TATIA, J. - (1.) WITH the consent of parties, this appeal is heard on merits for final disposal.
(2.) THE appellant has preferred this appeal against the judgment and decree passed by Addl. Distt. Judge No. 2, Udaipur in civil case no. 3/1996 whereby the reference petition under Sec. 18 (1) of the Land Acquisition Act, 1894 was rejected by the court below holding it to be barred by time in view of interpretation of Sec. 18 (2) (b) of the Land Acquisition Act, 1894 (for short as "act of 1894" ). The brief facts of the case are that a notification under Section 4 of the Act of 1894 was issued on 22. 3. 90 which was published in Official Gazette on 29. 3. 90. Thereafter completing the formalities, the award was passed by the Land Acquisition Officer, Udaipur on 7. 8. 1992. After the Award dated 7. 8. 92, an application was submitted by the appellant before the Land Acquisition Officer on 6. 2. 1993 under Sec. 18 (1) of the Act of 1894 and subsequently amended application under Sec. 18 (1) of the Act of 1894 was submitted on 6. 4. 1993. The Land Acquisition Officer, thereafter made a reference to the Civil Court and matter was sent to the Distt. Judge, Udaipur from where it was transferred to the court of Addl. Distt. Judge No. 2, Udaipur. The respondents submitted objections before the Civil Court and thereafter issues were framed and after evidence, the Court below decided issue No. 1 in favour of appellant holding that the land measuring 2259. 6 sq. ft. was acquired. This finding is not under challenge before this Court. While deciding the nature of land, the court below held that the land in dispute is Abadi land. This finding is also not under challenge. The cost of land was found to be Rs. 180 sq. ft. while deciding issue no. 3 and as per finding on issue No. 4, plaintiff-claimants were held to be entitled for amount under Sec. 23-A of the Act of 1894 and also interest thereon. All the findings were recorded in favour of applicants-appellants by the Civil Court under Sec. 18 (1) of the Act of 1894. But the reference was rejected only on the ground that reference was made after the expiry of period provided under Sec. 18 of the Act of 1894. Hence, Mr. D. S. Shishodia, Sr. Advocate appearing for the appellant submitted that findings recorded on issue No. 5 is illegal and contrary to the law laid down by Hon'ble Apex Court. Learned counsel for the appellant further submitted that bare perusal of provisions of Sec. 18 and Sec. 12 (2) of the Act of 1894 show that limitation for submitting the application for reference before Land Acquisition Officer is given under Sec. 18 (2) and Sec. 18 provides two different contingencies which are provided in sub-clause (a) and (b) of sub-sec. (2) of Sec. 18 of the Act of 1894. According to counsel for the appellant in view of admitted facts that appellant was not represented by any Advocate before Land Acquisition Officer nor put in appearance personally, therefore, sub-clause (a) of sub- sec. (2) of Sec. 18 of the Act of 1894 is not applicable. According to learned counsel for the appellant, as per sub-clause (b) of sub-sec. (2) of Sec. 18, there are two contingencies providing period of limitation. One is that if notice of award is served by Collector under Sec. 12 (2) of the Act of 1894, then limitation is of 6 weeks' for submitting application under Sec. 18 (1) and in other cases period of limitation is of 6 months' from the date of award passed by the Collector. Learned counsel for the appellant submitted that in view of admitted fact that neither the appellant was present before the Land Acquisition Officer nor he was represented by any Advocate or any authorised representative, hence there is no question of applicability of application under sub-clause (a) of sub-section (2) of Sec. 18 of the Act of 1894 and it is an admitted fact that no notice was issued by the Land Acquisition Officer/collector under Sec. 12 (2) of the Act of 1894, therefore, only provision which is applicable in the present facts and circumstances of the case is second part of sub-clause (b) of sub-sec. (2) of Sec. 18 which provides period of 6 months' limitation for filing application under Sec. 18 (1) of the Act of 1894. According to learned counsel for the appellant, assuming for arguments sake that appellant got the knowledge of Award on 25. 11. 1992, even then the second application of reference which was filed by appellant on 6. 4. 93 was held to be within 131 days of the passing of award, therefore, in all the facts clearly show that application was within 6 months from the date of knowledge. According to learned counsel for the appellant, the date of knowledge of award is not the date of knowledge of passing of award, but it is also required that one himself have knowledge of the facts of award and then and then only period of 6 months will start under sub-clause (b) of sub-sec. (2) of Sec. 18 of the Act of 1894. Learned counsel for the appellant relied upon the law laid down by Hon'ble Supreme Court in case of Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer & Anr. (1 ). In this case, award was made signed and filed in the office of Land Acquisition Officer (respondent No. 1) on March 23, 1951 and no notice of this award was given to the appellant as required by Sec. 12 (2) of the Act of 1894. In this case, the appellant received by information about the making of the award only or about January 13, 1953 then he moved an application or February 24, 1953 under Sec. 18 before the Land Acquisition Officer requesting to make a reference under Sec. 18 of the Act of 1894. Here in this case also, the point in controversy was whether application under Sec. 18 of the Act was within time or not. The Hon'ble Apex Court while dealing with the provisions of Sec. 12 (2) and Sec. 18 of the Act of 1894 observed as under: "thus considered the date of the award cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position then the literal and mechanical construction of the words "the date of the award" occurring in the relevant section would not be appropriate. "
(3.) THE Hon'ble Apex Court further held as under: "thus, considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. " The Hon'ble Apex Court very specifically held that the provisions of Sec. 18 cannot be construed in literal or mechanical way and also observed that literal and mechanical construction of the said clause would wholly inappropriate. The Hon'ble Apex Court after considering the provisions of Sec. 12 (2) and Sec. 18 of the Act, allowed the appeals and set aside the Division Bench decision of High Court and restored the judgment of Single Judge by which the learned Single Judge held that application under Sec. 18 was within period of limitation of 6 months. The learned counsel for the appellant further relied upon the judgment of Apex Court in the case of State of Punjab vs. Mst. Qaisar Jehan Begum & Anr. The Hon'ble Apex Court again followed the decision of 1961 SC 1500 (supra ). ;