Vikas Budhwar, J
1. Since common question of law is involved in both the petitions, the same are being decided by a composite order.
2. For the sake of clarity Writ-C No.6415 of 2023 is being treated as a leading petition.
3. The present petition under Article 226 of the Constitution of India was presented on 28th February, 2023 and on 3.3.2023 this 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.
Learned 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.”
4. Thereafter the matter was taken on 21.4.2023 wherein this 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.
Sri Apurva Hajela, learned Standing Counsel appears for the State-respondents.
Put up this case in the additional cause list on 27.04.2023 at 02:00PM.“
5. Today when the matter has been taken up, nobody appears either in the leading writ petition or in the connected writ petition, despite that on earlier occasion also the learned counsel for the writ petitioners were not present. Since both the cases are connected together and were directed to be placed on 27.4.2023 as a date fixed matter at 2.00 p.m. nobody appeared for the petitioners thus after hearing Sri Apoorv Hajela learned Standing Counsel for the State-respondents and Sri M.N. Singh, who appears for the third respondent, Ghaziabad Development Authority, Ghaziabad, the court is proceeding to decide the matters.
6. The case of the writ petitioners in the leading writ petition is that, they claim to be the recorded owners of certain piece of land situate 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 (In Short the 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.
7. It is the case of the writ 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.
8. It is further the case of the writ 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 as LAR No.172 of 1989 which was connected with other land acquisition references and by virtue of the order dated 10.4.1992 passed in LAR No.172 of 1989 and LAR No.18 of 1989, 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.
9. In paragraph 8 of the writ petition the writ petitioners have come up with 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 writ 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 this Court which was registered as First Appeal No.525 of 1992, 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 judgement and order dated 1.12.2014 passed in First Appeal No.525 of 1992, Ghaziabad Development Authority vs. Ram Krishna (Dead) along with the connected appeals, the third respondent, Ghaziabad Development Authority approached the Hon’ble Apex Court while filding Civil Appeal No.1710 of 2016, 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.
11. However, on 2.5.2022 the second respondent, Collector/ (ADM) LA, Ghaziabad proceeded to reject the application preferred by the writ petitioners under Section 28A of the Act, 1894.
12. Questioning the said order, the writ petitioners have filed the present writ petition inter alia with the following reliefs:-
“I. Issue a writ of certiorari for quashing of the impugned order dated 02.05.2022 passed by the respondent no. 2 upon Application No. 67 of 1992 preferred under Section 28A of the Land Acquisition Act, 1894 (Annexure No. 2 to this Writ Petition).
II. Issue a writ order or direction in the nature of mandamus directing the respondents to re-determine the compensation in the light of judgment and order passed by this Hon'ble Court in First Appeal No. 525 of 1992 and the judgment and order passed by Hon'ble Apex Court in Civil Appeal No. 1710 of 2016, (GDA Vs. Ram Kishan and others).
III. Issue a writ, order or direction, which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.
IV. Award the cost of the writ petition to the petitioner.”
13. Pleadings in the writ petition reveals 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.
14. It has also been averred in the writ 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 land owners while seeking reference under Section 18 of the Act, 1894 were made entitled to higher compensation.
15. Sri Apoorv Hajela learned Standing Counsel, who appears for the State-respondents on the other submits 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 writ 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.
16. Reliance has also been placed upon the judgement in the case of Babua Ram and others vs. State of U.P. & another reported in (1995) 2 SCC 689, followed by a Division Bench Judgement of the Karnataka High Court in the case of the Special Land Acquisition Officer vs. Lakshmanbabu Gayakward and others decided on 14th November, 2006, Ranveer Singh vs. State of U.P. reported in AIR 2016 Supreme Court 3753, Ishwarilal Premchand Shah and others vs. State of Gujarat and others reported in (1996) 4 SCC 174, and Kainash Ram Kochar vs. State of U.P. and others reported in 2011 (8) ADJ 9, Writ-C 16574 of 2017 Prakash vs. State of U.P. decided on 20.4.2023.
17. Before delving into the issues raised in the writ petition, it would be appropriate to notice the relevant statutory provisions of the Land Acquisition Act, 1894 which are germane to the issue in question:-
3(b) the expression “person interested” included all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land.
