Union Of India vs Mahaveer
2022 Latest Caselaw 14497 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 936/2022

1. Union Of India, Through Ministry Of Road, Transport And Highway, Government Of India, Through Secretary, Transport Bhawan-1, Parliament Street, New Delhi- 110001.

2. The National Highway Authority Of India, Through Chairman, G-5 And 6, Sector-10, Dwarka New Delhi.

3. The Prescribed Authority, (Land Acquisition), Additional District Collector And Additional District Magistrate, Collectorate, Rajsamand (Raj.).

4. The Zonal Officer And Project Director, Zonal Office, Ministry Of Road And Transport And Highways, DCM, Ajmer Road, Jaipur.

----Appellants Versus

1. Mahaveer S/o Shri Roshan Lal, Aged About 46 Years, Resident Of Village Bheem, Tehsil Bheem, District Rajsamand.

2. Dhan Raj S/o Shri Roshan Lal, Aged About 36 Years, Resident Of Village Bheem, Tehsil Bheem, District Rajsamand.

3. Mukesh S/o Shri Roshan Lal, Aged About 31 Years, Resident Of Village Bheem, Tehsil Bheem, District Rajsamand.

4. Mst. Ladi Bai W/o Shri Roshan Lal, Aged About 65 Years, Resident Of Village Bheem, Tehsil Bheem, District Rajsamand.

5. Smt. Pista D/o Shri Roshan Lal, Aged About 50 Years, Resident Of Village Bheem, Tehsil Bheem, District Rajsamand.

----Respondents

For Appellant(s) : Mr. R.D. Rastogi, ASG/Sr. Adv. assisted by Mr. Bhanu Pratap Bohra, Mr. C.S. Sinha For Respondent(s) : Mr. Vikas Balia, Sr. Advocate assisted by Mr. Swaroop Singh Sisodia, Mr. Jai Pal Singh, Mr. Sachin Saraswat, Mr. Priyansh Arora

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HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL HON'BLE MS. JUSTICE REKHA BORANA

Judgment

Reserved on 21/11/2022 Pronounced on 09/12/2022

By the Court (Per Hon'ble the Chief Justice):

Heard Shri R.D. Rastogi, learned Additional Solicitor General

of India assisted by Mr. Bhanu Pratap Bohra for the appellants and

Shri Vikas Balia, Senior Advocate assisted by Mr. Swaroop Singh

Sisodia for the respondents.

2. The Union of India through Ministry of Road, Transport and

Highway, the National Highway Authority of India, the Prescribed

Authority (Land Acquisition), Additional District Collector and

Additional District Magistrate, Rajsamand and the Zonal Officer

and Project Director, Ministry of Road Transport and Highways,

Ajmer Road, Jaipur have together preferred this intra-court appeal

challenging two orders passed by the writ court.

3. The first is dated 13.12.2018, by which S.B. Civil Writ

Petition No.17917/2018 of the respondents Mahaveer & Ors. has

been allowed along with connected petitions and the appellants

have been directed to get the amount of compensation re-

determined by the competent authority for their acquired land in

accordance with the provisions of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (hereinafter referred to as 'the Act of

2013'). The second order of the writ court is dated 28.07.2022,

by which the application filed by the appellants for recall of the

order dated 13.12.2018 has been dismissed.

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4. The office has reported that the appeal is beyond time by

1363 days and in reporting that the office has calculated the

limitation from the date of first order i.e. 13.12.2018 and after

excluding the period of 60 days of limitation provided for filing the

appeal.

5. Shri R.D. Rastogi, learned ASG has disputed the correctness

of the limitation calculated by the office but accepts that in any

case, the appeal is barred by time even if the limitation is counted

either from the second order dated 28.07.2022 or the first one

dated 13.12.2018 as the appeal was preferred on 05.11.2022.

6. It is important to note that in the present appeal, two orders

passed by the writ courts have been challenged. The first is dated

13.12.2018 and the second is dated 28.07.2022. In respect to

the first order, the appeal is certainly beyond time as reported by

the office. In respect of the second order also, the appeal is

beyond time, may be only by 40 days as submitted by the learned

Additional Solicitor General himself.

7. Shri R.D. Rastogi, learned Additional Solicitor General, on the

strength of various Supreme Court decisions, argued that a liberal

approach ought to be taken while considering the delay

condonation application; it is not necessary that the appellants

should explain each day's delay; the Court should always lean

towards substantial justice rather than dismissing the cause on

technicality such as limitation; and that wherever the matter is

strong on merits, a more liberal approach should be taken in

condoning the delay, more particularly when the delay has not

been caused wilfully or deliberately.

8. Shri Rastogi further submitted that in the case at hand

though the first judgment was delivered on 13.12.2018, it had not

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attained finality as an application for recall of the same was filed

which came to be dismissed only vide order dated 28.07.2022.

Therefore, the period during which the recall application remained

pending has to be excluded.

