Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Delay In Filing The Application Under Section 28A Of Land Acquisition Act, 1894 Cannot Be Condoned.
JUDGEMENT TITLE : Smt. Kamla Tomar Vs. State Of U.P. And 2 Others On 01/23/2017 By Allahabad High Court
CASE NO : WRIT - C NO. 611 OF 2017
CORAM : Hon'ble Dilip Gupta,J. And Hon'ble Siddhartha Varma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. - 39

Case :- WRIT - C No. - 611 Of 2017
Petitioner :- Smt. Kamla Tomar
Respondent :- State Of U.P. And 2 Others
Counsel For Petitioner :- Rakesh Kumar Srivastava
Counsel For Respondent :- C.S.C.

Hon'ble Dilip Gupta,J.
Hon'ble Siddhartha Varma,J.
The Issue That Arises For Consideration In This Petition Is Whether The Delay In Filing An Application Under Section 28-A Of The Land Acquisition Act 18941 Can Be Condoned.
Learned Counsel For The Petitioner Has Submitted That The Delay Can Be Condoned And, Therefore, The Application That Had Been Filed Beyond The Time Prescribed Under Section 28-A Of The Act Was Required To Be Decided On Merits After Condoning The Delay.
Learned Standing Counsel, On The Other Hand, Has Submitted That The Time Period Provided For Under Section 28-A Of The Act For Filing The Application Cannot Be Extended And, Therefore, The Application Filed By The Petitioner Which Was Admittedly Beyond The Time Prescribed Cannot Be Entertained.
We Have Considered The Submissions Advanced By The Learned Counsel For The Parties.
It Is Alleged That Land Admeasuring 78 Acres Situated In Village-Arthala, District Ghaziabad, Including The Land Belonging To The Husband Of The Petitioner, Was Acquired In 1960 By The State Government. The Award Was Made By The Special Land Acquisition Officer Under Section 11 Of The Act On 28 September 1977 By Adopting The Belting System. The Market Rate Of The Land Falling In The First Belt Was Determined At Rs. 2.08/- Per Square Yard, While That Of The Land Falling In The Second Belt Was Determined At Rs. 1.04/- Per Square Yard. Some Of The Tenure-holders Covered By The Same Notification Issued Under Section 4(1) Of The Act Filed An Application Under Section 18 Of The Act And The Reference Court By Award Dated 31 March 1987 Enhanced The Compensation By Determining The Market Rate Of The Land To Be Rs.8.50 Per Square Yard. The First Appeal Filed By The State Of Uttar Pradesh Was Allowed In Part On 14 October 2003 And The Market Rate Of The Land Was Determined At Rs.6.80/- Per Square Yard.
It Is On 14 May 2012 That The Petitioner Filed An Application Before The Collector, Ghaziabad Under Section 28-A Of The Act Claiming That The Petitioner Should Also Be Awarded Rs.6.80 Per Square Yard As The Market Rate Of The Land. This Petition Has Been Filed For A Direction Upon The Collector To Decide The Application Filed By The Petitioner Under Section 28-A Of The Act.
Section 28-A Of The Act Requires That The Application Should Be Filed Within Three Months From The Date Of The Award Of The Court. It Is Reproduced :-
"Re-determination Of The Amount Of Compensation On The Basis Of The Award Of The Court. - (1) Where In An Award Under This Part, The Court Allows To The Applicant Any Amount Of Compensation In Excess Of The Amount Awarded By The Collector Under Section 11, The Persons Interested In All The Other Land Covered By The Same Notification Under Section 4, Sub-section (1) And Who Are Also Aggrieved By The Award Of The Collector May, Notwithstanding That They Had Not Made An Application To The Collector Under Section 18, By Written Application To The Collector Within Three Months From The Date Of The Award Of The Court Require That The Amount Of Compensation Payable To Them May Be Re-determined On The Basis Of The Amount Of Compensation Awarded By The Court:
Provided That In Computing The Period Of Three Months Within Which An Application To The Collector Shall Be Made Under This Sub-section, The Day On Which The Award Was Pronounced And The Time Requisite For Obtaining A Copy Of The Award Shall Be Excluded.
(2) The Collector Shall, On Receipt Of An Application Under Sub-section (1), Conduct An Inquiry After Giving Notice To All The Persons Interested And Giving Them A Reasonable Opportunity Of Being Heard, And Make An Award Determining The Amount Of Compensation Payable To The Applicants.
(3) Any Person Who Has Not Accepted The Award Under Sub-section (2) May, By Written Application To The Collector, Require That The Matter Be Referred By The Collector For The Determination Of The Court And The Provisions Of Sections 18 To 28 Shall, So Far As May Be, Apply To Such Reference As They Apply To A Reference Under Section 18.

