Kerala High Court
Krishnan Kutty vs The Special Tahsildar on 14 August, 2003
Equivalent citations: AIR2004KER1, 2003(3)KLT705
Author: G. Sivarajan
Bench: G. Sivarajan, M. Ramachandran
JUDGMENT G. Sivarajan, J.
1. The question that arises for consideration is as to whether a claimant in a land acquisition case who has received the compensation without protest pursuant to the award of the Land Acquisition Officer and has not filed an application seeking reference under Section 18 is "a person aggrieved" within the meaning of Section 28A of the Land Acquisition Act 1894 as amended by Act 29 of 1984, hereinafter referred to, as 'the Act'. A Division Bench of this Court in State of Kerala v. Kumaran Nair (2001 (1) KLT 539), held that a claimant who has not objected to the award passed by the Collector and who failed to file a reference application under Section 18 of the Act is not a person "aggrieved by the award of the Collector". When this Writ Petition came up for consideration before the Single Bench, the learned Judge doubted the correctness of the Division Bench judgment in view of the decisions of the Supreme Court in Union of India v. Pradeep Kumari (AIR 1995 SC 2259) and in Union of India v. Hansoli Devi (AIR 2001 SC 2185). When the matter came up before the Division Bench on reference, the Division Bench also doubted the correctness of the Division Bench judgment in Kumaran Nair case (supra) in the light of the decisions of the Supreme Court in Babu Ram v. State of U.P. (1995 (2) SCC 689) and Union of India v. Pradeep Kumari (AIR 1995 SC 2259) and referred the matter to a larger Bench. Hence the matter is placed before this Full Bench.
2. The brief facts are as follows. Large extent of land in Ramanthali Village in Thaliparamba Taluk was acquired by the Government for the purpose of the Naval Academy at 'Ezhimala'. An extent of 0.9060 Hcrs. of land situated in R.S. No. 396/8 in Ramanthali Village in Thaliparamba Taluk belonging to one Valambath Narayanan Nair, S/o. Chathappa Poduval, Ramanthali was acquired by the Government for the said purpose. The notification under Section 4 of the Act (Section 3 of the Kerala Act) was issued on 22.2.1983 and an award notice under Section 12(2) dated 9.12.1983 (Ext.P1) was issued pursuant to the award to the said Narayanan Nair. A cheque for a sum of Rs. 1,67,849/-was issued to the said Narayanan Nair, who received the same without any written protest. He also did not file any application for reference under Section 18 of the Act. Later the Sub Court, Payyannur had passed a common award in LAR Nos. 124/1987 and 169/1987 on 26.7.1989 (Ext.P2) awarding enhanced compensation to another person, whose land was also acquired for the very same purpose under the very same notification. Valambath Narayanan Nair then filed an application under Section 28A of the Act dated 27.2.1990 before the District Collector, Kannur (Ext.P3), which was received by the 1st respondent on 23.3.1990. The said application was rejected by the 1st respondent Special Tahsildar (LA), Kannur (the Officer notified as District Collector) as per proceedings dated 20.6.2001 (Ext.P4), stating that the application is not maintainable in view of the decision of the Division Bench in Kumaran Nair case (supra). The Special Tahsildar has observed that verification of the records showed that the petitioner had not made any grievance at the time of award enquiry or while accepting the compensation. In the mean time, Valambath Narayanan Nair died on 13.7.3001. Ext.P4 is seen addressed to Valambath Narayanan Nair through P/A O.V. Krishnan Kutty, S/o. Narayanan Nair. The said Krishnan Kutty as a legal heir of Valambath Narayanan Nair has challenged Ext.P4 proceedings in this Writ Petition.
3. It is the contention of the petitioner that the eligibility of the person for making an application under Section 28A arises only when the Court enhances the compensation in a similar case and that the intention of the Legislature in inserting a new provision -Section 28A of the Act is to give equal compensation to all persons whose lands had been acquired by the Government in the same notification under Section 4 of the Act. The purpose, it is stated, is to remove anomalies in the determination of compensation by the Collector and to remove inequality in the payment of compensation for the same or similar quality of lands to different persons. In other words, it is the contention of the petitioner that Section 28A provides an additional remedy for all aggrieved persons whose lands have been acquired to call upon the Collector to pay the compensation at the rate determined by the Court in other cases. It is further contended that even a person who did not object to the award passed by the Collector while receiving the compensation and a person who did not file any reference application under Section 18 of the Act are entitled to make an application for redetermination of the compensation under Section 28A of the Act. The grievance of the petitioner is that the 1st respondent had rejected the application (Ext.P2) without considering the basic judgments, which the claimant had relied on.
