General Manager and Another vs Smt. Nasib Devi and Others <BR> Gurdyal Singh Vs Land Acquisition Collector

A.M. Khanwilkar, C.J.—All these matters involve common question. As a result, the same are being disposed of by this common judgment. The question is, whether successive application by the same claimant u/s 28A(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) is maintainable? The brief facts leading to these matters are as follows:-

The State of Himachal Pradesh vide single Notification dated 20th October, 1984 acquired certain pieces of land, including that of the respondent(s) in appeals and the petitioner(s) in CMPMO (for short, "claimants herein"), situated in Village Tabba, Tehsil and District Una, HP, for construction of B.G. Railway line from Nangal Dam to Talwara. The Land Acquisition Collector announced the award on 15th May, 1986 and fixed the market value of different kinds of land as under:-

(a) Barani and Abadi Rs. 4,000 per Kanal

(b) Banjar Kadim Rs. 2,000 per Kanal

(c) Gair Mumkin Rs. 1,000 per Kanal

Reference Petition u/s 18 of the Act claiming higher compensation, on various grounds, was filed by several land owners other than the claimants herein. In all, six cases were registered separately as Land Reference Petitions No. 22 of 1987, 14 of 1987, 16 of 1987, 24 of 1987, 25 of 1987 and 27 of 1987 and were decided by the District Judge in terms of its award dated 27th May, 1988, who reassessed the value of land, in addition to statutory payment of solatium and interest, as under:-

(a) Barani and Abadi Rs. 8,000 per Kanal

(b) Banjar Kadim Rs. 4,000 per Kanal

(c) Gair Mumkin Rs. 2,000 per Kanal

Claimants herein filed applications u/s 28A(1) of the Act claiming enhanced compensation on the basis of award dated 27th May, 1988 as passed in Reference Petition No. 22 of 1987. Based on the enhanced awarded amount, applications preferred by the claimants herein were allowed whereby they were also awarded enhanced compensation in terms of the award of the Court.

However, against the award dated 27th May, 1988 appeals were filed before this Court, which were decided vide judgment dated 16th May, 1997. This Court was pleased to set aside the said award and remanded the matter back to the District Judge for reconsideration.

After remand, the Reference Petitions were separately decided by the District Judge on different dates. The last of the award dated 1.8.1998, arising out of the same notification, was passed by the District Judge in Land Reference No. 82 of 1987 titled Lachhman Dass. Vs. Collector. In terms of the said award dated 1st August, 1998, the compensation amount was enhanced by the learned District Judge as under:-

(a) Barani Rs. 10,000 per Kanal

(b) Banjar Kadim Rs. 5,000 per Kanal

(c) Gair Mumkin khud and choe Rs. 2,500 per Kanal

The claimants herein, relying on the subsequent award dated 1st August, 1998, moved fresh application(s) before the Collector, u/s 28A(1) of the Act for re-determination of compensation and for enhanced compensation. The second application, filed by the claimants herein, was dismissed by the Collector in terms of impugned order(s) dated 22nd March, 2003 on the ground that second application is not maintainable.

The claimants herein, being aggrieved, filed writ petitions before this Court under Article 226 of the Constitution of India. The group of writ petitions were heard and disposed of by the learned Single Judge of this Court by a common judgment, dated 31st July, 2007. The learned Single Judge answered the question in favour of the claimants herein and held that in the facts of the present case, it was open to them to file second application(s) u/s 28A(1) for re-determination of the compensation, in view of the fresh award of the Court passed in the case of other claimants, which was more beneficial to them. The correctness of this view is put in issue.

