THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.10998 of 2009 Date: 16th November, 2009 Between:- B.J.Jawahar .. Petitioner And The Project Director and Special Collector (Land Acquisition) Outer Ring Road, HUDA, Tarnaka, Hyderabad and another .. Respondents THE HON'BLE SRI JUSTICE P.S.NARAYANA W.P.No.10998 of 2009 ORDER:- This Court issued rule nisi on 5-6-2009. 2. Counter affidavit and reply affidavit also had been filed. Records also had been produced. 3. Sri Vasudeva Reddi representing Sri Ravinder Reddy, the learned Counsel representing writ petitioner had taken this Court through the contents of the affidavit filed in support of the Writ Petition and also pointed out to the non-service of notice and also explained how to reckon the period in the facts and circumstances and would maintain that in the light of the decisions relied upon, the Writ Petition to be allowed. 4. On the contrary, Sri Ravindra had produced the records and would maintain that the endorsement ‘notice not claimed’ cannot be taken as non-service of notice and hence since the application was not made in accordance with Section 18 of the Land Acquisition Act (hereinafter, in short, referred to as ‘the Act’ for the purposes of convenience), the relief prayed for in the Writ Petition cannot be granted. 5. This writ petition is filed for a Writ of Mandamus declaring the action of the respondents in not referring the petitioner’s application dt.18-12-2006 under Section 18 of the Act to a competent Civil Court against the Award No.44/LA/ORR/Unit-VI/2005, dt.2-5-2006, pertaining to an extent of Ac.1-02 gts., in Sy.No.132, Narsingi village and Gram Panchayat, Rajendranagar Mandal, Ranga Reddy District, as arbitrary, illegal, null and void and violative of Article 300-A of the Constitution of India and contrary to the provisions of the Act and consequently direct the respondents to forthwith refer the application dt.18-12-2006 filed by the petitioner under Section 18 of the Act to a competent Civil Court for fixing fair, just and reasonable compensation to the land of the petitioner and to pass such other suitable orders. 6. It is stated that the petitioner is the absolute owner of the land having purchased the same under registered sale deed bearing document No.2420/2000, admeasuring Ac.1-03 gts., from K.Gyaneshwar Rao, S/o.late Paramaiah, and document No.2184/2000 admeasuring Ac.0-09 gts., in Sy.No.132 through registered document No.638/2000, dt.10-2-2000, from K.Gyaneshwar Rao, in all admeasuring Ac.2-17 gts., of Narsing village and Gram Panchayat, Rajendra Nagar Mandal, Ranga Reddy District. Thereafter, the land was converted into plots and the lay out was sanctioned by the Narsingi Gram Panchayat. After purchase of the land, the petitioner is in possession of the same and enjoying as true and absolute owner. 7. Further it is averred that the 1st respondent herein acquired the land of the petitioner out of the above said land in Sy.No.132, an extent of Ac.1-02 gts., for the purpose of construction of Outer Ring Road junction, while issuing notification ORR.No.256, dt.21-3-2006. The said land was from plot No.79 to 84 of the lay out plan sanctioned by the Narsingi Gram Panchayat. Thereafter the respondent passed Award No.44/LA/ORR/Unit-VI/2005, dt.2-5-2006, for respective land fixing the compensation and issued notice of Award under Section 12(2) of the Act. The above notice was received by the petitioner on 21-11-2006 and the compensation was received under protest. 8. It is also stated that aggrieved by the Award passed by the 2nd respondent, the petitioner filed application under Section 18 of the Act with request to refer the matter to competent Civil Court for fixing fair, just and reasonable compensation on 18-12-2006 and the same was acknowledged by the respondents. The respondents having received the application in time and kept the same pending and aggrieved by the same, the Writ Petition is being filed. 9. It is also stated that notice under Section 12(2) of the Act was given to the petitioner on 21-11-2006 and the compensation was paid on 18-12-2006. Dissatisfied with the Award made by the respondent, the petitioner received compensation under protest and submitted application immediately on 18-12-2006 to the 2nd respondent. The application made by the petitioner is within limitation as stipulated sun 18 of the Act. It is mandatory on the part of the respondents to refer the application under Section 18 of the Act to the competent Civil Court but the respondents failed to do so. The petitioner made application on 29-1-2007 with a request to refer the application dt.18-12-2006 to the competent Civil Court and the same was received and acknowledged by the respondents on 22-1-2007 and addressed a letter notice dt.21- 1-2007 by enhancing the market value and offered to pay an amount of Rs.15,78,000/-, but the petitioner refused to receive the same and addressed a letter with a request to refer the application dt.18-12-2006 to the competent Civil Court on 5-4-2007. The said application of the petitioner is lying with the respondents for the past two years and no action had been taken. Several other further facts also had been narrated. 