H.P. Housing Board vs Siri Ram Karan and Others

Sanjay Karol, J.—The Appellant, beneficiary of the acquisition , proceedings, is aggrieved with the order dated 21.5.2003 passed by the Additional District Judge, Solan, H.P. in Petition No. 1-S/4 of 2000 titled as H.P. Housing Board v. Ram Karan and Ors. for the reasons that its application filed u/s 28A(3) read with Section 18(2) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'') stands dismissed.

Primarily, the question which arises for consideration before this Court is as to whether the beneficiary''s application u/s 28A(3) of the Act, in effect being restitution proceedings, is maintainable or not and as to whether the claimants who have received the amount pursuant to an Award passed u/s 28A are entitled to retain the amount received in excess of the final determination of the market value in an appeal u/s 54 of the Act or Article 136 of the Constitution of India.

For the public purpose, namely, establishment of Parwanoo township, large chunk of land was acquired by the State vide Notification dated 1.9.1976 issued u/s 4 of the Act. As per the Collector''s Award dated 9.1.1978, different rates were awarded for different classifications of land. The highest rate being Rs. 14,195/- per bigha for "Kuhal" and Rs. 500/- per bigha for "Ghasni Charand Gair Mumkin" category of land. The Appellant a statutory body was the beneficiary of the acquisition and hereinafter is referred to as the "beneficiary".

It appears that different land owners filed different land reference petitions u/s 18 of the Act and different rates were awarded in different awards.

However, for the purpose of adjudication of the matter in hand, Land Reference Petition No. 18-S/4 of 1984, the District Judge, Solan, H.P. on 23.5.1991 in case titled as Prabhu Dayal and Ors. v. Land Acquisition Collector and Ors.which determined the market value of the acquired land to be Rs. 24,000/- per bigha regardless of the category and classification of the land is to be considered (hereinafter the same is referred to as the "Court''s Award"). Relying upon the same, the present Respondents (hereinafter referred to as the "claimants") who had not assailed the Collector''s Award u/s 18 of the Act by filing land reference petition, filed an application dated 20.8.1991 u/s 28A of the Act, claiming compensation on the basis of the "Court''s Award" dated 23.5.1991.

The "beneficiary" filed a reply categorically stating that the "Court''s Award" had not become final inasmuch as an appeal against the same had been filed and was pending before this Court. Therefore, the application was not maintainable.

Notwithstanding the said objections and without even adverting to the same, the Collector, Land Acquisition in terms of its order dated 8.3.1994 allowed the application and enhanced the awarded compensation to Rs. 24,000/- to bring it at par with the claimants covered under the "Court''s Award" dated 23.5.1991.

It is a matter of record that in terms of the judgment dated 4.5.1995 passed in RFA No. 424/1991 (common judgment RFA No. 461/1991), this Court set-aside the "Court''s Award" dated 23.5.1991 passed by the District Judge, Solan, in Land Reference Petition No. 18-S/4 of 1984 and reduced the market value of the land from Rs. 24,000/- to Rs. 12,000/- per bigha regardless of the category and classification of the land.

The matter, however, did not rest here and finally the Apex Court in Ram Piari and Anr. v. Land Acquisition Collector, Solan and Ors., 1996 (8) SCC 338, put the controversy to rest by holding that the land owners shall be uniformly entitled to a sum of Rs. 14,195/- per bigha. The net effect of the said judgment is that all land owners, covered by the said judgment, regardless of their classification and category of land were entitled to a sum of Rs. 14,195/- per bigha.

It is not in dispute that the claimants'' land is covered by the very same notification with which the Apex Court was dealing in Ram Piari (supra).

It is also a matter of record that without any delay the "beneficiary" filed an application u/s 28A(3) and the said application dated 8.3.1994 was dismissed vide impugned order dated 21.5.2003 by assigning the following reasons:

No doubt, the Supreme Court has further held that the direction may not be treated to be a precedent, but it remains a fact that in the instant case, the Land Acquisition Collector has offered a sum of Rs. 24,000/- per bigha which was affirmed by the learned District Judge, Solan on reference moved to him, but the Hon''ble High Court of H.P. reduced the same to Rs. 12,000/ - per bigha in other case, but it remains a fact that it is well- settled law that the award made by the Collector is an offer made by him on behalf of the Government and the State is bound by the offer and even in reply filed by the State Government has accepted that the Land Acquisition Collector has rightly decided the award and therefore, State of H.P. through Collector has prayed that the petition u/s 28A(3) read with Section 18(2) of the Land Acquisition Act may be dismissed.

