{"id":79722,"date":"1974-03-18T00:00:00","date_gmt":"1974-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gram-seva-mandal-wardha-vs-the-collector-wardha-and-ors-on-18-march-1974"},"modified":"2015-04-25T02:26:45","modified_gmt":"2015-04-24T20:56:45","slug":"gram-seva-mandal-wardha-vs-the-collector-wardha-and-ors-on-18-march-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gram-seva-mandal-wardha-vs-the-collector-wardha-and-ors-on-18-march-1974","title":{"rendered":"Gram Seva Mandal, Wardha vs The Collector, Wardha And Ors. on 18 March, 1974"},"content":{"rendered":"
Bombay High Court<\/div>\n
Gram Seva Mandal, Wardha vs The Collector, Wardha And Ors. on 18 March, 1974<\/div>\n
Equivalent citations: AIR 1975 Bom 73<\/div>\n
Bench: Masodkar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
 1. The appellant is  a public  trust who owned field Survey  No. 70\/3. area 4.92  acres of mouza Anji  (Mothi). Under  the provisions of the land Acquisition Act, 1894, after issue  of notification with respect to 3-00 acres land out of the  Survey Number  in question, the land Acquisition  Officer, Wardha, made an award on February 25, 1963. By that award, he fixed Rs. 3,852. 50p. including  solatium as the compensation.\n<\/p>\n
  2. On April 20, 1963, the present appellant filed an application under Section 18 before the collector  for making a reference.  The appellant claimed a further sum of Rs. 3,647.50 as additional compensation . In that application, he alleged that he came to know of the award that he came to know of the award on March 4, 1963 and after receiving the copy, the application was made,. The Collector made a reference  entertaining that application, which was tried by the Court of Civil Judge, Senior Division, wardha. Before the said Court, the respondent State raised amongst others the plea of limitation as far as the tenability of the   reference is concerned.  The parties  also led evidence  on merit in support of their respective cases. The learned civil Judge held against the appellant, finding that the reference itself was barred by time having been made after six weeks, from the date of the award. He further found that one D. B. Bhoyar, who signed the  Roznama, was the person  who represented  this public trust and, therefore, the limitation started to run from February 25, 1963, under proviso (a) to Section  18(2) of the said  Act. Taking that view, he held that the claim of the appellant was unentertainable. On the matter of compensation, he found that the appellant would be  entitled to Rs. 3,000 as the compensation for the well in place of Rs. 5,000 granted while he would be entitled  to compensation  for land at the rate of Rs. 1,000 per acre instead of Rs. 950 per acre.\n<\/p>\n
  3. Now this raises an important question as to the true interpretation of the proviso to sub-section (2) of Section 18 laying down  the starting  point  for limitation under clause (a) or (b) of the proviso.\n<\/p>\n
  4. For the appellant it is contended that this  case is governed  by Clause (b) having a period of six months’ limitation and it was an error to apply clause (a) in the present cause . It is contended that clause (a) is only  attracted when either reference was present  before  the Collector was duly represented award was made or was duly represented by a person competent to act on his behalf. In no other case clause (a) is applicable . It is further submitted  that admittedly collector had not issued  any notice as  required  by section 12(2) and the only period for limitation, therefore , could be the period six months.\n<\/p>\n
  5. As against this, for the State is contended that whether there was a person who represented  the applicant before the Collector, is a question of fact to be decided in each  case upon  evidence. It is submitted  that the finding given by that one Mr. Bhoyer was present and was the person  authorised to represent  the Madal is based on evidence  and particularly the circumstances  available  on record. It is not necessary, according to the learned  counsel , that such according  to the learned counsel, that such person must be should be a constituted attorney or an agent  who is capable  of representing  the interest of the applicant  in such proceedings.\n<\/p>\n
  6. Now these two diametrically opposed submissions are to be considered in the context of the other provisions available in the Act. There is no definition  in the Act itself of the word “representative” and that word by itself would mean an agent . That is, however. not enough for words of the statute are the purpose which may be obvious in the given provision.\n<\/p>\n
  7. A little  look back to the provisions and the scheme of the  Act would therefore be necessary.\n<\/p>\n
