Appeal from Original Decree No.51 OF 2007 Against the judgment and award, dated 9.11.2006 passed by Shri Ganga Sharan Ram Tripathy, L. A. Judge, Bhagalpur in Land Acquisition Reference Case No. 1 of 1992 arising out of L.A. Case No. 5 of 1988-89. … BIHAR RAJYA JAL PARSHAD ----------------------------Appellant. Versus JAI PRAKASH PODDAR & ANR------------------------- Respondents. … For the appellant : Mr. Ray Shivaji Nath, Sr.Advocate and Mr. Indrajeet Singh, Advocate. For respondent no.1 : Mr. Ganpati Trivedi and Mr. Dev Kumar Pandey, Advocates. For the S t a t e : Mr.Anil Kumar Jha, G.A.II and Mr.Samant Kumar Mishra, J.C. to G.A.II. … P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A.Khan,J. This appeal arises out of a reference under Section 30 under the Land Acquisition Act (hereinafter referred to as the „Act‟). Bihar Rajya Jal Parshad (hereinafter referred to as the „Parshad‟), Patna has filed this appeal arising out of Land Acquisition Case No. 5 of 1988- 89 which has been disposed of by the Land Acquisition Judge, Bhagalpur by order dated 9th November, 2006 enhancing the amount of award. The land was acquired for the purpose of building a Sewage Treatment, Sahebganj for which lands of Khata No. 807, Khesra Nos. 892 and 893 having an area of 25 decimals and 43 decimals were acquired. Mr. Ray Shivaji Nath senior counsel appearing on behalf of the Parshad has raised the following issues: 2 (i) The reference is barred by limitation. (ii) The reference is barred by principles of estoppel inasmuch as the award amount has been accepted without protest; and (iii) The quantum of the amount has been increased exorbitantly. I will first take up the issue of limitation. The question of limitation is a question of law and fact both and, therefore, it is essential to examine the facts to determine whether a reference was hit by limitation. A notification dated 16.12.1988 was issued under Section 4 of the Land Acquisition Act and served to the land holder Bishwanath Poddar on 2.4.1990 which was received by Jai Prakash Poddar which would be apparent from the records of the case of the Land Acquisition Officer. In pursuance to the notice an application was filed by Jai Prakash Poddar on 16.4.1990 stating therein that Bishwanath Poddar had died and the applicant i.e. Jai Prakash Poddar was the sole heir of Bishwanath Poddar. Along with the application Jai Prakash Poddar also annexed the memorandum of partition dated 15.1.1990 which shows that other heirs of Bishwanath Poddar had all accepted that Jai Prakash Poddar was the sole heir and had the right to receive the award money. A composite award was prepared on 25.7.1990. In the said award at Ext. A, the name of Bishwanath Poddar finds place at Item No. 8. After preparation of the award, notice was issued again in the name of Bishwanath Poddar under Section 12(2) on 13.8.1990 which is at page 308 of the records of the Land Acquisition Officer. The notice under Section 12(2) was received by Jai Prakash Poddar who went to the office of the Land Acquisition Officer 3 and informed him that he had already filed an application informing the Collector that Bishwanath Poddar had died. In this context learned counsel appearing on behalf of the respondent has referred to letter no. 242 dated 5.10.1990 which is the notice issued to the heirs of Bishwanath Poddar by the Land Acquisition Officer. The notice was issued on 5.10.1990 and the notice was received by the heirs on 7.10.1990. After which an application was filed by the respondent Jai Prakash Poddar on 10.10.1990 that Bishwanath Poddar had died and the heirs had partitioned the property and the land under acquisition had been allocated to the share of Jai Prakash Poddar. The respondent requested the Land Acquisition Officer to prepare the award in his name and to make payment to him after the preparation of the award. On 10.10.1990 as the Kanungo was asked to verify the facts stated in the application dated 10.10.1990 the verification of the Kanungo is also on the record on the reverse side of the application dated 10.10.1990. After verification of the facts stated in the application the name of Jai Prakash Poddar was substituted in the award Ext. A on 10.10.1990. The cheque was also handed over to the respondent Jai Prakash Poddar on 10.10.1990. I may point out that it is the case of the respondent that the award amount was accepted on protest. Learned counsel for the appellant has submitted that the award was signed on 25.7.1990 and, therefore, the date for reckoning the limitation would run from 25.7.1990 whereas the respondent rightly submits that 10.10.1990 would be the date which would be relevant for the purpose of calculating the limitation. 4 After the award is prepared and notice issued to the land holder, there are two options open for the land holder. He may either accept the award money with or without object with respect to the adequacy of quantum fixed by the Collector, or, he has the choice of not accepting the award granted. On protest or objection the Collector shall make a reference under Section 18 of the Act to the Land Acquisition Judge. Reference to Section 18 is relevant not only for the purpose of deciding the question of limitation but also with respect to the second contention raised on behalf of the Parshad which is the reference is barred by estoppel as according to the appellant, the respondent had accepted the award amount without any sort of protest . Section 18 reads as follows: 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: Provided that every such application shall be made- (a) if the person making it was present or represented before the Collector at the time when he made his award, (within six weeks) from the date of the Collector’s award; (b) in other cases