Bombay High Court
The Goa Agricultural Produce Market ... vs Government Of Goa And Others on 26 July, 1995
Equivalent citations: AIR1996BOM121, 1997(4)BOMCR357, (1995)97BOMLR614, AIR 1996 BOMBAY 121, (1996) LACC 505 (1997) 4 BOM CR 357, (1997) 4 BOM CR 357
Author: T. K. Chandrasekhara Das
Bench: T. K. Chandrasekhara Das
ORDER Dhanuka, J.
1. The Goa Agricultural produce Market Committee impugns the Award dated 26th July 1993 made by the Deputy Collector (LA) Panaji, under Section 28A of the Land Acquisition Act, 1894. The issue as to whether the application made by the writ petitioner in Writ Petition No.30/94 on 27th April, 1987 for re-determination of compensation was filed in time or not stands finally concluded by decision of this Court dated 17th Feb. 1993 in Writ Petition No. 6/93. The said decision has acquired finality and binds all the parties to the said writ petition. The Goa Agricultural Produce Market Committee was respondent No. 4 in the said Writ Petition No. 6/93. It is not open to us to allow the parties to reopen the controversy already decided by this Court by its earlier judgment as foresaid as no appeal or review petition was filed against the said judgment. As regards the merits of the said Award is concerned, the petitioner in Writ Petition No. 30/94 is agreeable to deletion of benefit awarded in his favour, under Section 23(1A) of the Land Acquisition Act 1894. No other contention on merit of the said Award dated 26th July, 1993 has been pressed before the Court. No other contention really arises for consideration of the Court in those petitions.
2. On 12th April, 1976 a Notification was issued bearing No. RD/LQN/360/75 under Section 4 of the Land Acquisition Act, 1894, expressing the intention of the appropriate Government to acquire a plot of land admeasuring 17,875 sq. mts. for acquisition for public purpose of construction of market sub-yard for the Goa Agricultural Produce Market Committee. The said Notification was followed by issue of a Declaration under Section 6 of the Land Acquisition Act,1894 (1 of 1894) on 10th March, 1977. On 26th March, 1979, the Land Acquisition Officer made his award under Section 11 of the Land Acquisition Act, 1894. The land under acquisition belonged to the Comunidade of Mapusa. The various portions of the said land were in possession of three different tenants named as under:--
1. Shri Lucas Carvalho,
2. Shri Clemente P.D'Souza,
3. Shri Sonu Babu Kudnekar.
By the above referred Award dated 26th March, 1979, the Land Acquisition Officer fixed the amount of compensation payable for the acquisition at the rate of Rs.12/- per sq. mt. only to be apportioned between the landlord and the tenant in the ratio of 1 : 2.
3. The Comunidade of Mapusa made an application for reference under Section 18 of the Land Acquisition Act 1894 (1 of 1894), within time. Accordingly, a reference was made to the District Court at the instance of the Comunidade of Mapusa and registered as Land Acquisition Case No. 95/1979. In the said reference, an award was made by the Reference Court on 31st January, 1985, enhancing the amount of compensation at the rate of Rs. 50/- per sq. mt.
4. The three tenants also sought reference under Section 18 of the Land Acquisition Act, 1894. The applications for the three references made by the three tenants were beyond time. The reference made at the instance of the tenant Sonu Babu Kudnekar was registered by the District Court as Land Acquisition Case No.102/89. On 29th March, 1985, the Court of the District Judge, North Goa at Panaji decided Land Acquisition Case No. 102/79, i.e. reference made at the instance of Sonu Babu Kudnekar under Section 18 of the Land Acquisition Act, 1894. A question was raised before the District Court to the effect that the application for reference having not been made in time by the said Sonu Babu Kudnekar and other tenants, no reference could be validly made by the Land Acquisition Officer to the District Court by the above referred order dated 29th March, 1985. It was contended that no reference could be therefore entertained by the Court. The District Judge; Panaji, Goa, condoned the delay in filing the application for reference and allowed the reference. Shri Sonu Babu Kudnekar was in possession of part of the acquired plot, i.e. an area of 2804 sq. mts. The Reference Court fixed the amount of compensation payable to Shri Sonu Kudnekar at the rate of Rs. 50/- per sq. mt. The Reference Court also awarded solatium at the rate of 15% on the amount of Rs.1,40,200/-,. The Reference Court held that Shri Sonu Babu Kudnekar was entitled to receive one half of the amount of compensation as the said applicant was merely a tenant.
