IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.9.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.904 of 2001 The Tahsildar Uthagamandalam Taluk Uthagamandalam .. Appellant/respondent -vs- 1. Mangalchand Vaid 2. M.Durgachand Vaid 3. M.Lakshmichand Vaid 4. M.Guruchand Vaid 5. M.Ukkam Chand Vaid .. Respondents/claimants This appeal is filed under Section 54 of the Land Acquisition Act against the decree and Judgment passed in L.A.O.P.No.14 of 1998 by the learned Subordinate Judge, Uthagamandalam dated 26.2.2001. For appellant : : Mr. V.Ravi, Spl.Govt.Pleader For respondents : : Mr.K.Shakespeare, Advocate JUDGMENT This appeal has been preferred by the Government against the decree and Judgment in L.A.O.P.No.14 of 1998 on the file of the Court of Subordinate Judge, Uthagamandalam dated 26.2.2001. The Government have acquired 0.60 acres of land in S.No.236/6A in Masinagudi Village, Uthagamandalam for the purpose of using the same for Pykara Ultimate Stage Hydro Electric Project (PUSH EP). 2. After following the procedures and formalities , the learned Land Acquisition Officer has published Notification under Section 4 (1) of the Tamill Nadu Land Acquisition Act(hereinafter referred to as Act) in the Government gazette on 14.1.1992. On the basis of a sale deed dated 6.6.1990 executed by one Shantharaman of Masinagudi to one Tmt Valliammal(registered document No.766/90) under which 2.75 acre in S.No.187/1A was sold for Rs.38,500/-. The land acquisition officer has fixed the compensation for the lands acquired as Rs.140/- per cent(Rs 14,000/- per acre). Aggrieved by the award passed by the land acquisition officer in Award NO.1/94 dated 28.3.1994, the claimants have filed their objection which was referred to by the land acquisition officer under Section 18 of the Act to the land acquisition tribunal. 3. Before the Land Acquisition Tribunal,the third claimant was examined as C.W.1 and exhibited Exs C1 to C18 on the side of the https://hcservices.ecourts.gov.in/hcservices/ claimants. On the side of the referring officer, the then land acquisition officer/retired Tahsildar Chinnasamy was examined as R.W.1 and Exs R1 to R12 were marked. 4.The learned land acquisition tribunal/Subordinate Judge , Uthagamandalam after scanning the evidence both oral and documentary has arrived at a conclusion that the award of compensation fixed by the land acquisition officer is too meagre had enhanced the same as Rs.3500/- per cent and accordingly passed an award with solatium , interest on solatium etc as per the provisions of the Act. Aggrieved by the award passed by the land acquisition tribunal in L.A.O.P.No.14 of 1998 on the file of the Court of Subordinate Judge, Uthagamandalam, the Government has preferred this appeal. 5. Now the points for determination in this appeal are 1) Whether the claim made by the claimants under Section 18 of the Act is barred under Section 18(2)(b) of the Land Acquisition Act 1894? 2) Whether the award of compensation fixed by the land acquisition tribunal in L.A.O.P.No.14 of 1998 is arbitrary warranting any interference from this Court? 3) Whether the decree and Judgment made in L.A.O.P.No.1.4 of 1998 on the file of the Court of Subordinate Judge, Uthagamandalam is liable to be set aside for the reasons stated in the memorandum of appeal? 6.Heard the learned Special Government Pleader(AS) appearing for Government as well as the learned counsel appearing for the respondents and considered their respective submissions. 7.Point No.1:- The learned Special Government Pleader(AS) would contend that the award 1 of 1994 was passed by the land acquisition Tribunal Uthagamand on 28.3.1994 but the reference was not made within six months from the date of award 1/94 of the land acquisition tribunal, Uthagamandalam and hence under Section 18(2)(b) of the Act , the claim made by the claimants is liable to be dismissed as barred by limitation. Section 18 of the Act runs as follows: "(1) Any person interested who has not accepted the award may, be 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; https://hcservices.ecourts.gov.in/hcservices/ (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, subsection (2), or within six months from the date of the Collector's award, whichever period shall first expire." Admittedly the award was not passed in the presence of the claimants/respondents. There is no material placed before the trial Court to show that after passing of the award 1/94 dated 28.3.1994, a notice under Section 12 Sub Section 2 of the Act was issued to the claimants. Under such circumstances, as contemplated under Section 18 (2)(b) of the Act, the claimants shall file their claim application within six months from the date of the Collector's award. 