B.S. Chauhan, C.J.
1. This Writ Petition has been filed for setting aside the order passed by the Special Land Acquisition Officer, MIP, Jagatsinghpur in favour of Opposite Party Nos. 2 and 3 making reference under Section 28A of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act').
2. The facts and circumstances giving rise to this case are that a large track of area stood notified under the provisions of Section 4 of the Act on 30th June, 1982 (Annex.-1) including the land in dispute. Declaration under Section 6 of the Act was made in respect of the said area including the land involved herein vide notification dated 6.12.1982 (Annex-2). The Special Land Acquisition Officer assessed the market value of the land at the rate of Rs. 12,500 per acre. Subsequent thereto, some persons filed an application for reference under Section 18 of the Act and in L.A. Misc. Case No. 350 of 1995 the Court of Learned Civil Judge (S.D), Jagatsinghpur, the Learned Civil Judge (S.D.), Jagatsinghpur made an award under Section 18 of the Act on 10.3.1988 assessing the market value at the rate of Rs. 50,000 per acre and also awarded other benefits permissible under the law. Opposite Party Nos. 2 and 3, Shri Pitambar Barik and Biswambar Barik, claimed to have filed an application under Section 28-A of the Act claiming the same amount i.e. Rs. 50,000 per acre as compensation on 2.11.1998. Objections were filed contending that the application was barred by time and the applicants were not entitled for any additional award under Section 28-A. However, by Order Dated 10.5.2005 the application has been allowed making a reference to other materials facts observing that application had been filed within limitation. Hence this Writ Petition.
3. Mr. Ganeswar Rath, Learned Counsel appearing for the Petitioner has submitted that the said applications under Section 28-A were not maintainable. The applications have been decided m a mechanical manner making observation that the application had been filed in time, though no re as on has been given by the Special Land Acquisition Officer for reaching the said conclusion. Hence, this petition deserves to be allowed.
4. On the other hand, Mr. K.K. Jena and Mr. S. Ray Learned Counsel appearing for the claimants have vehemently contended that the Special Land Acquisition Officer has recorded the conclusion that the application was filed within time after examining the record of the case. Thus, there can be no scope for interference with the order. The petition is liable to be rejected.
5. We have considered the rival submissions of the Learned Counsel for the parties and perused the record.
6. Section 28-A was introduced by the Land Acquisition (Amendment) Act, 1984.
7. the scope of provisions of Section 28-A was considered by the Supreme Court in Mewa Ram v. State of Haryana, : [1986]3SCR660 , and the Court placed emphasis particularly on para 2 (ix) of the object and reasons which provided for a special provision for inarticulate and poor people to apply for re-determination of the compensation amount on the basis of the Court award in a land acquisition reference filed by comparatively affluent land owner. The Apex Court observed as under:
Section 28-A in terms does not apply to the case of the Petitioners.... They do not belong to that class of society for whose benefit the provision is intended and meant, i.e. inarticulate and poor people who by reason of their poverty and ignorance have failed to take advantage of the right of reference to the civil Court under Section 18 of the Land. Acquisition Act, 1894. On the contrary, the Petitioners belong to an affluent class....
8. The Apex Court approved the law laid down in Mewa ram (Supra) again in Scheduled Caste Cooperative Land Owning Society Ltd. Bhatinda v. Union of India and Ors. : AIR1991SC730 .
9. In Babua Ram and Ors. v. State of U.P. and Anr. : (1995)2SCC689 , the Apex Court again approved and reiterated the law laid down in Mewa Ram (Supra) observing as under:
Legislature made a discriminatory policy between the poor and inarticulate as one class of persons to whom the benefit of Section 28-A was to be extended and comparatively affluent who had taken advantage of the reference under Section 18 and the latter as a class to which the benefit of Section 28-A was not extended. Otherwise, the phraseology of the language of the non-obstante clause would have been differently worded... It is true that the legislature intended to relieve hardship to the poor, indigent and inarticulate interested persons who generally failed to avail the reference under Section 18 which is an existing bar and to remedy it, Section 28-A was enacted-giving a right and remedy for re-determination...The legislature appears to have presumed that the same state of affairs continue to subsist among the poor and inarticulate persons and they generally fail to avail the right under Sub-section (1) of Section 18 due to poverty or ignorance or avoidance of expropriation.
10. Thus, it is apparent that the legislature has carved out an exception in the form of Section 28-A and made a special provision to grant some relief to a particular class of society, namely poor, illiterate, ignorant and inarticulate people. It is made only for 'little Indians'. The provisions of Section 28-A refer to the 'person interested' which means the original owner and that original owner interested must further be a person aggrieved by the award of the Collector.
