Raja Mohammad Yousuf & Ors. v. Collector Land Acquisition

petition and the writ petition on the face of it, is time barred. Accordingly, the learned Single Judge declined to invoke the writ jurisdiction under Article 226 of the Constitution of India.

Being aggrieved by the aforesaid dismissal of the writ petition on the ground that it is time barred, the present appeal has been preferred. 3

The appellants submit that it is not correct that the application for reference to the Court is time barred for the reason that the appellants at the time of accepting the amount on 2nd December 1999 had made it very clear that they were accepting the amount under protest and it was also clearly mentioned in the application that the appellants would fight for additional compensation which should be released to them as agreed by the respondent before taking the cheque.

According to the appellants, the aforesaid acceptance of the compensation amount under protest is also clearly mentioned in the receipt that they would fight for additional compensation which is to be released in their favour later on as agreed by the respondent and such a request would amount to request for making reference and, as such, it can be said that the appellants had applied to the Collector for making a reference as contemplated under Section 18 of the Land Acquisition Act and as such, the said finding of the learned Single Judge as referred to above cannot be said to be based on record and it cannot be said that the request for making reference to the Collector is time barred. It is a different matter that the Collector did not make any reference, and the delay on the part of the Collector to make a reference may not be attributable to the appellants.

Learned counsel for the appellants has also submitted that it is a matter of record that the said award was passed without giving notice to the appellants at the stage of issuing notice under Section 4 (1), or Section 9 or Section 12 (2) of the Act. Thus, the appellants were not involved or notified at any stage of the acquisition proceedings held by the Collector and in fact when the award was made on 1st June 1999, the same was not made in presence of the appellants nor any notice was issued to the appellants after making the award and when the appellants came to know per chance on 2nd December 1999 of the award, they accepted the amount under protest with the condition that they would accept the remaining enhanced amount as assured by the respondent. It has been submitted that under these circumstances, the judgment of the learned Single Judge would require to be set-aside and this Court may direct the respondent-Collector to make a 4 reference to the competent Court so that the appellants can get the enhanced amount of compensation in respect of the land acquired by the authorities.

It has been further submitted by the learned counsel for the appellants that the learned Single Judge had erred in holding that there was a delay in making application for reference though, in fact, there was no delay on part of the appellants to apply to the respondent to make a reference. In support of his contentions, he has placed reliance on the judgments of the Supreme Court reported in H.M. Kelogirao&Ors. vs. Govt. of A.P. &Ors: (1997) 7 SCC 722 and J. Kumaradasan Nair &Anr. vs. Iric Sohan &Ors. : (2009) 12 SCC 175.

Learned counsel for the appellants submits that even otherwise also, the writ petition could not have been dismissed by the learned Single Judge for delay and laches as the same was already admitted and the matter ought to have been heard on merits.

Per contra, Mr. Mohsin Qadiri, learned Sr. AAG appearing for the respondent submits that the basis for the appellants to claim that an application was made under Section 18 of the Act is to be found in the acknowledgment receipt of the amount under protest, is wholly untenable as it does not fulfill the requirements of Section 18(1) of the Act which inter alia 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 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

. However, in the said so-called protest note, nothing has been mentioned as to the nature of objection to the award. Further Sub-Section 2 of Section 18 makes it very clear that the application shall state the grounds on which the objection to the award is taken. In the present case, nothing is discernible from the protest note dated 2nd December 1999 of the appellants that any such ground has been taken as regards the nature of objections 5 against the award. As such, it cannot be said that the said protest note dated 2nd December 1999 can be construed to be an application for making a reference as contemplated under Section 18 of the Act.

Further, the learned Single Judge has also dealt with this issue of the requirements of the statute for making a reference under Section 18 as mentioned in para 7 to 16 of the impugned judgment. In fact, the learned Single Judge has elaborately dealt with the requirement of law as contemplated under Section 18 of the Act as well as for re-determination as provided under Section 28A of the Act, under which the applicant was also required to make a representation. But, in the present case, the appellants neither made any application as contemplated under Section 18 of the said Act nor for re-determination as contemplated under Section 28A of the Act which has been dealt with by the learned Single Judge in lucid terms.

