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2015 DIGILAW 1220 (HP)

Mohinder Chand v. State of H. P.

2015-09-02

RAJIV SHARMA

body2015
JUDGMENT : Rajiv Sharma, J. Land of the petitioner bearing Khasra No.201 measuring 00-10-22 hectares situated at Mauza Badhan, Tehsil Jubbal, District Shimla was acquired vide notification dated 28.7.2008 issued under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the “Act) and used for construction of Badhal Link Road. The award was made by respondent No.2 bearing Award No.47/2011 on 20.8.2011. Notice was issued to the petitioner under section 12 (2) of the Act on 2.9.2011 by respondent No.2 informing him that a sum of Rs. 3,65,598/- has been awarded in his favour. Patwari has observed that perhaps petitioner may have been served and the reference was made under section 18 of the Act on 2.9.2011. Respondent No.2 on 7.4.2012 observed that “It is doubtful whether the petitioner has received the notice, hence, the service of notice be checked”. The Patwari again checked the service and he submitted the report on 30.5.2012 whereby he reported that the notice has been received by Chaman Lal and not by the petitioner. However, surprisingly despite the fact that petitioner has not been served under section 12 (2) of the Act, respondent No.2 has refused to make the reference being time barred on 8.8.2012. It is imperative for the Collector under sub-section (2) of Section 12 of the Act to give notice to the interested persons who are not present at the time when the award is made. In the instant case, as noticed hereinabove, petitioner was not served. The notice was received by one Sh. Chaman Lal son of Sh. Mohan Lal on 8.9.2011. 2. There is a detailed procedure the manner in which service is to be effected under section 45 of the Act. In the instant case, as noticed hereinabove, petitioner was not served. The notice was received by one Sh. Chaman Lal son of Sh. Mohan Lal on 8.9.2011. 2. There is a detailed procedure the manner in which service is to be effected under section 45 of the Act. According to the plain language of section 45 of the Act, whenever it may be practicable, the service of the notice shall be made on the person named therein and when such person cannot be found, the service may be made on any adult male member of his family residing with him and if no such adult male member can be found, the notice may be served by fixing the copy on the outer door of the house in which the person therein named ordinarily dwells or carries on business or by fixing a copy thereof in some conspicuous place in the office of the officer or collector or in the court house and also in some conspicuous part of the land to be acquired. 3. It is not the case of respondent No.2 that petitioner could not be found and despite that service has been effected on Chaman Lal. Respondent No.2 has erred in law by not making the reference to the learned District Judge for enhancement of compensation by taking a very hyper technical view and also over looking very important aspect that petitioner was not served in accordance with law under section 12 (2) of the Act. Petitioner was not served even before 25.7.2008. According to the reply filed, petitioner was served only through Hira Lal son of Mohan Lal. Petitioner was to be served as per the procedure laid down under section 45 of the Act and not through one of the co-sharers. 4. Petitioner was not served even before 25.7.2008. According to the reply filed, petitioner was served only through Hira Lal son of Mohan Lal. Petitioner was to be served as per the procedure laid down under section 45 of the Act and not through one of the co-sharers. 4. Their Lordships of the Hon’ble Supreme Court in Bhagwan Das and others vs. State of Uttar Pradesh and others, (2010) 3 SCC 545 have held that if award is not made in presence of person interested (or his authorized representative), he has to make application seeking reference within six weeks of receipt of notice from Collector under section 12 (2) and if person interested (or his representative) was not present when the award was made, and if he does not receive notice under section 12 (2) from Collector, he can make application within six months of the date on which he actually or constructively came to know about contents of the award. Their Lordships have held as under: “[28] The following position therefore emerges from the interpretation of the proviso to section 18 of the Act : (i) If the award is made in the presence of the person interested (or his authorized representative), he has to make the application within six weeks from the date of the Collector's award itself. (ii) If the award is not made in the presence of the person interested (or his authorized representative), he has to make the application seeking reference within six weeks of the receipt of the notice from the Collector under section 12(2). (iii) If the person interested (or his representative) was not present when the award is made, and if he does not receive the notice under Section 12(2) from the Collector, he has to make the application within six months of the date on which he actually or constructively came to know about the contents of the award. (iv) If a person interested receives a notice under section 12(2) of the Act, after the expiry of six weeks from the date of receipt of such notice, he cannot claim the benefit of the provision for six months for making the application on the ground that the date of receipt of notice under section 12(2) of the Act was the date of knowledge of the contents of the award.” 5. In the instant case, petitioner immediately after coming to know about the award through other co-sharers made an application under section 18 of the Act for making reference to the District Judge for enhancement of compensation. 6. Accordingly, in view of the analysis and discussion made hereinabove, the writ petition is allowed. Order dated 8.8.2012 is set aside. Respondent No.2 is directed to make a reference to the learned District Judge under section 18 of the Act within a period of four weeks from today. Pending application(s), if any, also stands disposed of. No costs.