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Gram Seva Mandal, Wardha Vs. the Collector, Wardha and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 93 of 1964
Judge
Reported inAIR1975Bom73; 1974MhLJ977
ActsLand Acquisition Act, 1894 - Sections 11, 12, 12(2), 18 and 18(2)
AppellantGram Seva Mandal, Wardha
RespondentThe Collector, Wardha and ors.
Appellant AdvocateD. Patil, Adv.
Respondent AdvocateV.V. Naik, Asstt. to addl. Govt. Pleader
Excerpt:
.....it is shown that award has been either directly or constructively brought to the knowledge of the person or persons interned on the person interested for the purpose of computing the period of limitation would, in all cases, depend on the facts available in that regard. no doubt, he has signed the order-sheet before the collector on 25-2-63. there is no evidence to hold that he was competent to give good discharge by accepting the compensation or, had it been a sale of property, by accepting the price money. bhoyar had not capacity to pass the property and as such it cannot be held that the requirements of clause (a) have been satisfied. 22. with this conclusion, the award itself was made on february 25, 1963, and the application for making a reference was made on april 20, 1963 .there..........if either the person whose right, title and interest in property is under acquisition is present personally when the award was made or the person who could old the same for him was present when that award was made, then only the starting point for limitation indicated by clause (a) of the proviso is completely answered and reached. any other presence would not enable time to run under that clause for a valuable remedy is provided to the aggrieved applicant to approach the court by seeking a reference. as the proviso governs the right to remedy and limitation therefore considerations based on technicalities should, in my view, be technicalities should , in my view, be scrupulously avoided and interpretation that subserves the justice should be preferred. 17. the injunction of.....
Judgment:

1. The appellant is a public trust who owned field Survey No. 70/3. area 4.92 acres of mouza Anji (Mothi). Under the provisions of the land Acquisition Act, 1894, after issue of notification with respect to 3-00 acres land out of the Survey Number in question, the land Acquisition Officer, Wardha, made an award on February 25, 1963. By that award, he fixed Rs. 3,852. 50p. including solatium as the compensation.

2. On April 20, 1963, the present appellant filed an application under Section 18 before the collector for making a reference. The appellant claimed a further sum of Rs. 3,647.50 as additional compensation . In that application, he alleged that he came to know of the award that he came to know of the award on March 4, 1963 and after receiving the copy, the application was made,. The Collector made a reference entertaining that application, which was tried by the Court of Civil Judge, Senior Division, wardha. Before the said Court, the respondent State raised amongst others the plea of limitation as far as the tenability of the reference is concerned. The parties also led evidence on merit in support of their respective cases. The learned civil Judge held against the appellant, finding that the reference itself was barred by time having been made after six weeks, from the date of the award. He further found that one D. B. Bhoyar, who signed the Roznama, was the person who represented this public trust and, therefore, the limitation started to run from February 25, 1963, under proviso (a) to Section 18(2) of the said Act. Taking that view, he held that the claim of the appellant was unentertainable. On the matter of compensation, he found that the appellant would be entitled to Rs. 3,000 as the compensation for the well in place of Rs. 5,000 granted while he would be entitled to compensation for land at the rate of Rs. 1,000 per acre instead of Rs. 950 per acre.

3. Now this raises an important question as to the true interpretation of the proviso to sub-section (2) of Section 18 laying down the starting point for limitation under clause (a) or (b) of the proviso.

4. For the appellant it is contended that this case is governed by Clause (b) having a period of six months' limitation and it was an error to apply clause (a) in the present cause . It is contended that clause (a) is only attracted when either reference was present before the Collector was duly represented award was made or was duly represented by a person competent to act on his behalf. In no other case clause (a) is applicable . It is further submitted that admittedly collector had not issued any notice as required by section 12(2) and the only period for limitation, therefore , could be the period six months.

5. As against this, for the State is contended that whether there was a person who represented the applicant before the Collector, is a question of fact to be decided in each case upon evidence. It is submitted that the finding given by that one Mr. Bhoyar was present and was the person authorised to represent the Medal is based on evidence and particularly the circumstances available on record. It is not necessary, according to the learned counsel , that such according to the learned counsel, that such person must be should be a constituted attorney or an agent who is capable of representing the interest of the applicant in such proceedings.

