K M ABDUL RAHIMAN Vs. SPECIAL TAHSILDAR

JUDGEMENT

(1.) Lands belonging to the petitioners were acquired and award dated 17-9-2000 was passed. The petitioners did not make an application before the Land Acquisition Officer for a reference under Section 18 of the Act. However, reference was made at the behest of some other persons whose lands were acquired under the same notification and for the same purpose. As per judgment dated 29-11 -2004 in LAR Nos. 32/2001, 59/2001 and 62/2001 and other connected cases, Sub Court, Kasargod enhanced the land value. Thereupon the petitioners submitted Ext. P2 application dated 28-2-2005 under Section 28A of the Land Acquisition Act. It is stated that along with an application a photo copy of the judgment in LAR No. 32/2001 and connected cases was produced. Ext. P3 acknowledgment card evidences receipt of Ext. P2 application on 1-3-2005. It is further stated that the first respondent Special Tahsildar (Land Acquisition) returned Ext. P2 application on the ground that certified copy of the judgment in LAR was not produced. Thereafter the petitioners submitted an application along with certified copy of the judgment on 17-3-2005 which is acknowledged as per Ext. P4 acknowledgment card dated 18-3-2005. Since the application filed under Section 28A was not disposed of, the petitioners filed W.P.(C) No. 9470 of 2006 which was disposed of as per Ext. P5 judgment directing the first respondent to dispose of the application filed by the petitioners under Section 28A of the Act. Thereafter, the first respondent passed Ext. P6 order rejecting the application under Section 28A holding thus:

(2.) One of the reasons stated for rejecting the application is that an appeal is pending against the decision of the reference court in one of the cases and that in respect of two other cases proposals have already been sent to the District Collector for filing appeal. In Baburam v. State of U.P., 1995 2 SCC 689 , Supreme Court that when an appeal is pending against the decision of the reference court, the Land Acquisition Officer shall keep the application filed under Section 28A pending awaiting the decision of the appellate Court. In paragraph 39 of the judgment it was held thus:

(3.) If an application under Section 28A were to be rejected on the ground that appeal is pending against the decision of the reference court, the applicant would have to make a constant watch of the proceedings before the appellate forum and file the application again after disposal of the appeal. This is not what is contemplated under Section 28A of the Act. Section 28A confers a right on the person whose land was acquired to get redetermination of compensation on the basis of the compensation awarded to the other land owners, provided the ingredients of Section 28A are satisfied. To direct such a person to keep waiting and to make constant watch of the proceedings before the appellate forum, would be against the letter and spirit of Section 28A. An application under Section 28A has to be filed within the period of limitation. Once the application is filed within the period of limitation, it is liable to be disposed of one the merits. If an appeal against the award of the reference court is pending, that is a good ground for not disposing of the application filed under Section 28A. But that is not a ground for rejecting the application. Once the application is rejected, how could the Land Acquisition Officer dispose of the same after the appeal is disposed of After disposal of the appeal, could he revive an application which was rejected by him finally Evidently, he cannot do so. A claimant under Section 28A is not expected to make a second application after the disposal of the appeal. Therefore, the only safe and proper course to be adopted is to keep the application under Section 28A pending till the disposal of the appeal and thereafter to dispose of the application on the merits. Ext. P6 order to the extent to which the Land Acquisition Officer rejected the application on the ground that an appeal is pending, is therefore erroneous.