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Himachal Pradesh High Court · body

2016 DIGILAW 2003 (HP)

Asha Devi v. Land Acquisition Collector, Ghumarwin

2016-09-19

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The land of the petitioners along with lands of the other landowners situated in village Kalri, Post Office Naswal, Tehsil Ghumarwin, District Bilaspur, H.P. was brought under acquisition under an award of the Land Acquisition Collector pronounced on 31.12.2011 whereunder the Land Acquisition Collector assessed compensation vis-a-vis landowners whose lands stood subjected to acquisition. Though, the Land Acquisition Collector pronounced his relevant award on 31.12.2011 yet the date aforesaid would be not relevant for any computation therefrom, the apt period of limitation for the making by the Land Acquisition Collector an apt valid reference therefrom to the learned District Judge. Given the Land Acquisition Collector concerned transmitting it on 25th November, 2011 to the appropriate Government for obtaining qua it, its approval, whereafter on the apposite approval standing accorded to it whereupon it attained finality, he pronounced it on 22.3.2012 in the presence of the landowners in the Conference Hall of Swami Vivekanand College, Ghumarwin, date whereof qua its pronouncement stands contended by the learned Deputy Advocate General to be the date wherefrom the apt period of limitation is reckonable. He also contends of the verdict pronounced by the Land Acquisition Collector concerned on the apposite application under Section 5 of the Limitation Act preferred therebefore by the aggrieved landowners not warranting any interference. 2. Before pronouncing upon the rival contentions addressed herebefore by the learned counsel appearing for the contesting parties anvilled upon the factum of 22.3.2012 or 7.6.2012 whereat the copy of the relevant rendition pronounced by the Collector concerned stood obtained by the petitioners, constituting the relevant date for the making of a valid apt reference by the Collector concerned to the District Judge, for facilitating the latter to pronounce a verdict thereon, it is imperative to allude to the rendition of the learned District Judge made on 10.9.2013 whereby he concluded, of the relevant reference made to him by the Collector for his rendering an adjudication, lacking in jurisdictional vigour, his not preceding thereto pronouncing upon the factum probandum qua its preferment therebefore by the aggrieved landowners falling within the relevant period of limitation prescribed in the apt statute. Consequently, the learned District Judge returned the reference to the Collector, for the latter rendering a pronouncement on the application instituted therebefore by the aggrieved landowners under Section 5 of the Limitation Act for begetting condonation of delay in the imprompt lodging by them of the apposite reference petition before him. On the Land Acquisition Collector receiving the matter on remand to him by the learned District Judge for his rendering an adjudication on the application under Section 5 of the Limitation Act for condoning the delay in the purported belated institution of the reference petition therebefore by the aggrieved landowners, he proceeded to dismiss it. In sequel, the aggrieved, landowners stand aggrieved whereupon they concert to nullify the order rendered by the Land Acquisition Collector concerned on their application under Section 5 of the Limitation Act. Through an amendment made by the competent Legislative Authority of Himachal Pradesh to Section 18 of the Land Acquisition Act (hereinafter referred as the Act), whereby the hereinafter extracted proviso stood added thereto, the Collector stands clothed with jurisdictional competence to adjudicate upon an application preferred therebefore under the apt provisions of the statute also on evident display therebefore of sufficient cause deterring the landowners to within time prefer before him an application for his making a reference to the reference Court against the award pronounced by him he holds jurisdiction to condone the relevant delay in its imprompt preferment therebefore, jurisdiction whereof dehors the addition by way of an amendment of the hereinafter added proviso to Section 18 of the Act stands under a catena of judicial decisions barred to be exercisable by him. Concomitantly, the relevant proviso incorporated by the competent Legislative Authority of Himachal Pradesh to Section 18 of the Act, is the fulcrum wherefrom the controversy besetting the parties qua theirs making or not making within or beyond time, the apposite reference before the Collector for its onward transmission by the latter to the learned District Judge, for hence it constituting a valid reference, is to be tested. The relevant proviso incorporated to Section 18 of the Act reads as under:- “2. The relevant proviso incorporated to Section 18 of the Act reads as under:- “2. In Section 18, in clause (b) to the proviso, the sign “,” occurring at the end, substitute the sign “:” and thereafter, add the following second proviso, 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 application was prevented by sufficient cause from making the application in time.” 3. In the unamended provisions of Section 18 of the Act prevalent hitherto the relevant proviso thereto standing added by an amendment made qua it by the competent Legislative Authority exercising jurisdiction within the territorial domain of Himachal Pradesh, a period of six weeks in clause (a) thereto stands prescribed wherewithin an application under Section 18 of the Act stands enjoined to be preferred before the Collector concerned by the aggrieved landowners for hence