V.Sukumari vs State Of Kerala

Shaji P. Chaly, J.

The petitioner in W.P.(C) No. 32616 of 2017 has filed this appeal challenging the judgment of a learned single Judge dated 29.01.2019, whereby the following reliefs sought for in the writ petition were declined:

Issue a writ of mandamus or appropriate writ, order or direction calling for records leading to Ext.P7 order and to quash the same;

Issue a writ of mandamus or appropriate order or direction setting aside Ext.P7 order and to direct the 4th respondent to consider Ext.P5 application made under Section 28A of the Land Acquisition Act, 1894 on merits based on Ext.P8 judgment.

The subject matter arises under Section 28A of the Land Acquisition Act, 1894 (‘Act, 1894’ for short). The learned single Judge, after taking into account the provisions of Section 28A of the Act, 1894 and the decisions of the Apex Court in Ram Singh Bhai Jaeram bhai v. State of Gujarat and another [AIR 2018 SC 2629], Tota Ram v. State of U.P. & others [1997 (6) SCC 280], State of A.P. v. Marri Venkaiah and others [AIR 2003 SC 2949],State of Orissa and others v. Chitrasen Bhoi [2009 (17) SCC76] and Popat Bahiru Govardhane and others v. Special Land Acquisition Officer and another [2013(10) SCC 765], dismissed the writ petition holding that the application submitted by the appellant is a belated one and the delay caused in filing the application cannot be sustained, in view of the imperative nature of Section 28A of the Act, 1894. It is, thus, challenging the legality and correctness of the judgment of the learned single Judge, the writ appeal is filed.

Brief material facts for the disposal of the writ appeal are as follows:

The appellant is the owner of an extent of 0.95 sq. meters of property comprised in survey No. 597-B, LA Re. Sy. No. 35/192 of Cheruvickal Village, Thiruvananthapuram District. The above said land was sought to be acquired by the Special Tahsildar, Additional LA Unit, Kodappanakkunnu, Thiruvananthapuram—second respondent for the purpose of widening Ulloor-Akkulam-NH Bypass Road as per the Land Acquisition Notification No.LAC 132/2008. According to the appellant, there was some dispute between the appellant and the Special Tahsildar—second respondent with respect to the total area of the land that was required to be acquired. Various other contentions are also raised by the appellant with respect to the same.

Anyhow, it is submitted that the second respondent sought to acquire 4.80 meters of land from the appellant, which was objectionable to her. Therefore, she approached this Court by filing W.P.(C) No. 21875 of 2005, in which Exhibit P1 order dated 22.07.2005 was passed staying the acquisition of the land belonging to the appellant, and a direction was issued to the Chief Engineer, Public Works Department, to hear the representation of the appellant before proceeding with the acquisition of the appellant’s property.

It is also submitted that, since there was a failure on the part of the Chief Engineer to comply with the order, she submitted Exhibit P2 representation dated 30.09.2008. Thereafter, W.P.(C) No. 36120 of 2008 was filed seeking stay of acquisition proceedings of the property of the appellant comprised in re-Survey No. 597/B of Ulloor Village and proceedings were stayed as per Exhibit P3 order dated 09.12.2008. It is further submitted that since there was violation of the interim order granted, the third respondent was directed to appear in person.

The case projected by the appellant is that the award was passed by the Land Acquisition Officer under Section 11 of the Act, 1894 and the amount was deposited before court as per Section 31(2) of the said Act. According to the appellant, she could receive money only during 2015. Anyhow, the appellant has not sought for any reference of the award under Section 18 of Act 1894, being dissatisfied with the compensation.

It is further submitted that the appellant came to know that one Priya, the adjacent owner of appellant’s property, whose land was also acquired as per the same notification, had received substantially higher compensation as per judgment in LAR No. 968/2009. Thereupon, the appellant approached the District Collector under Section 28A of the Act, 1894 for re-determination of compensation on the basis of the award of the court, as is evident from Exhibit P5 petition dated 17.10.2016. According to the appellant, the Land Acquisition Officer, as per Exhibit P6 letter dated 28.01.2017, has directed the appellant to produce the certified copy of the judgment in LAR No. 968 of 2009. Later, as per Exhibit P7 order dated 21.03.2017, the claim of the appellant was rejected on the ground that the said application is barred by limitation.

The appellant has also produced Exhibit P8 judgment dated 26.03.2015 in LAR No. 968 of 2009. Apparently, it is clear that the application was submitted by the appellant on 28.01.2017 i.e., after a period of two years from the date of the judgment of the Reference Court in LAR No. 968/2009.