As Noted Above, In The Application Filed By The Petitioner On 14 May 2012, Reference Was Made To The Judgment Delivered By The High Court On 14 October 2003 In The First Appeal That Was Filed By The State Against The Award Of The Reference Court In References Filed By Some Other Tenure-holders.
The First Issue That Would Arise For Consideration Is Whether The Award Referred To Under Section 28-A Of The Act Is The Award Made By The Reference Court Or The High Court In The First Appeal.
This Issue Arises For Consideration Because A Perusal Of The Application Filed By The Petitioner Under Section 28-A Of The Act Reveals That It Had Been Filed Claiming Redetermination Of The Compensation On The Basis Of The Judgment Rendered By The High Court On 14 October 2003 In The First Appeal And Not On The Basis Of The Award Made By The Reference Court. Section 28-A Of The Act Provides That Where In An Award Under Part-III (containing Sections 18 To 28-A Of The Act), The Court Allows To The Applicant Any Amount Of Compensation In Excess Of The Amount Awarded By The Collector Under Section 11, The Persons Interested In All The Land Covered By The Same Notification Under Section 4(1) Of The Act And Who Are Also Aggrieved By The Award Of The Collector May, By Written Application To The Collector Within Three Months From The Date Of The Award Of The Court, Require That The Amount Of Compensation Payable To Them May Be Redetermined On The Basis Of The Amount Of Compensation Awarded By The Court. 'Court' Has Been Defined In Section 3(d) Of The Act To Mean A Principal Civil Court Of Original Jurisdiction. It Is, Therefore, Clear That The Award That Is Referrable To Under Section 28-A(1) Of The Act Is The Award Made By The Reference Court Alone. This Is Also Clear Because Section 28-A Of The Act Begins With "where In An Award In This Part, The Court Allows To The Applicant" And Ends With "may Be Redetermined On The Basis Of The Amount Of Compensation Awarded By The Court".
An Application Under Section 28-A Of The Act Cannot, Therefore, Be Filed For Redetermination Of The Compensation By Treating The Award As That Made By The High Court In The First Appeal Or By The Supreme Court. This View Finds Support From The Decision Of The Supreme Court In Babua Ram And Ors. Vs. State Of U.P. And Anr.2. The Observations Are :
"19. The Next Question Is As To When The Period Of Limitation Of Three Months Begins To Run Under Section 28-A And Whether Successive Awards Made By Civil Court At Different Times In Respect Of The Land Covered By The Same Notification Furnish Separate Causes Of Action For Making Applications Under Section 28A. Let Us Consider The Meaning Of The Words "an Award Under This Part" Referred To In Section 28-A(1) Which Is Part III Of The Act. The Heading To That Part Begins By Reference To Court And Its Procedure. The "court" Means A Principal Civil Court Of Original Jurisdiction Or A Special Judicial Officer Appointed To Perform The Functions Of The Court Under The Act As Becomes Clear As Is Noticed Already. What Are The Matters To Be Considered In Determining The Compensation On A Reference Made To It Under Section 18, Is Detailed In Section 23 While Matters To Be Neglected In Determining Such Compensation Are Indicated In Section 24. By Operation Of Sub-section (2) Of Section 26, The Award Made Determining The Amount Of Compensation Shall Be Deemed To Be A Decree While The Statement Of The Grounds Of Every Such Award Is Deemed To Be The Judgment, For The Purpose Of Code Of Civil Procedure. The Above Perspectives From Part III Make It Clear That The Award Of The Court Is That Of The Civil Court Of Original Jurisdiction In That Part. It Is A Decree For The Purpose Of An Appeal Under Section 54 Which Falls In Part VIII Of The Act (Miscellaneous). The Decree As Defined In Section 2(2) C.P.C. Is The Decree Of The High Court, Which Shall Be Appealable To The Supreme Court Under Articles 132, 133 And 136 Read With Order 45 C.P.C, Hence, The Award Of The Court Referred To In Sub-section (1) Of Section 28-A Is Only The Award Of The Civil Court Of Original Jurisdiction Or Of Judicial Officer Performing The Functions Of Such Court Under The Act On Reference Received By It Under Section 18 And An Award And Decree Pronounced Under Section 26 Of The Act. Since, The Judgment And Decree Of The High Court Under Section 54 Or Of This Court Do Not Come In Part III Of The Act, They Stand Excluded From An Award Envisaged Under Sub- Section (1) Of Section 28-A. The Aggrieved Interested Person, Therefore, Is Entitled To The Right And Remedy Of Making An Application Under Section 28A For Redetermination Of Compensation For His Acquired Land Only On The Basis Of The Award Of The Civil Court Or Judicial Officer Which Is A Judgment And Decree Under Section 26 When Such Award Grants Compensation In Excess Of The Amount Awarded By The Collector Under Section 11. When Such An Application Is Made In Writing By The Aggrieved Person, Notwithstanding The Fact Of His Having Received Compensation Under Section 31 Without Protest And Of Not Availing The Right And Remedy Of The Reference Under Section 18, The Redetermination Of The Compensation Under Section 28A(1) Is Required To Be Done."
(emphasis Supplied)