9. On the other hand, Shri Vikas Balia, learned Senior Advocate

appearing for the respondents submitted that liberal approach in

such matters cannot be extended to cases where no explanation is

put-forth for the delay in filing the appeal or where there is no

cause much less sufficient cause for the delay. He further

submitted that where substantial right had accrued in favour of

any party with the passage of time or with expiry of the period of

limitation, the said right should not be disturbed lightly by the

Court.

10. It is not disputed that the writ petition filed by the

respondents was allowed vide judgment and order dated

13.12.2018. The limitation for challenging the same by means of

a special appeal is admittedly 60 days. The said period expired

around 13.02.2019 or near about the said date. However, neither

any appeal was preferred against it in the higher forum nor even

an application for recall or review of the said judgment and order

was moved by the appellants within the period of limitation

provided for appeal. The recall application was filed on

08.04.2021 after about 848 days. The period of limitation for

challenging the judgment and order dated 13.12.2018 had expired

long before filing of the recall application. The appellants under

law are supposed to explain the delay for not filing the appeal

within the period prescribed i.e. 60 days from the date of the

judgment and order i.e. 13.12.2018 after excluding the time taken

in obtaining its copy.

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11. The Supreme Court in Ajit Singh Thakur Singh & Ors. vs.

State of Gujarat [AIR 1981 SC 733] observed that the appeal

has to be filed within the limitation prescribed and the party is

supposed to explain the delay for not filing the appeal within the

said time. It was observed as under:

"6. .......it is true that a party is entitled to wait until the last day of limitation for filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after expiry of the limitation can constitute such sufficient cause......."

12. The appellants have not at all explained any such delay and

have not shown any sufficient cause for not challenging it within

the said period. In absence of any such explanation for not filing

the appeal within the prescribed period, the delay in filing the

appeal in respect of the judgment and order dated 13.12.2018

goes totally unexplained.

13. The submission of Shri R.D. Rastogi that the delay was only

on account of the fact that a recall application was filed is

completely misconceived inasmuch as the recall application was

filed after 848 days of the decision and in the meantime, the

limitation for challenging it had expired.

14. It may be pertinent to note that in getting the delay in filing

any appeal condoned, the appellants have not only to explain the

delay for not filing the appeal within the prescribed period but also

for the subsequent period of delay. The appellants herein have

not at all explained the delay in not filing the appeal within the

limitation prescribed. They have only tried to explain the

subsequent delay by simply stating that the delay in challenging

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the original order dated 13.12.2018 is because a recall application

No.90/2021 which was filed and came to be decided on

28.07.2022 whereupon the file was forwarded to the learned

Additional Solicitor General for filing the Special Appeal (Writ), but

as some relevant documents were missing, it could not be filed. It

was only after the documents were submitted that draft appeal

was prepared and forwarded to the department for vetting and

after examination at various levels, the appeal has been filed.

15. It would be important to reproduce the contents of the delay

condonation application as filed by the appellants, which would

reveal that the appellants have not shown any cause for the delay

in not filing the appeal within the time prescribed and even the

cause for the subsequent period of delay:

"1. That the appellants have filed the above mentioned appeal being aggrieved against the order as stated above whereby the Learned Single Judge while allowing the writ petition preferred by the petitioner has directed the humble appellants to recalculate the award as per the new act of 2013.

2. That the matter was examined at the different levels in the office of respondents and then a decision was taken to file Special Appeal (Writ) against the judgment & Order.

3. That the delay in challenging the original order dated 13.12.2018 is because that a recall application No.90/2021 was filed and was pending before this Hon'ble Court and was decided vide order dated 28.07.2022, which is also under challenge by way of this appeal. Hence, there is no delay due to the pendency of the recall application.

4. That the case file was, after considerations were then forwarded to the office of Additional Solicitor General of India for filing of Special Appeal (Writ) but so many relevant documents were not there and the same were asked from the office. The documents were submitted and the matter was thoroughly examined and the Appeal was drafted. The draft Appeal was forwarded to the department for further

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vetting. The department on various levels examined the Special Appeal (Writ), all these facts resulted in delay in filing present SAW.

5. That the delay in filing of the annexed appeal is quite bonafide and unintentional and has occurred due to bonafide administrative procedure and time taken in collection of relevant material necessary for filing present appeal and delay is quite unintentional and appellant was always vigilant about it."

16. The respondents in the objections to the delay condonation

application have categorically stated that the appellants have not

brought on record any material to substantiate the cause of delay.

They have not even stated that the delay is not wilful and

deliberate. The respondents have been informed under the Right

to Information Act, 2005 that the Chief Engineer-cum-Regional

Officer had requested the Additional Solicitor General vide letter

dated 18.12.2018 for necessary legal opinion and that the learned

Additional Solicitor General vide letter dated 29.04.2019 had

advised for filing an application for review/recall of the judgment

and order dated 13.12.2018 but even then no application either

for review or recall of the said order was filed for almost 800 days.

