Jamila Khatoon Vs. State of Bihar and ors.

Jamila Khatoon vs State of Bihar and ors.

Disposition Petition allowed Court Jharkhand Decided Dec 17, 2002

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Citation: sooperkanoon.com/523508
Court: Jharkhand High Court
Judge: Vikramaditya Prasad, J.
Decided On: Dec 17, 2002
Case Number: CWJC No. 3044 of 1999(R)
Subject: Property
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Property
Outcome / disposition: Petition allowed
Acts & sections: Land Acquisition Act, 1894 - Sections 18

Parties & Advocates

Appellant / Petitioner

Jamila Khatoon

Advocate M.K. Sinha, Adv.

Respondent

State of Bihar and ors.

Advocate J.C to G.P. II

Legal References

Acts: Land Acquisition Act, 1894 - Sections 18
Reported In: [2002(2)JCR323(Jhr)]

Excerpt

.....extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 31307.25 paise then the limitation for filing objection for referring the matter to the civil court under section 18 of the act after six weeks will expire on..........matter to the competent courtunder section 18 of the land acquisitionact, and also for issuance of a mandamusto the respondents to refer the matter to thecivil court of competent jurisdiction undersection 18 of the land acquisition act.2. the short facts of the case are thatthe petitioner's land bearing khata no. 99of plot no. 747 area 2.47 acres was acquired vide land acquisition case no. 5 of1986-87, annexure 1. the award of collector under section 12(2) was communicated to the petitioner on 13.3.1989. thereafter on 29.3.1989 the petitioner filed her objection under section 18 of the act requesting the collector to refer the matter to the civil court on the ground that the award and sum is less and it should be at least 2 lacs. the petitioner, however, in that very objection petition also wrote as follows :--'your petitioner is however ready to accept the said sum of rs. 31,307.25 paise under the protest and the reserved his right for the balance amount which may be considered payable by competent authority.'3. subsequently, the petitioner again filed her representation through annexure 3 but by annexure 4, the prayer of the petitioner for referring the matter to the civil court, was rejected on 15.1.1998. the land acquisition officer while rejecting the prayer of the petitioner, has held that the award was made on 3.3.1989 and that was informed to the petitioner on the same date and the petitioner had received the awarded amount on 29.3.1989. this information was also made by service of notice on the advocate of the petitioner on 7.3.1989. subsequently, the petitioner appeared on the aforesaid date and received awarded amount without any objection which is apparent from page 15 of the note-sheet but as the petitioner has not filed her objection within six weeks, her objection was not fit to be considered, consequently it is rejected.4. section 18 of the land acquisition act, 1894 reads as follows :--'reference to court.- (1) any person interested who has not.....

Full Judgment

ORDER

Vikramaditya Prasad, J.

1. This writ has been filed for quashing (Annexure 4) the orderrejecting the prayer of the petitioner forreferring the matter to the competent Courtunder Section 18 of the Land AcquisitionAct, and also for issuance of a mandamusto the respondents to refer the matter to theCivil Court of competent jurisdiction underSection 18 of the Land Acquisition Act.

2. The short facts of the case are thatthe petitioner's land bearing Khata No. 99of Plot No. 747 Area 2.47 acres was acquired vide Land Acquisition Case No. 5 of1986-87, Annexure 1. The award of collector under Section 12(2) was communicated to the petitioner on 13.3.1989. Thereafter on 29.3.1989 the petitioner filed her objection under Section 18 of the Act requesting the Collector to refer the matter to the Civil Court on the ground that the award and sum is less and it should be at least 2 lacs. The petitioner, however, In that very objection petition also wrote as follows :--

'Your petitioner is however ready to accept the said sum of Rs. 31,307.25 paise under the protest and the reserved his right for the balance amount which may be considered payable by competent Authority.'

3. Subsequently, the petitioner again filed her representation through Annexure 3 but by Annexure 4, the prayer of the petitioner for referring the matter to the Civil Court, was rejected on 15.1.1998. The Land Acquisition Officer while rejecting the prayer of the petitioner, has held that the award was made on 3.3.1989 and that was informed to the petitioner on the same date and the petitioner had received the awarded amount on 29.3.1989. This information was also made by service of notice on the advocate of the petitioner on 7.3.1989. Subsequently, the petitioner appeared on the aforesaid date and received awarded amount without any objection which is apparent from page 15 of the note-sheet but as the petitioner has not filed her objection within six weeks, her objection was not fit to be considered, consequently it is rejected.

4. Section 18 of the Land Acquisition Act, 1894 reads as follows :--

'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 amount the persons interested.

(2) The application shall state the grounds on which objection to the award is taken :

(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 case 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 the Collector's award whichever period shall first expire.' .

5. Under Section 18 of the Land Acquisition Act if the petitioner has received the awarded amount then she is restrained from filing application for referring the matter to the competent Court. Now in this case as per Annexure 1 the award was made on 3.3.1989 and she was directed to appear for receiving the amount of Rs. 31307.25 paise then the limitation for filing objection for referring the matter to the Civil Court under Section 18 of the Act after six weeks will expire on 17.4.1989. The petition, Annexure 2 was filed by the petitioner on 29.3.1989. Thus, this petition is well within the period of limitation of six weeks. In para 5 of Annexure 2 the petitioner says as follows :--'Your petitioner claims that the total compensation payable to her in respect to her properties acquired ought to be more than Rs. 2.00 lakhs In the minimum. Your petitioner is however ready to accept the said sum of Rs. 31,307.25 paise under the protest and the reserved his right for the balance amount which may be considered payable by competent Authority.'

6. No counter affidavit has been filed on behalf of the State. The case record of Land Acquisition Case No. 5 of 85-86 was also not produced despite direction by this Court. No doubt In that Annexure-4, it has been stated that the petitioner had received amount on 29.3.1989 without any objection but it does not clear whether on that date before filing the objection petition that amount has been released. In the entire Annexure-4 this matter has not been clarified. So, in absence of record and counter affidavit, it is clear that the petitioner has filed the objection first kept her rightreserved and disclosed her intention to receive award under protest. In that circumstance, when the objection was filed prior to receiving of the awarded amount then it could have been filed under law and as stated earlier the objection petition was well within six weeks, therefore, there was no legal difficulty in referring the matter to Civil Court under Section 18 of the Act.

7. In the result, the impugned order is perverse and consequently it is set aside. The respondents are directed to refer the matter to the competent Court within three weeks from date of production of this order.

8. The writ is allowed at admissionstage.

Same Court & Year Jharkhand · 2002 Same Parties Jamila Khatoon vs State of Bihar and ors. Same Subject Property Same Judge Vikramaditya Prasad, J. Acts & Sections Land Acquisition Act, 1894 - Sections 18

Property