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1991 DIGILAW 462 (KER)

State of Kerala v. Krishnan Nair

1991-10-25

G.VISWANATHA.IYER, JAGANNADHA RAO, JOHN MATHEW

body1991
Judgment :- Viswanatha Iyer, J. The question referred is whether a landowner is entitled to the benefit of S.23(1-a) of the Land Acquisition Act, 1894 (the Central act) when the award of the Collector had been passed before April 30,1982 and the matter was pending in reference in court on that date. A Division Bench of this Court had in L. A. A. No. 119 of 1986 and related cases held that the amount under S.23(1-a) was not payable in cases where the award of the Collector was passed before April 30,1982, though subsequent proceedings by way of reference were pending on that date. The Division Bench before whom this case came up felt that various aspects relating to the statutory scheme of S.23(1-a ) had not been adequately considered in the said decision and that the matter required further scrutiny. The case was therefore referred for consideration by a Full Bench. 2. 3.93.82 hectares of land situated in Anchamada village of Thiruvananthapu-ram District belonging to the respondents were acquired for a public purpose. The notification under S.3(l) of the Kerala Land Acquisition Act, 1962 was published on May 18,1976. The award was made on January 3,1979. The respondents-'landowners were not satisfied with the amount of compensation awarded by the Collector, and on the matter being referred to court under S.20 of the Kerala Act, the lower court passed the impugned judgment on January 31,1983 enhancing the compensation by Rs.350/- per cent. The State has challenged the enhancement in this appeal. Pending appeal, the (Central) Land Acquisition (Amendment) Act 68 of 1984 (hereinafter referred to as the Amendment act) came into force on September 24,1984, replacing the Kerala Land Acquisition Act, 1962. 3.The Amendment Act brought about far reaching changes in the Central Act, one of which was the introduction of S.23(1-a), providing that, in addition to the market value of the land, the court shall in every case award an amount calculated at the rate of 12% per annum on the market value, for the period commencing on and from the date of publication of the notification under S.4 sub-s.(l) in respect of the land, to the date of the award of the Collector or the date of taking possession of the land, whichever was earlier. S.30 of the Amendment Act contained the transitional provisions which provided limited retrospectivity for some of the provisions contained in the amendment. S.30 of the Amendment Act contained the transitional provisions which provided limited retrospectivity for some of the provisions contained in the amendment. The respondents staked a claim for payment of the amount under S.23(1-a), taking advantage of the State's appeal and that has resulted in this reference as mentioned earlier. 4. The respondents claim the benefit of-S.23(1-a ) under sub-s.(l) of S.30, the transitional provision. It is not their case that S.23(1-a), on its own language, applies to awards passed at any point of time, merely because the matter was pending before any court on reference or appeal at the time the Amendment Act came into force on September 24,1984. Their case is rested only on sub-s.(l) of S.30 and the retroactivity given thereby to S.23(1-a). The case of the appellant State, on the other hand is that the benefit of S.23(1-a ) is available only if the award of the Collector is made on or after April 30,1982, and that it has no application where the award had been made before that dale and the matter was pending only in subsequent proceedings by way of reference or otherwise on that date. We have therefore to examine whether the transitional provision enables the respondents to claim the amount under S.23(1-a) when the Collector's award in their case-was passed as early as on January 3,1979. We have therefore to examine whether the transitional provision enables the respondents to claim the amount under S.23(1-a) when the Collector's award in their case-was passed as early as on January 3,1979. The decision turns on the interpretation of the relevant transitional provision, sub-s.(l) of S.30 of the Amendment Act which we shall extract: "(1) The provisions of sub-s. (l-a ) of S.23 of the principal Act, as inserted by clause (a ) of S.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 date, whether or not an award has been made by the Collector before the date, of commencement of this Act." We may also quote sub-s.(2) which deals with certain other beneficial provisions namely enhancement of solatium under S.23(2) and interest under S.28, as it will be necessary to refer to it in the course of this judgment: "(2) The provisions of sub-s.(2) of S.23 and S.28 of the principal Act, as amended by clause (b) of S.15 and S.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." 