The Allahabad High Court while dismissing the petition said that in absence of being the aggrieved party while accepting the compensation and further the entire proceedings stood completed prior to insertion of Section 28A of the Act, 1894, the petitioners are not entitled for being granted enhanced compensation.
The Division Bench of Justice Justices Sunita Agarwal and Vikas Budhwar passed this order while hearing a petition filed by Pramod Sharma and Others.
The petition under Article 226 of the Constitution of India was presented on 28th February, 2023 and on 3.3.2023 the Court proceeded to pass the following order:-
“The order of rejection of the application under Section 28A filed by the petitioner herein indicates that the petitioners have accepted the award prepared by the Collector under Section 11(2) of the Land Acquisition Act. The issue, therefore, is as to whether after accepting compensation under the Karar Niyamawali, the petitioners can claim higher compensation determined under the reference court award, filed by such persons who did not accept the award.
Counsel for the petitioners prays for and is granted adjournment for the day to enable him to go through the matter to make his submission.
As prayed, put up this matter as fresh on 20.03.2023.”
Thereafter the matter was taken on 21.4.2023 wherein the Court passed an order which is extracted as below:-
“Case is called out. No one appears on behalf of the petitioners to press the case.
Apurva Hajela, Standing Counsel appears for the Staterespondents. Put up this case in the additional cause list on 27.04.2023 at 02:00PM.“
The case of the petitioners in the leading writ petition is that, they claim to be the recorded owners of a certain piece of land situated in Tehsil Loni, Pargana and District Ghaziabad.
As per the pleadings, acquisition proceedings were initiated by the State of U.P under the provisions of the Land Acquisition Act, 1894 for public purpose. The notification purported to be under Section 4(I) of the Act, 1894 was issued on 9.2.1962. Possession of the acquired land was taken on 26.5.1963, the award was made on 1.2.1964 for 236.7735 acres of land and a total compensation of Rs 7,35,707.24 was awarded.
It is the case of the petitioners that the compensation was initially awarded @ Rs 1.92 per square yard for the first belt, Rs 0.96 per square yard for the second belt and 0.48 per sq yard for third belt which was found to be inadequate, so references were made under Section 18 of the Act, 1894 before the District Judge, Ghaziabad by various claimants.
It is further the case of the petitioners, that they did not prefer any objection under Section 18 of the Act, 1894. The objections of the land owners (not the writ petitioners) were registered which was connected with other land acquisition references and by virtue of the order dated 10.4.1992, the reference court enhanced the compensation to the tune of Rs.40 per square yard, the claimants were also made entitled to additional amount calculated at the rate of 12% per annum from the date of the acquisition under Section 4(I) of the Act, 1894 i.e 9.2.1962 to the date of taking possession on 26.5.1993, solatium at the rate 30% on the market value of the land sought to be acquired while further entitling the claimants to get interest at @ 9% per annum w.e.f the date of taking of possession and @ 15% per annum w.e.f 26.5.1964 till the date of the payment made within a period of six weeks, from the passing of the award in question.
In the petition, the petitioners have come up with a stand that they preferred an application under Section 28A of the Act, 1894 for redetermination of the amount of compensation on the basis of the award of the reference court.
It is further the case of the petitioners that against the order of the reference court dated 10.4.1992 the third respondent, Ghaziabad Development Authority, Ghaziabad preferred Appeals under Section 54 of the Act, 1894 before the Court which was registered as First Appeal, Ghaziabad Development Authority vs Ram Krishna (Dead) and the land owners also filed appeal for enhancement of compensation which came to be dismissed by Division Bench of this Court on 1.12.2014, 10.
Aggrieved, against the order dated 1.12.2014 passed in First Appeal, Ghaziabad Development Authority vs Ram Krishna (Dead) along with the connected appeals, the third respondent, Ghaziabad Development Authority approached the Apex Court while filing Civil Appeal, Ghaziabad Development Authority vs Ram Krishna (Dead) and others which along with the connected appeals came to be decided by virtue of the judgement and order dated 23rd February, 2016 determining compensation @ Rs 42.50 per sq Yard.
However, on 2.5.2022 the second respondent, Collector/ (ADM) LA, Ghaziabad proceeded to reject the application preferred by the petitioners under Section 28A of the Act, 1894.
The Court observed that the principal ground of challenge made to the order dated 2.5.2022 of the second respondent, Collector/A.D.M (L.A) Ghaziabad in the proceedings purported to be under Section 28 of the Act, 1894 is on the premise that once the land of the writ petitioners was put to acquisition by the same notification whereupon the land of the claimants who had preferred application under Section 18 of the Act, 1894 culminated into grant of enhanced compensation, then the writ petitioners being similarly situated are entitled to get enhance compensation in view of the provisions of Section 28A of the Act, 1894.
It has also been averred in the petition that Section 28A of the Act, 1894 is a beneficial section which enjoins the court to redetermine the amount of compensation on the basis of the award of the court and it is not dependent upon the fact as to whether the land owner has accepted compensation either under protest or without protest. What is material for attracting the said provision is that the land which is put to acquisition should be relatable to the same notification which on the motion of the other landowners while seeking reference under Section 18 of the Act, 1894 were made entitled to higher compensation.
Apoorv Hajela Standing Counsel, who appears for the State-respondents on the other submitted that the order passed by the second respondent, Collector/ADM (LA) Ghaziabad does not suffer from any illegality particularly in view of the fact that once as per the own saying of the petitioners, they have accepted the compensation under Section 11(2) of the Act without any protest in terms of an agreement (Karar Niyamawali) then they have acquiesced to the quantum and determination of the compensation, and would not come within the definition of aggrieved persons so as to claim benefit under Section 28A of the Act, 1894.
The Court further observed that,
The reliance placed by the Standing Counsel who appears for the State respondents upon the judgement in the case of Prakash (Supra) mandates that once the compensation has been received pursuant to the Karar Niyamawali then the question with regard to the practising of fraud is not open to be raised in writ jurisdiction as for the said purpose the affected party has a remedy of filing civil suit. The said judgement is not applicable in the facts of the case particularly when there is no challenge to the agreement on allegation of fraud.
Another issue which needs to be also noticed at this stage is that Section 28A of the Act, 1894 was inserted by Act no.68 of 1984 w.e.f 24.9.1984. As per the pleadings in the petition the acquisition proceedings were initiated while issuance the notification under Section 4(1) of Act on 9.2.1962 possession whereof was taken on 26.5.1963 and award was declared on 1.2.1964 thus the entire acquisition proceedings came to an end prior to the insertion of the Section 28A of the Act, 1894.
Moreover once a specific finding has been recorded that the ancestors of the writ petitioners have already accepted the compensation pursuant to the agreement on their freewill and open eyes then in the circumstances even otherwise the petitioners are not entitled to invoke Section 28A of the Act, 1894.
“Notably on both the counts namely in absence of being the aggrieved party while accepting the compensation and further the entire proceedings stood completed prior to insertion of Section 28A of the Act, 1894, the petitioners are not entitled for being granted enhanced compensation.
Accordingly, we do not find that the order passed by the second respondent,Collector/ (ADM) LA, Ghaziabad rejecting the application of the writ petitioner under Section 28A of the Act, 1894 suffers from any patent illegality or error of law”, the Court also observed while dismissing the petition.