Karnataka High Court
Land Acquisition Officer vs Balappa on 1 August, 1991
Equivalent citations: ILR1991KAR4277, 1992(1)KARLJ471
JUDGMENT Venkatachala, J.
1. This Appeal under Section 54 of the Land Acquisition Act, 1894 (for short 'the Act'), is of the Land Acquisition Officer, Bidar District, preferred against the award and decree dated 3-12-1988 made in LAC. No. 564/1986 by the Court of Civil Judge at Bidar granting enhanced compensation on a reference made to it under Section 28-A(3) of the Act.
2. The facts, which have given rise to the filing of this appeal, briefly stated, are these:
By a Preliminary Notification under Section 4(1) of the Act published on 20-9-1973 in the Official Gazette of the State Government, a vast area of agricultural lands comprised of several extents were proposed to be acquired for construction of Medpalli Tank in Aurad Taluk of Bidar District. A declaration that the said lands were required for public purpose was also made under Section 6 of the Act. The Land Acquisition Officer, who invited claims for compensation from the persons interested in the lands under Section 9 of the Act, by his awards dated 12-3-1976, determined the compensation payable for the lands. After the making of the said awards, notices thereof being given to the persons interested (claimants), most of them accepted the awards, handed over possession of the lands pursuant thereto and received the compensation payable thereunder. The claimants of lands in Survey Nos. 11, 12 and 14, which were also the lands acquired pursuant to the aforesaid preliminary notification and for which awards were made by the Land Acquisition Officer under Section 11 of the Act, not being satisfied with the determination of the market value of their lands at Rs. 773-64 per acre as had been done in respect of other lands, sought references under Section 18(1) of the Act. Such references being made to the Civil Court - the Court of Civil Judge at Bidar (for short 'the Reference Court), were registered by that Court as L.A.C.Nos. 66/1977 and 8/1977. Thereafter, the Reference Court having held an enquiry in those cases under Part 111 of the Act, made its awards on 19-4-1983 determining the market value of the lands concerned therein at Rs. 3,500/- an acre and those awards became final, in that, they were not questioned in appeals either by the claimants or the Land Acquisition Officer.
Respondents 1 to 12 here, who were either the original claimants or the legal representatives of some of the deceased original claimants, made an application on 7-3-1985 before the Land Acquisition Officer (appellant here) purporting to be under Section 28A of the Act for re-determination of the amount of compensation on the basis of the awards of the Reference Court made on 19-4-1983 in L.A.C.Nos. 66/1977 and 8/1977, on its file, which related to determination of the market value of the lands acquired pursuant to the aforesaid preliminary notification dated 20-9-1973. The Land Acquisition Officer rejected that application finding, inter alia, that Section 28-A introduced into the Act by Land Acquisition (Amendment) Act, 1984, which came into force on 24-9-1984, was hot retrospective in operation as would enable him to entertain the application made under that Section. However, since the claimants (respondents here) filed a written application before the Land Acquisition Officer (appellant here) purporting to be under Sub-section (3) of Section 28A of the Act requiring that the matter be referred for determination by the Court of the compensation for their lands, he referred the same to the Reference Court. The Reference Court, which registered the reference as L.A.C.No. 564/1986, on its file, having held an enquiry thereon, has enhanced the market value of the lands of the respondents here (claimants), as had been done for the lands concerned in its earlier awards made in L.A.C.Nos.66/1977 and 8/1977 and has also granted benefits awardable under Sections 23(1A), 23(2) and 34 of the Act, by making an award and decree in that regard on 3-12-1988. It is that award and decree which has given rise to the present appeal.
3. This Appeal since involved the applicability of Section 28A of the Act inserted into the Act by Central Act No. 68/1984, which provides for re-opening of awards made under Section 11 of the Act, a question of general importance, is being disposed of at the very stage of its admission after hearing learned Counsel for the contesting parties. 4. Section 28A of the Act, which is inserted into Part-Ill of the Act, pertaining to 'reference to Court and procedure thereon' and came into force on 24-9-1984, reads:
"28-A. Re-determination 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 in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other lands 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 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 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."
Sub-section (1) of Section 28-A, which provides for re-determination of the amount of compensation awarded by the Collector under Section 11 on the basis of the award of the Court made under Part-Ill of the Act, enables the persons interested in the lands aggrieved by the award of the Collector made under Section 11 of the Act, to make a written application to the Collector within three months from the date of the award of the Court for re-determination of the amount of compensation payable to them on the basis of the amount of compensation awarded by the Court. The proviso to the above sub-section specifies as to how the period of three months within which an application to the Collector shall be made under the sub-section, has to be computed. Sub-section (2) requires the Collector, who receives the application made under Sub-section (1), to conduct an enquiry and make an award determining the amount of compensation. Sub-section (3) provides for a written application being made to the Collector by a person who may not accept the award made under Sub-section (2) requiring him to refer the matter for the determination of compensation.
