RAVINDRA v. GHUGE & Y. G. KHOBRAGADE, JJ. DATE
Facts
*1* 13wp313o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD13 WRIT PETITION NO. 313 OF 2024KASHINATH JANARDHAN KHAVNEVERSUSTHE STATE OF MAHARASHTRA THROUGH COLLECTORJALNA AND OTHERS...Advocate for the Petitioner : Mr. Jadhav Kailas B.AGP for Respondents 1 to 3/State : Mr. P.K. Lakhotiya... CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 22nd January, 2024Per Court :-1.The Petitioner has put forth prayer clause B asunder:-“B)By issuing appropriate writ, order or directionin the like nature, impugned order dated05.06.2023 vide Outward No.2023/ LAQ/Sec.28-A/ KAVI passed by respondent No.2may kindly be quashed and set aside andconsequently application U/Sec. 28-A of theLand Acquisition Act 1894 filed by petitioneron 03.10.2015 may be treated within period oflimitation.”2.We have heard the learned Advocates for therespective sides. There is no dispute as regards the sequence ofevents as under:- *2* 13wp313o24(a)The award under Section 18 of the erstwhile LandAcquisition Act, 1894 was delivered in LAR No.1041/2010 on03.07.2015.(b)The date on which the award is pronounced, has tobe excluded while computing the number of days.(c)Excluding the above stated date, 28 days in July2015, 31 days in August 2015, 30 days in September 2015 and 2days of October, 2015, make the total 91 days.(d)The Petitioner preferred an application underSection 28-A on 03.10.2015.(e) 2nd October, 2015 was national holiday. 1st October,2015 was the 90th day and the proceedings were filed on03.10.2015.(f)The proceeding initiated by the Petitioner is,therefore, delayed by one day.3.In Assistant Commissioner (CT), LTU, Kakinadaand others vs. Glaxo Smith Kline Consumer Health CareLimited, (2020) 19 SCC 681, the Honourable Supreme Court hasheld that delay beyond the aggregate period cannot be condonedby exercising power under Article 142. So also, neither Article *3* 13wp313o24226 of the Constitution of India, would not permit the HighCourt to condone the delay, nor can such delay be condoned byinvoking Section 5 of the Limitation Act. When a completeappellate mechanism is provided under the statute prescribing themaximum period of limitation, writ jurisdiction cannot beexercised to undermine the statutory regime. 4.This Court in Sheshabai @ Subhadrabai w/oGyanoba Madale vs. The State of Maharashtra and others,2014(1) Mh.L.J. 317, (Writ Petition No.52/2022 decided on17.08.2023 Aurangabad Bench), has taken a view in paragraphNos.14 to 21 as under:-“14.In Vajsibhai Ramabhai Sagar Vs. The State ofGujarat, decided on 12.06.2023, the DivisionBench of the Gujarat High Court has reliedupon the Supreme Court judgments inparagraph nos. 5.1, 6.0 and 6.1 and hasconcluded in paragraph Nos. 7.0, 7.1 and 7.2 asunder :-"[5.1] He would submit that in similar type of casethe Division Bench of this Court in the case ofPatel Govindbhai Khodidas vs. Special LandAcquisition Officer and Anr. rendered inSpecial Civil Application No.7677/2017, videjudgment dated 22.08.2017, has considered thecase and by condoning the delayC/SCA/2908/2023 ORDER DATED:12/06/2023 caused in filing application underSection 28A of the Land Acquisition Act, 1894,had granted the said petition. He, therefore,would submit that present petitions be allowed.
