# Om Prakash & Ors v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 280
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-17
- **Case number:** Writ C No. 17214 of 2020
- **Bench:** Munishwar Nath Bhandari, Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-ors-v-state-of-u-p-ors-45999
- **Pages:** 11

## Headnote

(A) Civil law - Land Acquisition Act,
1894 - Section 4 - notification ,
Section 28-A - application for Redetermination
of
the
amount
of
compensation on the basis of the
award of the Court - application
under Section 28A of the Act would be
maintainable when it is submitted
within three months from the date of
the award of the Reference Court -
application
submitted
beyond
the
period given therein, would be barred
by limitation - A direction for its
consideration can be given only when
it is maintainable and not otherwise.
(Para -13,26)

Land belonging to the petitioners was
acquired - notification - award - petitioners
accepted compensation - compensation of
other land determined on higher side -
reference under Section 18 followed by the
judgment of the Civil Court and finally by the
Apex Court - application under Section 28A
of the Act for enhancement of compensation
- question for consideration - whether a
direction for enhancement of compensation
can be given in the light of Section 28A of
the Act of 1894 and for that consideration of
the application having not preferred within
three months to the award of the Court .
(Para - 2)
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
281
HELD:- A direction to the authority to consider
the
application
cannot
be
given
without
considering relevant provisions of the law. The
application
under
Section
28A
is
not
maintainable in this case having been filed after
lapse
of
three
years
of
the
judgment.
Accordingly, the directions sought by the
petitioners cannot be given.(Para -28)

Writ Petition dismissed. (E-6)

List of Cases cited :-

## Text

280 INDIAN LAW REPORTS ALLAHABAD SERIES
hand, except alleging that the policy was
altered by the Government, to extend the
benefit to respondent No. 4, no material
whatsoever has been placed on record by
the appellant. We are, therefore, unable to
uphold the contention of the learned
counsel that the impugned action is mala
fide or malicious."

13. The principles laid down in the
aforesaid case have been reiterated by
Hon'ble Supreme Court in the case of
Chandra Prakash Singh and others vs.
Chairman, Purvanchal Gramin Bank
and others, (paras-15 and 16).

14. In the case of Tara Chand
Khatri vs. Municipal Corporation of
Delhi and others, (para-27), Hon'ble
Supreme Court held that the High Court
would be justified in refusing to carry on
investigation into the allegations of mala
fides if necessary particulars of the charge
making out a prima facie case are not given
in the writ petition. The burden of
establishing mala fide lies very heavily on
the person who alleges it.

15. In view of the discussion made
above, we find that the petitioners have
completely failed to prove the allegations
of mala fide. The impugned notification
does not suffer from any error of law or
mala
fide.
Therefore,
the
second
submission made by learned counsel for the
petitioners, is rejected.

16. For all the reasons afore-stated,
the writ petition is dismissed.
----------
(2021)01ILR A280
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.11.2020

BEFORE
THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE PIYUSH AGRAWAL, J.

Writ C No. 17214 of 2020

Om Prakash & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Yayadeo Sharma, Deepika Sharma

Counsel for the Respondents:
C.S.C., Sri Anuj Pratap Singh, Sri Pratik J.
Nagar

(A) Civil law - Land Acquisition Act,
1894 - Section 4 - notification ,
Section 28-A - application for Redetermination
of
the
amount
of
compensation on the basis of the
award of the Court - application
under Section 28A of the Act would be
maintainable when it is submitted
within three months from the date of
the award of the Reference Court -
application
submitted
beyond
the
period given therein, would be barred
by limitation - A direction for its
consideration can be given only when
it is maintainable and not otherwise.
(Para -13,26)

Land belonging to the petitioners was
acquired - notification - award - petitioners
accepted compensation - compensation of
other land determined on higher side -
reference under Section 18 followed by the
judgment of the Civil Court and finally by the
Apex Court - application under Section 28A
of the Act for enhancement of compensation
- question for consideration - whether a
direction for enhancement of compensation
can be given in the light of Section 28A of
the Act of 1894 and for that consideration of
the application having not preferred within
three months to the award of the Court .
(Para - 2)
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
281
HELD:- A direction to the authority to consider
the
application
cannot
be
given
without
considering relevant provisions of the law. The
application
under
Section
28A
is
not
maintainable in this case having been filed after
lapse
of
three
years
of
the
judgment.
Accordingly, the directions sought by the
petitioners cannot be given.(Para -28)

