Allahabad High Court
Chchangur Son Of Ram Karan vs State Of Uttar Pradesh And The ... on 25 April, 2007
Bench: V.M. Sahai, Sabhajeet Yadav
JUDGMENT
1. By this petition, the petitioner has challenged the order dated 14.4.1987 passed by respondent No. 2, contained in Annexure-2 of the writ petition, wrongly mentioned as Annexure-4 of the writ petition, whereby the application of petitioner dated 19.1.1987 under Section 28A of Land Acquisition Act, 1894, herein after referred to as the Act, for redetermination of the amount of compensation on the basis of award of the court had been rejected.
2. The petitioner has stated in the said application that the father of petitioner namely Ram Karan S/o Musai was recorded tenure holder of Plot No. 39-M, ad-measuring 13 Biswa and 8 Dhoor sitated in Village Mahboobpur Pargana Bhadohi Tehsil Gyanpur, district Varanasi. The aforesaid land was acquired vide notification under Section 4(1) of the Act published in Gazette of UP. on 3.4.1982. It is stated that after said notification the father of petitioner namely Ram Karan died and in his place the name of petitioner was mutated in revenue records. It has also been stated in para 4 of the writ petition that vide same notification the land of several other persons of other village was also acquired. Some of persons whose land had been acquired under the same notification had made application under Section 18 of the Act for making reference before the court. In one of the such reference case No. 317 of 1983, Dukhi v. Collector, Varanasi decided by the court on 19.12.1986 the compensation awarded by Special Land Acquisition Officer was enhanced from Rs. 2000/- per Biswa to Rs. 15,000/- per Biswa. On receipt of such information, the petitioner immediately obtained the Judgment in reference case of Dukhi and moved an application on 19.1.1987 before the Collector Varanasi Under Section 28A of the said Act within the prescribed period claiming that the amount of compensation in reference case of Dukhi has been enhanced, therefore, on that basis the petitioner may also be paid excess amount of compensation by enhancing the compensation awarded by Land Acquisition Officer along with enhanced rate of solatium and other consequential benefits admissible under the provisions of Section 28A of the fact but instead of redetermining the compensation of petitioner on that basis Sunder Section 28A of the Act the Collector/respondent No. 2 has rejected the aforesaid application of the petitioner vide impugned order dated 14th April 1987, hence this writ petition. In support of his case, the petitioner has also 1 filed supplementary affidavit annexing the notification under Section 4(1) of the Act dated 11th February 1982 published in Uttar Pradesh Gazette on 3rd April 1982 as Annexure - 1 to the supplementary affidavit and Judgment and 'order passed by District Judge, Varanasi in land acquisition reference Case No. 317/83 Dukhi v. Collector Varanasi on 19.12.1986 as Annexure-2 of the supplementary affidavit filed in the writ petition.
3. Although no counter affidavit has been filed on behalf of State Government but learned Standing Counsel for the respondents present in the court has made serious attempt to justify the order impugned in the writ petition. Since the writ petition is old one of the year 1990 and the order which we propose to pass in the writ petition need not necessarily requires, counter affidavit to be filed on behalf of State Government, therefore, instead of granting further time to the learned Standing Counsel to file counter affidavit, we have proceeded to hear the case on merit on the basis of materials available on record.
4. At this juncture, it is also necessary to point out that the earlier land in question belonged to the district Varanasi but on carvation of the new district Sant Ravidas Nagar, the land in question came in the district Sant Ravidas Nagar.
5. We have heard learned Counsel for the petitioner and learned Standing Counsel for the respondents.
6. Learned Counsel for the petitioner has submitted that rejection of said application of petitioner on the ground that the land of petitioner was situated in different village and was part of different award is wholly erroneous and misconceived for the simple reason that under the provisions of Section 28A of the Act the relevant consideration for maintaining the application is that as to whether the land in respect of which redetermination of compensation is claimed is covered by same notification under Section 4, Sub-section (1) of the Act and persons in question are also interested and aggrieved by the award of the Collector notwithstanding that they had not made application to the Collector under Section 18 of the Act and further the Court in reference of land of another person covered by same notification has, allowed the compensation in excess of amount awarded by Collector Under Section 11 of the Act. It is immaterial as to whether the land in question in respect of which the application under Section 28A of the Act has been moved belongs to the same village or situated in different villages and forms part of the same award which has been subject matter of the reference before the court or of (Different award. In support of his contention learned Counsel for the petitioner has drawn our attention on the provisions of Section 28A of the Act.
7. Before adverting to the submission of the learned Counsel for the petitioner, it would be useful to examine precisely the aims, object and the scope of the provisions of Section 28A of the Act, which reads as under:
28-A. 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.
8. In this connection, it is pointed out that aims, object and ambit of scope of aforesaid provisions of the Act has been under consideration of the Hon'ble Apex Court at various occasions, it would be useful to refer some of the decisions rendered by the Hon'ble Apex Court in this regard.
