Karnataka High Court
Smt.Y Sarvamangalamma W/O. Rammohan ... vs The Assistant Commissioner on 17 June, 2013
Author: B.S Patil
Bench: B.S.Patil
WP.77122/2013
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®
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 17TH DAY OF JUNE 2013
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.77122/2013 (LA-RES)
BETWEEN:
Smt.Y.Sarvamangalamma,
W/o.Rammohan Rao,
Age: 65 years, Occ: Household Work,
R/o.Kote Camp, Tq.: Gangavati,
Dist: Koppal. ..PETITIONER
(By Sri Laxman T.Mantagani, Adv.)
AND:
1. The Assistant Commissioner,
& Land Acquisition Officer,
Koppal, Dist: Koppal.
2. The Executive Engineer No.2,
Canal Division (NEE.Ei),
Waddarahatti,
Taluk: Gangavati,
Dist: Koppal. ..RESPONDENTS
(By Sri Mahesh Wodeyar, AGA.)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to direct the 1st respondent to
dispose of the application filed under Section 28A of the Land
Acquisition Act vide Annexure-C dated 29.02.2012.
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WP.77122/2013
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This writ petition is coming on for Preliminary Hearing,
this day the Court made the following:-
ORDER
1. In this writ petition, petitioner is seeking a writ of mandamus against the 1st respondent - Assistant Commissioner & Land Acquisition Officer, Koppal, to consider and dispose of the application filed under Section 28A of the Land Acquisition Act (for short, 'the Act') vide Annexure-C.
2. The land of the petitioner was acquired for formation of a road by a preliminary notification dated 15.06.1995. The Land Acquisition Officer fixed the market value of the land at Rs.31,500/- per acre. Petitioner did not seek reference for enhancement. However, other land losers, whose lands were also subject matter of acquisition under the same preliminary notification, sought reference. One such reference made to the Civil Court in LAC.No.224/1999, the same was allowed enhancing the market value of the land to Rs.73,000/- per acre.
3. Petitioner herein filed an application before the 1st respondent under Section 28A of the Act seeking re- determination of the market value and the compensation 2 WP.77122/2013 3 payable on par with the decision in LAC.No.224/1999. The 1st respondent vide award dated 11.09.2000 re-determined the compensation on par with LAC.No.224/1999. Petitioner has admittedly received the said amount of compensation.
4. The claimant in LAC.No.224/1999 Sri Gangappa appears to have filed an appeal before the District Judge, Koppal, in M.A.No.48/2000 seeking enhancement. The said appeal was allowed in part enhancing the market value of the land to Rs.90,750/- per acre. The said claimant preferred a second appeal in MSA.No.122/2001 before this Court. This Court, taking note of the submission of the counsel for the appellant that for the lands acquired under the same notification this Court had fixed the market value at the rate of Rs.1,15,000/- per acre in MFA.No.2894/2000, allowed the second appeal fixing the market value at Rs.1,15,000/- vide order dated 22.11.2001.
5. The case of the petitioner is that she had moved another application under Section 28A of the Act seeking further re- determination of compensation at the rate of Rs.1,15,000/- as determined by this Court in the second appeal and the respondent - Assistant Commissioner has not chosen to 3 WP.77122/2013 4 examine the same and re-determine the compensation as per the judgment and decree passed in the miscellaneous second appeal.
6. Learned Counsel for the petitioner contends that as the petitioner has filed a second application under Section 28A of the Act based on the judgment in the second appeal within time, a writ of mandamus may be issued to the Assistant Commissioner to re-determine the compensation by fixing it at Rs.1,15,000/- per acre and pay the same along with all statutory benefits admissible.
7. In support of his contention that if the amount is not re- determined as per Section 28A of the Act based on the judgment in the second appeal, it amounts to discrimination between similarly placed land losers, learned counsel brings to the notice of this Court an unreported judgment dated 08.02.2008 passed by this Court in W.P.No.3490/2006, wherein a learned Single Judge of this Court has taken the view that if a person who seeks reference gets higher compensation than the person who does not seek reference, it will create an anomalous situation because it will be 4 WP.77122/2013 5 inequitable and unfair to deny higher compensation to the landloser whose land is acquired under the same notification.
