- (1.) Heard Sri Arun Kumar Jaiswal, learned counsel for the petitioners, Sri D.K. Bhatt, learned Standing Counsel for the respondent no. 1/State and Sri Ratnesh Chandra, learned counsel for the respondent no. 2/U.P. Avas Evam Vikash Parishad.
(2.) By this writ petition the petitioners are praying for issuance of writ of mandamus directing the respondent no. 1 to re-determine the amount of compensation on the application of petitioner filed under Section 28 (A) of the Land Acquisition Act dated 28.05.2009, on the basis of the award of the Court dated 31.03.2009 passed in Misc. Case No. 3 of 1995.
(3.) Brief facts of the case are that the land in question was acquired under Section 28 of U.P. Avas Evam Vikash Parishad Adhiniyam 1965 on 25.08.1973 and declaration under Section 32 of the 1965 Act was made on 20.07.1980. The possession of the land of the petitioners were taken by the Collector and, thereafter, the same was transferred to the acquiring body i.e. U.P. Avas Evam Vikash Parishad. On 23.09.1986 the award under Section 11 of the Land Acquisition Act was declared and the predecessors of the petitioners had not filed reference petition but in the meanwhile other land owners whose land was acquired under the same notification preferred reference petition under Section 18 of the Land Acquisition Act and the learned District Judge decided the matter on 31.03.2009 in Misc. Case No. 3 of 1995 by enhancing the compensation from Rs. 1.13 per square feet to Rs. 3.50 per square feet. Present petitioners on coming to know the said fact filed an application under Section 28 (A) of the Act for taking benefit of the award made on 31.03.2009 and prayed for compensation at the rate of Rs. 3.50 per square feet. Learned counsel for the petitioner, in support of his contentions, so advanced, has relied on the decision of Division Bench judgment of this Court passed in the case of Smt. Mithlesh Kumari and others Vs. Additional District Magistrate and others, 2017 (4) AWC 3473. Paragraph 8 to 18 of the said judgment are relevant which reads as under; "8. The moot question which arises for our consideration is whether the provisions of the Act, 1894 have been incorporated by a reference in the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam and, as a consequence, any amendment made in the Act, 1894 after the enactment of the Adhiniyam does not ipso facto apply to an acquisition for the purposes of Adhiniyam. 9. At this stage, it may be relevant to reproduce Section 55 of the Adhiniyam, which is reproduced hereunder. "55. Power to acquire land.- (1) Any land or any interest therein required by the Board for any of the purposes of this Act, may be acquired under the provisions of the Land Acquisition Act, 1894 (Act No. 1 of 1894), as amended in its application to Uttar Pradesh, which for this purpose shall be subject to the modifications specified in the Schedule to this Act." 10. In the case of Gauri Shankar Gaur Vs. State of U.P., (1994) 1 SCC 92, a Bench of two Hon'ble Judges of the Apex Court had occasion to deal with the question regarding the applicability of the 1984 Act to the acquisition of land under the provisions of the Adhiniyam in the context of first proviso to Section 6 of the Act, 1894, which was substituted by 1984 Act by adding a proviso prescribing that no declaration in respect of any particular land covered by a notification under Section 4 (1) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of 1984 Act, shall be made after the expiry of three years from the date of publication of the notification. 11. In the aforesaid case of Gauri Shankar Gaur (supra), though both the Hon'ble Judges concurred in upholding the validity of the acquisition, but there was a difference of opinion insofar as the question whether the provisions of Act, 1894 have been incorporated by reference in the Adhiniyam by virtue of Section 55 read with the Schedule to the Adhiniyam and, as a consequence, any amendment made in the earlier Act, after the enactment of the Adhiniyam will not automatically apply to an acquisition for the purpose of the Adhiniyam. 12. One of the Hon'ble Judge was of the view that Section 55 of the Adhiniyam read with Schedule made an express incorporation of the provisions of Section 4 (1) and Section 6 as modified and incorporated in the Schedule and that the Schedule effected necessary structural amendments to Sections 4 , 5 , 17and 23 incorporating therein the procedure and principles with necessary modifications and, thus, is a complete Code in itself and, accordingly, the subsequent amendments made in Section 6 of 1894 Act, will not become part of Adhiniyam and will have no effect on the operation of the provisions of the Adhiniyam. 13. The other Hon'ble Judge, however, took a contrary view. The dissenting view was that whether a legislation was by way of incorporation or by way of a reference is a matter of consideration by the courts keeping in view the language employed by the enactment, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day to day working. The contrary view taken was that such legislation by incorporation is subject to exceptions and that one such situation where legislation by incorporation is excluded is if it creates difficulty in day to day working. It was, thus, held that under our constitutional scheme, the exception can be extended further and the Courts should lean against a construction which may result in discrimination and, thus, it was held that the amendment in Schedule of Act, 1894 by Amending Act , 1984 would be applicable to acquisition of land for the purposes of Adhiniyam. 