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2013 DIGILAW 900 (CAL)

Baid Marble Tiles v. State of West Bengal

2013-12-05

SAHIDULLAH MUNSHI, SUBHRO KAMAL MUKHERJEE

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Judgment : Subhro Kamal Mukherjee, J. Although the matter is appearing under the heading ‘for orders’, by consent of Mr. Saptangshu Basu, learned senior advocate appearing for the appellants, and Mr. Chandi Charan De, learned advocate appearing for the respondents, we take up the hearing of the appeal. All formalities are dispensed with. This is an appeal against judgment and order dated September 5, 2013 passed by the Hon’ble Single Judge in Writ Petition no.17253 (W) of 2013, inter alia, rejecting an application under Article 226 of the Constitution of India. Admittedly, the writ petitioners/appellants were the owners of the disputed land. A notification under Section 4 of the Land Acquisition Act, 1894, was issued notifying that the land-in-question was required for a public purpose. The said notice under Section 4 of the said Act of 1894 was published in the Kolkata Gazette Extraordinary on October 9, 2009. The declaration under Section 6 under the said Act of 1894 was, also, published in the said gazette on March 24, 2011. The Land Acquisition Collector passed his award on June 4, 2010. Admittedly, no notice under Sub-Section (2) of the Section 12 of the said Act of 1894 was issued to the owners. The owners had no knowledge of the award. When the owners came to know about the award, they requested the Land Acquisition Collector to make a reference under Section 18 of the said Act of 1894 as the owners were aggrieved by the award of the Land Acquisition Collector. The Collector sat tight over the matter compelling the writ petitioners/appellants to approach this Court. The Hon’ble Single Judge, in the order impugned, held that the last date of requisition to make reference having expired, the Land Acquisition Collector was right in not acting on the prayer of the owners for making reference made only on March 22, 2012. Section 18 of the said Act of 1894, lays down the provisions for reference to Court. The provisions run as follows:- “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 the 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 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.” The Hon’ble Single Judge construed the provisions of sub- rule (b) of sub-Section (2) of Section 18 of the said Act of 1894, by holding that the owners were under obligation to file their applications for reference in any event within six months from the date of the award. In other words, the Collector has no power to entertain a prayer for making a reference after six months from the date of the award. It seems that the attention of the Hon’ble Single Judge was not drawn to the decisions in the cases of Raja Harish Chandra Raj Singh –versus The Deputy Land Acquisition Officer and another reported in AIR 1961 Supreme Court 1500 and Sailen Ghosh –versus- Land Acquisition Collector, Calcutta and others reported in 73 Calcutta Weekly Notes 543. The Supreme Court of India held in Raja Harish Chandra Raj Singh (supra) that the award being an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired and as the said decision ultimately affected the rights of the owner of the property and in that sense, like all decisions, which affect persons, it has been essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, has been an essential element, which must be satisfied before the decision could be brought into force. Thus considered the making of the award could not 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. Thus considered the making of the award could not 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 award was not passed in presence of the owners nor notice under Subsection (2) of Section 12 of the said Act of 1984 was ever served on the owners. These allegations were not rebutted. The expression “within six months from the date of the Collector’s award” used in proviso (b) to Sub-section (2) of Section 18 means within six months after the date on which the communication of the award reached the affected owners. In Sailen Ghosh (supra) a Division Bench of this Court held that in the case of a person, who had no notice of the award, limitation would be six months from the date of his knowledge of the essential contents of the award under proviso (b) to Sub-section (2) of Section 18 of 1894. A Division Bench of the High Court at Bombay in Mangilal Jawanmal and others –versus- The Special Land Acquisition Officer (I), Thana and others reported in AIR 1978 Bombay 325, also, held that the phrase “within six weeks of the receipt of the notice” occurring in the first part of Proviso (b) to Section 18 Sub-section (2) must be interpreted to mean within six weeks from the receipt of effective notice meaning thereby from the receipt of the knowledge of the essential contents of the award by the claimants including the reasons or the basis on which the quantum of compensation has been fixed as also the other particulars. Therefore, we are of the considered opinion that in this case requisition by the owners to make the reference was not barred by limitation nor the collector was incompetent to make a reference to the Court. Thus, the Hon’ble Single Judge did not apply the proper legal test in dismissing the writ petition. The order impugned is, therefore, set aside. The Collector is directed to make a reference to the learned Land Acquisition Judge within one month from the date of the communication of this order to him. The appeal is, thus, allowed with the above directions. The order impugned is, therefore, set aside. The Collector is directed to make a reference to the learned Land Acquisition Judge within one month from the date of the communication of this order to him. The appeal is, thus, allowed with the above directions. In view of the disposal of appeal, the connected application becomes infructuous and the same is also, disposed of. We make no order as to costs. Sahidullah Munshi, J. I agree.