Rajasthan High Court - Jodhpur
Union Of India vs Mahaveer on 9 December, 2022
Bench: Pankaj Mithal, Rekha Borana
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 936/2022
1. Union Of India, Through Ministry Of Road, Transport And
Highway, Government Of India, Through Secretary,
Transport Bhawan-1, Parliament Street, New Delhi- 110001.
2. The National Highway Authority Of India, Through
Chairman, G-5 And 6, Sector-10, Dwarka New Delhi.
3. The Prescribed Authority, (Land Acquisition), Additional
District Collector And Additional District Magistrate,
Collectorate, Rajsamand (Raj.).
4. The Zonal Officer And Project Director, Zonal Office, Ministry
Of Road And Transport And Highways, DCM, Ajmer Road,
Jaipur.
----Appellants
Versus
1. Mahaveer S/o Shri Roshan Lal, Aged About 46 Years,
Resident Of Village Bheem, Tehsil Bheem, District
Rajsamand.
2. Dhan Raj S/o Shri Roshan Lal, Aged About 36 Years,
Resident Of Village Bheem, Tehsil Bheem, District
Rajsamand.
3. Mukesh S/o Shri Roshan Lal, Aged About 31 Years, Resident
Of Village Bheem, Tehsil Bheem, District Rajsamand.
4. Mst. Ladi Bai W/o Shri Roshan Lal, Aged About 65 Years,
Resident Of Village Bheem, Tehsil Bheem, District
Rajsamand.
5. Smt. Pista D/o Shri Roshan Lal, Aged About 50 Years,
Resident Of Village Bheem, Tehsil Bheem, District
Rajsamand.
----Respondents
For Appellant(s) : Mr. R.D. Rastogi, ASG/Sr. Adv. assisted
by Mr. Bhanu Pratap Bohra,
Mr. C.S. Sinha
For Respondent(s) : Mr. Vikas Balia, Sr. Advocate assisted by
Mr. Swaroop Singh Sisodia, Mr. Jai Pal
Singh, Mr. Sachin Saraswat, Mr. Priyansh
Arora
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HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL
HON'BLE MS. JUSTICE REKHA BORANA
Judgment Reserved on 21/11/2022 Pronounced on 09/12/2022 By the Court (Per Hon'ble the Chief Justice):
Heard Shri R.D. Rastogi, learned Additional Solicitor General of India assisted by Mr. Bhanu Pratap Bohra for the appellants and Shri Vikas Balia, Senior Advocate assisted by Mr. Swaroop Singh Sisodia for the respondents.
2. The Union of India through Ministry of Road, Transport and Highway, the National Highway Authority of India, the Prescribed Authority (Land Acquisition), Additional District Collector and Additional District Magistrate, Rajsamand and the Zonal Officer and Project Director, Ministry of Road Transport and Highways, Ajmer Road, Jaipur have together preferred this intra-court appeal challenging two orders passed by the writ court.
3. The first is dated 13.12.2018, by which S.B. Civil Writ Petition No.17917/2018 of the respondents Mahaveer & Ors. has been allowed along with connected petitions and the appellants have been directed to get the amount of compensation re- determined by the competent authority for their acquired land in accordance with the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as 'the Act of 2013'). The second order of the writ court is dated 28.07.2022, by which the application filed by the appellants for recall of the order dated 13.12.2018 has been dismissed.
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4. The office has reported that the appeal is beyond time by 1363 days and in reporting that the office has calculated the limitation from the date of first order i.e. 13.12.2018 and after excluding the period of 60 days of limitation provided for filing the appeal.
5. Shri R.D. Rastogi, learned ASG has disputed the correctness of the limitation calculated by the office but accepts that in any case, the appeal is barred by time even if the limitation is counted either from the second order dated 28.07.2022 or the first one dated 13.12.2018 as the appeal was preferred on 05.11.2022.
6. It is important to note that in the present appeal, two orders passed by the writ courts have been challenged. The first is dated 13.12.2018 and the second is dated 28.07.2022. In respect to the first order, the appeal is certainly beyond time as reported by the office. In respect of the second order also, the appeal is beyond time, may be only by 40 days as submitted by the learned Additional Solicitor General himself.
7. Shri R.D. Rastogi, learned Additional Solicitor General, on the strength of various Supreme Court decisions, argued that a liberal approach ought to be taken while considering the delay condonation application; it is not necessary that the appellants should explain each day's delay; the Court should always lean towards substantial justice rather than dismissing the cause on technicality such as limitation; and that wherever the matter is strong on merits, a more liberal approach should be taken in condoning the delay, more particularly when the delay has not been caused wilfully or deliberately.
8. Shri Rastogi further submitted that in the case at hand though the first judgment was delivered on 13.12.2018, it had not (Downloaded on 10/12/2022 at 12:14:16 AM) (4 of 24) [SAW-936/2022] attained finality as an application for recall of the same was filed which came to be dismissed only vide order dated 28.07.2022. Therefore, the period during which the recall application remained pending has to be excluded.
