Gujarat High Court
Heirs Of Decd. Mandan Kanabhai vs State Of Gujarat on 8 October, 2024
NEUTRAL CITATION
C/CA/2464/2024 ORDER DATED: 08/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2464 of
2024
In F/FIRST APPEAL NO. 6539 of 2024
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HEIRS OF DECD. MANDAN KANABHAI & ORS.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR KRUSHNAKANT D PATEL(10632) for the Applicant(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.3,1.4,1.5,1.6,2,2.1,2.2,2.3,2.4,3,4,4.1,4.2,4.3,4.4,
4.5,4.6,5,6
MR TEJAS P SATTA(3149) for the Applicant(s) No.
1,1.1,1.2,1.2.1,1.2.2,1.2.3,1.3,1.4,1.5,1.6,2,2.1,2.2,2.3,2.4,3,4,4.1,4.2,4.3,4.4,
4.5,4.6,5,6
MR GH VIRK, GP with MS DHARITRI PANCHOLI, AGP for Respondent No.1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/10/2024
ORAL ORDER
1. There are a bunch of civil applications today on
board for condonation of delay filed under Section 5 of the
Limitation Act, caused in filing the respective first appeals,
which are filed under Section 54 of the Land Acquisition Act
(`LAQ’ Act for short).
2. The first appeals are filed by the claimants who
have lost their lands in the acquisition proceedings for
exercising the remedy of appeal under Section 54 of the Land
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Acquisition Act, however, as there is a huge delay of
approximately 12 to 17 years in filing the first appeals, civil
applications are filed for condonation of delay.
3. The core issue in all the matters is the same.
Therefore, all the matters are heard together but this matter
is considered as a lead matter as agreed by all the advocates
for the parties and is heard at length and disposed of by
this detailed order. Rest of the civil applications filed in
different first appeals are disposed of by separate short
orders, where the discussion of this order will be considered
as part of those separate orders also.
4. The matter was heard at length on 8.10.2024.
However, time was sought by learned advocates in all the
civil applications for the respective parties to submit the
written arguments, due to which the Court had to wait for
dictation of the order. The written arguments were submitted
in piecemeal by some of the learned advocates and the same
are not submitted by some of the learned advocates.
However, without waiting for much time for the same, the
Court proceeded to dictate the order, considering the
submissions made by learned advocates at the time of
hearing of the applications.
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5. Learned Government Pleader had raised the
preliminary objection at the initial stage as to whether the
amount deposited before the Reference Court was withdrawn
by the farmers with objection or without objection.
Considering the same, the coordinate Bench had granted time
to the learned advocate for the claimants to file affidavit to
this effect. The affidavits are filed in most of the matters.
6. Learned Government Pleader has raised several
contentions that when the amount is withdrawn by the
claimants without any objection/protest pursuant to the order
passed by the Reference Court, the appeal against the said
order cannot be entertained and the delay caused in filing
the said appeal cannot be condoned. He submitted that the
Court may consider this as preliminary objection.
7. Learned advocate for the claimants have made
their submissions and assisted the Court by pointing out the
relevant provisions of the Land Acquisition Act.
8. The bone of contention of the learned advocate for
the claimants is that there is no specific provision in the
LAQ Act that before filing of the appeal and after the award
is passed by the Reference Court under Section 18 of the
LAQ Act that if the claimants want to challenge the said
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award of Reference Court by filing appeal under Section 54
of the LAQ Act, the amount has to be withdrawn by filing
objection or by registered protest. The relevant provisions of
Sections 11, 12, 18, 31, 53 and 54 of the LAQ Act are
referred by the learned advocate for the claimants in support
of the submissions.
9. A reliance is placed on the decision of the Hon’ble
Apex Court in the case of Chimanlal Hargovinddas V/s
Special Land Acquisition Officer, Poona and Another reported
in (1988)3 SCC 751, wherein it is held that when the
reference is determined by way of adjudication of protest,
there is no requirement to register the protest thereafter.
That such protest could have been registered at the time of
passing of the award by the Land Acquisition Officer under
Section 11 of the LAQ Act if the claimants are aggrieved by
the said award. That even the reference under Section 18 of
the LAQ Act could have been converted into objections and
therefore no separate petitions are not required to be filed.
10. By referring to the judgment of the Hon’ble Apex
Court in the case of Bhanu Kumar Jain V/s Archana Kumar
and Another reported in (2005)1 SCC 787 and a judgment of
this Court in the case of Patel Natvarbhai Prabhudas V/s
Special Land Acquisition Officer, reported in 1999(1) GLR
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437, the learned advocate for the claimants has submitted
that the statutory right of appeal cannot be curtailed; and
that no written protest is required as making application
under Section 18 itself is a protest and that the non-
mentioning of protest at the time of withdrawal of amount of
compensation enhanced under Section 18 cannot disentitle the
claimants to prefer appeal under Section 54 of the LAQ Act.
11. In support of the submissions, learned advocate for
the claimants has relied on the following judgments:
(1) Ningappa Thotappa Angadi (supra) V/s Special Land
Acquisition Officer and Another, reported in (2020)19 SCC
599.
(2) Huchanagouda V/s Assistant Commissioner and Land
Acquisition Officer and another repoted in 2020(19) SCC 236.
(3) K.Subbarayudu and others V/s Special Deputy Collector
(Land Acquisition) reported in 2017(12) SCC 840.
(4) Pathapati Subba Reddy (Died) by L.R.s and others V/s
Special Deputy Collector (LA) reported in 2024 SCC Online
SC 513.
(5) Basawaraj and Another V/s Special Land Acquisition
Officer reported in 2013(14) SCC 81.
12. As regards the length of delay caused, he
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submitted that though there is huge delay in filing the
appeal, the delay is not to be seen but the cause of delay is
to be seen and considering the reasons given for the delay
caused, it cannot be said that the delay is caused due to
some inaction on the part of the claimants. Therefore, the
delay is required to be condoned.
13. Learned advocate for the claimants submitted that
in many cases where there was huge delay, the Court
ordered that the claimants will not be entitled to claim the
interest for the delayed period and this application for
condonation of delay may be allowed with the same direction
that the claimants will not be entitled to interest for the
delayed period. He submitted that the interest of justice will
be served if this application is allowed with such direction.
14. Learned Government Pleader has vehemently
opposed this application by raising mainly two contentions;
firstly-the preliminary contention of raising protest at the
time of withdrawal of the amount before the Reference Court
and secondly-the period of huge delay caused in filing the
appeals. He submitted that the affidavits filed pursuant to
the preliminary objection raised by him show that the
amount was withdrawn without protest and when it is so,
then the claimants have accepted the award and therefore
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they are not entitled to file the appeal against the said
award. He submitted that as per the doctrine of election, by
accepting the compensation without protest, the litigants have
forgone their right to challenge the award passed under
Section 18 of the LAQ Act. That the claimants are not
allowed to approbate and reprobate on their stand, having
once acquiesced and the doctrines of waiver and estoppel are
unambiguous in its term that the parties to the proceedings
are estopped from raising the issue further, once they have
waived their rights. He, submitted that on all these grounds,
this application is required to be dismissed.
15. In support of his submissions, learned Government
Pleader has relied on the following decisions:
1. Nathu V/s State of H.P. reported in AIR 1984 HP 63
2. Ramendra Kr.Battercharjee and Ors. V/s Land Acquisition
Collector and Anr. Reported in 2004 SCC Online Gau 85.
3. V.Chandrasekaran and Another V.Administrative officer and
Others reported in 2012(12) SCC 133.
4. K.S.Parippornan V/s State of Kerala and others reported in
1994(5) SCC 593.
5. Union of India and Others V.N.Murugesan and others
reported in 2022(2) SCC 25.
6. Cauvery Coffee Traders, Manglore V/s Hornor Resources
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International Company Limited, reported in 2011(10) SCC
420.
7. Waman Shrinivas Kini V/s Ratilal Bhagwandas and Co.,
reported in AIR 1959 SC 689.
