THE HON'BLE THE CHIEF JUSTICE ALOK ARADHE
AND
THE HON'BLE SRI JUSTICE N.V.SHRAVAN KUMAR
WRIT APPEAL No.1006 of 2010
JUDGMENT: (Per the Hon'ble the Chief Justice Alok Aradhe)
Mr. S.Chandra Sekhar, learned counsel for the
appellants.
Ms. P.Bhavana Rao, learned Government Pleader for
Land Acquisition for the respondents.
2. This intra court appeal is filed against an order
dated 27.02.2008 passed by learned Single Judge in
W.P.No.3125 of 2002, by which writ petition preferred by
the appellants has been dismissed.
3. Facts
giving rise to filing of this appeal briefly stated are that appellants were the owners of agricultural lands in Survey Nos.18, 76, 84 and 85, situated at Ambugaon and Thamsi Village, Adilabad District. The lands held by the appellants as well as other lands were ::2::
acquired under the provisions of Land Acquisition Act, 1894 (briefly referred to hereinafter as 'the Act') by the State Government. An award dated 23.04.1986 was passed determining the compensation. Some of the land owners sought a reference to civil Court under Section 18 of the Act. The District Judge, Adilabad by an order dated 09.12.1992 enhanced the amount of compensation.
4. Thereafter the amount of compensation was re-determined and an award was passed under Section 28-A(1) of the Act on 18.04.1999. The appellants received the compensation under the aforesaid award on 13.05.1999 and thereafter filed a petition under Section 28-A(3) of the Act seeking reference. The aforesaid application was not considered by the respondents.
5. Thereupon the appellants filed a writ petition namely W.P.No.3125 of 2002 before this Court seeking a direction to the Collector to refer the matter to District Court. The writ petition preferred by the appellants has been dismissed by learned Single Judge by an order dated 27.02.2008 inter alia on the ground that the appellants ::3::
have received the compensation without any protest on 13.05.1999 and therefore, they filed an application on 17.05.1999. In the aforesaid factual background, this appeal has been filed.
6. Learned counsel for the appellants submitted that the learned Single Judge erred in not appreciating that the appellants have filed an application under Section 28-A(3) of the Act which manifest their intention that the appellants have not accepted the award.
7. On the other hand, learned Government Pleader for Land Acquisition has supported the order passed by learned Single Judge.
8. We have considered the submissions made on both sides and have perused the record.
9. Section 28-A of the Act reads as under:
"28-A 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 ::4::
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:
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 ::5::
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."
10. Section 28-A(3) of the Act is pari materia with Section 18 of the Act. Section 18 of the Act was interpreted by a Full Bench of the erstwhile Andhra Pradesh High Court in District Collector, Kakinada, East Godavari District v. P.Nagabhushana Rao 1 and in paragraphs 25 to 28, the reference was answered as follows:
"25. Law gives a right, to such deprived citizen, in case such a person is not satisfied with the amount of compensation so offered, to seek reference for determination of the amount of compensation by a Civil Court, for which limitation is provided under Section 18 of the Act. In a situation where an interested person within the period of limitation seeks reference for determination of compensation and the law nowhere lays down in clear and explicit terms the time, the method and manner of lodging protest, there is no reason that why to such a case the ratio laid down in Ajit Singh's case will not be applicable. The Supreme Court held 1 2003 (6) ALT 353 ::6::
that the very fact of seeking reference by the person interested within the limitation would imply lodging of protest and an inference that the amount offered by the Collector on behalf of the State has been received subject to his right to have the correct amount of compensation determined by a Civil Court, in accordance with law. After all what the Civil Court will do, when a reference is made? It will have to determine the amount which is payable under the provisions of the Act with reference to the provisions of Section 23 of the Act, namely, the true market value of the land as on the date of issuance of the notification under Section 4(1) of the Act.
