Articles

Though Land Acquisition Act 1894 (hereinafter referred as "Act of 1894") today stands repealed with the enactment of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred as "Act of 2013"), yet it is very much alive for the acquisition proceedings wherein award under Section 11 of Act of 1894 was announced prior to 01.01.2014 i.e. date of enforcement of Act of 2013 by virtue of saving clause provided in Section 24(1)(b) of the Act of 2013. The references for enhancement in compensation are still being decided by the Reference Courts, High Courts and Supreme Court, therefore, time and again the Courts are being called upon to interpret the provisions of Act of 1894.

The Scheme of the Act of 1894, especially after amendment in the year 1984, seeks to provide for a time limit within which the acquisition is to be completed. For instance, declaration under section 6 of the Act of 1894 shall be issued within one year of the publication of notification under section 4, provided any period during which stay was in operation shall be excluded and further Section 11-A of Act of 1894 provides that award shall be announced under section 11 within a period of two years from the date of publication of the declaration under section 6 of the Act of 1894. Failing to adhere to this time limit results into lapsing of acquisition proceedings. It is not only with respect to the completion of acquisition proceedings that the time limit has been prescribed, but even for seeking enhancement in the compensation awarded, it is incumbent to pursue the remedies under the Act of 1894 strictly within the limitation period prescribed. The present article sheds light on the sanctity of the limitation period prescribed under section 18 and Section 28-A of the Act of 1894 for seeking enhancement in compensation or re-determination of compensation respectively.

Section 18(1) of the Act of 1894 envisages that any interested person who has not accepted the award may, by application in writing to the Collector, require him to refer the dispute raised in the application for the determination of the Court. Under sub section (2), the grounds on which objection to the award is taken have to be stated in the application. However, under the proviso to sub-Section (2) every application shall be made (a) if the person making it was present or represented before the collector at the time when he made his award, within 6 weeks from the date of the collector's award; (b) in other cases, within 6 weeks of the receipt of the notice from the collector under Section 12(2), or within 6 months from the date of the collector's award, whichever, period shall first expire. It is therefore, clear that if the interested person was present at the time Collector made the award, he should make the application within 6 weeks from the date of the award of the Collector. In other cases, it should be made within 6 weeks after the receipt of the notice from the Collector under Section 12(2) or within 6 months from the date of the Collector's Award, whichever period shall first expire. Thus, a specific period of limitation within which an application under Section 18 is to be submitted is provided under the Act of 1894. Where on hand the limitation is prescribed, it is also relevant to mention that nowhere does the act envisages about the condonation of delay in submitting the application. Therefore, the first and foremost question that arises for consideration is whether such delay in filing application for reference can be condoned or not?

The issue regarding condonation of delay in making applications for reference U/s 18 is no more res integra and has been answered by the Hon'ble Supreme Court of India in catena of judgments. The landmark pronouncement in this regard, is the judgment of the 3 judges bench of the Hon'ble Supreme Court of India in the case of Mohammed Hasnuddin v. State of Maharashtra (1979) 2 SCC 572. The Hon'ble Court in the aforesaid case was seized of the issue as to whether the Court in dealing with the reference under Section 18(1) of the Act of 1894 can go behind the reference made by the Collector if the application on which the reference has been made beyond the period of limitation prescribed therein. While answering the issue framed, the Hon'ble Court observed that the word `requires' used in Section 18 of the Act of 1894 implies "compulsion". It carries the idea that the written application makes it incumbent on the collector to make a reference. The collector is required to make a reference under Section 18 of the Act of 1894 on the fulfilment of 3 conditions firstly, there shall be a written application by person interested who has not accepted the award, secondly nature of the objections which may be taken and thirdly time within which the application shall be made. Since, the conditions laid down in Section 18 of the Act of 1894 are matters of substance and their observance is a condition precedent to the Collector's power of reference, the Hon'ble Court categorically held that the making of an application for reference within the time prescribed by proviso to Section 18(2) of the Act of 1894 is a sine qua non for a valid reference by the Collector. If the application under Section 18 of the Act of 1894 is not made within time, the collector will not have the power to make a reference and if such reference is made beyond the limitation, the Court has no jurisdiction to hear such reference. Therefore, the Hon'ble Supreme Court of India in many words clarified that no reference under Section 18 of the Act of 1894 can be made beyond the prescribed limitation in proviso to Section 18(2) of the Act of 1894.

