# Smt. Kamla Tomar v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-08
- **Case number:** Writ C. No. 611 of 2017
- **Bench:** Dilip Gupta, Siddhartha Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kamla-tomar-v-state-of-u-p-ors-44303
- **Pages:** 8

## Headnote

A. Land Law- Land Acquisition Act, 1894
- Section 28 -A - Award u/s 28-A-is made
by Reference Court and not by High
Court in the First Appeal. Application
filed after three months from the date
award was passed - cannot be condoned.

Writ Petition dismissed (E-9)

List of cases cited : -

## Text

3 All. Smt. Kamla Tomar Vs. State of U.P. & Ors.
1183
down of the premises on account of heavy
rains, the petitioner was changing her
premises then an information ought to
have been sent to the higher authorities.

6. Having heard the learned counsel
for the petitioner and the learned Standing
Counsel, this Court is definitely of the
view that the orders impugned cannot be
sustained in the eyes of law. Firstly, there
was no enquiry as is contemplated under
the various Government orders and as per
the law laid down in the Full Bench
decision of this Court in Puran Singh vs.
State of U.P. and others (2010 (3) ADJ
659 (FB) and, secondly if the petitioner
had, to save her essential commodities,
changed the premises then a punishment
as grave as the termination of the licence
ought not have been awarded. A lesser
punishment of imposition of some penalty
could have been imposed. The orders
dated 08.08.2016 and 13.12.2016 passed
by the respondents No. 3 and 2, SubDivisional
Magistrate/Up-Ziladhikari
Chayal, District Kaushambi and Joint
Commissioner
(Food)
Allahabad
Division, Allahabad are set aside.

7. The respondents shall be at liberty
to proceed in accordance with law.

8. Accordingly, the writ petition is
allowed.
----------

(2019)11ILR A1183

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2017

BEFORE

THE HON'BLE DILIP GUPTA, J.
THE HON'BLE SIDDHARTHA VARMA, J.
Writ C. No. 611 of 2017

Smt. Kamla Tomar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Kumar Srivastava

Counsel for the Respondents:
C.S.C.

A. Land Law- Land Acquisition Act, 1894
- Section 28 -A - Award u/s 28-A-is made
by Reference Court and not by High
Court in the First Appeal. Application
filed after three months from the date
award was passed - cannot be condoned.

Writ Petition dismissed (E-9)

List of cases cited : -

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

2. UOI & anr. Vs Pradeep Kumari & ors.,
(1995) 2 SCC 736

3. Bhagti (Smt.) (deceased) through her Lrs.
Jagdish Ram Sharma Vs St. of Haryana,
(1997) 4 SCC 473

4. St. of A.P. Vs Marri Venkaiah, (2003) 7 SCC 280

5. Harish Chandra Raj Singh Vs Land
Acquisition Officer, AIR (1961) SC 1500

6. UOI Vs Mangtu Ram, (1997) 6 SCC 59
7. St. of Orissa & ors. Vs Chitrasen Bhoi,
(2009) 9 SCC 74
8. Popat Bahiru Goverdhane & ors. Vs Special Land
Acquisition Officer & anr.,(2013) 10 SCC 765

(Delivered by Hon'ble Dilip Gupta, J.
Hon'ble Siddhartha Varma, J.)

1. The issue that arises for
consideration in this petition is whether
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
the delay in filing an application under
Section 28-A of the Land Acquisition Act
18941 can be condoned.

2. Learned counsel for the petitioner
has submitted that the delay can be
condoned and, therefore, the application
that had been filed beyond the time
prescribed under Section 28-A of the Act
was required to be decided on merits after
condoning the delay.

3. Learned Standing Counsel, on the
other hand, has submitted that the time
period provided for under Section 28-A of
the Act for filing the application cannot
be
extended
and,
therefore,
the
application filed by the petitioner which
was
admittedly
beyond
the
time
prescribed cannot be entertained.

4.

We
have
considered
the
submissions advanced by the learned
counsel for the parties.

5.