rendering its preferment being construable to be within limitation. However, the aforesaid period of six weeks as stand mandated therein for rendering the apposite application constituted therebefore standing construable to be falling within the precincts of limitation, is fettered with a rider qua its benefit being available, only when the aggrieved landowner was present or stood represented before the Collector at the time he made his award. Contrarily, in clause (b) thereto which holds play when the aggrieved landowner is not present nor stands represented before the Collector when the latter pronounces his award, a period of six weeks computable from the date of receipt of notice issued by the Collector upon the landowner under Section 12, sub-section (2) or a period of six months reckonable from the date of pronouncement by the Collector concerned of the relevant rendition, whichever period stands expired earlier, stands constituted therein to be the relevant date for hence the Collector therewithin making a valid reference to the District Judge. Since, apparently, the relevant award on attaining finality, for the reasons stated hereinabove, on 22.3.2012, stood thereat pronounced in the presence of the aggrieved landowners, it yet would not constitute the relevant period wherefrom the apt computation of the period of limitation is enjoined to be made, for thereupon for rendering a concomitant verdict qua the apposite preferment of the apt application by the aggrieved landowners before the Collector concerned falling within or beyond the statutory period of limitation nor for rendering an ensuable verdict qua the rendition by the Collector concerned upon the application of the aggrieved landowners for making a reference to the District Judge warranting imputation or disimputation of validation thereto. However, the period of limitation wherewithin the apt application stands enjoined to be preferred before the Collector by the aggrieved landowner though stands hereinabove alluded to, under the unamended provisions of Section 18 of the Act, whereas with an amendment standing carried thereto by the competent Legislative Authority exercising jurisdiction within the territorial domain of Himachal Pradesh whereby the proviso extracted hereinabove stood added thereto, addition whereof to Section 18 of the Act renders it to alone enjoy imputation of deference thereto also it alone constitutes the relevant period of limitation wherewithin the apt application under Section 18 of the Act stood enjoined to be preferred by the aggrieved landowners before the Collector concerned. Also given its addition by way of an amendment it hence obliterates besides wanes the operative efficacy of the hitherto unsubstituted provisos thereto. Consequently with the proviso added by way of an amendment carried to Section 18 of the Act alone holding jurisdictional dominion besides clout, for determining therefrom the relevant period of limitation prescribed for institution of an application by the aggrieved landowners under its provisions before the Collector renders the prescription therein of the Collector holding competence to entertain an application constituted under its provisions even on six weeks elapsing since the pronouncement of the relevant rendition dehors the aggrieved landowner marking or not marking his presence before him on the date of its pronouncement to obviously hold sway yet even its preferment therebefore not occurring beyond six months elapsing since the pronouncement of the relevant rendition by him, rather its preferment therebefore occurring within six months from the pronouncement of the relevant rendition by him also bestows jurisdiction upon him to entertain the relevant application made before him. Furthermore, on its incisive reading , an inference which is garnerable is of the relevant application constituted before him by the aggrieved land owner if stands constituted even on six weeks elapsing since the pronouncement of the relevant rendition but within six months, the Collector concerned on evident display of sufficient cause precluding the landowner to therebefore promptly institute it holding jurisdiction to allow the relevant application also concomitantly the aggrieved landowners standing foisted with an indefeasible right to canvass qua its standing forwarded by him to the learned District Judge for the latter making an adjudication thereon. 4. Now with this Court concluding of the aggrieved landowners standing vested with a right to within a period of six weeks since the pronouncement of the relevant rendition of the Collector prefer a valid apposite application before the Collector concerned, the factum of the aggrieved landowners preferring the application before the Collector concerned on 8.6.2012 renders its preferment to occur within less than six weeks elapsing from 7.5.2012. The mere factum of its standing pronounced by the Collector concerned on 22.3.2012 would not constitute the date aforesaid to be the relevant date wherefrom computation of the relevant period of limitation prescribed in the relevant statute is to be made, conspicuously, when evidently, a copy of the relevant rendition stood obtained on 7.6.2012 by the aggrieved landowners whereupon alone they held the right to assail, the sufficiency of compensation awarded thereunder qua them, contrarily, 7.6.2012 stood rendered to be the relevant apt date wherefrom computation of the relevant period of limitation is to be made also therefrom a gauging is to occur qua the making of the apposite application by the aggrieved landowners falling within the precincts of a period of six weeks wherewithin the apposite application preferred by the aggrieved landowners before the Collector