K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991 Equivalent citations: AIR1992SC1488, JT1991(6)SC480, (1992)2MLJ28(SC), 1991(2)SCALE1398, (1992)1SCC684, [1991]SUPP3SCR485, 1992(1)UJ474(SC), AIR 1992 SUPREME COURT 1488, 1992 (1) SCC 684, 1992 AIR SCW 1580, 1992 (1) UJ (SC) 474, (1991) 6 JT 480 (SC), 1992 UJ(SC) 1 474, (1992) 2 MAD LJ 28, (1992) 1 MAHLR 943, (1992) 1 SCJ 359, (1992) 6 LACC 343, (1992) 1 BLJ 746, (1992) 2 CIVLJ 1, (1992) 1 CURCC 288 Bench: M.M. Punchhi, B.P. Jeevan Reddy JUDGMENT ORDER M.M. Punchhi and B.P. Jeevan Reddy, JJ. 1. Retro-activity of some of the provisions of Land Acquisition Act, 1894, as amended by Land Acquisition Amendment Act, 68 of 1984, has been a source of good amount of conflict of opinion in this Court as well as among the High Courts in the country. We are not happy in adding to it but we find it inescapable, convinced as we are, that the view taken by a three-Judge Bench of this Court in Union of India and Anr. etc. etc. v. Zora Singh etc. etc. C.A. No. 4568/91 decided on 22-11-1991 requires reconsideration. We shall first state the facts in S.L.P. No. 5514 of 1990 to indicate how the question arises. 2. The notification under Section 3(1) of the Kerala and Acquisition Act (corresponding to Section 4(1) of the Land Acquisition Act 1894) was issued on 21-3-1978. Declaration under Section 6 was made on 15-5-1979. The Land Acquisition Officer (Collector) passed the award on 30-12-1980 and possession of acquired lands taken some time in 1981. The claimants were not satisfied with the award. They asked for a reference under Section 18 which was made. The Civil Court gave its decision on 28-2-1985, enhancing the compensation. 3. The Land Acquisition Amendment Bill, which was later enacted into Amendment Act 68 of 84, was introduced in Parliament on 30-4-1982. The Amendment Act came into force with effect from 24-9-1984. For the present purpose it is sufficient to notice only two provisions of the Amendment Act. By Section 15 of the Amendment Act, Sub-section (I-A) was introduced in Section 23. It reads: Section 23(I-A)-In addition to the market value of the land, as above provided, the court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, Sub-section (1), in respect of such land to the dale of the award of the Collector or the date of taking possession of the land, whichever is earlier: K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  1 Explanation-In computing the period referred to in this Sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded. 4. By Section 15 of the Amendment Act Sub-section (2) of Section 23 was also amended. In place of the words "15 per centum" the words "30 per centum" were substituted. Sections 28 and 34, relating to interest were also amended, raising the rate of interest, vide Sections 18 and 20 of the Amendment Act. 5. Though the Amendment Act came into force with effect from 24-9-1984, some of its provisions were given retrospective effect, namely, the newly introduced Sub-section I-A of Section 23 and the amended Sub-section (2) of Section 23 and Sections 28 and 34. This was done by Section 30 of the Amendment Act which reads thus: Section 30-Transitional provisions-[l] The provisions of Sub-section (I-A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to-- (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that dale, whether or not an award has been made by the Collector before the commencement of this Act. [2] The provisions of Sub-section (2) of Section 23 and Section 28 of the Principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively, shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act. [3] The provisions of Section 34 of the principal Act, as amended by Section 20 of this Act, shall apply, and shall be deemed to have applied, also to and in relation to. (a) every case in which possession of any land acquired under the principal Act had been taken before the 30th day of April, 1982 (the dale of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), and the amount of compensation for such acquisition had not been paid or deposited under Section 31 of the principal Act until such dale, with effect on and from that date; and K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  2 (b) every case in which such possession hud been taken on or after that date but before the commencement of this Act without the amount of compensation having been paid or deposited under the said Section 31, with effect on and from the date of taking such possession. 6. The question mat arises in this batch of SLPs is whether the claimants are entitled to the benefit of Section 23(I-A)? It is relevant to recall that the award of the Collector in this case was made on 30-12-1980, i.e., prior to 30-4-1982 and the decision of the Civil Court on reference under Section 18 is dated 28-2-1985, i.e., subsequent to the coming into force of the Act. 7. Subsection (1) of Section 30 of the Amendment Act gives a limited retrospective effect to Sub-section (I-A) of Section 23. The said Sub-section applies also to and in relation to two situations: (i) a case where the proceedings for acquisition of land are pending under the principal Act on 30-4-1982 but wherein no award is made by the Collector before the said date and; (ii) a case where the proceedings for acquisition of land are commenced after 30-4-1982. In such a case, it is immaterial whether the award by the Collector is made before 24-9-1984 or subsequent thereto. 