Gujarat High Court
Legal Heirs Of Late And Wd/O Madhusudan ... vs Special Land Acquisition Officer & 3 on 15 March, 2017
Author: A.Y. Kogje
Bench: Anant S. Dave, A.Y. Kogje
C/SCA/3169/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 3169 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE A.Y. KOGJE
================================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
================================================================
LEGAL HEIRS OF LATE AND WD/O MADHUSUDAN DALSUKHRAM
BHATT....Petitioner(s)
Versus
SPECIAL LAND ACQUISITION OFFICER & 3....Respondent(s)
================================================================
Appearance:
MR DHRUV K DAVE, ADVOCATE for the Petitioner(s) No. 1
MS MAITHILI MEHTA, AGP for the Respondent(s) No. 4
MR CHINMAY M GANDHI, ADVOCATE for the Respondent(s) No. 3
MR MB GANDHI, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No. 1 - 2 , 4
================================================================
CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
and
Page 1 of 20
HC-NIC Page 1 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 15/03/2017
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE A.Y. KOGJE)
1. RULE. Learned AGP Ms.Maithili Mehta waives service of Rule on behalf of respondent No.1, 2 and 4 and learned Advocate Mr.M.B.Gandhi waives service of Rule on behalf of respondent No.3.
2. This petition under Article 226 and other relevant Articles of the Constitution of India is filed praying for quashing of communication dated 10.10.2014 issued by respondent Nos.1 and 2 - office of the Special Land Acquisition Officer. By the impugned communication, the respondents had declined to entertain the application made by the petitioner under Section 28-A of the Land Acquisition Act, 1894 ("the Act, 1894" for short).
3. The facts in brief are as under:-
3.1 The petitioner was the original owner of land bearing revenue survey No.165 paiki of village Ranoli, Dist. Vadodara, admeasuring 2731 sq. mtr. and the said land was acquired for public purpose by Gujarat Industrial Development Corporation under the provisions of the Act, 1894.Page 2 of 20
HC-NIC Page 2 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT 3.2 The notification under Section 4 of the Act is dated 06.03.1981 and the award under Section 11 was pronounced by the Special Land Acquisition Officer on 19.09.1984.
3.3 Being aggrieved by the award under Section 11, some of the owners, other than the petitioner, whose lands were acquired under the same notification, preferred references in the District Court at Vadodara. The said references being LRC Case Nos.290 of 1989 to LRC Case No.306 of 1989 were decided by 8th Joint Civil Judge (Senior Division), Vadodara by partly allowing the references under its order dated 04.05.2002 and enhanced the compensation at the rate of Rs.2,76,000/- per hectare (Rs.227.60 per sq. mtr.) as against the compensation fixed by the Special Land Acquisition Officer by calculating the price of the land at Rs.6.70 per sq. mtr. 3.4 Based on the award dated 04.05.2002 passed in the Land Reference Cases mentioned hereinabove, the petitioner made an application under Section 28-A to the competent officer. Such application under Section 28-A is claimed to have been made on 06.08.2002. 3.5 The award in the Land Reference Cases dated 04.05.2002 was subject matter of challenge by the respondent - GIDC in First Appeal No.1109 of 2003 and the Page 3 of 20 HC-NIC Page 3 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT said First Appeal came to be partly allowed by this Court by oral judgment dated 27.09.2011 and the market value of the land was fixed at the rate of Rs.12 per sq. mtr. as against the price fixed by the Reference Court. 3.6 The aforementioned oral judgment in the First Appeal was challenged by the claimants before the Apex Court. However, the SLP thus preferred came to be dismissed, confirming the oral judgment of the High Court on 16.04.2012.
3.7 It appears that after this, the respondents issued the impugned communication dated 10.10.2014 in response to the application dated 06.08.2002 filed by the petitioner with the competent authority under Section 28- A of the Act, 1894 and under this communication, it was conveyed to the petitioner that the petitioner is not entitled to the benefit under Section 28-A as Section 28- A was inserted in the Act by way of amendment on 24.09.1984 whereas the application proceedings initiated by publication of notification under Section 4 was on 06.03.1981.