9. In Babua Ram and Ors. v. State of U.P. and Anr. Hon'ble Apex Court while dealing with aims, object and scope of the provisions of Section 28A of the Act held as under:
15. A bare reading of Sub-section (1) of Section 28A would indicate that wherein an award under this Part, (Pad III consists of Sections 18 to 28), 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 other lands covered by the same Notification under Section 4(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 writing make an application to the Collector within three months from the date of the award of the Court requiring that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court. The proviso gives a right to exclude the time taken from the day on which the award was pronounced and the time required to obtain a copy of the award in computation of three months within which the application for redetermination has to be made in writing to the Collector under Sub-section (1) of Section 28A. The basis for redetermination is the award of the Court and the compensation awarded therein. Sub-section (2) thereof enjoins the Collector to issue notice to all the persons interested, i.e., the applicant, the State and the beneficiary, if any, to give them reasonable opportunity of being heard in the inquiry conducted thereon and to make the award determining the amount of compensation payable to the applicants under Sub-section (1). Sub-section (3) gives a right to the applicant either to accept the award or to accept the compensation under protest. In the latter case he has been given a right under Sub-section (3) to make a written application to the Collector to refer the matter for determination under Section 18 to the Court. The provisions of Sections 18 to 28, as far as may be, apply to such references. Thus, Section 28A is a complete Code in itself providing substantive right to an interested owner who received compensation under Section 18 without protest for higher compensation, and remedy has been provided to make a written application within the prescribed period. The non-obstante clause lifts the rigour of the bar created by Section 18(1) and the second proviso to Section 31 and makes him eligible to be at par with his neighbour to claim parity for compensation to the land similarly situated as the land covered by the court award.
16. The first question that arises for determination is, who is a person "aggrieved" within the meaning of Section 28A(1) of the Act Para 2(IX) of the Statement of the Objects and Reasons read with para 3 of the Financial Memorandum would indicate that Section 28A was introduced for the first time in the second Bill to benefit poor and inarticulate people who by reason of their poverty, ignorance and illiteracy fail to take advantage of their right of reference to the Civil Court under Section 18. By operation of second proviso to Sub-section (2) of Section 31 and Section 18(1), though such people are interested persons, if due to their ignorance, illiteracy or indigence, receive compensation for their lands without protest, would be denied of their right to obtain higher compensation while the comparatively affluent land owners pf their neighbouring lands who take advantage of the reference under Section 18 would get higher compensation determined by the court. Hence Section 28A makes the award under Section 26, the foundation for obtaining higher compensation by poor and inarticulate people. In Mewa Ram v. State of Haryana , this Court held that the right and remedy under Section 28A was meant for that class of persons who were poor and inarticulate and by reason of their poverty and ignorance, should have failed to take advantage of the right of reference to the court for higher compensation under Section 18. However, this Court concluded that to avail of the remedy under Section 28A, the conditions laid down therein were to be fulfilled.
17. In K. Rangiah v. Special Deputy Collector (Land Acquisition) ; this Court observed that in an acquisition proceedings, lands situated in the same locality and in the neighbouring locality when are possessed of the same comparable advantages, the owners of the former lands are entitled to the same rate of compensation as the owners of other lands as determined by the judgment of the High Court which had become final as otherwise, it would inequitable and discriminatory. In other words, the owners of the lands possessing the same kind and same quality etc. are entitled to parity in payment of compensation for their lands. Section 28A(1) is intended to overcome the hurdle created by Section 18(1) and 2nd proviso to Section 31(2) in the matter of obtaining equal compensation for similar acquired lands. Equal compensation for similar acquired lands could be got by all the interested persons, if their lands are acquired under the same Notification. In other words, if an owner fails to avail of the right and remedy under Section 18(1), Section 28A(1) grants an extra right and remedy for redetermination of the compensation payable to him for his and on the basis of an award of the court giving to an owner of another land covered by the same Notification under Section 4(1) and under the same award. The payment of higher compensation to his neighbouring land owner makes an applicant an aggrieved person to claim redetermination of the compensation payable to him for his land. The person aggrieved is, therefore, in this context would mean a person who had suffered legal injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affectation of his title to compensation.
19. The person aggrieved must, therefore, be one who has suffered a legal grievance because of a decision pronounced by Civil Court giving higher compensation for an acquired lands similar to his own while he is denied of such higher compensation for his land because of operation of Section 18 read with Station 31 of the Act resulting in affectation of his pecuniary interest in his Acquired land is directly and adversely in that award of the Collector made under Section 11, he becomes as such aggrieved person and entitled to avail of the right and remedy conferred upon him under Section 28A(1) to make good his denied right to receive compensation in excess of the amount awarded by the Collector/L.A.O. Acceptance of the contention of Shri G.I. Sanghi, learned senior counsel and his companions, that persons who under protest received payment of compensation for their lands but failed to avail of the right and remedy under Section 18 waiting in the wings for success of the land owners of the adding lands to get higher compensation under Section 28A(1), as person aggrieved robs the poor and inarticulate who by reason of their poverty or ignorance failed to avail of the right and remedy under Section 18, and creates not only invidious discrimination between same class of person similarly situated but would be highly, unjust and arbitrary offending Article 14 of the Constitution apart from flying in the face of express animation of the statute as espoused in its Statement of Objects and Reasons and the Financial Memorandum. In this context, we make it clear that we have looked into Statement of Objects and Reasons and the Financial Memorandum to know what is in that induced the introduction of the Bill but not as an aid to interpret Section 28A(1). Therefore, we have no hesitation to hold that any interested person in the land acquired under the same Notification published under Section 4(1) who failed to avail the right and remedy under Section 18(1) read with second proviso to Section 31(2), becomes a person aggrieved under Section 28A(1) of the Act, when the owner of the another land covered by the same notification is awarded higher compensation by the Civil Court on a reference got made by his under Section 18.