26. The intention of the Legislature to pay fair and reasonable compensation to all interested persons on the basis of the true market value of the land is very much evident when amendment was made to the provisions of Land Acquisition Act by Land Acquisition Amendment Act, 1984 by inserting Section 28-A of the Act making a provision for respondents-determination of the amount of compensation on the basis of the award of the Court passed in respect of similar land covered by the same notification. The scope and object in incorporating Section 28-A is to remove inequality in payment of compensation for ::7::
the same or similar acquisition of land arising on account of poor people not being able to take advantage of the right of reference to Civil Court under Section 18 of the Act. Section 28-A nowhere restricts the right of the interested person to seek for re-
determination of the amount of compensation and does not debar even those who had even received the amount of compensation without protest. Any person interested aggrieved by the award can make an application to the Collector for re-
determination of the amount of compensation provided that application is filed within the period of limitation from the date of the award of the court made under the provisions of the Act. Section 28-A of Act enables the Court to grant compensation in excess of the amount of compensation awarded by the Collector on the basis of the award of the Court passed in respect similar lands covered by the same notification subject to the condition that the land is covered by the same notification under Section 4(1) of the Act and application is filed within three months from the date of award. The Supreme Court in Union of India v. Hansoli Devil [(2002) 7 SCC 273] held that even those persons who received the compensation without protest and who had filed application for reference under Section 18 can also seek reference ::8::
for re-determination of the compensation under Section 28-A of the Act. It was held:
Coming to the second question for reference the receipt of compensation with or without protest pursuant to the award of the Land Acquisition Collector is of no consequence for the purpose of making a fresh application under Section 28-A, if a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with or without protest, he would be a person aggrieved within the meaning of Section 28-A and would be entitled to make an application when some other landowner's application for reference is answered by the reference Court. It is apparent on the plain language of the provisions of Section 28-A of the Act. Otherwise, it would amount to adding one more condition, not contemplated or stipulated by the legislature itself to deny the benefit of substantial right conferred upon the owner.
27. The second proviso to Section 31 being in the nature of estoppel, necessarily, ::9::
it will be for the person raising a plea of estoppel to establish before the Court necessary facts on which the rule of estoppel is to be applied. Therefore, it will be for the Collector or the State to point out any material, which will lead to an inference that the compensation was not received under protest. In the absence of any such material, when it is not expressly stated by the person interested that he was accepting the award or was accepting the amount of compensation without protest and an application is made under Section 18(1) of the Act within limitation, protest is implied. Invariably in land acquisition matters, persons interested are those who are illiterate and poor agriculturists. There is an implied obligation on the part of the Collector that he must apprise the persons interested of their right to have the amount of compensation determined by the Civil Court in case they are not satisfied with the amount of compensation awarded. In the event of their not exercising their right and agreeing to accept the award or amount of compensation without protest, an express acknowledgment must be obtained. Experience has shown that usually compensation offered by the State to the persons interested are deprived of their property is not adequate and invariably on reference being made to the ::10::
Civil Court, the amount is enhanced. Under these circumstances, unless it is positively shown that the persons interested were made aware of their right to have the compensation determined by a Civil Court and they accepted the amount without any demur, only in such a circumstance, an inference can be drawn that they never intended to seek reference. If a person interested is debarred from exercising his right conferred on him under Section 18 of the Act on the ground that he has not expressly stated that he is accepting under protest, the very purpose for which such right was conferred by the statute would become nugatory and illusory. We are, therefore, of the considered view that the law having laid down period of limitation within which reference can be sought and when an application is filed within the prescribed period of limitation, a very valuable right to seek reference for determination of the compensation cannot be taken away merely on a technical plea raised by the State who has deprived the said person of his right to hold the property.
28. In the view we have taken, we answer the reference holding that in the absence of any manner of protest having been specified in the Act and the time when protest is to be lodged, act of filing of an ::11::
application seeking reference to Civil Court within the period of limitation prescribed under Section 18 of the Act will impliedly infer that the claimant/person interested had accepted the amount with protest. Not expressly lodging protest at the time of receiving amount in such circumstance would not amount to waiver of the right to seek reference under Section 18 of the Act."
11. Thus, in view of aforesaid decision by Full Bench of erstwhile Andhra Pradesh High Court, it is evident that the law does not provide any manner of protest in the Act and admittedly, the application preferred by the appellants under Section 28-A(3) of the Act is within limitation.
12. Therefore, the order passed by learned Single Judge is set aside. The District Collector, Adilabad is directed to refer the matter to the District Court for adjudication within a period of four (04) weeks from today.
13. Accordingly, the Writ Appeal is allowed. There shall be no order as to costs.
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Miscellaneous applications, if any pending, shall stand closed.
_______________________________ ALOK ARADHE, CJ _______________________________ N.V.SHRAVAN KUMAR, J Date: 13.10.2023 KL