HIGH COURT OF JUDICATURE AT ALLAHABAD

***

FIRST APPEAL No. 305 of 2021

Decided on June 03, 2022

U.P. Avas Evam Vikas Parishad ….. Petitioner

Through : Mr. Vivek Saran, Advocate

v/s

Mohd. Yaqoob and others ….. Respondents

Through : Mr. A.K. Roy, Additional Chief Standing Counsel for

respondent No.2

CORAM : HON’BLE RAJESH BINDAL, CHIEF JUSTICE

HON’BLE J.J. MUNIR, JUDGE

ORDER

RAJESH BINDAL, C.J.

1. The matter has been placed before this Bench on a reference

made by learned Single Judge for consideration of the following issue, as the

order passed by an earlier Division Bench in Writ-C No. 2015 of 2021 was

apparently found to be per incuriam:

“Whether the Collector, exercising powers under Section

28A of the Land Acquisition Act, 1894 is a ‘Court’ and

his order made on an application for re-determination of

compensation, an award of the Court for the purpose of

an appeal under Section 54 of the Act of 1894?”

2. The order dated August 2, 2021 passed by learned Single Judge,

while referring the aforesaid question of law for consideration by larger

Bench containing facts, in brief, is quoted below:

“This appeal has been preferred from an order of the Additional

District Magistrate (Land Acquisition/Awas), Kanpur Nagar

Chief Justice's Court

Serial No.307

2 First Appeal No. 305 of 2021

dated 23.01.2001 passed in Case No. 15 of 2021. The said order

has been passed in exercise of powers under Section 28A of the

Land Acquisition Act, 1894 (hereinafter referred to as 'the Act

of 1894'). An application was made to the Collector for

determination of compensation payable to the claimant-

respondent-landholders on ground that the Additional District

Judge- IVth, Kanpur Nagar vide judgement and award dated

27.01.2021 passed in Reference No. 59/70/1994 relating to the

same acquisition proceedings and covered by the same

notification under Section 4 of the Act of 1894/28 of the Avas

Vikas Parishad Adhiniyam had granted a higher compensation

then that awarded by the Collector.

This order of the Additional Collector is impugned in the

present appeal under Section 54 of the Land Acquisition Act. At

the outset, this Court inquired of Mr. Vivek Saran as to how a

first appeal is maintainable from an order of the Collector made

under Section 28A of the Act of 1894. He invited the attention

of the Court to an order of a Division Bench of this Court in

Writ-C No. 2015 of 2021, where their Lordships of the Division

Bench, after referring to the provisions of Section 28A of the

Act of 1894 and Section 54 held that the writ petitioner has an

efficacious remedy available under Section 54 of the Act. A

perusal of the aforesaid order, which summarily parts with the

writ petition, indicates that there, their Lordships were of

opinion that against an order under Section 28A passed by the

Collector, redetermining compensation on the basis of an award

made by the Court in a reference under Section 18 covered by

the same notification under Section 4(1) of the Act of 1894,

would be appealable to this Court under Section 54.

A reading of Section 54 of the Act of 1894 clearly shows that

the provision opens with a non obstante clause and says that

3 First Appeal No. 305 of 2021

appeal shall lie in any proceedings under this Act to the High

Court from the award or from any part of the award of the

Court. This being so, the provisions of Section 54 are explicit

that what is appealable to this Court is an award or a part of the

award of the "Court". The "Court" has been defined under

Section 3(d) of the Act of 1894 as follows:

"3. Definitions.– In this Act, unless there is something

repugnant in the subject or context,-

(a)X X X

(b) XX X

(c) XX X

(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;"

Clearly, to the understanding of this Court, the definition of

"Court" under the Act of 1894 means a principal Civil Court of

original jurisdiction, unless the appropriate Government has

appointed a special Judicial Officer within any specified local

limits to perform the functions of the Court. The Collector,

exercising powers to re-determine the compensation payable on

the basis of an award of the Court passed in relation to the same

acquisition covered by the same notification under Section 4(1)

is not the "Court", envisaged under Section 54 of the Act of

1894.

In view of the said reasoning, I am of opinion that the view of

the law taken by their Lordships of the Division Bench appears

to be contrary to the statute. Still, this Court does not wish to

4 First Appeal No. 305 of 2021

express a final opinion in the matter holding the decision of

their Lordships of the Division Bench per curiam. In the opinion

of this Court, this matter is required to be considered by a larger

Bench. The following question is, accordingly, referred for

consideration by a larger Bench:-

"Whether the Collector, exercising powers under Section

28A of the Land Acquisition Act, 1894 is a 'Court' and his

order made on an application for re-determination of

compensation, an award of the Court for the purpose of

an appeal under Section 54 of the Act of 1894?"

