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1989 DIGILAW 422 (KER)

Kalliyanikutty Amma v. Special Tahsildar

1989-09-28

BHASKARAN NAMBIAR, MALIMATH

body1989
Judgment :- 1. The petitioners in this writ petition were owners of lands in Sy.Nos.1/1, 2,3 and 4 of Poonithura Village and Sy. No.5 of Elamkulam village of Kanayannur Taluk, Ernakulam District. On the 19th of September, 1977, the petitioners entered into an agreement as per Ext.P1 with the District Collector, Ernakulam that an extent of 7.11 acres comprising in the aforesaid survey numbers is to be acquired under the Kerala Land Acquisition Act for the purpose of Housing Accommodation Scheme of the second respondent and that they are agreeable for receiving compensation at the rate of , Rs.3458/- per Acre, inclusive of the solatium and value of all the improvements on the lands. These lands were sought to be acquired by issuing a preliminary notification under S.3 on 14-2-1978. The said notification lapsed for the reason that it was not followed by the issuance of an appropriate notification under S.6 within the statutory period. The petitioners however came to this court in O.P.No.5689 of 1979 praying for quashing of the preliminary notification and for a direction to restore possession of the lands, of which they alleged forcible possession was taken from them on 6-2-1979. The said writ petition was disposed of by this court on the 7th of July, 1980. This court noticed that the preliminary notification under S.3 having since lapsed, the question of enforcing the agreement Ext.P1 would notarise. This court however found that the taking of possession forcibly from the petitioners was unwarranted. Consequently a direction was issued that they should be put back in possession of the lands within two weeks. 2. It is during the pendency of the said writ petition that another preliminary notification was issued under S.3(1) of the Act on the 18th of June 1980 proposing to acquire the very same lands of the petitioners and for the very same purpose. This fact was brought to the notice of the court in the earlier writ petition by the Additional Advocate General. In pursuance of the preliminary notification further steps were taken to issue a final notification under S.6 of the Act on 5-4-1981 to acquire the petitioners lands. The total extent of the lands of the petitioners which were sought to be acquired measure 2.3522 hectares. This includes an extent of 0.2455 hectare which was in possession of several kudikidappukars. In pursuance of the preliminary notification further steps were taken to issue a final notification under S.6 of the Act on 5-4-1981 to acquire the petitioners lands. The total extent of the lands of the petitioners which were sought to be acquired measure 2.3522 hectares. This includes an extent of 0.2455 hectare which was in possession of several kudikidappukars. The said kudikidappukars exercised their right to purchase the portions of the lands in their occupation under the provisions of the Kerala Land Reforms Act. They were able to secure orders in their favour from the Land Tribunal and they obtained purchase certificates on 8-10-1978. As a result of their obtaining purchase certificates in respect of the portions of the land of which they were kudikidappukars, the petitioners lost title to the said portions and the titles stood vested in the erstwhile kudikidappukars. This subsequent event was taken note of at the time of taking action for passing appropriate awards under the Kerala Land Acquisition Act. Notice was issued to the petitioners under S.9(3) of the said Act proposing to pass an award only in respect of an extent of 2.1067 hectares, in respect of which alone they had subsisting titles at that time, excluding an extent of 0.2455 hectare, in respect of which they had lost title in favour of Kudikidappukars. Separate notices were issued to the erstwhile kudikidappukars who had become owners of certain portions. So far as such kudikidappukars are concerned,separate awards were passed by settling their claim by allotting alternate sites in their favour in Award No.1/1985 dated 30-11-1985. So far as the portion of the lands in respect of which the petitioners had title, a separate award came to be made as per Award No.6/1981 on 31-8-1981, Ext.P5 on the basis of the agreement Ext.P1 dated 19-9-1977. So far as the portion of the lands in respect of which the petitioners had title, a separate award came to be made as per Award No.6/1981 on 31-8-1981, Ext.P5 on the basis of the agreement Ext.P1 dated 19-9-1977. It is in this background that the petitioners approached this court in this writ petition under Art.226 of the Constitution seeking a declaration that the provisions of the Kerala Land Acquisition (Amendment) Act 1980, Act 3 of 1981, are unconstitutional and void and for a declaration that the agreement Ext.P1 is not an agreement as envisaged by S.16 of the Kerala Land Acquisition Act 1961 and could not therefore be made the basis of the award Ext.PS and for the issue of a writ in the nature of mandamus directing the respondent to fix compensation of the lands mentioned in Ext.P3, ignoring Ext.P1 and Act 3 of 1981, after quashing the impugned order Ext.PS. 3. We shall first examine the contentions regarding validity of the amendment to S.16 of the Land Acquisition Act by Act 3 of 1981. S.16(1) of the Act before its amendment read as follows: "16. Award in case of agreement as to the amount of compensation.