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2003 DIGILAW 437 (AP)

Akula Narayana Swamy v. State Of A. P.

2003-03-17

A.GOPAL REDDY

body2003
A. GOPAL REDDY, J. ( 1 ) THESE three revision petitions filed under art. 227 of the Constitution of India raise common and identical question of law and are dealt with together. In all the revision petitions, the challenge is as to the order passed by the second respondent-Special deputy Collector (LA) APIIC Limited, visakhapatnam, camp office at Kakinada dt. 30-11-2002, whereunder the petitioners were informed that the applications filed by them under Section 28-A of the Land acquisition Act, 1894 (for short "the Act") are not maintainable since the claimants have availed the benefit under Sec. 18 of the act in O. P. Nos. 45/99,89/99 and 46/99 on the file of Principal Senior Civil Judge, kakinada respectively. ( 2 ) THE brief facts, which are necessary for disposal of the revision petitions, are as under: on requisition made for establishment of iron plant by ESSAR Gujarath Limited, kakinada, certain lands were acquired. After conducting due enquiry, the Land acquisition Officer passed an award fixing the market value at Rs. 63,000. 00. Being not satisfied with the award, the claimants sought a reference under Sec. 18 of the Act. Accordingly, the matters were referred to the Principal Senior Civil Judge, Kakinada, who by common order dt. 30-9-1999 enhanced the market value at Rs. 97,650. 00. Some of the claimants, who have not satisfied with the award passed by the reference court, filed appeals before this court in A. S. No. 616/2000 and batch. A division Bench of this Court by its judgments dt. 13-8-2002 further enhanced the compensation to Rs. 1,69,400. 00 per acre. On such enhancement of the compensation, the claimants in the O. P. No. 45/99 filed an appeal with an application seeking condonation of delay of 995 days. A division Bench of this Court comprising of Justice B. S. A. Swamy and Dr. Justice g. Yethirajulu passed the following order in CMP No. 17917/2002 in AS (SR) no. 70048/2002 dt. 21-9-2002:"this appeal suit was filed against the award of the Principal Senior Civil judge, Kakinada, in O. P. No. 45/99, dt. 30-9-1999, with an application seeking condonation of delay of 995 days in preferring the appeal. The reason given for the delay in filing this appeal is that the Kartha of the family did not prefer appeal against the award of the Principal Senior Civil judge, Kakinada. 30-9-1999, with an application seeking condonation of delay of 995 days in preferring the appeal. The reason given for the delay in filing this appeal is that the Kartha of the family did not prefer appeal against the award of the Principal Senior Civil judge, Kakinada. We can understand that the reason for the immediate progress in filing this appeal is the order of a Division Bench of this court allowing the appeals filed by the other claimants and enhancing the compensation by its order dated 13-8-2002 in A. S. No. 616 of 2000 and batch. As per the said orders of a division Bench of this Court dated 13-8-2002, the appellants need not file this appeal and they can straightaway approach the District Collector, under section 28-A of the Land Acquisition act, to pay the enhanced compensation on par with the appellants in AS no. 616 of 2000 and batch. Hence, we direct the appellants, to approach the Collector by filing application within the time stipulated in Section 28-A of the Act. The Registry is directed to return the papers and to issue a certificate for claiming refund of the court fee paid by the appellants. Accordingly, the Civil Miscellaneous petition is dismissed. "which is the subject matter of CRP no. 6089/2002. Similarly other claimants also filed appeals in AS (SR) No. 70358 and 70350 of 2002 with applications to condone the delay in preferring the appeals. In view of the order passed by the Division Bench of this court, as referred to above, claimants in those appeals withdrew the applications filed for condonation of delay in preferring the appeals. Thereafter, the claimants filed applications through their advocates under sec. 28-A of the Act for redetermination of the compensation awarded under Award no. 2/91 dt. 15-4-1991 in the light of the judgment of the Division Bench of this court in A. S. No. 616/2000 and batch dt. 13-8-2002. The said applications were rejected as not maintainable. Questioning the same, the present revision petitions are filed. 28-A of the Act for redetermination of the compensation awarded under Award no. 2/91 dt. 15-4-1991 in the light of the judgment of the Division Bench of this court in A. S. No. 616/2000 and batch dt. 13-8-2002. The said applications were rejected as not maintainable. Questioning the same, the present revision petitions are filed. ( 3 ) LEARNED counsel for the revision petitioners in all the revision petitions submits that once a Division Bench of this court observed that the petitioners need not file appeals and can approach the Collector under Sec. 28-A, it is incumbent upon the collector to redetermine the compensation in the light of the observation, as referred to above, and it is not open for him to reject the applications as not maintainable. Since the collector committed an illegality in not following the directions issued by the division Bench of this Court, the petitioners are entitled to the same compensation as awarded by this court in A. S. No. 616/2000 and batch dt. 13-8-2002. ( 4 ) BEFORE I proceed to answer the contention raised by the counsel for the petitioner, it is appropriate to notice section 28-A of the Act, which reads thus:"28-A. Redetermination of the amount of compensation on the basis of the award of the court:- (1) Where in any award under this part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Sec. ll, 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 redetermined 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 under Section 18. " ( 5 ) A three-Judge Bench of the Supreme court in SC Co-operative Land Owning Society limited v. Union of India1 held that only those claimants who had failed to apply for a reference under Section 18 of the Act are conferred this right to apply to the Collector for redetermination and not all those like