9. On the other hand, Shri Vikas Balia, learned Senior Advocate appearing for the respondents submitted that liberal approach in such matters cannot be extended to cases where no explanation is put-forth for the delay in filing the appeal or where there is no cause much less sufficient cause for the delay. He further submitted that where substantial right had accrued in favour of any party with the passage of time or with expiry of the period of limitation, the said right should not be disturbed lightly by the Court.
10. It is not disputed that the writ petition filed by the respondents was allowed vide judgment and order dated 13.12.2018. The limitation for challenging the same by means of a special appeal is admittedly 60 days. The said period expired around 13.02.2019 or near about the said date. However, neither any appeal was preferred against it in the higher forum nor even an application for recall or review of the said judgment and order was moved by the appellants within the period of limitation provided for appeal. The recall application was filed on 08.04.2021 after about 848 days. The period of limitation for challenging the judgment and order dated 13.12.2018 had expired long before filing of the recall application. The appellants under law are supposed to explain the delay for not filing the appeal within the period prescribed i.e. 60 days from the date of the judgment and order i.e. 13.12.2018 after excluding the time taken in obtaining its copy.
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11. The Supreme Court in Ajit Singh Thakur Singh & Ors. vs. State of Gujarat [AIR 1981 SC 733] observed that the appeal has to be filed within the limitation prescribed and the party is supposed to explain the delay for not filing the appeal within the said time. It was observed as under:
"6. .......it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after expiry of the limitation can constitute such sufficient cause......."
12. The appellants have not at all explained any such delay and have not shown any sufficient cause for not challenging it within the said period. In absence of any such explanation for not filing the appeal within the prescribed period, the delay in filing the appeal in respect of the judgment and order dated 13.12.2018 goes totally unexplained.
13. The submission of Shri R.D. Rastogi that the delay was only on account of the fact that a recall application was filed is completely misconceived inasmuch as the recall application was filed after 848 days of the decision and in the meantime, the limitation for challenging it had expired.
14. It may be pertinent to note that in getting the delay in filing any appeal condoned, the appellants have not only to explain the delay for not filing the appeal within the prescribed period but also for the subsequent period of delay. The appellants herein have not at all explained the delay in not filing the appeal within the limitation prescribed. They have only tried to explain the subsequent delay by simply stating that the delay in challenging (Downloaded on 10/12/2022 at 12:14:16 AM) (6 of 24) [SAW-936/2022] the original order dated 13.12.2018 is because a recall application No.90/2021 which was filed and came to be decided on 28.07.2022 whereupon the file was forwarded to the learned Additional Solicitor General for filing the Special Appeal (Writ), but as some relevant documents were missing, it could not be filed. It was only after the documents were submitted that draft appeal was prepared and forwarded to the department for vetting and after examination at various levels, the appeal has been filed.
15. It would be important to reproduce the contents of the delay condonation application as filed by the appellants, which would reveal that the appellants have not shown any cause for the delay in not filing the appeal within the time prescribed and even the cause for the subsequent period of delay:
"1. That the appellants have filed the above mentioned appeal being aggrieved against the order as stated above whereby the Learned Single Judge while allowing the writ petition preferred by the petitioner has directed the humble appellants to recalculate the award as per the new act of 2013.
2. That the matter was examined at the different levels in the office of respondents and then a decision was taken to file Special Appeal (Writ) against the judgment & Order.
3. That the delay in challenging the original order dated 13.12.2018 is because that a recall application No.90/2021 was filed and was pending before this Hon'ble Court and was decided vide order dated 28.07.2022, which is also under challenge by way of this appeal. Hence, there is no delay due to the pendency of the recall application.
4. That the case file was, after considerations were then forwarded to the office of Additional Solicitor General of India for filing of Special Appeal (Writ) but so many relevant documents were not there and the same were asked from the office. The documents were submitted and the matter was thoroughly examined and the Appeal was drafted. The draft Appeal was forwarded to the department for further (Downloaded on 10/12/2022 at 12:14:16 AM) (7 of 24) [SAW-936/2022] vetting. The department on various levels examined the Special Appeal (Writ), all these facts resulted in delay in filing present SAW.
5. That the delay in filing of the annexed appeal is quite bonafide and unintentional and has occurred due to bonafide administrative procedure and time taken in collection of relevant material necessary for filing present appeal and delay is quite unintentional and appellant was always vigilant about it."
16. The respondents in the objections to the delay condonation application have categorically stated that the appellants have not brought on record any material to substantiate the cause of delay. They have not even stated that the delay is not wilful and deliberate. The respondents have been informed under the Right to Information Act, 2005 that the Chief Engineer-cum-Regional Officer had requested the Additional Solicitor General vide letter dated 18.12.2018 for necessary legal opinion and that the learned Additional Solicitor General vide letter dated 29.04.2019 had advised for filing an application for review/recall of the judgment and order dated 13.12.2018 but even then no application either for review or recall of the said order was filed for almost 800 days.
