Ramanbhai Mahijibhai Vs. Special Land Acquisition Officer - Court Judgment

Excerpt:
limitation - compensation - sections 4, 4 (1), 11, 18 and 28 a of land acquisition act, 1894, section 17 of land acquisition (amendment) act, 1984, articles 73, 162 and 226 of constitution of india, land acquisition rules and order 41 rule 1 of code of civil procedure, 1908 - compensation for land acquisition claimed under section 18 partly allowed - subsequent application under section 28 a rejected on ground of delay - rejection challenged - provisions prescribes three months limitation period from date of award to file application under 28 a - application was filed within limitation period without certified copy of award - certified copy subsequently filed after limitation period - time period taken for obtaining certified copy of judgment be excluded from limitation period - application falls within limitation by exclusion - court below erred in relying on rules which are contrary to provisions of act - authorities directed to consider application. - - (ix) considering that the right of referenceto the civil court under section 18 of the act isnot usually taken advantage of by inarticulateand poor people and is usually exercised by thecomparatively affluent landowners and that thiscauses considerable inequality in the payment ofcompensation for the same or similar quality ofland to different interested parties, it isproposed to provide an opportunity to allaggrieved parties whose land is covered under thesame notification to seek redetermination ofcompensation, once anyone of them has obtainedorders for payment of higher compensation fromthe reference court under section 18 of the act. the objectunderlying section 28a would be better achievedby giving the expression 'an award' in section 28a its natural meaning as meaning the awardthat is made by the court in part iii of the actafter the coming into force of section 28a. ifthe said expression in section 28a(1) is thusconstrued, a person would be able to seekredetermination of the amount of compensationpayable to him provided the following conditionsare satisfied :(i) an award has been made by the court under part iii after the coming into force of section 28a; the slao, therefore, failed toexercise the jurisdiction vested in him by law inrejecting the applications of the petitioners onthe ground that they were not accompanied by acertified copies of the award. 13. in our view, the reasoning of the special land acquisition is contrary to and inconsistent with the provisions of section 28a of the act as well as the principle laid down by the supreme court in the case of union of india and another vs. and others, reported in air 1992 allahabad 142. on a plain reading of sub-section (1) of section 28a of the act, it applies to only those claimants who failed to seek reference under section 18 of the act. 14. we are of the view that if application is filed under section 28a within three months from the date of the award, it cannot be dismissed as not maintainable if other conditions are satisfied merely because certified copy was not produced along with the application under section 28a. ] 15.2 executive functioncomprisesofboth determination of policy as well as carrying out its execution. 15.3 in view of this, the action of the land acquisition officer, relying upon the administrative instruction, which is contrary to and inconsistent with the legislative enactment, is not binding to the respondent-authority in law and, therefore also, on this additional ground, the order of the land acquisition officer is bad in law.k.m. mehta, j.1. ramanbhai mahijibhai, shantilal mahijibhai and others, petitioners, have filed this petition with a prayer that this court may be pleased to quash and set aside the impugned order passed by the respondent special land acquisition officer, vadodara. the respondent by his impugned order has rejected the application of the petitioners under section 28a of the land acquisition act (hereinafter referred to as 'the act'). the petitioners further prayed that this court may also be pleased to direct the respondent to allow the application of the petitioners under section 28a of the act according to the judgement and order passed by passed by the reference court in l.r.c. no. 575 of 1992 to 580 of 1992 and land reference case nos. 1647/1990 to 1667 of 1990 dated 29.4.1997 and further direct the respondent to immediately pay the amount of compensation according to the judgement of the reference court by way of issuing suitable writ, order or direction under article 226 of the constitution of india.2.1 the facts giving rise to this petition are as under:2.2 the petitioners were owners and occupiers of the land situated at village maganand, tal. jambusar, dist. bharuch. ramanbhai mahijibhai and shantilal mahijibhai, petitioner no. 1, were owners of block/survey no. 1226 admeasuring 65 are 60 sq.mtrs. of village maganand, tal. jambusar, dist. bharuch. similarly, heir of raysangbhai vajubhai thakor i.e. chhagan raysang thakor was owner of block /survey no. 1227 admeasuring 16 are 77 sq. mtrs., chhatrasang shivabhai parmar was owner of block/survey no. 1230 admeasuring 58 are 40 sq.mtrs., basirbhai aadambhai vali patel was owner of block/survey no. 1229 admeasuring 3 are 20 sq. mtrs. of the same village, melabhai amrabhai rabari was owner of block/survey no. 1281 admeasuring 6 are 81 sq.mtrs., kharaba 1285 admeasuring 2 are 2 sq. mtrs., block/survey no. 1285 admeasuring 6 are 98 sq.mtrs., chandubhai tribhovan raghabhai rathod was the owner of survey no. 1299 admeasuring 8 are 14 sq. mtrs., ambalal narotamdas was the owner of block /survey no. 