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1999 DIGILAW 247 (GUJ)

Bai Shakriben Wd/o Late Melsingh Mangal v. Spl. Land Officer

1999-05-04

M.R.CALLA, R.P.DHOLARIA

body1999
JUDGMENT : M.R. Calla, J. It has been argued by Mr. Jitendra M.Patel for the present applicants that lands of the present applicants were acquired for establishment of a timber yard for the Municipal Corporation of Baroda after issuing notification under section 4 on 2nd January, 1975 and the notification under Section 6 on 25th December, 1975. The possession of the lands was taken on 6th April, 1976. The claimants claimed the compensation at the rate of Rs.5/- per sq.ft. but the Land Acquisition Officer passed the award granting compensation at the rate of 25 ps. to 0.35 ps per sq.ft. on 19th May, 1980. The claimants sought references before the District Court under Section 18 and the Reference Court by its order dated 20th August, 1983 awarded compensation at the rate of Rs.2.00 and Rs.2.50 per sq.ft. Against the Reference Courts' order dated 20th August, 1983, the State preferred First Appeals Nos.1034 to 1053 of 1984, i.e. including the present first appeals in which these Miscellaneous Civil Applications have been filed, i.e. the First Appeals Nos.1034/84 to 1044/84 and 1046/84 to 1050/84. After the dismissal of these First Appeals by the Division Bench of this Court on 22nd August, 1984, the Land Acquisition Act was amended on 24th September, 1984. The claimants then preferred applications in the nature of Review Application before the Reference Court under Order 47 Rule 1 claiming the benefit of the amended Act, i.e. Act No.68 of 1984 with particular reference to Section 23(2) and Section 28 of the Land Acquisition Act as amended. It appears that such applications were moved on 30th April, 1985. The Reference Court allowed the benefit of the amended provisions of sub-section 2 of Section 23 and Section 28 of the Act by its order on 17th January, 1987. Against this order dated 17th January, 1987 passed by the Reference Court, Baroda Municipal Corporation filed Special Civil Application No.113 of 1987 and the Division Bench by its judgment and order dated 30th August, 1990 set aside the order passed by the Reference Court on the ground that the said order had been passed by the Reference Court without hearing the Baroda Municipal Corporation and accordingly, the matter was remanded back to the Reference Court for decision afresh in accordance with law after hearing the parties. On 26th April, 1993 in the remanded proceedings, the Reference Court again allowed the applications and granted the benefit of the amended Act. The Corporation and the State then preferred First Appeals Nos.1303/93 to 1322/93, etc. and the Division Bench allowed the First Appeals filed by the Corporation and the State against the Reference Court's order granting the benefit of the amended Act to the present applicants in the remanded proceedings and the order dated 26th April, 1993 passed by the Reference Court was set aside. Against this order dated 11th October, 1995 passed by the Division Bench of this Court, Special Leave Petition was preferred before the Supreme Court being SLP No.4479/96 to 4510/96 (Civil Appeals Nos.8284/96 to 8315/96). The Supreme Court by its order dated 6th May, 1996 dismissed these appeals. In the order dated 6th May, 1996, the Supreme Court has observed that the amended provision would be applicable only to the proceedings if they were pending before the Collector or the Reference Court between 30th April, 1982 and September, 1984 but the decree passed in the instant case was allowed to become final. The Supreme Court has also observed that the question was as to whether it would be open to the Executing Court or the Reference Court to go behind the decree which became final so as to amend the decree by exercising the powers under Order 47 Rule 1 and Section 151 of Civil Procedure Code; that the Executing Court cannot go behind the decree and it would have been appropriate for the claimants to have gone in appeal and have the matter corrected, but unfortunately they did not claim the appellate remedy and allowed the decree to become final; the omission to award additional amount under section 23(1)-A, enhanced interest under Section 28 and solatium under section 23(2) are not clerical or arithmetical mistake crept in the award passed by the Reference Court but amounts to non-award. Under these circumstances, the Supreme Court held that the Reference Court was clearly in error in entertaining the applications for amendment of the decree and is devoid of the power and jurisdiction to award the amounts under sections 23(2), 23(1)-A and 28 of the Act. Under these circumstances, the Supreme Court held that the Reference Court was clearly in error in entertaining the applications for amendment of the decree and is devoid of the power and jurisdiction to award the amounts under sections 23(2), 23(1)-A and 28 of the Act. After the aforesaid decision dated 6th May, 1996 given by the Supreme Court, the applicants have moved the present Miscellaneous Civil Applications before this Court on 21st August, 1996 in the First Appeals Nos.1034/84 and others to which the reference has already been made herein above. 