K.S. Paripoornan vs State Of Kerala on 12 September, 1994
Equivalent citations: 1995 AIR 1012, 1994 SCC (5) 593
Bench: Sahai, R.
PETITIONER:
K.S. PARIPOORNAN
Vs.
RESPONDENT:
STATE OF KERALA
DATE OF JUDGMENT12/09/1994
Bench:
SAHAI, R.M. (J)
Bench:
SAHAI, R.M. (J)
SAWANT, P.B.
VENKATACHALLIAH, M.N.(CJ)
SAWANT, P.B.
BHARUCHA S.P. (J)
CITATION:
1995 AIR 1012 1994 SCC (5) 593
JT 1994 (6) 182 1994 SCALE (4)192
ACT:
HEADNOTE:
JUDGMENT:
The Judgments of the Court were delivered by P.B. SAWANT, J. (dissenting)- I have perused the draft of the judgment prepared by my Brother Justice Agrawal. Since, I respectfully beg to differ with the interpretation of the relevant provisions of the Act and the conclusions drawn therein, I am impelled to deliver this dissenting judgment.
2. The question of law involved in these matters though a short one, has been the subject of conflicting decisions of this Court and hence is referred to the Constitution Bench for resolving the conflict. The question is whether the benefit of sub-section (1-A) of Section 23 of the Land Acquisition Act, 1894 (the “principal Act”) is to be granted only in the proceedings for the acquisition of land referred to in clauses (a) and (b) of Section 30(1) of the Land Acquisition (Amendment) Act, 1984 (the “amending Act”), or it is to be granted in all proceedings pending before the Courts on 24-9-1984.
3. To appreciate the controversy, it is necessary to refer to the relevant provisions of the principal Act. Section 3(d) defines ‘Court’ to mean a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform the functions of the Court under the Act. In the context of the other provisions and the scheme of the Act, it means the Court to which the reference is made by the Collector under Section 18 of the principal Act.
4. Section 11 empowers the Collector, among other things, to enquire into the value of the land on the date of the publication of the notification for acquisition of the land under Section 4(1) and to make an award of the compensation which in his opinion, should be allowed for the land.
5. Section 15 requires the Collector while determining the amount of compensation, to be guided by the provisions of Sections 23 and 24 of the Act.
6. Section 16 empowers the Collector to take possession of the land when he has made the award under Section 11 of the Act. On taking such possession, the land vests absolutely in the Government, free from all encumbrances. In case of urgency, Section 17 empowers the appropriate Government to direct the Collector to take possession of the land after 15 608
days from the publication of the notice under Section 9(1) although no award has been made under Section 11.
7. Section 18 provides for reference to the Court by an interested person, among other things, on the ground that the amount of compensation awarded by the Collector is inadequate. When a reference is made to the Court for determining the amount of compensation, Section 23 requires the Court to take into consideration six factors which are mentioned therein, for determining the market value of the land. Sub-sections (1-A) and (2) of the said section require the Court to award in every case, amounts referred to therein in addition to the market value of the land. Sub-section (1-A) provides for an additional amount calculated at the rate of 12 per centum per annum on the market value of the land, for the period commencing on and from the date of the publication of notice under Section 4(1) to tile date of the award of the Collector or to the date of taking possession of tile land, whichever is earlier. Likewise, sub-section (2) requires the Court to award in every case a sum of 30 per centum on the market value determined under Section 23(1) in consideration of the compulsory nature of the acquisition. This amount is commonly known as solatium and is in addition to the additional amount under sub-section (1-A).
8. Section 24 enumerates eight matters which are to be ignored while determining the compensation of the land.
9. Section 25 lays down that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Section 28 enables the Court to direct the Collector to award interest on the excess amount at the rate of 9 per centum per annum from the date on which the possession of the land is taken to the date of payment of such excess into Court if, in the opinion of the Court, the sum which the Collector ought to have awarded as compensation, was in excess of the SLIM which the Collector did award. The proviso to the said section further enables the Court to award interest at the rate of 15 per centum per annum, if the excess amount or any part thereof that is payable is not paid into the Court within one year from the date on which possession is taken. The interest is to be paid from the date of expiry of the said period of one year.
10.Section 28-A enables the persons interested in all the other lands covered by the same notification under Section 4(1) and aggrieved by the award made by the Collector, to make a written application to the Collector within three months from the date of the award of the Court requiring that the amount of compensation payable to them be redetermined on the basis of the amount of compensation awarded by the Court to the applicants who had sought a reference under Section 18 of the Act to the Court, if the amount of compensation awarded to such applicants by the Court is in excess of the amount awarded by the Collector, although the persons concerned may not have similarly applied for a reference under Section 18 to the Court. On such application being made, the Collector is required to hold inquiry to make an award redetermining the award of compensation payable to such applicants. Any person who does not accept the award of the Collector redetermining 609
the amount of compensation, is given a right to require the Collector to refer the matter for the determination of the Court, and such application is to be deemed to be an application for reference under Section 18 of the Act.
