Bhagwatiben Motilal Since Decd. ... vs The Special Land Acquisition ...
2021 Latest Caselaw 4664 Guj

        C/SCA/11395/2020                                 ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 11395 of 2020

==========================================================
 BHAGWATIBEN MOTILAL SINCE DECD. THROUGH HEIR NATVARLAL
                   MANHARLAL BHATT
                         Versus
          THE SPECIAL LAND ACQUISITION OFFICER
==========================================================
Appearance:
MR GM AMIN(124) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MS.DIVYANGNA JHALA, AGP(99) for the Respondent(s) No. 1

==========================================================

 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.C. RAO

                           Date : 24/03/2021
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

In the facts and circumstances of case and with the consent and request of the parties appearing through their respective learned advocates, the petition was taken up for final consideration today.

1.1 Rule returnable forthwith. Learned Assistant Government Pleader Ms.Divyangna Jhala waives service of Rule on behalf of the respondents.

2. Heard learned advocate Mr.G.M.Amin for the petitioner and learned Assistant Government Pleader for the respondents.

C/SCA/11395/2020 ORDER

3. What is called in question by the petitioner is order dated 6.12.2019 of respondent No.1­ Special Land Acquisition Officer, Narmada Yojana, Ahmedabad, whereby the application of the petitioner filed under Section 28A of the Land Acquisition Act, 1894, (hereinafter referred to as 'the Act') came to be rejected and discarded on the ground that the application of the petitioner was made beyond the period of limitation.

3.1 Noticing the basic facts, the land of the petitioner bearing survey No.904 admeasuring 0­12­12 square meters, situated at Village Kharad, Taluka Dhandhuka, District Ahmedabad was acquired for the purpose of special canal of Valbhipur Gorasu distributory. The notification under Section 4 of the Act was published on 21.7.2010 whereas the award was declared by respondent No.1 on 9.7.2012 declaring the compensation at Rs.3.16 paisa per sq.meter for non irrigated land and Rs.1 for Kharaba land. It appears that several land owners whose lands were also acquired under the same notification were aggrieved by compensation offered by the Land Acquisition Officer, therefore they raised Reference Case No.182 of 2014.

3.2 The Court of Principal Senior Civil Judge and Special Judge, (LAR Narmada Project, Ahmedabad) Mirzapur awarded the compensation at Rs.82.80 paise per sq.meter. The petitioner is the one whose land was acquired under the same notification, however she had not taken recourse to the reference proceedings for enhancement of the Act, the petitioner therefore subsequently moved an application under Section 28A of the Act for redetermination of the compensation claiming that she is

C/SCA/11395/2020 ORDER

entitled to the benefit of enhanced compensation as she fell within the same class of persons who were awarded the higher compensation by the Reference Court. The application of the petitioner ended up with the fate as above.

4. The only question needs to be addressed in the petition is whether the petitioner had filed the application under Section 28A of the Act within the period of limitation and whether in reckoning the limitation period, the time consumed in obtaining certified copy of the award of the Reference Court was liable to be excluded.

5. The Section 28A of the Act provides for redetermination of the amount of compensation on the basis of the award of the Court which says that when an award is made and the excess amount is awarded by the Court to the applicant­ claimant over and above the amount awarded by the Collector to the persons interested in all the other land covered under Section 4, Sub­ section (1) of the Act and were also aggrieved by the same notification may prefer an application within three months from the date of award of the Court under Section 18 who are aggrieved by award of the Collector to be found notwithstanding that the reference was not made by them.

5.1 The Section 28A of the Land Acquisition Act, 1894 reads thus, "28A Re­determination of the amount of compensation on the basis of the award of the Court. --

(1) Where in an award under this Part, the

C/SCA/11395/2020 ORDER

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, sub­section (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 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 sub­section (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 sub­section (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.]"

5.1.1 The section contemplates that in computing the period of

C/SCA/11395/2020 ORDER

three months within which an application to the Collector under Section 28A is required to be made, the day when the award was passed and the time requisite for obtaining the certified copy of the award, shall be excluded. In other words for counting the period of 90 days such period which may have been spent in obtaining the certified copy is not liable to be counted.

5.2 In light of the above provision when the undisputed dates covering the present case are noticed, after the judgment in the Reference Case was declared by the competent Court on 8.7.2017, the application was made by the petitioner under Section 28A of the Act on 30.10.2017. The certified copy was applied on 1.8.2017 which was ready on 7.9.2017 and the same was received on 18.9.2017. In other words, time taken for preparation of the certified copy was 36 days. It was this 36 days' period which deserves to be excluded while reckoning limitation period of 90 days.

5.3 In ordinary circumstances, since the decree by the Reference Court was passed on 8.7.2017, the petitioner was supposed to file her application on 8.10.2017, to be within 90 days, instead of that the application was filed on 30.10.2017 which was delayed by 22 days. This delay would stand offset by the period of 36 days which was time taken in obtaining the certified copy of the judgment and decree of the Reference Court.

5.4 In other words the limitation provided in terms of Section 28A read with proviso thereto, the application of the petitioner under the said Section was well within the period of 90 days. It

C/SCA/11395/2020 ORDER

ought to have been treated within the period of limitation. The impugned order dated 6.12.2019 therefore does not stand good in eye of law and is liable to be set aside.

5.5 Learned Assistant Government Pleader defended the impugned order seeking to assert that the application of the petitioner was liable to be treated beyond limitation. Learned Assistant Government Pleader also relied on the decision of Gujarat Housing Board Vs. Special Land Acquisition Officer and Ors., 1999 (2) G.L.H. 901. She relied on the following observation from the judgment.

"...on a proper construction of the proviso to section 28­A, and in the light of various decisions, it can not be said that this provision is reasonably capable of two interpretations. Only one conclusion is possible that only such party is entitled to the benefit of the period spent for obtaining the certified copy which had infact applied for obtaining the certified copy. The benevolence, as was intended by the Legislature was only limited to the extent that such party which fails to avail the remedy of Reference under section 18 may also approach the concerned Land Acquisition Officer under section 28­A for the purpose of re­determination of the compensation on the lines on which it has been granted by the civil court under section

18. That part of the benevolence can not be accepted for the purpose of extending the scope of the benefit with regard to the period of limitation and it will be stretching the provisions too far to say that whether any party applies for obtaining certified copy or not, it should be entitled to get the benefit of the period spent for obtaining the certified copy by some other party." (Para 15)

C/SCA/11395/2020 ORDER

5.6 On the basis of the above it was submitted that since the advocate of the applicant has applied for certified copy, the time consumed would not be available to the petitioner since the petitioner herself has not applied for the copy. This submission could hardly be countenanced. When advocate applies for certified copy on behalf of the party, the copy can be said to deemed to have been applied by party itself. What is held in the above decision is that­ '...it will be stretching the provisions too far to say that whether any party applies for obtaining certified copy or not, it should be entitled to get the benefit of the period spent for obtaining the certified copy by some other party'. The submissions of learned Assistant Government Pleader rather stands falsified from what is held by the Court in Gujarat Housing Board (Supra).

6. As a result of above discussion, the order dated 6.12.2019 passed by respondent No.1, the Special Land Acquisition Officer, Narmada Yojana, Unit No.1, Ahmedabad, rejecting the application of the petitioner is hereby set aside. It is declared that the application of the petitioner shall be treated within time and the respondent No.1, competent authority shall proceed in accordance with law.

7. The petition stands allowed and it is disposed of accordingly. Rule is made absolute.

(N.V.ANJARIA, J)

(A. C. RAO, J) Manshi