Writ Petition dismissed. (E-6)

List of Cases cited :-

1. Muni Ram & ors. Vs St. of U.P. & ors. ,
Special Leave Petition (C) Diary No. 42598/2019

2. Patram & ors. Vs St. of U.P. & 2 ors., Writ C
No. 15726 of 2019 decided on 16.09.2019

3. Sukhdeo & ors. Vs St. of U.P., AIR 1992
Allahabad 142

4. K. Subbarayudu & ors. Vs The Special Deputy
Collector (Land Acquisition), 2017 (8) SCALE
Page 61

5. Karan Singh & 16 ors. Vs St. of U.P. & 2 ors.,
Writ C No. 329 of 2020 decided on 07.01.2020

6. Ramesh & 31 ors. Vs St. of U.P. & 2 ors., Writ
C No. 603 of 2020 decided on 28.01.2020

7. U.O.I. Vs Mangatu Ram & ors., 1997 (6) SCC
59

8. Babua Ram & ors. Vs St. of U.P. & anr., 1995
(2) SCC 689

9. St. of An. P. & anr. Vs Marri Venkaiah & ors.,
2003 (7) SCC 280

10. Tota Ram Vs St. of U.P. & ors., 1997 (6)
SCC 280

11. Sakuru Vs Tanaji, AIR 1985 Supreme Court
1279

(Delivered by Hon'ble Munishwar Nath
Bhandari, J. &
Hon'ble Piyush Agrawal, J.)

1. This writ petition has been filed
with the following reliefs which are quoted
herein for ready reference-:

"(i) Issue a writ, order or
direction in the nature of mandamus
directing to the respondent no.2 to decide
the application of the petitioner under
Section 28A Land Acquisition Act dated
20.02.2020 very expeditiously by the
reasoned
and
speaking
order
and
communicate to the petitioners.

(ii) Issue a writ, order or
direction in the nature of mandamus
directing to the respondents to provide the
compensation of the petitioners of the
acquired land at the rate of Rs. 65/- per sq.
yard along with other benefit and interest
of the solatium according to law.

(iii) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case.

(iv) Award to cost of the petition
in favour of the petitioners."

2. It is a case where a land belonging
to the petitioners in village Gujarpur was
acquired. A notification under Section 4 of
the Land Acquisition Act, 1894 (In short
"Act
of
1894")
was
published
on
01.03.1989. An award was thereupon made
after completion of the process. The
petitioners accepted the compensation. It is
alleged that the compensation of other land
was
determined
on
higher
side
subsequently on a reference under Section
18 followed by the judgment of the Civil
Court and finally by the Apex Court on
05.12.2016. The petitioners made an
application under Section 28A of the Act of
1894 on 20.02.2020 for enhancement of
compensation. A perusal of the application
282 INDIAN LAW REPORTS ALLAHABAD SERIES
shows that land of the petitioners was in
village Gujarpur while the land of others
was in village Haldona Ecchar Kaasna
Tugalpur. In any case, the question for our
consideration would be as to whether a
direction for enhancement of compensation
can be given in the light of Section 28A of
the Act of 1894 and for that consideration
of the application having not preferred
within three months to the award of the
Court..

3. Learned counsel for the petitioners
submits that the issue raised in this petition
is pending consideration before the Apex
Court in the case of Muni Ram and others
Vs. State of U.P. and others, Special Leave
Petition (C) Diary No. 42598/2019. The
prayer was to defer the matter awaiting
judgment of the Apex Court.

4. For our perusal, judgment of this
Court in the case of Patram and others Vs.
State of U.P. and 2 others, Writ C No.
15726 of 2019 decided on 16.09.2019 has
been referred wherein Muni Ram was
alleged to be a party. The judgment in the
case of Patram (supra) has been perused by
us to find out as to whether it was in
reference to the same facts, as are available
on record. In the instant case, application is
under Section 28A of the Act of 1894 and
was not submitted within three months,
rather it was after more than three years
from order of the Court. We find that in the
case of Patram (supra), the issue aforesaid
has not been discussed and decided.

