CWP No. 4954 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 4954 of 2010 Date of decision: 21.09.2010 Lisa d/o Manjeet Singh and another ….. PETITIONERS VERSUS State of Punjab and others ….. RESPONDENTS CORAM:HON’BLE MR. JUSTICE JASBIR SINGH HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Rajiv Mittal, Advocate, for the petitioners. Mr. N.S.Pawar, Addl. A.G. Punjab, for respondent No. 1. Mr. Anil K. Sharma, Advocate, for respondents No. 2 to 4. *** JASBIR SINGH, J. (ORAL) By filing this writ petition, the petitioners have made a prayer for issuance of a writ of certiorari quashing the Memo No. 3373 dated 23.12.2008 (P-8), vide which respondent No. 2 (Land Acquisition Collector Improvement Trust, Bathinda) has refused to refer application of the petitioners, moved under Section 18 of the Land Acquisition Act, 1894 (for short 'the 1894 Act') to the Land Acquisition Tribunal for adjudication. CWP No. 4954 of 2010 2 In this writ petition, it is submitted by petitioner No. 1 that she had purchased land measuring 217 sq. yards in the revenue estate of Bathinda, from one Basant Singh on 24.06.1974, petitioner No. 2 purchased an equal amount of land from Basant Singh on 26.06.1974 vide sale deeds Annexures P-1 and P-2 respectively. The mutation thereafter was also sanctioned in their favour in the year 1997-98 (P-3). As per statement made at the Bar, the petitioners along with their father and other family members shifted to U.S.A. in the year 1980. In the meantime, their land was acquired by the respondents by issuing a notification under Section 36 of the Punjab Town Improvement Act, 1922 (for short 'the 1922 Act') on 24.02.1984. Notification under Section 42 of the Act, 1922 was issued on 06.03.1987. Award was passed on 17.02.1989. Possession was obtained on 05.05.1989. In this writ petition, it has been contended by the petitioners that when their father visited India in the year 2002, then they came to know about the acquisition of their land. Prior thereto, they had neither received any notice nor they were present when the land acquisition proceedings were completed. After coming to know about the passing of an Award, the petitioners, through their attorney, filed a land reference under Section 18 of the 1894 Act on 17.04.2003 (P-6) with a prayer to respondent No. 2 to refer their application for adjudication to the competent Court. When nothing was done, they served a legal notice upon respondent No. 2 on 25.10.2008. Vide the impugned Memo, their prayer was rejected on the ground that their land was not acquired vide the notifications mentioned in earlier part of this order. Hence, this writ petition. In response to notice issued, reply has been filed by the respondents, wherein it has been stated that as per provisions of Section CWP No. 4954 of 2010 3 18 of the 1894 Act, any application moved beyond the period of six weeks' from the date of pronouncement of the Award, cannot be entertained by the Collector and reference cannot be made to the Civil Court for adjudication. So far as acquisition of land of the petitioners is concerned, it is virtually admitted, however it has been stated that when notice to acquire their land was issued, their name was not reflected in the revenue records and on account of that, notice could not be issued to them. Be that as it may, the prayer of the petitioners has been opposed on the ground that the application has been moved beyond the period specified in the provisions of Section 18 of the 1894 Act, which reads thus:- “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- CWP No. 4954 of 2010 4 section (2), or within six months from the date of the Collector's award, whichever period shall first expire.” Reading of the provisions mentioned above indicates that the application under Section 18 of the 1894 Act can be moved within six weeks' from the date of passing of an Award, if the land owner/person was present/represented when the Award was passed. It is further stipulated that in other cases, application can be moved within six weeks of the receipt of a notice, from the Collector, under Section 12 (2) of the 1894 Act or within six months' from the date of Collector's Award, whichever period shall first expire. In the present case, it is virtually admitted that the petitioners were neither present nor represented when Award was passed. It is further not in dispute that they had never received any notice under Section 12(2) of the 1894 Act from the Collector. Under the above-mentioned circumstances, it is to be seen as to whether it is incumbent upon the Land Acquisition Collector to refer their application for adjudication to the Civil Court or not. If the Collector had any objection regarding the period of limitation, is it necessary for him to raise that plea before the competent Court or not? A similar controversy was raised before the Hon'ble Supreme Court in Bhagwan Dass & Ors. vs. State of U.P. & Ors., 2010 (2) Apex Court J 0040. In the above-said case, the application of the petitioners therein was rejected by the Land Acquisition Collector on a ground that it was moved after the prescribed period of limitation under Section 18 (2) of the 1894 Act. The writ petition was dismissed by the High Court. The CWP No. 4954 of 2010 5 Hon'ble Supreme Court to resolve the controversy, posed the following questions in that case. “(a) Whether an appeal would lie under Section 54 of the Act against the