2. The learned counsel for the applicants has argued before us that the Supreme Court has only held that the Executing Court could not go behind the decree and, therefore, the order which was passed by the Reference Court on 26th April, 1993 as was set aside by the Division Bench of the High Court on 11th October, 1995 was correctly set aside. The learned counsel for the applicants has submitted that the order passed by the Reference Court on 26th April, 1993 was set aside by the Division Bench of the High Court on 11th October, 1995 on the basis of the Supreme Court judgment in the case of State of Maharashtra District Jalgaon reported in Judgment Today 1995(2) Supreme Court 583 and further that even if the applicants have been pursuing a wrong remedy by way of filing an application before the Reference Court, the present applications deserve to be entertained in view of the Supreme Court's observations. In the order dated 6th May, 1996, it was held that, "it would have been appropriate for the claimants to have gone in appeal and have the matter corrected. But unfortunately they did not claim of the appellate remedy and allowed the decree to become final". 3. This observation made by the Supreme Court only means that the present applicants allowed the order passed in First Appeals to attain finality and thus, the decree became final. After the amendment dated 24th September, 1984 in this Act, when the applicants moved the applications in the nature of review on 30th April, 1985 before the District Court, they could have very well availed the appellate remedy and sought the corrections claiming benefit according to the amendment dated 24th September, 1984. This course of action was not adopted by the applicants. This course of action was not adopted by the applicants. Now to say that merely because the decision that in such cases the Reference Court could not entertain the matters came in the year 1995 in the case of State of Maharashtra District Jalgaon (supra), notwithstanding the Supreme Court's order dated 6th May, 1996 applications of the present applicants be entertained in the appeals which were decided way back in 1984 does not stand to the reason. First Appeals were decided by this Court on 22nd August, 1984 and even thereafter the present claimants had two innings before this Court in the Special Civil Applications filed by the Municipal Corporation and the State against the order dated 17-1-1987 passed by the Reference Court and yet another order dated 26-4-1993 passed by the Reference Court and both these orders passed by the Reference Court were set aside by the Division Bench of this Court on 30th August, 1990 and 11th October, 1995 respectively. First time on the ground that the Baroda Municipal had not been heard and thereafter, in the remanded proceedings, when the order dated 26th April 1993 was passed by the Reference Court, the Division Bench of this Court set aside that order of the Reference Court also on the ground that the Reference Court could not have entertained the application which was moved by the applicants on the basis of the amendment dated 24th September, 1984 for review of a decree. 4. The learned counsel for the applicants has submitted that whether any observation has been made by the Supreme Court in their favour in the order dated 6th May, 1996 or not and notwithstanding the fact that the Supreme Court has not made any observation leaving it open for them to move the applications even now in the appeals which had been decided on 22-8-1984, it was open for the applicants to have moved these applications claiming the benefit of the amendment dated 18th September, 1984 in these First Appeals because the proceedings were pending before the Reference Court and again before the High Court between the period from 30th April, 1982 to 24th September, 1984-30th April, 1982 being the date on which the bill for amendment was introduced. It has also been submitted that in such matters it cannot be strictly said to be a review also because the applicants are only seeking the benefit of the amended provisions of the Act to which they became entitled subsequently and, therefore, merely because they have been pursuing the remedy before the wrong forum, they should not be deprived of the benefits to which they were otherwise entitled under the amended Act. They have failed to get the benefit of the amended Act merely because they approached the Reference Court instead of moving an application in the First Appeals which were decided by this Court on 22nd August, 1984 and failed to avail the remedy in appeal. 