Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 2069-2070 OF 2010

[Arising out of SLP(C) Nos.24191-92 of 2008]

Bhagwan Das & Ors. ....Appellants

versus

State of UP & Ors. …Respondents

With

CIVIL APPEAL NOS. 2071-2072 OF 2010

[Arising out of SLP(C) Nos.24193-94 of 2008]

Nayantara Gupta & Ors. ....Appellants

versus

State of UP & Ors. …Respondents

J U D G M E N T

R. V. RAVEENDRAN, J.

Leave granted.

2.The lands of appellants within the municipal limits of Bisanda

were acquired for establishing a Upmandi by Krishi Utpadan Mandi

Samiti under preliminary notification dated 31.01.2004 and final

notification dated 20.03.2006. An award was made by the Land

Acquisition Collector on 14.03.2007. The appellants were served a notice

on 25.10.2007 by the office of the Collector to appear and receive the

compensation. The respondents made enquiries and on 16.11.2007 learnt

that an award had been made on 14.3.2007. Immediately they made an

application seeking a reference under section 18 of the Land Acquisition

Act, 1894 (‘Act’ for short) to the civil court for determination of

compensation. The Collector, Banda vide his order dated 19.12.2007

rejected the application seeking reference, on the ground that it was made

beyond a period of six months from the date of the award, prescribed

under Section 18(2) of the Act. The appellants filed a writ petition for

quashing the said order dated 19.12.2007 and seeking a direction to the

Land Acquisition Collector to refer their claim for increase in

compensation to the civil court. The writ petition was dismissed on

17.01.2008 as not maintainable, on the ground that an alternative remedy,

by way of an appeal under section 54 of the Act, was available against

the order dated 19.12.2007 passed by the Land Acquisition Officer. The

appellants filed a review petition pointing out that Section 54 of the Act

was inapplicable as it only provides for appeals against awards of courts.

The review petition was dismissed by order dated 5.5.2008, on the

ground that the appellants ought to have filed an application for

condonation of delay along with the application for reference, before the

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Land Acquisition Collector. The appellants have challenged the said

orders dated 17.01.2008 and 05.05.2008 in these appeals by special

leave.

3.The following questions arise for consideration, on the contentions

urged :

(a)Whether an appeal would lie under Section 54 of the Act

against the order of the Collector refusing to make a

reference?

(b)Whether the Collector can condone the delay in filing an

application seeking reference, if sufficient cause is shown?

(c)Whether the period of six months under clause (b) of the

proviso to section 18 of the Act should be reckoned from the

date of knowledge of the award of the Collector or from the

date of award itself?

(d)Whether the appellants were entitled to relief?

4.We may, to begin with, refer to the provisions of the Act which are

relevant for considering these questions. Section 11 of the Act provides

for an enquiry into objections and making of an award by the Collector.

Sub-Section (2) of Section 12 requires the Collector shall give immediate

notice of his award to such of the persons interested as were not present

personally or by their representatives when the award was made. Section

18 providing for Reference to Court is extracted below:-

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“18. Reference to Court –

(1) 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 persons to whom it is payable or

the apportionment of the compensation among the persons

interested.

(2) The application shall state 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 Section 12, sub-section (2), or

within six months from the date of the Collector’s award,

whichever period shall first expire”.

(emphasis supplied)

Section 54 of the Act providing for appeals. The said section reads:

“54. Appeals in proceedings before court –

Subject to the provisions of the Code of Civil Procedure, 1908,

applicable to appeals from original decrees, and notwithstanding

anything to the contrary in any enactment for the time being in

force, an appeal shall only lie in any proceedings under this Act

to the High Court from the award, or from any part of the award,

of the Court and from any decree of the High Court passed on

such appeal as aforesaid an appeal shall lie to the Supreme Court

subject to the provisions contained in Section 110 of the Code of

Civil Procedure, 1908 and in Order XLIV thereof”.

Re : Question (a)

5. Section 54 of the Act provides for an appeal from the award of

the court in any proceedings under the Act to the High Court, and from

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the decree of the High Court to the Supreme Court. Section 3(d) of the

Act defines the expression “court” to mean a principal civil court of

original jurisdiction, unless the appropriate Government has appointed a

special officer within any specified local limits to perform functions of

the court under the Act. On the other hand, the expression “Collector” is

defined in section 2(c) of the Act as the Collector of a district, and

includes a Deputy Commissioner and any officer specially appointed by

the appropriate Government to perform the functions of a Collector under

the Act. The decision of the Collector made after an enquiry under

section 11 with the previous approval of the appropriate Government or

its authorized officer is termed as the ‘award of the Collector’. The

determination by a court under section 26 of the Act in a reference by the

Collector is termed as an ‘award of the court’ which shall be deemed to

be a decree. Thus there is a difference between an ‘award of the

Collector’ which is an offer of compensation by the Collector as the agent

of the Government, and ‘an award of the court’ which is a determination

of the compensation by a civil court on a reference by the Collector.

