G.D. Kamat, J.
1. A batch of writ petitions under Articles 226 and 227 of the Constitution of India challenges the orders made by the Land Acquisition Officer/ Collector denying the petitioners re-determination of compensation under section 28-A of the Land Acquisition Act, 1894. Impugned orders under challenge are not on the merits of the case for re-determination of the compensation as the applications were dismissed on preliminary ground of maintainability.
2. Out of the batch of petitions the orders challenged are where the Land Acquisition Officer held that the petitioners who had received compensation pursuant to the award made by the Land Acquisition Officer without protest are not entitled to seek any relief for re-determination under section 28-A. In certain other cases the impugned orders are made on the ground that the petitioners did not file fresh applications within the prescribed period upon disposal of appeals by the High Court wherein awards of the reference Court were challenged.
This judgment is being delivered in five petitions represented by various counsel as shown in cause title out of a batch of petitioners, for finally the remaining petitions shall stand concluded for the reasons made in this judgment.
3. Having regard to the nature of the controversy involved in the petitions upon hearing the learned Counsel, we have formulated following propositions :
(1) Application filed within the prescribed time upon pronouncement of an award by the District Court in a reference sought by some other person interested covered under the same Notification for acquisition :
(a) Is the application for re-determination restricted to persons who had received compensation under protest but did not choose to seek reference under section 18 of the Act?
(b) Is it open to all persons interested including those who received compensation without protest?
(2) Whether the Collector is bound to consider the application filed within the prescribed period after the pronouncement of the award by the District Court and when the award of the District Court was challenged before the High Court and, more particularly, in following class of cases :
(a) Where the High Court modified the award of the District Court in appeal:
(b) When the High Court remanded the matter to the District Court for fresh award ; and
(c) Whether fresh application for re-determination is necessary after High Court's order in appeal.
4. Section 28-A of the Land Acquisition Act was brought into the statute book by way of amendment under the provisions of Land Acquisition (Amendment) Act, 1984. It reads thus :
"28-A. 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."
A bare reading of the section indicates that a person who has received compensation offered to him by the Land Acquisition Officer and did not seek a reference under section 18 of the Act is for the first time made entitled to get compensation re-determined once at the behest of some other person interested in the land covered under same Notification has succeeded in getting the compensation enhanced by the reference Court provided the application is made within 3 months from the date of the award of the Court.
Upon receipt of such an application, the Collector is to hold an enquiry and after affording a reasonable opportunity of being heard, make an award determining the amount of compensation payable to the applicant. This is provided under sub-section (2) thereof.
Sub-section (3) however further provides that an applicant who has not accepted the award of re-determination may require the Collector to refer the matter for determination of the Court and in that event the provisions of sections 18 to 28 shall apply as if it is a reference under section 18 of the Act.
5. A Writ Petition Bearing No. 434 of 1992 came up before this Court on a complaint by the petitioner therein that the Land Acquisition Officer has rejected his application for re-determination of compensation on the ground that he had not applied afresh after the award of the District Court had been set aside by the High Court in appeal and remanded the case for deciding the matter of compensation afresh. That petition was however disposed of by this Court on 6th January, 1993 upon a view that no fresh application is necessary on the ground that in the meantime the award of the District Court had been challenged before the High Court and further that the High Court had set aside the award and directed the District Court to render fresh award. This Court accordingly directed the Land Acquisition Officer in that case to examine the application filed within time after the District Court had made an award in reference taken by some other person interested holding that no fresh application is necessary.
6. We are told today that the decision rendered on 6th January, 1993 in Writ Petition No. 484 of 1992 requires re-consideration. It is now sought to be contended on behalf of the State that regard being had to section 28-A that class of persons who had received compensation under protest are aggrieved and they are alone entitled to get compensation re-determined provided that the application is within time. The upshot of the argument is that those persons interested who received compensation without protest are barred from applying for re-determination of compensation for they cannot be aggrieved and that being the second requirement of section 28-A in addition to being a person interested.
7. It must be mentioned that in the writ petition decided by this Court this aspect of the matter was indeed not considered nor it was urged during the time of hearing. The sole question decided in that case was whether a person having once applied for re-determination within three months from the date of the award of the District Court is required to file an application afresh after the award of the District Court was varied, modified, etc. by the High Court in appeal. It is in the light of this that the present controversy is required to be decided whether the expression "also aggrieved by the award of the Collector" shall necessarily mean a person who has received compensation under protest with the result that the class of persons interested who had received compensation without protest are excluded within the meaning of section 28-A.
