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Judgment
Padmanabhan, J.—The petitioner prays for the issue of a writ of mandamus directing the respondent to pass an order of enhanced
compensation u/s 28-A of The Land Acquisition Act, 1894, relating to his lands comprised in Survey No. 201/2 measuring 50 cents in No. 106,
Koyambedu Village on the representations dated 29.5.89 and 29.12.90.
Heard Mr. David Thiyagaraj, learned counsel appearing for the petitioner and Ms. D. Malarvizhi, learned Government Advocate appearing for
the respondent. With the consent of counsel on either side, the writ petition itself is taken up for final disposal.
The petitioner''s land comprised in survey No. 201/2 measuring 50 cents in Koyambedu Village was acquired by the respondent for housing
scheme and an award was passed u/s 11 of The Land Acquisition Act in Award No. 1/80 dated 30.1.1980. A sum of Rs. 5,692.50 alone was
awarded as compensation. The petitioner had not sought for a reference u/s 18 of The Land Acquisition Act claiming enhanced compensation.
According to the petitioner, in respect of lands acquired by the very same notification located in the same locality and which was also the subject
matter of award 1/90 dated 30.1.80, the neighbouring owners sought for reference and the civil court enhanced the compensation from Rs. 99/=
per cent to Rs. 500/= per cent in Koyambedu village. Placing reliance on Section 28-A of The Land Acquisition Act, the petitioner moved the
respondent while enclosing a copy of the judgment and decree in LAOP No. 63/86 on the file of the Ist Assistant Judge, City Civil Court, which
arose on a reference in respect of Award No. 1/80 dated 30.1.80. The civil court answered the reference and pronounced the judgment on
22.3.88 in the said LAOP 63/86. The petitioner applied for copy of the said judgment and award on 28.4.1988. A certified copy of the decree
was obtained on 24.4.89. Within the period of three months, the petitioner preferred an application before the respondent u/s 28-A, while
enclosing copy of the judgment and decree with his covering letter dated 29.5.89.
The said letter was returned unserved. On 2.6.89 the petitioner, through his counsel reiterated and demanded the said claim. The respondent
received the same and fixed the date of enquiry on 21.6.89. The petitioner''s counsel appeared for the enquiry, which was adjourned, but there
was no further enquiry. The petitioner sent a notice on 25.9.90 calling upon the respondent to redetermine the compensation u/s 28-A based upon
the award in LAOP No. 63/86. As there was no response after making the demand, the petitioner has come forward with the present writ petition
seeking for the issue of a mandamus.
The respondent filed a counter. The respondent admitted the acquisition of survey No. 201/2 belonging to the petitioner. The respondent also
admitted having passed an award No. 1/80 dated 30.1.80 and award of compensation of Rs. 5,692.50. It is also admitted that the petitioner has
not sought for reference u/s 18 of The Land Acquisition Act. But in respect of l;and covered by the same award No. 1/80, other land owners
sought for a reference u/s 18 before the Civil Court. The Civil Court admittedly enhanced the market value from Rs. 99/= to Rs. 500/= per cent in
respect of the same lands. It is stated that the first respondent preferred an appeal as against the award in LAOP No. 63/86 before this Court with
a petition to condone the delay and the appeal A.S. No. 225/92 was disposed of on 6.4.92.
It is admitted that the petitioner presented his application u/s 28-A through his counsel on 29.5.89. It is also admitted that the petitioner
presented the certified copy of the judgment and decree passed in LAOP No. 63/86 dated 22.3.88. While acknowledging the representation
seeking for redetermination u/s 28-A, the respondent sent a notice dated 13.6.89 intimating the petitioner that an enquiry will be conducted on
21.6.89 at 11.00 a.m. The petitioner was required to appear before the respondent. The petitioner also attended the enquiry. The respondent has
sent a reply to the petitioner on 16.11.90 intimating that already appeal has been preferred against the award in LAOP No. 63/86 and after the
disposal of the said appeal, the petitioner may be advised to prefer his claim u/s 28-A of the Act. A.S. No. 225/92 preferred against the award in
LAOP No. 63/86 was disposed on 6.4.92.