6. Now these two diametrically opposed submissions are to be considered in the context of the other provisions available in the Act. There is no definition in the Act itself of the word 'representative' and that word by itself would mean an agent . That is, however. not enough for words of the statute are the purpose which may be obvious in the given provision.

7. A little look back to the provisions and the scheme of the Act would therefore be necessary.

8. The law itself deals with compulsive process of acquisition of land. For that purpose it defines the 'persons interested' in section 3(b) to mean and include all persons claiming an interest in the compensation to be made on account of acquisition. All such persons have a rights of an application under Section 18 of the Act. The defining section further indicates who are the persons who can be deemed to be the persons 'entitled to act' Section 3(g).There it is provided that the persons indicated by clause (g) would be deemed to be the persons entitled to act to the extent specifically provided. Trustees represent all the beneficiaries and beneficial interest and are as such entitled to act for the beneficiaries and they represent their interest. Provision is made with respect to married woman governed by the provisions of English law. Similarly, provision is made with respect to guardians of minors and the committees or managers of lunatics for minors, lunatics or idiots. Clause (Government) has a proviso and not only it carves out certain qualifications but provides for the procedure in certain matters. Where the interest is sown to be adverse, the person is disabled from acting and provision is made for representation by the next friend. Collector or Court is empowered to appoint a guardian for the purpose of acting on behalf of the other. Provisions of Order XXXI of the Code of Civil Procedure have been made applicable for the appointment of such next friends or the guardian. It is clearly provided that the person entitled to act would not be competent to receive the compensation money payable to the person for whom he is entitled to act unless he had the authority to alienate the land and receive and give a good discharge for the purchase money on a voluntary sale.

9. This scheme of having persons interested and properly represented clearly shows that the law requires, the same being the machinery for acquiring interests in the property, that the persons who are competent to alienate or transfer interests in property and thus are competent to give a good discharge by accepting considerations in the case of voluntary transfers should be before the authorities proceeding to acquire land. This paramount anxiety has to be kept in view for ultimately the right in property is affected by acquisition by the due process of this legislation.

10. Section 5-A deals with objections and gives to the person interested in any land notified for acquisition under Section 4 statutory right to raise objection to the acquisition of the land itself. Sub-section (3) of Section 5-A lays down that a person who can claim an interest in compensation alone is entitled to avail of this opportunity. Section 6 requires consideration of the report made under Section 5-A, before a declaration that the land is required for public purpose is finally made. Steps required to be taken after such a declaration are indicated by Sections 7,8 and 9 Section 9(3) requires that apart from the public notice, the Collector would serve the notice on all persons known or believed to be interested therein or to be entitled to act for person so interested. Such a notice can be validly served directly on their behalf. It is only when the person interested resides elsewhere and has no agent authorised to receive the notice on his behalf, sub-section (4) provides service of notice by post. Section 10 gives power to the Collector to have the information regarding persons possessing any interest in the land nor any possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest. Section 11 deals with enquiry and award to be made by the Collector, and there also the Collector is enjoined to enquire into the objections that might have been put up by the persons interested pursuant to the notice given under Section 9. Such objections may also include objections as to measurements and value of the land. After considering all these claims, the Collector can make an award which is an offer of compensation for the purpose of acquiring the interest in land. This award has to be filed in the office of the Collector under Section 12(1) and if the persons interested are present represented when the award is made, the Collector is required to give notice of his award under sub-section (2). The same said procedure has to be followed under Section 12-A. Section 16 permits the Collector after making an award to take possession of the land and upon such taking, the property vests absolutely free from all encumbrances in the Government.

11. This is the statutory spread over of the various provisions emanating from the intention of acquiring land for public purpose evidenced by a notification under Section 4 and ultimately divesting persons of their property and vesting the same in the State under Section 16 after all the stages indicated earlier have been gone through.