5. If an award had been made by the Court under Part-Ill of the Act before the coming into force of Section 28-A of the Act (24-9-1984) allowing to the applicant compensation in excess of the amount of compensation allowed by the Collector in his award under Section 11 of the Act, will Sub-section (1) of Section 28-A of the Act enable also an applicant, who was aggrieved by the award of the Collector made respecting his land acquired pursuant to the same preliminary notification, but had not made an application for reference under Section 18 of the Act by a written application, to invoke the application of Sub-section (1) of Section 28-A of the Act, being the main question for our consideration and decision, we shall proceed to examine the scope and ambit of that sub-section.
6. Invoking the applicability of Sub-section (1) of Section 28-A of the Act by the persons referred to therein, as could be seen from the express words "where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11" employed therein, can arise only when the awards are made by the Court allowing excess compensation subsequent to the coming into force of the provision and not prior to the coming into force of that provision. Further, the verb 'allows' found in the group of words 'where in an award under this Part, the Court allows to the applicant' being relatable to future tense, does not admit of an interpretation that the award, by which the Court allows excess compensation, covers an award made by it in the past, that is, prior to the coming into force of the sub-section. Invoking the applicability of Sub-section (1) by persons envisaged therein becomes possible only when allowing of the excess compensation is done by the Court by its award pronounced after the coming into force of Sub-section (1), becomes obvious from the proviso to that sub-section, for, it, in unequivocal terms, states that in computing the period of three months within which an application to the Collector shall be made under the sub-section, the day on which the award was pronounced (by the Court) and the time requisite for obtaining the copy of that award shall be excluded. Further more, when a right to make an application for re-determination of compensation is conferred under Sub-section (1) on a person, who was not otherwise entitled to make such application, it cannot be said that such right of making the application could be exercised on the basis of the past awards made by the Court allowing excess compensation, in that, it is well settled that a statutory provision conferring a right on a person cannot be construed as retrospective in operation unless the express language of the provision itself makes it retrospective in operation or by the language employed in the provision, such retrospective operation could be inferred. Hence, the scope and ambit of Sub-section (1) of Section 28-A of the Act, in our view, cannot be enlarged so as to enable applicants envisaged therein to make applications to the Collector seeking re-determination of the compensation in the awards under Section 11 made by him, when the award of the Court under Part-Ill allowing excess compensation was made prior to the coming into force of Sub-section (1).
7. When an application under Sub-section (1) of Section 28-A of the Act is made by a person who is not entitled to make such application, what has to be done by the Collector on such application, is the next question, which arises for our consideration and decision.
8. Sub-section (2) of Section 28-A of the Act, as seen therefrom, requires the Collector, who receives such application, to conduct an enquiry thereon after giving notice to all persons interested and giving them an opportunity of being heard, and make an award determining the amount of compensation payable to them. When the Collector finds that a person, who was not entitled to make an application under Sub-section (1), has made such application, he will have no option but to reject the same as one made without a right in that regard though the application made by a person, who had the right to make such application under Sub-section (1) thereof, is required to be considered and decided upon by the Collector as envisaged under the sub-section.
9. Then, comes for our consideration Sub-section (3) of Section 28-A of the Act. When a person does not accept the award to be made by the Collector under Sub-section (2), Sub-section (3) enables such person to make a written application to the Collector and require him to refer the matter to the Court for determination of the compensation according to the provisions in Sections 18 to 28 of the Act (Part-IIl of the Act). Though a reference is received under Sub-section (3) of Section 28-A by the Court in respect of an award made by the Collector rejecting the application of the applicant made under Sub-section (1) of Section 28-A of the Act finding that the application itself is not maintainable, the Court has to examine whether the application was maintainable or otherwise and if it comes to the conclusion that the Collector had rightly found it not maintainable, it could reject the reference itself as incompetent after holding such enquiry as deemed necessary in that regard. It is only where it finds that the application made under Sub-section (1) by the person concerned was competent, but wrongly rejected by the Collector, the Court can hold an enquiry envisaged under Sub-section (3) of Section 28A of the Act and decide the matter in accordance with that provision.
10. Having regard to the view we have taken of the scope and ambit of each of the sub-sections of Section 28A of the Act, we have to see whether Judgment under appeal (the award) made by the Reference Court calls to be sustained or set aside.
