Bombay High Court
Kashinath Janardhan Khavne vs The State Of Maharashtra Through ... on 22 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:1836-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
13 WRIT PETITION NO. 313 OF 2024
KASHINATH JANARDHAN KHAVNE
VERSUS
THE STATE OF MAHARASHTRA THROUGH COLLECTOR
JALNA AND OTHERS
...
Advocate for the Petitioner : Mr. Jadhav Kailas B.
AGP for Respondents 1 to 3/State : Mr. P.K. Lakhotiya
...
CORAM : RAVINDRA V. GHUGE
&
Y. G. KHOBRAGADE, JJ.
DATE :- 22nd January, 2024
Per Court :-
1. The Petitioner has put forth prayer clause B as
under:-
"B) By issuing appropriate writ, order or direction
in the like nature, impugned order dated
05.06.2023 vide Outward No.2023/ LAQ/
Sec.28-A/ KAVI passed by respondent No.2
may kindly be quashed and set aside and
consequently application U/Sec. 28-A of the
Land Acquisition Act 1894 filed by petitioner
on 03.10.2015 may be treated within period of
limitation."
2. We have heard the learned Advocates for the
respective sides. There is no dispute as regards the sequence of
events as under:-
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(a) The award under Section 18 of the erstwhile Land
Acquisition Act, 1894 was delivered in LAR No.1041/2010 on
03.07.2015.
(b) The date on which the award is pronounced, has to
be excluded while computing the number of days.
(c) Excluding the above stated date, 28 days in July
2015, 31 days in August 2015, 30 days in September 2015 and 2
days of October, 2015, make the total 91 days.
(d) The Petitioner preferred an application under
Section 28-A on 03.10.2015.
(e) 2nd October, 2015 was national holiday. 1st October,
2015 was the 90th day and the proceedings were filed on
03.10.2015.
(f) The proceeding initiated by the Petitioner is,
therefore, delayed by one day.
3. In Assistant Commissioner (CT), LTU, Kakinada
and others vs. Glaxo Smith Kline Consumer Health Care
Limited, (2020) 19 SCC 681, the Honourable Supreme Court has
held that delay beyond the aggregate period cannot be condoned
by exercising power under Article 142. So also, neither Article
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226 of the Constitution of India, would not permit the High
Court to condone the delay, nor can such delay be condoned by
invoking Section 5 of the Limitation Act. When a complete
appellate mechanism is provided under the statute prescribing the
maximum period of limitation, writ jurisdiction cannot be
exercised to undermine the statutory regime.
4. This Court in Sheshabai @ Subhadrabai w/o
Gyanoba Madale vs. The State of Maharashtra and others,
2014(1) Mh.L.J. 317, (Writ Petition No.52/2022 decided on
17.08.2023 Aurangabad Bench), has taken a view in paragraph
Nos.14 to 21 as under:-
"14. In Vajsibhai Ramabhai Sagar Vs. The State of
Gujarat, decided on 12.06.2023, the Division
Bench of the Gujarat High Court has relied
upon the Supreme Court judgments in
paragraph nos. 5.1, 6.0 and 6.1 and has
concluded in paragraph Nos. 7.0, 7.1 and 7.2 as
under :-
"[5.1] He would submit that in similar type of case
the Division Bench of this Court in the case of
Patel Govindbhai Khodidas vs. Special Land
Acquisition Officer and Anr. rendered in
Special Civil Application No.7677/2017, vide
judgment dated 22.08.2017, has considered the
case and by condoning the delay
C/SCA/2908/2023 ORDER DATED:
12/06/2023 caused in filing application under
Section 28A of the Land Acquisition Act, 1894,
had granted the said petition. He, therefore,
would submit that present petitions be allowed.
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[6.0] On the other hand, learned Assistant
Government Pleader Mr. K.M. Antani
appearing for the respondents has vehemently
opposed the present group of petitions. He
would submit that the limitation to file an
application under Section 28A of the Land
Acquisition Act, 1894 is of three months from
the date of publication of award by the
concerned Court. In the present case, the award
was declared on 09.04.2018 wherein the
application was made by the respective
petitioners on 10.11.2020, which is beyond the
prescribed period of 90 days.