These matters were notified in the consolidated list for the moth of May, 2013 at Sr. No. 4. The matters were called out for hearing on 2nd May, 2013 and remained part heard. Arguments continued on 3rd May, 2013. On both these dates, the Advocates appearing for the claimants herein did not remain present. As a result, we requested the learned Advocate General to delineate the arguments, as may be available to the claimants herein, in support of the conclusion reached by the learned Single Judge in the common judgment under appeal. The learned Advocate General, besides pointing out the principle stated by the learned Single Judge, further pointed out that the provision such as Section 28A of the Act is a benevolent provision creating right in favour of the claimants and provides for remedy to the claimants to apply for re-determination of compensation on the basis of more beneficial award of the Court in the case of another claimant, covered by same Section 4 notification. He pointed out that upon setting aside of the earlier award of the Court, which was the basis for filing first application u/s 28A(1) of the Act by the claimants herein, in law, the said award would stand effaced and for which reason, after passing of fresh award of the Court after remand, it gave rise to fresh cause of action to the claimants herein to file application u/s 28A(1) of the Act, albeit second application.

Before we proceed further, we deem it apposite to quote Section 28A of the Act, which reads thus:-

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 u/s 11, the persons interested in all the other land covered by the same notification u/s 4, subsection (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector u/s 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:

Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.

(2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an award determining the amount of compensation payable to the applicants.

(3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference u/s 18.

(emphasis supplied)

The sweep of this provision is no more res integra. It is well settled that this provision is "a self-contained code", providing for remedy for re-determination of the amount of compensation on the basis of the award of the Court. The Apex Court, however, has dealt with cases in which the claimants invoked remedy u/s 28A(1) of the Act on the basis of separate awards passed by the Court in relation to the selfsame notification. However, in the present case, the issue is somewhat different. In that, the claimants herein had already exhausted remedy of application u/s 28A(1) of the Act for re-determination of compensation on the basis of award of the Court in the past. That application was decided in favour of the claimants herein. However, later on the award of the Court, on the basis of which relief was granted to the claimants herein, came to be set aside by the High Court and the matter was remanded for fresh consideration to the Reference Court. After remand, the Reference Court passed award in favour of the other claimants and granted enhanced compensation to those claimants than the one awarded to the claimants herein on the previous application u/s 28A(1) filed by them. Therefore, once again the claimants herein invoked remedy u/s 28A(1) by filing second application on the basis of the fresh award of the Court, dated 1st August, 1998.

The question is : whether the subsequent award of the Court can ignite fresh right in favour of the claimants herein to resort to remedy u/s 28A(1) of the Act? On a bare reading of Section 28A, in our opinion, it is evident that the scheme of the provision is to give only one opportunity to the claimants, who had failed to make application to the Collector for making reference u/s 18 of the Act, to ask for re-determination of the amount of compensation on the basis of the award passed by the Court providing for enhanced compensation to the other claimants under the selfsame notification u/s 4 of the Act. Upon receiving such application under sub-section (1), the Collector is obliged to conduct an inquiry. In terms of sub-section (2), the Collector is obliged to give notice to all the persons interested and provide for a reasonable opportunity of being heard before "making an award" determining the amount of compensation payable to the applicants. Thus, the said decision of the Collector partakes the colour of an award made u/s 28A(2) of the Act in supersession of his earlier award u/s 11 of the Act. Thus, it is an award made by the Collector under Part III of the Act. Sub-section (3) expressly provides for remedy against award made under Part III by the Collector, by way of reference to the Court upon request of the applicant(s) in that behalf. In other words, the claimant has the option of accepting the award passed by the Collector u/s 28A(2) of the Act or to call upon the Collector to make reference against that award by invoking remedy u/s 28A(3) of the Act. No more and no less. The applicant, who accepts the award passed by the Collector u/s 28A(2), cannot revert to the remedy u/s 28A(1) of the Act due to the fortuitous situation of High Court remitting the case for reconsideration to the Reference Court and the Reference Court in turn enhancing the compensation amount in favour of the other claimants concerning same notification u/s 4. This interpretation is reinforced from the plain language of Section 28A(1) as well. For, the remedy provided u/s 28A(1) is to make application for redetermination of the amount of compensation granted by the Collector u/s 11 and not qua or consequent to award passed by the Collector u/s 28A(2) of the Act. Just as in cases governed by the principle that merely because in some other proceedings the award of the Court passed in favour of some other claimants in relation to land covered by the same notification u/s 4 is more beneficial, on that basis the third party/claimant cannot invoke remedy u/s 28A(1) of the Act for the second time, even the cases, as under consideration, the claimants cannot resort to second application u/s 28A(1). For, the remedy u/s 28A(1) of the Act is only a one time opportunity given to the claimant who is interested in the land covered by the same notification u/s 4 of the Act and had failed to resort to remedy of reference u/s 18 of the Act against the award passed in his case by the Collector u/s 11 of the Act.

