Amir Chand Singla vs Land Acquisition Collector ...
2010 Latest Caselaw 5880 Del

        *                IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Reserved on : 29.11.2010
        %                                           Date of decision : 24.12.2010

        +                             WP (C) No.800/2010

        AMIR CHAND SINGLA...                      ...       ...       ...       ...PETITIONER


                     Through :          Mr.Arvind Nigam, Sr.Adv. with Mr.Ram
                                        Niwas, Advocate.


                                        -VERSUS-

        LAND ACQUISITION COLLECTOR (SOUTH WEST)
        & ORS.                        ...   ...     RESPONDENTS


                       Through :        Mr.Sanjay Poddar, Advocate for R-1,
                                        R-2 and R-4.

                                        Mr.Rajiv Bansal, Ms.Kanika Agnihotri
                                        and Mr. Amandeep, Advocates for R-3.


        CORAM:
        HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
        HON‟BLE MS. JUSTICE VALMIKI J.MEHTA


        Whether the Reporters of local papers
        may be allowed to see the judgment?                             YES

        To be referred to Reporter or not?                              YES

        Whether the judgment should be                                  YES
        reported in the Digest?


        SANJAY KISHAN KAUL, J.

1. The alleged reference sought by the predecessors-in-

interest of the petitioner under Section 18 of the Land

Acquisition Act, 1894 („the said Act‟ for short) which

reference was actually never made qua the portion of

the land of the petitioner is forming the basis of rejection

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of the claim of the petitioner for enhanced compensation

on parity with his co-owner under Section 28-A of the

said Act.

2. The facts of the case are that Sh.Khyali Ram s/o

Sh.Bharta and Sh.Kaptan Singh, Sh.Ran Singh, Sh.

Ranbir Singh and Sh.Dharambir Singh, all sons of Sh.

Khyali Ram, were the co-owners/co-bhumidars of the

land measuring 565 bighas and 19 biswas situated in the

village Lado Sarai, New Delhi in respect of which a

notification was issued under Section 4 of the said Act on

23.01.1965 seeking to acquire land for planned

development of Delhi followed by a declaration under

Section 6 of the said Act on 07.12.1966. The co-owners

entered into an agreement to sell in respect of 346

bighas and 5 biswas of land forming part of the aforesaid

title land in 1987-88. However, some disputes arose in

respect of the sale and thus the petitioner and Sh.Madan

Lal Mittal filed a suit in the year 1992 which was

ultimately decreed in the year 1994 and resulted in

execution of a sale deed on 22.11.1975, which was duly

registered and mutation carried out in pursuance

thereto. In terms of the sale deed, 2/3rd of the land fell

to the share of the petitioner while 1/3rd of the land fell

to the share of Sh.Madan Lal Mittal. The Award

No.21/1989-90 in respect of the acquisition proceedings

was made on 16.10.1989 in respect of the land owned

by the co-owners and the original land owners sought a

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reference under Section 18 of the said Act on

27.11.1989 for enhancement of compensation. The

reference was, however, made in the year 2003 in

respect of total land of 565 bighas and 19 biswas less

346 bighas and 5 biswas forming subject matter of the

sale deed. The reference order notes that the physical

possession of the land was taken over on 10.12.1998,

11.12.1998 and 12.12.2002 and the land measuring 346

bighas and 5 biswas had not been included in the

reference.

3. Another reference was also made on 31.03.2003 in

respect of 1/3rd share of the co-owner of the petitioner

Sh.Madan Lal Mittal at the request of Sh.Mittal.

4. The reference was decided on 05.04.2004 by the learned

Additional District Judge enhancing the compensation

from Rs.3,300/- to Rs.20,000 per bigha. The

compensation is stated to have been paid in terms

thereof and accepted by the beneficiaries.