Further, the Collector can either make a reference or refuse to make a

reference to the court under section 18 of the Act or under section 30 of

the Act, and such orders of the Collector are merely acts of a Statutory

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Authority in exercise of statutory functions and are not adjudicatory in

nature. Such orders are not awards. The Land Acquisition Collector is not

a Court, nor his award or order, an award of the Court. While the

proceedings of a court resulting in an award of the court are judicial

proceedings, neither the proceedings of the Collector under section 11 of

the Act resulting in an award of the Collector, nor the proceedings

relating to an application seeking reference, are judicial proceedings.

Section 54 does not provide for appeals against the awards or orders of

Land Acquisition Collector. Hence the assumption of the High Court that

an order of the Collector refusing to refer a claim for increase in

compensation to the civil court under section 18(1) of the Act, is an

‘award of the court’ appealable under section 54 of the Act, is wholly

erroneous.

Re : Question (b)

6. The proviso to section 18 requires that an application by a person

interested, to the Collector, seeking reference of his claim for higher

compensation for determination by the Court, shall be made within six

weeks from the date of the Collector’s award, if such person was present

or represented before the Collector, at the time when the award was

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made. If not, the application for reference shall have to be made within

six weeks of the receipt of the notice of the Collector under Section 12(2)

or within six months from the date of the Collector’s award, whichever

period shall first expire.

7. In Officer on Special Duty (Land Acquisition) & Anr. v. Shah

Manilal Chandulal & Ors. [1996 (9) SCC 414], this Court held that in

view of the special limitation provided under the proviso to section 18 of

the Act, section 29(2) of the Limitation Act, cannot be applied to the

proviso to section 18 of the Act; and therefore, the benefit of sections 4 to

24 of Limitation Act 1963, will not be available in regard to applications

under section 18(1) of the Act. It was also held that as the Collector is not

a court when he discharges his functions as a statutory authority under

section 18(1) of the Act, section 5 of the Limitation Act 1963 cannot be

invoked for extension of the period of limitation prescribed under the

proviso to section 18(2) of the Act. As the Collector is not a civil court

and as the provisions of Section 5 of the Limitation Act, 1963 have not

been made applicable to proceedings before the Collector under the Act,

and as there is no provision in the Act enabling the Land Acquisition

Collector to extend the time for making an application for reference, the

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Collector cannot entertain any application for extension, nor extend the

time for seeking reference, even if there are genuine and bonafide

grounds for condoning delay. This view was reiterated in Steel Authority

of India Ltd. vs. S.U.T.N.I. Sangam and others [2009 (16) SCC 1].

Therefore, the observation of the High Court that an application for

condonation of delay could have been made by the person interested, is

incorrect.

We should however notice that there is an apparent inconsistency in two

observations of this Court in S.U.T.N.I. Sangam (supra). In the earlier part

of the decision, this Court observed : “The proceedings under the Land

Acquisition Collector is of an administrative nature and not of a judicial

or quasi judicial character.” However, in a latter part of the said decision

(at para 75 of the report), this Court observed : “Land Acquisition

Collector is a statutory authority. The proceeding before the Land

Acquisition Collector is a quasi-judicial proceeding.” As the said

inconsistency has no bearing upon the issue on hand, we do not propose

to consider it in this case, but leave the clarification to be done in an

appropriate decision.

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Re : Question (c)

8. Clause (b) of the proviso to section 18 requires a person

interested who has not accepted the award, to make an application to the

Collector requiring him to refer the matter for determination of the court,

within six weeks of the receipt of the notice from the Collector under

section 12(2) or within six months from the date of the Collector's award

whichever period first expires, if he or his representative was not present

before the Collector at the time of making of the award.

