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

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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

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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.

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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.

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(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  another  1,  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  others  2,  reiterated  Babua  Ram

(supra)  to  hold  that   since  an  appeal  preferred  by  the 2 (1995) 2 SCC 766

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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

others  3, 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  Collector  5,  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

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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

others  6,  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

another  7, this Court held that in the facts of the case, the 6  (2006) 4 SCC 538 7  (2009) 1 SCC 754

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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

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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

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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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