10. In the counter affidavit filed by the 2nd respondent, it is stated that on receipt of requisition from the Estate Officer, HUDA, the Land Acquisition proceedings have been initiated to acquire the land bearing Sy.No.132 extent Ac.1-02 gts., situated at Narsingi village for formation of Outer Ring Road junction. The D.N. was issued vide A.P.Gazette ORR No.254, dt.18-3-2006 and the D.D. was issued vide A.P.Gazette ORR No.256, dt.21-3-2006 the preliminary valuation was approved @ Rs.6.00 lakhs per acre. After following due procedure laid down in the Act, the Award was passed vide No.A/44/LA/Unit- VI/2006, dt.10-5-2006. It is also stated that as per enjoyment survey conducted, an extent of Ac.1-02 gts., beonging to the petitioner is under acquisition. Further it is also stated that the Award had been passed on 10-5-2006. Notice under Section 12(2) of the Act was sent to the petitioner through registered post acknowledgement due to plot No.390, Vivekananda Colony, Kukatpally, Hyderabad and the petitioner refused to receive the letter. Hence, Section 12(2) notice was deemed to have been served on the petitioner on 7-7-2006 and the contention that he received it on 21-11-2006 is not correct. 11. It is also stated that an amount of Rs.7,34,715/- had been paid to the petitioner towards compensation for the land acquired in Sy.No.132, an extent of Ac.1-02 gts., on 18-12-2006. The writ petitioner received the compensation under protest and filed a petition on the same day i.e., on 18-12-2006 stating that the compensation amount is very less. It is also stated that the petitioner had not given any letter seeking reference to Civil Court on 18-12-2006. It is stated that the petitioner gave a letter requesting Section 18 reference only on 22-1-2007. 12. Further it is stated that the petitioner had submitted application dt.20-1-2007 referring to his letter dt.18-12-2006 wherein it is stated that the compensation amount of Rs.8,27,568/- for the land acquired in Sy.No.132, extent Ac.1-02 gts., is meagre, unjust and insufficient and requested to refer the matter for determination of the correct value under Section 18 of the Act to the competent Civil Court. 13. It is also stated that as mentioned supra, Section 12(2) notice was sent to the petitioner through registered post acknowledgement due on 5-7-2006 and the petitioner refused to receive the notices and the same was returned to the respondents’ Office. It is also stated that the notice under Section 12(2) of the Act was deemed to have been served on the petitioner on 7-7-2006 and the petitioner gave a letter seeking Section 18 reference only on 22-1-2007 that is beyond the statutory period permitted under the Act. Hence, the reliefs prayed for cannot be granted. 14. In the reply affidavit filed, it is stated that the petitioner is a businessman and frequently touring and will be away from Hyderabad. The allegation of the respondent that Section 12(2) notice was sent to the petitioner through Registered Post with Acknowledgement Due, but the same was returned as refused is totally incorrect and misleading. In fact, the petitioner never refused any such notice, on the other hand the endorsement of the postal authorities on the envelop shows that the cover returned “as unclaimed”. The said endorsement clearly shows that the petitioner was not available at that point of time. Hence, the endorsement unclaimed cannot be construed as refusal or deemed service. 15. It is also stated that the petitioner received the compensation in respect of his acquired land on 18-12-2006 under protest. The petitioner after receiving the compensation came to know that it is inadequate and not in accordance with the prevailing market value. Immediately, the petitioner filed application under Section 18 of the Act on 20-1-2007 which was acknowledged by the respondent on 22-1- 2007. The cause of action for filing application under Section 18 arises only after receipt of compensation as contemplated under Section 31 (2) of the Act. Since the application was filed within two months from the date of receipt of the compensation under protest on 18-12-2006, the application dt.20-1-2007 under Section 18 of the Act is within limitation. 