5. Be that as it may, the fact remains that these Misc. Civil Applications have been moved after a period of nearly 12 years from the date on which the First Appeals were decided. The learned counsel for the applicants has placed reliance on the decision of the Supreme Court in the case of Union of India v. Ragubir Singh, AIR 1989 SC 1933 . In this decision, all that has been laid down by the Supreme Court is that the benefit under the amended provisions of the Land Acquisition Act could be available only in those appeals which were decided by the High Court or the Supreme Court arising out of the awards passed by the Collector or the Court between the date of introduction of amended bill in Parliament and the date of its passing. Apart from the fact that this judgment has also been referred by the Supreme Court in its order dated 6th May, 1996 the question here is different. The question involved in the present case is not directly about the entitlement but a question of remedy which the applicants should have sought if at all they wanted to claim the benefit of the amended provisions of the Act and so far as the remedy is concerned, the fact remains that the applicants did not avail the remedy before the right forum and went on pursuing the same throughout till 1996. The learned counsel for the applicants has also placed reliance on Shakuntalabai v. State reported in AIR 1986 Bombay page 308. The learned counsel for the applicants has also placed reliance on Shakuntalabai v. State reported in AIR 1986 Bombay page 308. In this decision, the Bombay High Court has held that for the purpose of claiming the benefit of the amended provisions of the Act, such benefit can be claimed by the applicants even in appeal filed by the State whether cross objections or cross appeals are filed or not by the land owners. This too again is not the direct subject matter of controversy because even if it is taken that the land owners are entitled to claim the benefits arising from the amended provisions if the proceedings are pending at appellate stage on the relevant date or the same were pending between 30-4-1982 and 24-9-1984 at their instance or at the instance of the State and, therefore, even if we do not reject these applications on the ground that there was no appeal or cross objection or cross appeal at the instance of the claimants and that the First Appeals which had been decided by the High Court had been filed by the State, the question is as to why the Review Applications are to be entertained now when Supreme Court has observed in its order dated 6th May, 1996 in no uncertain terms that the present claimants failed to go in appeal for getting the matter corrected and did not claim in the appellate remedy and allowed the decree to become final. 6. The learned counsel for the applicants also placed reliance on a Division Bench decision of Punjab and Haryana High Court in the case of Matu Ram and others v. Union Territory of Chandigarh, AIR 1989 Punjab and Haryana page 95. In this case, the Division Bench of the Punjab and Haryana High Court has observed that the application requiring the Court to discharge its obligation by giving the benefit under sections 23(2) and 28 of the Principal Act, as amended by Act 68 of 1984, cannot be termed as an application for review sub-section (2) of Section 30 clearly implies that the benefit of sub-section (2) of Section 23 and Section 28 has to be given by the Court even in those appeals which had been decided by it after April 30, 1982 and before coming into force of Act 68 of 1984, i.e. 24-9-1984. It has been then observed that the section has not fixed any time-limit for this purpose and in the circumstances, the application moved requiring the court to discharge its statutory obligation cannot be said to be barred by limitation merely because it has not been filed as an application for review within 30 days of the date of the judgment. It may be pointed out that in the case before the Punjab and Haryana High Court, the applications had been filed after about 2 years whereas in the instant case, the applications have been filed after the period of 12 years, i.e. one full decade and that too, after the Supreme Court's order dated 6th May, 1996 whereby the appeals of the present applicants have been dismissed. In this view of the matter, even if it is found that the applications are essentially not the applications in the nature of review and that these applications may be treated under Section 151 of Civil Procedure Code to which no law of limitation applies, we find that in the facts and circumstances of this case, looking to the delay of a period of about 12 years and with due regard to the observation made by the Supreme Court in the order dated 6th May, 1996, these Misc. Civil Applications do not deserve to be entertained. Whether the law of limitation applies or not, a party has to approach the Court within a reasonable time. The period of 12 years is sought to be explained by the learned counsel for the applicants by saying that throughout the period, they were pursuing the remedy before the Reference Court and