Satyapal Singh And 21 Others vs State Of U.P. And 3 Others on 21 September, 2017

[Cites 42, Cited by 10]

Allahabad High Court

Satyapal Singh And 21 Others vs State Of U.P. And 3 Others on 21 September, 2017

(Delivered by Hon'ble Dilip Gupta, J.) The petitioners, who had filed an application under section 28-A of the Land Acquisition Act, 18941 for redetermination of the compensation awarded to them, have filed this petition for a direction upon New Okhla Industrial Development Authority, Gautam Budh Nagar2 to release the payment demanded by the Additional District Magistrate (Land Acquisition), NOIDA3 so that the application filed by them can be decided.

The records reveal that a notification under section 4(1) of the Act was issued on 5 January 1982 for acquisition of a large tract of land situated in village Chhalera Khadar, Tehsil Dadri, District Gautam Budh Nagar for planned industrial development by NOIDA. The award under section 11(1) of the Act was made on 17 December 1983 for 74-3-8 bighas of land. Reference applications were filed by 22 tenure holders including LAR No.126 of 1986 (Basanta & anr. Vs. State of U.P. & Ors.) on which reliance was placed by the petitioners in the application filed by them under section 28-A of the Act and LAR No.127 of 1986 (Banwari & Ors. Vs. State of U.P. & Ors.) that was filed by the predecessor in interest of the petitioners. These twenty-two references were decided together by the Reference Court on 15 November 1988 and the market value of the land was enhanced. It is stated that subsequently First Appeal No.(198) of 1989 was filed by Basanta before the High Court under section 54 of the Act for enhancement of the compensation. The appeal was allowed by judgment dated 11 March 2015 and the compensation was enhanced to Rs.297/- per sq. yard. It also transpires that First Appeal No.(196) of 1989 was also filed by the predecessor in interest of the petitioners It was dismissed on 13 March 1989 as it was deficiently stamped. The petitioners, thereafter, filed an application after 25 years for recalling the order dated 13 March 1989 and for restoring the Appeal to its original number and to also permit them to make good the deficiency in Court fees. This application was rejected by a detailed order dated 19 February 2015 which is reproduced below :

"By order dated 13.03.1989 the appeal was rejected as deficiently stamped. After a period of 25 years this application has been filed to recall the order dated 13.3.1989 and to restore the appeal to its original number and permit the appellant to supply the requisite court fee. An application to condone the delay in filing the recall application has also been filed. The only reason given in the affidavit is that the one of the appellant died in the year 1996 and his legal heirs and representatives were not aware of the status of the present first appeal. It is further stated in para 8 of the affidavit that it was only after getting information from some other villagers whose reference was decided by the Reference Court in which there was some reference of the present appeal, the present applicant came to know about the status of the appeal and thereafter they engage Sri Madan Mohan, learned counsel, who has filed this application.

We are not convinced with the explanation given for such a long delay of 25 years from the date of dismissal of the memo of appeal. We find that there were 5 appellants out of which only 2 have died and the remaining 3 did not take necessary steps for such a long time. Even otherwise the case having been filed in the year 1996 court fees was not made good. The memo of the appeal having been rejected in 1989, we do not find any good ground for explaining the delay of 7 years and 18 years after the death of the appellants.

For all the reasons recorded above, the explanation tendered being totally unsatisfactory, the delay condonation application is accordingly rejected and consequently recall application is also rejected."

Subsequently, Special Leave to Appeal No.32863 of 2015 was filed by the petitioners in the Supreme Court. It was dismissed by the Supreme Court on 4 December 2015 with the following observations :

"We find no reason to entertain this Special Leave Petition, which is, accordingly, dismissed.

However, we make it clear that the order passed by this Court or by the High Court shall not stand in the way of the petitioner pursuing his grievances under law in appropriate proceedings at appropriate stage before appropriate forum."

It is after the dismissal of the aforesaid Special Leave to Appeal by the Supreme Court on 4 December 2015 that the petitioners filed an application under section 28-A of the Act on 11 March 2016 stating inter alia the following facts :

(i) The notification under section 4(1) of the Act was issued on 5 January 1988 and the award was made under section 11 of the Act on 17 December 1983;

(ii) LAR No.126 of 1986 (Basanta & Anr. Vs. State of U.P. & Ors.) was filed in regard to a land covered by the same section 4(1) notification for enhancement of the compensation and the compensation was enhanced under section 18 of the Act on 15 November 1988 against which First Appeal No.(198) of 1989 was filed by Basanta in which the market rate was enhanced to Rs.297/- per sq. yard by judgment dated 11 March 2015;

(iii) The applicants are, therefore, entitled to the same market rate determined at Rs.297/- per sq. yard in First Appeal No.(196) of 1989 and the decision of the Supreme Court in Special Leave to Appeal No.32863 of 2015 filed by the petitioners.