8. Krishna Bahadur V/s Purna Theatre and others reported
in 2004(8) SCC 229.
9. Garikapati Veeraya V.N.Subbiah Choudry & Others
reported in AIR 1957 SC 540.
10. Bihari (Dead) through Lrs. And others V/s State of U.P.
and another reported in Special Leave Petition (Civil)
No.27879 of 2018 decided on 23.9.2021.
16. I have heard learned advocates for the parties and
perused the material on record.
17. Section 5 of the Limitation Act reads as under:
“5. Extension of prescribed period in certain cases.–Any
appeal or any application, other than an application under
any of the provisions of Order XXI of the Code of Civil
Procedure, 1908 (5 of 1908), may be admitted after the
prescribed period if the appellant or the applicant satisfies
the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
Explanation.–The fact that the appellant or the applicant
was misled by any order, practice or judgment of the High
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Court in ascertaining or computing the prescribed period
may be sufficient cause within the meaning of this section.”
18. Relevant provisions of the LAQ Act read as under:
4. Publication of preliminary notification and powers of
officers thereupon.–
(1) Whenever it appears to the [appropriate Government] that
land in any locality [is needed or]
10
is likely to be neededfor any public purpose [or for a company] a notification to
that effect shall be published in the Official Gazette [and in
9two daily newspapers circulating in that locality of which at
least one shall be in the regional language] and the
Collector shall cause public notice of the substance of such
notification to be given at convenient places in the said
9
locality [(the last of the dates of such publication and thegiving of such public notice, being hereinafter referred to as
the date of publication of die notification)].
(2) Thereupon it shall be lawful for any officer, either
generally or specially authorized by such Government in this
behalf, and for his servants and workmen,– to enter upon
and survey and take levels of any land in such locality;
to dig or bore in the sub-soil;
to do all other acts necessary to ascertain whether the land
is adapted for such purpose;
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to set out the boundaries of the land proposed to be taken
and the intended line of the work (if any) proposed to be
made thereon;
to mark such levels, boundaries and line by placing marks
and cutting trenches; and,
where otherwise the survey cannot be completed and the
levels taken and the boundaries and line marked to cut down
and clear away any part of any standing crop, fence or jungle:
Provided that no person shall enter into any building or
upon any enclosed court or garden attached to a dwelling-house
(unless with the consent of the occupier thereof) without
previously giving such occupier at least seven days’ notice in
writing of his intention to do so.
6. Declaration that land is required for a public purpose.–
(1) Subject to the provisions of’ Part VII of this Act,
15
[whenthe
16
[appropriate Government] is satisfied, after consideringthe report, if any, made under Section 5-A, sub-section (2)],
that any particular land is needed for a public purpose, or
for a Company, a declaration shall be made to that effect
under the signature of a Secretary to such Government or of
some officer duly authorized to certify its orders
17
[, anddifferent declarations may be made from time to time in
respect of different parcels of any land covered by the same
notification under Section 4, sub section (1), irrespective of
whether one report or different reports has or have been
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made (wherever required) under Section 5-A, sub-section (2)]:
18
[Provided that no declaration in respect of any particular land
covered by a notification under Section 4, sub-section (1),–
(i)
19
published after the commencement of the LandAcquisition (Amendment and Validation) Ordinance, 1967
20
(1 of 1967), but before the commencement of the LandAcquisition (Amendment) Act, 1984, shall he made after
the expiry of three years front the date of the publication
of the notification; or
(ii)
**
published after the commencement of the LandAcquisition (Amendment) Act, 1984, shall be made after
the expiry of one year from the date of the publication of
the notification]:
Provided further that no such declaration shall be made unless
the compensation to be awarded for such property is to be paid by
a Company, or wholly or partly out of public revenues or some
fund controlled or managed by a local authority.
[Explanation 1.–In computing any of the periods referred to
21in the first proviso, the period during which any action or
proceeding to be taken in pursuance of the notification issued
under Section 4, sub-section (1), is stayed by an order of a Court
shall be excluded.
Explanation 2.–Where the compensation to be awarded for such
property is to he paid out of the funds of a corporation owned orPage 11 of 59
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controlled by the State, such compensation shall be deemed to be
compensation paid out of public revenues.]
22
(2) [Every declaration] shall be published in the Official
17
Gazette, [and in two daily newspapers circulating in the localityin which the land is situate of which at least one, shall be in the
regional language, and the Collector shall cause public notice of
the substance of such declaration to be given at convenient places
in the said locality (the last of the dates of such publication and
the giving of such public notice, being hereinafter referred to as
the date of publication of the declaration), and such declaration
shall state] the district or other territorial division in which the
land is situate, the purpose for which it is needed, its
approximate area, and, where a plan shall have been made of the
land, the place where such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the
land is needed for a public purpose or for a Company, as the case
may be; and, after making such declaration, the
23
[appropriateGovernment may acquire the land in a manner hereinafter
appearing.
11. Enquiry and award by Collector.– [1] On the day so fixed, or
26
any other day to which the enquiry has been adjourned, the
Collector shall proceed to enquire into the objections (if any) which
any person interested has stated pursuant to a notice given under
Section 9 to the measurements made under Section 8, and into
the value of the land and
27
[at the date of the publication of the
notification under Section 4, sub-section (1)], and into the
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respective interests of the persons claiming the compensation and
shall make an award under his hand of–
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed
for the land; and
(iii) the apportionment of the said compensation among all
the persons known or believed to be interested in the
land, of whom, or of whose claims, he has information,
whether or not they have respectively appeared before
him:
28
[Provided that no award shall be made by the Collector under
this sub-section without the previous approval of the appropriate
Government or of such officer as the appropriate Government may
authorise in this behalf:
Provided further that it shall be competent for the appropriate
Government to direct that the Collector may make such award
without such approval in such class of cases as the appropriate
Government may specify in this behalf.
29
[(2) Notwithstanding anything contained in sub-section (1), if
at any stage of the proceedings, the Collector is satisfied that all
the persons interested in the land who appeared before him have
agreed in writing on the matters to be included in the award of
the Collector in the form prescribed by rules made by the
appropriate Government, he may, without making further enquiry,
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make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-
section (2) shall not in anyway affect the determination of
compensation in respect of other lands in the same locality or
elsewhere in accordance with the other provisions of this Act.
(4) Notwithstanding anything contained in the Registration Act,
1908 (16 of 1908), no agreement made under sub-section (2) shall
be liable to registration under that Act.]
12. Award of Collector when to be final.–(1) Such award shall be
filed in the Collector’s office and shall, except as hereinafter
provided, be final and conclusive evidence, as between the Collector
and the persons interested, whether they have respectively
appeared before the Collector or not, of the true area and value of
the land, and apportionment of the compensation among the
persons interested.
(2) The Collector shall give immediate notice of his award to
such of the persons interested as are not present personally or by
their representatives when the award is made.
13. Adjournment of enquiry.–The Collector may, for any cause he
thinks fit, from time to time, adjourn the enquiry to a day to be
fixed by him.
18. Reference to Court.–(1) Any person interested who has not
accepted the award may, by written application to the Collector,
require that the matter be referred by the Collector for the
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determination of the Court, whether his objection be to the
measurement of the land, the amount of the compensation, the
persons to whom it is payable, or the apportionment of the
compensation among the persons interested.
(2) The application shall state the grounds on which objection
to the award is taken:
Provided that every such application shall be made,–
(a) if the person making it was present or represented
before the Collector at the time when he made his award,
within six weeks from the date of the Collector’s award;
(b) in other cases, within six weeks of the receipt of the
notice from the Collector under Section 12, sub-section (2);
or within six months from the date of the Collector’s
award, whichever period shall first expire.
31. Payment of compensation or deposit of same in Court.–(1) On
making an award under Section 11, the Collector shall tender
payment of the compensation awarded by him to the persons
interested entitled thereto according to the award, and shall pay it
to them unless prevented by some one or more of the
contingencies mentioned in the next sub-section.
