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2018 DIGILAW 291 (HP)

Union of India v. Krishan Lal

2018-03-09

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. This writ petition takes exception to the award passed by the Collector in exercise of his powers under Section 28-A of the Land Acquisition Act (for short ‘Act’). 2. The land of the respondents comprised in Khatauni No.1551/1762, Khasra No. 5984/5297, measuring 2 bighas, Khasra No. 6136/5985/5297, measuring 1 bigha and the land comprised in Khasra No.5950/5351, measuring 6-3 bighas, situated in Mauza Fatti Nirmand, District Kullu, H.P. was acquired by the petitioner for setting up an Army base for defence purposes at village Averi, Tehsil Nirmand, District Kullu, H.P. On 19.03.1998, the Collector announced the award in case No.1/98. Certain land owners whose land was covered under the same notification filed reference petition for enhancement of the award which eventually came to be decided by the learned District Judge, Kinnaur, on 21.02.2004 and the award was enhanced to Rs.60,000/- per bigha. Whereas, the respondents had been paid compensation of Rs.31,500/- per bigha for ‘Bakhal Charand’ and Rs.51,000/- per bigha for ‘Bakhal Som’. Since the land of the respondents was acquired under the same notification and they had not sought reference, they filed applications under Section 28-A of the Act before the Land Acquisition Collector, Anni, on 19.04.2004, however, the Collector kept these applications in abeyance because the petitioner had preferred an appeal against the order of the learned District Judge. 3. Upon notice to the petitioners, they filed reply wherein they raised the question of limitation. The Land Acquisition Collector vide his award dated 16.03.2012 allowed the application filed by the respondents. It is this award that has been assailed by the petitioner mainly on the ground that the applications preferred by the respondents under Section 28-A were time barred and could not have been entertained, more especially when the reference pertaining to the same notification was decided by the learned District Judge on 22.02.2003 in Reference No.40-R/4 of 1999. 4. Respondents No.1 and 3 have filed their joint reply wherein they have supported the impugned award by claiming that the same is strictly in accordance with law and, therefore, needs to be upheld. I have heard the learned counsel for the parties and have gone through the records of the case. 5. 4. Respondents No.1 and 3 have filed their joint reply wherein they have supported the impugned award by claiming that the same is strictly in accordance with law and, therefore, needs to be upheld. I have heard the learned counsel for the parties and have gone through the records of the case. 5. The only question that falls for consideration is whether an application under Section 28-A of the Act ought to have been dismissed on the ground that it was not filed within three months from the date of reference Court first award dated 22.02.2003. To answer this question, it would be apposite to refer to Section 28-A(1) of the Act which is extracted here-in-below:- “[28A. Redetermination 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.” 6. A perusal of above extracted portion reveals that an application under this Section has to be filed within three months from the date of the award of the reference Court. 7. The object underlying the enactment of this Section is to remove inequality in the payment of compensation for the same and similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the Civil Court under Section 18 of the Act. 7. The object underlying the enactment of this Section is to remove inequality in the payment of compensation for the same and similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the Civil Court under Section 18 of the Act. This is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redeteremination once any of them has obtained order for payment of higher compensation from the reference Court under Section 18. By construing the expression “wherein an award under this Part” in sub-section (1) of Section 28-A to mean “wherein the first award made by the Court under this Part”, the word first which is not found in sub-section (1) of Section 28-A is being read therein and thereby the amplitude of the said provision would be curtailed so as to restrict the benefit conferred by it. In the matter of construction of a beneficent provision like the present one, it is not permissible by judicial interpretation to read words which are not there and thereby restrict the scope of the said provision. Therefore, the limitation for moving the application to the Collector under Section 28-A of the Act will begin to run only from the date of the award on the basis of which redetermination of compensation is sought and is three months from the date of the award. 8. At this stage, it shall be profitable to refer to the judgment of three Hon’ble Judges Bench of the Hon’ble Supreme Court in Union of India and another versus Pradeep Kumari and others (1995) 2 SCC 736 wherein it was held that the limitation does not necessarily start from the date of the first award. The award “first” cannot be read into Section 28-A. The relevant observations of the said decision are extracted here-in-below:- 10. The award “first” cannot be read into Section 28-A. The relevant observations of the said decision are extracted here-in-below:- 10. It is possible to visualise a situation where in the first award that is made by the court after the coming into force of Section 28-A the enhancement b the amount of compensation by the said award is not very significant for the reason that the person who sought the reference was not able to produce adequate evidence in support of his claim and in another reference where the award was made by the court subsequently such evidence is produced before the court and a much higher amount is awarded as compensation in the said award. By restricting the benefit of Section 28-A to the first award that is made by the court after the 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. Similarly, there may be a situation, as in the present case, where the notification under Section 4(1) of the Act covers lands falling in different villages and a number of references at the instance of persons having lands in different villages were pending in the court on the date of coming into force of Section 28-A and awards in those references are made by the court on different dates. A person who is entitled to apply under Section 28-A belonging to a particular village may come to know of the first award that is made by the court after the coming into force of Section 28-A in a reference at the instance of a