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Gujarat High Court · body

2020 DIGILAW 146 (GUJ)

Patel Popatbhai Madevbhai v. State of Gujarat

2020-01-23

A.J.DESAI

body2020
JUDGMENT : A.J. DESAI, J. 1. ADMIT. Learned Assistant Government Pleader waives service on behalf of the respondents. With the consent of learned advocates appearing for the respective parties, the present appeal is taken up for final hearing today itself. 2. By way of the present appeal preferred under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) read with Section 96 of the Code of Civil Procedure, 1908, the appellant-original claimant has challenged the judgment and order dated 8.12.2019 passed by learned Principal Senior Civil Judge, Surendranagar (hereinafter referred to as ‘the learned Reference Court’) in Land Reference Case No. 651 of 2018 by which upon an application made by the respondents Exh.24 to dismiss the reference, the learned Reference Court has dismissed the reference on the ground that the same has been made beyond the prescribed period of limitation under Section 18 of the Act. 3. In response to the order dated 3.10.2019 passed by this Court, Records and Proceedings have been received by the registry of this Court and the same is perused by this Court. 4. The short facts arise from the record of the case are as under:- 4.1 That by Notification dated 27.8.1992 issued under Section 4 of the Act, the Land Acquisition Officer declared his intention to acquire the land of the appellant for irrigation project. Ultimately, award was passed on 18.10.1995. Being aggrieved with the said award, the appellant requested the Collector on 3.9.1996 to refer the case to the competent Civil Court for enhancement of the compensation. 4.2 The respondents appeared in the Reference Court and filed written statement Exh.9. The Reference Court framed issues at Exh.10. The appellant examined himself on 12.7.2018 at Exh.21. He was cross-examined by the learned Assistant Government Pleader on the same day. The respondents did not examine any Officer, however, submitted an application Exh.24 requesting the learned Reference Court to dismiss the reference since the same was time barred. 4.3 The learned Reference Court after giving opportunity of hearing to the parties, accepted application Exh.24 and dismissed the reference by the impugned judgment and order. 4.4 Hence this appeal. 5. Mr. The respondents did not examine any Officer, however, submitted an application Exh.24 requesting the learned Reference Court to dismiss the reference since the same was time barred. 4.3 The learned Reference Court after giving opportunity of hearing to the parties, accepted application Exh.24 and dismissed the reference by the impugned judgment and order. 4.4 Hence this appeal. 5. Mr. Nitin Amin, learned advocate appearing for the appellant would submit that the learned Reference Court has committed an error in deciding application Exh.24 without framing proper issues, subsequent to examination of the appellant and prior to examination of any witness on behalf of the respondents. He would further submit that the respondents have neither raised any contention about the limitation in the written statement Exh.9 nor the learned Reference Court has framed any issue with regard to limitation. He, therefore, would submit that there is a procedural lapse on the part of the learned Reference Court before deciding application Exh.24. 6. He would further submit that as per Section 18 of the Act, the claimant has to make request for reference within a period of six weeks from the date of the award if the claimant or his representative is present and in other cases, six months from the date of Collector’s award. He would further submit that the provisions of Section 18 of the Act has been dealt with by the Hon'ble Supreme Court in the case of Premji Nathu vs. State of Gujarat and Another, (2012) 5 SCC 250 . He would further submit that in the said case, it has been clarified that if the claimant or his representative is not present at the time of pronouncement of award and if no notice has been issued under Section 12(2) of the Act, six months period would start from either service of the award or from the date of constructive knowledge about passing of the award. By taking me through the examination-in-chief of the appellant, he would submit that it was categorically stated by the appellant in paragraph 15 of his examination-in-chief that he was neither served with the notice and/or award nor was present at the time of the award. He has further categorically stated that he received the payment on 25.7.1996 about the compensation awarded and only on that day, he came to know about passing of the award by the Collector. He has further categorically stated that he received the payment on 25.7.1996 about the compensation awarded and only on that day, he came to know about passing of the award by the Collector. He would submit that immediately thereafter, within a period of six months, he has filed reference which was filed on 3.9.1996. He, therefore, would submit that the appeal be allowed and the impugned judgment and order be quashed and set aside and the learned Reference Court may be directed to decide the reference afresh. 