IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA Nos. 12,13,14,27,28,29,40,42, 96,97,98,99 of 2001 Judgment Reserved on 26.8.2009 Date of Decision : 29.10.2009 __________________________________________________________ RFAs No. 12, 13, 14, 28, 29, 96, 97, 98 & 99 of 2001 Dr. Y.S. Parmar University ….Appellants. Versus Gram Panchayat Gadogh ….Respondents. __________________________________________________________ RFA No. 27 of 2001 Dr. Y.S. Parmar University ….Appellants. Versus Kunka & others ….Respondents. __________________________________________________________ RFA No. 40 of 2001 Dr. Y.S. Parmar University ….Appellants. Versus Smt. Indira Devi and Others ….Respondents. __________________________________________________________ RFA No. 42 of 2001 Dr. Y.S. Parmar University ….Appellants. Versus Sunder Dass & others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 __________________________________________________________ RFAs No. 12, 13, 14, 28, 29, 96, 97, 98 & 99 of 2001 For the Appellants: Shri B.S. Attri, Advocate. For Respondent No.1 : Shri Bimal Gupta, Advocate. For Respondents No. 2 & 3: Ms. Ruma Kaushik, Addl.A.G. __________________________________________________________ RFAs No. 27 of 2001 For the Appellants: Shri B.S. Attri, Advocate. For Respondent No.1 : Shri Ashok Negi, Advocate. For Respondents No. 2 & 3: Ms. Ruma Kaushik, Addl.A.G. __________________________________________________________ RFAs No. 40 of 2001 For the Appellants: Shri B.S. Attri, Advocate. For Respondent No.1 : Exparte. For Respondents No. 2 & 3: Ms. Ruma Kaushik, Addl.A.G. __________________________________________________________ RFAs No. 42 of 2001 For the Appellants: Shri B.S. Attri, Advocate. For Respondent No.1 & 2 : Shri Dinesh Kumar Sharma, Advocate. For Respondents No. 3 & 4: Ms. Ruma Kaushik, Addl.A.G. Dev Darshan Sud, J. These appeals have been preferred by the Dr. Y.S. Parmar University against the award made by the learned Additional District Judge, Solan in all the land reference petitions which were tried and disposed of by the learned Court by a common judgment. The petitions out of which these appeals arise were filed under Section 28-A of the Land Acquisition Act, 1984 (hereinafter referred to as the ‘Act’) claiming enhanced compensation on the basis that the land of the 3 petitioners was acquired by the same notification which was the subject matter of litigation between the University and other land owners who had preferred reference petitions under Section 18 of the Act. It is undisputed before me that all the petitions, subject matter of these appeals, have been preferred after decision of the Supreme Court in appeal against the judgment rendered by this Court in the acquisition proceedings for the land acquired by for the University. The question for consideration in these appeals is as to whether the provisions of Section 28-A of the Act mandate that an application for determination of compensation can be filed after the decision of the High Court/Supreme Court or the decision of the Reference Court is to be considered as the starting point of limitation. Learned counsel appearing for the appellant-University has relied the decisions of the Supreme Court and in particular, he refers to Union of India Vs. Bant Ram (dead) by LRs 1996 (4) SCC 537 and Jose Antonio Cruz Dos R. Rodriguese and another Vs. Land Acquisition Collector and another and Communidade of Cavelossim Vs. Land Acquisition Collector and another (1996) 6 SCC 746. Paragraph 3 of the judgment reads: “………The plain language of Section 28-A, therefore, prescribes the three months’ period of limitation to be reckoned from the date of the award by the Court disposing of the reference under Section 18, and not the appellate court dealing with the appeal against the award of the Reference Court.” In State of A.P. and another vs. Marri Venkaiah and others (2003)7 SCC 280 it was held that an application under Section 28-A is to be filed within three months from the date of award. The Supreme Court held 7. …….Therefore, the aforesaid provision crystallizes that application under Section 28-A is to be filed within three months from the date of the award by the court by only excluding the time requisite for obtaining the copy. Hence, it is difficult to infer 4 further exclusion of time on the ground of acquisition of knowledge by the applicant.” Learned counsel also supports his submission from the ratio of the judgment of this Court in Dr. Y.S. Parmar University Vs. State of H.P. and others 2003(2) Shim.L.C. 467 holding “7. In a recent judgment of the Hon’ble Supreme Court in State of Tripura and another vs. Roop Chand Das and others, (2003) 1 SCC 421, it has been again reiterated that period of limitation has to be computed from the date of Court’s award under Section 18 on the basis whereof redetermination is sought which may or