IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FIFTH DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO : 5884 of 2001 Between: 1 Dasaraju Anjaiah S/o.Durgaiah Miryalaguda 2 Dasaraju Saidulu S/o. Mattaiah Miryalaguda 3 M.Keshav Ro S/o.Rmulu Miryalaguda 4 M.Sreenu S/o.Ramulu Miryalaguda ..... PETITIONER(S) AND The Land Acquisition Officer and Revenue Divisional Officer, Miryalaguda .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ, Order or Direction more particularly a writ in the NATURE OF MANDAMUS under Art.226 of the Constitution of India declaring the order of 3/3/2000 issued by the respondent namely Revenue Divisional Officer, Miryalaguda as illegal and further direct the respondent to refer the petitioners case to the civil court under section 18 of the Land Acquisition Act the matter regarding the claim of the petitioners for enhancement of compensation granted by the respondent in his Award No.E/2303/91, Dt.10/12/1994 in respect of the land of the petitioners 0-06 guntas in Sy.No.932, 0-10 guntas in Sy.No.921, and 0-11 guntas in Sy.No.937 of Miryalaguda village and Mandal, Nalgonda District. Counsel for the Petitioner:MR.A.S.C.BOSE Counsel for the Respondent No.: GP FOR LAND ACQUISITION The Court made the following : THE HONOURABLE SRI JUSTICE P.V.SANJAY KUMAR WRIT PETITION NO.5884 OF 2001 O R D E R The order dated 03.03.2000 passed by the Land Acquisition Officer-cum-Revenue Divisional Officer, Miryalaguda, the sole respondent herein, refusing to make a reference under Section 18 of the Land Acquisition Act, 1894 (for brevity, ‘the Act of 1894’) on the ground that it was time barred, is challenged by the petitioners in the present case. The affidavit filed in support of the writ petition states as follows: Various extents of lands owned by the petitioners in Miryalaguda Village and Mandal, Nalgonda District, were acquired by the Government of Andhra Pradesh, under the provisions of the Act of 1894, for the purpose of laying an approach road. The Section 4(1) notification under the Act of 1894 was published in Part-I Extraordinary District Gazette dated 27.08.1994, invoking the urgency provisions under Section17 of the Act of 1894. The compensation was determined by the respondent under his award dated 10.12.1994 but a reference was made to the Civil Court under Section 30 of the Act of 1894. According to the petitioners, this reference was made on the ground that their ownership over the lands was not proved. The reference Court, being the Court of Senior Civil Judge, Miryalaguda, numbered the referred proceedings as O.P.No.40 of 1995 and issued notices to the petitioners to appear before the Court. It is stated that the petitioners appeared before the Court and by order dated 31.03.1999, the Court held that the petitioners were the owners of the subject lands and were accordingly entitled for the compensation deposited. The petitioners withdrew the said compensation amount under protest and issued notice dated 29.04.1999 calling upon the respondent to refer the matter to the Civil Court under Section 18 of the Act of 1894 for determination of the compensation by the Court. The said request was rejected by the respondent under the impugned order dated 03.03.2000 on the ground that the application was made beyond the period of limitation prescribed under Section 18 of the Act of 1894. According to the petitioners, they never received any notice from the respondent at any stage of the award enquiry proceedings and claimed knowledge only from the date of the notices issued by the Civil Court in the Section 30 proceedings. They challenged the rejection of their request by the respondent under his order dated 03.03.2000 and sought a consequential direction to the respondent to refer their cases under Section 18 of the Act of 1894 for determination of the compensation by the Court. The counter affidavit filed by the respondent states as follows: The petitioners’ lands in Miryalaguda Village and Mandal, Nalgonda District, were acquired for the purpose of forming an approach road from Eadukotla Tanda to Miryalaguda R&B Road. Draft notification under Section 4(1) of the Act of 1894 was published in the Gazette on 27.08.1994. The declaration under Section 6 of the Act of 1894 was published in the Gazette on 29.08.1994. The award enquiry was conducted on 22.11.1994 and notices in Forms 6 and 7 under Sections 9(1) and 9(3), read with Section 10 were issued in the names of the pattadars, including the petitioners herein. It is stated that the pattadars refused service of the individual notices addressed to them, constraining the authorities to take recourse to service through affixation on the doors of the residential houses of the pattadars. It is also stated that none of the pattadars attended the award enquiry and accordingly the respondent, having completed the award enquiry and having determined the compensation payable under his award dated 10.12.1994, referred the matter to the Civil Court under Section 31(2) of the Act of 1894, as applicable to the State of Andhra Pradesh. The request of the petitioners to make a reference under Section 18 of the Act of 1894 was rejected by the respondent in view of the fact that the said request was made after a lapse of nearly 5 years and 6 months after the passing of the award. The said request was treated as belated, being barred by the limitation prescribed under Section 18(2) proviso (b) of the Act of 1894, applicable to the State of Andhra