Bharatsing S/O Gulabsingh Jakhad vs The State Of Maharashtra .

CIVIL APPEAL NO. 21792 OF 2017 (Arising out of S.L.P.(Civil) No. 16449/2016)

BHARATSING S/O GULABSINGH JAKHAD & ORS. ... APPELLANT (S)

VERSUS

THE STATE OF MAHARASHTRA & ORS. ... RESPONDENT (S)

J U D G M E N T

KURIAN, J.:

Leave granted.

2. What is the course to be adopted by the Land Acquisition

Collector under Section 28A of The Land Acquisition Act,

1894 (hereinafter referred to as “the Act”), when the Signature Not Verified Digitally signed by NARENDRA PRASAD Date: 2017.12.12 award based on which enhancement is sought is pending 17:12:30 IST Reason: 1 in appeal, is the issue arising for consideration in this

case.

3. The Section 4(1) Notification was issued on 17.01.1974.

The compensation was determined by the Land

Acquisition Officer on 04.06.1977. The appellants did not

pursue the matter further under Section 18 of the Act in

Reference. However, other claimants of the lands covered

by the same Section 4(1) Notification took up the matter

further and the Reference Court allowed enhancement

and fixed the land value at Rs.5,000/- per acre in the place

of Rs.3,000/3,500 offered by the Land Acquisition Officer,

as per the award dated 01.10.1992 in LAR Nos. 123 and

129 of 1983 on the file of the Second Additional District

Judge, Aurangabad. The appellants filed an application on

31.12.1992 under Section 28A of the Act seeking similar

enhancement within the period of three months as

required under Section 28A.

4. While the application under Section 28A of the Act was

pending, the award under LAR Nos. 123 and 129 of 1983

was challenged in appeals and there were also cross

2 objections. The High Court disposed of these appeals by

judgment dated 23.03.2009 granting compensation at the

rate of Rs.18,000/- per acre.

5. During the pendency of the appeal, it is seen that the

Land Acquisition Collector passed an award dated

25.10.2000 on the application filed by the appellants

under Section 28A of the Act, awarding compensation at

the rate of Rs.5,000/- per acre, as awarded in LAR Nos.

123 and 129 of 1983 referred to above.

6. On 27.05.2009, the appellants filed fresh applications

under Section 28A for enhancement of compensation

based on the judgment of the High Court dated

23.03.2009. They also approached the High Court praying

for the Writ of Mandamus. By the impugned order, the

Writ Petition was dismissed holding that Section 28A of

the Act permits only one application, and successive

applications as and when further enhancement is made,

are not permissible.

7. Thus aggrieved, the present appeal.

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8. Section 28A of the Act which was inserted in 1984 reads

as follows :-

“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.

(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.

4 (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.”

9. The nuances of Section 28A have been subject matter of

various decisions of this Court. In Babua Ram and

others v. State of U.P. and another1, one of the

questions considered by a two-judge Bench of this Court

was whether the Collector/LAO on receipt of application

under Section 28A (1) is bound to re-determine the

compensation when the award is pending in appeal

before the High Court or appellate forum. This Court, at

paragraph- 39 held as follows-

“39. The next question is whether the Collector/LAO on receipt of the application under sub-section (1) of Section 28-A is bound to redetermine the compensation while the award and decree under Section 26 is pending consideration in the appeal in the High Court or appellate forum. If he does so, whether award under Section 28-A(2) is illegal? It is settled law that the decree of the trial court gets merged in the 1 (1995) 2 SCC 689 5 decree of the appellate court which alone is executable. The finality of the determination of the compensation is attained with the decree of the appellate forum, be it the High Court or this Court. Take for instance that ‘A’, ‘B’ and ‘C’ are interested persons in the land notified under Section 4(1) and the compensation determined in the award under Section 11. ‘A’ received the compensation without protest. ‘B’ and ‘C’ received the compensation under Section 31 under protest and sought and secured reference under Section 18. The court enhanced the compensation from the Collector’s award of Rs 10,000 to Rs 20,000. ‘B’ did not file appeal under Section 54 while ‘C’ filed the appeal. The High Court, suppose, further enhances the compensation to Rs 25,000 or reduces the compensation to Rs 15,000 per acre. ‘A’ is a person aggrieved only to the extent of the excess amount awarded either by the award and decree of the court under Section 26 but he will not get the enhancement of further sum of Rs 5000 granted by the High Court in favour of ‘C’. The decree of the High Court is the executable decree made in favour of ‘C’. Unless redetermination is kept back till the appeal by the High Court is disposed of, incongruity would emerge. Suppose the State filed appeal in this Court under Article 136 against the High Court decree and this Court confirms the award of the Collector and sets aside the decree of civil court under Section 26 and of the High Court under Section 54. There is nothing left for redetermination. With a view to save ‘A’ or ‘B’ or the State from the consequences of

6 such incongruous situations, the Collector/LAO should stay his hands in the matter of redetermination of compensation till the appeal is finally disposed of and he should redetermine the compensation only on the basis of the final judgment and decree of the appellate forum. Adoption of such course, would not merely avoid the chance element in the claimants getting the amounts of redetermined compensation but also avoids needless burden on public exchequer. As soon as the award of the civil court is carried in appeal, it becomes obligatory for the Collector to keep the application/applications for redetermination of compensation filed within limitation pending, awaiting decision by the appellate forum and to redetermine the compensation on the basis of the final judgment and decree….”

Babua Ram (supra), also dealt with the question as to

when the period of limitation of three months begins to run

under Section 28A. The Court held that the period of three

months prescribed for application under Section 28A has to

be computed from the date of the first award.

