Kendriya Karamchari
S.G.N.Samiti Ltd. Vs. State of U.P. & ANR [2008] INSC 1893 (7 November
2008)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOs. 6850-6851 OF 2003
KENDRIYA KARAMCHARI SEHKARI GREH NIRMAN SAMITI LTD., NOIDA ... APPELLANT VERSUS
WITH CIVIL APPEAL NOs. 6854-6855 OF 2003 V. SINGH ... APPELLANT VERSUS WITH
CIVIL APPEAL NOs. 6852-6853 OF 2003 VIJAY SINGH ... APPELLANT VERSUS WITH CIVIL
APPEAL NOs. 6856-6857 OF 2003 CHARAN SINGH ... APPELLANT VERSUS CIVIL APPEAL
NOs. 6858-6859 OF 2003 2 CHARAN SINGH ... APPELLANT VERSUS WITH CIVIL APPEAL
NO. 6860 OF 2003 AJAY SINGH ... APPELLANT VERSUS WITH CIVIL APPEAL NO. 6861 OF
2003 A. SINGH ... APPELLANT VERSUS WITH CIVIL APPEAL NO. 6862 OF 2003 RAN SINGH
... APPELLANT VERSUS
3 C.K. THAKKER, J.
1.
In
the present group of appeals, the appellants have challenged the judgment and
final order dated September 03, 2001 passed by the High Court of Judicature at
Allahabad in Civil Miscellaneous Writ Petition No. 31958 of 2001 and companion
matters as also the order dated January 04, 2002 passed in Review Civil
Miscellaneous No. 85091 of 2001 and cognate matters.
2.
Since
common questions of fact and law have been involved in all these appeals, it is
appropriate to deal with and decide them by a common judgment.
3.
To
appreciate the controversy raised by the appellants, it may be appropriate to
narrate the facts of the case in Civil Appeal Nos. 6850-6851 of 2003. According
to the Kendriya Karamchari Sehkari Grah Nirman Samiti Ltd.(`the Samiti' for
short)-appellant herein, proceedings under Land Acquisition Act, 1894 4
(hereinafter referred to as `the Act') for acquisition of 325.353 acres of land
of village Chhalera, Pargana & Tehsil Dadri, District Gautam Budh Nagar had
been initiated. The land was sought to be acquired for public purpose, viz.,
Planned Development of New Okhla Industrial Development Authority (NOIDA),
Gautam Budh Nagar. Preliminary notification under Section 4 read with Section
17 of the Act by applying urgency clause, was issued on October 30, 1987. It
was published in the Official Gazette on February 27, 1988. The final
notification under Section 6 read with Section 17 of the Act was issued on June
12, 1989 and published in Official Gazette on December 14, 1989. Notices were
published in the newspaper indicating acquisition of land of various
land-owners on February 05, 1990. Award was made by the Special Land
Acquisition Officer, NOIDA, District Ghaziabad in terms of Dispute No. 135 of
1988-92 on February 04, 1992. According to the appellant, the Land 5
Acquisition Officer awarded compensation to the land-owners at the rate of
Rs.43.64 ps. per sq. yard. It may be stated that according to the appellant-Samiti,
it purchased a part of the land on November 15, 1990. The land was transferred
in the name of the Samiti. It is the case of the appellant Samiti that several
land-owners were not satisfied with the amount of award offered by the Land
Acquisition Officer and they sought Reference under Section 18 of the Act. More
than 50 such References, therefore, came up for consideration before the
Reference Court. The Court of the Additional Upper District Judge-X, Ghaziabad
by judgment and order dated August 28, 2000 enhanced the compensation awarded
to the land-owners by holding that the land-owners were entitled to a sum of
Rs.148.75 ps. per sq. yd. with 30% solatium and 12% interest per annum. It was
also observed that the amount paid pursuant to the award passed by the Land
Acquisition Officer would be adjusted while making payment 6 by the
authorities as per the order in Reference.
4.
So
far as the appellant-Samiti is concerned, it could not make Reference along
with other land-owners under Section 18 of the Act. It, therefore, filed an
application through its President Charan Singh, son of late Budh Singh on
September 06, 2000 to the Additional District Magistrate (Land Acquisition),
Gautam Budh Nagar under Section 28A of the Act, inter alia, praying therein
that the land of the applicant had been acquired for public purpose, the
applicant, who was the President of the Samiti, had purchased the land from the
Samiti in December, 1990 and his name had also been entered in the Revenue
Record. It was also stated by him that he could not challenge the Award passed
by the Land Acquisition Officer. The Reference Court, however, decided the
Reference in other cases and granted enhanced compensation. The same benefit,
therefore, should be allowed to him 7 also on the basis of the order passed by
the Reference Court. The said application was made on September 06, 2000 i.e.
within a period of three months from the date of decision in the Reference.