[6.1] He would submit that such period cannot be
condoned by this Court even in exercise of
powers under Article 226 of the Constitution of
India. In support of his above submission,
learned AGP has relied upon the decision of the
Hon'ble Apex Court in the case of State of A.P.
and another vs. Marri Venkaiah and others
reported in (2003) 7 SCC 280 as well as the
decision of the Hon'ble Apex Court in the case
of Union of India and others vs. Mangatu Ram
and others reported in (1997)6 SCC 59. By
relying upon these two decisions, learned AGP
would submit that period of limitation cannot
be extended and person seeking relief under
Section 28A of the Land Acquisition Act, 1894
is supposed to file application within a
prescribed period of three months from the date
of publication of the award by the reference
Court. As far as decision of the Division Bench
of this Court in the case of Patel Govindbhai
Khodidas (Supra) relied upon by the learned
advocate appearing for the petitioners is
C/SCA/2908/2023 ORDER DATED:
12/06/2023 concerned, learned AGP would
submit that the facts of the said case were not
applicable to the present group of petitions. He
would submit that the application under
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Section 28A of the Land Acquisition Act, 1894
was filed by the owner of the property through
his brother which was rejected on that ground
and the application which was filed by the
original owner subsequent to the period of
limitation, the same was accepted. He,
therefore, would submit that the petition be
dismissed.
[7.0] We have heard learned advocates appearing for
the respective parties at length. It is an
undisputed fact that none of the present
petitioners have sought reference under Section
18 of the Land Acquisition Act, 1894. The
Reference Court declared the judgment and
award only on 09.04.2018.
[7.1] As per Section 28A of the Land Acquisition
Act, 1894, a written application is required to
be submitted for similar compensation under
Section 28A of the Land Acquisition Act, 1894
within a period of three months from the date
of such award passed by the Court. Section
28A of the Land Acquisition Act, 1894 reads as
under:
"28A. Re-determination of the amount of
compensation on the basis of the award of the
Court.
....................
...................
This provision has been interpreted by the
Hon'ble Apex Court in the case of Marri
Venkaiah and Others (Supra) wherein it has
been specifically held by the Hon'ble Apex
Court that a person would be entitled for
benefits only if he files application under
Section 28A within a period of 90 days. Similar
is the ratio laid down by the Hon'ble Apex
Court in the case of Mangatu Ram and Others
(Supra).
[7.2] In our considered opinion the Authority has
committed no error in rejecting application
under Section 28A of the Land Acquisition Act,
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1894. As far as the decision of the Division
Bench of this Court in the case of Patel
Govindbhai Khodidas (Supra) relied upon by
the learned advocate appearing for the
petitioners is concerned, it appears from the
said judgment that the application in that case
was filed within the period of limitation by the
original land owner through his brother but the
same was rejected on the ground that the
person who filed C/SCA/2908/2023 ORDER
DATED: 12/06/2023 application under Section
28A Land Acquisition Act, 1894 has not
submitted authorization to file the application
for and on behalf of the petitioner - original
land owner and therefore, the Division Bench
entertained the said petition. But, in the present
case, the application under Section 28A of the
Land Acquisition Act was filed beyond the
period of limitation and therefore, said decision
of Division Bench cannot be made applicable
to the facts of the present case."
15. The learned Advocate for the Petitioner has
placed reliance upon the order passed by the
Hon'ble Supreme Court in Karam Chand
(supra), wherein it was noted that even though
limitation is prescribed, subject to declining the
interest for the delayed payment, compensation
can be re-determined. We respectfully infer
that the said order of the Hon'ble Supreme
Court was in the facts and circumstances of the
said case keeping in view the order passed by
the Hon'ble Supreme Court dated 27.11.2019 in
Civil Appeal No.1632/2011 filed by Narayan s/
o Dhondu Sarode, Dead,through LR's and
others Vs. The Collector, Jalgaon and another,
referring to Article 142 of the Constitution of
India. It would be advantageous to refer to the
following paragraphs of the order delivered in
Narayan Dhondu Sarode (supra) as under :-
"It is relevant to note that the limitation
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prescribed for filing application under Section
28A of the Act is 90 days. The 90th day fell on
6th July, 1986 which happened to be a Sunday.
The application under Section 28A came to be
filed by the appellants herein on 08.07.1986,
instead of 07.07.1986. Hence, there was a
delay of one day in filing the application.
The High Court in the impugned
judgment summarily dismissed the writ petition
filed by the appellants. It is held that the
SLAO as well as the Collector were justified in
rejecting the application under Section 28A in
view of the delay of one day, in as much as,
there is no provision for condoning such delay.
It is pertinent to note that this Court in
the case of Bir Wati and others Vs. Union of
India and others [(2017) 16 SCC 548] had by
exercising jurisdiction under Article 142 of the
Constitution of India, directed the concerned
Authority to accept the application under
Section 28A of the Land Acquisition Act. This
is accounting for the fact that the persons
hailing from agricultural background may be
unaware of the legal and procedural
requirements under the Act.
Hence, having regard to the facts and
circumstances of the present case, we exercise
our jurisdiction under Article 142 of the
Constitution of India and condone the delay /
lapse of one day on the part of the appellants in
filing the application inasmuch as the appellant
would not get the adequate compensation as
awarded in similar matters.
