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PETITIONER: RAJA HARISH CHANDRA RAJ SINGH

       Vs.

RESPONDENT: THE DEPUTY LAND ACQUISITION OFFICER AND ANOTHER

DATE OF JUDGMENT: 30/03/1961

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. WANCHOO, K.N.

CITATION:  1961 AIR 1500            1962 SCR  (1) 676  CITATOR INFO :  RF         1963 SC1604  (1,5)  D          1969 SC 323  (8)  RF         1970 SC 214  (13)  R          1974 SC 923  (45A)  R          1975 SC2085  (9)  RF         1976 SC2101  (11)  RF         1979 SC 404  (17)  R          1980 SC  15  (1)  R          1980 SC 775  (11)  APL        1981 SC 427  (5)  R          1986 SC1164  (5)  RF         1986 SC1805  (5)  D          1989 SC 239  (3,4,5)  RF         1991 SC2141  (10)

ACT: Limitation-Land  Acquisition-Award  by  Collector-Notice  Of award not given-Application for reference to Court-Time  for making-Land Acquisition Act, 1894 (1 of 1894), s. r8.

HEADNOTE: Certain  lands belonging to the appellant were  compulsorily acquired.   The Collector made an award with respect to  the amount of compensation, signed and filed it in his office as required by S. 12(1) Land Acquisition Act on March 19, 1950. But  no  notice of the award, as required by s.  12(2),  was given  to the appellant.  The appellant came to know of  the award  on  or about January 13, 1953, and  on  February  24, 1953, he filed an application under s. 18 requiring that the matter be referred for the determination of the Court.   The proviso to s. 18 prescribes that in cases where a person was not present or represented at the time of the making of  the award  the application under s. 18 shall be made within  six weeks of the receipt of the notice from the Collector  under s. 12(2), or "within six months from the date of the award", whichever  shall expire first.  The appellant’s  application was dismissed as time barred on the ground that it was  made beyond six months of the date of the award. Held, that the application made by the appellant under s. 18 of the Act was not beyond time.  The award of the  Collector was not a decision but an offer of compensation on behalf of the  Government to the owner of the property and it was  not

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effective  until  it  was communicated to  the  owner.   The making  of the award did not consist merely in the  physical act  of writing the award or signing it or filing it in  the office of the Collector; it also involved the  communication of the award to the owner either actually or constructively. Consequently, the expression "the date of the award" in  the proviso  to  s.  18  meant  the  date  when  the  award  was communicated to the owner or is known by him either actually or constructively.  The application in the present case  was made within six months of the date when the appellants  came to know of the award and was within the period prescribed. Ezra v. The Secretary of State, (1903) I.L.R. 30 Cal. 36 and Ezra v. Secretary of State for India, (1905) I.L.R. 32  Cal, 605, applied. Magdonald  v. The Secretary of State for India  in  Council, (1905)  4  Ind.  C. 914 and Hari Das Pal  v.  The  Municipal Board, Lucknow, (1914) 22 Ind.  C. 652, approved.                             677 Jahangir Bemanji v. G.  D. Gaikwad, A.I.R. 1954 Bom. 419 and State of Travancore Cochin v. Narayani Amma Ponnamma, A.I.R. 1958 Kerala 272, disapproved. O.   A.  O.  A. M. Muthia Chettiar v.  The  Commissioner  of Income-tax,  Madras, I.L.R. 195i Mad. 815, Annamalai  Chetti v.  Col. T. G. The Cloeta, (1883) I.L.R. 6 Mad. 189. and  E. V. E. Swaminathan.The Alias Chidambaram Pillai v. Letchmanan Chettiar, (1930) I.L.R.Acqu 53 Mad. 491, referred to.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeals Nos. 25 and  26 of 1958. Appeals from the judgments and orders dated August 7,  1956, of the Allahabad High Court in Special Appeals Nos. 151  and 152 of 1955. C.   B.  Agarwala, A. N. Goyal and Mohan Lal  Agarwala,  for the appellant. Gopi Nath Dikshit and C. P. Lal, for the respondents. 1961.  March 30.  The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-These two appeals arise out Gajen, of two writ  petitions filed by the appellant Raja  Harish  Chandra Raj   Singh   against  the  respondents  the   Deputy   Land Acquisition Officer and another in the Allahabad High  Court and they were based on the same facts and asked for the same relief.   Both  of  them raise a short  common  question  of limitation  the  decision  of which would  depend  upon  the determination  of the scope and effect of the provisions  of the  proviso to s. 18 of the Land Acquisition Act I of  1894 (hereafter  called  the Act).  Since the facts in  both  the appeals  are  substantially the same we would refer  to  the facts in Civil Appeal No. 25 of 1958.  The decision in  this appeal would govern the decision of the other appeal,  Civil Appeal No. 26 of 1958. The  appellant  Raja  Harish  Chandra  Raj  Singh  was   the proprietor of a village Beljuri in the District of Nainital. It  appears that proceedings for compulsory  acquisition  of land  including the said village for a public  purpose  were commenced  by  respondent  2, the State  of  Uttar  Pradesh; notifications  under ss. 4 and 6 of the Act were  issued  in that behalf, and the 678 provisions of s. 17 were also made applicable.  Accordingly, after  the notice under s. 9(1) of the Act  was    published possession  of land was taken by the Collector on March  19, 1960.    Thereupon  the  appellant  filed   his   claim   to