11.Before we proceed further, it is necessary to bear in mind that the determination of the amount of compensation under Section 11 as well as by the Court on a reference under Section 18, are both regarded by the Act as an ,award’ as distinguished from ‘order’ or ‘decree’ of the appellate courts such as High Court and the Supreme Court in appeal against such award. This is clear from the language of Sections 11 to 12, 13-A, 15-A, 16 to 18, 23, 25 to 28-A and 54, among others. While under Section 26, the award made by the reference Court is deemed to be a decree and the statement of the grounds of every Such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9), respectively of Civil Procedure Code, under Section 54, the order passed by the High Court is per se decree and it is appealable as such to the Supreme Court under the Civil Procedure Code. But for Section 54 of the Act, the award of the reference Court would not have been appealable. What is further, Section 30(2) of the amending Act clearly and specifically brings out the distinction between ‘award’ made by the Collector and by the reference Court on the one hand and the ‘order’ passed by the High Court or the Supreme Court in appeal on the other. It is an error to dismiss this vital distinction made in the principal and amending Acts between ‘award’ and ‘order’ by characterising the use of the word ‘award’ as a verb and not noun. The distinction between the two has a significant relevance for the correct interpretation of the provisions in question. According to us, the legislature has not used the two words casually or unintentionally.
12.It is further necessary to bear in mind that the amending Act has added, among others, the provisions of Section 23(1- A) and Section 28-A and has amended the provisions of Section 23(2). It has also made independent transitional provision in its Section 30. The relevant provisions of Section 30 read as follows:
30. Transitional provisions.- (1) The provisions of sub- section (1A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,-
(a) every proceeding for the acquisition of any land under the principal Act pending on 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People], in which no award has been made by the Collector before that date;
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.
(2)The provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18
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of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act.
The date of the introduction of the Bill of the amending Act is 30-4-1982 and the date of its commencement is 24-9-1984.
13.Against the background of the aforesaid relevant provisions of the principal and the amending Act, we have to interpret the provisions of Section 23(1-A) of the principal Act. Section 23(1) speaks of the factors which the reference Court has to take into consideration while determining the amount of compensation to be awarded for the acquired land. The compensation so determined is to be the market value of the land in question on the date of the publication of the notification under Section 4(1) of the principal Act. The legislature had originally provided for a further sum in every case to be paid in addition to the market value of the land in consideration of the compulsory nature of the acquisition. That sum was 15 per centum on the market value. This additional sum known as ‘solatium’ was provided for in sub-section (2) of Section 23. By the amending Act, it has been increased to 30 per centum of the market value. The solatium was thus a part of the compensation from the very inception of the principal Act and all that was done by the amending Act, was to increase its amount.
14.It was, however, found that there was a considerable time lag between the date of the publication of the notification under Section 4(1) and the date of the award of the Collector. The market value of the land acquired was however frozen to the date of the notification under Section 4(1). In order to relieve the hardship of the persons interested in the land (hereinafter compendiously termed as ‘landowners’ for the sake of convenience), the legislature for the first time introduced sub-section (1-A) in Section 23 of the principal Act by the amending Act. This sub- section enjoins the grant, in every case, of a further amount in addition to the market value. The amount is to be calculated at the rate of 12 per centum per annum on the market value for a specific period, namely, the period commencing on and from the date of the publication of the notification under Section 4(1) and ending with the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. The Explanation to the said sub-section (1-A), states that in computing the period for which the said amount is to be granted, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court, shall be excluded. This provision like the one for solatium in sub-section (2) of Section 23, is a substantive one. Unless therefore, there is a statutory mandate, neither this provision nor the provision for the increased solatium can be given retrospective effect. It is here that the role of Section 30 of the amending Act (hereinafter referred to as ‘Section 30’) which makes provisions for the transitional period, viz., the
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period between the introduction of the Bill of the amending Act and the commencement of the said Act, comes into play. It is the interpretation of the said Section 30 and its bearing on the provisions of Section 23 which has become a matter of controversy and a subject of conflicting decisions of this Court as stated at the outset.
15.The relevant provisions of Section 30 have already been reproduced. An analysis of the section shows that it deals separately with the two different benefits which the amending Act has conferred on the landowners. Sub-section (1) thereof deals exclusively with the provisions of sub- section (1-A) of Section 23 of the principal Act while sub- section (2) thereof deals exclusively with the provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by the amending Act. In the present proceedings, we are concerned with the applicability of the newly inserted subsection (1-A) of Section 23 of the principal Act and not with the amended Sections 23(2) and 28 of the principal Act. However, since some decisions of this Court have tried to project and rely upon sub-section (2) of Section 30 for the interpretation of sub-section (1) thereof and also for the interpretation of Section 23 of the principal Act, it will be necessary to refer to the provisions of Section 30(2) also in the course of the discussion that follows.
16.Sub-section (1) of Section 30 in its turn deals separately with two classes of cases. By clause (a) thereof it makes the provisions of Section 23(1-A) of the principal Act applicable also to and in relation to every acquisition proceeding pending on 30-4-1982 i.e. the date of the introduction of the Bill of the amending Act, in which no award has been made by the Collector before that date. By its clause (b), it makes the provisions of the said Section 23(1-A) applicable also to and in relation to every acquisition proceeding, commenced after 30-4-1982 whether the Collector has or has not made an award before the date of the commencement of the Act, i.e., 24-9-1984. It is further clear that sub-section (1) of Section 30, deals exclusively with the power and the jurisdiction of the Collector in the proceedings before him. It does not deal with or refer to the power either of the reference Court under Section 23 of the principal Act or of the appellate Court such as the High Court and the Supreme Court. With respect, it is the failure to appreciate the sine qua non of the provisions of Section 30(1) which is responsible for misinterpretation of, and wrong conclusions with regard to the applicability of Section 23(1-A). These transitional provisions with regard to the proceedings pending before the Collector were necessary, for without them it would not have been permissible for the Collector to give benefit of Section 23(1-A) to the landowners concerned. The legislature not only wanted the reference Court under Section 23, but also the Collector under Section 11 of the principal Act, to give the benefit of Section 23(1-A) in the proceedings pending before them. This is as it should be, for Section 15 of the principal Act requires the Collector to take into consideration the provisions contained in Sections 23 and 24 while determining the amount of compensation to be awarded. To get his due compensation, every landowner need not be obliged to ask for a reference under Section 18 nor is every
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landowner in a financial position to do so. It is common knowledge that many a land acquisition proceedings come to an end at the stage of the Collector, and only some cases travel to the reference Court and thereafter to the appellate Courts. Secondly, Section 30(1) while giving the power to the Collector to grant the benefit of Section 23(1 A), also pl aces a restriction on the said power. The Collector is empowered to grant the said benefit only in those proceedings which are pending before him on 30-4-1982 and in which no award has been made by him before that date. That is understandable since the proceedings would be pending before him on 30-4-1982 even after he has made his award, either for making a reference or for payment and distribution of the compensation. In such cases, he is not empowered to give the said benefit by reopening the award. If the reference in such proceedings is ultimately made under Section 18 of the principal Act, the reference Court under Section 23 will have authority to give the benefit. If it is not made, the proceedings will stand closed without the said benefit. On the other hand, if the proceedings are pending before him on 30-4-1982 in which no award is made, he is empowered to give the said benefit in such proceedings since, as pointed out earlier, under Section 15 of the principal Act he is to be guided by the provisions of Sections 23 and 24 of that Act while determining the compensation. This is the substance of clause (a) of Section 30(1).
17.Clause (b) of Section 30(1) takes care of another situation where the Collector is given power to give the benefit of Section 23(1-A). That, situation is where the proceedings for acquisition have been started after 30-4- 1982 whether an award has been made or not by the Collector before 24-9-1984, which is the date of the commencement of the amending Act. In other words, the Collector has been given power to give benefit of Section 23(1-A) in all acquisition proceedings started after 30-4-1982. This provision was also necessary, since but for the said provision, the Collector would have been powerless to give the said benefit in the acquisition proceedings started after 30-4-1982 in which he has made his award before 24-9- 1984. The clause (b) empowers the Collector to reopen such awards whether the proceedings are pending before him or not. Secondly, the said clause empowers the Collector to give the said benefit also in all acquisition proceedings started after that date in which he has not made award till 24-9-1984.
18.Thus, the provisions of sub-section (1) of Section 30 are in conformity with the object of the amending Act, namely, to give benefit to the landowners who were denied the benefit of compensation for a long time and were put to an avoidable loss. There is no reason why if the reference Court under Section 23 of the principal Act can give the benefit of Section 23(1-A) in the proceedings pending before it on the date of the commencement of the amending Act, the Collector should not have power to give the said benefit in the proceedings before him. The only restriction that the legislature has placed on the said power of the Collector is that it has prevented him from reopening the awards which he had already made before 30-4-1982 in proceedings pending before him on that day. This was, as, stated above, for the reason that those of the awards made by him in such 613
proceedings which were the subject-matter of reference under Section 18 could be taken care of by the reference Court under Section 23. On the other hand, those of such awards which were not questioned and, therefore, had become final, should not be reopened.
