. Coming to the second question of law regarding
burden of proof, no doubt the normal principle is that the burden
to prove that the claim is within limitation is upon the person or
party, who comes before the Court, to establish it and it is onlyburden of proof, no doubt the normal principle is that the burden
to prove that the claim is within limitation is upon the person or
upon leading evidence that the onus shall shift upon the
respondent or the other side. The Apex Court in the cases of
Laxman Lal and K.P. Plantation Private Limited, has held, as has
been pointed out in the initial paras, that it is the constitutional
obligation upon the State to pay the compensation at a rate
which is not less than the market value of the land, as prescribed
under the second proviso to clause (1) of Article 31A of the
Constitution of India. It is, therefore, for the State to justify its
stand that all the steps, as are required to be taken under
subsection (2) of Section 12 read with Section 18 of the said Act,
have been followed, and that the claimant has failed to approach
the Court within the time prescribed under clause (a) and (b)
below proviso to subsection (2) of Section 18 of the Land
Acquisition Act. If the Collector or the State wanted to prevent
the claimant from seeking enforcement of constitutional
obligation or fundamental right, then the initial burden is upon it
to make out a case by necessary pleadings and proof by leading
evidence to show that the claim is barred by the law of limitation,
as prescribed under clauses (a) and (b) below subsection (2) of
Section 18 of the said Act, which shall be subject to evidence in
rebuttal.
52. Even the language of the clauses (a) and (b) below
subsection (2) of Section 18 of the said Act requires the Collector
to establish the fact that the claimant, as contemplated by
clause (a), was present or represented before him at the time
when the award was made, and in other cases covered by
clause (b), that the claimant had actual or constructive
knowledge of the essential contents of the award and that the
reference was not preferred within a period of six weeks or six
months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to
plead and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation. It is, therefore,
for the State, acting through the Collector, to discharge its burden
if it wanted to deny a fundamental right to the claimant to get
the market value of the land acquired determined by the Court,
Section 18 of the said Act, which shall be subject to evidence in
rebuttal.
52. Even the language of the clauses (a) and (b) below
subsection (2) of Section 18 of the said Act requires the Collector
to establish the fact that the claimant, as contemplated by
clause (a), was present or represented before him at the time
when the award was made, and in other cases covered by
clause (b), that the claimant had actual or constructive
knowledge of the essential contents of the award and that the
reference was not preferred within a period of six weeks or six
months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to
plead and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation. It is, therefore,
for the State, acting through the Collector, to discharge its burden
if it wanted to deny a fundamental right to the claimant to get
the market value of the land acquired determined by the Court,
by seeking reference under Section 18 of the said Act.
53. It is not expected from the claimant to plead and
prove the negative facts that he was not present or was not
represented before the Collector when the award was made, as
contemplated by clause (a) below subsection (2) of Section 18 of
the Land Acquisition Act, or any other cases covered by clause (b)
therein, that he was not having the actual or constructed
knowledge of the essential contents of the award so as to prefer a
reference under Section 18 of the said Act either within a period
of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make
such pleading in the reference petition under Section 18 of the
said Act, but absence of such pleading would not be enough to
deprive the claimant of a right to seek a reference for
53. It is not expected from the claimant to plead and
prove the negative facts that he was not present or was not
represented before the Collector when the award was made, as
contemplated by clause (a) below subsection (2) of Section 18 of
the Land Acquisition Act, or any other cases covered by clause (b)
therein, that he was not having the actual or constructed
knowledge of the essential contents of the award so as to prefer a
reference under Section 18 of the said Act either within a period
of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make
such pleading in the reference petition under Section 18 of the
said Act, but absence of such pleading would not be enough to
deprive the claimant of a right to seek a reference for
compensation at a market value of the land under acquisition.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.518 OF 2003
Maharashtra State Power Generation Co. Ltd.,
(Formerly known as Maharashtra State
Electricity Board),
Versus
Dr. Sheshrao Baliram Ingole,
Coram : R.K. Deshpande, J.
Dated : 2nd February, 2016
Citation: 2016(3) MHLJ 786
1. In Land Acquisition Reference Case No.28 of 1991, the
Reference Court, acting under Section 18 of the Land Acquisition
Act, 1894 (hereinafter referred to as “the said Act”), has
enhanced the compensation from Rs.1,75,000/ to Rs.9,25,650/
per hectare, after deducting the amount already paid to the
respondent No.1/claimant. Apart from this, the claimant is also
held entitled to the statutory benefits consequently available in
law. This first appeal has been preferred by the acquiring body,
challenging the enhancement of compensation.
2. Shri Moharir, the learned counsel appearing for the
appellantacquiring body, has urged :
(1) that the matter be remanded back to the
Reference Court, as the appellant was not
permitted to file written statement and was not
joined in the reference as partyrespondent;
(2) that the reference should have been dismissed as
barred by limitation; and
(3) that the Reference Court has committed an error
in enhancing the compensation.
3. The points for determination are as under :
(a) Whether the matter is required to be remanded
back to the Reference Court to provide an
opportunity to the appellant to file written
statement and further to participate in the
proceedings to defend the claim for enhancement
of compensation?;
(b) Whether the reference was liable to be dismissed
as barred by time, as provided under
Section 18(2) of the said Act?;
(c) Whether the enhancement of compensation by
the Reference Court from Rs.1,75,000/ to
Rs.9,25,650/ per hectare is supported by the
relevant and admissible evidence on record?; and
(d) What should be the order?
As to Point No.(a) :
4. The undisputed factual position is that an application
under Order I, Rule 10 of the Code of Civil Procedure was
preferred by the appellant for being joined as the
partyrespondent on 2561992, and it was marked as Exhibit 10.
It was opposed by the claimant by filing the reply at Exhibit 13.
In view of the provision of Section 50(2) of the said Act, the
Reference Court allowed the said application by an order
dated 19101994. However, it is an undisputed position that
(i) actual amendment was not carried out by joining the
appellant as the partyrespondent in the appeal; (ii) the appellant
did not file the written statement on record; and (iii) the
appellant has extensively crossexamined the witnesses examined
by the claimant.
5. Mere technicalities of failure to join the appellant as
the partyrespondent in the reference proceedings cannot defeat
the ends of justice. The application was allowed for joining the
appellant as the partyrespondent in the reference proceedings by
an order dated 19101994. The appellant was thus well aware
that it is permitted to defend the proceedings and was required to
file the written statement. The appellant has not chosen to file
the written statement, but has chosen to participate in the
proceedings by merely crossexamining the witnesses. The
appellant has not chosen to lead any evidence – either oral or
documentary. In these facts and circumstances, it cannot be said
that the order suffers from miscarriage of justice on account of
the fact that the amendment for joining the appellant as the
partyrespondent was not carried out till the date on which the
matter was closed for judgment. The contention is, therefore,
rejected.
As to Point No.(b) :
6. Since lot of debate, supported by the decisions on the
question of bar of limitation, as provided under subsection (2) of
Section 18 of the Land Acquisition Act, 1984, has taken place, it
will have to be discussed in detail.
The relevant provisions of the Constitution and of
the Land Acquisition Act :
7. Article 300A of the Constitution of India states that no
person shall be deprived of his property save by authority of law.
Article 31A deals with saving of laws providing for acquisition of
estates, etc. In terms of subclause (a) under clause (1) of
Article 31A, notwithstanding anything contained in Article 13,
no law providing for the acquisition by the State of any estate or
of any rights therein or the extinguishment or modification of any
such right shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights
conferred by Article 14 or 19. The second proviso therein is
relevant and the same is reproduced below :
“Provided further that where any law makes any
provision for the acquisition by the State of any estate
and where any land comprised therein is held by a
person under his personal cultivation, it shall not be
lawful for the State to acquire any portion of such land
as is within the ceiling limit applicable to him under
any law for the time being in force or any building or
structure standing thereon or appurtenant thereto,
unless the law relating to the acquisition of such land,
building or structure, provides for payment of
compensation at a rate which shall not be less than the
market value thereof. ”
(Emphasis supplied)
In terms of the aforesaid proviso, it shall not be lawful for the
State to acquire any land or any portion thereof held by any
person under his personal cultivation within the prescribed
ceiling limit with or without any building or structure thereon or
appurtenant thereto, unless the law relating to such acquisition
provides for payment of compensation at a rate which shall not
be less than the market value thereof.
Law laid down on the constitutional provisions by
the Apex Court :
8. In the decision of the Constitution Bench of the Apex
Court in the case of Dattatraya Govind Mahajan and others v. The
State of Maharashtra and another, reported in
AIR 1977 SC 915, the question of constitutional validity of the
provisions of the Maharashtra Agricultural Lands (Ceiling on
Holdings) Act, 1961 was considered on the touchstone of the
proviso to clause (1) of Article 31A of the Constitution of India
and the validity was upheld. The Apex Court has held in para 7
that the object and purpose of introducing Articles 31A of the
Constitution of India was to protect agrarian reform legislation
from its invalidation on the ground of being violative of
Articles 14 and 19 of the Constitution of India. It is held that
Article 31A carves out an exception to the applicability of
Article 31 and also Articles 14 and 19 and immunizes certain
categories of agrarian reform legislation from attack on the
ground that they violate any of these three articles. Even if any
agrarian reform legislation falling within the specified categories
infringes Articles 14, 19 and 31, it would not be invalid.
9. While dealing with Article 31A of the Constitution of
India, the Apex Court in para 8 of the aforesaid judgment holds
that the second proviso says that even where a law makes any
provision for acquisition by the State of any estate and thus falls
within one of the categories specified in Article 31A, it would not
qualify for immunity under the provisions of that Article, if it
seeks to acquire any portion of the land held by a person under
his personal cultivation which is within the ceiling limit
applicable to him under any law for the time being in force and
such a law, in order to be valid, would have to provide for
payment of compensation at a rate which shall not be less than
the market value of the land sought to be acquired. If further
holds that this provision is couched in negative language and it
imposes a fetter on the exercise of the legislative power of the
State, and this limitation is the measure of fundamental right
conferred on the owner of the land. It holds that the restriction
on legislative competence and conferment of right on the holder
of the land within the ceiling limit are complementary to each
other, and they are merely two different facets of the same
provision.
10. The Apex Court, in the aforesaid decision, clearly
expressed the view that the second proviso to clause (1) of
Article 31A does confer a fundamental right to provide for
payment of compensation at a rate not less than the market value
of the land thereof. Shri Justice V.R. Krishna Iyer (as he then
was), who wrote separate but concurring judgment, also
expressed the view that the second proviso to clause (1) of
Article 31A creates a fundamental right. In the same para of the
aforesaid judgment, the Apex Court also rejected the contention
that but for the second proviso even if a law authorizing
acquisition of land within the ceiling limit did not provide for
payment of compensation, it would be protected from
invalidation under Article 31A. The Court held that, that was
not the result, which the Parliament favoured.
11. In the decision of the Apex Court in the case of K.P.
Plantation Private Limited and another v. State of Karnataka,
decided by the Constitution Bench and reported in
(2011) 9 SCC 1, the question involved was regarding validity of
Section 110 of the Karnataka Land Reforms Act, 1961, which
empowered the authority to issue the notification withdrawing
the exemption granted from acquisition under Section 107(1)(vi)
of the said Act. While considering such challenge, the Apex Court
decided the question as to whether the concept of eminent
domain has to be read into Article 300A of the Constitution of
India and in the Statutes enacted to deprive a person of his
property.
12. In para 164 of the aforesaid decision of the Apex
Court, the Objects and Reasons to introduce Article 300A of the
Constitution of India by way of the Fortyfourth Amendment, are
reproduced as under :
“3. In view of the special position sought to be given to
fundamental rights, the right to property, which has
been the occasion for more than one amendment of the
Constitution, would cease to be a fundamental right and
become only a legal right. Necessary amendments for
this purpose are being made to Article 19 and Article 31
is being deleted. It would, however, be ensured that the
removal of property from the list of fundamental rights
would not affect the right of minorities to establish and
administer educational institutions of their choice.
4. Similarly, the right of persons holding land for
personal cultivation and within the ceiling limit to
receive compensation at the market value would not be
affected.
5. Property, while ceasing to be a fundamental right,
would, however, be given express recognition as a legal
right, provision being made that no person shall be
deprived of his property save in accordance with law.”
