enhanced in an appeal presented by the claimants who challenged the
decision of the reference Court by filing reference applications, petitioners
having secured the first stage of benefit on the strength of determination of
amount of compensation by reference Court, cannot be permitted to present
successive applications seeking redetermination of amount of
compensation. Redetermination of amount of compensation, as
contemplated under section 28A of the Land Acquisition Act, is on the basis
of award passed under Part III of the Act and, shall not be referble to an
appellate decree by the High Court under Part VI of the Act.
Judgment delivered by this court in Writ Petition no. 2127/2014 in
the matter of Eknath Gangaram Sabale and others Vs. The State of
Maharashtra and others, decided on 21.04.2014, is also referred. However,
in the aforesaid matter, the case of claimants was not in respect of
successive application under section 28A of the Act. As such, reliance
placed on aforesaid judgment is misplaced. Judgment in the matter of
Datta Rao, Subhash and Uttam Rao Vs. The State of Maharashtra reported in
2014(3) Mh.L.J. 923 needs to be looked into wherein, it has been
concluded that second application presented under section 28A of the Land
Acquisition Act in pursuance to judgment of the learned Single Judge in
first appeal, is untenable in law.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 309 OF 2015
Bharatsing s/o Gulabsingh Jakhad
& others
VERSUS
The State of Maharashtra
& others
CORAM : R.M. BORDE &
P. R. BORA, JJ.
PRONOUNCED ON : 13th AUGUST, 2015.
1. Petitioners, whose landed property has been acquired for public
purpose, are seeking directions against respondents to take decision on the
application tendered under section 28A of the Land Acquisition Act, for
redetermination of amount of compensation on the basis of judgment
delivered by this Court in First Appeal No. 569/1997, decided on
23.03.2009.
2. Agricultural lands belonging to petitioners have been acquired for
development of irrigation project. The Special Land Acquisition Officer, after
observing the procedure prescribed under Land Acquisition Act, declared
award on 04.06.1977. Being aggrieved and dissatisfied with the award
passed by the State Authority, claimant, covered by the same section 4
notification as in the case of petitioners, presented Land Acquisition
Reference no. 129/1983, whereas one another claimant presented separate
reference application being Land Acquisition Reference No. 123/2003, which
applications came to be decided by the 2nd Additional District Judge,
Aurangabad, on 01.10.1992. The reference Court was pleased to direct
enhancement in the amount of compensation payable to claimants.
Petitioners herein, in view of judgment and order passed by the 2nd
Additional District Judge, Aurnagabad, on 01.10.1992, tendered applications
under section 28A of the Land Acquisition Act for redetermination of
amount of compensation in accordance with the decision delivered by the
reference Court. Applications tendered by petitioners came to be allowed
and the amount of compensation payable to petitioners herein was
redetermined by the Collector/Land Acquisition Officer on 01.10.1992 on
the basis of judgment delivered by the reference Court. The acquiring body,
being dissatisfied with the award passed by the reference Court, presented
appeal bearing First Appeal No. 569/1997 before this Court. Claimants also
presented crossobjection claiming enhancement in amount of
compensation. This Court, after hearing the parties, was pleased to dismiss
the first appeal presented by acquiring body and allowed the cross objection
tendered by claimants thereby granting compensation at the rate of
Rs. 18,000/ per acre to them. Petitioners herein, on the strength of
judgment delivered by this Court in first appeal, presented second
application under section 28A of the Land Acquisition Act, seeking redetermination
of amount of compensation. According to petitioners, the
Land Acquisition Officer is reluctant to decide the application and as such,
claims that suitable directions be issued to the Land Acquisition Officer.
3. Section 28A of the Land Acquisition Act stipulates that wherein an
award under this Part (Part III), 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, subsection (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, may 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 redetermined on the basis of the amount of compensation awarded by
the Court. Entitlement of claimant who has not presented reference
application challenging the award of the Collector to claim redetermination
of amount of compensation is on the strength of award passed by the
reference Court on an application tendered by another claimant covered by
same section 4 notification. Redetermination of amount of compensation
payable under section 28A is in reference to award under Part III. The term
'award' shall necessarily mean an award of the Court or an award of the
Land Acquisition Officer. Entitlement of claimant to claim redetermination
of amount of compensation in the event he does not present application for
reference to the Court, is only in the matters of enhancement of amount of
compensation by the Court in reference application under section 18 of the
Act presented by a claimant covered by same section 4 notification. In the
instant matter, petitioners herein did tender applications to the Collector in
exercise of rights under section 28A of the Land Acquisition Act, which
came to be decided in the year 1992. Again, the claimants have presented
successive application seeking redetermination of amount of compensation
under section 28A of the Act on the strength of judgment of this Court in
First Appeal No. 569/1997 decided on 23.03.2009, which application,
according to us, is not entertainable.
4. Petitioners, placing reliance on judgment in the matter of Union of
India Vs. Munshi Ram and others reported in (2006) 4 Supreme Court
Cases 538, contend that compensation payable to claimants who have
applied under section 28A of the Land Acquisition Act, is the enhanced
compensation decreed by the reference Court, the decree must be
understood to mean the decree of the reference Court as modified in appeal
by the higher Courts. In the reported matter, after declaration of award by
the Land Acquisition Officer, reference applications were presented by
claimants, which were allowed and, the amount of compensation payable to
claimants was enhanced. The award passed by the reference Court was a
matter of challenge at the instance of Union of India as well as claimants in
first appeal. The learned Single Judge directed further enhancement in the
amount of compensation payable in respect of block A and B lands. Letters
Patent Appeals presented by Union of India were dismissed on 17.06.1994.
The Union of India presented Special Leave Petition against dismissal of
Letters Patent Appeals which were ultimately allowed and the amount of
compensation payable to claimants was reduced. In the meanwhile, during
pendency of Special Leave Petition before the High Court, some of the
claimants presented applications under section 28A of the Land Acquisition
Act, seeking redetermination of amount of compensation payable to them
on the basis of judgment of reference Court, within prescribed period of
limitation. The order redetermining compensation under section 28A of the
Act was passed on 12.11.1990. The Union of India challenged various redetermination
orders passed by the Collector by filing writ petitions before
High Court which were dismissed on the ground of delay. Special Leave
Petitions were presented by Union of India against the order of dismissal of
writ petitions. While dealing with the petitions presented by Union of India,
the Supreme Court observed that High Court ought not have dismissed
the petitions presented by Union of India for the reason that order directing
redetermination of amount of compensation on the basis of award passed
by the Collector needs to be looked into by the High Court. Such
observations are made in the context that claimants who presented
reference applications and, the orders passed in reference applications,
which were carried to the High Court and the Supreme Court, are getting
less amount than the claimants who did not challenge the orders by filing
reference application. Claimants who did not challenge the award before
reference Court are likely to get more amount than those who challenged
the orders before the reference Court and ultimately, in an appeal presented
by the Union of India to the Supreme Court, the amount awarded by the
reference Court has been reduced. Beneficiaries are those who tendered
application on the strength of decision in reference matters which were
carried upto the Supreme Court, however, those who fought the litigation
are put to disadvantagious situation. In this context, the Supreme Court
observed that reduction in the amount of compensation by the Supreme
Court, on consideration of appeals challenging the decision of the High
Court and the reference Court, is to be taken note of and, redetermination
of amount of compensation payable to such of those claimants, who did not
present reference applications, need to be brought at par with the claimants
who challenge the award before reference Court.
5. In the instant matter, though the amount has been directed to be
enhanced in an appeal presented by the claimants who challenged the
decision of the reference Court by filing reference applications, petitioners
having secured the first stage of benefit on the strength of determination of
amount of compensation by reference Court, cannot be permitted to present
successive applications seeking redetermination of amount of
compensation. Redetermination of amount of compensation, as
contemplated under section 28A of the Land Acquisition Act, is on the basis
of award passed under Part III of the Act and, shall not be referble to an
appellate decree by the High Court under Part VI of the Act.
6. Judgment delivered by this court in Writ Petition no. 2127/2014 in
the matter of Eknath Gangaram Sabale and others Vs. The State of
Maharashtra and others, decided on 21.04.2014, is also referred. However,
in the aforesaid matter, the case of claimants was not in respect of
successive application under section 28A of the Act. As such, reliance
placed on aforesaid judgment is misplaced. Judgment in the matter of
Datta Rao, Subhash and Uttam Rao Vs. The State of Maharashtra reported in
2014(3) Mh.L.J. 923 needs to be looked into wherein, it has been
concluded that second application presented under section 28A of the Land
Acquisition Act in pursuance to judgment of the learned Single Judge in
first appeal, is untenable in law. It is contended by petitioners that the
issue as to whether the award of the Court i.e. Civil Court under section 26
of the Act on reference under section 18 of the Act would include the
judgment and decree of the appellate Court under section 54, is pending
consideration before the Larger Bench and as such, the Collector may be
directed to deal with the applications tendered by petitioners.
7. For the reasons recorded above, the legal position, as it stands, is
that, the application for redetermination of amount of compensation is
entertainable on the basis of award passed under Part III of the Act, which
is evident from the language of the section itself. The judgment of the
Supreme Court in the matter of Union of India and another Vs. Pradeep
Kumari and others reported in AIR 1995 SC 2259 deserves to be looked
into. It is observed in paragraph no. 11 of the judgment that the object
underlying section 28A would be better achieved by giving the expression
“an award” in section 28A its natural meaning as meaning the award that is
made by the Court in Part III of the Act after coming into force of section
28A. If the said expression in section 28A(1) is construed, a person would
be able to seek redetermination 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 into force of Section 28A;
(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 28A 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 redetermination of amount of
compensation is sought; and
(vi) Only one application can be moved under
Section 28A for redetermination of compensation by
an applicant.
8. In view of discussion as above, we are of the view that the successive
application tendered by petitioners seeking redetermination of amount of
compensation is not entertainable and as such, the direction as requested
by petitioners need not be issued. Writ petition is devoid of substance
hence stands rejected.
( P. R. BORA ) ( R. M. BORDE )
No comments:
Post a Comment