8. The learned Special Government Pleader(AS) would contend that under Ex C18, the claimants got a knowledge about the passing of the award as early as on 22.8.1995 itself but they have preferred the claim petition only on 8.10.1996 and hence the learned Special Government Pleader(AS) would contend that the claim petition filed by the claimants itself is barred by limitation. Relying on a decision reported in Jehangir Bomanji and others-v- C.D.Gaikwad(AIR 1954 Bombay 419) ,the learned Special Government Pleader(AS) would contend that for calculating the time for limitation, the time shall run from the date of award itself and that since the claimants have not preferred claim petition within six months from the date of the award ie., 28.3.1994, the claim made by the claimants is barred by limitation. But the learned counsel appearing for the respondents placing a decision reported in Raja Harish Chandra Raj Singh-v- The Deputy Land Acquisition Officer(AIR 1961 Supreme Court, 1500) would contend that the ratio relied on by the learned Special Government Pleader(AS) in Jehangir Bomanji and others-v- C.D.Gaikwad(AIR 1954 Bombay 419) has been overruled and that the Honourable Apex Court have held in the above said dictum that time for limitation under Section 18(2) (b) of the Act will run only from the date of knowledge of the award and not from the date of award itself. The relevant observation in the above said dictum of the Honourable Apex Court runs as follows: "The language of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words"from the date of the Collector's award" used in the proviso to S.18 in a literal or mechanical way."... ...On the other hand, in Jehangir Bomanji .v.C.D. Gaikwad, AIR 1954 Bombay 419 the Bombay High Court has taken the view that the element of notice is only an essential ingredient of the first part of Cl.(b) of the proviso to S.18 which prescribes the period of limitation as six weeks from the date of the receipt of the notice from the Collector, not of https://hcservices.ecourts.gov.in/hcservices/ the second part which prescribes the maximum period of six months from the date of the Collector's award in absolute terms. According to that decision, as far as the limitation under the latter part is concerned it runs from the date of the award has nothing whatever to do with the notice which the Collector has to give under S.12 (2) . In our opinion this decision is based on a misconstruction of the relevant clause in the proviso to S.18. The same comment falls to be made in regard to the decision of the Kerala High Court in State of Travancore-Cochin.v. Narayani Amma AIR 1958 Kerala 272." So the contention of the learned Special Government Pleader(AS) that the claimant have not preferred claim petition within six months from the date of award and that the claim made by the claimants is barred by limitation holds no water. It is seen from the records available in the L.A.O.P.under Ex C6 that the Government has communicated the claimants that an award 1/94 dated 28.3.1994has been passed by the Tahsildar,Uthagamandalam in respect of the properties acquired in Masinagudi Village in respect of S.No.236/6A1 by awarding compensation of Rs.16,081/- and the claimants have been requested to go to the Taluk Office and to collect the same. Ex C7 is the letter written by the claimants as the reply to Ex C6 wherein the claimants have specifically stated that no notice was served on any of the claimants required under the Act in respect of passing of the Award under Award No.1/94 dated 28.3.1994 and the claimants have further stated that for passing the award the decision was taken unilaterally and the same is not maintainable. Taking the said objection in Ex C7 made by the claimants, a reference has been made by the land acquisition Officer to the Civil Court/District Judge Uthagamandalam vide Rc.A1/3769/91 dated 19.12.1995. Under Ex C18 communication, the Tahsildar, Uthagamandalam was also informed the claimants that a reference under Section 18 of the Act has been made on the basis of objection raised by the claimants to the District Judge under Section 18 of the Act. 9. The learned Special Government Pleader(AS) relying on a decision in Writ Appeal No.2899 of 2001 