(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any dispute
as to the title to receive the compensation or as to the
apportionment of it, the Collector shall deposit the amount of the
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compensation in the court to which a reference under Section 18
would be submitted:
Provided that any person admitted to be interested may receive
such payment under protest as to the sufficiency of the amount:
Provided also that no person who has received the amount
otherwise than under protest shall be entitled to make any
application under Section 18:
Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any part of
any compensation awarded under this Act, to pay the same to the
person lawfully entitled thereto.
(3) Notwithstanding anything in this section, the Collector may,
with the sanction of
56
[appropriate Government], instead ofawarding a money compensation in respect of any land, make any
arrangement with a person having a limited interest in such land,
either by the grant of other lands in exchange, the remission of
land-revenue on other lands held under the same title, or in such
other way as may be equitable having regard to the interests of
the parties concerned.
(4) Nothing in the last foregoing sub-section shall be construed
to interfere with or limit the power of the Collector to enter into
any arrangement with any person interested in the land and
competent to contract in respect thereof.
53. Code of Civil Procedure to apply to proceedings before Court.–
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Save in so far as they may be inconsistent with anything
92
contained in this Act, the provision of the [Code of Civil
Procedure, 1908, shall apply to all proceedings before the Court
under this Act.
[54. Appeals in proceedings before Court.–Subject to the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), applicable to
appeals from original decrees, and notwithstanding anything to the
contrary in any enactment for the time being in force, an appeal
shall only lie in any proceedings under this Act to the High Court
from the award, or from any part of the award, of the Court and
from any decree of the High Court passed on such appeal as
94
aforesaid an appeal shall lie to [the Supreme Court] subject to
the provisions contained in Section 110 of the Code of Civil
Procedure, 1908, and in Order XLV thereof.]”
19. At the outset, it is required to be noted that the Land
Acquisition Act is a benevolent legislation, which isformulated to provide compensation to the persons who have
lost their lands in acquisition proceedings. In many cases, the
persons lose their only source of livelihood. The compensation
awarded by the Land Acquisition Officer is often too meager
and therefore the provision is made that the claimants can
raise protest/objection against the amount awarded. On such
objection being recorded, the Land Acquisition Officer refers
the same to the Court under Section 18 of the LAQ Act,
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which is then decided by the Reference Court concerned.
Thereafter, when the claimants are not satisfied with the
awarded amount in reference, there is a provision for
preferring appeal before the High Court, however, there is no
provision in the entire Act to record any objection at the
time of withdrawing the said enhanced amount before the
Reference Court. The appeal is a statutory right for any
claimant/applicant to challenge the award/order, if it is not
satisfactory in their view. Therefore, prima facie, the
preliminary objection raised by the learned Government
Pleader of recording a protest at the time of withdrawing of
the enhanced amount in reference cannot be entertained.
20. As regards the huge delay caused in filing the appeal,
there cannot be any second thought that the delay is really
very huge to condone. However, the reasons mentioned in the
civil application for such a huge delay are to be seen. In the
land acquisition proceedings, generally, the claimants are
illiterate and poor farmers, with very limited resources at
their disposal to have the knowledge to challenge the award
before the higher forum. When the appeal is sought to be
filed in such a benevolent legislation, the delay caused in
filing the appeal cannot be straightaway rejected to be
condoned, as the claimants have lost their lands and have
been awarded a very meagre amount towards compensation.
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At the same time, if a person is sleeping for many years
and suddenly waking up and walking to file an appeal being
dissatisfied with the award, the burden of interest for all the
said period should not be saddled on the government, for no
fault of the government. Therefore, the ends of justice would
be met if the civil application for condonation of delay is
allowed and the first appeal be permitted to be registered to
be decided on merits would serve the purpose of the
claimants in pursuing their statutory right to appeal and at
the same time, not allowing the claimants to claim interest
for the delayed period which would serve the purpose of not
saddling the government with huge burden on exchequer.
21. With the above observation and the provisions of law,
now, a reference deserves to be made to the judgments
referred and relied on by learned advocates for the parties.
22. Learned Government Pleader has relied on the decisions,
wherein, in the case of Nathu(supra), it is held in
paragraphs 5,6 and 7 as under:
“5. A combined reading of these two provisions would show
that a reference petition under S. 18 of the Act can be
made only by such of the interested persons who have not
accepted the award. Section 31 then indicates as to what is
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meant by ‘a person interested who has not accepted the
award’. Proviso (1) to sub-sec. (1) of S. 31 lays down that
any person admitted to be interested may receive the
payment of compensation under protest as to the sufficiency
of the amount. The next proviso then clearly enjoins that no
person who has received the amount otherwise than under
protest shall be entitled to make any application under S.
18 of the Act. It is thus clear that before a person can be
held entitled to make an application under S. 18 of the Act,
it must be shown that he received the amount of
compensation under protest. The law does give an option to
receive the amount of compensation with or without protest
and in case a person chooses the latter course, he will lose
his right to apply for a reference under S. 18 of the Act.
The Act is silent with respect to the manner in which the
protest should be registered by a person interested to show
that he does not accept the award. In the absence of any
provision in the Act with respect to the manner and the
procedure for registering such a protest, it looks reasonable
to say that such a protest must be registered either before
the payment is received or latest at the time of receiving
the payment of the amount of compensation and that the
registration of such a protest must appear on the record
itself. Since the payment is made against receipt in writing,
it is legitimate to conclude that the protest should also be
registered in writing.
6. An application under S. 18 of the Act is required to be
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made before the Collector for onward transmission to the
Court. Since in terms of S. 31(2) of the Act no reference
petition under S. 18 of the Act lies at the instance of a
person who has received the amount of compensation without
protest, it would be the duty of the Collector to ensure
before forwarding an application under S. 18 of the Act to
the Court that the applicant had not received the amount of
compensation without protest. The Collector can do so only
after scrutinsing his own record since the protest, if any, is
supposed to have been registered there. I do not think that
it is necessary on the part of the Collector to hold an
inquiry into the matter after giving a notice to the applicant
when his own record shows that the amount of compensation
had been received by the applicant without protest. In any
case when there is no allegation in the reference petition
itself that the amount of compensation had been received by
the applicant under protest or that the applicant had not
accepted the award before receiving the payment, there
would arise no occasion for such an inquiry. I have perused
the original reference petition filed by the petitioner under
S. 18 of the Act and I find no allegation therein to the
effect that the petitioner had received the amount of
compensation under protest. It might have been a different
matter in case the petitioner had alleged in his reference
petition under S. 18 of the Act that he had received the
amount of compensation under protest or that he had
already registered his protest before receiving such payment.
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On the facts of the present case I find no infirmity, much
less illegality, in the order of the Land Acquisition Collector
refusing to forward the reference petition of the petitioner.
7. The learned counsel for the petitioner has drawn my
attention to a judgment of the learned Single Judge of this
Court in support of his contention that the Collector is
bound to hold an inquiry into the matter after notice to the
petitioner and only then can take a decision whether the
amount was received under protest. That was a decision
given in the facts of a particular case. An inquiry is called
for when there is controversy between the parties. In the
instant case, as already observed, there was no allegation
before the Collector if the petitioner had registered his
protest at the time of receiving the payment of the amount
of compensation or at any earlier occasion and as such there
arose no question to hold any inquiry. On the facts of this
case I find that the petitioner had received the amount of
compensation without registering any protest and in the
absence of any allegation to the contrary, there was no
occasion to hold an inquiry into the matter. In these
circumstances I find no merit in this revision petition which
is accordingly dismissed.”
22.1 In the case of Ramendra Kr.Battacharjee (supra), it is
held in paragraphs 10, 11 and 12 as under:
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10. It may also be mentioned that Section 31 of the L.A.
Act reads as follows:–
“31. Payment of compensation or deposit of same in Court.
— (1) On making an award under Section 11, the Collector
shall tender payment of the compensation awarded by him
to the persons interested entitled thereto according to the
award, and shall pay it to them unless prevented by some
one or more of the contingencies mentioned in the next sub-
section.
