IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION NO : 13126 of 2004 Between: Guthula Seshagiri Rao S/o Veera Swamy R/o Plot 23, Phase III, Kamalapuri Colony, Hyderabad ..... PETITIONER AND 1 The Collector, East Godavari District, Kakinada 2 The Special Deputy Collector, Land Acquisition for ONGC, Rajahmundry, East Godavari District 3 The Project Manager ONGC., Danavayipeta, Rajahmundry, East Godavari District .....RESPONDENTS Counsel for the Petitioner:MR.A.V.SESHA SAI Counsel for Respondent No.1: AGP FOR LAND ACQUISITION Counsel for Respondent Nos.2 and 3: MR. KAKARA VENKATA RAO The Court made the following : ORDER: At the interlocutory stage, the writ petition itself is taken up for hearing and disposal with the consent of the learned counsel for the parties. This writ petition is filed for a writ of mandamus to direct the respondents to consider the claim of the petitioner for benefits under Section 28-A of the Land Acquisition Act, 1894 (for short ‘the Act’) in terms of decree, dated 06.09.2000 passed by the learned Additional Senior Civil Judge, Rajahmundry, East Godavari District in O.P.No.133 of 1989 as confirmed by this Court by judgment and decree, dated 25.02.2003 in A.S.No.3415 of 2000. Heard Sri A.V.Sesha Sai, learned counsel for the petitioner and Sri K.Venkata Rao, learned Standing Counsel for respondent Nos.2 and 3. The petitioner is one of the landowners whose land admeasuring Acs.2.00 cents comprised in Survey No.197/7-D2 of Rajahmundry Rural, East Godavari District was acquired for the purpose of Oil and Natural Gas Commission operations. A sum of Rs.50,000/- per acre was awarded under Award No.3 of 1988, dated 31.03.1988. The application of the petitioner for reference under Section 18 of the Act was entertained and numbered as O.P.No.134 of 1989 on the file of the learned Subordinate Judge, Rajahmundry, East Godavari District (for short ‘the civil Court’), but the said O.P. was dismissed on the ground that the application for reference was made beyond the period of limitation. However, the application of the petitioner’s mother for reference under Section 18 of the Act was entertained as O.P.No.133 of 1989 in respect of her land and the civil Court decreed the same on 06.09.2000 by enhancing the market value to Rs.80,000/- per acre. The petitioner caused legal notice, dated 24.11.2000 issued to pay the enhanced compensation to him under Section 28-A of the Act. The said notice was replied by respondent No.2 vide his endorsement, dated 05.12.2000 wherein it was mentioned that the decree on the basis of which the petitioner sought for enhancement of the market value was stayed by this Court in the appeal filed by the respondents. The said appeal i.e. A.S.No.3415 of 2000 filed questioning decree, dated 06.09.2000 passed by the civil Court, was dismissed by this Court by judgment and decree, dated 25.02.2003. On the ground that after dismissal of the said appeal the respondents have not paid the enhanced compensation to the petitioner, he filed the present writ petition. Respondent No.2 - the Special Deputy Collector, Land Acquisition for O.N.G.C., filed counter affidavit in which the above-mentioned facts have been admitted. He had, however, averred that since the petitioner unsuccessfully filed his application under Section 18 of the Act, he is not entitled to the benefit of the provisions of Section 28-A of the Act. At the hearing, Sri A.V.Sesha Sai, learned counsel for the petitioner relied on the Constitution Bench judgment of the Supreme Court in Union of India v. Hansoli Devi and others[1] wherein inter alia an identical question was referred to the Constitution Bench by a two-Judge Bench. The two questions, which were referred to, are as follows: 1. (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to ‘not filing an application’ within the meaning of Section 28-A of the Land Acquisition Act, 1894? (b) Whether a person whose application under Section 18 of the Land Acquisition Act, 1894 is dismissed on the ground of delay or any other technical ground is entitled to maintain an application under Section 28-A of the Land Acquisition Act? 2. Whether a person who has received the compensation without protest pursuant to the award of the Land Acquisition Collector and has not filed an application seeking reference under Section 18 is ‘a person aggrieved’ within the meaning of Section 28-A?” Their lordships while considering questions 1(a) and (b) held as under: “…….Bearing in mind the aforesaid principle, let us now examine the provisions of Section 28-A of the Act, to answer the questions referred to us by the Bench of two learned Judges. It is no doubt true that the objection of Section 28-A of the Act was to confer a right of making a reference, (sic on one) who might have not made a reference earlier under Section 18 and, therefore, ordinarily when a person makes a reference under Section 18 but that was dismissed on the ground of delay, he would not get the right of Section 28-A of the Land Acquisition Act when some other person makes a reference and the reference is answered. But Parliament having enacted Section 28-A, as a beneficial provision, it would cause great injustice if a literal interpretation is given to the expression “had not made an application to the Collector under Section 18” in Section 28-A of the Act. The aforesaid expression would mean that if the landowner has made an application for reference under Section 18 and that reference is entertained and answered. In other words, it may not be permissible for a landowner to make a reference and get it answered and then subsequently make another application when some other person gets the reference answered and obtains a higher amount. 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 did not make an application to the Collector under Section 18”. The 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. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28-A cannot be denied. We, accordingly answer Question 1(a) by holding that the dismissal of an application seeking reference under Section 18 on the ground of delay would tantamount to not filing an application within the meaning of Section 28-A of the Land Acquisition Act, 1894. 10. So far as Question 1(b) is concerned, this is really the same question, as in Question 1(a) and, therefore, we reiterate that when an application of a landowner under Section 18 is dismissed on the ground of delay, then the said landowner is entitled to make an application under Section 28-A, if other conditions prescribed therein are fulfilled.” Sri Kakara Venkata Rao, learned counsel for respondent Nos.2 and 3 submitted that though the Supreme Court has not referred to the facts, from the observations contained in the judgment reproduced hereinabove, it appears that the said judgment applies only to cases where the Collector refuses to entertain the applications on the ground of delay and not to cases which were referred to the civil Court and rejected by the Court on the ground of delay. On this premise, he sought to make a distinction between the above-mentioned judgment and the case on hand. In making this submission, the learned counsel relied on the observations of the Supreme Court “But Parliament having enacted Section 28A as a beneficial provision, it would cause grave injustice if a literal interpretation is given to the expression “had not made an application to the Collector under Section 18” in Section 28A of the Act. The aforesaid expression would mean that if the landowner has made an application for reference under Section 18 and that reference is entertained and answered.” I do not find myself in agreement with this construction being given to the above-mentioned observations of the Apex Court by the learned counsel. The words “and answered” are significant. In my considered opinion, these words suggest that the application under Section 18 of the Act is not only entertained, but also adjudicated on merits by the competent civil Court. Rejection of reference on the ground of delay by the Collector does not amount to answering the reference. The expression “reference is entertained and answered” used by the Supreme Court shall necessarily mean that not only that the Collector refers the dispute for reference under Section 18, but also the same is decided by the Court on merits. In using the said expression, if the Supreme Court has intended to extend the bar on making the applications under Section 28 (A) to the persons whose applications were forwarded by the Collector to the Court, but the Court rejected the application on the ground of delay, it would not have used the words “and answered” after the words “reference is entertained”. In my view, the Supreme Court interpreted the words “had not made an application to the Collector under Section 18” in Section 28 (A) of the Act as applicable to the persons, who had either not made an application or whose applications were entertained and were not adjudicated on merits. There is no warrant to confine the expression “had not made an application to the Collector” only to the category of cases where the applications were made and rejected only by the Collector and thereby exclude the category of cases where the Collector forwarded the reference, but the Court rejected the same on the ground of delay. The Supreme Court, having recognized the valuable right of the land owners to seek enhancement of compensation under Section 28 (A), made a liberal instead of a literal construction of the words “had not made an application to the Collector under Section 18” by holding that unless an application made was not only entertained, but was answered, a person, who merely made an application under Section 18, is not barred from applying for re-determination of compensation under Section 28 (A) of the Act. So long as the reference is not answered, it hardly makes any difference whether the Collector refuses to make reference to the Civil Court under Section 18 on the ground of delay or he makes a reference to the Civil Court, but the latter rejects it on the ground of delay. My view that in saying that “the reference is entertained and answered”, the Supreme Court had in mind, the Court and not the Collector who answered reference stands fortified by the expression ‘dismissal’ of an application used in question No.1 (a) and (b). If the Supreme Court intended to confine the expression “entertained and answered” to Collector alone, it would not have used the expression ‘dismissal’ which necessarily connotes that dismissal by the civil Court, because under Section 18, the Collector can either make a reference or refuse to make a reference, but there would be no occasion for him to ‘dismiss’ an application for reference. Thus, the judgment of the Supreme Court, considered with reference to the questions framed by it therein from its proper perspective makes it abundantly clear that unless an application filed by a person under Section 18 was entertained by the Court on reference and dismissed on merits, he is entitled to invoke Section 28(A) notwithstanding the fact that his application under Section 18 was rejected on the ground of delay. In Muraleedharan Pillai v. State of Kerala [2], the Kerala High Court rejected a similar objection as raised by the respondents and held that dismissal of an application filed under Section 18 of the Act as time- barred would not bar the landowner from making an application under Section 28-A of the Act. For the above-mentioned reasons, the writ petition is allowed. Respondent No.2 is directed to consider the application of the petitioner on merits in terms of order and decree, dated 06.09.2000 in O.P.No.133 of 1989 on the file of the Additional Senior Civil Judge, Rajahmundry, East Godavari District as confirmed by judgment and decree, dated 25.02.2003 in A.S.No.3415 of 2000, within a period of eight (8) weeks from the date of receipt of a copy of this order. C.V.NAGARJUNA REDDY, J 23rd June, 2008. Note: L.R.Copy to be marked. kvni [1] (2002) 7 SCC 273 [2] 2004 ALT (DN OHC)