5. It is the case of the petitioner that he had never sought a

reference and on the compensation being enhanced,

filed an application under Section 28-A of the said Act

within the stipulated period of 3 months for grant of

more compensation to the petitioner in respect of his

2/3rd share of the land acquired vide sale deed dated

22.11.1995. Arguments were concluded on this

application and judgment was reserved by the LAC on

25.01.2007 but since for almost two years no order was

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passed, the petitioner approached this Court by filing

CWP No.7425/2009. On the writ petition being filed, the

LAC recused himself from the matter as certain

allegations had been made in the writ petition against

him. The result was that a new LAC was assigned the

case who has passed the impugned order dated

28.10.2009. The LAC found that the original co-owners

had filed a reference petition on 30.11.1989 and

thereafter Sh.Khyali Ram passed away on 20.09.1991

and his share was inherited by his four sons whose

names were mutated in the revenue records. The

petitioner had purchased 2/3rd share of the sons of

Sh.Khyali Ram vide sale deed dated 22.11.1995 while

Sh.Madan Lal Mittal had acquired 1/3rd share vide sale

deed dated 22.11.1995. It was contended that since

Sh.Khyali Ram and his four sons had sought a reference

including in respect of the land sold to the petitioner and

Sh.Madan Lal Mittal, it was treated as a reference sought

even on behalf of the petitioner and thus must be bound

by the acts of their predecessors-in-interest. The ADM

found that the provisions of Section 28-A of the said Act

were not applicable. A reference has been made to

certain judgments cited, but those judgments have not

been recorded. A further fact taken note of is that in the

sale deed dated 22.11.1995 executed in favour of the

petitioner, clause 9 records that a reference has been

made under Section 18 of the said Act by the vendors

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and the vendees are entitled to substitute their own

names in the reference petition. This was held to imply

that the petitioner had knowledge about the pendency of

the reference petition and thus the proper remedy under

law was to continue the proceedings under Section 18 of

the said Act. The said clause 9 reads as under:

"9. That vendees are entitled to file the reference under section 18 of the Land Acquisition Act, 1894 in their own names for enhancement of compensation amount etc. in respect of aforesaid lands or part thereof or substitute their own names in the reference petition (s) already filed by the vendors."

6. The petitioner by way of the present writ petition under

Articles 226 and 227 of the Constitution of India has

pleaded that no reference petition was ever filed by the

petitioner under Section 18 of the said Act nor was any

reference made in respect of land in question at the

behest of predecessors-in-interest of the petitioner.

Thus, the petitioner claims the benefit under Section 28-

A of the said Act. The reference made specifically

excluded the land of the petitioner and Sh.Madan Lal

Mittal. Sh. Madan Lal Mittal had filed a separate

reference under Section 18 of the said Act qua his share

and it is only the land of the petitioner which was not

subject matter of any reference petition. The petitioner

claims entitlement to parity with his co-owner/co-sharer

Sh.Madan Lal Mittal.

7. The petitioner relies on the fact that the reference made

by the LAC only pertains to Sh.Kaptan Singh and Ors., all _____________________________________________________________________________________________

sons of Sh.Khyali Ram, wherein the share of Sh.Kaptan

Singh & Ors was limited to the extent of 144 bighas and

8 biswas and this fact was mentioned in the revised

statement under Section 19 of the said Act forwarded to

R-2/LAC along with a reference. It is also recorded that

the remaining land was not included in view of the

petitioner Sh.Madan Lal Mittal being the owner.

Sh.Madan Lal Mittal sought a separate reference in

respect of his 1/3rd share registered as LAC Case

No.5/2003. The petitioner on coming to know about the

judgment of the learned ADJ in LAC Case No.5/2003

dated 05.04.2004, obtained a certified copy of the order

and immediately filed an application under Section 28-A

of the said Act on 24.05.2004 and thus the same was

filed within the prescribed period of limitation of three

months. In the counter affidavit filed by R-2, the

impugned order is sought to be supported on the same

terms as recorded in the order.

8. The aforesaid limited factual matrix has to be examined

in the light of certain judgments of the Supreme Court

and this court which have been referred to by both the

learned counsel for the parties. However, before

proceeding to do so we consider it appropriate to

reproduce the relevant Section 28-A of the said Act,

which is as follows:

"28A. Re-determination of the amount of compensation on the basis of the award of the Court. -

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(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 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, required 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."

9. Learned counsel for LAC referred to the order passed in

Mewa Ram (Deceased) by his LRs and Ors. V. State of

Haryana through the Land Acquisition Collector,

Gurgaon; (1986) 4 SCC 151. The counsel for the

claimants in that case confined the submission to the _____________________________________________________________________________________________

consequences of change in law by introduction of

Sections 25 and 28-A in the said Act by way of Land

Acquisition (Amendment) Act, 1984. On the basis of the

introduction of these provisions, it was contended that

the courts should not be unduly technical and deprive

the citizens of their legitimate claims. It is in that

context that the concession of the counsel for the

claimants/petitioners is recorded that the claimants in

that matter did not belong to the class of society for

whose benefit the provision is intended i.e. inarticulate

and poor people. It was, however, also noted that the

petitioners had all applied for reference under Section 18

of the said Act.

