Karam Chand and Another vs State of H.P. and Another

Sanjay Karol, J.—Short question which arises for consideration in the present petition is as to whether application filed u/s 28A of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), beyond the stipulated period of three months of limitation, commencing from the date of pronouncement of the award by the District Judge, u/s 18 of the Act, is maintainable or not.

Facts are not much in dispute. Claimants'' land stood acquired for a public purpose, vide Award No. 46, dated 19.3.2004, passed by the Land Acquisition Collector, H.P.P.W.D., Central Zone, Mandi. Undisputedly, appellants herein did not seek any redetermination of compensation, under the provisions of Section 18 of the Act, though some of the land owners covered by the very same acquisition proceedings filed such petitions, which stood adjudicated and decided on 31.8.2007 by the Additional District Judge (Fast Track Court), Hamirpur, Himachal Pradesh, vide award in Land Reference No. 10 of 2005/RBT 20 of 2005, titled as Bararu Ram and others v. Land Acquisition Collector and another, and other connected matters. In the instant case, the same is annexed as Annexure P-2.

Significantly, even this award was not accepted by some of the land owners, who thereafter approached this court by filing appeals, which stood decided on 27.4.2010 (RFA No. 291 of 2007, titled as Premi Devi v. Land Acquisition Collector & another, and other connected matters). The judgment was passed on the basis of earlier decision dated 1.7.2009, rendered in RFA No. 379 of 2006, titled as Surinder Kumar v. Land Acquisition Collector and another, and other connected matters.

After the decision of the case in Surinder Kumar (supra), present claimants/appellants filed a petition, under the provisions of Section 28A of the Act, seeking re-determination of the amount of compensation, with respect to the very same acquisition proceedings. The same stands rejected by the Land Acquisition Collector, vide its decision dated 26.11.2012, passed in Petition No. 7/09, titled as Karam Chand v. State of H.P. and another.

For the purpose of ready reference, it would be beneficial to reproduce Section 28A of the Act:

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, 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 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, 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 u/s 18.

(Emphasis supplied)

Notwithstanding the fact that claimants did not take recourse to the provisions of Section 18, they had a right to seek re-determination of the amount of compensation, so fixed by the Collector u/s 11 of the Act, within a period of three months from the date of passing of the award by the Court, in the petitions filed u/s 18 of the Act by the co-claimants/owners. However, such right stood circumscribed by limitation of a period of three months.

The Apex Court in Union of India and another Vs. Pradeep Kumari and others, , has held the following ingredients necessary for an application u/s 28A of the Act to be maintainable (i) an award is made by the court under Part III of the Act, after coming into force of Section 28A; (ii) in terms of the said award, the amount of compensation in excess of the amount awarded by the Collector u/s 11 stands allowed to the applicant in that reference; (iii) the person moving application u/s 28A is interested in other land covered by the same notification u/s 4(1) pertaining to the said award; (iv) person moving the application has not made any application to the Collector u/s 18; (v) application is moved within a period of three months from the date of the award, on the basis of which redetermination of the amount of compensation is sought; and (vi) only one application can be moved u/s 28A for redetermination of compensation by an applicant.

Further, in Jose Antonio Cruz Dos R. Rodriguese and another Vs. Land Acquisition Collector and another, , the apex Court after taking notice of its earlier decisions in Jose Antonio Cruz Dos R. Rodrigueses and another Vs. Land Acquisition Collector and another, ; Union of India (UOI) and Others Vs. Karnail Singh and Others, ; and Babua Ram and Others Vs. State of U.P. and Another, , reiterated the position that the period of limitation, for filing an application u/s 28A of the Act, "would start to run" from the date of order passed by the Reference Court, on the basis whereof redetermination is sought. Significantly, Court was dealing with identical fact situation and circumstances and held that such attempt for redetermination, sought after a period of three months from the order passed by the Reference Court, cannot be considered, being contrary to the provisions of the Act.

One may only observe that correctness of the decision in Pradeep Kumari (supra) came up for consideration before the Constitution Bench of the apex Court in Union of India (UOI) and Another Vs. Hansoli Devi and Others, . Though the Bench was considering a totally different issue, but however, it noticed Jose Antonio Cruz Dos R. Rodriguese (supra), and ratio laid down therein was neither overruled nor disturbed. In fact decision in Jose Antonio Cruz Dos R. Rodriguese (supra), stands reiterated by the apex Court in Union of India and another v. Hansoli Devi and others, (2010) 15 SCC 483; State of Orissa and Others Vs. Chitrasen Bhoi, ; Des Raj (Deceased) through L.Rs. and Others Vs. Union of India (UOI) and Another, ; State of Andhra Pradesh and Another Vs. Marri Venkaiah and Others, ; and The State of Tripura and Another Vs. Roopchand Das and Others and Sudhir Debnath and Others, .

Mr. Mandhotra, learned counsel for the claimants, in support of his contention, invites attention to para-9 of the decision rendered in Union of India (UOI) Vs. Munshi Ram (Dead) by LRs. and Others, , which reads as under:

We hold that u/s 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act. IN case of reduction of compensation by the superior courts, the applicants u/s 28A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.

In effect, what is argued is that there cannot be any discrimination between the claimants, seeking enhancement u/s 18 and/or Section 28A of the Act. As such, amount enhanced in cases of co-owners ought and should be awarded to the present claimants. The submission, in my considered view, is absolutely fallacious. In the event of enhancement of the amount either u/s 18 or 54 of the Act, there is no automatic entitlement for the enhanced amount to every co-owner, whose land stands acquired vide same acquisition proceedings. Right to seek enhancement/redetermination is a statutory right and Court cannot allow a party to sleep over such right and then one fine day, claim parity, dehors the statutory provisions.

Mr. R.S. Verma, learned Additional Advocate General, has invited my attention to the decision of the apex Court in State of Maharashtra Vs. Manakchand Pyarmal and Others, , to contend that where re-determination of compensation is sought on the basis of an award of the Reference Court, which is subject matter of appeal pending decision before the High Court, proper course would be to await the decision in the appeal and keep the matter pending. In my considered view, the decision cannot be taken as a binding precedent. In any event, that stage is well past.

Award passed by Land Acquisition Officer u/s 11 of the Act, on 19.3.2004, was enhanced by the District Judge, in an application filed u/s 18 of the Act on 31.8.2007, when proceedings under Part III of the Act came to an end. Judgment(s) dated 1.7.2009 and 27.4.2010, u/s 54 of the Act are under Part IV and not Part III of the Act. Application u/s 28A was filed after the judgments were delivered by this Court. As such, in view of the aforesaid discussion, it cannot be held that the Court below erred in dismissing the application filed by the claimants, under the provisions of Section 28A of the Act, on the ground of limitation. The question is answered accordingly.

Hence, for all the aforesaid reasons, the present petition is dismissed.

Petition stands disposed of, so also pending application(s), if any.