IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 29TH SEPTEMBER 2009 / 7TH ASWINA 1931 WP(C).No. 25626 of 2009(W) ---------------------------------------- PETITIONER(S): ------------------------- PANACHIKUNNEL ANNAMMA THOMAS, D/O.CHACKO, PANACHIKUNNEL HOUSE, EZHIMALA, ONAPARAMBA, THALIPARAMBA TALUK, KARANTHAD POST, RAMANTHALI VILLAGE, KANNUR DISTRICT. BY ADVS. MR.O.RAMACHANDRAN NAMBIAR, MR.GEEN T.MATHEW. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, COLLECTORATE, KANNUR. 2. SPECIAL TAHSILDAR (L.A.), OFFICE OF THE SPECIAL TAHSILDAR, EZHIMALA NAVAL ACADEMY, PAYYANNUR, KANNUR DISTRICT. R1 &R2 BY GOVERNMENT PLEADER MR. I.V.PRAMOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2009 ALONG WITH WPC NO. 24875 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss THOTTATHIL B. RADHAKRISHNAN, J ........................................... WP(C).NOs.25626 & 24875 OF 2009 ............................................ DATED THIS THE 29TH DAY OF SEPTEMBER, 2009 JUDGMENT “C.R.” 1.These writ petitions raise certain issues under the Land Acquisition Act, 1894. 2.Sub Court, Payyannaur decided LAR 120 of 1987 on 20.3.1990. At the instance of the claimant, this court set aside that award in L.A.A.No.220 of 1992 and remitted that matter for reconsideration, giving the claimants opportunity to amend their pleadings. After the remit, the Sub Court passed an award on 3.9.1997. 3.Based on the aforesaid award dated 3.9.1997, hereinafter, the “post-remit award”, for short, the petitioner in WP(C)25626 of 2009 filed an application invoking Section 28A(1) of the Act. That request was turned down holding that the application was not filed within a period of three months from the date on WPC.25626/09 & 24875/09 2 which the Sub Court issued the award dated 20.3.1990, that is, the award before the appeal to this court. 4.The petitioner in WP(C) 24875 of 2009 filed an application under Section 28A(1) on the basis of the award in LAR 150 of 1987. Thereafter, it appeared to the petitioner that the said application would be time barred. Therefore, another application under Section 28A(1) was filed based on the aforesaid post-remit award in LAR 120 of 1987. The first application based on the award in LAR 150 of 1987 was rejected as time barred. Later, the application based on the post-remit award in LAR 120 of 1987 was rejected stating that it is barred in view of the rejection of the earlier application. 5.If I were to go solely by the ground on which the application of the petitioner in WP(C)24875 of 2009 is rejected, it has to be straight away answered by stating that the order is wrong, in as much as a rejection of an earlier application on ground of delay referable to the award relied on in that application is no WPC.25626/09 & 24875/09 3 ground for rejecting a later application dependent on a different award. All that has to be ensured is that an application has to be within a period of three months in terms of the proviso to Section 28A(1) based on the award that is relied on for the purpose of that application. This is the settled law. 6.But, a larger question arises for decision in these two writ petitions. It directly arises in WP(C)25626 of 2009, emanating from the decision impugned therein. In so far as WP(C) 24875 of 2009 is concerned, it arises in the form of defence by the respondents, as projected by the learned Government Pleader. 7.The issue that falls for decision arises this way: As already noticed, LAR 120 of 1987 was decided by the reference court on 20.3.1990. That award was set aside by this court and matter remitted. The reference court again decided the case on 3.9.1997. I have called that award as the post-remit award. On these facts, the questions raised are; (1) Whether a post- WPC.25626/09 & 24875/09 4 remit award could be the basis of an application under Section 28A(1)? (2) Whether such an application under Section 28A(1) would stand only if it had been filed within a period of three months from the date of the award that was initially passed by the reference court, which award was set aside in appeal, leading to the post-remit award? 8.If the application under Section 28A(1) ought to have been filed from the date on which the reference court passed the award for the first time in LAR 120 of 1987, that is before the order of remit in LAA No.220 of 1992, all the applications which have led to these writ petitions are time barred since that award was passed on 20.3.1990. 9.Adv. O Ramachandran Nambiar and Adv. Sergi Joseph Thomas, the learned counsel appearing for the petitioners in these matters, argued that the period of limitation for the purpose of proviso to Section 28A(1) has to be decided on the basis of the award which is made the foundation of the application and WPC.25626/09 & 24875/09 5 cannot be determined on the basis of any other award. Dilating further, Adv.Nambiar further argued that the cause of action for filing an application under Section 28A(1) is the factum of a person being aggrieved in terms of Section 28A(1) and this would arise only when an award is passed by the reference court; the benefit of the yardstick in which, should be available to the person applying under Section 28A(1). He further pointed out that the statutory provision in Section 28A (1) admits only of a plain reading and therefore, so long as the award relied on is one passed by the reference court under Part III of the Land Acquisition Act, it makes no difference whether it was passed in the first round or after an order of remit by the appellate court. 