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 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
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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
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
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
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
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
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
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