21. The question then is when exactly the period of limitation starts running for making an application in writing under Sub-section (1) of Section 28A. A bare reading of Sub-section (1) along with its proviso would indicate that the making of the award by the civil court or judicial officer which becomes the judgment and decree under Section 26, is the starting point from which the period of limitation allowed for making an application under Section 28A. However, the person aggrieved in computing the period of three months allowed for making an application under Section 28A would be entitled to exclude the day on which the award was pronounced by the court or the judicial officer and the time requisite for obtaining the certified copy of the award which is a judgment and decree under Section 26. In other words, the proviso to Sub-section (1) of Section 28A excludes the requisite time taken for obtaining the copy of the award and in computation of the period of three months from the date of the award, the time required to obtain a certified copy of the award should be excluded. Limitation begins to run from the date the award was pronounced by the court under Section 26. It is well-settled that the law of limitation limits the time after which a suit or other proceeding cannot be entertained in a court of justice or before appropriate authority, though it does not affect the substantive rights of the parties. Once the limitation begins to run, it runs in its full course until its running is interdicted by an order of the court. Explanation to Section 11 provides internal evidence in this behalf to make the point poignantly clear which states that in computing two year's period to make award under Section 11, the period during which any action or proceeding to be taken in pursuance of the declaration under Section 6 is stayed by an order of a court, should be excluded. The legislature prescribed three month's limitation to quicken diligence like caveat emptor and provided to a non-protester right to redetermination provided the application in writing is made to the Collector within three months from the date of the award of the civil court of original jurisdiction, excluding the requisite time taken to obtain a copy of the award. In other words, the right and remedy provided by Section 28A(1) stands extinguished with the expiry of three months from the date of the award under Section 26. It is true that in a given set of facts, there could be more than one reference under Section 18 at the behest of different claimants of the lands covered by Section 4(1) Notification and the court may make successive awards at various times. Compensation given in the respective awards may vary and may be higher than the one given in an earliest award. In the teeth of the express language in Sub-section (1) of Section 28A, limitation of three months once expires in respect of earliest award by efflux of time, none of the later awards could provide any assistance to revive the lapsed time under Section 28A(1) nor provide fresh cause of action or successive causes of action when multiple awards are made at different times or dates. Application under Section 28A(1) may be made at the instance of the selfsame person or different persons. Any other interpretation would amount to re-writing the proviso to Sub-section (1) of Section 28A. The judgment and decree of the Court of appeal either under Section 54 or under Section 96 of CPC or under Article 132, 133 or 136 of the Constitution does not furnish fresh cause of action nor provide fresh limitation to make application under Section 28A(1) of the Act as has already been held in that they are not covered under Part III of the Act. May be that they are continuation of original decree made in that of the Supreme Court or the High Courts. But the legislature has conferred right of reopening the award under Section 11 only when the civil court under Section 26 awarded higher compensation in Part III to a person having an interest in the land covered by the same Notification under Section 4(1) and an application in writing if made within limitation.
22. The next question is when the person aggrieved is entitled to invoke Section 28A(1)? If an award under Section 11 was made prior to September 24, 1984 and reference made thereon under Section 18 was decided either before that date or thereafter or if an award under Section 11 was made after September 24, 1984 and the reference made thereon to Court under Section 18 was decided after that date. At one point, we were inclined to agree that Section 28A operates from April 30, 1982, the, date on which the first Land Acquisition (Amendment) Bill, 1982, wad introduced in the Parliament but para 3 of the Financial Memorandum made it explicit that the original Bill did not contain Section 28A. On a review, Section 28A was introduced for the first time in 1984 Bill. Admittedly, the Amendment Act 68 of 1984 has come into force on September 24, 1984. Section 28A was not given retrospective effect unlike Section 34 of the Act, as amended by Section 20 of the Amendment Act Section 30(3) of the Amendment Act gives retrospective effect to Section 34 to award interest, in any proceedings, at any stage, of determining computation as provided in Clauses (a) and (b) of Section 30(3) of Amendment Act. By operation of Section 30(1) of the Amendment Act Section 23(1-A) was given prospective operation under Section 30(1)(a) and limited retrospective operation as transitional provision and confined the right to interest therein to the award of the Collector pending on April 30, 1982 and made before the commencement of the Amendment Act or the Civil Court covered by Section 30(1)(b). In these cases we are not concerned with the interpretation of Section 23(1-A) read with Section 30(1) of the Act. So it is unnecessary to enter into elaborate discussion. In Union of India v. Raghubir Singh (Dead) by LRs. , construing the wide language in Sub-section (2) of Section 30 of the Amendment Act, this Court held that the enhanced solatium by 30 per cent under Section 23(2) as amended by Section 15(b) of the Amendment Act would apply to an award of the Collector or a decree of the Civil Court pending between April 30, 1982 and September 24, 1984 and the High Court or the Supreme Court, in appeal would enhanced solatium or interest under Section 28 as amended by Section 18 of the Amendment Act and, does not apply to appeals pending in the High Court or this Court. In other words, despite the wide language of Sub-section (2) of Section 30 of the Amendment Act (Transitional Provisions), this Court had given restricted interpretation. This is the internal evidence available from the Amendment Act itself.