Pradesh. Copies of the notices in Form 6 under Section 9(1) read with Section 10 of the Act of 1894, Form 7 under Section 9(3) read with Section 10 of the Act of 1894 and Form 9 under Section 12(2) of the Act of 1894 were filed along with the counter affidavit. Heard the learned counsel for the petitioners and the learned Assistant Government Pleader for Land Acquisition representing the respondent. The learned counsel for the petitioners contended that as notices under Section 12(2) of the Act of 1894 were not served in accordance with Section 45 of the Act of 1894, which prescribes the procedure to be followed for services of notices, it cannot be construed that the petitioners had notice of the passing of the award. In view of this violation on the part of the respondent in effecting service of the notices under Section 12(2) of the Act of 1894, the counsel stated that the limitation prescribed under Section 18(2) proviso (b) of the Act of 1894, would not begin to run. Consequently, he argued that the action of the respondent in rejecting the petitioners’ request for making a reference under Section 18 on the ground of delay was unsustainable on facts and in law. He also contended that it was for the Reference Court to decide whether the reference under Section 18 was time barred and not for the respondent to prematurely deny the petitioners on this ground. He placed reliance upon various Judgments in support of his contention. On the other hand, the learned Assistant Government Pleader for Land Acquisition contended that once the petitioners had notice of the passing of the award, it was not open to them to rely upon technicalities and assert a right for seeking reference under Section 18 of the Act of 1894, ignoring the limitation prescribed by the statute. The impugned order dated 03.03.2000 reflects the fact that the respondent herein took note that the petitioners were not present as on the date of award and that the petitioners had failed to submit a representation seeking a reference under Section 18 within two months from the date of service of the notice under Section 12(2) of the Act of 1894. Accordingly, the application made by them after a lapse of 5 years and 6 months from the date of notification of the award was held to be beyond the period of limitation prescribed under Section 18 of the Act of 1894. Section 18 of the Act of 1894, in so far as it is applicable to the State of Andhra Pradesh, reads as hereunder: “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 two months from the date or service of the notice from the Collector under Section 12 sub-sec.(2).” The issue, presently, is whether in the obtaining fact situation the action of the respondent in rejecting the request of the petitioners for making a reference under Section 18 of the Act of 1894 on the ground of delay is lawful and valid. It is the contention of the learned counsel for the petitioners that notices under Section 12(2) of the Act of 1894 were allegedly served by way of affixation in the lands acquired, which was not in conformity with the procedure prescribed under Section 45 of the Act of 1894. Section 45 of the Act of 1894 is as follows: “45. Service of notices: –– Service of any notice under this Act shall be made by delivering or tendering a copy thereof signed, in the case of a notice under Section 4, by the officer therein mentioned, and, in the case of any other notice, by or by order of the Collector or the Judge. (2) Whenever it may be practicable, the service of the notice shall be made on the person therein named. (3) When such person cannot be found, the service may be made on any adult male member of his family residing with him; and, if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business, or by fixing a copy thereof in some conspicuous place in the office of the officer aforesaid or of the Collector or in the court-house, and also in some conspicuous part of the land to be acquired: Provided that, if the Collector or Judge shall so direct, a notice may be sent by post, in a letter addressed to the person named therein at his last- known residence, address or place of business and registered under Sections 28 and 29 of the Indian Post Office Act, 1898, and service of it may be proved by the production of the addressee’s receipt.” Under Section 45(3), service of notice by affixation is permitted in the event of the addressee of the notice not being found and no other adult member of the addressee’s family residing with him being found. In such a situation, the notice can be served by affixing a copy thereof on the outer door of the house/office of the addressee, or by affixing a copy thereof in a conspicuous place in the office of the officer effecting the notice or of the Collector or in the Court House, and also in some conspicuous part of the land to be acquired. It is no doubt true that the notice under Section 9(3) read with Section 10 of the Act of 1894 was served by affixation upon the petitioners’ residences while the notice under Section 12(2) was served by affixation upon the land acquired only. Whether the service of the Section 12(2) notices by such affixation was valid and proper and was in strict conformity with the requirements prescribed by Section 45 of the Act of 1894 need not be gone into in the present case, in view of the fact that the petitioners themselves admit to having received notices from the Civil Court in the reference proceedings initiated under Section 31(2) of