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Dhulabhai Aminbhai M... v. Special Land Acquisi...
Judgment Summary — S.K. Keshote, J.
Factual and Procedural Background
This is an appeal under Section 54 of the Land Acquisition Act, 1894, by the claimant-appellant against the judgment and award dated 29th December 1997 of the II Extra Assistant Judge, Kheda at Nadiad in Land Reference Case No. 688/91 (main). The Reference had been dismissed on the ground that it was barred by limitation.
The underlying award in the land acquisition matter was passed by the Land Acquisition Officer on 14-10-1980. A notice under Section 12(2) of the Act, dated 25th October 1988 (with a bottom date showing 26th October 1988), was produced on record. The claimant-appellant received the first instalment of compensation on 3-11-1988 (payment slip at mark 40/3). The claimant-appellant filed a reference application on 20th December 1989 challenging the award; the Reference Court rejected that application as barred by limitation. The present appeal challenges that rejection.
Legal Issues Presented
- Whether the notice under Section 12(2) of the Land Acquisition Act, 1894 sent to the claimant-appellant was valid for starting the period of limitation under Section 18(2) of the Act, despite a clerical discrepancy in dates on the notice and absence of a copy of the award enclosed with the notice.
- Whether the claimant-appellant's receipt of the first instalment of compensation without protest precludes him from making a reference under Section 18(1) and consequently whether the Reference Court correctly dismissed the reference as barred by limitation.
Arguments of the Parties
Appellant's Arguments
- The notice under Section 12(2) (produced as a certified copy dated 25th October 1988) is a manufactured or concocted document — this assertion was supported by pointing out that the notice bears two differing dates (25th October 1988 under the issuing authority's signature and 26th October 1988 at the bottom).
- The notice, although issued by the authority, was never served upon or received by the claimant-appellant.
- The notice did not state the contents of the award nor was a copy of the award enclosed with the notice; on that basis the claimant-Appellant contended the notice was defective or invalid for triggering limitation.
Tribunal/Court's Response (as reflected in the opinion)
- The date discrepancy on the notice is a clerical mistake or accidental slip and, in the absence of any pleaded or proved mala fide or oblique motive by the issuing authority, does not render the notice concocted or invalidate it.
- There is no evidence on record to support the contention that the notice was not received; in fact, the claimant-appellant received the first instalment of compensation on 3-11-1988, which the Court treated as evidence that notice had been given and that the claimant-appellant had knowledge of the award.
- Even if the notice did not contain the award's detailed reasons or a copy of the award, settled law permits limitation to run from the date the Section 12(2) notice is received; moreover, accepting compensation without protest bars later reference under Section 18.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Punjab & Anr. v. Satinder Bir Singh, (1995) 3 SCC 330 | Notice under Section 12(2) is an intimation of making the award; limitation under Section 18(2) begins from receipt of that notice. It is not necessary that the notice contain all details of the award or its reasons. Receiving compensation without protest finalises the matter between the Collector and the person interested. | The Court relied on this authority to hold that the Section 12(2) notice, even if not containing detailed reasons, can start limitation and that acceptance of compensation without protest precludes a reference. |
| Poshetty & Ors. v. State of A.P., (1996) 11 SCC 213 | Collector must issue notice under Section 12(2) to persons not present; service of notice is ministerial; it is not necessary that a copy of the award be supplied with the notice. Failure to make the application within the statutory period bars the claim. | The Court used this precedent to reinforce that a Section 12(2) notice need not be accompanied by a copy of the award and that service/communication in a particular form is not a precondition for limitation to run. |
| Land Acquisition Officer v. Shivabai & Ors., (1997) 9 SCC 718 | It is settled that copy of the award need not be served with the Section 12(2) notice; if parties are absent when award is passed, the Collector/Land Acquisition Officer shall give immediate notice; limitation runs from date of notice as per proviso to Section 18(2). | The Court applied this settled principle to conclude that the absence of a copy of the award with the notice did not invalidate the notice for the purpose of starting the period of limitation. |
Court's Reasoning and Analysis
The Court proceeded in a step-by-step manner:
- Identified the central factual matrix: the award dated 14-10-1980, the Section 12(2) notice dated 25th/26th October 1988, and the claimant's receipt of the first instalment of compensation on 3-11-1988 (payment slip mark 40/3).
