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2002 DIGILAW 599 (CAL)

Sanjoy Kumar Mukherjee v. Special Land Acquisition Collector (H. I. T. ), Howrah

2002-09-09

PRATAP KUMAR RAY

body2002
JUDGMENT PRATAP KUMAR RAY, J. 1. Heard learned Advocates for the parties. 2. In the instant application, the petitioner has challenged the decision of Special Land Acquisition Officer (HIT), Howrah, issued under memo. no. 669/LA(IT), dated 30.5.2002 whereby and whereunder the petitioner's application praying for reference under section 8 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter referred to as West Bengal Act II of 1948) was rejected on the ground that the application was time barred, that is after expiry of 6 weeks from the date of receipt of notice under section 7(2) of the said Act. 3. The fact leading to the writ application is very short. 4. An award was declared on 6.7.1994 in absence of the petitioner. A notice was issued under section 7(2)(aa)(ii) of the said Act II of 1948, which was received by the petitioner on 13.7.1994. In the notice, the date of the award and the amount of compensation as was payable, only were mentioned. The petitioner applied for certified copy of the award on 17.8.1994 which was delivered on 25.8.1994. An application praying reference to the civil court was filed on 30.8.1994, and such application was ultimately decided by the impugned decision dated 30.5.2002 that is after lapse of nearly 8 years. 5. This writ application has been opposed by the State respondents by contending, inter alia, that in terms of the statutory limitation as prescribed in the concerned statute, the application was time barred and accordingly the writ court will be slow to interfere with the impugned decision. It has further been submitted that once the statutory limitation period is over, reference is not maintainable before by the concerned Land Acquisition Collector and reliance has been placed upon several judgments of this court. The petitioner, on the other hand, has contended that the petitioner since was not made aware about the particulars of the award, namely, the quantum of land as considered, market value as has been fixed, calculation of such land, as well as other details as contained in the award itself, it is violative of the principles of natural justice to deny the petitioner's right to prefer a reference unless the notice in terms of section 7(2)(aa)(ii) contains all the particulars of the award. Reliance has been placed to an unreported judgment of this court of Dilip Kumar Seth, J., in W.P. No. 2242(W) of 2001 (Shambhu Nath Kshettry & other vs. State of West Bengal & another) dated 28.8.2001 as well as a judgment of Gujarat High Court in the case of Ishabhai Umarbhai vs. State of Gujarat & another, reported in AIR 1988 Gujarat 223. Having regard to the contentions of the parties the only short point involved is the meaning of the word notice as appearing in section 8 of the said Act II of 1948. For effective adjudication of the issue, relevant provision is required to be considered. Section 7(2)(aa)(ii) of Act II of 1948 reads thus:- "The Collector shall give in the prescribed manner immediately notice of his award to such of the persons interested in the land as are not present personally or by their representatives when the award is made." Under section 8, the provisions of sub-section (2) of section 18 and of sections 19 to 22 and of sections 25 to 28 of the Land Acquisition Act, 1894, were incorporated by applying the principle legislation by incorporation. Section 18(2) of the Land Acquisition Act, 1894 (hereinafter referred to as Act of 1894) reads thus:- "(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-section (2) or within six months from the date of Collector's award, whichever period shall first expire." 6. In terms of the proviso to section 18(2)(b), it appears that the time limit for filing an application for reference is 6 weeks from the date of receipt of notice from the Collector under section 12(2) or within 6 months from the date of Collector's award, whichever period first expires. In the instant case, petitioner did not appear when the award was declared. Hence, section 18(2)(b) has the applicability. In the instant case, petitioner did not appear when the award was declared. Hence, section 18(2)(b) has the applicability. The notice under sub-clause (ii) of clause (aa) of sub-section (2) of section 7 has been declared as a notice equivalent to notice under sub-section (2) of section 12 of the Land Acquisition Act, 1894 in terms of explanation as mentioned in section 8 of Act II of 1948. Section 12(2) of the Land Acquisition Act, 1894 reads thus:- "The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made." 7. From the statutory provisions, it appears that land owners, whose lands are acquired, accordingly got a chance to assail an award before the concerned civil court by lodging a reference application to the concerned Land Acquisition Collector if he is dissatisfied with the award as passed. The award is an administrative decision by the concerned Collector, whereby the lis of the parties is determined so far as the quantum of compensation by calculating the market rate and other relevant factors. Even in respect of nature and claim of the particular property any dispute can be raised in such proceedings for determination. Hence, it appears that the decision of passing an award is an administrative decision by taking different factors. Such administrative decision can be assailed by way of reference application mooted through the concerned Collector in terms of section 18 of Act of 1894. Under section 18, it is clear that an objection can be raised with reference to the measurement of the land, amount of compensation as well as eligibility of the person concerned to whom the amount would be payable. Hence, it is clear that for filing a proper application for reference a person must have knowledge of measurement of the land which has been considered by the authority concerned while declaring the award, quantum of compensation and the calculation on the basis of which such quantum was arrived at as well as other relevant factors. If the contents of such award is not known, it is not possible to file any proper application objecting the aforesaid award. Further, from the relevant statute, it appears that under section 18(2) of Act of 1894, such application is required to be filed upon giving proper grounds. If the contents of such award is not known, it is not possible to file any proper application objecting the aforesaid award. Further, from the relevant statute, it appears