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2011 DIGILAW 503 (GUJ)

KANTIBHAI NANUBHAI PATEL v. DEPUTY COLLECTOR

2011-07-01

G.B.SHAH, V.M.SAHAI

body2011
JUDGMENT 1. The short question that arise for consideration in this petition is whether a second application under Section 28-A of the Land Acquisition Act,1894 is maintainable ? 2. The brief facts of the case are that the petitioners are the owners of the land survey no. 298/1 admeasuring 13557 sq.mtrs. situated at village Kavas, Taluka: Choryasi, District: Surat. The land of the petitioners was acquired by the State Government by issuance of Notification under Section 4 of the Land Acquisition Act,1894 (for short "Act") on 4.6.1986. The declaration under Section 6 of the Act was published on 4.5.1987 and the Award under Section 11 of the Act was passed on 5.7.1989 and compensation at the rate of Rs. 7.00 per sq. mtr. was awarded. The petitioners' father did not make any application for reference under Section 18 of the Act. However, some other person whose land was acquired by the same notification, made a reference under Section 18 of the Act which was ultimately decided in Land Reference case no. 84 of 1989 and the amount of compensation was enhanced to Rs. 20/- per sq.mtr. by the judgment dated 30.9.1996 by the Reference Court. The father of the petitioners Nanubhai Narsinhbhai made an application under Section 28-A of the Act on 27.5.1999 on the basis of the award passed in Reference case no. 84 of 1989. The Reference Application filed under Section 28-A was rejected as time barred. The father of the petitioners did not challenge the order passed under section 28-A of the Act in higher forum. Therefore, the order dismissing Reference Application under section 28-A filed by the petitioners' father became final. 3. With regard to the same acquisition, Reference case no. LRC No. 132 of 1989 was decided on 26.11.2010. On the basis of this award dated 26.11.2010, since the father of the petitioners had died and the petitioners were their heirs and succeeded to the property, they made an application under Section 28-A of the Act for enhancement of compensation on 13.1.2011. This application of the petitioner has been rejected within two weeks without hearing the petitioner by the order dated 27.1.2011 which has been challenged by the petitioners in this petition. 4. This application of the petitioner has been rejected within two weeks without hearing the petitioner by the order dated 27.1.2011 which has been challenged by the petitioners in this petition. 4. For better understanding of the case, it is necessary to extract Section 28-A(1) of the Act as under: 28-A.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, sub-section (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 section18, 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 award was pronounced and the time requisite for obtaining a copy of the award shall be excluded." Section 28-A provides a substantive right to a person interested of making a representation who might not have made a reference earlier under section 18 of the Act to get benefit of enhanced compensation which other similar situated persons could get. The only restriction placed under the aforesaid provision is that an aggrieved person shall make an application for reference within three months from the date of the award of the Court in respect of the neighbouring land under the same notification on the basis of which the re-determination of higher compensation is claimed. Section 28-A gives a right to a person to move one application for reference within a period of three months. The application was filed under section 28-A by the father of the petitioners in the year 1999 which was rejected as time barred. The question arises is as to whether a second application can be moved by the person aggrieved if another award is subsequently made with regard to the land under the same notification. The application was filed under section 28-A by the father of the petitioners in the year 1999 which was rejected as time barred. The question arises is as to whether a second application can be moved by the person aggrieved if another award is subsequently made with regard to the land under the same notification. The Apex Court in Union of India v. Pradeep Kumari AIR 1995 SC 2259 has held that ordinarily an application can be filed for the purpose only once, but has added that it had to be a valid application. 5. In the instant case, the father of the petitioners had made an application in the year 1999 which was rejected as time barred, the application was a valid application but it was filed with delay. The rejection of the application moved by the father of the petitioners was not challenged by the father or by the petitioners in higher forum, the order became final and binding between the parties. The petitioners after a subsequent award given in the year 2010 with regard to the same notification and after the death of their father, have moved a second application under section 28-A claiming higher compensation. It has been settled by the Apex Court that where more than one awards are passed by the reference court on different dates in respect of the lands covered by the same notification, then period of limitation of three months stipulated in section 28-A would be computed from the date of subsequent or latest award and not by the date of earlier award.