10. We find strength in the plea of the learned counsel

for the petitioner that the reliance on this judgment is

misplaced. Firstly, it is not a judgment but merely an

order. Secondly, a judgment and/or an order has to

apply to the facts of a case as has been repeatedly

observed by the Supreme Court. The opening sentence

of the order thus sets out the controversy which was

covered by the Supreme Court and said sentence reads

as under:

"In these special leave petitions which was much belated, the only question was whether the court should entertain the petitions despite the delay and grant special eave merely because this Court in Paltu Singh v. State of Haryana and Nand Kishore v. State of Haryana enhanced the rate of compensation for the adjacent land to Rs.17.50 per square yard."

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The appeals were barred by 1079 days in one case

and by 1146 days in the other case. Thirdly, it is clearly

noted in para 4 of the order that the petitioner had

applied for reference under Section 18 of the said Act

and thus the Supreme Court came to the conclusion that

even otherwise there was no provision in the said Act

apart from Section 28-A for re-opening of an award

which had become final and conclusive.

11. Learned counsel for LAC also referred to the

observations of the Supreme Court in Kendriya

Karamchari Sehkari Grah Nirman Samiti Limited, NOIDA

v. State of Uttar Pradesh and Anr.; (2009) 1 SCC 754

where the plea of the authorities was recorded that the

Statement of Objects and Reasons behind enacting

Section 28-A of the said Act was explicitly clear and the

provision had 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 LAC

by seeking a reference. The additional plea was that the

application under Section 28-A of the said Act could have

been made only by "person interested". The land had

been purchased by the appellant post issuance of

notification under Section 4 of the said Act and a

declaration under Section 6 of the said Act and thus

should not be termed as "person interested". The

Supreme Court referred to the judgment in Mewa Ram

(Deceased) by his LRs and Ors. V. State of Haryana _____________________________________________________________________________________________

through the Land Acquisition Collector, Gurgaon‟s case

(supra) holding that the provisions were not intended to

re-open an award which had attained finality and was of

binding nature. Some of the observations made in the

judgment which are germane are reproduced herein

asunder:

"37. A Constitution Bench of this Court in Union of India v. Hansoli Dev held that dismissal of an application seeking reference under Section 18 on the ground of delay also would not come in the way of the claimant for redetermination of compensation under Section 28-A 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.

38. 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 28-A of the Act within the period specified in the said section and may seek the same relief which has been granted to other landowners by the Reference Court.

39. 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 28-A of the Act is concerned.

40. It is true that once the 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 28-A 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 _____________________________________________________________________________________________

the 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 (the Supreme Court), the Collector would be within his power or authority to keep the application under Section 28-A 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 14-1- 1994 and 13-6-2001.

41. We see no illegality in keeping the applications under Section 28-A of the Act pending till the issue is finally settled by the Court and a decision has been arrived at."

12. The ratio is thus apparent which is contained in

para 41 above. This is also clear from the observations

made in para 44 of the judgment that the Collector was

right in not deciding the application under Section 28-A

of the said Act in view of the fact that the order passed

by the Reference Court was challenged by the

authorities by filing appeals before the High Court. The

Supreme Court observed in para 47 that they were not

deciding about the locus standi of the appellant.

13. We thus fail to appreciate how the aforesaid

judgment in any manner comes to the aid of the plea

advanced by learned counsel for LAC as the question

being examined was as to whether the LAC could keep

an application pending moved under Section 28-A of the

said Act to finally await the decision of a superior court

in an appeal against the reference.

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14. In Union of India and Anr. v. Hansoli Devi and Ors.;

(2002) 7 SCC 273, the scope and ambit of Section 28-A

of the said Act was examined. It would suffice to re-

produce para 9 which reads as under:

"9. Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-A, we think it appropriate to bear in mind certain basic principles of interpretation of a statute. The rule stated by Tindal, C.J. in Sussex Peerage case still holds the field. The aforesaid rule is to the effect: (ER p.1057)

"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do, in such case, best declare the intention of the lawgiver."

