Himachal Pradesh High Court
Mohammad Ali vs Land Acquisition Collector And Others on 13 January, 2023
Bench: Amjad Ahtesham Sayed, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.3803 of 2010 alongwith connected matters Reserved on: 5th January, 2023 .
Decided on: 13th January, 2023
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1. CWP No.3803 of 2010 Mohammad Ali .....Petitioner Versus Land Acquisition Collector and others .....Respondents
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2. CWP No.8804 of 2010 Daftar Singh r .....Petitioner Versus HPSEB Limited and others .....Respondents
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3. CWP No.5225 of 2012Lumbi Devi .....Petitioner Versus HPSEB Limited and others .....Respondents
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4. CWP No.5831 of 2012Gurjan Devi .....Petitioner Versus HPSEB Limited and others .....Respondents
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::: Downloaded on - 13/01/2023 20:33:12 :::CIS 2 5. CWP No.5832 of 2012Thangloo .....Petitioner .
Versus HPSEB Limited and others .....Respondents
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6. CWP No.5858 of 2012Suresh Kumar .....Petitioner Versus HPSEB Limited and others .....Respondents
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7. CWP No.8481 of 2012Kalu Ram .....Petitioner Versus HPSEB Limited and others .....Respondents
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Coram The Hon'ble Mr. Justice A.A. Sayed, Chief Justice The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge Whether approved for reporting? 1 Yes. Mr. Vinay Kuthiala, Senior Advocate with Ms. Vandana Kuthiala and Mr. Diwan Singh Negi, Advocates, for the petitioner(s) in all the petitions.
1Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 3 Mr. Tara Singh Chauhan, Advocate, for respondent Nos.1 and 2-HPSEB Limited.
Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Additional Advocate General, for respondent No.3-State in CWP No.3803 of 2010.
.
Mr. Balram Sharma, Deputy Solicitor General of India, for respondent No.4 in CWP No.3803 of 2010 and respondent No.3 in CWP Nos.8804 of 2010 and 5225, 5831, 5832, 5858 and 8481 of 2012.
None for respondent Nos.4 to 11 in CWP No.8804 of 2010, 4 to 7 in CWP No.5831 of 2012, 4 and 5 in CWP No.5832 of 2012, 4 to 6 in CWP No.5858 of 2012 and respondent No.4 in CWP No.8481 of 2012.
Respondent No.7 in CWP No.5858 of 2012 stands deleted vide order dated 22.05.2012.
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Jyotsna Rewal Dua, Judge
Index
Sr. Particulars Pages
Nos.
1. Question involved 4
2. Facts 4-6
3. Submissions and Constitutional Provisions 6-15
4. Observations:-
(i) Provisions of the Land Acquisition Act 15-18
(ii) Presumption in favour of constitutionality of the 18-22
enactment
(iii) Article 31A(1) second proviso vis-à-vis the Land 22-25
Acquisition Act
(iv) Exercise of rights under Sections 18 & 28A of the 25-35
Act and limitation provided thereunder for exercising such rights
(v) Payment of compensation and Article 14 of the 35-37 Constitution of India
5. Conclusions 37-39 ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 4 In all these connected matters, a common issue has been raised, hence, these are being decided vide this common judgment.
.
2. The question raised by the petitioners is whether the limitation period provided under Sections 18 and 28A of the Land Acquisition Act (in short 'Act') for availing the remedies provided under these sections, i.e. for seeking reference or for payment of correct market value of acquired land, is violative of second proviso to Article 31A(1) of the Constitution of India. Main prayer of the petitioners is to quash Sections 18 and 28A of the Act and to declare these provisions unconstitutional and invalid to the extent these provide for limitation period.
3. Facts:-
For sake of convenience, facts from CWP No.3803 of 2010 have been referred to.
3(i). Petitioner was owner in possession of land denoted by Khata/Khatauni No.149/488, Khasra Nos.1263 and 1266, measuring 0-35-42 hectares, situated in Mauza Ganvi, Tehsil Rampur Bushahar, District Shimla. This land alongwith other parcels of land was acquired by the respondents for construction of a hydel power project.
Notification under Section 4 of the Act was issued on ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 5 08.09.1988. Declaration under Sections 6 and 7 of the Act was issued on 04.09.1989.
3(ii). After completing codal formalities, Award No.316 .
was passed by the Land Acquisition Collector on 20.11.1991, acquiring the land including the above described land of the petitioner. Compensation amount in terms of the award was paid to all the right holders including the petitioner.