11. In G. Krishna Murthy and Ors. v. State of Orissa : AIR1995SC1436 ; D Krishna Vani and Anr. v. Estate of Orissa (1995) 2 SCC 735; Union of India and Anr. v. Pradeep Kumari and Ors. : [1995]2SCR703 ; and U.P. State Industrial Development Corporation Ltd. v. State of D.P. and Ors. : (1995)2SCC766 , it has been held by the Supreme Court that a person who prefers Section 18 reference cannot maintain an application under Section 28-A of the Act. The benefit of such an exceptional rule cannot be extended to such persons as it would be against the public policy. The Hon'ble Supreme Court in Union of India v. Shivkumar Bhargava and Ors. AIR 1995 SC 812 , observed that the benefit of State policy which confers certain beneficial rights on a particular class of person is meant only for the person whose land was acquired and by necessary implication 'the subsequent purchaser was elbowed out from the policy and became disentitled to the benefit of the State policy'.
12. In Des Raj and Ors. v. Union of India and Anr. : AIR2004SC5003 it was held by the Hon'ble Supreme Court that if a person has applied under Section 18 of the Act and persued the matter further, he is not entitled to maintain the application under Section 28-A for re-determination of compensation. The Court further held that it is mandatory to file the application within prescribed limitation, which runs from the date of the Award under Section 18 of the Act. While deciding the said case the Court placed reliance upon its earlier Judgments, including Scheduled Caste Co-operative. Land Owning Society Ltd. (supra).
13. In State of Andhra Pradesh and Anr. v. Marri Venkaiah and Ors. : AIR2003SC2949 , the Hon'ble Supreme Court has dealt with the issue of limitation and held as under:
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 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.... In our view, with regard to the first contention that Section 28-A 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....
14. While deciding the said case the Supreme Court placed reliance on its earlier Judgment in Tota Ram v. State of U.P. and Ors. (1997) 6 SCC 280; Union of India and Ors. v. Mangatu Ram and Ors. : [1997]3SCR1121 ; and Jose Antonio Cruz Dos R. Rodriguese v. Land Acquisition Collector and Anr. : AIR1997SC1915 . The Court further rejected the contention that limitation would run from the date of knowledge distinguishing its earlier Judgments on fact and law in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer : [1962]1SCR676 ; and State of Punjab v. Qaisar Jehan Begum : [1964]1SCR971 .
15. In Union of India v. Munshi Ram and Ors. : AIR2006SC1716 , the Apex Court has laid down the law that such an application is maintainable provided a person has not filed an application under Section 18 of the Act. The Court held that Section 28-A seeks to confer the benefit of enhanced compensation on those owners who did not seek Reference under Section 18. In fact under the said provision they are entitled for enhanced compensation decreed by the Reference Court and further as the decreed amount stands modified in appeal by the higher Courts.
16. Therefore, it is evident that an application under Section 28 A has to be dealt with by the Land Acquisition Officer keeping in mind the aforesaid settled legal propositions. In the instant case the impugned order has been passed making reference to the order passed in other application and without taking note of the facts involved in this case. However, in the said case also without giving any explanation/calculation or reason, finding has been recorded that application was filed within limitation. It is nobody's case that all the applications had been filed on the same date & the question of limitation involved in all the cases was the same.
17. It settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order. In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. : AIR1991SC537 , the Apex Court has observed as under:
Every such action may be informed by reason and if follows that an act un-informed by reason is arbitrary, the rule of law contemplates governance by law and not by humour, whim or caprice of the men to whom the governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you.' This is what a man in power must remember always.
18. In Life Insurance Corporation of India v. Consumer Education and Research Centre : AIR1995SC1811 , the Apex Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. 'Duty to act fairly' is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. Same view has been reiterated by the Supreme Court in Union of India v. M.L. Capoor : (1973)IILLJ504SC ; and Mahesh Chandra v. Regional Manager, U.P. Financial Corporation and Ors. : [1992]1SCR616 .
19. In State of West Bengal v. Atul Krishna Shaw and Anr. AIR 1990 SC 2205, the Supreme Court observed that 'giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review.'
20. In S.N. Mukherjee v. Union of India : 1990CriLJ2148a , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
21. In Krishna Swami v. Union of India and Ors. : AIR1993SC1407 , the Apex Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne-out from the record. The Court further observed that 'reasons are the links between the material, the foundation for these erection and the actual conclusions. They would also administer how the mind of the maker was activated and actuated and there rational nexus and syntheses with the facts considered and the conclusion reached. Lest it may not be arbitrary, unfair and unjust, violate Article 14 or unfair procedure offending Article 21.'
22. Similar view has been taken by the Supreme Court in Institute of Chartered Accountants of India v. L.K. Ratna and Ors. : [1987]164ITR1(SC) ; Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. : (1983)ILLJ1SC . In Vasant D. Bhavsar v. Bar Council of India and Ors. : (1999)1SCC45 , the Apex Court held that an authority must pass a speaking and reasoned order indicating the material on which its conclusions are based. Similar view has been reiterated in M/s. Indian Charge Chrome Ltd. and Anr. v. Union of India and Ors. AIR 2003 SC 953; and Secretary, Ministry of Chemicals & Fertilizers, Govt. of India v. CIPLA Ltd. and Ors. : AIR2003SC3078 .
