(PER : HONOURABLE MR.JUSTICE AKIL KURESHI)
1. Looking to the brief controversy involved, we had issued notice for final disposal on 26.04.2016 and kept the matter for hearing today. Briefly stated, facts are as under.
2. The petitioner was owner of agricultural land bearing Survey No.580 paiki of Village:Simej, Taluka:Dholka, District:Jamnagar. The State authorities required 5152 sq.mtrs. of this land for public purpose. To acquire such land, notification Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu May 05 01:17:39 IST 2016 C/SCA/6366/2016 ORDER under Section 4 of the Land Acquisition Act 1894 ('the Act' for short) was published on 15.06.2002. Declaration under Section 6 of the Act was published on 14.03.2007. Land Acquisition Officer passed his award under Section 11 of the Act on 21.04.2008. The petitioner received compensation as awarded by the Land Acquisition Officer under protest. He however, did not seek any reference for enhancement of the compensation as available under Section 18 of the Act. Other persons aggrieved whose lands were also acquired under same notification under Section 4 of the Act had sought references. Such references being land reference case Nos.726 of 2008 and other proceedings were placed before the Lok Adalat for disposal. The claimants as well as the acquiring body i.e. Narmada Nigam entered into compromise which was presented before the Presiding Officer who recorded the compromise on 02.10.2010. As per the consent terms, the claimants would receive additional compensation at the rate of Rs.37 per sq.mtr. and further benefits of solatium, 12% increase and statutory interest. On the basis of these consent terms, the learned Senior Civil Judge, Ahmedabad (Rural) passed award also on Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu May 05 01:17:39 IST 2016 C/SCA/6366/2016 ORDER 02.10.2010. The petitioner has produced the copy of the consent terms as well as the award passed by the Reference Court on the basis of such consent terms.
3. In terms of Section 28A of the Act, the petitioner had a right to seek parity in compensation on the basis of the said award passed by the Special Land Acquisition Officer. He therefore filed an application dated 28.12.2010 before the Special Land Acquisition Officer, seeking benefits of the provisions contained in Section 28A of the Act, in which, he placed reliance on the said award dated 02.10.2010 passed by the Reference Court. The Special Land Acquisition Officer however, indicated to the petitioner that his application was premature since no award was actually passed on 02.10.2010 and that the petitioner therefore, could not have based his application under Section 28A of the Act on a mere filing of consent terms. The petitioner therefore, communicated to the Special Land Acquisition Officer through his advocate on 01.03.2013 and contended that the application was not premature. The petitioner had relied on the proceedings of the Lok Adalat dated 02.10.2010 when the compromise was settled Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu May 05 01:17:39 IST 2016 C/SCA/6366/2016 ORDER between the parties. As per Section 28A of the Act, the petitioner had to make the application within 90 days thereof. In this communication, the advocate of the petitioner also pointed out that the Reference Court had eventually signed the decree on 01.11.2011. Advocate of the petitioner sent yet another communication to the Land Acquisition Officer on 18.09.2014 alongwith which, he produced a certified copy of the consent terms dated 02.10.2010, which were also signed by the Presiding Officer. Yet another letter was written by the petitioner to the Special Land Acquisition Officer on 19.01.2015 reiterating earlier averments.
4. Despite such facts, the Special Land Acquisition Officer passed his impugned order dated 19.02.2016, by which, he rejected the petitioner's application under Section 28A of the Act as being premature. In such order, he held that the application was filed by the petitioner on 28.12.2010, in which the petitioner relied on the decision of the learned Senior Civil Judge, dated 01.01.2011. His application was therefore premature.
5. In our opinion, the Special Land Acquisition Officer has committed a serious error adopting a hypertechnical view. Under subsection (1) of section 28A of the Act, any person interested who has received compensation under protest can seek parity with the award of the Reference Court in case of the land covered under the same notification under Section 4 of the Act as long as such application is made within 90 days from the date of the award of the Reference court. In the present case, the petitioner relied on the consent terms arrived between the person interested and the acquiring body which were signed and presented before the Reference Court on 02.10.2010. In fact, the Presiding Officer had also passed his award which also carried the same date. It however, appears that the Presiding Officer signed the decree later on, under which, he put the date of signing as 01.01.2011. When the consent were already presented before the Reference court and the Reference Court had also accepted the consent terms and drawn an award on the basis of such consent terms on 02.10.2010 itself, the petitioner was within his rights to rely upon such award for the purpose of the benefits under Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu May 05 01:17:39 IST 2016 C/SCA/6366/2016 ORDER Section 28A of the Act. If the petitioner's application is rejected as premature, thereby compelling him to file a fresh application, the authorities would surely reject the same as being belated since much time has passed since the learned Judge signed the award on 01.01.2011. Surely, the purpose of Section 28A of the Act can be defeated by taking such a rather technical approach.
6. Under the circumstances, impugned order dated 19.02.2016 is set aside. The Special Land Acquisition Officer, Narmada Yojana is directed to pass order in terms of section 28A of the Act on the petitioner's application dated 28.12.2010. He shall pass such order latest by 31.08.2016.
7. Petition is allowed and disposed of accordingly.
(AKIL KURESHI, J.) (A.Y. KOGJE, J.) ANKIT Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu May 05 01:17:39 IST 2016