the Act of 1894 in O.P.No.40 of 1995. Once the petitioners admit to the knowledge of the passing of the award consequent to receipt of such notices from the Civil Court, it is not open to them to claim ignorance of the award having been passed. The learned counsel for the petitioners relied upon a Division Bench Judgment of this Court in LAND ACQUISITION OFFICER- CUM-REVENUE DIVISONAL OFFICER, KAMAREDDY AND ANOTHER v. DOMAKONDA PEDDA BALAVVA AND ANOTHER[1]. However, the said Judgment does not throw any light upon the issue raised in the present writ petition. In that case it was laid down that the Collector, exercising powers under Section 18 of the Act of 1894, acts like a Court and his refusal to make a reference must be supported by reasons. It was also held therein that the Civil Court, under Section 18 of the Act 1894, could go into the question as to whether the Collector ought to have exercised his jurisdiction to refuse to make a reference to the Civil Court on the ground that the compensation was received by the person interested without any protest. This Judgment is therefore of no assistance to the learned counsel. The learned counsel drew the attention of this Court to a Division Bench judgment of the Madras High Court in KAMALAM V/s. THE SPECIAL TASILDAR, NO.III FOR LAND ACQUISITION, VEEDUR PROJECT, TINDIVANAM[2]. In that case the Court held that where there was no satisfactory proof that the service of the notice of the award had been made as prescribed under Section 45, the time bar for making a reference would not be applicable. This is the proposition which was laid down in that case. For the reasons stated herein above, this Court is not inclined to go into the question as to whether the Section 12(2) notices under the Act of 1894 in this case were served upon the petitioners properly. The issue can be decided on other facts, established and admitted. The judgment of the Madras High Court is therefore found to be of no relevance in so far as the issue decided in the present case is concerned. The learned counsel also relied upon the Judgment of a learned Judge of this Court in GUNNAM VEERA VENKATA SATYA CHANDRA ANNAPURNA v. SPECIAL TAHSILDAR, LAND ACQUISITION, JANGAREDDIGUDEM[3]. In that case the learned Judge, having found that no notice had been issued under Section 12(2) of the Act of 1894, reiterated the principle laid down by the Supreme Court that the Civil Court had jurisdiction to decide whether the reference made to it was beyond the period prescribed under Section 18 of the Act of 1894. The said Judgment did not lay down the proposition that irrespective of the factum of delay, the Collector under Section 18 of the Act of 1894 is duty bound to make a reference under the provisions thereof to the Civil Court in every case. Such a construction would defeat the essential duty enjoined upon the Collector by Section 18(2) proviso (b) of the Act of 1894. The Judgment of the Supreme Court referred to in the above decision, being the judgment in MOHAMMED HASNUDDIN v. STATE OF MAHARASHTRA[4] is illuminating. In the said case the Collector, having entertained a doubt as to whether the application seeking a reference under Section 18 was time-barred, left the question open and referred the matter to the Civil Court. The Government raised a preliminary objection before the Civil Court that the reference was incompetent as the application was time-barred. In that situation, the question arose as to whether the Civil Court could go into the issue of the condition precedent i.e. the application being made within time as prescribed under Section 18 of the Act of 1894. The Supreme Court after due consideration of the matter held that it was open to the Civil Court to go into the issue as to whether the reference made to it was valid, proper and correct in the light of the provisions of Section18 of the Act of 1894. The said decision turned upon the scope of the jurisdiction of the Civil Court while entertaining an application under Section 18 of the Act of 1894. It is however relevant to note that the Supreme Court held therein that making of an application for reference within the time prescribed by the proviso to Section 18, sub-section (2) is the sine qua non for a valid reference by the Collector. It is in this context that the Supreme Court held that the Court functioning under the Act of 1894 as a Reference Court is duty bound to see that the reference made to it by the Collector under Section 18 complies with the conditions laid down therein, including the one relating to limitation. These Judgments therefore cannot be understood to lay down the proposition that the Collector is not required to apply his mind as to whether the conditions prescribed by Section 18 of the Act were fulfilled, prior to making a reference and that it is only for the Reference Court to go into these issues. It is no doubt true that there are certain observations in ANNAPURNA’s case (2 supra) which support the contention raised by the learned counsel for the petitioners. However, the judgment must be considered as a whole and doing so, the inevitable conclusion that emerges is that the learned Judge, while holding that where no notice under Section 12(2) of the Act of 1894 was issued it would entitle the claimants to seek a reference under Section 18 beyond the period of two months from the date of the award, also held that where the claimants were attributed with the constructive knowledge of the contents