Gujarat High Court
Bariya Somabhai Bhagabhai & vs State Of Gujarat & 2 on 28 February, 2017
Author: Anant S. Dave
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/4523/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4523 of 2017
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BARIYA SOMABHAI BHAGABHAI & 11....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR RAMNANDAN SINGH, ADVOCATE for the Petitioner(s) No. 1 - 12
ADVANCE COPY SERVED TO GP/PP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 28/02/2017
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE)
1. Leave to amend.
2. This petition is filed under Article 226 of the Constitution of India by the petitioners/owners of the land with a prayer to quash and set aside the order dated 13.12.2016 passed by respondent 3 and further to condone the delay of 4 months and 5 days occurred in filing an application under section 28A of the Land Acquisition Act, 1894 before respondent No.3.
3. Certain facts so stated in the writ petition about issuance of notification under Sections 4 and 6 and passed an award under Section 11 are not in dispute as early as in the year 1992-1993 one of the land owners whose land was acquired moved to Civil Court invoked provisions of Page 1 of 8 HC-NIC Page 1 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER Section 18 of the Act and filed reference No.713 of 1994. During pendency of the reference, respondent-Corporation offered Rs.17.40 per sq.mtr. for enhancement of compensation which was accepted by the party concerned and accordingly concerned award/decree was passed by learned 14th Additional Senior Civil Judge, in Land Reference Case No.713 of 1994 on 26.3.2012.
4. The petitioners came to know about this enhancement and concerned decree through similarly situated farmers and an application was submitted under Section 28 A of the Act before competent authority. It is not in dispute that the petitioners had not submitted any application for condonation of delay and no such provision for seeking condondation of delay even under Limitation Act is applicable to the authority exercising power under Land Acquisition Act, 1894.
5. Mr.Ramnandan Singh, learned advocate for the petitioners tried to persuade us by contending that the petitioners are poor farmers and their land is no doubt acquired but now deprived of enhancement amount of Rs.17.40 per sq.mtr. which was made available to other farmers of course by consent recorded in the decree. By exercising powers under Article 226 of the Constitution of India delay as prayed for be condoned and order dated 13.12.2016 impugned be quashed and set aside.
6. Having regard to the facts and circumstances and considering order impugned passed by competent authority in rejecting the application under Section 28A of Page 2 of 8 HC-NIC Page 2 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER the Act and law laid down with regard to applicability of Limitation Act vis-a-vis an application preferred under Section 28A of the Act, 1894 and the powers conferred upon the authorities in almost identical circumstances in the case of Popat Bahiru Govardhane and Ors. v. Special Land Acquisition Officer and Anr. [(2013) 10 SCC 765], the Apex Court held as under:
"14.In State of A.P. v. Marri Venkaiah, this Court reconsidered the aforesaid judgements including the judgment in Harish Chandra Raj Singh 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 form 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 being 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 time-limit prescribed under Page 3 of 8 HC-NIC Page 3 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER 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 judgement in Harish Chandra Raj Singh was held to be non-applicable in case of Section 28-A of the Act. The Court observed:
"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 Page 4 of 8 HC-NIC Page 4 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER State for purchase of the property. Hence, for the said offer, knowledge, actual or constructive, of the party affected by the award was an essential requirement of fair play and natural justice. Therefore, the second part of the proviso must mean the date when either the award was communicated to the party or was known by him either actually or constructively.
12. The aforesaid reasoning would not be applicable for interpretation of Section 28-A because there is no question of issuing notice to such an applicant as he is not a party to the reference proceeding before the court. The award passed by the court cannot be termed as an officer 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; may be, 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 Page 5 of 8 HC-NIC Page 5 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER 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."
15. In view of the above, there is no occasion for us to consider the judgements cited at the Bar on behalf of the appellants in support of its case. More so, the said judgements have been delivered by this Court while dealing with the applications under Section 18 of the Act. If there are directly applicable precedents on the issue, the same have to be followed rather than to search for a new interpretation unless it is established that the earlier judgments require reconsideration. The suggestion of reconsideration has specifically been rejected by this Court in Marri Venkaiah.
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 Page 6 of 8 HC-NIC Page 6 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER 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 in never an evil. A court has no power to ignore that provision to relieve what it considers of distress resulting from its operation."
7. Thus, inapplicability of Section 5 of Limitation Act to the proceedings before Collector under Section 28A of the Land Acquisition Act, 1894 is no more res integra and by reiterating the very principle the Apex Court held that Limitation Act applies to Courts and not to quasi judicial authorities. That being the law, we are not convinced about arguments canvassed by learned advocate for the petitioners about exercising the power under Article 226 of the Constitution of India to condone the delay and to quash and set aside the impugned order.
8. In absence of merit, the writ petition is rejected.
(ANANT S.DAVE, J.) Page 7 of 8 HC-NIC Page 7 of 8 Created On Mon Aug 14 00:56:32 IST 2017 C/SCA/4523/2017 ORDER (A.Y. KOGJE, J.) SMITA Page 8 of 8 HC-NIC Page 8 of 8 Created On Mon Aug 14 00:56:32 IST 2017