1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No. 131 of 1999 Date of Decision: 2nd June, 2009 H.P.Housing and Urban Development Authority Appellant Versus Santosh Kumar and others Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellant: Mr.Chander Narayan Singh, Advocate. For the respondents: Mr.Bhupender Gupta, Sr. Advocate, with Mr.Neeraj Gupta, Advocate. Sanjay Karol, J. (Oral) Appellant-Himachal Pradesh Housing and Urban Development Authority has assailed the award dated 21.4.1999 passed by the District Judge, Solan, H.P. in Land Reference case No. 66-S/4 of 94/93. A large chunk of land was acquired by the State for public purpose, namely, setting up of a Housing Colony in District Solan, H.P. Notification under Section 4 of the Land Acquisition act, 1894 (for short, the Act) was issued on 24.7.1970. The Collector Land acquisition ultimately passed Award No.1 dated 21.6.1973, under Section 11 of the Act. Claimants herein felt satisfied with the Award, but, however, other land owners/interested persons whose land was also acquired under the said Award preferred Land Reference petitions under Section 18 of the Act. One such land Reference Petition No.15-S/4 of 1976 was decided by Whether the reporters of Local Papers are allowed to see the Judgment? 2 the District Judge vide award dated 21.5.1991. Under the said award the compensation payable in terms of the award passed by the Collector was enhanced by assessing the market value of the acquired land to be @ Rs.4000/- per bigha. Consequent to the said award, the claimants herein filed an application under Section 28-A of the Act before the Land Acquisition Collector seeking the same amount of compensation as was so awarded in the aforesaid Award. The Collector, however, on the ground of limitation, rejected the application in terms of orders dated 18.9.1993. It was observed that the application was filed beyond the period of 90 days as stipulated under Section 28-A of the Act. Feeling aggrieved, the claimants filed an application under Section 28-A(3) of the Act before the District Judge. The application was opposed on the ground that the Collector had rightly come to the conclusion that the claimants original application filed under Section 28-A was barred by limitation as having been filed beyond the period of 90 days, hence the application was sought to be dismissed. Based on the pleadings of the parties, the Court below framed the following issues:- “1. Whether the order of the Collector dismissing application under Section 28A of the Land Acquisition Act on account of limitation is wrong and liable to be reversed after accepting the reference? 2. Whether the land of the present petitioners was also acquired under the same notification under Section 4 of the Land Acquisition Act for which amount was enhanced by the learned District Judge on reference? 3. Final Order. 3 Opportunity to lead evidence was afforded to the parties and the claimants examined Shri Ritesh, Clerk of the office of Deputy Commissioner, Solan (PW-1) and also examined Shri Shyam Lal, claimant (PW-2). In rebuttal the respondents examined Shri Ramesh Kumar, (RW-1) diary clerk posed in the office of District Collector and Shri A.K.Kalta (RW-2) official of the H.P. Housing and Urban Development Authority. Appreciating the material on record the Court below came to the conclusion that the claimants’ application was within limitation and the Collector had erred in coming to the conclusion that the same was barred by time. The claimants land was also acquired under the same notification. Hence based on the Award dated 21.5.1991 passed in land reference petition No. 15-S/4 of 1976, which was proved on record as Ext.R-2, the Court below held the claimants herein also entitled for the enhanced amount of compensation in terms of the said award. The claimants were further held entitled to all statutory benefits under the Act, in accordance with the law. The appellant has assailed the impugned award on the ground that (i) The application under Section 28-A of the Act was barred by limitation having been filed on 16.12.1991 and not 6.9.1991. (ii) During the pendency of the application filed under Section 28-A(3) of the Act, the claimants subsequent applications filed under Section 28-A stood rejected in terms of award/order dated 1.4.1998 (Ext.R-3) passed by the District Judge, Solan, in land Reference Case No.30-S/4 of 1997 and award/order dated 1.4.1998 (Ext.R-4)passed by District Judge, Solan, in 4 Petition No.29-S/4 of 1997. Hence, the instant application was barred by res judicata; and (iii) In any event, having come to the conclusion that the petition was not barred by limitation, the Court below ought to have remanded the matter back to the Collector for adjudication on merits. Award (Ext.R-2) is dated 21.5.1991. Undisputedly, on 1.7.1991, the claimants applied for the certified copy of the same which was attested on 18.7.1991 and delivered to them on 27.7.1991. According to the claimants, they filed the application under Section 28-A of the Act on 6.9.1991, which is evident from the endorsement given by Shri Ritesh (PW-1), on a copy of the application exhibited as Ext.PW-1/B. Importantly PW-1 is the Clerk in the office of the District Collector. He has categorically deposed that the petition was received by him on 6.9.1991 and that he had issued receipt on the copy which was kept with the claimants. He was extensively cross-examined by the appellant herein, however, there is nothing which would even cast a doubt about the truthfulness of his testimony. I see no reason to disbelieve him. An attempt was made by the appellant to prove through Shri Ramesh Kumar (RW-1), that the receipt was manipulated by the claimants in league with Shri Ritesh. This did not find favour with the Court below for the reason that the said Shri Ramesh Kumar had himself admitted that no register was maintained in the office of the Deputy Commissioner, wherein the petitions filed are diarized. This is also evident from the