Allahabad High Court
Rajveer Singh And 10 Others vs State Of Up And 2 Others on 7 January, 2025
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:2579-DB HIGH COURT OF JUDICATURE AT ALLAHABAD ***** A.F.R. Judgement Reserved on 22.10.2024 Judgement Delivered on 07.01.2025 Court No. - 21 Case :- WRIT - C No. - 30440 of 2024 Petitioner :- Rajveer Singh And 10 Others Respondent :- State Of Up And 2 Others Counsel for Petitioner :- Ajay Mishra,Shri Krishna Mishra Counsel for Respondent :- C.S.C.,Kaushalendra Nath Singh,Shivam Yadav Hon'ble Manoj Kumar Gupta,J.
Hon’ble Anish Kumar Gupta,J.
(Per Anish Kumar Gupta,J.)
1. Heard Shri Krishna Mishra, learned counsel for the petitioners, Sri Rajiv Kumar Gupta, learned Additional Chief Standing Counsel for the State respondent and Sri Kaushalendra Nath Singh, learned counsel appearing on behalf of respondent no. 2-Noida.
2. The instant writ petition has been filed by the petitioners being aggrieved by the impugned order dated 29.07.2022, which was served on the petitioners on 05.07.2024, whereby the application filed by the petitioners under Section 28A of the Land Acquisition Act, 1894 (hereinafter referred as ‘the Act, 1894’), has been rejected, as not maintainable, as the said application has been filed claiming re-determination of compensation by the Collector under Section 28A of the Act, 1894 on the basis of judgement and order dated 18.04.2022 passed by this Court in First Appeal No. 458 of 1982 (Malkhan vs. State of U.P.) filed by the land owners, who are covered by the same notification.
3. The brief facts of the case are that the ancestors of the petitioners were the owners of the land in Khasra No. 51 area 0-7-0 Hectares, Khasra No. 52 area 1-2-0 Hectares, Khasra No. 53 area 0-19-0 Hectares, 54 area 1-7-0 Hectares and Khasra No. 26/1 area 0-7-0 Hectares situated at Village Naya Bans, District Gautam Buddh Nagar. The aforesaid land of the petitioners was acquired in favour of the respondent no. 2- New Okhla Industrial Development Authority vide notification dated 30.04.1976 issued under Section 4(1)/17 of the Act, 1894. After the notification the award was declared on 15.02.1977 and the entire compensation in terms of the aforesaid award was received by the grandfather of the petitioner no. 7 herein and also by the ancestors of the other petitioners. Admittedly, the petitioners herein did not make any reference under Section 18 of the Act, 1894. However, some other land owners whose land were also acquired by the same notification, had challenged the said award by making reference to the court under Section 18 of the Act 1894, which was rejected by the Additional District Judge, Ghaziabad vide judgement and decree dated 25.11.1981. Being aggrieved by the rejection of the reference under Section 18 of the Act, 1894, an appeal under Section 54 of the Act, 1894 was filed by the said land owners being First Appeal No. 458 of 1982 (Malkhan vs. State of U.P.). The said First Appeal No. 458 of 1982 was decided by this Court vide order dated 18.04.2022, relying upon the judgement and order dated 08.07.2019 passed by this Court in First Appeal No. 593 of 1982, whereby the compensation was awarded at the rate of Rs. 28.12 per square yard along with 30% solatium and other benefits as per the provisions of the Act.
4. In terms of the aforesaid award made in the First Appeal vide order dated 18.04.2022, the petitioners herein had filed an application under Section 28A of the Act, 1894 on 23.05.2022. Since, no order was passed on the said application under Section 28A of the Act, 1894 by the respondents, the petitioners herein filed Writ C No. 21023 of 2022, which was decided by this Court vide order dated 09.04.2024, whereby a direction was issued to the respondent to decide the said application expeditiously preferably within six weeks from the date of communication of the said order.