4. The learned Sr. Government Pleader has filed a statement on behalf of the respondent on 13.8.2003. It is inter alia stated in the said statement that on 2.3.1990, Sri. Narayanan Nair filed a claim dated 27.2.1990 before the District Collector, Kannur for the redetermination of amount of compensation based on the order of the Sub Court, Payyannur as per LAR No. 124/87 dated 26.7.98 and the same was received in the office of the 1st respondent on 23.3.1990, that the said application was rejected by order dated 20.6.2001 on the basis of the judgment of this Court in Kumaran Nair case and that earlier Sri. Narayanan Nair filed O.P. 4005/1993 before this Court, which was disposed of by judgment dated 26.5.1993, directing the District Collector, Kannur to dispose of the application filed by Narayanan Nair. It is further stated that on verification of records, it is seen that Sri. Narayanan Nair received the compensation amount without protest against Collector's award and therefore the petitioner's application for redetermination of compensation under Section 28A of the Act as amended by the Act 29 of 1984 was rejected. It is also stated that a certified copy of the judgment in LAR 124/87 and 169/87 dated 26.7.1989 was not furnished within the time allowed under Section 28A of the Land Acquisition Act. The averment in the O.P. that the petitioner's father made an oral protest at the time of receiving the compensation amount was also denied. There is a further statement that a Full Bench of this Court in the decision reported 2001 (1) KLT 598 had held that there should be protest either oral or in writing at the time of receiving compensation that this alone will enable the aggrieved party to file application seeking enhancement of compensation and that since there was neither written nor oral protest, the respondent has no other option than to reject Section 28A application.
5. We have heard Sri. M. Sasindaran, learned counsel appearing for the petitioner and Sri. Roy Chacko, learned Senior Government Pleader appearing for the respondents. As already noticed the petitioners application made under Section 28A of the Act was rejected solely on the ground that the appellant had not made any grievance at the time of award enquiry while accepting the compensation. The averment of the petitioner that his father had raised an oral protest at the time of receiving the amount was denied by the respondent as it is not borne out from the records. Thus the only question to be considered in this case is as to whether a person who has not objected to the award passed by the District Collector while accepting the compensation and who has not filed an application for reference under Section 18 of the Act, is 'a person aggrieved by award of the District Collector' contemplated under Section 28A of the Act. Section 28A of the Act reads as follows:
"28A. 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 land 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 within three months from the date of the award of the. Court 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 mater be referred by the Collector for the determination of the Court and the provisions of Section 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.
6. Various eligibility conditions are provided in the said section, which a three Judges Bench of the Supreme Court in Union of India v. Pradeep Kumari (AIR 1995 SC 2259) had enumerated as follows:
(i) An award has been made by the court under Part III after the coming into force of Section 28A;
(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;
(iii) The person moving the application under Section 28A 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 redetermination of amount of compensation is sought; and
(vi) Only one application can be moved under Section 28A for redetermination of compensation by an applicant.
7. Here it must be noted that a Constitution Bench of the Supreme Court in Union of India v. Hansoli Devi ((2002) 7 SCC 273 at page 282) with reference to the expression 'did not make an application' occurring in condition No. (iv) above observed thus:
"The expression "did not make an application", as observed by this Court would mean, did not make an effective application which had been entertained by making the reference and the reference was answered. When an application under Section 18 is not entertained on the ground of limitation, the same not fructifying into any reference, then that would not tantamount to an effective application and consequently the rights of such applicant emanating from some other reference being answered to move an application under Section 28A cannot be denied."
The aforesaid conditions would indicate that the failure to raise objection against the award passed by the District Collector or receiving the award amount without protest are not grounds for rejecting an application under Section 28A as not maintainable.