3.8 It is this decision of the respondents, dis- entitling the petitioner to the benefit of the award of the Reference Court, which was subsequently partly modified by this Court and confirmed by the Apex Court, Page 4 of 20 HC-NIC Page 4 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT which is the subject matter of the present petition. The only ground is that considering the operation of Section 28-A to be prospective and Section 4 notification being prior to 1984, the application was not maintainable.
4. Heard Mr.Dhruv K.Dave, learned Advocate for the petitioner, learned AGP Ms.Maithili Mehta for respondent No.1 - Special Land Acquisition Officer and learned Advocate Mr.M.B.Gandhi for respondent No.3 - GIDC.
5. Mr.Dhruv K.Dave, learned Advocate for the petitioner contended that the impugned communication dated 10.10.2014 is based on an erroneous understanding of Section 28-A and its applicability after insertion of Section 28-A by an Amendment Act 68 of 1984 on 24.09.1984.
5.1 He submitted that such interpretation is directly against interpretation of the same Section by this Court in judgment in the case Ramjibhai Harkhabhai Vs. Second Extra Special Land Acquisition Officer & Anr., reported in 1992 (1) GLH, 194. He submitted that considering the fact that though Section 4 notification is of the year 1981, prior to insertion of Section 28-A, yet the award under the same notification is that of 19.09.1986 and therefore, benefit of Section 28-A needs to be extended to the case of the petitioner.
Page 5 of 20
HC-NIC Page 5 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
5.2 He submitted that considering date of the
award, on the basis of which Section 28-A application is filed, such application is therefore within period of limitation prescribed by the Section and therefore also, case ought to have been considered by the competent authority.
5.3 He submitted that application under Section 28- A was on 06.08.2002 and rejection of the same by the impugned communication is dated 10.10.2014. Prior to this, the respondent authority never called upon the petitioner before taking such decision and hence, opportunity of hearing was deprived, thereby violating principles of natural justice.
5.4 He also placed reliance upon two judgments of the Apex Court, i.e. in the cases of Babua Ram & Ors. Vs. State of U.P. & Anr., reported in (1995) 2 SCC, 689 and Union of India & Anr. Vs. Pradeep Kumari & Ors., reported in (1995) 2 SCC, 736 to substantiate his claim that though applicability of Section 28-A is prospective in nature, such prospectivity would be applicable to cases where Section 11 award is passed after insertion of Section 28- A in the year 1984.
5.5 He also relied upon judgment of the Apex Court in the case of Union of India & Anr. Vs. Hansoli Devi & Page 6 of 20 HC-NIC Page 6 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT Anr., reported in (2002) 7 SCC, 273 to contend that even if the petitioner has not protested by making application under Section 18 of reference to be made by the Collector, still he would be a "person aggrieved" and would be entitled to make application under Section 28-A.
6. As against this, learned AGP Ms.Maithili Mehta, by relying upon the provisions of Section 28-A and the date on which Section 28-A was inserted in the Land Acquisition Act, submitted that as the date of Section 4 notification is prior to amendment dated 24.09.1984, it will not be open for the authority to re-open the award of Section 11.
6.1 Learned AGP also relied upon the very same judgment, i.e. in the case of Babua Ram (supra) by referring to para-21 to contend that the prospectivity of application of Section 28-A is to be determined on the basis of the date of Section 4 notification.
7. Having heard learned Advocates for the parties, the short question that comes up for consideration of this Court is that whether Section 28-A can be made applicable to the persons whose lands have been acquired under the Land Acquisition Act, where Section 4 notification is prior to commencement of the Amendment Act 68 of 1984, i.e. 24.09.1984 and the award under Page 7 of 20 HC-NIC Page 7 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT Section 26, which is the base for application under Section 28-A, is subsequent to commencement of the Amendment Act 68 of 1984.
