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Judgment
S.T. Kharche, J.—Rule. Rule made returnable forthwith. Heard finally by consent of parties.
Heard Mr.Sonwane, learned counsel, for the petitioners and Mr.Kankale, learned A.G.P., for the respondents.
This is a petition under Articles 226 and 227 of the Constitution of India seeking the relief of setting aside the impugned order dated 25.3.1992 passed by the respondent no.2/Special Land Acquisition Officer, rejecting the application of the petitioners filed u/s 28-A of the Land Acquisition Act, 1894 (for short, "the Act") for re-determination of the compensation.
Admittedly the petitioners are the owners of agricultural lands which were the subject matter of compulsory acquisition vide Land Acquisition Case Noo.10/LAQ/78-79. Notification u/s 4 of the Act was published and thereafter the respondent no.2 passed the Award. Some of the land holders, whose land was under acquisition, were not satisfied with the Award passed by the respondent no.2 and, therefore, they had filed Reference u/s 18 of the Act. The Reference was answered by the Civil Court passing the Award on 15.9.1989. The petitioners did not file any application u/s 18 of the Act seeking reference. It is contended that the petitioners filed application on 25.9.1989 for obtaining the certified copy of the Award passed by the Reference Court and the copy was delivered on 29.11.1989. Thereafter the petitioners had filed application u/s 28-A of the Act before respondent no.2 on 30.12.1989. The said application was dismissed by respondent no.2 on 25.3.1992. It is this order that has been challenged in the present writ petition.
The learned counsel for the petitioners contended that the petitioners have fulfilled all the requirements, as required by Section 28-A of the Act, and also presented their application within time. He contended that the time taken for obtaining the certified copy of the Award of the Reference Court will have to be excluded while computing the period of limitation of three months. He further contended that it was not necessary to file 7/12 extract while presenting the application to respondent no.2 and, therefore, the impugned order passed by respondent no.2 cannot be sustained in law and deserves to be set aside.
The learned A.G.P. for the respondents vehemently argued that the application presented by the petitioners u/s 28-A of the Act was barred by limitation because there was a delay of about 15 days in presentation of the said application. He further contended that the certified copy of the Award as well as the 7/12 extracts of the lands acquired were not appended to the application and, therefore, the application was rightly rejected by respondent no.2.
We have carefully considered the contentions canvassed by the learned counsel for both the parties. In order to appreciate their contentions, it is necessary to reproduce Section 28-A of the Act :
"(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 u/s 11, the person interested in all the other land covered by the same notification u/s 11, the persons interested in all the other land covered by the same notification u/s 4, sub-section (1) and who are also aggrieved by the award of the Collector, may notwithstanding that they had not made an application to the Collector u/s 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 the 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."
In our view, the analysis of this section would reveal that following conditions are to be fulfilled before presentation of the application u/s 28-A of the Act-
(1) that the award is passed under Part III of the Act in which the amount of compensation is determined in excess of the amount awarded by the Collector u/s 11;
(2) that the interested persons who want re-determination did not choose to file Reference application u/s 18;
(3) that the application u/s 28-A is to be filed within the period of limitation, i.e. 3 months; and
(4) provided that in computing the period of three months within which an application to the Collector has to 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."
This view of ours is fortified by the decision of the Apex Court in the case of Union of India and another Vs. Pradeep Kumari and others, . It has been held, inter alia, that a person would be able to seek determination of the compensation payable to him provided the following conditions are satisfied :
(i) An award has been made by the Court under Part III after coming into force of section 28-A;
(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector u/s 11 has been allowed to the applicant in that reference;
(iii) The person moving the application u/s 28-A is interested in other land covered by the same notification u/s 4(1) to which the said award relates;
(iv) The person moving the application did not make an application to the Collector u/s 18;
(v) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and
(vi) Only one application can be moved u/s 28-A for redetermination of compensation by an applicant."
The fifth ground on the basis of which the application filed by the petitioners u/s 28-A of the Act came to be rejected cannot be accepted in view of the clear language of sub-section (1) and proviso thereto of the said section. All the conditions as set out in Pradeep Kumar is case (supra) are duly satisfied in the instant case.
In the present case, it is not disputed that the award u/s 11 of the Act has been passed by respondent no.2 on 31.1.1979. Some land owners, whose lands were subject of acquisition in the proceedings, had filed Reference which came to be decided by the Civil Court on 15.9.1989. It is not in dispute that on 25.9.1989 the petitioners hade made an application for obtaining the certified copy of the order and the copy was delivered to them on 29.11.1989. Thereafter, on 30.12.1989 an application u/s 28-A of the Act was presented before respondent no.2. In these circumstances, the period which was required for obtaining the certified copy of the award will have to be excluded, which period is from 25.9.1989 to 29.11.1989. If that period is excluded while computing the period of limitation of 90 days, it is obvious that the application u/s 28-A of the Act was perfectly filed within the period of limitation. Therefore, it is apparent that the respondent no.2 has committed an error of law while rejecting the said application.
It is true that the respondent no.2 by the impugned order rejected the application of the petitioners on other two grounds, that is (i) certified copy of the award was not filed, and (ii) 7/12 extract of the land acquired was not appended to the application. Bare reading of Section 28-A would reveal that it is not the requirement of the law that while presentation of the application u/s 28-A, the certified copy of the award or 7/12 extract of the land acquired is to be filed. Hence, we are of the considered view that the impugned order passed by respondent no.2 is erroneous and cannot be sustained in law.
In the result, we set aside the impugned order passed by respondent no.2 and direct him to decide the application filed by the petitioners u/s 28-A of the Act on merits according to law within four weeks from the date of receipt of this order. Rule is made absolute in above terms. In the circumstances, there shall be no order as to costs. Writ petition is disposed of.