17. A bare reading of the contents of the delay condonation

application and the perusal of the objections thereto establishes

that the appellants have not shown any cause much less sufficient

cause for not filing the appeal or the recall application against the

judgment and order dated 13.12.2018 within the limitation

prescribed. No explanation has been furnished for not filing the

recall application immediately after the receipt of the opinion of

the Additional Solicitor General of India on 29.04.2019. Even if,

we exclude the period for which the recall application had

remained pending, in the absence of any explanation for not filing

the appeal within the time prescribed or the recall application

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immediately after the receipt of the advice of the Additional

Solicitor General, we are of the opinion that it is not a fit case

where the appellants deserve any indulgence from the Court, even

if most liberal approach is taken.

18. The appellants admit that though the delay in filing the

appeal is unintentional and bona fide but accept that it is on

account of administrative procedure and the time taken in

collection of relevant material necessary for filing the appeal but

completely fall short of mentioning as to when the file was placed

before the Additional Solicitor General for advice, what were the

documents which were lacking, when they were provided to the

Additional Solicitor General and when he advised for filing of the

appeal. The non-disclosure of such material information clearly

establishes that the appellants have been too casual in their

approach in dealing with the matter and have filed the application

for condonation of delay in a most cavalier and casual manner.

19. The object of fixing time limit for institution of suit and for

filing of appeals and revisions etc. is founded on public policy so

that a litigation may come to an end at some point of time. The

Supreme Court in N. Balakrishnan vs. M. Krishnamurthy

[(1998) 7 SCC 123] observed that the object of fixing time limit

for initiation of legal proceedings is not meant to destroy the

rights of any party but to fix a life span for legal remedies in public

interest and that the expression "sufficient cause" should be

construed liberally.

20. In Collector Land Acquisition, Anantnag & Anr. vs. Mst.

Katiji & Ors. [(1987) 2 SCC 107] the Apex Court observed that

in the matter of condonation of delay, as no one stands to gain in

lodging an appeal late and when substantial justice and technical

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considerations are pitted against each other, the cause of

substantial justice deserves to be preferred. Therefore, a liberal

approach should normally be adopted in condoning the delay.

21. It may be important to point out that condonation of delay in

filing any appeal is a discretionary power of the court. In G.

Ramegowda Major etc. vs. Special Land Acquisition

Bangalore [(1988) 2 SCC 142] accepting that the power to

condone the delay is discretionary, it was held that where delay

occurs due to fraud and unusual conduct of the Government

pleaders, ordinarily delay ought to be condoned.

22. In Ram Nath Sao & Ors. Vs. Gobardhan Sao & Ors.

[(2002) 3 SCC 195], the Court in context with Section 5 of the

Limitation Act observed that whether explanation furnished would

constitute 'sufficient cause' or not will depend upon the fact of the

each given case as there cannot be a straight jacket formula. It

further observed that the expression 'sufficient cause' should

receive a liberal construction so as to advance substantial justice

when no negligence or inaction or want of bonafide is imputable to

a party. Therefore, acceptance of the explanation furnished should

be the rule and refusal an exception, but in doing so the Courts

should not lose sight of the fact that with the expiry of time

valuable rights get accrued to the other party which should not be

lightly defeated by condoning the delay in a routine manner. The

Courts as such have to strike a balance vis-a-vis the

corresponding rights of the parties looking to the resultant effects

of the order.

23. The essentials for the purposes of condoning the delay as

culled out from the above authorities are as under:

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i.     The purpose of fixing limitation is to fix a life span for legal

       remedies and is founded on public policy.

ii.    When substantial justice and technical consideration are

pitted against each other it is prudent to advance the cause

of substantial justice.

iii. The power of condoning the delay is a discretionary power

and normally a liberal approach should be adopted;

iv. When the delay is due to fraud and unusual conduct of the

pleaders, the court should tilt in favour of the government in

condoning the delay; and

v. The state and the private party must be accorded the same

treatment.

vi. In condoning the delay the courts should keep in mind the

rights that may have accrued to the other side which ought

not to be disturbed lightly.

24. In adopting the above approach in the matter of condoning

the delay in filing the appeals etc., it would not be out of context

to point out that in Ram Nath Sao (supra) the Supreme Court has

cautioned the court not to loose sight of the fact that with the

expiry of limitation, valuable rights get accrued to the party which

should not be lightly defeated by condoning a delay in a routine

manner and therefore, the courts have to strike a balance vis-a-

vis the corresponding rights of the parties in condoning the delay.

25. In University of Delhi vs. Union of India & Ors. [(2020)

13 SCC 745], it was observed by the Supreme Court that where

no steps were taken to file the writ appeal for 916 days after

disposal of the writ petition, the cumulative effect of the delay and

laches cannot be ignored and that it is well accepted position that

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the accrued right of the opposite party should not be dealt with

lightly.

26. Much emphasis has been laid by Shri Rastogi that since the

matter is very strong on merit, the cause of the appellants is not

liable to be thrown out on a technical ground of limitation and as

such, delay deserves to be condoned.

