IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 04.08.2011 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.19386 of 2009 Chennimalai Gounder @ Chenniappa Gounder (decased) C.S.Subbulakshmi (Petitioner substituted as LR's in the place of the deceased petitioner vide court order dated 07.04.2011 in M.P.No.1 of 2011 in W.P.No.19386 of 2009) .. Petitioner Vs. 1.The State of Tamil Nadu, Rep. District Collector, Erode District, Erode. 2.Revenue Divisional Officer, Erode. 3.The Special Tahsildar (I.A) Land Acquisition, Erode Neighbourhood Scheme, Erode. 4.The Executor Engineer, Erode Housing Unit, Erode. .. Respondents Prayer : This Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Certiorarified Mandamus directing to call for the records pertaining to the order dated 06.04.2009 passed by second respondent and quash the same and direct the first respondent herein to enhance the compensation amount to Rs.6/- per square feet regarding petitioner' in consonance with the award passed by the Tribunal / I Additional Sub Judge Erode in L.A.O.P.No.5/89 dated 06.04.2005. For Petitioner : Mr.M.Guruprasad For respondents 1 to 3 : Mr.K.V.Dhanapalan, AGP., For respondent - 4 : Mr.D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner has filed this writ petition, challenging the order passed by the second respondent / Revenue Divisional Officer under Section 28-A of the Land Acquisition Act (in short "the Act") refusing, to re-determine the compensation. 2. The case of the original petitioner is that he owned lands measuring an extent of 0.54.5 Hectares in R.S.No.517/5 of Periya Semur Village and the same was acquired by the respondents 2 and 3 for the purpose of constructing houses. The acquisition proceedings was unsuccessfully challenged upto the Hon'ble Supreme Court. Therefore, the acquisition proceedings attained finality. 3. As far as the compensation is concerned, Rs.33,964/- per acre was determined by the third respondent, by virtue of an order dated 23.09.1986. In respect of neighbouring property comprised in R.S.No.523/1 and 523/2, which was also covered under the same Land Acquisition Act, an award was passed by the Special Tahsildar. A reference under Section 18(1) of the Land Acquisition Act was made by the owners of the said land before the First Additional Sub Court, Erode in L.A.O.P.No.5 of 1989 and the said Court after contest enhanced the award amount from Rs.33,964/-. per acre. to Rs.6/- per sq.ft by decree dated 06.04.2005. 4. In view of the change of circumstances, on 30.06.2005, the original writ petitioner filed an application before the first respondent under Section 28-A of the Act to re-determine of the award amount payable to the land owners, in consonance with the award passed in a L.A.O.P.No.5 of 1989, which was passed at the instance of the neighbouring land owners. 5. However, due to some typographical error in the application dated 30.06.2005 S.No.517/5 was wrongly given as R.S.No.517/4 instead of 517/5 and the same was sought to be rectified and the extent was also wrongly shown as 0.50.0 instead of 0.54.5 Hectares. The said rectification application was filed on 16.04.2007. Pursuant to the direction, issued by this Court, in Writ Petition No.4438 of 2009, the impugned order was passed on 06.04.2009 rejecting the petitioner's claim made under Section 28-A of the Act stating that the land comprised in S.No.517/4 is not the subject matter of the acquisition and it does not belong to the writ petitioner. The said order is challenged before this Court. Pending disposal of the writ, the original writ petitioner died and his *daughter was brought on record as legal heir *of him. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel for the petitioner submitted that due to typographical error a wrong extent and wrong survey number were given in the application under Section 28-A and subsequently, a rectification petition was also filed and without considering the said rectification petition, the second respondent passed the rejection order dated 06.04.2009. He relied upon a judgment of the Jharkhand, High Court in Raghu Sao and others Vs. Union of India and others reported in AIR 2006 Jharkhand 70. 7. Heard the learned counsel for the petitioner and the learned counsel for the respondents and perused the records. 8. There is no dispute with regard to the acquisition of the petitioner's property. A perusal of the award, dated 23.09.1986, would show that the petitioner's property, measuring an extent of 0.54.5 Hectares comprised in S.No.517/5 was acquired and Section 4(1) notification, dated 29.07.1981, and the third respondent awarded a sum of Rs.33,964/- per acre. However, the very same award, dated 23.09.1986, also covered a neighbouring land comprised in R.S.No.523/1 and 523/2, belonging to one Gurusamy Gounder, which was also covered by the same notification. The said Gurusamy Gounder filed reference under Section 18 of the Land Acquisition Act before the Civil Court for enhancement and a decree was passed by the First Additional Sub Court, Erode under Section 18(1) of the Act, enhancing the compensation and fixing the compensation at Rs.6/- per sq.ft instead of Rs.33,964/- per acre. Therefore, the petitioner gave a petition under Section 28-A of the Land Acquisition Act for re-determination. Section 28-A of the Land Acquisition Act reads as follows:- " 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 under section 11, 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 re-determined on the basis of the amount of compensation awarded by the Court: https://hcservices.ecourts.gov.in/hcservices/ Provided that in computing the period of three months within which an application to the Collector shall be made under this subsection, 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." 