5. The provisions of an enactment are presumed to be not intended to have any retrospective operation unless such operation appears very clearly from the enactment itself or arises by necessary implication. But, when the Act contains substantive, amending and repealing provisions, it is common to include a transitional provision spelling out when and how the operative parts of the Act take effect. But, when the Act contains substantive, amending and repealing provisions, it is common to include a transitional provision spelling out when and how the operative parts of the Act take effect. The question of retrospectivity of any particular provision has in such cases to be adjudged with reference to the transitional provisions. S.30 of the Amendment Act which is the provision with which we are concerned has not made the amended provisions wholly or generally retrospective with effect from any particular date. On the other hand, what has been done is only to give limited retrospectivity, to the extent provided therein. Such retrospectivity is restricted to certain areas covered by the parent Act, to be discovered from the specific terms of the transitional provision.,(vide Union of India v. Raghubir Singh AIR 1989 S.C. 1933). The extent to which S.23(1-a) is retrospectively applied has to be discovered from the provisions of sub-s.(l) of S.30, which provides that the provision 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, (when the Amendment Bill was introduced in the House of the People) in which no award has been made by the Collector before that date; and (b) every proceeding for the acquisition of any land under the principal Act commenced after that date whether or not an award has been made by the Collector before the date of commencement of the Amendment Act. 6. There can be no doubt that S.23(1-a ) applies to all cases where the proceedings for acquisition have been initiated after the Amendment Act came into force on September 24,1984. Sub clause (b) of sub-s.(l) of S.30 attracts the section also to cases where the proceedings for acquisition have been commenced after April, 30,1982 whether or not the award was made by the Collector before September 24,1984. The section has therefore been made retrospective at any rate from April 30, 1982 and the benefit thereof made available to all landowners, proceedings for acquisition of whose lands have been commenced after that date. The section has therefore been made retrospective at any rate from April 30, 1982 and the benefit thereof made available to all landowners, proceedings for acquisition of whose lands have been commenced after that date. The question is whether it has been made further retrospective (and if so, to what extent) so as to apply even to cases where the proceedings for acquisition had been commenced prior to April 30, 1982 and in which awards had been passed before that date. The contention of the respondents is that even though the award of the Collector had been made before that date, the matter was pending in reference in court on April 30, 1982, under S.20 of the Kerala Act and that was sufficient to attract the beneficient provisions of S.23(1-a ). But this is not warranted by the language of the transitional provision. What sub clause (a) of sub-s.(l) of S.30 of the Amendment Act stipulates is that the proceeding for acquisition should be pending as on April 30,1982 and no award should have been made by the Collector prior to that date. Both these conditions have to concur before the landowner could invoke S.23(1-a ) where the proceedings for acquisition have been commenced before April 30,1982. Even assuming that the proceeding for acquisition can be deemed to be pending, as on April 30,1982, by virtue of the pendency of the reference in the civil court on that date, there is the further requirement to be satisfied namely that no award should have been passed by the Collector before that date. The implication is obvious that the proceeding for acquisition should have been pending before the Collector himself as on April 30,1982 without being concluded by an award. The pendency of a proceeding before the civil court on reference will not satisfy the requirements of the transitional provision. 7. That the intention of Parliament was to confer the benefit only on landowners whose cases were pending award before the Collector on the crucial date, will be evident from a contrast of the language of sub Ss.(l) and (2) of the transitional provision. 7. That the intention of Parliament was to confer the benefit only on landowners whose cases were pending award before the Collector on the crucial date, will be evident from a contrast of the language of sub Ss.(l) and (2) of the transitional provision. Sub-s.(2) extends the benefits of enhanced solatium and interest payable under Ss.23(2) and 28 of the Central Act to awards made by the Collector or court, or even to any order passed by the High Court or the Supreme Court in appeal against any such award under the provisions of the principal Act after April, 30,1982 and before the commencement of the Amendment Act, namely September 24,1984. Sub-s.(2) has therefore made the concerned provisions applicable in all cases where the award of the Collector or the court is passed between April 30,1982 and September, 24,1984 as also to appeals against such awards, that is awards of the Collector or the reference court passed between those two dates as explained by the Supreme Court in Union of India v. Raghubir Singh, AIR 1989 S.C.1933. Sub-s.