State of Kerala and Others vs Mammen Varghese and Another

Mathews P. Mathew, J.—An interesting question, as to the effect of Section 11-A of the Land Acquisition Act, 1894, as amended by Act 68 of 1984, arises in these appeals. Both the appeals are filed against the judgment in O.P. No. 9913 of 1986. W.A. No. 878 of 1992 is filed by the State as well as the Sub Collector and the Secretary to the Board of Revenue, whereas W.A. No. 944 of 1992 is filed on behalf of the Panchayat, at whose instance the land involved in the case was sought to fee acquired.

The facts of the case, in short, are as follows: 0.41.84 hectare of land belonging to the first Respondent in these appeals (Petitioner in the Original Petition), who is hereinafter referred to as the land owner, was sought to be acquired for the purpose of establishing a mini industrial unit in Kanakkary Panchayat. There is a building, in the property. According to the land owner, it was constructed prior to the issuance of the notification u/s 3(1) of the Kerala Land Acquisition Act, 1962 on 12th April 1977. On the other hand, according to the land acquisition authorities, the building was constructed after the said date and, therefore, not liable to be compensated for. The second Appellant in the writ appeal (W.A. No. 878 of 1992), functioning as Collector under the Act, passed an award granting compensation only for the value of the land without awarding any amount for the building thereon. Thereupon the land owner filed O.P. No. 2689 of 1979 challenging the award inasmuch as compensation was refused for the building. The said Original Petition was disposed of by judgment dated 28th October 1981 copy of which is marked as Ext. P-1 in O.P. No. 9913 of 1986. A reading of Ext. P-1 shows that the case was contested very hotly. It was contended on behalf of the State and the acquisition authorities that the land owner had not approached the Court with clean hands. It was further contended that the fact that the land owner had failed to say anything at all about the building in his representation made pursuant to Section 3(1) notification, is clearly indicative of the fact that the building did not exist on the date of Section 3(1) notification.

After adverting to the rival contentions in this regard, this Court came to the conclusion that the Collector did not apply his mind in considering the objections raised by the land owner u/s 9 regarding the existence of the building, as claimed by the land owner, prior to the issuance of Section 3(1) notification. This Court also came to the conclusion that the Collector did not value the building and other improvements and he failed to say in the award or in any other order that they were not valued and why they were not valued. On finding that the Collector failed to pass a speaking order in disposing of the objections raised by the land owner pursuant to the notice u/s 9, this Court held that the award was not made in compliance with the statutory provisions. Allowing the Original Petition by Ext. P-1 judgment, this Court observed as follows:

In the ordinary circumstances, I would he most reluctant to allow an amendment of this nature on the date of the hearing. But the files placed before me clearly show the injustice that could result from an award which was made otherwise than in accordance with the Act. If the building was in fact constructed prior to the date of the notification u/s 3, as the Petitioner now tells me, not to value that building before acquisition is nothing short of injustice. It is a valuable building and a precious property to a person in the position of the Petitioner who is only a school teacher. The value stated by him is Rs. 40,000 which is, for a school teacher, a precious sum of money. Whether the value is correctly, stated and whether the building was constructed prior to the notification u/s 3 are matters on which I express no view. These matters have to be investigated. If the Petitioner is right in saying what he says, he is entitled to the value of the building in addition to the value of the land. In the circumstances, I allow the amendment. For the reasons stated by me, I declare that the award dated 19th July 1979 is void and invalid and therefore in law non-existent. It is however open to the Respondents to make a fresh award according to law and on a proper consideration of the objections in Ext. P-2. Such award shall be duly notified to the Petitioner as provided u/s 12(2) and it will be open to him in that event to seek his remedy as provided u/s 20, if so advised. The Original Petition is allowed in the above terms....

Thus, this Court declared the award passed by the Collector as void and invalid and non-existent in law. This Court, however, gave liberty to the second Respondent to make a fresh award according to law on a proper consideration of the objections.

