MELKANGANAM TAHSILDAR v. GOVINDAN NAIR — 1965 DIGILAW 271 (KER)

Judgment :- 1. In this appeal, on behalf of the 2nd plaintiff appellant, Mr. G. Viswanatha Iyer, learned counsel, challenges the decree of the learned Subordinate Judge of Trivandrum holding that the application by the appellant, asking for a reference under S.18 of the Travancore Land Acquisition Act is barred by limitation. Pausing here for a minute, it may be stated that the learned Subordinate Judge has held that if the application for reference filed by the appellant is considered to be within time, then he will be entitled to enhanced compensation at Rs. '125 percent. There is also an attack levelled by the learned Counsel for the appellant, as against the increase in the apportionment of the compensation in favour of the 1st plaintiff, who is the 1st respondent in this appeal. 2. The 'subject-matter of the acquisition relates to 50 cents comprised in S. No. 352 of Muttathara village in Trivandrum Taluk. The acquisition was for the purpose of providing accommodation to the Kamaleswaram Primary School. The acquisition, as already mentioned, was under f he Travancore Land Acquisition Act, XI of 1089.The declaration under S.6 of the said Act was published on 19th August 1958. The appellant-2nd plaintiff claimed value for the land at Rs. 200 percent. The 1st respondent who is the tenant of the property, claimed value of improvements and also compensation for the Kuthakapattom lease being terminated by virtue of the acquisition. 3. The Land Acquisition Officer made an award of Rs. 75 per cent on 18th October 1958, and a total sum of Rs. 4,696.60 p. was awarded to the appellant. From and out of this amount, the Land Acquisition Officer had directed, that the 1st respondent 1st plaintiff, who, as I already stated, is the kuthakapattom lessee, is entitled to a sum of Rs. 110 being value of the improvements effected by him on the property. Both the parties appear to have asked for a reference to court, the details of which will be mentioned a little later. 110 being value of the improvements effected by him on the property. Both the parties appear to have asked for a reference to court, the details of which will be mentioned a little later. So far as the application for reference filed by the 1st respondent is concerned, no controversy has been raised that it is in any manner barred by limitation; and that related only to the question of the apportionment in the sense that he wanted a higher amount to be paid to him from and out of the total compensation amount to be paid to the appellant. So far as the appellant 2nd plaintiff is concerned, it is necessary to state a few dates in order to consider the correctness or otherwise of the reasons given by the learned Subordinate Judge that there has been no proper application riled by him within the period mentioned in S.18 of the Travancore Land Acquisition Act. 4. The award was passed on 18th October 1958, and it is seen from Ex. D-2, dated 28th November 1958 that the appellant made a request for drawing the amount under protest, and ultimately it is also in evidence that he so received the amount on 3rd December 1958. According to the 2nd respondent State, notice of the making of the award, as is required under S.12 (2) of the Travancore Act, was served on the Samprathy in the office of the appellant 2nd plaintiff on 6th November 1958. The appellant filed an application on 8th January 1959 under S.18 (2) of the Act asking for a reference to be made to the civil court. According to the appellant, he is entitled to get additional compensation in respect of the property acquired, and he has also raised a contention that the 1st plaintiff is not entitled to claim any share from and out of the compensation amount. 5. In the original written statement, the State no doubt raised an objection that the appellant is not entitled to claim any enhanced compensation, inasmuch as, according to the State, the award fixing Rs. 75 percent is perfectly reasonable and proper. The State also took up the position that the apportionment of the compensation amount has also been properly done as between the 1st plaintiff and the 2nd plaintiff and that also does not require interference by court. 75 percent is perfectly reasonable and proper. The State also took up the position that the apportionment of the compensation amount has also been properly done as between the 1st plaintiff and the 2nd plaintiff and that also does not require interference by court. Later on, the State filed a supplementary written statement wherein they have raised a specific contention that the application filed by the 2nd plaintiff on 8th January 1959 is beyond the period of two months provided for in the first part of clause (b) of the proviso to sub-section (2) of S.18 of the Travancore Land Acquisition Act. Therefore it was urged on behalf of the State that the question as to whether the appellant is entitled to any compensation does not at alt arise for consideration. Before the learned Subordinate Judge, the appellant appears to have raised a contention that the application filed by him on 8th January 1959 is perfectly valid and within the period of six months provided for in the latter part of clause (b) of the proviso to sub-section (2) of S.18 of the Travancore Act, and that service, of notice of the award, stated to have been effected on the Samprathy in the office of the appellant, is not proper, because the service is not in the manner provided for in S.40 of the Travancore Act. Alternatively the appellant also raised a contention that in any event, the application filed by him on 28th November 1958 evidenced by Ext.D-2. can itself be considered to be an application for reference made within time, and that therefore there is no question of any bar of limitation, inasmuch as that application has been filed within two months from the date of the award itself. 