Writ Petition No.4211 of 1992

3rd March, 1997

Petitioner Counsel: Mr.R.S.MOHITE
Respondent Counsel: Mr.V.D.GOVILKAR h/f Mr.R.M.AGRAWAL

Cases Cited:
AIR 1960 Bom 499 [Para 9]

JUDGMENT

DR.B.P.SARAF,J.:- The petitioner in this case is aggrieved by the order of the Land Acquisition Officer, Silvassa of 8th July,1992 rejecting the application of the petitioner under section 18(1) of the Land Acquisition Act,1894, ("Act") for reference to the Court as being barred by limitation. According to the petitioner, his application under section 18(1) of the Act had been made by him within the statutory period of limitation specified in the proviso to sub-section(2) of section 18 of the Act.

2. The case of the petitioner is that though the award was made on 27th November,1989, the petitioner came to know of the making of the same from the Mamlatdar sometime in the second week of January,1991. The petitioner thereupon approached the office of the Mamlatdar and obtained an ordinary copy of the award on 18th January,1991. Thereupon, the petitioner applied for certified copy of the award on 1st February,1991 which was supplied to the him on 4th April,1991. Thereafter, the petitioner made the application for reference under section 18(1) of the Act on 27th May,1991. According to the petitioner, if the limitation is calculated from the date of the knowledge of making of the award, i.e. the date when for the first time he received information about the making of the award from the office of the Mamlatdar, which is sometime in the second week of January,1991, his application under section 18(1) of the Act made on 27th May,1991 is within the statutory period of six months from the date of knowledge of the award. The petitioner contends that his case falls under the second part of clause (b) of the proviso to sub-section (2) of section 18 of the Act because he was neither present nor represented at the time when the award was made by the Collector, nor any notice was served on him by the Collector under sub-section (2) of section 12 of the Act. That being so, according to the petitioner, the limitation for filing the application for reference to Court under section 18 of the Act was six months from the date of knowledge of the award.

3. The respondents do not dispute the averments of the petitioners as regards the date of knowledge of petitioner of the making of the award, getting the ordinary copy thereof as also the certified copy. The only case of the respondents is that a notice under sub-section (2) of section 12 of the Act had been served on the petitioner on 9th April,1990 by affixing the same on the farm house of the petitioner in the presence of the panchas and that being so, the application for reference made by the petitioner on 27th May,1990 was barred by limitation as it was made after the expiry of six weeks from the service of the above notice. The petitioner denies the alleged service of any notice under sub-section (2) of section 12 of the Act.

4. We asked Mr.Govilkar, the learned counsel for the respondents, to show us the notice under sub-section (2) of section 12 of the Act and also to tell us why and under what circumstances it had to be served by affixation on the farm house of the petitioner. Mr.Govilkar produced a copy of the purported notice under section 12(2) of the Act which is in Gujrati language. An English translation thereof was also furnished, which reads as follows:

“To

Patel Talati At P.O. Dadra

Subject : Payment of Compensation.

On the subject cited above, and land which is acquired for Dadra Vapi main road, on 18.4.90 at Office of Dadra Patilland the land acquisition officer is coming for making payment of compensation. So as per list all interested persons may be informed to be present on 18.4.90.

Persons whose heirships, entry of R. of R. is not clear need not required to be called till title is clear. If any person is power of attorney holder of interested person may be informed.

In addition to this if interested persons have encumbrances that list may be prepared.

Sd/-

6/4/90

A S O

A list of 46 names was annexed to the said notice which, we are told, includes the name of the petitioner.

The above notice, according to the learned counsel for the respondents, is the notice under sub-section (2) of section 12 of the Act.

5. We asked the learned counsel for the respondents to tell us as to how the above notice can at all be termed as a notice under sub-section (2) of section 12 of the Act. It was pointed to the learned counsel that:

1. Section 12(2) notice is to be issued by the Collector. In the instant case, admittedly, the notice had not been issued by the Collector or the Mamlatdar, who according to the respondents, has been designated to act as Collector. It is issued by the Assistant Survey Officer.

2. The notice has to be addressed to the persons interested. In this case, the notice is addressed to Patel Talathi. By the above notice, he is asked to inform the persons concerned of the proposed visit of the Land Acquisition Officer for making payment of compensation so that they may remain present to collect the compensation.

3. The notice does not contain any information about the award, not to speak of essential contents thereof.

In reply to our query, the learned counsel for the respondents merely submitted that the above notice should be construed liberally and regarded as a notice under section 12(2) of the Act.