8. It is evident that the case before us does not fall in either of the two situations contemplated by Sub-section (1) of Section 30 of the Amendment Act. In this case, not only the preceedings of land acquisition are initiated prior to 30-4-1982, the award of the Collector is also made prior to the said date. If so it should follow that the benefit of Sub-section 1-A of Section 23 is not available to the claimants here. Mr. Poti, the learned Counsel for the claimants, however, relies upon the aforesaid decision of a three Judge Bench of this Court in support of his contention that even in a case like the present one, the said benefit is available. The facts of that case are practically similar to the facts of the case before us. The notification under Section 4 was issued in 1979, the declaration in 1981 and the award of the Collector made on 31st March, 1981. A reference was made to the Civil Court under Section 18 which was decided in the year 1985 (in some cases in 1986). The question considered therein was whether in such a case benefit of Section 23(1-A) can be given to the claimants-land holders. The Bench took the view, particularly on the basis of the language employed in Section 23(1-A), that the benefit thereunder is available to all cases where the Civil Court makes its award on or after the coming into force of the Amendment Act. Kania Justice speaking for the Division Bench laid particular stress upon the words "courts" and "award" occurring in the said Sub-section. The opinion expressed is that the expression "court" as defined in the Act means a Civil Court and that the word "award" is applicable only to the decision or determination of the Collector and Civil Court, but not to the decision/determination by the High Court, or Supreme Court on appeal. Accordingly it is held that the Civil Court (on reference under Section 18) can award the amount provided by the said Sub-section in every case decided by it, after the coming into force of the said Sub-section, irrespective of any other circumstance. In other words, whether the proceedings for acquisition have begun before or after 30-4-1982 and whether the award of the Collector is made before or after K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  3 30-4-1982, the Civil Court (on reference under Section 18) can award the said benefit so long as its decision is rendered after the commencement of the Amendment Act (24-9-1984). The said decision is thus based upon the language of 23(I-A) itself and is unrelated to and is independent of the limited retrospectivity given to the said Sub-section by Sub-section (1) of Section 30 of the Amendment Act. The correctness of this reasoning is questioned by Shri T.S.Krishnamurthy Iyer, me learned Counsel for the State of Kerala. Shri Poti, learned Counsel for the claimants--land holders however supported its reasoning. We have heard both the counsel at some length and arc of the respectful opinion that the view expressed by the Bench docs not appear to be in accordance with the language and intention of the Amendment Act. 9. Now one can hit straight in the bull's eye. Section 23(1) enjoins the Court to take into consideration six factors, as enumerated therein, in determining the amount of compensation to be awarded for the land acquired under the Act. The first factor, jurisdictional in nature, is to determine the market value of the land at the date of the publication of the notification under Section 4(1). Section 24 enumerates eight factors which the Court is forbidden from taking into consideration. The Court obliged for the purpose is the Principal Civil Court of Original Jurisdiction, unless otherwise provided, as per Sub-section (d) of Section 3 of the Act. That such is the Court has also been spelled out in Union of India and Anr. etc. v. Raghubir Singh {dead) by Lrs. etc. but in a different context. The role of the Collector towards determination of compensation ends up by making an award under Section 11 and that award under Section 12 is final and conclusive evidence as between the Collector and the persons interested. Yet Section 15 enjoins on the Collector that in determining the amount of compensation he shall be guided by the provisions contained in Sections 23 and 24, providing matters to be considered or neglected in determining consideration. Thus it would be seen that between the Collector and the Reference Court, whose powers if invoked under Section 18, the do's and dont's which regulate their respective roles arc set out in Sections 23 and 24 of the Act and Section 23(S-A) is a pait of those provisions. So what the Court is