Ext. P-1 judgment was rendered on 28th October 1981. The Collector did not choose to make an award for nearly five years. Eventually, he passed a fresh award, Ext. P-2, on 26th September 1986 again awarding compensation only for the land, treating the building as one constructed after the date of Section 3(1) notification. In the interregnum, the Kerala Land Acquisition Act, 1962, under which the proceedings had been initiated, stood repealed on, the extension of the Central Land Acquisition Act, 1894 to Kerala by Central Act 68 of 1984, which, admittedly, came into force on 24th September 1984. It is based on the extension of the Central Act and the restrictions placed thereby on the making of awards, that the land owner filed O.P. No. 9913 of 1986 challenging the fresh award, Ext. P-2, passed on 26th September 1986. The land owner contended that Section 11-A of the Central Act, as introduced by Act 68 of 1984, requires an award to be passed within a period of two years from the commencement of the Amendment Act of 1984 in cases where the declaration u/s 6 in respect of the acquisition had been published before the commencement of the said Amendment Act. It was further argued that the fresh award, Ext. P-2, passed on 26th September 1986 was passed after the expiry of the period of two years from 24th September 1984 when the Amendment Act came into force. The learned Single Judge accepted the argument advanced in this behalf by the land owner and by the judgment impugned in these appeals, allowed the Original Petition and quashed Ext. P-2 award. The learned Single Judge also declared that the proceedings for acquisition initiated by the notification u/s 3(1)on 12th April 1977 had lapsed. Since the land was taken possession of pursuant to the proceedings which have no validity in law and pursuant to an award which has been declared by this Court as non-existent, the Respondents in the Original Petition were directed to surrender possession of the land to the land owner expeditiously at any rate, within a period of six months from the date of receipt of a copy of the judgment.

The contentions raised in both the appeals are more or less the same. Firstly, it is contended by the Appellants in both the appeals that the time limit prescribed under the Land Acquisition Act, 1894, as amended by Act 68 of 1984, is applicable only to original awards to be passed under the Act and not to a fresh award passed in terms of the directions issued by the High Court. It is also contended that in so far as no time limit was fixed in Ext. P-1 judgment for passing; the award, no such time limit could be superimposed at a subsequent stage. We shall first deal with this contention. Section 11-A of the Land Acquisition Act, 1894, as amended by Act 68 of 1984, provides that:

The Collector shall make an award u/s 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:

Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement.

It is clear from the above that in cases where the declaration had been published before 24th September 1984 when the Central Act 68 of 1984 came into force, the award has to be passed within a period of two years from 24th September 1984. The one and the only condition required to attract this provision is that the declaration should have been published before 24th September 1984. Admittedly, in the present case, the declaration was published on 12th April 1977, i.e. long before the commencement of the Land Acquisition (Amendment) Act, 1984. This factual position is not disputed by any of the parties. Therefore, on a plain reading of the provisions of Section 11-A, the inevitable finding is that any valid award in the instant case should have been passed within two years from 24th September 1984 and, admittedly, no award was passed within the time stipulated by Section 11-A. Ext. P-2 the award was only on 26th September 1986, i.e. beyond the time prescribed u/s 11-A of the Act. Section 11-A clearly lays down that if an award is not made within the stipulated period of two years, the entire proceedings for acquisition of the land shall lapse and as such the entire proceedings for the acquisition of the land in question lapsed automatically on the expiry of two years from the commencement of the Land Acquisition (Amendment) Act, 1084, namely on 24th September 1986. Thus, Ext. P-2 award has no legs to stand and is non-existent in law.

