Gujarat High Court
Rajput Chhaguji Modaji vs Special Land Acquisition Officer on 13 August, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/2123/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2123 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary
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RAJPUT CHHAGUJI MODAJI
Versus
SPECIAL LAND ACQUISITION OFFICER
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Appearance:
MR AV PRAJAPATI(672) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MR RAKESH PATEL, AGP (1) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 13/08/2018
ORAL JUDGMENT
1. The First Appeal is ordered to be admitted and having regard to the limited issue involved, the same is taken up for final hearing forthwith.
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C/FA/2123/2018 JUDGMENT
2. This First Appeal under Section 54 of the Land Acquisition Act, 1894, at the instance of the original claimant and is directed against the judgment and order dated 27.02.2018 passed by the Principal Senior Civil Judge, Visnagar in the Land Acquisition Reference No.152/2015.
3. It appears from the materials on record that the land of the appellant herein came to be acquired for the purpose of construction of Dharoi Canal. The Special Land Acquisition Officer determined the amount of compensation for the acquired agricultural lands at the rate of Rs.15/- per Sq. Mtr. The appellant herein being dissatisfied with the quantum of the amount of compensation preferred an application under Section 18 of the Act before the Collector for the purpose of reference to the Court concerned. At this stage, it is important to note that the application which was filed by the appellant herein under Section 18 of the Act was in his capacity as the administrator of one Rajput Kanaji Sujaji. The award was passed in the name of Rajput Kanaji Sujaji. I take notice of the fact that the date of award passed under Section 11 of the Act is 19.05.2004. Within six months from the date of the award, the application under Section 18 was filed by the appellant herein.
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C/FA/2123/2018 JUDGMENT
4. The Court below by its impugned judgment and order thought fit to dismiss the Land Reference Case substantially on the ground that the Collector could not have effected the necessary corrections beyond the period of six months from the date of the award. The second ground for dismissing the land reference which weighed with the Court below is that under Section 13 (A) of the Act the Collector has the power to correct only clerical errors and nothing beyond that.
5. Mr. Prajapati, the learned counsel appearing for the appellant submitted that the Court below committed a serious error in dismissing the Land Reference Case on the two grounds referred to above. He submitted that his client had preferred the application under Section 18 of the Act seeking a reference for enhancement of the compensation well within the period of limitation. No fault can be found in this regard with the appellant. It is the Collector who after a period of about more than 3 years modified the award including the name of the appellant herein in the same and thereafter forwarded the same to the Court below. He would submit that the Court below committed an error in taking the view that the reference was time barred. Mr. Prajapati, the learned counsel appearing for the appellant in support of his submissions has Page 3 of 16 C/FA/2123/2018 JUDGMENT placed reliance on a Division Bench decision of this Court in the case of Shivlalbhai Vaikunth and Ors. v. State of Gujarat and Ors. in Special Civil Application No.5896/2006 decided on 28.06.2007.
6. On the other hand, this appeal has been vehemently opposed by Mr. Patel, the learned AGP appearing for the State. According to Mr. Patel, the learned AGP, the Collector has no jurisdiction under Section 13(A) of the Act to effect any correction in the award except clerical mistakes after the expiry of the period of six months. If that be so, then according to Mr. Patel, the Court below committed no error in dismissing the Land Reference Case as being barred by the period of limitation.
7. Mr. Patel, the learned AGP prays that their being no merit in the appeal, the same be dismissed.
8. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned judgment and order.
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C/FA/2123/2018 JUDGMENT
9. Before I advert to the rival submissions canvassed on either side, let me look into the findings recorded by the Court below:
"10. In view of the pleadings of the claimants and contentions raised on behalf of the opponents, the following issues have been framed:-
ISSUES
1. Whether the compensation awarded by the Land Acquisition Officer is not fair and adequate ?
2. What additional compensation the claimants are entitled in permanent Land Acquisition ?
2A. Whether this reference case has been filed within limitation period provided u/s 18 of Land acquisition Act ?
3. What order and award ?
(11) My findings on the above stated issues are as under :-
Issue No.1 :- As Applicant has failed to prove issue no.2 A and reference is barred by the provision of Limitation Act and so as per case law of honorable supreme court, 1996 AIR SCW 941 "Officer on Spl. Duty (Land Acquisition) v. Shah Manilal Chandulal"--
para 8, this court can not decide the compensation issue no.1.Page 5 of 16
C/FA/2123/2018 JUDGMENT Issue No.2 :- As Applicant has failed to prove issue no.2 A and reference is barred by the provision of Limitation Act and so as per case law of honorable supreme court, 1996 AIR SCW 941 "Officer on Spl. Duty (Land Acquisition) v. Shah Manilal Chandulal"--
para 8, this court can not decide the compensation issue no.2.
Issue No.2 A :- In NEGATIVE.
Issue No.3 :- As per final order.