Indisputably, the dispensation u/s 28A of the Act is a self-contained code; and is a provision to provide for "remedy" to the persons interested who have failed to invoke remedy of reference u/s 18 of the Act against the award passed by the Collector u/s 11 of the Act in respect of their lands which are covered by the same notification u/s 4 of the Act, to apply for re-determination of the amount of compensation by relying on the award of the Court passed in the case of other claimants. Once such person invokes remedy u/s 28A(1) and upon passing of the award by the Collector under Part III of the Act (i.e. u/s 28A(2)), the only remedy prescribed by the Act to that person is to invoke remedy of reference, by virtue of sub-section (3) of that provision. Thus understood, there is no question of entertaining successive application u/s 28A(1) merely because the award of the Court on the basis of which relief was granted to that applicant u/s 28A, has been later on set aside after remand, and passing of fresh award by the Court, which is incidentally more beneficial to him. That cannot be countenanced. The provision, as enacted, is only to provide one time remedy to the claimants before the Collector after the award u/s 11 of the Act even though he had not resorted to remedy of reference u/s 18 of the Act against that award.

If the interpretation put forth by the claimants was to be accepted, that may have the inevitable effect of bestowing power in the Collector to revise his own award, passed u/s 28A(2) in Part III of the Act on the earlier occasion at the instance of the same person; and even though that person failed to challenge it in the manner provided, by law, in terms of Section 28A(3). In other words, the award passed by the Collector, in exercise of powers u/s 28A(2) becomes final; and is binding on the applicant at whose instance the same has been made. Any other view would result in rewriting of Section 28A and inserting further remedy to the person concerned who has already exhausted the option after the award u/s 11, and disregarding the express remedy provided to that person u/s 28A(3) of the Act consequent to award made u/s 28A(2). This crucial aspect has been glossed over by the claimants herein, who resorted to second application.

As aforesaid, in the wake of an express provision, "providing for remedy" against award passed u/s 28A(2), as contained in sub section (3) of the Act, the aggrieved applicant can resort only to that remedy of reference and not second application u/s 28A(1). The argument of the claimants that, with the setting aside of the previous award of the Court, dated 27th May, 1988, the same stood effaced, will be of no avail. For, that would not automatically result in effacing the award passed by the Collector u/s 28A(2) of the Act on the previous application, filed by the same applicants. Indubitably, "remedy" is a creature of statute. Availability of such remedy cannot be inferred and more so, when the language of Section 28A and in particular, sub section (3) thereof makes it amply clear that the only option available to the applicant against that award is to resort to reference. Accepting the argument of the claimants herein, therefore, would be nothing short of re-writing the provision and opposed to the legislative intent.

We may now refer to the decisions, which have been considered by the learned Single Judge. In case of Union of India (UOI) and Another Vs. Hansoli Devi and Others, the Constitution Bench of the Apex Court was called upon to answer two questions, referred to it, which read thus:

(a) Whether dismissal of an application seeking reference u/s 18 on the ground of delay amounts to ''not filing an application'' within the meaning of Section "28A" of the Land Acquisition Act, 1894?

(b) Whether a person whose application u/s 18 of the Land Acquisition Act, 1894 is dismissed on the ground of delay or any other technical ground is entitled to maintain an application u/s "28A" of the Land Acquisition Act?