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compensation  for the land acquired in    accordance with s. 9(2),   and  proceedings  were  held  by  the  Deputy   Land Acquisition  Officer,  respondent  1,  for  determining  the amount   of   compensation.   It  appears  that   in   these proceedings  an  award  was made, signed and  filed  in  his office by respondent I on March 25, 1951.  No notice of this award was, however, given to the appellant as required by s. 12(2)  and it was only on or about January 13, 1953 that  he received  information  about the making of the  said  award. The appellant then filed an application on February 24, 1953 under  a. 18 requiring that the matter be referred  for  the determination of the Court, as, according to the  appellant, the compensation amount determined by respondent I was quite inadequate.  Respondent I took the view that the application thus made by the appellant was beyond time under the proviso to s. 18 and so he rejected it.  The appellant then filed  a writ  petition  in  the Allahabad  High  Court  on  December 21,1953  in which he claimed appropriate reliefs in  respect of the order passed by respondent I on his application  made under  a. 18.  This petition was heard by Mehrotra,  J.  and was  allowed.   The learned Judge directed respondent  1  to consider the application made by the appellant on the merits and  deal with it in accordance with law.  He held  that  in dealing with the said application respondent 1 should  treat the application as filed in time.  Against this decision the respondents  preferred an appeal to a Division Bench of  the said  High  Court.  Mootham, C. J. and Chaturvedi,  J.,  who heard  this appeal took the view that the application  filed by the appellant under s. 18 of the Act was barred by  time, and  so they allowed the appeal, set aside the order  passed by Mehrotra, J. and dismissed the writ petition filed by the appellant.   The  appellant then moved for  and  obtained  a certificate  from  the said High Court and it is  with  this certificate that he has come to this 670 Court in the present appeal; and so the short question which the  appellant  raises  for  our  decision  is  whether  the application filed by him under s. 18 of the Act( was in time or not. Before proceeding to construe the material provisions of  s. 18  it  is necessary to refer very briefly  to,  some  other sections  of  the  Act  which  are  relevant  in(  order  to appreciate the background of the scheme in relation to  land acquisition   proceedings.    Section  4  deals   with   the publication  of the preliminary notification and  prescribes the powers of the appropriate officers.  Whenever it appears to  the appropriate Government that land in any locality  is needed for any public purpose a notification to that  effect shall  be  published in the official gazette  and  a  public notice of its substance shall be given at convenient  places in  the said locality; that is the effect of s. 4(1).   Sec- tion   4(2)  deals  with  the  powers  of  the   appropriate authorities.   Section  5-A  provides  for  the  hearing  of objections filed by persons interested in any land which has been notified under s. 4(1).  After the objections are  thus considered a declaration that land is required for a  public purpose  follows under s. 6(1).  Section 6(2)  provides  for the  publication of the said declaration; and s. 6(3)  makes the declaration conclusive evidence that the land is  needed for  a public purpose.  Section 9 requires the Collector  to give public notice in the manner specified stating that  the Government intend to take possession of the land and calling for  claim,% to compensation in respect of all interests  in such land.  Section 9(2) prescribes the particulars of  such notice, and s. 9(3) an 4) provide for the manner of  serving