- (1) If the Collector and all the persons interested agree as to the amount of compensation to be allowed, the Collector shall make an award under his hand for the same." Section 16 as amended by Act 3 of 1981 reads as follows: "16. Award in case of agreement as to the amount of compensation.-(1) If the Collector and all the persons interested agree whether before or after the date of publication of the notification under sub-section (1) of S.3, as to the amount of compensation to be allowed, the Collector shall make an award under his hand for the same. Provided that an agreement executed before the date of publication of the notification under sub-section (1) of S.3 shall not be binding on the, persons interested after the expiry of four years from such date. (2) Such award shall be filed in the Collector's office and shall subject to the proviso to sub-section (1) be conclusive evidence, as between the Government and all persons interested of the value of the land and the amount of compensation allowed for the same." A validation clause was added by S.7 of the amending Act which reads as follows: 7. Validation.-Notwithstanding anything contained in any judgment, decree or order of any court, any agreement as to the amount of compensation to be allowed for any land to be acquired under the principal Act executed after the first day of May, 1977 and before the date of commencement of this section shall not be deemed to be invalid or ever to have been invalid merely by reason of the fact that such agreement was executed before the date of publication of the notification under sub-section (1) of S.3 of the Principal Act in respect of such land." Section 16, as amended, came up for consideration before this court in 1989(2) KLT 391 between Ramapriya Hotels (P) Ltd. and State of Kerala. We have interpreted the proviso to sub-section (1) of S.16 added by the amending Act holding that the agreement shall not be binding on the persons interested after the expiry of 4 years from the date of the agreement and not from the date of the preliminary notification issued under the Land Acquisition Act. So far as this case is concerned, the award having been made on 31-8-1981, it is well within the statutory period of four years commencing from the date of agreement dated 19-9-1977. 4. The principal attack of Shri. M.V. Joseph, learned counsel for the petitioners, is against the amendment effected to sub-section (1) of S.16 by which an agreement executed prior to the issuance of the preliminary notification in regard to the amount of compensation .to be allowed can be made the basis of an award. Sub-section (1) of S.16, as amended, makes it clear that the agreement contemplated could be executed either before or after the date of publication of the preliminary notification under sub-section (1) of S.3. It was contended by Shri Joseph that the amendment made is not of any general application but is intended only to govern two sets of persons, the petitioners in this case and the contesting parties in O.P.No. 704/82. They were parties to the earlier writ petition, O.P. No. 568 of 1979. It is not possible to agree to the contention that it has limited applicability only to these parties. They were parties to the earlier writ petition, O.P. No. 568 of 1979. It is not possible to agree to the contention that it has limited applicability only to these parties. Though the statement of object of the amending Act adverts to the judgment in O.P. No.568 of 1979, it is only to indicate the reason that prompted the legislature to bring out the amendment and not to restrict the scope of the amendment only to the parties to the said writ petition. It is obvious that all agreements like Ext.P1 which were in force on the date of the amendment would be equally governed by the amended provisions. Similarly the amended provisions would equally be applicable to future agreements executed before or after the issuance of the preliminary notification. It is, therefore, not possible to accede to the contention that the legislature has picked and chosen only these parties for hostile discrimination and therefore S.16(1) is violative of Art.14 of the Constitution. So far as the contention regarding the validity of the proviso to sub-section (1) of S.16 on the ground that it is violative of Art.14 of the Constitution is concerned, the said contention stands negatived by the earlier decision of ours reported in 1989 (2) K.L.T. 391. 