13. In para 166 of the aforesaid decision of the Apex
Court, it is stated that Article 300A of the Constitution of India
reveals as under :
“1. Right to acquire, hold and dispose of property has
ceased to be a fundamental right under the Constitution
of India.
2. Legislature can deprive a person of his property only
by authority of law.
3. Right to acquire, hold and dispose of property is not
a basic feature of the Constitution, but only a
constitutional right.
4. Right to property, since no more a fundamental
right, the jurisdiction of the Supreme Court under
Article 32 cannot be generally invoked, aggrieved person
has to approach the High Court under Article 226 of the
Constitution.”
14. In the case of eminent domain, two tests are required
to be satisfied, viz. (i) the acquisition is for public purpose, and
(ii) the payment of adequate compensation. In para 178, the
Apex Court held in the aforesaid decision that the principles of
eminent domain as such, are not seen incorporated in
Article 300A, as we see, in Article 30(1A), as well as in the
second proviso to Article 31A(1) though we can infer those
principles in Article 300A. In para 181, it is held that public
purpose is, therefore, a condition precedent for invoking
Article 300A. It holds in para 178 that the second proviso to
Article 31A(1) prohibits the legislature from making a law which
does not contain a provision for payment of compensation at a
rate not less than the market value which follows that a law
which does not contain such provision shall be invalid and the
acquisition proceedings would be rendered void.
15. Para 189 of the aforesaid decision is most relevant,
and it is reproduced below :
“189. Requirement of public purpose, for
deprivation of a person of his property under
Article 300A, is a precondition, but no compensation or
nil compensation or its illusiveness has to be justified by
the State on judicially justiciable standards. Measures
designed to achieve greater social justice, may call for
lesser compensation and such a limitation by itself will
not make legislation invalid or unconstitutional or
confiscatory. In other words, the right to claim
compensation or the obligation to pay, though not
expressly included in Article 300A, it can be inferred in
that article and it is for the State to justify its stand on
justifiable grounds which may depend upon the
legislative policy, object and purpose of the statute and
host of other factors.”
It is held by the Apex Court that the right to claim compensation
or the obligation to pay, though not expressly included in
Article 300A, it can be inferred in that article and it is for the
State to justify its stand on justifiable grounds which may depend
upon the legislative policy, object and purpose of the statute and
host of other factors.
16. In para 192, the Apex Court has made a distinction
between the cases of “no” compensation and “nil” compensation.
It has been held that a law seeking to acquire private property for
public purpose cannot say that “no compensation shall be paid”.
However, there could be a law awarding “nil” compensation in
cases where the State undertakes to discharge the liabilities
charged on the property under acquisition and onus is on the
Government to establish validity of such law.
17. In para 221, the Apex Court has answered the
reference, and clause (e) therein being relevant, is reproduced
below :
“221(e) Public purpose is a precondition for
deprivation of a person from his property under
Article 300A and the right to claim compensation is
also inbuilt in that article and when a person is
deprived of his property the State has to justify both
the grounds which may depend on scheme of the
statute, legislative policy, object and purpose of the
legislature and other related factors.”
18. In the decision in the case of Laxman Lal (Dead)
Through LRs. and another v. State of Rajasthan and others,
reported in (2013) 3 SCC 764, the Apex Court has explained the
doctrine of eminent domain to mean that it is the right or power
of a sovereign State to appropriate the private property within
the territorial sovereignty to public uses or purposes, which is
inherent in the Government. Article 300A of the Constitution of
India states that no person shall be deprived of his property save
by authority of law. The Apex Court has held in para 16 of the
said decision that though the right to property is no longer a
fundamental right but the constitutional protection continues
inasmuch as without the authority of law, a person cannot be
deprived of his property. If the State intends to appropriate the
private property without the owners' consent by acting under the
statutory provisions for compulsory acquisition, the procedure
authorized by law has to be mandatorily and compulsorily
followed.
19. The law laid down by the Apex Court in the aforesaid
judgments can be summarized as under :
(1) Right to acquire, hold and dispose of the
property has ceased to be a fundamental right under
the Constitution of India, but it continues to be a legal
or a constitutional right, namely that no person can be
deprived of his property save and except by and in
accordance with law, which can be enforced by
invoking jurisdiction under Article 226 of the
Constitution of India and not under Article 32.
(2) Article 300A as well as Article 31A with
second proviso in the Constitution of India contain a
power of eminent domain to appropriate the private
property, which should satisfy two tests (i) the
acquisition is for public purpose, and (ii) the payment
of adequate compensation, which should not be less
than the market value of the land.
(3) The second proviso below clause (1) of
Article 31A of the Constitution of India confers an
independent fundamental right to get the payment of
compensation at a rate not less than the market value
of the land thereof, and if the law authorizing
acquisition of the land does not make any such
provision, then it would not qualify for protection or
immunity under Article 31A of the Constitution of
India and it can be declared as void.
(4) There is a distinction between the cases of “no”
compensation and “nil” compensation. The law
seeking to acquire the private property for public
purpose cannot say that no compensation shall be
paid. However, there could be a law awarding nil
compensation in cases where the State undertakes to
discharge the liabilities charge on the property under
acquisition.
(5) It is the constitutional obligation upon the State
to see that a person gets compensation at a rate not
less than the market value of the land acquired, and if
it wanted to defend the enforcement of fundamental
right under the second proviso below clause (1) of
Article 31A of the Constitution of India, it is for the
State to justify its stand on justifiable grounds. Thus,
the burden of proof lies upon the State.
20. The Land Acquisition Act, 1894 is a piece of legislation
enacted to exercise the power of eminent domain to compulsorily
acquire the land by extinguishing the rights therein of the persons
or the owners. Section 4 deals with publication of preliminary
notification and inviting objections, the consideration of which is
done under Section 5A of the said Act by granting hearing on the
objections, if any, raised and the ultimate declaration that the
land is required for public purpose is done by issuing declaration
in the notification, as required by Section 6 of the said Act.
21. Section 11 deals with the enquiry and passing of the
award by the Collector and it contemplates that while making the
award, the Collector needs to determine (i) the true area of the
land, (ii) the compensation which in his opinion should be
allowed for the land, and (iii) the apportionment of the said
compensation among all the persons known or believed to be
interested in the land, of whom, or of whose claim, he has
information, whether or not they have respectively appeared
before him.
22. Section 12 of the said Act is relevant and it is
reproduced below :
“12. Award of Collector when to be final.(1)
Such award shall be filed in the Collector's office and
shall, except as hereinafter 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 among the persons interested.
(2) The Collector shall 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.”
The provision states that the award shall be filed in the
Collector's office and shall, except as provided in the Act, 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 among the persons
interested. Subsection (2) of Section 12 mandates that the
Collector shall 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.
23. Section 18 of the Land Acquisition Act gives a right to
the owner or 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. Section 18 of the Land Acquisition Act being
relevant is reproduced below :
“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:
(3)
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, subsection (2), or within six months from the date
of the Collector's award, whichever period shall first
expire.”
It would thus be clear that the person interested, who has
received the compensation under protest, is required to state in
his application for reference the grounds on which he objects to
the compensation awarded by the Collector within six weeks
from the date of the award when either he was present or
represented by a counsel or an agent, or within six weeks from
the date of receipt of the notice from the Collector sent under
Section 12, subsection (2) or within six months from the date of
the award made by the Collector, whichever period shall first
expire.
24. Section 23 of the Land Acquisition Act deals with the
matters to be considered in determining compensation, and
subsection (1) therein states that in determining the amount of
compensation to be awarded for the land acquired under this Act,
the Collector shall take into consideration – first, the market
value of the land at the date of the publication of the notification
under Section 4, subsection (1). The said provision also deals
with the other aspects of the matter, which are not relevant for
the purposes of the present case.
25. Sections 4, 6, 11, 12, 18 and 23 of the Land
Acquisition Act have been enacted to discharge the constitutional
obligation of the State under Article 300A of the Constitution of
India to provide for payment of the compensation for acquisition
of land, which shall not be less than the market value of the land
and to effectuate the fundamental right conferred by the second
proviso below Article 31A of the Constitution of India to get the
market value of the land in the mode and manner prescribed
under the provisions of the Land Acquisition Act. If the Collector
wanted to urge that (i) the procedure prescribed under
Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act has
been mandatorily and compulsorily followed, and (ii) the person
is not entitled to seek enforcement of the constitutional
obligation under Article 300A or the fundamental right
conferred by the second proviso below Article 31A, the burden
of proof shall be upon the Collector to justify its stand by
necessary pleading and proof.
Law laid down by the Apex Court on the question
of bar of limitation under the provisions of the
Land Acquisition Act :
26. In the backdrop of the aforesaid provisions of the law
and the decisions of the Apex Court, the question of bar of
limitation, as prescribed in clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land Acquisition Act,
will have to be considered. The decisions of the Apex Court
construing the expression “from the date of the Collector's award”
need to be seen.
27. In the decision of the Apex Court in the case of Raja
Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer
and Anr., reported in AIR 1961 SC 1500, the award was passed
under Section 11 of the Land Acquisition Act on 2531951. No
notice of this award was given to the appellant, as required by
Section 12(2) of the said Act and it was only on or about
1311953 that he received information about the making of the
said award, the appellant filed an application under Section 18 of
the said Act for determination of market value of the land on
2421953. The case of the appellant before the Apex Court fell
under the later part of clause (b) of the proviso, as is clear from
para 4 of the judgment. The Land Acquisition Officer took the
view that the application was barred by time under the proviso to
Section 18 of the said Act and he rejected it. In a writ petition,
the learned Single Judge set aside this order and directed
consideration of the application on its own merits in accordance
with law. In appeal before the Division Bench, the decision of the
learned Single Judge was set aside and the application under
Section 18 of the said Act was dismissed as barred by time. This
was the subjectmatter of challenge before the Apex Court and
the appeal was allowed by setting aside the decision of the
Division Bench and restoring the decision of the learned Single
Judge. The question was whether the application filed under
Section 18 of the said Act was in time or not.
28. In the aforesaid decision, the Apex Court considered the
question as to what is the meaning of the expression “the date of
the Collector's award” used in clauses (a) and (b) in the proviso
below subsection (2) of Section 18 of the Land Acquisition Act.
The Apex Court considered the provisions of Sections 11, 12(2)
and 18 of the said Act. In the cases falling under clause (a) of
the proviso, it is held that if the award is pronounced in the
presence of the parties whose rights are affected by it, it can be
said to be made when pronounced. If the date for
pronouncement of the award is communicated to the party and
it is accordingly pronounced on the date previously announced,
the said 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. In the cases falling under clause (b) of the
proviso, it is held that if without notice of the date of its
pronouncement the 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 “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. The Apex Court
has opined that 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.
29. The view taken by the Apex Court in the aforesaid
decision in the cases covered by clause (b) is supported by
reasons. The Apex Court considered that 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 the cases of award made under the Act cannot be reasonably
excluded. The Apex Court holds that 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. The Apex Court held that the Legislature
recognized that making of the award under Section 11 followed
by its filing under Section 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 the obligation upon the
Collector tends to show that the literal and mechanical
construction of the said clause would be wholly inappropriate
and failure of the Collector to discharge his obligation under
Section 12(2) produce curious result of making ineffective, the
right of the party to make an application under Section 18, and
this result could not possibly have been intended by the
Legislature.
30. A three Judges' Bench of the Apex Court in the case of
State of Punjab v. Mst Qaisar Jehan Begum and another, reported
in AIR 1963 SC 1604, it was a case where the Collector made an
award on 25101953, the amount of compensation was paid on
2271955, and on 3091955, the respondents made an
application to the Collector for reference under Section 18 of the
Land Acquisition Act, alleging that they knew about the award on
2271955 when they received the compensation amount. The
Civil Court to which the reference was made, came to the
conclusion that the reference was barred by time by expressing a
doubt as to whether the respondents were entitled to count the
period of limitation from the date of knowledge, but even if it is
assumed to be so, the date of knowledge must be taken to be
24121954, when the respondents made an application for
interim payment and, therefore, the reference sought was barred
by time. The High Court allowed the revision application and set
aside the order of the Civil Court and directed dealing of the
reference on its own merits. This was the subjectmatter of
challenge before the Apex Court.