that under section 18(2) of Act of 1894, such application is required to be filed upon giving proper grounds. Hence, it is crystal clear from the statutory provision, namely, the word objection as appearing in section 18(1) and the word ground as appearing in section 18(2) of Act of 1894, that the person concerned must have knowledge about the basis and/or foundation on which an administrative decision, namely, the award was passed by the appropriate authority. It is a settled law now that whenever and in whatever forum any decision is taken either by way of administrative decision and/or by any authority exercising quasi-judicial power and/or by any judicial authority, grounds of such decision must be stated so that the person concerned may challenge the same before the appropriate authority by taking proper grounds. When under a statute, a statutory relief has been granted to challenge the award the knowledge of contents of the award available to the petitioner the petitioner cannot challenge the same. Under section 12(2) of the said Act the Collector is required to give immediate notice of his award to persons who are not present at the time when the award is made. Now, it is to be seen what is the meaning of the words notice of the award. Does notice of the award mean that mere notice intimating that the award has been passed on a particular date or notice of the award means the notice upon giving detailed particulars of the award? It has been submitted by the learned Advocate for the State respondents that the statute has simply used the word notice hence meaning of such word notice is to be construed literally, which merely means that a mere notice intimating the date of award. It is further submitted that the concerned person, being aggrieved by such, if any was required to take certified copy of such and then to file a reference within 6 weeks from the date of receipt of notice. Such contention of the learned Advocate of the State respondents cannot be accepted in view of the statutory provision authorising and empowering an aggrieved person to file a reference upon giving objection to such decision of the award. Such contention of the learned Advocate of the State respondents cannot be accepted in view of the statutory provision authorising and empowering an aggrieved person to file a reference upon giving objection to such decision of the award. Notice of the award in the instant case must be construed as the notice of the contents of the entire award so that a person can decide either to object or to accept. As already held by me that the award is an administrative decision and this administrative decision is assailable by way of reference before a civil court and the right of the person concerned cannot be curtailed and/or limited and/or contoured without supplying the person concerned the grounds of the award as well as its materials as was considered by the authority concerned. Under the statute, there is no such provision that upon having a notice of such award wherin no contents of the award were disclosed, person concerned will apply for certified copy and thereafter will file reference application. Had it been the intention of the legislature that the notice of the award would mean a mere notice intimating only the date of the award, surely there would have been a provision giving details of issuance of certified copy of such award and the calculation of the period of limitation for deducting the time as would be consumed for having the certified copy from the authority. In the statute there is no such provision, and in that view, notice of the award must be deemed and construed as the notice of contents of the award in details so that any objection can be raised within 6 weeks from such date. Here, the word notice must not be construed as a formal notice only giving the dates of the award. Furthermore, if the word is interpreted otherwise, the result would favour the petitioner. The words notice of award if considered in a composite way it means notice of the entire award that is the decision as reached by the authority concerned. Notice of award never means notice of the date of award which has been submitted by the learned Advocate of the State respondents. The word award as appearing in section 12(2) of the said Act would be construed as the award as passed by the authority concerned that is the entire contents of the award. Notice of award never means notice of the date of award which has been submitted by the learned Advocate of the State respondents. The word award as appearing in section 12(2) of the said Act would be construed as the award as passed by the authority concerned that is the entire contents of the award. The date of passing an award is considered as the date of delivery of the award and/or declaration of the award and it cannot be said as the award itself. The award means the entire decision making process and the decision which culminated to a particular decision in the nature of award by the Collector. In that view of the matter, section 18(2)(b) is to be construed as the date of receipt of contents of the award to decide the question of limitation. In the instant case, it appears that the contents of the notice was never delivered to the person concerned and accordingly 6 weeks period, as has been considered as limitation to reject the prayer for reference, has no basis, and accordingly, the impugned decision is liable to be set aside and quashed. From the records, it appears that having obtained certified copy of the award, the petitioner has already filed an application for reference and that is within 6 months from the date of award as passed. In the instant case, accordingly it is held that there was no notice from the Collector under section 12(2) of Land Acquisition Act, 1894, which in the instant case is to be considered under section 7(2)(aa)(ii) of Act II of 1948. In that view of the matter, the second contingency of section 18(2)(b) has its applicability namely, reference could be filed within 6 months from the date of Collector's award. From the records it appears that the same has been done. In that view of the matter, the impugned decision is hereby set aside and quashed and the respondents concerned are directed to act in terms of section 19 of Land Acquisition Act, 1894, by considering the reference as filed by the petitioner within time. Since the matter has been already delayed by long 8 years, the respondents are directed to refer the matter immediately within 4 weeks from the date of communication of the order. 8. The writ application is accordingly allowed. Writ application allowed.