Full Judgment Text
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CASE NO.:
Appeal (civil) 9521-22 of 1995
PETITIONER:
THE LAND ACQUISITION OFFICER CUM-DSWO, AP
Vs.
RESPONDENT:
M/S. B.V. REDDY & SONS
DATE OF JUDGMENT: 14/02/2002
BENCH:
G.B. Pattanaik, S.N. Phukan & S.N. Variava
JUDGMENT:
With
Writ Petition (Civil) No. 349 of 2001.
JUDGMENT
PATTANAIK,J.
These appeals are directed against the judgment of
Andhra Pradesh High Court in Letters Patent Appeals Nos.
351 and 352 of 1989. The land in question measuring 3.42
acres was acquired for construction of houses for Tribals and
Harijans by issuance of notification under Section 4(1) of the
Land Acquisition Act, published on 9.6.1976. A second
Notification was issued under said Section 4 to acquire an
extent of 1.06 acres by publication of Notification dated
27.12.1976. The Land Acquisition Officer determined the
market value of the acquired land @ Rs.11,000/- per acre by
his award dated 31.2.1977. Before the Land Acquisition
Officer, the land owners had claimed compensation @ Rs.
25,000/- to Rs. 30,000/- per acre. On a reference being made
under Section 18 of the Act, the Civil Court determined the
market value of the acquired land at Rs.75,000/- per acre,
but granted compensation @ Rs. 30.000/- per acre in view of
Section 25 of the Act, as it stood prior to its amendment in
the year 1984 and as the owners had claimed @ Rs.30,000/-
per acre. On appeal being carried, the learned Single Judge
also came to the conclusion that the market value of the land
would be Rs.75,000/- per acre, but did not enhance the
compensation in view of the un-amended provisions of
Section 25 of the Act and in view of the fact that the owners
had claimed only Rs.30,000/- per acre before the Land
Acquisition Officer. The matter being carried to the Division
Bench in Letters Patent Appeal, the Division Bench came to
the conclusion that Section 25 being procedural in nature and
the amendment having been made while the appeal was
pending, the amended provisions of Section 25 of the Land
Acquisition Act would apply and since under the amended
provisions, there is no bar for awarding compensation more
than the amount claimed by the claimants and the only
embargo being that the amount shall not be awarded less than
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the amount awarded by the Collector under Section 11, the
Court would be justified in enhancing the compensation if the
market value is determined at a higher rate. On the question
of determination of market value, the Division Bench, taking
into consideration Exhibits B-3, B-4 and B-7, came to hold
that the market value of the acquired land would be Rs. one
lakh per acre. The appeals having been allowed with the
aforesaid conclusions, the State is in appeal before this Court.
Mr. Guntur Prabhakar, the learned counsel appearing
for the appellant contended that the Division Bench of the
High Court committed serious error in holding that Section
25 is procedural in nature and thereby applying the amended
provisions of Section 25 of the Act. According to him, the
provisions of Section 25 mandates the parameters within
which the Court is required to determine the amount of
compensation and the act of awarding of compensation or
curtailing, restricting or adding to such right can never be
held to be procedural in nature. According to the learned
counsel the language itself reveals that it is substantive in
nature and it has been so held by this Court in the case of
Krishi Utpadan Mandi Samiti vs. Kanhaiya Lal and
Others., Vol. 2000 (7) SCC 756. That being the position,
the substantive right of the party would be governed by the
un-amended provisions of Section 25 of the Act.
Consequently, it is urged that the claimants having claimed
only Rs. 30,000/- per acre, the Court will not be entitled to
grant compensation beyond the amount claimed. According
to Mr. Prabhakar, the Division Bench of the Andhra Pradesh
High Court committed serious error of law, which has
vitiated the ultimate conclusion.
Mr. P.P. Rao, the learned senior counsel appearing for
the claimants-respondents on the other hand contended that
the lawyer for the claimants without any authority from the
claimants, made the application, even before the notice had
been served on the claimants and in such an application,
mentioned the claim at the rate of Rs.30,000/- per acre and
such a claim cannot be held to be a claim made by the
claimants, within the ambit of the un-amended provisions of
Section 25(1) of the Act. Mr. Rao further contended that the
very fact, the Parliament amended Section 25 of the Act and
took away the earlier embargo with regard to the quantum of
compensation, limiting the same to the amount claimed by
the claimants is indicative of the legislative intent. That
being the position and the Court having determined the
market value of the acquired land at Rs. one lakh per acre,
there is no justification to deny that amount to the claimants,
since under Article 31 of the Constitution, no person can be
deprived of his property, save by the authority of law. Mr.