6. We are amazed at the above submission. A notice under section 12(2) of the Act cannot be taken so lightly, because it is a statutory notice which has the effect of curtailing the limitation for making an application for reference in cases falling under clause (b) of the proviso to section 18(2) of the Act. In a case falling under that clause, the limitation is six months from the date of knowledge of the award or six weeks from the service of notice under section 12(2) of the Act, whichever period expires first. In a situation like this, notice under section 12(2) can neither be construed liberally nor the service thereof be presumed lightly in favour of the Government or the acquiring authority. In the instant case, by no stretch of imagination, the notice which we are asked to accept as the notice under section 12(2) can be regarded as a notice under section 12(2) of the Act. Sub-section (1) of section 12 of the Act which provides for filing of the award in the Collector's Office says that on being so filed, the award shall be final and conclusive evidence as between the Collector and the persons interested, of the "true area and value of the land, and the apportionment of the compensation among the persons interested", whether they had respectively appeared before the Collector or not. It is in view of this finality given by sub-section (1) of section 12 of the Act to the true area and value of the land and apportionment of the compensation among the persons interested that sub-section (2) mandates the Collector to 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. Obviously, the purpose of sub-section (2) of section 12 is to intimate the persons interested about the award, meaning thereby, the essential contents of the award which have become final by virtue of filing of the award in Collector's Office i.e. the true area and the value of the land and the apportionment of the compensation among the persons interested. Though no form is prescribed for a notice under sub-section (2) of section 12 of the Act, it is clear that a notice under sub-section (2) of section 12 has to contain the above information. A notice which does not contain such information cannot be regarded as a notice under sub-section (2) of section 12 of the Act. Moreover, such a notice has to be issued by the Collector. Unless the law permits the Collector to delegate this power to somebody else, no one else can issue the same.

7. In the instant case, neither the notice contains any information about the award nor it is addressed to the petitioner. It is a letter addressed by the Assistant Survey Officer to the Patel Talathi of Dadra, informing him on the subject of payment of compensation. By the said letter, the Patel Talathi has been informed about the visit of the Land Acquisition Officer to Dadra on 18th April,1990 at the office of Dadra Patelate for making payment of compensation and he has been asked to inform all interested persons to be present on that date. He has also been asked to inform the persons interested that they would not be paid the money unless they were equipped with necessary documents, such as heirship entries, documents of title, power of attorney, etc. He has also been asked to prepare list of incumbarances if any. The above notice, by no stretch of imagination, can be regarded as a notice under sub-section (2) of section 12 of the Act. It is an internal communication by the Assistant Survey Officer to the Patel Talathi informing him about the visit of the Land Acquisition Officer for the purpose of payment of compensation. It has no semblance whatsoever of a notice contemplated by sub-section (2) of section 12 of the Act.

8. So far as the service of this notice by affixation is concerned, there is nothing to show why service by affixation was required. Section 45 of the Land Acquisition Act, which deals with the service of the notice, reads :

"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 under Section 4, by the officer therein mentioned, and, in the case of any other 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 adddressed to the person named therein at his last known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1989, and service of it may be proved by the production of the addressee's receipt."

Sub-section (1) of the above section clearly mandates that service of notice should be made by delivery or tendering a copy thereof. Sub-section (2) further provides that whenever it is practicable, the service of the notice should be made on the person named therein. It is only when such person cannot be found, that sub-section (3) permits service of notice on any adult male member of the family residing with him or if no such male member can be found, by affixing the copy of the notice on the outer door of the house in which the person therein named ordinarily dwells or carries on business or in some conspicuous part of the land to be acquired. Obviously, service by the substituted mode, i.e., by affixation, is not a normal mode of service and it can be resorted to only after reasonable efforts have been made to serve the same by delivery to the person named in the notice or any adult member of the family. There is no material in this case to show why this notice had to be served by affixation and what steps had been taken before resorting to such substituted service to serve the same by delivery to the person concerned. In the affidavit in reply filed by one Nitin Vishnu Bhole, Assistant Survey Officer, it is stated :

".... Notice of award dated 6.4.90 was issued and served by Panchnama dated 9.4.90, by affixing on the farm house of the petitioner, as there was nobody to receive it."

It appears that the respondents were harbouring under the erroneous impression that if the serving officer does not find the person to be served at the address specified therein, service can be effected by affixation. Law is well settled that the mere fact that the serving officer does not find the person to be served with the notice at his address is not sufficient to establish that he cannot be found. It must be shown not only that the serving officer went to the place at a reasonable time when he would be expected to be present, but also that if he was not found, proper and reasonable attempts were made to find him either at that address or elsewhere. It is only if after such reasonable attempts the person concerned cannot be found that it can be said that "he cannot be found" and service can be effected by the substituted mode of affixture.

9. Reference may be made in this connection to the decision of this Court in Jankibai v. Nagpur Improvement Trust. A.I.R.1960 Bombay 499 where, in the context of the service of the notice under sub-section (2) of section 12 of the Act, on interpretation of sub-section (3) of section 45, it was held by this Court as under :

"The expression " cannot be found " is not equivalent to "not found", A person may not be found at his house at a particular time, but that does not mean that such a person could not be found at his house."

Obviously, in the facts and circumstances of this case, service by affixation is no service in the eye of law.

10. In view of the above, we are of the clear opinion that in the instant case no notice under sub-section (2) of section 12 of the Act had even been issued by the respondents, not to speak of service thereof. That being so, the limitation for making application for reference will run from the date of the knowledge of the award, which admittedly was not earlier than the 2nd week of January,1991. Computed from that date, the application for reference made by the petitioner on 27th February, 1991 is apparently within time. The impugned order of rejection of the same as being barred by limitation is, therefore, illegal and liable to be set-aside and quashed, which we hereby do.

11. In the result, this application is allowed. The Collector is directed to treat the application of the petitioner under section 18(1) of the Act for reference as made within time and to pass necessary orders in accordance with law within three months from today. No order as to costs.

Application allowed.