5. Being aggrieved by the Awards made by the Reference Court in favour of the Comunidade of Mapusa as well as in favour of the three tenants, the Union of India preferred four First Appeals in this Court. First Appeal No. 66/85 was between the Union of India and the Comunidade of Mapusa. By judgment and order dated 17th Feb.1987, the Division Bench of this Court partly allowed the said appeal and reduced the amount of market value payable to the claimant on acquisition of the land in question at the rate of Rs.45/- per sq. mt. instead in Rs. 50/- per sq. mt. By this time the Land Acquisition (Amendment) Act, 1984 (68 of 1984) had come into force. while deciding the said First Appeal this Court also awarded the benefit of Section 23(1-A) and Section 28 of the Land Acquisition Act,1894 as amended in favour of the Comunidade of Mapusa. No appeal was filed against the said judgment and order passed by this Court in First Appeal No. 66/85. The Award of the reference case in reference made at the instance of the owner as modified by this Court in First Appeal No. 66/85 has acquired finality. The tenants are still struggling for justice.
6. By judgment and order dated 17th Feb.1987, this Court decided First Appeals Nos. 85, 86 and 87 of 1985 preferred by the Union of India against the three tenants, i.e. Shri Lucas Carvalho, Shri Clemente D'Souza and Shri Sonu Babu Kudnekar. In the present writ petitions, we are concerned directly and substantially only with the claim made by Shri Sonu Babu Kudnekar. By the above referred judgmet and order dated 17th Feb. 1987, this Court allowed the appeal and quashed and set aside the impugned Awards dated 29th March, 1985, made by the Reference Court in favour of the three tenants. This Court held that the District Court had no jurisdiction to condone the delay. This Court held that the application for reference having been made by these three claimants beyond time, the Reference Court could not entertain the reference for enhancement.
7. This Court therefore finally held by its judgment and order dated 17th Feb. 1987, that the application for reference made by the three tenants including Shri Sonu Babu Kudnekar were beyond time and the said application could not be entertained at all by the Collector and neither the Collector nor the Reference Court had jurisdiction to condone the delay. Thus, it shall have to be held that the proceedings initiated by the above referred tenants for reference under Section 18 of the Limitation Act were non est as the application for such reference could not be entertained at all by the Collector and the delay in making the application for reference could not be condoned. We cannot go behind the judgment delivered in the above referred proceedings concerning the same parties. In so far as these proceedings are concerned, these orders have become final and there is no scope for reopening the judgments and orders already passed by this Court in First Appeals Nos. 85, 86 and 87 of 1985.
8. In this situation, Shri Sonu Babu Kudnekar made an application to the Land Acquisition Officer for redetermination of compensation invoking Section 28A of the Land Acquisition Act relying on the Award of the Reference Court granting enhanced compensation to the owner of the same land i.e. the Comunidade of Mapusa. This application was made by the said Shri Sonu Babu Kudnekar to the Land Acquisition Officer on 27th April, 1987. The applicant desired the Land Acquisition Officer to redetermine the amount of compensation on the basis of the Award made by the Reference Court in the reference pertaining to the Comunidade of Mapusa as modified by this Court by its judgment and order dated 17th Feb.1987 in First Appeal No. 66/85. By letter dated 19th Sept. 1989, the Deputy Collector (Land Acquisition) informed Shri Sonu babu Kudnekar that the application made by him under Section 28A of the Act on 27th April, 1987, could not be treated as an application made in time prescribed by the said section as the said application was not made within three months from the date of the Award of the Reference Court which was being made the basis of the said application for re-determination.
9. Being aggrieved by the decision of the Deputy Collector (Land Acquisition) dated 19th Sept. 1989, the petitioner preferred Writ Petition in this Court being Writ Petition No. 6/ 93.
10. As far as Shri Sonu Babu Kudnekar is concerned, the Writ Petition No. 6/93 was finally decided by the Division Bench of this Court consisting of Shri I.G. Shah and Dr. E.S. D'Silva, JJ., by judgment dated 17th Feb.1993. It appears from para 7 of the above referred judgment delivered by the Division Bench of this Court on 17th Feb.1993, that the Division Bench of this Court was persuaded to take the view that the application made by Shri Sonu Babu Kudnekar under Section 28A of the Land Acquisition Act was well-within time as the said application was made within three months from the decision of the High Court in First Appeal No. 66/85. The application for redetermination of compensation was made by Shri Sonu Babu Kudnekar on 27th April, 1987 and the judgment of the High Court in First Appeal No. 66/85 was delivered by the High Court on 17th Feb. 1987. The relevant portion of the said judgment shall have to be extracted for the sake of clarity. The relevant portion reads as under:--
"The record shows that the said judgment of the High court in First Appeal No. 66/85 was delivered by this Court on 17th Feb.1987 and the application made by the petitioner to the Collector (Exhibit P.3) under Section 28A of the Land Acquisition Act is dated 27th April, 1987, i.e. within the limitation period of three months."