25. Sub-Section (1) of Section 28A reads that where 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 person interested in all other lands covered by the same notification under Section 4(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 monthswom 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 the compensation awarded by the Court. A person interested becomes aggrieved, when for other lands covered by the same notification under Section 4(1) of the Act, the Court awards compensation in excess of the compensation awarded under Section 11 to him for his land and to others for their land. Such aggrieved persons who had not made an application to the Collector under Section 18 earlier becomes entitled invoke Section 28A. Therefore, the verb 'allows' indicates' that the right to an aggrieved person under Section 28A(1) arises only when the reference Court grants compensation in excess of the amount awarded under Section 11 i.e. After September 24, 1984. It is prospective in operation after the Act had come into force. The amount "awarded" speaks of past tense. In other words there must be an award in existence under Section 26 made after the Amendment Act come into force. The right and remedy to claim redetermination accrues to an interested aggrieved person after September 24, 1984. The proviso amplifies it when it speaks of exclusion of the time taken to obtain copy of the award under Section 26 till it is supplied, i.e. It operates in future. It is, 'therefore, clear that Section 28A does not apply to an award under Section 26 made prior to September 24, 1984.
35. The next question is at whose instance anti in what circumstances an award under Section 11 would be Reopened consequent on the Court enhancing the compensation n a reference under Section 18.
36. As regards claim for higher compensation Sub-section (1) of Section 28A envisages the awarding of higher compensation by the Court on reference under Section 18 in excess of the amount awarded under Section 11 by the Collector. The aggrieved person must be the person interested in all other lands covered by the same Notification of Section 4(1) and the amount of the compensation determined by the Court is reiatable to the land similarly situated, possessed of the same value or potentialities etc. Despite their failure to seek and secure reference under Section 18, they became entitled to make an application in writing to the Collector within the prescribed three months' limitation. Therefore, any other non-applicant is not entitled to the benefit of the award of the Collector made on redetermination under Sub-section (1) of Section 28A. The contention of B.D. Aggrawal, learned Counsel for the claimants, that all persons despite their failure to make an application for redetermination of the compensation, are entitled to compensation under the redetermined award under Sub-section (1) of Section 28A, is without substance. It is accordingly rejected. Sub-section (1) of Section 28A would apply only to a person who had failed to seek and secure reference under Section 18 when one or other persons similarly interested in the land covered under the same Notification published under Section 4(1) received on reference under Section 18 higher compensation in an award under Section 26 and should make a written application under Section 28A(1). The Collector then is enjoined to redetermine the compensation in the manner laid in Section 28A(1) and to hake an award under Section 28A(2).
36A. The next questions is whether an interested person who sought and secured reference under Section 18 but was either unsuccessful and filed no appeal or had carried appeal but unsuccessful, would be entitled to redeterminatpn when the compensation was enhanced by the appellate Court either under Section 54 or on further appeal under Articles 132, 133 arm 136 of the Constitution. In Mewa Ram's case , this Court held in paragraph 5 that Section 28A provides for the determination of amount of compensation subject to the conditions laid down therein are fulfilled. For such redetermination, the forum is the Collector and the application has to be made before him within 30 days from the date of the award under Section 26 and the right is restricted to persons who had applied for reference under Section 18 of the Act. If these conditions are satisfied, the petitioners could have availed of the remedy provided under Section 28A the Act. In Scheduled Caste Co-operative Land Owning Society, Batinda v. Union of India p. 733, Para (4), this Court held that "it is obvious on a plain reading of Sub-section (1) of Section 28A that it applies to only to those claimants who had failed to seek 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, an application in that behalf has to be made to the Collector within 30 days from the date of the award. Thus only those claimants who had failed to apply under Section 18 are conferred with the 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". This is also clear from a reading of the scheme of the Act in Part II and III and in particular the self-contained Code in Section 28A. It is already held that an interested person who received compensation without protest becomes an aggrieved person when another person interested in the land covered by the same Notification under Section 4(1) gets higher compensation for his land from the Civil Court. By operation of the non obstante clause within Section 28A(1), the embargo created by Section 18(1) and the second proviso to Sub-section (2) of Section 31 is lifted and he has been given the right and remedy under Section 28A. But a person who received compensation under protest and sought, and secured a - reference but was unsuccessful or partially successful, does come within the embargo created by Section 18(1) and the second proviso to Sub-section (2) of Section 31 and the non, obstante clause in Section 28A(1) does not relieve him from it....
