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2004 DIGILAW 2436 (ALL)

Vijai Pal v. State of U. P.

2004-12-03

A.P.SAHI, R.P.MISRA

body2004
JUDGMENT A. P. Sahi, J.—The petitioner has assailed the order of the Special Land Acquisition Officer dated 2.7.2003, whereby the application moved by the petitioner for referring the award under Section 18 has been rejected by the Addl. District Magistrate (Administration) and Special Land Acquisition Officer, Bulandshahr. The claim of the petitioner alongwith 15 other persons has been rejected on the ground that the applications have not been moved within the time prescribed under Section 18 and since they are heavily barred by time without any supporting explanation for the delay, therefore, the applications were not maintainable. 2. The present writ petition has been filed by only one of such applicants namely Shri Vijai Pal. Alongwith the writ petition, the petitioner has filed a copy of the application moved by him on 11.2.2000, before the Collector/ Special Land Acquisition Officer, Bulandshahr. The said application discloses the following facts as admitted to the petitioner himself. The Notification under Section 4 for acquiring the land of the petitioner was published on 26.9.1981 and under Section 6 on 10.10.1981. The award was announced on 26.7.1982, The petitioner has further disclosed in para 7 of the said application that he received the notice for disbursement of the compensation upon which he filed objection and received the compensation under protest. In view of this it is evident that the petitioner himself has admitted of being put to notice with regard to disbursement of the compensation upon the award having been announced and of having accepted the amount under protest. Thus, the petitioner according to his own admission in the said application had knowledge of the award and of the compensation awarded in the said proceedings. In view of this, the petitioner ought to have moved the application for reference after he had received the notice as disclosed by him in the said application. The petitioner has very conveniently not disclosed the date, in the said application, on which he received notice and as to on which date he received the compensation under protest. 3. After the matter was heard by us and the petitioner was confronted with the aforesaid situation, a supplementary-affidavit has been filed by the petitioner wherein a statement has been made that no notice under Section 12 (2) of the Land Acquisition Act was served to the petitioner and that the award was not published in well known newspapers. 3. After the matter was heard by us and the petitioner was confronted with the aforesaid situation, a supplementary-affidavit has been filed by the petitioner wherein a statement has been made that no notice under Section 12 (2) of the Land Acquisition Act was served to the petitioner and that the award was not published in well known newspapers. It is further alleged in para 4 of the said affidavit that the award was not sent to the petitioner either by registered post or Special Messenger and, as such, he had no knowledge about the declaration of the award. It is further alleged that neither the petitioner nor his representative was present at the time of the delivery of the award and, as such, the award was not delivered in his presence. Further in paragraph No. 8 of the said affidavit it is alleged that the petitioner came to know about the delivery of the award on 23.1.2000, whereafter he filed a reference on 11.2.2000. 4. The said supplementary-affidavit which was filed appears to us to be a complete afterthought inasmuch as the said facts are very clearly omitted in the application moved by the petitioner for reference on 11.2.2000. No such recital, as is now sought to be made under the supplementary-affidavit, was in existence in the application, which was moved on 11.2.2000 by the petitioner. It is, thus, obvious that the petitioner has filed the supplementary-affidavit, which contains such facts, which were never disclosed before the Special Land Acquisition Officer. 5. We have heard Shri Y. D. Sharma, learned counsel for the petitioner and learned standing counsel for the respondents. 6. Shri Y. D. Sharma, while advancing his submissions, has relied on 4 decisions of this Court. The first decision is in the case of Civil Misc. Writ Petition No. 10846 of 2001, Rajju and others v. Collector/Special Land Acquisition Officer, District Sant Ravidas Nagar, Bhadohi, decided on 22.10.2002. Petitioners in the said case have come up with a plea that they had come to know of the award on a particular date and not prior to that and the said allegations were not controverted by any counter-affidavit on behalf of the State inspite of time having been granted by the Court. Petitioners in the said case have come up with a plea that they had come to know of the award on a particular date and not prior to that and the said allegations were not controverted by any counter-affidavit on behalf of the State inspite of time having been granted by the Court. The Court, while examining the order impugned therein, found that the notice under Section 12 (2) was alleged to have been served one day prior to the making of the award. It was held that no notice under Section 12 (2) of the Act could be sent prior to the making of the award. In such a situation the reasoning given in the order, which was impugned in that writ petition, was quashed. The said case is clearly distinguishable on facts of the present case inasmuch as the petitioner himself has admitted receiving the notice as well as the compensation under protest but has very conveniently not disclosed the said date in the application. 