WP/5928/1998 of MUTHUKRISHNAN Vs 1. THE STATE OF TAMIL NADU on 4 December 2002

:O R D E R

Heard the learned counsels appearing for the parties.

2. In this writ petition, the petitioner has prayed for a declaration that the land acquisition proceedings initiated under G.O.Ms.No.301 , H & UDDept. dated 4.3.91 has lapsed as the award was not passed in time in respectof the lands belonging to the petitioner in S.No.36/1 in Palayamkottai inTirunelveli District.

3. The main contention of the petitioner is that the award has not been passed within a period of two years as contemplated under Section 11-A ofthe Land Acquisition Act (hereinafter referred to as the Act). In making theaforesaid submission, the petitioner has referred to notice dated 13.5.1996,which is to the following effect :

— An extent of 1.73.0 Hectares of land in S.No.36/1 in V.M. ChatramVillage, Block IV, was acquired and award was already passed in this officeaward No.3/92-93 dt. 12.3.93 (Roc.No.A.34/88 dt.12.3.93). You have filedW.P.No.2977/93 in the High Court, Madras and the High Court, Madras in theirorder dated 10.1.96 has dismissed the W.P. filed by you. Now the W.P. hasbeen dismissed, and stay vacated, the amount of compensation has to befinalised. You are therefore requested to produce the documentary evidence toprove the entire land in S.No.3 6/1 of V.M. Chatram Village is only belongsto you. You are requested to appear in this office on 20.5.96 at 11,00 A.M.before me without fail with all the documents available with you. . . .

By referring to the expression — Now the W.P. has been dismissed, andstay vacated, the amount of compensation has to be finalised. . . . learned counsel for the petitioner has submitted that the above portionindicates that by the date of such notice, the award had not been passed. Toverify this aspect, the learned counsel representing the State was called upon to produce records. The records show that award had been passed on 12.3.1993.As a matter of fact, even in the notice dated 13.5.1996, there is a referenceto the award dated 12.3.1 993. The expression contained in the very samenotice to the effect — . . . the amount of compensation has to befinalised. is an inartistic expression, which has given rise to the presentsubmission of the learned counsel for the petitioner. On perusal of therecords, I am not able to accept this submission that the award was not passedwithin 2 years. Therefore, the prayer of the petitioner that the landacquisition proceedings should be quashed on account of non-compliance ofSection 11-A cannot be sustained.

4. Learned counsel for the petitioner has also submitted thatthe petitioner has been repeatedly writing to the authorities to furnish acopy of the award to make a formal application under Section 18 of the Act.As a matter of fact such representation was considered as an application formaking reference and was rejected by the authorities on the ground that suchapplication was not filed within the stipulated period. This aspect is beingchallenged by the counsel for the petitioner.

5. The provisions contained in Section 18 of the Act are as follows :-

18. Reference to Court.- (1) Any person interested who has notaccepted the award may, by written application to the Collector, require thatthe 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 thecompensation, the persons to whom it is payable, or the apportionment of thecompensation among the persons interested. (2) The application shallstate 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 theCollector at the time when he made his award, within six weeks from the dateof the Collector’s award; (b) in other cases within six weeks of the receipt of the notice fromthe Collector under Section 12, sub-section (2) or within six months from thedate of the Collector’s award, whichever period shall first expire.

6. Learned counsel for the petitioner has submitted that in the present case award had not been made in the presence of the petitioner nornotice had been issued prior to making of the award. He has therefore submitted that Section 18(2) proviso (a) would not be applicable and Section18(2)proviso (b) would be applicable. In this context, he has furthersubmitted that mere knowledge of the petitioner that some award has beenpassed is not suffici ent and the respondent was required to furnishparticulars of the award or serve a copy of the award.

7. Learned counsel for the petitioner has referred to the decisionreported in A.I.R. 1961 SC 1500 (RAJA HARISH CHANDRA RAJ SINGH v. THE DEPUTYLAND ACQUISITION OFFICER AND ANOTHER) and A.I.R. 1963 SC 1604 (STATE OFPUNJAB v. MST. QAISAR JEHAN BEGUM AND ANOTHER). In the decision reported inAIR 1961 SC 1500, the award was actually made, signed and filed in the officeof the concerned Land Acquisition Officer on 25.3.1951. No notice of thisaward had been given to the appellant as required under Section 12(2). Theappellant received information about making of the award on or before13.1.1953. The appellant then filed application on 24.2.1953 under Section 18requiring that the matter should be referred for determination of the Court ascompensation determined in the proceedings was inadequate. Such applicationwas rejected on the ground that it had not been filed within the stipulatedperiod. Ultimately in the Division Bench of the High Court it was held thatthe application was not filed within time. In appeal before the SupremeCourt, it was observed :