5. Learned counsel for the petitioners submits that after the order dated 09.04.2024 was communicated to the respondents, the impugned order dated 29.07.2022 has been served on the petitioners on 05.07.2024 whereby the application under Section 28A of the Act, 1894 filed by the petitioners have been rejected as not maintainable as the same has been filed on the basis of the decision passed in the first appeal and not on the basis of an order passed by the reference court under Section 18 of the Act, 1894. Learned counsel for the petitioners submits that in the instant case the reference filed by one said Malkhan under Section 18 of the Act, 1894, being the Land Acquisition Reference No. 95 of 1977 was rejected by the Second Additional District Judge vide judgment and order dated 25.11.1981. He further submits that the appeal is in continuation of the suit or the original proceedings initiated under Section 18 of the Act, 1894 by Malkhan, therefore, the said order passed in the first appeal becomes the award within the meaning of Section 28A of the Act, 1894, for the purpose of filing the application under Section 28A of the Act, 1894 by the petitioners. Thus, the same was maintainable and the impugned order passed by respondent no. 3 is illegal and is liable to be quashed.
6. In support of his submissions learned counsel for the petitioners relied upon the judgement of the Division Bench of this Court dated 21.04.2016 in First Appeal No. 522 of 2009 (Pradeep Kumar vs. State of U.P. and Another), wherein the Division Bench of this Court held that the court as referred under Section 28A of the Act, 1894 would necessarily include the First Appellate Court, namely the High Court as the Appeal under Section 54 of the Act, 1894 is only a continuation of original proceedings and the order passed by the Court including the First Appellate court i.e., the High Court, in the matter of determination of rate of compensation in respect of land covered by a particular notification, would be a relevant consideration for determining as to what would be just compensation for identically situated tenure-holders, whose land has been acquired under the same notification.
7. Learned counsel for the petitioners has further relied upon the judgment of the Apex Court in Union of India and Another Vs. Pradeep Kumari and others : (1995) 2 SCC 736, wherein Three Judges’ Bench of the Apex Court has categorically held after considering the objects and reasons underlying the enactment of Section 28A of the Act, 1894 which is beneficent provision intended to give equal relief to the inarticulate poor people, who are not able to take advantage under Section 18 of the Act, 1894 that right to make application under Section 28A of the Act, 1894 would arise from the award of the court on the basis of which a person may make the application seeking re-determination of the compensation. Thus, he submits that since in the instant case reference court has declined the enhancement of compensation and the compensation has been first time enhanced by the High Court in the first appeal vide judgement and order dated 18.04.2022, the application filed by the petitioners under Section 28A of the Act 1894 claiming the compensation as has been determined by this Court in First Appeal No. 458 of 1982, was well within limitation and was maintainable. Thus, the impugned order dated 29.07.2022 deserves to be quashed and the petitioners are entitled for compensation at the rate of Rs. 28.12 per square yard, as has been determined by this court in First Appeal No. 458 of 1982, vide judgment and order dated 18.04.2022.
8. Per contra, learned counsel for the State as well as for the Development Authority submits that the provisions of Section 28A of the Act, 1894 provides for application under Section 28A of the Act, 1894 to be moved by the similarly situated persons whose land was acquired by the same notification to claim parity with the award passed under Section 18 of the Act, 1894 by the reference court within a period of three months from the date of such award by the reference court and such application under Section 28A of the Act, 1894, cannot be filed claiming compensation which was awarded in the subsequent stages in the First Appeal under Section 54 of the Act, 1894 or the appeal preferred before the Supreme Court.
9. In this regard, learned Chief Standing Counsel has relied upon the judgement of Division Bench of this Court dated 21.09.2017 in Writ C No. 38674 of 2017 (Satyapal Singh and 21 Other vs. State of U.P and 3 Others) wherein it has been categorically held that the application under Section 28A of the Act, 1894 seeking re-determination of the compensation can be filed only against the award of the reference court and not by the High Court in first appeal or the Supreme Court in further appeal. Learned Additional Chief Standing Counsel for the State has also relied upon the judgement of Apex Court in Jose Antonio Cruz Dos R. Rodriguese & Others vs. Land Acquisition Collector & Other : 1996 (6) SCC 746, wherein the Apex Court has held that the period of limitation for filing the application under Section 28A of the Act, 1894 would start to run from the date of the reference court’s order on the basis whereof the redetermination of compensation is sought. He has further relied upon the judgement of the Apex Court in Bhagti v. State of Haryana (1997) 4 SCC 473 and State of Orissa & Ors. vs. Chitrasen Bhoi, (2009) 17 SCC 74, wherein the Apex Court has held that the claim can be redetermined on the basis of award of the reference court and not by the judgement of the High Court. Thus, there is no illegality in the impugned order passed by respondent no.3, therefore, the application deserves to be dismissed.