{See: Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector, JT (1996) 10 SC 573 and State of Tripura and another v.Roopchand Das and others (2003) 1 SCC 421 }. The bare reading of section 28-A makes it clear that the aggrieved person can make an application for a reference under section 28-A if he has not made a reference earlier under section 18 of the Act. The Act provides for making one application which was moved by the father of the petitioners. After the death of the father, the petitioners stepped into the shoes of their father. The Act provides for making one application which was moved by the father of the petitioners. After the death of the father, the petitioners stepped into the shoes of their father. The section does not provide for moving a second application either on the ground that the first application has been rejected as time barred or on the ground that subsequent award had been made which entitles the person aggrieved to file another application. The enforceable right to reopen a proceeding which has attained finality must exist in this statute itself. The right to move a second application under section 28-A must expressly be provided by the statute. Such a right being a substantive one, cannot be sought to be found out by implication nor the same can be read in the statute. We are of the considered opinion that the petitioners cannot invoke the right of moving a second application under section 28-A though no such right is provided by section 28-A. The provisions of section 28-A are plain and unambiguous. The legislative intent is clear that only one application can be filed. Therefore, the second application filed by the petitioners on the same cause of action under section 28-A was not maintainable and has rightly been dismissed by the respondents. 6. The next question arises is whether principle of res judicata would apply where the application moved by the father of the petitioners under section 28-A on 27.5.1999 has been rejected as time barred and the order became final as it has not been challenged in the higher forum. This question is covered by the decision of the Apex Court in M.Nagabhushana vs. State of Karnataka and others (2011) 3 SCC 408 in paragraphs 12,13 and 18 held as under: "12. The principles of res judicata are of universal application as they are based on two age-old principles,namely interest reipubllicae ut sit finis litium which means that it is in the interest of the State that there should be an end to litigation and the other principle is nemo debet bis vexari, si constant curiae quod sit pro una et eademn causa meaning thereby that no one ought to be vexed twice in a litigation if it appears to the court that it is for one and the same cause. This doctrine of res judicata is common to all civilised system of jurisprudence to the extent that a judgment after a proper trial by a court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. 13. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law inasmuch as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of res judicata has been evolved to prevent such an anarchy. That is why it is perceived that the p-lea of res judicata is not a technical doctrine but a fundamental principle which sustains the rule of law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing court for agitating on issues which have become final between the parties. 18. Therefore, any proceeding which has been initiated in breach of the principle of res judicata is prima facie a proceeding which has been initiated in abuse of the process of court." 7. The last contention of the learned counsel for the petitioners is that while passing the impugned order dated 27.10.2011, the petitioners were not heard. The application of the petitioners has been rejected on the ground that earlier father of the petitioners had made an application on 27.5.1999 which has been rejected and therefore, nothing remains to be done on the petitioners' application. Since the second application filed by the petitioners under section 28-A was not maintainable, the respondents did not commit any error of law in rejecting the application of the petitioners without hearing. We are of the considered opinion that the application moved by the petitioners on 13.1.2011 under section 28-A of the Act was nothing but an abuse of process of the Court and the rejection order in such a situation would not attract the principles of natural justice. 8. We are of the considered opinion that the application moved by the petitioners on 13.1.2011 under section 28-A of the Act was nothing but an abuse of process of the Court and the rejection order in such a situation would not attract the principles of natural justice. 8. In view of the discussion made above, we are of the considered opinion that the second application made by the petitioners after the death of their father on the basis of the latest award rendered by the Reference court on 26.11.2010 would not be maintainable as law does not provide for moving a second application when the first application had been rejected. The authorities below did not commit any error in rejecting the application filed by the petitioners which was barred by principles of res judicata. We do not find any merit in this petition. 9. The petition fails and is accordingly dismissed.