application Ext.PW-1/A, perusal of which would show that it does not bear the diary number. The only endorsement on the same is that of the Collector made on 16.12.1991, ordering registration of the case and summoning the record. Who received the same in the office on 16.12.1991 and how it was placed before the Collector on the same date is 5 neither evident from the record nor proved so by the appellants herein. Further there was no evidence to conclusively prove the factum of manipulation by the claimants. The claimants sufficiently proved the date of filing being 6.9.1991 and not 16.12.1991 as alleged by the appellants. From the record, it could not be shown as to whether the application, alleged to have been received by the appellant on 16.12.1991 in fact was diarized or any proper procedure was adopted by the office of the Collector either before or after receiving the said application. The submission that the application was in fact presented before the Presiding Officer on 16.12.1991, when the order was passed on the same does not appear to be borne out from the record. The Court below has deprecated the alleged procedure adopted by the office of the Collector in taking the petitions on record without maintaining proper diary or procedure. There is no error in the same. The contention that the claimants had manipulated the receipt of the petition on 6.9.1991, appears to be an excuse and an after- thought, not borne out from the record and taken only to defeat the legitimate rights of the claimants. Admittedly, no action has been taken by the appellant against Shri Ritesh, who is alleged to have issued the receipt dated 6.9.1991. The certified copy of the award dated 21.5.1991 was received on 27.7.1991 and the application was filed on 6.9.1991, hence the same is within the stipulated period of 90 days. I find no infirmity in the finding returned by the Court below on the said point. 6 The claimants’ application under Section 28-A, was rejected by the Collector in terms of order/award dated 18.9.1993. Aggrieved by the same, the claimants filed an application under Section 28-A(3) of the Act, hence the Court below rightly determined the compensation payable to the claimants by applying the provisions of Section 18 to Section 28 of the Act. I find no infirmity with respect to the same. The claimants rights had to be adjudicated at the earliest. The acquisition proceeding pertains to the year 1970. It is rather unfortunate that even after 40 years the claimants have not been able to get their legitimate and rightfull compensation. It is a matter of record that large number of petitions under Section 18 of the Act were filed by various land owners claiming enhancement of compensation arising out of the same acquisition proceedings. One such petition was decided by the District Judge in terms of award dated 21.5.1991 (Ext.R-2). Relying upon the same the other land reference petitions were subsequently decided by the District Judge in terms of another award dated 30.12.1994. Seeking enhanced compensation, based on the same the claimants herein alongwith other co- owners, under legal advice, filed another reference petition under Section 28A(3) of the Act, which stood rejected vide award dated 1.4.1998 (Ext.R- 3). Importantly, the District Judge dismissed the land reference petition on the ground of limitation by relying upon the judgment of the Apex Court in Babua Ram and others vs. State of U.P. and another, (1995) 2 SCC 689. The relevant portion of the said award is reproduced as under:- 7 “Thus the Hon’ble Supreme Court has set the matter at rest about period of limitation of three months for purpose of Section 28-A of the Act. It has been clearly held that where successive awards are made by the civil courts at different times in respect of the lands covered by the same notification will not furnish separate cause of action for making application under Section 28(A)3 of the Act. The limitation of three months under Section 28-A of the Act expires in respect of the earliest award by efflus (sic, afflux) of time. None of the later awards would revive the lapsed limitation. In the present case also the earlier limitation of three months commenced on the basis of award dated 3.4.1991 and this limitation which had expired could not be revived by subsequent award dated 31.12.1994. In the aforesaid circumstances, the learned Collector has taken right view of the matter and the law and the order does not call for any interference by this Court. The reference, as such, is not maintainable. Point is answered accordingly.” Award dated 1.4.1998 (Ext. R-3) is also on the similar lines. Admittedly the said application was decided only on the ground of limitation. The Apex Court in Union of India and another vs. Hansoli Devi and others, (2002) 7 SCC 273, has held that expression “did not make an application” as observed by the Supreme Court in Union of India vs. Pradeep Kumar, (1995) 2 SCC 736, would mean, did not make an effective application. So, when an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tatamount to an effective application and consequently the rights of such applicant emanating from some other 8 reference being answered to move an application under Section 28-A cannot be denied. In this view of the matter dismissal of the claimants’ subsequent application under Section 28-A in terms of Ext.R-3 and Ext.R- 4 would not amount to adjudication or determination of the claimants’ application on merit and thus would not act as res judicata. Importantly, the said applications were filed during the pendency of the present proceedings. In fact the Court ought to have rejected the applications on the ground of pendency of the earlier proceedings. Unfortunately, the parties did not bring the factum of pendency of the instant application to the Court. Be that as it may be, the dismissal of the subsequent applications have no bearing at all. For the aforesaid reasons, the present appeal is dismissed. 2nd June, 2009 (Sanjay Karol) (C) Judge.