Bombay High Court
Kashabai Vinayak Dusane ... vs The State Of Maharashtra Through ... on 4 March, 2021
Bench: A.A. Sayed, Prakash Deu Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 3527 OF 2009
Laxmibai Gopalrao Patil(decd.)-s.g.patil(decd.)by
Lrs.- Anil SampatraoPatil And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The SpecialLand Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3561 OF 2009
Savaliram Kondaji Tidke (decd.)
by Lrs.- MadhukarSavliram Tidke & Or. ...Petitioners
V/S
The State Of Maharashtra
Through The SpecialLand Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3562 OF 2009
Laxman Pandit Jaybhave ....Petitioners
V/S
The State Of Maharashtra
Through The SpecialLand Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3563 OF 2009
Madhav V. Patil (decd.)
by Lrs.-vivek MadhavraoPatil And Anr. ....Petitioners
V/S
The State Of Maharashtra
Through The SpecialLand Acquisition Officer,
Cidco Project And Ors. ....Respondents
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WITH
WRIT PETITION NO. 3564 OF 2009
Parvatabai Ghamanrao Tidke And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3565 OF 2009
Hilla Noshir Dumasia And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3566 OF 2009
Anusayabai Bapushet Vispute ....Petitioner
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3567 OF 2009
Dattatraya Pandharinath Joshi ....Petitioner
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
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WITH
WRIT PETITION NO. 3568 OF 2009
Prabhakar P. Jadhav (decd.)
by Lrs.- LeelabaiPrabhakar Jadhav ....Petitioner
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3569 OF 2009
Uttamrao Nabhaji Mahale ....Petitioner
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3570 OF 2009
Dyandev Kisan Tidke And Anr. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3572 OF 2009
Baburao Appa Mahale ....Petitioner
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
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WITH
WRIT PETITION NO. 3573 OF 2009
Shankarrao Vithoba Naik And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3574 OF 2009
Saraswatabai Gulabrao Kothawade And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The SpecialLand Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3584 OF 2009
Shamrao H. Sonawane (decd.)
by Lrs.- SureshShamrao Sonawane And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
WITH
WRIT PETITION NO. 3585 OF 2009
Kashabai Vinayak Dusane (decd.)
by Lrs.-Kusum D. Dusane And Ors. ....Petitioners
V/S
The State Of Maharashtra
Through The Special Land Acquisition Officer,
Cidco Project And Ors. ....Respondents
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WITH
WRIT PETITION NO. 3858 OF 2009
Prabhakar Martandrao Bhosale ....Petitioner
V/S
The State Of Maharashtra And Ors. ....Respondents
...
Mr. Anil J. Ahuja i/b Jamnadas Ahuja & Associates for Petitioners.
Mr. V. S. Gokhale B Panel counsel for State/Respondents Nos.1 & 3.
Mr. G. S. Hegde a/w Ms. Pinki Bhansali i/b G. S. Hegde & Associates for
Respondent No.2.
CORAM : A.A. SAYED &
PRAKASH D. NAIK, JJ.
DATED : 4 MARCH 2021
P.C.:
In the above bunch of Petitions, the Petitioners have impugned the
orders dated 2 January 2009 passed by the Special Land Acquisition
Officer, CIDCO Project, Nasik, whereby their Applications dated 23-04-2008
filed under section 28A of the Land Acquisition Act, 1894 (for short "the Act")
came to be rejected as being time-barred since the Applications were not
filed within three months from the date of the order dated 25 October 1994
of the Reference Court.
