Ganesh Prasad vs Special Land Acquisition Officer, (Irrigation) and Others

B.S. Chauhan, J.—The instant writ petition has been filed for issuing a writ of certiorari quashing the Order dated 2.1.1997 passed by Respondent No. 1, contained in Annexure 3 to the writ petition, by which the application of the Petitioner under the provisions of Section 28A of the Land Acquisition Act, 1894 (hereinafter called the Act), has been rejected.

The factual gamut of the case reveals that Petitioner was tenure holder of the agricultural land bearing Plot Nos. 387 and 308 situate in the Revenue Estate of village Bilari, Tehsil Handia, District Allahabad. The said plots of the Petitioner had been notified along with a large area of land belonging to other tenure holders u/s 4 of the Act, vide notification dated 1.6.1985. In respect of the same, after completing the procedural and legal requirements, Respondent No. 1 made an award on 20.5.1986 u/s 11 of the Act. While making the said award, the land covered by the said notification u/s 4 of the Act had been divided into various categories according to its quality and had been assessed at different rates varying from Rs. 10,276.17 to Rs. 20,757.87 per Bigha. Petitioner did not prefer any reference u/s 18 of the Act. However, some other persons, namely, Chandi Prasad and others filed Reference No. 38 of 1991, u/s 18 of the Act and the same was decided vide reference award dated 24.12.1991 by the learned Additional District Judge, Allahabad, which is contained in Annexure 1 to the writ petition. In the said reference award, the land of the applicants therein had been assessed at a much higher rate, i.e., Rs. 38,500 per Bigha.

In the writ petition, it has been mentioned by the Petitioner that he was residing in Bombay and after coming to his village on 15.8.1996, he came to know that market value of the land had been assessed at a much higher rate under the reference award dated 24.12.1991 and, thus, he filed the application u/s 28A of the Act before Respondent No. 1 on 5.9.1996, which is contained in Annexure 2 to the writ petition. In the said application also, the Petitioner has mentioned that the Petitioner was residing in Bombay for the last 20 years and he came to know of the reference award only on 15.8.1996 when he came to his village and as he had not preferred any reference u/s 18 of the Act, he filed the application u/s 28A of the Act. He also filed an affidavit before Respondent No. 1 in support of the said application, wherein the same fact situation had been narrated by the Petitioner on oath. However, he mentioned in the affidavit that his family members were looking after the compensation case regarding the land in dispute. Respondent No. 1, vide impugned order dated 2.1.1997, rejected the application of the Petitioner being time barred as the limitation for filing such an application provided under the said Act was only ninety days and the application had been filed after the lapse of about five years. Hence this writ petition.

Heard Shri S. K. Verma, learned Senior Advocate assisted by Shri Siddharth Verma, for the Petitioner and Shri S. G. Hasnain, learned Additional Chief Standing Counsel for the Respondents.

Though the Petitioner did not file any application u/s 5 of the Limitation Act, 1963, (hereinafter called the Limitation Act), before Respondent No. 1 along with his application u/s 28A, it had been the main thrust of the arguments of Shri S. K. Verma, learned Senior Advocate that the application of the Petitioner ought not have been rejected by Respondent No. 1 only on the ground of delay. Even if such an application had been there, the only question which requires consideration by this Court is whether the provisions of Section 5 of the Limitation Act are attracted in the proceedings before Respondent No. 1 u/s 28A of the Act. Section 3 of the Limitation Act provides that the Act would be applicable only in case of suit, appeal and applications before the court. Thus, the consequential question may be whether the Land Acquisition Collector can be termed as a court for the purpose of provisions of Section 3 of the Act.

Shri Hasnain has placed reliance upon the proviso to Section 28A which reads as under:

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.

He submits that in the instant case, Petitioner applied for the certified copy of the reference award dated 24.12.1991 on 17.8.1996 and the certified copy was made available to him on 3.9.1996. Thus, under the law he was entitled only for the benefit of sixteen days extra over and above the limitation of ninety days and he should have filed the application within the period of one hundred and six days only and not beyond it.

Section 3(c) of the Act defines Collector, which means the Collector of the district. Section 3(d) of the Act defines a court; means a principal civil court of original jurisdiction. The expression ''court'' does not include a Collector nor the Collector been invested with the powers to administer oath or to require a verification and by no stretch of imagination the Collector can be said to be a court or even a judicial officer. The award passed by the Collector u/s 11 of the Act is not executable as he is neither a court nor his award can be said to be a decree within the meaning of provisions of Code of Civil Procedure, 1908. The Collector acts as the agent of the Government as he fixes the price to be paid and helps in taking possession of the land which is acquired. He makes an offer to the tenure holders by way of award which is certainly not binding on the land owners and he can ask for a reference u/s 18 of the Act. Moreover, the Government is not bound by the award of the Collector as before taking the possession of the land u/s 16 of the Act, the Government can revoke the acquisition proceedings by resorting to the provisions of Section 48 of the Act, Therefore, the role of the Collector is administrative one, vide T.K. Parameswara Iyer and Ors. v. Land Acquisition Collector, Palghat and Ors. 1919 (49) IC 659.