Let papers of this case be laid for orders before His Lordship

the Hon'ble the Acting Chief Justice by the Registry for the

purpose of constitution of a larger Bench to consider the

question.”

3. As the earlier order dated January 27, 2021 passed by a

Division Bench of this Court opining that against an award passed by the

Collector in terms of Section 28-A of the Land Acquisition Act, 1894 (for

short, ‘the Act’) is appealable under Section 54 of the Act, we deem it

appropriate to reproduce the same as well, as the same is quite brief and the

opinion was expressed without examining the issue in detail:

“The challenge in this petition is to an order dated 19.02.2020

passed by Additional Collector (Land Acquisition) / (Housing),

Kanpur Nagar. The order as apparent therefrom is passed in

exercise of Section 28-A of the Land Acquisition Act, 1894

which mandates:

"[28A. Re-determination of the amount of compensation

on the basis of the award of the Court. - (1) where in an

award under this part, the court allows to the applicant

any amount of compensation in excess of the amount

awarded by the collector under section 11, the persons

5 First Appeal No. 305 of 2021

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, required 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.]”

In our considered opinion, the petitioner has remedy under

Section 54 of the Act of 1894 which provides for:

6 First Appeal No. 305 of 2021

"[54. Appeals in proceedings before Court. - Subject to

the provisions of the Code of Civil Procedure, 1908 (5 of

1908), applicable to appeals from original decrees, and

notwithstanding anything to the contrary in any

enactment for the time being in force, an appeal shall

only lie in any proceedings under this Act to the High

Court from the award, or from any part of the award, of

the Court and from any decree of the High Court passed

on such appeal as aforesaid an appeal shall lie to 4[the

Supreme Court] subject to the provisions contained in

section 110 of the Code of Civil Procedure, 1908, and in

Order XLV thereof.]"

Since the petitioner has efficacious statutory remedy available

under Section 54 of the Act, we are not inclined to interfere in

the petition against the order. Instead, we relegate the petitioner

to avail the remedy available under the Act of 1894.

Petition stands disposed of finally.”

4. Learned counsel for the appellant submitted that in view of the

opinion expressed by the Division Bench of this Court in the aforesaid

judgment dated January 27, 2021 in Writ-C No. 2015 of 2021 (U.P. Avas

Evam Vikas Parishad Vs. State of U.P. and others), the appellant has a right

to file an appeal challenging the award of the Collector as passed under

Section 28-A of the Act, whereas the stand taken by learned counsel for the

respondent is that no appeal would be maintainable as the same can be filed

only against any award or part of the award of the Court and the Collector

cannot be termed as ‘Court’.

5. Heard learned counsel for the parties and perused the paper

book.

6. The relevant provisions of the Act are extracted below:

7 First Appeal No. 305 of 2021

"Section 3(d)

3. Definitions.- In this Act, unless there is something repugnant

in the subject or context,-

(a) to (c) xx xx xx

(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;

Section 28A

Re-determination of the amount of compensation on the basis of

the award of the Court. – (1) Where in an award under this Part,

the Court allows to the applicant any amount of compensation

in excess of the amount awarded by the Collector under Section

11, the persons interested in all the other land covered by the

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

also aggrieved by the award of the Collector may,

notwithstanding that they had not made an application to the

Collector under Section 18, by written application to the

Collector within three months from the date of the award of the

Court require that the amount of compensation payable to them

may be re-determined on the basis of the amount of

compensation awarded by the Court:

Provided that in 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.

8 First Appeal No. 305 of 2021

(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.

Section 54

Appeals in proceedings before Court.– Subject to the provisions

of the Code of Civil Procedure, 1908 (5 of 1908), applicable to

appeals from original decrees, and notwithstanding anything to

the contrary in any enactment for the time being in force, an

appeal shall only lie in any proceedings under this Act to the

High Court from the award, or from any part of the award, of

the Court and from any decree of the High Court passed on such

appeal as aforesaid an appeal shall lie to the Supreme Court

subject to the provisions contained in Section 110 of the Code

of Civil Procedure, 1908, and in Order XLIV thereof."

7. Section 28A was inserted in the Act (Act 68 of 1984) with effect

from September 24, 1984. The object is to grant parity in compensation even

to those landowners who, on account of various reasons such as poverty,

ignorance or other disability, could not file objections and seek reference to

the court for re-determination of compensation under Section 18 of the Act.

