K. Papeshwar Rao vs Government of A.P. and Another

Heard Sri S. Niranjan Reddy, learned Counsel for the petitioner and learned Government Pleader for Land Acquisition on behalf of the respondents.

The petitioner has questioned the guidelines communicated by the Commissioner of Land Revenue in CLR''s Ref. No.Gl/2133/96, dated 24-12-1996. The contention of the petitioner in the above writ petition is that Guideline No.22 is the said Circular dated 24-12-1996 is contrary to law and should be declared void.

The impugned Guideline No.22 reads as under :

"22. The applications for redelermination of compensation u/s 28A should be entertained only when the following conditions are satisfied.

(i) The claimant should have received the amount under protest

(ii) The application should be filed within 3 (three) months from the date of the award of the Court (the period for obtaining the copy of the award of the Court should be excluded) and

(iii) The land should have been notified in the same notification".

The offending portion of the above guideline is as contained in Clause (i) above, which states that the claimant should have received the amount "under protest" as otherwise the applications filed u/s 28A are not to be entertained.

The controversy, therefore, centres around the question whether such of those applicants who otherwise satisfy the conditions stipulated u/s 28A, their applications for redetermination of the compensation are not to be entertained unless such applicants also satisfy the condition that the compensation awarded was received by them "under protest".

Learned Counsel for the petitioner contended that the said condition in Clause (i) contrary to the provisions contained in Section 28A of the Act and thereby illegal.

Sri S. Nimnjan Reddy, learned Counsel for petitioner relied upon Hukam Chand and Others Vs. State of Haryana and Others, wherein Section 28A was considered and therein it was observed as under :

"4. A reading thereof clearly indicates that after making of an award u/s 11 by the Collector, if the claimant had not made a written application u/s 18 within limitation, but one of the claimants arising out of the same notification published u/s 4(1) of the Act, aggrieved against the award made on application and hold the reference u/s 18 and when the civil Court has enhanced the compensation, persons who did not make the applications u/s 18 and received the compensation u/s 31 without protest, Section 28A(1) gives him right to make a written application u/s 28A(1) within three months from the date of the award made by the Reference Court. Under its proviso, the time taken to obtain its certified copy from the date of making the application to the date of supplying the award shall be excluded. In other words, the aggrieved persons who had received the compensation without protest but did not avail of the remedy of reference u/s 18, if one of the claimants arising from the same notification published u/s 4(1) of the Act, had the benefit of enhanced compensation from the Reference Court, the non-applicant has been empowered u/s 28A(1) to avail of the remedy u/s 28A by an application made within three months from the date of the award of the Reference Court to seek enhanced compensation"

In another batch of appeals, the Supreme Court in the case of Babua Ram and Others Vs. State of U.P. and Another, , considered the scope of Section 28A and the meaning of the "person aggrieved". It was held therein as under :

".... Thus, Section 28A is acomplete code in ilself providing substantive right to an interested owner who received compensation u/s 18 without protest for higher compensation, and remedy has been provided to make a written application within the prescribed period. The non-obstante clause lifts the rigour of the bar created by Section 18(1) and the second proviso to Section 31 and makes him eligible to be on a part with liis neighbour to claim parity for compensation to the land similarly situated as the land covered by the Court Award."

With regard to the meaning assigned to the word "person aggrieved", it was held as under :

"... Therefore, we have no hesitation to hold lhat any interested person in the land acquired under the same notification published u/s 4(1) who failed to avail the right and remedy u/s 18(1) read with second proviso to Section 31(2), becomes a person aggrieved u/s 28A(1) of the Act when the owner of the other land covered by the same notification is awarded higher compensation by the civil Court on a reference got made by him u/s 18." ''

It is thus apparent that when an application is made in writing by the aggrieved person within the period of limitation prescribed in that behalf u/s 28A(1), notwithstanding the fact of the said person having received compensation u/s 31 without protest and of not availing of the remedy of Reference u/s 18, the redetermination of compensation u/s 28A(1) is required to be done.

The offending portion of the guideline (22) referred to above, which stipulates a condition precedent that the claimant should have received the amount under protest, therefore, is not valid and is contrary to law as declared by the Supreme Court, in the judgments referred to supra.

It has therefore to be held lhat the offending portion of Guideline No.22(i) is void and contrary to law and it is so declared.

Unless guidelines or instructions issued by Administrative Authority for the guidance of its subordinate officers infringe upon any statutory or fundamental rights of the petitioner, a Writ of Mandamus will not lie. In the instant case, as held above, the offending portion of the guidelines is contrary to Section 28A and infringe upon statutory rights of the claimants for redetermination of the compensation u/s 28A. For the said reason the Writ Petition is maintainable.

The Writ Petition is allowed in terms of declaration as above. But, in the circumstances without costs.