8. Learned Counsel for the petitioner also invites the attention of the Court to the decision of the Apex Court in the case of UNION OF INDIA Vs. MUNSHI RAM (D) BY L.Rs. AND OTHERS - 2006 AIR SCW 1575 which is also referred to and relied upon by the learned Single Judge while passing the order dated 08.02.2008 in W.P.No.3490/2006.
9. I have carefully gone through the provisions contained under Section 28A of the Act and other allied provisions of the Act and the judgment rendered by the Apex Court in Munshi Ram's case. In Munshi Ram's case, no application had been filed by the land losers under Section 28A seeking enhancement based on the judgment rendered in appeal, nor had they sought for re-determination of compensation for the second time after availing the benefit once. It was a case where against the decree passed by the Reference Court, the claimant as well as the Union of India had preferred Regular First Appeal before the High Court. A learned Single Judge of the High Court by his judgment and order dated 24.08.1993 further enhanced the compensation payable in respect of block 5 WP.77122/2013 6 A and B lands. Letters Patent Appeals filed by the Union of India were dismissed by order dated 17.06.1994. Union of India filed Special Leave Petitions against the dismissal of the Letters Patent Appeals and notice was issued in the aforesaid Special Leave Petitions. Ultimately by judgment and order dated 29.04.1997, the Apex Court allowed the appeals filed by the Union of India and reduced the compensation payable to the claimants. When the Special Leave Petitions were pending before the Apex Court, some of the land owners had filed applications under Section 28A of the Act claiming compensation at the same rate as was awarded to the other claimants pursuant to the decree of the Reference Court. Having regard to the provisions contained under Section 28A, the Collector re-determined the compensation payable to the respondents therein, who had not filed reference petition under Section 18 of the Act and who had moved the Collector within the stipulated period. The said order re-determining the compensation under Section 28A of the Act was challenged by filing Writ Petitions before the High Court which was dismissed on the ground of delay. As against the said order dismissing the writ petitions, Special Leave Petitions were filed. In the 6 WP.77122/2013 7 said Special Leave Petitions, the Apex Court has observed in paragraphs 7 to 11 as follows:
"7. We are of the view that the Union of India is right in its submission that the amount payable under Section 28A of the Act is the amount which is finally payable by way of compensation to the owners of the land who challenged the award of the Collector and claimed reference under Section 18 of the Act. The said provision seeks to confer the benefit of enhanced compensation even on those owners who did not seek a reference under Section 18. It cannot be that those who secure a certain benefit by reason of others getting such benefit should retain that benefit, even though the others on the basis of whose claim compensation was enhanced are deprived of the enhanced compensation to an extent. This would be rather inequitable and unfair. Moreover, even if it be that the compensation payable to claimants who have applied under Section 28A of the Act, is the enhanced compensation decreed by the Reference Court, we must understand the decree to mean the decree of the Reference Court as modified in appeal by higher Courts. Otherwise, an incongruous position may emerge that a person who did not challenge the award of the Collector and did not claim a reference under Section 18 of the Act would get a higher compensation than one who challenged the award of the Collector and claimed a reference, 7 WP.77122/2013 8 but in whose case a higher compensation determined by the Reference Court was subsequently reduced by superior court. There can be no dispute that those claiming higher compensation and claiming reference under Section 18 of the Act are bound by the decree as modified by the superior Court in appeal. The principle of restitution must apply to them. For the same reason, the same consequence must visit others who have been given benefit of enhanced compensation pursuant to the decree passed in reference proceeding on the application of others.
8. It was contended before us that after the order of re-determination was passed, Union of India could have challenged this order, and since it failed to do so, it lost its right to challenge that order. The submission overlooks the basic plea of the Union of India that at the stage when the order of re- determination was passed under Section 28A of the Act that order was fully justified and any further re- determination could be claimed only if there was variation of the decree and the amount awarded by way of compensation was reduced. In the instant case that happened in the year 1997, and therefore, in one sense it was indeed premature for the Union of India to challenge the re-determination under Section 28A in the year 1995, much before the decree was actually modified.8 WP.77122/2013 9
9. We hold that under Section 28A of the Act, the compensation payable to the applicants is the same which is finally payable to those claimants who sought reference under Section 18 of the Act. In case of reduction of compensation by superior courts, the applicants under Section 28A may be directed to refund the excess amount received by them in the light of reduced compensation finally awarded.