person belonging to another village, after the expiry of the period of three months from the date of the said award but he may come to know of the subsequent award that is made by the court in the reference at the instance of a person belonging to the same village before the expiry of the period of three months from the date of the said award. This is more likely to happen in the case of inarticulate and poor people who cannot be expected to keep track of all the references that were pending in court on the date of coming into force of Section 28-A and may not be in a position to know, in time, about the first award that is made by the court after the coming into force of Section 28-A. By holding that the award referred to in Section 28-A(l) is the first award made after the coming into force of Section 28-A, such persons would be deprived of the benefit extended by Section 28-A. Such a construction would thus result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enacting Section 28-A. The object underlying Section 28-A would be better achieved by giving the expression "an award" in Section 28-A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(l) is thus construed, a person would be able to seek re-determination of the amount of compensation payable to him provided the following conditions are satisfied :- (i) An award has been made by the court under Part III after the coming in to 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. 11. 11. Since the cause of action for moving the application for re- determination of compensation under Section 28-A arises from the award on the basis of which re-determination of compensation is sought, the principle that "once the limitation begins to run, it runs in its full course until its running is interdicted by an order of the court" can have no application because the limitation for moving the application under Section 28-A will begin to run only from the date of the award on the basis of which re-determination of compensation is sought. 12. We are, therefore, unable to agree with the view expressed in Babua Ram versus State of U.P. (1995) 2 SCC 689 and Union of India versus Karnail Singh (1995) 2 SCC 728 that application under Section 28-A for re-determination of compensation can only be made on the basis of the first award that is made after the coming into force of Section 28-A. In our opinion, the benefit of re-determination of 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 the coming into force of Section 28-A provided the applicant seeking such benefit makes the application under Section 28-A within the prescribed period of three months from the making of the award on the basis of which re-determination is sought, The first contention urged by Shri Goswamy in support of the Review Petitions is, therefore, rejected.” 9. The ratio of the aforesaid decision was reiterated by the Hon’ble Supreme Court in Jose Antonio Cruz Dos R. Rodriguese and another versus Land Acquisition Collector and another AIR 1997 SC 1915 by holding that the period of limitation has to be computed from the date of reference Court’s award on the basis of which redetermination is sought. 10. Similar, reiteration of law can be found in the decision of the Hon’ble Supreme Court reported in State of Tripura and another versus Roopchand Das and others (2003)1 SCC 421 and thereafter in State of Orissa and others versus Chitrasen Bhoi (2009) 17 SCC 74 . 11. 10. Similar, reiteration of law can be found in the decision of the Hon’ble Supreme Court reported in State of Tripura and another versus Roopchand Das and others (2003)1 SCC 421 and thereafter in State of Orissa and others versus Chitrasen Bhoi (2009) 17 SCC 74 . 11. In view of the aforesaid exposition of law and further bearing in mind the language employed in Section 28-A and the laudable interpretation put by the Hon’ble Supreme Court in the aforesaid cases, this Court has no hesitation in holding that Section 28-A of the Act provides for making an application within three months from the date of award on the basis of which the redetermination of the market value is sought. 12. In addition to the above, it would be noticed that the reference petition was answered by the learned District Judge on 22.02.2003 and the respondents filed the application under Section 28-A on 19.04.2004 which as observed above was kept in abeyance as the petitioner had preferred appeal against the reference order. Whether such a course was permissible for the Collector is not an issue which can be agitated by the petitioner as the same stands authoritatively decided by the Hon’ble Supreme Court in Kendriya Karamchari Sehkari Grah Nirman Samiti Limited, Noida versus State of Uttar Pradesh and another (2009) 1 SCC 754 wherein it has been categorically held that when the award of the reference Court which is relied upon by the claimant for redetermination of the compensation is a subject matter of appeal before the High Court, the Collector would be well within his power to keep the application under Section 28-A of the Act pending till the matter is finally decided by the High Court or by the Hon’ble Supreme Court, as the case may be. The relevant observations are extracted below:- “40. It is true that once the Reference Court decides the matter and enhances the compensation, a person who is otherwise eligible to similar relief and who has not sought reference, may apply under Section 28-A of the Act. If the conditions for application of the said provision have been complied with, such person would be entitled to the same relief which has been granted to other persons seeking reference and getting enhanced compensation. If the conditions for application of the said provision have been complied with, such person would be entitled to the same relief which has been granted to other persons seeking reference and getting enhanced compensation. But, it is equally true that if the Reference Court decides the matter and the State or acquiring body challenges such enhanced amount of compensation and the matter is pending either before the High Court or before this Court (the Supreme Court), the Collector would be within his power or authority to keep the application under Section 28-A of the Act pending till the matter is finally decided by the High Court or the Supreme Court as the case may be. The reason being that the decision rendered by the Reference Court enhancing compensation has not attained “finality” and is sub judice before a superior Court. It is, in the light of the said circumstance that the State of U.P. issued two Government Orders on 14-1-1994 and 13-6-2001.” 13. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this petition and the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.