The aforesaid proposition of law was taken a step ahead by the Hon'ble Supreme Court of India in the case of Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal and others (1996) 9 SCC 414, wherein the Hon'ble Supreme Court of India precisely framed the question as to whether Section 5 of the Limitation Act, 1963 would apply for condoning the delay in making application for reference under Section 18(1) of the Act of 1894. Suffice to mention that in order to exercise power under Section 5 of the Limitation Act, 1963 the forum exercising the power shall be a `Court'. Thus, for arriving at the answer to the aforesaid question, the Hon'ble Apex Court firstly sought to decide whether collector is a Court for the purpose of Section 18(1) of the Act of 1894 or not. The reliance was placed on Mohammed Hassnudin (supra) to hold that when the collector makes reference under Section 18(1) of the Act of 1894 he acts as a statutory authority. Further, reference was made to Section 3(d) of the Act of 1894 which defines Court to mean the principal Civil Court of original jurisdiction or a principal judicial officer within any special local limits appointed there under to perform the functions of the Court under the Act. The definition of the Collector is provided under Clause 3(c) to mean the Collector of District and includes a Deputy Commissioner etc. appointed by the appropriate Government to perform the functions of the Collector under the Act. Therefore, a clear distinction is made between the Collector and the Court in the scheme of the Act itself, therefore, the Hon'ble Court categorically held that the Collector is not a Court when he acts as a statutory authority under Section 18(1) of the Act of 1894, thus, Section 5 of the Limitation Act cannot be applied for the extension of the period of limitation prescribed under proviso to sub section (2) of Section 18 of Act of 1894. In the light of the conclusion that Collector is not a "court", the Hon'ble Court held that if the application for reference under section 18 of the Act of 1894 is not made within time as prescribed in the act, Collector will not have any power to make reference.

On one hand it is the duty of the Collector to decide whether an application seeking reference has been made within time or not, on the other hand the Reference Court shall also determine the validity of reference of which one essential element is time within which such application for reference was filed as the very jurisdiction of the court to hear a reference depends upon a proper reference being made under Section 18. If the reference made is not proper, the court has no jurisdiction to hear the same. If the reference is beyond the prescribed period by the proviso to sub-section (2) of Section 18 of the Act and if it finds that it was not so made, the court would decline to answer the reference.

The another important facet of limitation period prescribed in section 18 of the Act of 1894 is the date of reckoning of such limitation period. As discussed herein above, the proviso to sub section (2) prescribed three dates of commencement of limitation which are:-

(a) if the person making it was present or represented before the collector at the time when he made his award the application shall be made within 6 weeks from the date of the collector's award;

(b) in other cases, within 6 weeks of the receipt of the notice from the collector under Section 12(2), or within 6 months from the date of the collector's award, whichever, period shall first expire.

As far as the date of commencement of limitation from date of collector's award where person is present and date of receipt of notice under section 12(2) of Act of 1894 is conacred, there is no ambiguity. However, by way of judicial pronouncements the "the date of collector's award" as used in clause (b) has been interpreted to mean "date of knowledge of award". Where, the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the person interested and affected by the award made by the Collector under section 11 of the Act of 1894, either actual or constructive is an essential requirement. Therefore, the Hon'ble Supreme Court of India in the case of State Of Punjab v. Mst. Qaisar Jehan Begum and Anr. AIR 1963 SC 1604, held that the date of award shall be interpreted to mean knowledge of award and such knowledge does not mean a mere knowledge of the fact that an award has been made but it should relate to the essential contents of the award.

The view of the courts across the country has remained static that the application for reference under section 18 of the Act of 1894 shall be made within the limitation prescribed in the Act and there is no scope for condonation of such delay. The reference can be made to the judgments passed in the case of State of Karnataka v. Laxuman, (2005) 8 SCC 709, Harbans Singh v. State of Punjab RFA No. 2513 of 1992, Raghuwansh Chaprana and others v. State of Haryana and others RFA No. 805 of 2006 and Gram Panchayat, Bajghera v. State of Haryana and others RFA No. 5204 of 2015. Suffice to mention that Section 64 of the Act of 2013 envisages similar provision as that of section 18 of the Act of 1894 and thus, the settled law has to be followed in relation to the new Act as well.

