Bombay High Court
Vidarbha Irrigation Development ... vs The Collector, Buldhana And ... on 6 January, 2021
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Writ Petition No. 3066 of 2020
PETITIONER: Vidarbha Irrigation Development
Corporation, through its Executive
Engineer, Khadakpurna Project
Division, Deulgaonraja,
District Buldhana.
Vs.
RESPONDENTS : 1. The Collector, Buldhana, District
Buldhana
2. The Sub-Divisional Officer and
Land Acquisition Officer,
Sindkhedraja, District Buldhana
3. Haribhua s/o Balwanta Shingne,
Aged about 65 years,
Occupation : Agriculturist,
R/o Garkhed, Tq. Deulgaonraja,
District Buldhana
4. Sakharam s/o Shamrao Shingne,
Aged about 51 years,
Occupation : Agriculturist,
R/o Garkhed, Tq. Deulgaonraja,
District Buldhana
Mr. J.B. Kasat, Counsel for the petitioner
Mr. S.P. Deshpande, Addl. G.P. for respondents No.1 & 2
Mr. R.N. Ghughe, Counsel for the respondents No.3 & 4.
WITH
Writ Petition No. 3068 of 2020
PETITIONER: Vidarbha Irrigation Development
Corporation, through its
Executive Engineer,
Khadakpurna Project Division,
Deulgaonraja, District Buldhana.
::: Uploaded on - 06/01/2021 ::: Downloaded on - 06/02/2021 22:05:24 :::
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VS.
RESPONDENTS : 1. The Collector, Buldhana, District
Buldhana
2. The Sub-Divisional Officer and
Land Acquisition Officer,
Sindkhedraja, District Buldhana
3. Dnyaneshwar Rangaraon Dandge,
Aged about 55 years,
Occupation : Agriculturist,
R/o Mandapgaon,
Tq. Deulgaonraja,
District Buldhana
4. Ruprao Martandrao Deshmukh
(Dandge),
Aged about 56 years,
Occupation : Agriculturist,
R/o Mandapgaon,
Tq.Deulgaonraja, District Buldhana
Mr. J.B. Kasat, Counsel for the petitioner
Mr. S.P. Deshpande, Addl. G.P. for respondents No.1 & 2
Mr. R.N. Ghughe, Counsel for the respondents No.3 & 4.
CORAM : MANISH PITALE, J.
RESERVED ON : 14.12.2020
PRONOUNCED ON : 06.01.2021
JUDGMENT
Rule. Rule is made returnable forthwith. Heard
finally with the consent of learned counsel appearing for
the rival parties.
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2. In these two Petitions, the question that arises
for consideration is, as to whether the respondents No.3
and 4 in both the Petitions were entitled for
consideration of their applications filed before the
respondent No.2 under Section 28-A of the Land
Acquisition Act, 1894, for re-determination of amount of
compensation. The petitioner Vidarbha Irrigation
Development Corporation, the acquiring body has raised
serious objection to the very maintainability of the said
applications filed on behalf of the said respondents
(original claimants), on the ground that since they had
preferred applications for reference to the Court under
Section 18 of the aforesaid Act and they had
subsequently withdrawn such applications
unconditionally, their applications for re-determination
of amount of compensation under Section 28-A of the
aforesaid Act were not maintainable. The respondent
No.2 in the present case not only entertained the said
applications, but also passed orders re-determining the
amount of compensation in favour of the said
respondent - claimants. No arguments were raised on
behalf of the petitioner Corporation on merits of the re-
determined amounts.
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3. The facts leading up to filing of the present
Writ Petitions are that lands belonging to the said
claimants were acquired from district Buldhana for
certain projects of the petitioner - Corporation. In
pursuance of the land acquisition proceedings, final
Awards were issued by the respondent No.2 and amount
of compensation payable to the aforesaid claimants was
determined. There is no dispute about the fact that the
aforesaid claimants preferred reference applications
under Section 18 of the said Act. The said claimants
raised claims of higher quantum of compensation on the
basis of contentions raised on their behalf. It is also not
disputed that subsequently, the claimants withdrew their
reference applications and the reference Court passed
specific orders allowing the claimants to withdraw the
reference applications, recording that the proceedings
stood disposed of as withdrawn unconditionally.
4. Thereafter, the reference Court passed its final
judgments and orders in reference applications filed by
other claimants, similarly situated like the respondent -
claimants herein and granted enhancement of
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compensation to a certain extent. There is also no
dispute about the fact that such judgments and orders or
Awards passed by the reference Court attained finality.
