THOMAS Vs. DISTRICT COLLECTOR

JUDGEMENT

(1.) BOTH these Original Petitions are filed challenging the orders passed by the second respondent Special Tahsildar refusing to accept the applications filed under S. 28a of the Land Acquisition Act. BOTH these cases the petitioners grievance is that the land acquired by them is similar to the land which is a subject matter in LAR 289/94. Enhanced compensation has been given in that case. The Tahsildar rejected the applications saying that an appeal is pending against the judgment in LAR 289/94. No notice was given to the petitioners for hearing of the application. The petitioners further submit that the appeal filed against the judgment in LAR 289/94 has been dismissed. Under S. 28a of the Land Acquisition act, a person who has not filed the reference application is entitled to re-determine of the amount of compensation on the basis of the award passed by the Court with regarding to property including in the Notification. Going by that if the property involved in LAR 289/94 is included in the same notification, the petitioners are entitled to enhance the compensation. The Tahsildar has taken the view that under R. 12a (v)of the Land Acquisition Rules, 1990, no application under S. 28a shall be entertained when a land acquisition appeal case is pending before a Court. So far as the present case is concerned, it is now stated that the appeal filed has been dismissed. But even without ascertaining that the reference application under S. 28a has been dismissed on the basis of clause (v) of R, 12a, I am of the view that Clause (v) of R. 12a of the Land Acquisition Rules, 1990 is invalid and is ultra vires. What is guaranteed under S. 28a of the Act is that a person who has not filed the reference application will be entitled to same compensation as that is given toa property covered by the same Notification and for which the enhanced value has been given by the Land Acquisition Court . As per S. 28a a period of 3 months is prescribed for filing the application under S. 28a. The Section does not give any power to dismiss the application on the ground that an appeal is pending. Such a Rule I am of the view is arbitrary. Merely because of an appeal is fifed it does not mean that the award passed by the Sub Court has been set aside. In the fact's of the present case, it is seen that the appeal has been dismissed. Thus the injustice done in the applications can be seen in the facts of the case itself. In such circumstances, I am of the view that when an appeal is pending, the course open to the authority is to pass an award making it subject to the final orders to be passed in the appeal and if the awardee insists on payment of the amount, the amount can be paid after getting security. To deny the benefit of S. 28a to a person on the ground that appeal is pending is arbitrary and unconstitutional. So far as this case is concerned, it is now stated that the appeals have been dismissed. Hencei direct the second respondent, the Special Tahsildar (LA), Vyttila to reconsider the application under s. 28a of the Land Acquisition Act and pass appropriate orders regarding compensation. Such orders shall be passed within a period of two months from the date of receipt of a copy of this judgment The Original Petitions are disposed of as above.