REASONS (12) ISSUE NOS. 1 & 2 :-
Honorable supreme court has decided in 1996 AIR SCW 941 "Officer on Spl. Duty (Land Acquisition) v. Shah Manilal Chandulal" as under :-
In para 8 of this case law the honorable supreme court has cited judgment Mohd. Hasnuddin v. State of Maharashtra, (1979) 2 SCC 572 : (AIR 1979 SC 404), in which the following principles have been laid down:-
--Even if the reference is wrongly made by the Collector, the Court will have to determine the validity of the reference Page 6 of 16 C/FA/2123/2018 JUDGMENT because the very jurisdiction of the Court to hear a reference depends upon a proper reference being made under Section 18.
--It has to proceed to determine compensation and if it is time-barred, it is not called upon to hear the same. It is only a valid reference which gives jurisdiction to the Court. Therefore, the Court has to ask itself the question whether it has jurisdiction to entertain the reference. If the reference is beyond the prescribed period by the proviso to sub-section (2) of Section 18 of the Act and if it finds that it was not so made, the Court would decline to answer the reference. Accordingly, it was held that since the reference was made beyond the limitation, the Court was justified in refusing to answer the reference.
In present case also applicant has failed to prove issue no.2A, and i.e. this application has been filed in limitation period. And so as per aforesaid judgment of honorable supreme court, this court is refusing to answer issue no.1 and 2.
(13) ISSUE NOS. 2A :-
Applicant has produced copy of award dated 19/05/2004 passed by the Deputy Collector, Land Acquisition & Rehabilitation, SIPU Project, Palanpur Page 7 of 16 C/FA/2123/2018 JUDGMENT in LAQ Case No.16 of 2001 under Section 11(1) of the Land Acquisition Act vide EXH 25. It is further said by applicant that Talati cum mantri has prepared rojkam at kamli village and survey no. 92/p1 is affected in place of survey no. 92. Rajput Chhaguji Modaji is possession holder of land bearing survey no. 92/p1 and so name of RAJPUT PITHUJI SUJAJI was replaced by Rajput Chhaguji Modaji. This amendment was carried out under section 13 a of Land acquisition act passed on 10/03/2008 is on record vide exh 26. It is further argued that as this amended award was passed on 10/03/2008 and present application has filed on 09/04/2008 and so present application is not time barred as per sec 18 of Act.
After going through amendment in award under section 13A of the act, which is on record vide EXH 26, it appears that present applicant has filed application Dated 07/02/2008 and so the deputy collector has amended the earlier award passed on 19/05/2004 i.e. EXH 25.
It is clear from the record that award under section 11 of land acquisition act (Exh-25) was passed on 19/05/2004 and amendment in the said award under section 13A of the act was carried out/passed on 10/03/2008, after considering the application of applicant dated 07/02/2008. Meaning thereby this amendment was order after lapse of 6 months from the dated of award passed under section 11 Page 8 of 16 C/FA/2123/2018 JUDGMENT (EXH 25). Amended award EXH 26 has been passed after lapse of period 3 years and 10 months.
Honorable punjab high court has decided in AIR 2006 PUNJAB AND HARYANA 186 "Mohinder Singh v. State of Punjab" PUNJAB & HARYANA HIGH COURT as under :-
(B) Land Acquisition Act (1 of 1894), S.11, S.13A - ACQUISITION OF LAND - Award -
Modification of Assessment of value of fruit trees on basis of report of Director of Horticulture - Revision of assessment on ground of alleged irregularities committed by Horticulture Department - Such modification or revision of award after two years - Is not permissible - Even under S. 13A, Land Acquisition Collector has no jurisdiction to correct clerical error in award after expiry of six months. (Paras 10, 13).
Similarly Honourable Gujarat high court has decided in AIR 2013 GUJARAT 300 "Patel Bhanubhai Karsandas v. State of Gujarat" as under:-
Section 13A provides for the power for correction of the clerical error, etc., by the Collector, but before making reference, if dispute is raised. The pertinent aspect is that the aforesaid is restricted to correction of clerical error etc., and the time limit provided Page 9 of 16 C/FA/2123/2018 JUDGMENT is not later than six months from the date of the award.
11. In the present case, the award has been passed on 30.4.1999 and the letter is stated to have been written on 11.10.1999, but the fact remains that such correction in the award has not been passed within a period of six months. Further in the said letter dated 11.10.1999 it has been stated by the Deputy Collector that supplementary award shall be passed within short time, but the fact remains that no such supplementary award has been passed. Not only that but if we consider the scope of Section 13A of the Act, the so-called compensation for the trees and crops over the land as such would not get included under the correction of the clerical error, etc., as provided under Section 13A of the Act. Even if it is considered for the sake of examination that such could be termed as correction of mistake, the same is not within the period of six months from the date of award, inasmuch as after the letter dated 11.10.1999, the order for additional compensation is passed on 19.11.2007, roughly more than seven years from the date of the award, which was in the year 1999.
Therefore, it appears to us that the order dated 19.11.2007 (Annexure-C) passed by the Additional Collector (Irrigation) could not Page 10 of 16 C/FA/2123/2018 JUDGMENT be termed as supplementary award or any award under Section 11 read with Section 13A of the Act.