31. A three Judges' Bench of the Apex Court in the
aforesaid judgment considered the provisions of Section 12 of the
Land Acquisition Act and the decision in Raja Harish Chandra Raj
Singh's case, cited supra, earlier decided by it. On interpretation
of clause (a) in the proviso under Section 18, it is held that when
a party is present in a 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. The Apex
Court recorded the finding in respect of clause (b) of the proviso
that admittedly the award was never communicated to the
respondents. While dealing with the contention that the date of
knowledge must be taken to be 24121954, the Apex Court
observed that the 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 which
must be made known either actually or constructively. If the award
is communicated to a party under Section 12(2) of the Act, the
party must be obviously fixed with knowledge of the contents of
award whether he reads it or not. The Court held that the date
of knowledge in the said case should be taken as 2271955 when
the amount of compensation was paid and, therefore, the
application for reference made on 3091955 was clearly within a
period of six months from the date of that award and it was not
barred by time within the meaning of the second part of
clause (b) of the proviso to Section 18 of the said Act.
32. In the decision of the Apex Court delivered by a Bench
of two Judges in the case of State of Punjab and another v.
Satinder Bir Singh, reported in (1995) 3 SCC 330, it was a case
where the Collector made his award under Section 11 of the
Land Acquisition Act on 181970. He issued the notice under
Section 12(2) of the said Act, which was received by the
respondent on 2291970. The compensation was received under
protest on 2991970 and thereafter an application under
Section 18 of the said Act was made on 2111971 seeking
reference to the Civil Court. The Collector rejected the said
application as barred by limitation. The High Court in revision
set aside the decision of the Collector, holding that the notice did
not contain all the details as to how the market value of the land
was evaluated; the respondent was not in a position to know the
determination of the compensation for making an application for
reference under Section 18 and the Court held that it was not a
proper notice and the limitation prescribed under Section 18(2)
of the said Act was not applicable. The Apex Court set aside the
decision of the High Court and rejected the application under
Section 18 of the said Act as barred by limitation.
33. In para 8 of the aforesaid decision, the Apex Court has
held that from a conjoint reading of Sections 11 and 12 of the
Land Acquisition Act, it is clear that notice is only an intimation
of making of the award requiring the owner or person interested
to receive compensation awarded under Section 11 of the said
Act. It holds that it is not necessary that a notice should contain all
the details of the award including his consideration and its manner
of determination of the compensation, as opined by the learned
Judge of the High Court. It is held that the statutory operation of
limitation mentioned by Section 18(2) of the said Act does not
depend on the ministerial act of communication of notice in any
particular form when the Act or Rules has not prescribed any form.
It holds that the limitation begins to operate from the moment
the notice under Section 12(2) is received or as envisaged by
Section 18(2). The said decision has been followed by the
another Bench of two Judges of the Apex Court in the case of
Poshetty & Ors. v. State of Andhra Pradesh, reported in
1996(4) CCC 15 (SC).
34. The Division Benches of this Court in the cases of Smt.
Laxmibai Narayan Patil & Anr. v. State of Maharashtra & Anr.,
reported in 1998(1) CCC 104 (Bom.), and Sadashiorao Balaji
Satone and others v. The State of Maharashtra and others,
reported in 2004 AIHC 989, relying upon the decision of the Apex
Court in Satinder Bir Singh's case, cited supra, have held that the
period for obtaining the certified copy of the award is not liable
to be excluded and the limitation prescribed under Section 18(2)
of the Land Acquisition Act starts running from the date when
the notice disclosing the true area of the land and the
compensation awarded was received by the claimant.
35. A Bench consisting of two Judges of the Apex Court
again considered the question in its decision in the case of
Bhagwan Das & Ors. v. State of U.P. and Ors., reported in
AIR 2010 SC 1532. It was a case where an award was made by
the Land Acquisition Collector on 1432007 and the appellants
were served with the notice on 25102007 to appear before the
Collector and receive the amount of compensation. The
appellants learnt that the award was made on 1432007 and
immediately, therefore, moved an application seeking reference
under Section 18 of the Land Acquisition Act on 16112007.
The Collector rejected the application as barred by time, as
prescribed under Section 18(2) of the said Act. A writ petition
preferred was dismissed on 1712008, and this is how the matter
was before the Apex Court. The Apex Court allowed the appeal,
set aside the decisions and directed consideration of the matter
on merits.
36. The Apex Court considered the two important
questions – (i) whether the Collector can condone the delay in
filing an application seeking reference if sufficient cause is
shown, and (ii) whether the period of six months under
clause (b) of the proviso to Section 18 of the Land Acquisition
Act should be reckoned from the date of knowledge of the award
of the Collector or from the date of the award itself. The Court
held that Section 5 of the Limitation Act cannot be invoked for
extension of the period of limitation prescribed under the proviso
to Section 18(2) of the Land Acquisition Act and the Collector
cannot entertain any application for extension nor extend the bar
for seeking the reference, even if there are genuine and bona fide
grounds for condoning the delay. Relying upon the two decisions
of the Apex Court in the cases of Raja Harish Chandra Raj Singh
and Mst. Qaisar Jehan Begum, cited supra, decided in the years
1961 and 1963 respectively, the Apex Court reiterated the view
that the words “date of the Collector's award” occurring in
proviso (b) to Section 18 of the Land Acquisition Act require 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.
37. In para 11 of the aforesaid decision in the case of
Bhagwan Das, the Apex Court has considered the consequences of
literal and mechanical construction of the expression “from the
date of the Collector's award” employed in clause (b) in the
proviso below subsection (2) of Section 18 of the said Act, and it
is as under :
“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
'date of the Collector's award' 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 landowner 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 nondiscriminatory, 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 regard as referring to the date
of knowledge of the essential contents of the award, and
not the actual date of the Collector's award.”
(Emphasis supplied)
The Apex Court considered that the award is only an offer on
behalf of the Government, and 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, and
invariably the land loser has to make a reference under
Section 18 of the Land Acquisition Act for enhancement of
compensation. The right to seek a reference to the Civil Court
does not accrue unless the award is made. The Court has held
that if the words “date of the Collector's award” are literally
interpreted, the effect would be that on expiry of six months
from the date of the award, even though the claimant had no
notice of the award, he would lose the right to seek a reference,
and this will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are
not notified of the award. It is further held that unless the
procedure under the Act is fair, reasonable and nondiscriminatory,
it will run the risk of being branded as being
violative of Article 14 as also Article 300A of the Constitution of
India.
38. In the aforesaid decision in in the case of Bhagwan
Das, the Apex Court also considered the question of burden of
proof. It is held in para 13 as under :
“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
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 compensation amount for the
acquired land, or had attested the
Mahazar/Panchanama/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.”
Thus, the initial onus is on the person making reference seeking
the benefit of six months' period from the date of knowledge 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 Land Acquisition Act, and that he did not
have the knowledge of the contents of the award during the
period of six months prior to filing of the application for
reference. It is held that the onus is discharged by asserting
these facts on oath and it is not expected to prove negative. The
Court further holds that 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 said Act, or that he had knowledge of the contents of the
award. If further holds that 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
compensation amount for the acquired land, or had attested the
Mahazar/Panchanama/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 any statement on oath or evidence.
The Court held that in the absence of 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.
39. In the decision of a three Judges' Bench of the Apex
Court in the case of Premji Nathu v. State of Gujarat and Anr.,
reported in AIR 2012 SC 1624, it was a case where the Collector
issued the notice to the appellant under Section 12(2) of the
Land Acquisition Act, which was received by him on 2221985.
Similar notices were received by the other land owners on
2221985 and 2321985. As the copy of the award was not
annexed with the notice, the appellant obtained the certified
copy thereof through his Advocate and then submitted an
application dated 841085 to the Collector for making reference
to the Court for enhancement of compensation with solatium
and interest. The Reference Court did not frame any issue of
limitation, but concluded that the land owners were interested to
enhancement of compensation. However, the application under
Section 18(2)(b) of the said Act was dismissed as barred by
limitation. The Apex Court allowed the appeal, holding that the
claimants were entitled to enhancement of compensation, as was
held by the Reference Court along with all statutory benefits.
40. The Apex Court in para 15 of the aforesaid decision,
considered the question as to whether the service of notice under
Section 12(2) of the said Act was sufficient to start counting the
period of limitation and held that the copy of the award was not
served upon the appellant along with the notice and without
that, the appellant could not have effectively made an
application for seeking reference. It was held that on behalf of
the State Government, no evidence was produced before the
Reference Court to show that copy of the award was sent to the
appellant along with the notice, and this aspect was totally
ignored by the Reference Court, which mechanical concluded
that the application was barred by time, as specified in
Section 18(2)(b) of the said Act, and the High Court also
committed a serious error in approving such a view.
41. In the recent decision of a three Judges' Bench of the
Apex Court in the case of Madan and another v. State of
Maharashtra, reported in (2014) 2 SCC 720, it was a case where
the award was passed on 1681985, and in the reference under
Section 30 of the Land Acquisition Act disposed of on 491991,
it was held that the appellants are entitled to compensation in
respect of 20 acres of acquired land and the remaining parties
for compensation in respect of remainder of the acquired land.
The claimants received the compensation on 591991, and
within a period of six weeks therefrom, the reference was sought
under Section 18 of the said Act for enhancement of
compensation. The Reference Court enhanced the compensation,
and in an appeal filed before the High Court, it was held that the
reference was barred by limitation. This is how the case was
before the Apex Court. It was held that for the first time
on 491991 (date of the order under Section 30 of the Act) that
the appellants came to know that they were entitled to
compensation and the quantum thereof. The reference made
under Section 18 was within a period of six weeks from
491991, and the High Court committed an error in holding that
the reference was barred by limitation.
42. In para 11 of the aforesaid decision, the Apex Court
has held that one of the options open to the Collector is to make
a reference to the question of apportionment of compensation to
the Court under Section 30 of the said Act, and the other is to
relegate the parties to the remedy of the suit. It is held that in
either situation, the right to receive the compensation under the
award would crystallize after apportionment is made in favour of
the claimant. It is only thereafter that the reference under
Section 18 of the said Act for enhanced compensation can be
legitimately sought by the claimant, in whose favour the order of
apportionment is passed either by the Court in reference under
Section 30 of the said Act, or in the civil suit, as the case may be.
Summary of the law laid down by the Apex Court :
43. Keeping in view the law laid down by the Apex Court
in the decisions in the cases of (a) Raja Harish Chandra, (b) Mst.
Qaisar Jehan Begum, (c) Bhagwan Das, (d) Premji Nathu, and
(e) Madan and another, cited supra, the following principles
emerge
(i) In the cases falling under clause (a) of the
proviso below subsection (2) of Section 18 of the
Land Acquisition Act, if the person making the
reference (“the claimant”) was present or represented
before the Collector at the time when the award is
made, it can be said to be made when it is so
pronounced and the period of limitation starts
running from that date, and after expiry of the period
of six weeks from such date, the reference has to be
dismissed as barred by the law of limitation.
(ii) If the date for pronouncement of the
award is communicated to the claimant and it is
accordingly pronounced on the date so previously
announced, the said award is said to be
communicated to the claimant concerned even if he is
not actually present on the date of its pronouncement
and the period of limitation shall lapse after six weeks
from the date of such pronouncement.
(iii) In the cases falling in first part of clause (b) in
the proviso below subsection (2) of Section 18 of the
said Act, what is relevant to be established is the
receipt of notice from the Collector under Section 12,
subsection (2) of the Land Acquisition Act, and the
period of six weeks prescribed therein starts running
from the date of either actual or constructive
knowledge of essential contents of the award and it is
not a mere knowledge of the fact that the award has
been made is sufficient, to hold that the period of
limitation starts running from such date without there
being any communication, bringing to the notice of
the party concerned, the essential contents of the
award, either actual or constructive.
(iv) In the cases falling in second part of clause (b)
in the proviso below subsection (2) of Section 18 of
the Land Acquisition Act, the same principles
laid down in respect of first part of clause (b) therein,
would apply for starting the period of limitation, but
in such a case, the limitation would expire after
expiry of six months from the date of the Collector's
award.
(v) In all the cases, the dispute shall pertain only
to the starting and running date or dates, as the case
may be, to count the period of limitation. In none of
the cases, the Courts are empowered or competent to
condone the delay caused in seeking reference after
expiry of the period of limitation so prescribed.