It is contended that the petitioner should have preferred his claim within three months from the date of judgment of the High Court, but he has
failed to make such a representation within the time prescribed. The request of the petitioner made on 25.9.89 was earlier to the judgment in the
first appeal and after disposal of the appeal, the petitioner has not made a demand u/s 28-A(1). Hence, the earlier application is not maintainable
and the petitioner is not entitled to seek for a mandamus nor the respondent could be compelled to redetermine the compensation payable in
respect of the petitioner''s lands u/s 28-A as the claim is belated and beyond the time prescribed in Section 28-A.
The only point that arises for consideration in this writ petition is :-
Whether the petitioner is entitled to a writ of mandamus as prayed for on the admitted facts ?
There is no dispute about the acquisition of the petitioner''s lands and the award of compensation. Equally there is no dispute that in respect of
the lands in the locality, which is covered by the same award, a reference was made u/s 18 and the Civil Court enhanced the compensation from
Rs. 99/= to Rs. 500/= per cent. It is also not in dispute that the petitioner secured a copy of the decree passed in LAOP No. 63/88 on 24.4.89
and submitted the same along with his representation dated 29.5.89. The respondent by reply dated 13.6.89 called upon the petitioner to appear
for an enquiry u/s 28-A. The petitioner has appeared through his counsel. Though the respondent pleaded that it has sent a reply stating that the
petitioner has to await the judgment of the first appeal and has to renew his application u/s 28-A, no such material has been placed before the
Court by the respondent except taking such a stand in para-5 of the counter affidavit. The respondent after the enquiry u/s 28-A has sent a claim
that it has sent a reply to the petitioner, which is being disputed. However, the respondent produced a copy of the reply dated 16.11.90, which
reads thus :-
Sir,
Sub : Land in S. No. 201/2-measuring 0.50 cents - 106, Koyambedu Village.
Ref : Your letter dated Nil.
I am to inform you that necessary appeal has been filed against the LAOP.63/86 in this office Rc.1494/A3/dated 28.6.90. After disposal of the
said appeal the petitioner may be instructed to prefer his claim u/s 28-A(1) of Land Acquisition Act.
Accepting the above statement to be correct, even then the petitioner, who has already submitted his claim u/s 28-A need not submit his claim
once again after the disposal of the appeal preferred by the respondent. Neither such is the scope of Section 28-A nor the Section contemplates
such a course. When once a claim is made u/s 28-A, based upon the determination of compensation by the Civil Court, the respondent has to
redetermine the compensation payable in respect of the compensation awarded for the acquisition of the petitioner''s land. Section 28-A, which is
the material provision, reads thus :-
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 91), 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.
In this case an application was filed within time and in terms of sub-section (2) of Section 28-A, an enquiry was conducted, but no
redetermination has been done nor an award was passed. There is no doubt that the petitioner has complied with the requirements of Section 28-
A and an application has been filed within the period prescribed u/s 28-A(1). Yet, without redetermining, even according to the respondent, the
respondent had merely intimated that appeal is pending. The mere fact that appeal is pending is not a valid ground to delay; yet the respondent has
not redetermined. The appeal also has been dismissed by this Court. Even thereafter also the respondent has not chosen to redetermine the
compensation in terms of Section 28-A. The extra-ordinary stand taken by the respondent that the petitioner should have applied once again u/s
28-A after the disposal of the first appeal by this Court is a misconception and misreading of Section 28-A and cannot be sustained. Section 28-
A(1) refers to the Court, namely, the Court as defined u/s 3(d), which enhanced the compensation in excess of the amount awarded by the
Collector u/s 11. In every respect the petitioner has satisfied the requirements prescribed u/s 28-A(1) and there is no dispute in this respect.
When the respondent has conducted an enquiry u/s 28-A(1), it is obligatory on the part of the the respondent to have redetermined the
compensation payable in respect of the petitioner''s land, but the respondent has merely postponed the same on a wrong premise. Having failed to
discharge the statutory functions in terms of Section 28-A, the respondent cannot now contend that the petitioner should have preferred a claim
after the disposal of the appeal. This is not in accordance with Section 28-A and such a contention cannot be sustained.
Section 28-A is intended and meant for inarticulate and poor people who have failed to take advantage of the right of reference by a civil court
u/s 18. Section 28-A is a provision by which the owners of the land could seek to reopen an award, which has become final. To avail the benefit
of redetermination of the compensation the conditions laid down u/s 28-A have to be fulfilled and such demand should have been made within
three months from the date of the award. In this case, there is no dispute that the petitioner had taken all the steps as prescribed by Section 28-A
and within three months he has applied for redetermination.
The learned counsel for the petitioner relied upon the pronouncement of the Supreme Court in Jose Antonio Cruz Dos R. Rodrigueses and
another Vs. Land Acquisition Collector and another, : In the said pronouncement, the Supreme Court, while construing Section 28-A held that
application should be made within three months from the date of the award of the court for redetermination.
In TOTA RAM VS. STATE OF U.P. reported in 1997 (6) SCC 280 while construing Section 28-A, the Apex Court held that the Court
means the Court of original jurisdiction to whom reference u/s 18 would lie and Section 28-A gives right to the person to obtain certified copy of
the award and decree and the court means the court of civil jurisdiction to which reference u/s 18 has been made or would lie.
In Bhagti (Smt) (Deceased) through her Lrs. Jagdish Ram Sharma Vs. State of Haryana, : the Apex Court held that Section 28 does not apply
to an order made by the High Court and the claimant could seek redetermination of compensation on the basis of the award of the reference court
and not the judgment of the High Court. In that context, the Apex Court held thus :-
Thus only those claimants who had failed to apply for a reference u/s 18 of the Act are conferred with the right to apply for redetermination u/s
28-A(1). But all those who had not only sought a reference u/s 18 but had also filed an appeal in the High Court against the award made by the
Reference Court are not entitled to avail of the remedy u/s 28-A. Equally, the right and remedy of redetermination would be available only when
the Reference Court u/s 18 has enhanced the compensation in an award and decree u/s 26. Within three months from the date of the Reference
Court excluding the time taken under the proviso, the applicant whose land was acquired under the same notification but who failed to avail of the
remedy u/s 18, would be entitled to avail of the right and remedy u/s 28-A. The order and judgment of the High Court does not give such right.
Thus, this Court held that Section 28-A does not apply to an order made by the High Court for redetermination of the compensation. Thus, we
hold that the question of reference to the Constitution Bench does not arise. The claimants are not entitled to make an application for
redetermination of compensation u/s 28-A(1) after the judgment of the High Court; nor are the claimants entitled to avail of that award which is
more beneficial to the claimants, i.e., the High Court judgment.
The pronouncement in Jose Antonio Cruz Dos R. Rodrigueses and another Vs. Land Acquisition Collector and another, : was referred to a
larger Bench. The larger Bench in Jose Antonio Cruz Dos R. Rodriguese and another Vs. Land Acquisition Collector and another, :held that there
is no difference of opinion on the question that the period of limitation would start to run from the date of reference Court''s award on the basis
whereof a determination is sought and the Full Bench held that the period of limitation to be reckoned from the date of the award by the Court
disposing of the reference u/s 18 and not the appellate court dealing with the appeal against the award of the reference Court.
Following the above pronouncement, this Court holds that within the period prescribed by Section 28-A, the petitioner had validly applied for
redetermination of compensation in terms of the award passed by the Court to which a reference was made u/s 18. in respect of identical land
covered by the same award Therefore, when the petitioner has complied with all the requirements of Section 28-A, it is incumbent on the part of
the respondent to redetermine the compensation based upon the award of the Court, which answered the reference u/s 18. The view of the
respondent that the petitioner has to wait for the judgment in the first appeal or that the petitioner has not applied once again after the disposal of
the appeal by the High Court cannot be sustained. It is clear that the respondent has failed to discharge the statutory duty of redetermining the
compensation u/s 28-A and, hence, the petitioner has rightly approached this Court. The respondent has failed to redetermine the compensation
when a demand has been made strictly in accordance with Section 28-A. The petitioner is well founded in approaching this Court and seeking the
relief of mandamus.
In the foregoing circumstances, this writ petition is allowed. A mandamus is issued to the respondent to redetermine the compensation in terms
of Section 28-A and pass an award within four months from the date of communication of this order. The parties shall bear their respective costs.