HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY W.P.No.5883 of 2007 Date : 27-6-2011 Between : Molli Apparao and others .. Petitioners And District Collector, East Godavari District, Kakinada and another .. Respondents Counsel for petitioners : Sri E.V.V.S. Ravi Kumar Counsel for respondents : Government Pleader for Land Acquisition The Court made the following: ORDER: This Writ Petition is filed for a mandamus to set-aside endorsement Ref.B1/864/1993, dated 5-5-2005 of respondent No.2 as illegal and contrary to Section 28-A of the Land Acquisition Act, 1894 (for short "the Act"). Certain lands belonging to the petitioners in Sy.No.217/26 of Turangi village, were acquired and award No.45/86 was passed fixing compensation in respect thereof on 29-3-1987. In respect of certain other lands acquired for the same purpose and under the same notification, the owners of those lands approached the respondents for reference under Section 18 of the Act. Accordingly, reference was made which was registered by the Civil Court as O.P.No.301/87. By award dated 7-10- 1996, the Civil Court disposed of the said O.P. by enhancing the compensation. It is the pleaded case of the petitioner that on 31-10-1996, they have made an application under Section 28-A of the Act for enhancement of compensation on the basis of award dated 7-10-1996 in O.P.No.301/87. Nearly nine years thereafter, the petitioners submitted deemed legal notice dated 2-4-2005 wherein it was stated that the petitioners have submitted their application under Section 28-A of the Act on 15-10- 1996 and that so far compensation has not been enhanced. The said legal notice was replied to by respondent No.2 through an Advocate wherein he has denied receipt of any application on 15-10-1996 for enhancement of compensation. Respondent No.2 also ruled out any question of enhancement of compensation on the basis of an application sent on 29-4-2005 with a back date of 31-10-1996. Simultaneously, an endorsement was also issued by respondent No.2 rejecting the purported application dated 31-10-1996 filed on 29-4-2005. In the counter-affidavit, respondent No.2 has reiterated the stand taken by him in the reply legal notice and also his making endorsement dated 5-5-2005. At the hearing, Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioners submitted that even though the petitioners may not have proof of acknowledgement of the application dated 31-10-1996 by respondent No.2 till it was again sent through legal notice dated 2-4-2005, the fact that respondent No.2 has admitted receipt of the application, albeit with the plea that the said application was for the first time sent along with legal notice dated 2-4-2005, it is deemed that the petitioners have submitted their application for enhancement within the prescribed period of 90 days under Section 28-A of the Act. The learned Government Pleader for Land Acquisition opposed the above submission and stated that except the ipsi dixit of the petitioners, they failed to file any proof whatsoever to show that they have sent their application within the period of 90 days and that it was for the first time that the purported application dated 31-10-1996 saw the light of the day only in the year 2005 when the same was sent along with the legal notice dated 2-4-2005. The learned Government Pleader further submitted that even in the legal notice, the petitioners’ application was shown as bearing date of 15-10-1996 and that by itself, would show that the petitioners have come out with a false version in order to make wrongful gain. I have carefully considered the submissions of the learned counsel for the parties. Under Section 28-A of the Act, any person who intends to have enhancement of compensation on the basis of an award made in respect of lands covered by a common notification, shall have to make an application within three months from the date of the award. Even though the petitioners have pleaded that they have sent their application dated 31-10-1996, they failed to produce proof in support thereof. The initial burden lies on the petitioners to prove this fact, which they miserably failed to. As pointed out by the learned Government Pleader, there is a material discrepancy on the date of the purported application between the lawyer’s notice and the stand taken in the affidavit. Even if this is treated as a mistake as submitted by the learned counsel for the petitioners, in the absence of any proof of sending the application within the time prescribed by Section 28-A of the Act, the oral assertion of the petitioners in this regard cannot be accepted. Furthermore, the petitioners, for inexplicable reasons kept quiet for nearly nine years after the purported application dated 31-10-1996, without moving any of the respondents by asserting their claim for enhancement of compensation. Had the petitioners really made their application on 31-10-1996, their silence for nearly nine years would militate against human conduct. For the above mentioned reasons, I do not find any merit in the Writ Petition and the same is accordingly dismissed. ________________________ Justice C.V. Nagarjuna Reddy Date : 27-6-2011 AM