5. At this stage, learned counsel for
the petitioners made a reference of the
judgment of this Court in the case of
Sukhdeo and others Vs. State of U.P., AIR
1992 Allahabad 142. A reference of
paragraph 7 and 8 of the said judgment has
been given to indicate that the period of
limitation cannot be counted in rigid
manner but has to be from the date of
knowledge of the award of the Court and
accordingly delay in maintaining the
application under Section 28A of the Act of
1894 should not be determined rigidly.

6. Learned counsel for the petitioners
has further made a reference of the
judgment of the Apex Court in the case of
K. Subbarayudu and others Vs. The
Special
Deputy
Collector
(Land
Acquisition), 2017 (8) SCALE Page 61
wherein the amount was enhanced after
condoning the delay, as the Special Appeal
was dismissed by the High Court having
being filed with the delay of 3671 days.

7. A further reference of the judgment
of this Court in the case of Karan Singh
and 16 others Vs. State of U.P. and 2
others, Writ C No. 329 of 2020 decided on
07.01.2020
has
been
given.
Therein
direction was given for consideration of
pending application under Section 28A of
the Act of 1894. Similar order was passed
in the case of Ramesh and 31 others Vs.
State of U.P. and 2 others, Writ C No. 603
of 2020 decided on 28.01.2020. The prayer
of learned counsel for the petitioners is
accordingly to pass a similar order.

8. Learned counsel for the petitioners
has further made a reference of Section
28A (3) of the Act of 1894 to press upon
the Court to direct the respondents to refer
the
matter
for
enhancement
of
compensation.
It
is
submitted
that
irrespective of sub-section 1 and 2 of
Section 28A, the matter needs to be
referred to the Court under sub-Section 3 of
Section 28A and accordingly prayer is to
direct the authorities to refer the matter to
the Court under sub-Section 3 of Section
28A of the Act of 1894.
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
283

9.

We
have
considered
the
submissions advanced by the learned
counsel for the petitioners and perused the
record carefully. The fact available on
record shows that a notification under
Section 4 of the Act of 1894 was published
in the Gazette on 01.03.1989. The land
belonging to the petitioners was acquired
though copy of the award has not been
enclosed along with the writ petition and
even the petitioners have not given detail
for it other than the date of award, which is
30.06.1990. The contents of the writ
petition do not show refusal or protest to
accept the amount of compensation and in
the absence of any pleading, it goes without
saying that the petitioners accepted the
compensation
without
protest.
The
application under Section 28-A of the Act
of 1894 was preferred on 20.02.2020 in
reference to the judgment of the Apex
Court dated 05.12.2016 after more than
three years.

10. The question for our consideration
is as to whether application under Section
28-A is maintainable in the instant case so
as to direct for its consideration. For ready
reference, Section 28A is quoted herein -:

28A Re-determination of the
amount of compensation on the basis of the
award of the Court-:

(1) Where in an award under this
Part, the Court allows to the applicant any
amount of compensation in excess of the
amount awarded by the Collector under
section 11, the persons interested in all 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, by written application to the Collector
within three months from the date of the
award of the Court require that the amount of
compensation payable to them may be redetermined on the basis of the amount of
compensation
awarded
by
the
Court:
Provided that in computing the period of
three months within which an application to
the Collector shall be made under this subsection, the day on which the award was
pronounced and the time requisite for
obtaining a copy of the award shall be
excluded.

(2) The Collector shall, on receipt
of an application under sub-section (1),
conduct an inquiry after giving notice to all
the persons interested and giving them a
reasonable opportunity of being heard, and
make an award determining the amount of
compensation payable to the applicants.

(3) Any person who has not
accepted the award under sub-section (2)
may, by written application to the Collector,
require that the matter be referred by the
Collector for the determination of the Court
and the provisions of sections 18 to 28 shall,
so far as may be, apply to such reference as
they apply to a reference under section 18.

