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2019 DIGILAW 635 (HP)

Sant Ram v. NTPC

2019-05-28

DHARAM CHAND CHAUDHARY, VIVEK SINGH THAKUR

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Heard. 2. We propose to dispose of all the writ petitions by this common judgment as the facts of all the cases are identical and the points in issue are also same and similar. Even the relief claimed is also identical. 3. In three writ petitions registered as CWP Nos. 332, 333 and 509 of 2019, the respondents have not filed the reply. This aspect of the matter has been noted by us in our order passed in these writ petitions yesterday on 27.5.2019, which reads as follows: "Short affidavit/reply has not been filed despite opportunity granted. In our opinion, reply is not required as the points raised in these writ petitions are identical to the one in CWP No. 2207 of 2017, titled Sant Ram & Others versus NTPC & another and its connected matters, in which we have heard the arguments today at length and adjourned the same for continuation tomorrow on 28th May, 2019. Therefore, these writ petitions be also listed therewith. Name of Mr. Jagdish Thakur, Advocate learned counsel representing respondent No. 1 be reflected in the cause list." 4. Therefore, when the reply has been filed in the remaining four writ petitions coupled with the factum of the points in issue are identical in all the writ petitions and even the petitioners are either co-sharers or similarly situated persons, it is for this reason that the reply was not insisted to be filed by the respondents. Otherwise also, the Collector, respondent No. 2, shall determine the enhanced amount of compensation on the basis of the material to be placed on record by the parties on both sides and after holding inquiry as envisaged under Section 28-A of the Act and not on the basis of the submissions made in the writ petitions alone. 5. The records reveal that the co-sharers/similarly situated persons of the petitioners in these writ petitions have approached the reference Court below by way of fling an application under Section 18 of the Land Acquisition Act, hereinafter referred to as 'the Act', for redetermination of the compensation. The reference Court below after holding full trial and affording opportunity of being heard to the parties has determined the market value of the acquired land @ Rs.5,00,000/- per bigha irrespective of its nature and classification. The reference Court below after holding full trial and affording opportunity of being heard to the parties has determined the market value of the acquired land @ Rs.5,00,000/- per bigha irrespective of its nature and classification. The petitioners, however, have neither made a reference at an appropriate stage nor approached the competent authority under Section 28-A of the Act within the stipulated period, after the reference Court below has passed the award and enhanced the compensation. The explanation for their failure to do so as forth coming is that they are illiterate having no knowledge of legal intricacies. It is for this reasons they allegedly failed to approach the authority below under Section 28-A of the Act for award of the compensation at par their co-sharers and similarly situated persons, who had approached the reference Court below by fling the application under Section 18 of the Act. 6. Therefore, the moot question arises for our determination is as to whether the petitioners, either are co-sharers in the land of which the market value has been redetermined by the reference Court below or similarly situated persons, whose lands have also been acquired and on their application under Section 18 of the Act learned reference Court below has enhanced the compensation. In order to answer this poser we have gone through the provisions contained under the Act. Except for Section 28-A, we could not lay our hands on any other provisions, which provides for redressal of the grievances of the petitioners. The provisions contained under Section 28-A of the Act reads as follows:- "28A. Re-determination of the amount of compensation on the basis of the award of the Court. Except for Section 28-A, we could not lay our hands on any other provisions, which provides for redressal of the grievances of the petitioners. The provisions contained under Section 28-A of the Act reads as follows:- "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 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) The Collector shall, on receipt of an application under sub-section (1) may, conduct an inquiry after giving notice to all the person as 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 subsection (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 under Section 18." 7. The Hon'ble Supreme Court in Ramsingbhai Jerambhai versus State of Gujrat & Another, (2018) 16 SCC, 445, has held as under: "3. It is clear from the opening words of the provision that the redetermination under Section 28A is available only in respect of an "Award" passed by the "court" under Part III of the Act, comprising Sections 18 to 28A (both inclusive). It is clear from the opening words of the provision that the redetermination under Section 28A is available only in respect of an "Award" passed by the "court" under Part III of the Act, comprising Sections 18 to 28A (both inclusive). The "court" referred to in Section 28A of the Act is the court as defined under Section 3(d) to mean "... a principal civil court of original jurisdiction...". Thus, the judgment of the appellate court is not within the purview of Section 28A. It is also to be noted that the appellate courts under Section 54 are under Part VIII of the Act whereas the redetermination is only in respect of the Award passed by the Reference Court under Part III of the Act. (See Jose Antonio Cruz Dos R. Rodriguese & another v. Land Acquisition Collector & another). In its recent judgment in Bharatsing and others v. The State of Maharashtra and others, this Court has surveyed the decisions on this issue and reiterated the legal principle. 4. However, if the State/authorities/claimants have approached the higher Courts for reduction/enhancement of quantum of compensation, as the case may be, the Collector, under Section 28A of the Act, shall wait till a decision is finally rendered and thereafter award the compensation as per the modified verdict of higher Courts. 5. What the appellant seeks is redetermination of compensation under the Act in terms of the judgment of the High Court passed under Section 54 of the Act. In view of the settled legal position which we have explained above, the appellant is not entitled to such a relief; his entitlement, if any, is only in terms of Section 28A of the Act based on the award of the Reference Court." 8. It is thus seen that in those cases where the amount of compensation is redetermined by the Court in an application filed under Section 18 of the Act, the persons interested in all other land covered by the same notification issued under Section 4 sub-section (1) of the Act and aggrieved by the award of the Collector, are also entitled to the award of the enhanced amount of compensation irrespective of they failed to make a reference within the stipulated period under Section 18 of the Act. They, however, can exercise such right vested under Section 28-A within the stipulated period of three months from the date of pronouncement of award by the Court, of course, on deduction of the time taken for obtaining certified copy of the award. 9. Admittedly, the petitioners have not exercised their right of approaching the competent authority under Section 28-A of the Act within the stipulated period. The explanation thereto as set forth in the writ petition is that due to poverty, illiteracy and being rustic villagers, they failed to make a reference under Section 18 of the Act and ultimately to approach the competent authority to have the benefit of Section 28-A of the Act within the stipulated period. 10. Admittedly, the Land Acquisition Act is beneficial legislation. In a case titled Bir Wati & Others versus Union of India & Another, Civil Appeal No. 8938 of 2011, decided on 17.8.2017, the apex Court while interpreting the scope of Section 28-A of the Act and taking into consideration the facts brought on record by the land owners that the bread earner in the family had expired during the pendency of the proceedings before the Collector, secondly, one of the appellants also expired during the pendency of the appeal and thirdly, the appellants being illiterate and unaware of the proceedings pending for years together even after passing of the award by the Court and also that they were unaware of the legal and procedural requirement prescribed under the Act and with a view to do complete and substantial justice to the appellants had condoned the delay as was occurred and permitted them to file an application under Section 28-A of the Act within three months from the date of judgment before the competent authority with a direction to such authority to hold inquiry as contemplated under Section 28-A for determining the compensation, he found payable to the appellants-claimants under the Act. In view of the delay on their part, they, however, were not held entitled to interest of any kind. 11. Similar are the facts and circumstances of this case for the reasons that the petitioners belong to peasantry class residing in rural area. In view of the delay on their part, they, however, were not held entitled to interest of any kind. 11. Similar are the facts and circumstances of this case for the reasons that the petitioners belong to peasantry class residing in rural area. They cannot be expected to have knowledge of the legal intricacies like their rights to make a reference under Section 18 of the Act and their right to claim the compensation at par granted to the similarly situated persons by the Court in a reference petition under Section 18 of the Act. The poverty and illiteracy is also one of the reasons therefor. 12. In these circumstances coupled with the factum of the compensation initially awarded to the petitioners by the Collector stands redetermined by the reference Court while deciding the reference made under Section 18 of the Act by co-sharers of the petitioners/persons interested in the other lands covered by same notification and also that the petitioners are rustic villages having no knowledge of legal intricacies, they have the right to resort to the remedy available to them under Section 28-A of the Act irrespective of the delay occurred to exercise such right because in view of the law laid down by the apex Court in Bir Wati's case supra, the delay as occurred deserves to be condoned. 13. The competent authority, in case, held them entitled to the award of compensation at the enhanced rates in terms of the award of the Court in that event they, however, shall not be entitled to claim any kind of interest till determination of their claim by the competent authority under Section 28-A of the Act. 14. In view of what has been said hereinabove and in the given facts and circumstances, we dispose of all the writ petitions with a direction to the petitioners to approach the Collector Land Acquisition, the second respondent by way of an application under Section 28-A of the Act within a month from today. On their fling the application, the second respondent shall hold inquiry as contemplated under Section 28-A of the Act and determine as to whether they are entitled to the compensation at the enhanced rates in view of the award of the reference Court Annexure R-1/2 to the reply filed in the writ petition by respondent No. 1. On their fling the application, the second respondent shall hold inquiry as contemplated under Section 28-A of the Act and determine as to whether they are entitled to the compensation at the enhanced rates in view of the award of the reference Court Annexure R-1/2 to the reply filed in the writ petition by respondent No. 1. In case they are held entitled to the enhanced amount of compensation, they would not be entitled to claim interest of any kind due to delay on their part, of course, if the payment of the enhanced compensation is made to them or the same deposited within three months from the date of determination of the application under Section 28-A of the Act. In default, if any, on the part of respondent No. 1 in paying the enhanced amount of compensation within the stipulated period, the same shall be payable together with interest @6% per annum from the date of determination of the application by the Collector. All the writ petitions stand accordingly disposed of. Pending applications, if any, shall also stand disposed of.