of the award, then the period of limitation of two months shall be reckoned under Section 18(2) of the Act from the date of such knowledge. In the present case, the petitioners admit to have received notices from the civil Court and their participation in the proceedings in O.P.No.40 of 1995. The implication thereof is that they had constructive knowledge of the contents of the award. This is confirmed by the fact that in their representation dated 29.04.1999, the petitioners themselves explained that they had made attempts to convert the reference under Section 31(2) into one under Section 18 of the Act of 1894. They would not have done so had they not been aware of the contents of the award. The judgment in ANNAPURNA’s case (2 supra) also does not support the contention urged by the learned counsel for the petitioners that it was for the reference Court alone to go into the issue of delay and that the Land Acquisition Officer ought not to have refused the reference on this ground. In this regard, it would be apposite to consider the other observations made by the Supreme Court in MOHAMMED HASNUDDIN’s case (3 supra), the decision relied upon in ANNAPURNA’s case (2 supra). The Supreme Court stated therein that if an application is made which is not within time, the Collector will not have the power to make a reference. The court observed that in order to determine the limits of his own power, it is clear that the Collector would have to decide whether the application presented by the claimant is or is not within time and satisfies the conditions laid down in Section 18. Further, the Judgment of the Supreme Court in MAHADEO BAJIRAO PATIL v. STATE OF MAHARASHTRA[5] is very much on the point. In that case, the land owners received notice of the passing of the award by way of a telegram. The contention raised by them was that they had not been officially served with the notice of the passing of the award. Therefore, they argued that they were permitted by law to seek a reference under Section 18 notwithstanding the aspect of delay. The Supreme Court held that if the person making the application was present or represented before the Collector at the time when he made the award, the application must be filed within six weeks from the date of the award. If a notice was received by the applicant under Section 12(2) of the Act, he would be required to make an application within six weeks from the date of such receipt or within six months from the date of the award, whichever period shall first expire. The Supreme Court held that the notice under Section 12(2) of the Act was a clear intimation of the making of the award requiring the owner or person interested to receive the compensation awarded under Section 11 of the Act. In view of the fact that the owners in that case had been intimated about the passing of the award by way of a telegram, they were not entitled to give a go-bye to the limitation prescribed under Section 18 of the Act of 1894. The Supreme Court also held that it was not open to the Land Acquisiton Officer while entertaining a time- barred application seeking reference under Section 18 of the Act of 1894 to condone the delay in making such an application. This judgment puts it beyond doubt that it is not open to the applicant to claim as of right that even a time-barred application should be sent to the Civil Court. Holding so would mean that the Land Acquisition Officer can condone the delay in the filing of the application, which the Supreme Court specifically held was beyond his power. Reference may also be made to the Judgment of the Supreme Court in STATE OF PUNJAB v. SATINDER BIR SINGH[6], wherein the Supreme Court held that the notice envisaged by Section 12(2) of the Act of 1894 is only an intimation of making of the award and when such owner or person interested receives the compensation under protest, it is open to him to seek reference under Section 18 of the Act of 1894 for determination of the compensation by the Civil Court. The Supreme Court held that the statutory operation of limitation mentioned by Section 18(2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules have not prescribed any form. The limitation begins to operate from the moment the notice under Section 12(2) is received as envisaged by Section 18(2). I n STATE OF KARNATAKA v. LAXUMAN[7] the Supreme Court was dealing with the amended provisions of Section 18 of the Act of 1894 as applicable in the State of Karnataka. The Supreme Court observed that a statute can, even while conferring a right, provide for a repose. The right undoubtedly available to a litigant becomes unenforceable if he does not approach the Court within the time prescribed. It is in this context that it was said that the law is for the diligent. The law expects a litigant to seek enforcement of a right available to him within a reasonable time of the arising of the cause of action and that reasonable time is reflected by the various Articles of the Limitation Act. The scheme set out by Section 18 is based on the public policy that a right should not be allowed to remain a right indefinitely, to be used against another at the will and pleasure of the holder of the right by approaching the Court whenever he chooses to do so. The Court again reiterated that Section 5 of the Limitation Act had no application to the proceedings before the Collector or Deputy Commissioner under Section 18 of the Act of 1894, while entertaining an application for