It is further stated that on filing of the aforesaid application on 11 March 2016, the ADM (LA) issued a notice dated 3 October 2016 to the petitioners to appear on 17 October 2016 with the relevant records. A copy of the aforesaid notice was endorsed to the Chief Legal Advisor, NOIDA to appear on 17 October 2016 and place its version. The ADM (LA) also sent a letter dated 17 June 2017 to NOIDA containing a chart for payment of Rs.2,99,78,376/- that was calculated in accordance with the judgment rendered by the High Court on 11 March 2015 in First Appeal No.(198) of 1989 (Basanta & Ors. Vs. State of U.P. & Ors.).

This petition has been filed with a prayer that a direction be issued to NOIDA to deposit the aforesaid amount as required by the ADM (LA) so that the award can be made under section 28-A of the Act in favour of the petitioners.

It, therefore, transpires that the petitioners had filed the application under section 28-A of the Act on 11 March 2016, though they had earlier filed Reference Application No.127 of 1986 under section 18 of the Act against the award made by the Special Land Acquisition Officer and thereafter a First Appeal in the High Court and then a Special Leave to Appeal before the Supreme Court which was dismissed by the Supreme Court on 4 December 2015.

The Court was reminded, when the matter was taken up initially on 25 August 2017, of the decision rendered by it on 3 August 2017 in Writ-C No. 21457 of 2017 (Greater Noida Industrial Development Authority Vs. Smt. Rajbala & Ors.); Writ-C No. 21587 of 2017 (Greater Noida Industrial Development Authority Vs. Rajendra Singh & Ors.) and Writ-C No. 32543 of 2017 (Rajbala Vs. State Of U.P. & Ors.), wherein also orders were passed on the application filed by Rajendra Singh and Raj Bala under Section 28-A of the Act even though they had also, like the petitioners, filed reference applications, First Appeals in the High Court and Special Leave to Appeal in the Supreme Court. To ascertain whether this was a systematic method prevailing in District Guatam Budh Nagar for defrauding the State by directing making of payments in applications filed under section 28-A of the Act even in cases where they were not maintainable, it was considered necessary by the Court to require the Collector, Gautam Budh Nagar to : (i) place on record the details of the applications that had been filed under section 28-A of the Act during the last two years with dates on which the applications were filed and the dates on which the award forming the basis for redetermination of the compensation was made; (ii) to indicate whether References had also been filed by the applicants and whether the applications had been within the stipulated period; and (iii) to mention the names of the officers who made the awards under section 28-A of the Act.

The District Magistrate, NOIDA filed an affidavit sworn on 8 September 2017. NOIDA also filed an affidavit sworn on 9 September 2017 by the Chief Executive Officer. K.P. Singh-ADM (LA) who had issued the notice dated 3 October 2016 also filed an affidavit pursuant to the order dated 25 August 2017. A Counter affidavit sworn by the Law Officer, NOIDA was also filed.

The District Magistrate has stated in the affidavit that during the last two years, 93 applications had been filed under section 28-A of the Act and details of these applications were contained in a chart accompanying the affidavit. The affidavit of the Law Officer of NOIDA indicated that an amount of Rs.42,48,96,374/- had been deposited with the ADM (LA) in regard to some of the applications filed under section 28-A of the Act from 24 August 2015 to August 2017.

The Court after perusing the affidavits, passed an order on 11 September 2017 requiring the District Magistrate to file a better affidavit to indicate whether the 93 applicants had also filed Reference Applications under section 18 of the Act. The District Magistrate was also required to specify the date of the award made by the Reference Court that formed the basis for re-determination of the compensation and whether applicants had filed any First Appeal in the High Court or a further Appeal in the Supreme Court. The Chief Executive Officer, NOIDA was also required to file a fresh affidavit to indicate whether the aforesaid amount of Rs.42,48,96,374/- in regard to some of the applicants was deposited pursuant to the award made under section 28-A of the Act or whether the amount was deposited pursuant to communications sent by the ADM (LA).

