JUDGMENT
V.M. Kanade, J.
1. Both these petitions can be disposed of by a common judgment as the point raised in this Petitions is identical.
2. By these petitions, Petitioners are challenging the Order passed by the respondent No. 1 – Special Land Acquisition Officer, Nashik who had dismissed the application filed by the petitioners in determination of the amount of compensation. The said application which is filed under Section 28A of the Land Acquisition Act was rejected solely on the ground that the said application was not filed within limitation.
FACTS:
3. By an Award dated 22/9/1990, respondent No. 1 – Special Land Acquisition Officer held that the petitioner and other claimants were entitled to Rs. 100/- per sq. meter by way of compensation if lieu of their lands which were acquired from Village Takli. Petitioner and other claimants filed a Reference under Section 18 of the said Act for enhancement of the compensation and claimed the rate of Rs. 300/- per sq. meter.
4. The Joint District Judge by his Judgment and Award dated 16/7/1999 held that they were entitled to the enhanced rate and, accordingly the rate was enhanced to Rs. 134/- to Rs.201/- depending upon the facts of each case. The petitioner’s application, however, was dismissed on the ground that it was barred by limitation. The petitioner immediately filed an application on 12/9/1999 i.e. within two months from the date of the said Judgment and Award under Section 28A of the Land Acquisition Act requesting respondent No. 1 to redetermine the amount of compensation in the light of the decision of the Joint District Court dated 16/7/1999. A specific reference was made in the said application that the earlier land reference under Section 18 was dismissed only on the ground of limitation. Respondent No. 1, however, by his order dated 6/6/2000 rejected the application under Section 28A on the ground that it was not filed within limitation.
5. Petitioner filed Writ Petition in this Court being Writ Petition No. 3776 of 2000 and by an order dated 7/8/2000, this Court was pleased to set aside the Order passed by the respondent No. 1 and directed the Special Land Acquisition Officer to decide the application under Section 28A on merits within a period of eight weeks.
6. In spite of specific directions being given by this Court, respondent No. 1 – Special Land Acquisition Officer vide order dated 8/11/2000 again dismissed the application on the ground that the application under Section 28A was not maintainable as the petitioner had filed reference under Section 18 of the Act and the same was dismissed. Petitioner, being aggrieved by the said order has filed this Writ Petition under Article 226 of the Constitution of India.
SUBMISSIONS:
6. The learned Counsel appearing on behalf of the petitioner submitted that the Special Land Acquisition Officer had committed an error of law which is apparent on the face of record by dismissing the application under Section 28A of the Land Acquisition Act and had, in fact, violated an order passed by this Court whereby direction was given to decide the application on merits. It is further submitted that the Special Land Acquisition Officer had erred in holding that the reference filed by the petitioner under Section 18 having been dismissed, the petitioner’s application under Section 28A was not maintainable. The learned Counsel appearing on behalf of the petitioner relied upon the Judgment of the Apex Court in the case of Union of India and Anr. v. Haosoli Devi and Ors., where the Apex Court has held that if an application seeking reference under Section 18 is dismissed on the ground of delay, it falls within the expression “not learned Counsel appearing on behalf of the respondent vehemently opposed the submissions made by the learned counsel appearing on behalf of the petitioner.
FINDINGS:
7. The Special Land Acquisition Officer Obviously has committed an error of law which is apparent on the face of the record by holding that the said reference having been dismissed under Section 18, the application under Section 28A is not maintainable. Section 28A was inserted in the Land Acquisition Act by Act 68 of 1984 with effect from 24/9/1984. Section 28A reads as under:-
“28A. RE-determination of the amount of compensation on the basis of the award of the Court. -(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, Sub-section (1) and who are also aggrieved by the award of the collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court:
Provided that in computing the period of three months within which an application to the Collector shall be made under this Sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under Sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving heard, and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under Sub-section (2) may, be written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provision of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.
In the case of Union of India and Another (Supra), on the reference being made by the two-judge bench of the Apex Court, the large Bench of the Apex Court considered two questions which were referred to it. The said two questions are as follows:-
“1. (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to ‘not filing an application’ within the meaning of Section 28A of the Land Acquisition Act, 1894?
(b) Whether a person whose application under Section 18 of the Land Acquisition Act, 1894 is dismissed on the ground of delay or any other technical ground is entitled to maintain an application under Section 28A if the Land Acquisition Act?
2. Whether a person who has received the compensation without protest pursuant to the award of the Land Acquisition Collector and has not filed an application seeking reference under Section 18 is ‘a person aggrieved’ within the meaning of Section 28A?”
The five-judge Bench of the Apex Court held that if an application of the land owner under Section 18 is dismissed on the ground of delay then the said owner is entitled to make an application under Section 28A, if other conditions prescribed therein are fulfilled. In the present case, the land references were made by number of claimants and they were allowed by the Joint District Judge vide Judgment and Award dated 16/7/1999 and in respect of other owners/claimants, the rate was increased from Rs. 134/- to Rs. 201/- depending on facts of each case. Reference made by the petitioner was, however, dismissed on the ground of limitation. Thereafter, petitioner preferred an application under Section 28A for determination of the Joint District Judge dated 16/7/1999. However, the said application for determination was dismissed on the ground that reference under Section 18 was dismissed. Against the said order, Writ Petition was filed in this Court wherein a specific direction was given to decide the same on merits. After the matter was remanded back, it was again dismissed on the ground that the application under Section 28A was not maintainable as the petitioner had filed reference under Section 18 of the said Act. In our view, the said order is patently illegal. The Apex Court in the case of Union on India and Anr. (Supra) has now finally decided the issue and has held that after a reference under Section 18 or the Act has been filed and the same is dismissed on the ground of limitation the, in that event, it will have to be held that the petitioner had not made an application as contemplated under Section 28A. The ratio of the said judgment is squarely applicable to the facts of the present case. The impugned order, therefore will have to be quashed and set aside. The matter is remanded back for re-fixation and re-determination of the compensation on the same line and on the basis of the Judgment and Award dated 16/7/1999 passed by the Joint District Judge, Nashik.
8. Accordingly, both the Writ Petitions are allowed. Rule in both the Petitions is made absolute in the above terms with no order as to costs.