11. An application under Section
28A is maintainable within three months
from the date of the award of the Court
enhancing the compensation. In the
instant case, the petitioners have relied
on the judgment of Apex Court dated
05.12.2016 and if at all it is taken to be
in reference to the acquisition of land
under
the
same
notification,
the
application under Section 28A is much
beyond the period of three months. In
fact after more than three years and
thereby
is
not
maintainable.
The
exclusion is only the period requisite for
obtaining a copy of the award of the
Court. The "Court" otherwise means the
"Principal Civil Court" as defined under
the Act of 1894.
284 INDIAN LAW REPORTS ALLAHABAD SERIES

12. This Court is not having authority
rather for that any other Court to make
interpretation of the provisions different
than what has been legislated by the
Parliament. A direction for consideration of
the application under Section 28A can be
given if it is submitted as per the statutory
provision and not otherwise. A perusal of
the application filed by the petitioners
reveals it to be in reference to Article 141
of the Constitution of India. Article 141
provides for precedence to be followed but
in the instant case we do not find a
judgment of the Apex Court in favour of
the petitioners on the issues involved in the
present case rather it is against them. The
issue is as to whether application under
Section 28A of the Act of 1894 would be
maintainable beyond the period given
therein.

13. The issue in reference to
limitation for maintaining an application
under Section 28A of the Act of 1894, has
been decided by the Apex Court in the case
of Union of India Vs. Mangatu Ram and
others, 1997 (6) SCC 59. It has been held
that an application under Section 28A of
the Act of 1894 would be maintainable
when it is submitted within three months
from the date of the award of the Reference
Court. If an application is submitted
beyond the period given therein, would be
barred by limitation. Paragraph 17 of the
said judgment is quoted herein for ready
reference-:

"17. In respect of the notification
published on 18.06.1984, the Collector
made his award on 31.01.1986 under
Section 11. On reference under Section 18
at the instance of some claimants, the
reference Court, by its award and decree
dated
21.11.1988,
enhanced
the
compensation.
The
application
under
Section 28A was filed on 01.10.1991. The
written application can be filed by some
who had not sought the reference under
Section 18. Though they are entitled to
make the application, the application
should be filed within three months from
the date of the award of the reference
Court excluding the time taken for
obtaining the certified copy of the award as
provided under proviso to Section 28A.
Since the application under Section 28A
was filed beyond three months, on the
above facts, the same is barred by
limitation. The award of the enhanced
compensation to the respondents in this
appeal is clearly illegal and without
jurisdiction."

14. The same issue was decided by
the Apex Court in its earlier judgment in
the case of Babua Ram and Others Vs.
State of U.P. and another, 1995 (2) SCC
689. The issue was decided not only in
reference
to
the
limitation
for
an
application but even as to which award of
the Court should be taken note for the
purpose of reckoning maintainability of the
application under Section 28A of the Act of
1894 and limitation. It was held that the
subsequent award of the Court would not
give successive cause of action when
multiple awards are made at different times
or dates. Paragraph 20 of the said judgment
is quoted herein for ready reference-:

"20. The question then is when
exactly the period of limitation starts
running for making an application in
writing under Sub-section (1) of Section
28-A. A bare reading of Sub-section (1)
along with its proviso would indicate that
the making of the award by the civil court
or judicial officer which becomes the
judgment and decree under Section 26, is
the starting point from which the period of
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
285
limitation is allowed for making an
application under Section 28-A. However,
the person aggrieved in computing the
period of three months allowed for making
an application under Section 28-A would
be entitled to exclude the day on which the
award was pronounced by the court or the
judicial officer and the time requisite for
obtaining the certified copy of the award
which is a judgment and decree under
Section 26. In other words, the proviso to
Sub-section (1) of Section 28-A excludes
the requisite time taken for obtaining the
copy of the award and in computation of
the period of three months from the date of
the award, the time required to obtain a
certified copy of the award should be
excluded. Limitation begins to run from the
date the award was pronounced by the
court under Section 26. It is well-settled
that the law of limitation limits the time
after which a suit or other proceeding
cannot be entertained in a court of justice
or before appropriate authority, though it
does not affect the substantive rights of the
parties. Once the limitation begins to run, it
runs in its full course until its running is
interdicted by an order of the court.
Explanation to Section 11 provides internal
evidence in this behalf to make the point
poignantly clear which states that in
computing two years period to make award
under Section 11, the period during which
any action or proceeding to be taken in
pursuance of the declaration under Section
6 is stayed by an order of a court, should
be excluded. The legislature prescribed
three
months'
limitation
to
quicken
diligence like caveat emptor and provided
to a non-protester right to redetermination
provided the application in writing is made
to the Collector within three months from
the date of the award of the civil court of
original
jurisdiction,
excluding
the
requisite time taken to obtain a copy of the
award. In other words, the right and
remedy provided by Section 28-A(1) stands
extinguished with the expiry of three
months from the date of the award under
Section 26. It is true that in a given set of
facts, there could be more than one
reference under Section 18 at the behest of
different claimants of the lands covered by
Section 4(1) Notification and the court may
make successive awards at various times.
Compensation given in the respective
awards may vary and may be higher than
the one given in an earliest award. In the
teeth of the express language in Subsection (1) of Section 28-A, limitation of
three months once expires in respect of
earliest award by efflux of time, none of the
later awards could provide any assistance
to revive the lapsed time under Section 28A(1) nor provide fresh cause of action or
successive causes of action when multiple
awards are made at different times or
dates. Application under Section 28-A(1)
may be made at the instance of the selfsame person or different persons. Any other
interpretation would amount to re-writing
the proviso to Sub-section (1) of Section
28A. The judgment and decree of the Court
of appeal either under Section 54 or under
Section 96 of C.P.C. or under Articles 132,
133 or 136 of the Constitution does not
furnish fresh cause of action nor provide
fresh limitation to make application under
Section 28-A(1) of the Act as has already
been held in that they are not covered
under Part III of the Act. May be that they
are continuation of original decree made in
Section 26(2) and in law the executable
decree is that of the Supreme Court of the
High Courts. But the legislature has
conferred right of reopening the award
under Section 11 only when the civil court
under
Section
26
awarded
higher
compensation in Part III to a person having
an interest in the land covered by the same
286 INDIAN LAW REPORTS ALLAHABAD SERIES
Notification under Section 4(1) and an
application in writing if made within
limitation."

15. In the case of State of Andhra
Pradesh and another Vs. Marri Venkaiah
and Others, 2003 (7) SCC 280, the issue
determined by the Apex Court is even in
reference to the knowledge of the award of
the Court, while considering the provision
of Section 28A. It was held that only period
requisite for obtaining copy can be
excluded and not in reference to the
knowledge of the order. Paragraph 7 of the
said judgment is quoted herein for ready
reference-:

"7.
Plain
language
of
the
aforesaid Section would only mean that the
period of limitation is three months from
the date of the Award of the Court. It is
also provided that in computing the period
of three months, the day on which the
award was pronounced and the time
requisite for obtaining the copy of the
award is to be excluded. Therefore, the
aforesaid
provision
crystallizes
that
application under Section 28-A is to be
filed within three month from the date of
the award by the Court by only excluding
the time requisite for obtaining the copy.
Hence, it is difficult to infer further
exclusion of time on the ground of
acquisition of knowledge by the applicant."

16. A perusal of the para quoted
above shows that in a given case, the
acquisition of knowledge of the award of
the Court by the applicant has not been
accepted for exclusion of the period of
limitation.

17. In the subsequent judgment, it
was further held that the application under
Section 28A of the Act should be in
reference to the award passed by the
Principal Civil Court. In any case, even if,
in the instant case, subsequent order is also
taken note of i.e. of the Apex Court, the
application was moved much beyond the
period of limitation. The issue aforesaid
was decided by the Apex Court even in the
case of Tota Ram Vs. State of U.P. and
others, 1997 (6) SCC 280. Paragraph 3 of
the said judgment is relevant and is quoted
herein for ready reference-:

"3. A reading thereof clearly that
a person whose land is acquired under a
common notification issued under Section 4
(1) of the Act but who failed to avail of the
remedy of reference under Section 18, is
eligible to make a written application
within three months from the date of the
award
of
the
court
enhancing
the
compensation. It has been interpreted by
this court that the "court " means court of
original
civil
jurisdiction
to
whom
reference under Section 18 would lie.
Admittedly, the award of the reference
court having been made on 18.05.1990, the
limitation began to run from that date. The
proviso to Section 28-A gives a right to the
persons to obtain the certified copy of the
award and decree and the time taken for
obtaining the certified copy of the award
and the decree shall be excluded in
computing the period of three months. In
view of the express language, the question
of knowledge does not arise and, therefore,
the plea of the petitioner that the limitation
of three months begins to start from the
date
of
the
knowledge
is
clearly
unsustainable and cannot be accepted. The
High Court, therefore, is rightly in its
decision in that behalf."