8. Before we advert to this controversy and others it may be useful to recapitulate the genesis of the amendment brought about by the 1984 Amendment Act. The Object and Reasons read thus :---
"Considering that the right of reference to the Civil Court under section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised by the comparatively affluent land owners and that this causes considerable inequality in the payment of compensation for the same for similar quality of land to different interested parties it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same Notification to seek re-determination of compensation once any one of them has obtained orders for payment of higher compensation from the reference Court under section 18 of the Act."
From above it is clear that the whole stress is the inequality in the payment of compensation in respect of similar quality of land to different persons. A fresh opportunity is provided to those whose land is covered under the same Notification despite previously he had not taken recourse to section 18 of the Act.
From time to time various aspects of this matter and interpretation of section 28-A fell for consideration before different Courts.
9. In the decision of Jagdish Ram v. State of Haryana, 1991 I.A.C.C. (P.&H.) 381, the Punjab and Haryana High Court set aside the order of the Land Acquisition Collector and remanded the matter to him for fresh decision in the light of the observations made. The Court had observed that the Land Acquisition Collector had not understood the scope of section 28-A as the application was rejected in limine on the ground that the application had been filed after the judgment and order made by the High Court against the award made by the District Court earlier, the reference having been sought by some other person interested. In other words, the learned Single Judge J.C. Mittal, J., (as he then was) held that the application had to be filed for re-determination within time from the date of the award of the District Court is not acceptable.
10. In another decision in Jagdish Raj v. State of Punjab (through the Land Acquisition Officer, 1991 L.A.C.C. (P.&H.) 43, a Division Bench set aside the order of the Land Acquisition Collector. The Land Acquisition Collector rejected the application filed on behalf of the widow and legal heirs of Jagdish Raj on the ground that Jagdish Raj had filed an application for reference under section 18 but the Collector had not forwarded the reference because Jagdish Raj has taken the compensation when offered to him without protest. The Division Bench held that in as much as no reference had been made by the Collector to the District Court the petitioners therein were entitled to seek re-determination under section 28-A after the compensation was enhanced by the Court. The Court in terms held that if at the behest of a party the reference had been decided one way or the other by the Court then he is not entitled to seek re-determination of compensation.
11. In the decision of Gaziabad Development Authority v. State of Uttar Pradesh & others, 1992 L.A.C. 729, a Division Bench of the Allahabad High Court speaking through P.B. Jeevan Reddy, C.J., (as he then was) held that section 28-A is not retrospective in operation. The contention raised on behalf of Gaziabad Development Authority for which authority the acquisition was made was that section 28-A is not applicable where the land acquisition awards had been rendered by the concerned Land Acquisition Officers prior to the date of amendment by which section 28-A was incorporated. This contention was negatived. The Division Bench observed that section 28-A is a beneficial provision conceived in the interest of uniformity and actuated for the concern of the poor, illiterate and unwary. Further observation is that the Object and Reasons appended to the Bill which became the Amendment Act itself disclosed the object underlying the said provision which is to do away with inequality and give equal treatment to all whose lands are similar. The right to apply for re-determination is on the basis of the award made by the Court and that right is expressly given notwithstanding the fact that the person had not applied for reference under section 18 earlier.
12. In Sukdeo and others v. State of Uttar Pradesh, 1992 L.A.C. 269, the Division Bench took the view that a person dissatisfied with the order of the Collector failing to apply for a reference within the prescribed period of limitation under section 28-A will have to rest content with the amount offered. While construing the words "date of award" in section 28-A the Court held that it is the date when the award is communicated to the person concerned or is known to him either actually or constructively and it is unreasonable to construe the words "from the date of award" in a literal or mechanical way. That even when the certified copy of the award is not filed such a failure cannot be faulted with nor render the application irregular. If the applicant chooses to file a certified copy along with the application he will be entitled for exclusion of time taken in obtaining the copy and to that extent time will be extended beyond 3 months from the date of the award.
13. The Orissa High Court in a Division Bench decision in Ram and others v. State of Orissa, 1992 L.A.C.C. Orissa 458, took the view that a person interested is entitled for re-determination of compensation under section 28-A if some other person near whose land was acquired under the same Notification had got enhanced compensation either on reference or in appeal and in such matters accepting compensation without protest and not preferring reference earlier has no significance. The Collector's order declining to re-determine compensation was set aside.
