1

A.F.R.

Court No.39

Case :- WRIT - C No. - 5899 of 2017

Petitioner :- Dheer Singh & 3 Others

Respondent :- State Of U.P. & 3 Others

Counsel for Petitioner :- Rakesh Pande,Shailesh Upadhyay

Counsel for Respondent :- C.S.C.,Shivam Yadav

Hon'ble Dilip Gupta, J.

Hon'ble Siddhartha Varma, J.

The issue that arises for consideration in this petition is as to

whether a person interested, who has not accepted the award made under

Section 11 of the Land Acquisition Act, 1894

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, and has filed an

application before the Collector under Section 18 of the Act, can file an

application under Section 28-A of the Act for redetermination of the

amount of compensation.

The Special Land Acquisition Officer made the award under

Section 11 of the Act on 5 July 1978. Mokham, predecessor in interest of

petitioner no.1-Dheer Singh had filed an application under Section 18 of

the Act and the Reference Court by award dated 30 August 1986 in LAR

No.31 of 1979 partly enhanced the amount of compensation. First Appeal

(Defective) No.19 of 1987 was filed by Mokham for enhancement of the

amount of compensation. It was dismissed under Order VII, Rule 11 of

the Code of Civil Procedure, 1908 on 22 October 2002 for the reason that

the deficiency in Court fees had not been made good. The restoration

application along with delay condonation and substitution applications

1the Act

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2

were also rejected on 22 May 2013. The Special Leave to Appeal to assail

the said order dated 22 May 2013 was also dismissed by the Supreme

Court on 9 September 2013. The application for recalling the orders dated

22 October 2002 and 22 May 2013 has also been rejected by the High

Court on 22 May 2014.

However, certain tenure holders, whose lands had been acquired by

the same notification issued under Section 4(1) of the Act, had also filed

First Appeals against the award made by the Reference Court. These First

Appeals were decided on 3 December 2014 and the amount of

compensation was increased.

An application under Section 28-A of the Act was then filed by the

petitioners on 30 April 2016 which is said to have been received in the

office on 3 May 2016. The petitioners claimed the same amount of

compensation as was awarded to the tenure holders who had filed First

Appeals in which the High Court had enhanced the compensation by

judgment dated 3 December 2014. This application filed by the

petitioners has been rejected by the Additional District Magistrate (Land

Acquisition), Greater Noida

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by order dated 23 June 2016 holding that the

application itself was not maintainable since the father of petitioner no.1

Mokham had earlier filed an application (LAR No.31/1979 Mokham Vs.

State of U.P.) under Section 18 of the Act which had been decided on 30

August 1986 and the amount of compensation had been partly enhanced.

Sri Rakesh Pande, learned counsel for the petitioners has submitted

that the view taken by the ADM that the application filed by the

2ADM

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petitioners under Section 28-A of the Act was not maintainable because

the remedy under Section 18 of the Act had earlier been invoked by the

predecessor in interest of the petitioners by filing a reference application

is not correct. It is his submission that Section 28-A of the Act does not

contemplate that if a reference application is filed under Section 18 of the

Act, a tenure holder cannot invoke the provisions of Section 28-A of the

Act. The submission of learned counsel is that since the First Appeal filed

by the predecessor in interest of the petitioners had not been decided on

merits but had been dismissed under Order VII, Rule 11 of the CPC for

the reason that the deficiency in Court fees had not been made good, the

application filed under Section 28-A of the Act would be maintainable.

Learned Standing Counsel appearing for respondents no.1 to 3 and

Sri Shivam Yadav, learned counsel appearing for New Okhla Industrial

Development Authority have, however, submitted that the ADM

committed no illegality in rejecting the application filed by the petitioners

as the remedy available under Section 18 of the Act had earlier been

invoked by the predecessor in interest of the petitioners and the reference

had been decided on merits.

We have considered the submissions advanced by learned counsel

for the parties.

To appreciate the contentions of learned counsel, it would be

appropriate to refer to some of the provisions of the Act. The award is

made by the Collector under Section 11 of the Act. Section 18 provides

that any person interested who has not accepted the award may, by

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written application to the Collector, require that the matter may be

referred by the Collector for the determination of the amount of

compensation by the Court. It is as follows:

“18 Reference to Court:

(1) Any person interested who has not accepted the

award may, by written application to the Collector,

require that the matter be referred by the Collector for

the determination of the Court, whether his objection

be to the measurement of the land, the amount of the

compensation, the persons to whom it is payable, or

the apportionment of the compensation among the

persons interested.

