Land Reference Under Section 28A Maintainable If Earlier Application Under Section 18 Was Not Decided On Merits | Bombay High Court
Safiya Malik
The High Court of Bombay at Aurangabad Division Bench of Justice R.G. Avachat and Justice Neeraj P. Dhote held that an application under Section 28-A of the Land Acquisition Act, 1894, is maintainable even after a reference under Section 18 has been dismissed on technical grounds. The Court quashed the rejection order passed by the Collector and directed reconsideration of the application under Section 28-A on its own merits, explicitly stating that “dismissal of the Reference Application on technical ground would not bar invocation of the remedy under Section 28-A of the L.A. Act.”
The petitioner owned agricultural land measuring 1 Hectare 1 R situated at Village Sastur, Taluka Omerga, District Osmanabad (now Dharashiv), which was acquired by the State for the purpose of rehabilitation of the said village. The Land Acquisition Officer (Respondent No.2) passed an award on 22 October 1996 under Section 11 of the Land Acquisition Act, 1894, granting compensation at the rate of ₹24,000 per hectare.
Aggrieved by the compensation awarded, the petitioner sought enhanced compensation by filing a reference under Section 18 of the L.A. Act. The matter was registered as L.A.R. No. 595/2005 (previously L.A.R. No. 255/2000) before the Civil Judge, Senior Division, Omerga. In the said proceedings, the petitioner claimed compensation at the rate of ₹20,000 per R. The reference, however, was rejected by the Reference Court on 6 January 2009 due to the petitioner’s failure to produce evidence and non-appearance.
Challenging the rejection, the petitioner filed a Civil Revision Application along with a civil application for condonation of delay. The High Court dismissed the application for condonation on 8 December 2011. The subsequent Special Leave Petition before the Hon’ble Supreme Court also met the same fate, being dismissed on grounds of delay.
In a parallel acquisition under the same notification and award, one Kusumbai Vishambar Yadav, also from Village Sastur, owned land admeasuring 1 Hectare 66 R bearing Survey No.128. This co-villager’s reference (L.A.R. No. 600/2005) was allowed on 5 December 2014 by the same Reference Court, enhancing compensation to ₹20 per sq. ft.
Based on this favourable award, the petitioner filed an application under Section 28-A of the L.A. Act seeking re-determination of compensation on par with that granted to her co-villager. However, Respondent No.1—the Collector—rejected the application on 28 December 2018, holding that the petitioner had already availed of the Section 18 remedy.
The petitioner then approached the High Court under Article 226 of the Constitution, seeking to quash the rejection and praying for re-consideration of her Section 28-A application.
The petitioner contended that since her reference under Section 18 was not decided on merits and was dismissed for technical reasons (non-appearance and lack of evidence), she should not be barred from seeking re-determination under Section 28-A. Her counsel relied on several precedents, including:
- Kawadu Madhav Bansod v. State of Maharashtra, 2004 (2) Mh. L. J.
- Subhash Babulal Rajput v. State of Maharashtra, 2012 (2) Mh. L. J.
- Mukund Bhimrao Kalshetti v. State of Maharashtra, 2011 (2) Mh. L. J.
- Union of India v. Hansoli Devi, (2002) 7 SCC 273 (Constitution Bench)
It was submitted that a dismissal on technical grounds cannot be treated as an adjudication on merits. The petitioner was also willing to forego interest for the period before filing the Section 28-A application.
The State opposed the petition, asserting that once a Section 18 reference is filed, a Section 28-A application is not maintainable, regardless of the outcome. Reliance was placed on:
- Mewa Ram v. State of Haryana, (1986) 4 SCC 151
- Babua Ram v. State of U.P., (1995) 2 SCC 689
- City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168
Despite these citations, the State did not dispute that the application under Section 28-A was filed within the limitation period and that the rejection of the Section 18 reference was not on merits.
The key issue before the Court was whether the Collector was justified in rejecting the Section 28-A application solely because the petitioner had earlier filed a Section 18 reference.
The Court recorded: “In the case at hand, the Reference under Section 18 of the L.A. Act preferred by the Petitioner was not decided on merits.”
It further noted that the rejection by the Reference Court stemmed solely from the petitioner’s failure to produce evidence and her absence during proceedings. The judgment stated: “From this, it is clear that there was no determination by the Civil Court. The Reference Application of the Petitioner was not adjudicated and decided on merits.”
It also emphasized the scope of Section 28-A, stating: “Though the Petitioner could not lead evidence, the learned Reference Court should have decided the Reference on merits, on the basis of the documents available on record.”
The Bench relied heavily on the decision of the Constitution Bench in Union of India v. Hansoli Devi, observing: “The dismissal of an Application seeking Reference under Section 18 on the ground of delay would tantamount to not filing an Application within the meaning of Section 28-A of the Land Acquisition Act, 1894.”
The Court further recorded: “The said land owner is entitled to make an application under Section 28-A, if other conditions prescribed therein are fulfilled.”
Regarding the operative part of the Reference Court’s decision, the Bench held: “Though in the operative order of the said Judgment in Reference Application, it is mentioned that, the Award be prepared, there was no fructification of the Reference or an executable Award.”
Hence, it was held that the prior proceedings did not amount to a final adjudication and the rejection of the Section 28-A application solely on that ground was unsustainable.
As to the delay in invoking writ jurisdiction, the Court observed: “The Respondent No.1 passed the impugned order on 28/12/2018 and the Petitioner approached this Court by filing the Writ Petition on 27/01/2020. It shows that the Petitioner approached this Court within a period of little over one year.”
The High Court issued the following binding directions:
The writ petition is partly allowed. The impugned order dated 28 December 2018 passed by Respondent No.1 rejecting the petitioner’s application under Section 28-A of the Land Acquisition Act is quashed and set aside.
Respondent No.1 shall reconsider and decide the petitioner’s application filed under Section 28-A on its own merit, in accordance with law, within a reasonable period.
The petitioner shall not be entitled to claim the component of interest for the period prior to filing the application under Section 28-A, if any.
The writ petition stands disposed of accordingly.
Advocates Representing the Parties
For the Petitioners: Mr. R. R. Deshpande holding for Ms. Deshpande Priyanka R., Advocate
For the Respondents: Ms. Vaishali S. Choudhari, Assistant Government Pleader
Case Title: Sumanbai w/o Prabhkar Igave v. State of Maharashtra and Another
Neutral Citation: 2025:BHC-AUG:20132-DB
Case Number: Writ Petition No. 2844 of 2020
Bench: Justice R.G. Avachat and Justice Neeraj P. Dhote
