Om Prakash and Others vs State of U.P. and Another

Virendra Singh, J.

We have heard Shri Madan Mohan, learned counsel for petitioners. Learned standing counsel appears for the respondents. The substitution of the heirs of petitioner nos. 4, 5 and 9 has been carried out.

The petitioners have prayed for setting aside the orders dated 29.12.1994 communicated to them on 31.5.1995 by the Additional District Magistrate (Land Acquisition) (Joint Organization), Meerut, rejecting their applications under Section 28A of the Land Acquisition Act, 1894 (in short the Act) on the ground that the applications were made beyond the prescribed period of three months from the date of the award, deciding the reference under Section 18 of the Act.

The petitioners'' agricultural land, situated in Village Baral Partappur Tehsil and District Meerut, was acquired by a notification under Section 4 of the Act dated 5.4.1980 for the purposes of construction of bypass road. By an Award under Section 11 (1) of the Act dated 12.9.1981, the Special Land Acquisition Officer, Meerut declared the compensation to be paid @ Rs. 17.23 per square yard. Shri Dharamveer Singh and others filed a Land Acquisition Reference No. 131 of 1985, Dharamveer Singh & ors vs. State of UP and ors under Section 18 of the Act. The reference was decided by an award/order on 2.1.1990 enhancing the compensation of the land @ Rs. 22.97 per square yard.

The petitioners presented the applications before the Collector/Special Land Acquisition Officer, Meerut on 29.5.1990 along with a certified copy of the award dated 2.1.1990 allowing the reference in the case of Dharamveer Singh with a request that the compensation paid to them should also be enhanced under Section 28A of the Act on the same rate as it was decided in case of Dharamveer Singh. The Additional District Magistrate (Land Acquisition) Meerut rejected the applications on the ground that the applications under Section 28A of the Act can be made within 90 days of the date of the order in the reference. The reference was allowed on 2.1.1990, whereas the applications under Section 28A of the Act were presented on 29.5.1990 after 58 days of expiry of limitation of 90 days. The Special Land Acquisition Officer referred the matter to the District Government Advocate (Civil) Meerut for his opinion. The District Government Advocate by his opinion dated 24.10.1994 advised the Special Land Acquisition Officer that Section 5 of the Limitation Act is not applicable and thus the application was liable to be rejected.

Learned counsel for the petitioners states that the limitation of 90 days under Section 28A of the Act will begin to run from the date of knowledge of the award/order in the reference. It is submitted by him that in paragraph3 of the application under Section 28A of the Act, the petitioners had clearly stated that they came to know from Dharamveer Singh son of Shri Karam Singh on 21.5.1990 that the reference was allowed in his favour enhancing the compensation. The petitioners immediately consulted their lawyers in the Judgeship at Meerut on 22.5.1990 and obtained the copy of the order of reference and have filed the reference on 29.5.1990 on the 8th day of the acquiring the knowledge of the order.

Section 28A of the Act provides:

"28.A Redetermination of the amount of compensation on the basis of the award of the Court. (1) Where in an award under this Part, the 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 redetermined 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 subsection, 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."

The proviso to sub section (1) of Section 28A of the Act allows three month''s time in which the days, on which the award was pronounced and time requisite for obtaining a copy of the award, is to be excluded.

Shri Madan Mohan, learned counsel for the petitioners has relied upon a judgment of this Court in Shri Mahaveer and another vs. State of UP and another Writ Petition No. 15784 of 1994 decided on 14.7.1995. In this judgment the Division Bench of the Court held that the Land Acquisition Officer is not a court within the meaning of Section 5 of the Limitation Act and thus vide Sukhdeo and others vs. State of UP and ors AIR 1992 All. 142, Section 5 of the Limitation Act is not applicable. The Court thereafter relied upon a judgment in Vindhyabasini Singh and others vs. State of UP and ors Writ Petition No. 16149 of 1994 decided on 10.7.1995 that the limitation prescribed under Section 28A will be reckoned from the date of knowledge of the order enhancing compensation. The judgment was relied upon in Bhullan vs. State of UP and others Writ Petition No. 16132 of 1995 decided on 13.9.1995.

Where successive awards have been made on the basis of which redetermination is sought, any one of the awards made by the Court after coming into force of Section 28A will give the right of redetermination to the person claiming enhancement of compensation. In Union of India and another vs. Pradeep Kumari and others 1995 (2) SCC 736, the Supreme Court, while laying down this principle of law, held that the Court should adopt a construction, which advances the policy of the legislation to extend the benefit rather than the one, which curtail the benefit. It may not be possible for the inarticulate and poor people to keep contract of all the references that were pending in the Court on the date of coming into force of Section 28A, he may not be in position to know about the first award made by the Court.