concerned would be construable to stand preferred therebefore within limitation. Besides the factum of disbursement of the relevant compensation amount determined by the Collector concerned in his relevant determination occurring on 7.5.2012 also cannot stand excluded from play, in making an pronouncement qua the preferment of the apposite application by the aggrieved landowners, falling within the apt period of limitation, especially when the precise authentic documentary knowledge qua the quantum of compensation assessed qua them stood acquired only on theirs obtaining a copy of the relevant rendition of the Collector concerned wherefrom alone they could disinter the relevant fact qua its holding sufficiency or insufficiency. Consequently, when the anvil of insufficiency of awarding of compensation amount vis-a-vis them under the relevant rendition is the singular statutory parameter wherewithin they hold leverage to assail the relevant decision of the Collector, hence 7.5.2012 besides 7.6.2012 conjointly constitutes the relevant dates wherefrom the relevant computation of the apt period of limitation wherewithin the aggrieved landowners could make a valid reference to the Collector for its onward transmission by him to the learned District Judge concerned is enjoined to be made. Hence, bearing in mind the factum of acquisition of knowledge by the landowners concerned qua the relevant rendition occurring on 7.5.2012 besides successively on 7.6.2012 whereat they obtained a copy of the assailable rendition of the Collector concerned whereupon they stood empowered to make an apposite preferment of an application under Section 18 of the Act to the Collector concerned for its onward transmission by him to the learned District Judge concerned, renders its preferment therebefore by the aggrieved landowners on 8.6.2012 to occur within a period of six weeks, as stands statutorily mandated for its apt preferment therebefore in the relevant proviso to Section 18 of the Act. As a corollary, its preferment by the aggrieved landowners before the Collector concerned stands embraced within the relevant period of limitation. As a corollary, its preferment by the aggrieved landowners before the Collector concerned stands embraced within the relevant period of limitation. In aftermath with the preferment of the apposite application by the aggrieved landowners before the Collector concerned falling within the apposite period of limitation prescribed in the relevant statute, it was not incumbent upon them to file any application before the Collector concerned under Section 5 of the Limitation Act for begetting any condonation of delay in its purported imprompt preferment before him, contrarily, the Collector concerned was enjoined to thereupon make a valid reference to the learned District Judge, whereas, his construing 22.3.2012 to be the date wherefrom the computation of the apt period of limitation was enjoined to be made is a grossly unwarranted besides a fallacious conclusion. The conclusion as drawn by the Collector concerned qua 22.3.2012 constituting the relevant date for computation wherefrom, the relevant period of limitation for hence the apposite application of the landowners falling within or beyond the relevant period of limitation would hold succor only upsurging of umimpeachable evidence comprised in adduction of the apt register personifying the trite factum of the aggrieved landowners by making theirs respective signatures thereon, theirs hence recording thereat their presence yet with the aforesaid evidence for marking the factum of the aggrieved landowners thereat recording their presence before him being amiss constrains a conclusion of the aggrieved landowners not recording their presence thereat before him nor hence they are to be construed to be holding any knowledge qua its pronouncement nor also the aforesaid date can tenably be concluded to be the apt date wherefrom the computation of the relevant period of limitation is enjoined to be made. 5. In aftermath, for reiteration, with the unfoldments aforesaid occurring in the discussion made hereinabove qua the landowners acquiring knowledge qua the amount of compensation assessed qua their land by the Collector concerned only on theirs receiving the compensation amount on 7.5.2012 also with theirs holding a copy of the apposite rendition only on 7.6.2012, both the dates aforesaid cumulatively constitute the apt date wherefrom the computation of the relevant period of limitation is to be made. Since, this Court concludes of the aggrieved landowners within six weeks from 7.5.2012 also theirs within one day elapsing since 7.6.2012 making the apposite application before the Collector concerned renders its preferment before the Collector concerned to be within the statutorily mandated period of limitation. Also reiteratedly hence it was not incumbent upon them since its preferment therebefore occurred not beyond six months whereafter alone they were enjoined to purvey or explicate good and sufficient cause which deterred them to promptly institute the apposite application before the Collector, to hence seek any condonation of delay in its purported belated preferment therebefore. 