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Allahabad High Court · body

1996 DIGILAW 421 (ALL)

BIMLA KUMARI v. STATE OF U P

1996-04-08

B.S.CHAUHAN, MARKANDEY KATJU

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B. S. CHAUHAN, J. By means of this petition the petitioner has challenged the impugned order dated 29-9-95 passed by the Special Land Acquisition Officer (Nagar Mahapalika), Allahabad, respondent No. 2 (Annexure-8 to the writ petition), wherein the respondent No. 2 has rejected the application of the petitioner under Section 18 of the Land Acquisition Act, 1894, hereinafter called the Act and refused to make a reference to the court. The impugned order is very short and reads as under: "perused the opinion of the D. G. C. (Civil), reference is time barred and hence rejected". 2. The facts of the case are that the land of the petitioner measuring only 12 biswas, i. e. 1632 sq. yards in plot No. 419 situated at the revenue estate of village Kasari Masari, district Allahabad, was covered by a notification under Section 4 (1) of the Act dated 13-7-90 and in respect of which declaration under Section 6 of the Act and been issued on 20-8-90. The petitioner was dispossessed by the respondent No. 2 on 12-11-90 by resorting to the provision of urgency clause enshrined in Section 17 of the Act. The petitioner was awarded 80% or the estimated value of the land as required under Section 17 (3-A) of the Act but some persons raised the dispute regarding the title of the petitioner and the matter was referred to the District Judge under Section 31 (2) of the Act for reference vide order dated 23-2-91 of the respondent No. 2 (Annexure-2 to the writ petition ). The reference court decided the dispute of the ownership in L. A. R. No. 53/91, Smt. Bimal Kumari v. Hamid Ali & Anr. vide its order dated 8-8-95 in favour of the petitioner and she was paid the entire disputed amount (Annexure-3 to the writ petition ). 3. The petitioner filed the objections on 16-8-95 under Section 10 of the Act for assessing the market value of her plot before the respondent No. 2 and at that particular point of time she came to know that the award under Section 11 of the Act had already been delivered on 12-10-92. The petitioner submitted the application on 21-8-95 before respondent No. 2 to refer the matter for reference to the court under Section 18 of the Act along with an application under Section 5 of the Limitation Act (Annexure-7 to the writ petition ). 4. The petitioner submitted the application on 21-8-95 before respondent No. 2 to refer the matter for reference to the court under Section 18 of the Act along with an application under Section 5 of the Limitation Act (Annexure-7 to the writ petition ). 4. The contention of the petitioner had been that she had never been given any notice of the award dated 12-10-92 and she came to know about it only on 16-8-95 and the limitation for making the reference should start only from the date of knowledge. However, as stated above, the respondent No. 2 vide impugned order dated 29-9-95 rejected the case of the petitioner. 5. It is settled law that making a reference under Section 18 (2) of the Act the Land Acquisition Collector passes an administrative order, it is not a judicial or quasi-judicial function and thus the provisions of Section 5 of the Limitation Act, 1963 are not attracted at all. 6. In Officers on Special Duty (Land Acquisition) &anr. v. Shah Mani Lal Chandu Lal Etc. , 1996 (2) JT 278 , 1996 (2) JCLR 153 (SC) ; 1996 JIR 447 (SC) the Supreme Court after considering a large number of cases particularity Md. Hasmuddin v. State of Maharashtra, 1979 (2) SCC 572 ; State of Punjab &anr. v. Satinderbir Singh, 1995 (3) SCC 330 :1995 (1) JCLR 508 (SC); Kaushalya Rani v. Copal Singh, AIR 1964 (SC) 260 , Smt. Sushila Devi v. Ramanadan Prasad & Anr. , 1976 (1) SCC 361 and P. V. Gadgil v. P. V. Deshpandey, AIR 1983 Bom 342 , reached the conclusion that the Land Acquisition Collector does not have the power to condone the delay as the provisions of Section 5 of the Limitation Act are not attracted. 7. The another aspect of the matter is regarding the starting point of limitation for making a reference under Section 18 of the Act. 8. In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer & Anr. 7. The another aspect of the matter is regarding the starting point of limitation for making a reference under Section 18 of the Act. 8. In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer & Anr. , AIR 1961 SC 1500 the Apex Court observed as under: "if the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communi cated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. . . . . . . . The knowledge of the party affected by the award either actual or con structive, 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 com municated 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 Collectors award used in the proviso to Section 18 in a literal or mechanical way. " 9. The Constitution Bench of the Supreme Court while interpreting the provisions of Preventive Detention Act, 1950 in Bidya Deb Barma etc. v. District Magistrate, Tripura, AIR 1969 SC 323 , approved and reaffirmed the principle enun ciated in the case of Harish Chandra (Supra) that law of limitation starts from the date of knowledge. 