7. On the other hand, Ms. Dhwani Tripathi, learned Assistant Government Pleader appearing for the respondents would submit that it is not in dispute that award was passed on 18.10.1995 by the Collector and the reference has been made on 3.9.1996. Therefore, the reference is made beyond the prescribed period of limitation under Section 18 of the Act. She would further submit that if this Court quashes the impugned order and remand the matter for fresh consideration, an opportunity to bring correct facts with regard to service of the award and/or notice may be permitted to the respondents and appropriate issues may be permitted to be raised before the learned Reference Court. 8. I have heard learned advocates appearing for the respective parties and perused the impugned judgment and order as well as records and proceedings received from the learned Reference Court. It is not in dispute that the award was passed on 18.10.1995 and the Reference has been made on 3.9.1996. However, if the examination-in-chief of the appellant is perused, he has categorically stated in paragraph 15 that when the award was declared on 18.10.1995, he was not present and the award was declared in his absence and has not received any notice under Section 12(2) of the Act. He has also stated that no award has been served along with the notice and he came to know about the same when certain payments were made on 25.7.1996. Thereafter, Reference came to be filed on 3.9.1996 i.e. within a period of two months from the date of receiving payment. 9. It is also pertinent to note that no questions with regard to service of notice or pronouncement of the award in the presence of the claimant were asked to the appellant by the Assistant Government Pleader appearing for the respondents before the Reference Court. 9. It is also pertinent to note that no questions with regard to service of notice or pronouncement of the award in the presence of the claimant were asked to the appellant by the Assistant Government Pleader appearing for the respondents before the Reference Court. Apart from this fact, if the written statement Exh.9 filed by the respondents is perused, no such objection and/or contention has been raised on behalf of the respondents that the reference is time barred. The learned Reference Court framed issues at Exh.10 which reads as under:- “(1) Whether the compensation awarded by the LAQ is not fair, reasonable and adequate? If yes? (2) What additional compensation the claimants are entitled? (3) What order?” 10. It is also pertinent to note that application Exh.24 was submitted by the respondents. However, no documents were produced by the respondents in support of their case that the reference has been made beyond the prescribed period. 11. In view of the above background of the matter, in my opinion, the decision relied upon by Mr. Amin in the case of Premji Nathu vs. State of Gujarat and Another (Supra) would be applicable to the facts of the present case. In the said decision, the Hon'ble Supreme Court after considering several decisions has observed in paragraph 18 as under:- “18. In Bhagwan Das vs. State of Uttar Pradesh, (2010) 3 SCC 545 , this Court interpreted Section 18 and laid down the following propositions:- “(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 authorised 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. (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.” 12. Prima-facie, in my opinion, proposition (iii) would be applicable in the present case since it has been categorically deposed by the claimant before the learned Reference Court that he came to know about the award only on 25.7.1996 and the period of limitation would start thereafter. It is not in dispute that after receiving the information about the award, within a period of six months, reference has been made. Hence, the present appeal requires consideration and hence, the same is allowed. The impugned judgment and order dated 8.12.2019 passed by learned Principal Senior Civil Judge, Surendranagar in Land Reference Case No. 651 of 2018 is hereby quashed and set aside. The learned Reference Court is directed to decide the Reference afresh. It is, however, made clear that it would be open for the respondents-State authorities to produce relevant documents before the learned Reference Court in support of their contention raised with regard to limitation. Such documents shall be produced before the learned Reference Court within a period of 8 weeks from the date of receipt of this order. Thereafter, the learned Reference Court shall immediately proceed with the Reference in accordance with law and without being influenced by the earlier orders. 13. Direct service is permitted. Registry is directed to send back the Records and Proceedings to the learned Reference Court immediately.