27. Shri Rastogi, on the strength of the decisions in State of

Harayan vs. Chandra Mani & Ors. [(1996) 3 SCC 132] and

K.B. Ramachandra Raje Urs (Dead) By Legal

Representatives vs. State of Karnataka & Ors. [(2016) 3

SCC 422], contended that the court should take pragmatic

approach in considering the matter of condonation of delay and

the matter should be decided on merits unless it is hopelessly

without merit. In short, substantial justice ought to be advanced

in public interest.

28. In bringing home the above point and to establish the prima

facie merits of the case, Shri Rastogi has addressed the Court on

merits full fledgedly. Even the respondents have answered on the

merits of the case. Therefore, we are proceeding to finally decide

the controversy arising on merits as well.

29. The controversy on merits in the writ petition was whether

the compensation of the acquired land for the purposes of National

Highway Authority of India was liable to be re-determined under

the earlier provisions or the new Act of 2013.

30. The land was acquired in District Rajsamand of the State of

Rajasthan. The notification to acquire it was published in the

official gazette on 31.05.2013 under Section 3A of the National

Highways Act, 1956 (hereinafter referred to as 'the Act of 1956').

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The compensation for the said land was liable to be determined

under Section 3G of the Act of 1956.

31. It is stated that in respect of the said land the compensation

was determined on 24.04.2014 and there was a subsequent award

dated 09.03.2015 also. The appellants deposited the

compensation as per the first award on 02.06.2014 with the

competent authority. Therefore, the acquisition proceedings which

were initiated and completed before the enforcement of the Act of

2013 in respect of the land acquired for the National Highway, the

compensation was rightly determined as per the old provisions

and in case of any grievance the matter could have been taken

before the Arbitrator.

32. The learned Single Judge had incorrectly relied upon the

decision of this Court in Man Singh & Ors. vs. Union of India &

Ors. [S.B. Civil Writ Petition No.13114/2016, decided on

27.03.2017]. The said case was decided on concession of the

counsel. The concession was de hors the law. It was not binding

upon the appellants and the writ court completely ignored the

decision in Gopa Ram vs. Union of India [S.B. Civil Writ

Petition No.12746/2017, decided on 22.01.2018]. In fact,

the writ court while rejecting the recall application has not even

referred to the said decision.

33. The law on the subject is quite clear that the acquisition for

the National Highway has to be undertaken under the Act of 1956

and the compensation for the acquired land has to be determined

by the competent authority. In case the amount determined by

the competent authority is not acceptable to either of the parties,

it shall be determined by the Arbitrator appointed by the Central

Government on an application by either of the parties. The

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Collector is the designated Arbitrator by the Central Government

and the award of the Collector is open for further challenge in

accordance with the provisions of the Arbitration and Conciliation

Act, 1996.

34. The Act of 2013 was enforced with effect from 01.01.2014

but was not made applicable to the acquisition of land under the

Act of 1956 immediately. However, by virtue of Sub-section (3) of

Section 105 of the Act of 2013 it was made applicable even to the

acquisition of the land under the National Highway Act with effect

from 01.01.2015.

35. There is no dispute to the fact that in cases where the

acquisition was initiated under the Act of 1956 and the award was

made prior to 01.01.2015 coupled with the fact that the

compensation was also deposited, the provisions of the Act of

2013 would not apply for the determination of the compensation

for the acquired land. However, the Act of 2013 would be

applicable if the initiation of the proceedings was prior to

01.01.2015 but the award and the deposit of the compensation is

subsequent thereto.

36. It is in view of the above it has to be examined as to when

the award in respect of the acquisition of the above land which

was notified for acquisition on 31.05.2013 was declared and the

compensation deposited/paid. The date of the award becomes

crucial to determine the compensation payable i.e. to say whether

the award was declared prior to 01.01.2015 or subsequent to the

said date as per the old provisions or under the Act of 2013.

37. Shri Rastogi submits that the award was made on

24.04.2014 and the subsequent award dated 09.03.2015 referred

to by the respondents is in the nature of second award which is

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non est and since the entire compensation was deposited with the

competent authority on 02.06.2014, the writ court could not have

directed for re-determination of the compensation in accordance

with the provisions of the Act of 2013. The decision in Man

Singh's case would not be applicable as it was decided on the

basis of the concession of the counsel for the appellants which was

given under some misconception and even otherwise, such

consent if given in gross violation of any statutory provision would

not bind the appellants.

38. The case of Man Singh arose in the similar facts and

circumstances and related to the acquisition of the land for the

construction of part of the same road as in the case at hand. In

the said case it was categorically pleaded that the award was

declared on 05.02.2015 i.e. after the relevant date 31.12.2014. In

the said writ petition a counter affidavit was filed on behalf of the

respondents with the affidavit of the Project Director, National

Highway Authority of India. The date of the award so pleaded was

not denied. The respondents took the stand that in view of the

circular dated 03.02.2016 the Act of 2013 was made applicable to

the acquisition under the Act and in cases where the award is not

passed before 31.12.2014, the provisions of the Act of 2013 would

apply. Thus the Court while deciding the said writ petition held

that since the award was passed after 30.12.2014, the

compensation is payable as per the provisions of the Act of 2013.