(2) The application shall state the grounds on which

objection to the award is taken: Provided that every

such application shall be made,

(a) if the person making it was present or

represented before the Collector at the time

when he made his award, within six weeks from

the date of the Collector's award;

(b) in other cases, within six weeks of the

receipt of the notice from the Collector under

section 12, sub-section (2), or within six months

from the date of the Collector's award,

whichever period shall first expire.”

Section 28-A of the Act deals with re-determination of the amount

of compensation on the basis of the award of the Reference Court and is

reproduced :

“Re-determination of the amount of compensation

on the basis of the award of the Court. - (1) Where

in an award under this Part, the Court allows to the

applicant any amount of compensation in excess of the

amount awarded by the Collector under Section 11, the

persons interested in all the other land covered by the

same notification under Section 4, sub-section (1) and

who are also aggrieved by the award of the Collector

may, notwithstanding that they had not made an

application to the Collector under section 18, by

written application to the Collector within three

months from the date of the award of the Court require

that the amount of compensation payable to them may

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be re-determined on the basis of the amount of

compensation awarded by the Court:

Provided that in computing the period of three months

within which an application to the Collector shall be

made under this sub-section, the day on which the

award was pronounced and the time requisite for

obtaining a copy of the award shall be excluded.

(2)The Collector shall, on receipt of an application

under sub-section (1), conduct an inquiry after giving

notice to all the persons interested and giving them a

reasonable opportunity of being heard, and make an

award determining the amount of compensation

payable to the applicants.

(3)Any person who has not accepted the award

under sub-section (2) may, by written application to

the Collector, require that the matter be referred by the

Collector for the determination of the Court and the

provisions of Sections 18 to 28 shall, so far as may be,

apply to such reference as they apply to a reference

under Section 18.”

The issues that arise for consideration in this petition are :

(i) whether the petitioners could have filed an application under

Section 28-A of the Act, if an application under Section 18 of the

Act had been filed by the predecessor in interest of the petitioners

and that had been decided on merits; and

(ii) whether the award referred to in Section 28-A of the Act is the

award of the High Court in the First Appeals or the Supreme Court

in further Appeal or the award of the Reference Court under

Section 18 of the Act.

FIRST ISSUE:

It is not in dispute that being not satisfied with the award made by

the Special Land Acquisition Officer under Section 11 of the Act, the

predecessor in interest of the petitioners had filed a reference application

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under Section 18 of the Act which was registered as LAR No.31 of 1979

and the amount of compensation was partly enhanced by the Reference

Court on 30 August 1986. It has, therefore, to be seen whether an

application under Section 28-A of the Act could still be filed by the

petitioners for re-determination of the amount of compensation.

Section 18 of the Act clearly provides for a remedy to any person

interested who has not accepted the award made by the Special Land

Acquisition Officer under Section 11 of the Act to require the matter to

be referred by the Collector for determination of the compensation by the

Court. Under Section 20, the Court will proceed to determine the

objections. Section 25 provides that the amount of compensation awarded

by the Court shall not be less than the amount awarded by the Collector

under Section 11 of the Act. Section 26 of the Act provides for the form

of award and is as follows:

“26 Form of awards.

(1) Every award under this Part shall be in writing

signed by the Judge, and shall specify the amounts

awarded under clause first of sub-section (1) of

section 23, and also the amounts (if any) respectively

awarded under each of the other clauses of the same

sub-section, together with the grounds of awarding

each of the said amounts.

(2) Every such award shall be deemed to be a decree

and the statement of the grounds of every such award

a judgment within the meaning of section 2, clause (2)

and section 2, clause (9), respectively, of the Code of

Civil Procedure, 1908 (5 of 1908)”

Section 27 deals with costs, while Section 28 deals with interest on

excess compensation determined by the Court.

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Section 28-A of the Act purports to provide a remedy to any person

interested who has not preferred an application to the Collector under

Section 18, if at the instance of other persons covered by the same

notification issued under Section 4(1) of the Act, the Reference Court

enhances the compensation. It provides that any such person interested

may, by written application to the Collector, within three months from the

date of award of the Court, require that the amount of compensation

payable to them may be redetermined.

