CHIKKAMARAKKA v. STATE OF KARNATAKA — 1993 DIGILAW 196 (KAR)

R. V. VASANTHA KUMAR, J. ( 1 ) IN these cases an interesting question of interpretation of Section 11-a of the Land Acquisition Act, 1894 (Central Act) as amended by the land acquisition (Amendment) Act, 1984 (hereinafter called 'the act') has arisen for consideration, for the purpose of computing the period of two years in the context of acquisition proceedings getting lapsed. Land acquisition Act, 1894 got amended by act 68 of 1984 and the land acquisition (Amendment) Act, 1984 received the assent of the president of India on 24-9-1984. Earlier to the Amendment Act of 1984, Section 11 of the act as amended by Karnataka Act 17 of 1961 reads as follows:"enquiry and award by deputy commissioner. on the day so fixed, or on any other day to which the enquiry has been adjourned, the deputy commissioner shall proceed to enquiry into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, sub-section (1), and into the respective interests of the persons claiming the compensation, and shall make an award under his hand of (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him: provided that no such award shall be made by the deputy commissioner, without the previous approval of the state government or such officer as the state government may appoint in this behalf who in the case of an award made by an officer below the rank of the deputy commissioner of a district, may be the deputy commissioner of the district. "whereas by virtue of the land acquisition (Amendment Act) 1984 (Central Act) Section 11 was amended and new Section 11-a was also inserted. It reads:"enquiry and award by collector. "whereas by virtue of the land acquisition (Amendment Act) 1984 (Central Act) Section 11 was amended and new Section 11-a was also inserted. It reads:"enquiry and award by collector. On the day so fixed, or on any other day to which the enquiry has been adjourned, the collector shall proceed to enquiry into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 of the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, sub-section (1), and into the respective interests of the persons claiming; the compensation and shall make an award under his hand of (i) the true area of the land; (ii) the compensation which in his opinion should be allowed for the land; and (iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him: provided that no award shall be made by the collector under this sub-section without the previous approval of the appropriate government or of such officer as the appropriate government may authorise in this behalf: (as amended by act No. 68 of 1984, Section 8 ). "section 11-a reads as under: "period within which an award shall be made. The collector shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse: provided that in a case where the said declaration has been published before the commencement of the land acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. Explanation. in computing the period of two years referred to in this Section, the period during which any action or proceeding to be taken in pursuance of the said declaration is stayed by an order of a court shall be excluded. ( 2 ) THE main contention centres round about the meaning to be attached to the words 'make an award' and 'provided'. ( 2 ) THE main contention centres round about the meaning to be attached to the words 'make an award' and 'provided'. In the ordinary common parlance 'make' means to bring into being, to cause to exist, to construct, to frame, to fashion to 'make an award' is to form and publish a judgment on the facts. The words 'award' signifies to adjudge, give by judicial determination or deliberate judgment. To make an award is to announce and publish the judgment. It is a judicial act and while sometime said to partake of the attributes of a contract, it is more nearly akin a judgment of regular tribunal and is no more a contract than such judgment being at the same time of higher nature than a mere speciality. A proviso is generally intended to restrain the enacting clause and to exempt something which would have otherwise been with it or in some measure to modify the enacting clause word proviso has divorce operations, sometimes it signifies qualification or limitation, and sometimes a condition or covenant. A proviso is something in-grafted upon preceding enactment and not to enlarge the enacting clause and generally introduced by the word 'provided'. Clause provided generally contains a condition that certain thing shall or shall not be done in order that something in another clause shall take effect. Proviso and condition are synonymous. Section 11 of the act envisages enquiry regarding persons interested, measurements and validation of lands as on the date of preliminary notification made under Section 4 of the act and also making of award. Further it empowers the deputy commissioner to determine compensation and to record true area of land, allowable compensation to the land, and apportionment of compensation among persons interested. Proviso to Section 11 as added by Karnataka Act 17 of 1961 reads as follows:"provided that no such award shall be made by the deputy commissioner without previous approval of the state government or such officer as