@JUDGMENTTAG-ORDER
L. Narasimha Reddy, J.@mdashThe petitioners were the owners of mulgies constructed over an area of 196 square yards in premises bearing Nos. 8-4-394 and 395, Erragadda, Hyderabad. Respondents issued a notice dated 25.6.2005 requiring the petitioners to surrender a substantial extent of their property for widening of the road. The petitioners filed WP No. 17704 of 2006 challenging the same. It was alleged that the procedure prescribed under the Land Acquisition Act (for short ''the Act'') was not followed. The writ petition was disposed of on 24.8.2006 directing that the respondents shall follow the procedure prescribed by law, in case they intend to acquire the property of the petitioners. A notification u/s 4(1) of the Act proposing to acquire an extent of about 150 square yards of the said property was published on 5.6.2008. Enquiry u/s 5-A of the Act was dispensed with and declaration u/s 6 of the Act was published on 6.6.2008. Challenging these proceedings, the petitioners filed WP No. 12371 of 2008. That was disposed of on 19.6.2008 leaving it open to the petitioners to submit a representation. Accordingly, the petitioners submitted a representation. It is stated that about one year thereafter, the 2nd respondent informed the petitioners that award was passed and that the petitioners can collect the cheques. The petitioners collected the cheques on 11.5.2009 and on the same date, they submitted a representation u/s 18 of the Act to refer the matter to civil Court. The petitioners plead that notice u/s 12(2) of the Act was not served upon them and that the information as to passing of award was given to them orally. Their grievance is that though more than two years have elapsed, the 2nd respondent did not refer the matter to civil Court, u/s 18 of the Act.
2. Counter-affidavit is filed on behalf of the 2nd respondent. He has furnished the particulars of publication of draft notification and draft declaration through various modes. According to him, the award was passed on 7.2.2009 and thereafter, notice u/s 12(2) of the Act was issued on 12.2.2009. It is also stated that notices were served upon the petitioners on 18.2.2009. The petitioners are said to have received the compensation on 11.5.2009 and that on the same day, the application was filed u/s 18 of the Act seeking reference to civil Court.
3. It is stated that the 2nd respondent referred the matter to civil Court on 7.7.2009, but, the Court of Chief Judge, City Civil Court, Hyderabad returned the reference through letter dated 17.7.2009 with a direction to furnish four sets of all documents and that the same was complied with on 19.12.2009. The Court is said to have returned the reference on 27.1.2010 by taking the view that reference was sought after expiry of the period stipulated u/s 18(2)(b) of the Act i.e., 2 months time from the date of service of notice u/s 12(2) of the Act. Having stated these facts, the 2nd respondent contends that the application filed by the petitioners u/s 18 of the Act is beyond two months after expiry of the time stipulated under that provision. He contends that the time is to be reckoned from the date of service of notice u/s 12(2) of the Act.
4. Sri Srinivasa Rao Velivela, learned Counsel for the petitioners submits that the 2nd respondent did not intimate any date of making award or notice u/s 12 of the Act was served upon them. He submits that the petitioners are informed by the officials of the Town Planning Department on 8.5.2009, and that within three days thereafter, they wanted to collect the cheques on 11.5.2009. He submits that the application u/s 18 of the Act was submitted on the same day and it is very much within the period of limitation. According to the learned Counsel, the date on which the compensation was paid to the owners of the land, assumes significance, if the award was not made in their presence.
5. Learned Government Pleader for Land Acquisition on the other hand submits that the Act and the Rules made under the Act do not contemplate service of notice, before making of award and the very objective of Section 12(2) of the Act is to intimate the persons of the factum of making of the award. He further submits that the case of the petitioners squarely falls u/s 18(2)(b) of the Act and since the application was submitted beyond the time stipulated therein, the reference becomes untenable.