  8. The law itself deals with compulsive process of acquisition of land. For that purpose it defines the “persons interested”  in section  3(b) to mean and include all persons claiming an interest in the compensation to be made on account of acquisition. All such persons have a rights of an application under Section 18 of the Act. The defining section further indicates who are the persons who can be deemed to be the persons “entitled to act” Section 3(g).There it is provided  that the persons indicated by clause (g) would be deemed  to be the persons entitled to act to the extent specifically provided.  Trustees represent all the beneficiaries and beneficial interest and are as such entitled to act for the beneficiaries and they represent their interest. Provision is made with respect to married woman governed by the provisions of English law. Similarly, provision is made with respect to guardians of minors and the committees or managers of lunatics for minors, lunatics or idiots. Clause (Government) has a proviso and not only it carves out certain qualifications but provides for the procedure in certain matters. Where the interest is sown to be adverse, the person is disabled from acting and provision is made for representation by the next friend. Collector or Court is empowered to appoint a guardian for the purpose of acting on behalf of the other. Provisions of Order XXXI of the Code of Civil Procedure have been made applicable for the appointment of such next friends or the guardian.  It is clearly provided that the person entitled to act would not be competent to receive the compensation money payable to the person for whom he is entitled to act unless he had the authority to alienate the land and receive and give a good discharge for the purchase money on a voluntary sale.\n<\/p>\n
  9. This scheme of having persons interested and properly represented clearly shows that the law requires, the same being the machinery for acquiring interests in the property, that the persons who are  competent to alienate or transfer interests in property and thus are competent to give a good discharge by accepting considerations in the case of voluntary transfers should be before the authorities proceeding to acquire land. This paramount anxiety has to be kept in view for ultimately the right in property is affected by acquisition by the due process of this legislation.\n<\/p>\n
 10. Section 5-A deals with objections and gives to the person interested in any land notified for acquisition under Section 4 statutory right to raise objection to the acquisition of the land itself. Sub-section (3) of Section 5-A lays down that a person who can claim an interest in compensation alone is entitled to avail of this opportunity. Section 6 requires consideration of the report made under Section 5-A, before a declaration that the land is required for public purpose is finally made. Steps required to be taken after such a declaration are indicated by Sections 7,8 and 9 Section 9(3) requires that apart from the public notice, the Collector would serve the notice on all persons known or believed to be interested therein or to be entitled to act for person so interested. Such a notice can be validly served directly on their behalf. It is only when the person interested resides elsewhere and has no agent authorised to receive the notice on his behalf, sub-section (4) provides service of notice by post.  Section 10 gives power to the Collector to have the information regarding  persons possessing any interest in the land nor any possessing any interest in the land or any part thereof as co-proprietor, sub-proprietor, mortgagee, tenant or otherwise, and of the nature of such interest. Section 11 deals with enquiry and award to be made by the Collector, and there also the Collector is enjoined  to enquire into the objections that might have been put up by the persons interested pursuant to the notice given under Section 9. Such objections may also include objections as to measurements and value of the land. After considering all these claims, the Collector can make an award which is an offer of compensation for the purpose of acquiring the interest in land. This award has to be filed in the office of the Collector under Section 12(1) and if the persons interested are present   represented when the award is made, the Collector is required to give notice of his award under sub-section (2).  The same said procedure has to be followed under Section 12-A. Section 16 permits the Collector after making an award to take possession of the land and upon such taking, the property vests absolutely free from all encumbrances in the Government.\n<\/p>\n
  11.  This is the statutory spread over of the various provisions emanating from the intention of acquiring land for public purpose evidenced by a notification under Section 4 and ultimately divesting persons of their property and vesting the same in the State under Section 16 after all the stages indicated earlier have been gone through.\n<\/p>\n