8. The Supreme Court in Pradeep Kumari case (supra) had also noted that the object underlying the enactment of Section 28A is to remove inequality in the payment of compensation for same or similar quality of land arising on account of inarticulate and poor people not being able to take advantage of the right of reference to the civil court under Section 18 of the Act and this is sought to be achieved by providing an opportunity to all aggrieved parties whose land is covered by the same notification to seek redetermination once any of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act. Further it was observed that a perusal of the provisions contained in Sub-section (1) of Section 28 A of the Act would show that after an award is made under Part III whereby the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, a right accrues to a person interested in the other land covered by the same notification under Sub-section (1) of Section 4, who is also aggrieved by the award of the Collector but who had not made an application to the Collector under Section 18, to move an application before the Collector for redetermination of compensation payable to him on the basis of the amount of compensation awarded by the Court.' The very same view was earlier taken by a two Judges Bench of the Supreme Court in Babu Ram v. State of U.P. ((1995) 2 SCC 689). The court considered the expression 'persons aggrieved' in Section 28A(1) of Act. In one of the appeals considered in that case the notification under Section 4(1) of the Act was published in the State Gazette on 17.11.1982; the Additional Deputy Collector and Land Acquisition Officer awarded compensation on 25.10.1985 and the appellants/claimants received compensation without protest. But one of the claimants with protest received the compensation and on his reference under Section 18 the Additional District Judge by his award and decree dated 25.10.1990 enhanced the compensation. The State carried the matter in appeal. In the meanwhile on 29.1.1991 the appellants moved an application under Section 28A of the Act to redetermine the compensation as awarded by the District Court. The Land Acquisition Officer by his proceedings dated 13.11.1992 rejected their application finding that the appellants are not aggrieved persons. The appellants challenged the said order in Writ Petition. The High Court allowed the Writ Petition holding that the writ petitioners are persons aggrieved and that since applications have already been filed under Section 28A(1) within 3 months from the award of the civil court dated 25.1.1990, there was no need for them to make fresh applications. The Supreme Court addressed the question as to who is the 'person aggrieved' within the meaning of Section 28A(1) of the Act. After adverting to the statement of the objects and reasons for the introduction of Section 28 A and the decisions of the Supreme Court in Mewa Ram v. State of Haryana ((1986) 4 SCC 151) and in Krapa Rangiah v. Special Dy. Collector (L.A.) ((1982) 2 SCC 374) the court observed in para 16 at PP 707-708 as follows:
16. XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX "Section 28A(1) is intended to overcome the hurdle created by Section 18(1) and 2nd proviso to Section 31(2) in the matter of obtaining equal compensation for similar acquired lands. Equal compensation for similar acquired lands could be got by all the interested persons, if their lands are acquired under the same notification. In other words, if an owner fails to avail of the right and remedy under Section 18(1), Section 28A(1) grants an extra right and remedy for redetermination of the compensation payable to him for his land on the basis of an award of the court giving to an owner of another land covered by the same notification under Section 4(1) and under the same award. The payment of higher compensation to his neighbouring landowner makes an applicant an aggrieved person to claim redetermination of the compensation payable to him for his land. The person aggrieved, therefore, in this context, would mean a person who had suffered legal injury or one who has been unjustly deprived or denied of something, which he would be interested to obtain in the usual course or similar benefits or advantage or results in wrongful affection of his title to compensation."
The Supreme Court further held in para 18 at page 709 as follows:
XXX XXX XXX XXX XXX XXX XXX XXX XXX XXX
"Therefore we have no hesitation to hold that any interested person in the land acquired under the same notification published under Section 4(1) who failed to avail the right and remedy under Section 18(1) read with second proviso to Section 31(2), becomes a person aggrieved under Section 28A(1) of the Act when the owner of the other land covered by the same notification is awarded higher compensation by the civil court on a reference got made by him under Section 18."
Another two Judges Bench of the Supreme Court in Yelamanchi Ranga Rao and Ors. v. State of Orissa and Ors. ((1997) 10 SCC 468) also took the same view. Again a two Judges Bench of the Supreme Court in Bhagti v. State of Haryana ((1997) 4 SCC 473) observed that Section 28A envisages giving of benefit to a person who had accepted the award made under Section 11 without protest and did not avail of the reference under Section 18 for further enhancement while others covered by the same notification had the award of enhanced compensation' and held that only those applicants who have failed to apply for reference under Section 18 of the Act are conferred with the right of redetermination under Section 28A(1).
9. While the legal position stood thus a two Judges Bench of the Supreme Court, in Union of India v. Hansoli Devi ((2001) 4 SCC 404), doubted the same and referred the following questions for examination by a larger Bench of at least five Judges, by reason of pendency of various matters.
"1. (a) Whether dismissal of an application seeking reference under Section 18 on the ground of delay amounts to 'not filing an application' within the meaning of Section 28A of the Land Acquisition Act, 1894?
(b) Whether a person whose application under Section 18 of the Land Acquisition Act, 1894 is dismissed on the ground of delay or any other technical ground is entitled to maintain an application under Section 28A of the Land Acquisition Act?
2. "Whether a person who has received the compensation without protest pursuant to the award of the Land Acquisition Collector and has not filed an application seeking reference under Section 18 is a "person aggrieved" within the meaning of Section 28".
10. A Constitution Bench of the Supreme Court answered the above questions in Union of India v. Hansoli Devi ((2002) 7 SCC 273). The second question - the very question now before us - was answered by the Supreme Court in para 11 at page 282 thus:
xxx xxx xxx xxx xxx
11. "Coming to the second question for reference the receipt of compensation with or without protest pursuant to the award of the Land Acquisition Collector is of no consequence for the purpose of making a fresh application under Section 28A. If a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with or without protest, he would be a person aggrieved within the meaning of Section 28A and would be entitled to make an application when some other landowner's application for reference is answered by the reference court. It is apparent on the plain language of the provisions of Section 28A of the Act. Otherwise, it would amount to adding one more condition, not contemplated or stipulated by the Legislature itself to deny the benefit of substantial right conferred upon the owner."
