Heard Sri Shri Krishna Mishra, learned counsel for the petitioners and Sri Suresh Singh, learned Additional Chief Standing Counsel appearing for the State respondents.
No Acts & Articles mentioned in this case
1
AFR
Court No. 3
Case : WRIT C No. 7218 of 2019
Petitioner : Tejpal Singh And 5 Others
Respondent : State Of U.P. And 3 Others
Counsel for Petitioner : Shri Krishna Mishra
Counsel for Respondent : C.S.C.,Kaushalendra Nath Singh
Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1.Heard Sri Shri Krishna Mishra, learned counsel for the
petitioners and Sri Suresh Singh, learned Additional Chief
Standing Counsel appearing for the State respondents.
2.By means of the present writ petition, a direction has been
sought to respondent no.4/Additional District Magistrate (Land
Revenue) Noida, Gautam Budh Nagar to take a decision on the
application of the petitioners dated 26.09.2014 filed under
Section 28A of the Land Acquisition Act, 1894
1
within a
stipulated period and a further direction to the respondents to
redetermine the compensation awarded to the petitioners at the
rate of Rs.297/sq. yard i.e. the rate determined in terms of the
judgment and order passed in First Appeal No.326 of 2009.
3.The brief facts of the case are set out herein below.
4.Pursuant to a notification dated 22.03.1983 issued under
Section 4(1) of the Act, 1894 an award was made on 09.05.1985
by the Special Land Acquisition Officer, Ghaziabad in respect of
certain land parcels situate in Village Chhalera Khadar, Pargana
and Tehsil Dadri, District Ghaziabad (now part of District
Gautam Budh Nagar).
1The Act, 1894
Neutral Citation No. - 2019:AHC:219310-DB
2
5.It is submitted by the learned counsel for the petitioners
that against the award dated 09.05.1985 the predecessors in
interest of the petitioners did not file any application under
Section 18 of the Act, 1894. However, against the award certain
other persons filed applications giving rise to land acquisition
references which were decided by the District Judge, Gautam
Budh Nagar vide order dated 31.01.2003, and the compensation
amount was redetermined.
6.Against the the judgment and order dated 31.01.2003
passed by the District Judge, Gautam Budh Nagar in the land
acquisition references, a First Appeal No.326 of 2009 was filed
before this Court which came to be decided vide judgment dated
24.07.2014 and the compensation amount was again
redetermined. Claiming the benefit of the redetermination of
compensation amount in terms of the judgment and order dated
24.07.2014 passed in First Appeal No.326 of 2009, an
application under Section 28A was filed by the petitioners on
26.09.2014 making a prayer for granting them benefit of
redetermination of compensation amount in terms of the order
passed in First Appeal No.326 of 2009. The present writ petition
has been filed seeking a direction to respondent no.4 to take a
decision on the application dated 26.09.2014 filed by the
petitioners under Section 28A and for redetermination of the
compensation awarded to the petitioners and payment of the
same on the basis of rates redetermined in terms of the judgment
and order passed in First Appeal No.326 of 2009 decided on
24.07.2014.
7.Learned counsel for the petitioners submits that the
application under Section 28A of the Act, 1894 filed on
26.09.2014, was within the three months period of limitation
from the date of the judgment/order dated 24.07.2014 passed in
3
First Appeal No.326 of 2009, and accordingly, the respondent
no.4 be directed to decide the pending application under Section
28A. In this regard, reliance has been placed upon a judgment of
this Court in First Appeal No.522 of 2009 (Pradeep Kumar Vs.
State of UP & Anr.) and connected appeals decided on
21.04.2016 to contend that the Court as referred under Section
28A would necessarily include the first appellate court as the
appeal under Section 54 is a continuation of the original
proceedings.
8.Per contra, learned Additional Chief Standing Counsel
submits that the three month period of limitation provided to file
an application under Section 28A of the Act, 1894 is to be
reckoned from the date of the award made by Reference Court,
and in this case the Reference Court having made the award on
31.01.2003, the application dated 26.09.2014 filed by the
petitioners was highly time barred, and no direction as sought by
the petitioners could be issued.
9.In order to appreciate the controversy, we may refer to the
relevant statutory provision as contained under Section 28A of
the Act, 1894.
“28A. Redetermination 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, subsection (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 redetermined 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 subsection,
the day on which the award was pronounced and the time
requisite for obtaining a copy of the award shall be excluded.
4
(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 subsection
(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.”
