Land acquisition collector is directed to consider afresh application for re-determination of compensation

December 13, 2017

A Bench of Justice Kurian Joseph and Justice R. Bhanumati disposed of the appeal filed by land owners and settled the question what is the course to be adopted by land acquisition collector under section 28A of the Land acquisition Act, when the award based on which enhancement sought is pending in appeal.

The Section 4(1) Notification was issued on 17.01.1974. The compensation was determined by the Land Acquisition Officer on 04.06.1977. The appellants did not pursue the matter further under Section 18 of the Act in Reference. However, other claimants of the lands covered by the same Section 4(1) Notification took up the matter further and the Reference Court allowed enhancement and fixed the land value at Rs.5,000/- per acre in the place of Rs.3,000/3,500 offered by the Land Acquisition Officer, as per the award dated 01.10.1992 in LAR Nos. 123 and 129 of 1983 on the file of the Second Additional District Judge, Aurangabad. The appellants filed an application on 31.12.1992 under Section 28A of the Act seeking similar enhancement within the period of three months as required under Section 28A.

While the application under Section 28A of the Act was pending, the award under LAR Nos. 123 and 129 of 1983 was challenged in appeals and there were also cross objections. The High Court disposed of these appeals by judgment dated 23.03.2009 granting compensation at the rate of Rs.18,000/- per acre.
During the pendency of the appeal, it is seen that the Land Acquisition Collector passed an award dated 25.10.2000 on the application filed by the appellants under Section 28A of the Act, awarding compensation at the rate of Rs.5,000/- per acre, as awarded in LAR Nos. 123 and 129 of 1983 referred to above.

On 27.05.2009, the appellants filed fresh applications under Section 28A for enhancement of compensation based on the judgment of the High Court dated 23.03.2009. They also approached the High Court praying for the Writ of Mandamus. By the impugned order, the Writ Petition was dismissed holding that Section 28A of the Act permits only one application, and successive applications as and when further enhancement is made, are not permissible.

The court observed that "In the case of the appellants, when their Section 28A application was decided, based on awards in LAR Nos. 123 and 129 of 1983, the very same awards were pending in appeal before the High Court. However, the Collector proceeded to consider their application and decided the same on 25.10.2000. Thereafter, fresh application under Section 28A was filed on 27.05.2009 based on the judgment of the High Court dated 23.03.2009. It was this application that was held to be not maintainable, being a second application."

"Though there is no quarrel with the principle that only a single application is maintainable, in the instant case, unfortunately, the High Court omitted to take note of the fact that the appeals on the relied on awards were pending when the Section 28A application was decided. That is the special and distinctive factual position in the instant case. It must also be kept in mind that Section 28A is a beneficial provision."

The Bench said that:
"The Section 28A application dated 31.12.1992 based on the awards in LAR Nos. 123 and 129 of 1983 was decided on 25.10.2000 when the appeals therefrom were pending. The Collector ought to have kept the application pending till the appeals were decided on 23.03.2009. On principle, the High Court is correct and justified in the view taken in the impugned judgment that there cannot be successive applications under Section 28A in view of Pradeep Kumari (supra). But that is not the point arising for consideration here. No doubt, the second application dated 27.05.2009 for re-fixation in light of the appellate court judgment is not maintainable. However, since the Collector is also at fault in deciding the application when the matter was pending in appeal, we are of the view that in the peculiar facts of the instant case, the application dated 31.12.1992 should be considered afresh."

The court disposed of the appeal with a direction that:

"The Land Acquisition Collector is directed to consider afresh the Section 28A application dated 31.12.1992 and pass orders in the light of the judgment of the High Court dated 23.03.2009 in First Appeal Nos.569 and 570 of 1997 on the file of the High Court of Bombay, Bench at Aurangabad. For enabling the Collector to pass orders as above, the order dated 25.10.2000 is set aside. However, the amounts already paid are to be duly adjusted."

"The orders as above shall be passed by the Land Acquisition Collector within three months from the date of presentation of a copy of this judgment by the appellants and the consequential benefits shall be disbursed to them within another one month."

Read the Judgment of Supreme Court dated 12.12.2017