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2005 DIGILAW 607 (PNJ)

Mange Ram v. State Of Haryana

2005-05-18

ASHUTOSH MOHUNTA

body2005
Judgment Ashutosh Mohunta, J. 1. This judgment of mine shall dispose of R.F.A. Nos.415 to 425 of 1994 as all the appeals have arisen out of the common judgment and decree dated 21.9.1993 passed by the Additional District Judge, Rohtak, whereby the 15 land reference petitioners filed by the landowners have been dismissed with costs. 2. In brief, the facts giving rise to the filing of the present appeals are that on acquisition of the land situated in six villages, namely, Kanwah, Shajanpur,Rehruwas, Bilochpura, Niwada and Chindawas, all falling in Tehsil Jhajjar, the Land Acquisition Collector (for short the Collector) announced the award on 19.9.1978. Dissatisfied with the award of the Collector, some of the landowners (other than the present appellants) filed reference petitions under Section 18 of the Land Acquisition Act, 1894 (for short the Act). The reference petitions were decided and the award war passed by the Additional District Judge, Rohtak, on 17.9.1984. In September 1984, the Act was amended and a new Section 28-A was inserted therein. Consequently, the landowners, whose reference petitions were decided by the Additional District Judge vide award dated 17.9.1984, filed review applications, which were accepted by the Reference Court vide orders dated 7.1.1987, 17.1.1987 and 24.7.1987. Thereafter, some of the landowners, who had not made reference under Section 18 earlier, by taking the benefit of the said orders, filed claim petitions within three months of the acceptance of the Review Applications by the Additional District Judge, under Section 28-A of the Act before the Collector, who rejected all the petitions, but he made references to the District Judge under Section 28-A (3) of the Act. The Additional District Judge accepted references and announced the award on 29.9.1989. The present appellants filed the claim petitions within three months (as prescribed under Section 28-A of the Act) from the date of the latest award of the Additional District Judge dated 29.9.1989. The said petitions were rejected by the Collector vide order dated 30.9.1991 on the ground of limitation. However, reference were made to the District Judge. The Additional District Judge vide the impugned award dated 21.9.1993 dismissed the reference petitions filed by the present claimants on the ground of limitation by relying on the judgments passed by this Court. 3. 1 have heard the learned counsel for the parties and gone through the evidence adduced on record. 4. However, reference were made to the District Judge. The Additional District Judge vide the impugned award dated 21.9.1993 dismissed the reference petitions filed by the present claimants on the ground of limitation by relying on the judgments passed by this Court. 3. 1 have heard the learned counsel for the parties and gone through the evidence adduced on record. 4. Section 28-A of the Act is reproduced hereunder for ready reference:- "28-A. Re-determination of the amount of compensation on the basis of the award of the Court. - (1) Where by 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) xx xx xx xx xx (3) xx xx xx xx xx" 5. A perusal of the afore-mentioned provision would show that this provision has been inserted to help those inarticulate landowners who did not file reference petition under Section 18 of the Act. Further it has been added in the above quoted section, that "written application to the Collector" is required to be made" within three months from the date of the award of the Court." In Jose Antonio Cruz Dos R. Rodriguese and Anr. V/s. Land Acquisition Collector and Anr. , two Hon ble Judges of the Apex Court, referred the following two questions for being answered by a larger Bench of five Hon ble Judges:- "1. Whether the award of the Court, i.e., civil Court made under Section 26 on reference under Section 18 would also include judgment and decree of the appellate Court under Section 54? 2. , two Hon ble Judges of the Apex Court, referred the following two questions for being answered by a larger Bench of five Hon ble Judges:- "1. Whether the award of the Court, i.e., civil Court made under Section 26 on reference under Section 18 would also include judgment and decree of the appellate Court under Section 54? 2. Whether each successive award or judgment and decree (if answer on question No. l is positive) would give cause of action to file application under Section 28-A, if so construed, does not such a construction violate the language used in Section 28-A when Parliament advisedly did not use such expression?" 6. A three-Judges Bench of Hon ble the Supreme Court in Union of India and Anr. V/s. Pradeep Kumar and Ors., 1996 L.A.C.C. 395 (S.C.), has held that the benefit of re-determination of the amount of compensation under Section 28-A, can 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 28-A and the period of limitation of three months would start from the date of making of the award on the basis of which re-determination is sought. Their Lordships held that there is nothing in Sub-section (1) of Section 28-A to indicate that the right is confined in respect of the earliest award that is made by the Court. The Hon ble Judges further held as under:- "....By restricting the benefit of Section 28-A to the first award that is made by the Court after coming into force of Section 28-A, the benefit of higher amount of compensation on the basis of the subsequent award made by the Court would be denied to the persons invoking Section 28-A and the benefit of the said provision would be confined to re-determination of compensation on the basis of lesser amount of compensation awarded under the first award that is made after the coming into force of Section 28-A. There is nothing in the wordings of Section 28-A to indicate that the legislature intended to confer such a limited benefit under Section 28-A." 7. Their Lordships of the Supreme Court enumerated the following conditions which are required to be satisfied by the land owner for making an application under Section 28-A of the Act:- "(i) An award has been made by the Court under part III after the coming into force of Section 28-A; (ii) 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; (iii) The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4(1) to which the said award relates; (iv) The person moving the application did not make an application to the Collector under Section 18; (v) The application is moved within three months from the date of the award on the basis of which the re-determination of amount of compensation is sought; and (vi) Only one application can be moved under Section 28-A for re-determination of compensation by an applicant." 