On the mandate against discrimination in awarding compensation under Section 28A, Land Acquisition Act, 1894: What MP High Court held

The Madhya Pradesh High Court recently made pertinent observations on the rights of a person to claim an enhanced rate of compensation for land acquired by the State via the Land Acquisition Act, 1894 when other similarly situated persons have obtained orders for enhanced compensation from higher/ appellate forums. .The relevant provision in this regard is Section 28A of the Land Acquisition Act, as amended in 1984. A collector's decision to deny an 85-year old woman the benefit of this provision attracted the Court's censure and the imposition of exemplary costs to the tune of Rs 1 lakh (Smt. Amarjeet Kaur Vs Union of India & Another). .The Law.Section 28A of the amended Land Acquisition Act, 1894 provides for Re-determination of the amount of compensation on the basis of the award of the Court..The provision is meant to apply in a situation where a Court or a higher appellate forum awards a compensation amount higher than the award originally ordered by the Collector for some of the landowners whose land is acquired by the State under the 1894 Act. .Where any similarly situated former landowner has not approached the higher authority, such person is entitled to the enhanced compensation rate, provided s/he make a written application for the same to the Collector within three months from the order of the higher authority/ Court. The provision effectively seeks to ensure on par compensation for all persons whose land has been acquired by the same State notification. .The Madhya Pradesh High Court explained, ."... by way of Section 28-A of L.A. Act, the Collector of concerned district became vested with the powers w.e.f. 24.09.1984 to determine the compensation awarded to a particular land oustee who could not approach the forum higher than the forum of Land Acquisition Officer by awarding the same higher rate of compensation which has been awarded to the similarly placed land oustees who had approached the higher forums and had been benefited by enhancement in the adjudication to a higher rate of compensation. However, the only rider to Section 28-A of L.A. Act is that the application required to be made within three months of the pronouncement of enhancement of compensation by the first forum higher than the forum of Land Acquisition Officer.".The case before the High Court.In the instant case, an 85-year old woman's land had been acquired for laying Railway tracks through a notification issued back in 1987 under the Land Acquisition Act, 1894. .The compensation amount fixed by the Land Acquisition Officer for the acquisition was Rs 3,029. Other landowners, whose land had been acquired by the same notification, approached a Reference Court which enhanced the rate of compensation payable in December 1999..Consequently, the woman made an application in March 2000 under Sectin 28A of the Land Acquisition Act to determine the compensation payable to her at an enhanced rate. .In 2006, the compensation payable to similar landownders was further enhanced (albeit by a negligible amount). On further appeal, the Supreme Court enhanced the compensation payable again in 2013. .The woman-claimant, therefore, moved another application in 2014 for redetermining the compensation payable to her. However, in 2015, the Collector at Shivpuri rejected her application, stating that she had not approached the higher forums for the enhanced compensation. .Intent of Section 28A to avoid discrimination.Censuring the Collector for having rejected the woman's application oblivious of the object behind Section 28A, the High Court commented, "The instant case is a burning example of abject, apathy not only on the part of Collector, Shivpuri for wrongly denying benefits due to the petitioner in the evening of her life, but also of callous & slipshod manner in which the Railway authority has brushed aside the legitimate claim of petitioner by flatly denying her legitimate claim which on the very face elicits palpable injustice.".The Court added."The object behind Section 28-A of L.A. Act is to avoid discrimination which may otherwise arise between two sets of land oustees whose lands have though been acquired under same notification but one class of land oustees receive compensation at a lower rate based on the award passed by the Land Acquisition Officer while the other class receive at a higher rate for having approached the higher forum i.e. a Reference Court, the Appellate Court and the Apex Court, where higher compensation at higher rate is awarded. The non- availing of higher forum by the former class of land oustees ordinarily is because of reasons of financial incapacity, inconvenience, ignorance about their rights, incorrect legal advise so on and so forth, which are reasons beyond the control of this class of land oustees. The higher rate of compensation determined after