It Needs To Be Stated That In Union Of India & Anr. Vs. Pradeep Kumari And Ors.3, The Supreme Court Disagreed Only With The View Taken In Babua Ram That The Period Of Limitation For Making An Application Under Section 28-A Of The Act Is Not Restricted To The Earliest Award That Is Made By The Court After Coming Into Force Of Section 28-A Of The Act.
The View That The Award Referred To In Section 28-A(1) Of The Act Is The Award Of The Reference Court Was Reiterated By The Supreme Court In Bhagti (Smt.) (deceased) Through Her Lrs. Jagdish Ram Sharma Vs. State Of Haryana4, And The Observations Are :
"6. ............... Equally, The Right And Remedy Of Redetermination Would Be Available Only When The Reference Court Under Section 18 Has Enhanced The Compensation In An Award And Decree Under Section 26. Within Three Months From The Date Of The Reference Court Excluding The Time Taken Under Proviso, The Applicant Whose Land Was Acquired Under The Same Notification But Who Failed To Avail The Remedy Under Section 18, Would Be Entitled To Avail The Right And Remedy Under Section 28A. The Order And Judgment Of The High Court Does Not Give Such Right. Thus, This Court Held That Section 28-A Does Not Apply To An Order Made By The High Court For Redetermination Of The Compensation. Thus, We Hold That The Question Of Reference To The Constitution Bench Does Not Arise. The Claimants Are Not Entitled To Make An Application For Redetermination Of Compensation Under Section 28-A(1) After The Judgment Of The High Court; Nor Are The Claimants Entitled To Avail Of That Award Which Is More Beneficial To The Claimants, I.e., The High Court Judgment."
(emphasis Supplied)