8. In the instant case, the undisputed facts are that land of the petitioner has been acquired for public purpose, where Section 4 notification was published on 06.03.1981, Section 6 notification was published on 06.03.1984 and award under Section 11 was pronounced on 19.09.1984. The petitioner, who, though had not filed a reference under Section 18, wanted to take advantage of the award passed by the Reference Court pursuant to the reference made under Section 18 by other persons similarly situated and whose lands were acquired by land acquisition proceedings instituted under the same notification under Section 4. The reference came to be allowed by the concerned Civil Judge by award dated 04.05.2002 and application under Section 28-A of the petitioner is dated 06.08.2002. The Apex Court in the judgment of Babua Ram (supra) had an occasion to extensively consider the Amendment Act 68 of 1984 by which Section 28-A was introduced in the parent Act, i.e. the Land Acquisition Act, 1894. While holding application of Section 28-A to operate prospectively, the Apex Court settled the proposition of law with regard to scope of Section 28-A and thereby settled divergent views Page 8 of 20 HC-NIC Page 8 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT of different High Courts prevailing at the relevant time. The Apex Court proceeded to consider the purport of the words "persons aggrieved" and "persons interested" as it appeared in Section 28-A and proceeded to hold that "person interested" becomes aggrieved when for other lands covered by the same notification under Section 4 of the Act, the Court awards compensation in excess of the compensation awarded under Section 11. Such aggrieved persons, who have not made any application to the Collector under Section 18, also would become entitled to invoke Section 28-A. The Right to an aggrieved person under Section 28-A(1) arises only when the Reference Court grants compensation in excess of the amount awarded under Section 11. The Supreme Court, having considered the operation of Section 28-A to be prospective, held that award made under Section 11 becomes final and cannot be reopened by having recourse to Section 28-A if the award was made under Section 26 under the reference of Section 18 prior to commencement of the Amendment Act, i.e. 24.09.1984. Conversely, an award under Section 11 made prior to 24.09.1984 and reference under Section 11 pending in the Civil Court as on 24.09.1984 and in such reference, the Civil Court determines higher compensation on or after 24.09.1984 then the persons interested in other lands covered under the same notification would be entitled to make an application under Section 28-A(2) to Page 9 of 20 HC-NIC Page 9 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT the Collector for re-determination of the compensation on the basis of award and decree under Section 26. This, the Apex Court held would not amount to retrospectively operating Section 28-A or reopening of an award made under Section 11.
9. The judgment of the Apex Court in the case of Pradeep Kumari (supra) rendered by the three Judge Bench, held that application for redetermination of the compensation is required to be made within three months from the date of the award and such Right to make an application arises in favour of the person aggrieved from the award of the Court on the basis of which person is making application for redetermination of compensation. While disagreeing with the judgment in the case of Babua Ram (supra), which is of two Judge Bench only to the extent of the view expressed that the application under Section 28-A for redetermination of the compensation can only be made on the basis of the first award, i.e. made after coming into force of Section 28-A, while disagreeing, but proceeded to hold that that the benefit of redetermination of the amount of compensation under Section 28-A can be availed of on the basis of any one of the awards that has been made by the Court after coming into force of Section 28-A, provided the applicant, seeking such benefit, makes application under Section 28-
Page 10 of 20
HC-NIC Page 10 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
A within the prescribed period of three months from
making of the award on the basis of which redetermination is sought.
10. The Apex Court also proceeded to lay down conditions to be satisfied for invoking the benefits under Section 28-A and held as under:-
"10. It is possible to visualise a situation where in the first award that is made by the court after the coming into force of Section 28-A the enhancement b the amount of compensation by the said award is not very significant for the reason that the person who sought the reference was not able to produce adequate evidence in support of his claim and in another reference where the award was made by the court subsequently such evidence is produced before the court and a much higher amount is awarded as compensation in the said award. By restricting the benefit of Section 28-A to the first award that is made by the court after the coming into force of Section 28-A the benefit of higher amount of compensation on the basis of the subsequent award made by the court would be denied "to the persons invoking Section 28-A and the benefit of the said provision would be confined to re- determination of compensation on the basis of lesser amount of compensation awarded under the first award that is made after the coming into force of Section 28-A. There is nothing in the wordings of Section 28- A to indicate that the Page 11 of 20 HC-NIC Page 11 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT legislature intended to confer such a limited benefit under Section 28-A. Similarly, there may be a situation, as in the present case, where the notification under Section 4(1) of the Act covers lands falling in different villages and a number of references at the instance of persons having lands in different villages were pending in the court on the date of coming into force of Section 28-A and awards in those references are made by the court on different dates. A person who is entitled to apply under Section 28-A belonging to a particular village may come to know of the first award that is made by the court after the coming into force of Section 28-A in a reference at the instance of a person belonging to another village, after the expiry of the period of three months from the date of the said award but he may come to know of the subsequent award that is made by the court in the reference at the instance of a person belonging to the same village before the expiry of the period of three months from the date of the said award. This is more likely to happen in the case of inarticulate and poor people who cannot be expected to keep track of all the references that were pending in court on the date of coming into force of Section 28-A and may not be in a position to know, in time, about the first award that is made by the court after the coming into force of Section 28-A. By holding that the award referred to in Section 28-A(l) is the first award made after the coming into force of Section 28-A, such persons Page 12 of 20 HC-NIC Page 12 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT would be deprived of the benefit extended by Section 28-A. Such a construction would thus result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enacting Section 28-A. The object underlying Section 28-A would be better achieved by giving the expression "an award" in Section 28-A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(l) is thus construed, a person would be able to seek re-determination of the amount of compensation payable to him provided the following conditions are satisfied:-
(i) An award has been made by the court under Part III after the coming in to force of Section 28-A;
(ii) By the said award the amount of
compensation in excess of the amount
awarded by the Collector under Section 11 has been allowed to the applicant in that reference;
(iii)The person moving the application under Section 28-A 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;Page 13 of 20
HC-NIC Page 13 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT
(v) The application is moved within three months from the date of the award on the basis of which the re-determination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28-A for re-determination of compensation by an applicant."