The respondent - claimants herein, at this stage, filed
applications for re-determination of compensation under
Section 28-A of the aforesaid Act, on the basis of the
aforesaid Awards passed by the reference Court in the
case of similarly situated claimants.
5. Initially, such applications filed by the
respondent - claimants stood dismissed by orders passed
by the respondent No.2 on the ground that the said
respondents had already taken benefit of rehabilitation
compensation under Government schemes. The
respondent - claimants challenged the said orders
before this Court. The Writ Petitions were allowed and
this Court held that the respondent - claimants could not
be deprived consideration of their applications under
Section 28-A of the said Act in accordance with law, only
on the ground that they had received rehabilitation
compensation under the Government schemes.
Accordingly, the matters were sent back to the
respondent No.2 for consideration afresh. Thereafter,
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the respondent No.2 considered the applications of the
respondents - claimants and passed orders in their
favour. These orders were in turn challenged by the
petitioner - Corporation on the ground that it was not
granted proper opportunity of hearing, despite the fact
that the financial burden of payment of compensation
was on the petitioner - Corporation. The Writ Petitions
filed by the petitioner - Corporation were allowed and
the matter was again sent back to the respondent No.2
for consideration on merits.
6. The respondent No.2 then considered the
contentions of the rival parties and passed the impugned
orders / Awards under Section 28-A of the aforesaid Act.
The petitioner - Corporation has filed the instant Writ
Petitions, challenging the said orders / Awards passed by
the respondent No.2, principally on the ground that the
applications filed by the respondent - claimants under
Section 28-A of the aforesaid Act were not maintainable,
as they had admittedly preferred reference applications
under Section 18 of the said Act, which they had
unconditionally withdrawn. On this basis, it was
submitted that the impugned orders / Awards stood
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vitiated and the same were rendered without
jurisdiction by the respondent No.2.
7. Mr. J.B. Kasat, learned counsel appearing for
the petitioner - Corporation in both these Writ Petitions
submitted that a plain reading of Section 28-A of the
aforesaid Act would show that the respondent -
claimants would have been entitled to maintain the
applications under the said provision before the
respondent No.2, only if they had not preferred
reference applications under Section 18 of the aforesaid
Act. According to the learned counsel for the petitioner -
Corporation, having preferred reference applications
under Section 18 of the said Act, the respondent -
claimants had dis-entitled themselves to file applications
under Section 28-A of the said Act for re-determination
of the amount of compensation.
8. The learned counsel for the petitioner -
Corporation submitted that Section 28-A of the said Act
was introduced only with the intention of assisting poor
and ignorant claimants to seek compensation at par with
those claimants who had approached the reference
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Court under Section 18 of the said Act and the amount
of compensation had been enhanced in such cases.
According to the learned counsel for the petitioner -
Corporation, the Hon'ble Supreme Court had interpreted
the said provision to the effect that once a reference
application was made under Section 18 of the said Act,
the claimants were not entitled to file applications under
Section 28-A thereof. It was submitted that benefit of
the said provision was indeed given to those claimants
whose applications under Section 18 of the said Act did
not receive consideration of the concerned authority, for
the reason that such applications were not entertained
on the ground of delay. It was submitted that the
position of law in respect of claimants whose
applications under Section 18 of the said Act were not
considered on merits due to technical reasons like delay,
could not be equated with the case of the respondent -
claimants before this Court. The only fact which the
Court was required to ascertain was, as to whether the
respondent - claimants had indeed made an application
before the reference Court under Section 18 of the said
Act and if so, they were not entitled to claim re-
determination of compensation under Section 28-A of
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the said Act. The learned counsel placed reliance on the
judgments of the Hon'ble Supreme Court in the cases of
Mewa Ram (Deceased) By His LRs and others Vs. State
of Haryana Through the Land Acquisition Collector,
Gurgaon (1986) 4 SCC 151; Scheduled Caste Co-
operative Land Owning Society Ltd., Bhatinda Vs. Union
of India and others (1991) 1 SCC 174; State of Orissa
and Others Vs. Chitrasen Bhoi (2009) 17 SCC 74 and
Kendriya Karmachari Sehkari Grah Nirman Samiti
Limited, Noida VS. State of U.P. Vs. State of Uttar
Pradesh and Another (2009) 1 SCC 754.