5.
The
main grievance of the applicant was that though in the light of the decision of
Reference Court allowing the Reference and granting enhanced compensation to
other land- owners, the appellant also ought to have been granted the similar
benefit and he ought to have been paid additional amount as held by the
Reference Court, no decision had been taken by the Additional District
Magistrate and his application was kept pending. According to the applicant,
probably it was done keeping in view the fact that being aggrieved by the order
passed by the Reference Court, the authorities preferred appeal being FAO No.
456 of 2001, etc. and the order passed by the Reference Court was challenged in
the High Court. It also appears that the High Court entertained those 8
appeals and also passed interim order of stay on September 17, 2001. By the
said order, operation of the order passed by the Reference Court was stayed on
condition that NOIDA would deposit the entire amount awarded under the
Reference within two months from the date of the order. The claimants were
permitted to withdraw 25% of such amount without furnishing security and
further 25% on furnishing security. The remaining amount (50%) was ordered to
be invested in Fixed Term Deposit in a Nationalized Bank.
6.
The
appellant also felt that the action of keeping pending the application of the
appellant instituted under Section 28A of the Act was taken in pursuance of
policy decisions taken by the State vide two Government Orders, dated January
14, 1994 and June 13, 2001. According to the appellant, the Government Orders
provided that if an order passed by a Reference Court enhancing compensation is
challenged by the authorities 9 and the matter is pending before a High Court
or the Supreme Court and an application under Section 28A has been made by the
persons who had not sought Reference, such applications should be kept pending
till the matter is finally disposed of by the High Court as well as by the
Supreme Court and no enhanced compensation should be paid to the applicants
under Section 28A of the Act at the enhanced rate.
7.
The
appellant being aggrieved by the non-disposal of his application under Section
28A of the Act, because of Government Orders, challenged the validity of both
the Government Orders dated January 14, 1994 and June 13, 2001 by filing Writ
Petition No. 31958 of 2001 in the High Court of Judicature at Allahabad.
Similar writ petitions were filed by other land-owners.
8.
The
Division Bench of the High Court, however, on a totally irrelevant and
extraneous ground, viz., that the underlying object of 10 Section 28-A of the
Act was to protect `little Indians' who because of their poverty and ignorance,
could not file an application seeking Reference under Section 18 of the Act
which was not the position in the case on hand.
According to the High
Court, since the petitioner before the High Court could not be said to be a
`little Indian' who could not seek Reference due to `poverty or ignorance', his
application was liable to be dismissed. The Court, in this connection, referred
to and relied upon a decision of the said Court in Nanak Chand & Ors. v.
State of U.P., (1996) 2 All WC 1294. The petition was accordingly dismissed.
9.
The
appellant was convinced that the High Court was wholly wrong in dismissing the
writ petition on the ground which was not at all germane or relevant and Nanak
Chand had no application as it was decided in completely different set of
circumstances. He, therefore, filed Review Petition but by a cryptic order 11
even Review Petition was dismissed. The appellant, therefore, has approached
this Court by filing the present appeal.
10.
Similar
question has been raised by the appellants in all other matters.
11.
On
April 12, 2002, notice was issued.
Similar notices were
issued in other matters.
Leave was granted on
August 29, 2003. The matters were thereafter placed for final hearing and that
is how the matters are before us.
12.
We
have heard learned counsel for the parties.
13.
The
learned counsel for the appellants submitted that the order passed by the High
Court was totally erroneous and wholly ill- founded. The question before the
High Court was not as to maintainability of application under Section 28A of
the Act. The controversy was limited to the validity or otherwise of Government
Orders of 1994 and 2001. The High Court misconstrued the prayer of the appellants
12 and dismissed the petition which was illegal and improper. The counsel also
urged that the High Court was wrong even in interpreting Section 28A of the Act
as held by this Court in several cases. The only requirement of application
under Section 28A of the Act is that an order must have been passed by a
Reference Court under the Act and the person moving an application under
Section 28A must not have sought such Reference. Admittedly, in the instant
case, the Award passed by the Land Acquisition Officer and the offer made by
him was not accepted by certain land-owners and the Award was challenged by
them. The appellant was not one of those land-owners. Reference Court enhanced
the amount of compensation. It was, therefore, open to the appellant to seek
similar relief by invoking Section 28A of the Act. He, accordingly, made an
application. The Additional District Magistrate did not reject the application
of the appellant on the ground that no such application was maintainable. He,
13 however, did not decide it. The grievance of the appellant-landowner was
limited to a direction to the Additional District Magistrate to decide the
application. The High Court, however, held that the application filed by the
appellant under Section 28A was itself not maintainable which has caused
serious prejudice to the appellant.