10.The core question which arises in the present case is as to
whether the three months limitation for filing the application
under Section 28A of the Act, 1894 is to be reckoned from the
date of the award made by the Reference Court or the date of
the judgment of the High Court in the first appeal.
11.A plain reading of Section 28A would show that where in
an award under Part III, 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 redetermined on the basis of the amount
of compensation awarded by the court.
12.The expression “Court” has been defined under Section
3(d) of the Act, 1894 to mean “a principal Civil Court of original
jurisdiction”.
13.It is thus clear that the redetermination can be claimed
only in reference to an award passed by the “Court” under Part
III of the Act, 1894 which comprises Sections 18 to 28A. The
5
expression “Court” which has been referred under Section 28A is
the Court as defined under Section 3(d) to mean “a principal
Civil Court of original jurisdiction”. It clearly goes to show that
the award which is being referred to under Section 28A(1) is the
award made by Reference Court alone. The application under
Section 28A thus cannot be filed for redetermination of
compensation on the basis of the award as made by the High
Court in the first appeal.
14.In this regard we may refer to the judgment in the case of
Babua Ram & Ors. Vs. State of UP & Anr.
2
, the relevant portion
of which is being extracted below:
“19. The next question is as to when the period of limitation of
three months begins to run under Section 28A 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 28A(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 subsection (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) CPC 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 CPC. Hence, the award of the court referred to in subsection
(1) of Section 28A 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.
2(1995) 2 SCC 689
6
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 subsection (1) of
Section 28A. 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.”
15.The aforementioned judgment was followed in the case of
Union of India & Ors. Vs. Karnail Singh & Ors.
3
, and it was
held that the limitation of three months for making an
application for redetermination of compensation must be
computed from the date of earliest award made by the Civil
Court and not the judgment of the Appellate Court. The relevant
observations in this regard are as follows:
“5. Thus, it would be clear that cause of action for making an
application under Section 28A would arise when an award has
been made by the civil court, on a reference under Section 18,
enhancing the compensation over and above the amount awarded
by the Collector in his award under Section 11 and the earliest of
the successive awards would furnish the starting period of the
limitation of three months as provided in the proviso to Section
28A(1). It is seen that the earliest award was made on 317
1979 by which date the Amendment Act had not come into force.
The Land Acquisition (Amendment) Act, 1984 (68 of 1984) has
given prospective operation to Section 28A from 2491984.
Therefore, it does not furnish any right to the claimants to make
any application after the Act has come into force. The latter
award dated 1531990 does not give any fresh right or cause of
action to file an application under Section 28A(1). The question
then is whether the claimants are entitled to make an application
after the appeal was allowed by this Court from appeals arising
from one of the references. This question also was considered in
the same judgment and it was held that it does not furnish any
cause of action. This was also the view of another threeJudge
Bench of this Court in Scheduled Castes Cooperative Land Owning
Society v. Union of India (1991) 1 SCC 174. Therefore, we are of
3(1995) 2 SCC 728
7
the firm view that the judgment and order of this Court
enhancing the compensation on 2481987 does not furnish any
cause of action to make the application under Section 28A.”
16.We may take note of the fact that in a subsequent
judgment a threeJudge Bench of the Supreme Court in Union of
India & Anr. Vs. Pradeep Kumari & Ors.
4
disagreed with the
view expressed in Babua Ram (supra) and Karnail Singh
(supra) and it was held that the benefit of redetermination of the
amount of compensation under Section 28A can be availed of on
the basis of any of the awards that had been made by the Court.
The relevant observations made in the judgment are as follows:
“12. We are, therefore, unable to agree with the view expressed in
Babua Ram [(1995) 2 SCC 689] and Karnail Singh [(1995) 2
SCC 728] that application under Section 28A for
redetermination of compensation can only be made on the basis of
the first award that is made after the coming into force of Section
28A. In our opinion, the benefit of redetermination of amount of
compensation under Section 28A can be availed of on the basis of
any one of the awards that has been made by the court after the
coming into force of Section 28A provided the applicant seeking
such benefit makes the application under Section 28A within the
prescribed period of three months from the making of the award
on the basis of which redetermination is sought...”