10. Soon after the decision in Babua Ram (supra), this Court

in U.P. State Industrial Development Corpn. Ltd v.

State of U.P. and others2, reiterated Babua Ram

(supra) to hold that since an appeal preferred by the 2 (1995) 2 SCC 766 7 State against the award of the District Judge under Section

26 was pending, the proper course would have been to

keep the application under Section 28A (1) pending till the

appeal was disposed of.

11. In Union of India and another v. Pradeep Kumari and

others3, a three-judge Bench of this Court disagreed with

Babua Ram (supra) on the point that an application for

redetermination of compensation can be made only on the

basis of the first award made after coming into force of

Section 28A. It was clarified that compensation under

Section 28A could be availed of on the basis of any one of

the awards that has been made by the court after coming

into force of Section 28A provided that the application is

made within the prescribed period of three months from

the making of the award on the basis of which

re-determination is sought. This Court also laid down six

conditions for filing an application under Section 28A and

the sixth condition is- “only one application can be moved

3 (1995) 2 SCC 736 8 under Section 28A for redetermination of compensation by

an applicant”.4

12. Subsequently, in Jose Antonio Cruz Dos R. Rodriguese

and another v. Land Acquisition Collector5, a

three-Judge Bench of this Court explained the scheme of

the Act and noted that Section 28A was under Part III of

the Act. Further, Section 2(d) of the Act defines ‘court’ to

mean principal Civil Court of original jurisdiction unless a

special judicial officer is appointed. Therefore, this Court

was of the opinion that in Section 28A the ‘award’ means

an award under Part III and ‘court’ can only mean the

court to which reference is made by the Collector under

Section 18. It was held that “the plain language of Section

28-A, therefore, prescribes the three months period of

limitation to be reckoned from the date of award by the

4 The other five conditions are- 1. The award has been made by the court under Part III after coming into force of Section 28A; 2. 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; 3. The person moving the Section 28A application is interested in other land covered by the same Section 4 (1) notification to which the award related; 4. The person moving the application did not make an application under Section 18; 5.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.

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(1996) 6 SCC 746 9 Court disposing of the reference under Section 18, and not

the appellate court dealing with the appeal against the

award of the Reference Court”.

13. In Union of India v. Munshi Ram (Dead) By Lrs. and

others6, while dealing with a situation where the

compensation awarded by the Reference Court was

modified by the High Court and further modified by the

Supreme Court in appeal, this Court held as follows at

paragraph-9:

“9. We hold that under Section 28-A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference under Section 18 of the Act. In case of reduction of compensation by the superior courts, the applicants under Section 28-A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.” (Emphasis supplied)

14. In Kendriya Karamchari Sehkari Grah Nirman Samiti

Limited, Noida v. State of Uttar Pradesh and

another7, this Court held that in the facts of the case, the 6 (2006) 4 SCC 538 7 (2009) 1 SCC 754 10 Collector was justified in not deciding the Section 28A

application on account of pendency of an appeal before

the High Court. In that case, the appellant had also

challenged the Government Orders as per which the

Collector could not have decided the Section 28A

application in case the order of the Reference Court

enhancing the compensation is challenged and the appeal

is pending before the High Court/Supreme Court. This

Court, specifically held that the Government Orders were

in consonance with the law laid down in Babua Ram

(supra).

15. In the case of the appellants, when their Section 28A

application was decided, based on awards in LAR Nos. 123

and 129 of 1983, the very same awards were pending in

appeal before the High Court. However, the Collector

proceeded to consider their application and decided the

same on 25.10.2000. Thereafter, fresh application under

Section 28A was filed on 27.05.2009 based on the

judgment of the High Court dated 23.03.2009. It was this

11 application that was held to be not maintainable, being a

second application.

16. Though there is no quarrel with the principle that only a

single application is maintainable, in the instant case,

unfortunately, the High Court omitted to take note of the

fact that the appeals on the relied on awards were

pending when the Section 28A application was decided.

That is the special and distinctive factual position in the

instant case. It must also be kept in mind that Section 28A

is a beneficial provision.

17. The Section 28A application dated 31.12.1992 based on

the awards in LAR Nos. 123 and 129 of 1983 was decided

on 25.10.2000 when the appeals therefrom were pending.

The Collector ought to have kept the application pending

till the appeals were decided on 23.03.2009. On principle,

the High Court is correct and justified in the view taken in

the impugned judgment that there cannot be successive

applications under Section 28A in view of Pradeep

Kumari (supra). But that is not the point arising for

consideration here. No doubt, the second application

12 dated 27.05.2009 for re-fixation in light of the appellate

court judgment is not maintainable. However, since the

Collector is also at fault in deciding the application when

the matter was pending in appeal, we are of the view that

in the peculiar facts of the instant case, the application

dated 31.12.1992 should be considered afresh.

Accordingly, the appeal is disposed of as follows. The

Land Acquisition Collector is directed to consider afresh

the Section 28A application dated 31.12.1992 and pass

orders in the light of the judgment of the High Court dated

23.03.2009 in First Appeal Nos.569 and 570 of 1997 on

the file of the High Court of Bombay, Bench at

Aurangabad. For enabling the Collector to pass orders as

above, the order dated 25.10.2000 is set aside. However,

the amounts already paid are to be duly adjusted.

18. The orders as above shall be passed by the Land

Acquisition Collector within three months from the date of

presentation of a copy of this judgment by the appellants

and the consequential benefits shall be disbursed to them

within another one month.

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19. There shall be no order as to costs.

............................J. (KURIAN JOSEPH)

............................J. (R. BANUMATHI)

NEW DELHI;

DECEMBER 12, 2017.

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