It has been submitted by learned counsel for the respondent that though some other landowners may have been given enhanced compensation as has been pointed out before the Court that a higher compensation of Rs. 4.00 lacs per Kanal as against the earlier rate of Rs.

1.40 lacs per Kanal was awarded in a similar case, and this Court upheld the enhancement of compensation vide order dated 24th September 2013 passed in CIA Nos. 10, 11, 12 and 13 of 2010, since the appellants did not make any application for seeking similar benefit which had been given to other land owners, the claim now belatedly made ought not to be entertained. Thus, having not made any application either under Section 18 or Section 28A of the Act, there is no scope for making any reference to the Court or for re-determination.

It has been further submitted that, even assuming that the appellants had made an application/representation for reference on 30th November 2013, they approached this Court very belatedly in the year 2014. It would have been different if the appellants had approached the writ court earlier from the date of passing of the award or from the date of receipt of amount under protest. Thus, on both counts, there has been a delay in approaching this Court for making a reference. Under these circumstances, it cannot be 6 said that the judgment of the learned Single Judge warrants interference by this Court.

Learned counsel for the appellants in response submitted that there is no such provision under Section 28-A referred to in the impugned judgment under the J&K Land Acquisition Act, 1990 though it may be incorporated in the Land Acquisition Act, 1996 which was not applicable at the relevant time. Learned counsel for the appellants submits that Section 28-A was not part of the relevant law i.e. J&K Land Acquisition Act and, as such, the reference of the aforesaid Section is without any basis and not relevant for consideration of the appeal.

From the above rival contentions raised before this Court, it appears that the case of the appellants for seeking reference is founded on the document dated 09.12.1999 which shows the acceptance of the amount under protest. Accordingly, the same is reproduced as under:- ―To Sir, The Collector, Land Acquisition Cell, Lakes and Waterways Dev. Authority, Sgr. I am As I have already indicated in your QabzulWasool and other attached registers, compensation, under protest due to low compensation dues as compared to prevailing market rates. Now I am taking the same vide cheque No. 2928331 dated 2/12/99, we will fight for additional compensation and same should be released in our favour later on, as agreed by you on 2/12/99 before taking the cheque. taking Yours faithfully, Gh. Mehdi on behalf of Mohd Yousuf and also our mother Dated 2/12/99‖ 7

We have to now examine whether the said receipt amounts to an application for making reference under Section 18 of the Act, which has been contended by the respondent as not to be.

For ready reference Section 18 of the J&K State Land Acquisition Act, 1990 reads as under: ―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 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 Collector’s award, whichever period shall first expire.‖

Section 18 of the Act, therefore, can be split into two parts; the first part deals with the nature of the objection for which reference is required to be made to the Court; and the second part deals with the limitation period within which such an objection is to be made.

Coming to the first part of Section 18, it can be seen that reference can be made to the Court relating to objections regarding: (i) measurement of the land; (ii) amount of compensation; 8 (iii) the person to whom it is payable; and (iv) apportionment of the compensation among the persons interested.

As regards the second condition, the application for reference has to be made within six weeks if the person was present before the Collector when the award was made by the Collector or within six months from the date of the award of the Collector.

We will now examine whether both the conditions are satisfied in the present case.

In the present case, the objection of the claimants appears to be with regard to quantum of compensation which they considered to be on the lower side as demonstrated in the protest note dated 09.12.1999. They have not raised any objection regarding the measurement of the land or the person to whom it is payable or apportionment of the compensation. Therefore, it can be said that the objection is merely about the quantum of compensation.

