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The Ii Additional Special Land Acquisition Officer, Harbour, Bangalore Vs. B. FaqruddIn Ahmed - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 516 of 1970
Judge
Reported inAIR1972Kant215; AIR1972Mys215
ActsLand Acquisition Act, 1894 - Sections 3, 9, 9(3), 12, 18, 18(2) and 18(3)
AppellantThe Ii Additional Special Land Acquisition Officer, Harbour, Bangalore
RespondentB. FaqruddIn Ahmed
Appellant AdvocateAnandanayya Puranik, High Court Govt. Pleader
Respondent AdvocateM. Gopala Krishna Shetty, Adv.
Excerpt:
.....intimation of the sale was precluded from filing the present application and that his remedy was by way of a suit. it was further submitted by him that even though the respondent has purchased the property before the preliminary notification and the sale is perfectly good, since his name is not mentioned at all either in the preliminary notification or in the award, he is not a person who is entitled to make an application for reference under section 18(3)(b) of the land acquisition act. i am of the view that having regard to the observations made by their lordships of the supreme court in the case, [1964]1scr971 even in the case of a person who has not been notified of the proceedings, the limitation for the purpose of section 18, proviso (31 (b) (?), starts from the date of..........raises a question of interpretation to be placed on the provisions of section 18 of the land acquisition act. 2. the respondent is the owner of survey number 199/3c and he purchased the same from one kanthappa on 28-8-1964. after this purchase, proceedings commenced for the acquisition of this land and the preliminary notification was published on 29-9-1964 and an award was passed on 2-4-1967. it may be noted that even though the purchase in the present case by the respondent was prior to the preliminary notification, the present respondent was not notified about any one of the matters, i.e., about the proposed acquisition of the land and about the award; having come to know of the passing of the award, he filed an application under the provisions of section 18 of the land.....
Judgment:
ORDER

H.B. Datar, J.

1. This revision application raises a question of interpretation to be placed on the provisions of Section 18 of the Land Acquisition Act.

2. The respondent is the owner of survey number 199/3C and he purchased the same from one Kanthappa on 28-8-1964. After this purchase, proceedings commenced for the acquisition of this land and the preliminary notification was published on 29-9-1964 and an award was passed on 2-4-1967. It may be noted that even though the purchase in the present case by the respondent was prior to the preliminary notification, the present respondent was not notified about any one of the matters, i.e., about the proposed acquisition of the land and about the award; having come to know of the passing of the award, he filed an application under the provisions of Section 18 of the Land Acquisition Act requesting the Land Acquisition Officer to make a reference to the court.

3. The objections raised by the respondent was that the petition was not maintainable in law and the averments made in the petition are not admitted to be correct and that the petitioner was not admitted to be interested in the acquired land and that he having failed to give due intimation of the sale was precluded from filing the present application and that his remedy was by way of a suit.

4. The learned trial Judge recorded evidence of the petitioner and came to the conclusion that the petitioner's remedy was to make an application under Section 18(3)(b) of the Land Acquisition Act and he accordingly allowed the application and ordered the petitioner to make a reference under Section 18 of the Act within 3 months from that date.

5. It is the correctness of this order that is challenged in this revision application.

6. The learned Government Pleader contends that it is only the person whose name is mentioned in the award that is entitled to make an application for a reference under Section 18 of the Act. It was further submitted by him that even though the respondent has purchased the property before the preliminary notification and the sale is perfectly good, since his name is not mentioned at all either in the preliminary notification or in the award, he is not a person who is entitled to make an application for reference under Section 18(3)(b) of the Land Acquisition Act.

7. In support of this submission, the learned Advocate for the petitioner has relied upon two judgments. One is the judgment of the Supreme Court in the case Dr. G. H. Grant v. State of Bihar, reported in : [1965]3SCR576 and the other is the judgment of the Orissa High Court in Narayan Das v. Kasinath Pani, reported in AIR 1968 Orissa 94. In my view, the Supreme Court in the decision reported in : [1965]3SCR576 was not considering the question which arose in this case; nor, did the Supreme Court held that a person whose name has been omitted is not entitled to ask for a reference under Section 18(3)(b) of the Land Acquisition Act. On the contrary, in my view, this very question was considered in an earlier judgment of the Supreme Court in the case of State of Punjab v. Mst. Qaisar Jehan Begum, reported in : [1964]1SCR971 . In that case it may be noted that the respondents who were interested in the acquisition proceedings, were not present at the time of the award and it has been stated in several places in para 2 that no notice was given and their names were not found in the award. Even then when an application was filed for reference and the question of limitation was raised, it was held that limitation starts only from the date of knowledge of the party. I am of the view that having regard to the observations made by their Lordships of the Supreme Court in the case, : [1964]1SCR971 even in the case of a person who has not been notified of the proceedings, the limitation for the purpose of Section 18, proviso (31 (B) (?), starts from the date of knowledge of the party, and that person like the present respondent could make an application under Section 18 of the Land Acquisition Act.

