JUDGMENT A.P. Sahi, J.
1. The petitioners have assailed the order dated 15.3.1995 passed by the Special Land Acquisition Officer, Allahabad whereby the application of the petitioners under Section 28A of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) has been rejected on the ground that the application of the petitioners moved under Section 18 of the Act for reference has been rejected.
2. We have heard Sri Radhey Shyam, learned counsel for the petitioners and learned Standing Counsel for the respondents.
3. This Court had directed the petitioners to file a copy off the order dated 5.2.1990 whereby the application moved by the petitioners under Section 18 of the Act had been rejected. This order had been filed along with the supplementary affidavit. A perusal of the said order indicates that the application under Section 18 of the Act moved by the petitioners was rejected on a report being submitted that it was incompetent inasmuch as the petitioners have received the compensation without protest.
4. Learned counsel for the petitioners has relied upon the case of Union of India and Anr. v. Hansoli Devi and Ors., reported in JT 2002 (7) SC 42, that since the application of the petitioners under section 18 of the Act was found to be incompetent, therefore, the rejection thereof will amount to no application having been entertained under section 18 of the Act. The contention of the learned counsel for the petitioners is that in effect it will be presumed that there was no application under Section 18 of the Act entertainable in law and in fact also the petitioners were not extended any benefit of reference under section 18 of the Act. In such circumstances the petitioners are entitled to move an application under Section 28A of the Act and having received the compensation awarded without protest will not disentitle them to move such an application.
5. Learned Standing Counsel has refuted the aforesaid submission and has tried to draw a distinction in the case of the petitioners by pointing out that the application under Section 18 of the Act which came to be rejected was not rejected on the ground of limitation and as such the case relied upon by the petitioners cannot be pressed into service.
6. We have perused the records and having examined the rival contentions, we are of the view that the impugned order is liable to be set aside in view of the ratio of the decision in the case of Union of India and Anr. v. Hansoli Devi and Ors. (supra). The judgment of the Apex Court would clearly indicate that once the application moved under section 18 of the Act is incompetent and not entertainable, the same cannot be a ground to deny the benefit of section 28A of the Act to a tenure holder. As indicated above, we have found that the application of the petitioners under Section 18 of the Act was incompetent and as such the petitioners were entitled in law to move application under Section 28A of the Apt which benefits the respondents were obliged to extend.
7. Even otherwise, the case relied upon by the petitioners clearly enunciates that receiving of an award either under protest or without protest would not make any difference in case the petitioners have moved application under section 28A of the Act. In view of this also the impugned order is liable to be set aside.
8. We, accordingly, allow the writ petition and quash the impugned order dated 15.3.1995 and direct the respondent No. 2, Special Land Acquisition Officer, Allahabad, to consider the application of the petitioners under section 28A of the Act on merits and pass appropriate orders thereon in accordance with law within a period of three months from the date of production of a certified copy of the order. However, there shall be no order as to costs.