the state government may appoint in this behalf who in the case of an award made by an officer below the rank of the deputy commissioner of a district may be the deputy commissioner of the district. " ( 3 ) IN kaliyappan v state of Kerala and others, the Supreme Court while construing the scope and ambit of Section 11-a has observed at para 5 as follows:"under Section 11-a of the act the collector is empowered to make an award before the expiry of the period of two years from the date of the publication of the declaration under Section 6 of the act and in a case where the said declaration has been published before the commencement of the land acquisition (Amendment) Act, 1984, before the expiry of the period of two years from the date of its commencement. If an award is not made within the prescribed period of two years in either cases, it is open to the person interested in the land to approach the collector and tell him that the acquisition proceeding should be dropped unless the collector is able to produce before him an award made by him within the period of two years. He may also in such a case question the continuance of the acquisition proceeding in court. Thus no prejudice will be caused to the person interested in the land. At the same time it would not be open to a person interested in the land to get rid of the acquisition of proceeding by avoiding service of notice issued by the collector within the prescribed period. We are of the view that under Section 11-a of the act the words "the collector shall make an award. . . . . Within a period of two years from the date of the publication of the declaration" mean that the collector is empowered to make an award till the expiry of the last date of the period of two years irrespective of the date on which the notice of the award is served upon the persons interested in the land, 'to make an award' in this Section means 'sign the award'. That is the ordinary meaning to be ascribed to the words 'to make an award'. An extended or a different meaning assigned to the words 'the date of the award' by this court in raja harish chandra RAJ singh v deputy land acquisition officer cannot be applied in this case since such an extended or different meaning is neither warranted by equity nor will it advance the object of the statute. An extended or a different meaning assigned to the words 'the date of the award' by this court in raja harish chandra RAJ singh v deputy land acquisition officer cannot be applied in this case since such an extended or different meaning is neither warranted by equity nor will it advance the object of the statute. Similarly under the proviso to Section 11-a of the act the collector is empowered to make an award within two years from the date of commencement of the land acquisition (Amendment) Act, 1984 irrespective of the date on which the notice of award is served on the person concerned. We do not find any analogy between Section 11-a and Section 18 of the act insofar as the above question is concerned. The high court was, therefore, right in rejecting the above contention of the petitioner. " ( 4 ) TO appreciate the contentions advanced by the counsel on record, few facts are relevant to be stated. Notification under Section 4 (1) of the act was published on 11-8-87, gazetted on 13-8-87 and declaration under Section 6 of the act was made on 30-6-88 (gazetted on 21-7-88 ). In these cases, the deputy commissioner has forwarded his report dated 13-3-1990 duly signed under Section 11 of the act for approval of the government/deputy commissioner as enjoined under the proviso to Section 11 of the act (as applicable to state of karnataka) which is in pari materia with the first proviso to Section 11 (1) (a) of the Central Act as amended by the land acquisition (Amendment) Act, 1984. The government vide its letter dated 16-11-1992 has accorded its approval to the report sent by the land acquisition officer. ( 5 ) IT is to be seen from the records that subsequent to the approval by the government dated 16-11-1992, there is nothing to show that the land acquisition officer has made or signed any award except the one dated 13-3-90 which he forwarded it to the government for its approval. ( 6 ) THE petitioners contend that the deputy commissioner has not made any award within 2 years from the date of declaration under Section 6 of the act and as such the entire acquisition proceedings stand lapsed. ( 6 ) THE petitioners contend that the deputy commissioner has not made any award within 2 years from the date of declaration under Section 6 of the act and as such the entire acquisition proceedings stand lapsed. As against this contention it is argued by the society the fourth respondent in whose favour acquisition proceedings have been initiated that the report dated 13-3-1990 sent by the deputy commissioner to the government approval has to be treated as award since the same has been signed by the deputy commissioner. It is contended that as per the ratio of the Supreme Court in kaliyappan's case 'to make an award' means signing of the award and as such the report sent by the deputy commissioner is nothing but an award in its true legal sense and the same is well within the period of two years from the date of declaration. It is also argued