9. Per contra, Mr. R.N. Ghughe, the learned
counsel appearing for the respondent - claimants
submitted that there was no substance in the
contentions raised on behalf of the petitioner -
Corporation because the position of law as clarified by
the Hon'ble Supreme Court and this Court in various
judgments, emphasized that claimants could maintain
their applications under Section 28-A of the said Act,
even if they had filed reference applications under
Section 18 of the said Act, as long as the reference
applications were not considered and decided on merits.
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It was submitted that in the present case, the respondent
- claimants had filed applications under Section 18 of
the said Act, but, the said applications were withdrawn
and, therefore, there was absence of consideration and
determination on merits of the contentions raised on
behalf of the respondent - claimants. It was submitted
that even if the reference applications had been
withdrawn by the respondent - claimants
unconditionally, that would still not create a bar on their
approaching the competent authority under Section 28-
A of the said Act. It was submitted that no evidence was
led by any of the parties before the reference Court and
there was no determination of the contentions of the
respondent - claimants on merits by the reference Court,
thereby indicating that the position of law was clearly in
favour of the respondent - claimants.
10. On this basis, it was contended that merely
because the respondent - claimants had preferred
reference applications under Section 18 of the Act and
subsequently withdrawn the same unconditionally,
ought not to lead to a bar against them from filing
applications under Section 28-A of the said Act for re-
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determination of compensation. It was further
emphasized that when applications were moved under
Section 28-A of the Act, the respondent - claimants
could claim enhancement of compensation limited only
to the amount granted to other similarly situated
claimants in whose cases Awards had been passed by the
reference Court, which had attained finality. The
learned counsel appearing for the respondent -
claimants relied upon judgments of the Hon'ble
Supreme Court in the cases of Union of India and
Another Vs. Pradeep Kumari and Others (1995) 2 SCC
736; Union of India and Another Vs. Hansoli Devi and
Others (2002) 7 SCC 273; V. Ramkrishna Rao Vs.
Singareni Collieries Company Limited and Another
(2010) 10 SCC 650 and Narendra and others Vs. State
of Uttar Pradesh and others (2017) 9 SCC 426, as also
judgments of this Court in the cases of Punja s/o
Narayan Polade deceased through LRs Vs. State of
Maharashtra and another 2005(4) Mh.L.J. 621; Sk.
Allauddin s/o Sk. Jilani Vs. The State of Maharashtra &
Ors. 2015(3) ALL M.R. 354 and Dagu Ganpat Kathe and
others Vs. Special Land Acquisition Officer, Nashik and
others 2004 (4) Mh.L.J. 989.
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11. Heard learned counsel for the rival parties and
perused the material on record, including the judgments
on which the learned counsel representing the rival
parties have placed reliance.
12. Before considering as to whether the
respondent - claimants, in the facts of the present cases,
could have maintained their applications before the
respondent No.2 under Section 28-A of the Act, it would
be appropriate to first analyze the position of law laid
down in the aforesaid judgments, particularly in the
context of Section 18 and under Section 28-A of the Act.
13. In the judgments on which reliance has been
placed by the learned counsel for the petitioner -
Corporation, it is mentioned that application under
Section 28-A of the Act can be moved by those
claimants, who had not applied for reference under
Section 18 of the said Act. In the case of Mewa Ram
and others Vs. State of Haryana (supra), the Hon'ble
Supreme Court referred to the objects and reasons of the
Amending Act, whereby Section 28-A of the Act was
inserted in the Act. By referring to the said objects and
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reasons, it was emphasized on the part of the petitioner
- Corporation before this Court that the said provision
was meant for inarticulate and poor people, who could
not move the reference Court under Section 18 of the
Act, as compared to affluent land owners and it was to
remove inequality between the claimants that the said
provision was inserted. It was submitted that when the
respondent - claimants in the present case had moved
the reference Court under Section 18 of the Act, to
permit them to maintain their applications under
Section 28-A of the Act, would go against the very
objects and reasons of insertion of the said provision.
14. In the case of Scheduled Caste Co-operative
Land Owning Society Ltd., Bhatinda Vs. Union of India
and others (supra), it was again emphasized that
Section 28-A of the said Act was a provision available to
those who had failed to make a reference applications
under Section 18 of the said Act. In the case of Kendriya
Karmachari Sehkari Grah Nirman Samiti Limited, Noida
Vs. State of Uttar Pradesh and Another (supra), the
Hon'ble Supreme Court again placed emphasis on the
objects and reasons for insertion of Section 28-A of the
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said Act, stating that it was meant for "little Indians",
who could not move reference applications under
Section 18 of the said Act, due to poverty and ignorance.