- Considered the appellant's challenge that the notice was manufactured because it bore two different dates. The Court found no evidence of mala fide or oblique motive by the issuing authority and characterized the discrepancy as a clerical mistake/accidental slip with no material prejudice to the appellant. The Court noted the appellant failed to demonstrate any prejudice caused by the discrepancy.
- Addressed the contention that the notice was not received. The Court observed no such plea had been raised before the Reference Court and that there was no evidence on record to support non-receipt. Given the payment of the first instalment to the claimant on 3-11-1988, the Court accepted that notice had been given and received by the claimant-appellant.
- Examined the argument that the notice did not state the contents of the award nor enclosed a copy. The Court referred to statutory provisions (Section 12(1) and (2); Section 18 and its proviso; Section 31 proviso) and to authoritative Supreme Court decisions which hold that a Section 12(2) notice need not contain the award's detailed reasons nor be accompanied by a copy of the award for limitation to begin.
- Applied precedent to conclude limitation under Section 18(2) commences on receipt of the Section 12(2) notice (or as envisaged by that subsection), and that acceptance of compensation without protest (as per proviso to Section 31(1)) precludes later reference under Section 18(1).
- Noted timing: the claimant-appellant accepted the first instalment on 3-11-1988 but filed the reference only on 20-12-1989, which was well beyond the statutory periods (six weeks from receipt of notice or within six months from date of award as provided in Section 18(2)).
- Concluded that on the combined grounds of limitation and acceptance of compensation without protest, the Reference Court correctly held the reference barred and rejected it; there was no illegality warranting interference in the present appeal.
Holding and Implications
Holding: The First Appeal is DISMISSED.
Implications:
- Direct effect: The Reference Court's rejection of the claimant-appellant's reference application (Land Reference Case No. 688/91) on the ground of limitation and on the basis that the claimant accepted the first instalment of compensation without protest stands affirmed; the claimant-appellant's remedy by reference under Section 18 was time-barred and/or forfeited by acceptance without protest.
- No new legal principle or precedent was established by this judgment; the Court applied settled authorities to the facts and concluded there was no basis to interfere with the Reference Court's decision.
End of summary — based exclusively on the content of the provided opinion.
JUDGMENT
S.K. Keshote, J.
1. This appeal under Section 54 of the Land Acquisition Act, 1894, is directed by the claimant-appellant against the judgment and award dated 29th December 1997 of the II Extra Assistant Judge, Kheda at Nadiad passed in Land Reference Case No. 688/91 (main).
2. The reference of the claimant-appellant has been dismissed on the ground that it is barred by limitation. Hence this appeal before this Court.
3. Heard the learned counsel for the appellant.
4. The learned counsel for the appellant does not dispute that the award has been passed by the Land Acquisition Officer in this case on 14-10-80. The notice under S. 12(2) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act, 1894") was sent to the claimant-appellant. A certified copy of this show-cause notice has been produced, which is taken on record of this case. This notice is dated 25th October 1988. The learned counsel for the appellant has made twofold contentions with reference to the notice. Firstly, it is contended that this notice is a manufactured or concocted document. In support of this contention, he has drawn attention of this Court to the fact that this notice contains two dates. One is date on the bottom and another date under the signature of the issuing authority and there is discrepancy in these two dates, i.e. in one date at the bottom it is mentioned 26th October 1988 whereas below the signature of issuing authority, this date is mentioned as 25th October 1988. Next contention has been made that this notice though has been issued by the issuing authority it was not received or served upon the claimant-appellant.
5. I do not find any merits in any of the contentions aforesaid of the learned counsel for the appellant as raised with respect to this notice. Section 12(2) of the Act 1894 provides that the Collector shall give immediate notice of his award to such persons interested as are not present personally or by their representative when the award is made. Sub-section 1 of Section 12 of the Act 1894 lays down that the award made under Section 11 of the said Act 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 appeared before the Collector or not, of the true area and value of the land and apportionment of compensation amongst the persons interested. In this case, there is no dispute that notice was given immediately but the discrepancy has been pointed out only of the dates. I fail to see what for the Collector shall manufacture or concoct the document against the appellant. The learned counsel for the appellant has failed to point out any oblique motives or any material before the Reference Court as well as before this Court where the Collector can go to the extent of manufacturing or concocting a document against the appellant. This discrepancy in two different dates in absence of any oblique motives or mala fide on the part of the issuing authority is nothing but only a clerical mistake or accidental slip and it has nothing to do with the merits of the matter. I fail to see how this discrepancy otherwise is of any importance and value when on being asked by the Court from time to time, the learned counsel for the appellant failed to point out what prejudice has been caused to the appellants by this discrepancy. In the judgment of the Reference Court, what I find is that no plea of oblique motive or mala fide against the issuing authority has been taken and merely on the basis of this clerical error or accidental slip, the learned counsel for the appellant sought to raise all these objections in the First Appeal. Moreover, when the plea of the appellant was that he was not served with the notice how far this point otherwise has any relevance in the matter.