The District Magistrate has filed a better affidavit. The chart enclosed with the affidavit gives the names of the officers who had decided 15 of these 93 applications that had been filed under section 28-A of the Act. The affidavit mentions that only 15 out of the 93 applications had been decided and five of these had been rejected as not being maintainable. The Chief Executive Officer, NOIDA has also filed an affidavit giving details of the letters sent by the ADM (LA) for deposit of the amount. It has also been stated that the amount demanded by ADM(LA) was deposited even prior to the making of the award because of the Government Order dated 14 May 1990. Adhar Kishore Mishra has also filed his personal affidavit. These affidavits shall be dealt with at the appropriate stage.

Learned counsel for the petitioners has submitted that though the predecessor in interest of the petitioners may have filed a Reference Application under section 18 of the Act and the First Appeal was dismissed by the High Court but as the Supreme Court had observed that the orders passed by the Supreme Court or by the High Court shall not stand in the way of the petitioners pursuing their "grievances under law in appropriate proceedings at appropriate stage before the appropriate forum", the application filed by the petitioners under section 28-A of the Act was maintainable and NOIDA was under an obligation to deposit the amount so that the ADM (LA), before whom the application filed under Section 28-A of the Act was pending, could make an award.

Sri Neeraj Tripathi, learned Additional Advocate General for the State of Uttar Pradesh and Sri Kaushlendra Nath Singh, learned counsel appearing for NOIDA have placed reliance upon the affidavits filed by the District Magistrate, Gautam Budh Nagar and the Chief Executive Officer, NOIDA respectively and have submitted that the applications filed under section 28-A of the Act were decided in accordance with law and those which are pending shall also be decided in accordance with law. Learned counsel appearing for K.P. Singh and Adhar Kishore Mishra have also placed reliance upon the personal affidavits filed by the two officers and have contended that the awards have been made in accordance with law and the applications which were not maintainable have been rejected.

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

The issue that arises for consideration in this petition is as to whether the application filed by the petitioners under Section 28-A of the Act was maintainable. This issue had recently been considered by in a batch of writ petitions referred to above which were decided by a common judgment dated 3 August 2017. The Court noticed that even though the applications filed under Section 28-A of the Act were not maintainable, the ADM (LA) allowed the applications and re-determined the amount of compensation. It is for this reason that when this matter came up before the Court, it was considered appropriate to require the Collector, Gautam Budh Nagar to place on record all such applications that had been filed under Section 28-A of the Act during the last two years because it appeared to the Court that applications which were not even maintainable were being entertained and ultimately allowed.

The Collector, Gautam Budh Nagar has placed on record, as noticed above, 93 such applications out of which 15 have been decided and the rest are stated to be pending. Out of these 15 applications, 2 such applications mentioned at Serial Nos. 87 and 88 were examined by the Court in the judgment delivered on 3 August 2017 in a batch of writ petitions (Writ-C No.21457 of 2017, Writ-C No.21587 of 2017 and Writ-C No.32543 of 2017). Five applications have been rejected while the remaining 8 have been allowed. It would be appropriate to refer to 7 of these applications mentioned at Serial Nos.1, 3, 4, 19, 37, 57 and 78 to examine whether these applications were even maintainable under Section 28-A of the Act or had to be rejected. The relevant facts to determine this issue in regard to the application filed under Section 28-A of the Act in this petition as also the 7 applications referred to above are :

1. Application involved in the present writ petition.

(i) The award was made by the Special Land Acquisition Officer under section 11 of the Act on 17 December 1983;

(ii) The petitioners filed a reference under Section 18 of the Act, being LAR No.127 of 1989 and the amount of compensation was enhanced by the Reference Court on 15 November 1988;

(iii) The petitioners also filed First Appeal No.(196) of 1989 before the High Court which was dismissed by order dated 13 March 1989 as the Appeal was deficiently stamped;

(iv) An application was filed by the petitioners after twenty-five years for recall of the order dated 13 March 1989. This was rejected by order dated 19 February 2015;

(v) The petitioners filed Special Leave to Appeal No.32863 of 2015 in the Supreme Court which was dismissed on 4 December 2015 holding that there was no reason to entertain the Special Leave Petition . It was, however, made clear that the order passed by the Supreme Court or the High Court would not stand in the way of the petitioners pursuing their grievances under law in appropriate proceedings.

