# Chandra Kishori v. The State of U.P. and others

- **Citation:** (2007) 2 ILRA 362
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-03-07
- **Case number:** Civil Misc. Writ Petition No. 24773 of 2004
- **Bench:** Dr.B.S.Chauhan, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandra-kishori-v-the-state-of-u-p-and-others-40914
- **Pages:** 4

## Headnote

Land Acquisition Act,1894-Section 28-AApplication
for
enhancement
of
Compensation-rejection on the ground
no reference filed by the tenure holderheld-illegal, Section 28-A being special
provision enacted for inarticulate and
poor
people
to
apply
for
redetermination by the original /owner.

Held: Para 9

Thus, it is apparent that the legislature
has carved out an exception in the form
of Section 28 and made a special
provision to grant some relief to a
particular class of society, namely poor;
illiterate,
ignorant
and
inarticulate
people. It is made only for little Indians.
The provisions of Section 28-A refers to
the "person interested" which means the
original owner and that original owner
interested must further be a person
aggrieved by the award of the Collector.
Case law discussed:
AIR 1986 SCC(4) 151, 1995 (2) SCC 689, AIR
1996 AWC-1237, 1995 (2) SCC 733, 1995 (2)
SCC 735, 1995 SC 2259, 1995 (2) SCC 766,
AIR 1995 SC 812, 2004 (7) SCC 753, 1991 (1)
SCC 174, 2003 (7) SCC 280, 1997 (6) SCC
280, AIR 1963 SC 1716

## Text

362 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Shailesh Pratap Singh is hereby set aside.
The matter is remanded back to C.J.M.
Azamgarh to decide it in accordance with
law.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.03.2007

BEFORE
THE HON'BLE DR.B.S.CHAUHAN, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No. 24773 of 2004

Chandra Kishori

...Petitioner
Versus.
The State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.C. Tiwari
Sri P.S. Yadav
Sri S.K. Kulsherstha

Counsel for the Respondent:
Sri Shri Kant
S.C.

Land Acquisition Act,1894-Section 28-AApplication
for
enhancement
of
Compensation-rejection on the ground
no reference filed by the tenure holderheld-illegal, Section 28-A being special
provision enacted for inarticulate and
poor
people
to
apply
for
redetermination by the original /owner.

Held: Para 9

Thus, it is apparent that the legislature
has carved out an exception in the form
of Section 28 and made a special
provision to grant some relief to a
particular class of society, namely poor;
illiterate,
ignorant
and
inarticulate
people. It is made only for little Indians.
The provisions of Section 28-A refers to
the "person interested" which means the
original owner and that original owner
interested must further be a person
aggrieved by the award of the Collector.
Case law discussed:
AIR 1986 SCC(4) 151, 1995 (2) SCC 689, AIR
1996 AWC-1237, 1995 (2) SCC 733, 1995 (2)
SCC 735, 1995 SC 2259, 1995 (2) SCC 766,
AIR 1995 SC 812, 2004 (7) SCC 753, 1991 (1)
SCC 174, 2003 (7) SCC 280, 1997 (6) SCC
280, AIR 1963 SC 1716

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
challenging the order dated 23.02.2004,
by which Reference Court rejected the
application of the petitioner under Section
28-A of the Land Acquisition Act, 1894
(hereinafter called the Act).

2. The facts and circumstances
giving rise to this case are that the land of
the petitioner was acquired under the
provisions of the Act issuing Notification
under Section 4 on 04.05.1973 and
Declaration
under
Section
6
on
04.08.1973.The Award was made, against
which some of the persons interested filed
Reference under Section 18 of the Act
which was decided on 11.12.1991 by the
Court concerned. On the basis of the said
Reference
Award
dated
11.12.1991
petitioner filed an application under
Section 28-A of the Act claiming the
same rate for her land which was rejected
vide impugned judgment and order of the
Reference Court holding it to be not
maintainable only on the ground that the
application was not maintainable as the
petitioner had not filed application under
Section 18 of the Act before the
Reference Court. Hence this petition.