6. Be that as it may, so far as the second contention raised regarding validity of this notice is concerned, it is suffice to say that no such plea has been raised by the appellant before the Reference Court. It is easy to say that this notice has not been received, but the learned Counsel for the appellant is unable to point out any evidence on the record in support of this contention. Moreover, from the facts which have come on the record, it can safely be assumed, presumed and accepted that the claimant-appellant has notice of this award and notice thereof has been given to him only by way of this notice of the Collector under sub-section 2 of Section 12 of the Act 1894. From the document at mark 40/2, a copy of the notice under Section 12(2) of the Act 1894, the Tribunal found as a fact that it did not contained signature of the claimant. The learned Counsel for the appellant does not dispute this factual aspect noticed by the Tribunal. Alongwith this notice, the list of claimants to whom compensation has been awarded has also been sent and the claimant-appellant has received the first instalment of the amount of compensation vide payment slip produced at mark 40/3 on 3-11-88. The advocate who was appearing for the claimant-appellant before Reference Court and in this Court has not disputed the fact that the first instalment of the amount of compensation has been received by the claimant-appellant on 3-11-88. It is not the case of the claimant-appellant that he got notice of the award from the source other than the notice of the Collector under Section 12(2) of the Act, 1894. If we go by the facts of the date of award, date of notice of Collector under Section 12(2) of the Act, 1894, and the date on which the first instalment of the amount of compensation has been paid and received by the claimant-appellant, I am satisfied that this plea of non-receipt of this notice as raised by the learned Counsel for the appellant before this Court is without any merits. It is only an argument which on the face of it appears to be an argument contrary to the facts admitted by the claimant-appellant.
7. This matter may also be examined from another aspect. From the judgment of the Reference Court, I find that the main thrust of argument of the learned Counsel appearing for the claimant-appellant before it was that the contents of the award have not been stated in the notice or the copy of the award has not been enclosed thereto. The learned Reference Court, on the basis of facts of the receipt of payment of the first instalment of compensation has presumed that the claimant-appellant must be within the knowledge of the contents of the award. I do not consider it to be appropriate to examine how far this approach of the learned Reference Court is legally correct, but even it is presumed, assumed and accepted that the contents of the award were not incorporated in the notice under Section 12(2) of the Act, 1894, or the copy of the award was not enclosed thereof, still on this ground, the notice cannot be held to be invalid and inoperative. Section 18 of the Act, 1894, provides that any person interested who has not accepted the award, may by written application to the Collector, require that the matter be referred by the Collector for determination of the Court with regard to his objection made as to the measurement of land, the amount of compensation, the person to whom it is payable or apportionment of compensation amongst the persons interested. The application shall state the grounds on which objection to the award is taken. Any such application is to be made if the person making it was the person or representative before the Collector at the time when he made his award within six weeks from the date of Collector's award and in other case, within six weeks of the receipt of notice from the Collector under Section 12(2) or within six months from the date of the Collector's award, whichever period shall first expire. On making of award under Section 11 of the Act, 1894, the Collector shall tender payment of compensation awarded by him to the persons interested entitled thereto according to award and shall pay it to them unless prevented by someone or in any of the contingency mentioned in the Section itself. Proviso to sub-section 1 of Section 31 of the Act, 1894, is relevant and which provides that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount and further that no person who has received amount otherwise then under protest, shall be entitled to make any application under Section 18 of the Act 1894.