It
is
alleged
that
land
admeasuring 78 acres situated in VillageArthala, District Ghaziabad, including the
land belonging to the husband of the
petitioner, was acquired in 1960 by the
State Government. The award was made
by the Special Land Acquisition Officer
under Section 11 of the Act on 28
September 1977 by adopting the belting
system. The market rate of the land
falling in the first belt was determined at
Rs. 2.08/- per square yard, while that of
the land falling in the second belt was
determined at Rs. 1.04/- per square yard.
Some of the tenure-holders covered by
the same notification issued under Section
4(1) of the Act filed an application under
Section 18 of the Act and the Reference
Court by award dated 31 March 1987
enhanced
the
compensation
by
determining the market rate of the land to
be Rs.8.50 per square yard. The First
Appeal filed by the State of Uttar Pradesh
was allowed in part on 14 October 2003
and the market rate of the land was
determined at Rs.6.80/- per square yard.

6. It is on 14 May 2012 that the
petitioner filed an application before the
Collector, Ghaziabad under Section 28-A
of the Act claiming that the petitioner
should also be awarded Rs.6.80 per
square yard as the market rate of the land.
This petition has been filed for a direction
upon
the
Collector
to
decide
the
application filed by the petitioner under
Section 28-A of the Act.

7. Section 28-A of the Act requires
that the application should be filed within
three months from the date of the award
of the Court. It is reproduced :-

"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
3 All. Smt. Kamla Tomar Vs. State of U.P. & Ors.
1185
application to the Collector shall be made
under this sub-section, 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 subsection (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.

8. As noted above, in the application
filed by the petitioner on 14 May 2012,
reference was made to the judgment
delivered by the High Court on 14
October 2003 in the First Appeal that was
filed by the State against the award of the
Reference Court in references filed by
some other tenure-holders.

9. The first issue that would arise
for consideration is whether the award
referred to under Section 28-A of the Act
is the award made by the Reference Court
or the High Court in the First Appeal.

10.

This
issue
arises
for
consideration because a perusal of the
application filed by the petitioner under
Section 28-A of the Act reveals that it had
been filed claiming redetermination of the
compensation on the basis of the
judgment rendered by the High Court on
14 October 2003 in the First Appeal and
not on the basis of the award made by the
Reference Court. Section 28-A of the Act
provides that where in an award under
Part-III (containing Sections 18 to 28-A
of the Act), 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 land covered by the
same notification under Section 4(1) of
the Act and who are also aggrieved by the
award of the Collector may, 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.
'Court' has been defined in Section 3(d) of
the Act to mean a Principal Civil Court of
original jurisdiction. It is, therefore, clear
that the award that is referrable to under
Section 28-A(1) of the Act is the award
made by the Reference Court alone. This
is also clear because Section 28-A of the
Act begins with "where in an award in
this Part, the Court allows to the
applicant" and ends with "may be
redetermined on the basis of the amount
of compensation awarded by the Court".

11. An application under Section 28A of the Act cannot, therefore, be filed for
redetermination of the compensation by
treating the award as that made by the
High Court in the First Appeal or by the
Supreme Court. This view finds support
from the decision of the Supreme Court in
Babua Ram and Ors. Vs. State of U.P.
and Anr.2. The observations are :