Whether a person who has received the compensation without protest pursuant to the award of the Land Acquisition Collector and has not filed an application seeking reference u/s 18 is ''a person aggrieved'' within the meaning of Section "28A"?

While considering these questions, the Court noticed the conditions enumerated by a Bench of three Judges in the case of Union of India and another Vs. Pradeep Kumari and others, for maintaining an application u/s 28A of the Act. One of the condition noted by the Apex Court in that decision is that only one application can be moved u/s 28A of the Act for re-determination of the compensation by an applicant. In that case, the claimant did not seek reference u/s 18 of the Act against the award passed u/s 11 of the Act. Other claimants resorted to reference u/s 18 against the award in their cases. Some references were disposed of by the Court prior to 24th September, 1984 but in some references, the award by the Court was made after coming into force of the amended Act, 1984. Relying on the latter award, respondent No. 1 in that case made application u/s 28A for claiming benefit on the basis of Court award dated 21st February, 1987. The Collector in exercise of power u/s 28A(2) awarded additional compensation to the said party in consonance with the award of the Court. Against that decision, Union of India filed writ petition in this High Court. Respondent No. 2 in that case then filed application u/s 28A of the Act claiming benefit on the basis of award made by the High Court in RFA No. 166 of 1977. That application was dismissed by the Collector on the reasoning that remedy u/s 28A was available only on the basis of award of the Reference Court and re-determination of the amount of compensation was not permissible on the basis of judgment of the High Court. Against that decision, respondent No. 2 filed independent writ petition, inter alia, praying for giving her benefit as per Section 28A on the basis of the award made by the Reference Court on 10th November, 1986. In this backdrop, the Court answered the contentious issues and at the same time delineated the conditions to be fulfilled for maintaining application u/s 28A of the Act as under:

(i) An award has been made by the court under Part III after the coming into force of Section "28A";

(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector u/s 11 has been allowed to the applicant in that reference;

(iii) The person moving the application u/s "28A" is interested in other land covered by the same notification u/s 4(1) to which the said award relates;

(iv) The person moving the application did not make an application to the Collector u/s 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 u/s "28A" for redetermination of compensation by an applicant.

(emphasis supplied)

Indisputably, the Apex Court in the aforesaid decision has interpreted Section 28A of the Act. That interpretation must be treated as a binding precedent under Article 141 of the Constitution. Moreover, Section 28A(1) of the Act is not a provision creating remedy after the award is passed by the Collector u/s 28A(2) of the Act. It is a one time remedy after the award is passed by the Collector u/s 11 of the Act and upon fulfilling the prescribed conditions.

The learned Single Judge has then adverted to the decision of the Apex Court in Babua Ram and Others Vs. State of U.P. and Another, The two Judges Bench of the Apex Court was called upon to examine the sweep of Section 28A of the Act as to the meaning of expression "person interested" and "person aggrieved" and the method of reckoning the period of limitation. In paragraph 36 while examining the question under consideration, the Court noted that doctrine of res judicata u/s 11 of the CPC operates against persons, who allowed the decision to become final. In paragraph 36, the Court then went on to observe that the parties cannot fall back upon the right and remedy under sub-Section (1) of Section 28A as the public policy envisaged is that such a party cannot agitate its right twice over. Indeed, this observation is in the context of the condition that remedy u/s 28A can be availed by the person aggrieved, who had not invoked remedy of reference u/s 18 of the Act qua the award passed against him. The learned Single Judge has placed emphasis on the dictum of the Apex Court in this decision which refers to the Statement of Objects and Reasons and the financial memorandum preceding the enactment of Section 28A of the Act. The learned Single Judge also noted the observation in this decision which directs the Collector to keep application u/s 28A of the Act pending for re-determination of compensation filed within limitation awaiting the decision of the Appellate forum and to re-determine the compensation on the basis of the final judgment and decree.