The objects and reasons for introduction of Section 28-A by Act

No.68 of 1984 are as follows:

"Considering that the right of reference to the civil court

under section 18 of the Act is not usually taken advantage of

by inarticulate and poor people and is usually exercised only

by the comparatively affluent landowners and that this

causes considerable inequality in the payment of

compensation for the same or similar quality of land to

different interested parties, it is proposed to provide an

opportunity to all aggrieved parties whose land is covered

under the same notification to seek re-determination of

compensation, once any one of them has obtained orders for

payment of higher compensation from the reference court

under section 18 of the Act."

Thus, it is clear from a bare perusal of Section 28-A of the Act and

the objects and reasons for introduction of Section 28-A of the Act that a

person who has availed the remedy provided for under Section 18 of the

Act cannot file an application under Section 28-A of the Act.

It also needs to be noted that under sub-section (3) of Section 28-A

of the Act, any person who has not accepted the award made by the

Collector under Section 28-A(2) of the Act may, by a written application

to the Collector, require that the matter may be referred by the Collector

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for the determination of the Court and the provisions of Sections 18 to 28

shall, so far as may be, apply to such references as they apply to a

reference under Section 18. The land owners cannot have two

opportunities to file references. Thus also, only a person who has not

availed of the remedy under Section 18 of the Act can file an application

under Section 28-A of the Act.

The Supreme Court has time and again observed that a person

interested who has not filed an application under Section 18 of the Act

can only file an application under Section 28-A of the Act.

In Scheduled Castes Co-operative Land Owning Society

Limited, Bhatinda Vs. Union of India & Ors.

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the Supreme Court held

that Section 28-A of the Act applies only to those claimants who had

failed to seek a reference under Section 18 of the Act and would,

therefore, not apply to a case where the claimant had sought and secured

a reference under Section 18 of the Act. The observations are :

“4. .................. It is obvious on a plain reading of

Sub-section (i) of Section 28A that it applies only to

those claimants who had failed to seek a reference

under Section 18 of the Act. The redetermination has

to be done by the Collector on the basis of the

compensation awarded by the Court in the reference

under Section 18 of the Act and an application in that

behalf has to be made to the Collector within 30 days

from the date of the award. Thus only those claimant

who had failed to apply for a reference under

Section 18 of the Act are conferred this right to

apply to the Collector for redetermination and not

all those like the petitioners who had not only

sought a reference under Section 18 but had also

filed an appeal in the High Court against the

award made by the reference court. The newly

added Section 28A, therefore, clearly does not apply

3(1991) 1 SCC 174

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to a case where the claimant has sought and secured a

reference under Section 18 and has even preferred an

appeal to the High Court. This view, which we take on

a plain reading of Section 28A, finds support from the

judgment of this Court in Mewa Ram v. State of

Haryana.”

(emphasis supplied)

In Union of India & Anr. Vs. Pradeep Kumari and Ors.

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the

Supreme Court, after making reference to the Statement of Objects and

Reasons underlying the enactment of Section 28-A of the Act, observed

that it intended to remove inequality and give relief to persons who were

not able to take advantage of right of reference to the Civil Court under

Section 18 of the Act and the observations are :

“8. We may, at the outset, state that having regard

to the Statement of Objects and Reasons, referred

to earlier, the object underlying the enactment of

Section 28-A is to remove inequality in the

payment of compensation for same or similar

quality of land arising on account of inarticulate

and poor people not being able to take advantage

of the right of reference to the civil court under

Section 18 of the Act . This is sought to be achieved

by providing an opportunity to all aggrieved parties

whose land is covered by the same notification to seek

re-determination once any of them has obtained orders

for payment of higher compensation from the

reference court under Section 18 of the Act. Section

28-A is, therefore, in the nature of a beneficent

provision intended to remove inequality and to give

relief to the inarticulate and poor people who are

not able to take advantage of right of reference to

the civil court under Section 18 of the Act . In

relation to beneficent legislation, the law is well-

settled that while construing the provisions of such a

legislation the court should adopt a construction which

advances the policy of the legislation to extend the

benefit rather than a construction which has the effect

of curtailing the benefit conferred by it. The

provisions of Section 28-A should, therefore, be

4(1995) 2 SCC 736

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construed keeping in view the object underlying the

said provision.”

(emphasis supplied)

It, however, disagreed with the earlier view taken by the Supreme

Court in Babua Ram and Ors. Vs. State of U.P. and Anr.