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such notice.  Section II deals with the enquiry and provides for the making of the award by the Collector.  Section 12(l) then  lays  down that the award when made by  the  Collector shall be filed in his office, and shall, except as otherwise provided,  be final and conclusive evidence as  between  the Collector  and  the  persons interested  whether  they  have respectively  appeared before the Collector or not,  of  the true  area and value of the land, and the  apportionment  of the compensation 680 among  the persons interested.  Section 12(2) is  important. It makes it obligatory on the Collector to 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.  It is common ground that no such notice  was given by respondent 1 to the appellant.  That briefly is the scheme  of  the relevant provisions of Part II of  the,  Act which deals with acquisition. Part  III which deals with reference to Court and  procedure thereon  opens with s. 18.  Section 18(1) provides that  any person  interested  who has not accepted the award  may,  by written  application  to  the Collector,  require  that  the matter  be referred by him for determination of  the  Court, inter  alia, whether the amount of compensation is  adequate or not.  It is under this provision that the appellant  made an  application  from  which  the  present  appeal   arises. Section 18(2) requires that the application shall state  the grounds  on  which objection to the award is  taken.   These grounds   have   been  stated  by  the  appellant   in   his application.   The proviso to s. 18 deals with the  question of  limitation.  It prescribes 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 s. 12(2), or within  six months  from  the date of the  Collector’s  award  whichever shall  first expire.  The appellant’s case falls  under  the latter part of el. (b) of the proviso.  It has been held  by the Allahabad High Court that since the application made  by the appellant before respondent I was made beyond six months from  the date of the award in question it was beyond  time. The  view  taken by the High Court proceeds on  the  literal construction  of  the relevant clause.  As we  have  already seen  the  award was signed and delivered in his  office  by respondent  1 on March 25, 1951 and the application  by  the appellant was made under s. 18 on February 24, 1953.  It has been held that the effect of the relevant 681 clause  is  that the application made by  the  appellant  is plainly  beyond the six months permitted by the said  clause and  so respondent I was right in rejecting it as barred  by time.  The question which arises for our decision is whether this  literal and mechanical way of construing the  relevant clause is justified in A law.  It is obvious that the effect of this construction is that if a person does not know about the making of the award and is himself not to blame for  not knowing  about  the award his right to make  an  application under  s. 18 may in many cases be rendered ineffective.   If the  effect  of the relevant provision unambiguously  is  as held by the High Court the unfortunate consequence which may flow from it may not have a material or a decisive  bearing. If, on the other hand, it is possible reasonably to construe the  said  provision so as to avoid such  a  consequence  it would  be  legitimate  for  the Court to  do  so.   We  must

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therefore enquire whether the relevant provision is  capable of  the construction for which the appellant  contends,  and that naturally raises the question as to what is the meaning of the expression "the day of the Collector’s award". In dealing with this question it is relevant to bear in mind the legal character of the award made by the Collector under s. 12.  In a sense it is a decision of the Collector reached by  him after holding an enquiry as prescribed by  the  Act. It  is a decision, inter alia, in respect of the  amount  of compensation  which should be paid to the person  interested in  the property acquired; but legally the award  cannot  be treated  as a decision; it is in law an offer or  tender  of the compensation determined by the Collector to the owner of the  property under acquisition.  If the owner  accepts  the offer  no  further proceeding is required to be  taken;  the amount  is paid and compensation proceedings are  concluded. If, however, the owner does not accept the offer s. 18 gives him the statutory,, right of having the question  determined by  Court, and’ it is the amount of compensation  which  the Court may determine that would bind both the owner and 86 682 the  Collector.   In  that case it is  on  the  amount  thus determined judicially that the acquisition proceedings would be  concluded.   It is because of this nature of  the  award that  the award can be appropriately  described as a  tender or offer made by the Collector  on behalf of the  Government to the owner of the property for his acceptance.  In Ezra v. The  Secretary  of State (1).  It has been  held  that  "the meaning  to be attached to the word "award" under s. 11  and its  nature and effect must be arrived at not from the  mere use  of the same expression in both instances but  from  the examination  of  the provisions of the law relating  to  the Collector’s  proceedings  culminating  in  the  award.   The considerations to which we have referred satisfy us that the Collector  acts  in  the  matter  of  the  enquiry  and  the valuation of the land only as an agent of the Government and not  as a judicial officer; and that consequently,  although the  Government  is bound by his  proceedings,  the  persons interested  are not concluded by his finding  regarding  the value  of the land or the compensation to be awarded."  Then the  High  Court  has added that such tender  once  made  is binding on the Government and the Government cannot  require that the value fixed by its own officer acting on its behalf should  be open to question at its own instance  before  the Civil  Court.   The  said case was taken  before  the  Privy Council  in Ezra v. Secretary of State for India (2  ),  and their Lordships have expressly approved of the  observations made  by  the  High Court to which we  have  just  referred. 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 (1) (1903) I.L.R. 30 Cal. 36, 86. (2) (1905) I.L.R. 32 Cal. 605. 683 involve the consideration of the question as to when it  was known   to   the   party  concerned   either   actually   or

