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P.M. Parthakumaran Vs. Special Tahsildar for Land Acquisition, Kozhikode - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 298 of 1971
Judge
Reported inAIR1975Ker54
ActsKerala Land Acquisition Act, 1961 - Sections 12(2) and 20(2)
AppellantP.M. Parthakumaran
RespondentSpecial Tahsildar for Land Acquisition, Kozhikode
Appellant Advocate V.R. Venkitakrishnan, Adv.
Respondent AdvocateGovt. Pleader
DispositionAppeal dismissed
Cases ReferredKamala Kunwar v. Lakshan Goala
Excerpt:
.....order passed by single judge application for reframe against award of petitioner was time barred - notice of award does not contain essential requirements - notice does not state essential details of contents of award - opportunity of knowing award afforded by service of notice under section 12 (2) - no infirmity in order passed by single judge - appeal liable to be dismissed. - - for the appellant strong reliance was plated on two division bench rulings of this court in special tahsilrlar, kozhikode v. the purpose of such information is to enable such persons to call for reference under section 18 of the land acquisition act within the time allowed by the proviso to section 18 (2). it is not a kind of notice which goes to the root of the matter in the sense that failure to give..........204). in that decision rajamannar c. j. observed that:'limitation should not be computed from the date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have the knowledge of the order''.(underlining supplied by us).it is plain to us that there is a difference between actual knowledge and opportunity of knowledge. while the former has been expounded by supreme court to be the content of the latter part of clause (b) the latter, in our opinion, would suffice, as notice of the award, under the earlier part of it. once notice of the award is given under section 12 (2), the party concerned has the opportunity of knowing the award bv applying for a copy of it or by going and reading or.....
Judgment:

Gopalan Nambiyar, J.

1. The question raised in this writ appeal is whether the application for reference under Section 20 of the Kerala Land Acquisition Act, 1961, filed by the petitioner-appellant was beyond the time provided by the Act. A learned Judge of this Court dismissed the writ petition filed against the order cf the Special Land Acquisition Officer, holding that it was. For the appellant strong reliance was plated on two Division Bench rulings of this Court in Special Tahsilrlar, Kozhikode v. Karthiyayani Amma, 1971 Ker LT 847 and Malathi Amma v. The Land Acquisition Deputy Collector. 1973 Ker LT 221. The Division Bench composed of two of us before which the matter came on in the first instance, doubted the correctness of the rulings and felt that they required re-consideration for which purpose, this Full Bench has been, constituted. Notice was issued to the Advocate-General in view of the importance of the question, raised; and the learned Government Pleader appeared at the hearing.

2. The Award was passed on 25-3-1968. Notice of the Award under Section 12 (2) of the Act was received by the petitioner-appellant on 27-3-1953 Application for reference was filed on 20-5-1968 and rejected, as stated, as out of time. We may read Section 12 (2), and Section 20, of the Kerala Land Acquisition Act

'12 (2) -- The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.

X X X x X X20. Reference to Court.-- Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested.

(2) The application shall slate the grounds on which objection to the award is taken:

Provided that every such application shall be made--

(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award :

(b) in other cases, within six weeks of the receipt of the notice from the Collector under Sub-section (2) of Section 12 or within six months from the date of the Collector's award, whichever period shall first expire.'

(The Sections are in similar, if not identical 'terms, as Sections 12 (2) and 18 of the Central Land Acquisition Act). Section 49 provides for service of notices under the Act. It is not material for the present purpose. Section 61 authorises the framing of Rules under the Act; but no Rule has been brought to our notice prescribing the form or particulars of notice under Section 12 (2). A form of notice has been printed in the Land Acquisition Manual which comprises only of executive or administrative instructions, not having any statutory force. Ext. X-1 notice issued in this case conforms to the form ordained by these instructions.

3. There was no controversy in the instant case that if the notice of the Award was valid, the application for reference should be filed on or before 8-5-1968. It was rejected for not having been so filed. The writ petition to quash the said order was dismissed, as the learned Judge took the view that the notice issued in the form provided for issue of such notice, was proper and adequate, and that the petitioner need not know the reasoning in the Award for filing compensation, as all that is to be stated in the reference application was that the applicant is dissatisfied with the compensation awarded.

4. Both the Division Bench rulings in Karthiyayani Amma's case. 1971 Ker LT 847 and Malabhi Amma's case, 1973 Ker LT 221 referred to the two Supreme Court decisions, namely Harish Chandra v. Deputy Land Acquisition Officer (AIR 1961 SC 1500) and State of Punjab v. Qaisar Jehan Begam, AJR 1463 SC 1604. In the light of the principle of these decisions, the Division Bench rulings laid down that it was necessary for the notice of the Award to indicate the essentials of the contents of the Award, as otherwise the light of an applicant for reference to object to the Award would be rendered illusory. This, in substance, seems to be the ratio of the two Division Bench rulings.