3(iii). The petitioner received compensation awarded by the Land Acquisition Collector amounting to Rs.32,277/-
vide Cheque No.194081, dated 03.02.1995, without any protest. Petitioner did not challenge the award of the Land Acquisition Collector. He did not take recourse to Section 18 of the Act and accepted the award passed by the Collector on 20.11.1991. Some of the parties preferred reference petition against the award passed by the Land Acquisition Collector under Section 18 of the Act. Learned District Judge decided these reference petitions vide award dated 07.03.2003. The compensation for the acquired land was enhanced by the learned Reference Court at the rate of about Rs.88,000/- per bigha. Respondent-HPSEB Limited challenged the award passed by the learned Reference Court by filing Regular First Appeal, bearing RFA No.112 of ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 6 2003. The appeal was decided by this Court on 02.09.2008.
The enhanced compensation was reduced to Rs.48,400/-
per bigha alongwith all statutory benefits.
.
3(iv). Petitioner neither filed any reference petition under Section 18 of the Act against the award passed by the Collector on 20.11.1991 nor he made any application under Section 28A of the Act for redetermination/ enhancement of compensation for his acquired land on the basis of enhancement ordered by the learned District Judge vide his award dated 07.03.2003. The petitioner had accepted the award dated 20.11.1991 on 03.02.1995 when he received the compensation. Petitioner moved this Court on 04.07.2010 invoking extra-ordinary jurisdiction under Article 226 of the Constitution of India seeking full and correct market value for his acquired land in the same manner as had been done in case of persons whose land was acquired under the same notification issued under Section 4 of the Land Acquisition Act. It has been pleaded that the acquired land of the petitioner was in his personal cultivation and within the applicable ceiling limit.
Petitioner's claim was barred by limitation prescribed under Sections 18 and 28A of the Land Acquisition Act. Hence, the petitioner has primarily prayed for declaring the ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 7 limitation period set out in Sections 18 and 28A of the Act as unconstitutional and invalid.
4. Submissions:-
.
We have heard the arguments advanced on the above legal issue by Sh. Vinay Kuthiala, learned Senior Counsel for the petitioners, Sh. Ashok Sharma, former Advocate General, who represented the State in these matters on several hearings, Sh. Anup Rattan, learned Advocate General (present), Sh. Balram Sharma, learned Deputy Solicitor General of India and Sh. Tara Singh Chauhan, learned Standing Counsel for the respondent-
HPSEB Limited. To avoid repetitiveness, we have discussed hereinafter the points emphasized by learned counsel for the parties alongwith our observations.
4(i). Article 31A is placed in Part III of the Constitution of India, which pertains to Fundamental Rights. The article with its first proviso was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. This Article as it stands today is as under:-
"31A. Saving of laws providing for acquisition of estates, etc.-
(1) Notwithstanding anything contained in article 13, no law providing for--
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 8
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper .
management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by [article 14 or article 19:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(2) In this article,--
(a) the expression ''estate'' shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 9 land tenures in force in that area and shall also include--
(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;
(ii) any land held under ryotwari settlement;
.
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;
(b) the expression ''rights'', in relation to an estate, shall include any rights vesting in a proprietor, sub-
proprietor, under-proprietor, tenure-holder, [raiyat, under-raiyat] or other intermediary and any rights or privileges in respect of land revenue.]"
Article 13 of the Constitution also falls in Part III of the Constitution and reads as under:-
"13. Laws inconsistent with or in derogation of the fundamental rights.-
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,-
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.::: Downloaded on - 13/01/2023 20:33:12 :::CIS 10
(4) Nothing in this article shall apply to any amendment of this Constitution made under article
368."
Second Proviso to Article 31A(1), around which .
petitioners' case revolves, was added by the Constitution (Seventeenth Amendment) Act, 1964. Article 31A, inter alia, provides that notwithstanding anything contained in Article 13, no law providing for the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Article 14 or Article 19 of the Constitution. The protection made available to the State under Article 31A is subject to two riders. Firstly, that such law if made by the State Legislature must have received assent of the President. Since in this case, we are concerned with the Land Acquisition Act, i.e. Central Enactment, the above rider, i.e. First Proviso to Article 31A(1), is not attracted. The second rider is provided by the second proviso. Article 31A(1)(a), when read with second proviso, states that a law providing for acquisition by the State of any estate or any rights therein/extinguishment or modification of any such rights, shall not be deemed to be void on the ground that it takes away or abridges ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 11 fundamental rights conferred by Article 14 or Article 19.
