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2009 DIGILAW 727 (RAJ)

Govind Kanwar v. State of Rajasthan

2009-03-06

DINESH MAHESHWARI

body2009
Hon'ble MAHESHWARI, J.—By way of this writ petition, the petitioner has questioned the order (Annex. 7) as passed by the Land Acquisition Officer, Public Works Department, Jodhpur ('the LAO') rejecting her application moved under Section 18 of the Land Acquisition Act, 1894 ('the Act of 1894') for making a reference to the competent Court. 2. Shorn of unnecessary details, the facts available on record make it clear that in the year 1977-78, 5 bighas and 10 biswas of land belonging to the petitioner's late husband falling in Khasra No. 57 of village Chopasni, District Jodhpur came to be utilised by the respondents for construction of a road without making any payment of compensation and without any acquisition proceedings. The petitioner approached this Court by filing a writ petition (CWP No. 4208/1995) that was dismissed by the learned Single Judge. However, the intra Court appeal (SAW No. 1308/1997) taken by the petitioner was allowed by the Hon'ble Division Bench on 12.10.2000. The Hon'ble Division Bench, intra alia, noticed and rejected the contention on the part of the respondents that the land in question had been utilised by them with the consent of the late husband of the petitioner who never raised any objection at the time of construction of the road or even thereafter. The Hon'ble Division Bench found it to be an admitted case that the land in question was taken over for construction of the road during famine operations in the year 1977-78 without payment of compensation; and found such an action of the respondents entirely unjustified. While allowing the writ petition, the Hon'ble Division Bench directed the Government to determine the compensation payable to the petitioner for the land in question in accordance with the provisions of the Act of 1894 within 3 months from the date of receipt of the judgment. The Hon'ble Division Bench said and directed,- "For the foregoing decisions, we are of the opinion that the appellant is entitled to succeed in her writ petition as prayed for. The Government shall determine the compensation payable to the appellant for the land in question in accordance with the provisions of the land Acquisition Act, 1894 within three months from the date of receipt of the judgment and shall pay the same to the appellant. However, we order no costs." 3. The Government shall determine the compensation payable to the appellant for the land in question in accordance with the provisions of the land Acquisition Act, 1894 within three months from the date of receipt of the judgment and shall pay the same to the appellant. However, we order no costs." 3. It appears that the petition for special leave to appeal as moved by the respondents against the aforesaid judgment dated 12.10.2000 was rejected by the Hon'ble Supreme Court on 10.5.2001. The Land Acquisition Officer, thereafter, proceeded to draw the impugned award dated 23.6.2001 (Annex. 3) awarding compensation to the petitioner in sum of Rs. 2,34,300/- while taking the market value of the land in question at Rs. 30,000/- per bigha and while allowing 30% solatium and interest @ 12% per annum. It appears further that the information about the said award was extended to the petitioner only through the communication as issued by the Executive Engineer, District Division-I, Jodhpur on 24.9.2001 (Annex. 4) whereby the was directed to collect the amount payable under the award within 7 days. The petitioner made a representation in relation to the said communication on 28.9.2001 (Annex. 5) with the submissions, inter alia that the amount as tendered was neither in accord with the orders of the Court nor in accord with the provisions of the statute; that she was neither made aware of the award nor was supplied, with its copy and came to know about the same only upon receiving the said communication dated 24.9.2001 whereafter she obtained a certified copy of the award on 27.9.2001. The petitioners, however, stated her readiness to accept the amount so tendered under protest and without prejudice to her right to claim enhancement. The petitioner further made a request that reference be made to the appropriate Court for enhancement of compensation and to make payment without prejudice to her claim for enhancement. 4. Thereafter, on 6.11.2001, the petitioner proceeded to submit an application under Section 18 of the Act of 1894 (Annex. 6) seeking a Court reference while disputing the award amount on various grounds, particularly questioning the price of the land as allowed and so also the rate and period of interest. 4. Thereafter, on 6.11.2001, the petitioner proceeded to submit an application under Section 18 of the Act of 1894 (Annex. 