Punjab-Haryana High Court
Karnail Kaur & Ors vs State Of Punjab & Anr on 27 August, 2013
Bench: Surya Kant, Surinder Gupta
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CWP No.1217 of 1992 (O&M)
Date of Decision: 27.08.2013
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Karnail Kaur & Ors. . . . . Petitioners
VS.
State of Punjab & Anr. . . . . Respondents
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CORAM : HON'BLE MR.JUSTICE
MR.JUSTICE SURYA KANT
HON'BLE MR.JUSTICE SURINDER GUPTA
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1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
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Present: Mr. Sanjay Nagpal, Advocate for the petitioners
Mr. JS Puri, Addl. AG Punjab
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SURYA KANT J. (ORAL)
(1). The petitioners impugn the order dated 29.07.1991 (issued on 03.09.1991) (Annexure P8) passed by the Land Acquisition Collector, Urban Estates Department, Punjab whereby their application dated 06.01.1991 moved under Section 28A of the Land Acquisition Act, 1894 (in short, 'the Act') has been rejected being barred by limitation. (2). The land of the petitioners situated within the revenue estate of village Mangarh, Tehsil Nabha, District Patiala was acquired vide award dated 24.01.1984 (Annexure P1). The co-owners of the petitioners whose 9/12th share was also acquired made reference under Section 18 of the Act. The petitioners moved an application under Order 1 Rule 10 for their impleadment in the pending reference but the District Judge, Patiala disposed of their application vide order dated 16.05.1986/27.11.1986 observing that they could avail the remedy under Vishal V Section 28A of the Act.
2013.09.16 10:58I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -2- (3). The Land Reference No.411 dated 15.06.1985 was decided by the District Judge, Patiala on 30.05.1986 against which the petitioners' co-owners preferred RFA Nos.1916 of 1987 and 2264 of 1986 which were decided on 20.08.1999. They also filed LPA No.1598 of 1987 against the decision in Regular First Appeal(s).
(4). While the above-stated Letters Patent Appeal was still pending, the petitioners are said to have contacted Sh. NN Puri, Advocate to move an application under Section 28A of the Act who instead of filing such application advised the petitioners to file 'execution application' in the Court of District Judge, Patiala. Later on it was realized that the appropriate remedy for the petitioners was to apply under Section 28A of the Act which they submitted on 06/07.01.1991 (Annexure P6) along with an application for condonation of delay (Annexure P7) and in para 6 whereof, the petitioners averred as follows:-
"That Letters Patent Appeal is still pending against the award passed by District Judge, Patiala on 30.05.86 and judgement of Single Judge dated 10.8.1986. It is a continuation of appeal. The applicants through their counsel was able to trace the High Court file in which the record of District Judge in which order in question was passed only on 19.11.1990. On that day they applied for certified copy of the order dated 27.11.1986 which was delivered on 6.12.1990 to the counsel at Chandigarh. He sent a letter to the applicants which they did not receive. He sent another letter dated 31.12.1990 which was received by the applicants two days before, so this took Vishal V 2013.09.16 10:58 I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -3- time for preparation of this petition, so the petition is being filed without losing further time."
(5). The Land Acquisition Collector, however, dismissed the petitioner's application vide impugned order dated 29.07.1991/03.09.1991 (Annexure P8) being barred by limitation without making any reference to their application seeking condonation of delay. (6). The aggrieved petitioners have approached this Court. (7). The question that arises for consideration is whether the petitioners' application under Section 28A of the Act was barred by limitation?
(8). The question whether the expression "Court" contained in Section 28A(1) means the 'Reference Court' only or it also includes 'superior Courts' is no longer res integra. Their Lordships of the Supreme Court in Union of India v. Munshi Ram (D) by LRs & Ors. (2006) 4 SCC 538, ruled that :-
"7. We are of the view that the Union of India is right in its submission that the amount payable under Section 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under Section 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference under Section 18. It cannot be that those who Vishal V 2013.09.16 10:58 I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -4- secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied under Section 28A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by higher Courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference under Section 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the Reference Court was subsequently reduced by superior court. There can be no dispute that those claiming higher compensation and claiming reference under Section 18 of the Act are bound by the decree as modified by the superior Court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must Vishal V 2013.09.16 10:58 I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -5- visit others who have been given benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.
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9. We hold that under Section 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference under Section 18 of the Act. In case of reduction of compensation by superior courts, the applicants under Section 28A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded."
(Emphasis applied) (9). The finding returned by the Land Acquisition Collector that the application under Section 28A of the Act was barred by limitation appears to be erroneous and contrary to the facts on record for the reason that on the date of filing of application under Section 28A i.e. 06/07.01.1991, the Letters Patent Appeal seeking further enhancement in compensation moved by the co-owners was still pending in this Court as it was decided on 09.09.2001 only. Since the matter was still pending before one of the 'superior court', the petitioners' application could rather be termed as premature and not barred by limitation. (10). The other plea taken by the petitioners that the Land Acquisition Collector ought to have entertained their application for Vishal V 2013.09.16 10:58 I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -6- condonation of delay and allowed it on the strength of Section 14 of the Limitation Act as they were bona fidely pursuing their remedy before a wrong forum, however, cannot be entertained in view of various decisions of the Hon'ble Supreme the latest being Popat Bahiru Govardhane etc. vs. Special Land Acquisition Officer & Anr. (Civil Appeal Nos.6976-6980 of 2013) decided on 22.08.2013, laying down that the application under Section 28A need to be moved "within three months from the date of award of the Court", which shall be counted after excluding "the date on which the Award was pronounced and the time requisite for obtaining a copy of the award...". The Apex Court reiterated the settled legal position in the following words:-
"...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 but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A Vishal V 2013.09.16 10:58 I attest to the accuracy and integrity of this document CWP No.1217 of 1992 -7- Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."
(11). For the reason assigned in para (9) above, we hold that the application under Section 28A of the Act moved by the petitioners was well within the prescribed period of limitation.
(12). Consequently, the writ petition is allowed and the order dated 29.07.1991/03.09.1991 (Annexure P8) is set-aside and the Land Acquisition Collector is directed to decide the petitioners' application under Section 28A of the Act on merits within four months from the date of receipt of a certified copy of this order.
(13). Ordered accordingly. Dasti.
(Surya Kant)
Kant)
Judge
27.08
27.08.
.08.2013 (Surinder Gupta)
Gupta)
vishal shonkar
Judge
Vishal V
2013.09.16 10:58
I attest to the accuracy and
integrity of this document