But saving of such law comes with one guaranteed protection that in case the land comprised therein is held .
by a person under his personal cultivation and is within the ceiling limit applicable to him under any law for the time being in force then, it shall not be lawful for the State to acquire any portion of such land, any building or structure standing thereon or appurtenant thereto, unless the law relating to acquisition of such land, building or structure provides for payment of compensation at a rate which shall not be less than the market value thereof.
4(ii). The main contention of learned Senior Counsel for the petitioner is that Article 31A(1) second proviso of the Constitution of India injuncts the State from acquiring agricultural land held by a person within the land ceiling limit without paying the market value. The owner of such land has a fundamental right to receive the market value for his acquired land. Article 13 of the Constitution of India specifically provides that any law which takes away or abridges the fundamental rights conferred by Part III of the Constitution of India or any law which is inconsistent with the provision of Part III of the Constitution of India, shall to ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 12 the extent of such inconsistency or contravention be void.
The limitation period prescribed under Sections 18 and 28A of the Act is in gross contravention and violation of Article .
31A(1) second proviso of the Constitution of India inasmuch as these provisions permit the State to acquire land within the ceiling limit without paying the market value on the ground that the owner of the land or the person concerned had not taken resort to the legal remedies within the time stipulated by these provisions.
4(ii)(a). It was submitted that the Hon'ble Apex Court in (2017) 9 SCC 426 (Narendra and others Versus State of Uttar Pradesh and others), had held that a person covered under the same notification under Section 4 of the Land Acquisition Act should be paid same compensation.
No person should be discriminated against on technical grounds. Purpose and objective behind Section 28A of the Act is salutary in nature.
4(ii)(b). AIR 1977 SC 915 (Dattatraya Govind Mahajan and others v. The State of Maharashtra and another), AIR 1967 SC 856 (Ajit Singh v. State of Punjab and another) and AIR 1985 Bombay 290 (Janabai v. Laxman Gunaji Wanole and another), were highlighted to project that paying market value for the ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 13 acquired land, which falls within the ceiling limit has been held to be the duty of the State as the land owner has a fundamental right to receive proper and adequate .
compensation/market value for his land. That Article 31A(1) protects property against deprivation by executive action, which is not supported by law. Article 31 confers a fundamental right of property on an individual by declaring that his property shall not be liable to be compulsorily acquired or requisitioned except for a public purpose and the law which authorizes such acquisition or requisition must provide for payment of an amount, which may be either fixed by such law or which may be determined in accordance with the principles and given in the manner specified in such law. The second proviso confers a right on a person to get compensation at a rate which is not less than the market value in respect of such portion of land under his personal cultivation as is within the ceiling limit applicable to him. This is a fundamental right and creative of second proviso to Article 31A(1).
4(ii)(c). (1985) 3 SCC 737 (Bhag Singh and others Versus Union Territory of Chandigarh), was cited to point out that apart from socio-economic inequalities accentuating the disabilities of the poor and in an unequal ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 14 fight, the adversarial process itself operates to the disadvantage of the weaker part and the Court invokes the principle of fairness and equality, which are essential for .
dispensing justice.
4(ii)(d). A full Bench decision of this Court rendered on 30.03.2022 in LPA No.33 of 2021 (State of Himachal Pradesh and others Versus Sita Ram Sharma) was referred, wherein it was, inter alia, held that the State authorities cannot acquire any land of a citizen except by paying adequate compensation.
4(ii)(e).
Learned Senior Counsel also submitted that in its various recent pronouncements, more specifically in (2020) 2 SCC 569 (Vidya Devi Versus State of Himachal Pradesh and others) and Civil Appeal No.2273 of 2022 (Sukh Dutt Ratra and another Versus State of Himachal Pradesh & Ors.), decided on 06.04.2022, Hon'ble Apex Court has allowed payment of market value of the acquired land to those who had approached the Court very late in the day.
4(ii)(f). Referring to AIR 1991 SC 1966 (A. Viswanatha Pillai and others v. Special Tahsildar for Land Acquisition No.IV and others) and (2003) 1 SCC 526 (Jalandhar Improvement Trust Versus State of ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 15 Punjab and others), it was submitted that a co-owner is an agent of all co-owners and the reference petition by a co-owner is to be considered on behalf of all. Co-villagers of .
the petitioners had been paid enhanced compensation at the market value determined by this Court in RFA No.112 of 2003. On the same analogy, the petitioner is entitled to be paid the same compensation as was paid to other co-villagers.