Therefore, Collector / concerned
appropriate officer is directed to accept the
application filed by the appellants under
Section 28A of the Land Acquisition Act and
determine the appropriate compensation in
accordance with Law."
16. In Bir Wati and Others (supra), it has been
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recorded in paragraph Nos. 13 to 16 as under :-
"13) It is true that one of the requirements to
apply to the Collector under Section 28A of the
Act is to make an application within three
months from the date of the award passed in
other cases.
14) In this case, three months have already expired
and the appellants were not able to make the
application within three months or thereafter
till date. However, having regard to the
peculiar facts and circumstances of the case
wherein we find that firstly, the bread earner of
the appellants' family namely Jugal Kishore
died during the pendency of the proceedings
before the Collector long back; secondly, one
of the appellants also expired during pendency
of this appeal as reported; and thirdly, all the
appellants are illiterates and unaware of the
proceedings in question for years even after
passing of the award and are also unaware of
the legal and procedural requirements
prescribed in the Act. It is due to these reasons,
we are of the view that the appellants are
entitled for indulgence.
15) In the light of the foregoing discussion, we are
of the view that this is a fit case to allow the
appellants to make an application to the
concerned Collector under Section 28A of the
Act within three months from the date of
receipt of this judgment i.e. on or before
17.12.2017 praying therein for payment of
compensation to them in the light of the
enhanced compensation, if already found
awarded to other landowners in these very
acquisition proceedings by the reference Court.
16) This indulgence to apply under Section 28A of
the Act is granted to the appellants by this
Court in exercise of our powers conferred
under Article 142 of the Constitution which we
do with a view to do complete and substantial
justice to the appellants."
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17. It is, thus, clear from Bir Wati and others
(supra), that the bread earner of the Appellant's
family had died during the pendency of the
proceedings before the Collector. Another
male appellant expired during the pendency of
the appeal. The surviving appellants were
illiterate and were unconnected with the
proceedings since the deceased appellants were
looking after the said proceedings. It was in
these circumstances that the Hon'ble Supreme
Court concluded that the indulgence being
shown by it was under Article 142 of the
Constitution of India with the view to do
complete and substantial justice. Similar is the
view in Narayan Dhondu Sarode (supra).
18. The Petitioner has relied upon the order of this
Court delivered at the Nagpur Bench on
19.09.2023 in WP No.4911/2021 (Shantabai
Bhagwan Gomate Vs. State of Maharashtra and
another) wherein liberty to file an application
for condonation of delay was granted by the
Court after relying upon the order passed in
Karam Chand (supra). The Petitioner relies
upon another order passed by this Court at the
Nagpur Bench dated 23.11.2022 in WP
No.6214/2022 (Dnyandeo Yashwanta Mante
Vs. The State of Maharashtra and others). In
this order as well, the learned Bench granted
liberty to file an application for condonation of
delay by relying upon the order passed in
Karam Chand (supra).
19. With utmost respect to the discretionary orders
passed in Shantabai (supra) and Dnyandeo
(supra), we find that the judgments delivered
by the Hon'ble Supreme Court in Tota Ram
(supra), Marri Venkaiah (supra), Popat
Govardhane (supra), Narayan Dhondu (supra)
and Bir Wati(supra), were not brought to the
notice of the learned Bench at Nagpur. Even
the view taken at the Nagpur Bench in
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Parasmal s/o Kunjilal Jain Vs. The State of
Maharashtra and another [2015(7) ALL MR
320], was not cited.
20. In the instant case, we find that the Petitioner
is from the same village as the co-claimants.
Most of the co-claimants approached the Court
u/s 18. The Petitioner found it appropriate to
stay away from the said proceedings. The LAR
Court had delivered a judgment on 21.12.2001
and the Reference Court delivered it's judgment
on 30.01.2012 enhancing the compensation
amount from Rs.610/- Per R to Rs.1754/- Per R
for the dry land and Rs.2631/- per R for the
irrigated land. When the co-claimants from the
same village succeeded in these proceedings
and got a substantial rise of almost 300 percent
(in so far as the dry lands) and more than 500
percent (in so far as the irrigated lands), it
cannot be believed that the Petitioner did not
have the knowledge of such a huge rise in
compensation granted to the co-claimants from
the same village, for a period of 7 years.
21. We need to record that the powers available to
the Hon'ble Supreme Court under Article 142
of the Constitution, are not available to this
Court. The orders in Bir Wati (supra) and
Narayan Dhondu Sarode (supra), are under
Article 142 since the Hon'ble Supreme Court
has concluded that the said orders are being
passed under Article 142."
5. In view of the above, the Petitioner's claim is belated
by one day and the petition cannot be entertained. Hence, the
Writ Petition is dismissed.
kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)
