Himachal Pradesh High Court
Krishan Lal And Others vs National Thermal Power Corporation And ... on 23 June, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3856 of 2021 Reserved on: 21.06.2023 Decided on: 23.06.2023.
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Krishan Lal and others .... Petitioners Versus National Thermal Power Corporation and another ...Respondents _______________________________________________________________ Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge The Hon'ble Mr. Justice Satyen Vaidya, Judge 1 Whether approved for reporting? Yes __________________________________________________________ For the petitioners r : Mr. Virender Thakur, Advocate.
For the respondents: Mr. Jagdish Thakur, Advocate, for respondent No.1.
Mr. Anup Rattan, Advocate General with Mr. Y.W. Chauhan, Sr. Addl.
Advocate General, Mr. Ramakant Sharma, Ms. Sharmila Patial, Additional Advocate Generals and Ms. Priyanka Chauhan, Deputy Advocate General, for respondent No.2-State.
Satyen Vaidya, Judge By way of instant petition, petitioners have prayed for following substantive reliefs:
(i) That impugned Annexure P-3, dated 03.08.2021, whereby respondent No.2 has rejected the application of the petitioners for referring the claim/reference to the 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 23/06/2023 20:35:54 :::CIS 2
learned District Judge, Solan, H.P., may very kindly be quashed and set-aside with directions to him to refer the matter of the petitioners to the competent Court of law, i.e. learned District Judge, Solan, H.P. immediately .
without any further delay for adjudication of the same in accordance with law, in the interest of law and justice.
(ii) That action as per law may very kindly be ordered to be taken against the erring officers/officials for keeping the matters of the pending for a period of more than three years without any rhyme and reason.
2. A large chunk of land falling in Districts of Mandi, Bilaspur, Shimla and Solan including the land of petitioners in Village Padhyar, Tehsil Arki, District Solan, H.P. was acquired for construction of Kol Dam HEP by respondent No.1. Respondent No.2 offered the market price of the acquired land vide award passed in the year 2006. Some of the land owners preferred Reference Petition under Section 18 of the Land Acquisition Act, 1894 (for short, 'the Act').
Learned Additional District Judge, Solan enhanced the amount of compensation by deciding the Reference Petition in the year 2009. Respondent No.1 assailed the award passed by learned Reference Court by way of an appeal under Section 54 of the Act before this Court, however, remained ::: Downloaded on - 23/06/2023 20:35:54 :::CIS 3 unsuccessful and the appeal was dismissed in the year 2017.
3. Thereafter, the petitioners approached respondent No.2 by way of application under Section 28A of the Act for .
re-determination of the amount of compensation on the basis of the award of the Court. Respondent No.2 allowed the application of petitioners and awarded the enhanced amount in their favour. Petitioners received the enhanced amount and yet again in April, 2018 approached respondent No.2 with an application under Section 28 A (3) of the Act for making a reference for determination by the Court.
4. Respondent No.2 did not take any action on the application of the petitioners under Section 28 A (3) of the Act for about three years, forcing the petitioners to file the instant petition. Initially, the petitioners had made a prayer to direct respondent No.2 to refer the matter to the Court.
During the pendency of the petition, respondent No.2 vide communication dated 3.8.2021 (Annexure P-3) refused to refer the matter to the Court on the ground firstly that there was no justification to refer the matter as the petitioners had already received the enhanced amount and secondly, their application was not within limitation. Petitioners by ::: Downloaded on - 23/06/2023 20:35:54 :::CIS 4 amending the petition now have also laid challenge to communication dated 3.8.2021 (Annexure P-3) issued by respondent No.2.
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5. Respondents have contested the claim of the petitioners on the ground that the petitioners had received the enhanced compensation as determined by respondent No.2 under Section 28 A (1) (2) of the Act and, therefore, they were not entitled to approach respondent No.2 under Section 28 A (3) of the Act.
6. We have heard learned counsel for the parties and have also gone through the records of the case carefully.
7. Section 28A of the Act, reads as under:
"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 re-determined on the basis of the amount of compensation awarded by the Court: Provided that in ::: Downloaded on - 23/06/2023 20:35:54 :::CIS 5 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."
8. Sub-section (3) of Section 28A of the Act mandates that on receipt of written application under that section the Collector assumes jurisdiction to refer the matter for the determination of the Court and the provisions of Sections 18 to 28 of the Act also become applicable to such reference as they apply to a reference under Section 18 of the Act.
9. Conjoint reading of Sections 18, 19 and 28 A (3) of the Act, makes it visibly clear that except to refer the matter for determination of the Court, the Collector has no jurisdiction either to refuse such reference or to decide it on ::: Downloaded on - 23/06/2023 20:35:54 :::CIS 6 merits.
10. The jurisdiction to decide the reference is with the Court, be it a reference under Section 18 or Section 28A (3) of .
the Act. The question of fact with respect to the correctness of the claim or any other question as to maintainability of such objection has also to be decided by the Court. The Collector has no jurisdiction to go into such question.
11. Learned counsel for respondent No.1 had contended that after having accepted the award, petitioners were not entitled to file application under Section 28A (3) of the Act. In support of his contention, reference has been made to Section 28 A (3), wherein it is provided that any person interested, who has not accepted the award, may approach the Collector for referring the matter to the determination by the Court. The contention so raised deserves to be rejected for the reason that the factum of petitioners having filed the application under Section 28A (3) of the Act manifests their intent. Thus, it cannot be said that the petitioners had accepted the award and hence were not entitled to file application under Section 28 A (3) of the Act.
In Ajit Singh and others vs. State of Punjab and others, ::: Downloaded on - 23/06/2023 20:35:54 :::CIS 7 reported in (1994) 4 SCC 67, Hon'ble Supreme Court in para-5, while dealing with identical fact situation, has held as under:
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"5. .......Inasmuch as the appellants have filed an application for reference under Section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants."
12. In result, the petition succeeds. The impugned order/communication dated 3.8.2021 (Annexure P-3) is quashed and set-aside. Respondent No.2 is directed to make reference on the application of the petitioners under Section 28A(3) of the Act to the Court of competent jurisdiction within four weeks from the date of passing of this order.
13. The petition stands disposed of in the aforesaid terms, so also the pending miscellaneous application(s), if any.
(Tarlok Singh Chauhan)
Judge
23rd June, 2023 (Satyen Vaidya)
(GR) Judge
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