Nagen Kumar Samantaray and Others vs State of Orissa and Another

P.K. Misra, J.—Heard Mr. Das for the petitioners and learned Additional Government Advocate for opposite parties. Since all the cases involve common questions of law and fact, all the writ applications are taken up together and disposed of by this common order.

The lands of the petitioners had been acquired along with lands belonging to other persons under Notification dated 22.3.1985. Award had been made by the Collector. The present petitioners had not made any application at that stage u/s 18 of the Land Acquisition Act (in short, the "Act") for making a reference to the Civil Court for payment of higher compensation. However, some other affected persons whose lands had been acquired had filed applications u/s 18 of the Act and. ultimately the compensation amount was enhanced in respect of their lands. Thereafter, the present petitioners filed applications u/s 28A of the Act before the Collector for payment of higher compensation. The Collector refused to enhance the compensation on the ground that in the other awards higher amount had not been fixed for Sarad land. Subsequently, the present petitioners filed other applications in accordance with Section 28A(3) for referring the matter to the Civil Court for determination of compensation. The said petitions have'' been rejected by the Collector on the ground that the earlier decision of the Collector refusing to pay higher compensation was not an award and as such there was no scope for making a reference u/s 28A(3).

Section 28A which was introduced by way of amendment by Act 68 of 1984, is extracted hereunder :

" 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 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 Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference u/s 18."

A bare perusal of the aforesaid provisions makes it clear that even though a person had accepted the award on the earlier occasion and not filed any application claiming higher compensation, if any excess compensation is paid by the Court in accordance with the provisions contained in Part-Ill of the Act in respect of other land covered by the same Notification, such other person who had not claimed higher compensation may make further application before the Collector for payment of higher compensation on the basis of the. amount awarded by the Court. Section 28A(2) empowers the Collector to conduct an inquiry and make further award determining the amount payable to the applicant. Whether the Collector enhances the amount or not, such determination by the Collector under Sub-section (2) is not final and thereafter, the aggrieved party may file an application for making a reference to the Civil Court in accordance with Section 28A(3). Though the Collector may have some discretion in the matter of fixation of higher compensation, there is no discretion so far as Section 28A(3) is concerned. As per the said sub-section, the provisions of Section 18 shall apply to such applications. Section 18 requires that Collector has to refer to the Civil Court when a person claims higher compensation. In the present case, the Collector has illegally refused to make a reference to the Civil Court. Since the petitioners had made the necessary applications within the stipulated period, the Collector should have referred the mailers to the Civil Court in accordance with Section 18 read with Section 28A of the Act. Accordingly, the orders passed by the Collector cannot be sustained. The Collector is directed to make a reference to the Civil Court .This exercise shall be completed within a period of three months from the date of communication of this order.

The writ applications are accordingly allowed. This order shall be communicated to the Land Acquisition Collector. Requisites shall be filed in each case within three days.