State of Kerala vs C.K. Peravankutty

P.A. Mohammed, J.—These appeals by the State arose from a common judgment passed by the Subordinate Judges'' 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 u/s 28A of the Land Acquisition Act.

The case putforth by the claimants is that as per the Award dated 11th October 1988 they were awarded compensations but they failed to file application for reference u/s 18 of the Act though the compensation awarded was inadequate. However, on 8th September 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 percent respectively for wet lands and garden lands. The claimants filed applications for certified copy of the judgment on 8th October 1992. On the basis of the certified copy of the judgment in L.A.R. No. 136/89 so obtained they filed applications before the Land Acquisition Officer u/s 28A on 10th November 1993 for redetermination of the compensation. However those applications were rejected. Thereafter on 4th December 1993 they filed applications for reference in the court below u/s 28A. The court below found that the land value fixed as per Ext. A-1 and Ext. A-1(a), Certified copy of Decree and judgment in L.A.R. No. 136/89, dated 30th November 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 percent respectively. Being aggrieved by the said common judgment passed by the court below the State has filed these appeals.

Heard the Government Pleader on behalf of the State and also the Counsel for the Respondents.

The only contention raised by the Government Pleader is that the applications filed by the claimants before the court below are hopelessly time barred. Section 28A of the Act is dealing with redetermination 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 u/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 u/s 11 in respect of the land covered by the same notification under Sub-section (1) of Section 4. Such application shall be made to the Collector in writing within three months from the date of the Award seeking redetermination of the amount of compensation on the basis of the amount of compensation awarded by the court as above. The proviso to Section 28A(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 u/s 28A 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. A-1 and A-1 (a), the Decrees and judgment in L.A.R. No. 136/89 were pronounced on 30th November 1990. However, the applications for certified copy of the judgment and Decree in L.A.R. 136/89 were filed only on 30th November 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 Section 28A(1).

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 Section 28A(1) of the Act. The Supreme Court in Tota Ram v. State of U.P. and Ors. J.T. 1997 (6) S.C. 231 held thus:

It has been interpreted by this Court that the ''Court'' means court of original civil Jurisdiction to whom reference u/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 Section 28A 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)

Having realised the above legal position, the counsel for the claimants submits that question of limitation coming within the purview of Section 28A 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 and another Vs. Roop Chand Das and others, (1997) 5 SCC 757 Let us now examine what exactly is the question referred to the Constitution Bench of five Judges? In Babua Ram and Others Vs. State of U.P. and Another, the Supreme Court took the view that the limitation of three months for seeking a reference u/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 and another Vs. Pradeep Kumari and others, In view of these conflict of views, the matter was referred to a Constitution Bench consisting of three Judges in Jose Antonio Cruz Dos R. Rodriguese and another Vs. Land Acquisition Collector and another, , 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 u/s 28A; if so construed, does not such a construction violate the language used in Section 28A when Parliament advisedly did not uses such expressions?

On this question the Constitution Bench said in para 6 that there was a difference of opinion as the three-Judges Bench in Union of India and another Vs. Pradeep Kumari and others, 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 State of Tripura and another Vs. Roop Chand Das and others, (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.

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 Tota Ram''s case J.T. 1997 (6) S.C. 231 (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.