4(ii)(g). The gist of submissions made by learned Senior Counsel for the petitioners is that the petitioners are entitled to market value of acquired land determined by this Court in RFA No.112 of 2003, which was instituted by their co-villagers. Their grievance is that they cannot exercise their right to claim the market value at this stage in view of the restraint imposed by the State by prescribing limitation period for the exercise of rights under Sections 18 and 28A of the Act, hence, these provisions be declared unconstitutional and invalid to the extent they provide limitation period for exercise of these remedies.
4(iii). Common core of submissions advanced for the respondents is that right has to be exercised within the limitation prescribed for the exercise of such right.
Prescribing limitation period for enforcement of a right is ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 16 based on public policy. Placing reliance upon several pronouncements of Hon'ble Apex Court, it was emphasized that there is no illegality or unconstitutionality in .
prescribing limitation period for exercise of rights under Sections 18 and 28A of the Act. In case, the rights are not enforced within the stipulated limitation period, then, the remedy to enforce them goes.
5. Observations:-
5(i). Petitioners have challenged the constitutionality of Sections 18 and 28A of the Land Acquisition Act to the extent these provide period of limitation for exercise of remedies made available under these provisions. Part III of the Land Acquisition Act is titled 'reference to Court and procedure thereon'. Section 18 is the first section of this part. It provides the remedy of making reference to an aggrieved person from the award passed by the Collector to the Court. 'The Court' referred to under Section 18 means Principal Civil Court of original jurisdiction. Section 28A is the last section of this part. These sections are as follows:-
"18. Reference to Court.−(1) Any person interested who has not accepted the award 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 persons to whom it is ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 17 payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award 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, within six weeks from the date of the Collector's award;
(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, whichever period shall first expire. Provided further that the Collector may entertain an application under this section, after the expiry of the period of six weeks but within a period of six months, if he is satisfied that the applicant was prevented by sufficient cause from making the application in time.
[Vide Himachal Pradesh Act 17 of 1986, sec. 2 (w.e.f. 22-7-1986)].
28A.
Re-determination of the amount of compensation on the basis of the award of the Court.−(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 ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 18 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 a reference under section 18."
Article 31A was added in the Constitution in the year 1951 to make it clear that a law providing for acquisition of an 'estate' shall not be open to attack on the ground that it infringes any right of the individual guaranteed by Part III of the Constitution of India. The protection made available to the law under Article 31A is not absolute, but is restricted by its second proviso incorporated in the Article in the year 1964. The second proviso mandates that protection to such law made under Article 31A(1)(a) will be available if the law made for such acquisition provides for payment of compensation at the rate which shall not be less than the market value.
Petitioners' case is that in terms of Article 31A(1) second proviso of the Constitution, they have a fundamental right to receive market value for their acquired land, but the limitation period prescribed under Sections 18 and 28A of the Act comes in their way and takes away from them their right to get the market value for their acquired ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 19 land; The limitation period prescribed in these two sections of the Act is violative of Article 31A(1) second proviso of the Constitution of India; Petitioners are entitled to .
compensation that has been paid to their co-villagers.
5(ii). Presumption in favour of constitutionality of the enactment:-
In AIR 1960 SC 554 (Hamdard Dawakhana and another Versus The Union of India and others), Hon'ble Supreme Court held that when the constitutionality of an enactment is challenged on the ground of violation of any of the Articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary, i.e., its subject matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so, it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy. Another principle which has to be borne in mind in examining the constitutionality of a statute is that it must be assumed that the legislature understands and ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 20 appreciates the need of the people and the laws it enacts are directed to problems which are made manifest by experience and that the elected representatives assembled .
in a legislature enact laws which they consider to be reasonable for the purpose for which they are enacted.
Presumption is, therefore, in favour of the constitutionality of an enactment.
5(ii)(a). The exerts from the statement of objects and reasons for the Constitution (Seventeenth Amendment) Act in inserting second proviso to Article 31A(1) are as under:-
r "Article 31A of the Constitution provides that a law in respect of the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights shall not be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31. The protection of this article is available only in respect of such tenures as were estates on the 26th January, 1950, when the Constitution came into force. The expression "estate"
has been defined differently in different States and, as a result of the transfer of land from one State to another on account of the reorganisation of States, the expression has come to be defined differently in different parts of the same State. Moreover, many of the land reform enactments relate to lands which are not included in an estate. Several State Acts relating to land reform were struck down on the ground that the provisions of those Acts were violative of articles 14, 19 and 31 of the Constitution and that the protection of article 31A was not available to them. It is, therefore, proposed to amend the definition of "estate" in article 31A of the Constitution by including therein, lands held under ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments. It is further proposed to provide that ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 21 where any law makes a provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any such land as is within the ceiling limit applicable to him under any law for the time being in force or any .
building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure provides for payment of compensation at a rate not less than the market value thereof.