(vi) The petitioners, thereafter, filed the application under Section 28-A of the Act on 11 March 2016;

(vii) The ADM (LA)-K.P. Singh issued notice dated 3 October 2016 to the petitioners as well as NOIDA; and

(viii) The ADM (LA) sent a communication dated 13 June 2017 requiring NOIDA to deposit Rs.2.99 crores on the basis of a calculation chart enclosed with the communication.

2. Application at Serial No.1 filed by Mukesh and others

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 9 May 1985;

(ii) Application under Section 28-A of the Act was filed on 25 August 2015 seeking re-determination of the compensation on the basis of the award made by the Reference Court on 31 January 2003 in L.A.R. No.140 of 1992 (Subhash Vs. State of U.P.) and the judgment dated 24 May 2014 in First Appeal No.716 of 2005 (Subhash Vs. State of U.P.); and

(iii) The application was allowed by the ADM (LA)-K.P. Singh by award on 18 December 2015. Compensation was re-determined on the basis of the rate determined in First Appeal No. 716 of 2005 at Rs.297 per square yard.

3. Application at Serial No.3 filed by Ram Ashrey

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 13 November 1995;

(ii) Application under Section 28-A of the Act was filed on 28 October 2015 seeking re-determination of the compensation on the basis of the award made by the Reference Court on 26 May 1999 in L.A.R. No.11 of 1999 (Natthu Vs. State of U.P.) and the judgment dated 1 September 2015 of the High Court in First Appeal No.6 of 2013 filed against the determination made by the Reference Court.

(iii) The application was allowed by the ADM (LA)-K.P. Singh on 28 June 2016. The amount of compensation determined by the High Court in First Appeal No. 6 of 2013 at Rs.297 per square yard was directed to be paid;

4. Application at Serial No.4 filed by Mehdi and others

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 13 November 1995;

(iii) The application was allowed by the ADM (LA)-A.K. Mishra by award dated 17 July 2017. The amount of compensation determined by the High Court in First Appeal No. 6 of 2013 at Rs.297 per square yard was directed to be paid.

5. Application at Serial No.19 filed by Anwar Ahmad and others

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 3 October 1996;

(ii) Application under Section 28-A of the Act was filed on 15 October 2015 seeking re-determination of the compensation on the basis of the award made by the Reference Court on 16 April 2013 in L.A.R. No.168 of 1997 and the judgment dated 30 January 2015 in First Appeal No.885 of 2003;

(iii) This application was rejected on 6 February 2016 as it was filed nine months and fifteen days after the decision was rendered on 30 January 2015 in the First Appeal;

(iv) Writ-C No.19721 of 2016 filed by the applicants to assail the aforesaid order was allowed on 2 May 2016 and the application was directed to be decided on merits in accordance with law; and

(v) The application was ultimately allowed by the ADM (LA)-A.K. Mishra by award dated 17 March 2017. The amount of compensation determined by the High Court in the First Appeal at Rs.297 per square yard was directed to be paid.

6. Application at Serial No.37 filed by Jameela and others

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 3 October 1996;

(ii) Application under Section 28-A of the Act was filed on 3 June 2016 seeking re-determination of the compensation on the basis of the award made by the Reference Court on 16 April 2013 in L.A.R. No.168 of 1997 and the judgment dated 30 January 2015 in First Appeal No.885 of 2003;

(iii) This application was rejected on 6 February 2016 as it was filed nine months and fifteen days after the decision was rendered on 30 January 2015 in the First Appeal;

(iv) Writ-C No.19717 of 2016 filed by the applicants to assail the aforesaid order was allowed on 2 May 2016 and the application was directed to be decided on merits in accordance with law; and

(v) The application was ultimately allowed by the ADM (LA)-A.K. Mishra by award dated 17 March 2017 and the amount of compensation determined by the High Court in the First Appeal at Rs.297 per square yard was directed to be paid.

7. Application at Serial No.57 filed by Dharmveer and others

(i) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 1 February 1991;

(ii) Application under Section 28-A of the Act was filed on 7 January 2017 (as stated in the award though in the chart submitted by the Collector it has been stated that the application was filed on 4 July 2016 and it was decided on 7 January 2017) seeking re-determination of the compensation on the basis of the award made by the Reference Court on 26 May 1999 in L.A.R. No.120 of 1992 and the judgment dated 21 April 2016 in First Appeal No.522 of 2009; and

(iii) The application was allowed by the ADM (LA)-A.K. Mishra and the amount of compensation determined by the High Court in the First Appeal at Rs.297 per square yard was directed to be paid.