17.In the aforementioned judgment the Court also laid down
the conditions which were required for filing an application
under Section 28A. The observations made in the judgment are
being extracted below:
“10. ...The object underlying Section 28A would be better
achieved by giving the expression “an award” in Section 28A its
natural meaning as meaning the award that is made by the court
in Part III of the Act after the coming into force of Section 28A. If
the said expression in Section 28A(1) is thus construed, a person
would be able to seek redetermination of the amount of
compensation payable to him provided the following conditions
are satisfied:
(i) An award has been made by the court under Part III
after the coming into force of Section 28A;
(ii) By the said award the amount of compensation in
excess of the amount awarded by the Collector under
4(1995) 2 SCC 736
8
Section 11 has been allowed to the applicant in that
reference;
(iii) The person moving the application under Section 28A
is interested in other land covered by the same notification
under Section 4(1) to which the said award relates;
(iv) The person moving the application did not make an
application to the Collector under Section 18;
(v) The application is moved within three months from the
date of the award on the basis of which the
redetermination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28A
for redetermination of compensation by an applicant.”
18.In Jose Antonio Cruz Dos R. Rodriguese & another. Vs.
Land Acquisition Collector & another
5
a threeJudge Bench of
the Supreme Court held that the limitation of three months for
making application for redetermination of compensation must be
computed from the date of award of Reference Court on the
basis of which redetermination is sought and not from the order
of the Appellate Court dealing with the appeal against the award
of the Reference Court. We may refer to the relevant
observations made in this regard:
“2. The question which arises for determination in these two
appeals is whether the period of three months prescribed for
making an application for redetermination of the amount of
compensation under Section 28A of the Land Acquisition Act,
1894 (hereinafter called 'the Act') begins to run against the
applicant from the date of the award under Section 18 of the Act
or even from the date of the decision of the appeal, if any,
preferred against the award...
3. Before examining the decisions of this Court on which the High
Court has placed reliance, we deem it appropriate to first examine
the plain language of Section 28A extracted earlier. Section 28A
was inserted as the last section in Part III entitled “Reference to
Court and Procedure thereon” by Act 68 of 1984. Part III begins
with Section 18 which provides that if an interested person does
not accept the award made by the Collector under Section 11 of
the Act, he may, by a written application to the Collector, require
that the matter be referred for determination of the court. Section
2(d) defines the expression ‘Court’ to mean the principal civil
court of original jurisdiction unless a Special Judicial Officer has
been appointed. Therefore, the court referred to under Section 18
5(1996) 6 SCC 746
9
can only mean the principal civil court of original jurisdiction.
Section 23 then sets out the matters to be taken into
consideration in determining the compensation to be awarded for
the acquired land, and Section 24 indicates the matters to be
omitted from consideration. Section 26 provides that the award
shall be in writing signed by the Judge which shall be deemed to
be a decree within the meaning of clauses (2) and (9) of Section 2
of the Civil Procedure Code, 1908. Section 27 provides for costs to
be awarded and Section 28 provides for payment of interest on
excess compensation. We then come to Section 28A. The first part
of the section begins with the words “Where in an award under
this part, Court allows to the applicant any amount of
compensation in excess of the amount awarded by the Collector
under Section 11” which clearly indicate that the legislature was
talking of an award made under the provisions of Part III, i.e., an
award under Section 11 and therefore, in that context, reference
to ‘Court’ can only mean the court to which a reference is made by
the Collector under Section 18. This position is further clarified
when the section refers to compensation awarded in excess of the
amount awarded under Section 11 of the Act. The second part of
the section then addresses “the persons interested in all the other
land covered by the same notification … and who are also
aggrieved by the award” and permits them to make a written
application to the Collector “within three months from the date of
the award of the Court” requiring him to redetermine the amount
of compensation on the basis of the amount awarded by the
Court, notwithstanding the fact that they had not sought a
reference under Section 18 of the Act. Thus, the newly added
section seeks to give the same benefit, which a person who had
sought a reference and had secured the Court's award for a higher
amount of compensation had received, to those who had, on
account of ignorance or financial constraints, not sought a
reference under Section 18. In the latter part of the section also,
reference is to the award under Section 11 and later, to the award
of the Reference Court under Section 18 of the Act. Therefore, the
court referred to therein is again the court referred to in Section
2(d) of the Act, i.e., the principal civil court of original
jurisdiction. The plain language of Section 28A, therefore,
prescribes the three months' period of limitation to be reckoned
from the date of the award by the Court disposing of the reference
under Section 18, and not the appellate court dealing with the
appeal against the award of the Reference Court.”