6. The upshot of the above discussion is with the application under Section 18 of the Act preferred by the aggrieved landowners before the Collector concerned falling within the precincts of the period of limitation prescribed in the apt proviso to Section 18 of the Act, obviously, hence, the Collector concerned fell in error in dismissing the application of the aggrieved landowners also his refusing to transmit it to the learned District Judge for facilitating the latter to render an adjudication thereupon also holds no sanctity in law. 7. The learned Deputy Advocate General has vehemently submitted before this Court of with their occurring a display in the order rendered by the Land Acquisition Collector of 4.11.2015 qua the landowners accepting the compensation amount without protest, makes amenable for working vis-a-vis them, the proviso engrafted in Section 31 of the Act whereby on evident display of the aforesaid facet, an embargo stands constituted against the land owners against theirs preferring an application under Section 18 of the Act before the Collector. He also contends of hence their apposite application being misconstituted also any refusal on the part of the Collector concerned to transmit it to the District Judge dehors it standing preferred therebefore by the aggrieved landowners within limitation is unimpeachable it being lawfully not amenable for transmission by the Collector to the District Judge rather it constituting an invalid reference whereupon the learned District Judge concerned stood statutorily precluded to pronounce any rendition. However, the aforesaid submission suffers enfeeblement, given the factum of the proviso whereupon the learned Deputy Advocate General anchors his submission for precluding the aggrieved landowners from seeking a valid reference from the Collector concerned to the District Judge concerned for an adjudication standing rendered thereon by the latter, constituting only a principle of estoppel. However, the aforesaid submission suffers enfeeblement, given the factum of the proviso whereupon the learned Deputy Advocate General anchors his submission for precluding the aggrieved landowners from seeking a valid reference from the Collector concerned to the District Judge concerned for an adjudication standing rendered thereon by the latter, constituting only a principle of estoppel. Section 31 of the Act reads as under:- “31. Payment of compensation or deposit of same in Court.- (1) On making an award under section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent toe receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under section 18 would be submitted; Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount; Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18: Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this section, the Collector may, with the sanction of (appropriate Government) instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands held under the same title, for in such other way as may be equitable having regard to the interests of the parties concerned. (a) Notwithstanding anything in this section, if the person interested in the land is willing to accept the compensation in kind instead of money, the Collector may further, with the sanction of the appropriate Government instead of awarding a money compensation in respect of any land, give some other land of equivalent value in exchange of the land acquired and thereby pay the compensation awarded in whole or in part in accordance with the market value of the land so given in exchange. 4. Nothing in sub-sections (3) and 3(a) shall be ocnstrued to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof.” The principle of estoppel as envisaged therein for it to hold vigorous workability vis-a-vis the aggrieved landowners has to hold underpinnings in undisputed evident display of the Collector while disbursing the relevant compensation amount to the aggrieved landowners, his making proclamations to them qua theirs holding a vested right to contest the sufficiency of its award qua them. However, there is no evident display of the Collector at the stage contemporaneous to his disbursing the relevant compensation amount to the landowners, his proclaiming qua theirs holding a right to by making an application under Section 18 of the Act contest the sufficiency of the compensation amount. Consequently for lack of aforesaid visible display in the relevant record negates the effect, if any, of the aggrieved landowners receiving without protest the disbursement of compensation amount nor hence they would stand statutorily estopped to make an application before the Collector under Section 18 of the Act for its onward transmission by him to the learned District Judge, for hence facilitating the latter to pronounce a verdict thereupon. The principle of estopple constituted in the relevant proviso to Section 31 of the Act cannot stand attracted qua them, conspicuously, when they stood unawakened qua their relevant vested statutory right to before the learned District Judge agitate qua the sufficiency of the compensation amount determined qua their lands by the collector concerned, significantly when dehors substantiation of the aforesaid facet they hence stand bound to receive an unfair, unjust besides a abysmally low rate of compensation qua their lands, whereupon, hence, they would stand deprived of their legitimate right to obtain just, fair and reasonable compensation qua their land brought to acquisition also would stand deprived to avail the relevant mechanism for assailing the sufficiency of the amount of compensation assessed qua their land. Consequently, the submission of the learned Deputy Advocate General anchored thereon holds no vigour. 