Kartar Singh v. Union of India & Anr.

2. On the reference being made to the learned Additional District Judge, a written statement was filed by the respondent-Union of India and in the said written statement a preliminary objection was taken that the reference was barred by limitation and, therefore, was not maintainable. It was further stated in the written statement that despite issue of statutory notice on the petitioner, he failed to file the reference petition within the prescribed period and, therefore, the petition was barred by limitation. No replication to the written statement was filed and no issue on the plea of limitation taken by the respondent was framed. The learned Additional District Judge vide impugned order dated 24.12.2008 rejected the reference as barred by limitation. Section 18(2) of the Land Acquisition Act which prescribes the period of limitation for filing reference under sub section 1 of the said Section reads as under: “(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.”

3. It would thus be seen that if a person seeking reference was present either in person or through a counsel at the time the award was made, the reference is to be sought within six weeks from the date of the award and in other cases it can be sought within six weeks of receipt of notice from the Collector under Section 12(2) of the Act or within six months from the date of the award, whichever period expires first.

4. A perusal of award in question would show that it does not indicate that on 3.8.2000 the appellant or his counsel was present at the time it was announced. A perusal of notice dated 30.5.2001 issued by the Land Acquisition Collector to the appellant Kartar Singh would show that the said notice purports to have been received by one Ajit Singh on 2.6.2001. The report on the notice does not indicate the relationship of Mr. Ajit Singh with the appellant but, it is otherwise an admitted case as he is the son of the appellant.

5. Section 45 of the Land Acquisition Act prescribes the mode of service of notice and to the extent it is relevant, the said Section reads as under:

6. As noted earlier, no replication was filed by the appellant to the written statement of the respondent before the Reference Court. No issue with respect to limitation was framed by the Reference Court. In my view, considering that the respondent had taken a preliminary objection that the reference was barred by limitation, it was necessary for the Reference Court to frame an issue on the point of limitation and thereafter given an opportunity to the parties to lead evidence on that issue. If the plea of limitation can be decided without recording evidence, it may not be necessary to frame an issue before returning a finding on such a plea. If, however, the decision on a plea of limitation requires recording of evidence, it would not be appropriate to return a finding without framing an issue and giving an opportunity to the parties to lead evidence by disputing the factual aspect of the issue.

7. Had the learned Additional District Judge framed an issue on the point of limitation, the appellant would have got an opportunity to place his stand before the Court and lead evidence in support of the stand taken by him. Had the appellant filed replication and admitted receipt of notice by his son on 2.6.2001, probably evidence might not have been necessary but, considering the fact that neither the appellant of his own filed any replication nor was he asked to do so despite plea of limitation taken by the respondent in its written statement, recording of evidence was necessary before returning a finding on the issue of limitation which the respondent had taken in its written statement. In fact the Reference Court did not at all go into the issue of service of notice and returned a finding on limitation merely on the basis of the endorsement made by the Land Acquisition Collector.

8. Mr. Pathak, learned counsel for the respondent states that since the appellant did not contest the plea of limitation taken in the written statement by filing a replication and did not claim that the notice was not received by his son or that his son despite receiving the notice did not inform him and also did not take a plea that notice in accordance with Section 45 of the Act had not been served upon the appellant, there is no justification in remanding the matter back to the Reference Court and there was no necessity for the Reference Court to frame an issue on this aspect. However, I do not find any force in these submissions. In my view in the absence of admission of receipt of notice by the appellant, the learned Additional District Judge without framing an issue, and recording evidence, could not have returned a finding on the issue of limitation even if no replication was filed by the appellant for the simple reason that the issue of limitation having been raised by the respondent, it was for the respondent to prove the service of notice under Section 12 of the Act upon the son of the appellant. For the reasons stated herein above, the learned order dated 24.12.2008 passed by the learned Additional District Judge is set aside and the matter is remanded back to him for framing an issue on the point of limitation, give opportunity to the parties to lead evidence on the said issue and thereafter pass an appropriate order in accordance with law. The parties shall appear before the learned District Judge on 8.7.2013. The fresh order in terms of the above directions shall be passed by the learned Additional District Judge within six months of the parties appearing before him. The appeal stands disposed of. The trial court record be sent back forthwith along with a copy of this order. V.K. JAIN, J MAY 16, 2013 rd