The properties belonging to the petitioners in the captioned writ petitions, having different extent and covered by different notifications issued for different purposes, were acquired under the Land Acquisition Act, 1894 (for short 'L.A.Act') after following the procedures for acquisition. Whether an application for re- determination of compensation under section 28A of the L.A.Act can be maintained only if it is made on the basis of an award of the Court on a reference under section 18 of that L.A Act? This question carrying a cleavage of opinion involves in all these cases and therefore, they are taken up for joint hearing and disposal.
2. For the disposal of these cases, narration of facts of each case is uncalled for and hence, the general issue alone need be stated succinctly. In respect of the properties acquired from the petitioners, awards under section 11 of the L.A.Act were passed in their favour. None of the petitioners filed effective application for enhanced compensation under section 18 of the L.A.Act. The petitioners filed applications for re-determination of compensation under section 28A of the L.A Act and such applications were considered and rejected holding that the judgments relied on rather, the awards relied on, by the respective applicants for the purpose of seeking re-determination of compensation were not passed on a reference under section 18 of the L.A Act and therefore, in the light of the provisions under section 28A of the L.A.Act and also of decision of this Court in Haji A. Abdul Rashid v. Spl. Tahsildar [2008 (1) KLT 974], re- determination of compensation is impermissible under section 28A of the L.A.Act. In fact, it was held that an award passed on a reference to Court under section 28A(3) of L.A Act could not be the basis for re- determination of compensation under section 28A of L.A.Act. Aggrieved by the same, they filed applications for reference to Court under section 28A(3) of the L.A.Act. In W.P.(C).Nos.25968 of 2013, 7563 of 2011 and 25939 of 2013, those applications were also rejected assigning the same reasons. In other cases, the applications filed under 28A(3) of the L.A.Act are pending. The learned Government Pleader, supporting the impugned orders, submitted that a re- determination of compensation under section 28A could be made only based on an award of the Court passed on a reference under section 18 of the LA Act in the light of the decision in Haji A. Abdul Rashid's case (supra). The contention of the petitioners is that the reason assigned in the impugned orders for rejecting applications under section 28A as also assigned for rejecting the applications under section 28A(3) in W.P.(C).Nos.7563 of 2011, 25939 of 2013 and 25963 of 2013 is absolutely unsustainable in view of an earlier decision of this Court in Joseph v. District Collector [2004 (2) KLT 1029] holding a contra view.
3. I have heard the learned counsel for the petitioners in the captioned writ petitions and also the learned Government Pleader.
4. As noticed hereinbefore, the reason for rejection of the applications under section 28A as also the applications under section 28A(3) in some of the cases mentioned hereinbefore, is that the concerned applicant sought for re-determination of the amount of compensation under section 28A, not based on an award passed on a reference made under section 18 of the L.A.Act whilst based only on award passed on a reference under section 28A(3) of the L.A.Act. As noticed hereinbefore, the said order is in tune with the decision in Haji A. Abdul Rashid's case (supra) but, it goes against the decision in Joseph's case (supra). In Joseph's case (supra), this Court held that to maintain an application under section 28A for re-determination of amount of compensation, it is not necessary that the Court award relied on by the applicant should be one passed on a reference made under section 18 of the L.A Act. In Haji A. Abdul Rashid's case (supra), rendered later, another learned Judge held that an application under section 28 A of L.A.Act for re-determination of amount of compensation could be made only based on a judgment of reference court under section 18 of the L.A.Act. Thus, it is obvious that there is a direct conflict between these two decisions on the same point. In the said circumstances, the learned counsel for the petitioners sought for a reference of the issues for consideration by a Division Bench. However, in the light of the decision of a Division Bench of this Court in District Collector v. Muhammed Kunhi [2012(4) KLT 360], I do not think it appropriate or necessary to refer the issue for such consideration. To ascertain the position whether the issue involved in these cases was virtually the very issue considered by the Division Bench in Muhammed Kunhi's case (supra), only a glance at paragraphs 1 and 7 of the said decision is required. Paragraphs 1 and 7 therein, in so far as they are relevant, read thus:-
“1............................The learned Single Judge allowed the Writ Petitions holding, an application filed under S.28A of the Act can be submitted within three months from the date of award passed by a reference court on an application filed under S.28A(3) of the Act and also on the basis of an award passed by the court after remittance under S.54 of the Act. Aggrieved by the same, the present appeals are filed by the State.
