IN THE HI6H COURT OF CHHATTES6ARH BILASPUR FIRSTLAPPEAL fM) N0. OF 2009 APPELLANT : PLAINTEFF Bedram S/0 Jatiram 6abel, olr aged about 52 years, R/0 Village- Dholnar, Tahsil- Sakti, District •It^ ^'•9'^Ja"J9ir-chamPa (c-6-) .•M.V:."' ,^:.-- £^.;-^ ^ ...^. ^n ^^c^rffi |A'. 0i^ VERSUS ri!8 RESPONDENTS : 1. State of Chhattisgarh, through DEFENDANTS Collector, Distrit- Janjgir Champa, (C.G.) 2. Land Acquisition Officer, Sakti, District- Janjgir-Champa (C.G.) MEMORAN&UM OF FIRST APPEAL UN&ER SECTION 54 OF THE LANO ACQUISmON ACT. 1894 REA& WTTH SECTCON 96 OF THE CODE OF CIVIL PROCE&URE. r/-* 'iSiS^S^^S MC^ HtGH COURT OF CHHATrBGARH AT BIU^PUR Sinate Bench: Hon'bte Shri Justice Prashant Kumar Mishra First Aroeal (M»No. 30 of 2009 Bedram Versys State ofChhatUsgarh and anottt®r. ORDER Pretfor 04-08-2010. Sd./- Prasbant Kumar Mis Judge fKwsae""!^^--^^^:^:. . ^^^:^^l:^" f^H;"T5?^3?s35^:s^=Si^3^»3a.33^^ 8 s'\ • / -^- HIGH COURT OF CHHATTISGARH AT BILASWiR Sinate Bench: Hon'bte Shri JusUce Prashant Kumar Mishra AePELLANT RESPONDENTS First Appeal (Mt No. 30 of 2001 Bedram \feisys State of Chhatti^arh araj anrther. Stiri Sunil Sahu, counsel for the appeliant. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondents. MEMQRANDUM W FfflST APPEAL UNDER SECTION 54 OF THE LAND ACQUtSmON ACT. 1894 fSAD MBTH SECTION 96 OF THE CODE OF CIV1L PROCEDURE ORDER 04 .OS^OIO) Heard. (2) This appeat under Section 54 of the Land Acquisitton Act, 1894 (henceforth "the Act") has teen preferred by fhe holder ofthe land whose application under Section 18 of the Act has been dismissed on merits as weil as on the ground that the apptication is barred by limitation. (3) Appetlanfs land bearing Khasra Nos. 54/1,90/1,94,95,97 total area 0.457 tiectares were acquired in Land Acquisition Case No. 160/A- 82/2002-2)03 for constructton of Dhotnar canal. (4) tt is not jn dispute that the award was passed oTi '30-OQ-2SXQ. Tlie appeltant moved his first a^tteation under Section 18 of the Act before the concemed Collector on 10-06-2003. According to the appellant when no action was taken he moved another apptication on 02-(B-2008 whrch was sent to the District Court for adjtKtication. (5) , Leamed counset fbr the appetlant submits that the findir^ recorded by the.Court betow that the appeltant has failed to prove that his land ^'.s ^ ^ >^- -3> R were irrigated, is perverse and has been anived al by misreadir^ of evidence. (6) Before entering into the merits of the matter this Court woukl examine the question as to wh^her the application preferred by the appellant was within tim'rtation or not? (7) The record of Land Acquisition case contains appellant's appSication dated 10-06-^03 which was referred to the District Court by the Land Acquisition OTTicer on 07-05-20(%. There is another a{ylicatk>n fiied by the appellant which he moved before the Land Acquisitton Officer on 02-05-2008. The first apptication dated 10-06-2003 cannot be treated as an application under Section 18 because the award itsetf was passed in the month of October, 2€X)4i.e. after one year and ftaur months of the application dated 10-06-2003. The appetlant's another application was submitted on 02-ce-2008. (8) Section 18(2) of the Act provides that an application under sub Section (1) of Section 18 shal! be made within six weete from the clate of Collector's award, if the person making it was present or refwesented before the Cotlector at the time when he made his enwarel and in crther csses, the appiication can be made wtthin six weete of the receipt of the notice from the Collector under Section 12 (2) or within six months from the date of the Collector's award, whichever period shat! firet expire. From the record it does not appear that the atyellant was present at tte time when award was made. It is also nrt reflected from therecord that arsy notice under Section 12(2) was received by the appellant. Thus the ^appetlant could have moved an apptteation within six months from the date ofColtector'saward. ^K. bii^ il% -^^ -3- In the matter of Bhagwan Das and Oflters Vs. Sfafe ofUUar Pradesh aiwt CWiers reported m 2010 p) S(XS45Vhe Hon'bteSupreme Court has held that if the award is n<* made in the presence of person interested he can make application within six months from the date w which he actually or constructively came to know about the contents of the award. tn para 30 of the report it is obsen/Kl that when a person interested makes an application for reference seeking the benefft of six months' period from the date of lm(wledge, the inilial onus is on him to prove that he (or his representafive) was not present when the award was made, that he did not receive any notice under Section 12(2) of the Act, and ttiat he did not have the tmowledge of the contents of the award during a peri(Kl of six months prior to the Wmg the a lteation for reference. This onus is discharged by asserting these fsKits on oath. He is not expected to prove the negative. Once the initia! onus is dfecharged &y the claimant/person mterested, it is for the Land Acquisition Officer / Coliector to establish that the person inter^ed was preserrt 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. (10) This Court shalt now examine the afylication moved by the ciaimant on 02-05-^)08 to ascertain as to the averments made by the appellant about the knowlec^e. On perusal of this application it would appear that the appeltant has not at a!l stated sbwA the date of knowledae of the contents of the award during a period of SK months pnoF to the filing of the application for reference. !n his statement before the Court also the appellant has not made any statement about the date ^^" ysss^ -I of ((nowtedge. On the contrary he has made statement that he tras received the amount of compenssttion txrt could not state the exact date of receipt of the amount. (11) Thus, apptying the principle (aid down by the Hon'ble Supreme Court in the case of Bhagwan Das and Otlvers Vs. State of OBar Pradesft anef Otfters (supra) it is found that the appellant has failed to discharge the initial burden and thus it is apparent that the applicatton uncter Section 18 of the Act preferred by the appellant was barred by ifmitation. The teamed Court below has not committed any error of law by holding that the apptication for reference preferred by the appellant was barred by limitation. Since the application under Section 18 of the Act was barred by limitation, this Court is not dealing with the merits of the appeai. (12) In view of the above the present appeal fails and is hereby dismissed. --——— —— Prashant Kumar Mishra Judge ^-f