5. Clause (b) to the proviso to Section 20 which we have extracted earlier, provides in substance, thus: If the applicant for reference was present or was represented before the Collector when he made his Award, six weeks time is allowed from the date of the Collector's Award. If he was not present, the time-limit is within six weeks from the receipt of notice from the Collector under Sub-section (2) of Section 12; OR within six months from the date of the Collector's Award, whichever is earlier. It appears to us that Clause (b) itself affords sufficient indication of the legislative consciousness and recognition of the distinction between the receipt of notice under Section 12 (2) and the date of the Collector's Award. The two decisions of the Supreme Court were with respect to the latter part of the proviso to Section 18 of the Central Land Acquisition Act. They laid down that the date of the Award meant the date when the Award was communicated or is known to the applicant actually or constructively. If the same requirements were necessary or implicit in the earlier part of Clause (b) of the proviso, we think the legislature need not, and would not have used different language. And to insist on the same requirement for both the parts of the clause would be to obliterate this difference in language.

6. On the scheme of the provisions of the Act again, it appears to us that the different periods of time provided for the different contingencies are quite understandable. If the applicant was present personally or by his representative, when the Award was made, he gets six weeks from the date of the Award. If not present, he gets the earlier of the two periods noticed earlier, viz. six weeks from the receipt of notice of the Award or six months from the date of the Award. The statutory obligation to issue notice under Section 12 (2) being there, a period of six weeks from, the date of receipt of notice is understandable; and where notice is unduly delayed, he gets six months from such knowledge of the award if that should expire earlier than six weeks of receipt of notice.

7. We shall now analyse more closely the two Supreme Court rulings and the two Division Bench rulings of this Court. In the earlier Supreme Court case in AIR 1961 SC 1500, no notice of the Award was given under Section 12 (2) of the Act. The question argued was regarding the meaning of the expression 'from the date of the Collector's Award'' occurring in the latter part of Clause (b) of the proviso to Section 18 of the Central Act. It was ruled that this did not mean the date of the mechanical process of making or pronouncing the Award, but indicated the date when the applicant knew or had the opportunity of knowing the Award. The basis of the reasoning was that an Award is an offer made on behalf of the Government to the owner of the property, and according to the normal requirements of the contract law, the offer should be communicated to the party concerned. Therefore it was ruled that the date of the Award is not the time when it was signed by the Collector or delivered by him to the Office, but must involve the consideration as to when it was known to the party concerned, either actually or constructively. The matter was also put from a different aspect. As an administrative decision of the Collector affecting rights of the owner of the property, it was said that it was essentially fair and just that the decision should be communicated to the party affected. The Supreme Court approved the decision of the Madras High Court in O. A. O. A. M. Muthayya Chettiar v. The Commr. of Income-tax, Madras ILR (1951) Mad 815 = (AIR 1951 Mad 204). In that decision Rajamannar C. J. observed that:

'Limitation should not be computed from the date earlier than that on which the party aggrieved actually knew of the order or had an opportunity of knowing the order and therefore must be presumed to have the knowledge of the order''.

(underlining supplied by us).

It is plain to us that there is a difference between actual knowledge and opportunity of knowledge. While the former has been expounded by Supreme Court to be the content of the latter part of Clause (b) the latter, in our opinion, would suffice, as notice of the Award, under the earlier part of it. Once notice of the Award is given under Section 12 (2), the party concerned has the opportunity of knowing the Award bv applying for a copy of it or by going and reading or inspecting the same.

8. The Supreme Court restated the principle again, in AIR 1963 SC 1604 = (1964) 1 SCR 971. Observed the Court:

'It seems clear to us that the ratio of the decision in Raja Harish Chandra's case. AIR 1961 SC 1500 is that the party affected by the award must know it, actually or constructively and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate 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 (21 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 we think that knowledge of the award must mean knowledge of the essential contents of the award'.

9. We would also refer to the decision of P. B. Mukharji J. (as he then was) in Kamala Kunwar v. Lakshan Goala, AIR 1967 Cal 105 where the learned Judge has discussed the object and purpose of a notice under Section 12 (2) of the band Acquisition Act. We shall read the relevant passage from the learned Judges judgment:

'Notice under Section 12 (2) unlike a notice under Section 9 of the Land Acquisition Act is not a notice intended to invite objections 'to an act which has not been done and completed vet. A notice under Section 12 (2) is only a notice ex post facto and a notice of a fait accompli, namely, it is a notice of an award already made .......