It was also held that in view of the above circular where even

compensation in respect of major portion of land notified is not

deposited in the accounts of the beneficiaries on or before

31.12.2014 all the beneficiaries shall be entitled to compensation

in accordance with the provisions of the Act of 2013. The aforesaid

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judgment was not passed on the basis of any concession given by

the counsel rather holding that the award was passed after

31.12.2014 is not disputed as per the stand taken by the Union of

India and the National Highway Authority of India. For the sake of

convenience the relevant paragraphs 3, 4 and 5 of the aforesaid

judgment which has attained finality are reproduced herein

below:-

"3. It is not disputed by the counsels appearing for the Union of India and the National Highway Authority before this court that by virtue of provisions of sub- section (3) of Section 105 of the Act of 2013 in force at the relevant time, the competent authority was required to determine the compensation payable to the petitioners for the land acquired, taking into consideration the components asset out in the First Schedule of the Act of 2013.

4. As a matter of fact, the issue regarding applicability of the provisions of the Act of 2013 for determination of compensation in cases where land acquisition proceedings were initiated under the Act of 1956 but, award has not been declared till 31st of December,2014, was considered by the Ministry of Road Transport &Highways and vide circular dated 3rd of February, 2016, while accepting the legal opinion tendered by Additional Solicitor General of India, it has been clarified that even where the award of compensation under Section 3G of the Act of 1956 was declared by competent authority on or before 31st of December,2014 but compensation in respect of majority of the land area notified in the relevant 3A notification was not deposited in the account of beneficiaries on or before 31st of December, 2014, all the beneficiaries shall be entitled to compensation in accordance with provisions of the Act of 2013.

5. It is not disputed that in the instant case, the award has been passed after 31.12.14 and therefore, even otherwise, as per the categorical stand taken by the Union of India and the National Highways Authority by virtue of provisions of sub-section (3) of Section 105 of the Act of 2013 in force at the relevant time, the compensation payable to the petitioners for the land acquired has to be re-determined as per the provisions of the Act of 2013."

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39. The relevant extract of the above circular dated 03.02.2016

of the National Highways Authority of India referred to in the

above judgment is reproduced herein below:-

"3. It is, therefore, seen from the legal opinion accepted by the Ministry that wherever award of compensation under section 3G of NH Act, 1956 was declared by CALA on or before 31.12.2014 but compensation in respect of majority of the land area notified in the relevant 3A notification was not deposited in the accounts of the beneficiaries on or before 31.12.2014, then, all the beneficiaries shall be entitled to compensation in accordance with the provisions of RFCTLARR Act, 2013."

40. In view of the above findings and the circular, the argument

of Shri Rastogi that the concession made by the counsel or the

consent given by the counsel contrary to law or without

instructions are not binding upon the parties is misconceived

inasmuch as above case was decided not on the basis of

concession or consent of the lawyer but on the basis of the facts

as reflected from the stand taken by the respondents-appellants.

41. The Court in deciding the above writ petition further relied

upon the circular of the Ministry of Transport and Highways. It was

observed that the issue regarding applicability of the provisions of

the Act of 2013 for determination of compensation in cases where

land acquisition proceedings were initiated under the Act of 1956

but the award was not been declared till 31.12.2014, was

considered by the Ministry of Transport and Highways and on

consideration it had issued a Circular dated 03.02.2016 clarifying

that where the award under Section 3G of the Act of 1956 was

declared by competent authority on or before 31.12.2014 and the

compensation was not deposited in the account of the

beneficiaries on or before 31.12.2014, the land holders shall be

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entitled to compensation in accordance with the provisions of the

Act of 2013.

42. The Supreme Court in several decisions has ruled that the

circulars issued by the department are binding upon all

departmental authorities. In K.P. Varghese vs. The Income Tax

Officer, Ernakulam & Anr. [AIR 1981 SC 1922] and in Nagraj

Shivarao Karjagi vs. Sindicate Bank [AIR 1991 SC 1507],

the scope of the circulars issued by the Ministry have been

explained and it has been observed that they are binding upon the

officers of the department. In addition to the above, the

Constitution Bench of the Supreme Court in Collector of Central

Excise, Vadodara vs. Dhiren Chemical Industries [AIR 2002

SC 453] held that if there are circulars issued by the Central

Board of Excise and Customs which places a different

interpretation upon the phrase in the statute, the interpretation

suggested by the circular would be binding upon the revenue

regardless of the interpretation given by the Supreme Court, if

any.

43. In the light of the above legal position the circular dated

03.02.2016 of the Ministry of Transport and Highways is binding

upon the Government departments as well as its authorities and

officers and as such where compensation was not deposited in the

account of the beneficiaries on or before 31.12.2014, the land

holders are entitled to compensation in accordance with the

provisions of the Act of 2013.

44. Furthermore, in the said case it was not disputed that the

compensation was determined by means of an award dated

05.02.2015 as per the pleadings on affidavit of the Union of India

and the National Highway Authority of India. Therefore also,

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irrespective of the date of deposit of compensation, the land

holders are entitled for compensation as per the provisions of the

Act of 2013.