However, the question is whether such a receipt can be considered to be an application of the appellants to the Collector to make a reference to the Court. It is true that there is no specific averment made in the said document for making a reference to the Court. But it is clear from the language used that they were expecting the Collector to do the needful for enhancement of the compensation, which can be done only if the Collector makes a reference to the Court, as otherwise, the Collector on his own cannot enhance the quantum of the compensation. The document also mentions for release of additional compensation later on as agreed by the Collector. The content of the document or its genuineness has not been denied by the official respondents. Thus, it can be inferred that the Collector had assured the appellants that additional compensation can be released to them, which can happen only when a reference is made to the Court and Court passes appropriate order in that regard. 9 In view of the above, we can say that the aforesaid document dated

02.12.1999 can also be treated as a request to the Collector for enhancement of the compensation, even if the document is not worded specifically in that manner. In our opinion, if the form is not emphasized, but the content and the intent, it is clearly discernible that the applicant desired the Collector to take necessary steps so that they can get the enhanced compensation, which can happen only when the reference is made to the Court by the Collector.

Having held that the condition as contemplated in the first part of Section 18 is fulfilled for enhancement of the quantum of compensation amount, we will examine whether the second part of Section 18 is also fulfilled.

Section 18 (2) provides 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 section 12, sub-section (2), or c) within six months from the date of the Collector’s award, whichever period shall first expire.

It is the plea of the appellants that no notice was given to them when notices were issued under Section 4(1), or Section 9 or Section 12(2) of the Act, which plea had not been specifically denied by the respondents, though the respondents have denied in general terms the averments made by the appellants in the writ petition.

If the appellants did not have any knowledge of the passing of the award as claimed by them, but came to know of the passing of the award only on 02.12.1999, and if the document dated 02.12.1999 is treated to be an application to the Collector seeking reference to the Court under Section 18 of the Act, the said application cannot be said to be delayed. The award was made on 01.06.1999 and as provided under Proviso (c) to Section 12(2) of the Act, the application seeking reference is to be submitted within six months, i.e., before 01.12.1999. But the said document is dated 02.12.1999. 10 Since the appellants had stated that they came to know of the award only on

02.12.1999, limitation would start running from the date of knowledge in terms of Section 17(1)(c) of the Limitation Act, 1963.

Yet, even if the said document dated 02.12.l999 is treated to be an application for making a reference under Section 18 of the Act, the appellants approached the writ Court only in 2014 by filing a petition being OWP No. 7 of 2014, which appears to be belated.

The Ld. Single Judge was of the view that approaching the Court at such a belated stage is barred by limitation.

In this regard one may refer to a few decisions of the Hon’ble Supreme Court where the Hon’ble Supreme Court condoned prolonged delays in seeking enhancement of compensation considering the fact that similarly situated persons had been granted enhanced compensation. i) In Ram Chander v. Union of India, (2020) 15 SCC 491, the Hon’ble Supreme Court condoned the delay of 6593 days, in filing the appeal seeking enhanced compensation in the following words. “2. By the impugned order (Ram Chander v. Union of India, 2015 SCC OnLine Del 14537) the High Court has refused to condone the inordinate delay of 6593 days in filing the appeal seeking enhanced compensation. The High Court while doing so, however, took note of the fact that in a connected matter i.e. RFA No. 718 of 1990 Rameshwar Solanki v. Union of India (1995 SCC OnLine Del 117 : AIR 1995 Del 358) compensation was enhanced. Yet as according to the High Court the delay was inordinate and had not been explained the appeal was not entertained by condoning the delay.

3. If a similarly situated landowner i.e. in Rameshwar Solanki v. Union of India (1995 SCC OnLine Del 117 : AIR 1995 Del 358) has received higher compensation, which 11 fact the High Court had noted, the High Court should have allowed the benefit of such higher compensation to the appellants, if required, by making it clear that for the period of delay no interest shall be payable to the appellant landowners. The above course of action has, in fact, been adopted by this Court in several other cases where compensation on a par has been awarded minus interest for the period of delay in approaching the Court.