dated 24.7.2007 of this Court would contend that a written application shall be made by the claimants for a reference under Section 18 of the Act and that since no written application has been preferred within the time stipulated under Section 18(2)(b) of the Act by the claimants, the claim made by the claimants is not maintainable. The learned Special Government Pleader(AS) would further contend that in some of the cases, the revenue official acting hand in glove with the claimants manipulated the claim petition itself even after the expiry of the period of limitation and this is one such case wherein the actual claim was preferred by the claimants ony on 8.10.1996 but the Tahsildar , Uthagamandalam had preferred a reference under Section 18 of the Act as though a proper claim was made by the claimants as early as on 22.12.1995 itself. The learned Special Government Pleader(AS) relying on a Judgment of a Division Bench of this Court in A.S.Nos.945 and 946 of 2004 has observed that such suspicious references under Section 18(2) of the Act shall be referred to CBCID https://hcservices.ecourts.gov.in/hcservices/ for investigation for further action. The Government has been directed in all the matters pending before this Court or before the Court below for enhancement of compensation under Section 18(1) of the Act to investigate into (a) a bona fide of the written application made under Section 18(1) of the Act;(b) the limitation in filing such applications, preferably through CBCID and file the materials so collected as evidence/additional evidence in the pending proceedings for the appreciation of the same by the respective Courts, to meet the ends of justice. But so far the Government has not initiated any proceedings as far as this case is concerned so as to refer the same for investigation by CBCID. But under Ex C7, the claimants have made their objections to the award passed by the Land Acquisition Tribunal under Award 1/94 dated 28.3.1994 on the ground that the award passed by the land acquisition Tribunal was arbitrary illegal and unjustified. The said objection under Ex C7 was made by the claimants only after receiving the communication regarding the passing of the award 1/94 dated 28.3.1994 for a sum of Rs.16,081/- in respect of the lands acquired by the Government in S.No.236/6A1 under Ex C6. There is absolutely no material on record to show that the claimants were aware of the passing of the award 1/94 dated 28.3.1994 before Ex C6 communication. The Tahsildar/land acquisition officer only on the basis of Ex C7 had referred the matter under Section 18 of the Act vide his proceedings Rc A1/3756/19 dated 19.12.1995 to the District Judge. Before the trial court/land acquisition tribunal, it was not contended on behalf of the Government that the proper claim application made by the claimants under Section 18(2) of the Act. Even before the trial Court, no suggestion was put to P.W.1 as to the effect that the claim petition filed by the claimants was not in accordance with the provisions under Section 18 of the Act. But the learned counsel appearing for the respondents relying on Land Acquisition Officer-v- Shivabai and others(AIR 1997 Supreme Court 2642) would contend that for the purpose of limitation the time began to run from the date of notice as per the provision to Section 18(2) of the Act. Hence I hold on point No.1 that the claim made by the claimants is not barred by limitation under Section 18(2) (b) of the Act. 10. Point No.2: The other limb of argument advanced by the learned Special Government Pleader(AS) is that the claim petition was made only by the first claimant and hence the claim made on behalf of the other claimants is not sustainable. To meet this argument, the learned counsel appearing for the respondents would rely on a ratio in A.Viswanatha Pillai and others-v- Special Tahsildar for Land Acquisition No.IV (AIR 1991 Supreme Court, 1966). The short facts of the above said ratio are in a L.A.O.P. Proceedings/ Notification under 4(1) of the Land Acquisition Act 1894 was published in the gazette on October 25, 1960 acquiring an ancient Chalai Anicut together with embankments, sluices, culverts etc by six notifications. This ancient Chalai Anicut originally belonged to Arumugam Pillai. On his demise it devolved on his four sons Venkatachalam Pillai, Vishwanathan Pillai, Pasupathy Pillai and Subhapathy Pillai by intestate succession as coparceners. By partition deed Ex E-23 dated December 22, 1954, the