45. The submission that in view of Rafiq & Anr. vs. Munshilal

& Anr. [(1981) 2 SCC 788], if any decision is taken on the basis

of the wrong concession of an Advocate which is contrary to facts

and the position of law, it would not bind the party, is totally

misconceived and unsustainable.

46. In the case of Man Singh (supra), no incorrect statement or

concession was made by the counsel for the appellants rather it

was on the basis of the facts as stated in the affidavit of the Union

of India and the National Highway Authority of India that the

Court found that the award in respect of the above acquisition was

made after 31.12.2014. In view of the above, it cannot be said

that the statement was against the facts on record or was without

instructions. The said statement was purely factual in nature and

was not contrary to any law.

47. Insofar as the decision of the another Single Judge of this

Court in the case of Gopa Ram (supra) is concerned, it is of no

significance as the date of payment or disbursement of the

compensation is not material and relevant in the present case as

the award itself is subsequent to 31.12.2014. The deposit of the

compensation with the CALA on or before 31.12.2014 is only for

the purposes of distribution to the beneficiaries on the award

being declared. The said deposit could not have been enured to

the benefit of the beneficiaries until and unless the award had

been declared. Therefore, the observation in the above judgment

that the distribution of compensation is a ministerial act on the

part of the land acquisition officer and delay in distribution cannot

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be attributed to the acquiring authority is of no consequence. In

our opinion, the aforesaid decision is of no help to the

respondents-appellants. Moreover, the date of deposit of

compensation or its payment to the beneficiaries looses

importance if the award is not made before 31.12.2014.

48. Learned counsel for the respondents have drawn our

attention to the award dated 09.03.2015 which is in the

compilation submitted by Shri Rastogi and was part of the

connected petitions. It has been pointed out that four different

awards in respect of the acquired land were made in 2015. The

said document issued from the office of the competent authority-

Additional District Collector, Rajsamand clearly states that it is an

award passed under Section 3G of the Act of 1956 in relation to

land acquired for Rastriya Raj Marg No.8, Beawar, Bachara Khurd.

The said award clearly states that after considering the objections

and the reports received from various authorities, the

compensation of the acquired land is being determined as

mentioned therein. The award dated 09.03.2015 is reproduced as

under:-

"dk;kZy; l{ke izkf/kdkjh ¼Hkwfe vokfIr vf/kdkjh½ ,oa vfrfjDr ftyk dyDVj] jktleUn ¼jkt-½ [email protected]/k-lw- Øekad 383 ¼v½ fn- [email protected] fnukad % 09-03-2015 vokMZ ¼jk'Vªh; jktekxZ vf/kfu;e 1956 dh /kkjk 3th dh mi/kkjk ¼1½ ,oa ¼2½ ds vUrxZr vokIr Hkwfe dh {kfriwfrZ jkf"k dk fu/kkZj.k½

fo'k; % jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89-020 ls fd-eh-

103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ pkjysu lM+d fuekZ.k ifj;kstuk ds vUrxZr vkus okyh Hkwfe dh vokfIr ds laca/k esaA

jk'Vªh; jktekxZ vf/kfu;e] 1956 dh /kkjk 3?k dh mi/kkjk ¼2½ ds vuqlj.k esa Hkkjr ljdkj] lM+d ifjogu ,oa jktekxZ ea=ky; ds }kjk Hkkjr ds jkti= vlk/kkj.k ds Hkkx f}rh; [k.M 3 mi[k.M ¼ II½ esa fnukad 12-02-+2014 dks izdkf"kr vf/klwpuk la[;k dk-vk- 383 ¼v½ fnukad 12-02-2014 }kjk jktLFkku jkT; ds jktleUn ftys esa jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89-

020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ ds Hkw&[k.M ds

(20 of 24) [SAW-936/2022]

fuekZ.k ¼pkSM+k [email protected] ysu dk cukus] vkfn½ vuqj{k.k] izca/k vkSj izpkyu ds fy, bl vf/klwpuk ds lkFk layXu vuqlwph esa fofufnZ'V Hkwfe lHkh fooknksa ls eqDr gksdj iw.kZ:i ls dsUnzh; ljdkj ds LokfeRo esa fufgr gks xbZ gS %& mDr lM+d ds fuekZ.k esa fuEufyf[kr fgr/kkjdksa dh Hkwfe vokIr dh xbZ gS] ftldk fooj.k fuEukuqlkj gS % rglhy xkWo [kkrsnkj rFkk lacaf/kr O;fDr;ksa ds uke [kljk fdLe vokIr dk uke dk la[;k Hkwfe {ks=Qy uke ¼gSDVj esa½ Hkhe Hkhe ;"kksnkckbZ ifRu /keZpan egktu 11831 vkcknh 0-0040 [email protected] nsljyk lk- nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu [email protected] lk- nsg

jk'Vªh; jktekxZ vf/kfu;e 1956 dh /kkjk 3th ¼3½ ds rgr~ vkifRr;ksa ij fy, x, fu.kZ;kuqlkj rglhynkj] Hkhe ls izkIr orZeku jktLo vfHkys[k ,oa ekSds dh tkWp fjiksVZ ds vk/kkj ij bl Hkwfe dk izfrdj ¼eqvkotk½ fuEukuqlkj fu/kkZfjr fd;k tkrk gSA

xkWo [[email protected]/kkjh ftls eqvkotk [kljk fdLe vokIr Hkwfe dh Hkwfe dk dk fn;k tkuk gS la[;k Hkwfe {kS=Qy nj eqvkotk uke ¼gSDVj ¼izfroxZ ¼jkf"k½ esa½ eh-½ Hkhe ;"kksnkckbZ ifRu /keZpan egktu 11831 vkcknh 430-4 [email protected]& [email protected] [email protected] nsljyk lk- nsox< & egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq-

yknhckbZ csok jks"kuyky egktu [email protected] lk- nsg

mijksDr vokIr Hkwfe ij fLFkr lEcaf/kr fgr/kkjd ;"kksnkckbZ ifRu /keZpan egktu [email protected] nsljyk lk- nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu [email protected] lk- nsg dh fuEufyf[kr lEifr [email protected] lajpuk gS %&

layXu ewY;kadu fjiksVZ ds vuqlkj bldh eqvkotk jkf"k fuEu izdkj ls fu/kkZfjr dh tkrh gS %&

Ø-la- UkkelEifr lEifr dk fooj.k eqvkotk fo"ks'k fooj.k 1 dqvk & & & 2 o`{kksa dh la- ,oa dher & & & 3- [email protected] & [email protected]& & 4- CkkmUMªh & & & 5- vU; & & &

eqvkots dk fooj.k % 1- vkcknh Hkwfe dk eqvkotk #- [email protected]& 2- dqvk] lajpuk] edku vkfn ckjdksV vU; lEifr dk eqvkotk #- [email protected]& 3- o`{kksa dh la- ,oa dher #- & 4- dqy eqvkotk jkf"k ¼1 ls 3½ #- [email protected]&

(21 of 24) [SAW-936/2022]

5- TDS dVkSrh #- & 6- "kq) ns; jkf"k #- [email protected]&

mijksDr of.kZr Hkwfe ,oa mlls lEcfU/kr lEifr gsrq :i;s [email protected]& ¼"kCnksa esa #i;s rjk.kos gtkj ,d lkS lkB ek=½ dk vokMZ tkjh fd;k tkdj mls vfHkys[k ,oa ekSds dh fLFkfr vuqlkj fgr/[email protected][kkrsnkjksa esa fuEuizdkj ls foHkkftr fd;k tkrk gS %

Ø-la- uke O;fDr] firk dk uke ,oa fuokl jkf"k #i;ksa esa 1 ;"kksnkckbZ ifRu /keZpan egktu 32351 2 egkohjdqekj firk jks"kuyky 12161 3 ioudqekj firk jks"kuyky 12161 4 /kujkt firk jks"kuyky 12162 5 eqds"k firk jks"kuyky 12162 6- eq- yknhckbZ csok jks"kuyky 12163 ;ksx [email protected]&

[email protected]& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn Øekad [email protected]@2014&[email protected] fnukad % 09-03-2015 izfrfyfi % ¼1½ {ks=h; vf/kdkjh ,oa ifj;kstuk funs"kd {ks=h; dk;kZy; lM+d] ifjogu ,oa jktekxZ ea=ky; Mh-lh-,e-] vtesj jksM+] t;iqj ¼2½ rglhynkj] Hkhe dks Hkstdj ys[k gS fd vokIr Hkwfe [kkrsnkj ds [kkrs ls de dj Hkkjrh; jk'Vªh; jktekxZ izkf/kdj.k] lM+d ifjogu ,oa jktekxZ ea=ky;] Hkkjr ljdkj ds [kkrs esa vafdr dh tk, rFkk yxku fu;ekuqlkj de fd;k tk,A ¼3½ lEcfU/kr [kkrsnkj ;"kksnkckbZ ifRu /keZpan egktu [email protected] nsljyk lk-

nsox< egkohjdqekj ioudqekj /kujkt eqds"k firk jks"kuyky eq- yknhckbZ csok jks"kuyky egktu [email protected] lk- nsg [email protected]& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn"

49. The aforesaid document is undoubtedly an award in respect

of the acquired land which has been given on 09.03.2015.

Therefore, the award is certainly after 01.01.2015 when the Act of

2013 had been enforced in respect of the acquisition under the

National Highway.