(2) specifically makes the amended provisions of Ss.23(2) and 28 retroactive and applicable to all cases where the references were pending in courts and to awards made by the courts in those references between April 30, 1982 and September 24, 1984 irrespective of the date on which the award of the Collector was made. The position under sub-s.(2) is therefore that the benefit of amended Ss.23(2) and 28 become available even if the award of the Collector had been made prior to April 30,1982 provided the reference was pending on that day, and was disposed of subsequently. The position in relation to S.23(1-a) is different. Parliament has limited the benefits thereof to cases where proceedings for acquisition were pending before the Collector on April 30,1982, and the award was passed by him thereafter. 8. This was the view which the Division Bench of this court took in L.A.A. No.119 of 1986 and related matters. The Bench correctly delineated the scope of the retrospectivity to S.23(1-a ) as applying only to those cases where the award of the Collector itself was made after April 30,1982. 8. This was the view which the Division Bench of this court took in L.A.A. No.119 of 1986 and related matters. The Bench correctly delineated the scope of the retrospectivity to S.23(1-a ) as applying only to those cases where the award of the Collector itself was made after April 30,1982. Reliance for this was placed on a decision of the Supreme Court in Union of India v. Jay Singh, 1989 (2) KLT 256 where it was observed that the additional amount of 12% under S.23(1-a ) was not payable as the award was passed long before the Amendment Act. The contention of the claimants in that case that the circumstances in which the Supreme Court rendered this judgment were not clear from trie judgment was not accepted by the Bench as they felt that the aforementioned observation itself was indicative of the fact that the award in that case had been made before April 30, 1982 and therefore precluded the applicability of S.23(1-a ). 9. This court had in the decision in Hindusthan O.C. Ltd. v. Damodaran Namboodlri, 1986 KLT 1013 held that the amount under S.23(1-a ) was payable in all cases decided by courts after September 24,1984, when the Amendment Act came into force, even if the award of the Collector had been made before April 30,1982. That decision was affirmed by the Supreme Court in Hindustan Organic Chemicals Ltd. v. Vasudevan Damodaran Namboodiri, 1989 (2) KLT 825 with the observation that since the court's award in that case was on February 16,1985, the benefits of the Amendment Act were applicable. The Supreme Court however clarified this judgment subsequently by the order dated November 20,1989 on I.A.No.I by which the court limited the benefits available to those other than the one under S.23C1-a ). The court observed that in all cases where the award of the Collector was prior to April 30,1982 the amount payable under S.23(1-a) was not admissible. The judgment of this court in Hindusthan O.C. Ltd. v. Damodaran Namboodiri, 1986 KLT 1013 in so far as it relates to S.23(1-a) therefore stands modified by this clarification made by the Supreme Court on November 20, 1989 (which unfortunately is not reported). 10. the Supreme Court had occasion to consider the matter again in Union of India v. Filip Tiago De Gama, 1990 (1) S.C.C.277. 10. the Supreme Court had occasion to consider the matter again in Union of India v. Filip Tiago De Gama, 1990 (1) S.C.C.277. The court held that under sub-s.(l)(a)of S.30, if the Collector has made the award before the crucial date namely April 30,1982, the additional amount under S.23(1-a ) cannot be awarded. Reference was made to the difference in the language of sub-s.(l) and (2) of S.30 to which we have already adverted herein earlier. The same view was reiterated in the subsequent decision in Hoshiarpur Improvement Trust v. President, Land Acquisition Tribunal, (1990) 2 S.C.C. 625 by another Bench of the Supreme Court. The award of the Collector in that case had been made on January 6,1979 and for that reason the court held that the landowner was not entitled to the benefit of S.23(1-a ). 11. the position that emerges is that S.23(1-a ) is retrospective to the extent that the benefit thereof is available in all cases where the award of the Collector is made on or after April 30,1982. But the amount under the section is not payable if the award of the Collector had been made before April 30,1982, even though the matter is pending in reference in court on that date. We hold accordingly. The decision of the Division Bench in L.A.A. No. 119 of 1986 and related matters on this aspect is correct and does not require reconsideration. 12. There are other points related to the merits of the enhancement, arising for consideration in this appeal. We have not considered those points. The appeal will go back to the Division Bench for decision on the other points arising for consideration.