that what is sent for approval to the government is nothing but the award and that the deputy commissioner has already made the award in conformity with the legal requirements as envisaged under Section 11 of the act and as such it has all the force of legal award and any, subsequent approval or non-approval of the same would amount to confirmation or modification of the award. It is contended having in view of the object of the introduction of Section 11-a in the Act, the making of the award means the report signed by the deputy commissioner at the first instance and that the scheme of the act does not contemplate further signing of the award after the same is approved. Society relies upon the observations of the Supreme Court in kaliyappan's case, 'to make an award' in this connection means 'signing the award'. In kaliyappan's case, award was passed on 23-9-1986 and the same was filed on 24-9-86 in the office of the collector and the notice of the award was served on land owners on 30-9-1986. Amendment act came into force in state of Kerala on 24-9-1984 whereas declaration under Section 6 in respect of acquired lands in those cases had been made on 19-1-1984. Amendment act came into force in state of Kerala on 24-9-1984 whereas declaration under Section 6 in respect of acquired lands in those cases had been made on 19-1-1984. It is contended that the award not having been made within a period of two years from the date of commencement of land acquisition (Amendment Act 1984) that is 24-9-1984 as required by the proviso to Section 11-a of the act the acquisition proceedings should be deemed to have lapsed. The Supreme Court negatived the above contention since the award has been signed that is within 2 years from the date earlier to the date of expiry as stipulated under Section 11-a of the act. In that context the Supreme Court explained the meaning of signing of the award as making of the award which was reiterated by this court in W. P. 4244 of 1989 and other cases decided on 28-2-1991. Whereas factuals in these cases are different from the cases decided by the Supreme Court. Admittedly, the approval of the government has been accorded on 16-11-1992. As such by application of the proviso the deputy commissioner could make an award and sign the same only subsequent to 16-11-1992 and not earlier. Having the scheme of the land acquisition in mind, it is to be stated that what was sent by the deputy commissioner after complying with all formalities envisaged under Section 11 of the act for approval to the government is only for a proposal, opinion called as formal award, draft award in common parlance and not an award in its legal sense; since the prior approval of the government is necessary before making an award as envisaged in the proviso to Section 11 of the act applicable to state and Section 11 (1) (a) under the Central Act. There cannot be any doubt that the proviso as it is worded unambiguously requires the deputy commissioner to obtain the previous approval of the state government before making an award. There cannot be any doubt that the proviso as it is worded unambiguously requires the deputy commissioner to obtain the previous approval of the state government before making an award. ( 7 ) IT is to be stated that in both the cases referred to date of approval by the government as being condition precedent before making an award did not arise for consideration and further there was no occasion to consider about the validity of the award as envisaged under the proviso to Section 11 of Karnataka Act and as well first proviso to Section 11 (1) (a) of the Central Act and its effect thereon. In kaliyappan's case, the state government published a declaration under Section 6 of Kerala Land Acquisition Act on 19-1-1984. On 24-9-1984 the land acquisition (Amendment) Act, 1984 came into force in the state of kerala. By Section 9 of the land acquisition a new Section i. e. Section 11-a was introduced into the Land Acquisition Act, 1894. Collector made an award on 23-9-86 and the same was filed in the office of the collector on 24-9-86 and notice and award was served on 30-9-86 on the land owners. The question that arose for consideration was about the proviso to Section 11-a which read:"provided that in a case where the said declaration has been published before the commencement of the land acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement. " ( 8 ) IN W. P. No. 4244 of 1989 and other connected cases, declaration under Section 6 of the Land Acquisition Act was made on 28-2-1985 and it was published on 14-3-1985. After enquiry the award was signed by the collector on 19-1-1987 and the same was forwarded to the government for approval and the same was approved on 27-2-1987. It is obvious that approved award was also within the period of 2 years the date of the declaration under Section 6 of the act. ( 9 ) IN bommon v government of mysore, this court has discussed the purport of the proviso to Section 11 of the act. Paras 12, 13 and 14 read: "para 12. There appears to be another reason why the state legislature seems to have amended Section 11 of the act by incorporating this proviso. ( 9 ) IN bommon v government of mysore, this court has discussed the purport of the proviso to Section 11 of the