may not be the earliest award.” Learned counsel appearing for the respondents submits that there is a merger of judgments and it is the ultimate judgment/order passed in appeal either by the High Court or the Supreme Court which would constitute the starting point for calculating limitation for the purpose of filing an application under Section 28-A of the Act. He places reliance on a decision of the Supreme Court in Union of India vs. Munshi Ram (2006) 4 SCC 538 holding: “We are of the view that the Union of India is right in its submission that the amount payable under Section 28-A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under Section 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference under Section 18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied under Section 28-A of the Act, is the enhanced 5 compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by the higher courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference under Section 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the Reference Court was subsequently reduced by the superior court. There can be no dispute that those claiming higher compensation and claiming reference under Section 18 of the Act are bound by the decree as modified by the superior court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit others who have been given the benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.” He submits that this Court has also followed this principle in H.P. Housing Board Vs. Siri Ram Karan and others 2009(1) Shim.L.C. 80. He supports his arguments by relying on the decision of the Supreme Court in Kendriya Karamchari S.G. N. Samiti Ltd. Noida vs. State of U.P. and another AIR 2009 S.C. 1677 holding: “29. We are, however, of the considered opinion that the appellant is not entitled to the relief he prayed in the writ petition before the High Court as well as before us in the present proceedings so far as the direction to decide his application under Section 28A of the Act is concerned. It is true that once Reference Court decides the matter and enhances the compensation, a person who is otherwise eligible to similar relief and who has not sought Reference, may apply under Section 28A of the Act. If the conditions for application of the said provision have been complied with, such person would be entitled to the same relief which has been granted to other persons seeking Reference and getting 6 enhanced compensation. But, it is equally true that if Reference Court decides the matter and the State or acquiring body challenges such enhanced amount of compensation and the matter is pending either before the High Court or before this Court (Supreme Court), the Collector would be within his power or authority to keep the application under Section 28A of the Act pending till the matter is finally decided by the High Court or the Supreme Court as the case may be. The reason being that the decision rendered by the Reference Court enhancing compensation has not attained ‘finality’ and is sub judice before a superior Court. It is, in the light of the said circumstance that the State of U.P. issued two Government orders on January 14, 1994 and June 13, 2001.” Learned counsel urges that the doctrine of merger postulates that it is the judgment which has attained finality that would constitute the starting point of limitation for the purpose of instituting a claim for enhancement. This submission cannot be accepted. In the decisions cited by the learned counsel for the respondents i.e. Munshi Ram’s case and Ram Karan’s case supra the point for consideration was whether the amount could be recovered in restitution proceedings in case the order/judgment was passed by the High Court. The Supreme Court in Kendriya Karamchari’s case has held in clear and unequivocal terms that once a petition under Section 28-A of the Act is pending before the Collector for re-determination of the compensation, the Collector is required to stay his hands and obey the final decision. It cannot be said that the decision postulates a situation where an application can be made denovo after such decision. The submission made on behalf of the respondent therefore cannot be accepted. The judgments relied upon by learned counsel appearing for the appellant are clear and unequivocal on the point that once the reference Court makes an award, the limitation for making an application under Section 28-A of the Act would start from that point. Further course of action for the Collector to 7 follow is that in case any proceedings were instituted against the award of the Reference Court, he has to stay his hands till the final decision in appeal. These appeals are accordingly allowed and the order passed by the Reference Court is quashed and set aside. Parties shall bear their own costs. October 29th, 2009 (Dev Darshan Sud) (ms) Judge