Viswasrao Bhaurao Bhoite ... vs State Of Maharashtra And Ors.
2003 Latest Caselaw 1028 Bom

JUDGMENT

B.H. Marlapalle, J.

1. The petitioners owned agricultural land in Gat No. 563 of village Ruibhar and land admeasuring 7.17 hectares came to be acquired under the Land Acquisition Act, 1894 ('the Act', for short) for the Ruibhar Project in Osmanabad district. Award was passed under Section 11 of the Act and they received the compensation. They had not applied under Section 18 of the Act for reference for enhancement of compensation. Land Acquisition Reference No. 241 of 1991 filed by Manik s/o Babarao Tirthkar came to be decided by the learned Civil Judge, Senior Division at Osmanabad on 19th October, 1993 and taking support of the said award, the petitioners approached the Collector and submitted a claim on 10th May, 1994 under Section 28A of the Act claiming that they were covered by the same verification and award as the claimant in L.A.R. No. 241 of 1991. This application was not decided for quite some time and, therefore, they approached this Court in Writ Petition No. 4474 of 1996 which came to be decided by order dated 21st September, 1996 with directions to the Collector and the Special Land Acquisition Officer to decide the application of the petitioners within four months. The petitioners received notice dated 21st January, 1997 from the Land Acquisition Officer informing, that the notification under Section 4 of the Act was different in L.A.R. No. 241 of 1991 and the acquisition of the petitioners' land was not covered by the same notification. The application filed under Section 28A of the Act was accordingly disposed of. A communication dated 29th January, 1997 came to be addressed by the Collector, Osmanabad to the Special Land Acquisition Officer pointing out that the notification under Section 4 of the Act, in respect of the land covered by L.A.R. No. 241 of 1991, was different from the notification by which the petitioners' land was acquired and the application filed by the petitioners was time barred. A copy of the said communication was also forwarded to the petitioners by the Special Land Acquisition Officer subsequently. Being aggrieved by these two communications the petitioners approached in the second round, to this Court.

2. Shri Madkholkar, the learned counsel for the petitioners, at the threshold submitted that the averments made by the petitioners have not been controverted by the respondent-State authorities by filing a return and, therefore, this Court is required to proceed on the basis that the said averments have been admitted by them. In support of this argument he relied upon the decision in the case of Smt. Naseem Bano v. State of U.P. and Ors., AIR 1993 SC 2592. He then referred to the order passed by this Court while deciding writ petition No. 4474 of 1996 and submitted that when the Collector was specifically directed to decide the application submitted by the petitioners, the decision communicated on or about 21st January, 1997 and 29th January, 1997 cannot be treated to be legal and valid and moreso because the petitioners were not offered an opportunity of hearing before the said decision was communicated. The respondents have, thus, committed contempt of the order passed by this court on 21st September, 1996 in writ petition No 4474 of 1996 and, in any case, the decision so communicated has civil consequences and principles of natural justice were required to be followed by the Collector while deciding the petitioners' application. The learned counsel, therefore, prayed for remand of the application submitted under Section 28A of the Act for being heard afresh after affording the petitioners an opportunity of hearing.

3. Though the return has not been filed on behalf of the Collector and the Special Land Acquisition Officer, the original record has been submitted before us and we have noted from the same that the petitioners' land located in Gat No. 563 came to be acquired pursuant to the notification dated 18th June, 1979 issued under Section 4 of the Act and the same was published in the local newspapers on 25th June, 1979. Notification under Section 6 of the Act was published by the Commissioner on 23rd March, 1982 and the same was published in the Government Gazette on 1st April, 1982. Award under Section 11 of the Act came to be passed on 11th August, 1982 and all the four petitioners have received the compensation amount between 24th August 1982 and 6th September, 1982. As against this, the land, which was the subject matter of L.A.R. No. 241 of 1991, was admittedly from Gat No. 414 of village Ruibhar and the initial notification under Section 4 of the Act was issued in respect of the same on 19th October, 1982. It was published in the Government gazette on 20th January, 1983 and a corrigendum thereto was published on 7th June, 1984. Notification under Section 6 of the Act was published in the Government Gazette on 24th October, 1986 and Award under Section 11 of the Act came to be passed on 19th February, 1987.

4. It is, thus, clear that the land of the petitioners and the claimant in L.A.R. No. 241 of 1991 was not covered by the same notification under Section 4 or Section 6 of the Act as well as the award passed therein under Section 11 of the Act and hence the provisions of Section 28A of the Act cannot be invoked by the petitioners on the basis of the award passed in L.A.R. No. 241 of 1991 on 19th October, 1993. The communication dated 21st January, 1997 could not be faulted with.

5. Secondly, the award in L.A.R. No. 241 of 1991 is dated 19th October, 1993 and the petitioners submitted an application to the Collector under Section 28A of the Act on 10th May, 1994. As per the provisions of Section 28A of the Act such an application is required to be submitted within a period of three months. In the case of State of Andhra Pradesh and Anr. v. Marri Venkaiah and Ors., 2003 AIR SCW 3683 it has been reaffirmed that the period of limitation, to submit an application under Section 28A of the Act, is of three months and in computing the said period of three months, the date on which the award was pronounced and the time requisite for obtaining the copy of the award is to be excluded. It is further held that the application under Section 28A is required to be filed within three months from the date of the award by the Court by only excluding the time requisite for obtaining the copy and it cannot be accepted that the period of limitation of three months would commence from the date of knowledge of the award passed by the Reference Court, on which reliance has been placed. Shri Madkholkar referred to the decision in the case of India House v. Kishan N. Lalwani, 2003 AIR SCW 78. We have no doubt in our mind that the reliance is totally misplaced. The view taken by the Apex Court in the case of Marri Vankaiah (supra) has reaffirmed the position for counting the period of limitation for an application to be submitted under Section 28A of the Act and, therefore, the second ground viz. limitation on account of which the petitioners' application has been rejected, cannot be held to be illegal. The petition, thus, fails on both the counts as has been communicated to them vide the Collector's letter dated 29th January, 1997 addressed to the Special Land Acquisition Officer.

6. The prayer made for remand has not been considered by us as the original record submitted before us has been perused and in every case where there is violation of principles of natural justice a remand order is not a must. The petition has been pending before us for the last more than six years and we, therefore, proceeded to decide the petition on its own merits by perusing the record rather than remanding the application filed by the petitioners under Section 28A of the Act for fresh decision after hearing them.

7. In the result, the petition fails and the same is hereby dismissed. Rule discharged. No costs.