11. In the case of Hansoli Devi (supra), reference was made to Larger Bench, where two questions were formulated. For the purpose of our case, second question thus formulated and answered would be relevant and the same reads as under:-
"2. Whether a person who has received the compensation without protest pursuant to the award of the Land Acquisition Collector and has not filed an application seeking reference under Section 18 is 'a person aggrieved' within the meaning of Section 28-A?".
11.1 While answering this question, the Apex Court held that if a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector is accepted with or without protest, he would be a person aggrieved within the meaning of Section 28-A and would thus be entitled to make an application when some other landowners' reference is answered by the Reference Court.
Page 14 of 20
HC-NIC Page 14 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
12. In the case of Ramjibhai Harkhabhai (supra), in almost identical fact situation, this Court has taken a view that an application for redetermination of compensation when such compensation is enhanced by the Court in respect of other lands covered by the same notification under Section 4 would be maintainable in respect of the awards made by the Court on or after 24.09.1984. The Court also held that applicability of Section 28-A has reference to the date of making of the award by the Reference Court and would not concern the date of notification under Section 4. It would be appropriate to reproduce para-4 of the aforesaid judgment as under:-
"4. Under Sec. 28A of the Act provision is made for re-determination of the amount of compensation on the basis of the award of the Court. It is provided that where in an award under Part III of the Act, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Sec. 11, the persons interested in all the other land covered by the same Notification under Sec. 4, sub-sec. (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 Sec. 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 Page 15 of 20 HC-NIC Page 15 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT payable to them may be re-determined on the basis of the amount of compensation awarded by the Court. In computing the period of three months within which an application is required to be made to the Collector, the day on which the award was pronounced and the time requisite for obtaining a copy of the award has to be excluded as laid down in the proviso of Sec.
28A(1). A bare reading of the provisions of
Sec. 28A(1) makes it clear that it has
reference to an award made under Part III by the Court which necessarily means that Sec. 28A would operate only after a reference is made under Sec. 18 of the Act and an award is made by the Court. The expression 'Court' is denned in Sec. 3(d) of the Act so as to mean a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform the functions of the Court under this Act. Therefore, reference to an award of the Court under Sec. 28A is an award made under Sec. 18 of the Act by the Court. The provisions of Sec. 28A came into force with effect from 24th September, 1984 by Sec. 19 of Act 68 of 1984. It, therefore, means that on the basis of any award made by the Court under Sec. 18 of the Act after the coming into force of Sec. 28A any person interested in any other land covered by the same Notification under Sec. 4 of the Act can make an application under Sec. 28A for re-determination of amount of compensation on the basis of the amount awarded by the Court. The provisions of Sec.