From the facts, it is evident that the claimants have been benefited by receiving the amounts in excess of what finally stands adjudicated and determined in an appeal u/s 54 by this Court and thereafter by the Apex Court.

Under the Act, the Court has been defined in Section 3(d) to mean principal civil Court of original jurisdiction within specified local limits to perform the functions of the Court under the Act. The Civil Court is to follow the procedure prescribed in Part III of the Act and the CPC in determining the compensation as envisaged u/s 23 of the Act and determine the market value of the lands acquired and award the compensation in terms of the provisions of the Act. By operation of Section 25 the amount of compensation to be awarded by the Court is not less than the amount awarded by the Collector u/s 11. u/s 26, the Civil Court is to make the award as enjoined in Sub-section (1) which becomes a decree under Sub-section (2) thereof.

The Act is a complete Code in itself and provides a complete mechanism for determination of the compensation and adjudication of disputes between the parties. The Award passed by the Land Acquisition Collector u/s 11 of the Act is in fact the offer made by the Collector, determining the market value of the land and compensation payable to the claimants for acquisition of their land. The person aggrieved, however, is entitled to seek adjudication and enhancement thereof by filing a land reference petition u/s 18 of the Act. However, the Legislature with the laudable object to bring uniformity in determining and paying adequate compensation introduced u/s 28A of the Act.

The Apex Court in Babua Ram and Ors. v. State of U.P. and Anr. 1995 (2) SCC 689, after taking into account the legislative purpose and intent held that for the purpose of Section 28A, the person aggrieved must be the one, who has suffered a legal grievance because of a decision pronounced by a Civil Court giving higher compensation for the acquired lands similar to his own while he is denied of such compensation for his land because of operation of Section 18 read with Section 31 of the Act resulting in affectation of his pecuniary interest in his acquired land directly and adversely by the Award of the Collector issued u/s 11 of the Act.

It has further been held as under:

The person aggrieved must, therefore, be one who has suffered a legal grievance because of a decision pronounced by civil Court giving higher compensation for the acquired lands similar to his own while he is denied of such higher compensation for his land because of operation of Section 18 read with Section 31 of the Act resulting in affectation of his pecuniary interest in his acquired land directly and adversely by that award of the Collector made u/s 11. As such he becomes an aggrieved person entitled to avail of the right and remedy conferred upon him u/s 28A(1) to make good his denied right to receive compensation in excess of the amount awarded by the Collector/LAO. Acceptance of the contention of Shri G.L. Sanghi, learned Senior Counsel and his companions, that persons who under protest received payment of compensation for their lands but failed to avail of the right and remedy u/s 18 waiting in the wings for success of the landowners of the adjoining lands to get higher compensation u/s 28A(1) as person aggrieved robs the poor and inarticulate who by reason of their poverty or ignorance failed to avail of the right and remedy u/s 18, and creates not only invidious discrimination between same class of persons similarly situated but would be highly unjust and arbitrary offending Article 14 of the Constitution, apart from flying in the face of express animation of the statute as espoused in its Statement of Objects and Reasons and the Financial Memorandum. In this context, we make it clear that we have looked into Statement of Objects and Reasons and the Financial Memorandum to know what is it that induced the introduction of the Bill but not as an aid to interpret Section 28A(1). Therefore, we have no hesitation to hold that any interested person in the land acquired under the same notification published u/s 4(1) who failed to avail the right and remedy u/s 18(1) read with second proviso to Section 31(2), becomes a person aggrieved u/s 28A(1) of the Act when the owner of the other land covered by the same notification is awarded higher compensation by the civil Court on a reference got made by him u/s 18.

