Applications filed u/s 28A cannot be decided.

K.A.Swami, CJ.

The writ appeals are preferred against the orders dated 24. 1994 passed by the learned single Judge in Writ Petitions 3698, 6175, 6180 and 6181 of 1993, 3967, 3969, 6173 and 6174 of 1993, 6601, 6600, 6590, 8160 and 6587 of 1993, 6602, 9152, 7032 of 1993 and 1791 of 1994, 9153, 6588, 6589 and 6182 of 1993, issuing writs in the nature of mandamus to the Collector to determine the compensation payable to the respective writ petitioners, in accordance with Sec.28-A of the Land Acquisition Act, within a period of three months from the date of production of a copy of the order either by the Government Pleader or the petitioners. Hence, the State Government has come up in appeals.

2. The writ petitioners have filed applications under Sec.28-A of the Land Acquisition Act for re-determining the compensation by the Collector of the District on the ground that in respect of the lands acquired under the very same Notification, there is enhancement compensation made in the reference made to the Civil Court. The Collector has not yet taken up the applications for consideration on the ground that the appeals have been preferred against the awards passed by the Civil Court before the High Court and until the appeals are disposed of and the decree awarding of compensation becomes final, the applications filed under Sec.28-A of the Land Acquisition Act cannot be considered.

3. It is not in dispute that in respect of each of the applications filed under Sec.28 A of the Land Acquisition Act, the appeals are pending against the respective awards relied upon in the applications filed under Sec.28-A of the Land Acquisition Act. Those appeals are pending on the file of this Court.

4. The question for consideration is when the decree awarding of compensation has not become final, and it is pending in appeal, the application filed under Sec.28-A of the Land Acquisition Act can be decided.

5. The question is no more res Integra. It has been considered by the Supreme Court in the decision in Babua Ram v. State of U.P., (1995)2 S.C.C. 689 At paragraph 39 of the judgment, it has been stated thus:

“The next question is whether the Collector L.A.O. on receipt of an application under sub-Sec.(1) of Sec.28-A is bound to redetermine the compensation while the award and decree under Sec.26 are pending consideration in the appeal in the High Court or appellate forum. If he does so, whether award under Sec.28-A (2) is illegal? It is settled law that the decree of the trial court gets merged in the decree of the appellate court which alone is executable. The finality of the determination of the compensation is attained with the decree of the appellate forum, be it the High Court or this Court. Taken for instance that A, B and C are interested persons in the land notified under Sec.4(1) and the compensation determined in the award under Sec.11. A received the compensation with out protest. B and C received the compensation under Sec.31 under protest and sought and secured reference under Sec. 18. The court enhanced the compensation from the Collector’s award of Rs. 10,000 to Rs.20,000 B did not file appeal under Sec.54 while C filed the appeal. The High Court, suppose, further enhanced the compensation to Rs.25,000 or reduces the compensation to Rs. 15,000 per acre. A is a person aggrieved only to the extent of the excess amount awarded either by the award and decree of the court under Sec.26 but he will not get the enhancement of further sum of Rs.5,000 granted by the High Court in favour of C. The decree of the High Court is the executable decree made in favour of C. Unless redetermination is kept back till the appeal by the High Court is disposed of, incongruity would emerge. Suppose the State filed appeal in this Court under Art. 136 against the High Court decree and this Court confirms the award of the Collector and sets aside the decree of civil court under Sec.26 and of the High Court under Sec.54. There is nothing left for redet