7.Aggrieved by the same, the above appeals are filed, contending that the definition of the word 'award' under S.28A(1) of the Act is wrongly interpreted, which is quite contra to various decisions and judgments of the Apex Court; the learned Single Judge totally ignored the decisions of the Apex Court holding that an application under S.28A of the Act can be made only on the basis of an award passed by the Principal Court of Original Jurisdiction and not on the basis of the judgment passed by the Appellate Court; when the Act envisages the application should be within three months from the date of judgment of the reference court and in the light of the beneficial provision made under S.28A of the Act, if the person, who failed to file application under S.18 of the Act for enhancement of compensation, fails to make application under S.28A(1) of the Act within the time limit prescribed, second application is not maintainable; similarly, when three months period of limitation expires by efflux of time, none of the later awards could provide any assistance to revive the lapsed time under S.28A (1), nor provide fresh cause of action. Challenging the judgment of the learned Single Judge on various grounds, the appellants have sought for allowing the appeals by setting aside the judgment of the learned Single Judge.”
5. The Division Bench considered the question after referring to the decisions of the Hon'ble Apex Court reported in Union of India v. Munshi Ram [2006 (2) KLT 992 (SC)], Ramakrishna Rao v. Singareni Collieries Company Ltd. 2010(4) KLT 255 (SC) and also Babu Ram v. State of U.P [(1995) 2 SCC 689] and certain other decisions including Joseph's case (supra) and Haji A. Abdul Rashid's case (supra), the decisions which are allegedly in direct conflict. It is true that the Division Bench did not pointedly consider whether there is any conflict between the decisions in Joseph's case (supra) and Haji A. Abdul Rashid's case (supra) and in fact, such a question was not then, posed for consideration. Nonetheless, after considering the entire aspects, the Division Bench held that the provisions under section 28A was enacted to give one more opportunity to the land owners who did not or could not seek reference under section 18 of the L.A Act to seek higher compensation and therefore it could be termed as beneficial legislation so far as land losers are concerned. It was, therefore, held that there has to be a liberal interpretation with a purpose to champion the policy of the legislation giving opportunity to the land owners who miss their chance by not filing an application under section 18 of the L.A.Act. In paragraph 17 therein it was held thus:-
“From the above decisions and provision of law the following principles emerge out. The goal of equality enshrined in the preamble of Constitution and Articles 38, 39 and 46 are attempted to be made a reality by the legislature, so far as payment of compensation to the losers of the land for the benefit of the State, its agencies/ instrumentalities and even private parties. Acquisition of land deprives the agriculturist of his livelihood and some times throws them to the streets. S.28A envisages solace to such owners of land whose lands are also acquired under the same notification but for various reasons like poverty, ignorance and other inabilities could not join others in seeking reference under S.18 of the Act for enhancement of compensation. The scheme under S.28A thrives at removing the disability suffered by the owners of land and removes the inequality, if any, so far as payment of compensation. This gives one more opportunity to the land owners who did not or could not seek reference under S.18 to seek higher compensation. It could be termed as beneficial legislation so far as land losers. Therefore, there has to be a liberal interpretation with a purpose to champion the policy of the legislation giving opportunity to the owners of land who miss their chance by not filing an application under S.18 of the Act.”
