IN THE HIGH COURT OF JUDICATURE AT PATNA FA No.547 of 1993 STATE OF BIHAR. …………OPPOSITE PARTY-APPELLANT. Versus NATHUNI PRASAD GUPTA, RESIDENT OF VILLAGE- MUSACHA, P.S. BAIRGANIA, DISTRICT-SITAMARHI. …………APPLICANT…………RESPONDENT. with FA No.549 of 1993 STATE OF BIHAR. …………APPELLANTS. Versus 1. KEDAR PRASAD CHOUDHARY, SON OF SRI DOMA RAM. 2. SMT. GIRJA DEVI, WIFE OF SRI DOMA RAM BOTH RESPONDENT NO.1 AND 2, RESIDENT OF VILLAGE-BHAKURNHAR,P.S. BAIRGANIA, DISTRICT- SITAMARHI. …………RESPONDENTS. For the Appellants : Mr. Anil Kumar Verma, A.C to A.A.G-13. For the Respondents: Mr. Khatim Reza, Advocate. --------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA (ORDER) (14.02.2011) Mihir Kr. Jha, J. Heard counsel for the parties. 2. Both these appeals arise out of the common award dated 24.03.1993 passed by Sub-judge-I, Sitamarhi in L.A Case No. 06 of 1992 and 07 of 1992 respectively, whereby and whereunder the application of the respondent land holders for re-determination of the amount of compensation of their land on being refused by the Collector under the Land Acquisition Act has been fixed by the Court at the rate of Rs. 1000/- per decimal following the earlier award dated 02.01.1991 2 passed in L.A Case No. 10 of 1986/109 of 1986 . 3. The facts which are not in dispute and would be sufficient to dispose of these two appeals lie in a very narrow compass. The Government of Bihar acquired land for construction of Bagmati Embankment, wherein in terms of a notification under section-4 and declaration under section-6 of the year 1980, 15.44 acres of land in all were acquired. It is also not in dispute that after the Collector under the Act had made his award one Raghu Nath Shah had sought reference under section-18 of the Act in L.A Case No. 10 of 1986/109 of 1986 and the same was disposed of by an award dated 02.01.1991 fixing the market value of the land at the rate of Rs. 1000/- per decimal. 4. The respondent land holders, who had not sought any reference earlier under section-18 of the Act on acquiring the knowledge of the enhanced amount of compensation fixing in the case of Raghu Nath Shah had filed an application before the special Land Acquisition officer, Gandak being the Collector under the Act for also re-determination of the market value of their land, inasmuch as, they had claimed 3 that the amount received by them in the year 1983-1988 was under protest. The Collector under the Act, however, had held that the fixation of the compensation including the market value of the land in case of the respondent land holders was justified and accordingly a reference was made on 18.01.1992 before the Civil Court. 5. From the records, it transpires that the aforementioned L.A Case No. 06 of 1992 and 07 of 1992 were instituted on 15.12.1992 and ultimately by the impugned judgment and award dated 24.03.1993, both of them have been disposed of by allowing the market value of the land of the respondent land holders at the rate of Rs. 1000/- per decimal. 6. Learned counsel for the appellant in support of his case has dwelt upon two aspects namely, that the quantification of Rs. 1000/- per decimal of land is based on no material and in fact is excessive. He has further contended that the proximity of the quality of the land of Raghu Nath Shah in whose case the Civil Court had fixed market value of the land at the rate of Rs. 1000/- per decimal was not same as that of the respondent land holders 4 in these two cases and therefore the Court below has committed an apparent error in allowing the claim of the respondent land holders. 7. Per contra, learned counsel appearing on behalf of the respondent land holders has submitted that it would not lie in the mouth of the appellant to assail the judgment, especially when no written statement was filed denying the averments made by the respondents in their claim petition even in evidence adduced as with regard to the quality of land. He would submit that the scope of section 28-A of the Act is only a provision made for re- determination of the market value of the land in terms of the earlier judgment and award made with respect to the same land acquisition proceeding. In the light of aforementioned submissions it would be necessary to exercise the scope of Section 28A of the Act which is quoted hereinbelow:- “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 5 of the amount awarded by the Collector under Section 11, the persons, interested in all 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 mad 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, 6 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 Section 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18”. From a bare reading of the aforementioned statutory provision, it becomes clear that after the Collector under the Act makes an award under Section-11 of the Act and a reference in terms of Section-18 is answered in any other case, the person covered by the same land acquisition proceeding within a specified period of three months despite 7 having accepted the awarded amount has option to seek re-determination on the same scale on which the Court has answered reference under Section-18 of the Act in other cases. This salutary provision in fact was introduced by an amendment in the year 1984 in order to ameliorate the cause of such poor land holders who could not seek reference though they too were entitled for enhanced compensation as later on found in similar cases. 8. In the present case, there is no doubt in view of the certification made by the special Land Acquisition Officer, that the land of the two respondent land holders were acquired with the land of Raghu Nath Shah for the same notification under Section-4 of the Act and the same declaration under Section-6 of the Act whereafter an award was also made simultaneously. Raghu Nath Shah had however not accepted the award and had not gone in reference under Section-18 of the Act whereas these two respondents land holders are said to have accepted the award and received payment under protest. In that view of the matter, this Court must hold that their application u/s 28A of the Act 8 allegedly filed on 27.01.1981 were well within the period of three months of the award in case of Raghu Nath Shah and hence maintainable. 