(2) If they shall not consent to receive it, or if there be no
person competent to alienate the land, or if there be any
dispute as to the title to receive the compensation or as to
the apportionment of it, the Collector shall deposit the
amount of the compensation in the Court to which a
reference under Section 18 would be submitted:
Provided that any person admitted to be interested may
receive such payment under protest as to the sufficiency of
the amount:
Provided also that no person who has received the amount
otherwise than under protest shall be entitled to make any
application under Section 18:
Provided also that nothing herein contained shall affect the
liability of any person, who may receive the whole or any
part of any compensation awarded under this act, to pay the
same to the person lawfully entitled thereto.
(3) Notwithstanding anything in this section, the Collector
may, with the sanction of appropriate Government instead of
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awarding a money compensation in respect of any land,
make any arrangement with a person having a limited
interest in such land, either by the grant of other lands in
exchange, the remission of land revenue on other lands held
under the same title, or in such other way as may be
equitable having regard to the interest of the parties
concerned.
(4) Nothing in the last foregoing sub-section shall be
construed to interfere with or limit the power of the
Collector to enter into any arrangement with any person
interested in the land and competent to contract in respect
thereof.”
11. From a combined reading of the provisions of Section 18
and Section 31 of the L.A. Act read with Section 12 thereof,
what transpires is that the Collector shall, according to
Section 12, issue a notice of the award to the person
interested in the land, which is acquired, to receive the
amount awarded by the Land Acquisition Collector. The
persons, who is interested in the land so acquired and who
has not accepted the award so made, may, by an application
addressed to the Collector, require that the matter be
referred by the Collector to a Court of competent jurisdiction
for determination of, inter alia, the amount of compensation.
The application, so made, shall contain the grounds on which
the objection to the award has been taken. If the Collector
makes the reference, the Court to which the reference is
made has to decide the reference.
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12. The question, now, is as to what is the object and scope
of Section 31, which is the subject of controversy in this
appeal. A careful reading of Section 31 shows that the
Collector had to tender payment of the compensation
awarded by him to the persons entitled to receive
compensation. The first proviso to sub-section (2) of Section
31 shows that the person to whom the payment of
compensation is made may receive the payment under
protest as regards the sufficiency of the amount. But the
second proviso to sub-section (2) of Section 31 shows that a
person, who has received the amount, otherwise than under
protest, would not be entitled to make any application under
Section 18. The logical conclusion from a careful reading of
the second proviso to Sub-section (2) of Section 31 is that
the person to whom the payment of the awarded amount is
tendered by the Collector has the liberty to receive the
amount, but if he receives the amount without any protest,
then, he shall not be entitled to make any application
seeking a reference to the Court. Both the proviso to sub-
section (2) of Section 31 have to be given realistic and
meaningful interpretation. The realistic interpretation will be
that the awardee of the amount must raise his protest
before he receives the payment. There is nothing in the
language of the two proviso to sub-section (2) of Section 31
to indicate that the protest must be made, in writing,
simultaneously and/or along with the receipt of the payment
and/or at the very moment of receipt of the payment. What
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the two proviso indicate is that the protest must be raised
after the payment of the amount awarded is tendered by the
Collector and must continue to exist at the time, when the
payment is received, meaning thereby that there is no
impediment on the part of the person to raise a protest on
any day after the amount awarded is tendered to him and
before he actually receives the payment of the awarded
amount. Such a person will forfeit or lose his right to seek
a reference under Section 18 only if he either waives the
protest, which he had already raised, or withdraws the
protest he had raised before actually receiving the awarded
amount. In the absence of waiver or withdrawal of protest,
the real and logical conclusion will be that the protest raised
by such a person has continued to exist at the time, when
he received the payment.
22.2 In the case of V.Chandrasekaran (supra), it is held in
paragraphs 33 and 34 as under:
33. This Court has earlier taken the view that, in case the
award is not accepted under protest, the persons interested
cannot make an application to make a reference under
Section 18 (vide Wardington Lyngdoh v. Collector [(1995) 4
SCC 428] ) wherein this Court held that, a person who has
received the amount of award made under Section 11 of the
Act, without protest, will not be entitled to make an
application under Section 18 of the Act. Therefore, receipt of
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the said amount under protest, is a condition precedent for
making an application under Section 18, within the
limitation prescribed under the Act.
34. The aforesaid view however, has not been consistently
reiterated, as is evident from the judgment in Ajit Singh v.
State of Punjab [(1994) 4 SCC 67] wherein it was held that,
merely an application under Section 18 of the Act would
make it clear that the person interested has not accepted
the award made by the authority.
22.3 In the case of K.S.Paripoornan (supra), it is held in
paragraphs 52 and 54 as under:
52. A three-Judge Bench of this Court in Bhag Singh v.
Union Territory of Chandigarh [(1985) 3 SCC 737]
disapproved the view taken in Kamalajammanniavaru [(1985)
1 SCC 582] and held that under sub-section (2) of Section
30 of the amending Act the provisions of the amended
Section 23(2) and Section 28 are made applicable to all
proceedings relating to compensation pending on 30-4-1982 or
filed subsequent to that date, whether before the Collector or
before the Court or the High Court or the Supreme Court,
even if they have finally terminated before the enactment of
the amending Act. The Court first considered what would be
the position if Section 30(2) were not enacted and the
amendments in sub-section (2) of Section 23 and Section 28
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were effective only from the date on which they were made,
namely, 24-9-1984, when the amending Act received the
assent of the President and was brought into force. After
observing that “if at the date of the amending Act, any
proceedings for determination of compensation were pending
before the Collector under Section 11 of the Act or before
the Court on a reference under Section 18 of the Act, the
amended Section 23 sub-section (2) and Section 28 would
admittedly be applicable to such proceedings”, the Court
posed the question: (SCC p. 743, para 5)
“But if an award were made by the Court on a
reference under Section 18 prior to the commencement of
the amending Act and an appeal against such award was
pending before the High Court under Section 54 at the
date of the commencement of the amending Act, which
provisions would the High Court have to apply in
deciding the appeal and determining the amount of
compensation : the amended provisions in Section 23 sub-
section (2) and Section 28 or the unamended provisions.”
The said question was thus answered: (SCR pp. 958-59 :
SCC pp. 743-44, para 5)
“The answer can only be that the High Court would
have to apply the provisions in the amended Section 23
sub-section (2) and Section 28. The appeal against the
award would be a continuation of the proceeding initiated
before the Court by way of reference under Section 18
and when the High Court hears the appeal, it would in
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effect and substance be hearing the reference and while
determining the amount of compensation, it would have to
give effect to Sections 23 and 28 as it finds them at the
date of decision of the appeal. When Section 23 sub-
section (1) provides that in determining the amount of
compensation the Court shall take into consideration
matters specified in the various sub-clauses of that sub-
section and sub-section (2) of Section 23 directs that in
addition to the market value of the land the Court shall
in every case award a sum of 15 per centum of such
market value in consideration of the compulsory nature of
the acquisition, the mandate of these two sub-sections
must apply equally whether the Court is hearing a
reference or the High Court is hearing an appeal against
an award made by the Court. The amended provisions in
Section 23 sub-section (2) and Section 28 would therefore
have to be applied by the High Court in determining the
amount of compensation. The same position would obtain
where an appeal against an award has been decided by
the High Court prior to the commencement of the
amending Act and an appeal against the order of the
High Court is pending before the Supreme Court at the
date of commencement of the amending Act or is filed
after such date.”
Thereafter the Court examined sub-section (2) of Section 30
of the amending Act and observed that by virtue of the said
provision the amended provisions of sub-section (2) of Section
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23 and Section 28 were made applicable also where the
proceedings were pending on 30-4-1982, the date when the
original Bill (which ultimately became the amending Act)
was introduced in Parliament, but were commenced after
that date even though they might have finally come to an
end before the enactment of the amending Act. The
expression “such award” in Section 30(2) was construed to
mean only the award made by the Collector or by the Court
and it was held that it does not import the time element
which finds place only at the end of the sentence and not
immediately followed by the words “any award made by the
Collector or Court”. It was, therefore, held that under
Section 30(2) the provisions of amended Section 23(2) and
Section 28 are applicable to all proceedings relating to
compensation pending on 30-4-1982 or filed subsequent to
that date, whether before the Collector or before the Court
or the High Court or the Supreme Court, even though they
have finally terminated before the enactment of the
Amendment Act.