7. The second case relied upon by the petitioner is C.M.W.P. No. 9064 of 1999, Daya Shanker and others v. State of U. P. and another, decided on 20.1.2004. There also the petitioner’s case that they had received no notice was accepted in the absence of a counter-affidavit on behalf of the State and, as such, the order impugned therein was quashed. 8. The third case relied upon by the petitioner is again between the same parties in respect of a different proceedings under the Land Acquisition Act. There also no notice was served on the petitioner under Section 12 (2) and since there was no rebuttal, the writ petition was allowed. In view of this it is evident that the facts of the present case are clearly distinguishable. 9. The last case relied upon on behalf of the petitioner is in the case of Civil Misc. Writ Petition No. 44080 of 2003, Smt. Savitri Devi v. State of U. P. and others, decided on 30.9.2003, wherein this Court relying on the decision in the case of Raj Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and another, AIR 1961 SC 1500 , has held that the date of the award as stated in Section 18 of the Act, would mean which was either communicated to the party or is known to him either actually or constructively. This necessarily means that the date of knowledge of the award either actual or constructive, has to be disclosed in the application made under Section 18 in order to enable the Collector/Special Land Acquisition Officer to determine the period of limitation so as to exercise his jurisdiction under Section 18 for referring the matter. However, the Court has gone step further by issuing a general mandamus to the effect that all such matters of reference should be referred by the Special Land Acquisition Officer to the Court in view of the fact that it is only the Court, which could decide the question of limitation. The reason given by the Division Bench is that before a reference application is rejected on the ground of limitation, there must be atleast one opportunity of remedy by way of appeal/revision for deciding the soundness of findings of fact and law with regard to limitation or otherwise. The operative portion of the said judgment is quoted herein below : “In view of the above, we issue a general mandamus directing State of Uttar Pradesh through concerned Secretary and District Magistrate/ Special Land Acquisition Officers and all concerned to comply without order/direction, namely, whenever there is a dispute regarding limitation, such authority shall adjudicate the same and refer it to the Court as contemplated under Section 18 of the Act even if such authority comes to the conclusion that it is time-barred and/or beyond six months’ limitation”. 10. On the other hand, the learned standing counsel has supported the impugned order and has submitted that the application moved by the petitioner was heavily time barred and that in the absence of any specific details given by the petitioner with regard to the date of knowledge and the date of service of notice, it cannot be said that the order dated 2.7.2003 is vitiated. He has further submitted that the additional facts with regard to knowledge of the delivery of the award and filing of the reference application and the fact that the petitioner had not been served with any notice under Section 12 (2) of the Act were not stated in the application filed by the petitioner and the said facts have been stated for the first time before this Court, that too even by way of a supplementary-affidavit after the learned counsel for the petitioner had been confronted with these questions by the Court. The learned standing counsel submits that the supplementary-affidavit is a complete afterthought and is clearly designed to overcome the deficiencies in the application, which had been originally moved before the Land Acquisition Officer. In view of this, he submits that there is no infirmity in the order dated 2.7.2003 and this Court should not interfere with the same. 11. While advancing the aforesaid submissions, the learned standing counsel has relied on 3 decisions. The first decision relied upon by the learned standing counsel is in the case of Kanchchid v. State of U. P. and others, 1999 (3) AWC 1978. In the said case, this Court relying on earlier decisions and also considering the effect of the Apex Court decision in AIR 1961 SC 1500 (supra) held that the Collector lacks jurisdiction to condone the delay in view of the fact that the fault lay squarely with the petitioner in that case as he never prayed before the Collector that an opportunity be granted to him to adduce evidence in support of the allegations of delay made by him. The Court further held that the Collector does not act as a Court so as to have jurisdiction to decide the question of delay. However, the Court ruled as under : “7. We are thus of the considered view that the law in this regard has been categorically laid down by the Supreme Court that if an application for reference is not made within the prescribed time, then the Collector will not have power to make reference and in order to determine the limitation on his powers, the Collector will have to decide whether the application presented by the claimant is or is not within time”. 