State of
Orissa & Ors. Vs. Chitrasen Bhoi [2009] INSC 1594 (16 September 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 1271 OF
2002 With I.A. No.3 of 2002 State of Orissa & Ors. .... Appellants Versus
Chitrasen Bhoi .... Respondent ORDER I.A. No.3
1.
An application i.e. I.A. No. 3 has been filed by the Central
Institute of Fresh Water Acqua-Culture (CIFWA), Bhubaneswar under the Indian
Council of Agriculture Research (ICAR) for their impleadment as Respondent. Mr.
V.K. Rao, learned counsel appearing for the applicants has submitted that the
land in dispute in fact had been acquired for the said applicants, therefore,
the applicants be impleaded as parties in this appeal.
2 Learned
counsel appearing on behalf of the non-applicants have no objection in this
regard. Consequently, the applicants are impleaded as Respondent Nos. 2 and 3
in this appeal. The I.A. is accordingly allowed and disposed of. Appeal No.1271
of 2002
2.
This appeal has been preferred against the judgment and order of
the division Bench of the Orissa High Court dated 23.2.1999 allowing the writ
petition filed by the respondent for seeking direction to the Land Acquisition
Collector to consider his application under Section 28A of the Land Acquisition
Act, 1894 (hereinafter called `the Act').
3.
The facts and circumstances giving rise to this appeal, as stated
in the petition, are that a huge area of land was notified under section 4 of
the Act in the official Gazette of the State of Orissa dated 1.1.1973
(Annexure-5).
The
acquisition was sought for establishment of the Central Institute of Fresh
Water Acqua-Culture, i.e., a Fish Farm. Declaration under section 6 of the Act
in respect of the said land was made on 9.7.1973 and was published in the
official Gazette dated 11.7.1973. The Land Acquisition Collector made award, so
far as the land of the present respondent no.1 is concerned, on 31.7.1975
assessing the market value of the land @ Rs.2500/- per acre. Respondent no.1
did not agitate the matter further, however, other 3 persons whose lands stood
notified by the same notification under section 4 and declaration under section
6 of the Act filed the reference under section 18 of the Act and the same was
decided vide Award dated 5.1.1995 assessing the market value of the land @
Rs.10,000/- per acre while deciding Misc. Case No.362/94. The respondent filed
application under Section 28A of the Act on 21.3.1995 claiming the same market
value for his land. The Land Acquisition Collector vide order dated 11.3.1997
rejected the said application. Being aggrieved the respondent filed the writ
petition which has been allowed by the High Court. Hence, this appeal.
4.
Shri J.S. Attri, learned senior counsel for the appellant - State
of Orissa has raised a large number of issues contending that the application
under Section 28A of the Act had rightly been rejected by the Collector as the
same was not maintainable. It had been filed at a belated stage i.e. after more
than 20 years of the date of award made under Section 11 of the Act.
The High
Court has held that the application under section 28A had been filed within
limitation, however, the Collector has been directed to decide the said
application, provided, it is found to be maintainable. The order itself is
contradictory as the issue of maintainability solely depends upon the issue of
limitation and no other issue can be examined by the Collector.
Therefore,
the High Court ought to have dismissed the petition.
5.
On the other hand, Shri M. Samantaray, learned counsel appearing
for the respondent no. 1 has vehemently opposed the petition contending that
the High Court has rightly held that the application had been filed within
limitation and therefore, no interference is required. The appeal is liable to
be dismissed.
6.
We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
7.
Grievance has been raised by learned counsel for the appellant
State that application under Section 28-A of the Act was filed after 20 years
and therefore it was not maintainable. Law requires that the application be
filed by the eligible person within three months from the date of the reference
award, on the basis of which the application is being filed. The issue of
limitation in this regard is no more res integra.
