# Sayeed Alam and others v. State of U.P. and others

- **Citation:** (2009) 1 ILRA 162
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-23
- **Case number:** Civil Misc. Writ Petition No. 4752 of 2009
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sayeed-alam-and-others-v-state-of-u-p-and-others-41335
- **Pages:** 5

## Headnote

Act-Section
28-AApplication
for
enhancement
of
compensation moved prior to filling
appeal
by
State-after
dismissal
of
appeal-consideration of application can
not be denied on ground of delay-but the
claimant-petitioner
status
regarding
illiterate and other condition requires
fresh consideration- direction issued for
consideration of those conditions with
specific period.

Held: Para 18

from the facts of the present case, we
find that the application in fact was
made by the petitioner even before the
date the appeal filed by the State before
this Court was finally decided. Further,
we find that requisite averments qua
petitioner being illiterate and other
conditions referred to above be satisfied
need examination.
Case law discussed:
1996(2) A.W.C.1237, (1986) 4SCC 151, 1991
SC 730, 1995(2)SCC689, (1995) 2 SCC 733,
(1995)2 SCC 735, 1995 SC 2259, (1995)2SCC
766, (2004) 7 SCC 753, (2003)7 SCC 280,
(1997)6 SCC 280, 2006 SC 1716.

## Text

162 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

marksheet and certificate of High School
of the petitioner show that two different
dates of birth other than 18.7.89 written
by the petitioner in his examination form.

6. The petitioner moved several
applications
before
the
Regional
Secretary, Madhyamik Shiksha Parishad,
U.P. Varanasi for correction of his date of
birth. When no action was taken he filed
Civil Misc. Writ Petition no. 35821 of
2008 before the High Court for a direction
to the Board to correct his date of birth in
the Marksheet and Certificate of High
School, which was disposed of vide order
dated 23.7.2008 with a direction to
respondent no. 1 to decide the grievance
of the petitioner by a reasoned and
speaking order. Pursuant to thereof, the
matter was taken up by the Secretary of
the Board which was rejected by the
Board vide order dated 15.9.2008 on the
ground
of
delay
in
moving
the
application.

7. According to the Standing
counsel 2 years limitation are provided
under Chapter III Rule 7 of the Calendar
of the Board for any correction in the date
of birth.

8. Learned counsel for the petitioner
submits that due to own fault of the Board
incorrect date of birth has been endorsed
and the petitioner has only approach this
Court for correction of his date of birth
and in his Examination Form he had
given correct date of birth, therefore,
question of limitation will not apply.

9. After hearing learned counsel for
the parties I am of the opinion that the
Board could not have given two different
dates of births in the Marksheet as well as
in the Certificate of High School for the
reason that the petitioner had disclosed his
date of birth in his Registration form as
18.7.1989. Both the dates of births given
in the Marksheet and Certificate are,
therefore, incorrect and the Board is duty
bound to correct the same. In such cases
limitation ought not to be raised by the
Board for its own mistake jeopardizing
the future of the students. The Board was
under bounded moral and legal duty in the
circumstances to have corrected the
mistake committed by its staff and
officials and should not shelve the matter
on the ground of limitation to hid its
mistake/inefficiency.

10.
Considering
the
facts
and
circumstances of the case, the Secretary
of the Board is directed to issue necessary
orders/direction for correction of the date
of birth of the petitioner in the Marksheet
and Certificate of High School forthwith
within a period of one week as 18.7.89
and thereafter instruct the college for
issuing the same to the petitioner within
two weeks.

The writ petition is disposed of
accordingly.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.01.2009

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 4752 of 2009

Sayeed Alam and others ...Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Appellant:
Sri J.P.S. Chauhan
1 All] Sayeed Alam and others V. State of U.P. and others

163
Counsel for the Respondents:
S.C.

Land
Acquisition
Act-Section
28-AApplication
for
enhancement
of
compensation moved prior to filling
appeal
by
State-after
dismissal
of
appeal-consideration of application can
not be denied on ground of delay-but the
claimant-petitioner
status
regarding
illiterate and other condition requires
fresh consideration- direction issued for
consideration of those conditions with
specific period.

Held: Para 18

from the facts of the present case, we
find that the application in fact was
made by the petitioner even before the
date the appeal filed by the State before
this Court was finally decided. Further,
we find that requisite averments qua
petitioner being illiterate and other
conditions referred to above be satisfied
need examination.
Case law discussed:
1996(2) A.W.C.1237, (1986) 4SCC 151, 1991
SC 730, 1995(2)SCC689, (1995) 2 SCC 733,
(1995)2 SCC 735, 1995 SC 2259, (1995)2SCC
766, (2004) 7 SCC 753, (2003)7 SCC 280,
(1997)6 SCC 280, 2006 SC 1716.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. The petitioners before this Court
claim to be the recorded tenure holders of
plot bearing Khata Nos. 156 and 38. It is
stated that the land covered by the
aforesaid khata number, was subject
matter of acquisition proceeding under the
Land Acquisition Act (hereinafter referred
to as 'the Act') as per the Notification
dated 28.05.1989 issued under Section 6
(1) of the Act. It is stated that the
petitioner accepted the compensation
determined by the Land Acquisition
Officer and did not make any reference in
that regard under Section 18 of the Act. It
is further stated that other tenure holders
whose land was also acquired under the
same Notification, made a reference qua
rate of payment of compensation. The
matter was adjudicated under an award
dated 16th August 1999 passed in L.A.R.
No. 42 of 1993 the rate of compensation
for the land so acquired has been
enhanced.

