GUJARAT HOUSING BOARD Vs. SPECIAL LAND ACUISTION OFFICER

JUDGEMENT

(1.) (PER : <DJG>M.R.CALLA</DJG> J ) This Special Civil Application is filed by the Gujarat Housing Board against the order dated 31st May, 1997, passed by the Special Land Acquisition Officer who has arrived at re-assessment under section 28-A of the Land Acquisition Act (hereinafter referred to as `the Act') in respect of the lands situated in village Kansad, Taluka-Choryasi, . The proceedings regarding acquisition of the land by the Gujarat Housing Board commenced in June, 1981 for the construction of residential houses. The Awards under section 11 of the Act in respect of certain lands situated in village Kansad, Taluka-Choryasi, District-Surat were passed. The lands were acquired on 21st March 1986 and possession thereof was taken on 9th April 1986. Certain land owners preferred References under section 18 of the Act for getting enhanced compensation in the District Court, Surat, they were registered as Land Reference Cases Nos. 148/86 to 173/86, and the District Court, Surat, by its judgment and order dated 3rd July, 1991, fixed the amount of compensation for the acquired land at the rate of Rs. 25.00 per Sq.Mt. and the same was later on modified by the order dated 10th October, 1991. The respondents nos. 3 to 19 herein were also the persons whose lands had been acquired, but they did not move for any Reference under section 18 of the Act. Those who preferred such References Nos. 148/86 to 173/86, were paid the additional amount of compensation, however, on behalf of the respondents nos. 3 to 19 the applications under section 28-A were filed on 19th August, 1992 i.e. after expiry of three months' period prescribed for the purpose so as to commence from the date on which the order is passed under section 18 in the main land reference cases. These applications under section 28-A were initially filed without annexing any certified copy and the respondents nos. 3 to 19 rest contended by filing only Xerox copy of the order dated 3rd July, 1991, and later on a certified copy is said to have been filed. Only one certified copy was filed for all the applications which had been moved by the respondents nos. 3 to 19 under section 28A of the Act. For the purpose of taking the benefit of the proviso under section 28-A (1) and computing the period of three months, this certified copy was sought to be made use of so as to bring the applications within the period of limitation of three months by saying that the application for obtaining certified copy had been made on 25th July, 1991, through an advocate namely Shri K.C.Desai, and that the certified copy was made available on 23rd July, 1992 and therefore according to the said proviso under section 28-A (1) of the Act, all these applications moved under section 28-A by the respondents nos. 3 to 19 should be treated to be within the period of three months from the date of the order passed by the District court in the land references i.e. 3rd July, 1991. Thus, the applications which were filed under section 28-A of the Act were decided on 30th July, 1993 by the concerned Land Acquisition Officer granting the additional amount of compensation to the respondents nos. 3 to 19 herein. Against this order dated 30th July, 1993, passed by the Land Acquisition Officer, the Gujarat Housing Board preferred Special Civil Application No. 8046/94, to which the respondents nos. 3 to 19 were parties. This court decided the aforesaid Special Civil Application and allowed it on 14th November, 1995, on the ground that the Gujarat Housing Board had not been heard before passing the order dated 30th July, 1993, by the Land Acquisition Officer while the question of limitation was left open to be considered and the matter was remanded back to the concerned Land Acquisition Officer. By way of narration and to complete the chain of facts, it may be mentioned that the respondents nos. 3 to 19 had also filed writ petitions for modification of the Award dated 30th July, 1993 passed by the Land Acquisition Officer and these Special Civil Applications Nos. 4873/94 to 4883/86 were rejected on the same date i.e. 14th November, 1995. The Land Acquisition Officer has passed the order dated 31st May, 1997, in the remanded proceedings granting compensation as per the details given in the order dated 31st May, 1997 in respect of the lands, the details of which have been given in Annexure-A to the order dated 31st May, 1997. It is this order dated 31st May, 1997, which is the subject matter of challenge in this Special Civil Application at the instance of the Gujarat Housing Board.