4. In the present case, we are inclined to follow the said course of action. Accordingly, we set aside the order of the High Court, condone the delay that has occurred in instituting the appeal before the High Court and award compensation to the appellant landowners at the same rate that has been awarded in Rameshwar Solanki v. Union of India (1995 SCC OnLine Del 117 : AIR 1995 Del 358) along with all statutory benefits. We make it clear that no interest shall be payable to the appellant landowners for the period of 6593 days’ delay that has occurred in the present case in approaching the High Court.” ii) Similarly, in Ningappa Thotappa Angadi v. LAO, (2020) 19 SCC 599 the Hon’ble Supreme Court condoned the delay of 2928 days by observing as follows: “5. The present appellant(s) who was/were also aggrieved by the impugned judgment (LAO v. Yellappa, 2008 SCC OnLine Kar 834) of the Karnataka High Court did not file the appeal along with other similarly situated landowners. He has come to this Court after a considerable long period seeking parity with the other ex-appropriated landowners and craves for restoration of the compensation as was awarded by the Reference Court. The short question which, thus, falls for consideration is whether the appellant(s) whose predecessor-in-interest did not assail the High Court order in respect of the land which is subject-matter of this 12 appeal as expeditiously as the other landowners under the same acquisition, be allowed to get the same compensation despite a delay of 2928 days and if so, whether they are entitled to seek interest as well?

6. We have heard the learned counsel for the parties and perused the record.

7. We find that the issue raised in this appeal is no longer res integra. This Court in Dhiraj Singh v. State of Haryana [(2014) 14 SCC 127] held that: (SCC p. 131, paras 14-15) “14. The appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances.

15. Equities can be balanced by denying appellants’ interest for the period for which they did not approach the court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic.” (emphasis supplied)

8. The aforecited view has been consistently followed by this Court in a series of cases before and after the decision in Dhiraj Singh case [(2014) 14 SCC 127]. In Imrat Lal v. LAO [(2014) 14 SCC 133], it was observed that the delay in filing the special leave petition cannot be the reason to deny just and fair compensation to the claimants. 13 observed that a liberal approach should be adopted in such like matters. In Huchanagouda v. LAO [(2020) 19 SCC 236], also this Court condoned the delay and restored parity in the matter of grant of compensation though with a condition “that for the period of delay in filing and in refiling the special leave petitions, the appellant claimant(s) shall not be entitled to any interest on the enhanced compensation and statutory amount”.

9. It is undeniable that this Court vide judgment dated 11- 11-2016 passed in Ningappa Thotappa Angadi v. LAO (2016 SCC OnLine Sc 1864) has set aside the order of the High Court and restored the compensation as was awarded by the Reference Court. In the cited case, this Court held as follows : (SCC OnLine SC para 4) “4. We have heard the learned counsel for the parties to some length and carefully perused the material on record. We are of the considered opinion that the impugned judgment3 and order of the High Court deserves to be set aside and judgment and order passed by the Reference Court restored. We say so because, this Court has in a similar appeal directed against the very same order set aside the impugned judgment and restored the enhancement granted by the Reference Court. We see no reason to take a different view in the present case. We, accordingly, this appeal and while setting aside impugned judgment insofar as the same relates to the appellant, restore the judgment and order passed by the Reference Court. The parties shall, however, bear their own costs.”

10. The appellant(s) are also similarly placed claimants. They are, thus, entitled to seek parity and claim the same amount of fair and just compensation as has been awarded 14 to the other landowners. The appellant(s) are, however, not entitled to seek interest for the period for which they did not approach this Court.” (iii) The Hon’ble Supreme Court also observed in Imrat Lal v. Collector (LA), (2014) 14 SCC 133, that considering the illiteracy prevailing in the villages, with lack of adequate knowledge of law, a liberal approach can be adopted specially, when the claim related to just compensation in the following words. “11. We can take judicial notice of the fact that the villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their co-villagers, who are familiar with the proceedings in the courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half-baked information made available by the affected persons. Therefore, in the acquisition matters involving claim for award of just compensation, the court should adopt a liberal approach and either grant time to the party to file a better affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief.