the petitioner who had not only sought reference under Section 18 but had also filed an appeal in the High Court against the award made by the reference court. The newly added Section 28-A, therefore, clearly does not apply to a case where the claimant has sought and secured a reference under section 18 and has even preferred an appeal to the High Court. ( 6 ) IN Union of India v. Pradeep Kumar2 a three-Judge Bench of the Apex Court after analyzing the various provisions and the object ordained under Sec. 28-A at pages 742 and 743, and after observing that there is nothing in sub-section (1) of Section 28-A to indicate that the right is confined in respect of the earliest award that is made by the court, enumerated the conditions to be satisfied, whereafter an application under sec. 28-A can be moved, at page 743, as under: if the said expression in Sec. 28-A (l) is thus construed, a person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied: (I) An award has been made by the court under Part III after the coming into force of Section 28-A; (II) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference; (III) The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4 (1) to which the said award relates; (IV) The person moving the application did not make an application to the collector under Section 18; (V) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and (VI) Only one application can be moved under Sec. 28-A for redetermination of compensation by an applicant. ( 7 ) SINCE a two-Judge Bench of the supreme Court referred the matter to a larger Bench in Union of India v. Hansoli Devi3 on the questions formulated, namely:- (1) Whether the award of the court i. e. , civil court made under Section 26 on reference under Section 18 would also include judgment and decree of the appellate court under Section 54? (2) Whether each successive award or judgment and decree (if answer on question 1 is positive) would give3. (2001) 4 SCC 404 . cause of action to file application under section 28-A; if so construed, does not such a construction violate the language used in Section 28-A when parliament advisedly did not use such expressions?" a larger Bench of the Supreme Court in union of India v. Hansoli Devi4 observed as under:". . . In fact in Pradeep Kumari case ( (1995) 2 SCC 736 ) the three learned Judges, while enumerating the conditions to be satisfied, whereafter an application under Section 28-A can be moved, had categorically stated (SCC p. 743 para 10) "the person moving the application expression "did not make an application", as observed by this court, would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. "the Supreme Court while observing the above, held that when an application of a land owner under Section 18 is dismissed on the ground of delay, then the said land owner is entitled to make an application under Section 28-A, if other conditions prescribed therein are fulfilled. ( 8 ) AS seen from the statutory provision, as referred to above, and law declared by the apex Court, the claimants who satisfy the requirements of Sec. 28-A of the Act alone are entitled to seek redetermination of the compensation, namely, award has been made by the court under Part-Ill after coming into force of Section 28-A; and the awarded amount is in excess of the amount awarded by the Collector under Section 11; the person moving the application under section 28-A is interested in other land covered by the same notification under section 4 (1), to which the said award relates; 4. (2002) 7 SCC 273 . the person moving the application did not make an application to the Collector under sec. 18, the application is to be moved within 3 months from the date of the award on the basis of which redetermination amount of compensation is sought and only one application can be moved under Sec. 28-A for redermination of compensation by an applicant. ( 9 ) ADMITTEDLY, in the present cases, the petitioners have made applications under section 18 of the Act and availed the benefit of enhanced compensation under Part III of the Act, satisfied with the award had not preferred any further appeal immediately. Only after some of the claimants got enhancement of compensation on filing appeals, the petitioners filed the appeals with applications to condone the delay and were dismissed with the observation as referred to above. ( 10 ) LEARNED counsel, who filed the above appeals which were dismissed, has not appraised the Division Bench of this court the relevant statutory provisions and conditions which have to be fulfilled for redetermination of compensation under sec. 28-A apart from the law declared by the apex Court in this regard. ( 11 ) IN view of the same, any observation made by a Division Bench of this Court will not compel the Land Acquisition Officer to redetermine the compensation as he is not bound by the said observation and has to follow the mandate of the statute and law declared by the Apex Court. ( 11 ) IN view of the same, any observation made by a Division Bench of this Court will not compel the Land Acquisition Officer to redetermine the compensation as he is not bound by the said observation and has to follow the mandate of the statute and law declared by the Apex Court. ( 12 ) IT is settled principle of law that if the statute requires that a particular act should be done in a particular manner and if it is found that the act done by the Government or its officers is valid and in compliance with the mandatory requirements of law, any (sic. no) direction, as such, can be issued, which will have the effect of nullifying the mandatory requirements of law apart from binding precedent, and such direction if issued would render the mandatory provision of the enactment meaningless and superfluous, the court should restrain itself from issuing such directions. ( 13 ) IN view of the same, I do not see any illegalities or infirmities in the impugned orders passed by the second respondent rejecting the claim of the petitioners for redetermination of the compensation as not maintainable, which require to be corrected in exercise of supervisory jurisdiction of this court under Art. 227 of the Constitution of india. ( 14 ) THE Civil Revision Petitions are accordingly dismissed. No costs.