5. It was next contended that sub-section (2) of S.1 of the Amendment Act 3 of 1981 is violative of Art.14 of the Constitution as retrospective effect is given to the amended S.16(1) with effect from the 1st of May, 1977. The said provision reads: "1 (2) S.6 shall be deemed to have come into force on the 1st day of May, 1977 and the remaining provisions of this Act shall be deemed to have come into force on the 4th day of November, 1980." It is difficult to understand how this contention advances the case of the appellant in any manner. Even if no such retrospective operation was given by sub-section (2) of S.1 of the Amending Act, the provisions of sub-section (1) of S.16, as amended, by their own force would govern the agreement Ext. P1 and could be made the basis of an award passed after the publication of the amending Act in the gazette on 16-1-1981. Under S.16(1), as amended, an award can be made on the basis of an agreement entered into before or after the publication of the notification under S.3(1). P1 and could be made the basis of an award passed after the publication of the amending Act in the gazette on 16-1-1981. Under S.16(1), as amended, an award can be made on the basis of an agreement entered into before or after the publication of the notification under S.3(1). Therefore agreements prior to 1st of May, 1977 also could have been made the basis for an award under S.16(1). But by sub-section (2) of S.1 of the amending Act retroactivity flowing from S.16(1) is limited to 1st May, 1977. As retrospectivity is limited to a reasonable period prior to the amendment, it cannot be regarded as arbitrary and therefore violative of Art.14 of the Constitution. Hence the attack against sub-section (2) of S.1 of Act 3 of 1981 fails. 6. The next contention is in regard to the validity of the validation provision contained in S.7 of the amending Act 3 of 1981. S.7 provides that notwithstanding anything contained in any judgment, decree or order of any court, any agreement as to the amount of compensation after the 1st day of May, 1977 and before the date of commencement of this section shall not be deemed to be invalid or ever to have been invalid merely by reason of the fact that such agreement was executed before the date of publication of the notification under sub-section (1) of S.3 of the principal Act in respect of such land. It is necessary to point out that sub-section (1) of S.16, as amended, makes it clear that an agreement executed before the date of the preliminary notification in regard to the amount of compensation payable in respect of the land can be made the basis of an award. In O.P. No. 568 of 1979, the very same agreement Ext.P1 came up for consideration. It was held that, in that case by the time the writ petition came up for hearing, the preliminary notification having lapsed, the final notification not having been made within the statutory period, the agreement Ext.P1 could not be made the basis of an award under S.16 of the Act. The basis of the said decision now stands altered by the amendment of sub-section (1) of S.16 which provides that an agreement executed prior to the issuance of the preliminary notification could be made the basis of an award under S.16 of the Act. The basis of the said decision now stands altered by the amendment of sub-section (1) of S.16 which provides that an agreement executed prior to the issuance of the preliminary notification could be made the basis of an award under S.16 of the Act. The said decision cannot be understood as declaring that the agreement Ext. P1 is illegal and invalid and not enforceable in law. All that has been said in the said judgment is that the preliminary notification having lapsed, the question of the said agreement being made the basis of an award under S.16 does not arise. It is, therefore, clear that no decision was rendered to the effect that Ext.P1 agreement is illegal and unenforceable. Even without the aid of the validation provision, the Collector can make an award under S.16 of the Act, as amended on the basis of the agreement Ext.P1, provided the agreement satisfies the conditions specified in the said provision. If the earlier judgment in O.P. No. 568 of 1979 is capable of being understood as declaring the agreement as invalid, as contended by the learned counsel for the petitioners, the validation provision would come to the aid of the respondents. The legislature cannot reverse a judicial decision. But, the basis on which the judgment is based can be altered so as to render the judgment ineffective. A legislative enactment, changing the basis of a judgment rendered by a court of law and thereby making the judgment ineffective, does not encroach on the judicial power, but it is well within the competence of the legislature. That is what has been ruled by this Court after a thorough examination of the law on the question in O.P. No. 8760 of 1982. Hence, we have no hesitation in holding that S.7 of the Amending Act containing the validation provision is not unconstitutional for any reason. 