39. The next question is whether the Collector/LA.O. on receipt of the application under Sub-section (1) of Section 28A is pound to redetermine the compensation while the award and decree under Section 26 is pending consideration in the appeal in the High Court or appellate forum. If he does so, whether award under Section 28A(2) is illegal? It is settled law that the decree of the trial Court gets merged in the decree of the appellate Court which alone is executable. The finality of the determination of the compensation attained with the decree of the appellate forum, be it the High Court or this Court. Take for instance that 'A', 'B' and 'C are interest of persons in the land notified under Section 4(1) and the compensation determined in the award under Section 11. 'A' received the compensation without protest. 'B' and 'C' received the compensation under Section 31 under protest and sought and secured reference under Section 18. The Court enhanced the compensation from the Collector's award of Rs. 10000/- to Rs. 20,000/-. 'B' did not file appeal under Section 54 while 'C' filed the appeal. The High Court suppose, further enhances the compensation to Rs. 25,000/- or reduces the compensation to Rs. 15,000/- per acre. 'A' is a person aggrieved only to the extent of the excess amount awarded either by the award and decree of the Court under Section 26 but he will not get the enhancement of further sum of Rs. 5,000/- granted by the High Court in favour of 'C'. The decree of the High Court is the executable decree made in favour of 'C' Unless redetermination is kept back till the appeal by the Court is disposed of incongruity would emerge. Suppose the State filed appeal in this Court under Article 136 against the High Court decree and this Court confirms the award of the Collector and sets aside the decree of Civil Court under Section 26 and of the High Court under Section 54. There is nothing left for redetermination. With a view to save 'A' or 'B' or the State from the consequences of such inc mgruous situations, the Collector/L.A.O. Should stay his hands in the matter or redetermination of compensation till the appeal is finally disposed of and he should redetermine the compensation only on the basis of the final Judgment and decree of the appellate forum. Adoption of such course, would not merely avoid the chance element in the claimants getting the amounts of redetermined compensation but also avoids needless burden on public exchequer. As soon as the award of the Civil Court is carried in appeal, it becomes obligatory for the Collector to keep the application/applications for redetermination of compensation filed within limitation pending awaiting decision by the appellate forum and to redetermine the compensation on the basis of the final Judgment and decree. Normally, the L.A.O. Would file the appeal against the enhanced compensation in a decree of either the Civil Court or the High Court and will know their pendency. In the case of appeal filed by the interested persons, the latter should inform the Collector/L.A.O. Of the pendency of appeal or otherwise comes to know of it should keep the applications for redetermination, received under Sub-section (1) of Section 28A within limitation pending, awaiting the decision by the appellate Court. Before proceeding with the determination, he should obtain an affidavit from the party making the application under Section 28A that no appeal against the award made under Section 26 relied upon by him was filed or if hand been filed was disposed of by the appellate court and to produce the certified copy of decree and judgement, if already is disposed of.
10. The law laid down by Hon'ble Apex Court in the aforesaid decision has been followed in subsequent decision rendered in D. Krishna Veni and Anr. v. State of Orissa and Ors. , wherein Hon'ble Apex Court has held that although Section 28A applies to claimants who received compensation awarded by the Collector under Section 11 of the Act without protest but would not apply to those who availed of remedy of reference and got no benefit or lesser benefit. The pertinent observation made in para 3 of the decision is as under:
3. It is contended that when the High Court warded higher compensation by operation of Section 28A of the Land Acquisition Act, the appellants also are entitled to the same benefit. The point is now squarely covered by two judgment of this Court in Scheduled Castes Co-operative Land Owning, Society Ltd. Bhatinda v. Union of India and Ors. reported in A.I.R. 1991 SC 738 and Babua Ram and Ors. v. State of U.P. and Anr. . Therefore, the appellants having failed to avail of the remedy of appeal and having already availed the remedy of reference under Section 18, they are not entitled to seek redetermination of the compensation on the basis of award of the High Court granting enhanced compensation Section 28A would apply to the claimants who received the compensation without protest and faced with-statutory bar of reference and would not apply to those who had already availed the remedy of reference and got no benefit or lesser benefit thereunder. Equally the bar of res judicata clearly would apply to the appellants. The application under Section 28A is, therefore, not maintainable....