A decision in Sanjivani and Ors. v. State of Himachal Pradesh, through Collector Talwara, was relied upon. In interpreting section 28-A it was held that the object for which section 28-A was brought into the statute book is to provide opportunity to all aggrieved persons whose lands are covered under the same Notification to seek re-determination of compensation once any of the persons whose land is covered by the same Notification obtains an order for payment of higher compensation on a reference being made under section 18 of the Act.
14. The Himachal Pradesh High Court has also taken a view that any person interested irrespective of whether he has received compensation from the Land Acquisition Officer/Collector with or without protest can seek re-determination of compensation under section 28-A in the decision of Smt. Sumita Guller and Ors. v. State of Himachal Pradesh, (through Collector Talwara), A.I.R. 1992 H.P. 93. This judgment is rendered on the interpretation of section 28-A. In a nutshell the Division Bench held that the expression "and who are also aggrieved by the award of the Collector" does not exclude persons who have received compensation from the Land Acquisition Collector without protest. In other words, the recipient of compensation with or without protest makes no difference insofar as section 28-A is concerned. While construing the expression "who are also aggrieved" the Division Bench observed that a person seeking re-determination is aggrieved when the reference Court has enhanced the compensation in a reference sought by some other person interested under the same Notification.
15. Having come thus far it is advantageous to have a look though not directly on the point to a decision of the Supreme Court rendered in Scheduled Caste Land Owning Society Ltd. Betunda v. Union of India, A.I.R. 1981 S.C. 730. While dealing with the scope of section 28-A of the Act the Apex Court observed that on a plain reading of sub-section (1) of section 28-A it is clear that it applies to all those claimants who had failed to seek a reference under section 18; that the re-determination has to be done by the Collector on the basis of the compensation awarded by the Court in reference under section 18 and an application in that behalf has to be made to the Collector within the time prescribed from the date of the award. Only those claimants who had failed to apply for reference under section 18 are conferred this right to apply to the Collector for re-determination and not all those who had not only sought a reference under section 18 but had also filed an appeal in the High Court against the award made by the reference Court. What is, however, necessary to be noticed is that the Supreme Court was not required to decide whether a party entitled to seek reference must have received compensation offered to him by the Land Acquisition Officer with or without protest and the question was limited whether a party who had already taken a chance by seeking reference would be entitled for re-determination for further enhanced compensation.
16. A reference has been made in the abovecited decision of the Supreme Court to another decision in Mewa Ram v. State of Haryana, . Here again the petitioner Mewa Ram had applied for reference under section 18 of the Act and obtained substantially enhanced amount of compensation. On appeal the High Court further enhanced the compensation. The petitioner sought special leave to appeal against the order of the High Court by inordinate delay of over 1000 days. The Supreme Court held that the delay could not be condoned having regard to the facts of the case. One observation in para 5 which is somewhat noticable is that there is no question of re-opening of an award except under section 28-A and the condition required to be fulfilled is that the application is to be made before the Collector within the prescribed time from the date of the award and the right is restricted to persons who had not applied for reference under section 18 and when these conditions are satisfied then only an application for re-determination is liable for consideration under section 28-A.
17. As against these decisions we have been shown a Division Bench decision of the Allahabad High Court in Babua Ram and others v. State of Uttar Pradesh, wherein a view is taken which is diametrically opposite to the view taken by the Himachal Pradesh High Court in the decision of Smt. Sumita Guller and Ors. v. State of Himachal Pradesh, A.I.R. 1992 H.P. 93 and the Orissa High Court in Ram and others v. State of Orissa, 1992 L.A.C.C. Orissa 458.
Allahabad High Court held that the benefit of section 28-A is available only to those persons who accepted compensation under protest. In other words, all those persons interested who took compensation without protest are ineligible and barred from applying under section 28-A for re-determination of compensation even though their lands are similarly placed and notwithstanding the fact that though recovered under the same notification some other persons interested got enhanced compensation in references sought.
18. This decision is being commended to us by the learned Advocate General for the State. Counsel for the petitioners in the present petitions canvassed different view points to suggest that this Court ought to respectfully reject the view taken by Allahabad High Court and approve the decisions of the High Courts of Himachal Pradesh and Orissa.
19. The Allahabad High Court has taken a view in the case that the crucial words in section 28-A are "also aggrieved by the award of the Collector" and since no change has been introduced either in section 18 or in section 31 of the Act and no substantial change in section 11, an aggrieved person is only he who has received the award of the Collector under protest. It was further observed that any other interpretation putting persons interested who had not received compensation at all or who had accepted it under protest on par with persons interested who had accepted the compensation but not under protest is clearly against the legislative intendment. The Court further observed that a mere failure to make an application for reference under section 18 is not an impediment to the operation of section 28-A but then such a person must be one who had not accepted the award of the Collector and who could have taken recourse to section 18 but did not do so. Therefore, a person who has accepted the award without protest cannot be held to be an aggrieved person.