required at a later stage to do under Sub-section 1-A of Section 23, the Collector is required beforehand to do under Section 11 read with Section 15. Having in the first place determined the amount of compensation to be awarded for land, as required by Section 23(1), both, in their respective spheres, arc required to further award an additional amount calculated at the rate of 12 per cent per annum on such market value, as found to be existing on the date of notification under Section 4, for the period following commencing from the date of publication under Sub-section (1) of Section 4, in respect of such land, to the date of award, of the Collector, or the date of taking possession of the land, whichever is earlier [emphasis laid]. It is thus evident that the governing point for determining the amount of compensation to be awarded for land acquired under the Act is the date of notification under Section 4 of the Act. That the provisions aforesaid arc substantive provisions and as amended would apply prospectively is also the dictum in Zora Singh's case (supra). On that basis Section 23(I-A) can be visualized as if a super-structure on the structuring of Section 23(1), which in turn rests on the twin pillars of Sections 11 and 15 which in turn rests on the notification under Section 4 of the Act as its foundation, the date of publication of which is the foundation stone. The legislature having designed the horizontal growth in such manner, the collective scheme which has been made operational prospectively on 24-9-1984 and onwards becomes plain because that is the date on which the amendment comes into effect. When we import this understanding to the scheme of things it becomes evident that a Court when applying Sub-section I-A of Section 23 would do so only K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  4 if it has in hand an acquisition based upon a notification under Section 4 of the Act issued on 24-9-1984 or thereafter and not to any such notification issued earlier to that date. Same would be the role of the Collector at his end when employing Section 15 and making an award under Section 11 of the Act. 10. Section 30 of the Amendment Act however providing for transitional provisions is an exception giving a limited retrospectivity as to the applicability of Sub-section (I-A) of Section 23 so as to apply to some acquisitions commenced prior to 24-9-1984. The extended applicability is plain from the employment of the word "also" in the opening part. The principal Act having brought in Section I-A of Section 23 to the scheme of things was also ordained to apply and was deemed to have applied to two kinds of acquisition proceedings which were covered under Sub-clauses (a) and (b) of Sub-section (1) of Section 30 of the Amendment Act. As has been spelled out in this order earlier both the clauses are not applicable on the instant fact situation, the award herein having been made prior to 30-4-1982 and was final under Section 11, having related back to Section 4 notification of 21-3-1978. The limited retrospection is meant to cover acquisitions regarding which notifications under Section 4 of the Act were operative on the 30th day of April, 1982, the day when the Bill was introduced in the House of People and in which no award had been made by the Collector before that date (Vide Clause a) as also to notifications issued after 30th day of April, 1982 regarding which award had or had not been made by the Collector before the date of commencement of the Act, i.e., 24-9-1984 (vide Clause b). To these limited situations is the Court empowered to award under Sub-section I-A of Section 23 an additional amount in the case of acquisition covered under Sub-clauses (a) & (b) of Sub-section (1) of Section 30 of the Amendment Act in relation to notifications under Section 4 of the Land Acquisition Act issued prior to 24-9-1984. Viewed in this light, the use of Sub-section (I-A) of Section 23 is not available to the Court in presented to each and every acquisition, at all and every time, whenever determining compensation under Section 18 of the Act ignoring the date of the notification under Section 4 and its implications. 'Zora Singh's case (supra) appears to us to have conferred on the Court a power which it did not have excepting of course if the acquisition fell within the provision of Section 30, Sub-section (1) of the Amendment Act. The ratio appears to us to be too wide having serious ramifications and thus would require reconsideration. 