four brothers partitioned certain properties but kept in common acquired Chalai Anicut under the management of the eldest brother Venkatachalam Pillai. Pursuant to the notice issued under Sections 9 https://hcservices.ecourts.gov.in/hcservices/ (3) and 10 of the Act, Venkatachalam filed his objections making reference therein to the partition deed No.2437 of 1954 in the Registrar's office, Palghat and that each of the brothers had ¼ share in the anicut and irrigation system. After the award made by the Land Acquisition Officer compensation was made to all the brothers at 1/4th share each. Venkatachalam sought six references under Section 18 as he was dissatisfied with the awards made by the Land Acquisition Officer. The Civil Court enhanced in all to a sum of Rs.52,009.40p. The State filed no appeal against the enhancement of the compensation. The Civil Court granted an award of ¼ share thereof to Venkatachalam Pillai with solatium at 15 per cent and interest thereon at 4 per cent and did not award the balance amount to the appellants in their respective shares on the ground that they did not jointly ask for reference but only one alone asked for. The two brothers asked for reference for two awards only and the last one did not ask for reference of any award. On appeals, the High Court confirmed the award and decrees of the Civil Court. Hence the second appeal before the Honourable Apex court. The relevant observation of the Honourable Apex Court relevant for the purpose of deciding this case runs as follows: "When one of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares." Under such circumstances, the objection raised by the learned Special Government Pleader(AS) that the claim application made by one of the claimants alone is not maintainable holds no water. 11. While fixing the compensation the learned land acquisition tribunal has taken into consideration Ex C11 sale deed dated 22.11.1991 which was executed three months prior to 4(1) Notification by claimants in favour of one K.Aravindakshan,s/o L.Krishnan Nair under which 10 cents of land was sold for Rs.35,000/- ie., one cent at Rs.3,500/-. The learned land acquisition tribunal after holding that the land sold under Ex C11 and the land acquired by the Government under award 1/94 dated 28.3.1994 are similar in nature and having the same potentiality has enhanced the compensation from Rs.140/- per cent fixed by the land acquisition officer to Rs.3,500/-per cent. Ex C9 , Ex C10 and Ex C12 sale deeds produced on the side of the claimants will also go to show that in the same area in s.No.173/1, the market value or guideline value for 9 cents was Rs.42380 under Ex C10. So the lands were sold at Rs.2,500/- per cent under Ex C10. The guide line value for five cents sold under Ex C9 was Rs.23,544/-. So the lands were sold at Rs.1500/- per cent under https://hcservices.ecourts.gov.in/hcservices/ Ex C9. Ex C12 has been rightly rejected by the land acquisition officer on the ground that the said sale deed was executed subsequent to the publication of 4(1) Notification. The learned land acquisition tribunal after taking into consideration of the above said all aspects has enhanced and fixed the value of compensation for the lands acquired as Rs.3500/- per cent on the basis of Ex C11 which is three months prior to 4(1) notification. I hold on point No.2 that the compensation fixed by the land acquisition tribunal cannot be said to be arbitrary or exorbitant or illegal warranting interference from this Court. Point No 2 is answered accordingly. 12. Point No.3: In view of my findings and discussions in the above point Nos 1 and 2, I hereby hold that there is no merit in the appeal and the same is liable to be dismissed. 13. In fine, the appeal is dismissed confirming the decree and Judgment made in L.A.O.P.No. 14 of 1998 on the file of the Court of Subordinate Judge, Uthagamandalam. Time for depositing the award amount is six weeks. If there is any collusiveness or mal practice between the revenue officials and the claimants in preferring a reference, the Government is entitled to take appropriate action through appropriate forum if, it is so advised. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sg To 1. The Subordinate Judge,Udhagamandalam 2. The Section Officer, V.R.Section, High Court, Madras + 1 CC to the Government Pleader SR NO 55706 + 1 CC To Mr.Purankhemka, Advocate SR NO.55638 A.S.NO.904 of 2001 RSY(CO) SRA(03/10/2008) https://hcservices.ecourts.gov.in/hcservices/