2. The lands of the Petitioners came to be acquired for CIDCO project
under the provisions of the Land Acquisition Act, 1894 read with section 126
of the Maharashtra Regional Town Planning Act, 1966. The Notification
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under section 6 of the Land Acquisition Act was issued on 28-08-1981. On
12-02-1986, the Award was declared under section 11 of the Land
Acquisition Act granting compensation to the land owners ranging between
Rs.4/- to Rs.10/- per sq.mt. Aggrieved by the quantum of compensation,
Applications were filed by the Petitioners under section 18 of the Land
Acquisition Act claiming enhancement of the compensation at the rate of
Rs.100/- per sq. mt. The said Applications under section 18 were referred to
the Reference Court by the SLAO. The said Applications were pending with
the Joint District Judge, Nasik from the year 1986 to 1994. On 26-10-1994,
the said Applications of the Petitioners under section 18 came to be allowed
by a common judgment by the Reference Court granting enhanced
compensation ranging between Rs.24/- to Rs.36/- per sq.mt. The common
judgment of the Reference Court included the case of other land
owners/Claimants who had also preferred the Land Reference. It may be
stated here that though the State Government contested the matter before
the Reference Court, the plea of limitation in filing the Applications under
section 18 was not raised by the State Government and no issue of
limitation was framed by the Reference Court in that regard.
3. Aggrieved by the inadequacy of compensation awarded by the
Reference Court, the Petitioners (and other land owners) as well as the
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State Government filed separate First Appeals/Counter Claims in this Court.
Even in the First Appeals, no plea of limitation in filing the Applications
under section 18 was raised by the State Government. The First Appeals
were pending before this Court from the year 1995 to 2008. During the
pendency of the First Appeals, the State Government for the first time in the
year 2007 raised the plea that the Applications of the Petitioners under
section 18 which were filed before the Reference Court were beyond the
period of limitation. Eventually, by a common judgment and order dated 31-
01-2008 of the Division Bench of this Court, while allowing the First Appeal
of the State Government, held that the Applications under section 18 of the
Petitioners were time barred. Some of the other Applications under section
18 which were not time barred (other than the Applications of the
Petitioners) came to be allowed and the Division Bench enhanced the
compensation further ranging from Rs.24.00 to Rs.36.00 per sq.mt. to
Rs.53.55 to Rs.58.80 per sq.mt. The Division Bench in the judgment and
order dated 31-01-2008 observed that the finding as regards limitation
could not have been recorded by the Reference Court because no such
objection was taken by the State Government and this fact was overlooked
by the Reference Court and the right of the Claimants to move the Collector
under section 28-A of the Land Acquisition cannot be taken away.
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4. The Petitioners, thereafter, filed Applications under section 28-A of
the Land Acquisition Act before the SLAO.
5. The issue for consideration in the present Petitions is whether the
Petitioners are entitled to file Applications under section 28-A of the Land
Acquisition Act after the judgment and order dated 31-01-2008 of the
Division Bench of this Court holding that the Applications of the Petitioners
under section 18 were time barred.
6. The contention of the learned Counsel for the Respondents is that as
per section 28-A of the Land Acquisition Act, the Applications ought to have
been filed by the Petitioners within three months from the date of the order
dated 25-10-1994 of the Reference Court. However, the Applications under
section 28-A have been filed by the Petitioners only in the year 2008 i.e.
after about 14 years and therefore the same are time barred.
7. The contention of the learned Counsel for the Petitioners, on the
other hand, is that the Applications cannot be held to be time barred,
inasmuch as the Division Bench of this Court while rendering a finding that
their Applications under Section 18 were time barred has specifically
reserved the right of the Petitioners to file the Applications under section
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28-A. It is, however, contended by the learned Counsel for the Respondents
that the said right, is subject to the Petitioners "satisfying the statutory and
other requirements of section 28-A of the Land Acquisition Act", as observed
by the Division Bench, which would mean that the statutory requirement of
filing an Application under section 28-A within three months was required to
be gone into by the SLAO and the SLAO has rightly held that the
Applications of the Petitioners under section 28-A are time barred.
8. We have considered the rival contentions. At the outset, it would be
necessary to reproduce section 28-A of the Land Acquisition Act, 1894. It
reads as follows:
"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
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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 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."
