1 201 fa.1097.92 - Wadala (Section 28-A) ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1097 OF 1992 The State of Maharashtra. ... Appellant Versus Smt. Shilavanti Daulatsingh Madan, since deceased by her legal heirs and representatives: 1-a) Krishna Avtar Madan and others. ... Respondents ----- Mr. A.R.Patil, AGP for the Appellant / State. None for the Respondents. ----- CORAM : A.S.OKA, J. DATE : 08 th August, 2011. ORAL JUDGMENT: 1 Called out for final hearing. Heard the learned AGP appearing for the Appellant. None appears for the Respondents. 2 The challenge in this appeal is to the judgment and award dated 8 th October, 1991 passed by the learned Joint District Judge Nasik in a reference under Section 28 (A-3) of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”). The land subject matter of acquisition is plot No.7 out of Survey No.119/A/2 2 201 fa.1097.92 - Wadala (Section 28-A) admeasuring 715.04 square meters situated at Wadala, Taluka and District Nasik. The award under Section 11 of the said Act was published on 21 st May, 1982. On 8 th October, 1986, the predecessor of the Respondents accepted the compensation amount payable under the said award under protest. On the basis of the judgment dated 19 th April, 1985 passed by the Reference Court in Land Acquisition Reference No.88 of 1983, an application was made by the predecessor of the Respondents to the Special Land Acquisition Officer on 1 st December, 1986 for redetermination of the market value in accordance with Sub-Section (1) of Section 28-A of the said Act. The Special Land Acquisition Officer by a communication dated 5 th January, 1987 rejected the said application on the ground that the same was not preferred within the stipulated period. The predecessor of the Respondents applied for a reference under Section 28(A-3) of the said Act for seeking enhancement in compensation. By the impugned judgment and award, the said reference has been partly allowed by granting enhancement in market value. 3 201 fa.1097.92 - Wadala (Section 28-A) 3 The first submission of the learned AGP appearing for the Appellants is that the reference under Sub-Section (3) of Section 28-A of the said Act was not competent as there was no award made by the Collector in terms of Sub-Section (2) of Section 28-A of the said Act. He submitted that as there was no award made under Sub-Section (2) of Section 28-A, there was no occasion to entertain a reference under Sub-Section (3) of Section 28-A of the said Act. He submitted that as the application for redetermination made under Sub-Section (1) of Section 28-A of the said Act was barred by limitation, the reference was not competent. He submitted that the Reference Court has committed an error inasmuch as the period of limitation for filing an application under Sub-Section (1) of Section 28-A begins to run from the date of the award in a reference under Section 18 of the said Act on the basis of which redetermination was sought. He submitted that the date of knowledge cannot be the starting point. He submitted that the application ought to have been filed within a period of three months from 19 th April, 1985, but the same was filed in December 1986. He, 4 201 fa.1097.92 - Wadala (Section 28-A) therefore, submitted that the impugned award is illegal. 4 I have carefully considered the submissions. Perusal of the record shows that by letter dated 5 th January, 1987 (Exhibit – 19 ), Special Land Acquisition Officer informed the predecessor of the Respondents that the application under Sub-Section (1) of Section 28- A was barred by limitation. Thereafter, a reference was sought under Sub-Section (3) of Section 28-A of the said Act. Section 28-A of the said Act reads thus: “[28A. Re-determination of the amount of compensation on the basis of the award of the Court. – (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 under Section 11, the persons interested in all the other land covered by the same notification under Section 4, subsection (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 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 them 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 5 201 fa.1097.92 - Wadala (Section 28-A) award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under subsection (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.]” 5 On plain reading of the provisions of Section 28-A of the said Act, an application for reference under Sub-Section (3) of Section 28-A of the said Act is competent only when there is an award made under Sub-Section (2) of Section 28-A of the said Act. In the present case, there was no award made under Sub-Section (2) of Section 28-A of the said Act and the application for redetermination of the compensation under Sub-Section (1) of Section 28-A was rejected on the ground of bar by limitation. In absence of any award made under 6 201 fa.1097.92 - Wadala (Section 28-A) Sub-Section (2) of Section 28-A, the reference application under Sub- Section (3) of Section 28-A was not at all competent. The remedy of the predecessor of the Respondents was to challenge the order passed by the Special Land Acquisition Officer on 5 th January, 1987 in accordance with law. 6 In the present case the application under Sub-Section (1) of Section 28-A of the said Act was made by the predecessor of the Respondents before the Special Land Acquisition Officer on 1 st December, 1986 on the basis of the award made under Section 18 of the said Act on 19 th April, 1985. The case made out by the predecessor of the Respondents seems to be that the predecessor of the Respondents was not aware of the said award dated 19 th April, 1985. On plain reading of Sub-Section (1) of Section 28-A of the said Act, time begins to run from the date of the award under Section 18 of the said Act. What can be excluded is only the period required for obtaining a certified copy of the award. There is no provision for condonation of delay in filing application under Sub-Section (1) of 7 201 fa.1097.92 - Wadala (Section 28-A) Section 28-A of the said Act. Therefore, the Reference Court has committed an error by holding that the said application was within limitation. Even assuming that the application under Sub-Section (1) of Section 28-A of the said Act was competent, as there was no award made under Sub-Section (2), in any event, the Reference was not competent. In fact, as the reference was not competent, there was no occasion for the learned Judge to go into the merits. 7 Hence, the impugned award will have to be quashed and set aside only on the ground that the reference was not competent. 8 Hence, I pass the following order: i. The impugned judgment and award dated 8 th October, 1991 is quashed and set aside and Land Acquisition Reference No.222 of 1987 stands dismissed with no order as to costs ; and ii. The appeal is allowed on above terms with no order as to costs. [ A.S.OKA, J ]