JUDGMENT R.P. Misra, J.
1. Having heard Sri A.P. Srivastava, learned Counsel for the petitioner and learned Standing Counsel for the respondents, the writ petition was avowed; in open Court on 6.2.2006, but the reasons ware to follow, The reasons are as under:
2. By means of this writ petition under Article 226 of the Constitution of India, the Impugned order dated 11.9.2003 passed by the Special land Acquisition Officer, Varanasi, the respondent No. 3, Is sought to be quashed.
3. In short the fact relevant for determination of actual controversy involved in this case is that by a notification dated 30.8.1985 under Section 4 of the Land Acquisition Act; 1894 (for short the "Act"), land of the petitioner and other persons was acquired for construction of Ram Nagar-Mughalsarai Bye-pass Road The notification under Section 6 of the Act. with regard to the aforesaid acquisition was issued on 31.8.1985. The Special Land Acquisition Officer, Varanasi gave the award on 7.1.1970.
4. Admittedly, no application was filed by the petitioner before the Special land Acquisition Officer, Varanasi for referring the matter under Section 18 of the Act. One Jhillu, one of the land holders made m application under Section 28A of the Act for of the amount of compensation with law, upon which reference No. 133 of 1992, Jhillu v. Collector and Ors. was made and ultimately the aforesaid refrence was allowed on 24.5.1993.
5. On 14.7.1993, petitioner also made an application under Section 28A of the Act for redetermination of amount of compensation, on the basis of award dated Court in aforesaid reference no 133 of 1902 (Jhillu and others) with regard to the land covered, Notification but by the impugned order; elated application of the petitioner has been dismissed by respondent No. 3, as not maintainable.
6. The relief sought by this writ petition is that the respondents may be directed to radetermine tie amount of compensation awarded to the petitioner, on the basis of award of the Court dated 24.5.1993 passed-in reference No. 133 of 1992(Jhillu v. Collector and Ors.) and to pay the compensation to the petitioner also on the same rate on which it has been paid to Jhillu i.e. Rs. 4,000/-por decimal.
7. The short point for determination by this Court is as to whether or Act, the application of the petitioner under Section 28A of the Act was maintainable in the facts and circumstances the present case.
8. Placing strong reliance on a decision of Kerla High Court P.V. Joseph v. District Collector, Kottayarn and Anr. 2004 (2) L.A.C.C. Page 610, decided on 25.6.2004) learned Counsel of the petitioner contended that the application dated 14.7.1993 under Section 28A of the Act made by the petitoner was fully maintainable.
9. In P.V. Joseph (supra), in similar situation Hon'ble Kerla High Court relying on several decisions Of the Supreme Court including Union of India v. Pradeep Kumari , allowed the writ petition and held that the petitioner in that petitioner was entitled to rely on award passed by the reference Court under Section 28A(3) of the Act for maintaining his application under Section 28A of the Act.
10. In Pradeep Kumari's case (supra) their Lordships of Apex Court considered the objects and reasons underlying Section 28A Which was introduced into the ct though the amending statue 68 of 1984 and held that the objects underlying the enactment of Section 28A is to remove inequality in the payment of compensation for same or similar quality of land and the provisions inteded to remove inequality and to give relief to advantage of right of reference to the Civil Court under Section 18 of the Act.
11. In Pradeep Kumari's case (supra) their Lordship's of Apex Court laid down six conditions to be satisfied so as to enable a person to seek redetermination of the amount of compensation payable to him. The six conditions are under.
(i) An award has been made by the Court under part III after the coming into force of Section 28A;
(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11 has been allowed to the applicant in that reference.
(iii) The person moving the application under Section 28A is interested in other land covered by the same notification under Section 4(1) to which the said award relates;
(iv) The person moving the application did not make application to the Collector under Section 18;
(v) The application is moved with in three months from the dated of the award on the basis of which the redetrmination of amount of compensation is sought and;
(vi) Only one application can be moved under Section 28A for redetermination of compensation by an applicant.
12. In P.V. Joseph (supra) it has been further observed that it must now be noticed that even though all decisions of the Supreme Court rendered in the contest of Section 28A highight the section as beneficial provision intended to confer equal lustice in the matter of land value for the acquired property to knowledgeable land owner, who sough reference under Section 18 and inarticulate owner, who failed to seek such reference as two Bench of the Supreme Court has in a relatively recent decision observed that who soever wants to take advantage of the beneficial legislation has to be vigilant and has to take appropriate action within the prescribed time, The above observation is made by the Supreme Court in state of A.P. v. Marri Venkaiah wherein the Supreme Court reiterated that the period of limitation for application under Section 28A is three months from the date of the award of the Court and not three months from the date of the knowledge of the award, This decision however, does not at all deal with the question whether or not award passed on reference under Section 28A(3) can be relied on the applicants in Section 28A applications, Their Lordship's were only reiterating the view already taken by the Supreme Court in Tota Ram v. State of U.P. (1997) 6 SCC 280.
13. In view of the discussions made above we are of the considered opinion that the petitioner is entitiled to rely on award passed by the reference Court under Section 28A(3) of the Act in reference No. 133 of 1992 (Jhillu v. Collector and Ors.) for maintaining his application under Section 28A of the Act. Therefore, the impugned order dated 11.9.2003 is apparently illegal and liable to be quashed.
14. Accordingly the writ petition succeeds and is allowed. The impugned order dated 11.9.2003 passed by respondent No. 3 is quashed. The Special Land A cqulisition Officer, Varanasi, the respondent No. 3 is directed to decide the application of the petitioner dated 14.7.1993 passed in reference No. 133 of 1992 (Jhillu v. Collector and Ors.) within a period of three months from the of filing of a certified copy of this order before him.
15. There shall be no order as to costs.