1287 admeasuring 12 are 08 sq. mtrs., valibhai ajambhai, umarbhai ajambhai, kadarbhai ajambhai were owners of block/survey no. 1356 admeasuring 63 are 92 sq.mtrs., salimbhai daudbhai, ayub daudbhai, usman pirbhai since died through his legal heir ajij usmanbhai, ibrahimbhai pirbhai were the owners of block/survey no.1355 admeasuring 5 are 92 sq. mtrs., daxaben, wd/o. kanubhai naranbhai patel was the owner of block/survey no. 1357 admeasuring 12 are 18 sq. mtrs., sedan bibi wd/o. ahmadbeg mahammadbeg was the owner of block/survey no.1347 admeasuring 16 are, melabhai kalanbhai rabari was the owner of block/survey no. 1275 of 57 are 8 sq. mtrs.2.3 the land of the petitioners have been acquired by the state of gujarat for construction of jhambusar bridge canal of narmada project.the government therefore issued notification under section 4 of the act on 19.1.1989. the land acquisition officer after completing all formalities under the provisions of the act awarded amount of compensation at the rate of rs. 1.60 per sq. mtr. for non-irrigated land and rs. 2.40 per sq. mtr. for irrigated land in land acquisition case no.9 of 1988.2.4 it is the case of the petitioners in the petition that as the said amount of compensation was meagre and insufficient, some of the claimants of the same notification of the same village and of the same award approached the assistant judge at bharuch by way of land reference case nos. 575 of 1992 to 580 of 1992 and land reference case nos. 1647 of 1990 to 167 of 1990 with a claim that they should be awarded rs. 14/- per sq. mtr. for their acquired land.the reference court partly allowed the references of the claimants by determining the rate of compensation of the lands of the claimants at the rate of rs. 7.80 per sq. mtr. by way of judgement and order dated 29.4.1997 in the said reference cases.3. in view of the aforesaid award, the present petitioners have made application under section 28a of the act through their advocate on 21.7.1997 requesting the respondents to allow their application and award rs. 7.80 per sq. mtr. as per the judgement of the reference court. a copy of the said application has been annexed by the petitioners at annexure-b to the petition.4. it may be noted that when the petitioners filed the application the petitioners stated that certified copy of the judgement of the reference court is not available and as and when it is made available, they will supply the copy of the same and therefore the respondents are requested to do the needful.5. the petitioners have contended that as the respondent has neither passed any order nor paid any compensation, the petitioners have visited personally the office of the respondent requesting to decide the application under section 28a of the act which has been made by them in the year 1997, though more than six and half years have already passed.thereafter, the petitioners received a letter dated 31.5.2003 from the respondent wherein it is requested that on the basis of the application made under section 28a of the act dated 21.7.1997, hearing of the said application was fixed on 19.6.2003 in the office of respondent and they were requested to remain present.the petitioners have annexed the said letter at annexure-c to the petition. the petitioners remained present before the respondent and made their submissions that they should be awarded amount of compensation as per the judgement of the reference court.thereafter, the petitioners have received one order passed by the respondent dated 22.3.2004 wherein it is stated that the application of the petitioners under section 28a of the act has been submitted to the office of the respondent on 21.7.1997 wherein as per the letter of the government, the petitioners have not obtained certified copy of the judgement of the reference curt within the time limit as per the procedure of the revenue department and therefore the application of the petitioners is disposed of.the respondent has rejected the application of the petitioners on this ground.6. being aggrieved and dissatisfied by the said order of the special land acquisition officer, the petitioners filed the present petition before this court on 21.4.2004.7. when the matter was placed before this court on 6.7.2004, this court issued notice.thereafter, the matter was heard on 2.8.2004.8. we have heard learned advocate, mr. k.m. sheth, for the petitioner and learned assistant government pleader, mr. h.p. hasurkar, for the respondent.9. learned advocate mr.k.m. sheth has assailed the impugned order dated 22.3.2004 passed by the special land acquisition officer on various grounds. he has relied upon section 28a of the act. the said section has been inserted by land acquisition (amendment) act (68 of 1984) by sec. 17 from 24th september, 1984. section 28a of the act reads as under:'28-a. redeterminationof the amount ofcompensation on the basis of the award of thecourt.-(1) where in an award under this part, thecourt allows to the applicant any amount ofcompensation in excess of the amount awarded bythe collector under section 11, the personsinterested in all the other land covered by thesame notification under section 4, sub-section(1) and who are also aggrieved by the award ofthe collector may, notwithstanding that they hadnot made an application to the collector undersection 18, by written application to thecollector within three months from the date ofthe award of the court require that the amount ofcompensation payable to them may be redeterminedon the basis of the amount of compensationawarded by the court;provided that in computing the period of threemonths within which an application to thecollector shall be made under this sub-section,the day on which the award was pronounced and thetime requisite for obtaining a copy of the awardshall be excluded.