  12. It is manifest that in the matrix of this statutory scheme it is inherent that the persons whose interest in the land is being compulsorily acquired should not only participate but they should have effective hearing on relevant matters including the process of making and considering the statutory offer of  compensation. It is further plain that the statute  seeks to take over  by acquisition the property by payment of compensation for the corpus that vests in the State  and seeks to have legal and good discharge from the person whose interests in property pass on and vest in the State.  Making  of an award thus is a sine qua non of the basic process.  Offer is to be made to the owner who can or is capable of passing property. Logically it follows that primarily the offer must be to the immediate known owner or it must be to such of his representative who is competent to pass the property in favour  of the State or give good discharge by accepting the compensation offered were it a voluntary sale. A mere agent who has no such authority to effect alienate or transfer the proprietary interest of his principal whose property of Section 11 or Section 12 of the Act. Any other approach bristles with complications and variety of problems.  Here one must leave the   external contour of the phrase “Representative” and probe the deeper side  of it  and thus viewed  real interior value-symbol; contemplated and contained in that term is only to have a person capable of parting the property.\n<\/p>\n
  13.  Wherever the Legislature wanted to bind the person interested by the act of other, it has used a phraseology expressly indicating who such person shall be. Section 9(3) contemplates  the notice to be served on the persons interested and such notice will be valid if an agent who is authorised to receive such  notice is duly served.  If however there is a person who is not shown to have the authority to receive notice on behalf of the person interested and he is served, it follows that there is no valid service of notice under Section 9(3) of the Act.  The right either in Section 5-A or section  9 is  primarily conferred on the person interested in the land and property itself so that he can have effective hearing on vital  matters   that affect his property. That  being the position, Section 11 expressly enjoins that the objections of the person interested are to be taken into account.  It is only after such person is so heard, the Collector can make the offer of compensation by passing an award. Therefore when Section 12(2) of the Act permits the Collector to give  immediate notice of the award it must be to the competent representative who can bind  the interest of his principal.  Notice to any other person can hardly service the purpose of an other which upon unqualified acceptance would eclipse the rights in property.\n<\/p>\n
 14.   The word “representative”  in sub-section (2) of Section 12 therefore should for all purposes contemplate  persons who are properly constituted to be the agents and capable of acting in the transactions of sale of immovable  property. He should possess primordial authority  from his principal not only to act for  him   but also to give good discharge by accepting consideration    if it was a case of a sale inter vivos. The term “representative” though capable of meaning every erosion who acts for other  has thus to  be understood in the context of the whole  process of passing of title from persons to the acquiring authority. The principle that governs ordinary sales of immovable property to the effect that only under express authority the competent attorneys  can effectively transfer the property  belonging to others appears to be implicit  in the scheme  of Section 11 and Section 12 of the Act.   It is not enough to say, therefore, that somebody was present when the Collector made an offer  by passing an award  or by filing  the same under  Section 12.    To be the representative the person must represent fully all the interest, title and property of his principle and should further be capable to give due discharge to the Collector by accepting compensation offered to him.\n<\/p>\n