11. The Reference Court's earlier awards made in L.A.C.No. 8/1977 and 66/1977, which were claimed by the respondents for re-opening the award relating to their lands made by the Collector under Section 11 of the Act had been made by it on 19-4-1983 - long prior to the coming into force of Section 28-A of the Act, was undisputed. Respondents here made an application before the Collector (Special Land Acquisition Officer - the appellant) invoking the applicability of Sub-section (1) of Section 28-A of the Act on 7-3-1985 - about five months after the coming into force of Section 28-A (24-9-1984) for re-opening of their earlier awards made under Section 11 of the Act and re-determination of the compensation awarded therein. The Land Acquisition Officer, who received that application, rejected the same as barred by time. However, the respondents here since made an application before the appellant here, the Land Acquisition Officer - Collector under the Act, under Sub-section (2) of Section 28-A he referred that application to the Reference Court. The Reference Court, which received the reference so sent by the Collector, registered the same as L.A.C.No. 564/1986 for holding an enquiry thereon. The respondents here filed an application under Section 151 of the Code of Civil Procedure, 1908 (for short 'the Code'), in that pending reference seeking to invoke Court's inherent power for re-determination of the compensation payable to them on the basis of the award which had been made by it on 19-4-1983. The Reference Court purporting to exercise its inherent power, which was sought to be invoked by the respondents by making an application in that regard, has made the award and decree under appeal re-determining the amount of compensation payable for the lands of the respondents on the basis of its earlier award and decree in L.A.C.Nos.8/1977 and 66/1977 made on 19-4-1983 and relying upon the observations of the Delhi High Court in RAM MOHAN v. UNION OF INDIA, AIR 1987 Delhi 130 which read:
"The intention of the Legislature in inserting the new provision after Section 28 of the Act as Section 28-A which came into force with effect from September 28, 1984, is to give equal compensation to all persons whose lands had been compulsorily acquired by the Government under the same award and same notification under Section 4(1) of the Act. The purpose is to remove the anamolies in determination of the compensation by the Collector and the Court in same cases, that is to remove inequality in payment of compensation for the same or similar quality of land to different interested persons. It provides for an additional remedy to all aggrieved persons whose land has been acquired to call upon the Collector to pay compensation at the rate determined by the Court in other cases. It would give an opportunity to the Collector to re-determine the amount of compensation on the basis of the amount of compensation awarded by the Court. It gives further relief to seek determination of the compensation by the Court, if any one had obtained orders for payment of higher compensation for similar lands acquired under the same award.
The right to receive the compensation arises when the land of a person is acquired. The determination of the compensation for the acquired land is the duty of the Court under the Act. The Court is required to compute and quantify the true market value of the acquired lands on the principles enacted in the Act.....Section 28-A of the Act gives a mandate to give or pay equal compensation to all persons, whose land has been compulsorily acquired by the Government under the same award and same notification under Section 4 of the Act. The intention is to remove inequality in the payment of compensation for similar quality of land to different interested persons. The ends of necessity pursuade us to invoke our inherent jurisdiction to re-open the assessment which we hereby do for the determination of the market value of the land."
What the Reference Court has done to make the award under appeal and grant compensation to the respondents in excess of what was awarded to them under the awards of the appellant made under Section 11 of the Act and also grant additional benefits under the Act under its amended provisions, is to hold that it is well settled that the provisions of the Amendment Act, 1984, have got retrospective effect and it had inherent power under Section 151 of the Code to grant higher compensation to the respondents having regard to the provision in Section 28-A of the Act. As we have already pointed out, Section 28-A of the Act is only prospective in operation and not retrospective in operation. If that be so, any application made by an applicant (claimant) to re-open an award made by the Collector in his favour under Section 11 of the Act and re-determine the compensation according to the excess compensation allowed by the Court by its award made prior to the coming into force of Section 28-A (24-9-1984), is liable to be rejected as unmaintainable under Sub-section (1) of Section 28-A. If an application made under Section 28-A(1) is unmaintainable, we are unable to see how a Reference Court can entertain an application made under Section 151 of the Code invoking its inherent power to re-determine the compensation awarded under Section 11 of the Act to an applicant and re-determine the excess compensation purporting to do so under Sections 18 to 28 of the Act. No doubt, the observations of the Delhi High Court in Ram Mohan's case (supra), excerpted by us, envisage the re-opening of the award of compensation made under Section 11 of the Act and re-determination of the same on the basis of certain awards made by a Reference Court long prior to the coming into force of the provision under Section 28-A of the Act, With respect to the learned Judges of the Delhi High Court, who have made the observations about the scope and applicability of Section 28-A of the Act, we are unable to persuade ourselves to agree with the correctness of those observations. When a statutory provision is enacted conferring a new right on a person to invoke that provision in the circumstances envisaged therein, to hold that that provision could be applied by Courts in the absence of the pre-requisites to be satisfied for invoking such provision in exercise of the Court's inherent power under Section 151 of the Code, looks to us to be rather strange. Inherent power of the Court cannot be exercised by it when there is a specific provision in a statute dealing with a specified matter or when the exercise of such inherent power would be inconsistent with or comes in conflict with the power expressly or by necessary implication conferred by the statute [See: (1) MANOHARLAL v. SAIT HIRALAL, and (2) RAMCHAND AND SONS SUGAR MILLS PVT. LTD. v. KANYALAL ]. Hence, we are not left in doubt that the award and decree of the Reference Court based on the applicability of Section 28-A of the Act relying upon the observations made by the Delhi High Court in Ram Mohan's case (supra), is unsustainable and calls to be interfered with.
12. In the result, we allow this appeal, set aside the award and decree under appeal and reject the reference registered as LA.C.No. 564/1986 by the Reference Court - Court of Civil Judge at Bidar.