14.
The
counsel submitted that the underlying object of Section 28A of the Act is to
treat equals equally and the point is concluded by several pronouncements of
this Court. Hence, even if a person is not poor or `little Indian', he cannot
be deprived of the benefit of Section 28A. On that ground also, the order
passed by the High Court deserves to be set aside. A prayer was, therefore,
made to quash and set aside order passed by the High Court as also two
Government Orders challenged in the writ petition by issuing a writ of mandamus
ordering the respondents to act as per the order passed by the Reference Court,
to 14 decide the application under Section 28A of the Act and to pay enhanced
compensation to the appellants.
15.
The
learned counsel for the respondent-authority, on the other hand, supported the
order passed by the High Court. He submitted that the Statement of Objects and
Reasons behind enacting Section 28A of the Act was explicitly clear. The
provision has been inserted in the Act with a view to protect `little Indians'
who due to poverty or ignorance of law could not challenge the Award passed by
the Land Acquisition Officer by seeking Reference. If a person who is otherwise
aware of legal provisions and is in a position to challenge the Award by
seeking Reference under Section 18 of the Act, he cannot take advantage of his
own in-action or negligence by claiming enhanced compensation in favour of
other persons who had sought Reference. It was also submitted that in any case,
after the decision by the Reference Court, if the State 15 or acquiring body
has challenged the legality and validity of the enhanced amount of compensation
in the High Court or in the Supreme Court and the matter is sub judice, no
amount can be paid to an applicant who has made an application under Section
28A of the Act inasmuch as the main controversy and the order on the basis of
which such application is made is pending adjudication before the superior
Court. The action of the Collector of not deciding the application, thus, is
strictly in accordance with law as also equitable and no prejudice can be said
to have been caused to the applicant.
16.
It
was also submitted that an application under Section 28A of the Act can be made
only by `person interested'. In the instant case, according to the respondents,
notification under Section 4 was issued in 1987 and notification under Section
6 was issued in 1989. Even according to the appellant, he purchased the
property in November, 1990 i.e. after both the notifications were issued and
published. He, therefore, by no stretch of imagination, can be termed as
`person interested'. On that ground also, the application under Section 28A of
the Act, was not maintainable and the appellant could not have filed a writ
petition nor he could have challenged the order passed by the High Court since
he had no interest in the land when the land was acquired. On all these
grounds, it is submitted that, the appeals deserve to be dismissed.
17.
Having
heard learned counsel for the parties, in our opinion, the appeals deserve to
be partly allowed.
18.
It
is no doubt true that a preliminary objection has been raised by the
respondents as regards locus of the appellant herein.
According to the
respondents, application under Section 28A was filed (Civil Appeal No. 6850 of
2003) by Charan Singh, son of late Shri Budh Singh in his individual capacity
and not for 17 and on behalf of the Samiti and such an application was not
maintainable. The contention of the appellant, on the other hand, is that the
objection raised by the respondents is not well founded inasmuch as the
application, which is produced on record, itself expressly recites that the
application has been made by the Samiti `through its President' Charan Singh.
It is true that the land was purchased by the appellant from the Samiti and his
name had been entered in Revenue Record. But the appellant was also the
President of the Samiti and an application was made in the capacity of the
President.
19.
We
would have entered into the said question provided it had been considered by
the High Court and appropriate decision had been taken thereon. The High Court,
however, has not decided the maintainability or otherwise of application and
locus standi of the appellant herein. The High Court, relying on Nanak Chand,
dismissed the writ petition holding that 18 the petitioner before the Court
could not be said to be a `little Indian' who could not seek Reference under
Section 18 of the Act because of `poverty and ignorance'. We, therefore, leave
the question of maintainability of application under Section 28A of the Act by
the appellant open.
20.
So
far as interpretation of Section 28A is concerned, it may be stated that the
said provision came to be inserted by the Land Acquisition (Amendment) Act,
1984 (Act 68 of 1984) with effect from September 24, 1984.
21.
The
said Section reads as under;
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 19 the Collector within
three months from the date of the award of the Court require that the amount of
compensation payable to him 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), conduct an inquiry
after giving notice to all the persons 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 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.
