2007 Supreme(Bom) 1552

IN THE HIGH COURT OF BOMBAY
SWATANTER KUMAR, C.J., A.P. LAVANDE & R.V. MORE, JJ.
Shrikrishna s/o. Sitaramji Fande & Ors. - Appellant
Versus
State of Maharashtra & Anr. - Respondent
Writ Petition No.385l of 2005
Decided on 29th October, 2007

Headnote:Land Acquisition Act, 1894 - Section 28-A-Acquisition of land-Compensation for-Re-determination of-Requirement of application in writing-Mandatory-Written application to be filed before Collector within 3 months from date of award of compensation.-Even Mewa Ram’s case (supra) relied upon by the petitioners does not support the contention raised on their behalf. Two main issues were decided by the Supreme Court in that case. Firstly, that merely because the Supreme Court in other cases enhanced the rate of compensation for the adjacent land by itself would not provide a ground to the claimants for condoning the delay in filing the appeal and claiming same compensation. Secondly, the principle that was clearly enunciated in relation to the operation of Section 28-A of the Act that there is no provision in the Act apart from Section 28-A for reopening of an award which has become final and conclusive. For availing the remedy of redetermination of the amount of compensation under this provision, the conditions laid down therein are to be fulfilled. It may also to be noticed that the Division Bench of this Court had taken a contrary view in the case of Rajaram (supra) and held that it was obligatory on the part of the authorities to give the benefit of redetermination irrespective of whether they had preferred any application or not. While making these observations reliance was also placed upon the judgment of the Supreme Court in the case of A. Vishwanatha Pillai and others v. Special Tahasildar for Land Acquisition No. IV and others, AIR 1991 SC 1966. It needs to be noticed firstly that the judgment was not relevant law or proposition, for facts raised in this case. Secondly, the case related to co-owners of the same property where one co-owner had approached the Court as the sole owner of the property. It was the case of the co-owners or coparceners and a statement was made in a petition under Section 18 of the Act that they are equally entitled to receive compensation where the applicant was the owner along with other brothers. That is a case relating to filing of reference petition under Section 18 of the Act and for determination of compensation as contemplated under Section 23 of the Act and thus could not give much assistance in relation to the provisions of Section 28-A, which is a self contained Code and its benefits are subject to compliance of its conditions, which are mandatory in nature. Under Section 18 the claimant is required to file a written application within the specified time, failing which no reference can lie to the Collector or the competent authority. Under Section 28-A(3) the provisions of Section 18 are applicable and as such it will be more in line with the scheme of the Act and same meaning to the expression ’written application’ appearing in Section 28-A shall be applied as well. With respect, the view taken by the Division Bench in Rajaram (supra) is not correct exposition of law. We hold that it is obligatory upon every interested person to file written application to the Collector, if he wishes to draw the benefit or advantage of re-determination of compensation within the prescribed period as contemplated under Section 28-A of the Act.

       Land Acquisition Act, 1894 - Section 28-A - Acquisition of land - Compensation for awarded - Redetermination of - Exercise of power by Collector suo motu - Written applications must be filed by all persons effected by same notification before Collector within 3 months from date of award - In absence of a written application, Collector cannot issue suo motu notices all persons effected. - A person interested and aggrieved from the award and who did not avail the remedy requesting reference under Section 18 of the Act, has to file an application to put in motion the mechanism contemplated under Section 28-A of the Act for redetermination of the compensation. Once the language of the section is explicit that written application within the prescribed period has to be filed, there is hardly any scope to come to the conclusion that there is no requirement on the part of the applicant to move an application or that the Collector would exercise such power suo motu. Such an approach would be contrary to the scheme of the Act and in fact it would amount to vesting of powers in SLAO which are not given by the Legislature and in fact such powers would be deemed to have been excluded by necessary implication on the cumulative reading of the relevant provisions. But for the limited scope or jurisdiction vested in the Collector under Section 28-A of the Act, the Collector would be functus officio in all other respects and would have no jurisdiction to redetermine the compensation under the scheme of the Act. The provisions of Section 28-A(2) do not give any substantive right for redetermination of the compensation. The legal right accrues under sub-section (1) of Section 28-A while sub-section (2) regulates the procedure for redetermination of the compensation upon receipt of an application under sub-section (1) of Section 28-A. The procedural or regulatory sub-sections cannot be read to alter the scope of substantive provisions which creates a right but subject to the satisfaction of the mandatory conditions stated in the section.