54. Referring to the principle that an appeal is a
continuation of the proceeding initiated before the Court by
way of reference under Section 18, the learned Chief Justice
observed that “the application of a general principle must
yield to the limiting terms of the statutory provision itself”.
(SCR p. 340 : SCC p. 782, para 34) While construing the
provisions of Section 30(2) of the amending Act, it was held
that the words “any such award” in the context in which
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they appear in Section 30(2), are intended to refer to awards
made by the Collector or by the Court between 30-4-1982
and 24-9-1984 and they could not have the expanded
meaning given to them in Bhag Singh [(1985) 3 SCC 737].
22.4 In the case of N.Murugesan (supra), it is held in
paragraphs 25 and 26 as under:
25. Acquiescence would mean a tacit or passive acceptance.
It is implied and reluctant consent to an act. In other
words, such an action would qualify a passive assent. Thus,
when acquiescence takes place, it presupposes knowledge
against a particular act. From the knowledge comes passive
acceptance, therefore instead of taking any action against
any alleged refusal to perform the original contract, despite
adequate knowledge of its terms, and instead being allowed
to continue by consciously ignoring it and thereafter
proceeding further, acquiescence does take place. As a
consequence, it reintroduces a new implied agreement
between the parties. Once such a situation arises, it is not
open to the party that acquiesced itself to insist upon the
compliance of the original terms. Hence, what is essential, is
the conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When acquiescence
is followed by delay, it may become laches. Here again, we
are inclined to hold that the concept of acquiescence is to be
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seen on a case-to-case basis
26. These phrases are borrowed from the Scots law. They
would only mean that no party can be allowed to accept and
reject the same thing, and thus one cannot blow hot and
cold. The principle behind the doctrine of election is inbuilt
in the concept of approbate and reprobate. Once again, it is
a principle of equity coming under the contours of common
law. Therefore, he who knows that if he objects to an
instrument, he will not get the benefit he wants cannot be
allowed to do so while enjoying the fruits. One cannot take
advantage of one part while rejecting the rest. A person
cannot be allowed to have the benefit of an instrument
while questioning the same. Such a party either has to
affirm or disaffirm the transaction. This principle has to be
applied with more vigour as a common law principle, if such
a party actually enjoys the one part fully and on near
completion of the said enjoyment, thereafter questions the
other part. An element of fair play is inbuilt in this
principle. It is also a species of estoppel dealing with the
conduct of a party. We have already dealt with the
provisions of the Contract Act concerning the conduct of a
party, and his presumption of knowledge while confirming an
offer through his acceptance unconditionally.
22.5 In the case of Cauvery Coffee Traders (supra), it is
held in paragraphs 33, 34 and 35 as under:
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33. In R.N. Gosain v. Yashpal Dhir [(1992) 4 SCC 683 :
AIR 1993 SC 352] this Court has observed as under : (SCC
pp. 687-88, para 10)
“10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the
same instrument and that ‘a person cannot say at one time
that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for
the purpose of securing some other advantage’.”
34. A party cannot be permitted to “blow hot and cold”,
“fast and loose” or “approbate and reprobate”. Where one
knowingly accepts the benefits of a contract or conveyance or
an order, is estopped to deny the validity or binding effect
on him of such contract or conveyance or order. This rule is
applied to do equity, however, it must not be applied in a
manner as to violate the principles of right and good
conscience. (Vide Nagubai Ammal v. B. Shama Rao [AIR
1956 SC 593] , CIT v. V.MR.P. Firm Muar [AIR 1965 SC
1216] , Maharashtra SRTC v. Balwant Regular Motor
Service [AIR 1969 SC 329] , P.R. Deshpande v. Maruti
Balaram Haibatti [(1998) 6 SCC 507 : AIR 1998 SC 2979] ,
Babu Ram v. Indra Pal Singh [(1998) 6 SCC 358 : AIR
1998 SC 3021] , NTPC Ltd. v. Reshmi Constructions,Page 33 of 59
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Builders & Contractors [(2004) 2 SCC 663 : AIR 2004 SC
1330] , Ramesh Chandra Sankla v. Vikram Cement [(2008)14 SCC 58 : (2009) 1 SCC (L&S) 706 : AIR 2009 SC 713]
and Pradeep Oil Corpn. v. MCD [(2011) 5 SCC 270 : (2011)
2 SCC (Civ) 712] .)
35. Thus, it is evident that the doctrine of election is based
on the rule of estoppel–the principle that one cannot
approbate and reprobate inheres in it. The doctrine of
estoppel by election is one of the species of estoppels in pais
(or equitable estoppel), which is a rule in equity. By that
law, a person may be precluded by his actions or conduct or
silence when it is his duty to speak, from asserting a right
which he otherwise would have had.
22.6 In the case of Waman Shriniwaskini (supra), it is held
in paragraphs 13, 14 and 15 as under:
13. The plea of waiver was taken for the first time in this
Court in arguments. Waiver is not a pure question of law
but it is a mixed question of law and fact. This plea was
neither raised nor considered by the courts below and
therefore ought not to be allowed to be taken at this stage
of the proceedings. But it was argued on behalf of the
appellant that according to the law of India the duty of a
pleader is to set up the facts upon which he relied and not
any legal inference to be drawn from them and as he had
set up all the circumstances from which the plea of waiver
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could be inferred he should be allowed to raise and argue it
at this stage even though it had not been raised at any
previous stage not even in the statement of case filed in
this Court and he relied upon Gouri Dutt Ganesh Lal Firm
v. Madho Prasad [AIR (1943) PC 147] . Assuming that to be
so and proceeding on the facts found in this case the plea
of waiver cannot be raised because as a result of giving
effect to that plea the Court would be enforcing an illegal
agreement and thus contravene the statutory provisions of
Section 15 based on public policy and produce the very
result which the statute prohibits and makes illegal. In
Surajmull Nargoremull v. Triton Insurance Co. [(1924) LR 52
IA 126 128] Lord Sumner said:
“No Court can enforce as valid that which competent
enactments have declared shall not be valid, nor is obedience
to such an enactment a thing from which a Court can be
dispensed by the consent of the parties, or by a failure to
plead or to argue the point at the outset : Nixon v. Albion
Marine Insurance Co. [(1867) LR 2 Ex 338] . The enactment
is prohibitory. It is not confined to affording a party aprotection of which he may avail himself or not as he
pleases. It is not framed solely for the protection of the
revenue and to be enforced solely at the instance of the
revenue officials, nor is the prohibition limited to cases for
which a penalty is exigible.”
In the instant case the question is not merely of waiver of
statutory rights enacted for the benefit of an individual but
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whether the Court would aid the appellant in enforcing a
term of the agreement which Section 15 of the Act declares
to be illegal by enforcing the contract the consequence will
be the enforcement of an illegality and infraction of a
statutory provision which cannot be condoned by any conduct
or agreement of parties. Dhanukudhari Singh v. Nathima
Sahu [(1907) II CWN 848, 852] . In Corpus Juris Secundum
Vol. 92 at p. 1068 the law as to waiver is stated as follows:
“… a waiver in derogation of a statutory right is not
favoured, and a waiver will be inoperative and void if it
infringes on the rights of others, or would be against public
policy or morals….”
In Bowmakers Ltd. v. Barnet Instruments Ltd. [(1945) I KB
65, 72] the same rule was laid down. Mulla in his Contract
Act at p. 198 has stated the law as to waiver of an
illegality as follows:–
“Agreements which seek to waive an illegality are void on
grounds of public policy. Whenever an illegality appears,
whether from the evidence given by one side or the other,
the disclosure is fatal to the case. A stipulation of the
strongest form to waive the objection would be tainted with
the vice of the original contract and void for the same
reasons. Wherever the contamination reaches, it destroys.”