18. The para quoted above not only
makes it clear that knowledge of the order
would not be relevant rather exclusion is of
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
287
the period requisite for obtaining certified
copy and in the judgment (supra) it has
further been held that the Court means "the
Court of Original Civil Jurisdiction" to
whom reference under Section 18 was
made. In the instant case, the date of award
by Principal Civil Court has not been given
otherwise limitation has to be determined
from the date of the award of the Principal
Civil Court. However, as clarified earlier,
even if it is taken from the date of the
judgment
of
the
Apex
Court,
the
application was moved after more than
three years i.e. period much beyond the
limitation given under Section 28A of the
Act of 1894.

19. In that regard, another judgment
of the Apex Court relevant to the present
matter is in the case of Sakuru Vs. Tanaji,
AIR 1985 Supreme Court 1279. In the said
case, it was made clear that Section 5 of the
Limitation Act would not apply to an
application before the authority. It applies
only to the proceeding before the Court.
Paragraph 3 of the said judgment is quoted
herein for ready reference-:

"3. After hearing both sides we
have unhesitatingly come to the conclusion
that there is no substance in this appeal
and that the view taken by the Division
Bench in Venkaiah's case is perfectly
correct and sound. It is well settled by the
decisions of this Court in Town Municipal
Council, Athani v. Presiding Officer,
Labour Court, Hubli & Ors. [1970] 1
S.C.R. 51, Nityananda M. Joshi & Ors. v.
Life Insurance Corporation of India & Ors.
[1970] 1. S.C.R. 396 and Sushila Devi v.
Ramanandan Prasad and Ors. [1976] 2.
S.C.R. 845 that the provisions of the
Limitation Act, 1963 apply only to
proceedings in "Courts" and not to appeals
or applications before bodies other than
Courts such as quasi-judicial Tribunals or
executive authorities, notwithstanding the
fact that such bodies or authorities may be
vested with certain specified powers
conferred on Courts under the Codes of
Civil or Criminal Procedure. The Collector
before whom the appeal was preferred by
the appellant herein under Section 90 of the
Act not being a Court, the Limitation Act,
as such, had no applicability to the
proceedings before him. But even in such a
situation the relevant special statute may
contain an express provision conferring on
the appellate authority, such as the
Collector,
the
power
to
extend
the
prescribed period of limitation on sufficient
cause being shown by laying down that the
provisions of Section 5 of the Limitation
Act
shall
be
applicable
to
such
proceedings. Hence it becomes necessary
to examine whether the Act contains any
such provision entitling the Collector to
invoke the provisions of Section 5 of the
Limitation Act for condonation of the delay
in the filing of the appeal. The only
provision relied on by the appellant in this
connection is Section 93 of the Act which,
as it stood at the relevant time, was in the
following terms:-

"93.
Limitation
-
Every
appeal and every application for revision
under this Act shall be filed within sixty
days from the date of the order against
which the appeal or application is filed and
the provisions of the Indian Limitation Act,
1908 shall apply for the purpose of the
computation of the said period."

On a plain reading of the section
it is absolutely clear that its effect is only to
render applicable to the proceedings before
the Collector, the provisions of the
Limitation Act relating to 'computation of
the period of limitation. The provisions
relating to computation of the period of
limitation are contained in Sections 12 to
288 INDIAN LAW REPORTS ALLAHABAD SERIES
24 included in Part III of the Limitation
Act, 1963. Section 5 is not a provision
dealing with computation of the period of
limitation. It is only after the process of
computation is completed and it is found
that an appeal or application has been filed
after the expiry of the prescribed period
that the question of extension of the period
under Section 5 can arise. We are,
therefore, in complete agreement with the
view expressed by the Division Bench of the
High Court in Venkaiah's case that Section
93 of the Act did not have the effect of
rendering the provision of Section 5 of the
Limitation Act, 1963 applicable to the
proceedings before the Collector."