2003 SC
2949, this Court has dealt with the issue of limitation and held as under:-
"Plain language of the aforesaid section would only mean that the period
of limitation is three months from the date of the award of the court. It is
also provided that in computing the period of three months, the day on which
the award was pronounced and the time requisite for obtaining the copy of the
award is to be excluded. Therefore, the aforesaid provision crystallises that
application under Section 28-A is to 5 be filed within three months from the
date of the award by the court by only excluding the time requisite for
obtaining the copy. Hence, it is difficult to infer further exclusion of time
on the ground of acquisition of knowledge by the applicant.............In our
view, with regard to the first contention that Section 28-A is a beneficial
provision, there cannot be any dispute. However, the advantage of the benefit
which is conferred is required to be taken within the stipulated time. A
landowner may be poor or illiterate and because of that he might not have filed
reference application but that would not mean that he could be negligent in not
finding out whether other landowners have filed such applications.
Whosoever
wants to take advantage of the beneficial legislation has to be vigilant and
has to take appropriate action within the prescribed time.
He must
at least be vigilant in making efforts to find out whether the other landowner
has filed any reference application and if so, what is the result. If that is
not done then the law cannot help him...." (Emphasis added).
While
deciding the said case the Court placed reliance upon its & Anr., AIR 1997
SC 1915. The Court further rejected the contention that limitation would run
from the date of knowledge distinguishing its earlier Qaisar Jehan Begum, AIR
1963 SC 1604.
8.
In Bhagti (Smt.) (Deceased) through L.Rs. v. State of Haryana
(1997) 4 SCC 473, this Court held that a claimant can seek redetermination of 6
compensation on the basis of the award of the Reference Court and not the
judgment of the High Court and further held that only those claimants who had
failed to apply for a reference under section 18 of the Act are conferred with
the right to apply for redetermination under section 28A(1) of the Act.
9.
The same view has been reiterated in Union of India v. Bantram
(dead) by L.Rs. (1996) 4 SCC 537. In Union of India & Ors. v. Karnail Singh
& Ors. (1995) 2 SCC 728, a Bench of two Hon'ble Judges of this Court held
that provisions of Section 28A of the Act, as inserted by Act No.68 of 1984, is
prospective in nature and do not apply to an award made by civil court prior to
24.9.1984. The limitation of three months for making application for
redetermination of compensation is to be computed from the date of earliest
award made by the civil court.
However,
a three Judges' Bench of this Court in Union of India & Anr. v. Pradeep
Kumari & Ors. (1995) 2 SCC 736 overruled the judgment in Union of India v.
Karnail Singh (supra) to the extent that application for redetermination may be
filed within three months from the date of first award of the Reference Court
observing that intention of the Legislature was not to restrict the benefit of the
amended law, to the extent that a claimant has to apply within limitation from
the date of the first award of the Reference Court. Thus, it is permissible
even to make an application on the basis of a subsequent Reference Court Award.
However, it must be 7 within the limitation from the date of making of the said
subsequent award.
This view
was further clarified by this Court in the State of Tripura & Anr. v.
Roopchand Das & Ors. (2003) 1 SCC 421.
10.
In the instant case, admittedly the application was filed within 3
months from the date of reference award, the applicant - Respondent No. 1 had
relied upon. The appellant had not laid down any factual position as under what
circumstances the application was time barred. Therefore, no interference is
required on this ground.
11.
Admittedly, the High Court has directed the Land Acquisition
Collector to decide the application under Section 28A of the Act provided it is
found to be maintainable, however, the issue of limitation would not be
agitated/ considered. In such a fact situation the question does arise as to
whether the Land Acquisition Collector can still examine the maintainability of
the application and if so, on what grounds?
12.
The scope of provisions of Section 28-A of the Act was considered
by Court placed emphasis particularly on para 2 (ix) of the object and reasons
of the Amendment Act, 1987 which provided for a special provision for
inarticulate and poor people to apply for re-determination of the compensation
amount on the basis of the court award in a land acquisition 8 reference filed
by comparatively affluent land owner. The Court observed as under:
"Section
28-A in terms does not apply to the case of the petitioners..... They do not
belong to that class of society for whose benefit the provision is intended and
meant, i.e. inarticulate and poor people who by reason of their poverty and
ignorance have failed to take advantage of the right of reference to the civil
court under Section 18 of the Land Acquisition Act, 1894...." (Emphasis
added).