It is submitted by Shri Madan Mohan, appearing for the petitioners that the words ''that date on which the award was pronounced'' should be understood as the date when the award was pronounced came to the knowledge of the applicant. These dates may be different for the different persons. A strict interpretation of the proviso to Section 28A of the Act will defeat the object of the beneficial legislature. A person cannot be expected to keep track of the decision on references made by different persons whose land has been acquired by the same notification and who did not prefer reference under Section 18 of the Act. He submits that in this case the award was made on 2.9.1981 and that the Reference No. 131 of 1985 in the case of Dharamveer Singh also decided on 2.1.1990 after a period of 15 years. When the petitioners acquired knowledge, they filed applications under Section 28A of the Act. The date of knowledge was clearly given by them in paragraph3 of their application, which was not denied and which was affirmed on affidavits.

Learned Standing Counsel submits that the legislature has not used the words ''date of knowledge'' and therefore the Court should not read anything more and give benefit of date of knowledge of the award to the applicants. Section 28A was added to the Act No. 68 of 1984 w.e.f. 24.9.1984. It is a beneficial provision, which tries to remove the inequities of providing compensation to the land owners whose land has been compulsorily acquired by the same notifications.

Learned Standing Counsel submits that the Supreme Court, in Ravi Khullar vs. Union of India, 2007 (5) SCC 231, in reference to Section 11A of the Act as well as in reference to Section 28A of the Act with which we are concerned in this writ petition, held that where the legislature considered it necessary to incorporate by express words the rule incorporated in Section 12 of the Limitation Act as in the case of Section 28A of the Act, the Court is not permitted to read more words into it in reply to the argument that under Section 11A of the Act the time for obtaining certified copy of the award will be excluded. The Supreme Court held in paras 54, 55, and 56 as follows:

"54. In the matter of computing the period of limitation three situations may be visualized, namely (a) where the Limitation Act applies by its own force ; (b) where the provisions of the Limitation Act with or without modifications are made applicable to a special statute ; and (c) where the special statute itself prescribes the period of limitation and provides for extension of time and/or condonation of delay. The instant case is not one which is governed by the provisions of the Limitation Act. The Land Acquisition Collector in making an award does not act as a Court within the meaning of the Limitation Act. It is also clear from the provisions of the Land Acquisition Act that the provisions of the Limitation Act have not been made applicable to proceedings under the Land Acquisition Act in the matter of making an award under Section 11A of the Act. However, Section 11A of the Act does provide a period of limitation within which the Collector shall make his award. The explanation thereto also provides for exclusion of the period during which any action or proceeding to be taken in pursuance of the declaration is stayed by an order of a court. Such being the provision, there is no scope for importing into Section 11A of the Land Acquisition Act the provisions of Section 12 of the Limitation Act. The application of Section 12 of the Limitation Act is also confined to matters enumerated therein. The time taken for obtaining a certified copy of the judgment is excluded because a certified copy is required to be filed while preferring an appeal/revision/review etc. challenging the impugned order. Thus a court is not permitted to read into Section 11A of the Act a provision for exclusion of time taken to obtain a certified copy of the judgment and order. The court has, therefore, no option but to compute the period of limitation for making an award in accordance with the provisions of Section 11A of the Act after excluding such period as can be excluded under the Explanation to Section 11A of the Act.

Our conclusion finds support from the scheme of the Land Acquisition Act itself. Section 11A of the Act was inserted by Act 68 of 1984 with effect from 24.09.1984. Similarly, Section 28A was also inserted by the Amendment Act of 1984 with effect from the same date. In Section 28A the Act provides for a period of limitation within which an application should be made to the Collector for redetermination of the amount of compensation on the basis of the award of the Court. The proviso to subsection 1 of Section 28A reads as follows:

"Provided that in computing the period of three months within which an application to the Collector shall be made under this subsection, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded."

It will thus be seen that the legislature wherever it considered necessary incorporated by express words the rule incorporated in Section 12 of the Limitation Act. It has done so expressly in Section 28A of the Act while it has consciously not incorporated this rule in Section 11A even while providing for exclusion of time under the explanation. The intendment of the legislature is therefore unambiguous and does not permit the Court to read words into Section 11A of the Act so as to enable it to read Section 12 of the Limitation Act into Section 11A of the Land Acquisition Act."

In State of A.P. vs. Marri Venkaiah AIR 2003 SC 2949, the Supreme Court held in paragraphs 712, as follows:

"7. 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 crystallizes that application under S. 28A is to be filed within three months from the date of the award by the Court by only excluding the time requisite for obtaining copy. Hence, it is difficult to infer further exclusion of time on the ground of acquisition of knowledge by the applicant.

