ISHWARBHAI MOTIBHAI BHATT Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr. Chhaya waives service of rule on behalf of the respondents.

(2.) This Special Civil Application is for issue of a writ of mandamus or any other appropriate writ or direction directing the respondent No. 2 to refer the matter under Sec. 18 of the Land Acquisition Act on the District Court. As per Annexure D to the Special Civil Application the Land Acquisition Officer has rejected the application filed under Sec. 18 of the Land Acquisition Act as time barred. In view of the rejection of the application the present Special Civil Application has been filed.

(3.) The Award in this case was made as early as on 15/04/1985 Immediately thereafter the petitioner has filed an application under Sec. 18 of the Land Acquisition Act before the District Court Narol. This was filed on 1-7-1985. The Narol Court by its order dated 20/09/1985 directed the petitioner to file aa application before the Land Acquisition Officer stating therein that under the provisions of the Act such an application must be filed before the Land Acquisition Officer. On 19-10-1985 the petitioner filed application for reference under Sec. 18 of the Land Acquisition Act before the Land Acquisition Officer and that came to be rejected on 21-10-4985 as time-barred. Section 18(2) proviso (a) clearly states that if the person making the application was present or represented before the Collector at the time when he made his Award the application has to be made within six weeks from the date of the Collectors Award. Even taking into consideration that the filing of the petition under Sec. 18 before the Narol Court can be taken as a valid filing there is a delay of more-than a month. It is also clear from the submission made by Mr. Desai that the acquisition proceedings in respect of the very same Notification fOr other lands are being questioned as regards the Award by filing applications for reference under Sec. 18 of the Land Acquisition Act before the Land Acquisition Officer and they have been referred to the District Court. It is unfortunate that this application came to be rejected since it is time-barred. In the decision in the case of Mohan Vasta v. State of Gujarat reported in 1985 (1)] XXVI GLR 293 and the decision in the case of Gopalbhai Becharbhai v. State of Gujarat & Anr. reported in [1988 (2)] XXIX (2) GLR 923 it has been held that the Land Acquisition Officer has power under Sec. 5 of the Limitation Act to condone any delay for the purpose of referring the matter under Sec. 18 of the Land Acquisition Act. The order passed by the Land Acquisition Officer which is impugned in this Special Civil Application simply states that the application filed under Sec. 18 of the Land Acquisition Act is barred in view of the provisions contained in Sec. 18 of the Act. The Land Acquisition Officer ought to have applied his mind and used his discretion since he has powers to condone the delay by applying Sec. 5 of the Limitation Act. He has proceeded on the basis that he has no power since Sec. 18(2) proviso (a) states that such an application has to be filed within six weeks from the date of the Collectors Award. In this case the party was present before the Collector. Such an order without adverting to Sec. 5 of the Limitation Act and without looking into the principles laid down in [1995(1)1 XXVI (1) GLR 293 (Mohan Vastas case) and [1988 (2)] XXIX (23 GLR 923 (Gopalbhais case) (supra) in our opinion has to be set aside. Accordingly the order which is Annexure D to the Special Civil Application is set aside and the matter is remanded to the Land Acquisition Officer for the purpose of deciding the question of limitation and condonation of delay bearing in mind the observations we have made above. We direct the petitioner to make an application under Sec. 5 of the Limitation Act along with application under Sec. 18 of the Land Acquisition Act within two weeks from this date and the Land Acquisition Officer will consider such an application and dispose of the same within two weeks thereafter. Rule is made absolute to the above said extent with no order as to costs.