6) seeking a Court reference while disputing the award amount on various grounds, particularly questioning the price of the land as allowed and so also the rate and period of interest. The application so moved by the petitioner came to be rejected by the impugned order that does not bear any date but is said to have drawn on 27.11.2001 as per the order-sheets placed on record by the respondents. The said order, allegedly drawn on 27.11.2001, reads as under:- ^^izkfFkZuh Jherh xksfoUn daoj }kjk izLrqr izkFkZuk i= dk fooj.kA 1- vf/kfu.kZ; ¼Award½ /kkjk 11 ds vUrxZr fnukad 23-6-2001 dks tkjh fd;k x;k FkkA 2- Lohd`fr fnukad 10-7-2001 dks izkIr gqbZA 3- vf/k'kk"kh vfHk;Urk lk-fo-fo- ftyk [k.M izFke tks/kiqj us izkfFkZuh dks i= la[;k 5030 fnukad 24-9-2001 }kjk eqvkotk jkf'k izkIr djus gsrq lwfpr fd;k fdUrq izkfFkZuh us vius izkFkZuk i= fnukad 28-9-2001 }kjk lwfpr fd;k fd eqvkotk jkf'k vf/kfu;e ds izko/kkuksa ds rgr lgh ls fu/kkZj.k ugha dh xbZ gS rFkk /kkjk 34 ds vUrxZr C;kt Hkh r; ugha fd;k x;k gS vkSj u gh /kkjk 23¼1-A½ ds rgr jkf'k nh xbZA ;g vkifRr is'k dj fnukad 28-9-2001 dks eqvkotk jkf'k #i;s 2]34]300@& dk fMek.M MªkV la[;k BC/2/BF No. 187877 fnukad 26-9-2001 ¼LVsV cSad vkWQ chdkusj ,.M t;iqj czkap tkyksjh xsV½ izkIr fd;kA 4- jsQjsUl dk izkFkZuk i= /kkjk 18 ds vUrxZr fnukad 6-11-2001 dks izLrqr fd;k x;k tks /kkjk 18 dh mi-/kkjk¼2½ ds ijUrqd ¼d½ ds izko/kkuksa ds foijhr gSA bl izdkj ;g jsQjsUl dk izkFkZuk i= e;kn ¼limitation½ ckgj gSA ;g Hkh mYys[k djuk vko';d gS fd izkFkhZ us mDr jsQjsUl izkFkZuk i= ds lkFk esa ,okMZ vkns'k fnukad 23-6-2001 dh lR; izfrfyfi tks 27-9-2001 dks tkjh dh xbZ Fkh] Hkh is'k ugha dh gSA mijksDr rF;ksa dks /;ku esa j[krs gq, ;g izkFkZuk i= nkf[ky nrj fd;k tk;sA o ;g izkFkZuk i= /kkjk 19 ds rgr U;k;ky; esa Hkstus ;ksX; ugha gSA** 5. Questioning the order aforesaid, it is contended by the learned counsel for the petitioner that the application for reference as made on 6.11.2001 was not at all barred by limitation inasmuch as the award in question was not made in the presence of the petitioner nor was she served with any notice under Section 12 of the Act of 1894; and she was informed of the award only under the communication dated 24.9.2001. It is submitted that in the given fact situation only the six months period as envisaged by the second part of clause (b) of the proviso to Section 18(2) of the Act of 1894 shall apply and the application remains very much within limitation. It is further submitted that filing of a certified copy of award was not the mandatory requirement for maintainability of the application for reference and if at all required, the same was only of a formal defect and the application could not have been rejected on that count. The learned Government counsel has attempted to support the order impugned essentially with the submissions that on 26.9.2001, the petitioner did accept the amount of award without raising any objection and, therefore, the claim for making reference was not competent; and that the prayer for reference having been made beyond the prescribed period, could not have been entertained and has rightly been rejected. 6. Having heard the learned counsel for the parties and having perused the material placed on record, this Court is unable to find a wee bit of justification that the application as made by the petitioner to the Land Acquisition Officer Public Works Department, Jodhpur for making reference in relation to the award dated 23.6.2001 was rejected in a wholly cursory manner by the impugned order, allegedly made on 27.11.2001. 7. It has not been shown by the respondents if the award dated 23.6.2001 was drawn in the presence of, or after notice to, the petitioner. As per the requirements of the order passed by the Division Bench of this Court on 12.10.2000, the award ought to have been made within three months from the date of receipt of the copy of the order. The award was drawn only on 23.6.2001 without even indicating as to when did the LAO receive the copy of the order passed by the Division Bench. The award was drawn only on 23.6.2001 without even indicating as to when did the LAO receive the copy of the order passed by the Division Bench. In any case, indisputably, the award in question was drawn in the absence of the petitioner. It is also not borne out from the record if the award was drawn after extending an opportunity of hearing to the petitioner or if the said Land Acquisition Officer informed the petitioner of making of the award. On the other hand, the information of award was furnished, not by the LAO but by the Executive Engineer of the Public Works Department, under the communication dated 24.9.2001 while stating that sanction had been received by his office on 10.7.2001 for payment of Rs. 2,34,300/- and asking the petitioner to collect the award amount. 