12. In view of the aforesaid observation and discussion, when the power is not exercised under Section 11 read with Section 13A of the Act, it could not be said that any reference was required to be made under Section 18 of the Act for the alleged additional compensation. Hence, the impugned order cannot be said as illegal on the ground as sought to be canvassed. However, in the impugned order, it has been mentioned that if the petitioners are aggrieved by the order dated 19.11.2007, they may approach before appropriate forum. Hence, the petitioners may resort to such proceedings before appropriate forum against the order dated 19.11.2007, but it cannot be said that non- making of the Reference under Section 18 of the Act by the impugned order is illegal or arbitrary.
13. In view of the aforesaid, the petition fails. Hence, the same is dismissed.
Considering the facts and circumstances, no order as to costs. Petition dismissed. As per the principles laid down in the aforesaid judgment no such kind of modification under section 13A can be carried out after a period of 6 Page 11 of 16 C/FA/2123/2018 JUDGMENT month and this modification has been carried out after a period of 3 years and 10 months, which is not permissible under law and so this modification in award under section 13 A is not valid in the eyes of law. So exh 26 cannot be considered for waving the limitation period of six weeks or six month. Considering this application from the date of award passed under section 11 i.e. EXH 25 passed on 19/05/2004, this application has not been filed within limitation period i.e. either 6 weeks or 6 month as the case may be, from the date of award dated 19/05/2004. So it is decided that present application is time barred and so answer to ISSUE No.2A is given in NEGATIVE.
(14) - ISSUE NO.3 As per aforesaid discussion, answer to issue no.3 is given herein under.
ORDER
1. The Land Reference Case No.152/2015 is hereby dismissed.
2. Applicants and opponents shall bear their own cost.
3. Award will be drawn accordingly."
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C/FA/2123/2018 JUDGMENT
10. The plea that the Land Acquisition Officer had no power to correct the errors in the award made under Section 11 of the Act beyond the period of six months and therefore, the time consumed in the correction of errors would not save the period of limitation has no substance. Section 13A of the Act reads as under:
"[13A. Correction of clerical errors, etc. -- (1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:
Provided that no correction which is likely to affect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.
(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.
(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under sub-section (1), the excess amount so paid Page 13 of 16 C/FA/2123/2018 JUDGMENT shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue.]"
11. A bare reading of the above quoted provision makes it very clear that the Collector may, at any time, but not later than six months from the date of the award or where he has been required under section 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority.
12. In the case on hand, the Land Acquisition Officer thought fit to correct the errors in the award before making the Reference under Section 18 of the Act which cannot be termed as barred by limitation contemplated by Section 13A of the Act. The application filed under Section 18 for the purpose of making of reference indisputably was within the period of limitation. The date on which the Collector makes the reference is not relevant.
13. The plea that Section 13A of the Act empowers the Land Acquisition Officer to correct only clerical or arithmetical Page 14 of 16 C/FA/2123/2018 JUDGMENT mistakes but does not empower him to modify the award in a manner which would entitle another person to claim compensation has also no substance. The language used by the Legislature is that the Collector has power to correct any clerical or arithmetical mistakes in the award or errors arising therein. This provision is not analogous to Section 152 of the Code of Civil Procedure, 1908. The powers conferred on the Land Acquisition Officer are wide in nature and any error noticed in the award can be corrected if good ground is made out. This power is conferred on the Land Acquisition Officer to do substantial justice to the party aggrieved and cannot be read in a narrow manner as suggested by the learned AGP appearing for the State. The proviso appended to sub-section (1) of Section 13A further stipulates that no correction which is likely to effect prejudicially any person shall be made unless such person has been given a reasonable opportunity of making a representation in the matter. The proviso thus implies that the power to correct the award is not only confined to correction of clerical or arithmetical mistakes but any error arising in the award, of course, subject to hearing the persons who are likely to be affected prejudicially. Under the circumstances, the plea that the correction made in the award travels beyond the scope of Section 13A of the Act and Page 15 of 16 C/FA/2123/2018 JUDGMENT therefore, the reference was time barred cannot be upheld and is hereby rejected. The Reference under Section 18 could be said to be well within the period of limitation.
14. Having regard to the position of law explained above, the impugned judgment and order passed by the Land Reference Court is not sustainable in law.
15. In the result, this First Appeal succeeds and is hereby allowed. The impugned judgment and order passed by the Principal Senior Civil Judge, Visnagar dated 27.02.2018 in Land Acquisition Reference No.152/2015 is hereby quashed and set aside. The matter is remitted to the Court concerned for fresh consideration of the Land Acquisition Reference on merits. I clarify that I have otherwise not expressed any opinion so far as the issue with regard to enhancement of compensation is concerned. I have confined my judgment only on two neat question of law.
16. Let the Land Reference be heard expeditiously and disposed of within a period of three months from the date of receipt of this judgment and order.
(J.B.PARDIWALA, J) MAYA Page 16 of 16