10. Having heard the rival submissions made by learned counsel for the parties we have carefully gone through the record of the case. For determination of the controversy involved in the case it would be relevant to take note of provisions of Section 28A of the Act, 1894 and also the objects and reasons while incorporating the said provisions, which reads as under:
Section 28A
“28-A. Redetermination of the amount of compensation on the basis of the award of the Court.– (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the Court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this 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 made 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.”
Statement of Objects and Reasons
“(ix) 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 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 redetermination of compensation, once anyone of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act.”
11. Thus, by plain reading of the aforesaid objects and reasons and provisions of Section 28 A of the Act, 1894 it is apparent that the said provisions have been incorporated in the Act, 1894 to facilitate inarticulate and poor people, who could not challenge the award before the reference court under Section 18A of the Act, 1894 as compared to the other affluent land owners, which causes inequality in the payment of compensation for the same or similar quality of land to different individual parties. Therefore, the provisions of Section 28A of the Act, 1894 have been incorporated to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek re-determination of compensation once any of the land owners had obtained orders for payment of higher compensation from the reference court under Section 18 of the Act, 1894.
12. The object of the aforesaid incorporation of the aforesaid provision of Section 28A of the Act, 1894 is to remove the disparity in award of compensation to the land owners whose land has been acquired by the same notification between the two persons, one who had challenged the award by filing the reference and the persons who could not file the reference due to poverty or the less awareness. From the plain reading of Section 28A of the Act, 1894 it is apparent that the cause of action for filing the application under Section 28A of the Act, 1894 would arise on the date when an award under this part has been made by the court in excess of the amount awarded by the Collector under Section 11 of the Act, 1894 and the persons aggrieved is also covered by the same notification under Section 4 sub-section (1) of the Act, 1894 and such persons had not filed any application for reference under Section 18 of the Act. Such persons may file the application under Section 28A of the Act, 1894 within a period of three months from the date of award of the court.
13. In the earlier judgements in Babua Ram v. State of U.P., (1995) 2 SCC 689 and Union of India v. Karnail Singh, (1995) 2 SCC 728, the Two Judges’ Bench of the Apex Court has held that limitation for filing the application under Section 28A of the Act, 1894 would arise from the first award and not on the basis of the subsequent awards. However, the aforesaid view has been overruled by the Three Judges’ Bench of the Apex Court in Pradeep Kumari (supra) and it has been categorically held that limitation for filing the application under Section 28A of the Act, 1894 would start from the date of the award with which the parity is being claimed by the applicant. Thus, there can be number of awards under Section 18 of the Act, 1894 by the reference court. The application under Section 28A of the Act can be filed on the basis of the latest award within a period of three months or from the award with which the applicant is claiming parity. The aforesaid view taken by the Three Judges’ Bench of the Apex Court still holds the field and has never been overruled and has been reiterated by the Apex Cour in a recent judgement dated 10.12.2024 in Banwari and Other vs. Haryana State Industrial and Infrastructure Development Coporation Ltd. And Another (Civil Appeal No. 13348 of 2024 arising out of SLP © No. 12221 of 2022). The purpose of filing of the application under Section 28A of the Act, 1894 is that the said application can be allowed by the Collector relying upon the award so made by the Court, whereby the higher compensation has been determined. Thus, the Collector is not required to undergo the deep scrutiny about the entitlement of the compensation but has to simply rely upon such award made by the reference court. It is settled position of law that an appeal is nothing but continuation of the original suit or the proceedings as has been categorically held by the Division Bench of this Court in Pradeep Kumar (supra) that the Court, as referred under Section 28A of the Act, 1894 would necessarily include the First Appellate Court, namely the High Court, as the appeal under Section 54 of Act, 1894 is only continuation of the original proceedings. The observations of the Division Bench of this court in Pradeep Kumar (supra) are as under:
“35. At the very outset, it may be recorded that we are not holding that Section 28A of Act 1894 is attracted in the facts of the case. What we are recording is that from a reading of Section 28A of Act 1894 what flows is that even in absence of exemplars and other evidence, higher compensation can be allowed to a tenure holder only on the plea that the ‘Court’ has enhanced the compensation for others whose land was acquired under the same notification.
