[Land Acquisition Act] Reference Application Can Be Filed U/S 28A If Earlier Application U/S 18 Was Not Decided On Merits: Bombay High Court

The Bombay High Court has held that an application under Section 28-A of the Land Acquisition Act is maintainable even if the claimant had previously filed a reference under Section 18, provided that the said reference was not decided on merits. The Court ruled that a dismissal of a reference on technical grounds, without adjudication, does not bar the landowner from seeking re-determination under Section 28-A.

A division bench of Justices R.G. Avachat and Neeraj P. Dhote was hearing a writ petition filed by a landowner whose property in Osmanabad district was acquired in 1996. Dissatisfied with the compensation awarded, she had filed a reference under Section 18, which was rejected for want of evidence. Her revision plea and subsequent SLP were also dismissed on the grounds of delay. Meanwhile, a co-villager in the same acquisition proceeding successfully obtained enhanced compensation. Based on this, the petitioner filed an application under Section 28-A, which was dismissed by the Collector solely on the ground that she had earlier pursued a reference under Section 18.

The Court noted that it is true that the object of Section 28-A is to confer a right of reference on a person who might not have made a reference under Section 18, and therefore, ordinarily when a person makes a Reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28-A of the Land Acquisition Act when some other person makes a Reference and the Reference is answered.

However, the Court reiterated that Parliament enacted Section 28-A as a beneficial provision, and it would cause great injustice if a literal interpretation is given to the expression "had not made an Application to the Collector under Section 18" in Section 28-A of the Act.

The Court held that the Section 18 reference was not adjudicated on the merits and there was no determination by the Civil Court. The Reference Application came to be rejected, and there were no effective steps by either side in deciding the Reference on the merits. Consequently, the Court observed:

“… after the Application of Petitioner was referred to the learned Reference Court for determination, it remained undecided on merits. The challenge to the said decision before the Higher Courts failed on the ground of delay. Therefore, eventually, the Reference Application remained undecided on merits. Thus, the remedy under Section 28-A of the L. A. Act cannot be said to have been unavailable to the Petitioner. The Respondent No.1 dismissed the Application of the Petitioner filed under Section 28-A of the L. A. Act only on the ground that the Petitioner had filed a Reference Application under Section 18 of the L. A. Act.”

Accordingly, the Court quashed the impugned order and directed the Collector to decide the application under Section 28-A afresh on its own merits. It clarified that the petitioner would not be entitled to interest for the period prior to filing the Section 28-A application.

Case Title: Sumanbai v. State of Maharashtra & Anr. [Writ Petition No. 2844 of 2020]

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