act. Paras 12, 13 and 14 read: "para 12. There appears to be another reason why the state legislature seems to have amended Section 11 of the act by incorporating this proviso. It is not unlikely, though the cases may be very rare, that in fixing up the compensation, the land acquisition officers may be influenced by extraneous considerations in determining the amount of compensation and may fix compensation far in excess of the real market value of such property at the relevant date. The proviso is intended to safeguard against such vagaries and proposals for payment of inflated amounts of compensation which might subject government to heavy losses. Para 13. We have no doubt in our mind from the propositions of law laid down by their lordships and extracted above, that the action of the collector in holding the enquiry relating to acquisition under the act is an administrative proceeding in order to enable him to form his own opinion regarding the various matters to be embodied in the award. A party who is aggrieved by the award made by the land acquisition officer, has got his remedy under Section 18 of the act by praying for a reference so that the amount of compensation should fee judicially fixed by a competent court. In this context, we should also note that when the land acquisition officer makes the award, the law does not provide any remedy to the state government to challenge the compensation awarded under the award for the simple reason that the award is an offer of compensation on behalf of the state government. The proviso is intended as an equitable measure to safeguard the rights of the state. Para 14. The proviso is intended as an equitable measure to safeguard the rights of the state. Para 14. As regards the contention raised by the learned Advocate for the petitioners that the proviso is inconsistent with the main Section and that on that account it is repugnant to law, it has to be noted that the subject of a proviso is to qualify or modify the scope and the ambit of the matter dealt with in the main section; the proviso may impose certain restrictions on the power to be exercised as conferred by the main Section or it may in certain cases incorporate circumstances under which extended power may be exercised by the authority concerned. But, under any circumstances, it is well established that the Section and the proviso have to be read together and have to be construed harmoniously. Mr. V. s. malimath, learned Advocate general appearing for the state, has drawn our attention to the following paragraph at page 219 of "craies on statute law" (sixth edition by s. g. g. edgar) on the construction of repugnant provisos and saving clauses. "it sometimes happens that there is repugnancy between the enacting clauses and the provisos and saving clauses. The question then arises, how is the Act, taken as a whole, to be construed? The generally accepted Rule with regard to the construction of a proviso in an act which is repugnant to the purview of the act is that laid down in attorney-general v chelsea water works namely 'that where the proviso of an act of parliament is directly repugnant to the purview, the proviso shall stand and be a repeal of the purview, as it speaks the last intention of the makers. "if the proviso is intended to act as a restraint on the power conferred by the main Section, that power shall be construed as one which emerges after conformation with the requirements of the proviso. As already indicated, the land acquisition officer acts on behalf of the government and hence there cannot be any repugnancy between the main Section and the proviso, if the officer is required to obtain the prior approval of the government. As already indicated, the land acquisition officer acts on behalf of the government and hence there cannot be any repugnancy between the main Section and the proviso, if the officer is required to obtain the prior approval of the government. If the Section and the proviso are read together, it would mean that before the land acquisition officer makes the award as regards the compensation to be paid for the property to be acquired, he shall secure the prior approval of the state government. In other words, for the purpose of the Section the opinion which the land acquisition officer has to embody in the award is the opinion as modified by the order or direction, if any, given by the government while approving the proposed amount of compensation. From this point of view, we are unable to see any repugnancy between the proviso and the main section. " applying the above ratio, it follows that the proviso which imposes certain restrictions on the opinion of land acquisition officer in proposing the compensation, the legislature has done nothing more than laying down the policy which should guide the fixation of compensation to be embodied, in an award to be made by the land acquisition officer. It is evident that if the main Section and the proviso are read together there shall not be an award without the previous approval of the state government. The signing of the award as being equivalent to making of the award would arise only after the approval of the award by the state government. ( 10 ) IT is an admitted fact that in these cases, the government has