8. Application at Serial No.78 filed by Parmeshwari Devi and others (I) The award was made by the Special Land Acquisition Officer under Section 11 of the Act on 15 July 1978;

(ii) Application under Section 28-A of the Act was filed on 25 January 2017 seeking re-determination of the compensation on the basis of the award made by the Reference Court on 24 May 1986 in L.A.R. No.148 of 1979 (Bisan Lal & Ors. Vs. State) and the judgment dated 17 November 2016 in First Appeal No.305 of 1995 (Bisan Lal & Ors. Vs. State); and

(iii) The application was allowed by the ADM (LA)-A.K. Mishra by award dated 1 July 2017 and the amount of compensation determined by the High Court in the First Appeal at Rs.28.12 per square yard was directed to be paid.

Having stated the aforesaid necessary factual aspect, it is necessary for the Court, at this stage, to examine whether the aforesaid eight applications filed under Section 28-A of the Act were maintainable. It would, therefore, be appropriate to examine the provisions of Section 28-A as also other relevant provisions of the Act.

The award is made by the Collector under Section 11 of the Act. Section 18 provides that any person interested who has not accepted the award may, by written application to the Collector, require that the matter may be referred by the Collector for the determination of the amount of compensation by the Court. It is as follows:

"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 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."

Section 28-A of the Act deals with re-determination of the amount of compensation on the basis of the award of the Reference Court and 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 re-determined 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 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 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."

The issues that arise for consideration in this petition are :

(i) Whether an application under Section 28-A of the Act can be filed a person who had filed a reference application under Section 18 of the Act and the application had been decided on merits ;

(ii) Whether the award referred to in Section 28-A of the Act on the basis of which re-determination of compensation is sought under Section 28-A is the award of the Reference Court made under section 18 of the Act or the decree of the High Court in a First Appeal or the Supreme Court in a further Appeal under section 54 of the Act;

(iii) Whether the time limit for filing the application under Section 28-A of the Act is three months from the date of the award rendered by the Reference Court on which reliance has been placed or the decree of the High Court or the Supreme Court in further proceedings arising out of that Reference;

(iv) Whether the delay in filing the application under Section 28-A of the Act can be condoned; and

(v) Whether it is necessary for the party to implead the acquiring body as an opposite party and for the ADM (LA) to issue notice to the Acquiring Body and provide a reasonable opportunity of being heard to it before making the award.

FIRST ISSUE: Whether application under Section 28-A of the Act can be filed by a person who has availed of the remedy under Section 18 of the Act.

Section 18 of the Act clearly provides for a remedy to any person interested who has not accepted the award made by the Special Land Acquisition Officer under Section 11 of the Act to require the matter to be referred by the Collector for determination of the compensation by the Court. Under Section 20, the Court will proceed to determine the objections. Section 25 provides that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11 of the Act. Section 26 of the Act provides for the form of award and is as follows:

"26 Form of awards.

(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amounts awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.

(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908 (5 of 1908)"

Section 27 deals with costs, while Section 28 deals with interest on excess compensation determined by the Court.

Section 28-A of the Act purports to provide a remedy to any person interested who has not preferred an application to the Collector under Section 18, if at the instance of other persons covered by the same notification issued under Section 4(1) of the Act, the Reference Court enhances the compensation. It provides that any such person interested may, by written application to the Collector, within three months from the date of award of the Court, require that the amount of compensation payable to them may be redetermined.

The objects and reasons for introduction of Section 28-A by Act No.68 of 1984 are as follows:

"Considering that the right of reference to the civil court under section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised only by the comparatively affluent landowners and that this causes considerable inequality in the payment of compensation for the same or similar quality of land to different interested parties, it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek re-determination of compensation, once any one of them has obtained orders for payment of higher compensation from the reference court under section 18 of the Act."

Thus, it is clear from a bare perusal of Section 28-A of the Act and the objects and reasons for introduction of Section 28-A of the Act that a person who has availed the remedy provided for under Section 18 of the Act cannot file an application under Section 28-A of the Act.

It also needs to be noted that under sub-section (3) of Section 28-A of the Act, any person who has not accepted the award made by the Collector under Section 28-A(2) of the Act may, by a written application to the Collector, require that the matter may 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 references as they apply to a reference under Section 18. The land owners cannot have two opportunities to file references. Thus also, only a person who has not availed of the remedy under Section 18 of the Act can file an application under Section 28-A of the Act.