20. The judgment aforesaid has been
quoted because learned counsel for the
petitioners has made a reference of the
judgment of the Apex Court where
condonation of delay in filing of the special
appeal before the Division Bench was
allowed without realizing that Section 5 of
the Limitation Act applies therein being in
the Court proceeding whereas it does not
apply to an application before the authority.

21. Thus, for all the reasons and in
reference to the judgments quoted above,
we do not find that any of the judgments
cited by the counsel for the petitioners
provides assistance. Yet, we are dealing
with those judgments/orders, as cited
before us.

22. In this regard, we are first
considering the order of the Apex Court in
the case of Muni Ram and others (supra)
wherein after condoning the delay, notice
on the S.L.P. has been issued. Learned
counsel for the petitioners has referred to a
copy of the judgment of this Court in the
case of Patram and others (supra) to
indicate that the S.L.P. in the case of Muni
Ram and others was against the said
judgment, though we do not find name of
Muni Ram in the case of Patram and others
(supra) but taking it as per the statement of
the counsel, we have gone through the
judgment in the case of Patram and others.
We find no discussion in reference to the
issue involved in regards to the period to
make an application. The direction in the
case of Patram and others (supra) is for
consideration of the application and if the
facts narrated in the said judgment are
taken note of, the application for it was
submitted on 04.03.2017 i.e. within a
period of three months from the date of the
judgment of the Apex Court dated
05.12.2016 and in the instant case, it is
after the period of more than three years.
Thus, judgment in the case of Patram and
others (supra) will have no bearing on the
issue involved in this case. The pendency
of the S.L.P. is not in reference to the issue
of delay in maintaining application under
Section 28A of the Act of 1894 so as to
defer the hearing of this case.

23. So far as the judgment of the
Coordinate Bench in the case of Sukhdeo
and others (supra) is concerned, while
considering the facts of that case, the Court
noted about the knowledge of the award
because application to seek reference under
Section 18 was filed beyond the period
given under the said provision. The Court
noted the date of the award and the date of
knowledge. In the said judgment, it has not
been held that an application under Section
28A of the Act of 1894 can be preferred
beyond the period given therein and for that
even an application under Section 18 rather
had rigidly applied but was from the date of
the knowledge of the award though the
award is published in the Gazette but
ignoring the aforesaid, the judgment in the
case of Sukhdeo and Others (supra) was
1 All. Om Prakash & Ors. Vs. State of U.P. & Ors.
289
given but without ignoring the period of
limitation. The judgment of the Apex Court
in the case of State of A.P. Vs. Marri
Venkaiah (supra) however deals with the
issue otherwise and is binding on this
Court. The date of knowledge is not
relevant for Section 28A of the Act of
1894. The issue of knowledge was decided
by the Apex Court even in the case of Tota
Ram (supra).

24. The case of the petitioners is not
otherwise in reference to the knowledge of
judgment of the Apex Court rather it has
not been even mentioned either in the writ
petition or in the application. Accordingly,
the judgment in the case of Sukhdeo and
others (supra) provides no assistance to the
petitioners.

25. The next judgment cited by the
counsel for the petitioners is in the case of
K.
Subbarayudu
and
others
(supra)
wherein the issue was different then what is
involved in the present matter. In that case,
an appeal before the Division Bench of the
High Court was preferred with the delay of
3671 days, thus, was dismissed. The Apex
Court interfered therein but not in reference
to the delay in filing of the application
under Section 28A of the Act of 1894 so as
to apply the said judgment in the present
case. An appeal before the High Court can
be supported by an application under
Section 5 of the Indian Limitation Act for
condonation of delay but such a provision
does not apply for an application under
Section 28A of the Act of 1894. There is no
provision for condoning the delay in
maintaining the application under Section
28A of the Act of 1894 and there is no
prayer for it in the application at Annexure2. Thus, the judgment in the case of K.
Subbarayudu and others (supra) does not
provide any assistance rather the judgment
of the Apex Court in the case of Sakuru
(supra) would apply. It is held that Section
5 of the Limitation Act would not apply for
an application before the authority. It has
been discussed in the earlier paragraphs of
this judgment.