(2) the collector shall, on receipt of anapplication under sub-section (1), conduct aninquiry after giving notice to all the personsinterested and giving them a reasonableopportunity of being heard and made an awarddetermining the amount of compensation payable tothe applicants.(3) any person who has not accepted the awardunder sub-section (2) may, by written applicationto the collector, require that the matter bereferred by the collector for the determinationof the court and the provisions of sections 18 to 28 shall, so far as may be, apply to suchreference as they apply to a reference undersection 18.'relying on the aforesaid provision, the learned advocate for the petitioner submitted that the person, who is aggrieved by the award under section 11 of the act and who has not filed application to the collector under section 18 of the act, is entitled to claim that the amount of compensation payable to him may be redetermined on the basis of the amount of compensation awarded by the court. the learned advocate for the petitioner submitted that the petitioner had filed application under section 28a of the act within the three months from the date of the award of the reference court. as per the aforesaid provision also, the claimant has to make an application within three months from the date of the award of the reference court. the reference court passed the award on 29.4.1997. admittedly, the petitioner made application under section 28a of the act on 21.7.1997, which was received by the authority, and, therefore, the application under section 28a of the act was filed within time. it was specifically stated in the application that certified copy of the judgment and award of the reference court was not made available to the petitioner and, to comply with the requirement of section 28a of the act, the application was required to be made within three months and, therefore, the petitioner made the application so that there may not any occasion to the authority to reject the application as being time-barred. it is further submitted in the application that as and when the petitioner receives the certified copy of the judgment and award, he would supply the same to the authority. it is, therefore, submitted that, when the petitioner made the application under section 28a of the act within time, i.e. within three months, there was no question of rejecting the application of the petitioner on the ground that the advocate for the petitioner has submitted certified copy of the judgment and award of the reference court after the prescribed period of limitation.9.1 the learned advocate for the petitioner further submitted that section 28a is a beneficial provision and it is to be construed liberally. he has relied upon the statement of 'objects and reasons' of section 28a of the act, which has been reproduced by the hon'ble supreme court in the case of union of india and another vs. pradeep kumari and others, reported in (1995) 2 supreme court cases 736, which read as under: (para 4(ix) pages 740-741)'the object underlying the enactment of theseprovisions, as indicated in the statement ofobjects and reasons, was:(ix) considering that the right of referenceto the civil court under section 18 of the act isnot usually taken advantage of by inarticulateand poor people and is usually exercised by thecomparatively affluent landowners and that thiscauses considerable inequality in the payment ofcompensation for the same or similar quality ofland to different interested parties, it isproposed to provide an opportunity to allaggrieved parties whose land is covered under thesame notification to seek redetermination ofcompensation, once anyone of them has obtainedorders for payment of higher compensation fromthe reference court under section 18 of the act.'9.2 the learned advocate for the petitioner has relied upon paragraphs 10 and 11 of the aforesaid judgment (on pages 742 and 743), which read as under: 9.2.a 'para 10 - it is possible to visualise asituation where in the first award that is madeby the court after the coming into force ofsection 28a the enhancement in the amount ofcompensation by the said award is not verysignificant for the reason that the person whosought the reference was not able to produceadequate evidence in support of his claim and inanother reference where the award was made by thecourt subsequently such evidence is producedbefore the court and a much higher amount isawarded as compensation in the said award.byrestricting the benefit of section 28a to thefirst award that is made by the court after thecoming into force of section 28a the benefit ofhigher amount of compensation on the basis of thesubsequent award made by the court would bedenied to the persons invoking section 28a andthe benefit of the said provision would beconfined to redetermination of compensation onthe basis of lesser amount of compensationawarded under the first award that is made afterthe coming into force of section 28a. there isnothing in the wordings of section 28a toindicate that the legislature intended to confersuch a limited benefit under section 28a.similarly, there may be a situation, as in thepresent case, where the notification undersection 4(1) of the act covers lands falling indifferent villages and a number of references atthe instance of persons having lands in differentvillages were pending in the court on the date ofcoming into force of section 28a and awards inthose references are made by the court ondifferent dates. a person who is entitled toapply under section 28a