11. Enquiry and award by Collector.-[(1)] On the day so fixed, or any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under section 9 to the measurements made under section 8, and into the value of the land ¹[at the date of the publication of the notification under section 4, sub-section (1)], and into the respective interests of the persons claiming the compensation and shall make an award under his of-
(i) the true area of the land;
(ii) the compensation which in his opinion should be allowed for the land; and
(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him:
Provided that no award shall be made by the Collector under this sub section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf:
Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf.
(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
(3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.]
(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act.]
18. Reference to Court.-(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.
(2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made,—
(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire.
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 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, 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.]
The Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award By Agreement), 1997
A short title, extent and commencement.-(1) These rules may called the Uttar Pradesh Land Acquisition (Determination of impensation and Declaration of Award by Agreement) Rules, 1997
(2) They shall extend to the whole of the Uttar Pradesh.
(3) They shall come into force with effect from the date of their iblication in the Gazette.
2. The body or Department for which the land if being acquired may, any stage of the proceedings settle down the terms and conditions and tes of the land under acquisition, with the land owners and appear fore the Collectors and make an application indicating the terms and inditions so settled down and its readiness and willingness for stermination of compensation and declaration of award in accordance ith agreement. The Collector shall, if satisfied, issue notice to the arsons interested in the land under acquisition to express their jadiness and willingness to execute the agreement in writing, on the atters to be included in the award.
3. The Collector may, after hearing the parties, and upon being itisfied that the persons interested in the land are ready and willing to kecute the agreement, grant the permission unless, for reasons to be corded in writing he decides to refuse it.
4. (1) The Collector shall, where he grants the permission inform the ersons interested in the land by registered post, about date, time and lace for the execution of the agreement.
(2) The agreement shall be executed in the form appended to these ules, with necessary details as to whether possession has, or has not, een taken before the award.
(3) If the persons so informed fail to turn up and execute the greement on such date, time and place or the extended date, as the case ay be, the Collector shall proceed to make enquiry under Section 11 rom the stage, at which the application under Rule 2 was made.
5. The amount of compensation to be settled in the agreement shall, lways abide by the instructions issued by the State Government of Uttar radesh from time to time.
6. (1) When an agreement is discovered to have been fraudulently executed, the Collector shall, suo motu, or an application made in that behalf, cancel the agreement after affording a reasonable opportunity of being heard to the persons who have executed the agreement.
(2) In case of cancellation of the agreement under sub-rule (1) the executants shall have no right to claim any compensation or damages from the State Government.
FORM OF AGREEMENT
[See Rule 4 (2)]
Agreement to be executed when land is acquired for public purposes by interested and the acquiring body.
This agreement made this …………..day of……….corresponding to saka samvat the ……………...day of 20..............between (1) …………...(2)…………... etc. hereinafter called the owner/owners (which expression shall unless repugnant to the context or meaning thereof excludes his/their heirs, executors and administrators) and (1)...........…………………………………………..(2).…………………...etc………………...hereinafter called the interested party/parties', which expression shall unless repugnant to the context or meaning thereof includes his/their successors and assignees (to be scored out if there is no interested party) of the one part and the Governor of Uttar Pradesh acting through…………………... hereinafter called the 'Government' of the other part;
And whereas the right, title and interest of the owner/owners and the interested party/parties in the following land/lands hereinafter called the said land/lands, is/are as specified below :
(a) ……..
(b) ……..
Now, therefore, the owner/owners and/or interested party/parties does/do hereby agrees/agree with the Government as follows:
(1) …….
(2) ……..
(3) that the owner/owners and interested party/parties shall not claim any amount in addition to the amount agreed upon as aforesaid as compensation and accept it without any protest:
(4) if hereafter or after the payment of compensation as per the award it transpires that the owner/owners and/or the interested party/parties is/are not entitled at all or is/are not exclusively entitled to the entire amount of compensation awarded by the Land Acquisition Officer……………….. in the term of this agreement in respect of the said land/lands as mentioned at the end, and the Government is required to pay any compensation to any other person, the owner/owners and the interested party/parties shall on demand refund to the Government the entire amount of money received by him/them or such amount as may be determined by the Land Acquisition Officer...……….........as refundable by him/them and against all proceedings and abilities of any loss or damage suffered or any costs, charges or expenses incurred by Government by reason of the payment to him/them and the owner/owners and the interested party/parties shall pay the interest at the rate of 9% on the amount so refundable for the first year and at the rate of 15% for the subsequent years;
5) …..
6) ……..
7) ………..
8) …….