44. No doubt, the two decisions of the Apex Court in the
cases of Satinder Bir Singh and Poshetty & Ors., which are
followed by the Division Benches of this Court in the cases of
Smt. Laxmibai Narayan Patil and Sadashiorao Balaji Satone, deal
with the controversy of limitation, as contemplated by clause (b)
of the proviso to subsection (2) of Section 18 of the Land
Acquisition Act. The ratio of the decision of the Apex Court in
Satinder Bir Singh's case is that it is not necessary that a notice
under subsection (2) of Section 12 of the said Act should
contain all the details of the award including his consideration
and its manner of determination of the compensation, and that
the statutory operation of limitation does not depend on the
ministerial act of communication of notice in any particular form
when the Act or Rules has not prescribed any form.
45. The ratio of the decision in aforesaid two cases, which
is followed in other cases, is directly in conflict with the ratio of
the decisions of the Apex Court in the cases of Raja Harish
Chandra Raj Singh, Mst. Qaisar Jehan Begum, Bhagwan Das,
Premji Nathu, and Madan and others. The decisions of the Apex
Court in the cases of Satinder Bir Singh, and Poshetty and others
are rendered by the two Judges, whereas, the decision of the
Apex Court in the cases of Mst. Qaisar Jehan Begum, Premji
Nathu, and Madan are delivered by the three Judges. The law
laid down by the larger Benches is, therefore, binding. The Apex
Court in its decision in the case of Mst. Qaisar Jehan Begum has
enhanced the ratio of the earlier Division Bench decision in the
case of Raja Harish Chandra Raj Singh, and it is held that the
limitation shall start running from the date of either actual or
constructive knowledge of the essential contents of the award
and it is not a mere knowledge of the fact that the award has
been made, that is sufficient, to hold that the period of limitation
starts running from such date.
The questions of law for determination :
46. It is not the case of any of the parties that either the
Collector or the Court exercising jurisdiction under Section 18 of
the Land Acquisition Act to determine the market value of the
land, has power to condone the delay caused in filing reference
beyond the period stipulated in clauses (a) and (b) of the proviso
below subsection (2) therein. In fact, the point is no longer
res integra in view of the decision of the Apex Court in the case
of Bhagwan Das, cited supra, wherein it has been held that
Section 5 of the Limitation Act cannot be invoked for extension
of the period of limitation prescribed under the proviso to
Section 18(2) of the said Act and the Collector cannot entertain
any application for extension nor extend the bar for seeking the
reference, even if there are genuine or bona fide grounds for
condoning the delay. While considering the bar of limitation
under Section 18 of the said Act, it is not the question of
condonation of delay, which is required to be considered, but it
is the question of starting point of limitation, which is required
to be considered. Hence, the following two questions are
required to be considered
(i) what should be the starting point of limitation,
as prescribed in clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land
Acquisition Act?, and
(ii) upon whom the burden of proof lies to
establish that the reference preferred under
Section 18 of the said Act is barred by the law of
limitation?
As to Question No.(i) :
47. The Court, acting under Section 18 of the Land
Acquisition Act, has to determine the objections as regards
(i) the true area of the land, (ii) the compensation, which, in his
opinion, should be allowed for the land, and (iii) the
apportionment of compensation amongst all the persons to
whom it is payable or the persons known or believed to be
interested in the land. Such an award passed under Section 11
of the said Act is merely an offer for compensation by the
Collector. The offer has to be communicated to the persons
having a right to receive compensation. A statutory right to
approach the Court for determination of the market value of the
land, provided under Section 18 of the said Act, accrues only
upon communication of the essential contents of the award. The
limitation prescribed under Section 18 of the said Act, therefore,
starts running from the date of actual or constructive knowledge
of the essential contents of the award.
48. Section 18 of the said Act provides an opportunity to
raise grounds on which the objection to the award is taken and it
confers a power upon the Court, rather than the Collector, to
determine the market value of the land under acquisition. This
opportunity to raise objection is not an empty formality, but it is
for effectively exercising the fundamental right under the second
proviso below clause (1) of Article 31A of the Constitution of
India for determination by the Court of the true market value of
the land under acquisition. Such a fundamental right cannot be
effectively exercised without knowing actually or constructively
the essential contents of the award, i.e. the mode, manner and
the basis of determination of the offer received from the
Collector. In the absence of such knowledge, no protest can be
raised, as contemplated by subsection (1) of Section 18 of the
said Act, and there is no jurisdiction with the Collector or the
Court, acting under Section 18, to permit the amendment of the
Reference to raise additional grounds or additional
compensation after getting knowledge of the essential contents
of the award.
49. The very object of subsection (2) of Section 12 of the
said Act to give notice of award only to such persons interested
as were not present personally or by their representatives when
the award was made, is to enable them to raise effective
objections to such award to have a market value of their land
under acquisition. Otherwise, it would produce curious result of
making ineffective this right, and such result could not possibly
have been intended by the Legislature, as observed by the Apex
Court in Raja Harish Chandra Raj Singh's case, cited supra.
50. Applying the aforesaid principles of law laid down by
the Apex Court, it will have to be decided in the facts and
circumstances of each case the date from which the period of
limitation prescribed under clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land Acquisition Act
shall start running. The question No.(i) is, therefore, answered
accordingly.
As to Question No.(ii) :
51. Coming to the second question of law regarding
burden of proof, no doubt the normal principle is that the burden
to prove that the claim is within limitation is upon the person or
party, who comes before the Court, to establish it and it is only
upon leading evidence that the onus shall shift upon the
respondent or the other side. The Apex Court in the cases of
Laxman Lal and K.P. Plantation Private Limited, has held, as has
been pointed out in the initial paras, that it is the constitutional
obligation upon the State to pay the compensation at a rate
which is not less than the market value of the land, as prescribed
under the second proviso to clause (1) of Article 31A of the
Constitution of India. It is, therefore, for the State to justify its
stand that all the steps, as are required to be taken under
subsection (2) of Section 12 read with Section 18 of the said Act,
have been followed, and that the claimant has failed to approach
the Court within the time prescribed under clause (a) and (b)
below proviso to subsection (2) of Section 18 of the Land
Acquisition Act. If the Collector or the State wanted to prevent
the claimant from seeking enforcement of constitutional
obligation or fundamental right, then the initial burden is upon it
to make out a case by necessary pleadings and proof by leading
evidence to show that the claim is barred by the law of limitation,
as prescribed under clauses (a) and (b) below subsection (2) of
Section 18 of the said Act, which shall be subject to evidence in
rebuttal.
52. Even the language of the clauses (a) and (b) below
subsection (2) of Section 18 of the said Act requires the Collector
to establish the fact that the claimant, as contemplated by
clause (a), was present or represented before him at the time
when the award was made, and in other cases covered by
clause (b), that the claimant had actual or constructive
knowledge of the essential contents of the award and that the
reference was not preferred within a period of six weeks or six
months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to
plead and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation. It is, therefore,
for the State, acting through the Collector, to discharge its burden
if it wanted to deny a fundamental right to the claimant to get
the market value of the land acquired determined by the Court,
by seeking reference under Section 18 of the said Act.
53. It is not expected from the claimant to plead and
prove the negative facts that he was not present or was not
represented before the Collector when the award was made, as
contemplated by clause (a) below subsection (2) of Section 18 of
the Land Acquisition Act, or any other cases covered by clause (b)
therein, that he was not having the actual or constructed
knowledge of the essential contents of the award so as to prefer a
reference under Section 18 of the said Act either within a period
of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make
such pleading in the reference petition under Section 18 of the
said Act, but absence of such pleading would not be enough to
deprive the claimant of a right to seek a reference for
compensation at a market value of the land under acquisition.
The question No.(ii) is answered accordingly.
54. On the question of limitation, the specific averment in
para 10 of the reference application under Section 18 of the Land
Acquisition in the present case is as under :
“10. The applicant came to know about the passing of
award on receipt of notice u/s 12(2) of Land Acquisition
Act on 28/6/1990 and 10/7/1990. However, he was
not aware about the contents of the award. He received
the certified copy of the order on 24/7/1990 and at that
time they got full knowledge of the contents of the
award. The application is within time. The
compensation amount has been received by the applicant
under protest.”
The Collector at whose instance the land was acquired, had
raised the question of limitation and the appellant was crossexamined.
The relevant portion of which, is reproduced below :
“The award was passed on 2/5/90. I have filed copy of
Award on record. It is at Ex.35. I had gone through the
contents of the same. Its contents are correct. It is not
correct to say that the reference application filed by me
was out of limitation. It is not correct to say that the
case is not tenable in this Court.”
The appellant has been extensively crossexamined by the
Collector but not on the point of limitation. It is, therefore,
amply proved that though the award was passed on 251990, the
claimant got the knowledge of the essential contents of the award
upon receiving the certified copy on 2471990 and the reference
was preferred under Section 18 of the Land Acquisition Act on
881990, which was within a period of six months from the date
of the knowledge of the essential contents of the award. It was,
therefore, perfectly within the period of limitation.
As to Point Nos.(c) and (d) :
55. In paras 10 and 14, the Reference Court has held that
the market value of the land acquired is required to be
determined at the rate of Rs.10.50 per square foot, whereas in
para 21, the Reference Court has held that the market value of
the land acquired was Rs.8.50 per square foot, and therefore, the
applicant is entitled to get compensation at the rate of
Rs.9,25,630/ per hectare (in the operative portion, the
compensation is granted at the rate of Rs.9,25,650/ per hectare).
The reliance is placed upon Exhibits 28 and 29, which are the
letters said to have been issued by the Tahsildar in the Office of
Collector of Stamps and Valuation at Chandrapur, which show
the consideration of Rs.15,000/ for sale of 278.73 sq.mtrs., Plot
No.23 in Survey No.76/2. Exhibit 30 relied upon is also the
communication by the Deputy Registrar (Stamps), addressed to
third person, calling upon him to pay the stamp duty on the
valuation of land at Rs.1,380/. None of these three documents
at Exhibits 28, 29 and 30 can be considered as an evidence to
determine the market value of the land Survey No.76/2A, which
is under acquisition.
56. Be that as it may, if the value of the land in Exhibit 28
is to be taken into consideration, it is of Rs.15,000/ for sale of
278.73 sq.mtrs. of land, which is equivalent to 3,000 sq.ft., the
rate would be Rs.5/ per square foot. Exhibit 30, the
communication, does not indicate either the land survey number
or the area in respect of which the valuation of Rs.3,180/ is
shown. Hence, it is not relevant for determination of
compensation. Except this, there is no other document relied
upon by the Reference Court to grant the enhancement of
compensation. The Reference Court has, therefore, committed an
error in enhancing the compensation to Rs.9,25,650/ without
there being any evidence in support of it.
57. The Reference Court has referred to the document at
Exhibit 93, which is the sale index, showing sale of 3,400 sq.ft. of
land for Rs.3,400/ on 1961984. The another portion of the
same land having area of 3,000 sq.ft. was sold for Rs.3,000/ on
27111984. These sale indices indicate the value of the land at
the rate of Re.1/ per square foot. Even if 10% is added towards
increase per year, the amount would not exceed the rate of
Rs.1.70 per square foot. If the market value is calculated at this
rate in respect of the land under acquisition, then it would
certainly be less than Rs.1,75,000/ per hectare awarded by the
Land Acquisition Officer. The Reference Court has, therefore,
committed an error in granting enhancement, ignoring the rate
reflected by Exhibit 93, the sale index in respect of the same land.
If the market value of the land in question is to be determined by
assuming that it is the nonagricultural land, then necessary
deduction on account of development will also have to be
considered. All such aspects are ignored by the Reference Court.
The enhancement granted cannot, therefore, be sustained.
58. Shri Maheshwari, the learned counsel appearing for
the claimant, has urged that the appellant – Maharashtra State
Electricity Board (now Maharashtra State Power General
Company Limited) had failed to file written statement to oppose
the claim for enhancement of compensation made in the
reference. He has, therefore, urged that the appellant was not
entitled to file an appeal challenging such enhancement. The
contention cannot be accepted. It is for the claimant to establish
the entitlement for the market value of the land. Even if the
appellant had failed to file written statement opposing the claim
for enhancement, that by itself would not be enough to deny the
appellant the right of appeal, which is available in law, as
provided under Section 54 of the Land Acquisition Act. The
appellant is entitled to point out to the Court that the claimant
has to stand on his legs, and in the absence of any evidence in
support of the findings recorded, the appellant is entitled to
challenge such findings by filing an appeal. The appeal cannot be
dismissed on that ground, and the contention is, therefore,
rejected.