(17) The whole object of this notice is to inform such interested persons who were not present personally or by representatives when the award was made. It is only an informative notice. The purpose of such information is to enable such persons to call for reference under Section 18 of the Land Acquisition Act within the time allowed by the proviso to Section 18 (2). It is not a kind of notice which goes to the root of the matter in the sense that failure to give notice that an award has already been made will vitiate the award itself.'

10. We now turn to the two Division Bench Rulings of this Court. In Karthiyavani Amma's case. 1971 Ker LT 847, the Division Bench referred to the two rulings of the Supreme Court noticed earlier, and observed as follows:

'With this in mind, let us examine the position in the case before us. Ext. P1 is the notice sent by the Special Tahsildar to the respondent: and it mentioned the survey number of the property of the respondent, its extent and the amount awarded. (Similar particulars of other properties belonging to others are also there). Admittedly, there were improvements effected by the respondent for which also compensation was awarded. But Ext. P1 does not indicate as to what was the compensation for the improvements: it merely gives the total amount payable to the respondent. Under Section 11 of the Act, an award should contain the true area of the land, the compensation which should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, the Collector has information. If there are improvements on the land, evidently the compensation for the improvements should also form an essential content of the award. Looking at Ext. P1 in the light of Section 11, we feel that it does not contain all the essential contents of the award. Since Ext. P1 is defective in the regard, sending Ext. P1 is not sufficient notice as contemplated by Section 12 (2). We sum up that the Collector need riot necessarily send a copy of the award to the person interested; but it is necessary that all the essential contents of the award be made known to him by the notice. If that is done, there is a notice of the award as contemplated by Section 12 (2).'

11. For reasons already explained, we cannot accept the above exposition of the law as correct. In Malathi Amma's case. 1973 Ker LT 221 the Division Bench noticed the two Supreme Court decisions and the earlier Division Blench ruling of this Court in Karthiyayani Amma's case 1971 Ker LT 847, and observed:

'8. A person seeking a reference must state as is specified in Sub-section (2) of Section 20 of the Act the grounds on which objection to the award is taken. The only way in which objection can be taken either to the land value or to the value of improvements is by stating that what has been awarded is insufficient or inadequate. For so stating he must know how much had been awarded for these items separately. Apart from these, it cannot be gain said that the area acquired is an essential part of the award. This has been enumerated as one of the things to be stated in the award, by Section 11 of the Act. So also in cases of apportionment if there are more claimants than one, the amount due to each of those claimants must be specified. In all these regards Ext. P1 is wanting. The area has not been stated. The land value has not been stated. The value of improvements has not been stated nor has it been stated how much is payable to the petitioner, Malathi Amma and how much to the other 'person mentioned in Ext. P1 notice. Narayani Amma. In these circumstances it is impossible to hold that the petitioner had actual knowledge of the essential contents of the award in this case by virtue of Ext. P1 notice. No circumstances have been placed before us by which we can hold that she had constructive knowledge of the contents of the award. We do not think that a notice under Section 9 of the Act is sufficient to import constructive knowledge of the contents of the award. An award need not necessarily contain the same details as are mentioned in the notice. A notice under Section 9 of the Act would never contain the value at which the land is proposed to be acquired nor the value of improvements.

9. It was not urged before us that the notice Ex. P1 is sufficient to attract the first part of Section 20 (2) (b) nor was it so urged before the learned Judge who made the order of reference. We think that the notice does not contain the essential requirements because it does not state the essential details of the contents of the award.'

11A. We cannot, again accept the above observations as laying down the correct law. Knowledge of the award, is different from notice of the passing of the Award. The former, as a result of judicial exposition by the Supreme Court is necessary for the latter part of clause (b). The very decisions of the Supreme Court recognise the distinction between knowledge of the Award and opportunity of knowing the same. That is also clear from the approval by the Supreme Court of the principle of the decision of Raja-mannar C. J. in ILR (1951) Mad 815 = (AIR 1951 Mad 204). Opportunity of knowing the award is afforded by the service of notice under Section 12 (2). In the light of these, we do not think we can import into the earlier part of Clause (b), of the proviso to Section 20, the requirements of knowledge under the later part of it.

12. We have, with respect, found it difficult to understand the exact effect end significance of paragraph 9 of the judgment in Malathi Amma's case. 1973 Ker LT 221. If it was conceded that Ex. P1 notice was not sufficient to attract the first part of the proviso to Section 20 (2) (b) or, as stated, it was not urged that it was, the discussion that proceeded seems unnecessary.

13. In the light of what we have stated above, the decision of the learned Judge is correct. We affirm the same, and dismiss this writ appeal, but make no order as to costs.

14. Before we part with this matter, we would observe that the Government may well consider whether appropriate legislative amendment is not called for in the Act. Perhaps it might be worthwhile to insert the usual legislative definition of 'prescribe' 'or 'prescribed' and provide by Rules for the form and particulars of a notice under Section 12 (2).


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