10.Per contra the learned Government Pleader argued that an appellate award passed in an appeal under Section 54 is not an award by the “Court” meaning thereby, the principal civil court of original jurisdiction and not the appellate court and that therefore, in the absence of the eligibility to file WPC.25626/09 & 24875/09 6 application under Section 28A(1) on the basis of award passed in an appeal, as a necessary corollary it has also to be held that awards passed following remit cannot form the basis of applications under Section 28A(1). It was accordingly argued that the application for reference on the basis of an award following a reference under Section 18 ought to be made within a period of three months from the date on which the award in that reference is passed by the reference court for the first time, though subsequent modification of that award by the higher court or even a remit by the appellate court and post-remit award by the reference court may have its consequential impact on the ultimate decision on the application under Section 28A(1). 11.The provisions in the Land Acquisition Act stands to be tested on the touchstone of the constitutional rights of citizens in terms of Article 300A of the Constitution. Therefore, the interpretation and application of the provisions of the Act also continue to remain under the gaze of that constitutional WPC.25626/09 & 24875/09 7 provision. The permissible encroachment into the constitutional right to hold property has to be strictly in terms of the statutory provisions. The approach in interpretation of the statute law governing acquisition of land has also, necessarily, to be such that it goes in tune with the object sought to be achieved by the legislation and also one in furtherance of the purpose of the legislation, though the statutory provisions are to be first read in its plain meaning, in the grammatical and situational backdrop in which it is placed. 12.Article 300A provides that no person shall be deprived of his property save by authority of law. The provision for compulsory acquisition in terms of Land Acquisition Act, 1894 have to be enforced by ensuring that there is no deprivation of property, save by authority of law. If that were so, the provisions relating to compensatory components in the Land Acquisition Act have to be interpreted in favour of them, who stand to be deprived of land, on acquisition. While the courts may lean in favour of upholding the right of the State to WPC.25626/09 & 24875/09 8 acquire even by enlarging the scope of the term “public purpose”, when it is called upon to decide on the modalities of fixing compensation; striking a balance between the power to acquire and the obligation to pay adequate compensation on deprivation of property; the balancing of scales of justice would be done by leaning in favour of the person from whom the land is being acquired. This is the purposive modality of construing the legislation which operates in favour of the State, by empowering acquisition and also in favour of those who are being deprived of land by providing adequate compensation, in the event of compulsory acquisition. 13.With the passage of time, it came to be noticed that the provisions for determination including by way of reference to the civil court have not been appropriately utilised or extended. The laws in a socialist country would always have the deprived section of the society in the forefront of its legislative thinking. This appears to be behind the introduction of Section 28A as per Act 68 of 1984. The purpose was to WPC.25626/09 & 24875/09 9 provide for those who could not object or did not object, to the land value determined by the Collector, and go to the court on a reference under Section 18. 14.Controversies arose with the passage of time as to whether an application under Section 28A (1) has necessarily to depend upon the award passed in the reference first answered by the court from among those that arose from a notification and still further whether an application under Section 28A (1) would depend upon anything other than the award relied on by the applicant. 15. The Apex Court, in Babua Ram v. State of U.P., (1995) 2 SCC 689, held, among other things, as follows: “A bare reading of sub-section (1) of Section 28-A would indicate that wherein an award under this part, (Part III consists of Sections 18 to 28), Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector WPC.25626/09 & 24875/09 10 under Section 11, the persons interested in all the other land covered by the same notification under Section 4(1) and who are also aggrieved by the award of the Collector, may, notwithstanding that they had not made an application to the Collector under Section 18, by writing make an application to the Collector within three months from the date of the award of the court requiring that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court.” “The basis for redetermination is the award of the court and the compensation awarded therein.” “Section 28-A is a complete code in itself providing substantive right to an interested owner who received compensation under Section 18 without protest for higher compensation, and remedy has been provided to make a written application within the prescribed period. The non-obstante clause lifts the rigour of the bar created by Section 18(1) and the second proviso to Section 31 and makes him eligible to be on a par with his neighbour to claim WPC.25626/09 & 24875/09 11 parity for compensation to the land similarly situated as the land covered by the court award.” 16. The ratio of Babua Ram (supra) as regards limitation was disapproved later, in Union of India and another V. Pradeep Kumari and others (1995(2) SCC 736)-(3 judges), laying down as follows: “………….the object underlying the enactment of Section 28-A is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act. This is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redetermination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. Section 28-A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not WPC.25626/09 & 24875/09 12 able to take advantage of right of reference to the civil court under Section 18 of the Act. In relation to beneficent legislation, the law is well-settled that while construing the provisions of such a legislation the court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of Section 28-A should, therefore, be construed keeping in view the object underlying the said provision. 9. A perusal of the provisions contained in sub- section (1) of Section 28-A of the Act would show that after an award is made under Part III whereby the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, a right accrues to a person interested in the other land covered by the same notification under sub-section (1) of Section 4 who is also aggrieved by the award of the Collector but who had not made an application to the Collector under Section 18, to move an application before the Collector for redetermination of the amount of compensation payable to him on the basis WPC.25626/09 & 24875/09 13 of the amount of compensation awarded by the court. This application for redetermination of the compensation is required to be made within three months from the date of the award of the court. The right to make the application under Section 28-A arises from the award of the court on the basis of which the person making the application is seeking redetermination of the compensation. There is nothing in sub-section (1) of Section 28-A to indicate that this right is confined in respect of the earliest award that is made by the court after the coming into force of Section 28-A. By construing the expression “where in an award under this Part” in sub-section (1) of Section 28-A to mean “where in the first award made by the court under this Part”, the word ‘first’, which is not found in sub-section (1) of Section 28-A, is being read therein and thereby the amplitude of the said provision is being curtailed so as to restrict the benefit conferred by it. In the matter of construction of a beneficent provision it is not permissible by judicial interpretation to read words which are not there and thereby restrict the scope of the said provision.” WPC.25626/09 & 24875/09 14 “.............…… The object underlying Section 28-A would be better achieved by giving the expression “an award” in Section 28-A its natural meaning as meaning the award that is made by the court in Part III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(1) is thus construed, a person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied : (i) An award has been made by the court under Part III after the coming into force of Section 28-A; (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 28-A is interested in other land covered by the same notification under Section 4(1) to which the said award relates; WPC.25626/09 & 24875/09 15 (iv) The person moving the application did not make an application to the Collector under Section 18; (v) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and (vi) Only one application can be moved under Section 28-A for redetermination of compensation by an applicant. 11. Since the cause of action for moving the application for redetermination of compensation under Section 28-A arises from the award on the basis of which redetermination of compensation is sought, the principle that “once the limitation begins to run, it runs in its full course until its running is interdicted by an order of the court” can have no application because the limitation for moving the application under Section 28-A will begin to run only from the date of the award on the basis of which redetermination of compensation is sought.” Underlined to emphasise WPC.25626/09 & 24875/09 16 17.It was held in Jose Antonio Cruz Dos R. Rodriguese v. Land Acquisition Collector, (1996) 6 SCC 746, as follows: ”The plain language of Section 28-A, therefore, prescribes the three months’ period of limitation to be reckoned from the date of the award by the Court disposing of the reference under Section 18, and not the appellate court dealing with the appeal against the award of the Reference Court.” 