20. What prevailed upon the learned Judges of the Allahabad High Court appears to be that once the award of the Land Acquisition Officer is accepted without recording protest the acceptance of the offer completes the transaction and a closed transaction cannot be re-opened at the instance of a person who has received payment and therefore nothing can be payable to such person in future. In other words, once the payment is accepted unconditionally that is the end of the matter and there is no question of re-opening the issue of compensation.
21. The upshot of the ratio of this judgment of the Allahabad High Court is that persons interested who had received compensation under protest and despite their failure to seek reference for whatever cause are entitled to seek re-determination of compensation and persons who had received compensation without protest cannot avail of the benefit of section 28-A. This, in our view, is a major controversy for the decision of the present writ petitions. We have a class of cases in this batch of petitions where persons interested have received compensation without protest but have preferred applications within time after enhancement was made by the District Court at the behest of some other persons interested for purported like lands covered under the one and same Notification.
22. Shri M.S. Usgaonkar, C. Alvares, G.G. Kamat, R.M.S. Khandeparkar, and A. Diniz, learned Counsel appearing for the petitioners who have received compensation either with or without protest, have urged that section 31 has no application to the newly added section 28-A. According to them section 18 of the Act speaks of persons who have not accepted the award may by application to the Collector require the matter to be referred by the Collector for determination of the Court whether their objection be as to the amount of compensation, measurement of the land or the person to whom it is payable or the apportionment of the compensation amongst persons interested. Such application is required to be made within the prescribed period in Clauses (a) and (b) of sub-section (2) thereof. It is now pointed out that section 18 nowhere requires a person to receive compensation offered under protest. The receipt of the compensation under protest is incorporated under section 31 which is in a different part being Part V whereas section 18 is included in Part III. The second proviso to sub-section (2) of section 31 says that no person who has received the amount otherwise than under protest shall be entitled to make application for reference under section 18. In other words, who can make reference under section 18 are only those who have received compensation offered to them by the Land Acquisition Collector under protest.
23. The counsel now stated that section 28-A which is a part of Part III of the Act does not speak of any reference to the Court under section 18. It is further pointed out that under sub-section (3) of section 28-A a person who does not accept the award of the Collector made in an application for re-determination can also require the Collector to refer the matter for the determination of the Court and there is nothing to indicate that the persons entitled to apply for re-determination are only those who received the compensation under protest.
24. The scope of section 28-A is restricted to re-determination of compensation in value of land only unlike section 18 where the scope is larger viz. not only value of land but question as to the dispute in measurement of land acquired and apportionment of compensation between various claimants. The contention is that section 18 has no connection with section 28-A for that section itself has provided a reference upon dissatisfaction of the re-determined award of the Collector.
25. Sub-section (3) of section 28-A says that when a party seeking determination of the compensation is dissatisfied with the award he can require the Collector to refer the matter for determination by Court and the provisions of sections 18 to 28 shall, so far as they may be, applied to such a reference as they apply to a reference under section
18. It is true that section 28-A does not require a party to say that he is accepting the compensation under protest upon an enquiry and decision of the Collector in the matter of re-determination of compensation.
26. We have already seen the Object and Reasons for which section 28-A has been incorporated in the Amendment Act of 1984. It clearly states that inequality in respect of similar lands must be done away with. The idea as to why this section is incorporated is that a large section of population who are inarticulate and poor were found usually not to exercise the right of reference and found usually not to take advantage and therefore the situation brings about considerable inequality in the payment of compensation for similar quality of land to different interested parties. With a view to do away with this a fresh opportunity is provided to all aggrieved parties whose land is covered under the same Notification to seek re-determination of compensation once any one of them has obtained orders for payment of higher compensation from a reference Court under section 18.
As rightly observed by the Allahabad High Court in the decision of Gaziabad Development Authority v. State of Uttar Pradesh, 1992 L.A.C. 729, that section 28-A conceptualizes the right of equal treatment. That under the Act a person is divested of his land by compulsory acquisition and such a right is conferred notwithstanding the fact that the person has not previously sought reference under section 18.
27. It was urged on behalf of the petitioners by the learned Counsel that protest upon receiving compensation from Collector can be even oral, quoting a decision of a learned Single Judge of Andhra Pradesh High Court in Smt. Suram Ramakka v. District Collector, 1993 Current Civil Cases 69.