9. The reason for providing six months from the date of the award

for making an application seeking reference, where the applicant did not

receive a notice under section 12(2) of the Act, while providing only six

weeks from the date of receipt of notice under section 12(2) of the Act for

making an application for reference where the applicant has received a

notice under section 12(2) of the Act is obvious. When a notice under

section 12(2) of the Act is received, the land owner or person interested is

made aware of all relevant particulars of the award which enables him to

decide whether he should seek reference or not. On the other hand, if he

only comes to know that an award has been made, he would require

further time to make enquiries or secure copies so that he can ascertain

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the relevant particulars of the award.

10.The term 'date of the Collector's award' occurring in clause (b) of

the proviso, has been interpreted by this Court in several cases. We may

refer to a few of them.

10.1)In Raja Harish Chandra Raj Singh v. Dy. Land Acquisition

Officer [AIR 1961 SC 1500], this Court held :

“Therefore, if the award made by the Collector is in law no more

than an offer made on behalf of the Government to the owner of

the property then the making of the award as properly understood

must involve the communication of the offer to the party

concerned. That is the normal requirement under the contract law

and its applicability to cases of award made under the Act cannot

be reasonably excluded. Thus considered the date of the award

cannot be determined solely by reference to the time when the

award is signed by the Collector or delivered by him in his

office; it must involve the consideration of the question as to

when it was known to the party concerned either actually or

constructively. If that be the true position then the literal and

mechanical construction of the words 'the date of the award'

occurring in the relevant section would not be appropriate.

There is yet another point which leads to the same conclusion. If

the award is treated as an administrative decision taken by the

Collector in the matter of the valuation of the property sought to

be acquired it is clear that the said decision ultimately affects the

rights of the owner of the property and in that sense, like all

decisions which affect persons, it is essentially fair and just that

the said decision should be communicated to the said party. The

knowledge of the party affected by such a decision, either actual

or constructive, is an essential element which must be satisfied

before the decision can be brought into force. Thus considered

the making of the award cannot consist merely in the physical

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act of writing the award or signing it or even filing it in the

office of the Collector; it must involve the communication of the

said award to the party concerned either actually or

constructively. If the award is pronounced in the presence of the

party whose rights are affected by it it can be said to be made

when pronounced. If the date for the pronouncement of the

award is communicated to the party and it is accordingly

pronounced on the date previously announced the award is said

to be communicated to the said party even if the said party is not

actually present on the date of its pronouncement. Similarly if

without notice of the date of its pronouncement an award is

pronounced and a party is not present, the award can be said to

be made when it is communicated to the party later. The

knowledge of the party affected by the award, either actual or

constructive, being an essential requirement of fair play and

natural justice the expression 'the date of the award' used in the

proviso must mean the date when the award is either

communicated to the party or is known by him either actually or

constructively. In our opinion, therefore, it would be

unreasonable to construe the words 'from the date of the

Collector's award' used in the proviso to Section 18 in a literal or

mechanical way.”

(emphasis supplied)

10.2)In State of Punjab v. Mst. Qaisar Jehan Begum & Anr. [AIR

1963 SC 1604], this Court reiterated the principles stated in Raja Harish

Chandra Raj Singh (supra) and further held as follows :

“It seems clear to us that the ratio of the decision in Harish

Chandra's case (supra) 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 S. 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

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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.”

(emphasis supplied)

10.3)In Parsottambhai Maganbhai Patel & Ors. vs. State of Gujarat

through Dy. Collector Modasa & Anr. [2005 (7) SCC 431] and in Steel

Authority of India Ltd. vs. S.U.T.N.I Sangam [2009 (16) SCC 1], the

aforesaid principles were followed and reiterated by this Court.

11.When a land is acquired and an award is made under section 11

of the Act, the Collector becomes entitled to take possession of the

acquired land. The award being only an offer on behalf of the

Government, there is always a tendency on the part of the Collector to be

conservative in making the award, which results in less than the market

value being offered. Invariably the land loser is required to make an

application under section 18 of the Act to get the market value as

compensation. The land loser does not get a right to seek reference to the

civil court unless the award is made. This means that he can make an

application seeking reference only when he knows that an award has been

made. If the words six months from the ‘date of the Collector's award’

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should be literally interpreted as referring to the date of the award and not

the date of knowledge of the award, it will lead to unjust and absurd

results. For example, the Collector may choose to make an award but not

to issue any notice under section 12(2) of the Act, either due to

negligence or oversight or due to any ulterior reasons. Or he may send a

notice but may not bother to ensure that it is served on the land owner as

required under section 45 of the Act. If the words ‘date of the Collector’s

award’ are literally interpreted, the effect would be that on the expiry of

six months from the date of award, even though the claimant had no

notice of the award, he would lose the right to seek a reference. That will

lead to arbitrary and unreasonable discrimination between those who are

notified of the award and those who are not notified of the award. Unless

the procedure under the Act is fair, reasonable and non-discriminatory, it

will run the risk of being branded as being violative of Article 14 as also

Article 300A of the Constitution of India. To avoid such consequences,

the words ‘date of the collector's award’ occurring in proviso (b) to

section 18 requires to be read as referring to the date of knowledge of the

essential contents of the award, and not the actual date of the Collector’s

award.