Legal Reasoning
*5* 13wp313o24Section 28A of the Land Acquisition Act, 1894was filed by the owner of the property throughhis brother which was rejected on that groundand the application which was filed by theoriginal owner subsequent to the period oflimitation, the same was accepted. He,therefore, would submit that the petition bedismissed. [7.0] We have heard learned advocates appearing forthe respective parties at length. It is anundisputed fact that none of the presentpetitioners have sought reference under Section18 of the Land Acquisition Act, 1894. TheReference Court declared the judgment andaward only on 09.04.2018. [7.1] As per Section 28A of the Land AcquisitionAct, 1894, a written application is required tobe submitted for similar compensation underSection 28A of the Land Acquisition Act, 1894within a period of three months from the dateof such award passed by the Court. Section28A of the Land Acquisition Act, 1894 reads asunder: "28A. Re-determination of the amount ofcompensation on the basis of the award of theCourt. ………………..……………….This provision has been interpreted by theHon'ble Apex Court in the case of MarriVenkaiah and Others (Supra) wherein it hasbeen specifically held by the Hon'ble ApexCourt that a person would be entitled forbenefits only if he files application underSection 28A within a period of 90 days. Similaris the ratio laid down by the Hon'ble ApexCourt in the case of Mangatu Ram and Others(Supra). [7.2] In our considered opinion the Authority hascommitted no error in rejecting applicationunder Section 28A of the Land Acquisition Act, *6* 13wp313o241894. As far as the decision of the DivisionBench of this Court in the case of PatelGovindbhai Khodidas (Supra) relied upon bythe learned advocate appearing for thepetitioners is concerned, it appears from thesaid judgment that the application in that casewas filed within the period of limitation by theoriginal land owner through his brother but thesame was rejected on the ground that theperson who filed C/SCA/2908/2023 ORDERDATED: 12/06/2023 application under Section28A Land Acquisition Act, 1894 has notsubmitted authorization to file the applicationfor and on behalf of the petitioner - originalland owner and therefore, the Division Benchentertained the said petition. But, in the presentcase, the application under Section 28A of theLand Acquisition Act was filed beyond theperiod of limitation and therefore, said decisionof Division Bench cannot be made applicableto the facts of the present case."15.The learned Advocate for the Petitioner hasplaced reliance upon the order passed by theHon'ble Supreme Court in Karam Chand(supra), wherein it was noted that even thoughlimitation is prescribed, subject to declining theinterest for the delayed payment, compensationcan be re-determined. We respectfully inferthat the said order of the Hon'ble SupremeCourt was in the facts and circumstances of thesaid case keeping in view the order passed bythe Hon'ble Supreme Court dated 27.11.2019 inCivil Appeal No.1632/2011 filed by Narayan s/o Dhondu Sarode, Dead,through LR's andothers Vs. The Collector, Jalgaon and another,referring to Article 142 of the Constitution ofIndia. It would be advantageous to refer to thefollowing paragraphs of the order delivered inNarayan Dhondu Sarode (supra) as under :-"It is relevant to note that the limitation *7* 13wp313o24prescribed for filing application under Section28A of the Act is 90 days. The 90th day fell on6th July, 1986 which happened to be a Sunday.The application under Section 28A came to befiled by the appellants herein on 08.07.1986,instead of 07.07.1986. Hence, there was adelay of one day in filing the application.The High Court in the impugnedjudgment summarily dismissed the writ petitionfiled by the appellants. It is held that theSLAO as well as the Collector were justified inrejecting the application under Section 28A inview of the delay of one day, in as much as,there is no provision for condoning such delay. It is pertinent to note that this Court inthe case of Bir Wati and others Vs. Union ofIndia and others [(2017) 16 SCC 548] had byexercising jurisdiction under Article 142 of theConstitution of India, directed the concernedAuthority to accept the application underSection 28A of the Land Acquisition Act. Thisis accounting for the fact that the personshailing from agricultural background may beunaware of the legal and proceduralrequirements under the Act. Hence, having regard to the facts andcircumstances of the present case, we exerciseour jurisdiction under Article 142 of theConstitution of India and condone the delay /lapse of one day on the part of the appellants infiling the application inasmuch as the appellantwould not get the adequate compensation asawarded in similar matters.Therefore, Collector / concernedappropriate officer is directed to accept theapplication filed by the appellants underSection 28A of the Land Acquisition Act anddetermine the appropriate compensation inaccordance with Law."16.In Bir Wati and Others (supra), it has been *8* 13wp313o24recorded in paragraph Nos. 13 to 16 as under :-"13) It is true that one of the requirements toapply to the Collector under Section 28A of theAct is to make an application within threemonths from the date of the award passed inother cases. 14) In this case, three months have already expiredand the appellants were not able to make theapplication within three months or thereaftertill date. However, having regard to thepeculiar facts and circumstances of the casewherein we find that firstly, the bread earner ofthe appellants’ family namely Jugal Kishoredied during the pendency of the proceedingsbefore the Collector long back; secondly, oneof the appellants also expired during pendencyof this appeal as reported; and thirdly, all theappellants are illiterates and unaware of theproceedings in question for years even afterpassing of the award and are also unaware ofthe legal and procedural requirementsprescribed in the Act. It is due to these reasons,we are of the view that the appellants areentitled for indulgence. 