28. The learned Advocate General says that on an interpretation of section 28-A for an applicant to get compensation re-determined requires to be a person interested and, in addition, he must be aggrieved by the award of the Collector. He therefore, says that a person can be aggrieved only if he has received compensation offered to him by the Collector under protest. Had it not been for the expression "who are also aggrieved by the award of the Collector" in section 28-A28-A then, according to him, all classes of persons receiving compensation with or without protest would have been entitled for re-determination.
Upon an elaboration, according to him, section 11(2) clearly envisages an agreement between a person interested and the Collector in a matter of acquisition and in which case no further enquiry need to be made by the Collector and the award is based upon such an agreement.
It is true that in terms of sub-section (2) of section 11 it is possible at any stage of the proceedings when a person interested agrees in writing for a Collector to make award in terms of the agreement and the Collector need not make any further enquiry.
He then refers to section 18 which says that a person interested who has not accepted the award may apply to the Collector in writing requiring the matter to be referred by the Collector for the determination of compensation by the Court. He therefore, urged that when compensation is received as an offer from the Collector without any protest as to its insufficiency there is a clear acceptance and when offer is accepted the agreement is complete and therefore, he cannot be an aggrieved person within the meaning of section 28-A. A contract comes into being under section 3 of the Contract Act as the transaction is complete which cannot be re-opened, says Mr. Advocate General. Relying upon the decision in Harishchand Chandra v. Dy. L.A. Officer, , he says that it has been clearly laid down that determination of compensation by the Land Acquisition Collector is an offer and once that offer is accepted without protest the proceedings are concluded but if however the owner does not accept the offer section 18 gives him a statutory right of having the question determined by the Court and bind both the owner as well as the Collector and it is upon the determination by the Court in such cases that the acquisition proceedings are concluded.
In the decision of Ezra v. Secretary of State, I.L.R. 30 Calcutta 36, the observation is that though section 11 speaks of an award inasmuchas the Collector acts in the matter of enquiry and valuation of the land as an agent of the Government and not as a Judicial Officer and therefore although the Government is bound by the proceedings of the Collector the persons interested are not concluded by his findings regarding the value of the land and the compensation. In other words, it was observed that a Collector's award although binding on the Government, it is not binding on the owners. This judgment was approved by the Privy Council. In the light of the above observations in Harish Chandra's case (supra) the Supreme Court observed that if an award made by the Collector is in law no more than an offer made on behalf of the Government to the owner of the property, then the making of the award as properly understood must involve a communication of the offer to the party concerned and that is the normal requirement under the Contract law and its applicability to the cases of awards made under the Act cannot be reasonably excluded.
The matter for consideration before the Supreme Court in Harish Chandra's case was as to whether when parties do not have notice of the making of the award, communication of the award is necessary for the purpose of limitation set out in section 18.
29. Mr. Advocate General lastly contended that section 28-A does not discriminate between class of persons who had received compensation with protest and other class who received compensation without protest. He therefore urged that the right created to seek re-determination of compensation is for those who did not accept the compensation and reacted against it though did not seek reference to the Court for one reason or the other. According to him, section 28-A cannot be read in isolation and upon the scheme of the Act sections 18 and 31 will have to be read along with it and that is why section 28-A predicates that besides being a person interested he must be also aggrieved. The expression "also aggrieved" is not otiose and must carry its due meaning, urges Mr. Advocate General.
30. The only other counsel who has argued alongside learned Advocate General in opposing the present petitions is Mr. M.S. Sonak. He appears for the Economic Development Corporation which is arraigned in Writ Petitions No. 348 to 364 of 1993. It may be made clear that land was acquired for this Corporation by the State Government. Mr. Sonak says that to accept the view that a person who has accepted the award silently and without protest, if allowed to re-open the award, would tantamount to setting the clock back which is impermissible. He says that the Legislature never contemplated such a situation. According to him, no right of a party for enhancement of a compensation can be kept alive for all time to come and the right of a party for enhancement must be kept alive only if a person never accepted compensation or upon acceptance reacted against it. He says, take for instance, the acquisition was for the Economic Development Corporation which is a Company which has yearly budget. He now says that if persons interested who had not protested earlier go on applying for enhancement of compensation the Corporation will be in trouble and it will be very difficult for such a Corporation to meet its finances. He otherwise maintained as to how the Supreme Court has viewed that the award is an offer in the decision in Dr. G.H. Grant v. The State of Bihar, .