16. It is also stated that the Land Acquisition Officer to establish that Section 12(2) was served upon the petitioner or the petitioner had the knowledge of the contents of the Award. The petitioner came to know about the contents of the Award and the quantum of compensation for the first time only on 18-12-2006 when he received the compensation under protest. Hence, the application of the petitioner dt.20-1-2007 is well within limitation. This is the stand taken in the reply affidavit. 17. As already referred to supra, the records also had been produced before this Court. This Court also had gone through the records produced before this Court. Reliance was placed on SINGARENI COLLIERIES CO.LTD. v. C.RAGHAVENDER RAO AND ANOTHER[1] wherein at paras 8, 9 and 10 the learned Judge observed as hereunder:- “On a reading of Section 18 of the Act one would get an impression at the first blush that a reference can be sought under it, irrespective of the fact whether the claimant receives compensation or not. However, if it is read in conjunction with proviso to sub-section (2) of Section 31 of the Act, it becomes clear that the cause of action to seek reference under Section 18 of the Act would arise, only on receipt of compensation, that too under protest. Receipt of the amount under protest is treated as a sine qua non to seek reference under Section 18 of the Act. It is difficult to imagine that reference can be sought, without receiving the amount at all. The period of two months, for seeking reference under Section 18 must be calculated from the date on which the amount of compensation was received, under protest. In the present case, the application was presented within two months from the date of receipt of the amount i. e. 22. 12. 1988. Therefore, the objection raised by the petitioner, in this regard, cannot be sustained in law. The second objection is about the truthfulness of the submission of the very application under Section 18 of the Act. On his part, the petitioner stated that he submitted the application on 21. 1. 1989 and he submitted a reminder or a further application only on 21. 1. 2000. It is urged that the very fact that the first respondent did not take any follow up action for about 11 years would certainly throw doubt upon it. How so ever strong the suspicion that is surrounding the application of the first respondent may be, his statutory right to seek reference under Section 18 cannot be defeated on the basis of the same. The only authority, who can dispute the submission of the application is the first (sic. second) respondent. He did not raise any objection in this regard. Further, it is not denied that the second respondent addressed a letter to the first respondent as late as on 14. 11. 2000 stating inter alia that the application dated 21. 1. 1989 submitted by the first respondent was not traceable on account of the fact that the records in the office were burnt by the extremists on 14. 6. 1989. Therefore, this Court is not inclined to accept the contention of the petitioner that the reference ought not to have been made. One fact, which however impresses this Court is that the petitioner cannot be mulcted with the liability to pay the interest of different categories for about a decade during which the first respondent remained indifferent and inactive. Even if the delay on his part in pursuing the remedy cannot defeat his right, the petitioner cannot be made liable to pay interest for the said period. The first respondent cannot derive benefit of his own lapses.” Reliance also was placed on K.BHASKARAN v. SANKARAN VAIDHYAN BALAN [2] a n d LEELA MATHEW v. KRISHNAMOORTHY [3] relating to the notice under what circumstances it can be said that the notice in fact had been duly served. 18. In the light of the clear stand taken in the affidavit filed in support of the Writ Petition coupled with the stand taken in the reply affidavit and even if the stand taken in the counter affidavit filed by the respondents to be taken as true, in the light of the facts and circumstances it cannot be said that the application is made beyond limitation as permitted by law in the light of the decisions referred to supra. Hence, this Court is of the considered opinion that the Writ Petition to be allowed and accordingly the same is hereby allowed. No order as to costs. _______________________ Justice P.S. Narayana November, 2009 smr [1] 2008 (2) ALD 829 [2] 1999 – CIVCC – 3- 385 [3] 2007- TLKER-0-3052