The next question is whether the Collector/LAO on receipt of the application under Sub-section (1) of Section 28A is bound to redetermine the compensation while the award and decree u/s 26 is pending consideration in the appeal in the High Court or appellate forum. If he does so, whether award u/s 28A(2) is illegal? It is settled law that the decree of the trial Court gets merged in the decree of the appellate Court which alone is executable. The finality of the determination of the compensation is attained with the decree of the appellate forum, be it the High Court or this Court. Take for instance that ''A'', ''B'' and ''C'' are interested persons in the land notified u/s 4(1) and the compensation determined in the award u/s 11. "A" received the compensation without protest. ''B'' and ''C'' received the compensation u/s 31 under protest and sought and secured reference u/s 18. The Court enhanced the compensation from the Collector''s award of Rs. 10,000 to Rs. 20,000. ''B'' did not file appeal u/s 54 while ''C'' filed the appeal. The High Court, suppose, further enhances the compensation to Rs. 25,000 or reduces the compensation to Rs. 15,000 per acre. "A" is a person aggrieved only to the extent of the excess amount awarded either by the award and decree of the Court u/s 26 but he will not get the enhancement of further sum of Rs. 5000 granted by the High Court in favour of "C". The decree of the High Court is the executable decree made in favour of ''C''. Unless redetermination is kept back till the appeal by the High Court is disposed of, incongruity would emerge. Suppose the State filed appeal in this Court under Article 136 against the High Court decree and this Court confirms the award of the Collector and sets aside the decree of civil Court u/s 26 and of the High Court u/s 54. There is nothing left for redetermination. With a view to save ''A'' or ''B'' or the State from the consequences of such incongruous situations, the Collector/ LAO should stay his hands in the matter of redetermination of compensation till the appeal is finally disposed of and he should redetermine the compensation only on the basis of the final judgment and decree of the appellate forum. Adoption of such course, would not merely avoid the chance element in the claimants getting the amounts of redetermined compensation but also avoids needless burden on public exchequer. As soon as the award of the civil Court is carried in appeal, it becomes obligatory for the Collector to keep the application/applications for redetermination of compensation filed within limitation pending, awaiting decision by the appellate forum and to redetermine the compensation on the basis of the final judgment and decree. Normally the LAO would file the appeal against the enhanced compensation in a decree of either the civil Court or the High Court and will know their pendency. In the case of appeal filed by the interested persons, the latter should inform the Collector/LAO of the pendency of appeal or otherwise comes to know of it should keep the applications for redetermination, received under Sub-section (1) of Section 28A within limitation pending, awaiting the decision by the appellate Court. Before proceeding with the determination, he should obtain an affidavit from the party making the application u/s 28A that no appeal against the award made u/s 26 relied upon by him was filed or if had been filed was disposed of by the appellate Court and to produce the certified copy of decree and judgment, if already disposed of.

(Emphasis supplied)

Babua Ram (supra) came up for consideration before the Apex Court again inUnion of India and Anr. v. Pradeep Kumari and Ors. reported in (1995) 2 SCC 736 The Court held that no restrictive meaning should be given to the provisions of Section 28A of the Act and held as under:

10 ...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 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 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 u/s 11 has been allowed to the applicant in that reference;

(iii) The person moving the application u/s 28A is interested in other land covered by the same notification u/s 4(1) to which the said award relates;

(iv) The person moving the application did not make an application to the Collector u/s 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 u/s 28A for redetermination of compensation by an applicant.

Since the cause of action for moving the application for redetermination of compensation u/s 28A arises from the award on the basis of which redetermination of compensation is sought, the principle that ''once the limitation beings 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 u/s 28A will begin to run only from the date of the award on the basis of which redetermination of compensation is sought.

Even the Constitution Bench of the Apex Court in Union of India and Anr. v. Hansoli Devi and Ors. reported in (2002) 7 SCC 273, did not interfere with the aforesaid findings.

Relying upon the decision delivered by this Court in Bhakra Beas Management Board and Anr. v. State of H.P. and Ors. 2003 (2) Shim.L.C. 362, Mr. Bhupender Gupta, learned Senior Counsel has vehemently argued that the application filed by the beneficiary u/s 28A(3) of the Act was not maintainable, hence the appeal be dismissed.

In Bhakra Beas Management Board (supra), this Court referred to and relied upon the following passage from the decision of the Apex Court in Babua Ram (supra):

