Bombay High Court
Shri Popat Bahiru Govardhane vs Special Land Acquisition Officer on 25 January, 2012
Author: G. S. Godbole
Bench: G. S. Godbole
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2140 OF 2009
Shri Popat Bahiru Govardhane ... Petitioner.
Age:Major, Occ. Agriculture, R/o. Sanjegaon,
Tal. Igatpuri, Dist. Nashik.
V/s.
1. Special Land Acquisition Officer,
Office at Nashik, Dist. Nashik ... Respondents.
2. The State of Maharashtra
---
WITH
WRIT PETITION NO. 2141 OF 2009
Smt. Manjulabai Dagadu Shirsat ... Petitioner.
Age:Major, Occ. Agriculture, R/o. Sanjegaon,
Tal. Igatpuri, Dist. Nashik.
V/s.
1 Special Land Acquisition Officer,
Office at Nashik, Dist. Nashik ... Respondents.
2. The State of Maharashtra
---
WITH
WRIT PETITION NO. 2142 OF 2009
Shri Daulat Punja Rao ... Petitioner.
Age:Major, Occ. Agriculture, R/o. Sanjegaon,
Tal. Igatpuri, Dist. Nashik.
V/s.
1. Special Land Acquisition Officer,
Office at Nashik, Dist. Nashik ... Respondents.
2. The State of Maharashtra
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WITH
WRIT PETITION NO. 2143 OF 2009
Shri Ramu Dagadu Rao ... Petitioner.
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Age:Major, Occ. Agriculture, R/o. Sanjegaon,
Tal. Igatpuri, Dist. Nashik.
V/s.
1. Special Land Acquisition Officer,
Office at Nashik, Dist. Nashik ... Respondents.
2. The State of Maharashtra
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WITH
WRIT PETITION NO. 2144 OF 2009
Shri Nivrutti Govardhane ... Petitioner.
Age:Major, Occ. Agriculture, R/o. Sanjegaon,
Tal. Igatpuri, Dist. Nashik.
V/s.
1. Special Land Acquisition Officer,
Office at Nashik, Dist. Nashik ... Respondents.
2. The State of Maharashtra
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Mr. Tushar Sonawanne for the Petitioner in all the Petitions.
Mr. R.M. Patne, AGP for Respondent Nos. 1 to 2.
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CORAM:- G. S. GODBOLE, J.
DATED :- 25th JANUARY, 2012.
ORAL JUDGMENT :
1 Rule was issued in these Writ Petitions on 18th June, 2009.
Since a very shot controversy is involved, the Petitions are taken up for final hearing forthwith.
BRIEF RESUME OF THE FACTS :
2 The lands of the Petitioners situate at village Sanjegaon, Tal.
::: Downloaded on - 09/06/2013 18:06:58 :::wp2140-2144-09.sxw 3 spb Igatpuri, Dist. Nashik were acquired for Mukane Dam Project. The Award was passed on 14.12.1995. Certain other claimants whose lands were also covered by the same Notification under Section 4 of the LA Act, 1894, filed L.R. No. 314 of 1999 and other connected land acquisition References and all those References were allowed by the learned Second Adhoc Additional District Judge, Nashik by Judgment and Order dated 03.04.2006. The Petitioners through their Advocate Shri A.M. Qureshi applied for certified copy of the said Judgment and Order on 17.05.2006. The date given to the Applicant for taking delivery of the copy was 29.05.2006. The copy was actually ready on 29.05.2006 but was delivered on 3rd June, 2006. It is an admitted position that the Application for re-determination of the amount of compensation on the basis of the Award of the Court under Section 28(A) was filed on 18th July, 2006.
3 By the impugned Order dated 22.09.2008, SLAO No.I, Nashik who was exercising powers of the Collector under the LA Act, 1894, rejected the Applications on the ground that the Applications filed were delayed by four days. Aggrieved by this order, all these Writ ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 4 spb Petitions have been filed.
4 Affidavit-in-Reply has been filed by the Dy. Collector and SLAO, Scarcity No.1, Dist. Nashik in W.P. No. 2140 of 2009 and a photo copy of the certified copy of the Judgment and Order dated 03.04.2006 is annexed. Reliance has been placed on the two Judgments of the Supreme Court to which reference would be made.
SUBMISSIONS OF ADVOCATES :
5 Mr. Sonawane submitted that the entire period between 17.05.2006 to 03.06.2006 will have to he excluded and excluding the period, the Applications will have to be held to be within limitation. It is alternatively submitted that even after the certified copy was ready for delivery on 29.05.2006, merely because the Advocate collected the certified copy belatedly on 3rd June, 2006, for this default of Advocate, persons who are poor agriculturists like the Petitioners should not be made to suffer. He submitted that the earlier Judgments of the Supreme Court interpreted Section 18 of the Act, whereas the ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 5 spb present case falls under Section 28A of the Act and hence, according to Mr. Sonawane, the Judgments of the Supreme Court are clearly distinguishable.
6 On the other hand, Mr. Patne, learned AGP appearing for the Respondents submitted that the Collector is not a Court under the scheme of the Act and since Collector is not a court, there is no power to condone the delay. He submitted that since the date of taking delivery of the certified copy was communicated to be 29.05.2006 and since copy was ready on that date only the period actually required for preparation of the certified copy can be excluded. He submitted that even if a very lenient view is taken for calculating the time required for obtaining certified copy, the Applications were delayed by at least three days and that delay cannot be condoned.