In the case of State of Orissa and Others Vs. Chitrasen
Bhoi (supra), the Hon'ble Supreme Court reiterated that
a person, who preferred an application under Section 18
of the Act cannot maintain an application under Section
28-A of the Act. The learned counsel for the petitioner -
Corporation placed much emphasis on the said
judgments while contending that the impugned orders
deserved to be set aside.
15. On the other hand, a perusal of the judgments
on which reliance was placed by the learned counsel for
the respondent - claimants shows that the Hon'ble
Supreme Court and following the law laid down, this
Court, have emphasized on the fact that mere filing of
applications under Section 18 of the Act, ought not to
deprive land owners like the respondent - claimants
herein, to maintain applications under Section 28-A of
the said Act, particularly when the reference
applications stood rejected for technical reasons or when
such reference applications did not run their full course
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and they were never answered on merits by the
reference Court.
16. In the Constitution Bench judgment in the case
of Union of India and Another Vs. Hansoli Devi and
Others (supra), the Hon'ble Supreme Court considered
the question as to whether a claimant whose application
under Section 18 of the said Act was dismissed on the
ground of delay or any another technical ground, was
entitled to maintain an application under Section 28-A
of the Act. While answering the question in favour of
the claimants, the Hon'ble Supreme Court in paragraph
9 held as follows:
"It is no doubt true that the object of Section 28-
A of the Act was to confer a right of making a
reference, (sic on one) who might have not made
a reference earlier under Section 18 and,
therefore, ordinarily when a person makes a
reference under Section 18 but that was
dismissed on the ground of delay, he would not
get the right of Section 28-A of the Land
Acquisition Act when some other person makes a
reference and the reference is answered. But
Parliament having enacted Section 28-A, as a
beneficial provision, it would cause great
injustice if a literal interpretation is given to the
expression "had not made an application to the
Collector under Section 18" in Section 28-A of
the Act. The aforesaid expression would mean
that if the landowner has made an application for
reference under Section 18 and that reference is
entertained and answered. In other words, it
may not be permissible for a landowner to make
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a reference and get it answered and then
subsequently make another application when
some other person gets the reference answered
and obtains a higher amount. In fact, in Pradeep
Kumari Case the three learned Judges, while
enumerating the conditions to be satisfied,
whereafter an application under Section 28-A can
be moved, had categorically stated (SCC p. 743,
para 10) "the person moving the application did
not make an application to the Collector under
Section 18". The expression "did not make an
application", as observed by this Court would
mean, did not make an effective application
which had been entertained by making the
reference and the reference was answered. When
an application under Section 18 is not
entertained on the ground of limitation, the same
not fructifying into any reference, then that
would not tantamount to an effective application
and consequently the rights of such applicant
emanating from some other reference being
answered to move an application under Section
28-A cannot be denied. We, accordingly answer
Question 1(a) by holding that the dismissal of an
application seeking reference under Section 18
on the ground of delay would tantamount to not
filing an application within the meaning of
Section 28-A of the Land Acquisition Act, 1894."
17. Thus, the Constitution Bench of the Hon'ble
Supreme Court in the above quoted judgment, has
placed emphasis on the fact that even if a reference
application is moved under Section 18 of the said Act,
unless it is entertained and answered, there would be
no bar for the claimant to move an application under
Section 28-A of the Act.
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18. The aforesaid judgment of the Constitution
Bench of the Hon'ble Supreme Court had taken into
consideration the earlier judgment of a three Judge
Bench of the Court in the case of Union of India and
Another Vs. Pradeep Kumari and Others (supra),
wherein, it was recorded that one of the conditions for
maintaining an application under Section 28-A of the
said Act was that such a claimant had not moved the
reference Court under Section 18 of the said Act.
19. In the case of V. Ramkrishna Rao Vs. Singareni
Collieries Company Limited and Another (supra), the
Hon'ble Supreme Court held that insertion of Section
28-A of the said Act represented statutory embodiment
of the doctrine of equality in matters relating to
acquisition of land. It was further held that the said
provision represented the determination of the
legislature to ensure that the goal of equity enshrined in
the preamble of the Constitution and Articles 38, 39
and 46 thereof was translated into reality. It was also
noted in the said judgment that when a claimant moved
an application under Section 28-A of the said Act, he
could never get compensation higher than the one
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payable to those who had sought reference under
Section 18 of the Act.
20. In the case of Narendra and others Vs. State of
Uttar Pradesh and others (supra), the Hon'ble Supreme
Court emphasized that the whole purpose of the
aforesaid Act was to pay fair and just compensation to
the claimants. It was emphasized that a purposive
interpretation of the provisions of the said Act was
necessary to subserve the ends of justice, particularly
when the cases of vulnerable groups were decided.
