JUDGMENT
J.N. Patel, J.
1. Heard the learned Counsel for the Parties.
2. This appeal is preferred against the award dated 29-8-1986 passed by the Court of Civil Judge, Senior Division, Yavatmal in Land Acquisition Case No. 4/1982. The land of the appellant came to be acquired for construction of Pandharkawada – Wai Kathoda Road from village Wai, Tahsil – Kelapur. A notification under Section 4 of the Land Acquisition Act came to be issued on 20-1-1982. It was also published in the local newspaper i.e. Indian Times on 26-1-1982. Subsequently a notification under Section 6 of the Land Acquisition Act, came to be issued on 29-1-1983 and published in the newspaper on 17-3-1983. Under the said notification the land of the appellant – Gulabrao one of the co-sharers came to be acquired i.e. 58 R out of survey No. 18 and 50 R out of Survey No. 20, situated in village Wai, Tahsil – Pandharkawada, District Yavatmal. Notices under Section 9(1) and (2) of the Land Acquisition Act came to be published and under Section 9(3) and 9(4) were served on the interested persons inviting their claims. The Special Land Acquisition Officer who was entrusted with the acquisition of the land for the said project declared award on 31-8-1983 in Land Acquisition Case No. 57/65/80-81.
3. Aggrieved by the said award, the appellant applied to the Collector that the matter be referred for determination of the Court, and this is how the Collector made Reference under Section 18 of the Land Acquisition Act, 1894 to the Court of Civil Judge, Senior Division, Yavatmal.
4. The learned Judge who decided the Reference held that the applicant has failed to prove that he is entitled to enhancement of compensation to the tune of Rs. 10,638.00/- or interest as claimed. But only recommended to the Special Land Acquisition Officer that the claimants claim for interest from the year 1973 should be considered favourably and he will be entitled for solatium @ 30% in accordance with the amendment to Section 23(1-A) of the Land Acquisition Act, and with this recommendations dismissed the Reference on the sole ground that it is time barred, inasmuch as it was not filed within a period of 6 weeks from the receipt of the notice of award under Section 18(2)(b), and therefore held that the Court has no jurisdiction to answer the Reference and rejected it.
5. The appellant has impugned the said award on the ground that the reference Court misconstrued the provisions of Section 18 for the purpose of computing the period of limitation for making an application to the Collector for making reference to the Civil Court, secondly has rejected the claim for enhancement of compensation by ignoring the evidence on record, and thirdly in holding that the applicant/claimant is not entitled to all the consequential benefits.
6. On the other hand, it is the case of the respondents that the impugned award passed by the Civil Court does not call for interference as it has been rightly rejected on the ground that the application for making a Reference to the Collector was not made within the prescribed period of limitation, as such the application was filed beyond a period of 6 weeks prescribed under Section 18(2)(b) of the said Act.
7. It is further submitted that the Civil Court has also examined the claim of the applicant for enhancement and found that the award passed by the Land Acquisition Officer does not call for any interference. As the compensation has been rightly determined, taking into consideration the evidence on record. It is further submitted that the claim of the applicant for compensation for stone bund in Survey No. 20 and for 8 Babul Trees and 5 Neem trees were also rightly rejected, as this material was not available on the Original Record of the Land Acquisition Officer, nor the claimant has placed on record any material evidence supported by Revenue Record to show its existence and therefore, the trial Court was justified in holding that such a claim is totally unsustainable, for want of evidence. It is further submitted that as the Court has rejected their Reference on the preliminary issue of limitation, it has taken into consideration the entitlement of the applicant to claim solatium at the enhanced rate, in accordance with the amendment to Section 23(1) of the Land Acquisition Act, and therefore, the impugned order does not call for any interference.
8. On considering the rival contentions made by the learned Counsel for the parties, before this Court the following points arise for my determination :
(1) Whether the application for Reference has been filed before the Collector, within the prescribed period of limitation? (2) Whether the appellant/claimant is entitled for enhanced compensation as claimed by him? (3) Whether the appellant is entitled to other consequential benefits? 9. As to Point No. 1 : The undisputable facts relating to the notification issued under Section 4 of the Land Acquisition Act on 28-1-1982 till the Special Land Acquisition Officer declared the award on 31-8-1983 is not under challenge and therefore it being a matter of record needs no consideration. The fact which requires determination, is whether the applicant made the application for Reference within the time prescribed under Sub-section (2) of Section 18 of the Land Acquisition Act.
10. Mr. Masodkar, the learned Counsel appearing for the appellant/claimant submitted that the learned Civil Court has approached the issue by considering the case of the appellant for the purpose of computing the period of limitation in reference to the first part of proviso (b) of Sub-section (2) of Section 18 of the said Act. Mr. Masodkar, submitted that it is an admitted position that when the award was declared the applicant was not present before the Collector, hence his case is not covered by Section 18(2)(a). Insofar as Section 18(2)(b) is concerned, as notice was not served under Section 12(2), according to Mr. Masodkar the period of limitation will be 6 months from the date of Collector’s award, whichever period shall first expire and therefore, considering this aspect it is submitted that the Reference was well within limitation as it was filed within 6 months which is the period of limitation applicable to the case of the appellant/claimant. Therefore, according to Mr. Masodkar, the Reference was well within limitation, and the finding of the trial Court that it was barred by limitation is an error apparent on the face of record committed by the trial Court, on the basis of which, it rejected the Reference.