It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd. Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (All ER p. 366 C-D)

"A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning."

It is no doubt true that if on going through the plain meaning of the language of

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statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway, Light Heat & Power Co. Ltd. v. Vandry it had been observed that the legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. Bearing in mind the aforesaid principle, let us now examine the provisions of Section 28-A of the Act, to answer the questions referred to us by the Bench of two learned Judges. 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

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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 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."

(emphasis supplied)

15. The observations made by the Supreme Court

leave no manner of doubt that the provisions of Section

28-A of the said Act have been read in a manner so as to

preclude the benefit under the provisions of Section 28-A _____________________________________________________________________________________________

of the said Act only if an application for reference under

Section 18 of the said Act is made and is followed up

with a reference being entertained and answered.

16. The Division Bench of this Court in Smt.Kalawati &

Ors. V. Union of India & Ors.; 111 (2004) DLT 81 (DB)

relied upon the ratio of Jalandhar Improvement Trust v.

State of Punjab and Ors.; (2003) 1 SCC 526 to grant

compensation at parity with other co-owners when the

application under Section 28-A of the said Act was filed

by those co-owners whose application for reference

under Section 18 of the said Act was rejected albeit on

the ground of delay. It was held by the Supreme Court

that co-owners of the land could not be given different

treatment. It was thus observed that the first principle

of law would require that co-owners are entitled to have

benefit of enhanced compensation given to other co-

owners qua the same land acquired which belonged to

all of them jointly. The relevant paras 20 and 21 are

reproduced herein as under:

"20. Answer to the aforesaid submission of Mr.Poddar is provided by the Supreme Court in the case of Jalandhar Improvement Trust (Supra). That was also a case of co-

owners of land. After the compensation was fixed by the LAC in his Award, respondent No.4 had sought reference under Section 18 of the Act which was rejected because of delay. However, reference of the petitioners 2 to 5, who were co-owners of land along with respondent No.4, was allowed and enhanced compensation was granted. After enhancement of the compensation, respondent No.4 moved an application _____________________________________________________________________________________________

under Section 28A of the Act, which was allowed by the LAC. Jalandhar Improvement Trust, the beneficiary in which the land was acquired, challenged it by filing writ petition which was dismissed by a Division Bench of the Punjab & Haryana High Court. In further appeal to the Supreme Court, the Jalandhar Improvement Trust took up the contention to the effect that Section 28A was not applicable as it was not a case where respondent No.4 had not sought reference under Section 18 of the Act but said reference was rejected albeit on the ground of delay. The Supreme Court did not deem it even necessary to go into this question and dismissed the appeal of the Jalandhar Improvement Trust holding that co-owners of the land could not be given differential treatment. It would be apposite to quote the exact discussion on this aspect from the judgment itself:

"Para 4: The learned Senior Counsel for the appellant strenuously contended that inasmuch as the claim of the 4th respondent came to be rejected by the very same award dated 5-2-1986, no advantage can be taken by the 4th respondent who has not challenged that part of the award rejected her claim for availing of the benefit of Section 28-A of the Act and that to a case like the one on hand, Section 28-A will have no application. The learned counsel for the 4th respondent relied upon the judgment of the Constitution bench reported in V (2002) SLT 224 = IV (2002) CLT 5 (SC) = (2002) 7 SCC 273, Union of India v.Hansoli Devi.

Para 5: Having regard to the view we propose to take and the manner of disposal intended to be given, it is unnecessary for us to even advert to the relevance or applicability of Section 28-A of the Act to the case of the nature before us. The 4th respondent indisputably is a co-owner along with her children who were added as Petitioners 2 to 5 to the award dated 5-2- 1986, in which case, even on the first principles of law one co-owner is entitled to have the benefit of the enhanced _____________________________________________________________________________________________

compensation given in respect of the other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them, jointly. So far as the fact that in this case the 4th respondent's application for reference under Section 18 was rejected by the Tribunal ultimately on the ground that the reference was made on a belated application, does not make any difference and, is no reason, in our view, to differentiate the claims of such co-owners whose claims came to be really sustained and that of the 4th respondent for differential treatment. We are fortified to some extent in the view expressed above, by principles laid down by this Court in the decision reported in A.Viswanatha Pillai v.Special Tehsildar for Land Acquisition, (1992) 4 SCC 17.