59. In the result, the appeal is allowed. The judgment and
order dated 3042003 passed by the learned Joint Civil Judge,
Senior Division, Chandrapur, in Land Acquisition Reference Case
No.28 of 1991, is hereby quashed and set aside. The Land
Acquisition Reference Case No.28 of 1991 stands dismissed. No
order as to costs.
60. It is informed that the appellant has deposited in this
Court the entire decretal amount of Rs.38,38,618/. The
claimant is permitted to withdraw certain amount upon
furnishing security to the satisfaction of the Reference Court, and
the claimant has actually withdrawn such amount. In view of
this, the claimant is directed to redeposit the amount so
withdrawn, in this Court within a period of eight weeks from
today, failing which the appellant shall be entitled to enforce the
security so furnished to get the amount realized along with
interest at the rate of 4% per annum from the date of withdrawal
till its redeposit. The appellant shall be entitled to withdraw the
balance amount lying in deposit in this Court along with interest,
if any accrued thereon.
61. At this stage, Shri Maheshwari, the learned counsel for
the respondent No.1/claimant, seeks stay of the aforesaid portion
of the order permitting the appellant to enforce the security to
realize the amount so withdrawn. In view of the fact that this
Court has already granted the claimant six weeks' time for
redeposit of the amount in this Court, the question of enforcing
the order for a period of eight weeks by the appellant does not
arise. Hence, the request of the learned counsel for the
respondent No.1/claimant for stay of the order is rejected.
JUDGE.
NAGPUR BENCH, NAGPUR
FIRST APPEAL NO.518 OF 2003
Maharashtra State Power Generation Co. Ltd.,
(Formerly known as Maharashtra State
Electricity Board),
Versus
Dr. Sheshrao Baliram Ingole,
Coram : R.K. Deshpande, J.
Dated : 2nd February, 2016
Citation: 2016(3) MHLJ 786
1. In Land Acquisition Reference Case No.28 of 1991, the
Reference Court, acting under Section 18 of the Land Acquisition
Act, 1894 (hereinafter referred to as “the said Act”), has
enhanced the compensation from Rs.1,75,000/ to Rs.9,25,650/
per hectare, after deducting the amount already paid to the
respondent No.1/claimant. Apart from this, the claimant is also
held entitled to the statutory benefits consequently available in
law. This first appeal has been preferred by the acquiring body,
challenging the enhancement of compensation.
2. Shri Moharir, the learned counsel appearing for the
appellantacquiring body, has urged :
(1) that the matter be remanded back to the
Reference Court, as the appellant was not
permitted to file written statement and was not
joined in the reference as partyrespondent;
(2) that the reference should have been dismissed as
barred by limitation; and
(3) that the Reference Court has committed an error
in enhancing the compensation.
3. The points for determination are as under :
(a) Whether the matter is required to be remanded
back to the Reference Court to provide an
opportunity to the appellant to file written
statement and further to participate in the
proceedings to defend the claim for enhancement
of compensation?;
(b) Whether the reference was liable to be dismissed
as barred by time, as provided under
Section 18(2) of the said Act?;
(c) Whether the enhancement of compensation by
the Reference Court from Rs.1,75,000/ to
Rs.9,25,650/ per hectare is supported by the
relevant and admissible evidence on record?; and
(d) What should be the order?
As to Point No.(a) :
4. The undisputed factual position is that an application
under Order I, Rule 10 of the Code of Civil Procedure was
preferred by the appellant for being joined as the
partyrespondent on 2561992, and it was marked as Exhibit 10.
It was opposed by the claimant by filing the reply at Exhibit 13.
In view of the provision of Section 50(2) of the said Act, the
Reference Court allowed the said application by an order
dated 19101994. However, it is an undisputed position that
(i) actual amendment was not carried out by joining the
appellant as the partyrespondent in the appeal; (ii) the appellant
did not file the written statement on record; and (iii) the
appellant has extensively crossexamined the witnesses examined
by the claimant.
5. Mere technicalities of failure to join the appellant as
the partyrespondent in the reference proceedings cannot defeat
the ends of justice. The application was allowed for joining the
appellant as the partyrespondent in the reference proceedings by
an order dated 19101994. The appellant was thus well aware
that it is permitted to defend the proceedings and was required to
file the written statement. The appellant has not chosen to file
the written statement, but has chosen to participate in the
proceedings by merely crossexamining the witnesses. The
appellant has not chosen to lead any evidence – either oral or
documentary. In these facts and circumstances, it cannot be said
that the order suffers from miscarriage of justice on account of
the fact that the amendment for joining the appellant as the
partyrespondent was not carried out till the date on which the
matter was closed for judgment. The contention is, therefore,
rejected.
As to Point No.(b) :
6. Since lot of debate, supported by the decisions on the
question of bar of limitation, as provided under subsection (2) of
Section 18 of the Land Acquisition Act, 1984, has taken place, it
will have to be discussed in detail.
The relevant provisions of the Constitution and of
the Land Acquisition Act :
7. Article 300A of the Constitution of India states that no
person shall be deprived of his property save by authority of law.
Article 31A deals with saving of laws providing for acquisition of
estates, etc. In terms of subclause (a) under clause (1) of
Article 31A, notwithstanding anything contained in Article 13,
no law providing for the acquisition by the State of any estate or
of any rights therein or the extinguishment or modification of any
such right shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights
conferred by Article 14 or 19. The second proviso therein is
relevant and the same is reproduced below :
“Provided further that where any law makes any
provision for the acquisition by the State of any estate
and where any land comprised therein is held by a
person under his personal cultivation, it shall not be
lawful for the State to acquire any portion of such land
as is within the ceiling limit applicable to him under
any law for the time being in force or any building or
structure standing thereon or appurtenant thereto,
unless the law relating to the acquisition of such land,
building or structure, provides for payment of
compensation at a rate which shall not be less than the
market value thereof. ”
(Emphasis supplied)
In terms of the aforesaid proviso, it shall not be lawful for the
State to acquire any land or any portion thereof held by any
person under his personal cultivation within the prescribed
ceiling limit with or without any building or structure thereon or
appurtenant thereto, unless the law relating to such acquisition
provides for payment of compensation at a rate which shall not
be less than the market value thereof.
Law laid down on the constitutional provisions by
the Apex Court :
8. In the decision of the Constitution Bench of the Apex
Court in the case of Dattatraya Govind Mahajan and others v. The
State of Maharashtra and another, reported in
AIR 1977 SC 915, the question of constitutional validity of the
provisions of the Maharashtra Agricultural Lands (Ceiling on
Holdings) Act, 1961 was considered on the touchstone of the
proviso to clause (1) of Article 31A of the Constitution of India
and the validity was upheld. The Apex Court has held in para 7
that the object and purpose of introducing Articles 31A of the
Constitution of India was to protect agrarian reform legislation
from its invalidation on the ground of being violative of
Articles 14 and 19 of the Constitution of India. It is held that
Article 31A carves out an exception to the applicability of
Article 31 and also Articles 14 and 19 and immunizes certain
categories of agrarian reform legislation from attack on the
ground that they violate any of these three articles. Even if any
agrarian reform legislation falling within the specified categories
infringes Articles 14, 19 and 31, it would not be invalid.
9. While dealing with Article 31A of the Constitution of
India, the Apex Court in para 8 of the aforesaid judgment holds
that the second proviso says that even where a law makes any
provision for acquisition by the State of any estate and thus falls
within one of the categories specified in Article 31A, it would not
qualify for immunity under the provisions of that Article, if it
seeks to acquire any portion of the land held by a person under
his personal cultivation which is within the ceiling limit
applicable to him under any law for the time being in force and
such a law, in order to be valid, would have to provide for
payment of compensation at a rate which shall not be less than
the market value of the land sought to be acquired. If further
holds that this provision is couched in negative language and it
imposes a fetter on the exercise of the legislative power of the
State, and this limitation is the measure of fundamental right
conferred on the owner of the land. It holds that the restriction
on legislative competence and conferment of right on the holder
of the land within the ceiling limit are complementary to each
other, and they are merely two different facets of the same
provision.
10. The Apex Court, in the aforesaid decision, clearly
expressed the view that the second proviso to clause (1) of
Article 31A does confer a fundamental right to provide for
payment of compensation at a rate not less than the market value
of the land thereof. Shri Justice V.R. Krishna Iyer (as he then
was), who wrote separate but concurring judgment, also
expressed the view that the second proviso to clause (1) of
Article 31A creates a fundamental right. In the same para of the
aforesaid judgment, the Apex Court also rejected the contention
that but for the second proviso even if a law authorizing
acquisition of land within the ceiling limit did not provide for
payment of compensation, it would be protected from
invalidation under Article 31A. The Court held that, that was
not the result, which the Parliament favoured.
11. In the decision of the Apex Court in the case of K.P.
Plantation Private Limited and another v. State of Karnataka,
decided by the Constitution Bench and reported in
(2011) 9 SCC 1, the question involved was regarding validity of
Section 110 of the Karnataka Land Reforms Act, 1961, which
empowered the authority to issue the notification withdrawing
the exemption granted from acquisition under Section 107(1)(vi)
of the said Act. While considering such challenge, the Apex Court
decided the question as to whether the concept of eminent
domain has to be read into Article 300A of the Constitution of
India and in the Statutes enacted to deprive a person of his
property.
12. In para 164 of the aforesaid decision of the Apex
Court, the Objects and Reasons to introduce Article 300A of the
Constitution of India by way of the Fortyfourth Amendment, are
reproduced as under :
“3. In view of the special position sought to be given to
fundamental rights, the right to property, which has
been the occasion for more than one amendment of the
Constitution, would cease to be a fundamental right and
become only a legal right. Necessary amendments for
this purpose are being made to Article 19 and Article 31
is being deleted. It would, however, be ensured that the
removal of property from the list of fundamental rights
would not affect the right of minorities to establish and
administer educational institutions of their choice.
4. Similarly, the right of persons holding land for
personal cultivation and within the ceiling limit to
receive compensation at the market value would not be
affected.
5. Property, while ceasing to be a fundamental right,
would, however, be given express recognition as a legal
right, provision being made that no person shall be
deprived of his property save in accordance with law.”
13. In para 166 of the aforesaid decision of the Apex
Court, it is stated that Article 300A of the Constitution of India
reveals as under :
“1. Right to acquire, hold and dispose of property has
ceased to be a fundamental right under the Constitution
of India.
2. Legislature can deprive a person of his property only
by authority of law.
3. Right to acquire, hold and dispose of property is not
a basic feature of the Constitution, but only a
constitutional right.
4. Right to property, since no more a fundamental
right, the jurisdiction of the Supreme Court under
Article 32 cannot be generally invoked, aggrieved person
has to approach the High Court under Article 226 of the
Constitution.”
14. In the case of eminent domain, two tests are required
to be satisfied, viz. (i) the acquisition is for public purpose, and
(ii) the payment of adequate compensation. In para 178, the
Apex Court held in the aforesaid decision that the principles of
eminent domain as such, are not seen incorporated in
Article 300A, as we see, in Article 30(1A), as well as in the
second proviso to Article 31A(1) though we can infer those
principles in Article 300A. In para 181, it is held that public
purpose is, therefore, a condition precedent for invoking
Article 300A. It holds in para 178 that the second proviso to
Article 31A(1) prohibits the legislature from making a law which
does not contain a provision for payment of compensation at a
rate not less than the market value which follows that a law
which does not contain such provision shall be invalid and the
acquisition proceedings would be rendered void.
15. Para 189 of the aforesaid decision is most relevant,
and it is reproduced below :
“189. Requirement of public purpose, for
deprivation of a person of his property under
Article 300A, is a precondition, but no compensation or
nil compensation or its illusiveness has to be justified by
the State on judicially justiciable standards. Measures
designed to achieve greater social justice, may call for
lesser compensation and such a limitation by itself will
not make legislation invalid or unconstitutional or
confiscatory. In other words, the right to claim
compensation or the obligation to pay, though not
expressly included in Article 300A, it can be inferred in
that article and it is for the State to justify its stand on
justifiable grounds which may depend upon the
legislative policy, object and purpose of the statute and
host of other factors.”