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that the

period of limitation for making an application under Section 28-A of the

Act has to be computed from the date of making of the first award after

coming into force of Section 28-A of the Act and the observations are as

follows::

“10. ................ The object underlying Section 28-A

would be better achieved by giving the expression "an

award" in Section 28-A its natural meaning as

meaning the award that is made by the court in Part III

of the Act after the coming into force of Section 28-A.

If the said expression in Section 28-A(l) is thus

construed, a person would be able to seek re-

determination of the amount of compensation payable

to him provided the following conditions are

satisfied :-

(i) An award has been made by the court

under Part III after the coming into force of

Section 28-A ;

(ii) By the said award the amount of

compensation in excess of the amount awarded

by the Collector under Section 11 has been

allowed to the applicant in that reference;

(iii) The person moving the application under

Section 28-A is interested in other land covered

by the same notification under Section 4(1) to

which the said award relates;

(iv) The person moving the application did

not make an application to the Collector

under Section 18 ;

(v) The application is moved within three

months from the date of the award on the basis

of which the re-determination of amount of

compensation is sought; and

5(1995) 2 SCC 689

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(vi) Only one application can be moved under

Section 28-A for re- determination of

compensation by an applicant.”

(emphasis supplied)

In Bhagti (Smt.) (deceased) through her Lrs. Jagdish Ram

Sharma Vs. State of Haryana

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, the Supreme Court also observed that an

application can be filed under Section 28-A only if a reference had not

been made under Section 18 of the Act:

“6. Thus only those claimants who had failed to

apply for a reference under Section 18 of the Act

are conferred with the right to apply for

redetermination under Section 28-A(1) . But all

those who had not only sought a reference under

Section 18 but had also filed an appeal in the High

Court against the award made by the Reference Court

are not entitled to avail of the remedy under Section

28-A. …..................”

(emphasis supplied)

The judgments of the Supreme Court in Scheduled Castes Co-

operative Land Owning Society Limited and Babua Ram were

followed by the Supreme Court in Desh Raj (deceased) through LRs &

Anr. Vs. Union of India & Anr.

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and it was observed :

“12. …...........Moreover, benefit of Section 28-A is

available only to the parties who had not sought

reference under Section 18 of the Act for

enhancement of the compensation. This provision is

not available to persons who seek for reference under

Section 18 of the Act for enhancement of the

compensation and do not challenge judgment of the

Reference Court or the judgment of the High Court

thereafter. …..........”

(emphasis supplied)

6(1997) 4 SCC 473

7(2004) 7 SCC 753

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In State of Orissa and Ors. Vs. Chitrasen Bhoi

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, the Supreme

Court again examined whether a person who had invoked the remedy

available under Section 18 of the Act could file an application under

Section 28-A of the Act and relying upon the earlier decisions observed

that Section 28-A of the Act seeks to confer benefit on those persons who

had not sought a reference under Section 18 of the Act.

It is, therefore, not possible to accept the contention of learned

counsel for the petitioners that an application under Section 28-A of the

Act would be maintainable even at the behest of a person who had earlier

invoked the provisions of Section 18 of the Act.

SECOND ISSUE:

This issue arises for consideration because a perusal of the

application filed by the petitioners under Section 28-A of the Act reveals

that it had been filed claiming redetermination of the compensation on the

basis of the judgment rendered by the High Court in the First Appeals on

3 December 2014 and not on the basis of the award made by the

Reference Court. Section 28-A of the Act provides that where in an

award under Part-III (containing Sections 18 to 28-A of the Act), the

Court allows to the applicant any amount of compensation in excess of

the amount awarded by the Collector under Section 11, the persons

interested in all the land covered by the same notification under Section

4(1) of the Act and who are also aggrieved by the award of the Collector

may, by written application to the Collector within three months from the

8(2009) 9 SCC 74

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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 by treating the award as

that made by the High Court in the First Appeals or by the Supreme

Court. This view finds support from the decision of the Supreme Court in

Babua Ram. 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

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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

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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.”

Thus also, the application filed under Section 28-A of the Act was

not maintainable.

There is, therefore, no illegality in the order passed by the ADM in

rejecting the application filed by the petitioners under Section 28-A of the

Act as being not maintainable.

The writ petition is, accordingly, dismissed.

Date:20.02.2017

SK

(Siddhartha Varma, J.) (Dilip Gupta, J.)