8. On the contrary, three decisions of the High Courts of Patna, Andhra Pradesh and Madhya Pradesh were cited before me as supporting the view taken by the learned trial Judge. In Shivdev Singh v. State of Bihar, reported in : AIR1963Pat201 , it has been laid down at page 206 as under:--

'A person even if not served with a notice under Section 9 could claim such compensation, if he was entitled to any, by asking the Collector to make a reference to the court under Section 18. He could do so within 6 months from the date of the Collector's award as provided for under Section 18(2)(b)'.

In Yousuf Begum v. State of Andhra Pradesh, reported in : AIR1969AP10 , similar view has been taken. It has been held that a person though not a party to the Land Acquisition proceedings is entitled to seek a reference to the Civil Court on an application to be made by him to the Collector under Section 18 of the Act It is also stated that in the case of such an application no question of limitation arises, when a notice under Section 9(3) is not served on the party who was entitled to it. In the case Susandhi v. Collector, Raipur reported in : AIR1969MP78 , the judgment of the Patna High Court, mentioned above, has also been cited as also of the Supreme Court. In that decision what has been stated by the Division Bench of the Madhya Pradesh is, as under:--

'6. It is then argued that the petitioners were not noticed under Sections 9 and 12 of the Land Acquisition Act and therefore they are not entitled to claim a reference under Section 18. There is no substance in this contention. Section 18 does not provide that a reference can be claimed only by a person who has been served with notices under Sections 9 and 12. Any person interested who has not accepted the award has a statutory right if he applies within limitation to require the Collector to refer his objections to the court. The expression 'person interested' is defined in Section 3(b) of the Act to include all persons claiming an interest in compensation to be made on account of the acquisition of land under the Act. This definition also does not require that a person to come within the definition of 'person interested' must be one who is noticed under Section 9 or Section 12. The fact of notice may affect the question of limitation within which an application for reference should be made under Section 18, but in our view, it has nothing to dp with the eligibility of a person for making an application. In : AIR1963Pat201 , it was held by a Bench of the Patna High Court that a person even if not served with a notice under Section 9 can only (apply ?) for a reference under Section 18. Indeed, in : [1964]1SCR971 , where the question dealt with was one of limitation under Section 18(2) reference was claimed and was allowed at the instance of a person who had not at all been given any notice of the acquisition proceedings. We, therefore, reject the argument that the petitioners were not entitled to apply for a reference as they were not noticed under Section 9 or Section 12 of the Act'.

9. As already stated, the only other case to which reference has been made by the learned counsel for the petitioner is the case reported in AIR 1968 Orissa 94. In that case, it has been stated that a person who is not a party to the Land Acquisition proceedings has no right to ask for a reference. I am unable to accept this view of the Orissa High Court.

10. In this connection, it is necessary to make a reference to two provisions of the Land Acquisition Act. One is the provision under Section 18 of the Act which states:--

'Any person interested who has not accepted the award'

and the expression 'any person Interested' has been defined in Section 3(b) of the Act. It may be noted that, in the said definition, there is no mention that the only persons whose names are mentioned in the award, are entitled to make an application. On the contrary, what is provided is that all persons claiming an interest in the compensation may make an application under the provisions of the Act. In the present case, it cannot be said that the respondent whose land was acquired is a person not interested in the compensation. That being so, he is a person who is entitled to make an application under Section 18(3)(b) of the Land Acquisition Act. In my view, the learned trial Judge is perfectly right in holding that the respondent in this revision application is entitled to ask for a reference being made under the provisions of the Act.

11. The learned counsel for the petitioner next contended that the civil court had no jurisdiction to decide the question as to whether the respondent in this revision application was a person interested or not. I am of the view that this objection cannot be permitted to be raised for the first time in this revision application. Such objection was not raised in the court below and the learned Judge had no opportunity to deal with it Therefore, this objection cannot be raised at this stage and the same is rejected.

12. In the result, this revision application fails and the same is dismissed with costs.


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