Considering the fact that there can be persons who failed to submit an application for reference seeking enhancement in compensation, another remedy in terms of Section 28-A of the Act of 1894 was added in the Act by way of amendment in the year 1984. The said provision was added considering the fact that the right of reference to the Civil Court under Section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised by the effluent land owners which causes inequality in the payment of compensation, therefore, a right was sought to be provided to such land owners to make an application under Section 28-A of the Act of 1894 seeking compensation based upon the award announced by the reference Court. The analogous provision in the Act of 2013 is contained in the form of Section 73 and the interpretation given to Section 28-A of the Act of 2013 is equally applicable on Section 73 as well.

Sub-section (1) of Section 28-A of the Act of 1894 provides that after an award is made under Part-III whereby the Reference Court enhances to compensation awarded by the Collector under Section 11, a right accrues to a persona interested in the other land covered by the same notification under Section 4 of the Act of 1894, who is also aggrieved by the award of the Collector but did not make an application for reference under Section 18, to move an application before the collector for re-determination of the amount of compensation payable to him on the basis of the amount of compensation awarded by the Court. Once again, this right comes with a specific limitation as this application for re-determination is required to be made within 3 months from the date of the award of the reference Court. The right to make the application under Section 28-A arises from the date of the award made by the reference Court, therefore, the limitation of 3 months also starts from the date of the award by the Court disposing of the reference under Section 18 of the Act of 1894. Since the Act also envisages the provision of appeal, therefore, earlier there was confusion as to whether the phrase date of award of court would mean "Reference Court" or the appellate court will also come within its ambit.

This controversy was finally adjudicated upon by the Hon'ble Supreme Court of India in the case of Jose Antonio Cruz Doz R. Radrigues v. Land Acquisition Collector 1997(2) RCR (Civil) 21, wherein the Hon'ble Apex Court categorically held that the award of court would mean the award of reference court only and not of appellate court. While reaching to this conclusion the Hon'ble Court observed that the first part of section 28-A begins with the words "Where in an award under this part, Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11", the perusal of these words clearly implies that the legislature was talking of an award made under the provisions of Part III, i.e., an award under Section 11 and therefore, in that context, reference to `Court' can only mean the court to which a reference is made by the Collector under Section 18. Further second part of the section addresses "the persons interested in all the other land covered by the same notification ... and who are also aggrieved by the award" and permits them to make a written application to the Collector "within three months from the date of the award of the Court" requiring him to redetermine the amount of compensation on the basis of the amount awarded by the Court, notwithstanding the fact that they had not sought a reference under Section 18 of the Act. Thus, a clear inference can be drawn that section 28-A of Act of 1894 intends to give the same benefit, which a person who had sought a reference and had secured the Court's award for a higher amount of compensation had received, to those who had, on account of ignorance or financial constraints, not sought a reference under Section 18. Even in the latter part, the reference has been made to award under section 11 of Act of 1894 and then to reference under section 18 of Act of 1894, therefore, the limitation prescribed under section 28A of Act of 1894 shall start from the award of Court deciding the reference under section 18 of Act of 1894 and not the decision of the appellate court dealing with appeal against the award of Reference Court. In Union of India v. Pardeep Kumari AIR 1995 SC 2259, the Hon'ble Apex Court observed that Section 28-A of Act of 1894 does not imply only first award by Reference Court but any award of reference Court made in respect of the main award.

