IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 92 of 2011. Date of Decision: 27.7.2011. Smt. Santosh Kumari …Petitioner Versus. State of HP & Anr. …Respondents. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? Yes. For the Petitioner: S/Sh. Sunil Chaudhary & Jagan Nath, Advocates. For the Respondents: Mr. Vivek Singh Thakur, Addl. AG with Mr. Rajesh Mandhotra, Dy. AG. Deepak Gupta, J.( Oral) 1. By means of this petition, the petitioner has challenged the order dated 22.11.2007, passed by the learned Additional District Judge (I), Kangra at Dharamshala refusing to decide the reference filed by the petitioner on the ground that since the Land Acquisition Collector, Dehra held that the reference petition was not made within the period of limitation, the collector should have first decided the question of limitation and only thereafter could have made the reference. Whether the Reporters of Local Papers may be allowed to see the judgment Yes. 2 2. The undisputed facts are that some land was acquired by the State for construction of parking at Mata Chintpurni Temple, pursuant to the orders of this Court. The petitioner claimed to be owner of the land alongwith some other persons to whom compensation had to be paid. According to the petitioner, no notice was issued to her, but she came to know that some award is being passed and, therefore, she had filed an application (Annexure P2) with the Land Acquisition Collector, Dehra on 23.7.2007 praying that the award be also passed in her favour. On the same day (23.7.2007) the award was passed and some amount was awarded in favour of the petitioner also. The case of the petitioner is that the award was never pronounced in her presence. According to the petitioner, she later came to know about the passing of the award and thereafter applied for the copy of the award on 26th July, 2007 which was delivered to her on 29th August, 2007. Thereafter on 21st September, 2007 the petitioner filed a petition under Section 18 of the Land Acquisition Act before the Land Acquisition Collector for making a reference to the learned District Judge, Kangra at Dharamshala for enhancement of the compensation. 3. If the award is pronounced in the presence of the parties, then limitation to file a petition under Section 18 of 3 the Act is 42 days as per Section 18 (2)(a). If the award is not announced in the presence of the parties, then the limitation is six weeks from the date of receipt of notice of the Collector under Section 12(2) or within six months from the date of award. The case of the petitioner is that in the reference petition she has clearly mentioned that she was not present when the award was pronounced. According to her, she only later came to know about the award and, therefore, she could have filed the reference petition within six months of the award and her further case is that the time spent for obtaining copy of the award must be deducted, while computing the period of 42 days under Section 18(2). 4. I had called for the record of the Land Acquisition Collector, Dehra and have perused the same. To say the least, the same has not been maintained properly at all. The Land Acquisition Collector, Dehra while determining the compensation under the provisions of the Land Acquisition Act has conducted proceedings which are akin to judicial proceedings. The Land Acquisition Collector is required to issue notice to the parties and order sheet is required to be maintained and in the order sheets, the presence of parties or their counsel must be recorded. Under Section 9 of the Land Acquisition Act, the Collector is bound to issue public notice and also issue notice to the occupiers of the land in 4 question. Thereafter under Section 11, the Collector has to conduct an enquiry with regard to the value of the land and measurements thereof. In such an eventuality, it is necessary that an order sheet must be maintained, reflecting how the procedural enquiry has been conducted, in compliance to the provisions of the Land Acquisition Act. In this case, I find that there is no such order sheet at all. 5. No doubt, in the final award dated 23.7.2007, it is stated that the award has been pronounced in the presence of the parties interested in the property, but presence of parties is not marked anywhere in the record and which party was present and which party was absent cannot be verified from the record. The manner in which the proceedings were conducted and the record maintained show total lack of judicial knowledge on the part of the Officer conducting the proceedings. In fact, it is not even clear whether notice was given to all the persons interested in the property or not. 6. Be that as it may, the petitioner has not objected to the acquisition and in fact has submitted no objections, but she has not accepted the valuation given by the Collector. Her presence has not been marked anywhere in the record. It cannot be said that she was present when the award was pronounced. The mere fact that she had also 5 filed an application on the date when the award was pronounced would not mean that she was present at the time when the award was announced. A working day consists of 8 hours and the application may have been filed either before or after the passing of the award. The record should have clearly reflected that the petitioner was present. Therefore, the limitation of 42 days in my opinion would not apply. 7. Even assuming that limitation of 42 days was to apply, I am of the considered view that the time taken in obtaining a certified copy of the award must be deducted while computing the period of 42 days. It may be true, that it is not necessary to file a certified copy of the award alongwith the reference petition but unless the person who wants to raise objection to the award has an opportunity of going through the award, how can he or she makes a proper application under Section 18 of the Act? Section 29 of the Limitation Act, 1963 clearly lays down that the provisions of this Act would apply to all judicial proceedings unless especially barred. Under Section 12(2) of the Act in computing the period of limitation, the time spent in obtaining a copy of the decree or order has to be excluded. There is no reason why principles of Section 12(2) should not be applicable to the Land Acquisition Act. Section 18 of the 6 Land Acquisition Act clearly lays down that any person who has not accepted the award may by written application request that the matter be referred to the Collector. How can a person decide, whether he has accepted or not accepted the award without reading the award? Therefore, it is obvious that a conscious decision to file a petition under Section 18 can only be taken after the person has had the opportunity of perusing the award. Hence, the time spent in obtaining such copy of the award has to be excluded. If this time is excluded then the petition was filed within the period of 42 days. I have gone into this exercise because I feel that it would not be appropriate to again send the parties back to the Land Acquisition Collector. 8. In view of the aforesaid discussion, I hold that the reference petition was made within the time and, therefore, the order of the learned Additional District Judge (I), Kangra at Dharamshala is set aside and he is directed to decide the reference petition on merits. 9. The petition is allowed in the aforesaid terms. No costs. (Deepak Gupta), Judge 27th July, 2011. (Krn Guleria)