11. In Union of India and Anr. v. Pradeep Kumari and Ors. , while overruling the view taken in Babua Ram's case (supra) on limited question held that limitation under Section 128-A of the Act for making application thereunder does not necessarily start from the date of first award made after enforcement of Section 28A and on the question as to whether the Collector can also award interest on excess amount of compensation awarded under Section 28A of the Act, the Hon'ble Apex Court in para 10, 11, 13, 14 of the decision held as under:
...10 The right to make the application under Section 28A arise from the award of the Court on the basis of which the person making the application is seeking re-determination of the Compensation. There it nothing in Sub-section (1) of Section 128-A to indicate that this right is confined in respect of the earliest aware that is made by the Court after the coming into force of Section 28A. By construing the expression where in an award under this Part in Sub-section (1) of Section 28A to mean where in the first award made by Court under this Part, the word 'first,' which is not found in Sub-section (1) of Section 28A, is being read therein and thereby the amplitude of the said provision is being curtailed so as to restrict the benefit conferred by it. In the matter of construction of a beneficent provision it is not permissible by judicial interpretation to read words which are not there and thereby restrict the scope of the said provision. See Jnan Ranjan Sen Gupta v. Arun Kumar Bose. .
11. It is possible to visualise a situation where in the first award that is made by the Court after the coming into force of Section 28A the enhancement in the amount of compensation by the said award is not very significant for the reason that the person who sought the reference was not able to produce adequate evidence in support of his claim and in another reference where the award was made by the Court subsequently such evidence is produced before the Court and a much higher amount is awarded as compensation in the said award. By restricting the benefit of Section 28A to the first award that is made by the Court after the coming into force of Section 28A the benefit of higher amount of compensation on the basis of the subsequent award made by the Court would be denied to the persons invoking Section 28A and the benefit of the said provision would be confined to re-determination of compensation on the basis of leaser amount of compensation awarded under the first award that is made after the coming into force of Section 28A. There is nothing in the wording of Section 28A to indicate that the legislature intended to confer such a limited benefit under Section 28A. Similarly, there may be a situation, as in the present case, where the notification under Section 4(1) of the Act covers lands falling in different villages and a number of references at the instance of persons having lands in different villages were pending in the Court on the date of coming into force pf Section 28A and awards in those reference are made by the Court on different dates. A person who is entitled to apply under Section 28A belonging to a particular village may come to know of the first award that is made by the Court after the coming into force of Section 28A in a reference at the instance of a person belonging to another village, Sifter the expiry of the period of three months from the date of the said award but he may come to know of the subsequent award that is made by the Court in the reference at the instance of a person belonging to the same village before the expiry of the period of three months from the date of the said award. This is more likely to happen in the cases of inarticulate and poor people who cannot be expected to keep track of all the references that were pending in Court on the date of coming into force of Section 28A and may not be in a position to know, in time, about the first award that is made by the Court after the coming into force of Section 28A. By holding that the award referred to in Section 28A(1) is the first award made after the coming into force of Section 28A, such persons would be to deprived of the benefit extended by Section 28A. Such a construction would thus result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enacting Section 28A. The object underlying Section 28A Would be better achieved by giving the expression "an award" in Section 28A 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 28A. If the said expression in Section 28A(1) 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 lit after the coming into force of Section 29-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 28A 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 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 28A for re-determination of compensation by an applicant.
13. We are, therefore, unable to agree with trip view expressed in Babua Ram 1995 AIR SCW 65 (supra) and Karnail Singh 1995 (1) SCALE 21 (supra) that application under Section 28A for redetermination of compensation can only be made op the basis of the first award that is made after the coming into force of Section 28A....
14...It is no doubt true that under Section 28 only the Court can direct payment of interest on the excess amount awarded as compensation and the Collector is not competent to, award interest on the additional amount of compensation under the aid provision. But Sub-section (2) of Section 28A provides that after an application has been submitted under Sub-section (1) of Section 28A the Collector after conducting an inquiry makes an award determining the amount of compensation payable to the applicants and under Sub-section (3) of Section 28A any person who has not accepted the award under Sub-section (2) may move the Collector requiring that the matter be referred for determination to the Court and the provisions of Sections 18 to 28 have been made applicable to such reference. This would show that after an application has been submitted under Section 28A(1) for re-determination of the amount of compensation the process of such re-determination results in making of an award by the Collector and a person not accepting the said award can move the Collector to refer the matter to the Court for determination and such reference is governed by Sections 18 to 28. If that is so Section 34 of the Act would be applicable to the award that is made by the Collector under Sub-section (2) of Section 28A and it would be permissible for him to award interest under Section 34 on the additional amount of compensation awarded by him. The second contention urged by Shri Goswamy is, therefore, rejected.
