IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8447 of 2008 Nagendra Thakur, son of Late Jitu Thakur, village Musachak, PS Bairgania, Dist. Sitamarhi – Petitioner. Vs. 1. The State of Bihar, 2. The Director, Land Acquisition & Rehabilitation, Water Resources Dept. Bihar, Patna. 3. The Collector, Sitamarhi. 4. The Special Land Acquisition Officer, Gandak Project, Muzaffarpur – Respondents. 6 6.7.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. In this writ petition the petitioner has challenged the order, dated 29.7.2004 passed in Land Acquisition Case No. 4/28- 11/2003 passed under section 28-A of the Land Acquisition Act (‘the Act’, hereinafter). By this order the Collector, Sitamarhi has rejected the application under section 28-A on the ground that the petitioner had filed an application under section 18 of the Act. The facts of the case are that the Collector prepared an award with respect to the lands and issued a notification under section 11 of the Act on 5.6.1998. Some of the land holders filed an application before the Collector under section18 for reference of the matter to the Land Acquisition Judge for the purpose of deciding the actual value of the land. In the mean time Jeewesh Prasad and the petitioner also filed an application under section 18 of the Act. However, it appears from Annexure 2 that no case was instituted although it is claimed that the matter was forwarded to the Land Acquisition Judge to institute a case. The Land Acquisition Judge prepared an award enhancing the amount on 7.6.1993. The State 2 preferred a First Appeal against the aforesaid judgment of Land Acquisition Judge which was ultimately dismissed. The petitioner filed an application on 3.9.1993 under section 28-A of the Act for re-determination of the compensation amount on the basis of the award of the court. The Collector instead of determining the amount of compensation on the basis of the award granted by the court, rejected the application on 29.7.2004 holding that the matter had been referred under section 18 of the Act to the Land Acquisition Judge. Learned counsel for the petitioner submits that in similar circumstances one Jeewesh Prasad had filed an application under section 28-A of the Act. It is stated that Jeewesh Prasad had also filed an application under section 18 along with this petitioner before the Collector who entertained the application of Jeewesh Prasad and allowed him the compensation amount as fixed by the Land Acquisition Judge whereas in the case of the petitioner, the application was rejected on frivolous ground. Section 28-A of the Act envisages that where an award is prepared by the court in excess of the amount awarded by the Collector under section 11, the persons interested in all other lands covered by the same notification under section 4(1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application under section 18 by a written application to the Collector within three months from the date of award of the court required any amount of compensation made to 3 them may be re-determined on the basis of the amount of compensation awarded by the Collector. Learned counsel for the State, on the other hand, submits that the petitioner has a remedy under sub-section (3) of section 28-A of the Act, and if he makes an application under section 18, against the order passed by the Collector rejecting his claim, the Collector would refer the same for a decision to the Land Acquisition Judge who is Incharge of such case. It is also stated on behalf of the State that the petitioner ought to have filed an application within a period of three months. The State counsel has also raised objection at this stage to the fact that this writ petition has been filed after delay of four years. In my view, this objection if at all should have been raised on the first date on which this matter was heard i.e.23.4.2009. Besides this, the petitioner who is a poor man has been running to this court and had to file two writ petitions, before the Collector thought it fit to dispose of the application under section 28-A of the act. Therefore, the submissions made on behalf of the State, in my view, is not sustainable. Dealing with the second objection first, it is submitted on behalf of the petitioner that he filed the objection on 3.9.1993 under section 28-A of the Act whereas the award was passed on 7.6.1993. Therefore, it cannot be said that his application was time barred. Besides this, it is submitted that this question was raised in two earlier writ petitions filed by the petitioner before this court seeking a direction that the Collector should dispose of the application under 4 section 28-A which has been considered by this Court and rejected. Therefore, this issue (i.e. of delay) is no longer important for the purpose of disposing of this writ petition. The objection of the State that the remedy available to the petitioner is by filing a petition for reference under section 18 of the Act, in my view, is not correct. Sub-section (2) of section 28-A clearly envisages that the Collector on receipt of application under sub-section (1) shall conduct an enquiry giving notice to all persons and affording them a reasonable opportunity to be heard and make an award determining the amount of compensation payable to the applicant. In the case in hand the Collector has not considered the question of payment of compensation or prepared an award, but has rejected the application under misconceived conception that the petitioner’s remedy would be by way of filing an application under section 18 of the Act. I may state here that stand of the State is that the petitioner had filed an application under section 18 of the act as far back as in 1986 and now the Collector insists that the petitioner should again at this belated stage file an application under section 18. The application under section 18 of the Act as envisaged under sub-section (3) of section 28-A could have been filed if the Collector had made an award under sub-section (2) of section 28-A. Therefore, it is the duty of the Collector to consider the fact that the land Acquisition Judge has already enhanced the compensation amount and payments have been made in compliance of the order of the Land Acquisition Judge 5 to all the interested persons under section 4(1) of the Act who had appeared and claimed compensation in the present Land Acquisition proceeding. I see no reason why the Collector should take a different view in the case of the petitioner. In the circumstances I direct that the Collector ought to pass an order under sub-section (2) of section 28 of the Act within a period of 3 months from the date of receipt of a copy of this order. In the result, this writ petition is allowed with the aforesaid observations and directions. haque (Sheema Ali Khan, J.)