17. A bare reading of the contents of the delay condonation application and the perusal of the objections thereto establishes that the appellants have not shown any cause much less sufficient cause for not filing the appeal or the recall application against the judgment and order dated 13.12.2018 within the limitation prescribed. No explanation has been furnished for not filing the recall application immediately after the receipt of the opinion of the Additional Solicitor General of India on 29.04.2019. Even if, we exclude the period for which the recall application had remained pending, in the absence of any explanation for not filing the appeal within the time prescribed or the recall application (Downloaded on 10/12/2022 at 12:14:16 AM) (8 of 24) [SAW-936/2022] immediately after the receipt of the advice of the Additional Solicitor General, we are of the opinion that it is not a fit case where the appellants deserve any indulgence from the Court, even if most liberal approach is taken.
18. The appellants admit that though the delay in filing the appeal is unintentional and bona fide but accept that it is on account of administrative procedure and the time taken in collection of relevant material necessary for filing the appeal but completely fall short of mentioning as to when the file was placed before the Additional Solicitor General for advice, what were the documents which were lacking, when they were provided to the Additional Solicitor General and when he advised for filing of the appeal. The non-disclosure of such material information clearly establishes that the appellants have been too casual in their approach in dealing with the matter and have filed the application for condonation of delay in a most cavalier and casual manner.
19. The object of fixing time limit for institution of suit and for filing of appeals and revisions etc. is founded on public policy so that a litigation may come to an end at some point of time. The Supreme Court in N. Balakrishnan vs. M. Krishnamurthy [(1998) 7 SCC 123] observed that the object of fixing time limit for initiation of legal proceedings is not meant to destroy the rights of any party but to fix a life span for legal remedies in public interest and that the expression "sufficient cause" should be construed liberally.
20. In Collector Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors. [(1987) 2 SCC 107] the Apex Court observed that in the matter of condonation of delay, as no one stands to gain in lodging an appeal late and when substantial justice and technical (Downloaded on 10/12/2022 at 12:14:16 AM) (9 of 24) [SAW-936/2022] considerations are pitted against each other, the cause of substantial justice deserves to be preferred. Therefore, a liberal approach should normally be adopted in condoning the delay.
21. It may be important to point out that condonation of delay in filing any appeal is a discretionary power of the court. In G. Ramegowda Major etc. vs. Special Land Acquisition Bangalore [(1988) 2 SCC 142] accepting that the power to condone the delay is discretionary, it was held that where delay occurs due to fraud and unusual conduct of the Government pleaders, ordinarily delay ought to be condoned.
22. In Ram Nath Sao & Ors. Vs. Gobardhan Sao & Ors. [(2002) 3 SCC 195], the Court in context with Section 5 of the Limitation Act observed that whether explanation furnished would constitute 'sufficient cause' or not will depend upon the fact of the each given case as there cannot be a straight jacket formula. It further observed that the expression 'sufficient cause' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party. Therefore, acceptance of the explanation furnished should be the rule and refusal an exception, but in doing so the Courts should not lose sight of the fact that with the expiry of time valuable rights get accrued to the other party which should not be lightly defeated by condoning the delay in a routine manner. The Courts as such have to strike a balance vis-a-vis the corresponding rights of the parties looking to the resultant effects of the order.
23. The essentials for the purposes of condoning the delay as culled out from the above authorities are as under: (Downloaded on 10/12/2022 at 12:14:16 AM)
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i. The purpose of fixing limitation is to fix a life span for legal
remedies and is founded on public policy.
ii. When substantial justice and technical consideration are
pitted against each other it is prudent to advance the cause of substantial justice.
iii. The power of condoning the delay is a discretionary power and normally a liberal approach should be adopted; iv. When the delay is due to fraud and unusual conduct of the pleaders, the court should tilt in favour of the government in condoning the delay; and v. The state and the private party must be accorded the same treatment.
vi. In condoning the delay the courts should keep in mind the rights that may have accrued to the other side which ought not to be disturbed lightly.
24. In adopting the above approach in the matter of condoning the delay in filing the appeals etc., it would not be out of context to point out that in Ram Nath Sao (supra) the Supreme Court has cautioned the court not to loose sight of the fact that with the expiry of limitation, valuable rights get accrued to the party which should not be lightly defeated by condoning a delay in a routine manner and therefore, the courts have to strike a balance vis-a- vis the corresponding rights of the parties in condoning the delay.
25. In University of Delhi vs. Union of India & Ors. [(2020) 13 SCC 745], it was observed by the Supreme Court that where no steps were taken to file the writ appeal for 916 days after disposal of the writ petition, the cumulative effect of the delay and laches cannot be ignored and that it is well accepted position that (Downloaded on 10/12/2022 at 12:14:16 AM) (11 of 24) [SAW-936/2022] the accrued right of the opposite party should not be dealt with lightly.
26. Much emphasis has been laid by Shri Rastogi that since the matter is very strong on merit, the cause of the appellants is not liable to be thrown out on a technical ground of limitation and as such, delay deserves to be condoned.