This, in our opinion, is a correct statement of the law and
is supported by high authority. Field, J. in Oscanyan v.
Winchester Arms Company [(1881) 103 US 261, 268 : 26
LEd 539] quoted with approval the observation of Swayne, J.
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in Hall v. Coppell [ Wallace 542] :
“The principle is indispensable to the purity of its
administration. It will not enforce what it has forbidden and
denounced. The maxim Ex dolo malo non oritur actio , is
limited by no such qualification. The proposition to the
contrary strikes us as hardly worthy of serious refutation.
Wherever the illegality appears, whether the evidence comes
from one side or the other, the disclosure is fatal to the
case. No consent of the defendant can neutralise its effect. A
stipulation in the most solemn form, to waive the objection,
would be tainted with the vice of the original contract, and
void for the same reasons. Wherever the contamination
reaches, it destroys.”
Waiver is the abandonment of a right which normally
everybody is at liberty to waive. A waiver is nothing unless
it amounts to a release. It signifies nothing more than an
intention not to insist upon the right. It may be deduced
from acquiescence or may be implied. Chitty on Contract
21st Ed. p. 381 : Stackhouse v. Barnston [(1805) 10 Ves
453, 466 : 32 ER 921] . But an agreement to waive an
illegality is void on grounds of public policy and would be
unenforceable.
14. In Mytton v. Gilbert [(1787) 2 TR 171 : 100 ER 91]
Ashurst, J., said:
“Besides, there is still further reason why the trustees
should not be estopped; for this is a public Act of
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Parliament, and the Courts are bound to take notice that
the trustees under this Act had no power to mortgage the
toll-houses. This deed therefore cannot operate in direct
opposition to an Act of Parliament, which negatives the
estoppel”.
15. Vaughan Williams, L.J., in Norwich Corporation v.
Norwich Electric Tramways Company [(1906) 2 KB 119, 124]
said:
“The case is not like that of a provision in an agreement
which is for the benefit of one of the parties and which he
may waive. This is a provision in an Act of Parliament,
which, though to some extent it may be for the benefit of
the parties to the difference, must be regarded as inserted
in the interest of the public also.”
In that case there was a provision made by the legislature
that disputes mentioned in the section of the Act were to be
determined by an Expert nominated by the Board of Trade
and it was contended that though not in the strict technical
sense estoppel, it was a waiver of the provisions introduced
into the Statute for the benefit of private rights. No doubt
that was a case which proceeded on a question of
jurisdiction but the judgment proceeded on the principle of
waiver of a statutory provision inserted in public interest.
Thus the plea of waiver is unsustainable.
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22.7 In the case of Garikapati Veeraya (supra), it is held in
paragraph 23 as under:
23. From the decisions cited above the following principles
clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of proceedings
all connected by an intrinsic unity and are to be regarded
as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure
but is a substantive right.
(iii) The institution of the suit carries with it the implication
that all rights of appeal then in force are preserved to the
parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right
to enter the superior court accrues to the litigant and exists
as on and from the date the lis commences and although it
may be actually exercised when the adverse judgment is
pronounced such right is to be governed by the law
prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of
its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a
subsequent enactment, if it so provides expressly or by
necessary intendment and not otherwise.
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22.8 In the case of Bihari (Dead) through Lrs. And others
(supra), it is held in paragraph 4 as under:
4. Even otherwise, it is required to be noted that after the
impugned judgment and order has been passed by the High
Court enhancing the compensation to Rs. 28.12 Per Square
Yard, in fact, the respondents accepted the judgment and
order passed by the High Court and deposited the entire
amount as awarded by the High Court and even the
landowners received the same in the year 2013 accepting the
judgment and order passed by the High court awarding
compensation at the rate of Rs. 28.12 per square yard.
Therefore, even the cause shown explaining the delay is not
acceptable.
22.9 In the case of Chimanlal Hargovinddas (supra), it is
held in paragraph 4 as under:
4. The following factors must be etched on the mental
screen:
(1) A reference under Section 18 of the Land Acquisition Act
is not an appeal against the award and the court cannot
take into account the material relied upon by the Land
Acquisition Officer in his award unless the same material is
produced and proved before the court.
(2) So also the award of the Land Acquisition Officer is not
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to be treated as a judgment of the trial court open or
exposed to challenge before the court hearing the reference.
It is merely an offer made by the Land Acquisition Officer
and the material utilised by him for making his valuation
cannot be utilised by the court unless produced and proved
before it. It is not the function of the court to sit in appeal
against the award, approve or disapprove its reasoning, or
correct its error or affirm, modify or reverse the conclusion
reached by the Land Acquisition Officer, as if it were an
appellate court.
(3) The court has to treat the reference as an original
proceeding before it and determine the market value afresh
on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to
show that the price offered for his land in the award is
inadequate on the basis of the materials produced in the
court. Of course the materials placed and proved by the
other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be
determined as on the crucial date of publication of the
notification under Section 4 of the Land Acquisition Act
(dates of notifications under Sections 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date
line of valuation (date of publication of notification under
Section 4) as if the valuer is a hypothetical purchaser
willing to purchase land from the open market and is
prepared to pay a reasonable price as on that day. It has
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also to be assumed that the vendor is willing to sell the
land at a reasonable price.
(7) In doing so by the instances method, the court has to
correlate the market value reflected in the most comparable
instance which provides the index of market value.
(8) Only genuine instances have to be taken into account.
(Sometimes instances are rigged up in anticipation of
acquisition of land.)
(9) Even post-notification instances can be taken into account
(1) if they are very proximate, (2) genuine and (3) the
acquisition itself has not motivated the purchaser to pay a
higher price on account of the resultant improvement in
development prospects.
(10) The most comparable instances out of the genuine
instances have to be identified on the following
considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index
of market value the price reflected therein may be taken as
the norm and the market value of the land under
acquisition may be deduced by making suitable adjustments
for the plus and minus factors vis-à-vis land under
acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be
drawn for this purpose and the relevant factors may be
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evaluated in terms of price variation as a prudent purchaser
would do.
(13) The market value of the land under acquisition has
thereafter to be deduced by loading the price reflected in the
instance taken as norm for plus factors and unloading it for
minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be
undertaken in a common sense manner as a prudent man of
the world of business would do. We may illustrate some
such illustrative (not exhaustive) factors:’
Plus factors Minus factors
1. smallness of size 1. largeness of area
2. proximity to a road 2. situation in the interior at a distance
from the road.
3. frontage on a road 3. narrow strip of land with very small
frontage compared to depth
4. nearness to developed area 4. lower level requiring the depressed
portion to be filled up
5. regular shape 5. remoteness from developed locality
6. level vis-a-vis land under 6. some special disadvantageous
acquisition factor which would deter a purchaser
7. special value for an owner of an
adjoining property to whom it may
have some very special advantage(15) The evaluation of these factors of course depends on the
facts of each case. There cannot be any hard and fast or
rigid rule. Common sense is the best and most reliable
guide. For instance, take the factor regarding the size. A
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building plot of land say 500 to 1000 sq. yds. cannot be
compared with a large tract or block of land of say 10,000
sq. yds. or more. Firstly while a smaller plot is within the
reach of many, a large block of land will have to be
developed by preparing a lay out, carving out roads, leaving
open space, plotting out smaller plots, waiting for purchasers
(meanwhile the invested money will be blocked up) and the
hazards of an entrepreneur. The factor can be discounted by
making a deduction by way of an allowance at an
appropriate rate ranging approximately between 20 per cent
to 50 per cent to account for land required to be set apart
for carving out lands and plotting out small plots. The
discounting will to some extent also depend on whether it is
a rural area or urban area, whether building activity is
picking up, and whether waiting period during which the
capital of the entrepreneur would be locked up, will be
longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern
bearing in mind all these factors as a prudent purchaser of
land in which position the judge must place himself.
(17) These are general guidelines to be applied with
understanding informed with common sense.
