. The High
Court, instead of directing the Collector to make a reference, wrongly rejected
the writ petition on the ground that an appeal is maintainable under section 54
of the Act and also wrongly rejected the review petition on the ground that
they could have made an application for condonation of delay before the Land
Acquisition Collector.
15.
In view of the above, the appeals are allowed, the orders of the
High Court dated 17.1.2008 and 5.5.2008 are set aside, the writ petition is
allowed and the Collector is directed to make a reference to the civil court
under section 18 of the Act, without any delay, not later than two months.
..........................................J. (R V Raveendran)
; .......................................J.
New Delhi
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