Court No. - 10
Case :- MATTERS UNDER ARTICLE 227 No. - 301 of 2006
Petitioner :- Ram Khisore And Others
Respondent :- State of U.P. and Others
Counsel for Petitioner :- Anurag Khanna,Himadari Batra,Pramod Kumar Pandey
Counsel for Respondent :- C.S.C.,A.K.Mishra,Anoop Trivedi,Kartikeya Saran,Mahendra Pratap,Mahesh Narain Singh
Hon'ble Prakash Padia,J.
1. Heard Sri Anurag Khanna, learned Senior Counsel assisted by Ms. Himadari Batra, learned counsel for the petitioners, learned Standing Counsel for respondent Nos.1, 2 & 4 and Sri M.N. Singh, learned counsel for respondent No.4.
2. The petitioners have preferred the present petition under Article 227 of the Constitution of India with the prayer to set aside the order dated 25.11.2006 passed in Land Acquisition Reference No.117 of 2001 (Ram Kishore Vs. State of U.P.), copy of which is appended as Annexure No.6 to the petition). A further prayer has also been made to direct the respondent No.3 namely Additional District Judge, Court No.10, Ghaziabad to decide the reference of the petitioners forthwith without any further delay.
3. Facts in brief as contained in the petition are that the petitioners are the Bhumidhar of land bearing Khata No.481, Khasra Nos.1365, 2147, 2148, 2149, 2150, 2151, 2152, 2153, 2154, 2155, 2156, 2157, 2158, 2159, 2160, 2398, and 2147/2635. The aforesaid land were acquired by the State Government by issuing notifications under Sections 4 and 6 of the Land Acquisition Act (hereinafter referred to as "the Act") issued on 16.8.1988 and 22.2.1989 respectively for the purpose of development through Ghaziabad Development Authority (in short "G.D.A.). The Special Land Acquisition Officer declared the award on 30.7.1991 by which the compensation was awarded at the rate of Rs.90/- per sq. yard and solatium at the rate of 30% and other interest. Being not satisfied with the award, the petitioners moved an application on 09.09.1991 under Section 18 of the Act for making reference for determination of the compensation.The aforesaid application was moved within time before the Special Land Acquisition Officer. The Additional District Magistrate (Land Acquisition) sent reference to the Court of District Judge, Ghaziabad vide its letter dated 23.4.2001 along with copy of statement under Section 19. Thereafter the aforesaid case was registered Land Acquisition Reference No.117 of 2001. An application was filed by respondent No.4 namely G.D.A. for deciding the issue relating to the limitation of reference of the petitioners. The petitioners submitted their reply to the aforesaid application.Thereafter on 25.11.2006, the respondent No.3 decided the issue of limitation in favour of the respondent No.4 by passing the impugned judgement and it is held that the reference is barred by the limitation. Hence, the order impugned dated 25.11.2006 is under challenged in the present petition.
4. It is argued by counsel for the petitioners that the court below is failed to correctly apply the provisions of Land Acquisition Act. It is further argued that as per the provisions of Section 18 of the Land Acquisition Act, the reference should be made within six weeks from the date of declaration of award and in the present case, the application was proceeded within time. It is argued that insofar as the present case is concerned, the award was made on 30.07.1991 and the application under Section 18 of the Act was made on 09.09.2011, i.e., within a period of six weeks of the declaration of the award. It is argued that while passing the order impugned/deciding the reference, the court below had made a reference of the decision of the Karnataka High Court passed in the case of State of Karnataka Vs. Laxman reported in (2006) 1 LACC 13. It is argued that in the State of Karnataka certain amendments made in Section 18 of the Act for making reference to the court. However, there is no such amendment made in the State of U.P. It is further argued that the court below is totally misguided by the aforesaid judgement and applied the same in the present facts and circumstances of the case.Section 18 of the Act is quoted below:-
"18. Reference to Court .(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken: Provided that every such application shall be made,
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collectors award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collectors award, whichever period shall first expire.
State Amendments:-
State of Karnataka Amendment:-
In Section 18 --
(1) after the word "award" where it occurs fo the first time, insert the words "or amendment thereof" and after the word, award', wherever it occurs, thereafter, insert the word "or the amendment".