22.
In
the Statement of Objects and Reasons, for insertion of Section 28A, it was,
inter alia, observed;
20 "Considering
that the right of reference to the civil court under Section 18 of the Act is
not usually taken advantage of by inarticulate and poor people and is usually
exercised only by the comparatively affluent land- owners and that this causes
considerable inequality in the payment of compensation for the same or similar
quality of land to different interested parties, it is proposed to provide an
opportunity to all aggrieved parties whose land is covered under the same
notification to seek re-determination of compensation, once any one of them has
obtained orders for payment of higher compensation from the reference court
under Section 18 of the Act".
23.
The
provision came up for consideration before this Court in several cases. In the
leading case of Mewa Ram (Deceased) by his Lrs. & Ors. v. State of Haryana
through The Land Acquisition Collector, Gurgaon, (1986) 4 SCC 151, this Court held
that having regard to the Statement of Objects and Reasons of the Amendment
Act, it is clear that Section 28A is intended and meant for the inarticulate
and poor people who by reason of their poverty and ignorance have failed to
take advantage of the right of 21 Reference to Civil Court under Section 18 of
the Act. It was also held that the provision was not intended to reopen an
Award which had attained finality and was of binding nature.
24.
Again,
in The Scheduled Caste Co- operative Land Owning Society Ltd., Bhatinda v.
Union of India and others, (1991) 1 SCC 174, the Court held that once a
claimant has sought and secured a Reference under Section 18 of the Act and an
order is passed, he cannot thereafter invoke Section 28A of the Act for
re-determination of compensation.
25.
In
the well known decision in Babua Ram & Ors. v. State of U.P. & Anr.,
(1995) 2 SCC 689, this Court considered the question in detail. It was held
that before Section 28A of the Act can be invoked, a person must show that he
is person interested and is aggrieved as in respect of other lands covered by
the same notification under Section 4, higher compensation has been awarded. An
aggrieved person who had not made an application for 22 Reference under
Section 18 of the Act thus becomes entitled to apply under Section 28A of the
Act. The right to an aggrieved person under Section 28A arises only when the
Reference Court grants compensation in excess of the amount awarded by the
Collector under Section
11. It was also
observed that such an application can be made in writing by any `aggrieved'
person. The said expression would cover any interested person who had failed to
make an application for Reference under Section 18 and would not be confined to
those who received compensation under protest. It was also indicated that
Section 28A is a `complete Code' in itself providing substantive right to `an
aggrieved person' to claim compensation equal to that awarded to his neighbour
covered by the same notification under Section 4(1).
26.
In
Union of India & Anr. v. Pradeep Kumari & Ors., (1995) 2 SCC 736, this
Court discussed the object underlying Section 28A of 23 the Act and observed
that such object 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 the coming into force of Section 28A. If the
said expression in Section 28A(1) 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 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;
24 (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 re-determination of amount of compensation is sought; and (vi) Only one
application can be moved under Section 28A for re-determination of compensation
by an applicant.
27.
A
Constitution Bench of this Court in Union of India (UOI) & Anr. V. Hansoli
Devi & Ors., (2002) 7 SCC 273 held that dismissal of 25 an application
seeking reference under Section 18 on the ground of delay also would not come
in the way of the claimant for re-determination of compensation under Section
28A of the Act.
Such person can be
said to be a `person aggrieved' and would be entitled to make an application to
receive compensation provided the conditions of the said section are complied
with.
28.
From
the aforesaid decisions, in our judgment, the law is well settled and it is
that against an award, if the Reference Court allows the applicant and awards
any amount of compensation in excess of the amount awarded by the Land
Acquisition Officer under Section 11 of the Act, any person interested in the
land covered by the same notification may make an application under Section 28A
of the Act within the period specified in the said section and may seek the
same relief which has been granted to other land-owners by the Reference Court.
29.
We
are, however, of the considered opinion that the appellant is not entitled to
the relief he prayed in the writ petition before the High Court as well as
before us in the present proceedings so far as the direction to decide his
application under Section 28A of the Act is concerned. It is true that once
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 28A 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. But, it is equally true that if 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 (Supreme Court), the 27 Collector would be within his
power or authority to keep the application under Section 28A 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 January 14, 1994 and June 13,
2001.
30.
We
see no illegality in keeping the applications under Section 28A of the Act
pending till the issue is finally settled by the Court and a decision has been
arrived at.
31.