9. The contention of learned counsel for the appellant as with regard to the proximity of the land being not the same in the considered opinion of this Court could have been gone into by this Court had there been any pleadings to this effect by the appellant before the Court below. As a matter of fact when the appellants did not even choose to file their written statement/objection to the claim petition filed by the respondent land holders, they cannot now be allowed to take a new plea before the Appellate Court for the first time. 10. As with regard to the quantification of the amount of Rs. 1000/- per decimal, the Court below had hardly any option but to give the same value of land which was given in the case of Raghu Nath Shah. That in fact is also the spirit of Section 28-A of the Act, where the Court has not to make re-determination of the awarded amount under the earlier award rather it has to only see the applicability of the rate 9 raised in the earlier amount. 11. In the present case, as noted above the Court below has found in the light of the evidence adduced by the respondent land holders that their land was exactly of the same nature as that of Raghu Nath Shah in whose case an award was passed on 02.01.1991, in which the Court had granted market value of the land at the rate of Rs. 1000/- per decimal. There would be absolutely no reason for this Court to reappraise the findings of the Civil Court especially when the appellants had not even adduced any evidence in the court below. The submission of learned counsel for the appellant that it was orally canvassed before the Court below that the quality of the land of the respondent land holders was not the same as that of Raghu Nath Shah has to be only noted and being rejected. 12. Consequently this Court would not find any merit in either of these two appeals and both of them are fit to be dismissed. 13. However, before parting with, this Court would find it necessary to record some strange features of these two cases for clarifying the true import and scope of 10 Section 28-A of the Act. 14. In the present case, it appears that on 27.01.1991, an application was filed before the special Land Acquisition Officer being the collector under the Act for re- determination of the amount of compensation in terms of the judgment and award dated 02.01.1991 in the case of Raghu Nath Shah, L.A Case No. 10 of 1986/109 of 1986. From the records it is found that first of all no action whatsoever was taken for almost one year and thereafter the Collector under the Act mechanically using the form prescribed for reference under Section 18 of the Act had made an endorsement by recording his view that whatever amount of compensation was awarded to the respondent land holders was sufficient. Such is not the scope of Section 28(2)of the Act, inasmuch as, whenever such an application under Section 28 is filed by the concerned land holder, it has to be first recorded by Collector under the Act as to whether it is within the prescribed period of limitation of three months inasmuch as there is no scope for condonation of delay. Thereafter the Collector under the Act has to hold an inquiry which is also the mandatory 11 requirement of Section 28-A(2) of the Act. The conclusions on the basis of such enquiry are thereafter to be arrived at as to whether the Collector under the Act is satisfied with the claim put forward before him by the concerned land holders and in doing so he will have to necessarily go into the question as to whether the award in question relied on by the land holders squarely applies to the facts of the case. For doing so, he will have to find and record his satisfaction with regard to similarly in quality of the land acquired for which compensation has already been determined under Section 18 of the Act. All such determination has to be made by a definite speaking order which may enable the concerned land holders to seek reference, inasmuch as, the scope of Section 28-A(3) is limited only to examination by civil court only of those reason recorded in such order of the Collector under the Act. 15. It has to be made clear that an adjudication under section 28(3) is not the same as one under Section-18 of the Act. Under Section-18 of the Act while the land holders will have to establish the claim for being awarded compensation at the market 12 value, such would not be the requirement under Section 28-A of the Act where there is already a yard stick set out by the Court while allowing the claim in the earlier award. It is affect the award of the Court in one case which is being sought to be enforced by another person who had not sought reference u/s 18 of the Act and therefore the similarity and proximity of the land has to be only gone into while adjudicating any case under Section 28-A of the Act. 16. The collector under the Act, therefore, have a more onerous responsibility in deciding the dispute referred to have under Section 28-A(2) as ultimately it is the State Exchequer which has to bear the expenses on the ground of similarity of the claim of a land holders. No doubt the object of Section 28-A is laudable from the land holders point of view but then the State also while defending the award of such amount has to look into the applicability of the judgment and award relied on by the land holders for re- determination of enhancement of compensation, inasmuch as, only when it would apply squarely on all fours to the 13 facts of the case that the earlier amount awarded can be enhanced. 17. One thing more has to be made clear that the Collector under the Act while deciding the proceeding under Section 28- A(2) has not to act like a post office rather he owes a statutory duty to exercise quasi judicial power for enhancing the amount of compensation. The legislature never intended even the proceedings under Section 28-A(2) has to be decided by the Court even if the Collector under the Act would himself award the same amount as had already been determined under Section 18 of the Act on the basis of which enhancement by way of re-determination has been sought by the subsequent land holders. In fact the whole purpose of Section 28-A would stand negated if all the cases under Section 28A of the Act are mechanically referred to the Civil Court for re-determination of the compensation. This aspect of the matter in fact has to be always kept in mind by the Collector under the Act while adjudicating the proceedings under Section 28-A of the Act. 18. As this aspect of the matter would require some serious consideration at 14 the level of the State Government for future reference in deciding the cases under Section 28-A of the Act, let a copy of this order be sent to the Land Reforms Commissioner, Government of Bihar for its being circulated to all the Collectors of the different districts of the State as also to the other authorities exercising power of Collector under the Act. 19. With the aforementioned observations and direction these two appeals are dismissed. (Mihir Kumar Jha,J) Patna High Court Dated the 14th Feb'2011 N.A.F.R./Ranjan