# Revenue Divisional Officer-cumL.A.O v. Shaik Azam Saheb etc. and

- **Citation:** (2009) 2 ILRA 718
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-28
- **Case number:** First Appeal No. 565 of 1989
- **Bench:** Rakesh Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/revenue-divisional-officer-cuml-a-o-v-shaik-azam-saheb-etc-and-41440
- **Pages:** 5

## Headnote

Sri N.C. Rajvanshi
Sri M.K. Rajvanshi

U.P.
Awas
Avam
Vikas
Parishad
Adhiniyam-Section 32 (1)-Enhancement
of
compensation-land
acquired
on
21.10.59-reference
Court
inhanced
compensation excluding plot No.135poor land owner could not challenging
due to dispute of third party regarding
award-26.02.85
reference
court
enhanced compensation as the rate of
Rs.10/- per sqr. Yard-while other land
inferior quality land amount enhanced at
the rate of Rs.25/-held- order passed by
reference court perfectly justified can
not be interfered.

Held: Para 17

In the present case, the claimants, land
owners, are poor farmers of the Meerut
District, not Builders or Colonisers or
Developers. It is noteworthy that for the
land acquired in the same vicinity,
reference
had
been
allowed
and
compensation was awarded at the rate
of Rs.10/= per sq. yard. Even inferior
quality of land was rated at a higher
price. This Court has also scrutinised the
impugned judgment in the light of a
recent judgment of the Hon'ble Apex
Court reported in 2009 (2) AWC 1617
(SC), Revenue Divisional Officer-cumL.A.O. Vs. Shaik Azam Saheb etc. and
found that the impugned judgment order
of the Reference court is a legally sound,
detailed and reasoned judgment, which
does not require any interference.
Case law discussed:
1996 AWC 1238,
1995 (2) SCC 689.

## Text

718 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.08.2009

BEFORE
THE HON'BLE RAKESH SHARMA, J.

First Appeal No. 565 of 1989
Alongwith
First Appeal No. 554 of 2001

U.P. Avas Evam Vikas Parishad

...Appellant
Versus
Din Mohammad & others ...Respondents

Counsel for the Petitioner:
Sri Shri Kant

Counsel for the Respondents:
Sri N.C. Rajvanshi
Sri M.K. Rajvanshi

U.P.
Awas
Avam
Vikas
Parishad
Adhiniyam-Section 32 (1)-Enhancement
of
compensation-land
acquired
on
21.10.59-reference
Court
inhanced
compensation excluding plot No.135poor land owner could not challenging
due to dispute of third party regarding
award-26.02.85
reference
court
enhanced compensation as the rate of
Rs.10/- per sqr. Yard-while other land
inferior quality land amount enhanced at
the rate of Rs.25/-held- order passed by
reference court perfectly justified can
not be interfered.

Held: Para 17

In the present case, the claimants, land
owners, are poor farmers of the Meerut
District, not Builders or Colonisers or
Developers. It is noteworthy that for the
land acquired in the same vicinity,
reference
had
been
allowed
and
compensation was awarded at the rate
of Rs.10/= per sq. yard. Even inferior
quality of land was rated at a higher
price. This Court has also scrutinised the
impugned judgment in the light of a
recent judgment of the Hon'ble Apex
Court reported in 2009 (2) AWC 1617
(SC), Revenue Divisional Officer-cumL.A.O. Vs. Shaik Azam Saheb etc. and
found that the impugned judgment order
of the Reference court is a legally sound,
detailed and reasoned judgment, which
does not require any interference.
Case law discussed:
1996 AWC 1238,
1995 (2) SCC 689.

(Delivered by Hon'ble Rakesh Sharma, J.)

1. Since both these First Appeals
have been preferred against the same land
acquisition
proceedings
claiming
enhanced compensation and are interknitted, therefore, these First Appeals are
being decided by this one and common
judgment.

2. Heard Sri Shri Kant, learned
counsel for the U.P. Avas Evam Vikas
Parishad and Sri N.C. Rajvanshi, learned
Senior Counsel, assisted by Sri M.K.
Rajvanshi,
learned
counsel
for
the
respondents in First Appeal No. 565 of
1989 and for the Appellants in First
Appeal No. 554 of 2001 and perused the
materials on record.

3. The present First Appeals, under
Section 54 of the Land Acquisition Act,
1894 (hereinafter referred to as the Act)
have been preferred by the U.P. Awas
Evam
Vikas
Parishad
against
the
respondents, land owners, farmers, and by
the land owners against the U.P. Avas
Evam Vikas Parishad (hereinafter referred
as the Parishad) for enhancement of their
compensation. These First Appeals have
been filed assailing the judgment and
decree dated 6th May, 1989, passed by the
District Judge, Meerut, rendered while
answering Land Acquisition Reference
No. 182 of 1988, by which the Reference
2 All] U.P. Avas Evam Vikas Parishad V. Din Mohammad and others

719
Court has enhanced the compensation for
the land acquired and fixed the same at
the rate of Rs.10/= per sq. yard. The
Reference
Court
has
also
awarded
additional amount of compensation as
interest at the rate of 12% per annum on
the amount of compensation from the date
of issuance of notification under Section
4(1) of the Act. In addition to this,
solatium and other benefits have also been
allowed to the land owners.