8. Be that as it may, the relevant proviso engrafted in Section 31 of the Act has to be read in coagulation with a right vested in an aggrieved landowner under Section 18 of the Act to agitate the sufficiency of the amount of compensation determined by the Collector concerned, right whereof cannot stand scored off, by holding a mechanical strict literal construction of the relevant proviso engrafted in Section 31 of the Act. More so, if any pedantic construction is lent thereto would erode a valuable right conferred upon a landowner under Section 18 of the Act, to contest the sufficiency of the determination of compensation amount by the Collector concerned qua him vis-a-vis his land brought to acquisition. Consequently, any disharmony inter se the right of a landowner bestowed under Section 18 of the Act to contest the sufficiency of determination of compensation amount unless the afore-referred evidence for rendering workable the proviso to Section 31 of the Act surges forth vis-a-vis the relevant proviso engrafted in Section 31 of the Act has to be obviated. Consequently, any disharmony inter se the right of a landowner bestowed under Section 18 of the Act to contest the sufficiency of determination of compensation amount unless the afore-referred evidence for rendering workable the proviso to Section 31 of the Act surges forth vis-a-vis the relevant proviso engrafted in Section 31 of the Act has to be obviated. Moreover, the mere factum of the aggrieved landowner making an application under Section 18 of the Act before the Collector concerned wherein they contest the sufficiency of the compensation amount assessed by the Collector does also hold under scorings of theirs tacitly refusing to accept the sufficiency of the relevant disbursement of compensation amount dehors theirs accepting it without protest rather the aforesaid making of an application within time before the Collector concerned is amenable to a construction of theirs hence displaying their protest qua the sufficiency or adequacy qua the compensation amount determined in their favour by the Collector concerned. Since, the acquisition of land of the landowners deprives them qua their valuable land also when the aggrieved landowners largely stand afflicted with indigent circumstances leading them to promptly accept the compensation amount determined in their favour also when the Collector concerned for reasons aforestated does not awaken them qua their right to by making an apposite application under Section 18 of the Act agitate the sufficiency of the compensation amount determined by him in their favour, leading them to not make a protest while receiving it, ought not to forestall their rights to by theirs constituting an application under Section 18 of the Act before the Collector ask for enhancement of the compensation amount. Any imposition of a fetter qua the right of the landowners despite no evident display of the Collector while disbursing compensation amount in their favour purveying intimation to them qua theirs by preferring an application under Section 18 of the Act holding a right to ask for enhancement of compensation would hence strip them of their indefeasible right to agitate the sufficiency of the compensation amount determined by the Collector. In coming to the aforesaid conclusion, I find support from a decision of this Court reported in a case titled as Amru and others versus Land Acquisition Collector and another 2011(3) Shim.LC, 308. 9. In coming to the aforesaid conclusion, I find support from a decision of this Court reported in a case titled as Amru and others versus Land Acquisition Collector and another 2011(3) Shim.LC, 308. 9. Furthermore, the proviso relied upon by the learned Deputy Advocate General has to be read unbereft of the provision existing in Section 28-A of the Act which stands extracted hereinafter, wherein a right stands foisted in the aggrieved landowners, who do not prefer a reference petition under Section 18 of the Act, to on an affirmative adjudication by the Reference Court on a reference petition constituted therebefore by the landowners whose lands along with their lands stand subjected to acquisition under a notification issued under Section 4 of the Act, prefer an application for redetermination of compensation amount qua their lands at par with other land owners qua whose reference petitions an affirmative enhancement is made by the reference Court, hence does also negate the effect of the principle of estoppel constituted in the relevant proviso engrafted in Section 31 of the Act, tritely, hence the relevant estoppel constituted in the relevant proviso of Section 31 of the Act holds no stricto senso application planked upon the landowners receiving the compensation amount without protest, whereby they stand estopped to make a petition under Section 18 of the Act before the Collector concerned rather its workability spurring on evidently stark, vivid and loud proclamations standing made to them by the Collector concerned qua theirs holding an indefeasible right to contest the sufficiency of the determination of the compensation amount vis-a-vis them by him, proven awakenings whereof qua them remaining unattended or unheeded by the landowners also theirs thereupon receiving the relevant compensation amount without protest would alone constitute theirs holding an absolute concurrence with the relevant rendition of the Collector concerned also theirs waiving besides abandoning to agitate the sufficiency of the relevant determination of the compensation amount qua them. Provisions of Section 28-A read as under:- “28A. Provisions of Section 28-A read as under:- “28A. Re-determination of the amount of compensation on the basis of the award of the Court.- (1) Whether in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interest and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be applicant to such reference as they apply to a reference under section 18.” 10. For the foregoing reasons, the instant petition is allowed and the order impugned before this Court is quashed and set aside. The Collector concerned is directed to within three weeks from today make a reference to the District Judge concerned, for the latter rendering an adjudication thereon.