18.It was held in U.P.State Industrial Development Corporation Ltd V. State of U.P and others (1995(2) SCC 766), that in cases where appeals preferred by the State are pending against awards of the reference court applications under Section 28A(1) filed depending on such awards of the reference courts will have to be kept pending till the disposal of the appeal by the High Court, following the law laid in Babua Ram (supra). In Union of India V. Bant Ram (1996 (4) SCC 537), it was held that the obligations for re- WPC.25626/09 & 24875/09 17 determination of amount under Section 28A have to be decided on the basis of compensation determined by the reference court and not on the basis of appellate judgment under Section 54. The award should be one which falls under Chapter III under which Section 18 falls and not under Chapter VIII under which Section 54 falls. That was a case where the re-determination was made on the basis of the appellate award passed by the High Court granting further enhancement over and above the amount fixed by the reference court. To hold so, the precedent in Babua Ram (supra) was followed. In Hukam Chand V. State of Haryana (1996(5) SCC 164), it was held that though a person aggrieved by award of the Collector, but had not sought reference, would be entitled to make an application under Section 28A(1) on the basis of an award passed by the court at the instance of another claimant with reference to the same notification. One who had availed the remedy of reference court could not thereafter fall back on Section 28A(1) on the basis of the award of the reference court in yet another case. It was laid WPC.25626/09 & 24875/09 18 down that the remedy under Section 28A(1) is not available when the compensation is enhanced under Section 54 of the Act, by the appellate court. In Union of India v. Munshi Ram [2006(2) KLT 1992 (SC)], it was held that the amount payable under Section 28A is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under Section 18 of the Act. It was held that even if it be that the compensation payable to claimants who have applied under Section 28A of the Act is the enhanced compensation decreed by the reference court, we must understand the decree to be the decree of the reference court as modified in appeal by the higher courts. It was held that under Section 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference under Section 18 of the Act and that refund of excess amounts could be ordered in cases where the superior court reduced the award amount as fixed by the reference court. WPC.25626/09 & 24875/09 19 19.In Joseph v. District Collector [2004(2) KLT 1029], it was held by this court that on a literal interpretation, the award of court for the purpose of an application under Section 28A(1) can include an award made by the court in a reference case registered under Section 28A(3). 20.In Haji A.Abdul Rashid v. Spl. Tahsildar [2008(1) KLT 974], it was held that an application for re-determination of compensation under section 28A(1) can be filed only on the basis of judgment of reference court under Section 18 and time for filing application is three months from the date of order of appellate or revisional court. 21.The statutory provision for consideration reads as follows: “28-A. Redetermination of the amount of compensation on the basis of the award of the Court. — (1) Where in an award under this Part, the Court allows to the applicant any amount of compensation WPC.25626/09 & 24875/09 20 in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court: Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. (2) The Collector shall, on receipt of an application under sub-section (1), conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and WPC.25626/09 & 24875/09 21 make an award determining the amount of compensation payable to the applicants. (3) Any person who has not accepted the award under sub-section (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.” 20.The encapsulation of the components of Section 28A(1) show that the period of limitation for an application under that provision would depend upon the relevant particulars reckonable on the basis of the proviso thereto as regards the award that is relied on by the applicant. Once such an application is filed, the Collector will be well within authority to take all matters into consideration as are relevant, including whether the award relied on by the applicant has been in any manner, interfered with by the superior courts. If land value has been reduced, that will be WPC.25626/09 & 24875/09 22 taken note of. Even if land value has been enhanced, that would also be considered. The Collector will also be entitled to look into other awards arising from the same notification as supplementary materials because what ultimately comes out in the form of award under Section 28A(2) is the compensation based on the land value that could be given for the land acquired from the applicant. The dissimilarities between the land acquired from the applicant and land dealt with in the award on the basis of which the application under Section 28 (A)(1) is filed and various other relevant materials will go into that adjudicating process. 21.Section 28A(1) empowers a person from whom land is acquired, to file an application for redetermination of amount of compensation, notwithstanding that he had not made an application to the Collector under Section 18. This right