order of the Collector refusing to make a reference? (b) Whether the Collector can condone the delay in filing an application seeking reference, if sufficient cause is shown? (c) Whether the period of six months under clause (b) of the proviso to Section 18 of the Act should be reckoned from the date of knowledge of the award of the collector or from the date of award itself? (d) Whether the appellants were entitled to relief?” In response to question (a), it was opined by the Hon'ble Supreme Court that no appeal is competent under Section 54 of the 1894 Act against an order passed by the Land Acquisition Collector refusing to refer an application under Section 18 of the 1894 Act. In response to question (b), it was said that there is no provision in the Act enabling the Land Acquisition Collector to extend time or making an application for reference beyond the period prescribed in the Act. In response to question (c), after discussing the relevant provisions and law on the subject, it was concluded as under:- “12. The following position therefore emerges from the interpretation of the proviso to Section 18 of the Act: (i) If the award is made in the presence of the person interested (or his authorized representative), he has to make CWP No. 4954 of 2010 6 the application within six weeks from the date of the Collector's award itself. (ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice form the Collector under Section 12 (2). (iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12 (2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award. (iv) If a person interested receives a notice under Section 12 (2) of the Act, after the expiry of six weeks' from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under Section 12 (2) of the Act was the date of knowledge of the contents of the award. A person who fails to make an application for reference within the time prescribed is not without remedy. It is open to him to make an application under Section 28A of the Act, on the basis of an award of the court in respect of the other lands covered by the same acquisition notification, if there is an increase. Be that as it may. 13. When a person interested makes an application for reference seeking the benefit of six months period from the CWP No. 4954 of 2010 7 date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under Section 12 (2) of the Act, and that he did not have the knowledge of the contents of the award during a period of six months prior to the filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present 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. Actual or constructive knowledge of the contents of the award can be established by the collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the Mahazar/Panchnama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowledged the making of the award in any document or in statement on oath or evidence. The person interested, not being in possession of the acquired land and the name of the state or its transferee being entered in the revenue municipal records coupled with delay, can also lead to an inference of constructive knowledge. In the absence of any such evidence by the Collector, the claim of the person interested that he did not have knowledge earlier CWP No. 4954 of 2010 8 will be accepted, unless there are compelling circumstances to not to do so.” In response to question (d), by taking note of the facts of that case, it was observed that the application was moved by the land owners within the period of limitation and a direction was issued to the Land Acquisition Collector to refer their application under Section 18 of the 1894 Act for adjudication to the Civil Court. We feel that the case of the petitioners is squarely covered by ratio of the judgment in Bhagwan Dass's case (supra). It was specifically averred, at the time of arguments, by counsel for the petitioners that when acquisition proceedings were initiated, the petitioners were residing in U.S.A. and they came to know about the land acquisition only in the year 2002 and thereafter, an application was moved under Section 18 of the 1894 Act on 17.04.2003. Under the circumstances, we feel that it was incumbent on the part of the Collector to accept their prayer, especially when there is no proof that the petitioners were present when Award was pronounced or that they were served with any notice under Section 12 (2) of the 1894 Act at any stage. It was also not in dispute that other land owners had filed applications under Section 18 of the 1894 Act, which were referred to for adjudication and the compensation was enhanced in their case. In these circumstances, it will be very unjust, if the relief is not granted to the petitioners. It has been brought to our notice that in consequent to an Award, money was deposited by the Improvement Trust with the Collector. If that is so, in case their application is allowed by the competent Court, CWP No. 4954 of 2010 9 the applicants shall not be entitled to claim any extra interest on the original compensation amount from the date of deposit. In view of the above facts and circumstances, this writ petition is allowed and the Land Acquisition Collector is directed to refer application filed by the petitioners, for adjudication, to the competent Civil Court. Needful be done within 3 months'. ( JASBIR SINGH ) JUDGE ( AUGUSTINE GEORGE MASIH ) JUDGE September 21, 2010 pj