9. Hon'ble Chief Justice M.Yusuf Eqbal delivered the judgment in Jharkhand High Court in Raghu Sao and others Vs. Union of India and others reported in AIR 2006 Jharkhand 70, wherein his Lordship clearly held that Section 28-A was incorporated in the Act to give the same benefits to poor people who by reason of their poverty and ignorance failed to apply for reference to the Civil Court. Paragraphs 4,5 and 6, reads as follows: " 4. From bare perusal of the aforesaid provision, it is manifestly clear that the persons whose lands have been acquired by the same notification under Section 4 of the Act and who are aggrieved by the award of the Collector may approach the court for re-determination of the compensation on the basis of the award passed by Land Acquisition Judge in favour of other persons whose lands have been acquired by the same notification. The only condition put in the said section is that persons who seek benefits of Section 28A of the Act must not have made an application to the Collector under Section 18 of the Act. 5. Section 28A of the Act has been inserted in the Act with sole object to give same benefits to the poor people who by reason of their poverty https://hcservices.ecourts.gov.in/hcservices/ and ignorance have failed to take advantage of the right of reference to the Civil Court under Section 18 of the Act. 6. In the instant case, as noticed above, the Land Acquisition Judge in his order dated 20.06.2005 has held that no valid reference under Section 18 of the Act was made on behalf of these petitioners and, therefore, their petitions were rejected as not maintainable. In my opinion, therefore, benefit of Section 28A is also available to those persons whose petition under Section 18 has not been considered by the Land Acquisition Judge on the ground inter alia that no valid reference was made by the Collector. Admittedly, by the same notification chunk of lands belonging to different persons including petitioners have been acquired. The compensation amount determined by the Collector has been enhanced by the Land Acquisition Judge in favour of those persons on whose behalf valid references were made. Petitioners have been deprived of the same compensation because of the fact that the application of these petitioners were not validly referred by the Collector. In such situation, in my considered opinion, the collector is bound to consider the case of the petitioners under Section 28A of the Act and re- determine the compensation in the light of the Award passed by the Land Acquisition Judge." 10. The above judgment squarely applies to this case. In the present case, a similarly placed person as that of the petitioner i.e., Gurusamy Gounder, was awarded enhanced compensation as per the award passed in L.A.O.P.No.5 of 1989. Lands of both the persons are covered by same notification and award. Therefore what has been given to Gurusamy Gounder should be given to the petitioner. 11. As far as the rejection on the ground that wrong survey numbers and extents are concerned, it was specifically stated by the petitioner in the amended petition that the extent was wrongly mentioned as 0.50.0 instead of 0.54.5 Hectres and the survey number as 517/4 instead of 517/5. The impugned order passed by the second respondent, dated 06.04.2009, would show that the land acquired from the petitioner is to the extent of 0.54.5 comprised in S.No.517/5. More over the award dated 23.09.1986 also speaks about the aforesaid petitioner's property. Therefore, the second respondent admitted about the extent and survey number of the property. When that is the position, the second respondent should have allowed the petitioner's claim, considering rectification petition which gives the correct https://hcservices.ecourts.gov.in/hcservices/ extent and survey number and should not have rejected on the above said grounds. 12. In view of the facts supported by records, the impugned order is not sustainable and the same is quashed and the respondents are directed to enhance the compensation amount of Rs.6/- per sq.ft in respect of the land acquired from the petitioner viz 0.50.0 Hectares comprised in S.No.517/5 in consonance with the award passed in LAOP.No.5/1989, on 06.04.2005, on the file of First Additional Sub Judge, Erode and pay the same to the petitioner within a period of twelve weeks from the date of receipt of a copy of this order. 13. With the above direction, this writ petition is allowed. No costs. Sd/- Asst. Registrar 21.10.2011 *Corrected as per order of this Court dt.10.11.2011 in W.P.No.19386 of 2009 sd/- Assistant Registrar 24.11.2011 /true copy/ Sub Asst. Registrar. adl To 1.The District Collector, The State of Tamil Nadu, Erode District, Erode. 2.The Revenue Divisional Officer, To be substituted the order Erode. already despatched on 2.11.2011 3.The Special Tahsildar (I.A) Land Acquisition, Erode Neighbourhood Scheme, Erode. https://hcservices.ecourts.gov.in/hcservices/ 4.The Executor Engineer, Erode Housing Unit, Erode. 1 cc to The Govt. Pleader, SR 48010 1 cc To Mr.M.Guruprasad, Advocate Sr *68384 W.P.No.19386 of 2009 trm[co] gp/28.10 SRA(28/11/2011) https://hcservices.ecourts.gov.in/hcservices/