In addition to supporting the argument of the learned Advocate General, Mr. Sonak now relies upon section 16, in the first place, and section 48, in the second. It is indeed true that section 16 speaks of taking possession after the award is made by the Collector and that once the possession of land is taken the same vests in the Government free from all encumbrances. What is sought to be pointed out by the learned Counsel is that the future re-determination of the compensation would be an encumbrance which can never be contemplated when a person has received compensation silently. Insofar as section 48 is concerned it allows the Government to withdraw from acquisition of any land of which possession has not been taken by it. Sub-section (2) of section 48 states that whenever Government withdraws from any acquisition the Collector has to determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or any proceedings thereof. Mr. Sonak now says that the authority for whose benefit land was taken in acquisition plans a particular budget and if the matter of enhancement of compensation goes on endlessly it will be difficult for that authority to meet the demands and consequently the authority cannot go back and surrender the acquired land. He therefore, says that the sword of Democlcs cannot be kept hanging and such a thing is not only impermissible in law but against the public interest for there must be a finality for the award under section 12 and that finality is achieved once a person accepts compensation without protest or when the Court determines compensation upon reference for those persons interested who have received compensation under protest and sought reference.
Insofar as Part III and Part V are concerned, according to him, dissatisfaction with the award is the thread that runs through. Section 18 is available to persons who are dissatisfied where such dissatisfaction is recorded and whenever it is not so recorded section 31 in Part V clearly bars those persons from seeking any enhanced compensation. He therefore says that the question of inserting section 31 in section 28-A was not necessary at all. For "person interested" defined under section 3-B includes all persons claiming interest in compensation to be made on account of acquisition of land and once section 28-A speaks of persons interested and at the same time "also aggrieved by the award" the part aggrieved can only be he who accepted the award under protest. Mr. Sonak relied upon the decision of Spl. Land Acquisition Officer, Bombay v. M/s. Godrej & Boyce, , to show that it is permissible for the Government to withdraw land from acquisition but before taking possession although upon payment of some damages.
31. Oxford Dictionary defines "aggrieved party" to be one "hurt in spirit or injuriously affected". The learned Advocate General has strongly urged that when an offer is accepted by the land owner without protest he cannot be injuriously affected and therefore he cannot be an aggrieved party and therefore re-determination of compensation is not possible at all at his behest.
32. On the subject of who is person aggrieved and to show as to how it is viewed, the learned Counsel for the petitioners have relied upon certain decisions. In Adi Pherozshah Gandhi v. H.M. Seervai, , the question before the Court was whether the
Advocate General of the State of Maharashtra was person aggrieved who appeared in disciplinary proceedings against advocate Adi Gandhi in pursuance of notice under section 35(2) of Advocates Act, 1961. The Supreme Court held that the Advocate General though appeared upon a notice and rendered assistance, he is not an aggrieved person merely because the decision is not acceptable to him. While viewing section 71 of the Bankruptcy Act of 1869 the observations were as follows :
".....not really a person who is disappointed of a benefit which he might have received if some other order had been made. A person aggrieved must be a man who had suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something".
33. In the decision of Thammanna v. K. Veera Reddy and others, , a question arose with regard to the maintainability of the appeal under section 116-C of the Representation of People Act, 1951. Though the appellant was one of the respondents in the Election Petition as he had contested the same election and in which he had been defeated and upon dismissal of the Election Petition against a successful candidate, the question was whether the appellant was a person aggrieved to challenge the same in appeal before the Supreme Court, it was observed that a person aggrieved must be a man who has suffered legal grievances, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. As a ratio it was laid down that the expression "person aggrieved" means according to the very context of the Statute and the facts of the case. The Supreme Court finally ruled that inasmuch as the appellant had not participated in the Election Petition he is not a person aggrieved and he cannot challenge the decision of the High Court. Lastly the learned Counsel for the petitioners relied on section 28-A itself. According to them, the requirement of section 28-A is persons interested and in addition who are also aggrieved by the award of the Collector. What is crucial according to them is the use of the present tense viz. "who are also aggrieved" and not `who were also aggrieved'. It was therefore urged that "are aggrieved" can be applied only to the award of the District Court and cannot relate to the award of the Collector made in the past.
34. In the decision of M/s. Goodyear India Ltd. v. State of Haryana, , the Apex Court held that precedent is for what it decides.
The reference in para 5 to Contract Act in the decision of Harish Chandra, , (supra) must be viewed in its context.