18. It is the own case of the writ petitioners, that the acquisition proceeding of the land of the writ petitioners was undertaken under the provisions of the Act, 1894 while issuing the notification under Section 4(1) of the Act, on 9.2.1962, the possession of the land was taken on 26.5.1963 and award was made on 1.2.1964. The order impugned under Section 28A of the Act, 1894 of the second respondent itself records a categorical finding that the ancestors of the writ petitioners have themselves accepted the award in pursuance of an agreement (Karan Niyamawali) executed with the respondents.
19. The only question which arises for determination is as to whether the writ petitioners can claim enhanced compensation on the premise that the other co-land owners pursuant to the order of the court of law were paid higher compensation.
20. Section 11 of the Act, 1894 is in two parts. The first part referable to Sub-Section (1) envisages the procedure to be adopted while taking recourse for passing award after making necessary inquiries by the Collector in view of the different parameters to be arrived for awarding compensation. The second part being, Section 11(2) pertains to the inquiry and award by the Collector, pre-supposes a contingency wherein notwithstanding anything contained in the first part in any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who had appeared before it have agreed in writing on the matter to be included in the award of the Collector in the form prescribed by the Rules made by the appropriate authority, the Collector is empowered to make further inquiry and proceed to declare an award according to the terms of the agreement.
21. As a matter of fact Sub-Section (2) of Section 11 of the Act, 1894 is dependent upon the offer made by the Collector and the acceptance of the said offer by the land owner upon the terms of the award which also includes the amount of compensation to be paid to the land owner.
22. Further Section 18 of the Act, 1894 contemplates reference to the Court at the instance of a person who is interested and who has not accepted the award while filing a written application to the Collector requiring the matter to be referred by the Collector for the determination of the Court with regard to the amount of compensation to the persons, whom it is payable or the apportionment of the compensation amount to the interested persons.
23. Then comes Section 28A of the Act, 1894 which deals with re-determination of the amount of compensation on the basis of the award of the court.
24. Section 28A of the Act, 1894 provides that pursuant to the declaration of an award, the Court allows to an applicant an amount of compensation in excess of the amount awarded by the Collector under Section 11 of the Act, 1894, the persons interested in all the other land covered by the same notification under Section 4(1) of the Act, 1894 and who are also aggrieved by the award may notwithstanding that they had not made an application to the Collector under Section 18 of the Act, 1894 by written application to the Collector within three months from the date of the award of the Collector, require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court.
25. The words employed “aggrieved” in Section 28A of the Act, 1894 clinches the entire issue. Though the word “aggrieved” has not been defined in the Act, 1894, but the definitions of “aggrieved” is to be borrowed from the various dictionaries which are often cited.
26. A conjoint reading of Section 11(2), Section 18 and 28A of the Act, 1894 shows that the word aggrieved is to be read in-conformity and conjunction with compensation. Section 11(2) is an exception and it starts with the word “notwithstanding” having overridding effect.
27. The legislature was quiet conscious and oblivious of the contingencies which might arise when a section of land owners did not intend to enter into long drawn legal battle challenging the award with respect to the acquisition proceedings as well as the amount of compensation being awarded to them and in turn wanted to settle the compensation in lieu of the land acquired thus these circumstances occasioned insertion of Sub-Section (2) in the Section 11 of the Act, 1894.
28. As already discussed, Sub-Section (2) of Section 11 of the Act, 1894 starts with the word “notwithstanding anything contained in Sub-Section (1)” meaning thereby that it has a overriding effect so as to give a window to the land owners whose land is being acquired to enter into negotiation by mode of agreement settling their issues with regard to compensation. The agreement envisaged under Section 11(2) (Karar Niyamawali) has a statutory backing from Section 11(2) of the 1894 Act. Notably the said agreement also confirms to the provisions of the Contract Act, 1872 and thus the principles enshrined for making it a concluded contract stands applied, namely, floating of an offer by one party and the acceptance of the same by the second party.
29. Nonetheless, post independence in exercise of the powers conferred by Sub-Section (1) of Section 55 of the Act 1894, the Governor was pleased to frame the Uttar Pradesh Land Acquisition (Determination of Compensation and Declaration of Award By Agreement), 1997 which contained a specific stipulation, that the amount of compensation accepted by the land owner through consent and agreement would be final and it would be without protest.
30. Though the word “aggrieved” has not been defined in the Act, 1894 but the word “person interested” has been defined under Sub-Clause (b) of Section 3 of the Act, 1894.