10. We are informed that none of the claimants have yet been paid in accordance with the order of re- determination under Section 28A or thereafter.
11. In the facts and circumstances of the case, these appeals are allowed and a direction is made to the Collector under the Act to re-determine the compensation payable to the respondents in accordance with the compensation awarded by the judgment and decree of this Court dated 29th April, 1997 and pay the same to the claimants within a period of three months from today."
10. A careful reading of the ratio laid down in the above case, in the background of the facts involved therein, makes it very clear that the Apex Court has not ruled that a claimant can maintain a second application under Section 28A, after the Appellate Court further enhanced the compensation over and above what was granted by the Reference Court. It does not 9 WP.77122/2013 10 also rule that within 90 days from the date of the order passed by the Appellate Court, be it the first appeal or the second appeal or the civil appeal disposed of by the Apex Court, the claimant can maintain an application under Section 28A claiming re-determination of compensation based on the judgment of such Appellate Court.
11. It is also necessary to refer to the provisions contained in Section 3(d) of the Act which defines the expression 'Court' to mean a principal Civil Court of original jurisdiction and includes any other Civil Court empowered by the State Government by a notification in the Official Gazette, to perform the functions of the Court under this Act, within the pecuniary and local limits of its jurisdiction. In fact, this is the definition of the Court as per the State Amendment effected by the State of Karnataka. Therefore, the expression 'Court' as found in Section 28A (1) of the Act has to be understood with reference to the expression 'Court' as defined under Section 3(d) of the Act. If so done, it cannot be said that the 'Court' for the purpose of Section 28A will include the Appellate Courts and an application can be filed under Section 28A of the Act within 90 days from the date of the judgment rendered in appeal. The 10 WP.77122/2013 11 intention of the Legislature in enacting Section 28A, in my view, cannot be stretched that far.
12. In fact, by a judgment dated 02.04.2013 rendered in W.P.No.14062/2013, I had an occasion to deal with this aspect and referring to the very judgment in Munshi Ram's case, I have taken the following view in paragraphs 18 to 20:
"18. If the expression 'Court' as used in Section 28A is to be interpreted to mean not only the Reference Court but also the Appellate Court which passes the judgment on appeal from the judgment and award passed by the Reference Court, then, it would mean that a peson can file an application under Section 28A within 90 days from the date of the judgment and decree to be passed by the Appellate Court also. In fact, this is the endeavour that is sought to be made by the learned counsel for the petitioner.
19. On careful consideration of the provisions of the Act, I am of the view that the expression 'Court' means a principal Civil Court of original jurisdiction or what can be called as the reference Court. The argument advanced by the learned counsel for the petitioner that the expression 'Court' will include within its scope and ambit the Appellate Court as well cannot be accepted. The judgments on which 11 WP.77122/2013 12 the learned counsel for the petitioner has placed reliance do not come to his aid. In fact, the Constitution Bench of the Apex Court in the case of UNION OF INDIA AND ANOTHER VS. HANSOLI DEVI AND OTHERS AIR 2002 SC 3240 while dealing with the principles of interpretation of statutes has stated the cardinal principle of construction of statute by observing that when language of the statute is plain and unambiguous, then the Court must give effect to the words used in the statute and it would not be open to the Courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. The Apex Court has pointed out in the said judgment that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the Court may look into the purpose for which the statute has been brought and would try to give a meaning which would adhere to the purpose of the statute.
20. In the instant case, the pirnciple as laid down in the aforesaid judgment is very much applicable as a guide for interpreting the provisions contained under Section 28A particularly the expression 'Court' used therein. If any other interpretation is adopted, then it will result in anomalies in as much 12 WP.77122/2013 13 as a person who has sought reference by filing an application under Section 18(1) and has got higher compensation determined by the Civil Court will not be entitled for further enhancement even if his neighbour who had preferred a Miscellaneous First Appeal gets enhanced amount by the judgment of the Appellate Court unless he had also filed an appeal. Whereas, a person who has not at all sought any references can straight away apply under Section 28A within 90 days from the date of the appellate judgment and get enhanced amount as determined by the Appellate Court. The object and purpose behind introduction of Section 28A cannot be stretched to such an extent to confer the benefits of the judgment rendered by the Appellate Court. If that was the intention of the Legislature, then, the definition clause in Section 3(d) defining the term 'Court' would have contained reference to the judgment and decree to be rendered by the Appellate Court as well. Therefore, I do not find any illegality or error committed by the Special Land Acquisition Officer in rejecting the application filed under Section 28A of the Act by the petitioner. The petitioner, therefore, being devoid of merits is dismissed."