8. So far as the first question is concerned, a three-Judge Bench of Hon ble the Supreme Court in Jose Antonio Cruz Dos R. Rodriguese and Anr. V/s. Land Acquisition Collector and Anr., , and held that "there is no difference of opinion on the question that the period of limitation would start to run from the date of the reference Courts order on the basis where of the re-determination was sought long after three months even form the time the last order had elapsed...." So far as the second question posed in the earlier part of the judgment, is concerned, their Lordships of the Supreme Court in Jose Antonio Cruz Dos R. Rodrigues (supra) referred the question to be answered by a Bench of five Hon ble Judges. 9. Still further, a Bench of two Hon ble Judges of the Supreme Court in Union of India and Anr. V/s. Hansoli Devi and Ors., 2001(2) L.A.C.C. 58, referred the following two questions to be answered by a larger Bench of five Hon ble Judges:- " 1. (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to "not filing an application" within the meaning of Section 28 A of the Land Acquisition Act, 1894 ? (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to "not filing an application" within the meaning of Section 28 A of the Land Acquisition Act, 1894 ? (b) Whether a person whose application under Section 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 under Section 28A of the Land Acquisition Act? 2. Whether a person who has received the compensation without protest to the Award of the Land Acquisition Collector and has not filed an application seeking reference under Section 18 is a person aggrieved within the meaning of Section 28A?" 10. In answer to question l(a) it was held by the larger Bench of five Hon ble Judges in Union of India and Anr. V/s. Hansoli Devi and Ors.,4 2002(2) L.A.C.C. 384, of Hon ble the Supreme Court, that dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894. In answer to Section l(b) it was held by their Lordships that when an application of a landowner is dismissed on the ground of delay, then the said landowner is entitled to make an application under Section 28-A, if other conditions prescribed therein are fulfilled. In answer to question No. 2, it was held by their Lordships of Hon ble Supreme Court that "the receipt of compensation with or without protest pursuant to the award of the Land Acquisition Collector is of no consequence for the purpose of making a fresh application under Section 28-A. If a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with our without protest, he would be a person aggrieved within the meaning of Section 28-A and would be entitled to make an application when some other landowners application for reference is answered by the reference Court. It is apparent on the plain language of the provisions of Section 28-A of the Act. It is apparent on the plain language of the provisions of Section 28-A of the Act. Otherwise, it would amcunt to adding one more condition, not contemplated or stipulated by the legislature itself to deny the benefit of substantial right conferred upon the owner." It has further been held by their Lordships of the Supreme Court that when an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. 11. In the light of the afore-quoted decisions of Hon ble the Supreme Court and the law laid down by the larger Bench of five Hon ble Judges in Union of India and Anr. V/s. Hansoli Devi (supra), I hold that the claimants in the present appeals were eligible to file claim petitions on the basis of the latest award given by the Reference Court on 29.9.1989. It does not make any difference if the claimants had not filed the reference applications under Section 18 of the Act at an earlier point of time. In the present case the appellants had filed the reference applications in order to avail of the a beneficial provisions of Section 28-A of the Act, In Union of India V/s. Hansoli Devi (supra), it has been held by their Lordships that the Parliament having enacted Section 28-A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression "had not made an application to the Collector under Section 18" in Section 28-A of the Act. In this view of the matter, it is held that it would not make any difference if the claimants had not filed an application under Section 18 of the Act before the Collector within three months of the earliest award given by the Reference Court. In case the claimants have filed the reference applications within three months of the latest award given by the Reference Court on 29.9.1989, that is equally good and they are eligible to get the benefit of the provisions of Section 28-A of the Act. 12. Consequently, I allow all the appeals and set aside the award dated 21.9.1993 passed by the Additional District Judge, Rohtak. 12. Consequently, I allow all the appeals and set aside the award dated 21.9.1993 passed by the Additional District Judge, Rohtak. The applications filed by the appellants for enhancement of compensation on the basis of the award given by the Additional District Judge, Rohtak, dated 29.9.1989 stand allowed as well. The appellants are also granted the benefit accruing to each one of them under Section 23(1-A) of the Act. They are also granted interest at the rate of 9 per cent annum with effect from the date on which the possession of the land was taken by the Collector and thereafter they will be entitled to charge interest at the rate of 15 per cent per annum on the amount of excess compensation, as admissible to them under Section 28 of the Act.