12. The next case relied upon by the learned standing counsel is State of Punjab and another v. Satinder Bir Singh, 1995 (3) SCC 330 , wherein the Apex Court has ruled as under : “5. Section 18 of the Act gives right to the owner or 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. 6. 6. Sub-section (2) of Section 18 is relevant which reads thus : “18. (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 the Collector’s award, whichever period shall first expire.” 7. It would thus be clear that the person interested who had received the compensation under protest is required to state in his application for reference the grounds on which he objects to the compensation awarded by the Collector within six weeks from the date of the award when either he was present or was represented by a counsel or agent, or within six weeks from the date of the receipt of the notice from the Collector sent under Section 12 (2), or within six months from the date of the award made by the Collector whichever period should first expire. In this case since the respondent had admittedly received the notice from the Collector under Section 12 (2) on 22.9.1970, by operation of first part of Clause (b) of the proviso to sub-section (2) of Section 18, the respondent was enjoined to make the application under Section 18 within six weeks from the date of the receipt of the notice. Since admittedly, he did not make the application within six weeks, it was barred by limitation. 8. The question then is whether the notice under Section 12 (2) is a valid notice. From a conjoint reading of Sections 11 and 12, it is clear that notice is only an intimation of making of the award requiring the owner or person interested to receive compensation awarded under Section 11. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18 (1) would arise. On receipt of the notice, if the person interested receives compensation without protest, obviously no reference need be made. The determination of compensation becomes final and binds the parties. When he receives the compensation under protest as contemplated under Section 31 of the Act, the need to make the application for reference under Section 18 (1) would arise. At that juncture it will be open to the person interested either to make an inspection of the award, which was conclusive between him and the Collector by operation of sub-section (1) of Section 12, or seek a certified copy of the award from the Collector and the contents. Thereon he could make necessary objection for the determination inter alia, of compensation for the land. It is not necessary that the notice should contain all the details of the award including his consideration and its manner of determination of the compensation as opined by the learned Judge of the High Court. It is not incumbent that the person interested should immediately make the reference application on his receiving compensation under Section 31. In other words receipt of the amount and making the reference application are not simultaneous. The statutory operation of limitation mentioned by Section 18 (2) does not depend on the ministerial act of communication of notice in any particular form when the Act or Rules has not prescribed any form. The limitation begins to operate from the moment the notice under Section 12 (2) is received or as envisaged by Section 18 (2)”. 13. The next case relied upon by the learned standing counsel is the case of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal and others, (1996) 9 SCC 414 , wherein the Apex Court has ruled as under : “17. It is to be remembered that the Land Acquisition (Amendment) Act (68 of 1984) was enacted prescribing the limitation to exercise the power under Sections 4, 6 and 11 and also excluded the time occupied due to stay granted by the Courts. Taking cognizance of the limitation prescribed in proviso to sub-section (2) of Section 18, the provisions of the Limitation Act were not expressly extended. Taking cognizance of the limitation prescribed in proviso to sub-section (2) of Section 18, the provisions of the Limitation Act were not expressly extended. Though Section 29 (2) of the Limitation Act is available, and the limitation in proviso to sub-section (2) of Section 18 may be treated to be special law, in the absence of such an application by Land Acquisition (Amendment) Act (68 of 1984), the Act specifically maintains distinction between the Collector and the Court and the Collector/L.A.O. performs only statutory duties under the Act, including one while making reference under Section 18. It is difficult to construe that the Collector/L.A.O. while making reference under Section 18, as statutory authority still acts as a Court for the purpose of Section 5 of the Limitation Act. 18. Though hard it may be, in view of the specific limitation provided under proviso to Section 18 (2) of the Act, we are of the considered view that sub-section (2) of Section 29 cannot be applied to the proviso to sub-section (2) of Section 18. The Collector/L.A.O., therefore, is not a Court when he acts as a statutory authority under Section 18 (1). Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a Court under Section 5 of the Limitation Act.” 14. A perusal of the decisions cited on behalf of both the sides, it is evident that in order to adjudicate upon the question of limitation, the date of actual or constructive knowledge has to be disclosed by the aggrieved person before the competent authority in order to enable the authority to compute the period of limitation. The application filed by the petitioner does not disclose any such dates as indicated hereinabove. The petitioner has not cared to make specific allegation in the application filed by him before the Land Acquisition Officer. In view of the aforesaid facts, the order passed by the Land Acquisition Officer on 2.7.2003, cannot be faulted with. The application of the petitioner himself was deficient on all scores and none of the ingredients for computing the limitation were stated in the said application. In view of the aforesaid facts, the order passed by the Land Acquisition Officer on 2.7.2003, cannot be faulted with. The application of the petitioner himself was deficient on all scores and none of the ingredients for computing the limitation were stated in the said application. It is for this reason, the petitioner appears to have filed the supplementary-affidavit in order to patch up the aforesaid deficiencies when confronted by this Court. 15. The question, which now falls for consideration before this Court, is of vital importance. Learned counsel for the petitioner relying upon the directions issued in the nature of a general mandamus in the case of Smt. Savitri Devi v. State of U. P. and others, decided on 30.9.2003, has urged that a direction be issued in the same nature to the Special Land Acquisition Officer to refer the case of the petitioner to the Court for adjudicating the merits of the application including limitation. 16. We have carefully gone through the decision in Savitri Devi’s case (supra) but with the utmost respect to the aforesaid decision, we are unable to pursue ourselves to agree with the directions issued by this Court in the aforesaid decision. In our considered opinion this Court does not have any power to either create a jurisdiction or confer the same which is not in consonance with the scheme of the Land Acquisition Act and which is not contemplated by the Legislature. Further the aforesaid directions contained in Savitri Devi’s case appear to be in direct conflict with the ratio in the case of Kanchhid v. State of U. P. and others, 1999 (3) AWC 1978, as contained in para 7 thereof and extracted hereinbefore. In the said case, it has been specifically held that once the reference is not made within the prescribed time then the Collector will not have any power to make a reference. The directions, therefore, contained in Savitri Devi’s case to the effect that the Collector/District Magistrate/Special Land Acquisition Officer in all circumstances refer the case even if such authority comes to the conclusion that the reference is time barred is clearly in conflict with the decision in Kanchhid’s case. 17. Apart from this, we are of the opinion that the Court while interpreting a provision can “iron out the creases and not weave a next texture”. 17. Apart from this, we are of the opinion that the Court while interpreting a provision can “iron out the creases and not weave a next texture”. The direction contained in the case of Savitri Devi clearly amounts to conferring a power, which the Legislature never intended to do. In our opinion, the creation of a forum for adjudication can only be done by an Act of Legislature and authority can be conferred to act in a particular manner only by authority of law and not otherwise. Thus, in our opinion, it could have only been done by legislation and not through a Court verdict. The question as to whether the Courts can confer the jurisdiction or not was dealt with elaborately in the celebrated Constitution Bench decision of A. R. Antulay v. R. S. Nayak and another, (1988) 2 SCC 602 , wherein the Apex Court in paragraph No. 39 of the said decision has ruled as under : “39. ................. The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal. Parliament alone can do it by law and no Court, whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal. See in this connection the observations in M. L. Sethi v. R. P. Kapur in which the Justice Mathew considered Anisminic and also see Halsbury’s Laws of England, 4th Edn., Vol. 10, 327 at para 720 onwards and also Amnon Rubinstein - jurisdiction and Illegality (1965 Edn., pages 16-50). Reference may also be made to Raja Soap Factory v. S. P. Shantharaj”. 