13. Order dated 08.02.2008 passed in W.P.No.3490/2006 may support the case of the petitioner. I was at one point of 13 WP.77122/2013 14 time inclined to refer this matter to the Division Bench having regard to the view expressed by the learned Single Judge of this Court stating that application under Section 28A of the Act can be maintained based on the judgment rendered in appeal by the Appellate Court enhancing the compensation. However, learned Additional Government Advocate appearing for the State vehemently contends and in my view rightly, that a Three Judges Bench of the Apex Court in the case of UNION OF INDIA & ANOTHER VS. PRADEEP KUMARI & OTHERS - AIR 1995 SC 2259 has laid down the criteria and conditions to be satisfied for maintaining an application under Section 28A (1) of the Act, wherein it is expressly stipulated that a person would be able to seek re-determination of the amount of compensation payable to him provided he satisfies the following conditions. The conditions as enumerated at the end of paragraph 11 of the judgment, read as under:
"(i) An award has been made by the Court under Part III after the coming into force of Section 28-A;
(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under Section 11, has been allowed to the applicant in that reference;14 WP.77122/2013 15
(iii) The person moving the application under Section 28-A is interested in other land covered by the same notification under Section 4(1) to which the said award relates;
(iv) The person moving the application did not make an application to the Collector under Section 18;
(v) The application is moved within three months from the date of the award on the basis of which the re-
determination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28-A for re-determination of compensation by an applicant. "
14. Learned Additional Government Advocate, particularly emphasizes on condition No.1 to contend that the award referred to in Section 28A of the Act is the award that has been made by the Court under Part III. He further points out referring to condition No.6 that only one application can be moved under Section 28A for re-determination of compensation by an applicant.
15. Petitioner does not fall in either of the two conditions stipulated. Part-III of the Act deals with Reference to Court 15 WP.77122/2013 16 and Procedure thereon. As per Section 28A (1) which also finds place in Part III of the Act, the opening words disclose as under:-
"Where in an award under this Part, the Court allows the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11....."
16. Thus, the right for re-determination of the amount of compensation is referable to the award to be passed by the Reference Court under Part-III and the award to be passed under Part-III is the award of the Reference Court. Only if in such award, the Reference Court grants compensation in excess of the amount awarded by the Collector under Section 11, persons interested in all other lands covered by the same notification issued under Section 4(1) may seek re- determination notwithstanding that they had not made an application to the Collector under Section 18 of the Act by filing an application to the Collector within three months from the date of the award of the Court. Therefore, if we carefully consider the provisions of Section 28A of the Act, reference made to the expression 'the award of the Court' under this Part and also keeping in mind the expression 'Court' as contained 16 WP.77122/2013 17 under Section 3(d) of the Act, it becomes very clear that the application can only be made within 90 days from the date of the award passed by the Reference Court under Part III of the Act. Further, only one application can be moved under Section 28A of the Act for determination of compensation by an applicant as held by the Apex Court in the aforementioned judgment.
17. In the instant case, admittedly, petitioner is taking her chance by making a second application. She has already received the compensation re-determined under Section 28A of the Act by the Assistant Commissioner based on the award passed by the Reference Court. Therefore, such an application cannot be maintained. The judgment of the Apex Court referred to supra is very clear in this regard. Hence, in the light of the decision of the Apex Court relied upon by the learned Additional Government Advocate in Pradeep Kumari's case and having regard to the discussion made above, I have no hesitation to hold that no mandamus can be issued to the Assistant Commissioner to consider the application for re- determination of compensation under Section 28A of the Act 17 WP.77122/2013 18 based on the judgment rendered in the second appeal, that too, on a second attempt made by the petitioner.
18. Hence, the writ petition being devoid of merits is dismissed.
Sd/-
JUDGE PKS 18