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BABU NANDAN versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Babu Nandan v. State Of U.P. And Others - WRIT - C No. 54889 of 2003 [2006] RD-AH 2674 (6 February 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

(Court No. 35)

Civil Misc.  Writ Petition No. 54889 of 2003.

Babu Nandan. Vs.    State of U.P. and others.

--------------------

Hon'ble R.P.Misra,J.

Hon'ble Sanjay Misra, J.

(Delivered by Hon'ble R.P.Misra,J.)

Having heard Sri A.P. Srivastava, learned counsel for the petitioner and learned Standing Counsel for the respondents, the  writ petition was allowed in open Court on 6.2.2006, but the reasons were to follow. The reasons are as under:

By means of this writ petition under Article 226 of the Constitution of India, the impugned order dated 11.9.2003 passed by the  Special Land Acquisition Officer, Varanasi, the respondent no.3, is sought to be quashed.

In short the fact relevant for determination of actual controversy involved in this case is that by a notification dated 30.8.1985 under Section 4 of the Land Acquisition Act, 1894 (for short the "Act"), land of the petitioner and other persons was acquired for construction of Ram Nagar- Mughalsarai Bye-pass Road. The notification under Section 6 of the Act with regard to the aforesaid acquisition was issued on 31.8.1985. The Special Land Acquisition Officer, Varanasi gave the award on 7.1.1970.

Admittedly, no application was filed by the petitioner before the Special Land Acquisition Officer, Varanasi for referring the matter under Section 18 of the Act. One  Jhillu, one of the land holders made an application under Section 28-A of the Act for redetermination of the amount of compensation in accordance with law, upon which reference no. 133 of 1992, Jhillu Vs. Collector and others was made and ultimately the aforesaid reference was allowed on 24.5.1993.

On 14.7.1993, petitioner also made an application under Section 28-A of the Act for redetermination of the amount of  compensation, on the basis of award dated 24.5.1993 of the Court in aforesaid reference no. 133 of 1992 (Jhillu Vs. Collector and others) with regard to the land covered by the same Notification but by the impugned order dated 11.9.2003, the application of the petitioner has been dismissed by the respondent no. 3, as not maintainable.

The relief sought by this writ petition is that the respondents may be directed to redetermine the amount of compensation awarded to the petitioner, on the basis of award of the Court dated 24.5.1993 passed in reference No. 133 of 1992 (Jhillu Vs. Collector and others)  and to pay the compensation to the petitioner also on the same rate on which it has been paid to Jhillu i.e. Rs. 4,000/- per decimal.

The short point for determination by this Court is as to whether or not, the application of the petitioner under Section 28-A of the Act was maintainable in the facts and circumstances of the present case.

Placing strong reliance on a decision of Kerla High Court in P.V. Joseph Vs. District Collector, Kottayam and another (2004 (2) L.A.C.C. Page 610, decided on 25.6.2004), learned counsel for the petitioner contended that the application dated 14.7.1993 under Section 28-A of the Act made by the petitioner was fully maintainable.

In  P.V.Joseph (supra), in similar situation Hon'ble Kerla High Court relying on several decisions of the Supreme Court including Union of India Vs. Pradeep Kumari (A.I.R.1995 SC 2259), allowed the  writ petition and held that the petitioner in that petition was entitled to rely on award passed by the reference Court under Section 28-A (3) of the Act for maintaining his application under Section 28-A of the Act.

In Pradeep Kumari's case (supra) their Lordship's of Apex Court considered the objects and reasons underlying Section 28-A, which was introduced into the Act through the amending statute 68 of 1984 and held that the objects underlying the enactment of Section 28-A is to remove inequality in the payment of compensation for same or similar quality of land and the Provisions of Section 28-A are in the nature of beneficial provisions intended to remove inequality and to give relief to  inarticulate and poor people, who were not able to take advantage of right of reference to the Civil Court under Section 18 of the Act.

In Pradeep Kumari's case (supra) their Lordship's of Apex Court laid down six conditions to be satisfied so as to enable a person to seek redetermination of the amount of compensation payable to him. The six conditions are as under:

(i)"An award has been made by the Court under Part III after the coming into force of Section 28-A;

(ii)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.

(iii)The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4 (1) to which the said award relates;

(iv)The person moving the application did not make application to the Collector under Section 18;

(v)The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought and;

(vi)Only one application can be moved under Section 28-A for redetermination of compensation by an applicant."

In  P.V.Joseph (supra) it has been further observed that it must now be noticed that even though almost all decisions of the Supreme Court rendered in the contest of Section 28-A highlight the section as beneficial provision intended to confer equal justice in the matter of land value for the acquired property to knowledgeable land owner, who sought reference under Section 18 and illiterate and inarticulate owner, who failed to seek such reference as two Judge Bench of the Supreme Court has in a relatively recent decision observed that who soever wants to take advantage of the beneficial legislation has to be vigilant and has to take appropriate action within the prescribed time. The above observation is made by the Supreme Court in State of A.P. Vs. Marri Venkaiah, (2003) 7SCC 280 = 2003 (2) LACC 603 SC wherein the Supreme Court reiterated that the period of limitation for applications under Section 28-A is three months from the date of the award of the Court and not three months from the date of the knowledge of the award. This decision, however, does not at all deal with the question whether or not awards passed on references under Section 28-A (3) can be relied on by applicants in Section 28-A applications. Their Lordship's were only reiterating the view already taken by the Supreme Court in Tota Ram Vs. State of U.P. (1997) 6 SCC 280).

In view of the discussions made above, we are of the considered opinion that  the petitioner is entitled to rely on award passed by the reference Court under Section 28-A (3) of the Act in reference no. 133 of 1992 (Jhillu Vs. Collector and others) for maintaining his application under Section 28-A of the Act. Therefore, the impugned order dated 11.9.2003 is apparently  illegal and liable to be quashed.

Accordingly the  writ petition succeeds and is allowed. The impugned order dated 11.9.2003 passed by respondent no.3 is quashed. The Special Land Acquisition Officer, Varanasi, the respondent no.3 is directed to decide the application of the petitioner dated 14.7.1993 under Section 28-A of the Act, on the basis of award dated 24.5.1993 passed in reference no. 133 of 1992 (Jhillu Vs. Collector and others), within a period of three months from the date of filing of a certified copy of this order before him.

There shall be no order as to costs.

Dated:6.2.2006

Kst/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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