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12.The following position therefore emerges from the interpretation

of the proviso to section 18 of the Act :

(i) If the award is made in the presence of the person interested (or

his authorised 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.

(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.

A person who fails to make an application for reference within the time

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prescribed is not without remedy. It is open to him to make an application

under section 28A of the Act, on the basis of an award of the court in

respect of the other lands covered by the same acquisition notification, if

there is an increase. Be that as it may.

13.When a person interested makes an application for reference

seeking the benefit of six months period from the date of knowledge, the

initial onus is on him to prove that he (or his representative) was not

present when the award was made, that he did not receive any notice

under Section 12(2) of the Act, and that he did not have the knowledge of

the contents of the award during a period of six months prior to the filing

the application for reference. This onus is discharged by asserting these

facts on oath. He is not expected to prove the negative. Once the initial

onus is discharged by the claimant/person interested, it is for the Land

Acquisition Collector to establish that the person interested was present

either in person or through his representative when the award was made,

or that he had received a notice under Section 12(2) of the Act, or that he

had knowledge of the contents of the award. Actual or constructive

knowledge of the contents of the award can be established by the

Collector by proving that the person interested had received or drawn the

15

compensation amount for the acquired land, or had attested the Mahazar/

Panchnama/proceedings delivering possession of the acquired land in

pursuance of the acquisition, or had filed a case challenging the award or

had acknowledged the making of the award in any document or in

statement on oath or evidence. The person interested, not being in

possession of the acquired land and the name of the state or its transferee

being entered in the revenue municipal records coupled with delay, can

also lead to an inference of constructive knowledge. In the absence of any

such evidence by the Collector, the claim of the person interested that he

did not have knowledge earlier will be accepted, unless there are

compelling circumstances to not to do so.

Re : Question (d)

14.In this case, it is not in dispute that the award was not made in the

presence of the claimant-land owner. The claimant has asserted that the

award was not made in the presence of either himself or his

representative, and no notice of the award under section 12(2) of the Act

was tendered to him. He has also asserted that he became aware of the

award only when he received the notice dated 25.10.2007 calling upon

him to receive the payment of the award. The respondents contend that a

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notice dated 30.3.2007 was issued under section 12(2) of the Act, to all

the interested land-owners including the appellants. But it is admitted that

the said notice was not sent by post nor served on the land-owners. There

is also no evidence that the said notice was tendered personally to them or

that they refused to accept it. The respondent has produced a copy of a

notice dated 30.3.2007 with an endorsement of the person who was sent

to serve the notice which reads as under : “As per your order I went to

village Bishanda and informed the farmers but they refused to put their

signatures. Report is submitted.” A vague endorsement that the person

who had to serve the notice went to village and informed the farmers, is

not the same as notice being specifically tendered to the person

concerned. The endorsement-cum-report does not mention or identify the

farmers to whom he spoke or which of them refused to put their

signatures. In the absence of any evidence placed by the Collector to

show knowledge on the part of the appellants, the claim of the appellants

that they became aware that an award was made only when the notice

dated 25.10.2007 was tendered to them and they became aware of the

contents of the award only on 16.11.2007 has to be accepted. In the

circumstances, the date of the award should be taken as 16.11.2007. The

application filed on 16.11.2007 was therefore in time. The Land

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Acquisition Collector ought to have entertained the application seeking

reference. The High Court, instead of directing the Collector to make a

reference, wrongly rejected the writ petition on the ground that an appeal

is maintainable under section 54 of the Act and also wrongly rejected the

review petition on the ground that they could have made an application

for condonation of delay before the Land Acquisition Collector.

15.In view of the above, the appeals are allowed, the orders of the

High Court dated 17.1.2008 and 5.5.2008 are set aside, the writ petition is

allowed and the Collector is directed to make a reference to the civil court

under section 18 of the Act, without any delay, not later than two months.

….......................................J.

(R V Raveendran)

New Delhi; …....................................J.

February 26, 2010. (K S Radhakrishnan)

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