9. We have carefully perused the judgment of the Division Bench of this
Court dated 31-01-2008 which is reported in 2008 (5) Mh.LJ 363 (State of
Maharashtra Vs. Sadashiv Ganpat Avhad). Speaking on behalf of the
Bench, Chief Justice Swatanter Kumar (as His Lordship then was) while
holding the Applications of the Petitioners under section 18 were time
barred, has, following the judgment of the Constitution Bench of Union of
India v/s. Hansoli Devi and Ors., AIR 2002 SC 3240 reserved the right of
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the Petitioners to file Applications under section 28A. In paragraph nos. 21
and 22, the Court held as follows:
"21. The first and the foremost question that requires
consideration by this Court is what is the effect of the applications
filed by the claimants being barred by time. We have already
discussed this issue at some length that the applications filed under
Section 18 of the Act which were barred by time could not have
been entertained by the Collector and consequently reference could
not have been answered in favour of the claimants. Once the very
initiation of the proceedings under Section 18 of the Act was barred
in law, no subsequent proceedings could entail to the benefit of
either parties. Both the Collector and the Court have no power of
either parties. Both the Collector and the Court have no power to
condone the delay in filing an application under section 18 of the
Act. The obvious result thereto would be that the appeals filed by
the claimants in such cases would not be maintainable while the
appeals of the State in similar cases would have to be acepted as
ordered above. The other relevant and pertinent question which
would require consideration is that where Section 18 petition is held
to be barred by time, can the claimants invoke the provisions of
Section 28-A of the Act and, if so, which is the appropriate forum?
As far as the first part of this aspect is concerned, it is no more re
integra and has been answered in unambiguous terms by the
Supreme Court in the case of Union of India and another vs.
Hansoli Devei and others, AIR 2002 SC 3240, where the Court after
discussing the law on the subject and in the facts of the case where
Section 18 petition was filed beyond the prescribed period of
limitation held that the claimants could invoke the provisions of
Section 28-A for re-determination of compensation to the Collector.
It will be useful to refer to the dictum of the Supreme Court in this
case.
"4. Before we embark upon an inquiry as to what would be
the correct interpretation of Section 28-A, we think it
appropriate to bear in mind certain basic principles of
interpretation of status. The rule stated by Tindal, C. J. in
Sussex Peerage case, (1844) 11 C1 and F 85, still holds the
field. The aforesaid rule is to the effect:
"if the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to
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expound those words in their natural and ordinary sense.
The words themselves do alone in such cases best
declare the intent of the law giver."
It is a cardinal principle of construction of statute that when
language of the statute is plain and unambiguous, then the
Court must give effect to the words uses in the status and it
would not be open to the courts to adopt a hypothetical
construction on the ground that such construction is more
consistent with the alleged object and policy of the Act. In
Kirkness v. John Hudson and Co. Ltd., 1955 (2) All ER 345,
Lord Reid pointed out as to what is the meaning of "ambiguous"
and held that "a provision is not ambiguous merely because it
contains a word which is different context is capable of different
meanings and it would be hard to find anywhere a sentence of
any length which does not contain such a word. A provision is,
in my judgment, ambiguous only if it contains a word or phrase
which in that particular context is capable of having more than
one meaning". It is no doubt true that if on going through the
plain meaning of the language of statutes, it leads to
anomalies, injustice and absurdities, then the Court may look
into the purpose for which the statute has been brought and
would try to give a meaning which would adhere to the purpose
of the statute. Patanjali Sastri, C. J. in the case of Aswini Kumar
Ghose v. Arabinda Bose, 1953 SCR 1 had held that it is not a
sound principle of construction to brush aside words in a
statute as being inappsoite surplusage, If they can have
appropriate application in circumstances conceivably within the
contemplation of the statute. In Quebec Railway Light Heat and
Power Co. V Vandray AIR 1920 PC 181, it had been observed
that the Legislature is deemed not to waste its words or to say
anything in vain and a construction which attributes redundancy
to the legislature will not be accepted except for compelling
reasons. Similarly, it is not permissible to add words to a statute
which are not there unless on a literal construction being given
a part of the statute becomes meaningless. But before any
words are read to repair an omission in the Act, it should be
possible to state with certainty that these words would have
been inserted by the draftsman and approved by the legislature
had their attention been drawn to the omission before the Bill
had passed into a law. At times, the intention of the legislature