2. It is also proposed to amend the Ninth Schedule by including therein certain State enactments relating to land reform in order to remove any uncertainty or doubt that may arise in regard to their validity.
3. The Bill seeks to achieve these objects................"
5(ii)(b).
Article 31A(1)(a) was originally aimed to operate in the field of agrarian reforms. The purpose was to acquire lands held by 'zamindars' and intermediaries who were mere rent receivers and to save laws providing for compulsory acquisition of such lands from challenge of constitutionality under Article 19(1)(f) or 31(2). The object of Constitution (Fourth Amendment) Act, 1955 was to take out not only laws relating to abolition of 'Zamindari', but also other agrarian and social welfare legislation, which affect proprietary rights altogether, from the purview of Articles 14, 19 and 31. Since this amendment, Article 31A is no longer confined to legislation for agrarian reforms.
[Re: (1977) 1 SCC 340, State of Haryana and another Versus Chanan Mal and others] ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 22 Second Proviso was inserted by the Constitution (Seventeenth Amendment) Act, 1964, in view of the fact that lands held under a ryotwari settlement were brought under .
the purview of Article 31A(1)(a) by inserting Cl.(2)(a)(ii) by the same amendment. It was realized that where large tracks were held by the tenants under a ryotwari system, any scheme of agrarian reforms in such areas could not be successful unless lands held in excess of the requirements of personal cultivation of the tenant were also acquired and distributed by the State amongst the landless. Hence, it was provided by the second proviso that any law for acquisition of lands (within the applicable ceiling limit) could not get protection of Article 31A(1)(a) unless the law provided for paying full market value of the acquired land as distinguished from a mere nominal sum, which satisfies the requirements of original Article 31-31A in case of estates held under the permanent settlement. Insertion of second proviso was necessitated by the enactment of ceiling laws by the States. It was inserted by way of exception to provide for compensation in cases covered by the second proviso.
::: Downloaded on - 13/01/2023 20:33:12 :::CIS 235(iii). Article 31A(1) second proviso vis-à-vis Land Acquisition Act:-
Article 31A(1) second proviso of the Constitution of India mandates that where any law makes any provision .
for acquisition by the State of any estate or of any rights therein or the extinguishment or modification of such rights, such law shall not be deemed to be void on the ground that it is inconsistent with or takes away or abridges the rights conferred by Article 14 or Article 19 provided that such law provides for payment of compensation for acquisition of land/building or structure standing thereon or appurtenant thereto, which is under personal cultivation of the person and within the applicable ceiling limit, for payment of compensation at a rate which shall not be less than market value thereof. Land Acquisition Act is a law that provides for payment of compensation at a rate which shall not be less than the market value of the land. Section 18 of the Act gives a remedy to any interested person who has not accepted the award passed by the Collector. Such person can avail the remedy available in this section by making a written application to the Collector, requiring that the matter be referred by the Collector for the determination of the Court.::: Downloaded on - 13/01/2023 20:33:12 :::CIS 24
Similarly, Section 28A of the Act states that where in an award passed under Part III of the Act, the Court allows 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(1) and who are also aggrieved by the award of the Collector, may notwithstanding that they had not made any application to the Collector under Section 18, by written application to the Collector, 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.
Land Acquisition Act thus has provisions in form of above two sections that are aimed to provide market value to those whose land is acquired by the State.
Therefore, it cannot be said that law (the Land Acquisition Act) does not provide for giving market value of acquired land. Requirement of second proviso to Article 31A(1) for saving the law of the nature stated in this Article is that such law must provide for payment of compensation at a rate which shall not be less than the market value thereof.
The Land Acquisition Act fulfils this requirement. The Land Acquisition Act makes provision for acquisition of estates.
::: Downloaded on - 13/01/2023 20:33:12 :::CIS 25The protection under Article 31A will not be available to this law (the Land Acquisition Act) unless the law provides for payment of compensation at the market value rate. Sections .
18, 23 and 28A etc. of the Land Acquisition Act provide for paying compensation at the market value of the acquired land. In terms of these provisions, mandate of constitutional provision under second proviso to Article 31A(1) is fulfilled. The second proviso only mandates requirement of a provision under the Land Acquisition Act relating to provide compensation at market value and nothing more. The second proviso does not state that a person has to be given compensation at the market value in disregard to other statutory stipulations. To exercise such right under the law, period of limitation has been prescribed.