belonging to aparticular village may come to know of the firstaward that is made by the court after the cominginto force of section 28a in a reference at theinstance of a person belonging to anothervillage, after the expiry of the period of threemonths from the date of the said award but he maycome to know of the subsequent award that is madeby the court in the reference at the instance ofa person belonging to the same village before theexpiry of the period of three months from thedate of the said award. this is more likely tohappen in the cases of inarticulate and poorpeople who cannot be expected to keep track ofall the references that were pending in court onthe date of coming into force of section 28a andmay not be in a position to know, in time, aboutthe first award that is made by the court afterthe coming into force of section 28a.byholding that the award referred to in section 28a(1) is the first award made after the cominginto force of section 28a, such persons would bedeprived of the benefit extended by section 28a.such a construction would thus result inperpetuating the inequality in the payment ofcompensation which the legislature wanted toremove by enacting section 28a.the objectunderlying section 28a would be better achievedby giving the expression 'an award' in section 28a its natural meaning as meaning the awardthat is made by the court in part iii of the actafter the coming into force of section 28a. ifthe said expression in section 28a(1) is thusconstrued, a person would be able to seekredetermination of the amount of compensationpayable to him provided the following conditionsare 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 ofcompensation in excess of the amount awarded bythe collector under section 11 has been allowedto 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 amountof compensation is sought; and (vi) only one application can be moved under section 28a for redetermination of compensation by an applicant.'9.2.b 'para 11 - since the cause of action formoving the application for redetermination ofcompensation under section 28a arises from theaward on the basis of which redetermination ofcompensation is sought, the principle that 'oncethe limitation begins to run, it runs in its fullcourse until its running is interdicted by anorder of the court' can have no applicationbecause the limitation for moving the applicationunder section 28a will begin to run only fromthe date of the award on the basis of whichredetermination of compensation is sought.'9.3 the learned advocate for the petitioner has further relied upon the judgment of the allahabad high court in the case of sukhdeo and others vs. state of u.p. and others, reported in air 1992 allahabad 142, more particularly paragraph 11 of the said judgment, which reads as under:9.3.a 'para 11 - we now come to the question whether itis imperative that an application under section23-a should be accompanied by a certified copy ofthe award of the court. no such intention isdiscernible either expressly or impliedly. inthe proviso substantially the provisions ascontained in section 12 of the limitation act,1963 are to be found. therefore, if an applicantchooses to file a certified copy of the awardalong with the application he will be entitled toexclude the time spent in obtaining the copy.however, an application or a certified copy hasgot to be filed within a period of three monthsfrom the date of the receipt of the notice of theaward or the date of knowledge of the awardeither actual or constructive. an applicationfiled within time but unaccompanied by acertified copy of the award cannot be treatedeven as irregular.it will be a validapplication. if the collector so likes, or if aparty wants he may grant time to file a certifiedcopy. for a quicker and expeditious disposal ofthe application, it will be in the interest ofthe applicant himself that he should file acertified copy of the award along with hisapplication. the slao, therefore, failed toexercise the jurisdiction vested in him by law inrejecting the applications of the petitioners onthe ground that they were not accompanied by acertified copies of the award.'9.4 the learned advocate for the petitioner has further submitted that, under the provisions of section 28a of the act, the following days are to be excluded in computing period of three months:(i) the date on which the award was pronounced by the reference court.(ii) the time requisite for obtaining the copy of the award of the court.10. learned assistant government pleader, mr.h.p. hasurkar, for the respondent, has tried to support the order passed by the special land acquisition officer. however, it may be noted that, on behalf of the special land acquisition officer, no affidavit-in-reply is filed controverting the factual position narrated by the petitioner in the petition. we have, therefore, relied upon and accepted the factual averments made by the petitioner in the petition.11. we have considered (i) the statement of objects and reasons of section 28a of the act, (ii) provisions of section 28a of the act, (iii) judgment of the supreme court in the case of union of india and another vs. pradeep kumari and others, reported in (1995) 2 supreme court cases 736, and (iv) judgment of the allahabad high court in the case of sukhdeo and others vs. state of u.p. and others, reported in air 1992 allahabad 142.12. in this case, the reference court passed the award on 29.4.1997. the petitioner submitted application under section 28a of the act on 21.7.1997 without certified copy of the award and it was stated in the application that the certified copy of the award was not made available at that time. thereafter, the