It is held by the Apex Court that the right to claim compensation
or the obligation to pay, though not expressly included in
Article 300A, it can be inferred in that article and it is for the
State to justify its stand on justifiable grounds which may depend
upon the legislative policy, object and purpose of the statute and
host of other factors.
16. In para 192, the Apex Court has made a distinction
between the cases of “no” compensation and “nil” compensation.
It has been held that a law seeking to acquire private property for
public purpose cannot say that “no compensation shall be paid”.
However, there could be a law awarding “nil” compensation in
cases where the State undertakes to discharge the liabilities
charged on the property under acquisition and onus is on the
Government to establish validity of such law.
17. In para 221, the Apex Court has answered the
reference, and clause (e) therein being relevant, is reproduced
below :
“221(e) Public purpose is a precondition for
deprivation of a person from his property under
Article 300A and the right to claim compensation is
also inbuilt in that article and when a person is
deprived of his property the State has to justify both
the grounds which may depend on scheme of the
statute, legislative policy, object and purpose of the
legislature and other related factors.”
18. In the decision in the case of Laxman Lal (Dead)
Through LRs. and another v. State of Rajasthan and others,
reported in (2013) 3 SCC 764, the Apex Court has explained the
doctrine of eminent domain to mean that it is the right or power
of a sovereign State to appropriate the private property within
the territorial sovereignty to public uses or purposes, which is
inherent in the Government. Article 300A of the Constitution of
India states that no person shall be deprived of his property save
by authority of law. The Apex Court has held in para 16 of the
said decision that though the right to property is no longer a
fundamental right but the constitutional protection continues
inasmuch as without the authority of law, a person cannot be
deprived of his property. If the State intends to appropriate the
private property without the owners' consent by acting under the
statutory provisions for compulsory acquisition, the procedure
authorized by law has to be mandatorily and compulsorily
followed.
19. The law laid down by the Apex Court in the aforesaid
judgments can be summarized as under :
(1) Right to acquire, hold and dispose of the
property has ceased to be a fundamental right under
the Constitution of India, but it continues to be a legal
or a constitutional right, namely that no person can be
deprived of his property save and except by and in
accordance with law, which can be enforced by
invoking jurisdiction under Article 226 of the
Constitution of India and not under Article 32.
(2) Article 300A as well as Article 31A with
second proviso in the Constitution of India contain a
power of eminent domain to appropriate the private
property, which should satisfy two tests (i) the
acquisition is for public purpose, and (ii) the payment
of adequate compensation, which should not be less
than the market value of the land.
(3) The second proviso below clause (1) of
Article 31A of the Constitution of India confers an
independent fundamental right to get the payment of
compensation at a rate not less than the market value
of the land thereof, and if the law authorizing
acquisition of the land does not make any such
provision, then it would not qualify for protection or
immunity under Article 31A of the Constitution of
India and it can be declared as void.
(4) There is a distinction between the cases of “no”
compensation and “nil” compensation. The law
seeking to acquire the private property for public
purpose cannot say that no compensation shall be
paid. However, there could be a law awarding nil
compensation in cases where the State undertakes to
discharge the liabilities charge on the property under
acquisition.
(5) It is the constitutional obligation upon the State
to see that a person gets compensation at a rate not
less than the market value of the land acquired, and if
it wanted to defend the enforcement of fundamental
right under the second proviso below clause (1) of
Article 31A of the Constitution of India, it is for the
State to justify its stand on justifiable grounds. Thus,
the burden of proof lies upon the State.
20. The Land Acquisition Act, 1894 is a piece of legislation
enacted to exercise the power of eminent domain to compulsorily
acquire the land by extinguishing the rights therein of the persons
or the owners. Section 4 deals with publication of preliminary
notification and inviting objections, the consideration of which is
done under Section 5A of the said Act by granting hearing on the
objections, if any, raised and the ultimate declaration that the
land is required for public purpose is done by issuing declaration
in the notification, as required by Section 6 of the said Act.
21. Section 11 deals with the enquiry and passing of the
award by the Collector and it contemplates that while making the
award, the Collector needs to determine (i) the true area of the
land, (ii) the compensation which in his opinion should be
allowed for the land, and (iii) the apportionment of the said
compensation among all the persons known or believed to be
interested in the land, of whom, or of whose claim, he has
information, whether or not they have respectively appeared
before him.
22. Section 12 of the said Act is relevant and it is
reproduced below :
“12. Award of Collector when to be final.(1)
Such award shall be filed in the Collector's office and
shall, except as hereinafter 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 among the persons interested.
(2) The Collector shall 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.”
The provision states that the award shall be filed in the
Collector's office and shall, except as provided in the Act, 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 among the persons
interested. Subsection (2) of Section 12 mandates that the
Collector shall 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.
23. Section 18 of the Land Acquisition Act gives a right to
the owner or 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. Section 18 of the Land Acquisition Act being
relevant is reproduced below :
“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:
(3)
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, subsection (2), or within six months from the date
of the Collector's award, whichever period shall first
expire.”
It would thus be clear that the person interested, who has
received the compensation under protest, is required to state in
his application for reference the grounds on which he objects to
the compensation awarded by the Collector within six weeks
from the date of the award when either he was present or
represented by a counsel or an agent, or within six weeks from
the date of receipt of the notice from the Collector sent under
Section 12, subsection (2) or within six months from the date of
the award made by the Collector, whichever period shall first
expire.
24. Section 23 of the Land Acquisition Act deals with the
matters to be considered in determining compensation, and
subsection (1) therein states that in determining the amount of
compensation to be awarded for the land acquired under this Act,
the Collector shall take into consideration – first, the market
value of the land at the date of the publication of the notification
under Section 4, subsection (1). The said provision also deals
with the other aspects of the matter, which are not relevant for
the purposes of the present case.
25. Sections 4, 6, 11, 12, 18 and 23 of the Land
Acquisition Act have been enacted to discharge the constitutional
obligation of the State under Article 300A of the Constitution of
India to provide for payment of the compensation for acquisition
of land, which shall not be less than the market value of the land
and to effectuate the fundamental right conferred by the second
proviso below Article 31A of the Constitution of India to get the
market value of the land in the mode and manner prescribed
under the provisions of the Land Acquisition Act. If the Collector
wanted to urge that (i) the procedure prescribed under
Sections 4, 6, 11, 12, 18 and 23 of the Land Acquisition Act has
been mandatorily and compulsorily followed, and (ii) the person
is not entitled to seek enforcement of the constitutional
obligation under Article 300A or the fundamental right
conferred by the second proviso below Article 31A, the burden
of proof shall be upon the Collector to justify its stand by
necessary pleading and proof.
Law laid down by the Apex Court on the question
of bar of limitation under the provisions of the
Land Acquisition Act :
26. In the backdrop of the aforesaid provisions of the law
and the decisions of the Apex Court, the question of bar of
limitation, as prescribed in clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land Acquisition Act,
will have to be considered. The decisions of the Apex Court
construing the expression “from the date of the Collector's award”
need to be seen.
27. In the decision of the Apex Court in the case of Raja
Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer
and Anr., reported in AIR 1961 SC 1500, the award was passed
under Section 11 of the Land Acquisition Act on 2531951. No
notice of this award was given to the appellant, as required by
Section 12(2) of the said Act and it was only on or about
1311953 that he received information about the making of the
said award, the appellant filed an application under Section 18 of
the said Act for determination of market value of the land on
2421953. The case of the appellant before the Apex Court fell
under the later part of clause (b) of the proviso, as is clear from
para 4 of the judgment. The Land Acquisition Officer took the
view that the application was barred by time under the proviso to
Section 18 of the said Act and he rejected it. In a writ petition,
the learned Single Judge set aside this order and directed
consideration of the application on its own merits in accordance
with law. In appeal before the Division Bench, the decision of the
learned Single Judge was set aside and the application under
Section 18 of the said Act was dismissed as barred by time. This
was the subjectmatter of challenge before the Apex Court and
the appeal was allowed by setting aside the decision of the
Division Bench and restoring the decision of the learned Single
Judge. The question was whether the application filed under
Section 18 of the said Act was in time or not.
28. In the aforesaid decision, the Apex Court considered the
question as to what is the meaning of the expression “the date of
the Collector's award” used in clauses (a) and (b) in the proviso
below subsection (2) of Section 18 of the Land Acquisition Act.
The Apex Court considered the provisions of Sections 11, 12(2)
and 18 of the said Act. In the cases falling under clause (a) of
the proviso, it is held that if the award is pronounced in the
presence of the parties whose rights are affected by it, it can be
said to be made when pronounced. If the date for
pronouncement of the award is communicated to the party and
it is accordingly pronounced on the date previously announced,
the said 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. In the cases falling under clause (b) of the
proviso, it is held that if without notice of the date of its
pronouncement the 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 “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. The Apex Court
has opined that 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.
29. The view taken by the Apex Court in the aforesaid
decision in the cases covered by clause (b) is supported by
reasons. The Apex Court considered that 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 the cases of award made under the Act cannot be reasonably
excluded. The Apex Court holds that 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. The Apex Court held that the Legislature
recognized that making of the award under Section 11 followed
by its filing under Section 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 the obligation upon the
Collector tends to show that the literal and mechanical
construction of the said clause would be wholly inappropriate
and failure of the Collector to discharge his obligation under
Section 12(2) produce curious result of making ineffective, the
right of the party to make an application under Section 18, and
this result could not possibly have been intended by the
Legislature.
30. A three Judges' Bench of the Apex Court in the case of
State of Punjab v. Mst Qaisar Jehan Begum and another, reported
in AIR 1963 SC 1604, it was a case where the Collector made an
award on 25101953, the amount of compensation was paid on
2271955, and on 3091955, the respondents made an
application to the Collector for reference under Section 18 of the
Land Acquisition Act, alleging that they knew about the award on
2271955 when they received the compensation amount. The
Civil Court to which the reference was made, came to the
conclusion that the reference was barred by time by expressing a
doubt as to whether the respondents were entitled to count the
period of limitation from the date of knowledge, but even if it is
assumed to be so, the date of knowledge must be taken to be
24121954, when the respondents made an application for
interim payment and, therefore, the reference sought was barred
by time. The High Court allowed the revision application and set
aside the order of the Civil Court and directed dealing of the
reference on its own merits. This was the subjectmatter of
challenge before the Apex Court.
31. A three Judges' Bench of the Apex Court in the
aforesaid judgment considered the provisions of Section 12 of the
Land Acquisition Act and the decision in Raja Harish Chandra Raj
Singh's case, cited supra, earlier decided by it. On interpretation
of clause (a) in the proviso under Section 18, it is held that when
a party is present in a 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. The Apex
Court recorded the finding in respect of clause (b) of the proviso
that admittedly the award was never communicated to the
respondents. While dealing with the contention that the date of
knowledge must be taken to be 24121954, the Apex Court
observed that the 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 which
must be made known either actually or constructively. If the award
is communicated to a party under Section 12(2) of the Act, the
party must be obviously fixed with knowledge of the contents of
award whether he reads it or not. The Court held that the date
of knowledge in the said case should be taken as 2271955 when
the amount of compensation was paid and, therefore, the
application for reference made on 3091955 was clearly within a
period of six months from the date of that award and it was not
barred by time within the meaning of the second part of
clause (b) of the proviso to Section 18 of the said Act.
32. In the decision of the Apex Court delivered by a Bench
of two Judges in the case of State of Punjab and another v.
Satinder Bir Singh, reported in (1995) 3 SCC 330, it was a case
where the Collector made his award under Section 11 of the
Land Acquisition Act on 181970. He issued the notice under
Section 12(2) of the said Act, which was received by the
respondent on 2291970. The compensation was received under
protest on 2991970 and thereafter an application under
Section 18 of the said Act was made on 2111971 seeking
reference to the Civil Court. The Collector rejected the said
application as barred by limitation. The High Court in revision
set aside the decision of the Collector, holding that the notice did
not contain all the details as to how the market value of the land
was evaluated; the respondent was not in a position to know the
determination of the compensation for making an application for
reference under Section 18 and the Court held that it was not a
proper notice and the limitation prescribed under Section 18(2)
of the said Act was not applicable. The Apex Court set aside the
decision of the High Court and rejected the application under
Section 18 of the said Act as barred by limitation.