within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date the Collector’s award whichever period shall first expire. Therefore, on perusal of Section 18 it is clear that the 5 reference should be made within six weeks from the date of the Collector‟s award or within six months from the date of receipt of notice under Section 12(2) which ever period shall expire first. The learned counsel for the appellant submits that the award was prepared on 25th of July, 1990 and reference was made on 30.10.1990. The notice under Section 12(2) on Bishwanath Poddar was issued on 13.8.1990 and, therefore, counting six weeks from 13.8.1990 the time would expire on 29.9.1990 and, therefore, the reference to the Land Acquisition Judge is barred by limitation. For this purpose learned counsel for the appellant referred to certain cases. One the of the cases referred to the case reported in (1995) 3 SCC 330 State of Punjab & Anr. Vs. Satinder Bir Singh. In that case the notice under Section 12(2) was received by the respondent on 22.9.1970 and he received compensation under protest on 29.9.1970. The application under Section 18 was filed on 21.1.1971 seeking reference to the Civil Court. The Collector rejected the application on 12.1.1973 which was challenged in the High Court under Section 115 as provided in the Local Amendment Act of the State of Punjab. The High Court allowed the revision and the order of the High Court came to be challenged in the aforesaid case. The Supreme Court held that the application was time barred as it had not been filed within six weeks from the date of receipt of the notice under Section 12(2) which was on 22.9.1970. The facts of this case and the cases referred to i.e. Officer on Special Duty (Land Acquisition) & Anr. Vs. Shah Mani Lal Chandu Lal reported in (1996) 9 SCC 414 and the case of State of Bihar Vs. Sanjay 6 Kumar Singh reported in 1998 (1) PLJR 778 are all with respect to issues where the reference was barred by Section 18 (2) (b) of the Land Acquisition Act. The facts of the aforesaid cases differ from the facts of the present case. Section 12(2) of the Act provides that the Collector shall give notice of the award to persons interested who are not present personally or through their representatives when the award is made. In this case it is an admitted fact that notice went to Bishwanath Poddar both under Section 12(2) of the Act. The notice was repeatedly sent to Bishwanath Poddar although the fact that he had died was brought to the notice of the Land Acquisition Officer by an application filed on 5.10.1990. It is well settled that a decree award or an order against a dead person would amount to a nullity. In view of the materials and documents on records which I have referred to, it cannot be said that due diligence was not exercised by the heirs of Bishwanath Poddar. In fact on receipt of notice under Section 9(2) the respondent had informed the Land Acquisition Officer and requested him to substitute his name. The subsequent notice under Section 12(2) again therefore, was wrongly sent in the name of Bishwanath Poddar and the respondent rightly brought to the notice of the L.A.O. the fact that the notice was defective. Subsequent correction of the name in the award was made on 10.10.1990 therefore, it cannot be said that the notice was duly and validly served on the respondents on 13.8.1990. For all purposes the actual date of service of notice under Section 12(2) has to necessarily be the date on which it was received by 7 the heir of Bishwanath Poddar and as such the limitation can only run from the date on which the notice was received which is 10.10.1990 and as such I find that the reference was not barred by limitation. The second question which was urged on behalf of the Parshad was the reference was barred by principles of estoppel. There are two requirements which are sine quo non for the purpose of reference under Section 18 of the Land Acquisition Act. The first being that the land holder must file an application before the Collector that the matter should be referred for determination to the Court in any of the issues mentioned in Section 18 or he may accept the award amount under protest. The argument on behalf of the Parshad is that the compensation was accepted without protest and that there was no reference by the Collector to the Civil Court. It has been submitted that the voucher which would show that the compensation was accepted with protest is not on the record. This fact is true. While answering the issued raised by the Parshad learned counsel has referred to Chapter 10 of the Executive Instructions in the Land Acquisition Manual. Clauses 126 and 127 deal with this aspect of the matter. Clause 127 provides that the voucher should be kept in the district office and as such if the Parshad had any doubts about this aspect of the matter it could have been raised and verified before the Land Acquisition Judge. However, this argument is nullified on another ground. The counsel for the respondents has drawn the Court‟s attention to the reference made by the Collector with respect to the claim of the respondents which is on the record. It would be presumed that the Collector has made a reference, 8 the respondents must have accepted the compensation money with objection, or else the reference would have not been forwarded for disposal before the Civil Court. I, therefore, hold and find that the issue raised by Parshad is not justifiable. The third contention of the learned counsel for the Parshad is that the compensation amount enhanced Rs. 20,213/- per Kattha is unreasonable and the value of land is not so high in the area where the land has been acquired. The land holder has produced six witnesses in support of his case whereas the Parshad has produced