19.The contention that Section 28A of the Act, 1894 would
also apply to a judgment made by the High Court under Section
54 was repelled in the case of Union of India Vs. Bant Ram
6
and it was reiterated that redetermination of compensation can
6(1996) 4 SCC 537
10
be claimed only on the basis of an award under Section 18 and
not the judgment passed by the High Court under Section 54,
and it was held as follows:
“4. ...the learned Senior Counsel for the respondent has contended
that Section 28A would apply not only when an award is made
by the court under Section 26 but also when judgment is made by
the High Court under Section 54 of the Act. We find no force in
this contention. Section 28A itself specifically refers to
applicability of Chapter III; in other words, Chapter III would be
applicable to a reference made under Section 18 to the court. The
marginal note indicates redetermination of the compensation on
the basis of the award of the court. Section 3(d) defines ‘court’ to
mean a principal civil court of original jurisdiction or a Court of
Special Judicial Officer. Subsection (1) of Section 28A envisages
“allowing applications”, i.e., reference application filed under
Section 18 in Part III. Moreover Section 54 falls in Chapter VIII of
the Act. Therefore, judgment and decree of the appellate
court/High Court does not encompass the award of the court
referred to in Section 28A. The controversy is no longer res
integra. Babua Ram v. State of U.P. [(1995) 2 SCC 689] and
hosts of other decisions following that, cover the field. Therefore,
the conclusion is inevitable that the application for
redetermination of the compensation under Section 28A would
not lie after the judgment of the High Court under Section 54 of
the Act.”
20.The view that Section 28A does not apply to an order made
by the High Court and that the claimant could seek
redetermination of the compensation only on the basis of the
award of the Reference Court and not the judgment of the High
Court was reiterated in Bhagti (Smt.) (deceased) Vs. State of
Haryana
7
. It was further held that an application for
redetermination of compensation that was filed within three
months from the date of the judgment of the High Court but
beyond the limitation from the date of the award of the
Reference Court, was not maintainable. The observations made
in this regard in the aforesaid judgment are being extracted
below:
“6. Thus only those claimants who had failed to apply for a
reference under Section 18 of the Act are conferred with the right
7(1997) 4 SCC 473
11
to apply for redetermination under Section 28A(1). But all those
who had not only sought a reference under Section 18 but had
also filed an appeal in the High Court against the award made by
the Reference Court are not entitled to avail of the remedy under
Section 28A. 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 the proviso, the applicant
whose land was acquired under the same notification but who
failed to avail of the remedy under Section 18, would be entitled
to avail of 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 28A 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
28A(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.”
21.The view taken in the judgments of Bant Ram (supra) and
Bhagti (supra) has been followed in a subsequent judgment in
State of Orissa & Ors. Vs. Chitrasen Bhoi
8
, and it was stated as
follows:
“11. In Bhagti v. State of Haryana [(1997) 4 SCC 473] this
Court held that a claimant can seek redetermination of
compensation on the basis of the award of the Reference Court
and not the judgment of the High Court and further held that
only those claimants who had failed to apply for a reference under
Section 18 of the Act are conferred with the right to apply for
redetermination under Section 28A(1) of the Act. The same view
has been reiterated in Union of India v. Bant Ram [(1996) 4 SCC
537].”
22.We may also refer to the judgments in Smt. Kamla Tomar
Vs. State of UP & 2 Ors.
9
and Dheer Singh & 3 Ors. Vs. State of
UP & 3 Ors.
10
, wherein Coordinate Division Benches of this
Court have taken the same view.
23.The aforementioned proposition of law that an application
under Section 28A can be made only on the basis of the
8(2009) 17 SCC 74
92017 (3) ADJ 659
102017 (3) ADJ 545
12
judgment made by the Reference Court was thereafter reiterated
in Bharatsing & Ors. Vs. State of Maharashtra and Ors.
11
following the judgments in the case of Pradeep Kumari (supra)
and Jose Antonio Cruz (supra).
24.The precise question as to whether an application under
Section 28A of the Act, 1894 for redetermination of
compensation can be filed within the period of three months
from the date of judgment of the High Court or the Supreme
Court passed in appeal under Section 54 of the Act, 1894 fell for
consideration in a recent judgment in the case of Ramsingbhai
(Ramsangbhai) Jerambhai Vs. State of Gujrat & Anr.
12
, and it
was held as follows:
“1. ...Whether an application under Section 28A of the Land
Acquisition Act, 1894 (for short “the Act”) for redetermination
of the compensation can be filed within a period of 3 months
from the date of judgment of the High Court or Supreme Court
passed in appeal under Section 54 of the Act is the question that
arises for consideration in this case.