The contention that the time limit stipulated by Section 11A of the Act would not apply in the case of an award passed pursuant to Ext. P-1 judgment is also without any merit. It is true that Ext. P-1 judgment had not imposed any limitation with regard to the period of time within which the fresh award should be passed. There is nothing in Section 11A to indicate that the prescription of time applies only to original awards passed by the Collector and not to de novo awards passed by him after the original award is quashed or set aside for any reason. In computing the period of two years referred to in Section 11A, all that is excluded by the explanation to the said section, is the period during which any action or proceedings to be taken in pursuance to the declaration is stayed by an order of a Court. The very purpose of Section 11A is to avoid delay in the completion of the land acquisition proceedings and to avoid hardships to landowners consequent on such delay. This purpose will stand defeated if Section 11A is confined in its operation to original awards and not to awards passed after the original award is cancelled or set aside. The Scheme of the Act does not permit such an interpretation of Section 11A. By Ext. P-1 judgment, this Court granted liberty to the Respondents to make a fresh award according to law. Ext. P-1 judgment did not relieve the land acquisition authorities from any of the statutory restrictions and limitations in the matter of acquiring lands from the landowners. The Land Acquisition Act, as it stood at the time of Ext. P-1 judgment, did not prescribe any period of time within which an award should be passed. As rightly pointed out by the learned Single Judge, the decision of this Court has to be read in the light of the amendments introduced by Act 68 of 1984. This Court did not and could not have intended while passing the judgment Ext. P-1 that any award made in the case could contravene the provisions of any subsequently enacted law relating to the subject matter. Central Act 68 of 1984 operates to enforce a period of limitation in relation to the passing of award in a land acquisition case and as rightly held by the learned Single Judge this Court''s judgment has to be read subject to the subsequent enactment and the limitations contained therein.

It is further contended that the interpretation given to Section 11A by the learned Single Judge is wrong in the light of the reported decisions in Ittan v. State of Kerala 1987 (2) KLT 23, Thomas v. State of Kerala 1988 (1) KLT 438 and Mary Philip v. K.S.H.B. 1992 (2) KLT 420. These decisions are rendered in cases where the land acquisition authorities after having taken possession of the lands sought to withdraw from the acquisition proceedings to suit their convenience. The ratio decidendi in these decisions is that after taking possession of lands, the land acquisition authorities cannot wriggle out of acquisition proceedings by delaying the passing of the awards so as to enable them to claim that after the lapse of two years stipulated in Section 11A, they are prevented from passing any award. These decisions are primarily based on Section 48(1) of the Land Acquisition Act, 1894 which enables the Government to withdraw from the acquisition of any land of which possession has not been taken. It has been rightly aeld in these decisions that if possession is taken pursuant to proceedings already initiated or in contemplation of proceedings to be, initiated under the Land Acquisition Act, the Government has no right to withdraw from the acquisition. We would cite the observations made by our learned brother Shamsuddin, J. in para 15 of the decision reported in Mary Philip v. K.S.H.B. 1992 (2) KLT 420. It reads:

It is lastly contended by learned Counsel for 1st Respondent that since award was not passed within the statutory period, the acquisition proceedings lapsed. This is based on Section 11A of Land Acquisition Act, 1894 as amended by Act 68/84. It is not due to any fault of Petitioners that the award could not be passed within the stipulated period. In the counter affidavit filed by Respondents 4 to 6, it has been clearly stated that the award enquiry was over and the amount of compensation to be paid was fixed, but it was only because that 1st Respondent did not make the funds available, the award could not be passed, and compensation could not be disbursed to the landowners. In such a situation, it would work great hardship to the Petitioners, if it is held that by virtue of operation of Section 11A, acquisition proceedings lapsed. The identical question was considered by a learned Single Judge of this Court in Ittan v. State of Kerala [1987 (2) KLT 23] and in Thomas v. State of Kerala [1988 (1) KLT 438]. My learned brother Viswanatha Iyer, J. pointed out that the provisions contained in Section 11A was intended for the benefit of landowners and to relieve them from oppressive and long drawn out proceedings, and there is no reason however not to compel Government to complete the proceedings for acquisition, when the landowners are prepared to have the same continued and completed. I am in respectful agreement with the view expressed in the above decisions. Accordingly I hold that it is not open to the Government or the 1st Respondent to contend that proceedings lapsed by operation of Section 11A of the Act.