Page 16 of 20
HC-NIC Page 16 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
28A would cover all the awards made by the
Court on and after 24-9-1984 being the date on which the said provision was brought into force. Admittedly the award of the Court was made in Land Acquisition Case No 67 of 1983 and other group matters on 2nd May, 1987 by the Second Extra Assistant Judge, Narol which was after coming into force of Sec. 28A of the Act. Reference to Notification under Sec. 4(1) of the Act which is made in Sec. 28A is only with a view to identify the class of persons interested who can make an application for re- determination of the amount of compensation on the basis of the award of the Court. There is no justification whatsoever for the view that Sec. 28A of the Act would not apply to cases where Notification under Sec. 4(1) of the Act is issued prior to the date on which the said provision was brought into force. Since provision clearly applies only to cases where award is made by the Court after the date on which it was brought into force, there is no reason to refer to the Notifications issued earlier, i.e., prior to the date on which the provision was brought into force for the purpose of determining the applicability of the provision. The emphasis of the provision is on the award made by the Court under Sec. 18 of the Act and in all cases where the award of the Court is made after the provision was brought into force it would apply with prospective effect. Therefore, even if a Notification under Sec. 4 is issued before the said provision was brought into force it cannot be said that Sec.
Page 17 of 20
HC-NIC Page 17 of 20 Created On Mon Aug 14 11:00:45 IST 2017
C/SCA/3169/2016 JUDGMENT
28A is sought to be applied retrospectively if the award of the Court under Sec. 18 is declared after the date on which the provision was brought into force. Hence the interpretation sought to be put on Sec. 28A by the Second Additional Special Land Acquisition Officer in his order dated 11th April, 1988 that the provision applies only to cases where Notification under Sec. 4(1) is issued after 24-9-1984 being the date on which the provision brought into force is not at all warranted by the said provision. The Second Additional Special Land Acquisition Officer has not considered other aspects of the matter including the one whether the application was made within the prescribed time limit, since he disposed of the application merely on the ground that Sec. 4 Notification was prior to 24-9-1984. In this view of the matter the impugned order of the Second Additional Special Land Acquisition Officer, Ahmedabad, dated 11th April, 1988 at Annexure 'A' will have to be set aside and the matter will have to be remanded for considering the application of the petitioner made under Sec. 28A of the Act on merits in the light of the observations made in this judgment. We make it clear that the question of limitation prescribed for making of such application and the aspect of condonation of delay, if it arises, may suitably be considered by the Special Land Acquisition Officer in accordance with law. Rule is therefore made absolute accordingly with no order as to costs."Page 18 of 20
HC-NIC Page 18 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT
13. Therefore, considering the law that has now been crystallized and in view of the aforementioned pronouncements of the Apex Court as well as this Court and considering the undisputed facts and chronology, this Court is of the view that the respondents have committed an error in holding that application under Section 28-A of the petitioner is not maintainable in view of the fact that Section 4 notification is prior to the 68 Amendment Act of 1984 dated 24.09.1984. The application under Section 28-A is filed on 06.08.2002 on the basis of the award dated 04.05.2002. It is averred in the petition and not controverted that the petitioner got the knowledge of the award of Reference Court on 15.07.2002 and thereafter, the application was made to receive certified copy of the award. The certified copy was made available to the petitioner on 25.07.2002. Considering this aspect, the application dated 06.08.2002 necessarily be treated as an application within the period prescribed under Section 28-A.
14. It is held that the application under Section 28-A made by the petitioner on 06.08.2002 on the basis of award of the Reference Court dated 04.05.2002 be treated as an application of a "person aggrieved", filed within the period of limitation prescribed and be dealt with by the respondents accordingly. It is also held that the Page 19 of 20 HC-NIC Page 19 of 20 Created On Mon Aug 14 11:00:45 IST 2017 C/SCA/3169/2016 JUDGMENT petitioner would fall in the category of a "person aggrieved", whose application under Section 28-A will have to be considered by the respondents. The case of the petitioner clearly satisfies the conditions as laid down by the Apex Court in the judgment of Pradeep Kumari (supra). The impugned communication dated 10.10.2014 is hereby quashed.
15. Considering the lapse of time after the application under Section 28-A, it would be appropriate to direct the respondents to take a decision within a period of six weeks from the date of receipt of writ of this Court.
16. The petition is allowed. Rule is made absolute to the aforesaid extent. No order as to costs.
(ANANT S.DAVE, J.) (A.Y. KOGJE, J.) SHITOLE Page 20 of 20 HC-NIC Page 20 of 20 Created On Mon Aug 14 11:00:45 IST 2017