6. The learned Subordinate Judge has taken the view that the appellant's claim that the application Ex. D-2 is to be treated as an application asking for reference to the civil court cannot be accepted inasmuch as it does not make any such request, nor does it contain the necessary particulars, as is mandatory in an application provided for in S.18 of the Travancore Act. D-2 is to be treated as an application asking for reference to the civil court cannot be accepted inasmuch as it does not make any such request, nor does it contain the necessary particulars, as is mandatory in an application provided for in S.18 of the Travancore Act. Then the learned judge is of the view that in this case, even on the evidence furnished by the appellant 2nd plaintiff, the Samprathy in his office was entitled to receive notices on his behalf, and therefore service of notice of the making of the award on 6th November 1958 on the Samprathy and his acceptance of the said notice must be considered, in law, to have been properly effected; and therefore, inasmuch as the appellant has asked for a reference beyond the period of two months of receipt of the notice, i. e., only on 8th January 1959, the application filed by the appellant for reference is barred by limitation. The learned Subordinate Judge has also held, after a fairly elaborate consideration of the various items of evidence placed before" him by the parties, that if the appellant is otherwise entitled to claim enhanced compensation, the proper value that has to be fixed for the land acquired is not at Rs. 75 per cent as held by the Land Acquisition Officer, but really at an enhanced rate of Rs. 125 percent. The learned judge did not pass a decree in favour of the appellant for this enhanced amount, because he held that the application for reference made by the appellant is barred by limitation. The learned judge then considers the claim made by the 1st plaintiff for a further enhancement, and he has ultimately awarded an additional amount of Rs. 165 in favour of the 1st plaintiff 7. In this appeal, as T have already stated, the appellant attacks the reasoning of the learned judge holding that the application filed by him on 8th January 1959 is barred by limitation, as also the further enhancement by Rs. 165 awarded by the learned judge in favour of the 1st respondent 1st plaintiff. 8. Mr. In this appeal, as T have already stated, the appellant attacks the reasoning of the learned judge holding that the application filed by him on 8th January 1959 is barred by limitation, as also the further enhancement by Rs. 165 awarded by the learned judge in favour of the 1st respondent 1st plaintiff. 8. Mr. Viswanatha Iyer, learned counsel for the appellant raises three contentions in this appeal, namely (1) that the view expressed by the lower court that the application filed by the appellant on 8th January 1959 for reference under S.18 of the Travancore Land Acquisition Act is barred by limitation is erroneous, (2) the second contention of the learned counsel is that even if the said application is barred by limitation, nevertheless the application filed by his client on 28th November 1958, under Ex. B-2 and Which has been filed within two months of the date of the award, has itself to be treated as an application for reference filed under S.18 of the Travancore Act, (3) the third and the last contention of the learned counsel for the appellant relates to the slight enhancement granted by the learned judge in favour of the 1st plaintiff, namely in the sum of Rs. 165. (His Lordship discussed the third of these contentions in Para.9, 10 and 11, and held that the 1st plaintiff will be entitled to get only the sum of Rs. 150 as against Rs. 165 awarded.) 12. Coming now, to the first two contentions raised by the learned counsel for the appellant, it is necessary to refer to the scheme of the Travancore Land Acquisition Act. That Act has been modelled more or less on the Central Act. The Land Acquisition Act, 1894 (I of 1894), excepting that the period provided for in the earlier part of clause (b) of the proviso to sub-section (2) of S.18 in the Travancore Act, is slightly longer than that provided for under the Central Act. The Travancore Land Acquisition Act will hereafter be referred to as the Act. In S.12, sub-section (1) it is provided that an award made under the Act shall be filed in the Diwan Peishkar's office. The Travancore Land Acquisition Act will hereafter be referred to as the Act. In S.12, sub-section (1) it is provided that an award made under the Act shall be filed in the Diwan Peishkar's office. Under sub-section (2) of that section it is provided that the Diwan Peishkar shall give immediate notice of the award to such of the persons interested as are not present personally, or by their representatives when the award is made. Therefore it will be seen that it is obligatory on the part of the Land Acquisition Officer to give notice of the award, under subsection (2) of S.18, to the persons referred to therein. S.18 provides for reference to court and procedure therein. Sub-section (1) of that section provides for the various matters which are required to be stated in an application that has to be made by the party concerned, requiring the officer to refer the matter for determination of the civil court. It will also be seen that the ingredients of sub-section (1) of S.18 are (a) that there must be a requirement in the written application that the matter be referred to the Diwan Peishkar for determination of the District Court concerned and (b) that the said application must state as to whether the objection is to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. I am particularly referring to these aspects because one of the questions that