The benefit of Section 28A of the Act is available only to a landowner who

had not earlier sought reference under Section 18 of the Act. As per scheme

of Section 28A of the Act, a person who is interested in the land covered by

9 First Appeal No. 305 of 2021

the same notification and had not filed application under Section 18 of the

Act earlier, may, by written application to the Collector within 3 months

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

compensation payable to him/them may be re-determined on the basis of the

amount of compensation awarded by the court to the landowners who had

filed objections under Section 18 of the Act. On receipt of the application

under sub-section (1) of Section 28A of the Act, the Collector is required to

conduct an enquiry after giving notice to all the persons interested and

giving them reasonable opportunity of being heard, and make an award

determining the amount of compensation payable to the applicant(s). Sub-

section (3) of Section 28A of the Act provides that any person, who is not

satisfied with the award passed under sub-section (2) may by written

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

Collector to the Court for determination of compensation. The provisions of

Sections 18 to 28 of the Act are applicable.

8. The scheme of Section 28A of the Act was considered by

Hon'ble the Supreme Court in Babua Ram and others Vs. State of U.P. and

another, (1995) 2 SCC 689, wherein it was opined that Section 28A of the

1894 is a complete Code in itself providing for remedy to the persons who

could not earlier file application under Section 18 of the Act. Relevant

paragraph thereof is extracted below:

"14. … A bare reading of sub-section (1) of Section 28-A

would indicate that wherein an award under this Part, (Part 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 the

other land 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

10 First Appeal No. 305 of 2021

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 been made in writing to the Collector under

sub-section (1) of Section 28-A. 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 28-A 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 on a par with his neighbour to claim parity for

compensation to the land similarly situated as the land covered

by the court award." (Emphasis supplied)

11 First Appeal No. 305 of 2021

9. In the aforesaid judgment, it was further opined that the

Collector while considering the application under Section 28A of the Act

should wait for the final verdict either of the High Court concerned or

Hon'ble the Supreme Court before making an award, in case the issue has

still not attained finality.

10. The issue was further considered by Hon'ble the Supreme Court

in V. Ramakrishna Rao Vs. The Singareni Collieries Company Ltd. and

another, 2011 (1) RCR (Civil) 149, wherein it was held that the amendment

carried out in the Act after 90 years of its enactment, while adding Section

28A of the Act was with an object to provide some solace to the landowners,

whose land had been acquired, but on account of various reasons including

poverty, ignorance and other disabilities could not file objections under

Section 18 of the Act for disputing the award of the Collector and claiming

higher compensation. They have been given opportunity to seek

compensation at par with other landowners, whose land was acquired vide

same notification. However, the benefit of Section 28A of the Act is

available only to a landowner who had not been able to file objections to the

Collector under Section 18 of the Act. It was further opined that remedy

against award under Section 28A(2) of the Act is to file application under

Section 28A(3) of the Act seeking reference of the dispute to the Court.

Reliance was placed upon an earlier judgment of Hon'ble the Supreme Court

in Union of India and another Vs. Pradeep Kumari and others, (1995) 2 SCC

736. Relevant paragraphs 9 and 11 of judgment of Ramakrishna Rao's case

(supra) are extracted below:

"9. The above reproduced provision represents the

Legislature's determination to ensure that the goal of equality

enshrined in the Preamble of the Constitution and Articles 38,

39 and 46 thereof is translated into reality, at least in the matter

of payment of compensation to those who are deprived of their

land for the benefit of the State, its instrumentalities/agencies

and even private persons. Section 28A also represents statutory

12 First Appeal No. 305 of 2021

embodiment of the doctrine of equality in matters relating to the

acquisition of land. The Act which was enacted in 1894 and was

amended after 90 years has the potential of depriving a large

segment of the society i.e. the 'agriculturist' of their only source

of livelihood. The scheme of Section 28A provide some solace

to this segment of the society by ensuring that such of the land

owners whose land was acquired under the same notification

but who could not, on account of poverty, ignorance and other

disabilities join others in seeking reference under Section 18 get

an opportunity to claim compensation at par with others. This

section is aimed at removing inequality in the payment of

compensation in lieu of acquisition of land under the same

notification. To put it differently, this section gives a chance to

the land owner, who may not have applied under Section 18 for

determination of market value by the Court to seek re-

determination of the amount of compensation, if any other

similarly situated land owner succeeds in persuading the

Reference Court to fix higher market value of the acquired land.

Therefore, Section 28A has to be interpreted in a manner which

would advance the policy of legislation to give an opportunity

to the land owner who may have, due to variety of reasons not

been able to move the Collector for making reference under

Section 18 of the Act to get higher compensation if market

value is revised by the Reference Court at the instance of other

land owners, whose land is acquired under the same

notification. Of course, this opportunity can be availed by filing

application within the prescribed period. In Union of India v.

