Ram Dhan and Sunka Ram vs Collector Land Acquisition and Others

Devinder Gupta, J.—This judgment will dispose of Civil Writ Petition No. 647 of 1988 and Civil Writ Petition No. 648 of 1988 as questions of law and fact involved in both the petitions are identical.

The land of the Petitioners, in both the petitions, was acquired for setting up of a cement factory in village Barmana, Tehsil and District Bilaspur. The first Respondent, on January 5, 1982 made his award determining the amount of compensation. The award was not accepted by the Petitioners. A reference was sought u/s 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) to the court for determination of the amount of compensation. On October 22, 1984, the reference Court by a common judgment disposed of both the reference petitions holding the same to be filed beyond the period of limitation. Admittedly, no appeal was preferred against the award (Annexure-PA).

Both the Petitioners filed separate applications u/s 28A of the Act seeking predetermination of the amount of compensation on the basis of the award given by the Additional District Judge, Shimla, on October 23,1984, in a land reference, on the ground that excess amount had been allowed by the reference court in that case and as their lands were also covered by the same notification issued u/s 4(1) of the Act, therefore, they were entitled to have the amount of compensation predetermined. The first Respondent by separate orders (Annexure PB), in both the writ petitions, dismissed the applications on the ground that the Petitioners had already availed themselves of the opportunity of having got the matter referred u/s 18 of the Act, therefore, conditions laid down in Section 28A of the Act for seeking predetermination of the amount of compensation were not fulfilled and the Petitioners were not entitled to any relief. The Petitioners sought reference u/s 28A(3) of the Act to the court against the award of the first Respondent, namely, the order rejecting their applications for predetermination of the amount of compensation. The first Respondent on July 2, 1987, passed a common order (Annexure PC) rejecting both the applications and refusing to refer the matter to the court. Petitioners have now sought the quashing of orders Annexure PB and PC by filing these two writ petitions. The main contention of the Petitioners for quashing the orders is that no doubt they had sought a reference to the court u/s 18 of the Act, against the award of the first Respondent dated January 5, 1982 but they said reference was dismissed by the district court on December 22, 1984 holding the same to be beyond the period of limitation and as such it cannot be said that a proper reference u/s 18 of the Act was sought, therefore, it cannot be said that they had sought a reference as is referred to in Section 28A of the Act. Dismissal of their reference u/s 18 of the Act as time barred will not come in their way in seeking predetermination of the amount of compensation when other conditions referred to in Section 28A are fulfilled. This argument has been refuted on behalf of the Respondents on the ground that the award made by the reference court on a reference amounts to a decree u/s 26(2) of the Act and an appeal lies against the said decree u/s 54 of the Act, and the order dismissing the reference being barred by limitation also amounts to a decree. The Petitioners did not challenge this decree by filing an appeal u/s 54 of the Act and the same had become final and conclusive amongst the parties. Allowing the application of the Petitioners for predetermination of the amount of compensation will amount to reopening of the decree.

We have heard learned Counsel for the parties. The contention of the learned Counsel for the Petitioners that the award made by the District Judge dismissing the land references as barred by limitation does not amount to decree has no force in view of the decision of the Kerala High Court in Thambi Vs. Mathew and Another, wherein it has been held that a decree dismissing an appeal in limine as time barred may not be binding on the Respondent for the reason that he had no notice of the appeal and it may be open to him to ignore the decree. But that does not mean that an appellate decree dismissing an appeal has no legal effect. The legal effect is the confirmation of decree appealed against whether the dismissal is after hearing the Respondent or without notice to him. On the same analogy, when the District Judge dismissed the land reference as barred by limitation, it amounted to a decree u/s 26(2) of the Act and the same having remained unchallenged, cannot be reopened by allowing the prayer of the Petitioners to allow predetermination of the amount of compensation.

The Petitioners having sought and secured a reference u/s 18 of the Act are not entitled to maintain an application u/s 28A of the Act for predetermination of the amount of compensation in view of the law laid down by the Supreme Court in The The Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda Vs. Union of India and others, ) and Mewa Ram (Deceased) by his Lrs. and Others Vs. State of Haryana through The Land Acquisition Collector, Gurgaon,

In view of this, there is no merit in these writ petitions and the same are dismissed. No costs.