27. Shri Rastogi, on the strength of the decisions in State of Harayan vs. Chandra Mani & Ors. [(1996) 3 SCC 132] and K.B. Ramachandra Raje Urs (Dead) By Legal Representatives vs. State of Karnataka & Ors. [(2016) 3 SCC 422], contended that the court should take pragmatic approach in considering the matter of condonation of delay and the matter should be decided on merits unless it is hopelessly without merit. In short, substantial justice ought to be advanced in public interest.
28. In bringing home the above point and to establish the prima facie merits of the case, Shri Rastogi has addressed the Court on merits full fledgedly. Even the respondents have answered on the merits of the case. Therefore, we are proceeding to finally decide the controversy arising on merits as well.
29. The controversy on merits in the writ petition was whether the compensation of the acquired land for the purposes of National Highway Authority of India was liable to be re-determined under the earlier provisions or the new Act of 2013.
30. The land was acquired in District Rajsamand of the State of Rajasthan. The notification to acquire it was published in the official gazette on 31.05.2013 under Section 3A of the National Highways Act, 1956 (hereinafter referred to as 'the Act of 1956'). (Downloaded on 10/12/2022 at 12:14:16 AM)
(12 of 24) [SAW-936/2022] The compensation for the said land was liable to be determined under Section 3G of the Act of 1956.
31. It is stated that in respect of the said land the compensation was determined on 24.04.2014 and there was a subsequent award dated 09.03.2015 also. The appellants deposited the compensation as per the first award on 02.06.2014 with the competent authority. Therefore, the acquisition proceedings which were initiated and completed before the enforcement of the Act of 2013 in respect of the land acquired for the National Highway, the compensation was rightly determined as per the old provisions and in case of any grievance the matter could have been taken before the Arbitrator.
32. The learned Single Judge had incorrectly relied upon the decision of this Court in Man Singh & Ors. vs. Union of India & Ors. [S.B. Civil Writ Petition No.13114/2016, decided on 27.03.2017]. The said case was decided on concession of the counsel. The concession was de hors the law. It was not binding upon the appellants and the writ court completely ignored the decision in Gopa Ram vs. Union of India [S.B. Civil Writ Petition No.12746/2017, decided on 22.01.2018]. In fact, the writ court while rejecting the recall application has not even referred to the said decision.
33. The law on the subject is quite clear that the acquisition for the National Highway has to be undertaken under the Act of 1956 and the compensation for the acquired land has to be determined by the competent authority. In case the amount determined by the competent authority is not acceptable to either of the parties, it shall be determined by the Arbitrator appointed by the Central Government on an application by either of the parties. The (Downloaded on 10/12/2022 at 12:14:16 AM) (13 of 24) [SAW-936/2022] Collector is the designated Arbitrator by the Central Government and the award of the Collector is open for further challenge in accordance with the provisions of the Arbitration and Conciliation Act, 1996.
34. The Act of 2013 was enforced with effect from 01.01.2014 but was not made applicable to the acquisition of land under the Act of 1956 immediately. However, by virtue of Sub-section (3) of Section 105 of the Act of 2013 it was made applicable even to the acquisition of the land under the National Highway Act with effect from 01.01.2015.
35. There is no dispute to the fact that in cases where the acquisition was initiated under the Act of 1956 and the award was made prior to 01.01.2015 coupled with the fact that the compensation was also deposited, the provisions of the Act of 2013 would not apply for the determination of the compensation for the acquired land. However, the Act of 2013 would be applicable if the initiation of the proceedings was prior to 01.01.2015 but the award and the deposit of the compensation is subsequent thereto.
36. It is in view of the above it has to be examined as to when the award in respect of the acquisition of the above land which was notified for acquisition on 31.05.2013 was declared and the compensation deposited/paid. The date of the award becomes crucial to determine the compensation payable i.e. to say whether the award was declared prior to 01.01.2015 or subsequent to the said date as per the old provisions or under the Act of 2013.
37. Shri Rastogi submits that the award was made on 24.04.2014 and the subsequent award dated 09.03.2015 referred to by the respondents is in the nature of second award which is (Downloaded on 10/12/2022 at 12:14:16 AM) (14 of 24) [SAW-936/2022] non est and since the entire compensation was deposited with the competent authority on 02.06.2014, the writ court could not have directed for re-determination of the compensation in accordance with the provisions of the Act of 2013. The decision in Man Singh's case would not be applicable as it was decided on the basis of the concession of the counsel for the appellants which was given under some misconception and even otherwise, such consent if given in gross violation of any statutory provision would not bind the appellants.