  15. That appears to be the proper import of the word \"representative\" used  in sub-section  (2)  of Section 12.    The difference in phraseology noted  above in Section 9(3)  and Section  12(2) can also be treated  as one of significance.   When it was a matter  for serving the notice, the  Legislature used the phraseology that such service can be validly made on \"agent\" who are authorised to receive service on behalf of the principal.    For  the purpose of sub-section (2) of Section 12 however, the word agent has not been advisedly used and in its place the word \"representatives\"  has been indicative.    \n \n\n That shows that  a mere agent is not with in the statutory contemplation.   Either the  person interested who is entitled to receive the compensation and thus give  good discharge under the provisions of this Act is personally present or he is represented by a person who can do all these acts for him.    This is more so for the reason that such person's  act and knowledge of offer has reaching consequences.   An effective  or constructive knowledge of the award  gives a right  to accept  the same but it also enables such party  to refuses and seek  the remedy of reference.   Time begins to run once effective notice under Section 12(2)  is given or the award is made known to the person affected.    If  such a meaning is not give it is likely to erode further valuable rights and even frustrate the remedy.    Questions of hardship in seeking to serve notice  do not impel me to hold otherwise. \n \n\n<\/pre>\n
  16.   That being the position under Section 12(2), for more than one reason the terms of clause (a) of the proviso to sub-section (2)  of Section 18 will have to be read as indicating the persons or their representative  who are  competent to give discharge  by accepting compensation.   If  either the person whose right, title  and  interest in property is under acquisition  is present personally when the award was  made or the person who could old the  same for him was present when that  award was made, then only the starting  point  for limitation  indicated by clause (a)  of the proviso  is completely answered  and reached.   Any other presence would  not enable time to run under that clause  for a valuable remedy is provided to the  aggrieved applicant to approach the Court by seeking a reference.   As the proviso  governs the right to remedy and limitation therefore considerations based on teachnicatives should, in  my view,  be technicalities should , in my view, be scrupulously avoided and interpretation that subserves the justice should  be preferred.\n<\/p>\n
  17.  The injunction of sub-section (2)  of Section 12 is to  the Collector to give immediate notice  of the award if the  person  interested was not  present personally or was not properly represented at the time of making the award.   If he  gives such notice, then  the six weeks’ time  begins to run from the date  of receipt of the notice.    It is contemplated by  clause (a) that if the person  interested was present or was properly represented  by another  person when the award was  made, he must be deemed  to give the  notice of the award itself and as such the full knowledge of the award.   However, if  he is not present, nor he is represented  by a competent person in the view I have taken being a person competent to give good discharge by accepting compensation then the Collector has further at that  point  to issue notice  as required by sub-section (2)  of Section  12 and the period  of limitation would start from the receipt  of such notice and clause (b)  shoudl always apply  if it is shown that award has been  either  directly or constructively  brought to the  knowledge of the person or persons interned on the person  interested for the  purpose of computing the period  of  limitation would,  in all cases, depend on the facts available in that regard.    But once  the date  of knowledge can be ascertained, the law  prescribes the optimum time  of six  months for making an application under  Section 18(1) from  that date.\n<\/p>\n
  18. It will  not be out of place at this stage to make a reference to judicial this stage to make  a reference  to judicial pronouncement  upon the provisions of clause (b)  in the proviso  itself and the principles applied  while  construing the  same.   In Raja Harish Chandra v.  Deputy Land Acquisition Officer,<\/a> , the Supreme Court had the occasion to observe:-\n<\/p>\n
  “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, the  making of the order  must mean either actual or constructive communication of the said order to the party concerned.   So the knowledge of the  party affected by the award made by the Collector under Section 12 of the Land Acquisition Act, 1894, either  actual or  constructive is an essential requirement   of fairplay and natural justice.     Therefore,  the expression “the  date of the award”  used in proviso (b)  to Section 18(2)  of the  Act must mean  the date  when the award  is either  communicated to the party or is known by him either  actually or constructively ………………”\n<\/p>\n