A counter affidavit is filed by the Special Tahsildar, respondent No.2, justifying the reasons assigned in Exhibit P7 impugned order. The learned single Judge, after considering the rival submissions and the contentions advanced, has found that Exhibit P7 order passed by the Tahsildar is in accordance with the provisions of Section 28A of the Act, 1894.

We have heard the learned counsel for the appellant Sri. R.S. Sarat and the learned Senior Government Pleader Sri. Tek Chand.

The issue revolves around Section 28A of the Act, 1894, which reads thus:

“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.”

It is quite clear and evident from sub-Section 1 of Section 28A that a written application to the Collector is to be filed within three months from the date of award of the court requiring that the amount of compensation payable to the aggrieved may be determined on the basis of the amount of compensation awarded by the court. Therefore, one thing is clear, a person aggrieved by the award passed and seeking re-determination has to file an application within three months from the date of award of the court. No power is vested with the authority under Section 28A to extend the said period by condoning any delay in filing an application. It was taking into account the said aspect that the learned single Judge has dismissed the writ petition.

This question was considered by the Apex Court in various decisions and held that the court has no power to extend the period of limitation prescribed under Section 28A of the Act, 1894 on equitable grounds. In Popat Bahiru Govardhane v. Land Acquisition Officer [(2013) 10 SCC 765], after conducting an elaborate survey on the previous judgments, held as follows:

“13. This Court in Union of India v. Mangatu Ram [(1997) 6 SCC 59 : AIR 1997 SC 2704] and Tota Ram v. State of U.P. [(1997) 6 SCC 280] dealt with the issue involved herein and held that as the Land Acquisition Collector is not a court and acts as a quasi-judicial authority while making the award, the provisions of the 1963 Act would not apply and, therefore, the application under Section 28-A of the Act, has to be filed within the period of limitation as prescribed under Section 28-A of the Act. The said provisions require that an application for redetermination is to be filed within 3 months from the date of the award of the court. The proviso further provides that the period of limitation is to be calculated excluding the date on which the award is made and the time requisite for obtaining the copy of the award.

In State of A.P. v. Marri Venkaiah [(2003) 7 SCC 280 : AIR 2003 SC 2949] , this Court reconsidered the aforesaid judgments including the judgment in Harish Chandra Raj Singh [AIR 1961 SC 1500] and held that the statute provides limitation of 3 months from the date of award by the court excluding the time required for obtaining the copy from the date of award. It has no relevance so far as the date of acquisition of knowledge by the applicant is concerned. In view of the express language of the statute, the question of knowledge did not arise and, therefore, the plea of the applicants that limitation of 3 months would begin from the date of knowledge, was clearly unsustainable and could not be accepted. The Court also rejected the contention of the applicants that a beneficial legislation should be given a liberal interpretation observing that whosoever wants to take advantage of the beneficial legislation has to be vigilant and has to take appropriate action within the time-limit prescribed under the statute. Such an applicant must at least be vigilant in making efforts to find out whether the other landowners have filed any reference application and if so, what is the result thereof. If that is not done then the law cannot help him. The ratio of the judgment in Harish Chandra Raj Singh [AIR 1961 SC 1500] was held to be non-applicable in case of Section 28-A of the Act. The Court observed : (Marri Venkaiah case [(2003) 7 SCC 280 : AIR 2003 SC 2949] , SCC pp. 284-85, paras 11-12)

“11. … In that case, the Court interpreted the proviso to Section 18 of the Act and held that clause (a) of the proviso was not applicable in the said case because the person making the application was not present or was not represented before the Collector at the time when he made his award. The Court also held that notice from the Collector under Section 12(2) was also not issued, therefore, that part of clause (b) of the proviso would not be applicable. The Court, therefore, referred to the second part of the proviso which provides that such application can be made within six months from the date of the Collector's award. In the context of the scheme of Section 18 of the Act, the Court held that the award by the Land Acquisition Officer is an offer of market price by the State for purchase of the property. Hence, for the said offer, knowledge, actual or constructive, of the party affected by the award was an essential requirement of fair play and natural justice. Therefore, the second part of the proviso must mean the date when either the award was communicated to the party or was known by him either actually or constructively.