Thus, The Application Filed Under Section 28-A Of The Act For Claiming The Enhancement Of The Compensation Was Not Maintainable.
The Second Issue That Arises For Consideration Is Whether The Application Filed Under Section 28-A Of The Act Can Be Entertained If It Is Filed Beyond The Time Prescribed In The Section.
The Reference Court Made The Award On 31 March 1987. The Application Was Required To Be Filed Within Three Months From The Date Of The Award Of The Reference Court. However, It Was Filed Only On 14 May 2012 After A Lapse Of Almost Twenty-five Years.
This Issue Was Examined By The Supreme Court In State Of Andhra Pradesh Vs. Marri Venkaiah5 And It Was Held That Time Cannot Be Extended On The Ground Of Knowledge Of The Award. The Relevant Observations Are :
"7. "Plain Language Of The Aforesaid Section Would Only Mean That The Period Of Limitation Is Three Months From The Date Of The Award Of The Court. It Is Also Provided That In Computing The Period Of Three Months, The Day On Which The Award Was Pronounced And The Time Requisite For Obtaining The Copy Of The Award Is To Be Excluded. Therefore, The Aforesaid Provision Crystallises That Application Under Section 28-A Is To be Filed Within Three Months From The Date Of The Award By The Court By Only Excluding The Time Requisite For Obtaining The Copy. Hence, It Is Difficult To Infer Further Exclusion Of Time On The Ground Of Acquisition Of Knowledge By The Applicant."
(emphasis Supplied)

The Supreme Court Clarified That The Limitation Of Three Months Would Not Commence From The Date Of The Knowledge Of The Award But From The Date Of The Award And In This Context, Distinguished The Earlier Decision Of The Supreme Court Rendered In Harish Chandra Raj Singh Vs. Land Acquisition Officer6 Since That Related To Limitation Provided For Under Section 18 Of The Act. In This Connection, The Relevant Paragraphs Are As Follows:
"11 .......In That Case, The Court Interpreted The Proviso To Section 18 Of The Act And Held That Clause (a) Of The Proviso Was Not Applicable In The Said Case Because The Person Making The Application Was Not Present Or Was Not Represented Before The Collector At The Time When He Made His Award. The Court Also Held That Notice From The Collector Under Section 12(2) Was Also Not Issued, Therefore, That Part Of Clause (b) Of The Proviso Would Not Be Applicable. The Court, Therefore, Referred To The Second Part Of The Proviso Which Provides That Such Application Can Be Made Within Six Months From The Date Of The Collector's Award. In The Context Of The Scheme Of Section 18 Of The Act, The Court Held That The Award By The Land Acquisition Officer Is An Offer Of Market Price By The State For Purchase Of The Property. Hence, For The Said Offer, Knowledge, Actual Or Constructive, Of The Party Affected By The Award Was An Essential Requirement Of Fair Play And Natural Justice. Therefore, The Second Part Of The Proviso Must Mean The Date When Either The Award Was Communicated To The Party Or Was Known By Him Either Actually Or Constructively.
12. The Aforesaid Reasoning Would Not Be Applicable For Interpretation Of Section 28-A Because There Is No Question Of Issuing Notice To Such An Applicant As He Is Not A Party To The Reference Proceeding Before The Court. The Award Passed By The Court Cannot Be Termed As An Offer For Market Price For Purchase Of The Land. There Is No Duty Cast Upon The Court To Issue Notice To The Landowners Who Have Not Initiated Proceedings For Enhancement Of Compensation By Filing Reference Applications; Maybe, That Their Lands Are Acquired By A Common Notification Issued Under Section 4 Of The Act. As Against This, Under Section 18 It Is The Duty Of The Collector To Issue Notice Either Under Section 12(2) Of The Act At The Time Of Passing Of The Award Or In Any Case The Date To Be Pronounced Before Passing Of The Award And If This Is Not Done Then The Period Prescribed For Filing Application Under Section 18 Is Six Months From The Date Of The Collector's Award."
(emphasis Supplied)
The Supreme Court Referred The Earlier Decisions Rendered By It In Union Of India Vs. Mangtu Ram7 And Tota Ram Vs. State Of U.P.8 Wherein The Same Issue Was Dealt With.
In State Of Orissa And Ors. Vs. Chitrasen Bhoi9, The Supreme Court Also Observed That The Limitation For Filing The Application Under Section 28-A Of The Act Would Commence From The Date Of The Making Of The Award By The Reference Court And The Delay In Filing The Application Cannot Be Condoned.
In Pradeep Kumari, The Supreme Court Clarified That The Limitation Would Not Apply From The Date Of The First Award Of The Reference Court And That It Was Permissible To Even Make An Application To The Collector On The Basis Of A Subsequent Award Made By The Reference Court But That Application Had To Be Made Within The Limitation From The Date Of The Subsequent Award.
The Supreme Court In Popat Bahiru Goverdhane And Ors. Vs. Special Land Acquisition Officer And Anr.10 Again Reiterated That The Period Of Limitation Cannot Be Extended And The Relevant Observations Are :
"8. The Sole Question For The Consideration Of The Court Is Whether Limitation For Filing The Application For Re-determination Of The Compensation Under Section 28A Of The Act Would Commence From The Date Of The Award Or From The Date Of Knowledge Of The Court's Award On The Basis Of Which Such Application Is Being Filed?.
.....................

