Union of India vs Shri Parbhati

Sanjay Kishan Kaul, J.—The answer to the question-Whether the provisions of Section 28-A of the Land Acquisition Act, 1894 (hereinafter referred to Act) were attracted only if the interested person has not sought a reference u/s 18 of the Act? would dispose of the present appeal.

In terms of the impugned judgment dated 7.4.1999, the learned Single Judge negated the contention advanced on behalf of the appellant that since the respondent in the present case had sought a reference under the provisions of Section 18 of the Act, the respondent was not entitled to the benefit of the provisions of the Section 28-A if the Act i.e. seeking redetermination of the compensation on the basis of the judgment delivered by the Addl. District Judge. The learned Judge thus remanded the matter to the Collector to dispose of the application of the respondent on merits in view of the findings recorded in the judgment. The appeal against the said judgment was admitted and the operation of the impugned order was stayed during pendency of the appeal.

The scope and ambit of Section 28-A of the Act has been considered by the Supreme Court in case of Babua Ram and Others Vs. State of U.P. and Another, . Section 28-A of the Act deals with the re-determination of the amount of compensation on the basis of the Award of the court. Where the court allows to an applicant any amount of compensation in excess of the amount awarded by the Collector u/s 11 of the Act, Section 28-A permits any other person interested in the other land covered by same notification u/s 4, sub-section (1) to apply to the Collector within three months from the date of the Award of the court for re-determination of the amount notwithstanding that they had not made an application to the Collector u/s 18. The question which arose was, whether ''notwithstanding'' clause made the section applicable only to persons who had not made any application u/s 18 or whether it apply to even such cases.

The Supreme Court in Babua Ram''s case (supra) was of the view that there cannot be any doubt this proposition on a reading of the scheme of the Act in Part-II and III as also in particular the self contained code in Section 28-A of the Act that by operation of the non-obstante clause within Section 28-A(1), the embargo created by Section 18(1) and second proviso to sub section (2) of section 31 was lifted and the person had been given the right of remedy u/s 28-A. This benefit would, however, not be available to the person who had received compensation under protest and sought and secured a reference but was unsuccessful or partially successful. The Supreme Court referred to its earlier decision in the case of The Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda Vs. Union of India and others, to support this conclusion. In the Scheduled Castes Coop.Land Owning Society Ltd.''s case (supra) the Supreme Court had observed that claimant who had failed to apply for the enhancement u/s 18 of the Act are conferred the right u/s 28-A to apply to the Collector for re-determination and not other persons who had not only sought a reference u/s 18 but had also filed an appeal in the High Court.

In Babua Ram''s case (supra) the Supreme Court dealt with the object of such an amendment brought in 1984 by incorporation of Section 28-A and observed in para 36 :-

"Legislature made a discriminatory policy between the poor and inarticulate as one class of person to whom the benefit of Section 28-A was to be extended and comparatively affluent who had taken advantage of the reference u/s 18 and the latter as a class to which the benefit of Section 28-A was not extended. Otherwise, the phraseology of the language of the non-obstante clause would have been differently worded, i.e. "notwithstanding that they had not made an application to the Collector u/s 18 or an appeal u/s 54 or under Articles 132, 133, 136 or unsuccessful etc." Such is not the language."

It may be added that the Supreme Court vide said judgment upheld the validity of the amendment incorporated in terms of Section 28-A and held the said section to be just and fair and not vocative of Article 14. Procedure was held to be just and fair and not vocative of Article 21.

In view of the aforesaid pronouncement of the Supreme Court, in our considered view, the issue does not remain rest integra.We are thus unable to subscribe to the view of the learned Single Judge that the point in issue was not finally settled or that a categorical finding has not been recorded. The reference to the constitution Bench to clarify certain points in the judgment reported in State of Tripura and another Vs. Roop Chand Das and others, (1997) 5 SCC 757 was in respect of the issue of limitation of three months for seeking reference u/s 28-A of the Act i.e. when such limitation began to run and not on the observations made in Babua Ram''s case (supra) about the ''notwithstanding'' clause that it creates an absolute bar for persons to claim benefit u/s 28-A of the Act who have taken recourse to the provisions of Section 18 of the Act.

It is no doubt truce that the land of the respondent is covered by the same Notification in respect to which Supreme Court had granted relief in the case of Civil Appeal No.45001/1985 Tulsi Vs. UOI decided on 7.10.1985. However, the fact remains that a reference had been sought by the respondent u/s 18 of the Act and the compensation was enhanced on such reference. Respondent did not take recourse to any further remedy of appeal before any court.

In view of the aforesaid legal position and the un-disputed fact of the respondent having availed the remedy u/s 18 of the Act, the reliefs claimed for by the respondent in the writ petition could not have been granted and as a consequence thereof the relief granted vide the impugned judgment dated 7.4.1999 cannot be sustained.

The appeal is allowed. The impugned judgment dated 7.4.1999 is set aside and the petition filed by petitioner (CWP No.1432/86) is dismissed. The parties are left to bear their own costs.