No doubt Section 28A(2) speaks of interested persons and Section 28A(1) of persons aggrieved. As interpreted by this Court of the said expressions, the beneficiary is also an interested person to see that proper compensation is determined by the Court, gets right to hearing before award is made and to carry in appeal u/s 54 and has a right to appear before the Collector during award inquiry which right is only limited to participation in the inquiry and to adduce evidence or to file an appeal to determine just and proper compensation for the lands under acquisition. Sub-section (2) of Section 28A equally gives right of an opportunity of hearing to an interested person in the inquiry u/s 28A(1). The State and the beneficiary are persons interested in determination of just and proper compensation. However, acceptance of the award under Sub-section (3) appeals to us to be, an acceptance by the claimant and not by the beneficiary or the State, as the Collector acts on their behalf as an agent. It is true that the award u/s 11 was made with prior approval of the State Government or its authorized officer and that limitation expressly was not laid in Section 28A(2) but the legal effect does not get altered by virtue of the above distinction or omission in Section 28A(2). The participation in the proceedings and right to an opportunity of hearing including the right to adduce evidence by the beneficiary though in normal parlance carries with it the right to an appeal, in view of the scheme and the language of Section 11 u/s 28A(2) does not clothe the beneficiary with a right to seek reference when he does not have such a right u/s 18. The award of the Collector under Sub-section (2) of Section 28A though as (sic at) a post-Section 11 stage, nonetheless, the award u/s 28A(2) is award and partakes the same character as an offer and not a decision. Therefore, if the applicant accepts the award, the award becomes complete and acceptance brings the proceedings u/s 28A(1) to a terminus and the award binds the claimant and the Collector. On non-acceptance and seeking a reference u/s 28A(3), the award made u/s 28A(2) is at large subject to the decision by the Court by application of Section 18 - 26 as is envisaged in Section 28A(3) itself. Section 2A of the local amendment made by the Haryana State Legislature adopting the Amendment made by the Legislature of Himachal Pradesh, manifests that despite the offer made by the Collector u/s 11, the State is entitled to seek reference u/s 18 but Sub-section (2) expressly excludes the right of reference u/s 18 to the Union when the land was acquired on behalf of the Union of India. Thereby it is clear that the right to such reference u/s 28A(3) by the beneficiary does not arise and stands excluded. Though not apposite, but we can have a clue from Section 50 of the Act which prohibits reference at the behest of the beneficiary when the acquisition was made on behalf of a local authority or a company. It is true that there arises an anomalous situation when an award is made u/s 28A(2) the Collectors may award compensation in excess of amount given u/s 26, while the claimant was provided with remedy under 28(3), the beneficiary or the State is left with no remedy under the Act. However, the Collector being an authority under the Act, the award of the Collector made u/s 28A is not totally immune from jurisdiction of the High Court under Articles 226 and 227 of the Constitution, if required to be challenged by the State or the beneficiary, who have no other legal remedy in the matter.

Strictly speaking in Babua Ram (supra), this was not an issue at all and only on the basis of the aforesaid passage this Court held that the beneficiary''s application u/s 28A was not maintainable.

Be that as it may be, the fact is that after Babua Ram, the Apex Court has held that "a person aggrieved", to fall within the ambit and scope of Section 18 as well as Section 54 of the Act, would include the beneficiary on whose behalf the land is acquired. The said person would have the right of participation and adjudication of the Reference Petition. U.P. Awas Evam Vikas Parishad v. Gyan Devi (dead) by L.Rs. and Ors. (1995) 2 SCC 326, National Aluminum Company Ltd. v. Raj Kishore alias '' Sahu Jena and Anr. (1996) 3 SCC 44 Modi Spinning and Weaving Mills v. Virendra and Ors. (1998) 5 SCC 718 Abdul Rasak and Ors. v. Kerala Water Authority and Ors. (2002) 3 SCC 228 Kanak (Smt.) and Anr. v. U.P. Avas Evam Vikas Parishad and Ors. (2003) 7 SCC 693; Regional Medical Research Centre Tribals v. Gokaran and Ors. (2004) 13 SCC 125.

Consequently, the person aggrieved or "any person" envisaged u/s 28A of the Act has to necessarily include the beneficiary as the Collector has to re-determine the amount of compensation payable to the claimants. The whole object and purpose being that the beneficiary may have a right in determination of the market value as ultimately it is he who has to pay the money.

In fact the issue is no longer res integra as subsequent to the decision of Bhakra Beas Management Board (supra), this Court in H.P. Housing and Urban Development Authority v. Smt. Shakuntla Devi and Ors., RFA No. 163 of 1999, decided on 1.9.2008, has specifically dealt with the issue and held as under:

...Since the order dated 29.12.1997 passed by learned Collector is illegal and erroneous and beyond the jurisdiction of Land Acquisition Collector; the persons claiming compensation including the Respondents No. 1 and 2 as well as the Appellant for whose benefit the land has been acquired being a ''persons interested'' if not have accepted the award filed reference petition u/s 28A(2) of the L.A. Act by way of written application then the Collector was required to refer the matter for determination of the Court and the Appellant being a relevant person as provided u/s 28A(3) of the L.A. Act shall not be precluded to get the verdict of the reference Court u/s 28A(3) of the L.A. Act in respect of erroneous redetermination and rectification of incorrect amount of compensation indicated by the Land Acquisition Collector in his order dated 29.12.1997. The Appellant however may be precluded to avail remedy u/s 50(2) by way of reference but cannot be precluded from preferring reference u/s 28A(3) of the L.A. Act.