  In that case, it may  be observed, no notice of the award under  Section 12(2) was served and the case was that though  the  award  was filed on March 25,  was  served and the case was taht though the award was filed on March 25,  1951, the applicant came to know of it on January  13, 1953, and he filed an application on February 24, 1953 under Section 18.    The  Court  found that the application  wax entertainable and was not barred by limitation.   It may be observed that the Court refused to give literal or mechanical construction to the phrase “the  date of the  award” occurring in the provision of Section 18 on the ground of consideration k of fairplay and justice.    Further in State of Punjab v. Qaisar Jehan Begum  Court<\/a>  applied the limitation  of six  months from the date of the knowledge of the contents of the award and found the matter  to be governed by clause (b)  of the proviso  to Section 18(2).    The Court said.\n<\/p>\n
  “……………… Where  the award was never  communicated to the party the question is when did the party know the award either actually or constructively   Knowledge  of the award does not mean a mere   knowledge of the fact that an award has  been made.    The knowledge must related to  the essential contents of the  award.    These  contents may be known either actually or  constructively.      If the award is communicated to a party under Section 12(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 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 knowledge of the award must mean knowledge of the essential contents  of the award”.\n<\/p>\n
  Such  a knowledge, the Court observed, could not be presumed or inference only because the petition for interim payment  was filed by the party  before the Collector.    After  considering  the facts available  in that case, the Court found that the matter was governed by clause (b)  of the  proviso to Section 16  of the Act. \n \n \n\n  19.  The provisions of Section 12  of the Act were considered by the Supreme Court in State of U. P. v. Abdul Karim, (1969) 2 SCWR 579 and it was observed taht the provision for giving a notice under Section 12(2)  was meant to  give  intimation to the person who may be  affected by the award  and further that  the provisions as to  limitation  contained in Section  18(2)  have to be read in the light of Section 12(2). \n \n\n  20. Applying these  tenants to the present controversy, in the view I have taken it is clear that no notice as required  by Section 12(2)  was served either on the  present  appellant or on any person  on  their behalf having authority to receive the  notice.    Only  because a servant Mr. Bhoyar  was present and he purported to have  signed the  Roznama, it  does  not follow  that this appellant which is a public trust  has been  made aware of the award and  its contents so that provisions of Section 18(proviso) (a)  should  be attracted.    Actually, in the  present case, there  is evidence to show coming forth from the said Mr. Bhoyar that he was  not holding any power-of-attorney nor he was authorised agent of the said Mandal.    He was one  of the servants working in the Gram Seva Mandal and used to appear in the office of the Land Acquisition Officer. \n \n\n  21.   This position  is not disputed on behalf  of the State.    No doubt, he has signed the order-sheet before the Collector on 25-2-63.   There is no  evidence  to  hold  that he was competent  to give  good discharge by accepting the compensation  or, had it been a sale of property, by accepting the price money.    There appears  no  material to hold that Mr. Bhoyar was  duly constituted representative in this  regard  who would  act on behalf  of the  Mandal.    That being the position , clause (a) of sub-section (2)  of Section 18  was  not at all  attracted, for it is admitted that  the person interested, i.e.  the Mandal or  any trustee on its behalf, was not present.    Mr. Bhoyar had  not capacity to pass  the property and as  such it cannot  be held  that  the requirements  of clause (a)  have  been  satisfied.    It  is clear  that no notice  under Section  12(2) was given  by the  Collector either to the Mandal or any one authorised  on its behalf  to receive the  notice.    That  being the position, the  case on limitation would  be governed by the  latter part  of clause (b) and six months  limitation would  be available from the date of knowledge of the Collector's  award. \n \n\n  22. With this  conclusion, the award itself  was made  on February 25, 1963, and the application for making a reference  was made  on April 20,  1963 .    There being six months' limitation, even assuming  that the knowledge passed on to the Mandal on the very day the award was made, the application was made well within time. \n \n\n  23.  I have  answered these issues on the  assumption that when  the matter  comes  to the Civil Court  under  reference, the Civil Court  is competent  to consider  the question of limitation.    That  is also  the view of this Court reported as back  as in (1906) ILR 30 Bom  275:    In re Land Acquisition Act.    That  was the debated before me on behalf  of the State. \n \n\n<\/pre>\n