14. In view of the difference of opinion between the Hon'ble Judges on the question regarding the applicability of amendment incorporated in the Act, 1894 to the acquisition for the purposes of Adhiniyam, the matter was referred for adjudication by a three Judges Bench in the case of U.P. Avas Evam Vikas Parishad Vs. Jainul Islam, 1998 (2) SCC 467. After considering the issue in detail as well as provisions similar to Section 55 to the Adhiniyam found in other enactments, the larger Bench answered the issued in paragraphs 31 and 32 of the judgment as under. "31. Since the present case involves acquisition of land under the provisions of the L.A. Act as applicable under the Adhiniyam, it is fully covered by the law laid down by this Court in Nagpur Improvement Trust and Anr. (supra). Keeping in view the principles laid down in the said decision of this Court, it has to be held that if the provisions of the Adhiniyam are so construed as to mean that the provisions of the L.A. Act , as they stood on the date of enactment of the Adhiniyam, would be applicable to acquisition of land for the purpose of the Adhiniyam and that the amendments introduced in the L.A. Act by the 1984 Act relating to determination and payment of compensation are not applicable, the consequence would be that the provisions of the L.A. Act , as applicable under the Adiniyam, would suffer from the vice of arbitrary and hostile discrimination. Such a consequence would be avoided if the provisions of the L.A. Act as amended by the 1984 Act, relating to determination and payment of compensation would apply to acquisition of land for the purposes of the Adhiniyam. There is nothing in the Adhiniyam which precludes adopting the latter construction. On the other hand, the provisions of the Adhiniyam show that the intention of the Legislature, while enacting the Adhiniyam, was to confer the benefit of solatium @ 15% by modifying Section 23 (2) in the Schedule, which benefit was not available under the provisions of the L.A. Act as it was applicable in the State of Uttar Pradesh at the time of enactment of the Adhiniyam. It cannot, therefore, be said that the intention of the Legislature, in enacting the Adhiniyam, was to deny to the landowners the benefits relating to determination and payment of compensation which would be available to them under any amendment made in the L.A. Act after the enactment of the Adhiniyam. We are, therefore, of the opinion that on a proper construction of Section 55 of the Adhiniyam it must be held that while incorporating the provisions of the L.A. Act in the Adhiniyam the intention of the Legislature was that amendments in the L.A. Act relating to determination and payment of compensation would be applicable to acquisition of lands for the purposes of the Adhiniyam. This means that the amendments introduced in the L.A. Act by the 1984 Act relating to determination and payment of compensation, viz, Section 23 (1-A) and Section 23 (2) and 28 as amended by the 1984 Act would be applicable to acquisitions for the purposes of the Adhiniyam under Section 55 of the Adhiniyam. 32. In view of the construction placed by us on the provisions of Section 55 of the Adhiniyam that the provisions of the L.A. Act , as amended by the 1984 Act relating to determination and payment of compensation, would be applicable to acquisition of land for the purposes of the Adhiniyam, it is not necessary to deal with the submission that if the provisions of the 1984 Act are held to be not applicable in the matter of acquisition of land for the purposes of the Adhiniyam the provisions of the L.A. Act , as applicable under the Adhiniyam, would be void on the ground of repugnance underArticle 254 of the Constitution." 15. In view of the settled law on the subject by the aforesaid pronouncement by the Hon'ble Apex Court, we do not find any substance in the submission urged on behalf of the Parishad. 16. The next submission of the learned counsel appearing for the Parishad is that since issue of applicability of Section 28A of the Act, 1894 was not raised or considered in the case of Jainul Islam (supra) as the only issue therein was regarding applicability of Section 23 (1) (A) and 23 (2) of the Act, 1894, hence, the said decision is not applicable to the facts of the present case. 17. This argument is totally misconceived and has only been raised to be rejected. It is well settled that it is the ratio decidendi of a judgment, which is applicable. Hon'ble Apex Court, in no uncertain terms, has laid down in the case of Jainul Islam (supra) that amendment introduced in the Act, 1894 relating to determination and payment of compensation would be applicable to the acquisition for the purposes of Adhiniyam under Section 55 of the Adhiniyam. Section 28A undoubtedly relates to re-determination and payment of compensation on the basis of award by the Court in cases where the person interested has not made any application under Section 18 of the Act. 18. In view of the above facts and discussions, Writ Petition No. 15134 of 2017 filed by the Parishad laying a challenge to the order dated 08.11.2016 passed under Section 28A of the Act, 1894 has no legs to stand and the impugned order allowing the application made by the claimants under Section 28A of the Act, 1894 cannot be faulted with and, thus, the writ petition is liable to be dismissed." ;