38. The case of Man Singh arose in the similar facts and circumstances and related to the acquisition of the land for the construction of part of the same road as in the case at hand. In the said case it was categorically pleaded that the award was declared on 05.02.2015 i.e. after the relevant date 31.12.2014. In the said writ petition a counter affidavit was filed on behalf of the respondents with the affidavit of the Project Director, National Highway Authority of India. The date of the award so pleaded was not denied. The respondents took the stand that in view of the circular dated 03.02.2016 the Act of 2013 was made applicable to the acquisition under the Act and in cases where the award is not passed before 31.12.2014, the provisions of the Act of 2013 would apply. Thus the Court while deciding the said writ petition held that since the award was passed after 30.12.2014, the compensation is payable as per the provisions of the Act of 2013. It was also held that in view of the above circular where even compensation in respect of major portion of land notified is not deposited in the accounts of the beneficiaries on or before 31.12.2014 all the beneficiaries shall be entitled to compensation in accordance with the provisions of the Act of 2013. The aforesaid (Downloaded on 10/12/2022 at 12:14:16 AM) (15 of 24) [SAW-936/2022] judgment was not passed on the basis of any concession given by the counsel rather holding that the award was passed after 31.12.2014 is not disputed as per the stand taken by the Union of India and the National Highway Authority of India. For the sake of convenience the relevant paragraphs 3, 4 and 5 of the aforesaid judgment which has attained finality are reproduced herein below:-
"3. It is not disputed by the counsels appearing for the Union of India and the National Highway Authority before this court that by virtue of provisions of sub- section (3) of Section 105 of the Act of 2013 in force at the relevant time, the competent authority was required to determine the compensation payable to the petitioners for the land acquired, taking into consideration the components asset out in the First Schedule of the Act of 2013.
4. As a matter of fact, the issue regarding applicability of the provisions of the Act of 2013 for determination of compensation in cases where land acquisition proceedings were initiated under the Act of 1956 but, award has not been declared till 31st of December,2014, was considered by the Ministry of Road Transport &Highways and vide circular dated 3rd of February, 2016, while accepting the legal opinion tendered by Additional Solicitor General of India, it has been clarified that even where the award of compensation under Section 3G of the Act of 1956 was declared by competent authority on or before 31st of December,2014 but compensation in respect of majority of the land area notified in the relevant 3A notification was not deposited in the account of beneficiaries on or before 31st of December, 2014, all the beneficiaries shall be entitled to compensation in accordance with provisions of the Act of 2013.
5. It is not disputed that in the instant case, the award has been passed after 31.12.14 and therefore, even otherwise, as per the categorical stand taken by the Union of India and the National Highways Authority by virtue of provisions of sub-section (3) of Section 105 of the Act of 2013 in force at the relevant time, the compensation payable to the petitioners for the land acquired has to be re-determined as per the provisions of the Act of 2013."(Downloaded on 10/12/2022 at 12:14:16 AM)
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39. The relevant extract of the above circular dated 03.02.2016 of the National Highways Authority of India referred to in the above judgment is reproduced herein below:-
"3. It is, therefore, seen from the legal opinion accepted by the Ministry that wherever award of compensation under section 3G of NH Act, 1956 was declared by CALA on or before 31.12.2014 but compensation in respect of majority of the land area notified in the relevant 3A notification was not deposited in the accounts of the beneficiaries on or before 31.12.2014, then, all the beneficiaries shall be entitled to compensation in accordance with the provisions of RFCTLARR Act, 2013."
40. In view of the above findings and the circular, the argument of Shri Rastogi that the concession made by the counsel or the consent given by the counsel contrary to law or without instructions are not binding upon the parties is misconceived inasmuch as above case was decided not on the basis of concession or consent of the lawyer but on the basis of the facts as reflected from the stand taken by the respondents-appellants.
41. The Court in deciding the above writ petition further relied upon the circular of the Ministry of Transport and Highways. It was observed that the issue regarding applicability of the provisions of the Act of 2013 for determination of compensation in cases where land acquisition proceedings were initiated under the Act of 1956 but the award was not been declared till 31.12.2014, was considered by the Ministry of Transport and Highways and on consideration it had issued a Circular dated 03.02.2016 clarifying that where the award under Section 3G of the Act of 1956 was declared by competent authority on or before 31.12.2014 and the compensation was not deposited in the account of the beneficiaries on or before 31.12.2014, the land holders shall be (Downloaded on 10/12/2022 at 12:14:16 AM) (17 of 24) [SAW-936/2022] entitled to compensation in accordance with the provisions of the Act of 2013.
42. The Supreme Court in several decisions has ruled that the circulars issued by the department are binding upon all departmental authorities. In K.P. Varghese vs. The Income Tax Officer, Ernakulam & Anr. [AIR 1981 SC 1922] and in Nagraj Shivarao Karjagi vs. Sindicate Bank [AIR 1991 SC 1507], the scope of the circulars issued by the Ministry have been explained and it has been observed that they are binding upon the officers of the department. In addition to the above, the Constitution Bench of the Supreme Court in Collector of Central Excise, Vadodara vs. Dhiren Chemical Industries [AIR 2002 SC 453] held that if there are circulars issued by the Central Board of Excise and Customs which places a different interpretation upon the phrase in the statute, the interpretation suggested by the circular would be binding upon the revenue regardless of the interpretation given by the Supreme Court, if any.
43. In the light of the above legal position the circular dated 03.02.2016 of the Ministry of Transport and Highways is binding upon the Government departments as well as its authorities and officers and as such where compensation was not deposited in the account of the beneficiaries on or before 31.12.2014, the land holders are entitled to compensation in accordance with the provisions of the Act of 2013.