arise for consideration in the appeal is as to whether the communication, dated 28th November 1958 under Ex. D-2 can be considered to be an application made for reference under S.18(1) of the Act. Sub-section (2) of S.18 provides for the application stating the grounds on which objection to the award is taken. The proviso to this sub-section deals with the period within which the application is to be made. In clause (a) of the proviso it is provided that if the party was present or was represented before the Diwan Peishkar at the time when the award was made, the application for reference must be made within two months from the date of the award. In clause (a) of the proviso it is provided that if the party was present or was represented before the Diwan Peishkar at the time when the award was made, the application for reference must be made within two months from the date of the award. In clause (b) of the proviso it is provided that in other cases the application must be made within two months of the receipt of the notice from the Diwan Peishkar under sub-section (2) of S.12, or within six months from the date of the award, whichever period shall first expire. The provisions that will apply to this case are those contained in the 1st part of clause (b) of the proviso to S.18 (2) of the Act; because there is no controversy in this case that the applicant was not present, nor was he represented before the Diwan Peishkar at the time when the award was made. Therefore it is obligatory on the part of the Land Acquisition Officer to issue notice of the award under S.12 (2) of the Act. If that is so, the period of limitation for filing the application for reference to court will be, either within two months of the receipt of notice from the Diwan Peishkar, or within six months from the date of the award, whichever period shall first expire. 13. According to the learned counsel for the appellant in this case, even if the application made on 8th January 1959 is treated as the first application for reference made by the appellant, nevertheless, inasmuch as there has been no proper service of notice of the award on him, as is required under S, 40 of the Act to which reference will be made later and he has filed the application within two months of the date of the award, the provisions contained in the latter part of clause (b) of the proviso to sub-section (2) of S.18 of the Act apply, and therefore the application is within time. On the other hand, the stand taken by the learned Government Pleader appearing on behalf of the State is, that it is the period provided for in the earlier part of clause (b) of the proviso to S.18 (2) that is applicable to the present case, inasmuch as the notice of the award under S.12 (2) has been received by the appellant, through his Samprathy on 6th November 1958, as admitted by the appellant as pw. 4 in these proceedings. 14. The only other provision that has to be noted is S.40 of the Act which deals with service of notice by the Diwan Peishkar. Sub-section (2) of S.40 provides for service of notice being made on the person concerned as far as practicable. Sub-section (3) provides for service of notice being made in the manner provided therein, when such person cannot be found. Pausing here for a minute, it may be stated that in the case before me strictly and technically, service of notice of the award, has not been effected in accordance with the provisions of sub-section (3) of S.40 of the Act. There is also a proviso to sub-section (3) wherein provision is made for notice being sent by registered post by the Diwan Peishkar to the party concerned. That method also has not been adopted in this case. 15. Therefore, the first question that arises for consideration in the appeal, as I have already indicated, is as to whether the view of the lower court that the application filed by the appellant on 8th January 1959 is barred by limitation, in as much as it was sent after the expiry of two months from the date of receipt of notice of the award, namely 6th November 1958, on the appellant is correct or not. 16. Mr. 16. Mr. Viswanatha Iyer, learned counsel for the appellant points out that inasmuch as the provisions contained in S.182) provide for the period of limitation being reckoned and will practically deprive persons like the appellant of their remedy of asking for reference to court, it is obligatory on the part of the State to establish that service of notices, in the manner provided for in S.40 of the Act, has been made; and therefore unless that is established the appellant is entitled to file the application within six months from the date of the award, as is provided for in the latter part of clause (b) of the proviso to sub-section (2) of S.18 of the Act. In this connection the learned counsel referred me to the decision of the Madras High Court reported in Papamma Rao v. Revenue Divisional Officer AIR. 1918 Mad. 589. In that case it is seen that the Manager of the office of the receiver, who was a party to the land acquisition proceedings, received notice of the award. The question was as to whether it was proper service on the Receiver under the corresponding provision in the Central Act, namely, S.45. Wallis, C. J., and Kumaraswami Sastri, J., who dealt with the matter, are ultimately of the opinion that service of notice of the award on the manager, cannot be considered to be proper service under S.45 of the Central Act; and that even assuming that the manager in that case was authorised to receive notice, such service was not valid. I am particularly referring to this observation of the learned judges, because the learned counsel for the appellant has placed considerable reliance on that observation. According to the learned counsel, the mere fact that in this case the State is relying upon the admission made by the