is found to be clear but the unskilfulness of the draftsman in
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introducing certain words in the statute results in apparent
ineffectiveness of the language and in such a situation, it may
be permissible for the Court to reject the surplus words so as to
make the statute effective. Bearing in mind the aforesaid
principle, let us now examine the provisions of Section 28-A of
the Act to answer the questions referred to us by the Bench of
two learned Judges. It is no doubt true that the object of
Section 28-A of the Act to confer a right of making a reference,
who might have not made a reference earlier under Section 18
and, therefore, ordinarily when a person makes a reference
under Section 18 but that was dismissed on the ground of
delay he would not get the right of Section 28-A of the Land
Acquisition Act when some other person makes a reference
and the reference is answered. But the Parliament having
enacted Section 28-A , as a beneficial provision, it would cause
great injustice if a literal interpretation is given to the expression
"had not made an application to the Collector under Section 18"
in Section 28-A of the Act. The aforesaid expression would
mean that if the land owner has made an application for
reference under Section 18 and that reference is entertained
and answered. In other words, it may not be permissible for a
land owner to make a reference and get it answered and then
subsequently make another application when some other
person gets the reference answered and obtains a higher
amount. In fact, in Pradeep Kumari's case the three learned
Judges, while enumerating the conditions to be satisfied,
whereafter an application under Section 28-A can be moved,
had categorically stated "the person moving the application did
not make an application" as observed by this Court would
mean, did not make an effective application which had been
entertained by making the reference and the reference was
answered. When an application under section 18 is not
entertained on the ground of limitation, the same not fructifying
into any reference, then that would not tantamount to an
effective application and consequently the rights of such
applicant emanating from some other reference being
answered to move an application under Section 28-A cannot be
denied. We, accordingly answer question No. 1 (a) by holding
that the dismissal of an application seeking reference under
Section 18 on the ground of delay would tantamount to not
filing an application within the meaning of Section 28-A of the
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Land Acquisition Act, 1894.
5. So far as question 1 (b) is concerned, this is really the
same question, as in question 1 (a) and, therefore, we reiterate
that when an application of a land owner under Section 18 is
dismissed on the ground of delay, then the said land owner is
entitled to make an application under Section 28-A, if other
conditions prescribed therein are fulfilled.
6. Coming to the second question for reference the receipt of
compensation with or without protest pursuant to the award of
the Land Acquisition Collector is of no consequence for the
purpose of making a fresh application under Section 28-A. If a
person has not filed an application under Section 18 of the Act
to make a reference, then irrespective of the fact whether he
has received the compensation awarded by the Collector with
or without protest, he would be a person aggrieved within the
meaning of Section 28-A and would be entitled to make an
application when some other land owner's application for
reference is answered by the reference Court. It is apparent on
the plain language of the provisions of Section 28-A of the Act.
Otherwise, it would amount to adding one more condition, not
contemplated or stipulated by the Legislature itself to deny the
benefit of substantial right conferred upon the owner".
22. The provisions of Section 28A can be invoked by a person
interested in the land, if he had not filed an application under
Section 18 of the Act and the Court had enhanced the
compensation in relation to the land covered by the said notification
as that of the person interested. Such a written application has to be
made to the Collector within the specified time. The above dictum of
the Supreme Court which is directly applicable to the facts of the
present case protects the right of the person interested in the land,
even if he had filed an application under Section 18 of the Act and
the same was dismissed as being barred by time. Such filing has
been construed by the Supreme Court "as if not filed". In the cases
in hand we have already held that the applications filed by the
claimants under Section 18 of the Act at the time of their filing were
barred by time. But this finding could not be recorded because no
such objection was raised on behalf of the State and in fact it was
overlooked by the learned Reference Court as well. As the finding
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that these applications are being barred by time is for the first time
recorded by this Court in appeal, the right of the claimants to move
the Collector in terms of Section 28A cannot be taken away, subject
to the applicants satisfying the statutory and other requirements of
Section 28A of the Act."