6. The only controversy in this case is as to whether the application submitted by the petitioners, seeking reference u/s 18 of the Act was made within the stipulated time. The undisputed facts are that the award was made on 7.2.2009, and the petitioners received compensation on 11.5.2009 under protest, and that application u/s 18 of the Act was filed on the same day. The 2nd respondent asserts that the petitioners were not present when the award was made and accordingly, a notice, dated 12.2.2009 u/s 12(2) of the Act was served on the petitioners on 18.2.2009. Even according to the respondents, notice was received by a person other than the petitioners. Apart from denying the plea as to service of notice, the petitioners pleaded that an official from the Town Planning Department has informed them on 8.5.2009 about making of the award and that they have received the compensation on 11.5.2009. This plea was not at all adverted to in the counter-affidavit, much less it was denied.
7. To understand the consequences that flow from such a fluid situation, it becomes necessary to have a glance of the Scheme under the Act relating to passing of awards.
8. Once the declaration u/s 6 of the Act is published, the intention, if not determination of the Government, to proceed with the acquisition, becomes clear. Sub-section (1) of Section 9 of the Act requires the Collector to issue public notice stating that the Government intends to take possession of the land and that persons interested in the land can submit their claims for compensation. Sub-section (3) thereof requires the Land Acquisition Officer to serve notice to the same effect on the occupier of the land and on persons, known or believed to be interested in the land. This would enable the owners or persons having interest in the land, to submit claims, which may include not only assertion of their title but also about the quantum of compensation, which they expect for the land. For all practical purposes, Section 10 of the Act is continuation of Section 9 of the Act. It only emphasizes upon the indication of the time and place to deliver their claims and specification of the nature of interest. Obviously for this reason, both the provisions are mentioned in the same notice. The indication of date and place is referable to Section 10 and the remaining portion, to Section 9 of the Act.
9. The date mentioned in the notice referable to Section 10 of the Act has its own significance. Reference is made to it at the threshold of Section 11 of the Act, which deals with the making of award The provision reads as under:
Enquiry and award by Collector:--(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given u/s 9 to the measurements, made u/s 8, and into the value of the land [at the date of the publication of the notification u/s 4, subsection (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand--
(remaining part of the Section is omitted as not necessary for this case)
A perusal of this indicates that the Collector i.e., Land Acquisition Officer shall make the award on the date indicted in the notice under Sections 9 and 10 of the Act or any other date to which the enquiry is adjourned. One of the important objectives in issuing notice under these provisions is to ensure the presence of the parties, when the award is made. To understand the significance of this, it is necessary to have an idea about Section 18 of the Act.
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 Collector''s award;
(b) in other cases, within two months from the date or service of the notice from the Collector u/s 12 subsection (2) (in its application to the State of A.P.)
From this, it is evident that the Legislature intended that the award is made, in the presence of the owner of the land. While sub-section (2)(a) of Section 18 of the Act signifies the rule, clause (b) thereof carves out an exception. There can be proper compliance with Section 11 of the Act, if only the persons, who are issued or entitled to receive notice under Sections 9 and 10 of the Act, are kept informed of the date, on which the award is made, beforehand. Any lapse in this regard cannot defeat the right of a citizen to seek reference u/s 18 of the Act.
10. Further, the occasion to issue notice u/s 12(2) of the Act would arise, only when the concerned person was not present, when the award was passed. The objective underlying it is to inform the owner of the land, about the factum of passing the award, and to enable him to receive the compensation, with or without protest. Whether one goes by the purposes of the notice under Sections 9 and 10, or 12(2) of the Act, it would be only to enable the concerned individual to receive the compensation. The protest, if any, can be recorded only when the amount is received. If compensation is not received at all, the occasion to record protest does not arise, much les the State can be said to have suffered any detriment.
11. The rigor, which Section 12(2) of the Act used to generate, disqualifying the owner of a land, to seek reference after expiry of the time stipulated under that provision; has virtually been moderated with the amendment of the Act, by introducing Section 28-A. If a person, who received the compensation without any protest, did not even entertain the idea of seeking reference for years together; is conferred with the right to receive the benefit of reference made at the instance of another person; delay of few days in receiving the compensation itself, should not come in the way of a person, to seek reference, more so, if it is sought within the time stipulated, u/s 18(2)(a) or (b), reckoned from the date of receipt of the compensation. For the foregoing reasons, the writ petition is allowed, and the impugned order is set aside. The Land Acquisition Officer is directed to refer the matter, pertaining to the enhancement of compensation, covered by award, dated 7.2.2009, to the civil Court.
