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1999 DIGILAW 84 (KER)

State of Kerala v. Peravankutty

1999-02-15

P.A.MOHAMMAD, S.KRISHNAN UNNI

body1999
Judgment :- P.A. Mohammed, J. These appeals by the State arose from a common judgment passed by the Subordinate Judge's Court, Kozhikode in L.A.R. Nos. 211/94, 212/94, 213/94, 214/94, 215/94 and 171/95. The above reference applications were filed by the respondent-claimants under S.28A of the Land Acquisition Act. 2. The case putforth by the claimants is that as per the award dated 11.10.1988 they were awarded compensations but they failed to file application for reference under S.18 of the Act though the compensation awarded was inadequate. However, on 8.9.1992 the claimants came to know that as per the judgment in L. A.R. No. 136/89 the court below had enhanced and refixed the compensation in respect of the lands covered by the same notification at the rate of Rs. 12,000/- and Rs. 16,000/- per cent respectively for wet lands and garden lands. The claimants filed applications for certified copy of the judgment on 8.10.1992. On the basis of the certified copy of the judgment in LAR No. 136/89 so obtained they filed applications before the Land Acquisition Officer under S.28A on 10.11.1993 for redetermination of the compensation. However those applications were rejected. Thereafter on 4.12.1993 they filed applications for reference in the Court below under S.28 A. the Court below found that the land value fixed as per Ext. Al and Ext. A1(a), certified copy of decree and judgment in LAR No. 136/89 dated 30.11.1990, could be adopted in these cases subject to certain deductions. Accordingly, the Court below fixed the market value of the garden land and wet land at the rate of Rs. 10.000/- and Rs. 9,000/- per cent respectively. Being aggrieved by the said common judgment passed by the court below the State has filed these appeals. 3. Heard the Government Pleader on behalf of the State and also the counsel for the respondents. 4. The only contention raised by the Government Pleader is that the applications filed by the claimants before the Court below are hopelessly time barred. S.28 A of the Act is dealing with re-determination of the amount of compensation on the basis of the award of the court granting compensation in excess of the amount awarded by the Collector in respect of the land covered by the same notification. S.28 A of the Act is dealing with re-determination of the amount of compensation on the basis of the award of the court granting compensation in excess of the amount awarded by the Collector in respect of the land covered by the same notification. Under the said section all the interested persons who have not filed application under S.18 and who are aggrieved by the award are allowed to file the applications in case the court allows to another applicant any amount of compensation in excess of the amount awarded by the Collector under S.11 in respect of the land covered by the same notification under sub-s.(1) of S.4. Such application shall be made to the Collector in writing within three months from the date of the award seeking re-determination of the amount of compensation on the basis of the amount of compensation awarded by the court as above. The proviso to S.28 A(1) states that while computing the period of three months within which an application to the Collector shall be made the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded. In other words, the persons who are entitled to file an application under S.28 A shall file application to the Collector within a period of three months from the date of the award of the Collector after excluding the day of pronouncement of the award and time taken for obtaining the copy of the award. In the present case, Exts. Al and A1(a), the decree and judgment in LAR No. 136/89 were pronounced on 30.11.1990. However, the applications for certified copy of the judgment and decree in LAR No. 136/89 were filed only on 30.11.1992. That is to say, about one year and 10 months after the pronouncement of judgment. Thus those applications are obviously hit by the limitation provision contained in S.28A(1). 5. Notwithstanding the above, it was argued that the date of knowledge of the award was the relevant date to count the period of limitation and not the date on which the judgment and decree were passed. This contention appears to be against the express provisions contained in S.28A(1) of the Act. The Supreme Court in Tota Ram v. State of U.P. & Ors. This contention appears to be against the express provisions contained in S.28A(1) of the Act. The Supreme Court in Tota Ram v. State of U.P. & Ors. (JOT 1997 (6) SC 231) held thus: "It has been interpreted by this Court that the "court" means court of original civil jurisdiction to whom reference under S.18 would lie. Admittedly, the award of the reference court having been made on May 18,1990, the limitation began to run from that date. The proviso to S.28-A gives a right to the persons to obtain the certified copy of the award and decree and the time taken for obtaining the certified copy of the award and the decree shall be excluded in computing the period of three months. In view of the express language, the question of knowledge does not arise and, therefore, the plea of the petitioner that the limitation of three months begins to start from the date of the knowledge is clearly unsustainable and cannot be accepted." (Italics supplied) 6. Having realised the above legal position, the counsel for the claimants submits that question of limitation coming within the purview of S.28 A is now pending decision before the Supreme Court. In support of this submission the learned counsel relies on the record of proceedings of the Supreme Court in State of Tripura v. Roop Chand Das (1997) 5 SCC 757). Let us now examine what exactly is the question referred to the Constitution Bench of five judges? In Babiui Ram v. State of U.P. (1995) 2 SCC 689) the Supreme Court took the view that the limitation of three months for seeking a reference under S.28A would begin to run from the earliest of the awards given by the reference court. However, a contra view was taken by the Bench of three judges in Union of India v. Pradeep Kwnari (1995) 2 SCC 736). In view of these conflicts of views, the matter was referred to a Constitution Bench consisting of three judges in Jose Antonio Cruz Dos R. Rodriguese v. Land Acquisition Collector (1996) 6 SCC 746). However, a contra view was taken by the Bench of three judges in Union of India v. Pradeep Kwnari (1995) 2 SCC 736). In view of these conflicts of views, the matter was referred to a Constitution Bench consisting of three judges in Jose Antonio Cruz Dos R. Rodriguese v. Land Acquisition Collector (1996) 6 SCC 746). The second question referred to the Constitution Bench was this: "Whether each successive award or judgment and decree would give cause of action to file application under S.28 A; if so construed, doesnot such a construction violate the language used in S.28-A when Parliament advisely did not use such expressions?" On this question the Constitution Bench said in para 6 that there was a difference of opinion as the three Judge Bench in Pradeep Kumari case (1995) 2 SCC 736) had departed from the view taken earlier in two cases by the two Judge Bench. Therefore, the Court further said, "If and when that question arises in an appropriate case, perhaps a reference to a five Judge Bench may become necessary." Subsequently, the same question arose in Roop Chand Das case (1997) 5 SCC 757) and therefore, the Court recorded that the said question in fact had arisen and hence the matter required to be considered by a Bench of five judges. Thus, the question referred to above is pending consideration before the Constitution Bench of five judges. 7. As far as the present case is concerned, we do not see any such question arises for consideration. The question referred to the Constitution Bench and the question posed before us in the. present cases are totally different and distinct. As observed above the present cases are squarely covered by the decision in Tola Ram's case (supra). In the result, the impugned judgments and decrees passed by the court below are set aside. Thus the appeals are allowed. No order as to costs.