adjudication by the higher forum deserves to be made available to even those similarly placed land oustees who for the aforesaid reasons beyond their control could not approach the higher forum.".Justice Sheel Nagu further explained, "The reason is not far to see. The award of compensation for compulsory acquisition of land on which the livelihood of land oustee depends is a succor for this deprivation. The legislature in its wisdom realized the lacuna in the originally promulgated L.A. Act, and therefore, inserted Section 28-A in the L.A. Act with effect from 24.09.1984, where-after, an opportunity was afforded to those similarly placed land oustees who for the reasons beyond their control could not assail the award of Land Acquisition Officer in higher forum to receive rightful and adequate compensation."."The legislative intent behind the introduction of Section 28-A of L.A. Act was to draw parity between similarly placed land oustees qua the rate of compensation."Madhya Pradesh High Court.The Judge went on to observe that Section 28A also assumes significance in view of the fact that it was introduced in view of the Constitutional status accorded to the right to property under Article 300A of the Constitution of India. ."This Section 28-A was introduced in the statute books w.e.f. 24.09.1984, after the introduction of chapter IV in the Constitution, whereby Article 300-A was inserted elevating the civil right to property to a Constitutional right; deprivation of which was prohibited under the Constitution except by authority of law. In all probability, the inspiration behind the introduction of Section 28-A L.A. Act was the recognition of right to property as Constitutional right under Article 300-A of the Constitution", reads the order..How Section 28A is to be applied.The High Court further clarified, relying on Supreme Court precedents, that:If an application under Section 28A is moved seeking compensation at a higher rate as determined by the Reference Court in respect of similarly placed land oustee who had further approached the higher forum i.e. the High Court and Supreme Court, then the said application shall be kept pending till the adjudication of the appropriate rate of compensation is finalized by the higher forum approached by similar land oustees. When the determination is made by way of adjudication by the highest forum approached, then the Collector shall exercise it's jurisdiction under Section 28A by determining the same amount in favour of the applicant under Section 28A.The limitation period of three months for an application under Section 28A is not the last word but is flexible and extendable for justified and bonafide reasons, as has been held by the Apex Court in case of Karam Chand v. State of Himachal Pradesh.Exemplary costs imposed on authorities for causing claimant pain, consuming Court's time in pursuing avoidable litigation.In view of the law explained, the High Court proceeded to rule that the Collector's decision, in this case, was per se unlawful and in "in ignorance of clear textual and contextual interpretation & meaning of the provision under section 28-A of L.A. Act.".The Court came down heavily on the Collector for having "turned a blind eye towards the plain words and meaning of section 28-A of L.A. Act thereby depriving the legitimate and adequate compensation due to the petitioner for which the petitioner had to agitate for more than number of years.".The Railways authority was also criticised for having opposed the woman-claimant's petition before the High Court "by toeing the line of the Collector.".Justice Nagu added,."The least that was required of the respondents who are part of a welfare state under the democratic setup of this country is to come out fairly by offering the higher compensation as awarded to the equally placed land oustees who had approached the higher forums, instead the petitioner who is now in the evening of her life has been made to wait to receive the rightful compensation. The act of respondents have not only deprived the petitioner of her legal right and peace of mind in the ripe old age, but has also instilled feeling of doubting the rule of a law.".As such, not only was the Collector's order against the woman set aside, the Court also ordered the payment of Rs 1 lakh by the authorities as exemplary costs for their conduct. .Of this amount, Rs 50,000 was to be paid to the woman-petitioner/claimant for her suffering. .The other Rs 50,000 was to be paid to the Court's Registry for having wasted the Court's time in pursuing an avoidable piece of litigation. This amount is to be "distributed among the officers and employees of the M.P. High Court Gwalior Bench, to survive and stay healthy in the unprecedented ongoing Covid-19 pandemic", the Court said. .The Collector was directed to reconsider the claimant's application and release the enhanced rate of compensation within 30 days from the date of the order..Read the Order: