Section 28A of The Land Acquisition Act, 1894 – No doubt, the second application dated 27.05.2009 for re-fixation in light of the appellate court judgment is not maintainable. However, since the Collector is also at fault in deciding the application when the matter was pending in appeal, we are of the view that in the peculiar facts of the instant case, the application dated 31.12.1992 should be considered afresh. The Land Acquisition Collector is directed to consider afresh the Section 28A application dated 31.12.1992 and pass orders in the light of the judgment of the High Court dated 23.03.2009 in First Appeal Nos.569 and 570 of 1997 on the file of the High Court of Bombay, Bench at Aurangabad. For enabling the Collector to pass orders as above, the order dated 25.10.2000 is set aside. However, the amounts already paid are to be duly adjusted.

 

REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 21792 OF 2017
(Arising out of S.L.P.(Civil) No. 16449/2016)
BHARATSING S/O GULABSINGH JAKHAD & ORS. … APPELLANT (S)
VERSUS
THE STATE OF MAHARASHTRA & ORS. … RESPONDENT (S)
J U D G M E N T
KURIAN, J.:
Leave granted.
2. What is the course to be adopted by the Land Acquisition
Collector under Section 28A of The Land Acquisition Act,
1894 (hereinafter referred to as “the Act”), when the
award based on which enhancement is sought is pending
1
in appeal, is the issue arising for consideration in this
case.
3. The Section 4(1) Notification was issued on 17.01.1974.
The compensation was determined by the Land
Acquisition Officer on 04.06.1977. The appellants did not
pursue the matter further under Section 18 of the Act in
Reference. However, other claimants of the lands covered
by the same Section 4(1) Notification took up the matter
further and the Reference Court allowed enhancement
and fixed the land value at Rs.5,000/- per acre in the place
of Rs.3,000/3,500 offered by the Land Acquisition Officer,
as per the award dated 01.10.1992 in LAR Nos. 123 and
129 of 1983 on the file of the Second Additional District
Judge, Aurangabad. The appellants filed an application on
31.12.1992 under Section 28A of the Act seeking similar
enhancement within the period of three months as
required under Section 28A.
4. While the application under Section 28A of the Act was
pending, the award under LAR Nos. 123 and 129 of 1983
was challenged in appeals and there were also cross
2
objections. The High Court disposed of these appeals by
judgment dated 23.03.2009 granting compensation at the
rate of Rs.18,000/- per acre.
5. During the pendency of the appeal, it is seen that the
Land Acquisition Collector passed an award dated
25.10.2000 on the application filed by the appellants
under Section 28A of the Act, awarding compensation at
the rate of Rs.5,000/- per acre, as awarded in LAR Nos.
123 and 129 of 1983 referred to above.
6. On 27.05.2009, the appellants filed fresh applications
under Section 28A for enhancement of compensation
based on the judgment of the High Court dated
23.03.2009. They also approached the High Court praying
for the Writ of Mandamus. By the impugned order, the
Writ Petition was dismissed holding that Section 28A of
the Act permits only one application, and successive
applications as and when further enhancement is made,
are not permissible.
7. Thus aggrieved, the present appeal.
3
8. Section 28A of the Act which was inserted in 1984 reads
as follows :-
“28A. 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 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.
4
(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 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. The nuances of Section 28A have been subject matter of
various decisions of this Court. In Babua Ram and
others v. State of U.P. and another1
, one of the
questions considered by a two-judge Bench of this Court
was whether the Collector/LAO on receipt of application
under Section 28A (1) is bound to re-determine the
compensation when the award is pending in appeal
before the High Court or appellate forum. This Court, at
paragraph- 39 held as follows“39.
The next question is whether the
Collector/LAO on receipt of the application
under sub-section (1) of Section 28-A is
bound to redetermine the compensation
while the award and decree under Section
26 is pending consideration in the appeal in
the High Court or appellate forum. If he
does so, whether award under Section
28-A(2) is illegal? It is settled law that the
decree of the trial court gets merged in the
1
(1995) 2 SCC 689
5
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
under Section 4(1) and the compensation
determined in the award under Section 11.
‘A’ received the compensation without
protest. ‘B’ and ‘C’ received the
compensation under Section 31 under
protest and sought and secured reference
under Section 18. The court enhanced the
compensation from the Collector’s award of
Rs 10,000 to Rs 20,000. ‘B’ did not file
appeal under Section 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
under Section 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
under Section 26 and of the High Court
under Section 54. There is nothing left for
redetermination. With a view to save ‘A’ or
‘B’ or the State from the consequences of
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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….”
Babua Ram (supra), also dealt with the question as to
when the period of limitation of three months begins to run
under Section 28A. The Court held that the period of three
months prescribed for application under Section 28A has to
be computed from the date of the first award.
10. Soon after the decision in Babua Ram (supra), this Court
in U.P. State Industrial Development Corpn. Ltd v.
State of U.P. and others2
, reiterated Babua Ram
(supra) to hold that since an appeal preferred by the
2
(1995) 2 SCC 766
7
State against the award of the District Judge under Section
26 was pending, the proper course would have been to
keep the application under Section 28A (1) pending till the
appeal was disposed of.
11. In Union of India and another v. Pradeep Kumari and
others3
, a three-judge Bench of this Court disagreed with
Babua Ram (supra) on the point that an application for
redetermination of compensation can be made only on the
basis of the first award made after coming into force of
Section 28A. It was clarified that compensation under