Para 6: In the light of the above conclusion of ours, and finding that real and substantial justice has been done to the parties, we decline to interfere with the order made by the Land Acquisition Collector, giving the benefit of enhanced compensation to the 4th respondent."

21. Reading of the aforesaid judgment makes it clear that it was treated as the first principles of law that a co-owner is entitled to have the benefit of the enhanced compensation given to the other co-owners qua the same land acquired which belonged to all of them, jointly. It can thus be clearly concluded that this judgment is the authority for the proposition that even if the case does not fall strictly within the ambit of Section 28A of the Act, still on the principle of parity, another exception is carved out, namely, when the acquired land belongs to co-

owners jointly, which is subject matter of acquisition, all the co-owners are to be given the same compensation and they cannot be treated differentially. This is inherent in the concept of co-ownership itself as laid down by the Supreme Court in the case of A.Viswanatha Pillai (supra) in the following words:

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" It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would ensure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenery under Hindu law by all the coparceners. In Kanta Goel V. B.P.Pathak : [1977] 3 SCR 814 this court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha Vs. Jagannath (1976) 4 SCC 184 and Pal Singh Vs. Sunder Singh: (1989) 1 SCC 444. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co-owner's property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. therefore, a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rate. The State would plead no waiver nor omission by other co- owners to seek reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled."

(emphasis supplied)

17. In our considered view the facts are clear in the

present case. The stand of R-2/LAC at best is that a

reference was sought by the predecessors-in-interest of

the petitioner. It is, however, not in dispute that in the

subsequent sale deed executed in favour of the

petitioner, it had been observed that the petitioner and

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the other co-owner Mr.Madan Lal Mittal could either get

themselves impleaded in the application seeking

reference or file a separate application for reference.

The two purchasers did not get themselves impleaded

and thus no reference was made in their case by the

LAC. On a separate application of Mr.Madan Lal Mittal, a

reference was made. In the earlier reference, the land of

the petitioner and Mr.Madan Lal Mittal was specifically

excluded from the purview of reference. The

respondents have relied upon a letter of an advocate of

the petitioner in response to a query raised by the ADM

(the letter raising the query is not on record) where the

advocate stated that the signatures of the petitioner

herein and the advocate are verified on the reference

petition. However, no copy of such reference application

has been produced. Similarly, in the counter affidavit at

page 488 of the paper book, it has been averred as

under:

"The petitioner chose not to file any reference under Section 18 within the statutory time period and thus, he gave up his right to claim enhanced compensation under Section 18 of that Act."

The aforesaid shows the inconsistent stand of the LAC

even in respect of the fact that whether any application

was filed by the petitioner and the counter affidavit

proceeds on the basis that the petitioner steps into the

shoes of his predecessors-in-interest. The fact, however,

remains that the land of the petitioner and his co-owners

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was specifically excluded from the reference made in

respect of the application filed by the original co-owners

who had sold the land to the petitioner and his co-

owners under Section 18 of the said Act.

18. We find the impugned order completely

unsustainable in view of the aforesaid facts and the legal

principles enunciated in Union of India and Anr. v.

Hansoli Devi and Ors.‟ case (supra) which have

explained the scope and ambit of Section 28-A of the

said Act. A literal construction has been eschewed and

the provisions have been interpreted to imply that only

where a reference is made and answered, would an

application under Section 28-A of the said Act not lie.

The impugned judgment notes that certain judgments

have been cited but did not even care to refer to them

apparently as the reasoning in the impugned order

would fly in the face of the judgments both of the

Supreme Court and of this Court.

19. We are of the unequivocal view that the petitioner

is entitled to succeed in his application filed under

Section 28-A of the said Act and is thus entitled to

compensation at par with his co-owners Mr.Madan Lal

Mittal. The compensation has been assessed at

Rs.20,000/- per bigha.

20. The respondents are directed to take necessary

steps to expeditiously process the balance payment to

be made to the petitioner in respect of the compensation

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and interest etc. and the same be remitted to the

petitioner within one month from today on the petitioner

completing necessary formalities. The petitioner is

already 80 years old and must receive the fruits of his

success being the appropriate compensation for his land

which has been acquired.

21. The writ petition is allowed with costs quantified at

Rs.20,000/-.

SANJAY KISHAN KAUL, J.

DECEMBER 24, 2010 VALMIKI J.MEHTA, J. dm

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