4. The connected First Appeal No.
554 of 2001 has been filed by Din
Mohammad and others seeking higher
compensation at the rate of Rs.25/= per
sq. yard, that is, more than Rs.10/= per sq.
yard as awarded by the Reference court,
that is, District Judge, Meerut.

5. It has emerged from the record
that the U.P. Awas Evam Vikas Parishad,
in furtherance of implementing a Housing
Scheme in the urban area of District
Meerut, has initiated land acquisition
proceedings for which a notification
under Section 36 of the U.P. Awas Evam
Vikas
Parishad
Adhiniyam,
as
is
applicable to the U.P. Awas Evam Vikas
Parishad, was issued on 22.10.1956.
Notification under Section 32(1) of the
U.P.
Awas
Evam
Vikas
Parishad
Adhiniyam,
which
is
equivalent
to
Section 6 of the Land Acquisition Act,
was issued on 21.10.1959. The possession
of the land was taken over. The references
were adjudicated upon. The Reference
court, that is, District Judge, Meerut, vide
the judgment and decree dated 26.2.1985
had enhanced compensation, except for
one plot, that is Plot No. 135 as no
challenge was made in respect of Plot No.
135 alongwith other plots. The reason for
not challenging the award in respect of
this plot was that there was a dispute
pending with some third party. Under
these compelling circumstances, the land
owners did not seek a reference for Plot
No. 135. The respondent nos. 1 to 6,
herein,
agriculturists
of
Village
Aurangshahpur, District Meerut, had filed
an application under Section 18 of the
Land Acquisition Act seeking a reference
before the District Judge in respect of the
plot No. 135, acquired by the Parishad.

6. Lateron, the provisions of the
Land Acquisition Act was amended and
Section
28-A
was
inserted
by
an
amending Act No.68 of 1984. This
Section provides for re-determination of
amount of compensation.

7. The land owners, who claim
themselves to be poor farmers of the
District Meerut, immediately sought a
reference
and
submitted
a
formal
application
to
the
Special
Land
Acquisition Officer within three months
of the said judgment of 26.2.1985. This
reference was adjudicated upon and the
District Judge, Meerut, maintaining the
parity with the other cases and the
compensation awarded to the land owners
of the adjoining plots had allowed them
the same compensation, that is, at the rate
of Rs.10/= per sq. yard.

8. The State of U.P. as well as U.P.
Awas Evam Vikas Parishad had resisted
the reference on the ground that the
reference on the ground that the reference
itself was not maintainable under Section
28-A
of
the
Act.
The
claimant,
landowners, did not choose to seek a
reference against Plot No. 135 at the time
when they had availed the opportunity of
challenging the award in respect of other
plots. Their conduct would amount to
waiver of their rights to claim the
720 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

compensation in respect of the said plot.
The
reference
was
barred
by
the
principles of estoppel as indicated under
Order 2, Rule 2 C.P.C.

The following issues were framed by
the Reference court:-

(i) Whether
the
application
moved
under Section 28-A of the Land
Acquisition Act is maintainable?
(ii) Whether the claimants are entitled to
claim compensation on the basis of
the compensation awarded earlier in
L.A. Reference No. 169/ 1978, Allah
Mehar Vs. State of U.P. and another?
(iii) To what relief, if any, are the
claimants entitled?

9. The impugned judgment and
order of the Reference court has been
challenged by the Parishad on the ground
that
it
was
patently
illegal
and
unwarranted.
The
respondents,
land
owners, are not entitled for enhanced
compensation, solatium and interest etc.
The Reference court had ignored that the
reference was barred by limitation under
Order 2, Rule 2 C.P.C. The respondents,
land
owners,
were
estopped
from
claiming enhanced compensation. The
provisions of Section 28-A of the Act
were to be invoked within the period of
limitation. The Reference court erred in
holding
that
the
reference
was
maintainable.

10. The court below has acted
illegally in proceeding with the case
treating as a reference under Section 28A(3) of the Act, which was not
permissible. There was a delay in
approaching the Court and there existed
no provision under U.P. Awas Evam
Vikas Parishad Adhiniyam equivalent to
Section 5 of the Indian Limitation or
under the relevant provisions dealing with
Acquisition proceedings under the Act.
The acquisition of the land was made
under the provisions of the U.P. Awas
Evam Vikas Parishad Adhiniyam and as
such the provisions of amending Section
28-A of 1984 of the Act are not
applicable.

11. Considered the arguments of
leaned counsel for the parties and perused
the materials on record as well as
impugned judgment and decree passed by
the learned Reference court, that is, the
District Judge, Meerut.