4. . . . The proviso to Section 18 deals with the question oflimitation. It prescribes that every such application shall be made (a) ifthe person making it was present or represented before the Collector at thetime when he made his award within six weeks from the date of the Collector’saward; (b) in other cases within six weeks of the receipt of the notice fromthe Collector under Section 12(2), or within six months from the date of theCollector’s award which ever shall first expire. The appellant’s case fallsunder the latter part of clause(b) of the proviso. It has been held by theAllahabad High Court that since the application made by the appellant beforerespondent 1 was made beyond six months from the date of the award in questionit was beyond time. The view taken by the High Court proceeds on the literalconstruction of the relevant clause. As we have already seen the award wassigned and delivered in his office by respondent 1 on March 25, 1951, and theapplication by the appellant was made under Section 18 on February 24, 1953.It has been held that the effect of the relevant clause is that theapplication made by the appellant is plainly beyond the six months permittedby the said clause an so respondent No.1 was right in rejecting it as barredby time. The question which arises for our decision is whether this literaland mechanical way of construing the relevant clause is justified in law. Itis obvious that the effect of this construction is that if a person does notknow about the making of the award and is himself not to blame for not knowingabout the award his right to make an application under Section 18 may in manycases be rendered ineffective. If the effect of the relevant provisionunambiguously is as held by the High Court the unfortunate consequence whichmay flow from it may not have a material or a decisive bearing. If, on theother hand, it is possible reasonably to construe the said provision so as toavoid such a consequence it would be legitimate for the Court to do so. We must therefore enquire whether the relevant provision is capable of theconstruction for which the appellant contends, and that naturally raises thequestion as to what is the meaning of the expression the day of theCollector’s award. (Emphasis added)

It was further observed :

— 5. Therefore, if the award made by the Collector is in law no morethan an offer made on behalf of the Government to the owner of the propertythen the making of the award as properly understood must involve thecommunication of the offer to the party concerned. That is the normalrequirement under the contract law and its applicability to cases of awardmade under the Act cannot be reasonably excluded. Thus considered the date ofthe award cannot be determined solely by reference to the time when the awardis signed by the Collector or delivered by him in his office; it must involvethe consideration of the question as to when it was known to the partyconcerned either actually or constructively. If that be the true positionthen the literal and mechanical construction of the words “the date of theaward” occurring in the relevant section would not be appropriate.

(6) There is yet another point which leads to the same conclusion. Ifthe award is treated as an administrative decision taken by the Collector inthe matter of the valuation of the property sought to be acquired it is clearthat the said decision ultimately affects the right of the owner of theproperty and in that sense, like all decisions which affect persons, it isessentially fair and just that the said decision should be communicated to thesaid party. The knowledge of the party affected by such a decision, eitheractual or constructive, is an essential element which must be satisfied beforethe decision can be brought into force. Thus considered the making of theaward cannot consist merely in the physical act of writing the award ofsigning it or even filing it in the office of the Collector; it must involvethe communication of the said award to the party concerned either actually orconstructively. If the award is pronounced in the presence of the party whoserights are affected by it, it can be said to be made when pronounced. If thedate for the pronouncement of the award is communicated to the party and it isaccordingly pronounced on the date previously announced the award is said tobe communicated to the said party even if the said party is not actuallypresent on the date of its pronouncement. Similarly if without notice of thedate of its pronouncement an award is pronounced and a party is not presentthe 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 orconstructive, being an essential requirement of fair-play and natural justicethe expression “the date of the award” used in the proviso must mean the datewhen the award is either communicated to the party or is known by him eitheractually or constructively. In our opinion, therefore, it would beunreasonable to construe the words from the date of the Collector’s award used in the proviso to Section 18 in a literal or mechanical way. (Emphasisadded)

(7) In this connection it is material to recall the fact that under Section 12(2) it is obligatory on the Collector to give immediate notice ofthe award to the persons interested as are not present personally or by theirrepresentatives when the award is made. This requirement itself postulatesthe necessity of the communication of the award to the party concerned. TheLegislature recognised that the making of the award under Section 11 followedby its filing under Section 1 2(1) would not meet the requirements of justicebefore bringing the award into force. It thought that the communication ofthe award to the party concerned was also necessary and so by the use of themandatory words an obligation is placed on the Collector to communicate theaward immediately to the person concerned. It is significant that the sectionrequires the Collector to give notice of the award immediately after makingit. This provision lends support to the view which we have taken about theconstruction of the expression “from the date of the Collector’s award” in theproviso to Section 18. It is because communication of the order is regardedby the Legislature as necessary that Section 12(2) has imposed an obligationon the Collector and if the relevant clause in the proviso is read in thelight of this statutory requirement it tends to show the literal andmechanical construction of the said clause would be wholly inappropriate. Itwould indeed be a very curious result that the failure of the Collector todischarge his obligation under Section 12(2) should directly tend to makeineffective the right of the party to make an application under Section 18,and this result could not possibly have been intended by the Legislature.