The aforesaid reasoning would not be applicable for interpretation of Section 28-A because there is no question of issuing notice to such an applicant as he is not a party to the reference proceeding before the court. The award passed by the court cannot be termed as an offer for market price for purchase of the land. There is no duty cast upon the court to issue notice to the landowners who have not initiated proceedings for enhancement of compensation by filing reference applications; maybe, that their lands are acquired by a common notification issued under Section 4 of the Act. As against this, under Section 18 it is the duty of the Collector to issue notice either under Section 12(2) of the Act at the time of passing of the award or in any case the date to be pronounced before passing of the award and if this is not done then the period prescribed for filing application under Section 18 is six months from the date of the Collector's award.”

(emphasis added)

A similar view has been reiterated by this Court in Des Raj [(2004) 7 SCC 753 : AIR 2004 SC 5003] and Chitrasen Bhoi [(2009) 17 SCC 74].

In view of the above, there is no occasion for us to consider the judgments cited at the Bar on behalf of the appellants in support of its case. More so, the said judgments have been delivered by this Court while dealing with the applications under Section 18 of the Act. If there are directly applicable precedents on the issue, the same have to be followed rather than to search for a new interpretation unless it is established that the earlier judgments require reconsideration. The suggestion of reconsideration has specifically been rejected by this Court in Marri Venkaiah [(2003) 7 SCC 280 : AIR 2003 SC 2949] .

It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.”

(See Martin Burn Ltd. v. Corpn. of Calcutta [AIR 1966 SC 529] , AIR p. 535, para 14 and Rohitash Kumar v. Om Prakash Sharma [(2012) 13 SCC 792 : AIR 2013 SC 30] .)”

In State of A.P. v. Marri Venkaiah [(2003) 7 SCC 280], it is held that Section 28A of the Act, 1894 crystallizes that an application under Section 28A of the Act, 1894 is to be filed within three months from the date of award by the court by only excluding the time requisite for obtaining the copy. It was also held therein that the advantage conferred under Section 28A, a beneficial provision, is required to be taken within the stipulated time, irrespective of whether a land owner is poor or illiterate; but that would not mean that he could be negligent in not finding out whether other land-owners have filed such applications. It was further held therein that whosoever wants to take advantage of the beneficial legislation, has to be vigilant and has to take appropriate action within the prescribed time and he must be vigilant in making  efforts to find out whether the other landowner has filed any reference application and if so, what is the result. It was ultimately held therein that the requirements contained under Section 28A of the Act, 1894 is not complied with and that the law cannot help an aggrieved person.

In Union of India v. Mangatu Ram, ((1997) 6 SCC 59), it was held that even though the persons who have not filed applications for reference under Section 18 are entitled to make applications, the same should be made within three months from the date of award of the reference court, excluding the time taken for obtaining the certified copy of the award as provided under proviso to Section 28A of the Act, 1894. Therefore, it was held that since the application under Section 28A of the Act, 1984 was filed beyond three months, the same is barred by limitation.

In Union of India v. Pradeep Kumari, ((1995) 2 SCC 736), the question considered by the Apex Court was, whether the application is maintainable only against the first award after the coming into force of Section 28A of the Act, 1894 and whether any subsequent award has any bearing on the right conferred by Section 28A of the Act, 1894, and it is held as follows:

It would be convenient at this stage to refer to the provisions contained in Section 28-A of the Act which reads as under:

xxx  (Section 28A quoted is omitted)

“The object underlying the enactment of these provisions, as indicated in the Statement of Objects and Reasons, was:

(ix) Considering that the right of reference to the civil court under Section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised by the comparatively affluent landowners and that this causes considerable inequality in the payment of compensation for the same or similar quality of land to different interested parties, it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek redetermination of compensation, once anyone of them has obtained orders for payment of higher compensation from the reference court under Section 18 of the Act.

After giving our thoughtful consideration to the aforementioned reasons we are unable to persuade ourselves to take the view that the period of limitation for making an application under Section 28-A of the Act has to be computed from the date of the making of the first award after the coming into force of Section 28-A and any subsequent award has no bearing on the right conferred by Section 28-A.

We may, at the outset, state that having regard to the Statement of Objects and Reasons, referred to earlier, the object underlying the enactment of Section 28-A 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. 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. Section 28-A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of right of reference to the civil court under Section 18 of the Act. In relation to beneficent legislation, the law is well-settled that while construing the provisions of such a legislation the court should adopt a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of Section 28-A should, therefore, be construed keeping in view the object underlying the said provision.