Further, subsequent to Babua Ram, the Apex Court itself in Union of India v. Munshi Ram (dead) by L.Rs. and Ors. (2006) 4 SCC 538, has taken a view that u/s 28A of the Act, compensation payable to the claimants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act and in case of any reduction of amount by the superior Courts, the applicants u/s 28A may be directed to refund the amount received in the light of the reduced compensation finally awarded. The relevant portion is reproduced as under:

We are of the view that the Union of India is right in its submission that the amount payable u/s 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference u/s 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference u/s 18. It cannot be that those who secure a certain benefit by reason of Ors. getting such benefit should retain that benefit, even though the Ors. on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied u/s 28A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by higher Courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference u/s 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the Reference Court was subsequently reduced by superior Court. There can be no dispute that those claiming higher compensation and claiming reference u/s 18 of the Act are bound by the decree as modified by the superior Court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit Ors. who have been given benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of Ors. .

It was contended before us that after the order of redetermination was passed, Union of India could have challenged this order, and since it failed to do so, it lost its right to challenge that order. The submission overlooks the basic plea of the Union of India that at the stage when the order of redetermination was passed u/s 28A of the Act that order was fully justified and any further redetermination could be claimed only if there was variation of the decree and the amount awarded by way of compensation was reduced. In the instant case that happened in the year 1997, and therefore, in one sense it was indeed premature for the Union of India to challenge the redetermination u/s 28A in the year 1995, much before the decree was actually modified.

We hold that u/s 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act. In case of reduction of compensation by superior Courts, the applicants u/s 28A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.

(Emphasis supplied)

In view of this changed position and decision subsequent to Babua Ram (supra), I am of the considered view that not only the application filed by the "beneficiary" seeking re-determination is maintainable but "claimants" are entitled to only such amount of compensation as stood finally determined by the Apex Court in the appeals arising out of the acquisition in question.

The matter needs to be examined from another angle.

The Appellant was in fact seeking restitution of the excess amount paid to the claimants. This application even though filed u/s 28A of the Act was in effect pressed as a petition for restitution as the Collector was required only to look into the judgment of the Apex Court determining the compensation for the acquired land and make the necessary calculations in terms thereof.

In fact this application could have been filed even before the Collector as he was duty bound to have adhered to and complied with the directions of the Apex Court. It was his constitutional obligation. It is to be kept in mind that initially when the claimants filed an application before the Collector, the Appellant had specifically taken the objection that the appeal arising out of the "Court''s Award" on the basis of which determination was sought, was pending adjudication before this Court. A request was made to dismiss the application till the award was finally confirmed by this Court. The Collector was duty bound to have kept the same pending till such time the matter was finally adjudicated. However, while allowing the application, he did not even refer to or dealt with it in any manner. Importantly, without any delay on 26.5.2004, the Appellant filed the application u/s 28A.

The District Judge, in my view, committed an error in dismissing the application holding that the amount awarded by the LAO, on the basis of Reference Petition decided by the District Judge, was in fact an offer made by the Collector and the claimants could not be awarded any amount lesser than what was offered by him. In my view, the Court below totally lost sight of the fact that the offer of the Collector is an award passed u/s 11 of the Act. The beneficiary''s application was totally maintainable.

For the aforesaid reasons, it is directed that the market value of the claimants'' land stood finally determined, regardless of the category of the land, would be Rs. 14,195/- per bigha and the excess amount received by the claimants shall be refunded within a period of four months from today.

On the question of interest, I feel that lenient view has to be taken as the claimants were not at fault, but the fact of the matter is also that the claimants have used the money to their advantage and benefit. In spite of the pending litigation, the claimants had, perhaps, on erroneous assumptions, received the amounts, therefore, in my view, directing the claimants to pay. simple interest @ 6% per annum from the date of the decision of the Apex Court in Ram Piari (supra) would be just, fair and equitable.

For the foregoing reasons, the appeal is allowed in the aforesaid terms.