31. As per the definition assigned to “person interested” it includes all persons claiming an interest in compensation to be made on account of acquisition of the land under the Act and a person shall be deemed to be interested in land if he is interested in easement affecting the land.
32. The words “person interested” finds place in Sub-Section (1) and (2) of Section 11 and Section 18. However, in Section 28A of the Act, 1894 besides the word “persons interested” the words “aggrieved” are employed. The words “person interested” in all other land and “aggrieved” by the award of the Collector are crucial and they are to govern the controversy at hand. Merely being an interested person would not ipso facto cloth the land owner for redetermination of the compensation as along with it he should be “aggrieved” also. The basic purpose of insertion of both the words “interested person” as well as aggrieved is relatable to the fact that a person may be interested but in order to be aggrieved party it should sustain a legal injury for putting the legal action in motion. Since the writ petitioners belong to a section who have received the compensation without protest thus they might be an interested person but they do not come within the definition of aggrieved persons.
33. The word ‘aggrieved’ employed in Section 28 of the Act, 1894 has been considered in detail by the Hon’ble Supreme Court in the case of Babua Ram and othrs (Supra) wherein following has been observed as under:
16. In Krapa Rangiah v. Special Dy. Collector, Land Acquisition¹¹ this Court observed that in an acquisition proceedings, lands situated in the same locality and in the neighbouring locality when are possessed of the same comparable advantages, the owners of the former lands are entitled to the same rate of compensation as the owners of other lands as determined by the judgment of the High Court which had become final as otherwise, it would be inequitable and discriminatory. In other words, the owners of the lands possessing the same kind and same quality etc. are entitled to parity in payment of compensation for their lands. Section 28-A(1) is intended to 9 overcome the hurdle created by Section 18(1) and 2nd proviso to Section 31(2) in the matter of obtaining equal compensation for similar acquired lands. Equal compensation for similar acquired lands could be got by all the interested persons, if their lands are acquired under the same notification. In other words, if an owner fails to avail of the right and remedy under Section 18(1), Section 28-A(1) grants an extra right and remedy for redetermination of the compensation payable to him for his land on the basis of an award of the court giving to an owner of another land covered by the same notification under Section 4(1) and under the same award. The payment of higher compensation to his neighbouring landowner makes an applicant an aggrieved person to claim redetermination of the compensation payable to him for his land. The person aggrieved, therefore, in this context, would mean a person who had suffered legal injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affectation of his title to compensation.
(17. In Collin's English Dictionary, the word 'aggrieved' has been defined to mean "to ensure unjustly especially by infringing a person's legal rights". In Webster's Comprehensive Dictionary, International Edition at page 28, aggrieved person is defined to mean "subjected to ill-treatment, feeling an injury or injustice. Injured, as by legal decision adversely infringing upon one's rights". In Stroud's Judicial Dictionary, 5th Edn., Vol. 1, pages 83-84, person aggrieved means "person injured or damaged in a legal sense". In Black's Law Dictionary, 6th Edn. at page 65, aggrieved has been defined to mean "having suffered loss or injury; damnified; injured" and aggrieved person has been defined to mean:
"One whose legal right is invaded by an act complained of, or whose pecuniary interest is directly and adversely affected by a decree or judgment. One whose right of property may be established or divested. The word 'aggrieved' refers to a substantial grievance, a denial of some personal, pecuniary or property right, or the imposition upon a party of a burden or obligation."
18. The person aggrieved must, therefore, be one who has suffered a legal grievance because of a decision pronounced by civil court giving higher compensation for the acquired lands similar to his own while he is denied of such higher compensation for his land because of operation of Section 18 read with Section 31 of the Act resulting in affectation of his pecuniary interest in his acquired land directly and adversely by that award of the Collector made under Section 11. As such he becomes an aggrieved person entitled to avail of the right and remedy conferred upon him under Section 28-A(1) to make good his denied right to receive compensation in excess of the amount awarded by the Collector/LAO. Acceptance of the contention of Shri G.L. Sanghi, learned Senior Counsel and his companions, that persons who under protest received payment of compensation for their lands but failed to avail of the right and remedy under Section 18 waiting in the wings for success of the landowners of the adjoining lands to get higher compensation under Section 28-A(1) as person aggrieved robs the poor and inarticulate who by reason of their poverty or ignorance failed to avail of the right and remedy under Section 18, and creates not only invidious discrimination between same class of persons similarly situated but would be highly unjust and arbitrary offending Article 14 of the Constitution, apart from flying in the face of express animation of the statute as espoused in its Statement of Objects and Reasons and the Financial Memorandum. In this a context, we make it clear that we have looked into Statement of Objects and Reasons and the Financial Memorandum to know what is it that induced the introduction of the Bill but not as an aid to interpret Section 28-A(1). Therefore, we have no hesitation to hold that any interested person in the land acquired under the same notification published under Section 4(1) who failed to avail the right and remedy under Section 18(1) read with second b proviso to Section 31(2), becomes a person aggrieved under Section 28-A(1) of the Act when the owner of the other land covered by the same notification is awarded higher compensation by the civil court on a reference got made by him under Section 18.