2. Section 28A(1) of the Act reads as follows:
“28A. Redetermination 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 subsection (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 redetermined 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 subsection, the day on which the award was
pronounced and the time requisite for obtaining a copy of
the award shall be excluded.”
(emphasis supplied)
11(2018) 11 SCC 92
12(2018) 16 SCC 445
13
3. It is clear from the opening words of the provision that the
redetermination under Section 28A is available only in respect of
an “award” passed by the “court” under Part III of the Act,
comprising Sections 18 to 28A (both inclusive). The “Court”
referred to in Section 28A of the Act is the Court as defined under
Section 3(d) to mean “… a Principal Civil Court of Original
Jurisdiction …”. Thus, the judgment of the appellate court is not
within the purview of Section 28A. It is also to be noted that the
appellate courts under Section 54 are under Part VIII of the Act
whereas the redetermination is only in respect of the award
passed by the Reference Court under Part III of the Act. [See Jose
Antonio Cruz Dos R. Rodriguese v. LAO [(1996) 6 SCC 746]. In
its recent judgment in Bharatsing v. State of Maharashtra
[(2018) 11 SCC 92 : (2018) 5 SCC (Civ) 44], this Court has
surveyed the decisions on this issue and reiterated the legal
principle.
4. What the appellant seeks is redetermination of compensation
under the Act in terms of the judgment in Ramsingbhai v. State of
Gujarat [2014 SCC OnLine Guj 5840 : 2015 AIR CC 1046] of the
High Court passed under Section 54 of the Act. In view of the
settled legal position which we have explained above, the
appellant is not entitled to such a relief; his entitlement, if any, is
only in terms of Section 28A of the Act based on the award of the
Reference Court.”
25.In view of the aforesaid discussion, it is legally well settled
that the application under Section 28A for redetermination of
compensation is to be filed on the basis of the award passed by
the Reference Court and not on the basis of the judgment of the
High Court in first appeal.
26.In the case at hand, the application under Section 28A
having admittedly been filed on 26.09.2014 after the petitioners
came to know of the judgment dated 24.07.2014 passed in First
Appeal No.326 of 2009, the application was clearly much beyond
the prescribed period of three months from the date of the award
of the Reference Court i.e. 31.01.2003.
27.The question which now falls for consideration is as to
whether the application filed under Section 28A of the Act, 1894
can be entertained even if it is filed beyond the prescribed time
period of three months from the date of award of the Reference
14
Court.
28.The proviso to subsection (1) of Section 28A only provides
for exclusion of the time requisite for obtaining a copy of the
award, and does not provide for extension of the time period on
any other ground. This issue was considered in the case of State
of A.P. Vs. Marri Venkaiah and Ors.
13
, and it was held that the
limitation of three months period would not commence from the
date of acquisition of knowledge of the award. The relevant
observations made in the judgment are as follows:
“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
crystallizes that application under Section 28A 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.
x x x x x
10. In our view, with regard to the first contention that Section
28A is a beneficial provision, there cannot be any dispute.
However, the advantage of the benefit which is conferred is
required to be taken within the stipulated time. A landowner may
be poor or illiterate and because of that he might not have filed
reference application but that would not mean that he could be
negligent in not finding out whether other landowners have filed
such applications. Whosoever wants to take advantage of the
beneficial legislation has to be vigilant and has to take
appropriate action within the prescribed time. He must at least be
vigilant in making efforts to find out whether the other landowner
has filed any reference application and if so, what is the result. If
that is not done then the law cannot help him. Admittedly, in the
present case, award enhancing the compensation was pronounced
by the civil court by order dated 29111984 and applications
were filed on 27111989 i.e. after a lapse of 5 years. In such
case, as the applicant was having an opportunity of knowing the
award and/or he was required to make efforts of knowing about
such proceedings, he must be presumed to have had knowledge of
the award. If the contention of the learned counsel for the
respondents is accepted, it will create total vagueness and
13(2003) 7 SCC 280
15
uncertainty as the landowners can claim that they have come to
know of the award after a long lapse of time and, therefore, the
application even though beyond time may be entertained. If such
applications are entertained, there may not be any finality to the
award and payment of compensation. Result may be that such
proceedings may adversely affect where land is acquired by the
Government for a project which is to be carried out by local
bodies.
11. The learned counsel for the respondents relied upon the
decision of this Court in Raja Harish Chandra Raj Singh v. Dy.
Land Acquisition Officer [AIR 1961 SC 1500 : (1962) 1 SCR
676] which is approved by a threeJudge Bench in State of Punjab
v. Qaisar Jehan Begum [AIR 1963 SC 1604 : (1964) 1 SCR 971].