Rao further submitted that the unamended provisions of
Section 25 is ultra vires and such a prayer has been made in
the writ petition filed by the claimants under Article 32 of the
Constitution. Mr. Rao lastly submitted that in the peculiar
facts of this case, even if this Court may declare the law and
point out the error in the Division Bench Judgment of the
Andhra Pradesh High Court, yet ends of justice would not
require interference with the judgment of the Division Bench
of the High Court in exercise of power under Article 136 of
the Constitution. In support of this contention, reliance was
placed on the decision of this Court in Taherakhatoon vs.
Salambin Mohammad, 1999(2) S.C.C. 635.
Before embarking upon an inquiry as to the correctness
of the contentions raised, it would be appropriate to notice
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the provisions of Section 25 of the Land Acquisition Act, as
it stood prior to its amendment and the provisions of the Land
Acquisition Act, as it stand subsequent to the amendment.
"Section 25, prior to its amendment by Act 68
of 1984:
’25. Rules as to amount of Compensation- (1)
When the applicant has made a claim to
compensation, pursuant to any notice given under
Section 9, the amount awarded to him by the
Court shall not exceed the amount so claimed or
be less than the amount awarded by the Collector
under Section 11.
(4)When the applicant has refused to make such
claim or has omitted without sufficient reason (to
be allowed by the Judge) to make such claim, the
amount awarded by the Court shall in no case
exceed the amount awarded by the Collector.
(5)When the applicant has omitted for a sufficient
reason (to be allowed by the Judge) to make such
claim, the amount awarded to him by the Court
shall not be less than, and may exceed the amount
awarded by the Collector."
Section 25 after the amendment:-
"Section 25. Amount of compensation by Court
not be lower than the amount awarded by the
Collector:- The amount of compensation awarded
by the Court shall not be less than the amount
awarded by the Collector under Section 11."
At this stage it would be proper to notice the scheme of the
Act itself. After publication of preliminary notification under
Section 4 of the Act and causing pubic notice of the substance
of such notification by the Collector, objections are
entertained and heard, as provided under Section 5A of the
Act. The Appropriate Government then becomes satisfied
that the land is needed for public purpose and a declaration to
that effect is made under Section 6 of the Act. Such
declaration is the conclusive evidence that the land is needed
for a public purpose. The Appropriate Government or the
officer authorised by the Appropriate Government directs the
Collector to take order for the acquisition of the land, as
provided under Section 7 and the Collector then cause the
land to be marked and measured and also he is supposed to
make a plan of the same. The Collector thereafter cause
public notice to be given at convenient places on or near the
land, stating that the Government intends to take possession
of the land and that claims to compensation for all interests in
such land may be made to him, as provided under Section 9.
The notice under Section 9(1) must state the necessary
particulars, as provided under sub-section (2) of said Section
and the Collector then serves notice on the occupier of the
land as well as on all such persons known or believed to be
interested therein or would be entitled to act for persons so
interested, or agents authorised to receive service on their
behalf within the revenue district in which the land is situate.
In case the person interested resides elsewhere and has no
such agent, the notice is required to be sent to him by post in a
letter addressed to him at his last known address, under sub-
section (4) of Section 9. Section 11 confers power on the
Collector to hold an inquiry with regard to the measurements
made as well as inquiry to the valuation of the land on the
date of Notification under Section 4(1) and thereafter it shall
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make an Award under his hand. Such Award of the Collector
is required to be filed in the Collector’s Office and under law
is held to be final and conclusive evidence, as between the
Collector and the persons interested on the question of true
area and value of the land and apportionment of the
compensation among the persons interested. We are not
concerned with other provisions except Section 18 and
Section 25. Section 18 entitles the person interested who has
not accepted the award to make a written application to the
Collector, requiring that the matter of determination of
compensation be referred to a competent Court. Section 25
however, as it stood prior to its amendment by Act 68 of
1984, puts an embargo to the effect that if an applicant has
made a claim to compensation, pursuant to any notice given
under Section 9, then the amount awarded to him by the Court
shall not exceed the amount so claimed and shall not be less
than the amount awarded by the Collector under Section 11.
The aforesaid provision contained in sub-section (1) of
Section 25, thus limits the power of the reference Court on a
reference being made under Section 18 to the quantum of
compensation which could be awarded.
When these appeals had been listed before a Bench of
two learned Judges of this Court, the decision of this Court in
Krishi Utpadan Mandi Samiti, 2000 (7) SCC 756, had been
placed before the Bench and it was contended that since the
award in the case in hand is between 30th of September, 1982
and 24th of September, 1984, the compensation could be
awarded under the amended provisions of Section 25. Since
that decision prima facie supported the contention of the
claimants-respondents and the Bench was of the view that the
said decision requires re-consideration, the matter had been
referred to a Bench of three learned Judges and that is how the
matter has been placed before us. On the rival submissions
made by the counsel for the parties, the following questions
arise for our consideration:
(1) Can the provision of Section 25 of the Land
Acquisition Act be construed to be procedural in nature
or is substantive?
(2) If it is held to be substantive in nature, then can the
amended provisions of Section 25 of the Act would
apply to a case where the award of the Land
Acquisition Collector had been made much prior to the
amendment in question?
(3) Whether the Judgment of this Court in Krishi Utpadan
Mandi Samiti’s case can be held to be correctly
decided?
(4) Whether at all it would be appropriate for this Court to
lay down the law and yet not to interfere with the
judgment of the Division Bench of Andhra Pradesh
High Court with regard to the quantum of compensation
awarded?
(5) Whether the petition under Article 32 can be
entertained for deciding the validity of un-amended
provisions of Section 25?
So far as the first question is concerned, on a plain reading of
the same, it is difficult for us to hold that it is procedural in
nature. On the other hand, it unequivocally limits the power
of the Court on a reference being made to award
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compensation, more than the amount claimed by the
claimants and less than the amount awarded by the Collector.
In other words, the substantive right of a claimant who has
made a claim to the compensation, pursuant to a notice under
Section 9, cannot be more than the amount claimed and under
any circumstances, would not be less than the amount which
the Land Acquisition Collector has awarded under Section
11, since that award of the Collector is the offer that is made
to the claimant. In course of the arguments, Mr. Rao, the
learned counsel for the claimants submitted before us that
sub-section (5) of Section 25, as it stood prior to its
amendment gives sufficient power to the reference Court to
entertain a claim if the claimant had omitted to make such
claim pursuant to notice issued under Section 9 and
determine the compensation on that. Consequently, Mr. Rao
contends that there should not be any embargo on the power
of the Court even if the claimant makes a claim pursuant to
the notice issued under Section 9. We are unable to accept
this submission inasmuch as sub-section (5) of Section 25
contemplates a situation where the claimant for sufficient
reason had omitted to make a claim and the reference Court
on being satisfied about the same may permit the claimant to
make a claim. But the unambiguous and clear language of
sub-section (1) of Section 25, as it stood prior to the
amendment, makes it explicitly clear that if the claimant has
made a claim pursuant to a notice under Section 9, then the
Court would be incompetent to award any amount exceeding
the said claim. In our considered opinion, sub-section (5) of
Section 25 will be of no assistance to the claimants-
respondents in the present case. Incidently, we may deal
with the submission of Mr. Rao that the amount claimed was
by the lawyer and not by the claimant himself and therefore,
cannot be held to be claim by the claimants, pursuant to
notice under Section 9 of the Act. On examining the records
of the case, we do not find any justification to entertain this
submission, inasmuch even in the application made for
reference under Section 18, the claimant had not taken such a
stand. It would, therefore, be futile for us to entertain this
contention and hold that the claim made by the claimants
through his lawyer cannot be held to be a claim by the
claimants. This Court in the very case of Krishi Utpadan
Mandi Samiti, 2000(7) SCC 756, on which the learned
counsel for the respondents had placed reliance, considered
the provisions of Section 25 and held that the said provision
can never be held to be procedural and it is substantive in
nature. We approve of the said conclusion and hold that the
provision of Section 25 of the Land Acquisition Act is
substantive in nature.
Coming to the second question, it is a well settled
principle of construction that a substantive provision cannot
be retrospective in nature unless the provision itself indicates
the same. The amended provision of Section 25 nowhere
indicates that the same would have any retrospective effect.
Consequently, therefore, it would apply to all acquisitions
made subsequent to 24.9.84, the date on which Act 68/1984
came into force. The Land Acquisition (Amendment) Bill of
1982 was introduced in Parliament on 30th of April, 1982 and
came into operation with effect from 24th of September,
1984. Under the amendment in question, the provisions of
Section 23(2) dealing with solatium was amended and
Section 30(2) of the amended Act provided that the
provisions of sub-section (2) of Section 23 of the Principal
Act as amended by clause (b) of Section 15 shall apply and
shall be deemed to have applied, also to and in relation to
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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 April, 1982 and before the commencement of
the Act. It is because of the aforesaid provision, the question
cropped up as to whether in respect of an award passed by
the Collector between the two dates, the amended provision
will have an application or not and that question has been
answered by this Court in the Constitution Bench decision in
Union of India and anr. Vs. Raghubir Singh, 1989(2)
S.C.C. 754. Sub-section (2) of Section 30 has at all no
reference to the provisions of Section 25 of the Act. In that
view of the matter, question of applicability of the amended
provisions of Section 25 of the Act to an award of the
Collector made earlier to the amendment and the matter was
pending in appeal, does not arise. In our considered opinion,
the amended provisions of Section 25 of the Act, not being
retrospective in nature, the case in hand would be governed
by the unamended provisions of Section 25 of the Act.
Coming to the third question, we find that on a review
application being filed, this court relying upon the case of
Union of India vs. Raghubir Singh, 1989(2) SCC 754, held
that the amended provisions would be applicable under
which there is no restriction that the award would only be
upto the amount claimed by the claimant. In Raghubir
Singh’s case, the Constitution Bench was dealing with sub-
section (2) of Section 30 which had got absolutely no
relevance or connection with the provisions of Section 25 of
the Land Acquisition Act. For the reasons already indicated,
we have no hesitation to come to the conclusion that the
enunciation of law made by this Court in Krishi Utpadan
Mandi Samiti’s case, in para (17) of the Judgment relying
upon the case of Union of India vs. Raghubir Singh, is not
correct and to that extent the aforesaid case must be held not
to have been correctly decided.
Coming to the next question as to whether this Court
would interfere with the impugned judgment of the Division
Bench of the Andhra Pradesh High Court or not, the answer
would depend on the provision of law which was under
consideration and whether there was any ambiguity in the
law which is being decided for the first time. It is no doubt
true that in Teherakhatoon vs. Salambin Mohammad,
1999(2) S.C.C. 635, this Court has held that even if the
special leave has been granted under Article 136, unless and
until, it is shown that a substantial and grave injustice will be
caused if no interference is made out, the Court may refuse to
interfere with the judgment under challenge. This principle
would mainly depend upon the facts of each case which
comes up for decision before the Court. To the case in hand,
it is difficult for us to apply the aforesaid principle. On the
date the land was notified for acquisition under Section 4(1)
of the Act, the un-amended provision of Section 25 was in
force and it was made known to all concerned that the
reference Court will have no power to award the amount in
excess of the amount claimed by the claimants. Not only the
language of the Statute was clear and unambiguous, but also
the question was not res- integra, in view of the decision of
this Court in Dadoo Yogendrenath Singh vs. The
Collector, AIR 1977 SC 1128. Until the statutory rigour
contained in sub-section (1) of Section 25 stood obliterated
by the amended provisions of Section 25 and until all
restraints and embargoes placed for the Court stood totally
liberated, the reference Court had no jurisdiction to award
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the amount in excess of the amount claimed by the claimant.
Such being the position of law, we are unable to persuade
ourselves to agree with the submission of Mr. Rao to hold
that it would not be in the interest of justice to interfere with
the judgment of the Division Bench of the Andhra Pradesh
High Court. In our considered opinion, the High Court had
no jurisdiction on the law as it stood, to award any amount in
excess of the amount claimed and in the case in hand in
excess of Rs.30,000/- per acre and, therefore, the principles
enunciated in the decision of this Court in Teherakhatoon
vs. Salambin Mohammad, 1999(2) S.C.C. 635, cannot be
applied to the case in hand.
So far as the last submission is concerned, we are afraid
that the validity of unamended provision of Section 25 of the
Land Acquisition Act which was there on the statute book
since inception can at all be examined at a point of time when
that provision no longer subsists since, 24.9.84, the date on
which Act 68/1984 came into force. We, therefore, decline
to entertain the petition under Article 32 at the behest of the
claimants. In the net result, therefore, these civil appeals are
allowed. The Judgment of the Division Bench of the Andhra
Pradesh High Court is set aside and it is held that the
claimants-respondents would be entitled to compensation for
the acquired land @ Rs.30,000/- per acre, which they claimed
pursuant to service of notice under Section 9. The writ
petition filed by the claimants stands dismissed.
..........................................J.
(G.B. PATTANAIK)
..........................................J.
(S.N. PHUKAN)
..J.
(S.N. VARIAVA)
February 14, 2002.
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