Section 28A of the Land Acquisition Act provides for redetermination of the amount of compensation on the basis of award of the Court. In terms of this section, interested person has the right to submit his application within three months from the date of the award of the Court. Prescribing limitation period, in a manner, provides for extinguishment of right after the expiry of the stipulated ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 26 period. This extinguishment of right by prescribing limitation period for exercising the right cannot be held to be unconstitutional. It is protected under Article 31A(1)(a).
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5(iv). Exercise of rights under Sections 18 and 28A and limitation provided thereunder for exercising such rights:-
5(iv)(a). Law of limitation is founded on most salutary principle of public policy. Its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. Limitation Act is not an equitable piece of legislation, but has been termed as a statute of repose, peace and justice. The statute discourages litigation by burying in one common receptacle all the accumulations of past times which are unexplained and have not from lapse of time become inexplicable. Rules of limitation are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the Courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is founded ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 27 on public policy that is enshrined in the maxim interest reipublicae ut sit finis litium (it is for the general welfare that a period be put to litigation). The idea is that every legal .
remedy must be kept alive for legislatively fixed period of time. The right undoubtedly available to a litigant becomes unenforceable if the litigant does not approach the Court within the time prescribed. It is in this context that it has been said that the law is for the diligent. [Re: (2012) 5 SCC 157, Maniben Devraj Shah Versus Municipal Corporation of Brihan Mumbai; (2005) 7 SCC 510, Popat and Kotecha Property Versus State Bank of India Staff Association; and (2005) 8 SCC 709, State of Karnataka Versus Laxuman] In AIR 2006 SC 3608 (Prem Singh & Ors. v.
Birbal & Ors.), Hon'ble Apex Court had observed that limitation is a statute of repose. It ordinarily bars a remedy, but does not extinguish a right. The only exception to the said rule is to be found in Section 27 of the Limitation Act, which provides that at the determination of the period prescribed thereby, limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. The Court observed that an extinction of right, as contemplated by the provisions of the ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 28 Limitation Act, prima facie, would be attracted in all types of suits. The Schedule appended to the Limitation Act, as prescribed by the Articles, provides that upon lapse of the .
prescribed period, the institution of a suit will be barred.
Section 3 of the Limitation Act provides that irrespective of the fact as to whether any defence is set out or is raised by the defendant or not, in the event a suit is found to be barred by limitation, every suit instituted, appeal preferred and every application made after the prescribed period shall be dismissed.
5(iv)(b).
Law of limitation cannot be treated as a purely procedural law specially when it leads to extinguishment of rights or remedies. Law of limitation is a substantive law.
[Re: (2020) 17 SCC 798, Bank of Baroda Versus Kotak Mahindra Bank Limited] 5(iv)(c). The right available to a person becomes unenforceable if that right is not exercised within the prescribed time. Providing specific period for exercise of right is not unconstitutional. Providing time for exercising any right cannot be held as illegal and void act. Such provision would be in furtherance of public policy.
Considering the justifiability of the period of limitation provided in Section 18 as enforced in the State of ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 29 Karnataka, the Hon'ble Apex Court in (2005) 8 SCC 709 (State of Karnataka Versus Laxuman), held that Section 18 of the Act as amended and in force in Karnataka, .
confers additional rights on a claimant by providing an extended time for making an application for reference and a further right of the claimant to approach the Land Acquisition Court for directing a reference to it, based on the application already made by him before the Deputy Commissioner. Under the scheme of Section 18 of the Act as in Karnataka, the claimant loses his right to move the Court for reference on the expiry of three years and ninety days from the date of his making an application to the Deputy Commissioner under Section 18(1) of the Act within the period fixed by Section 18(2) of the Act. This loss of right to move the Court precludes him from seeking a remedy from the Court in terms of Section 18 of the Act.
This loss of right in the claimant puts an end to the right of the claimant to seek enhancement of compensation. Apex Court further held that this, however, does not deprive a claimant, who had protested, of his right to enhanced compensation in view of the introduction of Section 28A of the Land Acquisition Act. He could seek an enhancement based on any award that might have been made within the ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 30 time prescribed therefor in respect of the land covered by the same notification. It was further held that it is not possible to hold that by invoking Section 5 of the Limitation .
Act before the Land Acquisition Court, the claimant can get over the bar to the remedy created by Section 18 of the Act.