The Supreme Court has time and again observed that a person interested who has not filed an application under Section 18 of the Act can only file an application under Section 28-A of the Act.

In Scheduled Castes Co-operative Land Owning Society Limited, Bhatinda Vs. Union of India & Ors.4 the Supreme Court held that Section 28-A of the Act applies only to those claimants who had failed to seek a reference under Section 18 of the Act and would, therefore, not apply to a case where the claimant had sought and secured a reference under Section 18 of the Act. The observations are :

"4. .................. It is obvious on a plain reading of Sub-section (i) of Section 28A that it applies only to those claimants who had failed to seek a reference under Section 18 of the Act. The redetermination has to be done by the Collector on the basis of the compensation awarded by the Court in the reference under Section 18 of the Act and an application in that behalf has to be made to the Collector within 30 days from the date of the award. Thus only those claimant who had failed to apply for a reference under Section 18 of the Act are conferred this right to apply to the Collector for redetermination and not all those like the petitioners who had not only sought a reference under Section 18 but had also filed an appeal in the High Court against the award made by the reference court. The newly added Section 28A, therefore, clearly does not apply to a case where the claimant has sought and secured a reference under Section 18 and has even preferred an appeal to the High Court. This view, which we take on a plain reading of Section 28A, finds support from the judgment of this Court in Mewa Ram v. State of Haryana."

(emphasis supplied) In Union of India & Anr. Vs. Pradeep Kumari and Ors.5 the Supreme Court, after making reference to the Statement of Objects and Reasons underlying the enactment of Section 28-A of the Act, observed that it intended to remove inequality and give relief to persons who were not able to take advantage of right of reference to the Civil Court under Section 18 of the Act and the observations are :

"8. We may, at the outset, state that having regard to the Statement of Objects and Reasons, referred to earlier, the object underlying the enactment of Section 28-A is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act. This is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek re-determination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. Section 28-A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of right of reference to the civil court under Section 18 of the Act. In relation to beneficent legislation, the law is well-settled that while construing the provisions of such a legislation the court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of Section 28-A should, therefore, be construed keeping in view the object underlying the said provision."

(emphasis supplied) It, however, disagreed with the earlier view taken by the Supreme Court in Babua Ram and Ors. Vs. State of U.P. and Anr.6 that the period of limitation for making an application under Section 28-A of the Act has to be computed from the date of making of the first award after coming into force of Section 28-A of the Act and the observations are as follows::

"10. ................ The object underlying Section 28-A would be better achieved by giving the expression "an award" in Section 28-A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(l) is thus construed, a person would be able to seek re-determination of the amount of compensation payable to him provided the following conditions are satisfied :-

(i) An award has been made by the court under Part III after the coming into force of Section 28-A;

(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference;

(iii) The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4(1) to which the said award relates;

(iv) The person moving the application did not make an application to the Collector under Section 18;

(v) The application is moved within three months from the date of the award on the basis of which the re-determination of amount of compensation is sought; and

(vi) Only one application can be moved under Section 28-A for re- determination of compensation by an applicant."

(emphasis supplied) In Bhagti (Smt.) (deceased) through her Lrs. Jagdish Ram Sharma Vs. State of Haryana7, the Supreme Court also observed that an application can be filed under Section 28-A only if a reference had not been made under Section 18 of the Act:

"6. Thus only those claimants who had failed to apply for a reference under Section 18 of the Act are conferred with the right to apply for redetermination under Section 28-A(1). But all those who had not only sought a reference under Section 18 but had also filed an appeal in the High Court against the award made by the Reference Court are not entitled to avail of the remedy under Section 28-A. ....................."

(emphasis supplied) The judgments of the Supreme Court in Scheduled Castes Co-operative Land Owning Society Limited and Babua Ram were followed by the Supreme Court in Desh Raj (deceased) through LRs & Anr. Vs. Union of India & Anr.8 and it was observed :

"12. ..............Moreover, benefit of Section 28-A is available only to the parties who had not sought reference under Section 18 of the Act for enhancement of the compensation. This provision is not available to persons who seek for reference under Section 18 of the Act for enhancement of the compensation and do not challenge judgment of the Reference Court or the judgment of the High Court thereafter. ............."