"19. The next question is as to
when the period of limitation of three
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
months begins to run under Section 28-A
and whether successive awards made by
Civil Court at different times in respect of
the land covered by the same Notification
furnish separate causes of action for
making applications under Section 28A.
Let us consider the meaning of the
words "an award under this part"
referred to in Section 28-A(1) which is
Part III of the Act. The heading to that
part begins by reference to court and its
procedure. The "court" means a principal
civil court of original jurisdiction or a
special judicial officer appointed to
perform the functions of the court under
the Act as becomes clear as is noticed
already. What are the matters to be
considered
in
determining
the
compensation on a reference made to it
under Section 18, is detailed in Section 23
while
matters
to
be
neglected
in
determining
such
compensation
are
indicated in Section 24. By operation of
Sub-section (2) of Section 26, the award
made
determining
the
amount
of
compensation shall be deemed to be a
decree while the statement of the grounds
of every such award is deemed to be the
judgment, for the purpose of Code of
Civil Procedure. The above perspectives
from Part III make it clear that the
award of the court is that of the civil
court of original jurisdiction in that
part. It is a decree for the purpose of an
appeal under Section 54 which falls in
part VIII of the Act (Miscellaneous). The
decree as defined in Section 2(2) C.P.C. is
the decree of the High Court, which shall
be appealable to the Supreme Court under
Articles 132, 133 and 136 read with Order
45 C.P.C, Hence, the award of the court
referred to in Sub-section (1) of Section
28-A is only the award of the civil court
of original jurisdiction or of judicial
officer performing the functions of such
court under the Act on reference
received by it under Section 18 and an
award and decree pronounced under
Section 26 of the Act. Since, the
judgment and decree of the High Court
under Section 54 or of this Court do
not come in Part III of the Act, they
stand
excluded
from
an
award
envisaged under sub- section (1) of
Section 28-A. The aggrieved interested
person, therefore, is entitled to the
right and remedy of making an
application under Section 28A for
redetermination of compensation for
his acquired land only on the basis of
the award of the civil court or judicial
officer which is a judgment and decree
under Section 26 when such award
grants compensation in excess of the
amount awarded by the Collector
under section 11. When such an
application is made in writing by the
aggrieved person, notwithstanding the
fact of his having received compensation
under Section 31 without protest and of
not availing the right and remedy of the
reference
under
Section
18,
the
redetermination of the compensation
under Section 28A(1) is required to be
done."(emphasis supplied)

12. It needs to be stated that in
Union of India & Anr. Vs. Pradeep
Kumari and Ors.3, the Supreme Court
disagreed only with the view taken in
Babua Ram that the period of limitation
for making an application under Section
28-A of the Act is not restricted to the
earliest award that is made by the Court
after coming into force of Section 28-A of
the Act.

13. The view that the award referred
to in Section 28-A(1) of the Act is the
award of the Reference Court was
3 All. Smt. Kamla Tomar Vs. State of U.P. & Ors.
1187
reiterated by the Supreme Court in Bhagti
(Smt.) (deceased) through her Lrs.
Jagdish Ram Sharma Vs. State of
Haryana4, and the observations are :

"6. ............... Equally, the right
and remedy of redetermination would
be available only when the reference
Court under Section 18 has enhanced
the compensation in an award and
decree under section 26. Within three
months from the date of the reference
court excluding the time taken under
proviso, the applicant whose land was
acquired under the same notification but
who failed to avail the remedy under
Section 18, would be entitled to avail the
right and remedy under Section 28A. The
order and judgment of the High Court
does not give such right. Thus, this
Court held that Section 28-A does not
apply to an order made by the High
Court for redetermination of the
compensation. Thus, we hold that the
question of reference to the Constitution
Bench does not arise. The claimants are
not entitled to make an application for
redetermination of compensation under
Section 28-A(1) after the judgment of
the High Court; nor are the claimants
entitled to avail of that award which is
more beneficial to the claimants, i.e., the
High Court judgment."
 (emphasis supplied)

14. Thus, the application filed under
Section 28-A of the Act for claiming the
enhancement of the compensation was
not maintainable.

15. The second issue that arises for
consideration is whether the application
filed under Section 28-A of the Act can be
entertained if it is filed beyond the time
prescribed in the Section.

16. The Reference Court made the
award on 31 March 1987. The application
was required to be filed within three
months from the date of the award of the
Reference Court. However, it was filed
only on 14 May 2012 after a lapse of
almost twenty-five years.

17. This issue was examined by the
Supreme Court in State of Andhra
Pradesh Vs. Marri Venkaiah5 and it
was held that time cannot be extended on
the ground of knowledge of the award.
The relevant observations are :

"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 crystallises that
application under Section 28-A is to be
filed within three months 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."