To hold otherwise would have enabled the land acquisition authorities to wriggle out of the proceedings for acquisition, despite their being disabled from withdrawing from the same. In other words, a contrary interpretation would have enabled the acquisition authorities to do indirectly what they can not do directly. In interpreting a statutory provision, the primary factor to be borne in mind is the legislative intent. From the scheme of the Land Acquisition Act, and particularly the clear provisions in Sections 11A and 48(1) it is evident that the legislature intended to bestow a special benefit to landowners to relieve them from oppressive and long drawn out proceedings and the Government cannot make use of that section as a means of further oppression of landowners'' interest. If the kind acquisition authorities are permitted to take possession of land and thereafter wriggle out of acquisition proceedings to the detriment of the landowner, it would be nothing but a fraud on the statute. It is in these circumstances, that the above mentioned decisions were rendered in the Original Petitions filed by landowners in cases where the authorities refused to complete the acquisition proceedings and pass awards after leaving taken possession of the lands, on the plea that the time stipulated u/s 11A was over. In such circumstances, the Court held that it is not open to the land acquisition authorities to rely on the statutory protection given exclusively in favour of the landowners u/s 11A of the Act. That principle will have no application in the present case where land is sought to be acquired from an unwilling landowner.

The next ground taken by the Appellants is the delay occurred in passing the award because of the obstruction caused to the land acquisition proceedings by virtue of the legal proceedings initiated by the landowner. It is true that the landowner filed O.P. 2689/79 before this Court, challenging the first award. That O.P. was disposed of by the judgment dated 28th October, 1981. By the said judgment, it was made clear that it is open to the land acquisition authorities to make a fresh award according to law and on a proper consideration of the objections raised by the landowner. There was admittedly no further obstruction caused by the landowner in pursuing the land acquisition proceedings. There was no order of stay from any Court or other authorities stalling the acquisition, proceedings. The undue delay in passing the fresh award is not in any way caused by the landowner and as such there is no merit in the contention that the delay in passing the fresh award was caused by obstructionist tactics adopted by the landowner.

It was also argued on behalf of the Appellants that the acquisition was meant for a noble public purpose, i.e., for the establishment of a mini industrial unit in the Panchayat. Even though the land was taken possession of as early as on 7th August 1979, it admittedly has not been put to the purported use of establishing any industrial unit. On the contrary, it is submitted on behalf of the Panchayat that the property is being used by the local public as a playground.

In any view, in interpreting the mandatory provisions of a statute, sympathy has little role to play. If at all the sympathy factor is allowed to be drawn in, the landowner would also claim at least an equal share of it in so far as the property was sought to be acquired from a landowner, who is a school teacher without properly considering his claim for compensation for the building standing on the property which is claimed to have been built out of his hard earned savings.

It has been very strongly argued by Sri. V.C. James, the learned Government Pleader on behalf of the Appellants. in Writ Appeal No. 878/92, supported by Sri Santhalingam, the learned Counsel for the Panchayat that the landowner had not approached the Court with clean hands inasmuch as he wrongly took up the plea that the copy of the first award was not served on him and further that he had not mentioned the fact that there was any building on the property when he filed the objections pursuant to Section 3(1) notification. From a reading of Ext. P-1 judgment, it is clear that both these objections were adverted to in detail before passing Ext. P-1 judgment Detailed discussion in this issue is available in Ext. P-1 judgment wherein it is found that the landowner approached this Court with clean hands. Ext. P-1 judgment has become final. None of the Appellants thought it fit to challenge the findings entered in Ext. P-1 judgment. In the circumstances, we are not persuaded to accept the argument put forward by the Appellants that the landowner has not approached this Court with clean hands.

In view of the above, we find no reason to interfere with the impugned judgment of the learned Single Judge. It is brought to our notice that the time granted by the impugned judgment to surrender the land to the landowner has already expired. In the facts and circumstances of the case, we are inclined to grant to the Appellants a month''s time from today for surrendering the land to the 1st Respondent landowner.

Except the extension of time for surrendering the land as allowed hereinabove, both the appeals fail and are hereby dismissed. There will be no order as to costs.