three witnesses. The land holder has also brought on record the five sale deeds which are marked as Exhibits 1, 1A, 1B, 1C and 1D to substantiate his case that the compensation granted by the Collector was lower than the value of the land in the area. This Court will first consider the documents produced by the Parishad to show that the rate has been unreasonably enhanced by the Court. Ext. P is the rate report which reveals the different rate proposed for the different classes of land. The rate report shows that the value of Bhit 1 land is Rs. 54,600/- per acre. The value of Bhit 2 land is Rs. 47,775/- per acre. The value of Parti Gaddha is Rs. 39,528/- per acre and the value of Danhar land is Rs. 40,950/- per acre. The rate report does not fulfil the conditions which are required for preparing the report inasmuch as item 9 C of the printed form states that “the statement of sale figures consulted should be attached to the rate report in the following form”. The provisions of item 9 C have been left blank as the form has not been filled by the person for producing the rate report. In 9 this context, it would be proper to refer to the evidence of D.W. 1 Chandra Deep Singh who is the Amin in the Land Acquisition Office. He proves the rate report and accepts that it has been prepared by him and thereafter states at paragraph 9 that he does not know the value of the land near the acquired land therefore, this document produced on behalf of the appellants does not help them at all. The onus would be upon the appellants to produce proper documents to show that the value of the land near and around the acquired land was less than what has been claimed by the land holders. In fact, strange that as it may seem, apart from the rate report Ext. B no other material has been produced by the appellants. D.W. 2 and D.W. 3 both are junior engineers of the Parshad. These witnesses have been examined and in their cross examination they support rather than demolish the case of the respondents inasmuch as they have stated that the acquired lands are next to the Central Library, University Campus, University Guest House and Stadium. In fact, they have gone so far to say that all the structures are within 100 yards of the aforesaid places. This is the consistent evidence of the witnesses examined on behalf of the respondents regarding the situation of the land acquired. Having considered the documents and the evidence of the appellants, I shall now consider the documents and evidence produced on behalf of the land holder respondents, to show the value of the land and with respect to their claim that the Collector had under valued their land. Ext. 1 is a sale deed dated 20.12.1986 with respect to 8 Dhurs of 10 land which were sold for Rs. 8,000/-. The rate comes to Rs. 20,000/- per Kattha. Ext. 1 A dated 10.8.1987 is a sale deed with respect to 5 Dhurs and 5 Dhurkis of land which was sold for Rs. 10,000/- the rate comes to Rs. 39,603/- per Kattha. Ext. 1 B dated 30.5.1989 is with respect to sale of 1500 square feet (2 Katthas and 2 Dhurs) the rate comes to Rs. 23,004/- per Kattha. Exhibits 1 C and 1 D are dated 27.7.1989 and is with respect to 1676.16 square feet each the rate of these lands are Rs. 21,037/- per Kattha. The Court below has taken the average of Ext. 1 and 1A and deducted 1/3 from the average and fixed the compensation as Rs. 20,213/- per Kattha. It has been strenuously argued that the Land Acquisition Judge ought to have taken the total average of all the five sale deeds and thereafter deducted 1/3 which would reduce the amount of compensation by some Rs. 34,000/-. According to respondent the Court below has given no reasons for considering Exhibits 1 and 1 A in preference to the other sale deeds produced on behalf of the respondents. However, I find that the Court below has considered the maps and the situation of the lands in question and finding that Exhibits 1 and 1 A are similar to the lands under acquisition and closest in point of time when the sale deed was executed has taken into consideration the rate of land mentioned in those two sale deeds. I agree with the reasoning put forth by the Court below and, therefore, hold that the value of the land has been correctly assessed by the Court below. The witnesses produced on behalf of the respondents have all categorically supported the fact that the land acquired is in a residential area and it adjoins several important places such as the Central Library, University Campus, University Guest 11 House, Stadium and other Government and Semi-Government offices. Besides which the land is inclose proximity with village Sahebganj which is a densely populated area and as such it is very much within the town limits of Bhagalpur Municipality. It has been submitted on behalf of the respondents that all these factors were taken into consideration by the Land Acquisition Judge and thereafter the rate has been fixed as laid down in the criteria in the case of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona & Anr. reported in A.I.R. 1988 Supreme Court 1652. The Land Acquisition Judge after considering the nature of the land acquired and the sale deeds along with the evidence of the witnesses who have supported the case of the respondents has held that the rate of lands comes to Rs. 30,320/- per Kattha having held that he had deducted 1/3 actural rate and held that the respondents are entitled to Rs. 20,213/- per Kattha. The Court below is also allowed the interest and solacium as provided under the Land Acquisition Act. I find that there is no error in the judgment either on facts or on law in allowing the case of the respondents. The appeal is dismissed for the reasons stated above. Patna High Court, September 22, 2008, Sanjay / A. F. R (Sheema Ali Khan, J.)