3. Admittedly, Section 28-A is made
for the poor, ignorant and inarticulate
people who being little Indian cannot
afford to file a Reference under Section
2 All] Chandra Kishori V. The State of U.P. and others
363
18 of the Act. However, the issue is as to
whether such a poor person is to be
examined by the Court. But, it is
admittedly only for those who had not
filed the application for Reference under
Section 18 of the Act. The Reference
Court
placed
reliance
upon
certain
judgments of the Hon'ble Supreme Court
wherein it has been held that the
application under Section 28-A can be
maintained provided an application under
Section 18 had been filed. It does not be a
correct preposition of law.

4. Section 28-A of the Act was
inserted in the Act by Amendment Act
No.68 of 1984 and it provides for redetermination
of
the
amount
of
compensation on the basis of the award of
the Court in respect of a land which has
also been acquired in the same land
acquisition proceedings if the applications
are filed within a period of three months
from the date of the award of the Court.

5. The scope of provisions of
Section 28-A was considered by the
Supreme Court in Mewa Ram Vs. State of
Haryana, (1986) 4 SCC 151 and the Court
placed particular emphasis on para 2(ix)
of the object and reasons which provided
for a special provision for inarticulate and
poor people to apply for redetermination
of the compensation amount on the basis
of the court award in a land acquisition
reference filed by comparatively affluent
land owner. The Apex Court observed as
under:

"Section 28-A in terms does not
apply
to
the
case
of
the
petitioners.......They do not belong to that
class of society for whose benefit the
provision is intended and meant, i.e.
inarticulate and poor people who by
reason of their poverty and ignorance
have failed to take advantage of the
right of reference to the civil court
under Section 18 of the Land Acquisition
Act, 1894. On the contrary, the petitioners
belong to an affluent class......."

6. The Apex Court approved the law
laid down in Mewa ram (Supra) again in
Scheduled Caste Cooperative Owning
Society Ltd. Batinda Vs. Union of India
and others, AIR 1991 SC 730.

7. In Babua Ram Vs. State of U.P.
1995 (2) SCC 689, the Apex Court again
approved and reiterated the law laid down
in Mewa Ram (Supra) and observed as
under:-

"Legislature made a discriminatory
policy
between
the
poor
and
inarticulate as one class of persons to
whom the benefit of Section 28-A was to
be extended and comparatively affluent
who had taken advantage of the reference
under Section 18 and the latter as a class
to which the benefit of Section 28-A was
not extended. Otherwise, the phraseology
of the language of the non-obstante clause
would have been differently worded...... It
is true that the legislature intended to
relieve hardship to the poor, indigent and
inarticulate
interested
persons
who
generally failed to avail the reference
under Section 18 which is an existing bar
and to remedy it, Section 28-A was
enacted giving a right and remedy for
redetermination.....The legislature appears
to have presumed that the same state of
affairs continue to subsist among the poor
and
inarticulate
persons
and
they
generally fail to avail the right under subsection (1) of Section 18 due to poverty or
ignorance or avoidance of expropriation."
364 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

8. A similar view has been taken by
a Division Bench of this Court in Nanak
& Ors Vs. State of U.P. & Ors, 1996
AWC 1237 placing reliance of large
number of judgments of the Hon'ble
Supreme Court.

9. Thus, it is apparent that the
legislature has carved out an exception in
the form of Section 28 and made a special
provision to grant some relief to a
particular class of society, namely poor;
illiterate, ignorant and inarticulate people.
It is made only for little Indians. The
provisions of Section 28-A refers to the
"person interested" which means the
original owner and that original owner
interested must further be a person
aggrieved by the award of the Collector.

10. In G. Krishna Murthy & Ors.
Vs. State of Orissa, (1995) 2 SCC 733; D
Krishna Vani & Anr. Vs. State of Orissa,
(1995) 2 SCC 735; Union of India & Anr.
Vs. Pradeep Kumari & Ors., AIR 1995
SC 2259; and U.P. State Industrial
Development Corporation Ltd. Vs. State
of U.P. & Ors., (1995) 2 SCC 766, it has
been held by Hon'ble Supreme Court that
a person who prefers a Section 18
reference cannot maintain an application
under Section 28-A of the Act. The
benefit of such an exceptional rule cannot
be extended to the petitioners as it would
be against the public policy. In a similar
situation, the Hon'ble Supreme Court in
Union of India Vs. Shivkumar Bhargava
& Ors., AIR 1995 SC 812 , observed that
the benefit of State policy which confers
certain beneficial rights on a particular
class of person is meant only for the
person whose land was acquired and by
necessary implication ''the subsequent
purchaser was elbowed out from the
policy and became disentitled to the
benefit of" the State policy.