Further, in paragraphs 19 and 21 thereunder it was held:-
“19............A person who gets benefit of higher compensation under S.28A(1) of the Act can make an application to the Collector under S.28A(3) for making a reference to the court as defined in S.3 (d) of the Act and this right cannot be denied.
20.................As long as the applicant fulfills the conditions envisaged under S.28A, there will be no embargo to proceed with the application. If an award is passed by Reference Court after remand of the matter by appellate court, it is also an award under S.28A.”
(emphasis added) Though the appeals were allowed, they were allowed with a direction for reconsideration of the applications under section 28A of the L.A.Act in the light of the observations in the judgment.
6. In the light of the said judgment and the observations thereunder made by the Division Bench it will not be appropriate to consider certain other facets of the issue which would support the view taken thereunder. In that context it is relevant to refer to section 28A of the Act in so far as it is relevant for this case, which reads thus:-
“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.
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(3) Any person who has not accepted the award under sub-section (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.”.
(emphasis added)
7. The expression “under this Part” occurring in section 28A assumes relevance in the context of the issues involved in this case. Undoubtedly, the said expression refers to Part III of the L.A.Act. Therefore, a scanning of the provisions under section 28A would reveal that if the award passed by a court of reference is one falling under Part III of the L.A.Act and if in that award the court of reference allowed the applicant concerned any amount of compensation in excess of the amount awarded by the Collector under Section 11 of the L.A.Act, then subject to the satisfaction of the other conditions enjoined under section 28A of the L.A.Act, an application for re-determination could be maintained based on the amount of compensation awarded by the court of reference under that award. In other words, such an award passed under Part III of L.A.Act could be the basis for re-determination of the amount of compensation under section 28A of the L.A.Act. A perusal of the provisions under section 28A(3) of the L.A.Act would reveal that any person who has not accepted the award passed under sub-section (2) of section 28A of the L.A.Act may, by a written application require the Collector for reference of the matter for determination of the Court and in such event the provisions of sections 18 to 28 of the L.A.Act shall, so far as may be, apply to such reference under section 18. In the said circumstances, on a written application for reference under section 28A(3) of the L.A.Act by a person who has not accepted the award under sub-section (2) if a court of reference passes an award it would definitely be an award passed under Part III of the L.A.Act and in such event, subject to the satisfaction of the other conditions under section 28A of the L.A. Act another person could maintain an application for re-determination of the amount of compensation under section 28A based on the said award. As regards an award passed by a reference court after the remand of a matter by the appellate court in an appeal under section 54 of the L.A.Act it would also fall under the term 'award' for the purpose of section 28A in view of the decision in Muhammed Kunhi's case (supra) that an award passed by a reference court after remittance under section 54 of the L.A.Act that such an award would also be an award for the purpose of section 28A. In the said circumstances and in the light of the decision of the Division Bench in Muhammed Kunhi's case (supra) the decision in Haji A.Abdul Rashid's case (supra) is no more a good law. Hence the rejection of applications filed by the petitioners under section 28A as also section 28A(3) assigning the ground mentioned hereinbefore that an application for re-determination of compensation could be made only on the basis of an award of reference court under section 18 of the L.A.Act cannot be sustained.
In the result, the impugned orders viz., Exts.P1 and P3 in W.P. (C).No.25939 of 2013, Exts.P3, P3(a), P3(b), P5, P5(a) and P5(b) in W.P.(C).No. 7563 of 2011, Ext.P3 in W.P.(C).No.25968 of 2013, Ext.P2 in W.P.(C).No.19425 of 2014, Ext.P1 orders in W.P.(C). Nos.19416 of 2014 and 23434 of 2013 are set aside. Consequently, the respondents are directed to re-consider the applications filed by the petitioners under section 28A of L.A.Act in the light of this judgment made herein within three months from the date of receipt of a copy of this judgment.
Sd/-
C.T. RAVIKUMAR (JUDGE) spc/ C.T. RAVIKUMAR, J.
JUDGMENT September, 2010