44. Furthermore, in the said case it was not disputed that the compensation was determined by means of an award dated 05.02.2015 as per the pleadings on affidavit of the Union of India and the National Highway Authority of India. Therefore also, (Downloaded on 10/12/2022 at 12:14:16 AM) (18 of 24) [SAW-936/2022] irrespective of the date of deposit of compensation, the land holders are entitled for compensation as per the provisions of the Act of 2013.
45. The submission that in view of Rafiq & Anr. vs. Munshilal & Anr. [(1981) 2 SCC 788], if any decision is taken on the basis of the wrong concession of an Advocate which is contrary to facts and the position of law, it would not bind the party, is totally misconceived and unsustainable.
46. In the case of Man Singh (supra), no incorrect statement or concession was made by the counsel for the appellants rather it was on the basis of the facts as stated in the affidavit of the Union of India and the National Highway Authority of India that the Court found that the award in respect of the above acquisition was made after 31.12.2014. In view of the above, it cannot be said that the statement was against the facts on record or was without instructions. The said statement was purely factual in nature and was not contrary to any law.
47. Insofar as the decision of the another Single Judge of this Court in the case of Gopa Ram (supra) is concerned, it is of no significance as the date of payment or disbursement of the compensation is not material and relevant in the present case as the award itself is subsequent to 31.12.2014. The deposit of the compensation with the CALA on or before 31.12.2014 is only for the purposes of distribution to the beneficiaries on the award being declared. The said deposit could not have been enured to the benefit of the beneficiaries until and unless the award had been declared. Therefore, the observation in the above judgment that the distribution of compensation is a ministerial act on the part of the land acquisition officer and delay in distribution cannot (Downloaded on 10/12/2022 at 12:14:16 AM) (19 of 24) [SAW-936/2022] be attributed to the acquiring authority is of no consequence. In our opinion, the aforesaid decision is of no help to the respondents-appellants. Moreover, the date of deposit of compensation or its payment to the beneficiaries looses importance if the award is not made before 31.12.2014.
48. Learned counsel for the respondents have drawn our attention to the award dated 09.03.2015 which is in the compilation submitted by Shri Rastogi and was part of the connected petitions. It has been pointed out that four different awards in respect of the acquired land were made in 2015. The said document issued from the office of the competent authority- Additional District Collector, Rajsamand clearly states that it is an award passed under Section 3G of the Act of 1956 in relation to land acquired for Rastriya Raj Marg No.8, Beawar, Bachara Khurd. The said award clearly states that after considering the objections and the reports received from various authorities, the compensation of the acquired land is being determined as mentioned therein. The award dated 09.03.2015 is reproduced as under:-
"dk;kZy; l{ke izkf/kdkjh ¼Hkwfe vokfIr vf/kdkjh½ ,oa vfrfjDr ftyk dyDVj] jktleUn ¼jkt-½ i=koyh@vf/k-lw- Øekad 383 ¼v½ fn- 12-02-2014@ fnukad % 09-03-2015 vokMZ ¼jk'Vªh; jktekxZ vf/kfu;e 1956 dh /kkjk 3th dh mi/kkjk ¼1½ ,oa ¼2½ ds vUrxZr vokIr Hkwfe dh {kfriwfrZ jkf"k dk fu/kkZj.k½ fo'k; % jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89-020 ls fd-eh-
