HEMAJI CHHABAJI Vs. SPECIAL LAND ACQUISITION OFFICER

JUDGEMENT

(1.) In this petition, the petitioners have challenged order dated 10.7.2002 passed by the Special Land Acquisition Officer (Express Way), Kheda, rejecting the application filed by the petitioners under the provisions of sec. 28A of the Land Acquisition Act (hereinafter referred to as "the Act"). The said application has been rejected on the ground that the certified copy of the award made by the reference/District Court, Kheda at Nadiad and which has been produced along with the application has been obtained by the advocate other than the advocate who has filed application under sec. 28A on behalf of the petitioners, and in view of the decision rendered by this court in SCA No. 4978/1997 dated 1.9.1998, such application cannot be entertained.

(2.) According to the petitioners, their lands have been situated in village Modaj, Tal. Mehmedabad, District Kheda, and they have been acquired for constructing express-way. The acquisition was made in accordance with the procedure prescribed under the Act and at the end of the proceedings, the Special Land Acquisition Officer made the award and offered amount at the rate of Rs. 200 per RA. Some of the land owners preferred an application under sec. 18 of the Act to the Collector with a request to make reference to the District Court for enhancement of the compensation. So far as present petitioners are concerned, they did not make such application under Sec. 18 of the Act, however, District Court, partly allowed the reference cases i.e. LAR No. 1179/91 to 1182/91 and enhanced the rate of compensation from Rs. 200/- per RA to Rs. 1300/- per RA. In view of the same, the petitioners preferred an application under sec. 28A of the Act. The judgment and award were pronounced on 4.2.2000 and the petitioners submitted the application under sec. 28A of the Act on 11.2.2000. It appears from the averments made in the petition and which are not disputed by the otherside that the petitioners approached this court since their application was not decided expeditiously, by filing SCA No. 10342/2000, which was disposed of by this Court vide its order dated 4.10.2000 directing the respondent no. 1 i.e. Special Land Acquisition Officer to decide the application of the petitioners within 4 months from the date of the order. The same was not done within the stipulated time. Hence, the petitioners preferred an application under the provisions of Contempt of Courts Act. In the meanwhile, the respondent no. 3 " State of Gujarat filed CA No. 10655/2001 for extension of time limit fixed by this Court for deciding the applications under sec. 28A of the Act on the ground that State's appeals were pending before this Court. The petition further shows that these First Appeals were dismissed by this Court on 8.10.2001. The petitioners thereafter gave notice to respondent no. 1 for holding hearing and on the basis of which the hearing took place but no award was made, hence, the petitioner filed another contempt application being MCA No. 62/2002. In the said application, this court issued notice making it returnable on 17.7.2002. But with a view to over come this difficulty, respondent no. 1 decided and dismissed the application filed under sec. 28A of the Act by the petitioners solely on the ground stated above. In view of the same, the petitioners have now approached this court.

(3.) Having heard Mr. GM Amin ld. Advocate for the petitioners and Mr. SP Hasurkar ld. AGP for the respondents and having perused the record of the petition, it clearly appears to us that the ground on which application under sec. 28A of the Act has been rejected by respondent no. 1, is erroneous. As stated above, this application has been filed under sec. 28A of the Act within the period of limitation, i.e., three months, by the petitioners. It is also an admitted fact that while filing the said application, the petitioners had produced certified copy of the judgment and award made by the District Court. There is also no dispute that before the District Court, one Mr. HJ Amin had appeared to represent the other land owners who had filed the reference cases before the District Court, whereas, the certified copy of the judgment and award produced along with the application under sec. 28A of the Act by the present petitioners was obtained by Mr. GM Amin, i.e., another advocate. In the opinion of respondent no. 1, when certified copy is obtained by the advocate other than the advocate who has filed application under sec. 28A, the presentation of the application is not proper. As stated above, respondent no. 1 has relied on the judgment rendered by this Court in SCA No. 4978/1997 dated 1.9.1998. Mr. GM Amin ld. Advocate has drawn our attention to the judgment on which reliance is placed by respondent no. 1. In his submission, this judgment is not at all applicable to the facts of the present case. The said judgment has been reported in 1999(4) GCD p. 3397. It is rendered by the Division Bench of this Court in the case of Gujarat Housing Board Through Executive Engineer vs. Special Land Acquisition Officer, Gujarat Housing Board, Ahmedabad & Ors. Upon reading the said judgment, it clearly appears that the application in that case under sec. 28-A of the Act was made after the expiry of period of limitation and in such circumstances, the court came to the conclusion that when the certified copy has not been applied for either by the party filing the application or its advocate, such party will not get any benefit of set-off provided under the proviso of Sec. 28-A of the Act. So far as the facts of the present case are concerned, this judgment cannot apply because it is an admitted position that the application has been made within the prescribed period of limitation. The reliance placed by respondent no. 1 on this judgment for rejecting the application under sec. 28-A of the Act is, therefore, erroneous. In fact, another Division Bench of this court, in a decision rendered in the case of Ramanbhai Mahijibhai & Ors. vs. Special Land Acquisition Officer, Narmada Yojan Unit 5, Vadodara, has laid down as under: