H.N. DEVANI, J.

(1) RULE Ms. Maithili Mehta waives service of rule for the respondents. Having regard to the controversy involved in the present case, the matter is taken up for final hearing today.

(2) BY this petition under Article 226 of the Constitution of India, the petitioners seek a direction against the respondent No. 2, Special Land Acquisition Officer, Narmada Project, Unit No. 3, Ahmadabad to decide the application made by the petitioners under section 28a of the Land Acquisition Act, 1894 (hereinafter referred to as " the") within three months and consequently grant the application of the petitioners with all statutory benefits available under section 28a of the.

(3) THE facts giving rise to the present petition are that lands admeasuring 9688 sq. mts. of Survey No. 34 of Moje: Madrisana, Taluka Detroj, District Ahmadabad which were jointly owned by the petitioners as members of an HUF came to be acquired for the purpose of the Narmada Main Canal. The Land Acquisition Officer declared award under section 11 of theon 30. 3. 1996 awarding compensation of Rs. 29296. 51ps in respect of the lands of the petitioners in Land Acquisition Case No. 40/94. It appears that with the consent of the petitioners, the said amount was paid through a cheque issued in favour of the petitioner No. 1, Ratilal Prahladbhai Patel.

(4) PURSUANT to judgment and award dated 12. 4. 2005 made in reference applications under section 18 of thefiled by some other claimants whose lands were acquired under the same Notification, petitioners No. 1 and 2 made an application under section 28a of the on 5. 7. 2005 seeking re-determination of the amount of compensation. By communication dated 27. 7. 2005, respondent No. 2 informed the said petitioners that as per the award under section 11 of thethere were four occupiers; out of the said four occupiers only two have filed the application, hence compensation is required to be paid only according to their shares. He, accordingly, requested them to submit the application after getting their shares determined by the competent authority. It was also stated that at present the application was being filed.

(5) SUBSEQUENTLY by notice dated 02. 07. 2007 issued by respondent No. 2, petitioners No. 1 and 2 were given intimation that the hearing of their application under section 28a was fixed on 12. 7. 2007. It was also stated in said notice that if they had made the application as heirs or as co-owners and if the co-owners or heirs of the persons named in the award have given their consent then their statement of consent as well as evidence of their rights should be produced during the course of hearing. Pursuant to the said notice, the petitioners submitted their written reply dated 12. 07. 2007, which was signed by all the four petitioners. By communication dated 29. 9. 2007 of respondent No. 2, the petitioners were informed that upon verification of the record it has been found that earlier their application had been filed (disposed of) on the ground that they should submit the application after getting their shares determined. That in this context the petitioners had not made any representation to the said office, thus at the relevant time their application had been filed, therefore, their reply was also being filed. Being aggrieved the petitioners have filed the present petition praying for the relief noted hereinabove.

(6) MR. A. J. Patel, learned Advocate for the petitioners has drawn the attention of the Court to the application made by petitioners No. 1 and 2 under the provisions of section 28a of the to point out that the same was made in respect of the entire land in question which was jointly owned by all the petitioners. It is submitted that it is, therefore, apparent that the application was made on behalf of all the co-owners, namely the petitioners herein. It is also submitted that even at the relevant time when the award under section 11 was made, the shares of the petitioners were not specified and in fact the cheque for the compensation payable in respect of entire lands was issued in the name of petitioner No. 1. It is accordingly submitted that when the application under section 28a was made within the period of limitation, it was not permissible to respondent No. 2 to file their application on the ground that the specific shares of the applicants were not stated therein. It is further submitted that when the application was made in respect of the entire land in question, it was apparent that the application was made on behalf of all the co-owners and it was incumbent upon the respondent No. 2 to process the same accordingly.

(7) MS. Maithili Mehta, learned Assistant Government Pleader appearing on behalf of the respondents, has supported the action taken by the respondents.

(8) IN the facts and circumstances noted hereinabove, two questions arise for consideration before this Court. Firstly, as to whether respondent No. 2 was justified in holding that as the application under section 28a of the had been filed by only two of the four co-owners, compensation was payable only to the extent of their shares, and secondly, as to whether an application under section 28a of the, more particularly when the same had been submitted within the prescribed period of limitation, could have been disposed of by asking the applicants to first get their shares determined by a competent authority and then file another application.

(9) IN the facts of the present case two features which are required to be noted are that the application under section 28a of the though filed by two of the petitioners was in respect of the entire land in question and that pursuant to the award under section 11 of the Act, the compensation in respect of the entire land in question had, with the consent of the other petitioners, been paid by a cheque issued in favour of petitioner No. 1. Another aspect to be noted is that there is no dispute that the petitioners are co-owners of the land in question. Dealing with the first question, it may be pertinent to refer to the decision of the Humble Supreme Court in A. Vishwanath Pillai and others v. The Tehsildar for Land Acquisition No. IV and others (1991) 4 SCC 17 [LQ/SC/1991/372] wherein the issue before the Apex Court was as to whether in a reference sought by one of the co-owners, the other co-owners, who did not expressly seek reference, are entitled to compensation pro-rata as per their shares. In the facts of the said case one of the brothers who had filed an application under section 18, mentioned that the acquired property belonged to him and his other brothers. He had also stated in the application that he was entitled to share. There was no express averment in the reference application that he was seeking reference on his behalf and on behalf of his three other brothers. The courts below had disallowed the payment to the appellants therein on the ground that there was no mention in the claim petition of partition deed; that they are the co-owners and that there was no averment that the brother who had filed the application was seeking reference under section 18 on his behalf and on behalf of his brothers. The Apex Court held as follows:

"it is surprising that the State having acquired the property of a citizen would take technical objections regarding the entitlement of the claim. The State certainly is right and entitled to resist claim for enhancement and lead evidence in rebuttal to prove the prevailing price as on the date of notification and ask the court to determine the correct market value of the lands acquired compulsorily under the. But as regards the persons entitled to receive compensation are concerned it has no role to play. It is for the claimants inter se to lay the claim for compensation and the court would examine and award the compensation to the rightful person. xxxxxx It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would endure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenaries under Hindu Law by all the coparceners. In Kanta Goel v. B. P. Pathak [ (1997) 2 SCC 814], this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath and Pal Singh v. Sunder Singh [ (1989) 1 SCC 444 [LQ/SC/1989/12] ]. A co-owner is as much an owner of the entire property as the sole owner of the property. It is not correct to say that a co-owners property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division is effected by metes and bounds. Therefore, a co-owner of the property is an owner of the property acquired but entitled to receive compensation pro rata. The State would plead no waiver nor omission by other co-owners to seek reference nor disentitle them to an award to the extent of their legal entitlement when in law they are entitled. Since the acquired property being the ancestral coparcenary and continued to be kept in common among the brothers and the income derived therefrom was being shared in proportion of their shares by all the brothers it remained as joint property. As co -. owners everyone is entitled to 1/4 share therein. It was also laid by this Court in a recent judgment in Ram Kumar v. Union of India [ (1991) 2 SCC 247 [LQ/SC/1991/114] ] that it is the duty of the Collector to send full information of the survey numbers under acquisition to the court and make reference under Section 18 and failure thereof is illegal. When one of the co-owners or coparceners made a statement in his reference application that himself and his brothers are dissatisfied with the award made by the Collector and that they are entitled to higher compensation, it would be clear that he was making a request, though not expressly stated so but by necessary implication, that he was acting on his behalf and on behalf of his other co-owners or coparceners and was seeking a reference on behalf of other co-owners as well. What was acquired was their totality of right, title and interest in the acquired property and when the reference was made in respect thereof under Section 18 they are equally entitled to receive compensation pro rata as per their shares. "

(10) IN Jalandhar Improvement Trust v. State of Punjab and others (2003) 1 SCC 526 [LQ/SC/2002/1251] the Humble Supreme Court held that even on first principles of law one co-owner is entitled to the benefit of enhanced compensation given in respect of other co-owners in a reference made at his instance in respect of the land acquired, which belonged to all of them jointly.

(11) THOUGH the aforesaid decisions have been rendered in the context of reference applications made under section 18 of the Act, the principles enunciated therein would be directly applicable where re-determination of compensation is sought for under section 28a of the. In the facts of the present case, two of the co-owners had sought for re-determination of the compensation in respect of the entire land in question which was jointly owned by all the petitioners. The fact that the application was made in respect of the entire land in question, by necessary implication means that the application had been made on behalf of the co-owners as well. In the circumstances, respondent No. 2 was not justified in filing the application under section 28a on the ground that the shares of the said petitioners were not specified and ought to have treated the application as having been made on behalf of all the co-owners.

(12) IN the context of the second issue namely, whether an application under section 28a which had been submitted within the period of limitation could have been disposed of by asking the applicants to first get their shares determined by a competent authority and then file another application, it may be pertinent to refer to sub-section (2) of section 28a which provides that the Collector shall, on receipt of an application under sub-section (1), conduct an inquiry by giving notice to all the persons interested and after giving them a reasonable opportunity of being heard, make an award determining the amount of compensation payable to the applicants. In view of the provisions of sub-section (2) of section 28a of the, it was incumbent on respondent No. 2 to conduct an inquiry after giving notice to all interested persons, which in the facts of the present case would include all the petitioners, and after giving them a reasonable opportunity of hearing, make the award. From the facts emerging on record, no such procedure as prescribed has been followed and the application under section 28a has outright, been disposed of as aforesaid. Hence, the order dated 27. 7. 2005 is not only volatile of the principles of natural justice but is also in breach of the statutory provisions. Besides, considering the scheme of the Land Acquisition Act, the right to make an application under section 28a of the is a valuable right. Such right is circumscribed by prescribing a period of limitation, which is required to be strictly adhered to, failing which, the application under section 28a cannot be entertained and the person loses his right to re-determination of compensation. In such circumstances, by asking petitioners No. 1 and 2, who along with the other two petitioners already were beneficiaries of the award under section 11 to get their shares determined by the competent authority and then file the application, in sum and substance, respondent No. 2 has deprived them of their valuable right under section 28a of the, inasmuch as, by the time the petitioners could get their shares determined, the time limit for filing the application would have expired. In the circumstances, on such grounds the Land Acquisition Officer could not have disposed of the application. Assuming that the application was required to be processed only qua petitioners No. 1 and 2, at best they could have been asked to get their shares specified, pending the application, but it was not permissible to dispose of their application by asking them to first get their shares determined and then submit the application, thereby depriving them of their valuable statutory right. This is contrary to the very spirit and object of the.

(13) IN view of the above discussion, the petition succeeds and is accordingly allowed to the extent indicated herein below. It is held that the application under section 28a of the made by petitioners No. 1 and 2 was made on behalf of all the petitioners and all the petitioners are equally entitled to receive compensation pro rata as per their shares. It is further held that the application under section 28a could not have been rejected without complying with the provisions of sub-section (2) thereof. Consequently, the orders/communications dated 27. 7. 2005 (Annexure-C) and 29. 9. 2007 (Annexure-F) are hereby quashed and set aside. The application made by the petitioner Nos. 1 and 2 under Section 28a of the shall be restored to file and shall be processed considering the same to have been made on behalf of all the petitioners as early as possible and preferably within one month from the date of receipt of a copy of this order. Rule is made absolute accordingly.