21. A Division Bench of this Court in the case of
Dagu Ganpat Kathe and others Vs. Special Land
Acquisition Officer, Nashik and others (supra) followed
the dictum laid down in the above-mentioned
Constitution Bench judgment of the Hon'ble Supreme
Court in the case Union of India and Another Vs.
Hansoli Devi and Others (supra), by holding that when
a reference application under Section 18 of the Act filed
by a claimant was dismissed on the ground of
limitation, such a claimant could certainly maintain an
application under Section 28-A of the Act. In the case of
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Punja s/o Narayan Polade deceased through Lrs Vs.
State of Maharashtra and another (supra), this Court
categorically held that the bar of maintaining an
application under Section 28-A of the said Act on the
ground that a reference application under Section 18
thereof had been filed, would operate only when such a
reference application had been effectively decided on
the touch stone of the procedure prescribed under
Sections 20, 21, 23 and 24 of the said Act, leading to an
Award under Section 26 thereof. It was emphasized
that the Award was in the form of a decree and that it
was a formal expression of an adjudication conclusively
determining the rights of the parties with regard to all
or any of the matters in controversy. It was laid down
that in the absence of an Award as understood under
Section 26 of the Act, there could be no bar for the
claimant to maintain an application under Section 28-A
of the Act. In the said case, the reference application
stood rejected on the ground that the father of the
petitioner before the Court had failed to lead evidence
in support of his claim. Even in such a situation, it was
held that application under Section 28-A of the said Act
was maintainable.
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22. In the case of Sk. Allauddin s/o Sk. Jilani Vs.
The State of Maharashtra (supra), the reference Court
framed points on merits along with a point on the
question of limitation. Upon considering the material on
record, the reference Court in that case held that the
reference application was barred by limitation and yet,
it considered the entire evidence on record and
rendered findings on the points pertaining to the merits
of the reference also. Even in such a situation, although
the reference Court had dealt with the matter on merits
and recorded its findings thereon, this Court held that
the application under Section 28-A of the said Act
moved by the claimant was maintainable.
23. Thus, perusal of the judgments on which
reliance has been placed by the learned counsel
appearing for the rival parties would show that
ordinarily when an application under Section 18 of the
said Act is moved by a claimant, it could be a bar for
such a claimant to move an application under Section
28-A of the said Act. But, at the same time, mere filing
of a reference application under Section 18 of the said
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Act cannot be said to be a bar under all circumstances
for such a claimant to resort to the remedy of Section
28-A of the said Act. It is only when the reference
application moved under Section 18 of the said Act runs
its full course and stands effectively decided in the form
of rendering of Award on merits under Section 26 of the
said Act by the reference Court, that the claimants in
such a situation, would be barred from moving an
application under Section 28-A of the said Act. It
cannot be said that merely because a reference
application is moved by the claimant under Section 18
of the said Act, such a claimant cannot move an
application under Section 28-A thereof at all. It is
necessary that such a reference application is effectively
answered by the reference Court, to dis-entitle such a
claimant from moving an application under Section 28-
A of the said Act.
24. Applying the aforesaid position of law to the
facts of the present case, it becomes clear that there is
no substance in the contentions raised on behalf of the
petitioner - Corporation before this Court. There is no
dispute about the fact that the respondent - claimants
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did move reference applications under Section 18 of the
said Act. But, it is also an admitted position that they
unconditionally withdrew the said applications without
any determination on merits of such reference
applications and the claims made therein. The stage of
leading evidence and consideration of factors to be
applied under Sections 23 and 24 of the said Act for
determination of compensation was never reached in
the facts and circumstances of the present, thereby
showing that the claims of the respondent - claimants
were not considered and decided on merits and there
were no Awards rendered under Section 26 of the said
Act. These admitted facts clearly show that the
respondent - claimants in the present case were
certainly entitled to maintain their applications for re-
determination of compensation under Section 28-A of
the said Act. There can be no doubt about the fact that
the limited relief the respondent - claimants could
claim under Section 28-A of the said Act was grant of
compensation at par with similarly situated claimants
whose reference applications had been decided on
merits by the reference Court.
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25. In view of the above, this Court finds that there
is no merit in the contentions raised on behalf of the
petitioner-Corporation. Accordingly, the Writ Petitions
are dismissed. There shall be no order as to costs. Rule
is discharged.
JUDGE
MP Deshpande