11. Mr. Yengal, the learned A.G.P., appearing for the Respondents submitted that in order to compute the period of limitation for making a Reference, the Court has to examine as to when the claimant got knowledge of the award and it is from that date that the period of limitation would commence and will have to be computed for the purpose of determining whether the application for Reference was made within the stipulated period. Mr. Yengal, drew the attention of the Court to the fact that if one examines the record of the Land Acquisition Officer, it is on 7-9-1983 that the appellant/claimant got knowledge of the award, as it is borne out from the record, which bears his signature. It is submitted that he applied for certified copy of the award passed by the Special Land Acquisition Officer on 8-9-1983, and that the copy was ready on 11-10-1983 and delivered to the appellant on 15-10-1983, therefore, the learned Trial Court has rightly come to the conclusion that the application for reference has been made beyond the prescribed period of limitation i.e. 6 weeks from the receipt of the notice of award under Section 12(2), and therefore, it cannot be said that the findings arrived at by the Civil Court is erroneous.
12. In order to ascertain the facts this Court called for the original records and proceedings from the file of the Special Land Acquisition Officer, and in the opinion of this Court, it is not necessary to go into the controversy as to whether the appellant claimant is entitled for exclusion of the period required for obtaining certified copy and to examine the proposition whether the Collector has power to condone the delay under Limitation Act, while considering the application for making a reference to the Civil Court, as the issue is no more res-intergra and settled by various decisions of this Court and the Supreme Court of India to cite one of them is the decision rendered in the case of Officer on Special Duty v. Shah Manilal Chandulal and Ors., .
13. On going through the original records and proceedings from the file of the Land Acquisition Officer, this Court finds that the whole approach of the Civil Court on this issue is erroneous, as rightly submitted by Mr. Masodkar, the case of the applicant will be governed by the later part of proviso (b) to Sub-section (2) of Section 18 of the Act, and if that is so, then the application for seeking reference was made well within 6 months from the date of Collector’s award. Section 18(2)(b) reads as under :
“18(2)(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 Collector’s award whichever period shall first expire.”
14. A reading of Roznama shows that on 31-8-1983, the Special Land Acquisition Officer recorded – “Funds received from the Executive Engineer, Zilla Parishad Works, Yavatmal. Award declared today. None present. Issue notice under Section 12(2) of the Land Acquisition Act.” It is not the case of the respondents that the order of issue notice under Section 12(2) of the Land Acquisition Act was actually acted upon, and therefore in this case by reading the roznama dated 31-8-1983 it is crystal clear that the case of the appellant/claimant would not be governed by proviso (a), as on the date of declaration of the award, none was present before the Land Acquisition Officer, and so it would not be applicable. Now, if we turn to proviso (b), it contemplates two contingencies i.e. in other cases within 6 weeks of receipt of the notice from the Collector under Section 12(2) of the Land Acquisition Act, or within six months from the date of Collector’s award, which ever period shall first expire.
15. Admittedly though on 31-8-1983 the Special Land Acquisition Officer has directed issuance of notices under Section 12(2) of the Land Acquisition Act, no such notice has been factually issued to the claimants, including the appellants being a person interested in the award, and therefore, it is later part of proviso (b) which provides that “or within six months from the date of Collector’s award whichever period shall first expire”, will be applicable to the case of applicant/claimant. This is so because giving of notice is sine qua-non for the computation of the period of limitation, and if the notice under Section 12(2) of the said Act is not sent and served, the period of limitation does not commences or cause of action for filing an application under Section 18(1) of the Act does not arise. Even if the record is accepted as it is, then in the present case what has happened that on 7-9-1983 the appellant/claimant happened to appear before the Special Land Acquisition Officer, which can be seen from his signature in the margin and receipt obtained from him of handing over possession, and it is thereafter, that he makes an application for certified copy. But then in this case, if a person appears before the Special Land Acquisition Officer subsequent to the declaration of the award and without being served with a notice under Section 12(2) of the Land Acquisition Act, it will be a case where he will be entitled to file an application under Section 18 of the Land Acquisition Act within a period of 6 months from the date of the Collector’s award, and therefore as the Collector’s award has been passed on 31-8-1983, the period of six months would expire in the month of February, 1984, whereas the application for Reference was made before the Collector on 23-11-1983, which is well within the period of six months. Therefore, the finding of the trial Court that the Reference under Section 18 of the Land Acquisition Act is time barred in as much as it was not filed within a period of six weeks from the receipt of the notice of award under Section 18(b), is erroneous and incorrect. Probably the learned Judge, would have not arrived at such a conclusion if it has examined the original record properly in the context of applicability of the proper provisions of law to the facts of the case, and therefore, I, find that the application for seeking reference under Section 18 of the Land Acquisition Act was filed by the appellant/claimant within the prescribed period of limitation.