certified copy of the award was submitted on 21.7.2000 to the special land acquisition as soon as it was received. in spite of the aforesaid facts and circumstances of the case, the special land acquisition by his order dated 22.3.2004 has held that, as per the government guidelines, which is issued by the revenue department, the petitioner has not supplied the certified copy of the award within the period of limitation and, therefore, the application was rejected.13. in our view, the reasoning of the special land acquisition is contrary to and inconsistent with the provisions of section 28a of the act as well as the principle laid down by the supreme court in the case of union of india and another vs.pradeep kumari and others, reported in (1995) 2 supreme court cases 736. the special land acquisition officer ought to have considered the objects and reasons as to how section 28a was introduced and also aforesaid judgment of the supreme court. in our view, the order of the special land acquisition is contrary to and inconsistent with the principle laid down by the allahabad high court in the case of sukhdeo and others vs.state of u.p.and others, reported in air 1992 allahabad 142. on a plain reading of sub-section (1) of section 28a of the act, it applies to only those claimants who failed to seek reference under section 18 of the act.redetermination has to be done by the collector on the basis of compensation awarded by the court in the reference under section 18 of the act and the application in their behalf has to be made within three months from the date of the award.14. we are of the view that if application is filed under section 28a within three months from the date of the award, it cannot be dismissed as not maintainable if other conditions are satisfied merely because certified copy was not produced along with the application under section 28a.14.1 from a bare reading of section 28a of the act, production of certified copy of the award along with application as provided under order 41 rule 1 of civil procedure code (i.e.copy of decree) is not made compulsory either in the act or in the rules made thereunder. therefore, merely because certified copy of the order was not produced along with the application, such application cannot be rejected if the application is filed within three months from the date of the award. however, the petitioner who is producing certified copy is entitled to get the time for getting certified copy excluded. there may be cases where parties may not be aware of the exact nature of the award of the court and they have to apply and get a certified copy. in order to provide for such situation proviso is included. the proviso of the act gives no direction that application under s. 28a should always be accompanied with the certified copy.15. in the present case, the land acquisition officer has relied upon the administrative instruction issued by the government in rejecting the application of the petitioner.. on the other hand, he has ignored the statutory enactment, i.e. section 28a of the act. 15.1 subject to the provisions of the constitution, the executive power of the union extends to all matters in respect of which the parliament has power to make laws. so also, the executive power of the state extents to all matters in respect of which the state legislature has power to make laws. [re: article 73 and 162 of the constitution of india.]15.2 executive functioncomprisesofboth determination of policy as well as carrying out its execution.since the governmental functions have increased, it is inevitable for the government to issue administrative instructions for determination of policy and its uniform application. however, the administrative rules, regulations and instructions which do not flow from the statutory force, have no force of law. the government can fill up the gaps in the statutory rules by issuing administrative instructions. they cannot, however, over reach the act and the rules.15.3 in view of this, the action of the land acquisition officer, relying upon the administrative instruction, which is contrary to and inconsistent with the legislative enactment, is not binding to the respondent-authority in law and, therefore also, on this additional ground, the order of the land acquisition officer is bad in law. in our view, no officer of the government can rely on any administrative instruction which is contrary to and inconsistent with the statutory provision.16. in the result, the petition is allowed.the order dated 22.3.2004 passed by the special land acquisition officer, vadodara, is quashed and set aside. rule is made absolute with no order as to costs.17. in view of the aforesaid circumstances of the case, this court directs respondent no. 1 to consider the application of petitioner under section 28a of the act having been filed within the period of limitation and pass an order in the light of the judgement and order passed by the reference court in land reference case no. 575 of 1992 to 580 of 1992 and land reference case nos. 1647 of 1990 to 1667 of 1990 dated dated 29.4.1997 and in accordance with law.the respondents are directed to pass the order as expeditiously as possible but not later than two months from the date of receipt of the order of this court.18. if the award is passed, the respondents are further directed to pay the amount of compensation to the petitioners according to the present order and in light of judgement and award of the reference court as expeditiously as possible but not later than three months from the date of passing of the order/award because in this case the claimants have filed application in the year 1997.