they have pursued that remedy even upto the Supreme Court with regard to the order which was passed by the Reference Court in their favour twice which was set aside by the High Court twice and ultimately they, having lost before the Supreme Court have preferred these applications in the year 1996 in the First Appeals which were decided by this Court way back in 1984. In our considered opinion, the applications which have been moved cannot be entertained at this stage after a period of one decade, even if it is found that they have been pursuing a wrong remedy. In our considered opinion, the applications which have been moved cannot be entertained at this stage after a period of one decade, even if it is found that they have been pursuing a wrong remedy. It depends upon the facts and circumstances of each case and no rule of universal application can be said to have been laid down by any Court that in all the cases where the party has been pursuing a wrong remedy, the applications should not be rejected on the ground of delay. The learned counsel for the applicants has also referred to a decision of the Supreme Court in the case of Ram Ujarey v. Union of India reported in AIR 1999 S.C. 309 and has submitted that in this case, a suit had been filed within time but before a wrong forum, i.e. before the Court which had no jurisdiction, the Court returned the plaint for presentation before the appropriate bench of the Central Administrative Tribunal and, therefore, the Court held that the limitation runs from the date from which the plaint was returned and made available to party and not from the date of the basic impugned order, and in these circumstances, the delay in re-filing plaint before an appropriate Bench for a period of nearly 18 years was condoned. In this regard, we may straightaway observe that this order was passed by the Supreme Court in the matter of reversion of Khalasi in an appeal arising out of the decision of the Central Administrative Tribunal in the facts of that case. By an order dated 18-4-1980, the appellant was reverted to the post of Khalasi in Carriage and Wagon Department. It was this order which was challenged by the appellant in Regular Suit No.294 of 1980 which was decreed by the VIIIth Additional Munsif, Saharanpur, on 13-11-1981. This judgment was challenged in appeal, filed by the Railway Administration, in the Court of the District Judge, Saharanpur which was later transferred to the Court of IVth Additional Civil Judge, Saharanpur. While the appeal was pending in that Court, Central Administrative Tribunal Act, 1985 came into force and the appeal stood transferred to the Central Administrative Tribunal, Allahabad. This judgment was challenged in appeal, filed by the Railway Administration, in the Court of the District Judge, Saharanpur which was later transferred to the Court of IVth Additional Civil Judge, Saharanpur. While the appeal was pending in that Court, Central Administrative Tribunal Act, 1985 came into force and the appeal stood transferred to the Central Administrative Tribunal, Allahabad. The Tribunal allowed the appeal and set aside the judgment and decree passed by the trial Court as it was of the opinion that the suit had not been filed in the proper Court and consequently directed the plaint to be returned for presentation to the proper Bench of the Tribunal for a fresh decision. The appellant then filed the claim petition under Section 19 of the Central Administrative Tribunals Act, 1985 before the Tribunal at Chandigarh which, by its judgment dated 28-11-1995, dismissed the petition. This judgment dated 28-11-1995 passed by the Tribunal was under challenge before the Supreme Court. The Supreme Court in the facts of that case took the view that it will be harsh to drive the party out of litigative process which was started 18 years ago simply on the ground of limitation. In our opinion, this judgment is of no avail to the applicants in the facts of the present case. Besides this, we have noticed that even after the amendment dated 24th September, 1984, the claimants had filed the applications before the District Court as late as in April, 1985, i.e. after a period of nearly 7 months from the date of amendment and again the present applications were filed in August, 1996 before this Court whereas the Supreme Court had decided the matter on 6th May, 1996 and there is no observation by the Supreme Court in favour of the present applicants in the order dated 6-5-1996 that even now the applicants may file such application in 1996 in the First Appeals decided in 1984 or that it will be open for them to move such applications now after 12 years because the time was lost by them in pursuing a wrong remedy. 7. In the facts and circumstances of this case, we are not inclined to entertain these applications at this stage after a lapse of a period of one decade, i.e. about 12 years. All these Misc.Civil Applications Nos. Nos.1503/96 to 1518/96 are hereby rejected. Applications dismissed.