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 the amount of compensation payable to him on the basis of the amount of compensation awarded by the court. This application for redetermination of the compensation is required to be made within three months from the date of the award of the court. The right to make the application under Section 28-A arises from the award of the court on the basis of which the person making the application is seeking redetermination of the compensation. There is nothing in sub-section (1) of Section 28-A to indicate that this right is confined in respect of the earliest award that is made by the court after the coming into force of Section 28-A.

By construing the expression “where in an award under this Part” in sub-section (1) of Section 28-A to mean “where in the first award made by the court under this Part”, the word ‘first’, which is not found in sub-section (1) of Section 28-A, is being read therein and thereby the amplitude of the said provision is being curtailed so as to restrict the benefit conferred by it. In the matter of construction of a beneficent provision it is not permissible by judicial interpretation to read words which are not there and thereby restrict the scope of the said provision. (See : Jnan Ranjan Sen Gupta v. Arun Kumar Bose [(1975) 2 SCC 526, 530] .)

It is possible to visualise a situation where in the first award that is made by the court after the coming into force of Section 28-A the enhancement in the amount of compensation by the said award is not very significant for the reason that the person who sought the reference was not able to produce adequate evidence in support of his claim and in another reference where the award was made by the court subsequently such evidence is produced before the court and a much higher amount is awarded as compensation in the said award. By restricting the benefit of Section 28-A to the first award that is made by the court after the coming into force of Section 28-A the benefit of higher amount of compensation on the basis of the subsequent award made by the court would be denied to the persons invoking Section 28-A and the benefit of the said provision would be confined to redetermination of compensation on the basis of lesser amount of compensation awarded under the first award that is made after the coming into force of Section 28-A. There is nothing in the wordings of Section 28-A to indicate that the legislature intended to confer such a limited benefit under Section 28-A. Similarly, there may be a situation, as in the present case, where the notification under Section 4(1) of the Act covers lands falling in different villages and a number of references at the instance of persons having lands in different villages were pending in the court on the date of coming into force of Section 28-A and awards in those references are made by the court on different dates. A person who is entitled to apply under Section 28-A belonging to a particular village may come to know of the first award that is made by the court after the coming into force of Section 28-A in a reference at the instance of a person belonging to another village, after the expiry of the period of three months from the date of the said award but he may come to know of the subsequent award that is made by the court in the reference at the instance of a person belonging to the same village before the expiry of the period of three months from the date of the said award. This is more likely to happen in the cases of inarticulate and poor people who cannot be expected to keep track of all the references that were pending in court on the date of coming into force of Section 28-A and may not be in a position to know, in time, about the first award that is made by the court after the coming into force of Section 28-A. By holding that the award referred to in Section 28-A(1) is the first award made after the coming into force of Section 28-A, such persons would be deprived of the benefit extended by Section 28-A. Such a construction would thus result in perpetuating the inequality in the payment of compensation which the legislature wanted to remove by enacting Section 28-A. The object underlying Section 28-A would be better achieved by giving the expression “an award” in Section 28-A its natural meaning as meaning the award that is made by the court in Part

III of the Act after the coming into force of Section 28-A. If the said expression in Section 28-A(1) is thus construed, a person would be able to seek redetermination of the amount of compensation payable to him provided the following conditions are satisfied:

(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;

(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 redetermination of amount of compensation is sought; and

(vi) Only one application can be moved under Section 28-A for redetermination of compensation by an applicant.”

Therefore, on an analysis of Section 28A of the Act, 1894 and the proposition of law laid down by the Apex Court in the aforesaid decisions, it can be seen that if there is delay in filing an application in contemplation of the provisions of Section 28A, the same is not maintainable and the authority under law is not vested with any power to condone the delay beyond the period of limitation prescribed for filing such an application. However, the aggrieved person is entitled to seek re-determination on the basis of any award passed under the same notification within three months from the date of the award, less the period taken for obtaining a certified copy, as held by the Apex Court in Pradeep Kumari (supra).

In the instant case, admittedly, the application was filed two years after the award in question was passed. In that view of the matter, we are of the clear opinion that the learned single Judge was right in holding that the appellant has not made out any case for interference with Exhibit P7 impugned order passed by the statutory authority under Section 28A of the Act, 1894.

To put it shortly, the appellant has not made out any case of jurisdictional error or other legal infirmities justifying our interference in the judgment of the learned single Judge in an intra-court appeal preferred under Section 5 of the Kerala High Court Act, 1958.

Needless to say, writ appeal fails and accordingly, it is dismissed.