SPECIAL LAND ACQUISITION OFFICER JUNAGADH v. MOHMED HUSSAINKHANJI NIZAMMOHMED KHANJI
1993-06-09
C.V.JANI
body1993
DigiLaw.ai
C. V. JANI, J. ( 1 ) THIS Revision Application under section 115 of the Code of Civil Procedure filed by the State of Gujarat and its Land Acquisition Officers arises from the judgment and order of the learned Extra Assistant Judge Junagadh in Reference Application No. 8 of 1987 granting the benefit of amendments made in the Land Acquisition Act 1894 in the year 1984 to certain acquisition proceedings which were pending before the Reference Court between 30. 4. 82 and 20. 4. 84. ( 2 ) THE opponent Mohmedhussainkhanji Nizammohmed was the claimant in respect of the acquisition of land bearing survey no. 26 situated in the sim of village Patad in Bhesan Taluka of Junagadh. The notification under section 4 of the Act was published on 30. 8. 79 and the Land Acquisition Officer made his award on 13. 10. 81. At the instance of the claimant reference was made to the District Court Junagadh which declared its award on 28. 2. 84. The provisions regarding rate of awarding interest and solatium were amended by Act No. 68 of 1984 and benefit of higher rate of interest and solatium was given to the proceedings for land acquisition pending on 30. 4. 82 also even though the Amendment Act of 1984 came into effect retrospectively from 30. 4. 82 which was the date of introduction of the Land Acquisition (Amendment) Bill in the house of People. The claimant therefore submitted Review Application no. 8 of 1987 for modifying the award in light of the amended provisions of the Land Acquisition Act. Since there was a delay in submitting such application for review he also submitted an application for condonation of delay which came to be granted by the Reference Court. Ultimately after considering the judgments of different High Courts as well as Supreme Court the learned Extra Assistant Judge Junagadh held that the Review application under Order XLI Rule 1 of Code of Civil Procedure was maintainable and section 30 of the Land Acquisition (Amendment) Act 1984 was applicable to his case. The learned Judge therefore modified the award dated 20. 4. 84 by giving benefit of higher rate of interest on the market value under section 23 (1a) and higher rate of solatium under section 23 (2) of the Act.
The learned Judge therefore modified the award dated 20. 4. 84 by giving benefit of higher rate of interest on the market value under section 23 (1a) and higher rate of solatium under section 23 (2) of the Act. This judgment and order of the learned Extra Assistant Judge Junagadh is being challenged in this Revision Application. ( 3 ) THE only submission made by Mr. N. N. Pandya learned A. G. P. appearing for the applicants was that the award made by Reference Court on 28. 2. 84 could not be modified by giving the benefit of the amendment in the Land Acquisition Act which was placed on statute book subsequently i. e. 24. 9. 1984 and that in such cases Review Application was not competent. This submission has to be rejected on two counts. Order XLVII Rule 1 of the Code of Civil Procedure enables an aggrieved person to apply for a review of judgment of the Court if from the discovery of an important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made against him. Admittedly in the present case the amended provisions were not enacted when the Reference Court made its award on 28. 2 and it was therefore competent for the claimant to apply for review of the amendment in the Land Acquisition Act and in view of the retrospective effect given by section 30 of the Amendment Act 1984 The relevant portion of section 30 reads as under:30 Transitional provision- (1) The provisions of sub-section (1-A) of section 23 of the principal Act as inserted by Cl. (a) of sec.
(a) of sec. 15 of this Act shall apply and shall be deemed to have applied also to and in relation to (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April 1982 (the date of introduction of the Land Acquisition (Amendment) Bill 1982 in the House of People) in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date whether or not an award has been made by the Collector before the commencement of this Act. (2) The provisions of sub-section (2) of section 23 and section 28 of the principal Act as amended by Clause (b) of section 15 and section 18 of this Act respectively shall apply and shall be deemed to have applied also to and in relation to any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act later than 30th day of April 1982 (the date of introduction of the Land Acquisition (Amendment) Bill 1932 in the House of the People) and before the commencement of this Act. ( 4 ) MOREOVER the provisions of sub-section (1a) and sub-section (2) introduced in section 23 by amendment imposes a duty on the court to award higher rate of interest and higher rate of solatium at the time of awarding compensation in respect of the acquisitions which are also covered by the transitional provisions of section 30. Thus irrespective of any motion for review the Court was bound to award higher rate in view of the amended provisions. ( 5 ) THE retrospectivity of sections 23 (1a) and 23 has been considered time and again by the Supreme Court and it has been held that if the award of the Land Acquisition Officer or of the Reference Court is made between 30. 4. 82 and 20. 9 the provisions of sub-section (1a) of section 23 and the provisions of sub-section (2) of section 23 and section 28 would also be applicable.
4. 82 and 20. 9 the provisions of sub-section (1a) of section 23 and the provisions of sub-section (2) of section 23 and section 28 would also be applicable. In Union of India and another vs. Zora Singh and others a Bench of three learned Judges of the Supreme Court held that section 23 (1a) as introduced by the Land Acquisition (Amendment) Act 1984 obliges the Court deciding reference under section 18 pending on September 24 1984 to give the benefit of section 23 (1a) even where Collector had made his award under section 11 before April 30 1982 but where Collector as well as Reference Court made their respective awards before April 30 1982 and if appeal is pending on September 24 1984 the appellate Court cannot grant additional compensation under amended provisions. A bench of two learned Judges of the Supreme Court has disagreed with the judgment in Zora Singh (Supra) in K. S. Pariapoornan vs. State of Kerala 1992 (1) SCC 684 while considering a case in which the award of the Collector was made prior to April 30 1982 but Reference Court gave its decision on or after September 24 1984 Thus there is no disagreement so far as cases in which an award is declared either by the Land Acquisition Officer or by the Reference Court after 30th April 1982 but before 24. 9. 84. ( 6 ) A Division Bench of this Court decided to alter its own judgment and award in Lalbhai Tulsibhai Patel vs. Additional Special Land Acquisition Officer Ahmedabad 1985 G. L. H. 149 on 21. 1. 1985 when the amended provisions of the Land Acquisition Act were brought to its notice after the judgment was dictated in open court on 15 November 1984 the date before which the amendment was already put on the statute book and had come into force. The present case stands on a stronger footing inasmuch as the judgment and award of the Reference Court were delivered on 28. 2 when the amendment Act No. 68/1984 was conceived but not born.
The present case stands on a stronger footing inasmuch as the judgment and award of the Reference Court were delivered on 28. 2 when the amendment Act No. 68/1984 was conceived but not born. If the High Court can alter its own judgment when the provisions of the Amendment Act are brought to its notice after dictation or the judgment and award in the open court the reference court also can certainly review its judgment and award when such provisions are brought to its notice by submitting an application in that behalf. The principle of law laid down in the amended provisions has to be applied equally to all cases and its benefits cannot be denied in particular cases by placing reliance on technicalities or by linguistic gymnastics. The submission therefore of the learned Assistant Government Pleader-both on maintainability of the review application and on the applicability of the amended provisions of the Land Acquisition Act has to be rejected. ( 7 ) IT cannot therefore be said that the order passed by the learned Extra Assistant Judge Junagadh in review application no. 8 of 1987 was without jurisdiction or in violation of any legal provisions. No other point was urged. ( 8 ) THE Revision Application is therefore rejected. Rule is discharged. Interim relief is vacated and the amount deposited by the applicants in the Court will abide by the modified award made by the learned Extra Assistant Judge Junagadh in Review application no. 8 of 1987. Revision Application Rejected. .