(emphasis supplied)

18. The Supreme Court clarified that
the limitation of three months would not
commence
from
the
date
of
the
knowledge of the award but from the date
of the award and in this context,
distinguished the earlier decision of the
Supreme Court rendered in Harish
Chandra
Raj
Singh
Vs.
Land
Acquisition Officer6 since that related to
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
limitation provided for under Section 18
of the Act. In this connection, the relevant
paragraphs are as follows:

"11 .......In that case, the Court
interpreted the proviso to Section 18 of
the Act and held that clause (a) of the
proviso was not applicable in the said
case because the person making the
application was not present or was not
represented before the Collector at the
time when he made his award. The Court
also held that notice from the Collector
under Section 12(2) was also not issued,
therefore, that part of clause (b) of the
proviso would not be applicable. The
Court, therefore, referred to the second
part of the proviso which provides that
such application can be made within six
months from the date of the Collector's
award. In the context of the scheme of
Section 18 of the Act, the Court held
that the award by the Land Acquisition
Officer is an offer of market price by
the State for purchase of the property.
Hence, for the said offer, knowledge,
actual or constructive, of the party
affected by the award was an essential
requirement of fair play and natural
justice. Therefore, the second part of the
proviso must mean the date when either
the award was communicated to the party
or was known by him either actually or
constructively.

12. The aforesaid reasoning
would
not
be
applicable
for
interpretation of Section 28-A because
there is no question of issuing notice to
such an applicant as he is not a party to
the reference proceeding before the
court. The award passed by the court
cannot be termed as an offer for market
price for purchase of the land. There is no
duty cast upon the court to issue notice to
the landowners who have not initiated
proceedings
for
enhancement
of
compensation
by
filing
reference
applications; maybe, that their lands are
acquired by a common notification issued
under Section 4 of the Act. As against
this, under Section 18 it is the duty of the
Collector to issue notice either under
Section 12(2) of the Act at the time of
passing of the award or in any case the
date to be pronounced before passing of
the award and if this is not done then the
period prescribed for filing application
under Section 18 is six months from the
date of the Collector's award."

(emphasis supplied)

19. The Supreme Court referred the
earlier decisions rendered by it in Union
of India Vs. Mangtu Ram7 and Tota
Ram Vs. State of U.P.8 wherein the same
issue was dealt with.

20. In State of Orissa and Ors. Vs.
Chitrasen Bhoi9, the Supreme Court also
observed that the limitation for filing the
application under Section 28-A of the Act
would commence from the date of the
making of the award by the Reference
Court and the delay in filing the
application cannot be condoned.

21. In Pradeep Kumari, the
Supreme
Court
clarified
that
the
limitation would not apply from the date
of the first award of the Reference Court
and that it was permissible to even make
an application to the Collector on the
basis of a subsequent award made by the
Reference Court but that application had
to be made within the limitation from the
date of the subsequent award.

22. The Supreme Court in Popat
Bahiru Goverdhane and Ors. Vs.
3 All. Smt. Kamla Tomar Vs. State of U.P. & Ors.
1189
Special Land Acquisition Officer and
Anr.10 again reiterated that the period of
limitation cannot be extended and the
relevant observations are :

"8. The sole question for the
consideration of the Court is whether
limitation for filing the application for redetermination of the compensation under
Section 28A of the Act would commence
from the date of the award or from the
date of knowledge of the court's award on
the basis of which such application is
being filed?.

.....................

10. The issue involved herein is
no more res-integra. The appellants' case
before the High Court as well as before us
has been that the limitation would
commence from the date of acquisition of
knowledge and not from the date of
award. Though, Shri Gaurav Agarwal,
learned counsel for the appellants, has
fairly conceded that there is no occasion
for this Court to consider the application
of the provisions of the Limitation Act,
1963 (hereinafter called the ''Act 1963')
inasmuch as the provisions of Section 5
of the said Act.

.................

13.This Court in Union of India
& Ors. v. Mangatu Ram & Ors.; and Tota
Ram v. State of U.P. & Ors. dealt with the
issue involved herein and held that as the
Land Acquisition Collector is not a court
and acts as a quasi judicial authority
while making the award, the provisions of
the Act 1963 would not apply and,
therefore, the application under Section
28-A of the Act, has to be filed within the
period of limitation as prescribed under
Section 28-A of the Act. The said
provisions require that an application for
re-determination is to be filed within 3
months from the date of the award of the
court. The proviso further provides that
the period of limitation is to be calculated
excluding the date on which the award is
made and the time requisite for obtaining
the copy of the award.

