High Court
Legal Reasoning
*1* 19t21wp2181o25 groupIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD19 WRIT PETITION NO. 218 OF 2025MANGALSING JOHARSING PATILVERSUSTHE STATE OF MAHARASHTRA THROUGH ITSSECRETARY AND OTHERS…AND20 WRIT PETITION NO. 219 OF 2025SHIVRAM BABURAO KAWADEVERSUSTHE STATE OF MAHARASHTRA THROUGH SECRETARYAND OTHERS…AND21 WRIT PETITION NO. 220 OF 2025SURESH RATAN DEVAREVERSUSTHE STATE OF MAHARASHTRA THROUGH ITSSECRETARY AND OTHERS…Shri I.K. Wagh, Advocate h/f Shri More Kumar Gaurav M.,Advocate for the Petitioners.Shri M.K. Goyanka, AGP for Respondent Nos.1 to 3/State.… CORAM : MANGESH S. PATIL & PRAFULLA S. KHUBALKAR, JJ. DATE : 17th February, 2025Per Court :-By way of these three separate Writ Petitions, theland owners, who made an attempt to make a reference by *2* 19t21wp2181o25 groupresorting to Section 28A of the Land Acquisition Act, 1894, arebefore us being aggrieved by the communications dated22.08.2019 whereby, the Land Acquisition Officer refused tomake a reference under sub-section (3) of Section 28A.2.When we raised a query as to why, in the light ofwording of Section 28A(3), making provisions of Sections 18 to28 applicable, the petitioners cannot resort to a remedyprescribed under sub-section (3) (Maharashtra Amendment) toSection 18 whereby, an order of the Collector is susceptible tochallenge in a revision under Section 115 of the Code of CivilProcedure before the High Court, the learned advocate for thepetitioners was unable to satisfy us. He would submit thatconsidering the specific wording of sub-section (3) of Section 18(Maharashtra Amendment), it is only the order passed by theCollector under that section can be challenged by way of arevision under Section 115 of the Code of Civil Procedure. Hewould submit that this scheme or mechanism has nothing to dowith the applications seeking reference under Section 28A. It isonly after the Collector makes a reference under Section 28A(3)that the provisions of Sections 18 to 28 would be applicable. In *3* 19t21wp2181o25 groupshort, his submission is to the effect that the mechanism providedunder Section 18(3) (Maharashtra Amendment) cannot be readinto the provisions of Section 28A(3).3.The learned AGP would submit that once sub-section (3) of Section 28A enables the land owners to make areference, mentions that the Collector may make a reference andsimultaneously, lays down that provisions of Sections 18 to 28,as far as may be, apply to such reference as they apply to areference under Section 18, the mechanism provided under sub-section (3) of Section 18 (Maharashtra Amendment) wouldautomatically apply to the fact situation in the matter in hand. Hewould submit that the impugned communication refuses to makea reference. It being an order of the kind similar to onecontemplated under Section 18, when the State Amendmentexpressly provides that any order made by the Collector on anapplication under that section shall be subject to the revisionunder Section 115 of the Code of Civil Procedure, there is noescape from the mechanism and even the impugned order canonly be challenged by resorting to the remedy under Section18(3), and the writ petitions are not maintainable. *4* 19t21wp2181o25 group4.Obviously, we do not intend to go into merits orotherwise of the impugned communications whereby, theCollector has refused to make a reference on the petitioners’applications purportedly moved under Section 28A(3).5.For deciding the issue regarding maintainability ofthe writ petition under Article 226, for the sake of convenience,we reproduce Section 18(3) (Maharashtra Amendment), as also,Section 28-A in its entirety, which read as under:-“Section 18. Reference to Court. (1) Any person interested who has not accepted theaward may, by written application to the Collector,require that the matter be referred by the Collectorfor the determination of the Court, whether hisobjection be to the measurement of the land, theamount of the compensation, the person to whom itis payable, or the apportionment of thecompensation among the persons interested.(2) The application shall state the grounds on whichobjection to the award is taken:Provided that every such application shall bemade-(a) if the person making it was present orrepresented before the Collector at the time whenhe made his award, within six weeks from the dateof the Collector's award;(b) in other cases, within six weeks of thereceipt of the notice from the Collector undersection 12, sub-section (2), or within six monthsfrom the date of the Collector's award, whicheverperiod shall first expire.”Maharashtra. By Maharashtra Extension and AmendmentAct XXXVIII of 1964, s. 3 (w.e.f. 7.12.1964). *5* 19t21wp2181o25 groupTo s. 18, after sub-sec. (2) the following sub-section shall be added, namely:"(3) Any order made by the Collector on anapplication under this section shall be subject torevision by the High Court, as if the Collector werea court subordinate to the High Court within themeaning of s. 115 of the Code of Civil Procedure1908 (Act V of 1908)".”“Section 28A. Re-determination of the amount ofcompensation on the basis of the award of theCourt. -(1) where in an award under this part, the court allowsto the applicant any amount of compensation inexcess of the amount awarded by the collectorunder section 11, the persons interested in all theother land covered by the same notification undersection 4, sub-section (1) and who are alsoaggrieved by the award of the Collector may,notwithstanding that they had not made anapplication to the Collector under section 18, bywritten application to the Collector within threemonths from the date of the award of the Courtrequire that the amount of compensation payableto them may be re-determined on the basis of theamount of compensation awarded by the court:Provided that in computing the period ofthree months within which an application to theCollector shall be made under this sub-section, theday on which the award was pronounced and thetime requisite for obtaining a copy of the awardshall be excluded.(2) The Collector shall, on receipt of an applicationunder sub-section (1), conduct an inquiry aftergiving notice to all the persons interested andgiving them a reasonable opportunity of beingheard, and make an award determining the amountof compensation payable to the applicants.(3) Any person who has not accepted the award undersub-section (2) may, by written application to theCollector, require that the matter be referred by theCollector for the determination of the Court andthe provisions of sections 18 to 28 shall, so far as *6* 19t21wp2181o25 groupmay be, apply to such reference as they apply to areference under section 18.”6.As can be appreciated, Section 28A enables the landowner, who has not made any reference under Section 18, toderive benefit of enhancement to which other land owners fromthe same notification under Section 4 have been found entitled toby the reference court. As a corollary, any land owner, who is notsatisfied with the order of the Collector on the application movedunder Section 28A, is entitled to make an application soliciting areference to the Civil Court. Sub-section (3) of Section 28Afurther makes it abundantly clear that provisions of Section 18 to28 shall as far as they apply to a reference under Section 18 willapply even in respect of the order passed under Section 28A.Meaning thereby, if the Collector makes a reference underSection 28A(3), all provisions of Sections 18 to 28 would apply.By analogy, if the Collector refuses to make a reference undersub-section (3) of Section 28A, even that fact situation will haveto be dealt with in accordance with the mechanism providedunder Section 18(3), by way of challenge to the order of theCollector refusing to make a reference, by preferring a revisionto the High Court under Section 115 of the Code of Civil
Decision
*7* 19t21wp2181o25 groupProcedure. One cannot read this mechanism in a truncatedmanner as submitted by the learned advocate for the petitioners.Making of a reference under different provisions and stilldirecting the provisions of Sections 18 to 28 to be applicable,would take within its sweep not only the orders making areference, but would axiomatically cover within the orders of theCollector refusing to make a reference.7.We are, therefore, of the considered view that theimpugned communications being in the nature of rejection ofapplication under Section 28A(3) thereby, refusing to make areference, would be susceptible to challenge in a revision underSection 115 of the Code of Civil Procedure before the HighCourt in the light of sub-section (3) of Section 18.8.The Writ Petitions are dismissed with liberty to thepetitioners to resort to the remedy if they so desire.9.It is clarified that we have not expressed any opiniontouching the merit, including the issue of limitation in preferringthe revisions. kps ( PRAFULLA S. KHUBALKAR, J.) ( MANGESH S. PATIL, J.)