accorded its approval only on 16-11-1992 in respect of the opinion of draft award forwarded by the deputy commissioner and as such, ex facie, the Provisions of Section 11-a is attracted and land acquisition proceedings initiated under sections 4 and 6 of the act stand lapsed. The ratio of the case decided in v. t. krisknamoorthy v state of Karnataka is also of no assistance to the facts of these cases. Apart from the above point canvassed by the petitioners, the following points were also propounded by the petitioners. The ratio of the case decided in v. t. krisknamoorthy v state of Karnataka is also of no assistance to the facts of these cases. Apart from the above point canvassed by the petitioners, the following points were also propounded by the petitioners. (1) that the land acquisition proceedings as being vitiated on the ground of the same as being motivated and not in the interest of the public at large in view of the bulk allotment made to a society. (2) that since acquired lands come within the urban agglomeration area, the authorities under the Urban Land Ceiling Act alone being empowered and as such initiation of acquisition proceedings under the Provisions of the Land Acquisition Act as being colourable exercise of power and that too when there is a statutory body like Bangalore development board to regulate the distribution of land. (3) apart from the draft award forwarded by the deputy commissioner dated 13-3-90, the deputy commissioner has not made any award after the approval of the government as envisaged under the Provisions of section 11 of the act and the landlords have not received any award notice. (4) that society in whose favour acquisition proceedings were initiated has itself admitted in statement of objections that there has been delay on the part of government in according approval necessitating the society itself to seek writ reliefs. (5) bulk allotment in favour of society as being contrary to public policy and fraud being played on the innocent cultivators of lands. It is also to be noted that in each of the cases, apart from the broad propositions advanced, petitioners have highlighted additional facts relating to non-service of notice, enquiry under Section 5-a of the act being not held, possession being not delivered, some of the petitioners' names being not found in preliminary and final notifications etc. , and acquired lands being not vacant etc. As against the above contentions advanced, the society-the fourth respondent who is contesting party to the cause has refuted the propositions pleaded by the petitioners, not only on the general propositions but also in respects of other points raised by the petitioners in individual cases. , and acquired lands being not vacant etc. As against the above contentions advanced, the society-the fourth respondent who is contesting party to the cause has refuted the propositions pleaded by the petitioners, not only on the general propositions but also in respects of other points raised by the petitioners in individual cases. The main grounds on which the society has refuted the submissions made by the petitioners being: (1) that the petitioners having no cause of action as the authorities have complied all the statutory requirements as envisaged under the Provisions of the Land Acquisition Act and the same being valid. (2) that there is no statutory bar for the authorities to invoke the Provisions of Land Acquisition Act in respect of urban lands. (3) that Section 11-a of the act as being not applicable in view of the fact that award/opinion dated 13-3-1990 forwarded by the deputy commissioner for approval of the government as being the award in its legal sense since signing of the award amounts to making of the award and subsequent approval on 16-11-92 only amounts to either confirmation of award in case it is approved or modification of the award in case of disapproval. (4) pleadings in statement of objections do not amount to estoppel as far as statutory requirements are concerned. (5) that the allotment of land to the society is not only in the interest of public but also salutary in view of Bangalore development authority being not in a position to cope up with the distribution of the lands by itself and that courts have upheld the validity of the allotment of lands to the society as being legal in the absence of any mala fides. (6) that the writ petitions be dismissed on the ground of laches and delay and that possession having already been taken, that it would be most inequitable and illegal to declare the acquisition proceedings as having lapsed. ( 11 ) MERITS or demerits of the contentions, propositions and counter-propositions advanced need not be gone in detail in view of the findings arrived at on the scope of Section 11-a of the act. ( 12 ) RESPONDENTS' counsel contend that a stay order was passed by this court in W. P. No. 13310 of 1990 on 29-6-90 to the effect that:"operation of the declaration dated 30-6-88 issued by the respondent No. 1 in rd. ( 12 ) RESPONDENTS' counsel contend that a stay order was passed by this court in W. P. No. 13310 of 1990 on 29-6-90 to the effect that:"operation of the declaration dated 30-6-88 issued by the respondent No. 1 in rd. 182 aqb 84 (annexure-a to the w. p.) be and the same is