Ultimately after referring to several decisions of various High Courtsand different statutes, it was further observed :- — . . . These decisions show that where the rights of a person are

affected by any order and limitation is prescribed for the enforcement of theremedy by the person aggrieved against the said order by reference to themaking of the said order, the making of the order must mean either actual orconstructive communication of the said order to the party concerned.Therefore, we are satisfied that the High Court of Allahabad was in error incoming to the conclusion that the application made by the appellant in thepresent proceedings was barred under the proviso to Section 18 of the Act.

8. The question again cropped up in the late decision reported in 1 963 SC 1604 (STATE OF PUNJAB v. MST. QAISAR JEHAN BEGUM ANDANOTHER), wherein it was observed :- — . . . (5) As to the second part of cl.(b) of the proviso, the true scope and effect thereof was considered by this court in Harish Chandra’scase, 1962-1 SCR 676 : (AIR 1961 SC 1500)(supra). It was there observed thata literal and mechanical construction of the words — six months from the dateof the Collector’s award occurring in the second part of cl.(b) of theproviso would not be appropriate and the knowledge of the party affected by the award, either actual or constructive, being an essential requirement offair play and natural justice, the expression . . . used in the provisomust mean the date when the award is either communicated to the party or isknown by him either actually or constructively. . . . Now, knowledge ofthe award does not mean a mere knowledge of the fact that an award has beenmade. The knowledge must relate to the essential contents of the award.These contents may be known either actually or constructively. If the awardis communicated to a party under Section 12(2) of the Act, the party must beobviously fixed with knowledge of the contents of the award whether he readsit or not. Similarly when a party is present in court either personally orthrough his representative when the award is made by the Collector, it must bepresumed that he knows the contents of the award. Having regard to the schemeof the Act we think that knowledge of the award must mean knowledge of theessential contents of the award. Looked at from that point of view, we do notthink that it can be inferred from the petition dated December 24, 1954 thatthe respondents had knowledge of the award. ...

9. In view of the aforesaid two clear decisions directly on the point, the learned counsel for the petitioner has submitted that in theinterest of justice, the respondents should be given a direction to furnish acopy of the award to the petitioner to enable him to file an application underSection 18 for making a reference.

10. As against this submission, the learned counsel appearing for the State has relied upon a decision reported in 1995(3)SCC 330 ( STATE OFPUNJAB AND ANOTHER) which has been followed in 1996(II)SCC 213 and contendedthat it is not necessary to furnish a copy of the award and since thepetitioner had knowledge that award had been passed, he cannot be permitted tofile application under Section 18 after lapse of the period as contemplatedunder Section 18 of the Act. It is no doubt true that the decisions cited bythe learned counsel for the State support his contention. However, on perusalof the aforesaid two decisions, it is found that there is no reference to anyof the earlier decisions already discussed. It is noticed that 1961 SC 1500was rendered by a Bench consisting of two judges and the decision reported in1963 SC 1604 by a Bench consisting of three judges. The two subsequentdecisions cited by the learned counsel for the respondent were rendered byBenches consisting of two judges. In other words, the decision reported in1963 SC 1604 is of a larger Bench.

11. Law is well-settled that earlier decision of the Supreme

11. Law is well-settled that earlier decision of the Supreme Court of the same strength or of higher strength is binding even on theSupreme Court. The subsequent decisions of the Supreme Court which have beenrendered without referring to the earlier two decisions, one of which is by alarger bench, cannot be preferred. In such view of the mater, I am of theopinion that the contention raised by the counsel for the State Governmentcannot be accepted.

12. Even though the petitioner had made application to furnish copy of award to make a formal application under Section 18 of the Actand the respondent No.3 has purported to reject such application treating itas an application for reference, in the facts and circumstances of the caseand in the interest of justice, I direct that the respondents should furnish acopy of the award within a period of three weeks from the date ofcommunication of the order and it would be open to the petitioner to file aformal application under Section 18 for making a reference claiming higher compensation. If any such application is filed within six weeks from the dateof receipt of such award, such application should be referred as contemplatedunder Section 18 of the Act.

13. Learned counsel for the respondents has also raised a technical question that since there is no prayer for making a reference, nosuch direction should be given. It is well known that the Rules of procedureare hand maids of justice. The High Court while deciding a matter underArticle 226 acts as a Court of equity and and good conscience it has gotinherent power to pass necessary orders in the interest of justice withoutbeing bogged down by the technicalities of procedural law.

13. With the above direction, the writ petition is disposedof. No costs. Consequently, W.M.P.NO.18102 is closed.of. No costs. Consequently, W.M.P.NO.18102 is closed.

Index : Yes

Internet : Yes

dpk

To

1. The State of Tamil Nadu through the Secretary Housing and UrbanDevelopment Department, Fort St. George, Madras 9.Development Department, Fort St. George, Madras 9.

2. The Collector, Tirunelveli District, Tirunelveli.

3. The Special Tahsildar Land Acquisition (LA) Neighburhood Scheme, Tirunelveli.

4. The Chairman, Housing Board, Nandanam, Madras.