(emphasis supplied)
10. Thus, the Division Bench had specifically reserved the right of the
Petitioners to move the Collector under section 28A of the Land Acquisition
Act, subject to the Petitioners satisfying the statutory and other
requirements of section 28A of the Act. No doubt section 28A of the Land
Acquisition Act provides for the Application under this section 28 to be made
within three months of the order of the Reference Court, i.e. within three
months from 25-10-1994. However, in the facts and circumstances of the
present case, there was no question of the Petitioners making any such
Application under section 28A within three months from the date of
Reference Court's order dated 25-10-1994, inasmuch as their Reference
Applications under section 18 were allowed enhancing compensation
between Rs.24/- to Rs.36/- per sq.mt. The question to be posed would
really be when did the right to file the Applications under section 28A accrue
to the Petitioners in the facts of the present case. In our view, this right to
file Application under section 28A accrued to the Petitioners only after the
passing of the order dated 31-01-2008 by the Division Bench of this Court
in the First Appeal, when the Applications of the Petitioners under section
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18 came to be rejected as time barred. In any event, in the teeth of the
order of the Division Bench reserving the right of the Petitioners to file the
Applications under section 28A, it is not really open for the Respondents to
raise the contention that the Petitioners ought to have filed Applications
under section 28A within three months from the date of the order of the
Reference Court dated 25-10-1994. The Division Bench has permitted the
Petitioners by order dated 31-01-2008 to invoke section 28A after having
found that the Applications of the Petitioners under section 18 were time
barred. The expression "after satisfying the statutory and other
requirements of Section 28A" is required to be read in context and can in no
manner be read to say that the Applications of the Petitioners under Section
28A ought to have been filed within 3 months from the date of the order of
the Reference Court dated 25-10-1994, which was obviously not possible. If
the expression is read in the manner suggested by the learned Counsel for
the Respondent No.2, it would only mean that the Division Bench on one
hand, permitted the filing of the Applications under section 28A, but on the
other hand denied it. Such hair splitting argument is required to be rejected
and is accordingly rejected.
11. The contention of the learned Counsel for the Respondents that if the
Petitioners have filed the Applications under section 18 beyond the statutory
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period of limitation, they would have to suffer the consequences and they
cannot be said to be persons who are diligent, has no merit and cannot be
accepted.
12. In view of the aforestated judgment and order dated 31.01.2008 of
the Division Bench of this Court in the Petitioners' own case, which follows
the judgment of the Constitution Bench of the Supreme Court in Union of
India & Anr. Vs. Hansoli Devi & Ors. reserving the right of the Petitioners
to file the Applications under section 28A, in absence of the challenge to the
said order and judgment of the Division Bench, the judgments cited by the
learned Counsel for the Respondent No. 2 and the learned AGP viz. (1)
Jose Antonio Cruz Dos R. Rodiguese v/s Land Acquisition Collector
(1996) 6 SCC 746 (2) Mahadev Bajirao Patil Vs. State of Maharashtra,
2006 (1) Mh.L.J. 28 (of the Supreme Court) and (3) Suresh Marutrao
Jadhav Vs. State of Maharashtra 2002 (5) Bom.C.R. 347 (Full Bench of
this Court) would have no application in the facts of the present case.
13. In light of the above, the impugned orders dated 2nd January, 2009
are set aside. Rule made absolute accordingly. The Special Land
Acquisition Officer shall now pass appropriate orders in light of the
observations in this order and in accordance with law within six weeks from
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the date on which copy of this order is placed before him.
14. At the request of the learned Counsel for the Respondents, the
operation of this order is stayed for a period of 8 weeks from today.
(PRAKASH D. NAIK, J.) (A.A.SAYED,J.)
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