11. The above decision of the Constitution Bench is a complete answer to the question which is referred to us. The Division Bench of this Court in Kumaran Nair case (supra), held that only a person who had received the amount under protest shall be entitled to make an application under Section 18 as per the second proviso to Section 31 (2) and therefore a person can be said to have not made an application only if he did not seek reference in spite of his entitlement to make such an application or to seek reference. In other words, the Division Bench was of the view that receiving the amount under protest is a condition precedent for filing an application under Section 28A. This view, it must be noted, was taken solely on the basis of the provisions of Section 18 read with Section 31(2). The Division Bench did not advert to any of the decisions of the Supreme Court discussed above on this point.
12. However, one aspect is noteworthy. Even after the decisions of the Supreme Court in Babu Ram case, Pradeep Kumari case and Bhagti case (supra), a two Judges Bench of the Supreme Court in 2001 in Hansoli Devi case felt that the question requires examination by a larger Bench of at least five Judges. Now the controversy is no longer res integra, for, it is laid at rest by the Constitution Bench of the Supreme Court in Hansoli Devi supra case itself by answering that if a person has not filed an application under Section 18 of the Act to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with or without protest he would be a person aggrieved within the meaning of Section 28A and would be entitled to make an application when some other landowner's application for reference is answered by the reference Court.
13. In the light of the authoritative pronouncement of the Constitution Bench of the Supreme Court, we answer the reference as follows:
(i) The decision of the Division Bench of this Court in Kumaran Nair case (supra) that a claimant who has not objected to an award passed by the Collector is not entitled to make an application under Section 28A(1) of the Act does not lay down the correct law.
(ii) A claimant who has received the amount with or without protest pursuant to the award of the Land Acquisition Officer and has not filed an application seeking for reference under Section 18 is a 'person aggrieved' within the meaning of Section 28A of the Act.
14. Now reverting to the Writ Petition, as already noted, the application (Ext.P3) filed by late Narayanan Nair under Section 28A of the Act for redetermination of the compensation was rejected by the 1st respondent as not maintainable. The 1st respondent did not consider the application on merits with reference to Ext.P2 award passed by the Sub Court, Payyannur. We also note that Ext.P3 application submitted by late Narayanan Nair did not contain all the relevant details for redetermination of the compensation by this Court. He had only stated that the Sub Court, Payyannur i .e. LAR No. 124/1987 had enhanced the compensation of the property covered in that reference, that the property in LAR case and the property in R.S. No.396/8 are situated close to each other and that the notification under Section 4(1) of those two properties were made on the same date and by the same notification and that he is entitled to a reasonable compensation. In view of our answer to the question referred Narayanan Nair was an aggrieved person. The respondents do not have a case that the application is not maintainable for any other reasons. Hence we hold that the application Ext.P3 is maintainable. Ext.P4 order of the 1st respondent is accordingly quashed.
15. Sub-section (2) of Section 28A cast an obligation on the Collector (the 1st respondent) on receipt of an application under Section 28A to conduct an inquiry after notice to all the persons interested arid giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants. In the present case Valambath Narayanan Nair is no more. Petitioner is one of the legal heirs of late Valambath Narayanan Nair. If there is a Power of Attorney of the other legal heirs also the 1st respondent can pass the award as contemplated under Section 28A(2) of the Act after affording opportunity to the petitioner. However, having regard to the fact that the acquisition is of the year 1983; the Court passed the award enhancing the compensation in other cases, on 26.7.1989; the application under Section 28A was filed on 23.3.19990 the 1st respondent will pass the award as contemplated under Sub-section (2) of Section 28A within two months from the date of receipt of a copy of this judgment. The petitioner will co-operate with the 1st respondent in the matter.
Before parting with, we regret to note that an application filed under Section 28A of the Act as early as on 23.3.1990 was disposed of by the 1st respondent only after 11 years and three months. No explanation is forthcoming from the respondents as to the reason for the long and inordinate delay in the disposal of the said application. We note that this Court by judgment dated 26.5.1993 in O.P.No. 4005/1993 filed by Narayanan Nair directed the 1st respondent to dispose of the application expeditiously. Here it must be noted that the land belonging to late Narayanan Nair, father of the petitioner was acquired by the Government as early as in December, 1983 and the Land Acquisition Court had enhanced the compensation in similar cases as per judgment and decree dated 26.7.1989. By the inordinate delay in the disposal of the application, the State is to incur huge liability by way of interest, provided under the proviso to Section 28 of the Act, The interest payable on the enhanced compensation is at the rate of 9% for one year from the date of dispossession and for the period thereafter up to the date of payment of the enhanced compensation at the rate of 15% per annum. The Government will take serious note of this situation. A copy of this judgment will be forwarded to the Chief Secretary to Government for information and follow up action.