11. In Des Raj & Ors. Vs. Union of
India & Anr., (2004) 7 SCC 753 it was
held by the Hon'ble Supreme Court that if
a person has applied under Section 18 of
the Act and pursued the matter further, he
is not entitled to maintain the application
under Section 28-A for re-determination
of compensation. The Court further held
that it is mandatory to file the application
within prescribed limitation, which runs
from the date of the Award under Section
18 of the Act. While deciding the said
case the Court placed reliance upon its
earlier judgments, including Scheduled
Caste Co-operative Land Owning Society
Ltd., Bhatinda Vs. Union of India & Ors.,
(1991) 1 SCC 174.

12. In State of Andhra Pradesh &
Anr. Vs. Marri Venkaiah & Ors., (2003) 7
SCC 280, the Hon'ble Supreme Court has
dealt with the issue of limitation and held
as under:-

"Plain language of the aforesaid
section would only mean that the period
of limitation is three months from the date
of the award of the court. It is also
provided that in computing the period of
three months, the day on which the award
was pronounced and the time requisite for
obtaining the copy of the award is to be
excluded.
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 further exclusion of
time on the ground of acquisition of
knowledge by the applicant."
2 All] Kailash and others V. State of U.P. and others
365

13. While deciding the said case
Court placed reliance on its earlier
judgment in Tota Ram Vs. State of U.P.
& Ors., (1997) 6 SCC 280. The Court
further
rejected
the
contention
that
limitation would run from the date of
knowledge
distinguishing
the
earlier
judgments on fact and law in Raja Harish
Chandra Raj Singh Vs. Deputy Land
Acquisition Officer, AIR 1961 SC 1500;
and State of Punjab Vs. Qaisar Jehan
Begum, AIR 1963 SC 1604.

14. In Union of India Vs. Munshi
Ram & Ors., AIR 2006 SC 1716, the
Apex Court has laid down the law that
such an application is maintainable
provided a person has not filed an
application under Section 18 of the Act.
The Court held that Section 28-A seeks to
confer
the
benefit
of
enhanced
compensation on those owners who did
not seek Reference under Section 18. In
fact under the said provision they are
entitled
for
enhanced
compensation
decreed by the Reference Court and
further as the decreed amount stands
modified in appeal by the higher Courts.

15. The order impugned dated
23.02.2004 has been passed by the
Reference Court placing reliance upon the
judgments of the Hon'ble Supreme Court
in Smt Bhagti (Dead) through L.Rs.
Jagdish Ram Sharma Vs. State of
Haryana, JT 1997 (2) SC 291; and Vishav
Bandhu Gupta & Anr Vs. State of
Haryana & Anr, 2002 (1) CRC 145,
wherein the Hon'ble Supreme Court has
observed that if a person has not filed the
Reference under Section 18 of the Act he
cannot maintain the application under
Section 28-A. The view taken by the
Hon'ble Supreme Court in these two cases
is apparently in contravention of the
statutory provision itself and also run
counter to the law laid down by the
Hon'ble Supreme Court referred to herein
above. The said judgments do not lay
down the correct legal proposition.

16. In view of the above, the order
impugned cannot be sustained in the eyes
of law and is liable to be quashed.

17. The petition succeeds and is
allowed. The impugned order dated
23.02.2004 is hereby set aside. The case is
remitted to the learned Reference Court to
redetermine the whole issue addressing
itself to the issue of maintainability,
limitation, and then to decide on merit. In
view of the fact that long time has elapsed
and the land has been acquired long back,
learned Reference Court is requested to
decide the controversy at the earliest.

Learned Standing Counsel and Shri
Shrikant,
Advocate,
appeared
for
respondents.

Petition allowed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.02.2007

BEFORE
THE HON'BLE M.K. MITTAL, J.

Criminal Misc. Application No.10419 of
2005

Kailash and others

...Applicants
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Applicants:
Sri Gautam Chaudhary

Counsel for the Opposite Parties:
A.G.A.