Pradeep Kumari (supra), a three-Judge Bench of this Court held

that Section 28A is in the nature of a beneficent provision

intended to remove inequality and to give relief to the

inarticulate and poor landowners, who are not able to take

13 First Appeal No. 305 of 2021

advantage of the right of reference to the Civil Court under

Section 18 of the Act and such a provision should be interpreted

in a manner which advances the policy of legislation.

xx xx xx

11. If sub-section (3) of Section 28A is interpreted

keeping in view the object sought to be achieved by enacting

the provision for removing inequality in the matter of payment

of compensation, it must be held that a person who is not

satisfied with an award made under Section 28A(2) can make

an application to the Collector under Section 28A(3) for making

a reference to the Court as defined in Section 3(d) of the Act

and this right cannot be frustrated merely because as a result of

re- determination made under Section 28A(2) read with Section

28A(1) the applicant becomes entitled to receive compensation

at par with other land owners. There is nothing in the plain

language of Section 28A(3) from which it can be inferred that a

person who has not accepted the award made under Section

28A(2) is precluded from making an application to the Collector

with the request to refer the matter to the Court. Of course, the

Court to which reference is made under Section 28A (3) will

have to bear in mind that a person who has not sought reference

under Section 18 cannot get compensation higher than the one

payable to those who had sought reference under that Section."

(Emphasis supplied)

11. In the aforesaid judgment, it was also opined that the object of

Section 28A of the Act is not that a person, who had not sought reference

initially under Section 18 of the Act, can get compensation higher than one

payable to those who had sought reference by filing application under

Section 18 of the Act.

14 First Appeal No. 305 of 2021

12. Section 54 of the Act, which provides for appeal, inter-alia, lays

down that an appeal shall lie in any proceedings under the Act to the High

Court against an award or any part thereof, of the Court. This clearly means

that appeal lies to this Court only against the award or a part thereof passed

by the Court. The term "Court" has been defined in Section 3(d) of the Act to

mean Principal Civil Court of original jurisdiction, unless the Government

has appointed a special judicial officer within any specified local limits to

perform functions of the Court under the Act. It is not the case set up by

either of the parties that the Collector has been appointed by the Government

as a special Judicial Officer to perform functions of the Court under the Act.

It has been opined by Hon'ble the Supreme Court in Officer on Special Duty

(Land Acquisition) and another Vs. Shah Manilal Chandulal and others,

(1996) 9 SCC 414 and State of Karnataka Vs. Laxuman, (2005) 8 SCC 709

that Collector being not a Court, provisions of Limitation Act do not apply to

the proceedings before him. The same view was followed by the Punjab and

Haryana High Court in Smt. Nikko and others Vs. State of Haryana and

another, 2013(1) RCR (Civil) 90 and RFA No. 4643 of 2013 – Lajwanti and

others Vs. State of Punjab and another, decided on 18.9.2014.

13. The aforesaid provisions make it crystal clear that an appeal to

this court lies only against the award or a part of the award passed by the

court and not the Collector. In the present case, the beneficiary of the

acquisition has filed appeal impugning the award of the Collector passed

under Section 28A(2) of the Act, which is not appealable under Section 54

of the Act. In fact, the remedy against the same has been clearly provided in

Section 28A(3) of the Act.

14. The contention of learned counsel for the landowners that going

to the Reference Court would be an exercise in futility as the Collector had

already awarded the compensation on the basis of the award of the

Reference Court is merely to be noticed and rejected. Once a specific

procedure has been provided, the same deserved to be followed. Remedy of

appeal is a creation of statute, unless it is specifically provided that the

15 First Appeal No. 305 of 2021

order/award cannot be impugned before the Court. Reference can be made to

the judgments of Hon'ble the Supreme Court in Indira Nehru Gandhi (Smt.)

Vs. Raj Narain and another, (1975) 2 SCC 159 and Shiv Shakti Coop.

Housing Society, Nagpur Vs. M/s Swaraj Developers and others, AIR 2003

SC 2434.

15. In CR No. 4225 of 2014 – Dalbir Singh and another Vs. State of

Punjab and others, decided on 25.5.2015, the Punjab and Haryana High

Court opined that a revision against the award of the Collector under Section

28A of the Act is not maintainable.

FINDINGS

16. Accordingly, the question is answered in terms that against an

award of the Collector passed under Section 28A of the Land Acquisition

Act, 1894, appeal is not maintainable before this Court as the remedy against

the same is available under Section 28A(3) of the Act by filing an

application to the Collector seeking reference of dispute to the Court.

17. The matter shall now be placed before the regular Bench as per

roster for decision in the light of this judgment.

(J.J. Munir, J.) (Rajesh Bindal, C.J.)

Allahabad

June 03, 2022

AHA

Whether the order is speaking : Yes/No

Whether the order is reportable : Yes✓/No