appellant, as PW. 4, that during his absence the Samprathy in his office has been authorised to receive notice and that the Samprathy has received the present notice on his behalf, and that the Samprathy has also received the previous notice under S.9(3) is of no consequence whatsoever, so long as the service has not been in accordance with the provisions in S.40 of the Act. No doubt prima facie the observation of the learned judges contained in the decision of the Madras High Court referred to above may appear to support the stand taken by the learned counsel for the appellant. The learned counsel also drew my attention to the decision of Ramaswami, C. J., (as he then was), and R. K. Choudhary, J., of the Patna High Court, reported in Bansari v. Bihar State AIR. 1959 Pat. 83. In that case the learned judges had to consider the question whether service of notice of the award on the party's nephew was valid in view of S.45 of the Central Act. And the learned judges have held that it is not proper service. There is also a decision of My Lord the Chief Justice and Mathew, J., reported in Gopala Pillai v State of Kerala 1963 KLT.171 wherein the question as to whether service of notice on the wife, under S.40 (3) of the Act can constitute good service on the husband when both of them were co-owners and whether it can be considered to be proper service, was considered, and the learned judges have held that it is not proper service, so far as the husband is concerned. The learned counsel also drew my attention to a decision of a Single Judge of the Bombay High Court reported in Jankibai v. Nagpur Improvement Trust AIR. 1960 Born. 499, wherein service of notice of the award by affixture was held to be not valid in the circumstances of that case. Based upon all these decisions, the learned counsel for the appellant pointed out that in the present case inasmuch as service of notice of the award has not been effected on the appellant in the manner provided for in S.40 of the Act, it cannot certainly be taken into account by the State for putting out of court the claim for reference made by the appellant, on the ground that the application is barred by limitation. Therefore, according to the learned counsel his client is entitled to claim the larger period of limitation provided for in the latter part of clause (b) of the proviso to S.18(2) of the Act, namely six months from the date of the award. 17. Therefore, according to the learned counsel his client is entitled to claim the larger period of limitation provided for in the latter part of clause (b) of the proviso to S.18(2) of the Act, namely six months from the date of the award. 17. I may also state that there is a Division Bench decision of the Madras High Court consisting of Rajamanner, C. J., and Rajagopala Ayyangar, J. (as he then was), reported in A. P. S. Karuppaiah Nadur v. Special Deputy Collector for Land Acquisition AIR. 1955 Mad 406. In that case it will be seen that a proper notice issued under S.9 (3) of the Central Act was served not on the party, but on the servant of the party, and in response to that notice the party appeared and took part in the further proceedings connected with the land acquisition. Later on the party attempted to challenge the service of notice as not being in accordance with the provisions contained in S.45 of the Central Act. The learned judges repelled that contention and express the view that the utmost that can be said, regarding the manner in which the service was effected on the party, is that the service is irregular. The learned judges also hold that if a party, notwithstanding such irregular service, has participated in the further proceedings connected with the land acquisition, he is bound by those proceedings. 18. The learned Government Pleader, on the other hand, drew my attention to the specific stand taken by the appellent as P. W. 4 wherein he has categorically stated that notice under S.9 (3) was received on his behalf by the Samprathy, and he has also admitted that during his absence the Samprathy was authorised and entitled to receive notice. The learned Government Pleader also pointed out that the appellant has further admitted that notice of the award issued under S.12 (2) of the Act, has been received, on his behalf by his Samprathy on 6th November 1958. If that is so, the learned Government Pleader pointed out that the only point that requires to be considered by this Court is as to whether the appellant has asked for reference within two months from the date of receipt of notice of the award, as is mandatory under the first part of clause (b) of the proviso to subsection (2) of S.18 of the Act. The fact that the appellant himself admits that notice of the award issued under S.12 (2) of the Act was received on his behalf by his Samprathy on 6th November 1958, is a clear admission, according to the learned Government Pleader, made by the appellant that he himself received notice on that day. If that is so, the learned Government Pleader urged, the fact that there is some irregularity in the manner in which service of notice was made, is of no consequence whatsoever. 