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2014 DIGILAW 1012 (HP)

Rajesh Kumar v. Collector Land Acquisition

2014-07-31

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. 1. The petitioner is aggrieved by the order passed by the Land Acquisition Collector whereby his Reference Petition has been held to be barred by limitation. The records of the case were summoned and perused. 2. Undisputedly, the impugned award was passed on 20.12.2012 and no notice was served upon the petitioner under Section 12(2) of the Land Acquisition Act, 1894, (for short the Act). The petitioner withdrew the compensation on 01.01.2013 under protest and thereafter preferred petition under Section 18 of the Act on 19.03.2013. It is claimed by the petitioner that he was under the bona-fide belief that since he has not received notice under Section 12(2) of the Act, therefore, the limitation for filing the Reference Petition would be six months. Accordingly, the petitioner preferred the petition but, as a matter of abundant caution, he also moved an application seeking condonation of delay. When the petition came up for consideration, the Collector below passed the following orders:- “4.10.2013: Present – Sh. Chet Ram (Respondent vice Rajesh Kumar S/o Chet Ram) The present matter is barred by limitation hence could not be sustained further as S-18 squarely, LAA squarely debars any request which had crossed the statutory required period of 42 days from the day of receiving notice under Section-12(2) of LAA. Hence matter stood disposed off. File be consigned to GRR after observing codal formalities. Announced.” 3. The aforesaid order has been challenged on various grounds as having been passed by way of empty formality with the preconceived mind to dismiss the petition and various other grounds have also been taken. As observed earlier, the petition was accompanied by separate application, though no provision of law is mentioned, however, a specific prayer for condonation of delay finds mention in the title of the application which reads thus:- “Written submission on behalf of the petitioner explaining the delay beyond six weeks in filing the reference petition and further praying for condoning the delay and sending the application before the learned District Judge, Shimla for adjudication on merits.” 4. The State of Himachal Pradesh has carried out an amendment in Section 18 of the Act vide Himachal Pradesh Act 17 of 1986 which clearly provides for entertaining of applications under Section 18 by the Collector even after the expiry of six weeks but within a period of six months, if he is satisfied that the applicant was prevented by sufficient cause from making the application in time. Section 18 of the Act reads as follows:- “Reference to Court and Procedure thereon: 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 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. State Amendments Himachal Pradesh – (1) In Section 18, after sub-section (2), insert the following sub-section namely:–– “(2-A) Without prejudice to the provisions of sub-section (1) the State Government may where the acquisition of land is not for the purposes of the Union and it considers the amount of compensation allowed by the award under section 11 to be excessive, require the Collector by written application that the matter be referred by him to the Court for determination of the amount of compensation. Explanation-In any cases of land under Part VII, the requisition under this sub-section may be made by the State Government at the request of the company on its undertaking to pay all the cost consequent upon such requisition. Explanation-In any cases of land under Part VII, the requisition under this sub-section may be made by the State Government at the request of the company on its undertaking to pay all the cost consequent upon such requisition. (2-B) The requisition shall state the grounds on which objection to the award is taken and shall be made within six months of the date of award.” (2) After sub-section (2), of Section18 of the principal Act, the following sub-section shall be added, namely:- “(3) Any order made by the Collector on an application under this section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, 1908.” 2. In Section 18 in sub-section (2) for the sign: occurring at the end of existing proviso to sub-section (2), the sign: shall be substituted and thereafter, the following second proviso shall be added, namely:- “Provided further that the Collector may entertain an application under this section after the expiry of the period of six weeks but within a period of six months, if he is satisfied that the applicant was prevented by sufficient cause from making the application in time.” 5. From the perusal of the order, it is absolutely clear that the Collector has not even adverted to the application for condondation of delay and has acted with material illegality and irregularity by ignoring the application which essentially was required to be considered along with the petition. 6. The records reveal that though a notice under Section 12(2) of the Act was issued by the Collector, but the same could not be served upon the petitioner and was received back un-served with the report that petitioner was residing with his family at Chandigarh. Therefore, from where and on what basis the Collector collected that the statutory period of 42 days from the date of receipt of notice under Section 12(2) of the Act had expired is anybody’s guess. 7. For all the aforesaid reasons, the order passed by the Collector, is not sustainable in the eyes of law and is, therefore, set aside. Therefore, from where and on what basis the Collector collected that the statutory period of 42 days from the date of receipt of notice under Section 12(2) of the Act had expired is anybody’s guess. 7. For all the aforesaid reasons, the order passed by the Collector, is not sustainable in the eyes of law and is, therefore, set aside. The matter is remanded back to the Collector to decide the petition along with application afresh in accordance with the Act as applicable and amended by the State of Himachal Pradesh within a period of two months from today. 8. The petition stands disposed of accordingly.