33. In para 8 of the aforesaid decision, the Apex Court has
held that from a conjoint reading of Sections 11 and 12 of the
Land Acquisition Act, it is clear that notice is only an intimation
of making of the award requiring the owner or person interested
to receive compensation awarded under Section 11 of the said
Act. It holds that it is not necessary that a notice should contain all
the details of the award including his consideration and its manner
of determination of the compensation, as opined by the learned
Judge of the High Court. It is held that the statutory operation of
limitation mentioned by Section 18(2) of the said Act does not
depend on the ministerial act of communication of notice in any
particular form when the Act or Rules has not prescribed any form.
It holds that the limitation begins to operate from the moment
the notice under Section 12(2) is received or as envisaged by
Section 18(2). The said decision has been followed by the
another Bench of two Judges of the Apex Court in the case of
Poshetty & Ors. v. State of Andhra Pradesh, reported in
1996(4) CCC 15 (SC).
34. The Division Benches of this Court in the cases of Smt.
Laxmibai Narayan Patil & Anr. v. State of Maharashtra & Anr.,
reported in 1998(1) CCC 104 (Bom.), and Sadashiorao Balaji
Satone and others v. The State of Maharashtra and others,
reported in 2004 AIHC 989, relying upon the decision of the Apex
Court in Satinder Bir Singh's case, cited supra, have held that the
period for obtaining the certified copy of the award is not liable
to be excluded and the limitation prescribed under Section 18(2)
of the Land Acquisition Act starts running from the date when
the notice disclosing the true area of the land and the
compensation awarded was received by the claimant.
35. A Bench consisting of two Judges of the Apex Court
again considered the question in its decision in the case of
Bhagwan Das & Ors. v. State of U.P. and Ors., reported in
AIR 2010 SC 1532. It was a case where an award was made by
the Land Acquisition Collector on 1432007 and the appellants
were served with the notice on 25102007 to appear before the
Collector and receive the amount of compensation. The
appellants learnt that the award was made on 1432007 and
immediately, therefore, moved an application seeking reference
under Section 18 of the Land Acquisition Act on 16112007.
The Collector rejected the application as barred by time, as
prescribed under Section 18(2) of the said Act. A writ petition
preferred was dismissed on 1712008, and this is how the matter
was before the Apex Court. The Apex Court allowed the appeal,
set aside the decisions and directed consideration of the matter
on merits.
36. The Apex Court considered the two important
questions – (i) whether the Collector can condone the delay in
filing an application seeking reference if sufficient cause is
shown, and (ii) whether the period of six months under
clause (b) of the proviso to Section 18 of the Land Acquisition
Act should be reckoned from the date of knowledge of the award
of the Collector or from the date of the award itself. The Court
held that Section 5 of the Limitation Act cannot be invoked for
extension of the period of limitation prescribed under the proviso
to Section 18(2) of the Land Acquisition Act and the Collector
cannot entertain any application for extension nor extend the bar
for seeking the reference, even if there are genuine and bona fide
grounds for condoning the delay. Relying upon the two decisions
of the Apex Court in the cases of Raja Harish Chandra Raj Singh
and Mst. Qaisar Jehan Begum, cited supra, decided in the years
1961 and 1963 respectively, the Apex Court reiterated the view
that the words “date of the Collector's award” occurring in
proviso (b) to Section 18 of the Land Acquisition Act require 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.
37. In para 11 of the aforesaid decision in the case of
Bhagwan Das, the Apex Court has considered the consequences of
literal and mechanical construction of the expression “from the
date of the Collector's award” employed in clause (b) in the
proviso below subsection (2) of Section 18 of the said Act, and it
is as under :
“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
'date of the Collector's award' 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 landowner 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 nondiscriminatory, 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 regard as referring to the date
of knowledge of the essential contents of the award, and
not the actual date of the Collector's award.”
(Emphasis supplied)
The Apex Court considered that the award is only an offer on
behalf of the Government, and 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, and
invariably the land loser has to make a reference under
Section 18 of the Land Acquisition Act for enhancement of
compensation. The right to seek a reference to the Civil Court
does not accrue unless the award is made. The Court has held
that if the words “date of the Collector's award” are literally
interpreted, the effect would be that on expiry of six months
from the date of the award, even though the claimant had no
notice of the award, he would lose the right to seek a reference,
and this will lead to arbitrary and unreasonable discrimination
between those who are notified of the award and those who are
not notified of the award. It is further held that unless the
procedure under the Act is fair, reasonable and nondiscriminatory,
it will run the risk of being branded as being
violative of Article 14 as also Article 300A of the Constitution of
India.
38. In the aforesaid decision in in the case of Bhagwan
Das, the Apex Court also considered the question of burden of
proof. It is held in para 13 as under :
“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
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 compensation amount for the
acquired land, or had attested the
Mahazar/Panchanama/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.”
Thus, the initial onus is on the person making reference seeking
the benefit of six months' period from the date of knowledge 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 Land Acquisition Act, and that he did not
have the knowledge of the contents of the award during the
period of six months prior to filing of the application for
reference. It is held that the onus is discharged by asserting
these facts on oath and it is not expected to prove negative. The
Court further holds that 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 said Act, or that he had knowledge of the contents of the
award. If further holds that 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
compensation amount for the acquired land, or had attested the
Mahazar/Panchanama/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 any statement on oath or evidence.
The Court held that in the absence of 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.
39. In the decision of a three Judges' Bench of the Apex
Court in the case of Premji Nathu v. State of Gujarat and Anr.,
reported in AIR 2012 SC 1624, it was a case where the Collector
issued the notice to the appellant under Section 12(2) of the
Land Acquisition Act, which was received by him on 2221985.
Similar notices were received by the other land owners on
2221985 and 2321985. As the copy of the award was not
annexed with the notice, the appellant obtained the certified
copy thereof through his Advocate and then submitted an
application dated 841085 to the Collector for making reference
to the Court for enhancement of compensation with solatium
and interest. The Reference Court did not frame any issue of
limitation, but concluded that the land owners were interested to
enhancement of compensation. However, the application under
Section 18(2)(b) of the said Act was dismissed as barred by
limitation. The Apex Court allowed the appeal, holding that the
claimants were entitled to enhancement of compensation, as was
held by the Reference Court along with all statutory benefits.
40. The Apex Court in para 15 of the aforesaid decision,
considered the question as to whether the service of notice under
Section 12(2) of the said Act was sufficient to start counting the
period of limitation and held that the copy of the award was not
served upon the appellant along with the notice and without
that, the appellant could not have effectively made an
application for seeking reference. It was held that on behalf of
the State Government, no evidence was produced before the
Reference Court to show that copy of the award was sent to the
appellant along with the notice, and this aspect was totally
ignored by the Reference Court, which mechanical concluded
that the application was barred by time, as specified in
Section 18(2)(b) of the said Act, and the High Court also
committed a serious error in approving such a view.
41. In the recent decision of a three Judges' Bench of the
Apex Court in the case of Madan and another v. State of
Maharashtra, reported in (2014) 2 SCC 720, it was a case where
the award was passed on 1681985, and in the reference under
Section 30 of the Land Acquisition Act disposed of on 491991,
it was held that the appellants are entitled to compensation in
respect of 20 acres of acquired land and the remaining parties
for compensation in respect of remainder of the acquired land.
The claimants received the compensation on 591991, and
within a period of six weeks therefrom, the reference was sought
under Section 18 of the said Act for enhancement of
compensation. The Reference Court enhanced the compensation,
and in an appeal filed before the High Court, it was held that the
reference was barred by limitation. This is how the case was
before the Apex Court. It was held that for the first time
on 491991 (date of the order under Section 30 of the Act) that
the appellants came to know that they were entitled to
compensation and the quantum thereof. The reference made
under Section 18 was within a period of six weeks from
491991, and the High Court committed an error in holding that
the reference was barred by limitation.
42. In para 11 of the aforesaid decision, the Apex Court
has held that one of the options open to the Collector is to make
a reference to the question of apportionment of compensation to
the Court under Section 30 of the said Act, and the other is to
relegate the parties to the remedy of the suit. It is held that in
either situation, the right to receive the compensation under the
award would crystallize after apportionment is made in favour of
the claimant. It is only thereafter that the reference under
Section 18 of the said Act for enhanced compensation can be
legitimately sought by the claimant, in whose favour the order of
apportionment is passed either by the Court in reference under
Section 30 of the said Act, or in the civil suit, as the case may be.
Summary of the law laid down by the Apex Court :
43. Keeping in view the law laid down by the Apex Court
in the decisions in the cases of (a) Raja Harish Chandra, (b) Mst.
Qaisar Jehan Begum, (c) Bhagwan Das, (d) Premji Nathu, and
(e) Madan and another, cited supra, the following principles
emerge
(i) In the cases falling under clause (a) of the
proviso below subsection (2) of Section 18 of the
Land Acquisition Act, if the person making the
reference (“the claimant”) was present or represented
before the Collector at the time when the award is
made, it can be said to be made when it is so
pronounced and the period of limitation starts
running from that date, and after expiry of the period
of six weeks from such date, the reference has to be
dismissed as barred by the law of limitation.
(ii) If the date for pronouncement of the
award is communicated to the claimant and it is
accordingly pronounced on the date so previously
announced, the said award is said to be
communicated to the claimant concerned even if he is
not actually present on the date of its pronouncement
and the period of limitation shall lapse after six weeks
from the date of such pronouncement.
(iii) In the cases falling in first part of clause (b) in
the proviso below subsection (2) of Section 18 of the
said Act, what is relevant to be established is the
receipt of notice from the Collector under Section 12,
subsection (2) of the Land Acquisition Act, and the
period of six weeks prescribed therein starts running
from the date of either actual or constructive
knowledge of essential contents of the award and it is
not a mere knowledge of the fact that the award has
been made is sufficient, to hold that the period of
limitation starts running from such date without there
being any communication, bringing to the notice of
the party concerned, the essential contents of the
award, either actual or constructive.
(iv) In the cases falling in second part of clause (b)
in the proviso below subsection (2) of Section 18 of
the Land Acquisition Act, the same principles
laid down in respect of first part of clause (b) therein,
would apply for starting the period of limitation, but
in such a case, the limitation would expire after
expiry of six months from the date of the Collector's
award.
(v) In all the cases, the dispute shall pertain only
to the starting and running date or dates, as the case
may be, to count the period of limitation. In none of
the cases, the Courts are empowered or competent to
condone the delay caused in seeking reference after
expiry of the period of limitation so prescribed.
44. No doubt, the two decisions of the Apex Court in the
cases of Satinder Bir Singh and Poshetty & Ors., which are
followed by the Division Benches of this Court in the cases of
Smt. Laxmibai Narayan Patil and Sadashiorao Balaji Satone, deal
with the controversy of limitation, as contemplated by clause (b)
of the proviso to subsection (2) of Section 18 of the Land
Acquisition Act. The ratio of the decision of the Apex Court in
Satinder Bir Singh's case is that it is not necessary that a notice
under subsection (2) of Section 12 of the said Act should
contain all the details of the award including his consideration
and its manner of determination of the compensation, and that
the statutory operation of limitation does not depend on the
ministerial act of communication of notice in any particular form
when the Act or Rules has not prescribed any form.
45. The ratio of the decision in aforesaid two cases, which
is followed in other cases, is directly in conflict with the ratio of
the decisions of the Apex Court in the cases of Raja Harish
Chandra Raj Singh, Mst. Qaisar Jehan Begum, Bhagwan Das,
Premji Nathu, and Madan and others. The decisions of the Apex
Court in the cases of Satinder Bir Singh, and Poshetty and others
are rendered by the two Judges, whereas, the decision of the
Apex Court in the cases of Mst. Qaisar Jehan Begum, Premji
Nathu, and Madan are delivered by the three Judges. The law
laid down by the larger Benches is, therefore, binding. The Apex
Court in its decision in the case of Mst. Qaisar Jehan Begum has
enhanced the ratio of the earlier Division Bench decision in the
case of Raja Harish Chandra Raj Singh, and it is held that the
limitation shall start running from the date of either actual or
constructive knowledge of the essential contents of the award
and it is not a mere knowledge of the fact that the award has
been made, that is sufficient, to hold that the period of limitation
starts running from such date.