22.10 In the case of Bhanu Kumar Jain (supra), it is
held in paragraph 36 as under:
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36. However, it appears that in none of the aforementioned
cases, the question as regards the right of the defendant to
assail the judgment and decree on merits of the suit did not
(sic) fall for consideration. A right to question the correctness
of the decree in a first appeal is a statutory right. Such a
right shall not be curtailed nor shall any embargo be fixed
thereupon unless the statute expressly or by necessary
implication says so. (See Deepal Girishbhai Soni v. United
India Insurance Co. Ltd. [(2004) 5 SCC 385 : 2004 SCC
(Cri) 1623] and Chandravathi P.K. v. C.K. Saji [(2004) 3SCC 734 : 2004 SCC (L&S) 544] .)
22.11 In the case of Garikapati Veeraya (supra), it is
held in paragraph 28 as under:
28. In exercise of the powers conferred on him by Article
372(2), the President promulgated the Adaptation of Laws
Order, 1950, which came into force simultaneously with the
Constitution on January 26, 1950. In the first schedule
dealing with the Central Acts are set out the adaptations
made in the Code of Civil Procedure. It is to be noted that
Sections 109 and 110 of the Code of Civil Procedure were
not deleted altogether but were modified only. The sections
as adapted run as follows:
“109. Subject to the provisions in Chapter IV of Part V of
the-Constitution and such rules as may, from time to time,
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be made by the Supreme Court regarding appeals from the
Courts of India, and to the provisions hereinafter contained,
an appeal shall lie to the Supreme Court–
(a) from any judgment, decree or final order passed on
appeal by a High Court or by any other Court of final
appellate jurisdiction;
(b) from any judgment, decree or final order passed by a
High Court in the exercise of original civil jurisdiction; and
(c) from any judgment, decree or order, when the case, as
hereinafter provided, is certified to be a fit one for appeal to
the Supreme Court.
110. In each of the cases mentioned in clauses ( a) and (b) of
Section 109, the amount or value of the subject-matter of
the suit in the Court of first instance must be twenty
thousand Rs or upwards, and the amount or value of the
subject-matter in dispute on appeal to the Supreme Court
must be the same sum or upwards,
or the judgment, decree or final order must involve, directly
or indirectly, some claim or question to or respecting
property of like amount or value,
and where the judgment, decree or final order appealed from
affirms the decision of the Court immediately below the
Court passing such judgment, decree or final order, the
appeal must involve some substantial question of law.”
This adaptation, however, was subject to the provisions of
clause 20 of the Order itself, which runs as follows:
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“20. Nothing in this Order shall affect the previous operation
of, or anything duly done or suffered under, any existing
law, or any right, privilege, obligation or liability already
acquired, accrued or incurred under any such law, or any
penalty, forfeiture or punishment incurred in respect of any
offence already committed against any such law.”
22.12 In the case of Patel Natvarbhai Prabhudas (supra),
it is held in paragraph 4 as under:
4. On 25.5.1993, according to the petitioners, they filed
reference application seeking enhancement of compensation on
11.6.1993. The case of the petitioners is that the respondent-
Land Acquisition Officer rejected the reference application on
the ground that these petitioners had accepted award and,
therefore, under Sec. 18 of the Land Acquisition Act there
cannot be any reference to the District Court for
enhancement of compensation. The petitioners challenge the
order passed by the respondent on 4.8.1993.
23. At this stage, it will also be appropriate and fruitful to
refer to the judgments which are most relevant in view of
the above mentioned provisions of law, which are as under:
23.1 In the case of Ningappa Thotappa Angadi (supra),
wherein it is held in paragraphs 6 and 7 as under:
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6. We have heard the learned counsel for the parties and
perused the record.
7. We find that the issue raised in this appeal is no longer
res integra. This Court in Dhiraj Singh v. State of Haryana
[Dhiraj Singh v. State of Haryana, (2014) 14 SCC 127 : (2015)
1 SCC (Civ) 236] held that : (SCC p. 131, paras 14-15)
“14. The appellants are identically situated and there is no
reason to meet out a different treatment to them. We also
note that, while in these cases, the High Court had refused
to condone the delay and dismissed the LPAs of the
appellants, other LPAs were allowed by the High Court itself
by condoning the delay of the same magnitude in the same
circumstances.
15. Equities can be balanced by denying the appellants’
interest for the period for which they did not approach the
court. The substantive rights of the appellants should not be
allowed to be defeated on technical grounds by taking
hypertechnical view of self-imposed limitations. In the matter
of compensation for land acquisition, we are of the view
that approach of the court has to be pragmatic and not
pedantic.”
23.2 In the case of K.Subbarayudu and others (supra), it is
held in paragraphs 8 to 11, 13 and 18 as under:
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8. Heard the learned counsel for the parties at some length.
Perused the impugned judgment and considered the
documents and other materials placed on record.
9. The High Court dismissed the claimants’ appeal mainly
on the ground of delay of 3671 days in filing the appeal. On
perusal of records, it is seen that the appellants have
explained the reason for the delay in filing the appeal
stating that they have entrusted the relevant papers to their
co-villager, namely, Pullaiah who is well-conversant with the
court proceedings and the said Pullaiah has also taken steps
to engage an advocate at Hyderabad and the said Pullaiah
informed that the appeal was filed and left for Kuwait to
eke out his livelihood. Thus the appellant claimants were
under the impression that the appeal has been filed. The
claimants have further stated that when they inquired the
said Pullaiah, he informed them that he went to the house
of Shri Jaganmohan Raju, Advocate and he learnt that the
said advocate is no more and expired in 2012 itself and on
enquiry with the clerk of the said advocate, he learnt that
no appeal has been filed and this has caused a delay of
3671 days in filing the appeal. The High Court rejected the
explanation given by the appellants on the ground that there
are contradictions between the affidavit filed by the said
Pullaiah and the stand of the claimants and being not
satisfied with the reason for the delay of 3671 days in
preferring the appeal, the High Court dismissed the appeal.
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10. Before the High Court, the appellants relied upon
Yellasiri Sarojanamma case [ LASS No. 46 of 2015] , in
which the High Court condoned the delay of 3386 days in
filing the land acquisition appeal suit subject to the
condition that in the event, the appellant claimant thereon
succeed in appeal, she is not entitled to any interest in
respect of the period of delay. The appellants contended that
the same approach ought to have been adopted in the case
of the appellants also. Insofar as, the reliance placed upon
by the claimants in LASS No. 46 of 2015, the High Court
seems to have brushed aside the contention of the appellants
on the puerile ground that the relevant fact situation in the
said case is not forthcoming in the said order. In our view,
the High Court was not right in adopting a different
yardstick in the case of the appellants in not condoning the
delay.
11. The term “sufficient cause” is to receive liberal
construction so as to advance substantial justice, when no
negligence, inaction or want of bona fides is attributable to
the appellants, the Court should adopt a justice-oriented
approach in condoning the delay. In State of Nagaland v.
Lipok Ao [State of Nagaland v. Lipok Ao, (2005) 3 SCC 752
: 2005 SCC (Cri) 906] , it was held as under : (SCC p. 757,
para 8)
“8. … Section 5 is to be construed liberally so as to do
substantial justice to the parties. The provision contemplates
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that the court has to go in the position of the person
concerned and to find out if the delay can be said to have
resulted from the cause which he had adduced and whether
the cause can be recorded in the peculiar circumstances of
the case as sufficient.”
13. When the court concerned has exercised its discretion
either condoning or declining to condone the delay, normally
the superior court will not interfere in exercise of such
discretion. The true guide is whether the litigant has acted
with due diligence. Since the appellant claimants are the
agriculturists whose lands were acquired and when similarly
situated agriculturists were given a higher rate of
compensation, there is no reason to decline the same to the
appellants. Merely on the ground of delay such benefit
cannot be denied to the appellants. The interest of justice
would be served by declining the interest on the enhanced
compensation and also on the solatium and other statutory
benefits for the period of delay.