Perhaps this view has undergone a change in subsequent decisions of the Supreme Court. The decision of this Court dated 13th Feb.1987 binds the parties to Writ Petition No. 6/93. In the said writ petition the State of Goa, Communidade of mapusa and the Goa Agricultural Produce Market Committee were impleaded as respondents Nos. 2 to 4 in addition to the Deputy Collector and the Land Acquisition Officer was impleaded as respondent No. 1. The writ petition was made absolute. The impugned order passed by the Land Acquisition Officer set out in letter dated 19th Sept. 1989 holding the application of the petitioner under Section 28A of the Act as time barred was quashed and set aside by this Court. The Division Bench of this Court referred to certain observations made by the Division Bench in its judgment dated 2nd April, 1981 in Writ Petition No. 56/91 and Writ Petition No. 82/91. It appears that while passing the order dated 2nd April, 1991 in the above referred two writ petitions the Court had granted liberty to the Government to raise necessary contentions before the Deputy Collector when the application under Section 28A of the Act would be reconsidered. As far as judgment dated 17th Feb. 1993 in Writ Petition No. 6/93 is concerned, the Division Bench made it clear that the High Court having decided the question of limitation in favour of the application, it would not be open to the Government to raise such a plea before the Collector now.
11. Thereafter on 26th July, 1993, the Deputy Collector and Land Acquisition Officer, panaji made his Award under Section 28A of the Act inter alia observing that it was not open to him now to go into the question of limitation in view of the specific finding of the High Court in the above referred judgment dated 17th Feb. 1993 in Writ Petition No. 6/93.
12. We are conscious of the fact that in the latest judgment of the Supreme Court the Supreme Court has taken the view that the limitation for making an application under Section 28A of the Land Acquisition Act was liable to be computed from the date of the Award of the Reference Court and not from the date of the judgment of the High Court in First Appeal against the Award of the Reference Court. We are also conscious of the fact that the doctrine of finality is one of the doctrines well recognized in law and even the erroneous judgments of the Courts cannot be corrrected except in an appeal from such judgments filed in time or in review proceedings on a ground recognized by law. It is also well-settled that even a review application shall not be maintainable in law merely because the decision on a question of law made by the High Court is reversed by the Supreme Court in another case . For the purpose of this case we must hold that the judgment and order dated 17th Feb. 1993 passed in Writ Petition No. 6/93 for the same purpose has acquired finality and it is not open to either side to go behind this judgment at the hearing of Writ Petition No. 625/93 and Writ Petition No. 30/94.
13. We must therefore proceed on the footing that the application made under Section 28A of the Land Acquisition Act, 1894 was liable to be considered by the Land Acquisition Officer as an application made in time in view of the finding of the High Court recorded in its judgment and order dated 17th Feb.1993, in Writ Petition No. 6/93.
14. Before these two writ petitions were examined at full length we were tentatively of the view that in all probability this Court shall be required to determine at the hearing of these writ petitions as to whether Section 5 of the Limitation Act, 1963 was applicable also to an application under Section 28A of the Land Acquisition Act, 1894. For the purpose of determining these questions we shall have to consider in all probability as to whether Section 5 of the Limitation Act, 1963 was applicable to an application made for reference under Section 18 of the Land Acquisition Act, 1894. In such an eventuality, it would be necessary for the court to decide as to whether the Land Acquisition Officer was a 'court' for the purpose of applicability of the Limitation Act, 1963. For the purpose of deciding these questions it would have been necessary for us to construe Section 29(2) of the Limitation Act, 1963. With that approach in mind at the early stage of the hearing of these writ petitions we invited the learned Advocate General to make detailed arguments on the above referred aspects. Very interesting and able arguments were addressed to the Court by the learned Advocate General on the above referred aspects. We have however decided not to examine the above referred questions in view of the binding decision of this Court dated 17th Feb. 1993 in Writ Petition No. 6/93 which decision binds the parties to the writ petition at least for the parties of Writ Petition No. 30/94 and 625/93 taking the view that the application made by Shri Sonu Babu Kudnekar under Section 28A of the Act was well within time. It would be making simple matter complicated if we unnecessarily decide the above referred questions in those writ petitions. We therefore refrain from deciding larger questions which are not required to be decided in these cases.