19.What is, therefore, necessary to note is that Section 30(1) deals exclusively with the powers of the Collector and it has no bearing on the powers of the reference Court under Section 23. What is more, clause (a) of the said Section 30(1) is not retrospective in operation. It speaks of power of the Collector in the proceedings pending before him on 30-4-1982 in which lie has yet to make the award. It Is only clause (b) of the said section which gives a limited retrospectivity to the power of the Collector when it enables him to reopen the award made by him before the commencement of the amending Act, viz., 24-9-1984 in proceedings started after 30-4-1982.
20.The reference Court in its turn in the matters pending before it on the date of the commencement of the amending Act, viz., 24-9-1984 is enjoined upon to give the benefit of Section 23(1 A) in awards made by it on and after the date of the commencement of the Act. For granting the said benefit, Section 23 of the principal Act nowhere makes any distinction between the acquisition proceedings commenced prior to and after 30-4-1982 or inhibits the power of the reference Court, unlike the provisions of Section 30(1) which deal with the powers of the Collector. When the reference Court does so, it gives prospective effect to the provisions of Section 23(1-A). It does not give retrospective effect to the said provisions. To import the concept of retrospectivity in Section 23 merely because the reference Court gives the benefit of Section 23(1 A) in the proceedings pending before it on the date of the commencement of the amending Act, is neither interpretatively correct nor in conformity with the provisions of Section 23. It is wrong to say that merely because the acquisition proceedings were commenced prior to 30-4-1982, i.e., the date of the introduction of the Bill of the amending Act, the grant of the said benefit has a retrospective effect, although the benefit is given by the reference Court in the proceedings pending before it. In the first instance, the additional amount under Section 23(1 A) is to be calculated till the date of the award or the date of taking possession of the land whichever is earlier. Secondly, when the legislature does not use any expression to indicate that the law made by it shall apply only to causes of action or incidents taking place after the coming into force of the amending Act, the law has to be applied to all matters pending before the Court even if those matters had arisen before coming into force of the Act.
21.”A statute is not retrospective merely because it affects existing rights;nor it is retrospective merely because a part of the requisites for its action is drawn from a time antecedent to Its passing.” (Halsbury’s Laws of England, Vol. IV, para 221). In R. v. Inhabitants of St. Mary, White chapel1 the law intended to secure that a widow residing in a parish with her husband shall not be removed for twelve months after his death. The benefit of the 1 (1848) 12 QB 120, 127: 17 LJMC 172: 116 ER 811 614
law was extended even when the husband had died before coming into force of the Act and it was observed : “It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction; but we have shown before that the statute Is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because apart of the requisites for its action is drawn from time antecedent to its passing.” In this case the words ‘shall be removed’ were thus found appropriate to cover all cases of future removals irrespective of whether the husband had died prior to the Act but they were not found wide enough to nullify completed removals prior to the Act, even if the widow was removed within twelve months of her husband’s death. This principle was approved by our Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh2 and in T.K. Lakshmana Iyer v. State of Madras3. In Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil4, it was observed by the Constitution
Bench: “….where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included.”
22.In Bishun Narain Misra v. State of U.p.5 a rule made by the State Government providing that the age of retirement would be 55 years came up for consideration before the Constitution Bench. It was argued that since the rule could not apply retrospectively, a government servant who was recruited and appointed earlier to the date when the rule was made by the Government, could not be retired in exercise of power under this rule retrospectively. The submission was repelled and it was held that the rule could not be struck down on the round that it was retrospective in operation as all that it provided was that from the date it came into force the age of retirement became 55 years.
23.The fact that the provisions of sub-section (1) of Section 30 are confined to the powers of the Collector and have no relation to or bearing on the power of the reference Court under Section 23 of the principal Act or of the appellate Courts, becomes abundantly clear when we contrast the said provisions with the provisions of sub-section (2) of the said Section 30. That sub-section extends the benefit of the amended Section 23(2) and Section 28 of the principal Act also to and in relation to not only the award made by the Collector but also to that made by the reference Court and further to the orders passed by the High Court and the Supreme Court in appeals against any such award made by the Collector or the reference Court after 30-4-1982 and before 24-9-1984. In other words, subsection (2) of Section 30