36. ‘Court’ as referred under Section 28-A of Act 1894, would necessarily include the first appellate court, namely, the High Court as the appeal under Section 54 of Act 1894 is only a continuation of original proceedings. ‘Court’ has been defined under Section 3 (d) of the Land Acquisition Act, 1894 as follows:-
“3(d) the expression “Court” means a principal Civil Court of original jurisdiction, unless the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform functions of the Court under this Act;”
37. In our opinion, therefore what follows is that the orders passed by the Court including the first appellate court i.e. High Court, in the matter of determination of rate of compensation in respect of land covered by a particular notification, would be a relevant consideration to be taken into account for determining as to what would be the fair and just compensation for similarly situated tenure holders, whose lands has been acquired under the same notifications or notifications issued thereafter qua the same village/area.”
14. In the judgement of Pradeep Kumari (supra), the Apex Court has also held as under:
“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.
9. A perusal of the provisions contained in sub-section (1) of Section 28-A of the Act would show that after an award is made under Part III whereby the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, a right accrues to a person interested in the other land covered by the same notification under sub-section (1) of Section 4 who is also aggrieved by the award of the Collector but who had not made an application to the Collector under Section 18, to move an application before the Collector for redetermination of the amount of compensation payable to him on the basis of the amount of compensation awarded by the court. This application for redetermination of the compensation is required to be made within three months from the date of the award of the court. The right to make the application under Section 28-A arises from the award of the court on the basis of which the person making the application is seeking redetermination of the compensation. There is nothing in sub-section (1) of Section 28-A to indicate that this right is confined in respect of the earliest award that is made by the court after the coming into force of Section 28-A. By construing the expression “where in an award under this Part” in sub-section (1) of Section 28-A to mean “where in the first award made by the court under this Part”, the word ‘first’, which is not found in sub-section (1) of Section 28-A, 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 [(1975) 2 SCC 526, 530] .)
10. 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 28-A 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 28-A to the first award that is made by the court after the coming into force of Section 28-A 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 28-A and the benefit of the said provision would be confined to redetermination of compensation on the basis of lesser amount of compensation awarded under the first award that is made after the coming into force of Section 28-A. There is nothing in the wordings of Section 28-A to indicate that the legislature intended to confer such a limited benefit under Section 28-A. 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 of Section 28-A and awards in those references are made by the court on different dates. A person who is entitled to apply under Section 28-A 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 28-A in a reference at the instance of a person belonging to another village, after 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 28-A 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 28-A. By holding that the award referred to in Section 28-A(1) is the first award made after the coming into force of Section 28-A, such persons would be deprived of the benefit extended by Section 28-A. Such a construction would thus result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enacting Section 28-A. 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(1) is thus construed, a person would be able to seek redetermination 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 redetermination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28-A for redetermination of compensation by an applicant.
11. Since the cause of action for moving the application for redetermination of compensation under Section 28-A arises from the award on the basis of which redetermination of compensation is sought, the principle that “once the limitation begins to run, it runs in its full course until its running is interdicted by an order of the court” can have no application because the limitation for moving the application under Section 28-A will begin to run only from the date of the award on the basis of which redetermination of compensation is sought.
12. We are, therefore, unable to agree with the view expressed in Babua Ram [(1995) 2 SCC 689 : JT (1994) 7 SC 377] and Karnail Singh [(1995) 2 SCC 728 : (1995) 1 Scale 21] that application under Section 28-A for redetermination of compensation can only be made on the basis of the first award that is made after the coming into force of Section 28-A. In our opinion, the benefit of redetermination of amount of compensation under Section 28-A can be availed of on the basis of any one of the awards that has been made by the court after the coming into force of Section 28-A provided the applicant seeking such benefit makes the application under Section 28-A within the prescribed period of three months from the making of the award on the basis of which redetermination is sought. The first contention urged by Shri Goswamy in support of the review petitions is, therefore, rejected.”