Strictly speaking in the matter of acquisition there is no contract as such because finally the acquisition is a forcible event and because it is a forcible acquisition the Statute provides an additional compensation by way of solatium. The provisions of the Contract Act therefore cannot be strictly applied to acquisition proceedings. It is indeed true and it is beyond dispute that when the Land Acquisition Officer makes his award the amount of compensation determined by him is an offer. The party seeking reference for being not happy with the award has to apply to the Collector to make reference under section 18 within the period prescribed therein. At the moment we are not concerned with the limitation aspect. The proviso to section 31 clearly envisages that when a person interested has accepted the award he cannot seek reference under section 18 unless he has accepted the compensation under protest.
35. The learned Advocate General and Mr. Sonak have relied upon authorities which are all pre-amendment of 1984 and it must be said that references are in the context of the pre-Amendment Act. The amendment of 1984 by which section 28-A has been incorporated in the Act carves out a new opportunity for persons interested who had received compensation but had not sought reference under section 18. Section 28-A is the last section inserted in Part III. Section 31 is admittedly in Part V of the Act. Sub-section (2) of section 28 requires the Collector on receipt of application under sub-section (1) to conduct an enquiry and afford a reasonable opportunity of being heard, then make an award determining the amount of compensation payable to an applicant. Sub-section (3) says that a person who has not accepted the award re-determined under sub-section (2) may require the Collector by a written application that the matter be referred to the determination of the Court and in which event 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 expression "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" would mean that the Court determining compensation under sub-section (3) of section 28-A shall follow the procedure laid down in section 18 onwards as if it is a reference made under section 18 at that point of time. Legislature did not say that for making reference under sub-section (3) of section 28-A the party is required to accept the award of the Collector under protest. Therefore, in our view, sections 18 and 31 are clearly kept out of the purview of section 28-A.
36. We will presently point out the difference in the scheme. The Collector makes an award under section 11 and communicates the parties under section 12. When the offer of the Collector is made it is open to a party to say that he refuses to accept the money in which case he can seek reference under section 18. The party can also accept the compensation offered under protest and thereafter seek the reference. The stage of invoking section 18 would involve section 31 and it is available to only those who have not received compensation and those who received under protest. Therefore, to seek a reference under section 18, section 31 proviso, namely, the bar of requiring to accept compensation under protest comes in. Such is not the scheme in section 28-A as it is clear upon reading the very section. We have already highlighted sub-sections (2) and (3) when the Collector re-determines the compensation and a party if still aggrieved can apply to the Collector to make the reference and when the reference is made the reference Court is required to follow the provisions of sections 18 to
28. Therefore, in the scheme of section 28-A the question of applicability of section 31 does not arise.
37. The other aspect is that section 28-A was incorporated for laudable reasons and the object was inequality in the matter of receipt of compensation. Section 28-A is a statute in itself being a self-contained code. It enumerates who are the persons who are entitled to seek re-determination. It sets out its limitation within which time a person interested is required to apply so that it is made a time-bound provision. On receipt of the application as to how the Collector is to act is also clearly laid down and upon dissatisfaction of the award of re-determination the right of the person to move the application to the Collector for reference to the Court has also been provided. It further provides the machinery, namely, the Court. The parameters of the Court are also determined while saying that in such matters the Court shall observe the provisions of the reference Court and be guided by sections 18 to 28 of Part III. A fortiorari therefore that section 28-A will have to be read in isolation. Viewed in that context it appears that what the Legislature intended was to give a fresh opportunity to the persons or carve out a new remedy for all those who had missed the making of the reference with or without protest earlier. For these reasons both classes are brought on par with other persons interested who are similarly placed who received the benefit of enhancement upon a reference. In that light it is difficult to accept that only that class of persons who had received compensation under protest were envisaged under sub-section (1) of section 28-A. The expression "notwithstanding that they had not made application to the Collector under section 18..." in our view clearly emphasises that it would include all categories of persons who had not sought reference irrespective whether they had received compensation with or without protest, the principal idea being that once the compensation has been determined by the Court in case of a land, all other similar lands under the same Notification are brought within the net with the result all other interested persons who had not sought reference are given opportunity at this point of time to apply again to the Collector within 3 months from the date of the award of the Court to re-determine the compensation on the basis of the amount of compensation awarded by the Court to the interested persons who had sought reference under secton 18. Therefore, the expression "and who are also aggrieved by the award of the Collector" would simply mean that upon enhancement of the compensation at the instance of some other interested person by a Court the person who had earlier not sought reference would be aggrieved. It is therefore, not possible to hold that the expression that "those who are also aggrieved by the award of the Collector" would only mean those who had received compensation under protest.