11. Further, in our opinion, the use of the word 'Court' in Sub-section I-A of Section 23 is of no significance in the context. For that matter each of the Sub-sections in Section 23 use the said expression. The expression 'Court' in the context refers not only to Civil Court (on reference under Section 18) but also to High Court and Supreme Court on appeal. Suppose in a given case, solatium is not awarded or is awarded at a lesser rate, the High Court on appeal can award the same. Similarly, the principles enumerate in Sub-section (1) are of equal application to the High Court and Supreme Court on appeal. If so, logically it should follow--applying the principle of the said decision--that even the High Court/Supreme Court can also award the said benefit, if they decide the matter on or after 24-9-1984. Indeed Section 23 is of equal application to Collector. It cannot certainly be contended that the principles contained in and the benefits conferred by Section 23 are not applicable to and cannot be awarded by the Collector. The fact that Section 23 occurs in part III (Reference to Court and Procedure thereof) is of no significance. Now coming to the word 'award' occurring in Sub-section (1-A), the said word is used not as a noun but as a verb. The expression K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  5 'award is not defined in the Act. It is true that the decision of the Civil Court on a reference under Section 18 (whether relating to quantum of compensation or to apportionment thereof) is called an award by Section 1 of Section 26 but at the same time Sub-section 2 of Section 23 says that every such award shall be deemed to be a decree and the statement of the grounds of every such award a Judgment within the meaning of Section 2(2) and Section 2(9) respectively of the CPC, 1908. Be that as it may, we may reiterate that the said expression is used as a verb in the Sub-section and not as a noun. Can it be said that the word 'award' cannot be used, or is inappropriate, in the case of a High Court awarding the compensation or any other benefit under the Act? We think, not. The expression 'award' is used in the sense of 'give' or 'giving' and not in any technical sense, as something distinct in character from Judgment and/or decree. 12. The effect of the decision in Zora Singh's case (supra) is this: apart from the retrospective operation given by Sub-section (1) of Section 30 of the Amendment Act, another dimension of retrospectivity is found in the language of Sub-section itself. According to it, the only relevant test is whether the Civil Court (under Section 18) is rendering its decision (award) on or after the commencement of the Amendment Act--no other circumstance need be noticed. Even if the acquisition proceedings have begun and award of the Collector made prior to 30-4-1982, this benefit is available so long as the Civil Court (on a reference under Section 18) renders its decision or after 24-9-1984, It is well to remember that the said provision (Sub-section (1-A) of Section 23) is a provision in the realm of substantive law. This is also the view expressed in Zora Singh's case (supra); it says so expressly. In the case of substantive provisions, retrospective operation is not presumed unless the Act provides therefor either expressly or by necessary intendment. Ordinarily, therefore, the amended provision would not apply to pending proceedings. Suppose, the amendment had taken away or curtailed an existing benefit, what would be the position? The principle cannot be different, merely because the amendment either confers new benefits or enhances the existing benefits. The Parliament, by enacting Section 30(1) of the Amendment Act has made its intention clear, as to what extent the said provision shall have retrospective operation. We cannot add to it. We must look only to Section 30(1) to determine the ambit and reach of the retrospectively of Section 23(1-A). In our respectful opinion, the language of Sub-section (1-A) is not sufficient to, nor docs it warrant, infer another dimension of retrospectively to it. 13. The opinion expressed by us was also the opinion of a Bench of two Judges of this Court in Union of India and Ors. v. Fillip Tiago De Gama of Vedem Vasco De Gama which has of course been over-ruled in Zora Singh's case (snpra). The facts in Fillip Tiago's case (supra) are also similar to the facts in 'fords Singh's case (supra) and the facts of the case before us. There too, award of the Collector was made prior to 30-4-1982 and the decision of the Civil Court on reference under Section 18 rendered subsequent to 14-9-1984, that is on 28th May, 1985. Question arose, whether in such a situation the benefit of Section 23(1-A) can be given to the landholders. The learned Judges were of the opinion that in such a case the said benefit was not available. The reasoning of the Bench runs thus: The objective words used in this Sub-section are similar to those that are used in Section 23(2). It enjoins a duty on the court to award the additional amount at 12 per cent on the market value of the land for the period prescribed thereunder. But this K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  6 again is a part of the scheme for determining compensation under Section 23(1) of the Act It also operates on the market value of the land acquired. It is plainly and distinctly prospective in its operation since market value has to be determined as on the date of publication of notification under Section 4(1). But the legislature has given new starting point for operation of Section 23(1-A) for certain cases. That will be found from Section 30 Sub-sections (1)(a) and (b) of the Transitional Provisions. 