...................

16.
It
is
a
settled
legal
proposition that law of limitation may
harshly affect a particular party but it has
to be applied with all its rigour when the
statute so prescribes. The Court has no
power to extend the period of limitation
on equitable grounds. The statutory
provision
may
cause
hardship
or
inconvenience to a particular party but the
Court has no choice but to enforce it
giving full effect to the same. The legal
maxim "dura lex sed lex" which means
"the law is hard but it is the law", stands
attracted in such a situation. It has
consistently
been
held
that,
"inconvenience is not" a decisive factor to
be considered while interpreting a statute.
"A result flowing from a statutory
provision is never an evil. A Court has no
power to ignore that provision to relieve
what it considers a distress resulting from
its operation."

23. In the instant case, the Reference
Court gave the award on 31 March 1987.
The application under Section 28-A of the
Act was filed on 14 May 2012. It was
clearly beyond three months from the date
of the award of the Reference Court. It
was, therefore, barred by limitation.

24. No relief, therefore, can be
granted to the petitioner.

25. The writ petition is, accordingly,
dismissed.
----------
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)11ILR A1190

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRAKASH PADIA, J.

Writ C No. 780 of 2017

M/S King Star Handicraft & Anr.
 ...Petitioners
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioners:
Sri Kshitij Shailendra

Counsel for the Respondents:
A.S.G.I., S.C., Smt. Raj Kumari Devi

A. Administrative Law - The Customs Act,
1962 - Section 110, 124 (A) - Natural
Justice - No show cause notice u/s 124
(A) - no step taken u/s 110(2) - Bank
Account
cannot
be
frozen
during
investigation - Authority to defreeze the
bank Account of Petitioner.

Writ Petition allowed (E-9)

List of cases cited referred: -

1.RaghuramGrahPvt.Ltd.Vs.Commissioner
of C. Ex.
& Service Tax, reported in
(2005) (186) E.L.T. 50 (All.) (D.B.).

2.Veritas Exports Vs UOI, reported in (2005)
(184) E.L.T. 341 (Bom.) (D.B.).

3.Am Overseas Vs UOI, (2006) (194) E.L.T. 267
(Guj.)
4.Multitek Engineer Vs UOI, reported in (2012)
(05) JEE(E) page 1458
5. CivilMisc. Writ Petition No. 17424 of 2015 (
M/S M.Z. Handicraft & anr. Vs UOI, & 4 ors.
(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Sri Kshitij Shailendra,
learned counsel for the petitioners and
Smt. Raj Kumari Devi, learned counsel
appearing on behalf of respondent nos. 1
to 3.

2. Notices were issued to the
respondent nos. 2, 3 and 4 by this Court
vide its order dated 11.01.2017. As per
the office report dated 10.02.2017 notices
were issued to the aforesaid respondents
by RPAD fixing on 13.02.2017. Neither
acknowledgment nor undelivered cover
has been returned back. As such in view
of provision chapter VIII Rule XII of
Allahabad High Court Rules notices are
deemed to be served upon the aforesaid
respondents.

3. The petitioners have preferred the
present writ petition interalia with the
prayer to issue a mandamus commanding
the
Senior
Intelligence
Officer,
Directorate
of
Revenue
Intelligence,
Nahva Sheva Unit, First Floor, Port Users
Building (PUB), Nhava Sheva Uran,
Raigard, Maharashtra/respondent no. 2 as
well as Federal Bank Limited, Ground
Floor, Gandhi Nagar, Rampur Road,
Moradabad/respondent no. 4 to defreeze
the
Current
Account
No.
16250200002619 held at Fedral Bank
Limited, Ground Floor, Gandhi Nagar,
Rampur Road, Moradabad.

4. The facts in brief as contained in
the writ petition are that petitioner no. 1 is
a
proprietorship
concern
which
is
engaged in the activities of manufacturing
and export of Brass Artwares. The
petitioner no. 2 is its proprietor. The firm
of the petitioners' was duly registered
with the department of commercial taxes