@JUDGMENTTAG-ORDER
L. Narayana Swamy, J.@mdashIn these writ petitions, petitioners are seeking for quashing of endorsement dated 30.11.2013 issued by the respondent No. 1, vide Annexure-H, and for a direction to the respondents to determine the market value of the land acquired under Section 28A of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'', for brevity), as per the order passed by the Division Bench of this Court in M.F.A. No. 3289/2007 (LAC) C/w. M.F.A. No. 3291/2007.
2. Petitioners are the owners of lands bearing Sy. Nos. 16/2, 39/2, 69, 56/2, 17/1, 35/2, 60/1 and 61/1, situated in Mavanoor village, Hubli taluk, measuring 3 acres 2 guntas, 2 acres 18 guntas, 2 acres 36 guntas, 21 guntas, 1 acre, 1 acre 10 guntas, 22 guntas and 21 guntas respectively. Petitioner No. 3 is the GPA holder of owner of the land bearing Sy. No. 69. The said lands were acquired by respondent No. 1 for the benefit of respondent No. 2 - South Western Railway for the purpose of formation of Hubli - Ankola Broad Gauge Railway line by initiating land acquisition proceedings, by publishing a preliminary notification under Section 4(1) of the Act on 18.04.2002. The respondent No. 1 had passed an award on 31.03.2003 by wrongly fixing very less market value under Section 11 of the Act.
3. Being dis-satisfied with the award, the adjacent land owners filed protest petitions and matters were referred to Reference Court in L.A.C. No. 1/2003 to L.A.C. No. 5/2003 on the file of the Prl. Civil Judge (Sr. Dn.), Hubli. The Reference Court had passed an order dated 17.11.2006 by determining the market value of the land at Rs. 2,00,000/- per acre. The Reference Court''s order was challenged by respondent No. 1 before the Division Bench of this Court in M.F.A. No. 7731/2007 to M.F.A. No. 7734/2007. The Division Bench had passed an order confirming the order of the Reference Court.
4. The claimants in L.A.C. Nos. 1, 2 and 4 of 2003, being dis-satisfied with the award passed by the Reference Court, had preferred appeals before the Division Bench of this Court in M.F.A. No. 3289/2007 and M.F.A. No. 3291/2007, which appeals came to be partly allowed by increasing the market value from Rs. 2,00,000/- to Rs. 3,50,000/- along with other statutory benefits. In view of the said order, the present petitioners made a representation on 25.11.2013 to the respondent No. 1 requesting to consider their case and to re-determine the market value under Section 28A of the Act. Thereafter, respondent No. 1 had issued an endorsement dated 30.11.2013 to the petitioners stating that the market value had already been determined and it is not possible to re-determine the market value and to pass an award. Being aggrieved by the said endorsement, the present writ petitions.
5. The learned counsel for respondent No. 2 has filed objections stating that the endorsement issued by respondent No. 1 is in accordance with law and does not violate the Articles 21 and 300A of the Constitution of India. He contends that the application of petitioners, vide Annexure-G is not maintainable as the same has not been filed within a period of three months from the date of the award of the Reference Court and in compliance with Section 28A of the Act, and hence, prays to dismiss the petitions.
6. The learned counsel for petitioners submits that their application under Section 28A of the Act is pending before the respondent No. 1. The enhancement of compensation was challenged before this Court and this Court had modified the order. He further submits that the present petitions would succeed in terms of the judgment passed by this Court on 22.07.2013 in M.F.A. No. 3289/2007 C/w. M.F.A. No. 3291/2007.
7. The learned counsel for respondent No. 2 refers to Section 3(d) of the Act, which defines the expression "Court" as a principal Civil Court of original jurisdiction unless, the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform functions of the Court under this Act. The amount enhanced by the Reference Court is applicable only to the petitioners since they had made an application under Section 28A of the Act.
8. The learned counsel has referred to an order passed by this Court in W.P. No. 19059/2007 (LA-RES) on 08.03.2012, wherein it has been held in para 7 that, right to seek redetermination flows from the award of the Court which is the Reference Court and in the light of the definition of the term ''Court'' as contained under Section 3(d) of the Act, the same cannot be extended to the judgment and award passed by the High Court. Based on the said judgment, the applicant cannot seek re-determination of compensation.
9. In the said order at para 9 it has been held that, in the scheme of Section 28A of the Act, as can be discerned from sub clauses (1) to (3), there is no scope for making a second application under the very provision seeking re-determination of compensation, yet again, based on the judgment and decree passed in an appeal by the High Court. The intention of the Parliament in introducing Section 28A of the Act is to ensure that in the matter of payment of compensation to those who are deprived of their land for the benefit of the public, such of the land owners whose lands were acquired under the same notification, but who could not, due to poverty, ignorance and other disability, join others in seeking reference under Section 18 of the Act, get an opportunity to claim compensation on par with others. But this opportunity can be availed of by filing an application within the prescribed period and strictly as per the provisions contained under Section 28A of the Act. Sub clause (3) of Section 28A of the Act provides that, any person aggrieved and who has not accepted the award passed by the Collector, on re-determination, may file a written application to him requesting for reference of the matter for determination of the Court and the provision of Sections 18 to 28 of the Act shall, so far as may be, applied to such reference as they apply to a reference under Section 18 of the Act. This clause makes it very clear that a person who has not accepted the award passed under Section 28A of the Act has to avail his remedy provided under Sections 18 to 28 of the Act. Hence, it is clear that a second application for redetermination based on the appellate order cannot be maintained.
10. The learned counsel has referred to the decision reported in the case of
11. The learned Government Advocate supports the endorsement issued by the Special Land Acquisition Officer.
12. Heard. The Reference Court had enhanced the compensation by its order dated 17.11.2006 on the applications filed by some of the claimants for which these petitioners were not parties. However, petitioners made an application under Section 28A of the Act within 90 days from the date of enhancement made by the Reference Court. The petitioners before the Reference Court approached this Court for further enhancement of the compensation in M.F.A. No. 3289/2007 c/w. M.F.A. No. 3291/2007. The said appeals were partly allowed. The compensation payable to the lands in question was enhanced from Rs. 2,00,000/- to Rs. 3,50,000/- and the appellants were held entitled to the statutory benefits on the enhanced amount.
13. The question for determination is, whether the petitioners herein have made an application within 90 days from the date of the Reference Court order i.e., 17.11.2006. Though Section 3(d) of the Act refers the Civil Court for the purpose of award, but it does not restrict for the purpose of enhancement of compensation by this Court. In this regard, it is necessary to refer to the judgment reported in the case of
14. In view of the judgment referred above, the award determined by the Reference Court itself does not become final, since the determination was the subject matter before this Court and the re-determination by this Court is automatically replaced by the compensation enhanced by the Reference Court.
15. In the application, the petitioners had sought for redetermination of compensation at the rate of Rs. 5,000/- per gunta. As per the said application, the Reference Court had determined the market value of the acquired land of the petitioners at the rate of Rs. 5,000/- per gunta. The Reference Court order was modified by this Court in M.F.A. No. 3289/2007 c/w. M.F.A. No. 3291/2007 on 22.07.2013. The aggrieved petitioners have a constitutional right to seek for enhancement of compensation.
16. The learned counsel for respondent No. 2 submits that application under Section 28A was filed only for enhancement of determined compensation by the Reference Court and not for further determination to be made by this Court. The said submission cannot be accepted.
17. All the similarly situated persons are to be treated at par. Therefore, the benefit granted to the aggrieved persons in M.F.A. No. 3289/2007 c/w. M.F.A. No. 3291/2007 needs to be extended to the petitioners herein.
18. With these observations, petitions are allowed. The endorsement dated 30.11.2013 is quashed. The respondents are directed to determine the market value of the land acquired under Section 28A of the Act as per the order passed by this Court in M.F.A. No. 3289/2007 c/w. M.F.A. No. 3291/2007.
19. At this juncture, learned counsel for respondent No. 2 prays to deny the interest to the petitioners, since they have not filed the application under Section 18 of the Act. The said submission is rejected. It is needless to state that the petitioners are entitled for the statutory benefits including the interest portion.