50. Shri R.D. Rastogi, on the other hand, placed reliance upon a

document dated 24.04.2014 again issued by the office of the

competent authority i.e. the Additional District Collector,

(22 of 24) [SAW-936/2022]

Rajsamand. This document is basically a letter addressed to the

Regional Officer and Project Director, Road, Transport and National

Highway Ministry, DCM, Ajmer Road, Jaipur. The title of the said

letter indicates that it is a document for the purposes of further

action in respect of award under Section 3G of the Act of 1956. It

mentions the amount of compensation payable to the land holders

and that the same be got approved so that after necessary

enquiry, the amount of the award may be determined and paid to

the claimants. The said letter is reproduced hereinbelow for the

sake of convenience and clarity:

"dk;kZy; l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj] jktleUn ftyk jktleUn ¼jktŒ½ Øekad @[email protected]@[email protected]&15 fnukad%& [email protected]@2014 izsf'kr % {ks=h; vf/kdkjh ,oa ifj;kstuk funs"kd {ks=h; dk;kZy; lM+d] ifjogu ,oa jktekxZ ea=ky; Mh-lh-,e-] vtesj jksM+] t;iqj fo'k;% jk'Vªh; jktekxZ la[;k 8 C;koj&ck?kkuk [k.M rd ¼fd-eh- 89-

020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ pkjysu lM+d fuekZ.k ifj;kstuk ds rgr Hkkjr dk jkti= Øekad dk-vk-383¼v½ fnuakd 12-02-2014 dh 3(D) vf/klwpuk ds rgr 3(G) vokMZ vfxze dk;Zokgh djkus ds ckcr~A egksn;] mijksDr fo'k;kUrxZr ys[k gS fd C;koj&ck?kkuk [k.M rd ¼fd-eh- 89-

020 ls fd-eh- 103-410 ,oa fd-eh- 105-750 ls fd-eh- 147-750 rd½ Qksjysuhdj.k gsrw lM+d ifjogu ,oe~ jktekxZ ea=ky; }kjk Hkkjr ds jkti= dk-vk-383¼v½ fnuakd 12-02-2014 dks 3(D) vf/klwpuk izdk"ku fd;k tk pqdk gSA mDr vf/klwpuk ds i"pkr~ 3(G) ds rgr Hkw- /kkjdks dks vokMZ tkjh djus gsrq eqvkotk jkf"k dk laf{kIr fooj.k fuEu izdkj gSA

Øe la[;k xzke dk uke dqy eqvkotk jkf"k 1 Hkhe 47947744 ;ksx 47947744-00

mijksDr njksa ds vuqlkj Hkw/kkjdks dks LokfeRo ds vk/kkj ij Hkqxrku fd;k tkosxkA Hkwfe;ksa ij fLFkr dqvksa dh jkf"k dk Hkqxrku [email protected] iaft;d Hkhe ls izkIr mijksDr Mh-,y-lh- nj ds vuqlkj fd;k tkosxkA Hkwfe;ksa ij fLFkr Qynkj o`{kksa ,oa vU; o`{kksa dh dher dk ewY;kadu] d`f'k foHkkx ,oa ou foHkkx ls izkIr vuqeksnu ds i"pkr fu/kkZfjr fd;k tkosxkA vr% vokIrk/khu d`f'k Hkwfe dk ns; eqvkotk jkf"k :i;s [email protected]& dk vuqeksnu djok] jkf"k izkIr djus dh dk;Zokgh dh tkosa] rkfd foLr`r

(23 of 24) [SAW-936/2022]

tkap mijkUr izkIr Dyse ij vokMZ dh jkf"k r; dh tkdj lacfU/kr dks Hkqxrku fd;k tk ldsA layXu %& vokMZ dh i=koyhA [email protected]& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj jktleUn Øekad @[email protected]@[email protected] fnukad %& izfrfyfi & ftyk dyDVj egksn; jktleUn dks lwpukFkZ izsf'kr gSA [email protected]& l{ke izkf/kdkjh ¼Hkw-v-v-½ ,oa vfrfjDr ftyk dyDVj jktleUn"

51. A plain reading of the aforesaid letter reveals that it is not

actually an award but a letter addressed to the Regional Officer to

get the compensation as referred to therein approved so that the

award may be declared for the purposes of payment.

52. It appears that it is in pursuance thereof that subsequently

the award was made on 09.03.2015.

53. In view of the above discussion and the finding that the

award in the present case is dated 09.03.2015 and not

24.04.2014, we do not find any error or illegality in the order

passed by the learned writ Court.

54. The argument that once an award has been passed on

24.04.2014 the second award is not contemplated in law and if

there is any such subsequent award it is a nullity inasmuch as the

competent authority is not vested with any power to review or

revise the award, is completely misconceived for the simple

reason that there is no second award rather the award dated

09.03.2015 is the only award. The document dated 24.04.2014 is

simply a letter tentatively determining the compensation payable

and requesting the authority to get its approval so that the award

may be pronounced and the payments be made accordingly. In

such circumstances, the issues regarding power of the competent

authority to review or revise the award or that the award dated

(24 of 24) [SAW-936/2022]

09.03.2015 is non est pales into insignificance and are not

required to be dealt with by us.

55. In the light of the discussions we have made above, we do

not find any substance in the appeal. The appeal is dismissed as

barred by time as well as on merits with no order as to costs.

                                    (REKHA BORANA),J                                     (PANKAJ MITHAL),CJ


                                   10-MohitTak/-









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