12. It is manifest that in the matrix of this statutory scheme it is inherent that the persons whose interest in the land is being compulsorily acquired should not only participate but they should have effective hearing on relevant matters including the process of making and considering the statutory offer of compensation. It is further plain that the statute seeks to take over by acquisition the property by payment of compensation for the corpus that vests in the State and seeks to have legal and good discharge from the person whose interests in property pass on and vest in the State. Making of an award thus is a sine qua non of the basic process. Offer is to be made to the owner who can or is capable of passing property. Logically it follows that primarily the offer must be to the immediate known owner or it must be to such of his representative who is competent to pass the property in favour of the State or give good discharge by accepting the compensation offered were it a voluntary sale. A mere agent who has no such authority to effect alienate or transfer the proprietary interest of his principal whose property of Section 11 or Section 12 of the Act. Any other approach bristles with complications and variety of problems. Here one must leave the external contour of the phrase 'Representative' and probe the deeper side of it and thus viewed real interior value-symbol; contemplated and contained in that term is only to have a person capable of parting the property.

13. Wherever the Legislature wanted to bind the person interested by the act of other, it has used a phraseology expressly indicating who such person shall be. Section 9(3) contemplates the notice to be served on the persons interested and such notice will be valid if an agent who is authorised to receive such notice is duly served. If however there is a person who is not shown to have the authority to receive notice on behalf of the person interested and he is served, it follows that there is no valid service of notice under Section 9(3) of the Act. The right either in Section 5-A or section 9 is primarily conferred on the person interested in the land and property itself so that he can have effective hearing on vital matters that affect his property. That being the position, Section 11 expressly enjoins that the objections of the person interested are to be taken into account. It is only after such person is so heard, the Collector can make the offer of compensation by passing an award. Therefore when Section 12(2) of the Act permits the Collector to give immediate notice of the award it must be to the competent representative who can bind the interest of his principal. Notice to any other person can hardly service the purpose of an other which upon unqualified acceptance would eclipse the rights in property.

14. The word 'representative' in sub-section (2) of Section 12 therefore should for all purposes contemplate persons who are properly constituted to be the agents and capable of acting in the transactions of sale of immovable property. He should possess primordial authority from his principal not only to act for him but also to give good discharge by accepting consideration if it was a case of a sale inter vivos. The term 'representative' though capable of meaning every erosion who acts for other has thus to be understood in the context of the whole process of passing of title from persons to the acquiring authority. The principle that governs ordinary sales of immovable property to the effect that only under express authority the competent attorneys can effectively transfer the property belonging to others appears to be implicit in the scheme of Section 11 and Section 12 of the Act. It is not enough to say, therefore, that somebody was present when the Collector made an offer by passing an award or by filing the same under Section 12. To be the representative the person must represent fully all the interest, title and property of his principle and should further be capable to give due discharge to the Collector by accepting compensation offered to him.

15. That appears to be the proper import of the word 'representative' used in sub-section (2) of Section 12. The difference in phraseology noted above in Section 9(3) and Section 12(2) can also be treated as one of significance. When it was a matter for serving the notice, the Legislature used the phraseology that such service can be validly made on 'agent' who are authorised to receive service on behalf of the principal. For the purpose of sub-section (2) of Section 12 however, the word agent has not been advisedly used and in its place the word 'representatives' has been indicative.

That shows that a mere agent is not with in the statutory contemplation. Either the person interested who is entitled to receive the compensation and thus give good discharge under the provisions of this Act is personally present or he is represented by a person who can do all these acts for him. This is more so for the reason that such person's act and knowledge of offer has reaching consequences. An effective or constructive knowledge of the award gives a right to accept the same but it also enables such party to refuses and seek the remedy of reference. Time begins to run once effective notice under Section 12(2) is given or the award is made known to the person affected. If such a meaning is not give it is likely to erode further valuable rights and even frustrate the remedy. Questions of hardship in seeking to serve notice do not impel me to hold otherwise.

16. That being the position under Section 12(2), for more than one reason the terms of clause (a) of the proviso to sub-section (2) of Section 18 will have to be read as indicating the persons or their representative who are competent to give discharge by accepting compensation. If either the person whose right, title and interest in property is under acquisition is present personally when the award was made or the person who could old the same for him was present when that award was made, then only the starting point for limitation indicated by clause (a) of the proviso is completely answered and reached. Any other presence would not enable time to run under that clause for a valuable remedy is provided to the aggrieved applicant to approach the Court by seeking a reference. As the proviso governs the right to remedy and limitation therefore considerations based on technicalities should, in my view, be technicalities should , in my view, be scrupulously avoided and interpretation that subserves the justice should be preferred.