15. We must however make one general observation for the sake of clarity. Prima facie it appears to us that the decision of the Full Bench of our High Court in the case of 'Bhupal Premchand Shah v. State of Maharashtra' 1994 Mah LJ 1558 was decided in the light of sub-section (3) added to Section 18 of the Land Acquisition Act, 1894 by the Maharashtra Act, 38 of 1964. Section 18(3) of the Act incorporated in the Act by the Act 38 of 1964 does not operate in the State of Goa. It is not necessary to pursue this line of discussion at all in view of the decision inter parties contained in order dated 17th Feb.1993 in Writ Petition No. 6/93 which binds all the parties before us, in Writ Petitions No. 39/94 as well as Writ Petition No. 625/94.
16. Having regard to the ratio of the judgment of the Supreme Court rightly relied upon by the learned Advocate General for the State of Goa in the case of 'U.P. Awas Evam Vikas Parishad v. Gyan Devi (Dead ) by L. Rs. ', we hold that the Goa Agricultural Produce Market Committee has the necessary locus standi to file Writ Petition No. 625/93. Having regard to the fact that the Goa Agricultural Produce Market Committee was a party to Writ Petition No. 6/93 we hold that the Goa Agricultural Produce market Committee had Knowledge of the proceedings for redetermination of compensation initiated by Shri Sonu Babu Kudnekar under Section 28A of the Land Acquisition Act, 1894. In our opinion, the Goa Agricultural Produce market Committee shall not suffer any prejudice if we delete the amount awarded in favour of Shri Sonu Babu Kudnekar under Section 23(1A) of the Land Acquisition Act, 1894 as indicated in the latter part of this judgment. In our opinion it would be unnecessary to make an order of remand of the proceedings to the Land Acquisition Officer for rehearing of the application under Section 28A of the Act.
17. The learned counsel for the Goa Agricultural Produce Market Committee rightly submitted that the benefit of Section 23(1A) of the Land Acquisition Act, 1894 could not be made available to Shri Sonu Babu Kudnekar in the proceedings under Section 28A of the Act as the original Award was made by the Collector on 26th March, 1979. Section 23(1A) of the Act was authoritatively interpreted by the larger Bench of the Supreme Court in its recent judgment in the case of 'K. S. Paripoornan v. State of Kerala . In this case no proceedings were pending before the Collector under Section 11 of the Land Acquisition Act, 1894 on or after 30th April, 1982. In this case the Award was already made by the Land Acquisition Officer under Section 11 of the Land Acquisition Act, 1894 on 26th March, 1979. In the proceedings under Section 28A of the Act the benefit of Section 23(1A) of the Act could not be made available to the claimant if the same was not available at the time when the original award was made under Section 11 of the Land Acquisition Act, 1894.
18. The learned counsel for Shri Sonu Babu Kudnekar writ petitioner in Writ Petition No. 30/94 consents to the impugned Award dated 26th July, 1993, made under Section 28A of the Act being modified by deleting item No. 5 in the statement 'A' appended to the said Award and making all consequential amendments in respect of calculation of interest restricted to this item. The learned counsel for the Goa Agricultural Produce Market Committee as well as the learned Advocate General have pointed out this error alone on the merits of the impugned Award dated 26th July, 1993. It is not disputed that the impugned Award does not suffer from any legal infirmity in so far as it awards solatium at the rate of 30% and it awards interest at the rate of 9% of the period commencing from 27th March, 1979 to 26th March, 1980 and at the rate of 15% for the period commencing from 27th March, 1980 to 31st August, 1993, is concerned.
19. In the result, we pass the following orders:--
1. Writ Petition No. 625/93 is partly allowed. The rule is made absolute. The impugned Award of the Land Acquisition Officer dated 26th July, 1993 is modified by quashing the Award of benefit claimed by respondent No. 3 under Section 23(1A) of the Land Acquisition Act, 1894, i.e. item No. 5 from Statement 'A' appended to the said Award in the sum of Rs.35,511/- and interest pertaining to the said amount only. The rest of the impugned Award is upheld. The respondent No. 2 shall re-calculate the amount forthwith as receipt of the writ.
2. In Writ Petition No. 30/94 the Rule is made absolute in the same terms as in Writ Petition No. 625/93. The respondents Nos.1 and 2 directed to pay to the petitioner the amount awarded in the impugned Award dated 26th July, 1993, as modified in terms aforesaid within three months from today. The respondent No.4 shall provide the necessary funds to the respondent No.1 for effecting the above referred payment as contemplated under Section 15(1) of the Land Acquisition Act, 1894. The respondents Nos. 1 and 2 shall be liable to pay the amount awarded to the petitioner even if the respondent No. 4 does not provide the necessary funds to the respondents Nos. 1 and 2 in terms of their obligation as contemplated under Section 50(1) of the Act.
3. Having regard to the facts and circumstances of this case there shall be no order as to costs in either of the two writ petitions.
4. Order accordingly.