*THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY +W.P No.14743 OF 2005 % 14-08-2008 # P. Nageswara Rao & another. … Petitioners Verses $ Govt., of A.P., rep., by its Special Tahsildar, Land Acquisition, PWD Scheme, Machilipatnam, Krishna District & another. … Respondents !Counsel for the petitioners: Sri G. Vidya Sagar ^Counsel for the respondents: GP for Land Acquisition. <Gist: >Head Note: ? Cases referred: 1. AIR 2002 SC 3240 2. (1991) 1 SCC 174 3. (1986) 4 SCC 151 4. (1996) 1 SCC 88 5. (1996) 5 SCC 164 6. Air 1995 SC 2259 7. (1996) 6 SCC 746 8. (2001) 4 SCC 404 9. AIR 2002 SC 3240 10. (2004) 7 SCC 753 11. (2006) 4 SCC 538 12. (1996) 1 SCC 85 13. AIR 1997 SC 1793 14. (1989) 2 SCC 754 15. 1995 Supp (2) SCC 679 16. (1975) 4 SCC 714 17. (1998) 6 SCC 720 18. (2006) 4 SCC 322 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTEENTH DAY OF AUGUST, TWO THOUSAND EIGHT ONLY PRESENT: THE HON’BLE MR. JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14743 of 2005 Between: P. Nageswara Rao. & another. … Petitioners AND Govt., of A.P., rep., by its Special Tahsildar, Land Acquisition, PWD Scheme, Machilipatnam, Krishna District & another. … Respondents Counsel for the petitioners : Sri G. Vidya Sagar Counsel for the respondents : GP for Land Acquisition This Court made the following: THE HON’BLE SRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.14743 of 2005 ORDER:- The short question that arises for consideration in this writ petition is whether the expression ‘Court’ in Section 28A(1) of the Land Acquisition Act, 1894 (for short, ‘the Act’) includes the appellate Court for the purpose of computing the period of three months for applying to the Collector for re-determination of the amount of compensation? Petitioner No.2 is the nephew of petitioner No.1. Late Pentakoti Kondaiah son of Apanna is the father of petitioner No.1. The lands standing in the name of the father of petitioner No.1 and others and comprised in R.S.Nos.19/22, 19/23, 19/24, 19/33 and 19/34 of Mankollu Village, Chatrai Mandal, Krishna District, were acquired under the provisions of the Act and diﬀerent awards were passed on 04.02.1975, 19.02.1975 and 13.03.1975 by the Special Tahsildar, Land Acquisition, Nuzividu. Some of the land owners covered by the said notiﬁcations got the issue relating to quantum of compensation referred to the Court of Subordinate Judge, Gudivada, under Section 18 of the Act and registered as O.P.Nos.46/77 to 49/77 and 51/77 to 73/77. The said O.Ps., were disposed of by enhancing the compensation (neither of the parties gave the speciﬁc dates on which the O.Ps., were disposed of). Not being satisﬁed with the enhancement made by the reference Court, some of the awardees ﬁled A.S.No.1370 of 1981 in this Court. In the counter aﬃdavit ﬁled by the Special Tahsildar, Land Acquisition, PWD Scheme, Machilipatnam, Krishna District, it is averred that Pentakoti Kondaiah, father of petitioner No.1, ﬁled A.S.No.494 of 1981 and in the said appeal some awardees ﬁled cross-objections. It is further stated that in respect of Award No.4 of 1975 the father of petitioner No.1, Surisetti Venkanna and K. Lakshmana Rao were the awardees in respect of Ac.75.00 cents in R.S.No.19 as they have jointly purchased the property with equal shares, that his two major sons gave their consent for payment of compensation to their father, who, while not accepting the rates ﬁxed by the Land Acquisition Oﬃcer, has not adduced any evidence for awarding higher compensation and hence, the award was passed as proposed by the Land Acquisition officer. Later, the appeals ﬁled by some of the awardees were disposed of by this Court by judgment dated 04.03.1986, wherein compensation was further enhanced. During the pendency of the appeals in this Court, Section 28A of the Act was introduced by Amendment Act 68 of 1984, which provides for re- determination of the amount of compensation on the application ﬁled by a person, who is aggrieved by the award of the Collector, but has not made an application to him to re-determine the compensation on the basis of the award of the Court passed in respect of other lands covered by the same notiﬁcations, if such an application is ﬁled within three months from the date of the award of the Court. The petitioners pleaded that on coming to know about the enhancement of compensation by this Court in A.S.Nos.366 and 367 of 1981 and batch, they applied for certiﬁed copy of the orders on 05.11.1988 and on receipt of the same on 07.11.1988, they made representations on 28.11.1988 to the Special Tahsildar, Land Acquisition, Machilipatnam and that the said representations were received by him on 01.12.1988. The petitioners further claimed that they made another representation on 16.09.1989 for re- determination of compensation. They further pleaded that the Special Tahsildar, vide endorsement dated 12.04.1994, rejected the applications of some of the applicants, that feeling aggrieved by the said endorsement, Sri R.V.S. Jagan Mohan Rao and four others ﬁled WP.No.22661 of 1994 in this Court, that as the petitioners did not get any reply from the Special Tahsildar, they did not ﬁle a similar writ petition. The petitioners further pleaded that they have also made a representation on 19.02.2004, wherein they brought to the notice of the Special Tahsildar about the Judgment of the Five Judges Bench of the Supreme Court in Union of India and another vs. Hansoli Devi and others[1], that on 16.07.2004, WP.No.22661 of 1994 ﬁled by Sri R.V.S. Jagan Mohan Rao and four others was allowed by this Court by holding that the applications ﬁled by them were well within the time prescribed under law and directed the respondents to make a reference, that as there was no action in respect of the petitioners’ applications, they ﬁled an application before the Lokayukta and Upa-Lokayukta complaining of discrimination and the said institution issued notice dated 15.10.2004 to the respondents in response to which the Special Tahsildar vide his letter dated 27.07.2005 communicated that under Award No.4 of 1975 a sum of Rs.65,804=46 paise was paid towards compensation to the father of petitioner No.1. The petitioners averred that the reasoning of the Special Deputy Tahildar that they are not the beneﬁciaries under the award was incorrect, as they were joint owners along with Sri P. Kondaiah. While the said proceedings before the Lokayukta were pending, the petitioners ﬁled the present writ petition for a writ of Mandamus to declare the inaction of the respondents in re-determination of compensation under Section 28A of the Act in pursuance of representation dated 28.11.1988. At the hearing, Sri G. Vidyasagar, learned counsel for the petitioners submitted that Section 28A of the Act is a beneﬁcial provision, which is required to be construed liberally, that though the award was passed by the reference Court in the year 1975, in view of pendency of the appeals in this court, the period of limitation prescribed in Section 28A does not stop running until the disposal of the appeals and that the word ‘Court’ mentioned in Section 28A shall be construed as an appellate Court as well. He further contended that as the petitioners applied for re- determination immediately after obtaining certiﬁed copy of the judgment in appeals, their applications shall be treated to have been ﬁled within the prescribed time. In support of his submission, the learned counsel placed reliance on order dated 16.07.2004 of this Court in R.V.S. Jagan Mohan Rao and others vs. Special Tahsildar, Land Acquisition and another (WP.No.22661 of 1994). The learned counsel also placed reliance on the judgments of the Supreme Court i n Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda vs. Union of India and others[2], Mewa Ram vs. State of Haryana[3], Jose Antonio Cruz Dos R. Rodrigueses and another vs. Land Acquisition Collector and another[4], Hukum Chand and others vs. State of Haryana and others[5], Union of India and another vs. Pradeep Kumari and others[6], Jose Antonio Cruz Dos R. Rodriguese and another vs. Land Acquisition Collector and another[7], Union of India and another vs. Hansoli Devi and others[8], Union of India and another vs. Hansoli Devi and others[9], Des Raj vs. Union of India and another[10] and Union of India vs. Munshi Ram[11]. Opposing the contentions of the learned counsel for the petitioners, learned Assistant Government Pleader stated that the word ‘Court’ mentioned in Section 28A of the Act shall be interpreted in the light of the deﬁnition of ‘Court’ in Section 3(d) of the Act, which is the Principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a Special Judicial Oﬃcer within any speciﬁed local limits to perform the functions of the Court under the Act. She further contended that admittedly the petitioners failed to apply for re-determination within the time prescribed under Section 28A from the date of the award of the reference Court and therefore their applications are hopelessly barred by limitation. In support of her contention, she relied on the judgments of the Supreme Court in D.Venkamma and others vs. Special Tehsildar (LA) Unit-IV, Janagareddigudem, W.G. District, Elugu, A.P. [12] a n d Smt. Bhagti (Deceased) through her L.Rs., Jagdish Ram Sharma vs. State of Haryana[13]. To appreciate the rival contentions of the learned counsel, it is necessary to notice the deﬁnition of ‘Court’ in Sections 3(d) and 28A, which are reproduced below: “3(d) the expression ‘Court’ means a Principal Civil Court or original jurisdiction, unless the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial oﬃcer within any speciﬁed local limits to perform the functions of the Court under this Act. 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. 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.” In D.Venkamma (12 supra) an identical issue fell for consideration of the Supreme Court. In that case Land Acquisition Oﬃcer passed award on 31.10.1981. Some of the land owners got the reference made under Section 18 of the Act and the Civil Court by its award and decree dated 21.11.1983 enhanced the compensation. In the appeal ﬁled by the State and cross-objections ﬁled by the land owners, the High Court further enhanced the compensation by its judgment and decree dated 01.02.1989. The land owners are not parties to the proceedings before the reference Court and the High Court. One such land owner ﬁled his application on 16.05.1989 i.e., after the disposal of the appeal and cross-objections by the High Court for re-determination of the compensation. The Land Acquisition Oﬃcer rejected the said application by his order dated 01.06.1991. In the writ petition ﬁled by the land owner, a learned Single Judge directed re-determination of the compensation and the Division Bench reversed the said order on appeal and the land owner approached the Supreme Court with a Special Leave Application. After granting leave, the Supreme Court aﬃrmed the judgment of the Division Bench. It held that in view of the deﬁnition of ‘Court’ in Section 3(d) of the Act, the Court of original jurisdiction which receives an order of reference pursuant to an application made under Section 18 is the Civil Court of original jurisdiction and that by necessary implication, judgment of an appellate Court made under Section 54 of the Act does not give right or cause of action to make an application under Section 28A of the Act. In arriving at the said conclusion, the Supreme Court relied on the Constitution Bench Judgment in Union of India vs. Raghubir Singh[14] which considered the expression “any such award” occurring in Section 30(2) of the Act as not including judgments in appeals of the High Court and the Supreme Court. The Supreme Court also considered and placed reliance on its earlier judgment i n State of Punjab vs. Raghbir Singh[15] which bears identical facts. The Supreme Court in that case turned down the similar contention and held that an application under Section 28A has to be made only on the basis of the award and decree of the reference Court on a reference under Section 18, but within the limitation prescribed under proviso to Section 28A (1) and it further held that an application ﬁled after the disposal of the appeal by the High Court was not within the period of limitation. The view taken in D. Venkamma (12 supra) is reiterated by the Supreme Court in Smt. Bhagti (13 supra), which was also a case involving identical facts. In paragraph 6, the Supreme Court held as under: “Thus only those claimants who had failed to apply for a reference under Section 18 of the Act are conferred with the right to apply for re-determination under Section 28A (1). But all those who had not only sought a reference under Section 18 but had also ﬁled an appeal in the high Court against the award made by the reference Court are not entitled to avail of the remedy under Section 28-A. Equally, the right and remedy of re- determination would be available only when the reference Court under Section 18 has enhanced the compensation in an award and decree under Section 26. Within three months from the date of the reference Court excluding the time taken under proviso, the applicant whose land was acquired under the same notiﬁcation but who failed to avail the remedy under Section 18, would be entitled to avail the right and remedy under Section 28A. The order and judgment of the High Court does not give such right. Thus, this Court held that Section 28A does not apply to an order made by the High Court for re-determination of the compensation. Thus, we hold that the question of reference to the Constitution Bench does not arise. The claimants are not entitled to make an application for re- determination of compensation under Section 28-A(1) after the judgment of the High Court; nor are the claimants entitled to avail of that award which is more beneﬁcial to the claimants, i.e., the High Court judgment.” (Emphasis added) The above two judgments thus resolve the issue raised in this writ petition beyond any pale of doubt. Admittedly, the reference Court passed its award and decree in the year 1975. Signiﬁcantly, at that time Section 28-A was not in existence as the same was introduced in the year 1984 by the Amendment Act 68 of 1984. There is nothing, which suggests that the said provision is retrospective in its operation or that it applies to appeals pending at the time of coming into force of the said provision. It is only during the pendency of the appeals ﬁled against the award of the reference Court that the said provision was introduced. Therefore, there was no question of the petitioners claiming any right of re-determination. However, Sri G. Vidyasagar, learned counsel for the petitioners placed heavy reliance on the judgment of the Supreme Court in Union of India (11 supra). The learned counsel relied on the reasoning of the Supreme Court that the decree of the reference Court shall be understood to mean the decree of the reference Court as modiﬁed in appeal by the higher Courts and contended that applying the same analogy, the award of the Court referred to in Section 28A shall be construed as the award of the appellate Court as well for the purpose of computing the period of three months. In my considered view, this contention is wholly misconceived. In Union of India (11 supra) on the basis of the award of the reference Court, the Collector re- determined the compensation in respect of those who did not seek reference, by applying Section 28-A of the Act. In the appeals ﬁled by the Union of India against the award of the reference Court, the High Court modiﬁed the award and in the SLPs ﬁled by it, the Supreme Court further modiﬁed the award by reducing the compensation. A question arose before the Supreme Court as to whether the modiﬁed award should be applicable to the persons in whose favour compensation was re-determined under Section 28-A or not. By holding that such modiﬁed award shall be made applicable to the said persons as well, the Supreme Court observed that Section 28A of the Act seeks to confer the beneﬁt of enhanced compensation even on those owners, who did not seek a reference under Section 18, that those who secure a certain beneﬁt by reason of others getting such beneﬁt cannot retain that beneﬁt, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent and that it would be rather inequitable and unfair if such beneﬁt is allowed to be retained. In that context, the Supreme Court observed that if compensation