(2.) The learned counsel for the respondents nos. 3 to 19, at the very threshold has raised a preliminary objection about the maintainability of this Special Civil Application against the impugned order dated 31st May, 1997 at the instance of the Gujarat Housing Board. He has raised a contention that the order has been passed by the Special Land Acquisition Officer, Gujarat Housing Board, Ahmedabad, and that the Gujarat Housing Board being an instrumentality of the State has no right to challenge the impugned order dated 31st May, 1997, passed by the Special Land Acquisition Officer, and it has no locus-standi to file and maintain this petition. The learned counsel for the respondents placed strong reliance on a decision of the Supreme Court in the case of SANTOSH KUMAR & ORS VS CENTRAL WAREHOUSING CORPORATION & Ors. (AIR 1986, SC, 1164). In this case before the Supreme Court, the principal submission was that the High Court was wholly in error in entertaining writ petition to challenge awards made by the Collector under the Land Acquisition Act on the ground that the amount awarded was excessive and that too not at the instance of the Government but at the instance of the Corporation on whose request the acquisition was made. In the facts of the case before the Supreme Court, the Collector had made the Awards under section 11 of the Land Acquisition Act determining the compensation proposed to be paid. The References were sought under section 18 of the Act for enhancement of the compensation and the References were awaiting adjudication by the civil Court. The Central Ware Housing Corporation also being aggrieved by the amount of compensation determined by the Collector, had sought reference to the Civil Court under section 18 of the Act for reducing the amount, but all the applications seeking References by the Central Ware Housing Corporation were rejected by the Collector by saying that the same were barred under proviso to section 50 (2) of the Act. It is clear from the case before the Supreme Court that no order such as an order passed in the proceedings under section 28-A was under challenge and what was challenged in that case was the basic order which had been passed by the Collector. It is settled that such an Award which is passed by the Collector is made as an offer on behalf of the Government in lieu of the acquisition and therefore the Corporation, for which the land was acquired, could not challenge such an Award which was made in offer. The orders which are passed under section 28-A of the Act at the instance of those parties which failed to seek the Reference under section 18 are not comparable with the Award which is passed as an offer on behalf of the Government under section 11 and it goes without saying that only because of such Awards passed under section 11 treated as an offer, the scheme of the Act provides for seeking a Reference where such offer can be challenged and the same is adjudicated by a civil court in accordance with law. Under such circumstances, the Government or the Corporation or the functionary for whose benefit the land is acquired was not allowed to challenge the Award in the form of an offer made by the concerned Collector. Such principle, in our opinion, can not be made applicable against the orders passed under section 28-A. The order passed under section 28-A is not at all at par with the Award passed under section 11. The order under section 28-A is an order passed against the acquiring authority on an application being made by a party which did not seek the Reference under section 18. The question of passing order under section 28-A arises only after the Reference made under section 18 is adjudicated by the civil court and this section 28-A is meant to be availed only by such parties which did not seek Reference and yet want to take the benefit of the adjudication made by the civil court in Reference under section 18 and only after the civil court allows to the claimant any amount of compensation in excess of the amount awarded by the Collector under section 11. The language of section 28-A itself makes it clear that the persons interested in 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 section 18 within three months from the date of the Award of the court may ask that the amount of compensable payable to them may be re-determined on the basis of the amount of compensation awarded by the court. Thus, we find that the basis of the application under section 28-A is the order passed by the civil court while allowing the applications of the claimants against the Award determined by the concerned Collector as an offer, thereafter the order passed under section 28-A is not in the nature of an offer, but an order passed by the concerned Land Acquisition Officer on the basis of an order passed by the civil court while deciding Reference under section 18 in favour of the claimants. The order under section 28-A is essentially an order with regard to re-determination of the amount of compensation on the basis of the Award of the court. Thus, it is very clear from the scheme of the Act that the order passed under section 11 is an offer which is voluntary by the Land Acquisition Officer on behalf of the Government or the Corporation or functionary for whose benefit the land is sought to be acquired and such voluntary offer may be a subject matter of Reference before the Civil Court while the order which is passed under section 28-A has an element of compulsion. The order passed under section 28-A is therefore an order not as a voluntary offer, but an order passed by way of re-determination after an inquiry, after notice to the persons interested and after giving a reasonable opportunity of being heard. If the concerned authority or the Corporation for whose benefit the land is sought to be acquired, is entitled to be heard before any such re-determination of amount of compensation is made, it is certainly an order against which such body or Corporation may be aggrieved. In this background, and for the aforesaid reasons, the Supreme Court decision in the case of Santosh Kumar (Supra) on which reliance has been placed by the learned counsel for the respondents is of no avail to them for the simple reason that what was under challenge in the case of Santosh Kumar (Supra) before the Supreme Court was the order in the form of a voluntary offer made by the Land Acquisition Officer as against the order under section 28-A of the Act, which is under challenge in this Special Civil Application at the instance of the Gujarat Housing Board. If the Gujarat Housing Board had a right to be heard in the matter under section 28-A before the Land Acquisition Officer, it certainly has a right to challenge the said order in case it goes against it. Santosh Kumar's case is therefore distinguishable.

(3.) The learned counsel for the respondents has next relied on a decision of the Supreme Court in the case of UNION OF INDIA & ANR VS THE SPECIAL LAND ACQUISITION OFFICER & ORS, in SPECIAL LEAVE PETITION (CIVIL) NO. 16514/96, decided on 2nd September, 1996, reported in 1996, LACC, 614. In this case also, the challenge before the Supreme Court was to the Award and the Supreme Court held that the Award is binding on the State. The Supreme Court has also considered that the State can not make a Reference under section 18 and the order made by the Collector is only an offer under law and the State can not question the correctness of the order made by the Land Acquisition Officer. The distinguishing feature pointed out above with regard to the case of Santosh Kumar (supra) apply with equal force for this case also and therefore we find that this decision is of no help to the respondents so as to challenge either the maintainability of this Special Civil Application at the instance of the Gujarat Housing Board or the locus-standi of the Gujarat Housing Board so as to challenge the order passed against it for re-determination of the amount of compensation against it.