The
point is no longer res integra. In Babua Ram, a similar contention was raised
before this Court. It was submitted on behalf of the claimant invoking Section
28A of the Act 28 that once a Reference Court enhances the compensation and a
person similarly situated makes an application under Section 28A of the Act,
the Collector is bound to decide the application and grant enhanced
compensation. It was, therefore, submitted that the Collector/ Land Acquisition
Officer was under obligation to re-determine compensation by granting benefit
of the order of the Reference Court.
32.
Negativing
the contention, this Court observed;
"However, with a
view to avoiding uncertainty and fluctuation, it would be appropriate that, the
Collector, while paying compensation under Section 31, should explain in
vernacular language of the claimant informing all persons interested in the
compensation that they have a right to protest the compensation determined
under s. 11 before receiving the same; has right to seek reference in writing
under Section 18 to the civil court and that the application should be made
expressing the specific objections in writing within the limitation prescribed
under Section 18. In case of his failure to avail of the same, he would not be
entitled to further right 29 and remedy to seek higher compensation.
In case the claimant
to be illiterate, it should be properly explained to him in his mother tongue.
The statement made in this behalf by the Collector should be in the mother
tongue of the claimant.
The Collector should
append a certificate that it was truly, correctly and properly explained and
obtain the signature or thumb impression in token thereof and this should be
kept as part of the record of the award proceedings.
He should also
maintain a regular register in his office in the serietum duly signed by him
and sealed and be kept in the personal custody of the Collector. This would not
only obviate the hardship to the interested persons but also prevent corrupt
practices in fabricating the applications for reference after the bar of
limitation.
In this behalf, it is
also necessary that the Collector/L.A.O. should also maintain another register
for receipt of the applications under Section 28A indicating the date of its
receipt, seal of the office and personal signature of the Collector/L.A.O.
concerned and the receipt thereof duly communicated to the government or the
authorised officer in proviso to s. 11 of the Act".
33.
The
view in Babua Ram was reiterated in U.P. State Industrial Development Corpn.
Ltd. v. State of U.P. & Ors., (1995) 2 SCC 766.
There, the Court
stated;
"The entire
controversy has been considered by this Court in Babua Ram 30 and Ors. v.
State of U.P. dated 4.10.1994 rendered in C.A. Nos. 563/94 & batch and held
that since an appeal has been preferred by the State against the award of the
Dist. Judge made under Section 26 of the Act, the proper course open to the
L.A.O., on an application made under Section 28-A(1) of the Act, would be to
keep the applications under Section 28-A(1) pending till the appeal filed
against the award of the Dist. Judge is disposed of by the High Court and then
to take action as per Section 28-A(2) of the Act. Following the law laid down
therein and subject to directions contained therein, we hold that the High
Court was not right in dismissing the writ petitions.
Therefore, the order
of the High Court is set aside. The award of the Collector made under Section
28-A(2) is quashed.
The Collector/L.A.O.
is directed to keep the application filed under Section 28-A (1) of the Act
pending till the disposal of the appeal. On receipt of the judgment from the
High Court or in an appeal by this Court the L.A.O. is directed to determine
the compensation based on the final judgment according to law".
34.
In
our opinion, therefore, the Collector was right in not deciding the application
in view of the fact that the order passed by the Reference Court was challenged
by the New Okhla Industrial Development Authority 31 (NOIDA) by filing first
appeals before the High Court. The High Court had entertained the appeals and
also passed interim order. The contention of the appellants before the High
Court that Government Orders dated January 14, 1994 and June 13, 2001 were
illegal, arbitrary and ultra vires has no force. In fact, those Government
Orders are in consonance with law laid down by this Court in Babua Ram and
other cases. We, therefore, see no infirmity in the action of the Collector in
not deciding the applications.
35.
For
the foregoing reasons, in our opinion, the appeals deserve to be partly
allowed. The order passed by the High Court in all these matters are set aside
but validity of Government Orders dated January 14, 1994 and June 13, 2001 is
upheld.
36.
We
may, however, hasten to add that as observed hereinabove, we are not deciding
about the locus standi of the appellant. As and when the question will come up
before the 32 Collector/Land Acquisition Officer, after the disposal of first
appeals before the High Court or before this Court or after the decision attains
finality, such question as to maintainability may be decided on its own merits
after hearing the parties. All contentions of all parties are kept open.
37.
The
appeals are accordingly allowed to the extent indicated above. In view of the
facts and in the circumstances of the cases, however, there shall be no order
as to costs.
......................................................J.
(C.K. THAKKER)
......................................................J.
NEW
DELHI,
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