2. On the aforesaid award being
made, the petitioner made an application
under Section 28 A of the Act before the
Land Acquisition Act for payment of
compensation at the enhanced rates with
reference to award dated 16.08.1999. The
application so made by the writ petitioner
was rejected vide order dated 17.01.2007
(Annexure No. 3 to the writ petition) on
the ground that against the award dated
16.08.1999, the State of U.P. has
preferred First Appeal No. (550) of 2005
before the Hon'ble High Court.

3. Since there was delay in filling of
the said appeal by the State, an
application under Section 5 of the
Limitation Act was also filed. Section 5
application
made
by
the
State
Government in the aforesaid first appeal
was rejected by the Hon'ble High Court
vide order dated 17.01.2007. As a result
whereof, the appeal stood dismissed being
barred by limitation.

4. The petitioner has therefore come
up before this Court by means of this writ
petition
for
a
writ
of
mandamus
commanding the respondent to consider
and decide the application made by the
petitioner under Section 28 A of the Land
Acquisition Act dated 16th August 1999 in
the light of the order passed in L.A.R. No.
42 of 1993 under Section 18 of the Land
Acquisition Act.
164 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

5. We have heard learned counsel
for the parties and have gone through the
record of the present writ petition.

6. A Division Bench of this Court in
the case of Nanak and others Versus
State of U.P. and others, 1996(2) A.W.C.
1237, has laid down the conditions
pointwise which are required to be
satisfied before an application under
Section 28A of the Land Acquisition Act
can be entertained. Reference para 17
which is quoted herein below:

"17. Thus, is view of the above, we
are constrained to direct the respondent
No.5, to issue notices to respondent No.6,
Ghaziabad Development Authority, the
other contesting parfty and after hearing
all the parties concerned, to determine
whether:
(i) The applications were filed by the
petitioners within limitation.
(ii) Petitioners belong to the indigent
class of the society for whose benefit,
provisions of Section 28 A were
enacted particularly in the light of the
law laid down by the Hon'ble Supreme
Court in the cases of Mewa Ram,
Scheduled Caste Co-operative Society
and Babua Ram(supra).
(iii) The Court's award in L.A.R. No.
304/77, Hemchand (supra) has become
final or whether any appeal arising out
of the same or any other award in
respect of any land covered by
the
same Section 4 notification dated
16.7.60 is pending before this Court or
Supreme Court.
(iv) The nature, location and quality of
the land of the petitioners are identical
to the land which had been subjectmatter of the Court's award in
Hemchand(supra).

If all the aforesaid conditions are
fulfilled in the cases of the petitioners,
the Special Land Acquisition Officer,
respondent no. 5 is directed to decide
the applications under Section28A of
the Act and dispose them of finally
within a period of six months from the
date of receipt of a certified copy of
this judgment strictly in accordance
with law as explained above."

7. The legal position qua
maintainability of under Section28A
application has further been explained
both by the Hon'ble Supreme Court as
well as by the Division Benches of this
Court as follows:

8. The scope of provisions of
Section 28A 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 re-determination 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 on 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..."
1 All] Sayeed Alam and others V. State of U.P. and others

165

9. 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.

10. 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
not
extended.
Otherwise,
the
phraseology of the language of the nonobstante
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 sub-section (1) of Section 18
due to poverty or ignorance or avoidance
of expropriation."

11. 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.

12. Thus, it is apparent that the
legislature has carved out an exception in
the form of Section 28-A and has made a
special provision to grant some relief to a
particular class of society, namely poor,
illiterate, ignorant and inarticulate people.
The provision has been 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.

13. 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.

14. 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 persued the matter further, he
is not entitled to maintain the application
under Section 28-A for redetermination 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.
166 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

15. In State of Andhra Pradesh &
Anr. Vs. Marri Venkaiah & Ors.,
(2003)7 SCC 280, the Hon'ble Supreme
Court had 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."

16. 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.

17. 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 Section28A seeks to
confer
the
benefit
of
enhanced
compensation on those owners who did
not seek Reference under Section 18.

18. From the facts of the present
case, we find that the application in fact
was made by the petitioner even before
the date the appeal filed by the State
before this Court was finally decided.
Further, we find that requisite averments
qua petitioner being illiterate and other
conditions referred to above be satisfied
need examination.

19. We are, therefore of the opinion
that interest of substantial justice would
be served if the petitioners' application is
reconsidered in the light of the conditions
specified by the Division Bench of this
Court in the case of Nanak (supra) and
the law as noticed above within 12 weeks
from the date a certified copy of this order
is filed before Additional District Judge
who shall examine the correctness of the
averments made and satisfying himself
with the requirement of law as explained
above. Fresh final order may be passed on
the application accordingly without being
influenced
with
the
order
dated
17.01.2007.

20. With the aforesaid observation,
the writ petition is disposed of.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.01.2009

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Revision No. 63 of 2002

Ram Dhani

...Revisionist
Versus
State of U.P. & another ...Opposite parties