103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ pkjysu lM+d fuekZ.k ifj;kstuk ds vUrxZr vkus okyh Hkwfe dh vokfIr ds laca/k esaA jk'Vªh; jktekxZ vf/kfu;e] 1956 dh /kkjk 3?k dh mi/kkjk ¼2½ ds vuqlj.k esa Hkkjr ljdkj] lM+d ifjogu ,oa jktekxZ ea=ky; ds }kjk Hkkjr ds jkti= vlk/kkj.k ds Hkkx f}rh; [k.M 3 mi[k.M ¼ II½ esa fnukad 12-02-+2014 dks izdkf"kr vf/klwpuk la[;k dk-vk- 383 ¼v½ fnukad 12-02-2014 }kjk jktLFkku jkT; ds jktleUn ftys esa jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89- 020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ ds Hkw&[k.M ds (Downloaded on 10/12/2022 at 12:14:16 AM) (20 of 24) [SAW-936/2022] fuekZ.k ¼pkSM+k djus@pkj ysu dk cukus] vkfn½ vuqj{k.k] izca/k vkSj izpkyu ds fy, bl vf/klwpuk ds lkFk layXu vuqlwph esa fofufnZ'V Hkwfe lHkh fooknksa ls eqDr gksdj iw.kZ:i ls dsUnzh; ljdkj ds LokfeRo esa fufgr gks xbZ gS %& mDr lM+d ds fuekZ.k esa fuEufyf[kr fgr/kkjdksa dh Hkwfe vokIr dh xbZ gS] ftldk fooj.k fuEukuqlkj gS % rglhy xkWo [kkrsnkj rFkk lacaf/kr O;fDr;ksa ds uke [kljk fdLe vokIr dk uke dk la[;k Hkwfe {ks=Qy uke ¼gSDVj esa½ Hkhe Hkhe ;"kksnkckbZ ifRu /keZpan egktu 11831 vkcknh 0-0040 756@2177 nsljyk lk- nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu 1421@2177 lk- nsg jk'Vªh; jktekxZ vf/kfu;e 1956 dh /kkjk 3th ¼3½ ds rgr~ vkifRr;ksa ij fy, x, fu.kZ;kuqlkj rglhynkj] Hkhe ls izkIr orZeku jktLo vfHkys[k ,oa ekSds dh tkWp fjiksVZ ds vk/kkj ij bl Hkwfe dk izfrdj ¼eqvkotk½ fuEukuqlkj fu/kkZfjr fd;k tkrk gSA xkWo [kkrsnkj@fgr/kkjh ftls eqvkotk [kljk fdLe vokIr Hkwfe dh Hkwfe dk dk fn;k tkuk gS la[;k Hkwfe {kS=Qy nj eqvkotk uke ¼gSDVj ¼izfroxZ ¼jkf"k½ esa½ eh-½ Hkhe ;"kksnkckbZ ifRu /keZpan egktu 11831 vkcknh 430-4 184@& 79194@ 756@2177 nsljyk lk- nsox< & egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq-
yknhckbZ csok jks"kuyky egktu 1421@2177 lk- nsg mijksDr vokIr Hkwfe ij fLFkr lEcaf/kr fgr/kkjd ;"kksnkckbZ ifRu /keZpan egktu 756@2177 nsljyk lk- nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu 1421@2177 lk- nsg dh fuEufyf[kr lEifr LFkkbZ@vLFkkbZ lajpuk gS %& layXu ewY;kadu fjiksVZ ds vuqlkj bldh eqvkotk jkf"k fuEu izdkj ls fu/kkZfjr dh tkrh gS %& Ø-la- UkkelEifr lEifr dk fooj.k eqvkotk fo"ks'k fooj.k 1 dqvk & & & 2 o`{kksa dh la- ,oa dher & & & 3- edku@nqdku & 13966@& & 4- CkkmUMªh & & & 5- vU; & & & eqvkots dk fooj.k % 1- vkcknh Hkwfe dk eqvkotk #- 79194@& 2- dqvk] lajpuk] edku vkfn ckjdksV vU; lEifr dk eqvkotk #- 13966@& 3- o`{kksa dh la- ,oa dher #- & 4- dqy eqvkotk jkf"k ¼1 ls 3½ #- 93160@& (Downloaded on 10/12/2022 at 12:14:16 AM) (21 of 24) [SAW-936/2022] 5- TDS dVkSrh #- & 6- "kq) ns; jkf"k #- 93160@& mijksDr of.kZr Hkwfe ,oa mlls lEcfU/kr lEifr gsrq :i;s 93160@& ¼"kCnksa esa #i;s rjk.kos gtkj ,d lkS lkB ek=½ dk vokMZ tkjh fd;k tkdj mls vfHkys[k ,oa ekSds dh fLFkfr vuqlkj fgr/kkjdksa@[kkrsnkjksa esa fuEuizdkj ls foHkkftr fd;k tkrk gS % Ø-la- uke O;fDr] firk dk uke ,oa fuokl jkf"k #i;ksa esa 1 ;"kksnkckbZ ifRu /keZpan egktu 32351 2 egkohjdqekj firk jks"kuyky 12161 3 ioudqekj firk jks"kuyky 12161 4 /kujkt firk jks"kuyky 12162 5 eqds"k firk jks"kuyky 12162 6- eq- yknhckbZ csok jks"kuyky 12163 ;ksx 93160@& lgh@& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn Øekad Hkw-vokfIr@MoRTH@2014&15@ fnukad % 09-03-2015 izfrfyfi % ¼1½ {ks=h; vf/kdkjh ,oa ifj;kstuk funs"kd {ks=h; dk;kZy; lM+d] ifjogu ,oa jktekxZ ea=ky; Mh-lh-,e-] vtesj jksM+] t;iqj ¼2½ rglhynkj] Hkhe dks Hkstdj ys[k gS fd vokIr Hkwfe [kkrsnkj ds [kkrs ls de dj Hkkjrh; jk'Vªh; jktekxZ izkf/kdj.k] lM+d ifjogu ,oa jktekxZ ea=ky;] Hkkjr ljdkj ds [kkrs esa vafdr dh tk, rFkk yxku fu;ekuqlkj de fd;k tk,A ¼3½ lEcfU/kr [kkrsnkj ;"kksnkckbZ ifRu /keZpan egktu 756@2177 nsljyk lk-
nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu 1421@2177 lk- nsg lgh@& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn"
49. The aforesaid document is undoubtedly an award in respect of the acquired land which has been given on 09.03.2015. Therefore, the award is certainly after 01.01.2015 when the Act of 2013 had been enforced in respect of the acquisition under the National Highway.