15. In the judgement of Satyapal Singh (supra), a Coordinate Bench of this Court has held that the application under Section 28A of the Act, 1894 cannot be filed for re-determination of the compensation on the basis of decree of the High Court in first appeal or by the Supreme Court in further appeal, is in the teeth of the earlier judgements of the Co-ordinate Bench of this Court in Pradeep Kumar (supra) and while holding so the Co-ordinate Bench of this Court in Satyapal Singh (supra) has not considered the judgement of Co-ordinate Bench in Pradeep Kumari (supra). Relevant observations of the Co-ordinate Bench of this Court in Satyapal Singh (supra), reads as under:
“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. ”
16. While concluding that the application under Section 28A of the Act, 1894 is not maintainable against the award passed in the first appeal by the High Court or further appeal by the Apex Court, the reliance has been placed by the Division Bench in Bhagti (supra), which has been followed in a subsequent judgement in State of Orissa & Ors. vs. Chitrasen Bhoi. wherein the following observations were made by the Apex Court:
“11. In Bhagti v. State of Haryana [(1997) 4 SCC 473] this Court held that a claimant can seek redetermination of compensation on the basis of the award of the Reference Court and not the judgment of the High Court and further held that 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) of the Act. The same view has been reiterated in Union of India v. Bant Ram [(1996) 4 SCC 537].”
17. In Ramsinghbhai (Ramsanghbhai) Jerambhai vs. State of Gujarat and Another : (2018) 16 SCC 445, the Apex Court has held that application under Section 28A of the Act, 1894 can only be filed within three months from any judgement of the reference court under Section 18 of the Act, 1894, arising from the same acquisition but not from the date of judgement of the High Court or the Apex Court.
18. In Writ Nos. 31447 of 1992, 31448 of 1992, 31449 of 1992 and 31450 of 1992, where after an award was made and the application under Section 28A of the Act 1894, were filed and were allowed despite the appeals had already been filed against the award, this Court vide common judgement and order dated 27.03.2003 had observed that once the first appeals are filed against the award of the reference court, then, the application filed under Section 28A of the Act, 1894 ought to have been kept pending till the disposal of the appeal and the said application could have been allowed on the basis of the final outcome of the first appeal.
19. In a recent judgement in Banwari (supra), where the identical facts were there as the reference under 18 was dismissed against which the land owners filed the regular first appeal, which was allowed and the amount of compensation was enhanced by the High Court of Punjab and Haryana, claiming parity with such enhanced amount by the High Court an application 28A of the Act, 1894 was filed by the land owners, which was allowed by the Collector against which writ petition was filed, which was allowed by the High Court, placing reliance upon the judgement of Ramsinghbhai (Ramsanghbhai) Jerambhai (supra), wherein the Apex Court has held that the application under Section 28A of the Act, 1894 can only be filed within a period of three months from any judgement of the reference court under Section 18 of the Act, 1894 arising from the same acquisition but not from the judgement of the High Court or the Apex Court against which the appeal was filed before the Apex Court wherein the Apex Court has allowed the appeal and set-aside the judgement of the High Court holding that Section 28-A of the Act, 1894 being a beneficent legislation enacted in order to give relief to the inarticulate and poor people, the principle of interpretation which would be required to be adopted is the one which advanced the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. While holding so the Apex Court has relied upon the Full Bench Judgement of Pradeep Kumari (supra), the following observations have been made by the Apex Court:-
“11. It can thus be seen that this Court has held that the object underlying the enactment of Section 28-A of the 1894 Act 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 1894 Act. It was held that this is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redetermination once any of them has obtained orders for payment of higher compensation from the Reference Court under Section 18 of the 1894 Act. It was held 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.
12. It has further been held by this Court that under Section 28-A of the 1894 Act, a right accrues to a person interested in the other land covered by the same notification under sub-section (1) of Section 4, where the Court allows a higher compensation to the similarly circumstanced persons who are covered by the said notification. It has been held that the application for redetermination of the compensation is required to be made within three months from the date of the award by the Court. It has been held that the right to make an application under Section 28-A of the 1894 Act arises from the award of the Court on the basis of which the person making the application is seeking redetermination of the compensation. The Court further held that there is nothing in sub-section (1) of Section 28-A of the 1894 Act to indicate that this right is confined in respect of the earliest award that is made by the Court after coming into force of Section 28-A of the 1894 Act. This Court held that Section 28-A of the 1894 Act if read in such a manner, it will be contrary to the principles of construction of a beneficial provision. It is further held that by judicial interpretation, the Court could not read the words which are not there and thereby restrict the scope of a provision.