18. Compensation awarded to the appellants is enhanced to
Rs 1500 for each pomegranate tree and Rs 250 for each
lime tree. The appellants are also entitled to all statutory
benefits like solatium and other benefits and interest on the
same. It is further directed that the appellants shall not be
entitled to any interest during the period of delay of 3671
days. The appeal is partly allowed in the above terms.
Parties are to bear their respective costs.
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23.3 In the case of Pathapati Subba Reddy (Died) by L.Rs.
And others (supra), it is held in paragraphs 13 to 17, 25 and
29 as under:
13. It is very elementary and well understood that courts
should not adopt an injustice-oriented approach in dealing
with the applications for condonation of the delay in filing
appeals and rather follow a pragmatic line to advance
substantial justice.
14. It may also be important to point out that though on
one hand, Section 5 of the Limitation Act is to be construed
liberally, but on the other hand, Section 3 of the Limitation
Act, being a substantive law of mandatory nature has to be
interpreted in a strict sense. In Bhag Mal alias Ram Bux v.
Munshi (Dead) by LRs.1, it has been observed that different
provisions of Limitation Act may require different
construction, as for example, the court exercises its power in
a given case liberally in condoning the delay in filing the
appeal under Section 5 of the Limitation Act, however, the
same may not be true while construing Section 3 of the
Limitation Act. It, therefore, follows that though liberal
interpretation has to be given in construing Section 5 of the
Limitation Act but not in applying Section 3 of the
Limitation Act, which has to be construed strictly.
15. It is in the light of the public policy upon which law of
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limitation is based, the object behind the law of limitation
and the mandatory and the directory nature of Section 3
and Section 5 of the Limitation Act that we have to
examine and strike a balance between Section 3 and Section
5 of the Limitation Act in the matters of condoning the
delay.
16. Generally, the courts have adopted a very liberal
approach in construing the phrase ‘sufficient cause’ used in
Section 5 of the Limitation Act in order to condone the
delay to enable the courts to do substantial justice and to
apply law in a meaningful manner which subserves the ends
of justice. In Collector, Land Acquisition, Anantnag v. Katiji ,
2
this Court in advocating the liberal approach in condoning
the delay for ‘sufficient cause’ held that ordinarily a litigant
does not stand to benefit by lodging an appeal late; it is not
necessary to explain every day’s delay in filing the appeal;
and since sometimes refusal to condone delay may result in
throwing out a meritorious matter, it is necessary in the
interest of justice that cause of substantial justice should be
allowed to prevail upon technical considerations and if the
delay is not deliberate, it ought to be condoned.
Notwithstanding the above, howsoever, liberal approach is
adopted in condoning the delay, existence of ‘sufficient cause’
for not filing the appeal in time, is a condition precedent for
exercising the discretionary power to condone the delay. The
phrases ‘liberal approach’, ‘justice-oriented approach’ and
cause for the advancement of ‘substantial justice’ cannot be
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employed to defeat the law of limitation so as to allow stale
matters or as a matter of fact dead matters to be revived
and re-opened by taking aid of Section 5 of the Limitation
Act.
17. It must always be borne in mind that while construing
‘sufficient cause’ in deciding application under Section 5 of
the Act, that on the expiry of the period of limitation
prescribed for filing an appeal, substantive right in favour of
a decree-holder accrues and this right ought not to be lightly
disturbed. The decree-holder treats the decree to be binding
with the lapse of time and may proceed on such assumption
creating new rights.
25. This Court in the same breath in the same very decision
vide paragraph 15 went on to observe as under:
“15. The law on the issue can be summarised to the effect
that where a case has been presented in the court beyond
limitation, the applicant has to explain the court as to what
was the “sufficient cause” which means an adequate and
enough reason which prevented him to approach the court
within limitation. In case a party is found to be negligent, or
for want of bona fide on his part in the facts and
circumstances of the case, or found to have not acted diligently
or remained inactive, there cannot be a justified ground to
condone the delay. No court could be justified in condoning
such an inordinate delay by imposing any condition whatsoever.
The application is to be decided only within the parameters
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laid down by this Court in regard to the condonation of delay.
In case there was no sufficient cause to prevent a litigant to
approach the court on time condoning the delay without any
justification, putting any condition whatsoever, amounts to
passing an order in violation of the statutory provisions and it
tantamounts to showing utter disregard to the legislature.”
29. The other decision relied upon in this regard is the case
of Imrat Lal v. Land Acquisition Collector . In this case also
10
the matter was regarding determination of compensation for the
acquired land and there was a delay of 1110 days in filing the
appeal for enhancement of compensation. Despite findings that
no sufficient cause was shown in the application for condoning
the delay, this Court condoned the delay in filing the appeal as
a large number of similarly situate persons have been granted
relief by this Court.
23.4 In the case of Collector, Land Acquisition,
Anantnag and Another v. Mst. Katiji and Others reported in
AIR 1987 SC 1353, which still holds the field, it has been
observed as under :-
“3. The legislature has conferred the power to
condone delay by enacting Section 5 of the Indian
Limitation Act of 1963 in order to enable the
Courts to do substantial justice to parties by
disposing of matters on ‘merits’. The expressionPage 55 of 59
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“sufficient cause” employed by the legislature is
adequately elastic to enable the courts to apply the
law in a meaning- ful manner which subserves the
ends of justice that being the life-purpose for the
existence of the institution of Courts. It is common
knowledge that this Court has been making a
justifiably liberal approach in matters instituted in
this Court. But the message does not appear to
have percolated down to all the other Courts in the
hierarchy. And such a liberal approach is adopted
on principle as it is realized that:-
1. Ordinarily a litigant does not stand to benefit by
lodging an appeal late.
2. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As
against this when delay is con- doned the highest
that can happen is that a cause would be decided
on merits after hearing the parties.
3. “Every day’s delay must be explained” does not
mean that a pedantic approach should be made.
Why not every hour’s delay, every second’s delay?
The doctrine must be applied in a rational common
sense pragmatic manner.
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4. When substantial justice and technical
considerations are pitted against each other, cause
of substantial justice deserves to be preferred for
the other side cannot claim to have vested right in
injustice being done because of a non-deliberate
delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or
on account of mala fides. A litigant does not stand
to benefit by resorting to delay. In fact he runs a
serious risk.
6. It must be grasped that judiciary is respected
not on account of its power to legalize injustice on
technical grounds but because it is capable of
removing injustice and is expected to do so.”
24. In over all view of the matter, the protest/objection is
required to be registered at the time of the award passed by
the Land Acquisition Officer under Section 11 of the LAQ
Act as per the statute and the submission of the learned
Government Pleader that the protest/objection is required to
be registered/filed after the Reference Court passes the award
under Section 18 of the LAQ Act as it is a prerequisition for
the claimants to file an appeal under Section 54 of the LAQ
Act before this Court, is ill-founded, as there is no such
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requirement under the statute and the right to file an appeal
is a statutory right available to the claimant/s. Therefore, the
said submission of the learned Government Pleader is
required to be rejected.
25. As regards the aspect of condonation of such huge
delay, as recorded hereinabove, considering the fact that the
claimants have lost their valuable lands in acquisition process
and are not having sufficient knowledge of various aspects
about market price and/or entitlement of amount of
compensation and in view of the various judgments of the
Hon’ble Apex Court and this Court, it is consistent view to
order to the effect that the claimants will not be entitled to
claim interest for the delayed period for filing the first
appeal. On perusal of the averments of the present applicant,
it can be held that sufficient cause is made out for
condonation of delay, which can be considered by imposing
some condition on applicant/s to waive the interest for the
period of delay, in the interest of justice.
26. In view of the above, as sufficient cause is made
out, this application is required to be allowed by condoning
the delay caused in filing the first appeal.
27. Accordingly, this application is allowed. The delay
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C/CA/2464/2024 ORDER DATED: 08/10/2024
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caused in filing the first appeal is condoned on condition that
the claimants will not be entitled to claim the interest for
the delayed period from the date of judgment of reference
Court to the date of filing of first appeals.
28. Registry to register the first appeal and place on
board for admission.
(SANDEEP N. BHATT,J)
SRILATHA
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