13.
This Court approved and reiterated the law laid down in Mewa Ram
(Supra) in Scheduled Caste Cooperative Land Owning Society Ltd. Bhatinda State
of U.P. & Anr. (1995) 2 SCC 689, the Apex Court again reiterated the law
laid down in Mewa Ram (Supra) observing as under:- "Legislature made a
discriminatory policy between the poor and inarticulate as one class of persons
to whom the benefit of Section 28-A was to be extended and comparatively affluent
who had taken advantage of the reference under Section 18 and the latter as a
class to which the benefit of Section 28-A was not extended.
Otherwise,
the phraseology of the language of the non-obstante clause would have been
differently worded..... It is true that the legislature intended to relieve
hardship to the poor, indigent and inarticulate interested persons who
generally failed to avail the reference under Section 18 which is an existing
bar and to remedy it, Section 28-A was enacted giving a right and remedy for
re- determination........The legislature appears to have presumed that the same
state of affairs continue to subsist among the poor and inarticulate persons
and they generally fail to avail the right under sub-section (1) of Section 18 due
to poverty or ignorance or avoidance of expropriation." (Emphasis added).
14.
Thus, it is apparent that the legislature has carved out an
exception in the form of Section 28-A and made a special provision to grant
some relief to a particular class of society, namely poor, illiterate, ignorant
and inarticulate people. It is made only for "little Indians". The
provisions of Section 28-A refer to the "person interested" which
means the original owner and that original owner interested must further be a
person aggrieved State of U.P. & Ors., (1995) 2 SCC 766, it has been held
by this Court that a person who prefers Section 18 reference cannot maintain an
application under Section 28-A of the Act. The benefit of such an exceptional
rule cannot be extended to such persons as it would be against the public
policy.
Court
observed that the benefit of the State policy which confers certain beneficial
rights on a particular class of person is meant only for the person whose land
was acquired and by necessary implication "the subsequent purchaser was
elbowed out from the policy and became disentitled to the benefit of" the
State policy.
15.
Placing reliance upon the aforesaid judgments a similar view has
also been taken by this Court in Kendriya Karamchari Sehkari Grah Nirman held
by this Court that if a person has applied under Section 18 of the Act and
pursued the matter further, he is not entitled to maintain the application
under Section 28-A for re-determination of compensation. The Court further held
that it is mandatory to file the application within prescribed limitation,
which runs from the date of the Award under Section 18 of the Act. While
deciding the said case the Court placed reliance upon its earlier judgments,
including Scheduled Caste Co-operative Land Owning Society Ltd. (supra).
16.
Court has laid down the law that such an application is
maintainable provided a person has not filed an application under Section 18 of
the Act.
17.
The Court held that Section 28-A seeks to confer the benefit of
enhanced compensation on those owners who did not seek Reference under Section
18 of the Act. In fact, under the said provision they are entitled for enhanced
11 compensation decreed by the Reference Court and further as the decreed
amount stands modified in appeal by the higher Courts.
18.
Therefore, it is evident that an application under Section 28-A
has to be dealt with by the Land Acquisition Officer keeping in mind the
aforesaid settled legal propositions.
19.
Thus, it is evident that the submission made by learned counsel
for the appellant that the Land Acquisition Collector is bound to enhance the
compensation without considering any other fact, as the application has been
held to have been filed within limitation, is preposterous.
20.
In view of the above, we do not find any force in the appeal. The
appeal stands dismissed leaving the parties to bear their own costs. The Land
Acquisition Collector shall consider the issue of maintainability of the
application filed by respondent in the light of the aforesaid settled legal
proposition expeditiously without considering the issue of limitation.
Needless
to say that newly added respondents, namely Indian Council of Agricultural
Research (ICAR) & Central Institute of Fresh Water Acqua- Culture (CIFWA)
shall also be heard at the time of disposal of the application filed by
respondent no. 1. No cost.
...........................................J. (DALVEER BHANDARI)
...........................................J. (Dr. B.S. CHAUHAN)
New Delhi;
September 16, 2009.
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