Section 28A could be availed of on the basis of any one of
the awards that has been made by the court after coming
into force of Section 28A provided that the application is
made within the prescribed period of three months from
the making of the award on the basis of which
re-determination is sought. This Court also laid down six
conditions for filing an application under Section 28A and
the sixth condition is- “only one application can be moved
3
(1995) 2 SCC 736
8
under Section 28A for redetermination of compensation by
an applicant”.4
12. Subsequently, in Jose Antonio Cruz Dos R. Rodriguese
and another v. Land Acquisition Collector5
, a
three-Judge Bench of this Court explained the scheme of
the Act and noted that Section 28A was under Part III of
the Act. Further, Section 2(d) of the Act defines ‘court’ to
mean principal Civil Court of original jurisdiction unless a
special judicial officer is appointed. Therefore, this Court
was of the opinion that in Section 28A the ‘award’ means
an award under Part III and ‘court’ can only mean the
court to which reference is made by the Collector under
Section 18. It was held that “the plain language of Section
28-A, therefore, prescribes the three months period of
limitation to be reckoned from the date of award by the
4 The other five conditions are- 1. The award has been made by the
court under Part III after coming into force of Section 28A; 2. By the said
award the amount of compensation in excess of the amount awarded by the
Collector under Section 11 has been allowed to the applicant in that
reference; 3. The person moving the Section 28A application is interested in
other land covered by the same Section 4 (1) notification to which the award
related; 4. The person moving the application did not make an application
under Section 18; 5.The application is moved within three months from the
date of the award on the basis of which redetermination of amount of
compensation is sought.
5
(1996) 6 SCC 746
9
Court disposing of the reference under Section 18, and not
the appellate court dealing with the appeal against the
award of the Reference Court”.
13. In Union of India v. Munshi Ram (Dead) By Lrs. and
others6
, while dealing with a situation where the
compensation awarded by the Reference Court was
modified by the High Court and further modified by the
Supreme Court in appeal, this Court held as follows at
paragraph-9:
“9. We hold that under Section 28-A of
the Act, the compensation payable to the
applicants is the same which is finally
payable to those claimants who sought
reference under Section 18 of the Act. In
case of reduction of compensation by the
superior courts, the applicants under
Section 28-A may be directed to refund
the excess amount received by them in
the light of reduced compensation finally
awarded.”
(Emphasis supplied)
14. In Kendriya Karamchari Sehkari Grah Nirman Samiti
Limited, Noida v. State of Uttar Pradesh and
another7
, this Court held that in the facts of the case, the
6
(2006) 4 SCC 538
7
(2009) 1 SCC 754
10
Collector was justified in not deciding the Section 28A
application on account of pendency of an appeal before
the High Court. In that case, the appellant had also
challenged the Government Orders as per which the
Collector could not have decided the Section 28A
application in case the order of the Reference Court
enhancing the compensation is challenged and the appeal
is pending before the High Court/Supreme Court. This
Court, specifically held that the Government Orders were
in consonance with the law laid down in Babua Ram
(supra).
15. In the case of the appellants, when their Section 28A
application was decided, based on awards in LAR Nos. 123
and 129 of 1983, the very same awards were pending in
appeal before the High Court. However, the Collector
proceeded to consider their application and decided the
same on 25.10.2000. Thereafter, fresh application under
Section 28A was filed on 27.05.2009 based on the
judgment of the High Court dated 23.03.2009. It was this
11
application that was held to be not maintainable, being a
second application.
16. Though there is no quarrel with the principle that only a
single application is maintainable, in the instant case,
unfortunately, the High Court omitted to take note of the
fact that the appeals on the relied on awards were
pending when the Section 28A application was decided.
That is the special and distinctive factual position in the
instant case. It must also be kept in mind that Section 28A
is a beneficial provision.
17. The Section 28A application dated 31.12.1992 based on
the awards in LAR Nos. 123 and 129 of 1983 was decided
on 25.10.2000 when the appeals therefrom were pending.
The Collector ought to have kept the application pending
till the appeals were decided on 23.03.2009. On principle,
the High Court is correct and justified in the view taken in
the impugned judgment that there cannot be successive
applications under Section 28A in view of Pradeep
Kumari (supra). But that is not the point arising for
consideration here. No doubt, the second application
12
dated 27.05.2009 for re-fixation in light of the appellate
court judgment is not maintainable. However, since the
Collector is also at fault in deciding the application when
the matter was pending in appeal, we are of the view that
in the peculiar facts of the instant case, the application
dated 31.12.1992 should be considered afresh.
Accordingly, the appeal is disposed of as follows. The
Land Acquisition Collector is directed to consider afresh
the Section 28A application dated 31.12.1992 and pass
orders in the light of the judgment of the High Court dated
23.03.2009 in First Appeal Nos.569 and 570 of 1997 on
the file of the High Court of Bombay, Bench at
Aurangabad. For enabling the Collector to pass orders as
above, the order dated 25.10.2000 is set aside. However,
the amounts already paid are to be duly adjusted.
18. The orders as above shall be passed by the Land
Acquisition Collector within three months from the date of
presentation of a copy of this judgment by the appellants
and the consequential benefits shall be disbursed to them
within another one month.
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19. There shall be no order as to costs.
……………………….J.
(KURIAN JOSEPH)
……………………….J.
(R. BANUMATHI)

NEW DELHI;
DECEMBER 12, 2017.
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