  24. That takes  me to the quantum of compensation  and there the findings are in favour  of the present  appellant.   As to the  price of the land, the learned Judge  upon the evidence of Shamrao examined  at Exh. 28 and Mahadeo at Exh. 30 found  that the land in worth Rs.1,000 per acre.   No  exception can be taken to that finding.   As to the well the learned Judge has found on the evidence of Jangloo Exh. 32,  wherein he had stated that it was worth  Rs.2,000 and, as against this, there was evidence coming from Maroti, who had assessed the value of well at Rs.3,000.   The learned Judge was minded to accept the value  of the well  at Rs.3,000.\n<\/p>\n
  25. Now the learned counsel appearing for the State submits that in respect of the well this is not the correct appreciation of evidence.\n<\/p>\n
  26. Between the parties no doubt the evidence is too scanty.   Ganpati (A. W.  1) states that the value of the well, according to him, was Rs. 3,000.     It  is a  pucca well-built well in the land itself l and is constructed in stones.   The inside  diameter of the well according to him, is  16′ to 18′.    He also speaks of the offer made  by Marotrao in the sum of Rs.  7,000 for the  land about two years back.    Marotrao (A. W. 2) similarly states that the well was wroth Rs. 3,000.   He  had offered to  purchase the land two years ago at  Rs. 1,200 or 1,300 per acre.   His  statement  about his estimate has not been challenged.   Sadasheo (A. W. 4) is a clerk in  Adarsha Vidyalaya and states  about an agreement to purchase filed for Rs. 7,000 and odd.    Shamrao (N. A. W. 1) has purchased a field in 1959 having acreage 3.29 acres for Rs.  1,5000 which was under his  own cultivation.    He admits that the present  land under acquisition is superior to  his filed.   He states that the well is 6 feet in diameter and is constructed in stones.   N. A. W. 2  Mahadeo had purchased land in 1959 for Rs. 700, area 1.54 acres.    He admits that the  field in dispute may fetch  a price at Rs. 1,000 per acre.    He admits  that there  is a well in the field and had  seen process of irrigation.   he admits that  there is a price rise in the agricultural  lands N. A. W. 3 Jangloo had purchased  5  acres of land in 1957 for Rs. 3,000.   He  had given an offer for the purchase of the  field in acquisition in the sum of Rs. 8,000 and that was also before  21\/2  years ago.    He also accepts that there is considerable  rise in the  market  price  since 1957.   He  admits that  when  he had  made an offer, he had  calculated the cost  of the well  at Rs. 2,000, and  Rs.  8,000 included the price of the well.\n<\/p>\n
  27. This  evidence clearly shows that the  well is a well-built well having about 6 feet diameter and useful for irrigation.   Even  the evidence led by the State  shows  that prior  to two years, the intending purchaser had  valued  it at Rs. 2,000.    There is thus no reason to disturb  the  finding made  by the learned Civil  Judge that the  compensation for the well should  have  been fixed  at Rs.  3,000.    That  appears to be quite reasonabel. \n \n\n  28. In the result, the present appeal will have to be allowed and the order  made of dismissal of c reference will have  to be set aside. \n \n\n  29. The appellant would  be entitled to get the compensation on account  of the well in the sum of Rs. 3,000.   He  has been  awarded Rs. 500.   Thus his claim  to the extent of Rs. 2,500 will stand decreed on account of the compensation for  the well.   Similarly, for  the land, the appellant would be entitled  to get at the  rate of Rs. 1,000 per acre, i.e. total amount  of Rs. 3,000.   He  has been  given Rs. 2,850.    So he will also  be entitled  to proportionate solarium at fifteen per cent. on  the sum which works out to  Rs. 397.50.   The total amount thus worked out  which  the appellants would be entitled to receive would  be Rs. 3,047.50.   A decree in that sum shall follow.    Though the appeal  in this term is thus allowed, there would be no orders as to costs. \n \n\n          30. Appeal allowed.  \n \n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Gram Seva Mandal, Wardha vs The Collector, Wardha And Ors. on 18 March, 1974 Equivalent citations: AIR 1975 Bom 73 Bench: Masodkar JUDGMENT 1. The appellant is a public trust who owned field Survey No. 70\/3. area 4.92 acres of mouza Anji (Mothi). Under the provisions of the land Acquisition Act, 1894, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-79722","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGram Seva Mandal, Wardha vs The Collector, Wardha And Ors. on 18 March, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gram-seva-mandal-wardha-vs-the-collector-wardha-and-ors-on-18-march-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gram Seva Mandal, Wardha vs The Collector, Wardha And Ors. on 18 March, 1974 - 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