26. Learned counsel for the petitioner
then cited other judgments of this Court where
directions were given for consideration of the
application. We find no discussion in reference
to provisions of Section 28A (1) indicating the
period for maintaining application whereas in
the present matter, we have discussed the issue
aforesaid. An application filed beyond the
period given under Section 28A of the Act of
1894 would not be maintainable. A direction
for its consideration can be given only when it
is maintainable and not otherwise. Thus, any of
the judgments by this Court where the issue in
reference to Section 28A (1) has not been
determined, cannot have bearing in the present
matter.

27. An argument has been raised in
reference to Section 28A (3) of the Act of 1894
without realizing that it is not independent but is
in reference of sub-Section 2 of Section 28A.
Sub-Section 2 directs the Collector to hold
enquiry into the matter on the receipt of an
application under sub-Section 1 and according
to give notice to all concerned for opportunity
of hearing. Sub-Section 3 to Section 28A
provides that if an award passed under subSection 2 is not acceptable to any person then
he may, by written application, seek reference
of the matter for determination of the
compensation by the Court. For application of
sub-Section 3, the necessity is of an award
under sub-Section 2 of Section 28A which does
not exist.

28. In the light of the aforesaid, we
are unable to pursue ourselves to accept
any of the prayers made in the writ petition.
290 INDIAN LAW REPORTS ALLAHABAD SERIES
A direction to the authority to consider the
application
cannot
be
given
without
considering relevant provisions of the law.
We have recorded our finding that the
application under Section 28A is not
maintainable in this case having been filed
after lapse of three years of the judgment.
Accordingly, the directions sought by the
petitioners cannot be given.

29. The writ petition is, accordingly,
dismissed.
----------
(2021)01ILR A290
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.12.2020

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 19287 of 2020

Kabeer Jaiswal ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Sagar Yadav

Counsel for the Respondents:
A.S.G.I., Sri Hridai Narain Pandey

(A) Civil Law - Constitution of India -
Article 19(1) (a) - freedom of speech
and expression , Article 21 - right to
liberty - to have a name and to express
the same in the manner, a person
wishes, is a part of the right of the
freedom of speech and expression
under Article 19(1)(a) as well as right
to liberty under Article 21 of the
Constitution of India - The right
enshrined under Article 19(1) (a) of
the
Constitution
of
India
are
fundamental rights and can be taken
away or restricted only in accordance
with the procedure prescribed under
Article 19(2) of the Constitution of
India .(Para -11,20)

Petitioner with an intent to change his
name from Rishu Jaiswal to Kabir Jaiswal
got a notice published in the notification
in the Gazette of India - Petitioner moved
an
application
through
the
school
concerned for change of name in the
certificates, granted by the CBSE - school
in question forwarded the request to the
Board - Board rejected the application for
change of name - ground - particulars of
the school records do not show the
change
of
name
as
sought
by
the
petitioner. (Para - 2,3)

HELD:- The Rules as framed by the
CBSE do not have any statutory flavour .
It is clear that the CBSE Regulations
relied upon by the respondents cannot be
considered to be a ''law' as required
under
Article
19(2)
through
which
reasonable restrictions can be imposed on
the freedom of expression guaranteed
under Article 19 (1) (a). The right of
freedom of expression guaranteed to the
petitioner under Article 19 (1) (a), in the
present
case
freedom
of
expression
through change of name, cannot be
denied to the petitioner and he is entitled
to change his name. (Para - 25,27)

Writ Petition allowed. (E-6)

List of Cases cited :-

1. Anand Singh Vs U.P. Board of
Secondary Education & ors. , 2014 (3)
ADJ, 443

2. Ankit Singh Vs U.O.I. & ors. , 2019(9)
ADJ, 664

3. Kailash Gupta Vs CBSE , 2020 SCC Online
Ker 1590

4. Rayaan Chawla Vs University of Delhi &
anr., vide Judgment dated 06.11.2020
passed in W.P. (C) No. 6813 of 2020