50. Shri R.D. Rastogi, on the other hand, placed reliance upon a document dated 24.04.2014 again issued by the office of the competent authority i.e. the Additional District Collector, (Downloaded on 10/12/2022 at 12:14:16 AM) (22 of 24) [SAW-936/2022] Rajsamand. This document is basically a letter addressed to the Regional Officer and Project Director, Road, Transport and National Highway Ministry, DCM, Ajmer Road, Jaipur. The title of the said letter indicates that it is a document for the purposes of further action in respect of award under Section 3G of the Act of 1956. It mentions the amount of compensation payable to the land holders and that the same be got approved so that after necessary enquiry, the amount of the award may be determined and paid to the claimants. The said letter is reproduced hereinbelow for the sake of convenience and clarity:
"dk;kZy; l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn ftyk jktleUn ¼jktŒ½ Øekad @MoRTH@Hkw-vokfIr@2014@914&15 fnukad%& 24@04@2014 izsf'kr % {ks=h; vf/kdkjh ,oa ifj;kstuk funs"kd {ks=h; dk;kZy; lM+d] ifjogu ,oa jktekxZ ea=ky; Mh-lh-,e-] vtesj jksM+] t;iqj fo'k;% jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89- 020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ pkjysu lM+d fuekZ.k ifj;kstuk ds rgr Hkkjr dk jkti= Øekad dk-vk-383¼v½ fnuakd 12-02-2014 dh 3(D) vf/klwpuk ds rgr 3(G) vokMZ vfxze dk;Zokgh djkus ds ckcr~A egksn;] mijksDr fo'k;kUrxZr ys[k gS fd C;koj&ck?kkuk [k.M rd ¼fd-eh- 89- 020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ Qksjysuhdj.k gsrw lM+d ifjogu ,oe~ jktekxZ ea=ky; }kjk Hkkjr ds jkti= dk-vk-383¼v½ fnuakd 12-02-2014 dks 3(D) vf/klwpuk izdk"ku fd;k tk pqdk gSA mDr vf/klwpuk ds i"pkr~ 3(G) ds rgr Hkw- /kkjdks dks vokMZ tkjh djus gsrq eqvkotk jkf"k dk laf{kIr fooj.k fuEu izdkj gSA Øe la[;k xzke dk uke dqy eqvkotk jkf"k 1 Hkhe 47947744 ;ksx 47947744-00 mijksDr njksa ds vuqlkj Hkw/kkjdks dks LokfeRo ds vk/kkj ij Hkqxrku fd;k tkosxkA Hkwfe;ksa ij fLFkr dqvksa dh jkf"k dk Hkqxrku rglhynkj@mi iaft;d Hkhe ls izkIr mijksDr Mh-,y-lh- nj ds vuqlkj fd;k tkosxkA Hkwfe;ksa ij fLFkr Qynkj o`{kksa ,oa vU; o`{kksa dh dher dk ewY;kadu] d`f'k foHkkx ,oa ou foHkkx ls izkIr vuqeksnu ds i"pkr fu/kkZfjr fd;k tkosxkA vr% vokIrk/khu d`f'k Hkwfe dk ns; eqvkotk jkf"k :i;s 47947744@& dk vuqeksnu djok] jkf"k izkIr djus dh dk;Zokgh dh tkosa] rkfd foLr`r (Downloaded on 10/12/2022 at 12:14:16 AM) (23 of 24) [SAW-936/2022] tkap mijkUr izkIr Dyse ij vokMZ dh jkf"k r; dh tkdj lacfU/kr dks Hkqxrku fd;k tk ldsA layXu %& vokMZ dh i=koyhA lgh@& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj jktleUn Øekad @MoRTH@Hkw-vokfIr@2014@ fnukad %& izfrfyfi & ftyk dyDVj egksn; jktleUn dks lwpukFkZ izsf'kr gSA lgh@& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj jktleUn"
51. A plain reading of the aforesaid letter reveals that it is not actually an award but a letter addressed to the Regional Officer to get the compensation as referred to therein approved so that the award may be declared for the purposes of payment.
52. It appears that it is in pursuance thereof that subsequently the award was made on 09.03.2015.
53. In view of the above discussion and the finding that the award in the present case is dated 09.03.2015 and not 24.04.2014, we do not find any error or illegality in the order passed by the learned writ Court.
54. The argument that once an award has been passed on 24.04.2014 the second award is not contemplated in law and if there is any such subsequent award it is a nullity inasmuch as the competent authority is not vested with any power to review or revise the award, is completely misconceived for the simple reason that there is no second award rather the award dated 09.03.2015 is the only award. The document dated 24.04.2014 is simply a letter tentatively determining the compensation payable and requesting the authority to get its approval so that the award may be pronounced and the payments be made accordingly. In such circumstances, the issues regarding power of the competent authority to review or revise the award or that the award dated (Downloaded on 10/12/2022 at 12:14:16 AM) (24 of 24) [SAW-936/2022] 09.03.2015 is non est pales into insignificance and are not required to be dealt with by us.
55. In the light of the discussions we have made above, we do not find any substance in the appeal. The appeal is dismissed as barred by time as well as on merits with no order as to costs.
(REKHA BORANA),J (PANKAJ MITHAL),CJ
10-MohitTak/-
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