8. Immediately upon receiving such information, the petitioner took care to seek reference in the matter on 28.9.2001 while stating her readiness to accept the award amount without prejudice and while putting on record her protest on the quantum of compensation awarded. Thereafter, on 6.11.2001, the petitioner moved the regular application to the LAO for making reference to the competent Court. Rejection of the application so moved by the petitioner with a cursory reference to clause (a) of proviso to Section 18(2) of the Act of 1894 does not appear justified; and then, the impugned one is essentially a non- speaking order that does not state as to how the said clause (a) of proviso to Section 18(2) would at all apply in this matter? The learned LAO has chosen to rather avoid stating the relevant facts as to whether the award was made in the presence of the petitioner or as to whether she had been informed of the award per Section 12 of the Act of 1894. It remains seriously questionable if the period of limitation as per clause (a) or even as per the first part of clause (b) of proviso to Section 18(2) of the Act of 1894 would at all apply to this case. 9. The contention as urged on behalf of the respondents about the petitioner having accepted the award and, thus, being not entitled to seek reference has its own shortcomings. Such had not been the ground of rejection of the application by the LAO in the questioned order dated 27.11.2001. 9. The contention as urged on behalf of the respondents about the petitioner having accepted the award and, thus, being not entitled to seek reference has its own shortcomings. Such had not been the ground of rejection of the application by the LAO in the questioned order dated 27.11.2001. The fact cannot be ignored, and has rather been noticed by the LAO too, that immediately upon receiving the communication dated 24.9.2001, the petitioner did state her protest on the amount awarded and expressed her readiness to accept the amount of award only under protest. 10. Non-filing the copy of the award could only have been treated to be a formal defect, and if at all any such copy was requisite, the petitioner could have been extended an opportunity to rectify the defect. 11. The order (Annex. 7) as passed in this case by the Land Acquisition Officer appears to be more of a note-sheet drawn for offence purpose rather than a considered order. This Court is constrained to express its anguish at the casual and cursory dealing of the matter by the LAO who was required to have looked into the record with reference to the law applicable; to have also examined the observations as made by the Hon'ble Division Bench while pronouncing against the propositions of the respondents whereby they intended to deny just compensation to the petitioner; and to have also consciously kept in view that awarding just compensation for compulsory acquisition of property is not that of distributing the alms or charity but is that of recognizing the legal rights of the citizens. The manner of dealing of the matter by the LAO leaves much to be desired and cannot be appreciated at all. 12. It is noticed that the present one is the case where the petitioner's late husband was deprived of the property without due process of law and the petitioner was required to litigate while seeking directions for awarding her compensation; and even after the Hon'ble Division Bench directed on 12.10.2000 for determination of compensation under the Land Acquisition Act within 3 months of the date of receipt of the copy of the order, the LAO chose to make the award only on 23.6.2001 and that too in the absence of the petitioner. The award (Annex. The award (Annex. 3) does not even speak that any opportunity of hearing was extended to the petitioner for determining the market value of the property for the purpose of computation of the amount of compensation. Then, the petitioner was not even informed of the award by the Land Acquisition Officer. 13. Looking to the overall circumstances, the non-speaking and cryptic order (Annex. 7) could only be disapproved and deserves to be set aside. 14. Accordingly, this writ petition is allowed to the extent indicated above and the impugned order (Annex. 7), said to be dated 27.11.2001, is quashed and set aside. The application moved by the petitioner under Section 18 of the Act of 1894 shall stand restored for re-consideration of the Land Acquisition Officer strictly in accordance with law and to be concluded with a reasoned speaking order without unnecessary delay while keeping in view the observations herein and so also the observations as made by the Division Bench of this Court in the aforesaid order dated 12.10.2000. 15. The petitioner shall appear before the Land Acquisition Officer for further proceedings in the matter on 10.4.2009. 16. However, there shall be no order as to costs of this writ petition.