10. " 9. The Constitution Bench of the Supreme Court while interpreting the provisions of Preventive Detention Act, 1950 in Bidya Deb Barma etc. v. District Magistrate, Tripura, AIR 1969 SC 323 , approved and reaffirmed the principle enun ciated in the case of Harish Chandra (Supra) that law of limitation starts from the date of knowledge. 10. In State of Punjab v. Mst, Quisar Jahan Begam, AIR 1963 SC 1604 , the Supreme Court again interpreted the second part of clause (b) of Section 18 (2) of the Act by holding that the date of award means the date when the award is either communicated to the party or is known by him. The court further observed that knowledge of the award does not mean a mere knowledge of the fact that an award has been made, but knowledge must relate to the essential contents of the award. 11. In Trustees of Port of Bombay v. Premier Automobiles Ltd. &anr. , AIR 1974 SC 923 , the Supreme Court examined the question regarding the starting point of limitation under Section 87 of the Bombay Port Trust Act, 1879. The Court relied upon the judgment in Harish Chandra (Supra) and held that limitation for filing the suit under the said provision would start from the date of the knowledge of the arrival of consignment. 12. Similarly, in Madan Lal v. State of U. P. , AIR 1975 SC 2085 , the issue in volved had been the starting point of limitation for the appeal under Section 17 of the Indian Forest Act, 1927. The Apex Court referred to and relied upon the judge ment in Harish Chandra (Supra) and held that the limitation would start from the date of knowledge of the order and not from the date of the order. 13. In Collector of Central Excise, Madras v. M/s. M. M. Rubber and Company, Tamil Nadu, AIR 1991 SC 2141 . the Apex Court again placed reliance on the judge ment in Harish Chandra (Supra) while interpreting the provisions of Section 35-E (3) of the Central Excise and Salt Act, 1944. The Court also referred to the judgment of the Madras High Court in Muthia Chettiar v. Commissioner of Income Tax, AIR 1951 Mad. 204 , where the rule of running the limitation from the date of knowledge had been held to be "a salutary and just principle". The Court also referred to the judgment of the Madras High Court in Muthia Chettiar v. Commissioner of Income Tax, AIR 1951 Mad. 204 , where the rule of running the limitation from the date of knowledge had been held to be "a salutary and just principle". The Apex Court observed as under: "the application of the rule so far as the aggrieved party is concerned is not dependent on the provisions of the particular statute but is so under the general law". 14. In Dara Singh v. State through Director of Enforcement, New Delhi, AIR 1981 SC 427 , the Apex Court placed reliance upon the judgment in Harish Chandra (Supra) and observed as under: "it is equally so even in the case of an order non-compliance of which would lead to prosecution and consequent imposition of penalty. When the law lays down that non-com pliance with an order would expose the person against whom it is made to criminal liability. It is reasonable to hold that in the absence of proof of his knowledge of the order no penal action can be taken against him for non- compliance with it. The information or knowledge that he may gather about such order in the course of criminal proceedings instituted for non-compliance with it cannot be a substitute for the knowledge of the order as mentioned above, which should ordinarily precede the institution of such proceedings. " 15. Thus, in "view of the above, the respondent No. 2 ought to have examined whether the petitioner had any knowledge of the award dated 12-10-92 and should have determined the exact point of time when the petitioner got the knowledge of the award dated 12-10-92 and then after giving six months period of limitation from the point of time of knowledge of the petitioner, should have computed the period of limitation. 16. In the instant case the respondent No. 2 has rejected the application vide impugned order dated 29- 9-95 by a non-speaking order merely observing that it was time barred. We are of the considered opinion that the impugned order dated 29-9-95 being contrary to the above settled principle of law is illegal and is hereby quashed. 16. In the instant case the respondent No. 2 has rejected the application vide impugned order dated 29- 9-95 by a non-speaking order merely observing that it was time barred. We are of the considered opinion that the impugned order dated 29-9-95 being contrary to the above settled principle of law is illegal and is hereby quashed. The respondent No. 2 is directed to re-determine the whole issue in the light of the law as explained above and if he finds that the application of the petitioner was filed within a period of six months from the date of her knowledge of award dated 12-10-92 (Annexure-4 to the writ petition) he is directed to refer the matter to the court under Section 18 of the Act. 17. The writ petition is allowed. No order as to costs. Petition allowed. .