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Madhya Pradesh High Court · body

2011 DIGILAW 1319 (MP)

Jyotiya v. State of M. P.

2011-11-22

N.K.MODY

body2011
ORDER 1. Being aggrieved by the order dated 13.7.2011 passed by 7th Additional District Judge, Sardarpur in MJC No. 10/2004, whereby the application filed by the petitioner u/s 5 of the Limitation Act, for condonation of delay in filing the reference was dismissed, present petition has been filed. 2. Short facts of the case are that the property of the petitioner was acquired for which the compensation was assessed by the Land Acquisition Officer on 31.3.2003 and the reference was made by the petitioner on 8.11.2004 along with the application u/s. 5 of the Limitaion Act, wherein it was prayed that the delay in filing the reference be condoned. The application was opposed by the respondent. After hearing the parties, learned Court below dismissed the application consequently the reference against which present petition has been filed. 3. Learned counsel for the petitioner submits that the petitioner was not having knowledge about the impugned award. It is submitted that it was the duty of the respondent to point out that on what date the compensation was paid to the petitioner in compliance of the award dated 31.3.2003. Reliance was placed on a decision in the matter of Bhagwandas v. State of U.P. [ AIR 2010 SC 1532 ] wherein Hon. Apex Court has observed that for condonation of delay in reference proceedings u/s. 18 of the Land Acquisition Act, date and knowledge are essential contents of award and not the actual date of the Collector’s award. If was, further, held that the application for reference was filed on a date when appellants became aware of the contents of award is maintainable. It is submitted that in the facts and circumstances of the case, petition filed by the petitioner be allowed and the impugned order be set aside. 4. Learned counsel for the respondent argued at length and submits that no illegality has been committed by the learned Court below in dismissing the application filed by the petitioner. Learned counsel placed reliance on a decision in the matter of Mohammed Hasnuddin v. State of Maharashtra [ AIR 1979 SC 404 ] wherein Hon.ble Apex Court has held that the Court has jurisdiction to decide whether the reference was made beyond the period prescribed by the Proviso to Sub-section (2) of section 18 of the Land Acquisition Act and if he finds that it was so made, decline to answer reference. Learned counsel submits that in the facts and circumstances of the case, the petition filed by the petitioner has no merits and the same be dismissed. 5. Section 18 of the Land Acquisition Act reads as under :- “18. Reference to Court -- (1) Any 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 compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. (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 representated 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 case’s, 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. As per sub-clause (b) of sub-section (2) of section 18 of the Land Acquisition Act, the application for reference can be made within six weeks from the date of award if the person making the reference is present before the Collector or within six weeks from the date of receipt of notice of the Collector or within six months from the date of the Collector’s award, whichever period shall first expire. In the present case, no date has been specified by the respondent when the petitioner came to know about the contents of ther award. It is also not clear that when the respondent paid the compensation to the petitioner. In the present case, no date has been specified by the respondent when the petitioner came to know about the contents of ther award. It is also not clear that when the respondent paid the compensation to the petitioner. While dealing with the issue in the matter of Bhagwandas (supra) Hon. Apex Court has observed that “When a person interested makes an application for reference seeking the benefits of six months period from the date of knowledge, the initial onus is on him to prove that he (or his representative) was not present when the award was made, that he did not receive any notice under section 12 (2) of the Act, and that he did not have the knowledge of the contents of the award during the period of six months prior to filing the application for reference. This onus is discharged by asserting these facts on oath. He is not expected to prove the negative. Once the initial onus is discharged by the claimant/person interested, it is for the Land Acquisition Collector to establish that the person interested was present either in person or through his representative when the award was made, or that he had received a notice under section 12 (2) of the Act or that he had knowledge of the contents of the Award. Actual or constructive knowledge of the contents of the award can be established by the Collector by proving that the person interested had received or drawn the compensation amount for the acquired land, or had attested the Mahazar Panchnama/proceedings delivering possession of the acquired land in pursuance of the acquisition, or had filed a case challenging the award or had acknowleged the making of the award in any document or in statement on oath or evidence.” 7. Keeping in view the aforsaid position of law this Court is of the view that no illegality has been committed by the learned Court below in dismissing the application filed u/s. 5 of the Limitation Act as the same was not maintainable, however, there was not justification on the part of the learned Court below in dismissing the reference as the respondent failed to prove that when the petitioner came to know about the award. In view of this, petition filed by the petitioner is allowed and the impugned order so far as it relates to dismissal of reference is set aside with a direction to the learned Court below to decide reference on merits. 8. With the aforesaid directions, petition stands disposed of. No order as to costs.