(emphasis supplied) In State of Orissa and Ors. Vs. Chitrasen Bhoi9, the Supreme Court again examined whether a person who had invoked the remedy available under Section 18 of the Act could file an application under Section 28-A of the Act and relying upon the earlier decisions observed that Section 28-A of the Act seeks to confer benefit on those persons who had not sought a reference under Section 18 of the Act.

It has, therefore, to be held that a person who has not availed of the remedy provided for under section 18 of the Act can only file an application under section 28-A of the Act for re-determination of the compensation.

SECOND ISSUE: Whether an application can be filed under section 28-A of the Act seeking re-determination of the compensation on the basis of the award made by the Reference Court under section 18 of the Act or the decree of the High Court or the Supreme Court under section 54 of the Act.

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".

An application under Section 28-A of the Act cannot, therefore, be filed for redetermination of the compensation on the basis of a decree of the High Court in the First Appeal filed under Section 54 of the Act contained in Part VIII or by the Supreme Court in further Appeal.

This is what has been held by the Supreme Court in Babua Ram and the observations are :

"19. The next question is as to when the period of limitation of three 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) It needs to be stated that in Pradeep Kumari, 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.

The view that the award referred to in Section 28-A(1) of the Act is the award of the Reference Court was reiterated by the Supreme Court in Bhagti 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) It is, therefore, clear that the award referred to in section 28-A(1) of the Act is the award of the Reference Court and not a decree of the High Court in First Appeal or a decree of the Supreme Court in further appeal. It is also clear that the award of the Reference Court can be any of the awards and not necessarily the first award.

THIRD ISSUE: Whether the time limit for filing the application under Section 28-A of the Act is three months from the date of award of the Reference Court.

While examining the second issue, the Court has concluded that an application can be filed under Section 28-A(1) of the Act seeking redetermination of the compensation only against the award of the Reference Court and not from a decree of the High Court in First Appeal or the Supreme Curt in further Appeal. It, therefore, follows that the time period for filing an application under Section 28-A(1) of the Act has to be counted from the date of award of the Reference Court and not from the date of a decree of the High Court in First Appeal or that of the Supreme Court in further Appeal.

FOURTH ISSUE: Whether the time period for filing the application under Section 28-A(1) of the Act can be extended.

As noted above, section 28-A(1) of the Act provides that a written application can be filed before the Collector within three months from the date of the award of the Reference Court. The issue is whether this period of three months can be extended by counting it from the date of knowledge of the award of the Reference Court.

This issue was examined by the Supreme Court in State of Andhra Pradesh Vs. Marri Venkaiah10 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) The Supreme Court also 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 Officer11 since that related to limitation provided for under Section 18 of the Act. The relevant observations 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) The Supreme Court referred the earlier decisions rendered by it in Union of India Vs. Mangtu Ram12 and Tota Ram Vs. State of U.P.13 wherein the same issue was dealt with.

In State of Orissa and Ors. Vs. Chitrasen Bhoi14, the Supreme Court also held that the limitation for filing the application under Section 28-A(1) of the Act would commence from the date of the making of the award by the Reference Court and any delay in filing the application cannot be condoned.

The Supreme Court in Popat Bahiru Goverdhane and Ors. Vs. Special Land Acquisition Officer and Anr.15 again reiterated that the period of limitation cannot be extended on the basis of knowledge of the award and the relevant observations are:

"8. The sole question for the consideration of the Court is whether limitation for filing the application for re-determination 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.

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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."

(emphasis supplied) Thus, the period of three months provided in section 28-A of the Act for filing an application for re-determination of the compensation cannot be extended even on the basis of acquiring knowledge of the award of the Reference Court and any application filed after three months from the date the award of the Reference Court was made has to be rejected.

FIFTH ISSUE: Whether it is obligatory on the part of the applicant to implead the acquiring body as an opposite party and whether it is also necessary for the ADM (LA) to issue notice to the acquiring body and provide it a reasonable opportunity of being heard before making the award.

To appreciate this, it would be appropriate to refer to sub-section (2) of Section 28-A of the Act. It provides that the Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and give them a reasonable opportunity of being heard and, thereafter, make an award determining the amount of compensation payable to the applicants.