7. S.16 of the Act provides for an alternate mode of determining compensation on the basis of an agreement, with the object of achieving finality in the matter expeditiously. The agreement contemplated is between the Collector on the one hand and all the persons claiming or entitled to claim compensation payable on account of the acquisition of land under the Act. The agreement should be as to the amount of compensation to be paid. The agreement contemplated is between the Collector on the one hand and all the persons claiming or entitled to claim compensation payable on account of the acquisition of land under the Act. The agreement should be as to the amount of compensation to be paid. Such an agreement could be one entered into prior to the date of publication of the notification under sub-section (1) of S.3 or after the date of such publication. If the agreement is prior to the date of such publication it will not be valid for the purpose of making the award beyond a period of four years from the date of the agreement. In other words, no award can be made after the expiry of four years from the date of the execution of the agreement. The question whether the agreement satisfies all the conditions prescribed by S.16 has to be decided with reference to the date on which the award is made and in respect of the lands acquired to which the award relates. 8. The next contention of the learned counsel for the petitioners is that all the persons interested in the compensation payable in respect of the lands not having joined the agreement Ext.P1, no award could be made on the basis of the said agreement, under sub-section (1) of S.16 of the Act. It was contended that apart from the petitioners, the other persons interested in the compensation payable are the erstwhile kudikidappukars in respect of a total extent of 0.2455 hectares. He relied upon the decision of this court in Ramapriya Hotels case wherein we have held that a mortgagee is a person having an interest in the compensation payable in respect of the land acquired and that therefore if the mortgagee of the land is not a party to the agreement, no award can be made on the basis of such an agreement, as such an agreement cannot be regarded as one executed by all the persons interested in the land. The contention of the respondents, however, is that the kudikidappukars are not persons interested in the land to which the award Ext.P5 passed in this case relates. The contention of the respondents, however, is that the kudikidappukars are not persons interested in the land to which the award Ext.P5 passed in this case relates. If the petitioners are right in their contention that the kudikidappukars are persons interested in the compensation payable in respect of the relevant lands in question, they would be right in maintaining that the award made on the basis of such an agreement would be illegal and invalid. The award Ext.P5 relates only to the lands described in Ext.P3 notice issued under sub-section (3) of S.9 of the Act. None of the lands in possession of the kudikidappukars are included therein. The award relates to the lands other than those in which the kudikidappukars had any interest. A separate award No. 1/1985 was passed on 30-11-1985 in favour of the kudikidappukars in respect of the portions of the lands which were in their occupation and of which they had become owners in the years 1978, having obtained purchase certificates under the relevant provisions of the Kerala Land Reforms Act. Thus it is clear that so far as the award Ext.P5 is concerned, it relates only to those lands in respect of which only the petitioners had title and interest, in which none of the kudikidappukars had any right, title or interest. Thus the essential condition of sub-section (1) of S.16, of all the persons having an interest in the compensation payable in respect of the land acquired being parties to the agreement is duly satisfied so far as the award Ext. P5 is concerned. It is necessary to notice that the petitioners have not prayed for a direction to make an award in their favour, in respect of the portions of the lands which were in occupation of the kudikidappukars. The prayer of the petitioners in the writ petition is clear and specific and is confined to the seeking of a writ in the nature of mandamus directing the respondents to make an award in accordance with law in regard to the lands described in the notice Ext.P3, that is the lands which do not include any portion of the lands in which any of the kudikidappukars had any interest. Thus the conclusion is incapable that all the persons interested in the compensation in respect of the lands referred to in Exts. P3 and P5 are parties to the agreement Ext.Pl. 9. Thus the conclusion is incapable that all the persons interested in the compensation in respect of the lands referred to in Exts. P3 and P5 are parties to the agreement Ext.Pl. 9. We shall now consider if the agreement Ext.P1 is in regard to the amount of compensation to be allowed for the lands acquired. The agreement Ext.P1 has been executed between the petitioners and the Collector. It states that the petitioners are the absolute owners of the property 'be little more or less described in the schedule'. It further provides that the petitioners on their own will agree to receive by way of compensation Rs. 3458/- per Are including solatium and value of all improvements situated on the said land as fair value and proper price of the property. It is further stated