23. Even otherwise, when the Statute does not require recording the reasons the authority even exercising its administrative power is bound to pass a speaking and reasoned order as from the reasons it may be examined as to whether the authority has acted fairly and not arbitrarily. More so, recording reasons is supposed to be the principles of natural justice and requirement of the application of rule of law. It is an indispensable part of sound system of judicial review. More so, recording the reason is essential as the reasons are the links between the material, the foundation for these erections and the actual conclusion. Reasons would also administer how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusion reached. Therefore, it should be evident from the reasons as what was the material on which the authority has based its conclusion. (Vide Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni and Ors. : (1983)ILLJ1SC ; Institute of Chartered Accountants of India v. L.K. Ratna and Ors. : [1987]164ITR1(SC) ; and Union of India and Anr. v. International Trading Co. and Anr. : AIR2003SC3983 .
24. In fiscal statutes the Legislature in its wisdom has conferred competence upon the assessing authority to reopen the assessment provided he has reasons to believe that there is certain income or sale or purchase wherein there has been evasion of tax, the authority may reopen the same. However, in doing so the authority must have some material in his possession on the basis of which such opinion has been formed and he must record the reasons for forming such an opinion. In case the material on the basis of which the opinion is formed is found missing or reasons have not been recorded, the Apex Court has consistently held that order of reopening of assessment would vitiate as not being permissible in law. (Vide S. Narayanappa and Ors. v. Commissioner of Income Tax : [1967]63ITR219(SC) ; Sales Tax Officer v. Uttareswari Rice Mills : [1973]89ITR6(SC) ; Union of India and Ors. v. Rai Singh Deb Singh Bist and Anr. AIR 1974 SC 748; ITO v. Lakhmani Newal Das : [1976]103ITR437(SC) ; and Phool Chand Bajrang Lal and Anr. v. ITO and Anr. : [1993]203ITR456(SC) ).
25. While deciding an issue, the Court is bound to give reasons for conclusion. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice-delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. (Vide State of Orissa v. Dhaniram Luhar : 2004CriLJ1385 ; State of Rajasthan v. Sohan Lal and Ors. : 2004CriLJ3842 ; National Fertilizers Ltd. and Anr. v. P.K. Khanna : (2005)IIILLJ767SC ; and Ramchandra Murarilal Bhattad and Ors. v. State of Maharashtra and Ors. : AIR2007SC401 ).
26.Thus, it is evident from the above' discussion that recording of reasons is a requirement of principles of natural justice and every administrative or judicial order is supposed to be supported by the reasons recorded in writing. This remains the settled legal position, even where does expressly require the forum/authority/statute not Court/Tribunal to record reasons, in writing.
27. In view of the above, it is mandatory on the part of the Special Land Acquisition Officer to record reasons. He was required to make the reference and he ought to have referred to the facts of each applicant separately and record a finding of fact as to whether the application was within limitation or not. The certified copies of the order-sheets of the Special Land Acquisition Officer produced before us do not reveal that any application had ever been made by the present Petitioners, who had filed application under Section 28 A, for obtaining certified copy of the order of the award on which they had relied upon. Therefore, the disputed question of fact involved herein ought to have been decided before making the award.
28. The affidavit dated 5.3.2005 (Annex.-6) filed by one of the applicants in this case reveal that he was transferee of the land for which he was claiming compensation. Nowhere it reveals the date on which the transfer had been made in their favour. In case the transfer is subsequent to Section 4 notification or in proximity thereof, the applicants cannot be entitled to the compensation more than the consideration money what had been paid by him. Application under Section 28-A, in such situation, could not be maintainable. The Hon'ble Apex Court in The Dollar Company, Madras v. Collector of Madras : AIR1975SC1670 , considered the issue and held as under:
We may even say that the best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale is of recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value.... Instead of wandering around neighbouring lands or guessing as to what the price of the disputed land might have been, we have before us the actual purchase of the suit property by the Appellant himself and he has not set up any case of special features or circumstances depressing the land value or affecting the particular transaction so that one could ignore that sale as the product of artificial circumstances. We have thus a situation where the law should express a Judgment from the experience of the Appellant himself as against a Judgment from speculation based on other transactions.
Thus, it is evident that in case the Section 4 notification in respect of a particular land is in close proximity of the sale of the said land, the person interested cannot claim more than what he has paid unless he establishes by adducing evidence that in special circumstances the market value of the land has increased suddenly.
29. In view of the above, the petition succeeds and is allowed. The impugned Order Dated 10.5.2005 passed in Misc. Case No. 2 of 1998 (Annex.-5) is hereby set aside and the matter is remanded to the Special Land Acquisition Officer for fresh decision in the light of the aforesaid legal propositions. No costs.
B.N. Mahapatra, J.
30. I agree.