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SCA/28840/2007 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 28840 of 2007
=========================================================
JETHABHAI
SAGTHABHAI KOLI - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
BN PATEL for
Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3
Ms.Nair, AGP for
Respondent(s) : 1,
None for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
Date
: 11/09/2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
Feeling
aggrieved by the order dated 2nd February, 2006 made by
the Deputy Collector, Land Acquisition and Rehabilitation SIPU
Project of Palanpur under Section 28A(3) of the Land Acquisition Act,
1894 (hereinafter referred to as, the Act ),
the petitioners original land owners have preferred the present
petition.
The
petitioners are the residents of village Jantral, Taluka Dhanera,
District Banaskantha. Their land Survey No.75/3 paiki admeasuring
1-Hectare-21-Are-41 sq.meters was acquired for SIPU project. In Land
Acquisition Case No.3/1984 the award for compensation was made on 1st
February, 1989. The said award was accepted by the petitioners. The
petitioners did not seek reference as envisaged by Section 18 of the
Act. However, feeling aggrieved by the said award, certain other land
owners whose lands were also acquired in the said acquisition
proceeding sought reference under Section 18 of the Act. All such
references were decided by the District Court on 31st
March, 1993. The petitioners approached the Deputy Collector on 4th
September, 1996 for additional compensation as envisaged by Section
28A(1) of the Act. The Land Acquisition Officer, by his order made on
26th August, 2002, rejected the said application as
time-barred. Feeling aggrieved, the petitioners sought reference to
the District Court under Section 28A(3) of the Act. The said
application has been rejected. Therefore, the present petition.
Mr.Patel
has submitted that the authority below has erred in not making
reference to the District Court as envisaged by Section 28A(3) of the
Act. He has submitted that the application made by the petitioners
under Section 28A(1) of the Act has been rejected by the authority
below as time-barred. The said order is also an award within the
meaning of sub-section (2) of Section 28A of the Act. The authority
below was, therefore, required to make reference to the District
Court.
As
to the limitation, Mr.Patel has relied upon the averments made in the
application. He has submitted that though the references were decided
on 31st March, 1993, the petitioners acquired knowledge in
the month of September, 1996. The application made by the petitioners
was, therefore, within the period of three months specified in
sub-section (1) of Section 28A of the Act. He has relied upon the
judgment of the Hon’ble Supreme Court in the matter of Parsottambhai
Maganbhai Patel and others v/s. State of Gujarat through Dy.Collector
Modasa and another [(2005)7 SCC
431]. He has submitted that as held by the Hon’ble Supreme Court the
period of limitation would commence on the date of the knowledge. He
has submitted that the petitioners were not parties to the reference
made to the District Court. They, therefore, had no knowledge about
the award passed by the District Court.
The
petition is contested by the learned AGP Ms.Nair. She has relied upon
the judgment of the Hon’ble Supreme Court in the matter of State
of Andhra Pradesh and another v/s. Marri Venkaiah and others [AIR
2003 SC 2949]. She has submitted that in view of the specific wording
of the enactment it is the date of the award which is relevant for
computation of period of limitation and not the date of the
knowledge. The Hon’ble Supreme Court has held that, …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.28-A 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.
We
are unable to agree with Mr.Patel. First, on the point of delay, the
language of sub-section (1) of Section 28A of the Act is explicit. As
explained by the Hon’ble Supreme Court the only date which is
relevant for computation of period of limitation is the date of the
pronouncement of the award. The date of knowledge is not relevant for
the purpose.
As
to the maintainability of the application for reference under Section
28A(3) of the Act, we are of the opinion that the authority below has
rightly rejected the application. Sub-section (3) of Section 28A of
the Act provides for a reference to the District Court in respect of
a person who has not accepted an award made under sub-section (2)
thereof. Sub-section (2) of Section 28A of the Act enjoins the
Collector to conduct an inquiry and make an award determining the
amount of compensation payable to the applicants. Thus, in case of
the award made by the Collector determining the amount of
compensation alone, a reference under sub-section (3) of Section 28-A
of the Act can be sought.
In
the present case, the application made by the petitioners was
rejected as it was not made within three months specified in
sub-section (1) of Section 28A of the Act. There was no occasion for
the Collector to make award under sub-section (2) of Section 28A of
the Act. In our opinion, the application for reference made under
sub-section (3) of Section 28A of the Act was not maintainable. The
application has rightly been rejected by the authority below.
No
other contention is raised before us. For the aforesaid reasons, the
petition is dismissed in limine.
(Ms.R.M.Doshit,
J)
(
Sharad D Dave, J )
srilatha
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