18. The right of judicial remedy under a particular scheme can be availed of only in accordance with the provisions of the enactment under which the remedy is being claimed. In the instant case, the remedy of reference has been conferred subject to the period of limitation. It is, thus, clear that an aggrieved person has been given a right to get his claim adjudicated and he is not remedyless. The remedy is curtailed only in the event of non-fulfilment of the conditions regulating the said remedy including the presentation of the application within time. Such a limitation by prescribing the time cannot be said to render a person remedyless. The remedy is curtailed only in the event of non-fulfilment of the conditions regulating the said remedy including the presentation of the application within time. Such a limitation by prescribing the time cannot be said to render a person remedyless. It is on the failure of a person to approach the authority within time that the consequences (as contemplated under Section 18) ensue. The Collector consequently ceases to have any jurisdiction to refer the matter and he does not even have power to condone the delay as has been held in several cases discussed herein above. Once the Collector ceases to have jurisdiction, he cannot be conferred with the power to refer the matter as directed in Savitri Devi’s case. 19. The right to a judicial remedy has been recognized as a fundamental right which is, however, subject to limitation prescribed in law made by the Legislature. In the instant case, the petitioner has approached this Court under Article 226 of the Constitution of India. It is always open to an aggrieved person to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India for the redressal of his grievances in the event he is rendered remedyless under any other Statute for the time being in force. This right to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India is also prescribed by certain limitations and the same can be looked into depending upon the facts of each case as in the instant case. We have also examined the case on merits and we have found that it was on account of the incomplete and improper pleadings by the petitioner before the Collector/Land Acquisition Officer that the application was rejected. Thus, it cannot be said that an aggrieved person is remedyless in the absence of any further mechanism provided under the Land Acquisition Act. 20. The aforesaid aspects have been discussed by us in order to consider the observations made in Savitri Devi’s case which has proceeded to issue the mandamus on the consideration that a further remedy in the nature of a revision or appeal should be made available against the order of the authority considering the application for reference under Section 18 of the Act. In our view such interpretation would lead to conferring a jurisdiction and creating a forum, which the Legislature did not intend to do at all. In our view such interpretation would lead to conferring a jurisdiction and creating a forum, which the Legislature did not intend to do at all. 21. In view of the forgoing discussions and in view of the fact that we are unable to persuade ourselves to issue the directions as prayed for by the petitioner in consonance with the Savitri Devi’s case (supra), we find it appropriate that the matter be placed before the Hon’ble Chief Justice/Acting Chief Justice for referring the matter to a larger Bench in order to resolve the conflict between the two Division Benches namely Kanchhid v. State of U. P. and others, 1999 (3) AWC 1978 and C.M.W.P. No. 44080 of 2003, Smt. Savitri Devi v. State of U. P. and others, , decided on 30.9.2003, to the extent of the general mandamus issued in Savitri Devi’s case and for an authoritative pronouncement on the scope and powers of the Collector for making a reference under Section 18 of the Land Acquisition Act in matters where an application is barred by limitation under the said Act. 22. It is further to be noted that in both the decisions, i.e., the decision in Kanchhid’s case and Savitri Devi’s case the respective Benches have considered the ratio in the case of an earlier Apex Court decision in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer and another, AIR 1961 SC 1500 . However, Savitri Devi’s case, which is a later decision, has not taken notice of the case of Kanchhid’s, case, 1999 (3) AWC 1978. 23. We, therefore, accordingly direct the office to place this matter before the Hon’ble Chief Justice/ Acting Chief Justice for referring the matter as provided under Chapter V, Rule 11 (IX) (b) read with Rule 6 of the Allahabad High Court Rules, 1952. 24. The following questions are framed for being considered by a larger Bench and for an authoritative pronouncement on the same : (i) Whether the directions contained in Savitri Devi’s case in the nature of a general mandamus are in direct conflict with the ratio of Kanchhid’s case, 1999 (3) AWC 1978. 24. The following questions are framed for being considered by a larger Bench and for an authoritative pronouncement on the same : (i) Whether the directions contained in Savitri Devi’s case in the nature of a general mandamus are in direct conflict with the ratio of Kanchhid’s case, 1999 (3) AWC 1978. (ii) Whether the High Court in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India while interpreting Section 18 of the Land Acquisition Act can confer the power on the Collector to refer a dispute under Section 18 even if it is barred by limitation.