Further, the judgment rendered by the High Court is contrary to the decision rendered by this Court in Tota Ram v. State of U.P. and others ((1997) 6 SCC 280), wherein this Court held that limitation begins to run from the date of the award and as per the proviso the time taken for obtaining the certified copy of the award and the decree is to be excluded in computing the period of three months. The Court held that in view of the express language the question of knowledge does not arise and, therefore, the plea of the petitioner that limitation of three months begins to start from the date of the knowledge is clearly unsustainable and cannot be accepted. Same view is expressed by this Court in Union of India and others v. Mangatu Ram and others ((1997) 6 SCC 59) and Jose Antonio Cruz Dos R. Rodriguese and another v. Land Acquisition Collector and another ((1996) 6 SCC 746). AIR 1997 SC 2704 : 1997 AIR SCW 2674 AIR 1997 SC 1915 : 1997 AIR SCW 1669

However, the learned counsel for the respondents submitted that S.28A is a beneficial provision and that applicants being nonparties to the reference proceedings initiated by some other landowners, they would not have any knowledge of the date of the award or its contents, therefore, the interpretation given by the High Court to the provisions of S. 28A of the Act does not call for any interference and, in any case, the question involved be referred to a larger Bench.

In our view, with regard to first contention that S. 28A is 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 prescribed time. He must at least be vigilant in making efforts to find out whether other landowner has filed any reference application and if so what is the result. If that is not done then law cannot help him. Admittedly, in the present case, award enhancing the compensation was pronounced by the Civil Court by order dated 29th November, 1984 and applications were filed on 27th November, 1989 i.e. after lapse of 5 years. In such case, as the applicant was having an opportunity of knowing the award and/or he was required to make efforts of knowing about such proceedings, he must be presumed to have had knowledge of the award. If the contention of the learned counsel for the respondents is accepted, it will create total vagueness and uncertainty as landowners can claim that they have come to know of the award after long lapse of time and, therefore, the application even though beyond time may be entertained. If such applications are entertained, there may not be any finality to the award and payment of compensation. Result may be that such proceedings may adversely affect where land is acquired by the Government for a project which is to be carried out by local bodies.

11.The learned counsel for the respondents relied upon the decision of this Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another ((1962) 1 SCR 676), which is approved by threeJudge Bench in State of Punjab v. Mst. Qaisar Jehan Begum and another ((1964) 1 SCR 971). In that case, the Court interpreted the proviso to S. 18 of the Act and held that Cl.(a) of proviso was not applicable in the said case because person making application was not present or was not represented before the Collector at the time when he made his award. The Court also held that notice from the Collector under Section 12(2) was also not issued, therefore, that part of Cl. (b) of the proviso would not be applicable. The Court, therefore, referred to second part of proviso which provides that such application can be made within six months from the date of the Collector''s award. In the context of the scheme of Section 18 of the Act, the Court held that the award by the Land Acquisition Officer is an offer of market price by the State for purchase of the property. Hence, for the said offer, knowledge actual or constructive of the party affected by the award was an essential requirement of fair play and natural justice. Therefore, second part of the proviso must mean the date when either the award was communicated to the party or was known by him either actually or constructively.

Aforesaid reasoning would not be applicable for interpretation of Section28A because there is no question of issuing notice to such applicant as he is not party to the reference proceeding before the Court. The award passed by the Court cannot be termed as an offer for market price for purchase of the land. There is no duty cast upon the Court to issue notice to the landowners who have not initiated proceedings for enhancement of compensation by filing reference applications; may be that their lands are acquired by a common notification issued under Section 4 of the Act. As against this, under Section 18 it is the duty of the Collector to issue notice either under Section 12(2) of the Act at the time of passing of the award or in any case the date to be pronounced before passing of the award and if this is not done then the period prescribed for filing application under Section 18 is six months from the date of the Collector''s award."

The proviso to Section 28A of the Act fixes the period of limitation and also starting date of limitation. The day, on which the award was pronounced, is the starting date of limitation for making the application under Section 28A and which permits the exclusion only of the time required for obtaining a copy of the award. The date of knowledge of the award is not the starting point of the limitation. Although Section 28A of the Act was enacted to remove inequity and to benefit the land owners, who have suffered acquisition of land in similar cases in which the compensation was enhanced, the land owners have to be vigilant of the enhancement in the cases where references have been filed under Section 18 of the Act. If the date of knowledge is to be treated as the starting point of the limitation, the starting point may begin after several years and in that case the State will be saddled with the liability of paying interest @ 15% per annum under Section 34 of the Act on the enhanced compensation. The days of starting point of limitation will also vary from person to person and further it will become very difficult for the State to deny the date of knowledge in respect of each applicant. Although the award under Section 18 is not required to be published, the news of enhancement spreads faster amongst the land owners. The legislature was conscious of the fact of providing three month''s time from the date when the award is pronounced excluding only the time for obtaining the copy for enhancement in all the cases.

In the present case the award under Section 18 was made on 2.1.1990 and the applications were made on 29.5.1990 much after the period of three months provided in Section 28A for making reference.

In view of Ravi Khullar''s & Marri Venkaiah''s cases decided by the Supreme Court, we find that the judgments in Shri Mahabeer''s case (supra) and Bhullan''s case (supra), have been impliedly overruled.

The writ petition is dismissed.