payable to claimants under Section 28A, is the enhanced compensation decreed by the reference Court, the decree must be understood to mean the decree of the reference Court as modiﬁed in appeal by the higher Courts and that otherwise an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference under Section 18 would get a higher compensation than the one who challenged the award of the Collector and claimed a reference, but in whose case a higher compensation determined by the reference Court was subsequently reduced by the superior Court. One fails to understand how this judgment would help the petitioners. The issue raised before the Supreme Court and decided by it is entirely diﬀerent from the one arising in this case. This judgment is therefore wholly inapplicable to the case on hand. In Des Raj (10 supra) relied on by the learned counsel for the petitioners, several land owners got the compensation enhanced by the reference Court under Section 18 proceedings. The said compensation was further enhanced by the High Court in the appeals ﬁled by them. Out of the appeals before the High Court only one person approached the Supreme Court, which remanded the case to the High Court with certain observations to re-determine the compensation. Long thereafter, some of the other persons, who were the appellants in the High Court, sought for review of its earlier judgment on the ground that the person who approached the Supreme Court has got higher rate of compensation. As the High Court dismissed the review petitions, they ﬁled Special Leave Petitions in the Supreme Court, which were dismissed by the Supreme Court by observing that the beneﬁt of Section 28A of the Act is available only to the parties, who had not sought reference under Section 18 of the Act for enhancement of the compensation, that the said provision is not available to the persons, who seek reference under Section 18 of the Act for enhancement of compensation and do not challenge the judgment of the reference Court or the judgment of the High Court thereafter. In my opinion, this judgment bears no similarity to the facts of this case and the same is therefore of no assistance at all to the petitioners. I have carefully gone through the other judgments of the Supreme Court cited by the learned counsel for the petitioners referred to above and I have no doubt whatsoever that in none of those judgments, the Supreme Court laid down any proposition diﬀerent from the ratio laid down by the Supreme Court in D. Venkamma (12 supra) and Smt. Bhagti (13 supra). I have also gone through the order of the learned Single Judge in WP.No.22661 of 1994 (R.V.S. Jagan Mohan Rao, supra) on which the learned counsel for the petitioners placed heavy reliance. In the said order, the learned Judge held that the applications made after the disposal of the appeals by the High Court were within time. But a perusal of the said order discloses that no speciﬁc discussion is undertaken on the issue raised in this writ petition, much less, any of the abovementioned judgments have been discussed. The said order being contrary to the settled legal proposition laid down by the Supreme Court in the abovementioned judgments, the same cannot be made basis for granting relief to the petitioners. From the discussion undertaken above, the conclusion is inevitable that the petitioners are not entitled to seek re-determination of compensation under Section 28A of the Act, as they did not and could not have ﬁled their applications within the period of three months from the date of the award of the reference Court. As their applications were beyond the time limit of three months from the date of the award of the reference Court, they are barred by limitation. While the ﬁnding rendered above is suﬃcient to throw out the writ petition, there is another interesting aspect, which requires to be noticed. Assuming that the limitation for applying for re-determination will not start to run till the disposal of the appeals ﬁled against the award of the reference Court, on the facts pleaded by the petitioners, they are barred by limitation. Even according to the petitioners, the appeals were disposed of by this Court on 04.03.1986. They claim to have applied for certiﬁed copies of the judgment on 05.11.1988, obtained the same on 07.11.1988 and sent representations on 28.11.1988. The very fact that more than 2 ½ years elapsed from the date of disposal of the appeals even by the time they applied for certiﬁed copies completely exposes the hollowness of the petitioners’ claim that they ﬁled their applications within the period of limitation, if date of disposal of the appeal is reckoned for the purpose of computing the period of three months prescribed in proviso to Section 28A of the Act. In the said provision the time taken for the certiﬁed copy alone is required to be excluded while computing the period of 90 days. The petitioners cannot sleep over the matter without even applying for a certiﬁed copy for more than 2 ½ years and still claim that they ﬁled their applications within time. Apart from the fact that they could not ﬁle their applications within the prescribed time limit even after disposal of the appeals, the petitioners have gone in hibernation after they made their representations on 01.12.1988 and 16.09.1988 till the year 2004 when they approached the Lokayukta and they leisurely ﬁled the present writ petition in the year 2005. The law is well settled that this Court, which exercises discretionary