38. Another great reason which must prevail is this : The stress by the learned Advocate General and the learned Counsel Shri Sonak is that the compensation awarded is an offer and once it is accepted without reaction, i.e. without protest that is the end of the proceedings and therefore no further scope for being aggrieved. This submission, in our view, can be demolished upon a correct perspective of the matter.
If we are to accept that a person who has received compensation under protest is alone aggrieved, then we will enter into a fallacy under the very law. We will succintly point out that when a person receives compensation under protest and finally does not choose to go in a reference under section 18 and allows the period of limitation set out in sub-section (2) of section 18 to run out against him, then at the end of such a limitation period the proceedings come to an end and in no manner the person who has received a compensation under protest can re-open the case of the compensation awarded to him. Hence for all practical purposes upon the end of the limitation period the person interested who had taken compensation under protest comes on par with the person who has received compensation without protest. We fail to understand, therefore, as to what distinction can remain between a person who has received compensation under protest and yet not chosen to seek reference as once the limitation period is ended under the law he is deemed to have accepted the amount of compensation made to him. Therefore, in our opinion, once the person having chosen not to seek reference mere recording the receipt of compensation under protest will have no meaning and he cannot be held to be a person aggrieved once he has chosen not to go in a reference and allowed the period of limitation to run out against him. Even upon this view of the matter in our judgment it is not possible to accept that persons aggrieved are those who have received compensation under protest and therefore the predicate that is required to be fulfilled under section 28-A is that the person interested must not have sought reference upon receipt of the compensation irrespective of whether such a person had received it with or without protest.
39. In our view with great respect we are unable to agree with the decision of the Allahabad High Court in Babua Ram and others v. State of Uttar Pradesh, , and we accept and fall in line
with the decision of the Division Bench in Ram Loguri and others v. State of Orissa, 1992 L.A.C.C. Orissa 458 and decision of Smt. Sumita Guller & others v. State of Himachal Pradesh, A.I.R. 1992 H.P. 93. Viewed thus therefore it must be held that irrespective of protest or no protest, persons interesed are entitled to get compensation re-determined when applications are filed within the limitation period prescribed in section 28-A. Question No. 1 set out earlier is answered accordingly.
40. Now as to question No. 2 whether the application for re-determination of compensation is required to be filed within 3 months from the date of the award by the Court.
We have aleady indicated in question formulated above whether a fresh application is required to be made when the High Court modified the award of the District Court in appeal or when the High Court remanded the matter to the District Court for fresh award. Not much effort is necessary in this connection. We have already said elsewhere in the judgment that in some cases the order challenged in some batch of petitions the Collector rejected the applications on the ground that fresh applications were not filed after the High Court modified the award earlier made by the District Court in appeal. We have already indicated the scheme of section 28-A. The written application to the Collector is required to be made within 3 months from the date of the award by the Court. The Court has been defined in section 3-D to mean the principal Court of Original Jurisdiction. Insofar as Goa is concerned under the Goa, Daman and Diu Civil Courts Act, the Principal Civil Court of Original Jurisdiction is defined to be the District Court. Therefore, just as the reference under section 18 lies to the District Court which is the principal Civil Court of Original Jurisdiction once an application is made to the Collector seeking reference and the District Court determines the compensation, other interested persons who want their compensation re-determined on the basis of the award of the District Court are entitled to apply within 3 months from the date of the award of the District Court and that application will be valid for all time to come and merely because in the meantime the award made by the District Court is challenged in the High Court and the High Court has modified the same there is no question of fresh application after the modified award is rendered by the High Court in appeal. An application filed within 3 months from the date of the award from the Court shall hold good and valid for all time to come, irrespective of whether the decision was challenged in the High Court or for that matter even in the Supreme Court. So the question of fresh application does not arise and question No. 2 is answered accordingly.
41. We have not considered the facts in individual petitions and set out merely questions of law which are raised in the petitions. In view of what is decided above in our view the impugned order in each and every petition is required to be quashed and set aside and a direction should go to the Land Acquisition Officer or Collector to decide the applications of each of the petitioners in each and every petition under section 28-A in the light of the observations made. Having regard to the fact that a lot of time was lost in between it is necessary that a direction should go to dispose of the applications of the petitioners within a time frame. We accordingly direct the concerned Land Acquisition Officers to dispose of the petitioners' applications within six months.
42. Petitions accordingly succeed. Rule is accordingly made absolute to the extent indicated. There shall be however no order as to costs.