13. In paragraph 10 of the said case, this Court had referred to various eventualities that may occur if such a restrictive interpretation is given to the provision of Section 28-A of the 1894 Act. The Court observed that it has to be seen from the point of view of inarticulate and poor people. The Court held that the object underlying Section 28-A of the 1894 Act would be better achieved by giving the expression “an award” in Section 28-A of the 1894 Act, its natural meaning as meaning the award that is made by the Court in Part III of the 1894 Act after coming into force of Section 28-A.
14. This Court has laid down the conditions which are required to be satisfied for invoking the provisions of Section 28-A(1) of the 1894 Act as follows:
(i) An award has been made by the Court under Part III of the Act after 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 move the application under Section 18;
(v) The application is moved within three months from the date of the award on the basis of which redetermination of amount of compensation is sought; and
(vi) Only one such application can be moved under Section 28-A for redetermination of the compensation by the applicant.
24. As already discussed hereinabove, the provisions of Section 28-A(1) of the 1894 Act have been elaborately considered by a three Judges Bench of this Court in the case of Pradeep Kumari and Others (supra). In the said case, it has been held that the Statement of Objects and Reasons of Section 28-A would reveal that the object underlying the enactment of the said provision is to remove inequality in the payment of compensation for same or similar quality of land. It has been held that the said provision is for giving benefit to 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. It has been held that this is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redetermination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. The same benefit would be available to the other landholders under Section 28-A. It has been held that Section 28-A being a beneficent legislation enacted in order to give relief to the inarticulate and poor people, the principle of interpretation which would be required to be adopted is the one 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.
25. We are, therefore, inclined to allow the appeal. The impugned judgment and order of the High Court dated 25th November 2021 is quashed and set aside and the order of the LAC dated 15th September 2020 is upheld.”
20. Thus, we are of the considered opinion that the provisions of Section 28 A of the Act, 1894 are the beneficent provisions and have been incorporated to remove the disparity in disbursement of compensation to the persons whose land has been acquired by the same notification and once the reference court has declined to enhance the compensation under Section 18 of the Act, 1894 and on an appeal filed under Section 54 of the Act, 1894 if compensation is enhanced by the High Court, the other similarly situated persons will have right to file application under Section 28A of the Act, 1894 within limitation of three months from the date of order passed in appeal. Any other view would frustrate the enactment of Section 28A of the Act, 1894.
21. The view expressed in Chitrasen Bhoi (supra), Satyapal Singh (supra), Ramsinghbhai (Ramsanghbhai) Jerambhai (supra), are not applicable in the instant case as those judgements are based on presupposed enhancement by a reference court under Section 18 of the Act, 1894. However, in the instant case there was no enhancement by the reference Court and the enhancement of compensation was first time made by this court in first appeal. Therefore, the aforesaid judgement would not be applicable in the instant case and if the view taken in the aforesaid judgement is applied, then the same would frustrate the very object of Section 28A of the Act, 1894.
22. In the instant case, the application under Section 28A of the Act, 1894 was filed by the petitioners claiming parity and redetermination of compensation on the basis of the judgement and order passed by this Court in First Appeal No. 458 of 1982. Undoubtedly, the application under Section 28A of the Act, 1894 was filed by the petitioners within the limitation period of three months from the date of aforesaid order in appeal. Thus, the application was maintainable and rejection of the application by the Collector by the impugned order is uncalled for. The case in hand is fully covered by the judgement in Banwari (supra) wherein the Apex Court in identical facts has allowed the appeal of the land owners and held that once the enhancement has been made by the High Court after rejection of the reference under Section 18 of the Act, 1894, therefore, the land owners who were not party to the reference or the First Appeal can claim parity under Section 28A of the Act, 1894. Therefore, the impugned order dated 29.07.2022, which was allegedly served on the petitioner on 05.07.2024 is hereby quashed and the respondent no.3- Additional District Magistrate (Land Acquisition), Noida District Gautam, Buddh Nagar, is directed to consider the application of the petitioners for redetermination of compensation under Section 28A of the Act, 1894 and pass a fresh order treating the same as maintainable and determine the compensation in terms of the order dated 18.04.2022 passed by this Court in First Appeal No. 458 of 1982.
23. With the aforesaid observations, the instant petition is allowed.
Order Date :- 07.01.2025
Shubham Arya
(Anish Kumar Gupta, J.) (Manoj Kumar Gupta,J.)
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