In the present case, that option could have been resorted to by the Collector when the first application u/s 28A(1) was filed by the claimants herein. However, the Collector proceeded to decide the previous application u/s 28A(1) without waiting for the final judgment and decree of the High Court. The final judgment and decree of the High Court was rendered on 16th May, 1997, as a result of which the matter was remanded back to the Reference Court by setting aside the earlier decision of the Reference Court. If the Collector had kept the first application u/s 28A preferred by the writ petitioners pending, the predicament now faced by the claimants herein could have been averted. For that act of commission or omission, the claimants herein cannot get any advantage. As noted earlier, second or successive application u/s 28A(1) is not maintainable at the instance of the same applicant. The only remedy to that applicant would be to resort to reference, as predicated in Section 28A(3) of the Act.

The learned Single Judge has then adverted to the decision of the two Judges Bench of the Apex Court in The State of Tripura and Another Vs. Roopchand Das and Others and Sudhir Debnath and Others, This decision deals with the question of limitation provided u/s 28A of the Act and whether that remedy can be invoked when more than one awards are passed by the Reference Court u/s 18 of the Act on different dates in respect of the lands covered by the same notification. This decision, therefore, is an authority on the proposition that the period of limitation may be computed from the date of the latest award of the Court on the basis whereof re-determination was sought and not from the earliest award. That will be of no avail to the fact situation of the present case.

The learned Single Judge has then adverted to the Constitution Bench judgment of the Apex Court in the case of Gurpreet Singh Vs. Union of India (UOI), , wherein the Court has noted that when a Reference Court or Appellate Court awards enhanced compensation, the operative award is that of the Court that awards enhanced compensation and going by the doctrine of merger, the operative decree is that of the Appellate Court. We are afraid, this decision will be of no avail in the light of express language of Section 28A, which envisages only one time remedy to apply for re-determination of the amount of compensation; and the decision of the Collector on that application becomes an award u/s 28A(2) of the Act. In other words, in the present case, even if the award of the Court dated 27th May, 1988, has been set aside on 16th May, 1997 by the High Court and fresh award passed by the Reference Court on 1st August, 1988, in the case of the other claimant, that will be of no avail to the claimants herein who have already exhausted their remedy u/s 28A(1) of the Act and invited decision of the Collector thereon dated 15th January, 1992. That decision of the Collector being an award u/s 28A(2) and the same having been allowed to become final inspite of the remedy available under sub-section (3) of Section 28A, it is not open to the claimants herein to once again take recourse to remedy u/s 28A(1) of the Act merely because of fresh award by the Court dated 1st August, 1998. The doctrine of merger of the earlier award of the Court in the subsequent award or even if the subsequent award of the Court was to be treated as a fresh award because of the effacement of the earlier award by the High Court, it would be of no avail to the claimants herein for the reasons indicated hitherto.

The learned Single Judge has then adverted to the decision of Bench of two Judges of the Apex Court in the case of Union of India (UOI) Vs. Munshi Ram (Dead) by LRs. and Others, . Even this decision is of no avail to the claimants herein. In fact, in the extracted portion of paragraph 7 of this decision, the Court has noted the incongruous position likely to emerge when a person who does not challenge the award of the Collector and did not insist for a reference u/s 18 of the Act, would get higher compensation than the one who had challenged the award of the Collector by way of reference, but in whose case a higher compensation was determined by the Reference Court and was reduced by the superior Court. Suffice it to observe that the claimants herein having allowed the award u/s 28A(2) of the Act to attain finality and more so having exhausted the one time remedy, in our opinion, the second or successive application by the same applicant u/s 28A(1) is not tenable, in law.

Taking overall view of the matter, therefore, we are in agreement with the opinion recorded by the Collector that second or successive application by the same applicant/writ petitioners was not maintainable in law. As a result, we reverse the opinion of the learned Single Judge. Accordingly, all the Letters Patent Appeals would succeed and the judgments impugned in the respective appeals are quashed and set aside and further the concerned writ petition be treated as dismissed. For the same reasons, companion CMPMOs are dismissed being devoid of merits.

No order as to costs.