12. In Union of India and Anr. v. Hansoli Devi and Ors. And State of Tripura and Anr. v. Roop Chand Das and Ors. , a five Judges Constitution Bench of Hon'ble Apex Court while taking different view from earlier decision rendered in Union of India and Anr. v. Pradeep Kumari and Ors. (supra), wherein in para 11 (iv) as one of the condition for maintaining the application under Section 28A was that person moving the application has not made an application to the Collector under Section 18, has been overruled and it has peen held that when an application of land owner under Section 18 is dismissed on the ground of delay then said land owner is entitled to make application under Section 28A of the Act, if other conditions prescribed therein are fulfilled. The pertinent observations made by Apex Court in this regard in para 4 and 5 of the decision are as under:
4. ...It is no doubt true that the object of Section 28A of the Act to confer a right of making a reference who might have not made a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28A of the Land Acquisition Act when some other person makes a reference and the reference is answered. But the Parliament having enacted Section 28A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression "had not made an application to the Collector under Section 18" in Section 28A of the Act. The aforesaid expression would mean that if the land-owner has made an application for reference under Section 18 and that reference is entertained and answered. In other words, it may not be permissible for a land owner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains a higher amount. In fact in Pradeep Kumari's case the three learned Judges, while enumerating the conditions to be satisfied, where after an application under Section 28A can be moved, had categorically stated "the person moving the application did not make an application to the Collector under Section 18". The expression "did not make an application", as observed by this Court would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28A cannot be denied. We, accordingly answer question No. 1(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28A of the Land Acquisition Act, 1894.
5. So far as question 1(b) is concerned, this is really the same question, as in question 1 (a) and, therefore, we reiterate that when an application of a land owner under Section 18 is dismissed on the ground of delay, then the said land owner is entitled to make an application under Section 28A, if other conditions prescribed therein are fulfilled.
13. In Luttful Haque v. Collector and Anr. , a Division Bench of this Court has held that where a huge track of land was acquired under a notification under Section 4(1) of the but compensation for entire land acquired was determined by two separate awards and compensation under one of such awards has been enhanced in reference by the Court, the holder of the other award who has not filed e Reference against the award would be entitled to claim re-determination of compensation under Section 28A of the Act. The pertinent observation made in para 15 of the decision in this regard is extracted as under:
In the facts and circumstances of the present-case, the mere fact that the total amount of compensation for the entire 10 acres of land acquired for the public public purpose of constructing the Government Carpet Institute at Bhadohi was determined under separate awards could not be deemed to furnish a valid ground for denying the benefit of Section 28A of the Land Acquisition Act to the petitioner. Since the respondent No. 1 itself had noticed that the enhanced compensation had been awarded to the other person affected by the same Scheme, there could be no justification for refusing to reopen the matter relating to the award of compensation to the petitioner as contemplated under Section 28A of the Act and depriving him of the statutory right secured in his favour thereunder, specially when it is not disputed that the petitioner had initiated any proceedings for enhancement of the compensation under Section 18 of the Land Acquisition Act.
14. At this juncture, we cannot fail to take notice of a decision of Division Bench of this Court rendered in Babua Ram and Ors. v. State of U.P. and Anr. , wherein this Court in para 16 of the decision has held that the benefit of Section 28A can be avail only by the person interested who has either not received any compensation at all or has accepted the same under protest. In this context it is pointed out that the aforesaid observation of this Court runs in conflict of decision rendered by Hon'ble Apex Court in Babua Ram's case (supra) and to that extent the decision rendered by this Court has been virtually overruled by the Hon'ble Apex Court in the aforesaid decision itself, therefore, in our considered opinion the law laid down by this Court has to be held no longer good law as already overruled by Hon'ble Apex Court. And further as held by the Hon'ble Apex Court in the aforesaid decision, a person would be aggrieved under Section 28A of the Act whenever the owner of another land covered by same notification awarded higher compensation by civil court in reference made by such persons notwithstanding that he had not made application to the Collector under Section 18 earlier, becomes entitled to invoke Section 28A. By operation of non obstante clause within Section 28A(1), the embargo created by Section 18(1) and second proviso to Sub-section (2) of Section 31 of the Act is lifted and he has been given the right and remedy under Section 28A irrespective of fact that he has received compensation under Section 31 without protest under award made by the Collector under Section 11 of the Act.
15. In view of the aforesaid settled legal position, we would like to make it further clear that if a huge track of land is acquired by same notification under Section 4(1) of the Act, it is possible that such land may fall within one or more revenue villages and having regard to the quality or nature and potentiality of the lands it is permissible that while determining the compensation Collector/Land Acquisition Officer may divide entire land covered by same notification into two or three awards or even in a single award it is possible that having regard to the potentiality of the lands, the Land Acquisition Officer may divide the lands by belting it into several parts for assessing the market value of such lands, as such belting of land into several parts for determination of different market value of the lands covered by the same notification under Section 4(1) of the Act is recognised practice and appears to have been noticed by Hon'ble Apex Court in Scheduled Caste Cooperative Land Owning Society Ltd. Bhatinda v. Union of India and Ors. . Therefore varying rate of market value is permissible for different lands falling in different belts covered by even same notification under Section 4(1) of the Act, but while redetermining the compensation the basis and foundation for redetermination of compensation shall be the award of the court under Section 26 of the Act, which has attained the finality.
16. Thus on conspectus of the whole issue we are of the considered opinion that an application for re-determination of compensation under Section 28A of the Act can be entertained and maintained on satisfaction of the certain conditions as under:
1. An award has been made by the Court under part III i.e. Under Section 26 of the Act, after commencement of provisions of Sea lion 28A of the Act i.e. On or after 24 September 1984.