The questions of law for determination :
46. It is not the case of any of the parties that either the
Collector or the Court exercising jurisdiction under Section 18 of
the Land Acquisition Act to determine the market value of the
land, has power to condone the delay caused in filing reference
beyond the period stipulated in clauses (a) and (b) of the proviso
below subsection (2) therein. In fact, the point is no longer
res integra in view of the decision of the Apex Court in the case
of Bhagwan Das, cited supra, wherein it has been held that
Section 5 of the Limitation Act cannot be invoked for extension
of the period of limitation prescribed under the proviso to
Section 18(2) of the said Act and the Collector cannot entertain
any application for extension nor extend the bar for seeking the
reference, even if there are genuine or bona fide grounds for
condoning the delay. While considering the bar of limitation
under Section 18 of the said Act, it is not the question of
condonation of delay, which is required to be considered, but it
is the question of starting point of limitation, which is required
to be considered. Hence, the following two questions are
required to be considered
(i) what should be the starting point of limitation,
as prescribed in clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land
Acquisition Act?, and
(ii) upon whom the burden of proof lies to
establish that the reference preferred under
Section 18 of the said Act is barred by the law of
limitation?
As to Question No.(i) :
47. The Court, acting under Section 18 of the Land
Acquisition Act, has to determine the objections as regards
(i) the true area of the land, (ii) the compensation, which, in his
opinion, should be allowed for the land, and (iii) the
apportionment of compensation amongst all the persons to
whom it is payable or the persons known or believed to be
interested in the land. Such an award passed under Section 11
of the said Act is merely an offer for compensation by the
Collector. The offer has to be communicated to the persons
having a right to receive compensation. A statutory right to
approach the Court for determination of the market value of the
land, provided under Section 18 of the said Act, accrues only
upon communication of the essential contents of the award. The
limitation prescribed under Section 18 of the said Act, therefore,
starts running from the date of actual or constructive knowledge
of the essential contents of the award.
48. Section 18 of the said Act provides an opportunity to
raise grounds on which the objection to the award is taken and it
confers a power upon the Court, rather than the Collector, to
determine the market value of the land under acquisition. This
opportunity to raise objection is not an empty formality, but it is
for effectively exercising the fundamental right under the second
proviso below clause (1) of Article 31A of the Constitution of
India for determination by the Court of the true market value of
the land under acquisition. Such a fundamental right cannot be
effectively exercised without knowing actually or constructively
the essential contents of the award, i.e. the mode, manner and
the basis of determination of the offer received from the
Collector. In the absence of such knowledge, no protest can be
raised, as contemplated by subsection (1) of Section 18 of the
said Act, and there is no jurisdiction with the Collector or the
Court, acting under Section 18, to permit the amendment of the
Reference to raise additional grounds or additional
compensation after getting knowledge of the essential contents
of the award.
49. The very object of subsection (2) of Section 12 of the
said Act to give notice of award only to such persons interested
as were not present personally or by their representatives when
the award was made, is to enable them to raise effective
objections to such award to have a market value of their land
under acquisition. Otherwise, it would produce curious result of
making ineffective this right, and such result could not possibly
have been intended by the Legislature, as observed by the Apex
Court in Raja Harish Chandra Raj Singh's case, cited supra.
50. Applying the aforesaid principles of law laid down by
the Apex Court, it will have to be decided in the facts and
circumstances of each case the date from which the period of
limitation prescribed under clauses (a) and (b) of the proviso
below subsection (2) of Section 18 of the Land Acquisition Act
shall start running. The question No.(i) is, therefore, answered
accordingly.
As to Question No.(ii) :
51. Coming to the second question of law regarding
burden of proof, no doubt the normal principle is that the burden
to prove that the claim is within limitation is upon the person or
party, who comes before the Court, to establish it and it is only
upon leading evidence that the onus shall shift upon the
respondent or the other side. The Apex Court in the cases of
Laxman Lal and K.P. Plantation Private Limited, has held, as has
been pointed out in the initial paras, that it is the constitutional
obligation upon the State to pay the compensation at a rate
which is not less than the market value of the land, as prescribed
under the second proviso to clause (1) of Article 31A of the
Constitution of India. It is, therefore, for the State to justify its
stand that all the steps, as are required to be taken under
subsection (2) of Section 12 read with Section 18 of the said Act,
have been followed, and that the claimant has failed to approach
the Court within the time prescribed under clause (a) and (b)
below proviso to subsection (2) of Section 18 of the Land
Acquisition Act. If the Collector or the State wanted to prevent
the claimant from seeking enforcement of constitutional
obligation or fundamental right, then the initial burden is upon it
to make out a case by necessary pleadings and proof by leading
evidence to show that the claim is barred by the law of limitation,
as prescribed under clauses (a) and (b) below subsection (2) of
Section 18 of the said Act, which shall be subject to evidence in
rebuttal.
52. Even the language of the clauses (a) and (b) below
subsection (2) of Section 18 of the said Act requires the Collector
to establish the fact that the claimant, as contemplated by
clause (a), was present or represented before him at the time
when the award was made, and in other cases covered by
clause (b), that the claimant had actual or constructive
knowledge of the essential contents of the award and that the
reference was not preferred within a period of six weeks or six
months, as the case may be, from the date of such knowledge.
The Collector being in custody of the entire record, it is for him to
plead and prove that the reference preferred under Section 18 of
the said Act was barred by the law of limitation. It is, therefore,
for the State, acting through the Collector, to discharge its burden
if it wanted to deny a fundamental right to the claimant to get
the market value of the land acquired determined by the Court,
by seeking reference under Section 18 of the said Act.
53. It is not expected from the claimant to plead and
prove the negative facts that he was not present or was not
represented before the Collector when the award was made, as
contemplated by clause (a) below subsection (2) of Section 18 of
the Land Acquisition Act, or any other cases covered by clause (b)
therein, that he was not having the actual or constructed
knowledge of the essential contents of the award so as to prefer a
reference under Section 18 of the said Act either within a period
of six weeks or within a period of six months, as the case may be.
No doubt, that it would be advisable for the claimant to make
such pleading in the reference petition under Section 18 of the
said Act, but absence of such pleading would not be enough to
deprive the claimant of a right to seek a reference for
compensation at a market value of the land under acquisition.
The question No.(ii) is answered accordingly.
54. On the question of limitation, the specific averment in
para 10 of the reference application under Section 18 of the Land
Acquisition in the present case is as under :
“10. The applicant came to know about the passing of
award on receipt of notice u/s 12(2) of Land Acquisition
Act on 28/6/1990 and 10/7/1990. However, he was
not aware about the contents of the award. He received
the certified copy of the order on 24/7/1990 and at that
time they got full knowledge of the contents of the
award. The application is within time. The
compensation amount has been received by the applicant
under protest.”
The Collector at whose instance the land was acquired, had
raised the question of limitation and the appellant was crossexamined.
The relevant portion of which, is reproduced below :
“The award was passed on 2/5/90. I have filed copy of
Award on record. It is at Ex.35. I had gone through the
contents of the same. Its contents are correct. It is not
correct to say that the reference application filed by me
was out of limitation. It is not correct to say that the
case is not tenable in this Court.”
The appellant has been extensively crossexamined by the
Collector but not on the point of limitation. It is, therefore,
amply proved that though the award was passed on 251990, the
claimant got the knowledge of the essential contents of the award
upon receiving the certified copy on 2471990 and the reference
was preferred under Section 18 of the Land Acquisition Act on
881990, which was within a period of six months from the date
of the knowledge of the essential contents of the award. It was,
therefore, perfectly within the period of limitation.
As to Point Nos.(c) and (d) :
55. In paras 10 and 14, the Reference Court has held that
the market value of the land acquired is required to be
determined at the rate of Rs.10.50 per square foot, whereas in
para 21, the Reference Court has held that the market value of
the land acquired was Rs.8.50 per square foot, and therefore, the
applicant is entitled to get compensation at the rate of
Rs.9,25,630/ per hectare (in the operative portion, the
compensation is granted at the rate of Rs.9,25,650/ per hectare).
The reliance is placed upon Exhibits 28 and 29, which are the
letters said to have been issued by the Tahsildar in the Office of
Collector of Stamps and Valuation at Chandrapur, which show
the consideration of Rs.15,000/ for sale of 278.73 sq.mtrs., Plot
No.23 in Survey No.76/2. Exhibit 30 relied upon is also the
communication by the Deputy Registrar (Stamps), addressed to
third person, calling upon him to pay the stamp duty on the
valuation of land at Rs.1,380/. None of these three documents
at Exhibits 28, 29 and 30 can be considered as an evidence to
determine the market value of the land Survey No.76/2A, which
is under acquisition.
56. Be that as it may, if the value of the land in Exhibit 28
is to be taken into consideration, it is of Rs.15,000/ for sale of
278.73 sq.mtrs. of land, which is equivalent to 3,000 sq.ft., the
rate would be Rs.5/ per square foot. Exhibit 30, the
communication, does not indicate either the land survey number
or the area in respect of which the valuation of Rs.3,180/ is
shown. Hence, it is not relevant for determination of
compensation. Except this, there is no other document relied
upon by the Reference Court to grant the enhancement of
compensation. The Reference Court has, therefore, committed an
error in enhancing the compensation to Rs.9,25,650/ without
there being any evidence in support of it.
57. The Reference Court has referred to the document at
Exhibit 93, which is the sale index, showing sale of 3,400 sq.ft. of
land for Rs.3,400/ on 1961984. The another portion of the
same land having area of 3,000 sq.ft. was sold for Rs.3,000/ on
27111984. These sale indices indicate the value of the land at
the rate of Re.1/ per square foot. Even if 10% is added towards
increase per year, the amount would not exceed the rate of
Rs.1.70 per square foot. If the market value is calculated at this
rate in respect of the land under acquisition, then it would
certainly be less than Rs.1,75,000/ per hectare awarded by the
Land Acquisition Officer. The Reference Court has, therefore,
committed an error in granting enhancement, ignoring the rate
reflected by Exhibit 93, the sale index in respect of the same land.
If the market value of the land in question is to be determined by
assuming that it is the nonagricultural land, then necessary
deduction on account of development will also have to be
considered. All such aspects are ignored by the Reference Court.
The enhancement granted cannot, therefore, be sustained.
58. Shri Maheshwari, the learned counsel appearing for
the claimant, has urged that the appellant – Maharashtra State
Electricity Board (now Maharashtra State Power General
Company Limited) had failed to file written statement to oppose
the claim for enhancement of compensation made in the
reference. He has, therefore, urged that the appellant was not
entitled to file an appeal challenging such enhancement. The
contention cannot be accepted. It is for the claimant to establish
the entitlement for the market value of the land. Even if the
appellant had failed to file written statement opposing the claim
for enhancement, that by itself would not be enough to deny the
appellant the right of appeal, which is available in law, as
provided under Section 54 of the Land Acquisition Act. The
appellant is entitled to point out to the Court that the claimant
has to stand on his legs, and in the absence of any evidence in
support of the findings recorded, the appellant is entitled to
challenge such findings by filing an appeal. The appeal cannot be
dismissed on that ground, and the contention is, therefore,
rejected.
59. In the result, the appeal is allowed. The judgment and
order dated 3042003 passed by the learned Joint Civil Judge,
Senior Division, Chandrapur, in Land Acquisition Reference Case
No.28 of 1991, is hereby quashed and set aside. The Land
Acquisition Reference Case No.28 of 1991 stands dismissed. No
order as to costs.
60. It is informed that the appellant has deposited in this
Court the entire decretal amount of Rs.38,38,618/. The
claimant is permitted to withdraw certain amount upon
furnishing security to the satisfaction of the Reference Court, and
the claimant has actually withdrawn such amount. In view of
this, the claimant is directed to redeposit the amount so
withdrawn, in this Court within a period of eight weeks from
today, failing which the appellant shall be entitled to enforce the
security so furnished to get the amount realized along with
interest at the rate of 4% per annum from the date of withdrawal
till its redeposit. The appellant shall be entitled to withdraw the
balance amount lying in deposit in this Court along with interest,
if any accrued thereon.
61. At this stage, Shri Maheshwari, the learned counsel for
the respondent No.1/claimant, seeks stay of the aforesaid portion
of the order permitting the appellant to enforce the security to
realize the amount so withdrawn. In view of the fact that this
Court has already granted the claimant six weeks' time for
redeposit of the amount in this Court, the question of enforcing
the order for a period of eight weeks by the appellant does not
arise. Hence, the request of the learned counsel for the
respondent No.1/claimant for stay of the order is rejected.
JUDGE.
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