12. In Samiyathal v. Tahsildar [Civil Appeal No.5335 of 2013,(SC)] decided on 5-7-2013, this Court took cognizance of the fact that many landowners may not have been able to seek intervention of this Court for grant of enhanced compensation due to illiteracy, poverty and ignorance and issued direction that those who have not filed special leave petition should be 15 given enhanced compensation. The relevant portion of the judgment passed in that case is extracted below: “We further direct the respondents and the State of Tamil Nadu to pay the same amount of compensation to other landowners whose land was acquired by the Notification dated 22-5-1991, but who may have on account of ignorance, poverty and other similar handicaps, not been able to approach the Reference Court or may not have been able to contest the matter before the High Court and this Court. The needful be done in respect of other landowners within a period of six months. This direction has been given in exercise of the power vested in this Court under Article 142 of the Constitution.” (iv) The aforesaid approach was adopted in Dhiraj Singh v. State of Haryana, (2014) 14 SCC 127 wherein it was held as follows: “9. No doubt, there is a long delay in filing the appeals. However, we find that it is a case of payment of compensation to these appellants who were the landowners and which land taken away by compulsory acquisition. However, landowners whose lands were taken over by the same notification, have been able to get the compensation @ Rs 200 per square yard whereas the compensation given to the appellants is @ Rs 101 per square yard for their entire land.

10. It is also not in dispute that the appellants are agriculturists. Their averment that they could not prefer the LPAs because of their financially weak condition, has not been disputed by the respondents. We find that in a similar situation, this Court had condoned the delay of 3240 days in Market Committee, Hodal v. Krishan Murari [(1996) 1 SCC 311]. There are many other cases cited by the appellants condoning the delay in similar circumstances.

11. In the matter of land acquisition where land of peasants is acquired, a different approach has to be taken. These persons 16 should not be deprived of the reasonable compensation for their lands. If other similarly situated landowners are given the compensation @ Rs 200 square yard, there is no reason to pay the compensation to the appellants at much lesser rate. In this context, we would like to quote the following observations from the judgment dated 29-11-2013 in Imrat Lal v. Collector (LA) [(2014) 14 SCC 133]. ………………………………………………….”

Coming to the case at hand the following aspects are discernible: i) ii) All the appellants are villagers. The appellants claim that no notice was given to them when notices were issued under Section 4(1), or Section 9 or Section 12(2) of the Act, which plea had not specifically denied by the respondents. iii) The appellants claim that they came to know of the award made by the Collector only on 02.12.1999 which, however, has not been specifically denied. iv) The appellants had accepted the award on protest, thus had not accepted the award. v) The Collector was aware that the appellants had accepted the award on protest. As per the document/receipt, the appellants were assured that additional compensation would be given later on. Thus, the Collector ought to have made a reference to the Court in respect of the claim of the appellants. vi) It is a matter of record that in respect of some claimants in CIA No. 11 of 2010, CIA no. 12 of 2010 relating to the same award dated 01.06.1999, the amount of compensation has been enhanced in terms of the decision of this Court on 24.09.2013 in the aforesaid cases, after reference was made to the Court under Section 18 of the Act, the present appellants also can also seek similar enhancement. 17 vii) If similar claimants have been given enhanced compensation in 2013, denying similar benefits to the appellants may be discriminatory.

In the light of the various decisions of the Hon’ble Supreme Court and under the facts and circumstances and for the reasons discussed above, we are of the view that as we have treated the said document dated

02.01.1999 to be an application to the Collector for making a reference to the Court under Section 18 of the J&K State Land Acquisition Act, 1990 for enhancement of compensation, and even though there is delay on the part of the appellants to approach the Court in 2014, the same can be condoned. Accordingly, the respondent can refer the claim of the appellants for enhancement of the compensation amount to the Court under Section 18 of the J&K State Land Acquisition Act, 1990.

Accordingly, the Collector is directed to proceed to make the formal reference to the competent Court as regards the claim of the appellants for enhancement of compensation under Section 18 of the J&K State Land Acquisition Act, 1990 in terms of the observations made above, and if the Collector so makes the reference to the competent Court, the Court will proceed with the reference in accordance with law keeping in mind the enhanced compensation given to similarly situated villagers who were covered under the same award dated 01.06.1999 in subsequent proceedings after reference was made in CIA No. 11 of 2010, CIA no. 12 of 2010.