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2002 DIGILAW 415 (RAJ)

State of Rajasthan v. Amra Ram

2002-02-15

O.P.BISHNOI, RAJESH BALIA

body2002
JUDGMENT 1. - This appeal is filed against the order passed by learned Single Judge rejecting the application filed by the appellants under Section 5 of the Limitation Act in support of an appeal filed against the Award passed by the Addl. District & Sessions Judge No. 2, Jodhpur on 16.8.99 in Land Acquisition Reference Case No. 181/99. 2. The Misc. appeal presented before the Court was barred by time by 9 days. The learned Single Judge has rejected the application under Section 5, Limitation Act by holding that appellants have not explained the delay notwithstanding the Deputy Legal Remembrancer was left with sufficient time when the file was received by him but no explanation has been furnished for not filing the appeal in time. 3. We are of the opinion that in the facts and circumstances, keeping in view the principle laid down by the Supreme Court in 2000(6) SCC 133 the short delay in filing the appeal in the matters which affect the public revenue ought to be allowed by liberally construing the facts stated by the applicants as otherwise no lack of bonafide or a case of gross negligence appears from the circumstances. We, therefore, allow the application under Section 5 of the Limitation Act and order that the appeal filed before this Court is to be treated as properly filed. 4. At this juncture, learned counsel for the parties state that instead of remanding the case back for deciding on merit, the appeal itself be heard and decided as it raises a very short issue and no controversy on fact is involved. 5. As per request, we have heard the appeal on merit. 6. The land acquisition proceedings in question were initiated by issue of Notification under Section 4 of the Land Acquisition Act, 1894 which was published in Rajasthan Gazette dated 12th April, 1990. A declaration under Section 6 read with Section 17(4) and 9(1) of the Land Acquisition Act was also issued on 25th April, 1991 and the Award made by the Land Acquisition Officer was approved by the State Government on 18.10.93. No notice under Section 12(2) was given to the person interested and in whose favour award has been made. However, on an application under Section 18 being made for making reference by the persons aggrieved with the Award. Reference was made to the Court. No notice under Section 12(2) was given to the person interested and in whose favour award has been made. However, on an application under Section 18 being made for making reference by the persons aggrieved with the Award. Reference was made to the Court. The only ground on which additional claim was made was that while making the Award the amount indicated under sub-section (1A) of Section 23 a sum equal to 12% of the market value determined under Section 21 for a period of one year only was awarded, whereas such amount @12% p.a. ought to have been awarded for the period commencing from the date of Notification under Section 4 and ending with the date of Award made by the Collector or the date of taking possession of the land whichever is earlier. In addition to compensation determined under Section 23, solatium of 30% payable under Section 23(2) was not computed in respect of sum awarded under Section 23(1A). 7. The acquisition authorities have denied the claim raised by the claimants on account of non-inclusion of the aforesaid sums in the Award made by the Land Acquisition Officer. 8. It appears from the order passed by the learned Addl. District Judge that before him only claim which was pressed was about the determination of compensation about additional compensation payable under Section 23(1A) for the intervening period between initiation of proceedings and completion of proceedings either by making of award or by taking over the possession. No claim on account of solatium on amount payable under Section 23(1A) was pressed. 9. The Court taking into consideration the provisions of the Act and the two relevant dates namely of the publication of the Notification under Section 4 as 12th April, 1990 and the date on which the possession of the land in question was taken over by the State as 22nd Jan., 1993, made an award holding that the claimants were entitled in addition to amount determined under Section 23(1) an amount equal to @12% of the market value of the land w.e.f. 12th April, 1990 to 22nd Jan., 1993 in terms of provisions of Section 23(1A). 10. This Award has been challenged before this Court by filing this appeal. 11. So far as merit of the Award in allowing the amount under Section 23(1A) in addition to the market price is concerned, no challenge has been made. 10. This Award has been challenged before this Court by filing this appeal. 11. So far as merit of the Award in allowing the amount under Section 23(1A) in addition to the market price is concerned, no challenge has been made. Only contention urged before this Court is that as the respondent had accepted the amount of Award and the amount of the Award made by the Land Acquisition Officer had been paid, no reference was maintainable in view of provisions of Section 31(2) proviso II.From the order under challenge, we do not find any whisper of any such objection having been taken before the lower Court nor from reply to the claim placed before the District Court we find any such objection as to the non-maintainability of the reference because the amount of award made by the Land Acquisition Officer had been accepted. The provision is clear that acceptance of amount under award will preclude a person from raising a dispute by asking for reference operates only if the amount is not accepted under protest. We find that in the pleadings of the parties, no foundation has been laid for an enquiry whether the amount of award made by the Land Acquisition Officer has been accepted by the claimants and whether such amount has been accepted with or without protest. Acceptance of amount under award before making a reference and whether such acceptance of amount was under protest or not are all questions of fact, which could have been put to issue had any such objection been raised and the respondent had an opportunity to rebut the same. 12. In absence of necessary foundation in pleadings or even in contentions before the trial Court, it is not possible to pronounce upon the contentions raised by the learned counsel for the appellants in favour of the appellants. This being a question of fact cannot be permitted to be raised for the first time in appeal when no actual foundation was laid in the pleadings or in evidence.There being no error otherwise in the order passed by the learned Addl. District Judge, this appeal fails and is hereby dismissed.Appeal Dismissed. *******