12. The District Judge, Meerut,
while interpreting Section 28-A of the Act
has held in the impugned judgment that it
was clearly provided in the new Section
28-A of the Act that where in an award,
the court allows to the land owners any
amount of compensation in excess of the
amount awarded by the Collector, the
persons interested in all the other lands
covered by the same notification under
Section 4(1) and who are also aggrieved
by the award of the Collector may,
notwithstanding that they had not been
made an application to the Collector
under Section 18 required to be made
within three months of the date of the
award
that
the
amount
of
compensation may be re-determined on
the
basis
of
the
amount
of
compensation earlier awarded by the
court. The court of the District Judge,
Meerut had already allowed amount of
enhanced compensation at the rate of
Rs.10/= per sq. yard in respect of the
similarly situated land having similar
potential, nature and status situated in the
same vicinity.
2 All] U.P. Avas Evam Vikas Parishad V. Din Mohammad and others

721
13. It was also submitted by the land
owners before the Reference court as well
as in this Court in the connected Appeal
No. 554 of 2001, Din Mohammad and
others Vs. State of U.P. and another that
for inferior quality of land, the Reference
court had allowed compensation at the
rate of Rs.10/= per sq. yard. The
respondents, land owners, land was of
superior quality and located near the
urban area of the Meerut City at a better
place and approachable having all the
urban facilities. Thus, they are also
entitled for similar compensation at the
same rate.

14. It was also demonstrated before
the Court that the same land, after some
time, was leased out by the Parishad at the
rate of Rs.600/= per sq. yard, that is, more
than sixty times of the amount of
compensation
allowed
to
the
poor
farmers, who had lost their land, which
was their only source of livelihood for
establishing a Housing Colony by the
Parishad. It has been rightly held by the
learned Reference court, the District
Judge, Meerut that the provisions of
Section 28-A of the Act were applicable
in the present case.

15. The judgment rendered by the
District Judge, Meerut finds strength from
a Division Bench's judgment of this Court
comprising of Hon'ble Mr. Justice M.
Katju and Hon'ble Dr. Justice B.S.
Chauhan, reported in 1996 AWC 1238,
Nanak and others Vs. State of U.P. and
others. Some observations of the said
judgment are being reproduced below:

"7. The scope of provisions of
Section 28A was considered by the
Supreme Court in Mewa Ram v. State of
Haryana (1986) 4 SCC 151 and the Court
placed particular emphasis on Para 2 (ix)
of the objects and reasons which provided
for a special and particular discriminatory
advantage for inarticulate and poor people
to apply for re-determination of the
compensation amount on the basis of the
court award in a land acquisition
reference filed by the comparatively
affluent land owner. The Apex Court
observed as under:
"Section 28A 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.
......

........

........
9. In Babua Ram v. 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 28A 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 28A 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,
722 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Section 28A was enacted giving a right
and remedy for re-determination.........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 sub-section (1) of Section 18
due to poverty or ignorance or avoidance
of expropriation..............Parliament made
conscious discrimination between the
poor and inarticulate as a class and
comparatively affluent as another class
and conferred the rights under Section
28A in favour of the former.........Section
28A is just and fair and does not violate
Article 14. The procedure, therefore, is
just and fair and does not violate Article
21."

16. Their Lordships, in similar
circumstances,
had
held
that
the
provisions of Section 28-A of the Land
Acquisition Act, 1894 (as amended) are
applicable only in the cases of 'Little
Indians'
because
of
their
poverty.
Paragraph 12 of the judgment is being
reproduced below:-

"12. Thus, it is clear from the above,
that the provisions of Section 28A is
applicable only in a case of 'Little Indians'
who because of their poverty and
ignorance cannot afford to file the
reference under Section 18 of the Act and
if an application under the said provision
is filed by a person of that class, the same
cannot be decided unless the Court's
award on the basis of which the said
application has been filed does not attain
the finality. However, the provisions of
Section 28A are not intended to be
windfall for every landholder whose land
had been acquired under the same land
acquisition proceedings."

17. In the present case, the
claimants, land owners, are poor farmers
of the Meerut District, not Builders or
Colonisers or Developers. It is noteworthy
that for the land acquired in the same
vicinity, reference had been allowed and
compensation was awarded at the rate of
Rs.10/= per sq. yard. Even inferior quality
of land was rated at a higher price. This
Court has also scrutinised the impugned
judgment in the light of a recent judgment
of the Hon'ble Apex Court reported in
2009 (2) AWC 1617 (SC), Revenue
Divisional Officer-cum-L.A.O. Vs. Shaik
Azam Saheb etc. and found that the
impugned
judgment
order
of
the
Reference court is a legally sound,
detailed and reasoned judgment, which
does not require any interference.

18. In view of the discussions made
above, the First Appeals, being devoid of
merits, are dismissed.

No order as to cost.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2009

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 40369 of
2009

Doodh Nath and others
...Petitioner
Versus
D.D.C. Jaunpur & another ...Respondents

Counsel for the Petitioner:
Sri C.B. Prasad
Sri V.K. Dwivedi

Counsel for the Respondent:
Sri B.P. Yadav
S.C.