16. As to Point No. 2 : On the point of claiming enhanced compensation, it is the case of the appellant/claimants that he is entitled for enhanced compensation @ Rs. 7250.00 per hectare. Insofar as 58 R of land from survey No. 18 is concerned and @ Rs. 6250.00 per hectare in case of land admeasuring 50 R out of survey No. 20 is concerned, and so also for Bund in survey No. 20 @ Rs. 2000.00 and for Babul and Neem Trees in survey No. 18. Mr. Masodkar, submitted that the applicant has examined himself and in his oral evidence has specifically stated that there was stone bund in his survey No. 20 having width of 3 feet and height of 3 feet and length of about 200 ft. In the portion of the acquired land and therefore, he is entitled for Rs. 2000.00 as compensation for the bund. Further he has claimed that there was 8 Babul and 5 Neem trees in survey No. 18 in the portion acquired, and therefore, he claimed a sum of Rs. 2600.00 for the above 13 trees. According to him this evidence has also gone un challenged. Well this contention of the appellant/claimant cannot be accepted, as this was not brought on record when the appellant filed his claim statement before the Special Land Acquisition Officer, nor he led any evidence to show that the bund and trees existed on the respective surveys. Nor he filed any documents or Revenue record to show existence of these things, and therefore, the trial Court was justified in rejecting the claim on these counts.
17. Insofar as the claim of the appellant/claimant for enhanced compensation for the land acquired, he has examined Advocate Dinkar, son of Govind Kedar, who has stated in his evidence that he has purchased 3 acres of land in the year 1978 for a consideration of Rs. 13,500.00 from Advocate Dambale, which is situated in village Wai, vide sale deed Exh. 22. According to the appellant, it should be considered as a representative sale as there was no transaction in village Wai and the land purchased by this witness is from the adjoining village. It is also stated that the land purchased by Advocate Kedar, is of inferior quality than that of the appellant/claimant, and therefore, the appellant was entitled for enhanced claim of compensation. The trial Court has examined this, and found that this sale transaction relied upon by the claimant cannot be relied upon as a representative sale for the reasons that the village Wagdhara falls within adivasi area and the Government has sanctioned many facilities to the land owners therein and this is the special reason the prices of the land at Wagdhara are on upward trend as compared to village Wai, which at the relevant time had population of just 1500 and situated at a distance of 20 kms. from headquarters of Kelapur, and after examining all the pros and cons held that the claim of the appellant for enhanced compensation @ Rs. 5000.00 per acre is not justified and that the Land Acquisition Officer has considered the various transactions of lands in the adjoining areas of the relevant time and if it after classifying it in two groups came to the conclusion that the appellant was entitled to the compensation @ Rs. 7500.00 per hectare insofar as survey No. 18 is concerned and @ Rs. 9000.00 per hectare in case of survey No. 20. In the opinion of this Court, the Reference Court has taken into consideration various aspects while assessing the claim of the appellant for enhancement of compensation and this does not call for any interference, and further in view of the fact that the land acquired for the purpose of construction of road is very small in area and rather construction of road has given special advantage to the appellant, and therefore, compensation arrived at by the Special Land Acquisition Officer is just and proper.
18. As to Point No. 3 : In this case the Land Acquisition Officer has committed error while passing the award in not taking into consideration the amendment of Section 23 inserted by Section 15 of the Act (60 of 1984), therefore, this Court finds that the appellant/claimant is entitled to interest @ 12% p.a. on the compensation awarded by the Land Acquisition Officer for the period commencing and from the date of publication of the notification under Section 4(1) till the year 1973-74, which is held to be the date on which possession was taken and further the sum of 30% on such market value in consideration of the compulsory nature of acquisition i.e. by way of solatium in terms of Section 23(1-A) and (2) of the Land Acquisition Act. (K.S. Paripoornan v. State of Kerala and Ors., ).
19. In a decision rendered by the Supreme Court in the case of Sunder v. Union of India, , it has been held that solatium paid on account of compulsory acquisition under Section 23(2) of the said Act, forms part of compensation awarded and State is liable to pay interest @ 9% on the solatium. In this case the Special Land Acquisition Officer, vide his award dated 31-8-1983 granted solatium @ 15% of the amount of compensation whereas by virtue of amendment to Section 23(2) the claimant will be entitled to solatium @ 30%, therefore as per Section 28 read with Section 34 of the Land Acquisition Act, they will be entitled to interest on the sum of excess solatium @ 15% at the rate of 9% p.a. from the date on which he took possession of the land to the date of payment of such excess into Court and further @ 15% p.a. on the aforesaid amount for the period after one year, as per proviso to Section 28 of the said Act.
20. The Reference is allowed in the aforesaid terms. Award stands modified accordingly. The appeal therefore is partly allowed with costs.