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 28A 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.”
29.In the aforementioned case the judgments in Jose Antonio
16
Cruz Dos R. Rodriguese and another Vs. Land Acquisition
Collector and another, Union of India Vs. Mangatu Ram
14
and
Tota Ram Vs. State of UP
15
were relied upon and the earlier
judgments in Harish Chandra Raj Singh Vs. Land Acquisition
Officer
16
and State of Punjab Vs. Qaisar Jehan Bagum
17
were
distinguished.
30.The question with regard to applicability of Section 5 of
the Limitation Act, 1963
18
to proceedings before the Collector
under Section 28A of the Act, 1894 was considered in the case of
Popat Bahiru Govardhane and Ors. Vs. Special Land
Acquisition Officer and another
19
, and it was reiterated that the
Act, 1963 applied to courts and not to quasi judicial authorities.
It was also held that it was not permissible to extend the period
of limitation on equitable grounds if the statute does not permit
the same. The relevant observations made by the Supreme Court
in the aforementioned case are as follows:
“8. The sole question for the consideration of the Court is whether
limitation for filing the application for redetermination 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?
x x x x x
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 1963 Act”) inasmuch as the
provisions of Section 5 of the said Act.
x x x x x
13. This Court in Union of India v. Mangatu Ram [(1997) 6 SCC
14(1997) 6 SCC 59
15(1997) 6 SCC 280
16AIR 1961 SC 1500
17AIR 1963 SC 1604
18The Act, 1963
19(2013) 10 SCC 765
17
59 : AIR 1997 SC 2704] and Tota Ram v. State of U.P. [(1997) 6
SCC 280] 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
1963 Act would not apply and, therefore, the application under
Section 28A of the Act, has to be filed within the period of
limitation as prescribed under Section 28A of the Act. The said
provisions require that an application for redetermination 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.
14. In State of A.P. v. Marri Venkaiah [(2003) 7 SCC 280 : AIR
2003 SC 2949] , this Court reconsidered the aforesaid judgments
including the judgment in Harish Chandra Raj Singh [AIR 1961
SC 1500] and held that the statute provides limitation of 3
months from the date of award by the court excluding the time
required for obtaining the copy from the date of award. It has no
relevance so far as the date of acquisition of knowledge by the
applicant is concerned. In view of the express language of the
statute, the question of knowledge did not arise and, therefore,
the plea of the applicants that limitation of 3 months would begin
from the date of knowledge, was clearly unsustainable and could
not be accepted. The Court also rejected the contention of the
applicants that a beneficial legislation should be given a liberal
interpretation observing that whosoever wants to take advantage
of the beneficial legislation has to be vigilant and has to take
appropriate action within the timelimit prescribed under the
statute. Such an applicant must at least be vigilant in making
efforts to find out whether the other landowners have filed any
reference application and if so, what is the result thereof. If that is
not done then the law cannot help him. The ratio of the judgment
in Harish Chandra Raj Singh [AIR 1961 SC 1500] was held to be
nonapplicable in case of Section 28A of the Act.
“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
18
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 28A 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.”
A similar view has been reiterated by this Court in Des Raj
[(2004) 7 SCC 753 : AIR 2004 SC 5003] and Chitrasen Bhoi
[(2009) 17 SCC 74].
x x x x x
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.”
(See Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529],
AIR p. 535, para 14 and Rohitash Kumar v. Om Prakash Sharma
[(2012) 13 SCC 792 : AIR 2013 SC 30].”
31.In the present case, the petitioners in terms of their
application dated 26.09.2014 have sought redetermination of
compensation under Section 28A of the Act, 1894 in terms of the
judgment of the High Court dated 24.07.2014 passed in First
19
Appeal No.326 of 2009.
32.In view of the legal position which we have discussed
above, the petitioners are not entitled to such a relief, inasmuch
as entitlement, if any, in terms of Section 28A is to be based on
the award of the Reference Court. Moreover, the Reference
Court having made the award on 31.01.2003, the application
dated 26.09.2014 filed by the petitioners under Section 28A is
much beyond the three months period provided for making the
application.
33.Accordingly, no direction as sought by the petitioners in
terms of the relief clause of the present writ petition can be
granted. The writ petition is devoid of merits and is dismissed.
Order Date : 8.3.2019
Shahroz
(Dr. Y.K. Srivastava,J.) (Pankaj Kumar Jaiswal,J.)
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