As far as the condonation of limitation in filing application for re-determination under Section 28-A of the Act of 1894 is concerned, the Hon'ble Supreme Court of India in the case of State of AP and another v. Marri Venkaiah and others cited as (2003) 7 SCC 280 held that the language of Section 28-A of the Act of 1894 is very clear that the application u/s 28-A is to be filed within three months from the date of the award by the court and any application received thereafter, is absolutely time barred. In addition to this, the Hon'ble Court categorically observed that even the exclusion of time on the ground of knowledge by the land owner(s) is not permissible within the parameters of Section 28-A. The Hon'ble Court has explained that Section 28-A of Act of 1894 is in the form of beneficial legislation and in order to take advantage of same person has to be vigilant and has to take appropriate action within the prescribed time. This proposition of law was reiterated by the Hon'ble Apex Court in the case of Popat Bahiru Govardhane and others v. Special Land Acquisition Officer and another (2013) 10 Supreme Court Cases 765, wherein the Hon'ble Court was adjudicating upon the issue as to whether limitation for filing the application for redetermination of the compensation u/s 28-A of the Act of 1894 would commence from the date of the award or from the date of knowledge of the court's award on the basis of which such application is being filed. While negating the contention of the appellants that the date of knowledge shall be the point of commencement, the Hon'ble Court reiterated that the limitation to file an application u/s 28-A shall commence from the date of award of court and the court has no power to extend the period of limitation even on equitable grounds by ignoring the express provision of the Act.

Once it is clear that the application for re-determination can be made within three months from the date of award of Reference Court, a very pertinent question arises that if the compensation is further enhanced by the appellate court, then what is the remedy with the landowners who have sought re-determination of compensation in terms of enhancement made by reference court. In order to take care of such eventualities, the Hon'ble Supreme Court of India in the case of Bharatsing S/o Gulabsingh Jakad and others v. State of Maharashtra and others (2018) 11 SCC 92 has categorically held that the Collector shall keep the application under section 28-A pending till the appeals against the award of reference court are finally decided as it is settled law that the re-determination can only be sought once that too based on the award passed by the Reference Court and not appellate court, therefore, application under section 28-A of Act of 1894 shall not be decided by the Collector till the pendency of the appeals in the superior courts.

As it is said law favours ones who are vigilant, even in context of pendency of application under section 28A of Act of 1894, the duty is also casted upon the landowner to seek appropriate remedies if the Land Acquisition Collector decided the application under section 28A of Act of 1894 even when appeal was pending against the award of Reference Court. Such land owner can file an application under section 28(3) of Act of 1894 to the Collector, requiring the matter to be sent to Court and in such eventuality provision of the Section 18 would apply and so as the limitation. If the landowner has failed to seek such remedy, at later stage he cannot agitate the LAC should have kept the application pending. This aspect has recently been clarified by the Hon'ble Supreme Court of India in the case of M/s Model Economic Township Ltd. v. Land Acquisition Collector SLP(C) No. 618 of 2018 decided on 26.02.2019.

Therefore, in view of the aforesaid pronouncement by the Hon'ble Supreme Court of India, it is clear beyond any cloud of doubt that once the person who failed to file either application for reference under section 18 of the Act of 1894 or application for re-determination of compensation based on award of Reference Court within the period of limitation provided under the respective provisions, cannot belatedly file such applications and delay cannot be condoned. Once it is the proposition of law, the logical corollary that follows is that such landowner would not be able to claim enhanced compensation even if other landowners would have been granted such benefit as the right of the landowner is time barred.

In such eventuality, a very pertinent question which arises is whether if the petitioner fails to avail statutory remedies for challenging award for seeking enhancement in compensation within limitation; can Article 226 of the Constitution of India be invoked for seeking enhancement in compensation? Since time and again the Hon'ble Supreme Court has emphasised that there is no possibility for condoning delay in filing either application for reference under section 18 of the Act of 1894 or application for redetermination of compensation under section 28A of the Act of 1894, it doesn't require a second guessing that even the answer to this question is in negative. The Hon'ble Supreme Court of India in the case of State of Karnataka v. Laxuman 2005 (8) SCC 709 while adjudicating upon the application of Section 5 limitation Act in filing application for reference under section 18 of the Act of 1894 held that no writ of mandamus can be issued to entertain such application after the expiry of the limitation.

Therefore, as a sequel of aforesaid discussion it can be clearly concluded that the person who fails to avail the statutory remedies as provided under section 18 or Section 28-A of the Act of 1894 and fails to file either application for reference under section 18 of the Act of 1894 or application for re-determination of compensation based on award of Reference Court within the period of limitation provided under the respective provisions, cannot belatedly file such applications and such delay cannot be condoned and even such enhancement in compensation cannot be sought by invoking Article 226 of the Constitution of India.