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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 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  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 684 construe the words "from the date of the Collector’s  award" used in the proviso to s. 18 in a literal or mechanical way. In  this connection it is material to recall the fact   that under  s. 12(2) it is obligatory on the Collector  to   give immediate notice of the award to the persons interested  a,, are not present personally or by their representatives  when the  award is made.  This requirement itself postulates  the necessity  of  the communication of the award to  the  party concerned.   The Legislature recognised that the  making  of the award under s. 11 followed by its filing under s.  12(1) would  not meet the requirements of justice before  bringing the award into force.  It thought that the communication  of the award to the party concerned was also necessary, and  so by the use of the mandatory words an obligation is placed on the  Collector to communicate the award immediately  to  the person  concerned.   It  is  significant  that  the  section requires   the  Collector  to  give  notice  of  the   award immediately  after making it.  This provision lends  support to  the view which we have taken about the  construction  of the  expression "from the date of the Collector’s award"  in the  proviso to s. 18.  It is because communication  of  the order  is regarded by the Legislature as necessary  that  s. 12(2) has imposed an obligation on the Collector and if  the relevant clause in the proviso is read in the light of  this statutory requirement it tends to show that the literal  and mechanical  construction of the said clause would be  wholly

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inappropriate.   It  would indeed be a very  curious  result that   the  failure  of  the  Collector  to  discharge   his obligation  under  s.  12(2) should directly  tend  to  make ineffective  the right of the party to make  an  application under  s. 18, and this result could not possibly  have  been intended by the legislature. It may now be convenient to refer to some judicial decisions bearing  on  this point.  In Magdonald v. The  Secretary  of State,  for India in Council (1) Rattigan and Shah Din,  JJ. held  that  under  the proviso to s. 18 until  an  award  is announced or communicated to the parties concerned it cannot be said to be legally made. (1)  (1005) 4 Ind.  C. 914. 685 An award under the Act, it was observed in the judgment,  is in  the  nature of a tender and obviously no tender  can  be made unless it is brought to the(-, knowledge of the  person to  whom it is made.  The learned Judges observed that  this proposition  seemed  to them to be self-evident.   The  same view has been expressed by the Oudh Judicial Commissioner in Hari Das Pal v. The Municipal Board, Lucknow (1). On the other hand, in Jehangir Bomanji v. G. D. Gaikwad  (2) the Bombay High Court has taken the view that the element of notice is only an essential ingredient of the first part  of cl.  (b) of the proviso to s.18 which prescribes the  period of  limitation as six weeks from the date of the receipt  of the notice from the Collector, not of the second part  which prescribes the maximum period of six months from the date of the Collector’s award in absolute terms.  According to  that decision, as far as the limitation under the latter part  is concerned it runs from the date of the award and the date of the award has nothing whatever to (lo with the notice  which the  Collector has to give under s. 12(2).  In  our  opinion this decision is based on a misconstruction of the  relevant clause  in the proviso to s. 18.  The same comment falls  to be  made in regard to the decision of the Kerala High  Court in State of Travancore-Cochin v. Narayani Amma Ponnamma (3). It  may, however, be pertinent to point out that the  Bombay High  Court has taken a somewhat different view  in  dealing with the effect of the provision as to limitation prescribed by  s. 33A(2) of the Indian Income-tax Act.  This  provision prescribes limitation for an application by an assessee  for the  revision of the specified class of orders, and it  says that such an application should be made within one year from the date of the order.  It is significant that while provid- ing for a similar period of limitation s. 33(1) specifically lays  down  that  the  limitation  of  sixty  days   therein prescribed  is to be calculated from the date on  which  the order in question is communicated to the (1) (1914) 22 Ind.  C. 652.  (2) A.I.R. 1954 Bom. 419, (3) A.I.R. (1958) Kerala 272. 686 assessee.  In other words, in prescribing limitation s. 33(1) expressly provides for the commencement  of  the period from the date of the communication   of the  order,  whereas   s. 33A(2) does not refer to any  such    communication;     and naturally the argument was that communication was irrelevant under  s. 33A(2) and limitation would commence as from  ’the making of the order without reference to its  communication. This  argument was rejected by the Bombay High Court and  it was  hold  that it would be a reasonable  interpretation  to hold that the making of the order implies notice of the said order, either actual or constructive, to the party  affected by it.  It would not be easy to reconcile this decision  and particularly  the  reasons  given in its  support  with  the