17. The injunction of sub-section (2) of Section 12 is to the Collector to give immediate notice of the award if the person interested was not present personally or was not properly represented at the time of making the award. If he gives such notice, then the six weeks' time begins to run from the date of receipt of the notice. It is contemplated by clause (a) that if the person interested was present or was properly represented by another person when the award was made, he must be deemed to give the notice of the award itself and as such the full knowledge of the award. However, if he is not present, nor he is represented by a competent person in the view I have taken being a person competent to give good discharge by accepting compensation then the Collector has further at that point to issue notice as required by sub-section (2) of Section 12 and the period of limitation would start from the receipt of such notice and clause (b) should always apply if it is shown that award has been either directly or constructively brought to the knowledge of the person or persons interned on the person interested for the purpose of computing the period of limitation would, in all cases, depend on the facts available in that regard. But once the date of knowledge can be ascertained, the law prescribes the optimum time of six months for making an application under Section 18(1) from that date.

18. It will not be out of place at this stage to make a reference to judicial this stage to make a reference to judicial pronouncement upon the provisions of clause (b) in the proviso itself and the principles applied while construing the same. In Raja Harish Chandra v. Deputy Land Acquisition Officer, : [1962]1SCR676 , the Supreme Court had the occasion to observe:-

'Where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector under Section 12 of the Land Acquisition Act, 1894, either actual or constructive is an essential requirement of fairplay and natural justice. Therefore, the expression 'the date of the award' used in proviso (b) to Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively ..................'

In that case, it may be observed, no notice of the award under Section 12(2) was served and the case was that though the award was filed on March 25, was served and the case was that though the award was filed on March 25, 1951, the applicant came to know of it on January 13, 1953, and he filed an application on February 24, 1953 under Section 18. The Court found that the application wax entertainable and was not barred by limitation. It may be observed that the Court refused to give literal or mechanical construction to the phrase 'the date of the award' occurring in the provision of Section 18 on the ground of consideration k of fairplay and justice. Further in State of Punjab v. Qaisar Jehan Begum : [1964]1SCR971 Court applied the limitation of six months from the date of the knowledge of the contents of the award and found the matter to be governed by clause (b) of the proviso to Section 18(2). The Court said.

'.................. Where the award was never communicated to the party the question is when did the party know the award either actually or constructively Knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must related to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under Section 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act knowledge of the award must mean knowledge of the essential contents of the award'.

Such a knowledge, the Court observed, could not be presumed or inference only because the petition for interim payment was filed by the party before the Collector. After considering the facts available in that case, the Court found that the matter was governed by clause (b) of the proviso to Section 16 of the Act.

19. The provisions of Section 12 of the Act were considered by the Supreme Court in State of U. P. v. Abdul Karim, (1969) 2 SCWR 579 and it was observed that the provision for giving a notice under Section 12(2) was meant to give intimation to the person who may be affected by the award and further that the provisions as to limitation contained in Section 18(2) have to be read in the light of Section 12(2).

20. Applying these tenants to the present controversy, in the view I have taken it is clear that no notice as required by Section 12(2) was served either on the present appellant or on any person on their behalf having authority to receive the notice. Only because a servant Mr. Bhoyar was present and he purported to have signed the Roznama, it does not follow that this appellant which is a public trust has been made aware of the award and its contents so that provisions of Section 18(proviso) (a) should be attracted. Actually, in the present case, there is evidence to show coming forth from the said Mr. Bhoyar that he was not holding any power-of-attorney nor he was authorised agent of the said Mandal. He was one of the servants working in the Gram Seva Mandal and used to appear in the office of the Land Acquisition Officer.

21. This position is not disputed on behalf of the State. No doubt, he has signed the order-sheet before the Collector on 25-2-63. There is no evidence to hold that he was competent to give good discharge by accepting the compensation or, had it been a sale of property, by accepting the price money. There appears no material to hold that Mr. Bhoyar was duly constituted representative in this regard who would act on behalf of the Mandal. That being the position , clause (a) of sub-section (2) of Section 18 was not at all attracted, for it is admitted that the person interested, i.e. the Mandal or any trustee on its behalf, was not present. Mr. Bhoyar had not capacity to pass the property and as such it cannot be held that the requirements of clause (a) have been satisfied. It is clear that no notice under Section 12(2) was given by the Collector either to the Mandal or any one authorised on its behalf to receive the notice. That being the position, the case on limitation would be governed by the latter part of clause (b) and six months limitation would be available from the date of knowledge of the Collector's award.