19. The next question is as to when the period of limitation of three months begins to run under Section 28-A and whether successive awards c made by civil court at different times in respect of the land covered by the same notification furnish separate causes of action for making applications under Section 28-A. Let us consider the meaning of the words "an award under this part" referred to in Section 28-A(1) which is Part III of the Act. The heading to that part begins by reference to court and its procedure. The 'court' means a principal civil court of original jurisdiction or a special d judicial officer appointed to perform the functions of the court under the Act as becomes clear as is noticed already. What are the matters to be considered in determining the compensation on a reference made to it under Section 18, is detailed in Section 23 while matters to be neglected in determining such compensation are indicated in Section 24. By operation of sub-section (2) of Section 26, the award made determining the amount of compensation shall be deemed to be a decree while the statement of the grounds of every such award is deemed to be the judgment, for the purpose of Code of Civil Procedure. The above perspectives from Part III make it clear that the award of the court is that of the civil court of original jurisdiction in that part. It is a decree for the purpose of an appeal under Section 54 which falls in Part VIII of the Act (Miscellaneous). The decree as defined in Section 2(2) CPC is the f decree of the High Court, which shall be appealable to the Supreme Court under Articles 132, 133 and 136 read with Order 45 CPC. Hence, the award of the court referred to in sub-section (1) of Section 28-A is only the award of the civil court of original jurisdiction or of judicial officer performing the functions of such court under the Act on reference received by it under Section 18 and an award and decree pronounced under Section 26 of the Act.
Since, the judgment and decree of the High Court under Section 54 or of this Court do not come in Part III of the Act, they stand excluded from an award envisaged under sub-section (1) of Section 28-A. The aggrieved interested person, therefore, is entitled to the right and remedy of making an application under Section 28-A for redetermination of compensation for his acquired land only on the basis of the award of the civil court or judicial h officer which is a judgment and decree under Section 26 when such award grants compensation in excess of the amount awarded by the Collector under Section 11. When such an application is made in writing by the aggrieved person, notwithstanding the fact of his having received compensation under Section 31 without protest and of not availing the right and remedy of the a reference under Section 18, the redetermination of the compensation under Section 28-A(1) is required to be done.
34. Following the said judgement the Karnataka High Court in the case of Lakshmanbabu Gayakward (Supra) had held as under :-
24. In our considered opinion, when a person interested in the land having opted for consent award under Section 11(2) of the Act, is not entitled to seek any reference for enhancement of the compensation under Section 18 read with Section 23(1) of the Act, and cannot be an 'aggrieved person' to claim re-determination of the amount of compensation on the basis of the award of the Civil Court.
25. The award made under Section 11(2) of the Act in terms of the agreement is a valid award under the Act. It has all the ingredients of a 'composition deed', a deed by which one party compounds with another. This term is normally used when there is an agreement between a debtor and a creditor. It simply means an agreement made by the debtor with the creditor to pay specified amount and which is accepted by the creditor in satisfaction of their entire claims whatever thus proffered. A creditor having accepted the offer made, thereafter cannot contend mat he was unjustly deprived of his claims and then agitate the matter in a law suit. A case law nearer to the point is the one decided by a Full Bench of mis Court in the case of S.V. Bagi v. State of Karnataka 87 STC 138, while explaining whether a person, who had opted for composition, can he be called an aggrieved person, has observed that, "a person, who had opted for composition in lieu of prosecutions and penalties, etc., cannot be an aggrieved person". Further, the Full Bench of this Court has stated, that "the process of compounding is completed only when the money that is agreed upon actually changes hands. If this is so, there can never be a situation where the person who has committed or is reasonably suspected of having committed an offence under the Act can be an aggrieved person"
35. Nonetheless, in the case of Ranveer Singh (Supra) Hon’ble Apex Court in paragraph 11 observed as under-
11. On its face the aforesaid contentions appears to be attractive but on a closer analysis of Section 11 as well as Section 23 it is found to have no merits. Section 23 is for guidance of the court which gets jurisdiction to determine compensation afresh only if there is a protest against the award and the payment is received with protest. This section does not control the determination of just compensation by the Collector under Section 11 which requires the Collector to enquire into objections (if any) on different issues such as measurement and interests of the person claiming compensation and then further requires the collector to make an award which is required to reflect, inter alia, "the compensation which in his opinion should be allowed for the land." But it is more appropriate and relevant to notice sub-section (2) of Section 11 which is as follows:
"Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement.