Extinguished right cannot be revived by resorting to Section 5 of the Limitation Act.
(2009) 16 SCC 1 (Steel Authority of India Limited Versus Sutni Sangam and others) holds that a holistic approach is required for interpreting the provisions of the Land Acquisition Act, which must be read in its entirety. The provisions must meet the tests of Article 300-A of the Constitution of India. The Act provides for a fair procedure. Even if a holder of a land fails to file an application for reference under Section 18 due to his ignorance, in terms of Section 28-A, he is entitled to receive a just amount of compensation on the basis of similar awards. The finality of the awards under Section 12 is subject to review by the Reference Court under Section 18 read with Section 31(2) or Section 30. The validity of the award can be called into question in a court of law on any judicially recognized grounds. When a land (private or State land) is acquired in terms of the provisions of the Act in ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 31 exercise of State's power of eminent domain, there is no doubt that such acquisition is permissible not only for a public purpose but also for a company. But a public .
purpose therefor must exit and acquisition must take place within a required time-frame. The Act provides elaborate provisions for payment of compensation and appellate forums to safeguard the rights of owners of the land as envisaged under Article 300-A of the Constitution of India.
5(iv)(d). It will be apt to refer to some judgments, wherein the Hon'ble Apex Court considered the period of limitation prescribed under Section 28A of the Act. In (1995) 2 SCC 689 (Babua Ram and others Versus State of U.P. and another), Hon'ble Supreme Court held that Section 28A of the Act is a complete code in itself providing substantive right to an interested owner, who received compensation under Section 18 without protest for higher compensation. Remedy has been provided to make a written application within the prescribed period. Any interested person in the land acquired under the same notification published under Section 4(1) who failed to avail the right and remedy under Section 18(1) read with second proviso to Section 31(2), becomes a person aggrieved under Section 28-A(1) of the Act when the owner of the another ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 32 land covered by the same notification is awarded higher compensation by the civil court on a reference got made by him under Section 18. The legislature intended to relieve .
hardship to the poor, indigent and inarticulate interested person, who failed to avail the reference under Section 18.
Section 28A of the Act was enacted giving remedy for redetermination when another person had got higher compensation under Section 26 in excess of the compensation awarded under Section 11 of the Act. In other words, the statute makes the person to be conscious of his right even though the presumption that everyone knows law goes against him and failed to avail the right and remedy under Section 18, yet Section 28A gives the self-
same relief. Class of similar persons who availed the right and remedy but were unsuccessful are treated as a distinct class. It can by no means be said to be arbitrary as the classification is based on intelligible differentia and bears reasonable relation to the object of according another opportunity. The legislature appears to have presumed that the same state of affairs continues to subsist among the poor and inarticulate persons and they generally fail to avail the right under Section 18 due to poverty or ignorance or avoidance of expropriation. Parliament made conscious ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 33 discrimination between the poor and inarticulate as a class and comparatively affluent as another class and conferred the rights under Section 28A in favour of the former. It was .
thus held that Section 28A is just & fair and does not violate Article 14. The procedure prescribed under Section 28A was also held to be not violative of Article 21 of the Constitution of India. It was also held that bare reading of Section 28A(1) alongwith its proviso would indicate that making of the award by the Civil Court, which becomes the judgment and decree under Section 26 is the starting point from which the period of limitation is allowed for making an application under Section 28A. The legislature prescribed three months limitation to quicken diligence like caveat emptor and provided to a non-protester right to redetermination provided the application in writing is made to the Collector within three months from the date of award of the Civil Court of original jurisdiction excluding the requisite time taken to obtain a copy of the award. In other words, the right and remedy provided by Section 28A(1) stand extinguished with the expiry of three months from the date of award under Section 26. In a given set of facts, there could be more than one reference under Section 18 at the behest of different claimants of the land covered by ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 34 Section 4(1) notification as the Court may make successive awards at various times. The compensation given in the respective awards may vary and may be higher than the .
one given in the earlier award. In the teeth of the express language in Sub-section (1) of Section 28A, limitation of three months once expires in respect of earliest award by efflux of time, none of the later awards could provide any assistance to revive the lapsed time under Section 28A(1) nor provide fresh cause of action or successive causes of action when multiple awards are made on different times or dates.
(1995) 2 SCC 736 (Union of India and another Versus Pradeep Kumari and others), holds that the object underlying the enactment of Section 28A is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the Civil Court under Section 18 of the Act. The object underlying Section 28A would be better achieved by giving the expression "an award" in Section 28A its natural meaning as meaning the award that is made by the Court in Part III of the Act after coming into force of Section 28A. If the expression in Section 28A(1) is thus ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 35 construed, a person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied:-
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"(i) An award has been made by the court under Part III after the coming into 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;
(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."