RELEVANT STATUTORY PROVISIONS:
7 It is necessary to notice the relevant provisions of Section 28(A) of the LA Act, 1894 which reads thus :::: Downloaded on - 09/06/2013 18:06:58 :::
wp2140-2144-09.sxw 6 spb [28A. (1) where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-
determined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub- section the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under sub-
section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under sub- section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of sections 18 to 28 shall, so far as may be, apply to such reference as they apply to reference under section 18.] 8 The Supreme Court had an occasion to consider provisions of Section 18. Section in its applicability to the Maharashtra reads thus :
Reference to Court and Procedure thereon :
18. (1) Any person interested who has not accepted the award [or the amendment] thereof may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 7 spb person to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award [or the amendment] is taken:
Provided that every such application shall be made,-
(a) if the person making it was present or represented before the Collector at the time when he made his award [or the amendment] within six weeks from the date of the Collector's award [or the amendment].
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, [or the amendment], whichever period shall first expire.
[(3) Any order made by the Collector on an application under this section shall be subject to revision by the High Court, as if the Collector were a Court subordinate to the High Court within the meaning of section 115 of the Code of Civil Procedure, 1908].
9 In the present case, the dates are clear. The Judgment of District Court was delivered on 03.04.2006 and hence that date will have to be excluded. This makes 27 days of April. The Application for certified copy was made on 17th May, 2006. Hence, 16 days of May will have to be counted. Date given to the Applicant for taking delivery of certified copy was 29.05.2006 and certified copy was ready on 29.05.2006. Even if 29.05.2006 is excluded, two additional ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 8 spb days of May will have to be included. Thus total days in the month of May will be 18 days and 30 days of June will have to be included. Thus as on 30th June, 2006, 75 days were completed. The Applications could have been filed latest by 15th July, 2006 but they were filed on 18th July, 2006. Thus they were delayed by three days. The argument that the time till 3rd June, 2006 shall be excluded cannot be accepted.
If no date had been given for taking delivery of the certified copy in that case such an argument could have been accepted. In this case unfortunately 29.05.2006 was the date given for taking delivery of the certified copy and hence, time till 3rd June, 2006 cannot be excluded. Further contention of the Petitioners is that they should not be made to suffer for the alleged negligence of the Advocate can also not be accepted for the simple reason that after receiving certified copy on 3rd June, 2006 there was ample time till 15th July, 2006 to file Application under section 28-A which was not done.
10 It is now necessary to consider the last submission of Mr. Sonawane, wherein it is contended that the Judgments of the Supreme Court relied upon by the State Government are not applicable. I do ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 9 spb not agree with this submission. Sections 18 and 28A to the extent they are relevant are similar. Both the Applications ought to have been made before the Collector within the stipulated time and once it is held that the Collector is not a Court, there is no question of applicability of the Indian Limitation Act, 1963. Mr. Sonawane submits that in such a situation, the High Court should step in and condone the delay in its extraordinary jurisdiction under Article 226 of the Constitution of India.
11 In the case of Officer on Special Duty (Land Acquisition) and Anr. vs. Shah Manilal Chandulal & Ors. (1996) 9 Supreme Court Cases 414, the Supreme Court has observed thus in paragraphs 17 and 18 as under :
"17. It is to remember that the Land Acquisition [Amendment] Act [68 of 1984] was enacted prescribing the limitation to exercise the power under Sections 4, 6 and 11 and also excluded the time occupied due to stay granted by the courts. Taking cognizance of the limitation prescribed in proviso to sub-Section (2) of Section 18, the provisions of the Limitation Act were not expressly extended. Though Section 29(2) of the Limitation Act is available, and the limitation in proviso to ::: Downloaded on - 09/06/2013 18:06:58 ::: wp2140-2144-09.sxw 10 spb sub-section (2) of Section 18 may be treated to be special law, in the absence of such an application by Land Acquisition [Amendment] Act [68 of 1984], the Act specifically maintains distinction between the Collector and the court and the Collector/LAO performs only statutory duties under the Act, including one while making reference under Section
18. It is difficult to construe that the Collector/LAO while making reference under Section 18. It is difficult to construe that the Collector/LAO while making reference under Section 18, as statutory authority still acts as a court for the purpose of Section 5 of the Limitation Act.
18. Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the considered view that sub-section (2) of Section 29 cannot be applied to the proviso to sub-section (2) of Section 18. The Collector/LAO, therefore, is not a court when he acts as a statutory authority under Section 18(1) Therefore, Section 5 of the Limitation Act cannot be applied for extension of the period to limitation prescribed under proviso to sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a court under Section 5 of the Limitation Act.".
12 In case of State of Karnataka vs. Laxuman, (2005) 8 Supreme Court Cases 709, the earlier Judgment of the Supreme Court was approved and this is what was held in paragraph 15 which reads as under :
::: Downloaded on - 09/06/2013 18:06:58 :::wp2140-2144-09.sxw 11 spb "15. This Court has also held that in proceedings under the Land Acquisition Act before the authorities under that Act, Section 5 of the Limitation Act has not application.
[See Officer on Special Duty (Land Acquisition) vs. Shah Manilal Chandulal]. Therefore, Section 5 of the Limitation Act cannot be restored to while making an application under Section 18(1) of the Act and the application has to be made within the period fixed by Section 18(2) of the Act."
13 In view of this settled legal position though the Court may have sympathy for persons like the Petitioners who have lost chance of redetermination of the compensation on account of delay of only 3 days; but the out come is inevitable. Such sympathy cannot permit this court to condone delay by exercising the so called unlimited jurisdiction under Article 226. The jurisdiction under Article 226 cannot be exercised in such a situation particularly when the law is well settled and clear.
14 In the result, all the Writ Petitions will have to be dismissed and the same are accordingly dismissed. Rule is discharged in all the Petitions.
[G. S. GODBOLE, J.] ::: Downloaded on - 09/06/2013 18:06:58 :::