19. In my opinion the contention of the learned Government Pleader will have to be accepted. The decisions referred to by Mr. Viswanatha Iyer, learned counsel for the appellant and adverted to above, do not cover the direct question that arises for consideration in this appeal, namely as to whether when the party himself admits before court, that another individual, namely in this case his Samprathy, has been authorised to receive notice on his behalf issued under S.12 (2) of the Act, and the Samprathy has also received such notice, it can be stated in the circumstances that the party is not bound to ask for a reference to court within the period provided in the earlier part of clause (b) of the proviso to sub-section (2) of S.18 of the Act. The only decision wherein no doubt, there is an observation to the effect that even if there has been authorisation given by the receiver to the manager to receive notice, service of notice on such manager, cannot be considered to be proper service under S.45 of the Central Act corresponding to S.40 of the Travancore Act, is the one found in Pappamma Rao v. Revenue Divisional Officer AIR. 1918 Mad. 589. In my opinion, the observation of the learned judges in that decision is too wide. If the learned judges intended to lay down that even when a party admits that another individual has been authorised to receive notice on his behalf and that individual received a particular notice on his behalf, even then it has to be held to be invalid, with respect I differ. The other decisions adverted to above do not deal with the particular aspect that arises for consideration now before me. The other decisions adverted to above do not deal with the particular aspect that arises for consideration now before me. But I have already indicated the view taken by the learned Chief Justice and Rajagopala Ayyangar, J., (as he then was), in the decision of the Madras High Court reported in A. P. S. Karuppaiah Nadar v. Special Deputy Collector for Land Acquisition AIR. 1955 Mad. 406. I have also pointed out that even if there is an irregular service and one not in accordance with the provisions contained in S.45 of the Central Act, the learned judges have held that if the party, in response to the said notice, participates in the further proceedings before the Land Acquisition Officer, he cannot turn round and attack the proceedings on the ground that the service of notice is not proper under S.45 of the Central Act. With that decision I respectfully agree. That is the position so far as this matter is concerned. 20. The appellant, as pointed out by the learned Government Pleader, has categorically admitted that the Samprathy in his office was authorised to receive notice on his behalf. He has also admitted that the notice issued under S.12 (2) of the Act has been received, on his behalf by the Samprathy. If that is so, in my opinion, the only question is as to whether the appellant has filed an application asking for reference to court within two months from the date of receipt of the notice from the Collector, as is mandatory under the earlier part of clause (b) of the proviso to sub-section (2) of S.18 of the Act. The Samprathy has received notice on 6th November 1958 issued under S.12 (2) of the Act. The application filed by the appellant asking for reference is beyond the period of two months provided for in the first part of clause (b) of the proviso to sub-section (2) of S.18 of the Act, inasmuch as it was only on 8th January 1959. No doubt, the period of limitation, when it is put against a party, always works hardship. The fact that the application filed by the appellant is two days after the expiry of two months, has no doubt operated to the prejudice of the appellant. No doubt, the period of limitation, when it is put against a party, always works hardship. The fact that the application filed by the appellant is two days after the expiry of two months, has no doubt operated to the prejudice of the appellant. But the period of limitation provided for in the statute cannot be enlarged by the court, because the provisions of S.5 of the Limitation Act do not apply. If that is so, it follows that the view of the lower court that the application filed by the appellant on 8th January 1959 asking for reference to court is barred by limitation, is perfectly correct. 21. As already indicated by me, the learned counsel for the appellant alternatively urged that the application filed by him on 28th November 1958, namely Ex. D-2, must itself be treated as an application for reference under S.18 of the Act. I have gone through the said application. I have already adverted to the provisions contained in S.18 (1) of the Act and the ingredients thereof. Having due regard to those provisions I do not think that the application dated 28th November 1958, namely Ex. D-2 can be treated as an application for reference under those provisions. In the said communication the appellant draws the attention of the Deputy Collector to the communication dated 17th September 1958 and requests the officer to arrange for payment of compensation fixed by him. It is also seen that he is receiving the amount under protest. There is absolutely no request made by the appellant in Ex. D-2 asking for a reference to civil court, nor does it contain any of the particulars referred to in S.18 (1) of the Act. If that is so, it follows that the decree of the trial court holding that the claim for enhanced compensation made by the appellant cannot be entertained because there has been no proper application for reference filed by him within time, has to be sustained. 22. No doubt it is a very hard case because the learned Subordinate Judge on the merits, has accepted the claim of the appellant and fixed a higher value if he is entitled to in the sum of Rs. 125 per cent. But that benefit the appellant does not get because the application filed by him has been held by me to be barred by limitation. 23. 125 per cent. But that benefit the appellant does not get because the application filed by him has been held by me to be barred by limitation. 23. The result is that excepting the small variation that has been made by me as against the claim of the 1st respondent-1st plaintiff, wherein I have held that as against the sum of Rs. 165 awarded in his favour by the lower court, he will be entitled only to a sum of Rs. 150, in all other respects the decree of the lower court will have to be sustained and this appeal dismissed. The parties will bear their own costs. Dismissed.