hereby stayed for a period of two weeks from 29-6-1990". Later on 10-7-1990, this court further passed an order of the following effect:"that the interim order granted by this court on 29-6-90 in the above case be and the same is hereby continued until further order from this court. "on 7-2-1991 interim was clarified on the following lines:"interim order of stay granted by this court on 29-6-90 and continued by order dated 10-7-90 shall not prevent the government in giving approval to the draft award which is said to be pending considerations before the government. "it is argued that the explanation to the proviso to Section 11-a enures to the benefit for the purpose of computing the period of 2 years referred to in Section 11-a. In the instant case, what is argued is the draft award forwarded on 13-3-90 as partaking the character of the award and date of approval as being not the criteria for purposes of computation and as such since no award has been signed and made subsequent to approval, the question of applicability of explanation attached to the proviso to Section 11-a for computation does not arise in these cases. ( 13 ) TO set at naught, the controversy on the scope of the proviso to Section 11 of the act and ambit and scope of the proviso to Section 11 of the Act, it is apt to refer to the decision rendered by the Supreme Court in n. Boman behram and another v the government of mysore, which affirmed the decision of this court in bommon's case, (supra ). The relevant observations are at para 10, which reads:"the proviso states that no award shall be made without previous approval of the state government. An award made under Section 11 of the 1961 act is an offer of compensation. The deputy commissioner makes an offer. The deputy commissioner is an agent of the government. The government is the ultimate authority to approve the award. An award made under Section 11 of the 1961 act is an offer of compensation. The deputy commissioner makes an offer. The deputy commissioner is an agent of the government. The government is the ultimate authority to approve the award. Therefore, the proviso enjoins that no award shall be made without the previous approval of the state government. It is wrong to suggest that any opinion of the deputy commissioner is being over-reached by the state government. The deputy commissioner is not acting in judicial or quasi-judicial capacity in making the award under Section 11 of the 1961 act. The deputy commissioner acts in an administrative capacity as an agent of the state government. The area of authority of the deputy commissioner is subject to approval by the state government. The finality of the award under Section 11 of the 1961 act rests with the state government. "it was argued that in cases where the government delays in according approval or otherwise the very intendment of introduction of Section 11-a would be defeated. It is to be stated that the above contention also do not stand to reason in view of the fact that Section 11-a was introduced with a view to activate and accelerate the land acquisition proceedings with a view to reach finality within a period of 2 years from the date of declaration under Section 6 of the act. When that is the intention, it is incumbent on the part of the deputy commissioner to complete enquiry and record his opinion in respect of all the particulars enjoined under Section 11 of the act and forward the same for approval and it is incumbent on the part of government to have accorded approval within the time-bound period of 2 years. Then only the legislative intent by making necessary amendments to Section 11 of the Central Act by adding (proviso to Section 11 of the State Act as it stood earlier) and introduction of Section 11-a of the act would be fulfilled. ( 14 ) IN the light of the ratio of the Supreme Court in bomanbehram's case, I am of the view that the land acquisition proceedings initiated under sections 4 and 6 of the Land Acquisition Act viz. , notification No. Laq (1) sr 26/85-87, dated 11-8-1987 and notification No. Rd 182 aqb. ( 14 ) IN the light of the ratio of the Supreme Court in bomanbehram's case, I am of the view that the land acquisition proceedings initiated under sections 4 and 6 of the Land Acquisition Act viz. , notification No. Laq (1) sr 26/85-87, dated 11-8-1987 and notification No. Rd 182 aqb. 84, dated 30-6-1988 are hereby quashed in so far as petitioners' lands are concerned and further declared as having lapsed by virtue of Provisions of Section 11-a of the land acquisition (Amendment) Act, 1984. Benefit of this order will not enure to the other land owners who are persons interested whose lands have been acquired and possession taken under the above notifications. The respondents are directed to hand over possession to the petitioners and to persons interested from whom the possession of the lands were taken, the subject-matter of these writ petitions. It is made clear that the said notifications are hereby quashed in so far as petitioners' lands are concerned. In writ petition nos. 17189 of 1991 and 22290 to 22295 of 1991, Rule is issued and the same is made absolute. In other writ petitions, Rule issued is made absolute. ( 15 ) ACCORDINGLY, these writ petitions are allowed. No costs. --- *** --- .