92) in Sub-section (2), for the proviso substituted the following proviso, namely --
-- Provided that every such application shall be made within ninety days from the date of service of the notice from the Deputy Commissioner under sub-section (2) of Section 12";
(3) after sub-section (2), add the following sub-section, namely --
"(3) (a) The Deputy Commissioner shall, within ninety days from the date of receipt of an application under sub-section (1), make a reference to the Court;
(b) if the If the Deputy Commissioner does not make a reference to the Court within a period of ninety days from the date of receipt of the application, the applicant may apply to the Court to direct the Deputy Commissioner to make the reference, and the court may direct the Deputy Commissioner to make the reference within such time as the Court may fix."
(Vide Mysore Act 17 of 1961, sec 20 (w.e.f. 24-8-1961) (4) for the word "Collector", wherever it occurs, substitute the words "Deputy Commissioner."
State Amendment of Uttar Pradesh-
(1) Nagar Mahapalika - Same as that of Jubbulpore (City) under Madhya Pradesh.
[ Vide Uttar Pradesh Act II of 1959, Section 376 and Sch. II, para.6] "(3) Without prejudice to the provisions of sub-section (1) the Land Reform Commissioner may, where he considers the amount of compensatino allowed by the award under section 11 to be excessive, required the Collector that the matter be referred by him to the Court for determination of the amount of compensation"
Explanation - In any case of land under Chapter VII the requisition under this sub-section may be made by the Land Reforms Commissioner at the request of the Company on its undertaking to pay all the cost consequent upon such requisition.
(4) The requisition shall state the ground on which objection to the award is taken and shall be made within six months from the date of the award.
[Vide Uttar Pradesh Act 22 of 1954 and Sch. para 7 (w.e.f. 19-11-
1954).
5. On 21.12.2017, following order has been passed this Court:-
"The contention of the petitioner is that after the award was passed on 30.7.1991, the application for referring the matter to the Civil Court under Section 18 of the Land Acquisition Act was filed on 9.9.1991. The Collector referred the matter according to the petitioner on 20.4.2001.
Learned Standing Counsel who appears for the respondents no.1 and 2 may explain as to why the matter was referred on 20.4.2001 when the application was preferred by the petitioner on 9.9.1991. Learned counsel for the respondent no. 4 may also file his counter affidavit, if he wishes to deny this factual aspect of the case.
This exercise may be completed within a period of two weeks. List on 16.1.2018."
6. Pursuant to the same, another affidavit has been filed on 12.12.2018. In paragraph 6 of the aforesaid affidavit it is stated that due to inadvertent mistake after passing the award dated 30.07.1991, the application dated 09.09.1991 for referring the matter to the Civil Court under Section 18 of the Act could not be made earlier and the same was referred for the first time on 20.04.2001 for which the respondent no.2 regrets and assured this Court that the same will not happen again in future.
"6. That it is respectfully submitted that due to inadvertence after passing the award dated 30.07.1991, the application dated 09.09.1991 for referring the matter to the Civil Court under Section 18 of the Land Acquisition Act could not be made earlier which was referred on 20.04.2001 for which the Respondent No.2 regrets and assures this Hon'ble Court that the same will not happen again in future."
7. Heard learned counsel for the parties and perused the record as well as the order dated 25.11.2006 passed by the respondent No.3 . It appears from perusal of the record that the award was made by the Special Land Acquisition Officer on 30.07.1991 and thereafter the reference was made on 28.4.2001, i.e. after about ten years. There is no denial whatsoever in the entire counter affidavit that the application was not filed for reference by the petitioners within time prescribed under the Act itself. It further appears from perusal of the record that only due to the reason that the papers were forwarded and the reference was made after about 10 years, the claim set up by the petitioners was rejected by the Court below and the impugned order passed taking into consideration of the judgement passed by the Karnataka High Court in State of Karnataka (supra). It is clear from perusal of the state amendment that the aforesaid judgment is not applied in the present case.
8. In view of the same, the Court is of the opinion that the order dated 25.11.2006 passed by the respondent no.3 is liable to be set aside and the same is hereby set aside.
9. The respondent No.3/appropriate Court is directed to pass appropriate orders in accordance with law within a period of four months from the date of production of a self attested computer generated copy of this order downloaded from the official website of High Court Allahabad.
Order Date :- 19.2.2021 saqlain