8. In the case of State of Punjab & Anr. v. Satinder Bir Singh, reported in 1995) 3 SCC 330. Their Lordships of Supreme Court held that notice under Section 12(2) of the Act, 1894, is only intimation of making of the award requiring the owner or the person interested to receive compensation awarded under Section 11 of the Act, 1894. On receipt of the notice, if the person interested receives compensation without protest obviously no reference need be made. Determination of compensation becomes final and contents bind the parties. When he received the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18(1) would arise. At that juncture it will be open to the person interested either to make an inspection of the award which was conclusive between him and the Collector by operation of sub-section (1) of Section 12, or seek a certified copy of the award from the Collector and the contents. Thereon he could make necessary objection for the determination inter alia, of compensation for the land. Their Lordships of Supreme Court have further held that it is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of compensation. It is not incumbent that the person interested should immediately make reference application on his receiving compensation under Section 18 of the Act, 1894. In other words, what Their Lordships of Supreme Court said that receiving the amount and making reference application are not simultaneous. Statutory operation of limitation mentioned by Section 18(2) does not depend on the ministerial act of communication of notice in any particular form. Limitation begins to operate from the moment the notice under Section 12(2) of the Act, 1894, is received or as envisaged by Section 12(2) of the Act, 1894. In para. 9 of that judgment. Their Lordships of Supreme Court held as under:
"The notice in the present case contained the amount awarded. The are acquired was not in dispute. Under these circumstances, the learned Judge was clearly in error in holding that since the notice did not contain all the details of the consideration and as to how the compensation has been determined, the notice was not a proper notice and therefore limitation did not begin to run from the date of the receipt of the notice and thereby the rejection of the application was not legal."
9. In the case of Poshetty & Ors. v. State of A.P., reported in (1996) 11 SCC 213. Their Lordships of Hon'ble Supreme Court held that the Collector is required to issue notice of his award to such of the persons interested who were either not present personally or through their representatives when the Collector made his award. Sub-section (2) of Section 12, therefore, requires him to give immediate notice of award to such interested persons and not simply the communication of the award. The service of notice is a ministerial act and the Act did not intend to supply the copy of the award. Proviso to sub-section (2) of Section 18 prescribes the limitation within which the application for reference under sub-section (1) of Section 18 is required to be made and the failure thereof puts an end to the right of the claimant to seek a reference under Section 18. Communication of the award is not a precondition. Their Lordships of Hon'ble Supreme Court in this case confirmed the judgment of the High Court under which it was held that it is not necessary that copy of the award should be served upon the claimants.
10. Lastly, another case of which reference has to be made is the case of Land Acquisition Officer v. Shivabai & Ors. reported in (1997) 9 SCC 718 wherein Their Lordships of Hon'ble Supreme Court held that it is now settled law that it is not necessary that the award or its copy should be served to the claimant alongwith notice under Section 12(2) of the Act, 1894. If the parties are not present on the date the award came to be passed, then the Collector/Land Acquisition Officer shall give immediate notice of his award. Limitation begins to run from the date of notice as per proviso to Section 18(2) of the Act, 1894.
11. From the facts of this case, I find that in the notice the date of the award has been given, list of the claimants has also been enclosed and as per the form, the first instalment of compensation has been paid to the claimant. Be that as it may, otherwise also, it is no more res integra that in the notice, the contents of the award need not be mentioned as well as the copy of the award is not required to be sent. In view of this fact, this contention raised before the tribunal and also before this Court that the notice under Section 12(2) of the Act, 1894, does not contain reasons and that the award has not been enclosed thereto is of no substance. The appellant has received the notice of passing of the award in all circumstances on 3-11-88 when the first installment of compensation was received by him. But in case it would have been really a case of having any objection against the award or where he was intending to file any reference application, he should not have accepted that amount without protest. Moreover, if the claimant-appellant has not received the award or contents thereof were not within his knowledge, he should have raised an objection or protest at the earliest available opportunity, i.e. immediately after receipt of the first installment of compensation. But the claimant-appellant has not filed any objection application as early as possible after receiving first installment of compensation within the period of six weeks as provided under Section 18(2) of the Act, 1894. This reference application has been filed on 20th December 1989, i.e. after more than a rear of receipt of the notice under Section 12 of the Act, 1894, as well as the first installment of the amount of compensation. In view of this fact, it has rightly been presumed by the reference court that the claimant-appellant has notice of the contents of the award and further that he has accepted the first installment of compensation without any protest and objection. It appears to be a case where the appellant had no objection against the award but subsequently somebody appears to have instigated him and he woke up and has chosen to file the application for reference of the matter to the Civil Court. In fact, both on limitation as well as on the ground that the first installment of compensation has been accepted without protest, the reference application filed by claimant-appellant was not competent and it has rightly been rejected by the Reference Court.
12. The net result of the aforesaid discussion is that I do not find any illegality in the judgment of the Reference Court rejecting the reference application of the claimant-appellant which calls for interference of this Court in the appeal. In the result, this First Appeal fails and the same is dismissed.
Appeal dismissed.
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