This sub-section (2) of S. 11 begins with a non-obstante clause which makes it free of the requirements of sub-section (1) if all the persons interested in the land agree in writing as to what matters should be included in the award of the Collector. Thereupon the Collector is competent to make an award as per agreement without making further enquiry. In view of such clear provision that permits agreement to determine all the matters to be included in the award, all the inclusions and omissions in the consent award must be treated as based upon agreement of the parties and the final amount determined by way of agreement must be taken as a completely just compensation inclusive of the statutory interest payable to the claimant for the concerned land at least on the date of agreement. Since the agreed compensation amount is accepted without protest with a clear stipulation not to claim any additional amount, it has to be deemed that the compensation reflected in the consent award has taken into account all relevant factors including interest till the date of agreement. Moreover the right to seek reference for enhancement itself gets lost by accepting the compensation without protest especially when there is an agreement that the land owner shall not claim any amount in addition to the amount agreed upon as compensation and shall accept the compensation without any protest. In such circumstances agreed amount has to be treated as a just compensation permitting no addition or substitution whatsoever. In other words, not only the remedy under the Act of seeking enhancement is lost but the substantive cause of action also vanishes when the land owner agrees for a consent award and the amount of compensation is accepted without any protest.”
36. In the case of Ishwarilal Premchand Shah (Supra) the Hon’ble Apex Court had the occasion to consider the import of the agreement entered under Section 11(2) of the Act, 1894 with regard to payment of additional amounts which was not the part and parcel of the agreement entered into between the parties. The following was observed:-
9. This Court in State of Gujarat and Ors. v. Daya Shamji Bhai and Ors. AIR1996SC133 had considered the similar contentions and held that once the parties have agreed under Section 11(2) of the Act, the Land Acquisition Officer has power under Section 11(2) to pass the award in terms thereof and that the award need not contain payment of interest, solatium and additional amount unless it is also part of the contract between the parties. The same ratio applies to the facts in this case. In view of the above clauses in the agreements the appellants are not entitled to the payment of additional amounts by way of solatium, interest and additional amount under the provisions of the Act.
37. As regards, the case of Kainash Ram Kochar (Supra) it holds that right and the entitlement to seek reference under Section 18 would only arise once the amount of compensation was received under the protest in writing with the intention of the owner for the non-acceptance of the award. Paragraphs 20 and 21 the following were observed:
“20. The right and entitlement to seek reference would, therefore, arise when the amount of compensation was received under protest in writing which would manifest the intention of the owner of non-acceptance of the award. Section 11(2) opens with an non-obstante of non-obstante clause "notwithstanding anything contained in sub-section (1)" and provides that if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. By virtue of sub-section (4), "notwithstanding anything contained in the Registration Act, 1908, no agreement made under sub-section (2) shall be liable to registration under that Act". The award made under Section 11(2) in terms of the agreement is, therefore, an award with consent obviating the necessity of reference under Section18.
21. The above case clearly lays down that once an agreement was entered by , 6, the que question of objection to receive compensation does not arise and they have right to make a reference under Section 18./The judgment of the Apex Court MANU/SC/0236/2005: State of Karnataka & Anr. v. Sangappa Dyavappa Biradar & Ors., was also a case of consent award.”
38. The reliance placed by the learned 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.
39. Another issue which needs to be also noticed at the 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 writ 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 writ petitioners are not entitled to invoke Section 28A of the Act, 1894.
40. 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 writ petitioners are not entitled for being granted enhanced compensation.
41. 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.
42. The writ petition is accordingly, dismissed.
43. No order as to cost.