While deciding the aforesaid case, the Court relied upon the judgment of the Privy Council in Ezra v. Secretary of State 32 IA 93 PC, wherein it has been held that proceedings resulting in award are administrative and not judicial.

In Mohammed Hasnuddin Vs. State of Maharashtra, , the Apex Court observed that while making the award, the Collector makes an offer on behalf of the Government and it is difficult to appreciate that the Government or any other authority through the Government would be entitled to question the award apart from fraud, corruption or collusion.

Similar view has been taken by the Supreme Court in Santosh Kumar and Others Vs. Central Warehousing Corporation and Another, .

In fact jurisdiction of the Court arises from reference made by the Collector u/s 18 (reference regarding quantum of compensation); Section 30 (reference regarding dispute of apportionment of compensation); Section 35(3) (reference when Collector and person interested differ as to the sufficiency of the compensation or its apportionment for temporary occupation of the land) and Section 49(1)(reference to determine whether a part of land proposed to be acquired forms part of a house). u/s 28A the Collector re-writes the award on the basis of the reference award made by the court u/s 18 of the Act. The Collector re-writes the award considering the reference award as the best possible evidence to assess the market value of the land of the applicant and it is subject to various other mandatory requirements. The application is to be examined for assessing whether the nature, quality and geographical situation of the applicant''s land had been the same as that of the subject-matter of the reference award and whether the applicant is an inarticulate and poor person and whether because of his poverty and ignorance, he could not file reference u/s 18 of the Act as the benefit of this provision is available only to "little Indians", vide Mewa Ram (Deceased) by his Lrs. and Others Vs. State of Haryana through The Land Acquisition Collector, Gurgaon, ; The Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda Vs. Union of India and others, ; Babua Ram and Others Vs. State of U.P. and Another, ; Union of India and another Vs. Pradeep Kumari and others, and Nanak and Ors. v. State of U.P. and Ors. 1996 AWC 1237. Under the provisions of Section 28A(3) of the Act, applicant/person-interested can ask the Collector to make a reference to the court u/s 18 of the Act if he is not satisfied with redetermination u/s 28A. Thus, exercise of the power u/s 28A would not change the status of the office of the Collector as function remains the same which he had exercised u/s 11 of the Act.

The Apex Court, while deciding the case of Officer on Special Duty (Land Acquisition) and Another Vs. Shah Manilal Chandulal and Others, , considered the earlier judgments of the Supreme Court in State of Punjab and Another Vs. Satinder Bir Singh, ; Mohammed Hasnuddin Vs. State of Maharashtra, and Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, and came to the conclusion that the provisions of Section 5 of the Limitation Act are not attracted in making a reference u/s 18 of the said Act. While deciding the said case, the Apex Court also relied upon the judgment in Kaushalya Rani Vs. Gopal Singh, , wherein the question had arisen whether Section 417(4) of the Code of Criminal Procedure was a special law within the meaning of Section 29(2) of the Limitation Act and whether Section 5 of the Limitation Act was attracted in that case and the Hon''ble Supreme Court had answered in the negative.

Shri S. K. Verma has relied upon the judgment of the Apex Court in D. Venkamma and Others Vs. Special Tehsildar (LA) Unit-IV, Janagareddigudem, W.G. District, Elugu, A.P., . wherein it has been held thai the judgment of the appellate court would not give right or cause of action to make an application for re-determination of the compensation. We fail to understand how the said judgment helps the Petitioner as in the said judgment it has been categorically held that as the application u/s 28A was based on the High Court''s judgment and it "was filed neither within limitation nor immediately after the award of the District Court. The application u/s 28A, therefore, would not lie."

(Emphasis added)

Shri Verma then placed reliance on the order of the Apex Court in Jose Antonio Cruz Dos R. Rodrigueses and another Vs. Land Acquisition Collector and another, and submitted that the issue involved in the instant case had been referred to the Larger Bench of the Hon''ble Supreme Court.

The issue involved in the case had not been referred to the Larger Bench of the Apex Court. What has been referred to : whether each successive reference award in respect of the lands, covered by the same notification u/s 4 of the Act, would give cause of action to file application for redetermination of compensation u/s 28A of the Act and, thus there is no force in this submission also.

In view of the above, the petition is devoid of any merit and hence dismissed.