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decision  of  the same High Court in the  case  of  Jehangir Bomanji  (1).   The relevant clause under s. 33A(2)  of  the Indian  Income-tax Act has also been similarly construed  by the  Madras High Court in O.A.O.A.M. Muthia Chettiar v.  The Commissioner  of  Income-tax, Madras (2).  "If a  person  is given a right to resort to a remedy to get rid of an adverse order within a prescribed time", observed Rajamannar,  C.J., "limitation should not be computed from a 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".   In other  words the Madras High Court has taken the  view  that the   omission   to  use  the  words  "from  the   date   of communication"  in s. 33A(2) does not mean  that  limitation can  start  to  run against a party even  before  the  party either  knew or should have known about the said order.   In our opinion this conclusion is obviously right. A  similar  question arose before the Madras High  Court  in Annamalai  Chetti v. Col.  J. G. Cloete(3).  Section  25  of the  Madras  Boundary Act XXVIII of 1860  limited  the  time within which a suit may be brought to set side the  decision of the settlement officer to two months from the date of the award, and (1) A.I.R 1954 Bom. 419.    (2) I.L.R. 1951 Mad. 815. (3) (1883) I.L. R. 6 Mad. 1 89. 687 so  the  question arose as to when the time would  begin  to run.   The  High Court held that the time can begin  to  run only from the date on which the decision is communicated  to the parties.  "If there was any decision at all in the sense of  the Act", says the judgment, "it could not date  earlier than  the  date of the communication of it to  the  parties; otherwise  they might, be barred of their right,  of  appeal without  any knowledge of the decision having been  passed". Adopting the same principle a, similar construction has been placed  by  the Madras High Court in K.  V.  E.  Swaminathan alias Chidambaram Pillai v. Letchmanan Chettiar (1).  On the limitation  provisions contained in ss. 73(1) and  77(l)  of the  Indian Registration Act XVI of 1908.  It was held  that in  a case where an order was not passed in the presence  of the  parties  or after notice to them of the date  when  the order  would  be passed the expression "within  thirty  days after  the  making of the order" used in the  said  sections means  within  thirty  days  after the  date  on  which  the communication  of the order reached the parties affected  by it.  These decisions show that 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 must mean either  actual or constructive communication of the said order to the party concerned.  Therefore, we are satisfied that the High  Court of  Allahabad was in error in coming to the conclusion  that the  application  made  by  the  appellant  in  the  present proceedings  was  barred under the proviso to s. 18  of  the Act. In  the  result we allow the appeal, set  aside  the  orders passed  by  Mootham, C. J. and Chaturvedi, J.,  and  restore those  of  Mehrotra, J. In the circumstances  of  this  case there would be no order as to costs. Appeal allowed. (1) (1930) I.L.R. 53 Mad- 491. 688

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