14. The learned Judges then referred to language of Sub-section (1) of Section 30 of the Amendment Act and held that entitlement to the additional amount provided by Section 23(1-A) depends upon cither of the clauses in Sub-section 1 of Section 30 being satisfied and in no other case. The learned Judges also pointed out, and in our respectful opinion rightly, the distinction in the language used in Sub-section (1) and Sub-section (2) of Section 30. Whereas Sub-section (1) speaks of an award by the Collector alone, Sub-section (2) speaks of an award by Collector as well as the Court. This distinction indicates that wherever the Parliament intended that the benefit should be extended even by the Court, it said so expressly. 15. Mr. Krishnamurthy Iyer contends that the decision in Zora Singh's case (supra) runs counter the entire basis and reasoning of the decision of the Constitution Bench in Raghubir Singh's case (supra). Zora Singh's case (supra) has explained and distinguished Raghubir Singh's case (supra) as dealing with Section 30(2) and not with the question at issue in Zora Singh's case (supra). Since, we arc referring to the matter to a larger Bench, we do not wish to express any opinion on this submission of Shri Iyer. It is true that in Raghuvir Singh's case (supra) this Court's co-relating of Sub-section (2) of Section 30 of the Amendment Act with Sub-section (2) of Section 23 of the Principal Act lead the Court to award enhanced solatium and enhanced interest as provided by Sub-clause (b) of Section 15 and Section 18 of the Amendment Act, but that field is totally a separate field and cannot have any bearing to the controversy in hand. It is to be remembered that the provisions in the Parent Act remain good unless amended or altered at a later stage. The transitional provisions in the Amendment Act, on the other hand, cover matters which are in the pipeline and are in transit till reaching their destination. On clearance of the transitional load the transitional provisions exhaust themselves having outlived their utility. This in our view is also an aid which could go towards re-consideration of the ratio in Zora Singh's case (supra). 16. Mr. Krishnamurthy Iyer, learned Counsel for the Suite of Kerala raised yet another contention which we must deal with. It is this: In the State of Kerala, the Kerala Land Acquisition Act, 1961 (which had received the assent of the President) was in force until 24.9.1984 when the Land Acquisition Act, 1894 was extended to that State by virtue of the Amendment effected in Section 1(2) of the Land Acquisition Act, 1894 by the Amendment Act 68 of 1984. All the proceedings for acquisition of land until then were being taken under the Kerala Act. Only with effect from 24-9-1984, has the Central Act come into operation. If so, none of the provisions of the Central Act can have retrospective effect so as to slide into the operation of Kerala Act. The Provisions of Central Act, even as amended in 1984, do operate only on and from 24-9-1984 and cannot be given any retrospective effect--it is submitted. We cannot agree. Sub-section (2) of Section 1 of the Principal Act, prior to its amendment in 1984, applied the said Act to whole of India except "part B States". By the said Amendment Act, the words "part B Suites" were substituted by the words "the Stale of K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  7 Jammu and Kashmir". The effect is that the Central Act stood extended to part B States as well-r-i.e., to the enure country except the Suite of Jammu and Kashmir. 17. It is true that this extention is on and with effect from 24-9-1984 but by virtue of this very Amendment Act, certain provisions of the Principal Act, as amended by the Amendment Act, were given retrospective effect to the extent specified. In such a case it would be obvious that the said retrospective operation is equally operative and effective. We see no inconsistency in saying so. Indeed, saying otherwise would introduce an element of inconsistency. It has been held by this Court in Kanthimathy Plantation Pvt. Ltd. v. State of Kerala and Ors. that the effect of amendment of Sub-section (2) of Section 1 of the principal Act is the same as the repeal of the Kerala Act and that same consequences follow. It has been held that Section 6 of the General Clauses Act 1897 applies in such a situation, even though, as a matter of fact, the Kerala Act becomes inoperative not by any repealing provision but by virtue of Clause (1) of Article 254 of the Constitution. Accordingly we reject the contention of Shri Iyer. 18. For the reasons recorded hereinabove the matter is referred to a larger Bench for considering the correctness of the decision in Zora Singh's case (supra). The papers may accordingly be placed before the Hon'ble the Chief Justice of India for appropriate orders in this behalf. K.S. Pariapoornan And Ors. vs State Of Kerala And Ors. on 17 December, 1991  8