The Supreme Court in U.P. Awas Evam Vikas Parishad Vs. Gyan Devi16 held that Section 50(2) of the Act confers on a local authority for whom the land is being acquired, a right to appear in the acquisition proceedings before the Collector and the Reference Court and adduce evidence for the purposes of determining the amount of compensation. The Supreme Court also held that the said right carries with it a right to be given adequate notice by the Collector as well as the Reference Court of the date on which the matter for determination of compensation will be taken up. The Acquiring Body, therefore, has to be impleaded as an opposite party in proceedings under Section 28-A of the Act and has also to be given notice by the ADM (LA) of the date on which the matter is taken up for determination of the compensation so that it can file objections. The acquiring body can bring to the notice of the ADM (LA) all the relevant facts regarding the maintainability of the application filed under Section 28-A of the Act or factors relevant for determination of the compensation.

To summarise, the following factors, in brief, have necessarily to be inquired into by the Collector/ADM(LA) when an application under Section 28-A of the Act is filed :

(i) The award of the Reference Court on which reliance is placed for redetermination of the compensation is in relation to a land covered by the same notification issued under Section 4(1) of the Act and the Reference Court has, by the said award, awarded compensation in excess of the amount awarded by the Collector under Section 11 of the Act;

(ii) The applicant had not earlier filed an application under Section 18 of the Act before the Reference Court;

(iii) The application has been filed within three months from the date of the award of the Reference Court which forms the basis for redetermination of the compensation provided, of course, the date on which the award was pronounced and the time requisite for obtaining the copy of the award can be excluded;

(iv) The award on which reliance has been placed by the applicant for redetermination of the compensation is the award of the Reference Court and not the decree of the High Court in First Appeal or the Supreme Court in further Appeal under Section 54 of the Act;

(v) Only one application can be filed under Section 28-A of the Act for redetermination of the compensation but this application can be filed within the stipulated time from any of the award of the Reference Court made in regard to the same acquisition and it is not necessary that the application should be filed within the stipulated time from the date of the making of the first award by the Reference Court; and

(vi) The Acquiring Body is impleaded as an opposite party and notice is issued to the Acquiring Body for filing objections to the application under Section 28-A of the Act.

It is in the light of the aforesaid principles that it has to be ascertained whether the application filed by the petitioner under section 28-A of the Act or the eight applications referred to above filed under Section 28-A of the Act were maintainable.

So far as the petitioner is concerned, it is clear that the predecessor in interest of the petitioner had filed application under Section 18 of the Act which was registered as LAR No.127 of 1989. The reference application was decided by a common award dated 15 November 1988 and the market value of the land was enhanced. First Appeal No. (196) of 1989 was also filed by the predecessor in interest of the petitioner but it was dismissed on 13 March 1989 and the application filed for recall of the order was also rejected on 19 February 2015. The petitioner filed Special Leave to Appeal No.32863 of 2015 which was dismissed by the Supreme Court on 4 December 2015 but with an observation that the order passed by the Supreme Court or the High Court shall not stand in the way of the petitioners pursuing their grievances under law in appropriate proceedings at appropriate stage before the appropriate Forum. It is thereafter that the petitioner filed an application under Section 28-A of the Act on 11 March 2016. The application was clearly not maintainable. In the first instance, the petitioner had filed Reference Application under Section 18 of the Act and secondly it was beyond the period stipulated under Section 28-A of the Act.

A perusal of the eight applications, referred to above, also indicates that whereas the first application is pending disposal, the other seven applications have been allowed. The Court expects that the ADM (LA), before whom application No.1 is pending, to adhere to the principles referred to above while deciding the application. Regarding the remaining seven applications it is more than apparent that they were not maintainable, yet the ADM (LA) had allowed these applications and ordered for payment of the amount. It is not clear that whether the amount has been paid or not. The Court, therefore, directs the Principal Secretary of the concerned department to examine each of these seven applications in the light of what has been stated in this judgment so that in case it is considered necessary to take steps for recovery of the amount from the tenure holders who have already received it, appropriate orders can be passed. In case they have not received the amount then necessary directions can also be issued. Needless to state that in case the Principal Secretary considers it appropriate to order for recovery of the amount already paid to the applicants, an opportunity would have to be provided to such tenure holders before passing any final order.

The Court also expects that the other applications, of which details have been given to the Court in the affidavits filed by the Collector Gautam Budh Nagar as also NOIDA, shall be decided in accordance with the principles stated above.

The relief prayed for in this petition that NOIDA should deposit the amount of compensation so that the ADM (LA) can pass an award in favour of the petitioners, therefore, cannot be granted.

The writ petition is, accordingly, dismissed subject to the observations and directions issued above.

Order Date :- 21.09.2017 GS (Dilip Gupta, J.) (Dinesh Kumar Singh-I, J.)

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