Writ Petition No.1313 of 2006

10th April, 2006

Petitioner Counsel: S. M. OAK,Nayana Thatte
Respondent Counsel: A. P. VANARSE

Cases Cited:
Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer, A.I.R. 1961 S.C. 1500 [Para 4]
Parsottambhai Maganbhai Patel Vs. State of Gujarat, 2005(5) ALL MR 965 (S.C.)=2005(7) S.C.C. 431 [Para 4]
Ajit Singh Vs. State of Punjab, 1994(4) S.C.C. 67 [Para 6]

JUDGMENT

JUDGMENT :- Rule, by consent of Counsel returnable forthwith. Counsel appearing on behalf of the Respondents waives service. By consent of Counsel and at the request of Counsel taken up for hearing.

2. The petitioner is the owner of agricultural land admeasuring 2 Hectares and 45 Ares bearing Gat No. 218 situated at village Donaj in the Taluka of Mangalwedha in the district of Solapur. The land being required for the purposes of Ujani Canal Division No.9, a notification under section 4 of the Land Acquisition Act, 1894 came to be issued. The award was declared by the Third respondent on 20th May, 2002. The petitioner has stated that he was not present before the third respondent when the award is made. A notice under section 12(2) was issued to the petitioner on 29th April, 2005 which was received on 3rd May, 2005. It is the case of the petitioner that he accepted the amount of compensation under protest on 3rd May, 2005. On 9th June, 2005, the Petitioner made an application under section 18 of the Act before the Third Respondent seeking a reference for enhancement of compensation before the appropriate Court. The application filed by the Petitioner was dismissed by an order dated 20th December, 2005.

3. Three reasons have weighed with the Third Respondent in rejecting an application for a reference under section 18, namely, (i) The application was not filed within a period of six months from the date of the declaration of the Award; (ii) No evidence was produced indicating that the amount of compensation was accepted under protest; and (iii) No evidence was produced indicating the reasons of objection in the enquiry under section 9(3) and section 9(4) and no evidence was produced in regard to the development carried out on the land.

4. Now, the principal issue which arises for consideration in the present matter is as to whether application for a reference under section 18 was within the period of time stipulated in sub-section (2) of section 18. The proviso to sub-section (2) lays down as follows:

"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."

Clause (a) of the proviso applies where the person who has made the application was present before or was represented before the Collector at the time when the award was made. The proviso has no application in the present case since the petitioner was neither present before the Collector, nor had he been represented when the award was made. In other cases which are governed by proviso (b), the application has to be filed within six weeks from the receipt of the notice from the Collector under sub-section (2) of section 12, or within six months from the date of the Collector's award whichever period shall first expire. The words "date of the Collector's award" were interpreted in the judgment of the Supreme Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer, A.I.R. 1961 S.C. 1500. The Supreme Court held that the award of the Collector being in the nature of a tender or offer made by the Collector on behalf of the Government to the owner of the property for his acceptance, the making of the award as properly understood must involve the communication of the offer to the party concerned. Consequently, the Supreme Court has held as follows:

"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."

In para 6 of the judgment, the Supreme Court has held as follows :

"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 a 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 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 section 18 in a literal or mechanical way."

The law laid down by the Supreme Court in Raja Harish Chandra Raj Singh's case has recently been followed in (Parsottambhai Maganbhai Patel Vs. State of Gujarat), 2005(7) S.C.C. 431 : [2005(5) ALL MR 965 (S.C.)].

5. In the present case, the petitioner was not before the Collector when the award was made on 20th May, 2002. Consequently, knowledge of the making of the award can be attributed to the petitioner only when the award came to be communicated either actually or constructively following the law laid down by the Supreme Court. Even if the notice under section 12(2) is taken as the date on which such knowledge can be imputed, the period of six weeks under proviso (b) would begin to run with effect from the date of the service of that notice. Admittedly, the application under section 18 was filed within a period of six weeks of the receipt of the notice under section 12(2). In the circumstances, the Third Respondent was manifestly in error in rejecting the application as barred by time by computing the period of six months from the date of declaration of the award by the Collector. The mere signing of the award or the filing of the award in the office of the Collector cannot be regarded as the date of the award of the Collector for the purposes of section 18 in view of the law laid down by the Supreme Court. The Third Respondent was, therefore, in error in rejecting the application on that ground.

6. The second reason that weighed with the Third Respondent is that no evidence has been produced indicating that the amount of compensation in respect of land was accepted under protest. Again, this reason is equally dealt with in (Ajit Singh Vs. State of Punjab) 1994(4) S.C.C. 67. The Supreme Court held (para 5 at page 68) that inasmuch as the appellants had filed an application for a reference under section 18 that would itself manifest their intention. Therefore, the protest against the award of the Collector was implied notwithstanding the acceptance of compensation. The final reason that has weighed with the Third Respondent is a that no evidence was produced in regard to the development carried out. This is a matter to be decided by the Court of competent jurisdiction in a reference under section 18 and it was clearly not open to the Third respondent to enter into any adjudication on that issue.

7. For all these reasons, the impugned order is unsustainable and the petition has accordingly to be allowed. The petition is made absolute by quashing and setting aside the impugned order dated 28th December, 2005 passed by the third respondent. The third respondent is directed to make a reference to the appropriate Court as defined under section 3(d) within a period of four weeks from today. No order as to costs.

Petition allowed.