2. By said award the amount of compensation in excess of the amount awarded by Collector under Section 11 has been allowed to the applicant in that reference.
3. A person making the application under Section 28A is interested in other land covered by same notification under Section 4(1) of the Act to which the said award relates. It is immaterial whether such land is situated in the same village or different villages and forms part of the same award made by Collector or different awards, instead thereof the essential condition is that the land must be covered by same notification under Section 4(1) of the Act.
4. When an application of land owner under Section 18 is dismissed on the ground of delay then said land owner is entitled to take application under Section 28A of the Act, if other conditions prescribed therein are fulfilled but it may not be permissible for a land owner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains higher amount as in that eventuality the principle of res-judicata would apply to create a bar against him/her.
5. Section 28A of the Act applies to claimants who received compensation without protest but would not apply to those who availed of remedy of reference and got no benefit or lesser benefit under reference.
6. The application is moved within three months from the date of award on the basis of which the re-determination of amount of compensation is sought for as indicated by Hon'ble Apex Court in Union of India v. Pradeep Kumari (supra) contrary to the law laid by Hon'ble Apex Court in Babua Ram's case in this regard as quoted in the preceding part of the judgement. But at the same time, we would like to make it further clear that the aforesaid period of three months from the date of award means either from the date of receipt of notice or from the date of knowledge of award either actual or constructive as held by a Division Bench of this Court in Sukhadeo and Ors. v. State of U.P. and Ors. , which, in our opinion, is still good law.
7. The enhancement of compensation in award made by Inference court under Section 26 of the Act can be made basis for re-determination of compensation under Section 28A of the Act but in a contingency where the award is made by Reference Court is under challenge in appeal under Section 54 of the Act before this Court or under Articles 132, 133 or 136 of the Constitution before Hon'ble Apex Court, in that eventuality the Collector/Land Acquisition Officer should stay his hands in the matter for re-determination of compensation and keep the matter pending before him till the appeal is finally disposed off and he should re-determine the compensation only on the basis of final judgement and decree of appellate forum.
8. A person would be aggrieved under Section 28A of the Act when the owner of another land covered by same notification awarded higher compensation by civil court in reference made by such persons notwithstanding that he had not made application to the Collector under Section 18 earlier, becomes entitled to invoke Section 28A. By operation of non obstante clause within Section 28A(1), the embargo created by Section 18(1) and second proviso to Sub-section (2) of Section 31 of the Act is lifted and he has been given the right and remedy under Section 28A irrespective of fact that he has received compensation under Section 31 without protest under award made by the Collector under Section 11 of the Act.
9. While awarding the compensation under Section 28A, the Collector can also award the interest on excess amount of compensation under Section 34 of the Act.
10. If a huge track of land is acquired by same notification under Section 4(1) of the Act, it is possible that such huge track of land may fall within one or more revenue villages and having regard to the quality, nature and potentiality of the lands it is also possible that while determining the compensation Collector/Land Acquisition Officer may divide entire land covered by same notification into two or three awards or even in a single award it is possible that having regard to the potentiality of the lands, the Land Acquisition Officer may divide the land by belting it into several parts for assessing the different market value of such lands and it shall be open for him to vary rate of market value of lands falling in different villages or belts, having regard to the quality or nature and potentiality of such lands covered by the same notification under Section 4(1) of the Act.
17. Now applying the legal position enunciated herein before, we have no hesitation to hold that the crucial question for determination of applicability of provisions of Section 28A of the Act is as to whether the land in respect of which the application has been moved is covered by same notification or not? And as to whether in respect of another lands covered by the same notification the court has made award to under Section 26 of the Act on reference made by another neighbouring person and enhanced the amount of compensation awarded by the Collector on the basis of which the claimant has made such application? Whether the claimant is interested and aggrieved person and satisfied the other conditions indicated herein before or not? It is immaterial that the land in question forms part of same award and situated in the same village or different villages, if covered by the same notification under Section 4(1) of the Act. From the perusal of impugned order, in our opinion, the Collector has failed to determine the real question in controversy involved in the case and has considered the factors which were not relevant for the purpose of maintainability of application under Section 28A of the Act for re-determination of compensation, thus excluded relevant factors for consideration which were necessary for entertaining application under Section 28A of the Act. Therefore, in our considered opinion, the rejection of the application of petitioner under Section 28A of Land Acquisition Act is based on wholly erroneous and irrelevant considerations instead of relevant considerations as contemplated by Section 28 of the Act. Thus the impugned order dated 19.1.1987 passed by the Collector cannot be sustained, accordingly the same is hereby quashed.
18. The Collector, Sant Ravidas Nagar is directed to consider the application of petitioner, contained in Annexure-1 of the writ petition, afresh and decide the same in accordance with the provisions of law and legal principles enunciated herein before within a period of three months from the date of production of certified copy of the order passed by this Court.
19. In the result, the writ petition succeeds and allowed.