In (2013) 10 SCC 765 (Popat Bahiru
Govardhane and others Versus Special Land
Acquisition Officer and another), while discussing
Section 28A of the Land Acquisition Act, Hon'ble Supreme Court observed that the statute provides limitation of three months from the date of award by the Court excluding the time required for obtaining the copy from the date of the award. It has no relevance so far as the date of acquisition of knowledge by the applicant is concerned. The plea of the applicant that limitation of three months would begin from the date of knowledge was not accepted and held to be ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 36 unsustainable. The Court held that 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 statutory provision may cause hardship or inconvenience to a particular party, however, 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 been consistently held that "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation".
5(v). Payment of compensation and Article 14 of the Constitution of India:-
5(v)(a). Article 14 of the Constitution of India ensures equality amongst equals. Equals should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike. [Re: (1994) 6 SCC 349, Gauri Shanker and others Versus Union of India and others].
Valid classification is nothing but a valid discrimination.::: Downloaded on - 13/01/2023 20:33:12 :::CIS 37
Mere differential treatment is not anathema to Article 14 of the Constitution of India. [Re: 2022 (4) JT 18, State of Uttarakhand Versus Sudhir Budakoti and others].
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Those who might be equally placed at the time of acquisition of their land may subsequently become unequals due to the fact that some of them were vigilant in exercising their right to seek reference/compensation at market value of acquired land within the prescribed limitation period whilst others did not. Article 14 does not operate against rational classification. If right is not exercised within the limitation period, the remedy provided for enforcing it goes. Providing for limitation to exercise a right has well intended object behind it.
5(v)(b). Statute can provide for extinguishment of a right if it is not exercised within the prescribed limitation period.
Claimant loses his right by not enforcing it within the period available for its exercise or in other words, the remedy to avail the right cannot be exercised after the prescribed period. Providing limitation period is based upon public policy that a right should not be allowed to remain a right indefinitely to be used against another at the will and pleasure of holder of right by approaching the Court whenever he chooses to do so. It cannot be postulated that ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 38 right to seek reference or to get market value of acquired land will survive forever without any regard to the limitation. Providing the limitation period to the exercise of .
such rights in terms of Sections 18 and 28A is based upon good public policy as otherwise there will be no end to litigation and even settled land acquisition proceedings will get unsettled and reopened.
The Land Acquisition law would have been invalid and unconstitutional on touchstone of Article 31A(1) second proviso had it not contained provisions for making reference and for payment of market value for the acquired land. Sections 18 and 28A are in furtherance of the right guaranteed under Article 31A(1) second proviso. Had the law not provided for Sections 18 and 28A, perhaps the situation might have been different. But the law provides these rights to an aggrieved person. Providing fetters in form of prescribing limitation period to exercise such rights, cannot be termed as unconstitutional or invalid.
6. Conclusions:-
We conclude as under:-
6(i). Fundamental right that is enshrined under Article 31A(1) second proviso is that law providing for ::: Downloaded on - 13/01/2023 20:33:12 :::CIS 39 acquisition of the property, which is within personal cultivation and within applicable ceiling limit of a person, must have provision for payment of market value of .
acquired land. This is to enable aggrieved person to seek market value of his acquired land.
6(ii). The Land Acquisition Act contains provisions in form of Sections 18, 23 and 28A etc. for providing market value of the acquired land. These sections satisfy the Constitution.
r to mandate of second proviso to Article 31A(1) of the 6(iii). The second proviso to Article 31A(1) does not prohibit prescribing period of limitation in seeking market value of acquired land in legislations pertaining to acquisition of land within personal cultivation and within applicable ceiling limit of the person concerned.
6(iv). Prescription of limitation period under Sections 18 and 28A of the Land Acquisition Act, for the exercise of rights and for enforcement of such rights available in these provisions is not unconstitutional. The provision of time period stipulated in these provisions is intra vires of the Constitution and is valid.::: Downloaded on - 13/01/2023 20:33:12 :::CIS 40
7. In view of the above discussion and for the foregoing reasons, the writ petitions fail and are accordingly dismissed alongwith pending miscellaneous application(s), .
if any.
(A.A. Sayed)
Chief Justice
(Jyotsna Rewal Dua)
January 13, 2023 Judge
Mukesh
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