15) In the light of the foregoing discussion, we areof the view that this is a fit case to allow theappellants to make an application to theconcerned Collector under Section 28A of theAct within three months from the date ofreceipt of this judgment i.e. on or before17.12.2017 praying therein for payment ofcompensation to them in the light of theenhanced compensation, if already foundawarded to other landowners in these veryacquisition proceedings by the reference Court.16) This indulgence to apply under Section 28A ofthe Act is granted to the appellants by thisCourt in exercise of our powers conferredunder Article 142 of the Constitution which wedo with a view to do complete and substantialjustice to the appellants." *9* 13wp313o2417.It is, thus, clear from Bir Wati and others(supra), that the bread earner of the Appellant'sfamily had died during the pendency of theproceedings before the Collector. Anothermale appellant expired during the pendency ofthe appeal. The surviving appellants wereilliterate and were unconnected with theproceedings since the deceased appellants werelooking after the said proceedings. It was inthese circumstances that the Hon'ble SupremeCourt concluded that the indulgence beingshown by it was under Article 142 of theConstitution of India with the view to docomplete and substantial justice. Similar is theview in Narayan Dhondu Sarode (supra).18.The Petitioner has relied upon the order of thisCourt delivered at the Nagpur Bench on19.09.2023 in WP No.4911/2021 (ShantabaiBhagwan Gomate Vs. State of Maharashtra andanother) wherein liberty to file an applicationfor condonation of delay was granted by theCourt after relying upon the order passed inKaram Chand (supra). The Petitioner reliesupon another order passed by this Court at theNagpur Bench dated 23.11.2022 in WPNo.6214/2022 (Dnyandeo Yashwanta ManteVs. The State of Maharashtra and others). Inthis order as well, the learned Bench grantedliberty to file an application for condonation ofdelay by relying upon the order passed inKaram Chand (supra). 19.With utmost respect to the discretionary orderspassed in Shantabai (supra) and Dnyandeo(supra), we find that the judgments deliveredby the Hon'ble Supreme Court in Tota Ram(supra), Marri Venkaiah (supra), PopatGovardhane (supra), Narayan Dhondu (supra)and Bir Wati(supra), were not brought to thenotice of the learned Bench at Nagpur. Eventhe view taken at the Nagpur Bench in *10* 13wp313o24Parasmal s/o Kunjilal Jain Vs. The State ofMaharashtra and another [2015(7) ALL MR320], was not cited.20.In the instant case, we find that the Petitioneris from the same village as the co-claimants.Most of the co-claimants approached the Courtu/s 18. The Petitioner found it appropriate tostay away from the said proceedings. The LARCourt had delivered a judgment on 21.12.2001and the Reference Court delivered it's judgmenton 30.01.2012 enhancing the compensationamount from Rs.610/- Per R to Rs.1754/- Per Rfor the dry land and Rs.2631/- per R for theirrigated land. When the co-claimants from thesame village succeeded in these proceedingsand got a substantial rise of almost 300 percent(in so far as the dry lands) and more than 500percent (in so far as the irrigated lands), itcannot be believed that the Petitioner did nothave the knowledge of such a huge rise incompensation granted to the co-claimants fromthe same village, for a period of 7 years. 21.We need to record that the powers available tothe Hon'ble Supreme Court under Article 142of the Constitution, are not available to thisCourt. The orders in Bir Wati (supra) andNarayan Dhondu Sarode (supra), are underArticle 142 since the Hon'ble Supreme Courthas concluded that the said orders are beingpassed under Article 142.”5.In view of the above, the Petitioner's claim is belatedby one day and the petition cannot be entertained. Hence, theWrit Petition is dismissed. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)
Arguments
*4* 13wp313o24[6.0] On the other hand, learned AssistantGovernment Pleader Mr. K.M. Antaniappearing for the respondents has vehementlyopposed the present group of petitions. Hewould submit that the limitation to file anapplication under Section 28A of the LandAcquisition Act, 1894 is of three months fromthe date of publication of award by theconcerned Court. In the present case, the awardwas declared on 09.04.2018 wherein theapplication was made by the respectivepetitioners on 10.11.2020, which is beyond theprescribed period of 90 days. [6.1] He would submit that such period cannot becondoned by this Court even in exercise ofpowers under Article 226 of the Constitution ofIndia. In support of his above submission,learned AGP has relied upon the decision of theHon'ble Apex Court in the case of State of A.P.and another vs. Marri Venkaiah and othersreported in (2003) 7 SCC 280 as well as thedecision of the Hon'ble Apex Court in the caseof Union of India and others vs. Mangatu Ramand others reported in (1997)6 SCC 59. Byrelying upon these two decisions, learned AGPwould submit that period of limitation cannotbe extended and person seeking relief underSection 28A of the Land Acquisition Act, 1894is supposed to file application within aprescribed period of three months from the dateof publication of the award by the referenceCourt. As far as decision of the Division Benchof this Court in the case of Patel GovindbhaiKhodidas (Supra) relied upon by the learnedadvocate appearing for the petitioners isC/SCA/2908/2023 ORDER DATED:12/06/2023 concerned, learned AGP wouldsubmit that the facts of the said case were notapplicable to the present group of petitions. Hewould submit that the application under