10. The Issue Involved Herein Is No More Res-integra. The Appellants' Case Before The High Court As Well As Before Us Has Been That The Limitation Would Commence From The Date Of Acquisition Of Knowledge And Not From The Date Of Award. Though, Shri Gaurav Agarwal, Learned Counsel For The Appellants, Has Fairly Conceded That There Is No Occasion For This Court To Consider The Application Of The Provisions Of The Limitation Act, 1963 (hereinafter Called The ''Act 1963') Inasmuch As The Provisions Of Section 5 Of The Said Act.
.................
13.  This Court In Union Of India & Ors. V. Mangatu Ram & Ors.; And Tota Ram V. State Of U.P. & Ors. Dealt With The Issue Involved Herein And Held That As The Land Acquisition Collector Is Not A Court And Acts As A Quasi Judicial Authority While Making The Award, The Provisions Of The Act 1963 Would Not Apply And, Therefore, The Application Under Section 28-A Of The Act, Has To Be Filed Within The Period Of Limitation As Prescribed Under Section 28-A Of The Act. The Said Provisions Require That An Application For Re-determination Is To Be Filed Within 3 Months From The Date Of The Award Of The Court. The Proviso Further Provides That The Period Of Limitation Is To Be Calculated Excluding The Date On Which The Award Is Made And The Time Requisite For Obtaining The Copy Of The Award.
...................
16. It Is A Settled Legal Proposition That Law Of Limitation May Harshly Affect A Particular Party But It Has To Be Applied With All Its Rigour When The Statute So Prescribes. The Court Has No Power To Extend The Period Of Limitation On Equitable Grounds. The Statutory Provision May Cause Hardship Or Inconvenience To A Particular Party But The Court Has No Choice But To Enforce It Giving Full Effect To The Same. The Legal Maxim "dura Lex Sed Lex" Which Means "the Law Is Hard But It Is The Law", Stands Attracted In Such A Situation. It Has Consistently Been Held That, "inconvenience Is Not" A Decisive Factor To Be Considered While Interpreting A Statute. "A Result Flowing From A Statutory Provision Is Never An Evil. A Court Has No Power To Ignore That Provision To Relieve What It Considers A Distress Resulting From Its Operation."

In The Instant Case, The Reference Court Gave The Award On 31 March 1987. The Application Under Section 28-A Of The Act Was Filed On 14 May 2012. It Was Clearly Beyond Three Months From The Date Of The Award Of The Reference Court. It Was, Therefore, Barred By Limitation.
No Relief, Therefore, Can Be Granted To The Petitioner.
The Writ Petition Is, Accordingly, Dismissed

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