that the petitioners will accept without protest on their behalf value/ compensation at the rate of Rs. 3458/- per Are inclusive of solatium and the value for all the structures and improvements on the property to be acquired and referred to in the schedule. It is further stipulated that the Collector shall make an award of compensation for the properties described in the schedule at the rate of Rs. 3458/- per Are inclusive of solatium and value for all structures and improvements in and upon the said land. The last paragraph of the agreement states that the petitioners agree to give to the kudikidappukars who were in possession of 7.11 acres of land, alternate sites and shifting charges and other compensation as fixed under the Kerala Land Reforms Act. The agreement speaks of the rate of compensation payable in respect of the lands acquired. The agreement does not in terms speak of the actual amount of compensation payable in respect of the lands acquired. It provides for compensation being paid at a uniform rate of Rs. 3458/- per Are. As all that is required to be done is to make arithmetical calculations of the actual amount of compensation payable with reference to the actual extent of the lands acquired, it has to be held that the agreement is in regard to the amount of compensation to be allowed for the lands acquired. 3458/- per Are. As all that is required to be done is to make arithmetical calculations of the actual amount of compensation payable with reference to the actual extent of the lands acquired, it has to be held that the agreement is in regard to the amount of compensation to be allowed for the lands acquired. Though the agreement contains Clause.6 imposing an obligation on the part of the petitioners to provide alternate sites and shifting charges and other compensation to the kudikidappukars and to arrange for their shifting, that part of the agreement does not strictly form part of the agreement in regard to the amount of compensation to be allowed in respect of the lands acquired to which the award Ext.P5 relates. Though on the date of the agreement Ext.P1 the petitioners had title to all the lands including those portions which were in occupation of the kudikidappukars, what has to be considered is as to whether the agreement relates to lands to which the award pertains, that is lands other than those in possession of kudikidappukars as on the date on which the award Ext.P5 came to be passed. The agreement when read as a whole indicates that the extent of the lands was not of the essence of the matter so far as the amount of compensation agreed to be paid is concerned. That is why the extent is described as "little more or less" and provides for a uniform rate of compensation to be allowed. Hence the agreement holds good for the lands for which the award Ext.P5 relates. 10. Though on the date on which the agreement was executed, the petitioners had title in respect of all the lands and kudikidappukars had only an interest in respect of the portions of the lands in their occupation the said rights of theirs ripended into absolute title subsequent to Ext.P1, some time in the year 1978. What the land acquisition officer did was to pass two awards, one in respect of portions acquired in respect of which the petitioners continued to have title and another in favour of the kudikidappurars in respect of the portions of the lands acquired which were in their possession in respect of which they acquired full title in the year 1978. What the land acquisition officer did was to pass two awards, one in respect of portions acquired in respect of which the petitioners continued to have title and another in favour of the kudikidappurars in respect of the portions of the lands acquired which were in their possession in respect of which they acquired full title in the year 1978. It is well settled that the land acquisition officer can pass more than one award in respect of the lands acquired (vide AIR 1932 Privy Council 102 between Prag Narain and Collector of Agra). The award Ext.P5 cannot therefore be held to be invalid. 11. It was lastly contended by the learned counsel for the petitioners that the petitioners are entitled to be awarded compensation for the period during which they were unlawfully dispossessed from the lands acquired. That their dispossession for some time was unauthorised stands established by the earlier decision in O.P. No. 568 of 1979. The petitioners have, however, not sought any specific relief in this behalf in the writ petition, though a ground has been taken in ground 8(c) complaining about the award Ext.P5 not making any provisions in regard to compensation payable for the period during which the petitioners stood unauthorisedly dispossessed. The claim for damages on that ground could not form part of the award Ext.P5. The petitioners have to work out their rights independently in this behalf. All that we need say therefore is that it is open to the petitioners to work out their rights in accordance with law in this behalf. For the reasons stated above this writ petition fails and is dismissed. No costs. Dismissed.