@JUDGMENTTAG-ORDER
A.V. Sesha Sai, J.@mdashThis writ petition under Article 226 of the Constitution of India is filed assailing the action of the respondents in not re-determining the compensation in the light of the decree in O.P. No. 6 of 1992 and batch as modified by this Court in A.S. No. 607 of 2000 and batch, which was confirmed by the Honourable Apex Court in Special leave Appeal (Civil) C.C. Nos. 4196 and 4201 of 2003 and consequently for a direction to the respondents to re-determine the compensation in the light of the modified decree for the petitioners lands admeasuring Ac. 1.63 cents in S. No. 247 and Ac. 1.19 cents in S. No. 242 of Vakalapudi village, Kakinada Rural Mandal, East Godavari District. The facts in nutshell which are essential for adjudication of the controversy involved in the present writ petition are as under:
The lands of the petitioners herein along with the lands of certain others were acquired by the respondent herein for ESSAR Gujarat Limited under Award No. 2/1991 dated 15.04.1991. The Land Acquisition Officer fixed the compensation at Rs. 63,000/- per acre. The owners of the other lands sought reference u/s 18 of the Land Acquisition Act (hereinafter referred as ''the Act'') and the said reference was numbered as O.P. No. 6 of 1992 and batch on the file of Court of the Principal Senior Civil Judge, Kakinada. By virtue of orders dated 30.09.1999, the reference Court enhanced the compensation from Rs. 63,000/- to Rs. 97,650/- per acre. Subsequently, the petitioners herein submitted applications u/s 28(A) of the Act, requesting for re-determination of the compensation. While the things being so, the claimants in O.P. No. 6 of 1992 and batch filed A.S. Nos. 616 of 2000 and batch before this Court u/s 54 of the Act, seeking enhancement of the compensation awarded by the reference Court and State also filed Cross-objections in the said appeal.
2. By virtue of judgment dated 30.08.2002 this Court allowed A.S. No. 616 of 2000 and batch, enhancing the compensation from Rs. 97,650/- to Rs. 1,69,400/- per acre. The cross-objections filed by the State were dismissed. Questioning the enhancement granted by this Court in A.S. Nos. 616 of 2000 and batch, the State of A.P. filed appeals before the Honourable Apex Court and the same were numbered as Special Leave to Appeal (Civil) C.C. Nos. 4196 and 4201 of 2003 and the Honourable Apex Court by virtue of orders dated 06.05.2003, dismissed the said civil appeals.
3. Subsequent to the said orders passed by this Court in the first appeals filed by the other land owners and the orders of the Honourable Apex Court in the above mentioned civil appeals, the Land Acquisition Officer passed supplementary award No. 1 dated 16.01.2007, re-determining the compensation and fixing the same at the rate of Rs. 97,650/- as awarded by the reference Court u/s 18 of the Act. The grievance of the petitioners in the present writ petition is that the Land Acquisition Officer grossly erred in fixing the compensation by way of re-determination at the rate of Rs. 97,650/- per acre, and the petitioners are entitled for compensation enhanced and fixed by this Court in A.S. No. 616 of 2000 and batch as confirmed by the orders of the Honourable Apex Court.
4. In the counter filed by the respondent herein it is stated that the petitioners filed application u/s 28(A) of the Act on 13.03.2007 but they are not entitled to the enhanced compensation awarded by this Court in A.S. No. 616 of 2000 and batch as the petitioners herein did not file application within three months as prescribed u/s 28A of the Act.
5. Heard Sri S. Subba Reddy, learned counsel for the petitioners and the learned Government Pleader for the respondent and perused the material available on record.
6. Right to property is a constitutional right as enshrined under article 300(A) of the Constitution of India, which mandates that no citizen shall be deprived of his/her property except as per the procedure established by law. The provisions of the Land Acquisition Act authorised the State to acquire the land compulsorily notwithstanding the wish of the land owners. The Land Acquisition Act is an ex-proprietary legislation. The provisions of the said legislation are required to be adhered to scrupulously and unless just and reasonable compensation is paid to the land owners, the land owners shall not be divested of their properties. The provision of law which is relevant and germane for the purpose of resolving the controversy in the present writ petition is Section 28A of the Land Acquisition Act, which stipulates as under:
28-A. 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 u/s 11, the persons interested in all the other land covered by the same notification u/s 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 u/s 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 them a reasonable opportunity of being 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, by written application to the Collector, require that the matter be referred by the Collector for the determination of the court and the provisions of Section 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference u/s 18.
7. In the instant case, initially an award was passed in the year 1991, fixing the compensation at the rate of Rs. 68,000/- per acre and on reference, the same was enhanced to Rs. 97,650/- by the reference court at the instance of other land owners and seeking re-determination on par with them, an application was filed by the petitioners herein. In the meanwhile, the other land owners who sought reference u/s 18 of the Act preferred appeals before this Court u/s 54 of the Act and this Court in A.S. No. 616 of 2000 and batch dated 30.08.1992 enhanced the compensation from Rs. 97,650/- to Rs. 1,69,400/- per acre, which was confirmed in appeal by the Honourable Apex Court. The Land Acquisition Officer on the applications filed by the petitioners for re-determination passed the supplementary award No. 1 dated 16.01.2007 re-determining the compensation by fixing the same at Rs. 97,650/- as awarded on reference u/s 18 of the Act at the instance of the other land owners. It is significant to note at this juncture that by the said date of passing the supplementary award, this court in A.S. No. 616 of 2000 and batch rendered judgment on 30.08.2002 enhancing the compensation awarded by the reference court from Rs. 97,650/- to Rs. 1,69,400/- per acre. At this juncture, it is relevant to refer to the judgments cited by the counsel for the petitioners. In the case of
The entire controversy has been considered by this Court in Babua Ram Vs. State of U.P. dated 04.10.1994 rendered in C.A. No. 563 of 1994 and batch and held that since an appeal has been preferred by the State against the award of the District Judge made u/s 26 of the Act, the proper course open to the LAO, on an application made u/s 28A(1) of the Act, would be to keep the applications u/s 28A(1) pending till the appeal filed against the award of the District Judge is disposed of by the High Court and then to take action as per Section 28A(2) of the Act. Following the law laid down therein and subject to direction contained therein, we hold that the High Court was not right in dismissing the writ petitions. Therefore, the order of the High Court is set aside. The award of the Collector made u/s 28A(2) is quashed. The Collector/LAO is directed to keep the application filed u/s 28A(1) of the Act pending till the disposal of the appeal. On receipt of the judgment from the High Court or in an appeal by this Court the LAO is directed to determine the compensation based on the final judgment according to law.
8. In the case of "
7. We are of the view that the Union of India is right in its submission that the amount payable u/s 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference u/s 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference u/s 18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied u/s 28A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by higher courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference u/s 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the Reference Court was subsequently reduced by superior Court. There can be no dispute that those claiming higher compensation and claiming reference u/s 18 of the Act are bound by the decree as modified by the superior Court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit others who have been given benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.
9. We hold that u/s 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act. In case of reduction of compensation by superior courts, the applicants u/s 28A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.
9. In the case of "
40. It is true that once the Reference Court decides the matter and enhances the compensation, a person who is otherwise eligible to similar relief and who has not sought reference, may apply u/s 28A of the Act. If the conditions for application of the said provision have been complied with, such person would be entitled to the same relief which has been granted to other persons seeking reference and getting enhanced compensation. But, it is equally true that if the Reference Court decides the matter and the State or acquiring body challenges such enhanced amount of compensation and the matter is pending either before the High Court or before this Court (the Supreme Court), the Collector would be within his power or authority to keep the application u/s 28A of the Act pending till the matter is finally decided by the High Court or the Supreme Court as the case may be. The reason being that the decision rendered by the Reference Court enhancing compensation has not attained "finality" and is sub judice before a superior court. It is, in the light of the said circumstance that the State of U.P. issued two Government Orders on 14.01.1994 and 13.06.2001.
10. Following the judgment rendered in Union of India Vs. Munshiram (supra) this Court in the case of
4. The learned counsel for the petitioners submits that the land of the petitioners along with other land owners was acquired by the respondents and even award was passed. Even though the petitioners did not seek reference of the matter to the civil Court and filed further appeal for enhancement of compensation, but having regard to the fact that other claimants, who sought reference of the matter to the civil Court and also filed appeal, were granted enhanced compensation for the acquisition of their lands, he submits that having regard to the provisions of Section 28A of the Act, the petitioners also are entitled to be paid the enhanced compensation as awarded in appeal by the Division Bench of this Court in the case of other land owners, and there can be no limitation for seeking enhanced compensation, and in support of this argument, he placed reliance on the judgment of the apex Court in
8. Whether respondent No. 2 was justified in rejecting the application of the petitioners filed u/s 28A of the Act, for paying the enhanced compensation, as enhanced by the Division Bench of this Court, in the appeals filed by other land owners, covered by the award, on the ground that it is barred by limitation, may be considered. The law is well settled, as admitted to by the learned Government Pleader for land Acquisition, that u/s 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference u/s 18 of the Act. Therefore, the question of any limitation, for claiming compensation, would not arise. In Union of India v. Munshi Ram (supra) the apex Court, having considered the question as to what would be the compensation payable to the land owners, who did not seek reference and further appeal, held as under:
We are of the view that the Union of India is right in its submission that the amount payable u/s 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference u/s 18 of the Act. The said provision seeks to confer the benefits of enhanced compensation even on those owners who did not seek a reference u/s 18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied u/s 28A of the Act, is the enhanced compensation decreed by the reference Court, we must understand the decree to mean the decree of the reference Court as modified in appeal by higher Courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference u/s 18 of the Act would get a higher compensation that the one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the reference Court was subsequently reduced by the superior Court. There can be no dispute that those claiming higher compensation and claiming reference u/s 18 of the Act are bound by the decree as modified by the superior Court in appeal. The principle of restitution must apply to them. For the same reason, the same consequences must visit others who have been given benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.
9. Thus, from the above legal position, it is clear that the compensation payable to the land owners, who did not seek reference, is the compensation that is ultimately paid to the land owners, who sought reference of the matter u/s 18 of the Act, and as modified in further appeals.
10. Even though as per the provisions of Section 28A(3) of the Act, the petitioners have to approach the civil Court, for grant of enhanced compensation, as awarded by a Division Bench of this court in the appeals preferred by other land owners, but in view of the admitted case of the respondents, and considering the fact that acquisition of the land in question, took place way back in the year 1991, I am of the considered opinion that it would not be in the interest of justice to relegate the petitioners to approach the civil Court at this distance of time. Hence, for that reason, I deem it appropriate to quash the impugned endorsement of respondent No. 2, and accordingly do so, and direct respondent No. 2 to re-determine the compensation payable to the petitioners as awarded by a Division Bench of this Court in the case of other land owners covered by the same award and as confirmed by the apex Court in S.L.P.
It would be very much manifest from the ratio laid down in the above referred judgments that the petitioners herein are entitled for re-determination of the compensation u/s 28(A) of the Act in terms of the compensation fixed at the rate of Rs. 1,69,400/- by this Court in A.S. No. 616 of 2000 and batch dated 30.08.2002. It would also be manifest from the ratio laid down in the above referred judgments that the compensation payable to the land owners, who failed to seek reference is the compensation which is ultimately payable to the land owners who sought reference u/s 18 of the Act as modified in further appeals. Therefore, the reason shown by the respondent herein in the counter cannot stand for scrutiny by this Court. For the aforesaid reasons and having regard to the principles laid down by the Honourable Apex Court and this Court in the above referred judgments, this writ petition is allowed, directing the respondent herein to re-determine the compensation payable to the petitioners herein as awarded by this Court in A.S. No. 616 of 2000 and batch dated 30.08.2002 as confirmed by the Honourable Apex Court in SLPs in accordance with the provisions of Section 28(A) of the Act within a period of three months from the date of receipt of a copy of this order. No order as to costs.
