IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 25626 of 2009(W)
1. PANACHIKUNNEL ANNAMMA THOMAS,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. SPECIAL TAHSILDAR (L.A.),
For Petitioner :SRI.O.RAMACHANDRAN NAMBIAR
For Respondent : No Appearance
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
Dated :29/09/2009
O R D E R
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
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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
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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-
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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
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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
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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
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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
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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
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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
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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
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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
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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;
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(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
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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-
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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
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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.
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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
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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
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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
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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 inures
to all who are aggrieved by the award of the Collector. This
means that a person who is aggrieved by the award of the
Collector, on noticing an award passed by a court which
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results in the grant of a different rate of compensation to
another person whose land is acquired under the same
notification, is eligible to make application under Section 28A.
The question would be as to what would be the basis of that
application. The statute is clear. It says under Section 28A(1)
that the cause of action to file such an application arises where
in an award passed in this part, the court allows compensation
in excess of the amount award by the Collector. This means
that what is relevant is the award under Part III of the Act
which deals with reference to court and procedure thereon.
Notwithstanding the fact that an order of remit has been made
by an appellate court in exercise of the authority under Section
54 of the Land Acquisition Act, the consequential adjudication
by the reference court and the resultant award that would be
passed after remit by the appellate court is nothing but an
award under Part III of the Act. So much so, an award passed
by reference court following an appellate order of remit, is an
award sufficient to sustain an application under Section 28A
(1) of the Act.
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With the aforesaid finding, all the impugned orders are set
aside and the official respondent is directed to decide on the
applications for reference de novo in the light of what is stated
above. Writ petitions ordered accordingly.
Sd/-
THOTTATHIL B RADHAKRISHNAN,
JUDGE
lgk/30/9