22. With this conclusion, the award itself was made on February 25, 1963, and the application for making a reference was made on April 20, 1963 . There being six months' limitation, even assuming that the knowledge passed on to the Mandal on the very day the award was made, the application was made well within time.

23. I have answered these issues on the assumption that when the matter comes to the Civil Court under reference, the Civil Court is competent to consider the question of limitation. That is also the view of this Court reported as back as in (1906) ILR 30 Bom 275: In re Land Acquisition Act. That was the debated before me on behalf of the State.

24. That takes me to the quantum of compensation and there the findings are in favour of the present appellant. As to the price of the land, the learned Judge upon the evidence of Shamrao examined at Exh. 28 and Mahadeo at Exh. 30 found that the land in worth Rs.1,000 per acre. No exception can be taken to that finding. As to the well the learned Judge has found on the evidence of Jangloo Exh. 32, wherein he had stated that it was worth Rs.2,000 and, as against this, there was evidence coming from Maroti, who had assessed the value of well at Rs.3,000. The learned Judge was minded to accept the value of the well at Rs.3,000.

25. Now the learned counsel appearing for the State submits that in respect of the well this is not the correct appreciation of evidence.

26. Between the parties no doubt the evidence is too scanty. Ganpati (A. W. 1) states that the value of the well, according to him, was Rs. 3,000. It is a pucca well-built well in the land itself l and is constructed in stones. The inside diameter of the well according to him, is 16' to 18'. He also speaks of the offer made by Marotrao in the sum of Rs. 7,000 for the land about two years back. Marotrao (A. W. 2) similarly states that the well was wroth Rs. 3,000. He had offered to purchase the land two years ago at Rs. 1,200 or 1,300 per acre. His statement about his estimate has not been challenged. Sadasheo (A. W. 4) is a clerk in Adarsha Vidyalaya and states about an agreement to purchase filed for Rs. 7,000 and odd. Shamrao (N. A. W. 1) has purchased a field in 1959 having acreage 3.29 acres for Rs. 1,5000 which was under his own cultivation. He admits that the present land under acquisition is superior to his filed. He states that the well is 6 feet in diameter and is constructed in stones. N. A. W. 2 Mahadeo had purchased land in 1959 for Rs. 700, area 1.54 acres. He admits that the field in dispute may fetch a price at Rs. 1,000 per acre. He admits that there is a well in the field and had seen process of irrigation. he admits that there is a price rise in the agricultural lands N. A. W. 3 Jangloo had purchased 5 acres of land in 1957 for Rs. 3,000. He had given an offer for the purchase of the field in acquisition in the sum of Rs. 8,000 and that was also before 21/2 years ago. He also accepts that there is considerable rise in the market price since 1957. He admits that when he had made an offer, he had calculated the cost of the well at Rs. 2,000, and Rs. 8,000 included the price of the well.

27. This evidence clearly shows that the well is a well-built well having about 6 feet diameter and useful for irrigation. Even the evidence led by the State shows that prior to two years, the intending purchaser had valued it at Rs. 2,000. There is thus no reason to disturb the finding made by the learned Civil Judge that the compensation for the well should have been fixed at Rs. 3,000. That appears to be quite reasonabel.

28. In the result, the present appeal will have to be allowed and the order made of dismissal of c reference will have to be set aside.

29. The appellant would be entitled to get the compensation on account of the well in the sum of Rs. 3,000. He has been awarded Rs. 500. Thus his claim to the extent of Rs. 2,500 will stand decreed on account of the compensation for the well. Similarly, for the land, the appellant would be entitled to get at the rate of Rs. 1,000 per acre, i.e. total amount of Rs. 3,000. He has been given Rs. 2,850. So he will also be entitled to proportionate solarium at fifteen per cent. on the sum which works out to Rs. 397.50. The total amount thus worked out which the appellants would be entitled to receive would be Rs. 3,047.50. A decree in that sum shall follow. Though the appeal in this term is thus allowed, there would be no orders as to costs.

30. Appeal allowed.


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