Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3874 OF 2006
M/s. Steel Authority of India Ltd. … Appellant
Versus
S.U.T.N.I Sangam & Ors. … Respondents
WITH
CIVIL APPEAL NOS.5763, 5764, 5765 5766 AND 5767 OF 2006
AND
CIVIL APPEAL NOS. 4793-4794 OF 2009
(Arising out of SLP (C) Nos.12682-12683 of 2007)
J U D G M E N T
S.B. Sinha, J.
Leave granted in both the SLPs.
These appeals involving common questions of law and fact were
taken up for hearing together and are being disposed of by this common
judgment.
2
On the requisition of M/s. Steel Authority of India Ltd. (hereinafter
called and referred to for the sake of brevity as the ‘SAIL’) for establishment
of a steel plant at Salem commonly known as Salem Steel Plant, 3651 acres
of land was acquired wherefor a notification under Section 4(1) of the Land
Acquisition Act, 1894 (hereinafter called and referred to for the sake of
brevity as ‘the Act’) was issued in the year 1964 and a declaration under
Section 6 was published in 1969.
Land acquisition proceedings for preparation of awards were initiated
in 1971 during the period 1971 to 1975. 305 awards were made. A large
number of landholders being satisfied with the quantum of compensation
awarded to them by the Land Acquisition Officer received the same without
protest.
Some of the land owners, however, at the time of passing of the award
being not satisfied with the amount of compensation awarded in their favour
not only received the amount under protest but also filed applications for
reference to the Land Acquisition Court in terms of Section 18 of the Act
pursuant whereto and in furtherance whereof references to the Civil Court
were made. Admittedly enhanced amount of compensation, as determined
by the Land Acquisition Judge, have also been paid.
3
Some of the land owners, however, filed applications for reference
although they had not accepted the amount of compensation with protest
which was rejected by the Land Acquisition Officer. Some of the awardees
filed their applications for making reference after the period prescribed
therefor. Those applications were also rejected.
It is stated that most of the claim petitions were determined upto 1979.
Some of the land owners, however, formed an association SUTNI Sangam
{(hereinafter called and referred to for the sake of brevity as ‘the
Association’) for protecting the legal rights of the agriculturists whose lands
were sought to be acquired.
A gist of the circular letter directing reference of cases for the purpose
of enhancement of compensation reads as under :
“POINT I
Awardees who received the compensation amount
with protest and submitted their applications
requesting a reference under Section 18 of the
Land Acquisition Act after the expiry of the
stipulated time.
POINT II
Awardees who received the compensation amount
without protest but submitted applications
requesting reference under Section 18 of the Land
Acquisition Act.
POINT III
4
Awardees who received the compensation amount
without protest but failed to submit applications
under Section 18 of the Land Acquisition Act.”
A clarificatory order, however, was issued by the said authority on or
about 5.1.1983 stating that the earlier instructions issued by the Government
were not intended to override the provisions of the said Act and they should
be meticulously followed and, thus, if a person had accepted the award
without protest, he would lose his right to claim any reference in terms of
Section 18 of the Act.
Respondent Association thereafter filed a writ petition before the High
Court of Judicature at Madras marked as Writ Petition No.55144 of 1983
praying, inter alia, for the following reliefs :
“… a WRIT OF MANDAMUS or any other
appropriate writ, order or direction, directing the
Respondents to give effect to the instructions of
nd
the 2 Respondent contained in letter No.
D.Dis.II/3748/80 dated 21.5.1981 and Section 18
of the Land Acquisition Act and consequently
direct Respondents 4 to 8 to refer the cases of the
persons included in Annexures I, II, III and IV
herein to a Civil Court for grant of enhanced
compensation in respect of the lands acquired from
them for the purpose of the Salem Steel
Project,…”
In the said writ proceedings, the State Government filed a counter
affidavit, inter alia, contending that in most of the cases the awardees and the
5
interested persons were served with notices under Section 12 (2) of the Act
who were present during the land acquisition proceedings. It is furthermore
averred that the awardees in any view of the matter had knowledge
thereabout and, thus, applications of those awardees who had accepted
amounts of compensation under protest and filed requisite applications for
reference, the matters at their instance had been referred to the Civil Court in
terms of Section 18(2) of the Act. Indisputably, the appellant herein was not
initially impleaded in the said writ petition. On or about 19.11.1984, it filed
an application for impleading itself in the said writ petition which was
allowed. By a judgment and order dated 6.3.1992, a learned Single Judge of
the said Court allowed the said writ application directing that a mere protest
or expression of dissatisfaction of the award without there being anything in
writing would be sufficient for the concerned authorities to refer the matters
to the Civil Court. On the said premise, the Collector was directed to
complete the process of reference within a period of one year therefrom.
Aggrieved by and dissatisfied with the said judgment and order dated
6.3.1992, intra court appeals were preferred both by the State Government as
also by the Appellant. By reason of the impugned judgment, the writ appeal
was dismissed, opining :
“15. In so far as the category of persons who did
not receive notices under Section 12(2) are
6
concerned, the learned Single Judge has rightly
directed the Government to issue notices under
Section 12(2) of the Act to those persons and it is
for the said persons to consider whether they are
seeking reference in accordance with Section 18(2)
of the Act or not.
21. Having regard to this settled legal position
laid down by the Apex Court as well as various
High Courts it is clear that mere protest or
expression of dissatisfaction to the award of
compensation without there being anything in
writing may be sufficient and that the authority
concerned is under an obligation to refer the matter
to the Court in accordance with Section 18(2) of
the Act. In view of this legal position various
categories as indicated hereinabove, expressing
their protest and filing their applications for
reference and some having not even received
notices under Section 12(2) of the Act, cannot be
denied the right to refer their cases to the Court
under Section 18(2) of the Act and, therefore, we
do not find any ground to interfere with the
judgment of the learned Single Judge. Writ appeal
is, therefore, dismissed with no order as to costs.”
The other batch of Civil Appeals being Civil Appeal Nos.5763, 5764,
5765, 5766 and 5767 of 2006 have been filed by the Tamil Nadu Housing
Board aggrieved by and dissatisfied with the judgment and order dated
14.7.2006 passed by a Division Bench of the High Court affirming the order
dated 30.6.2001 passed by a learned Single Judge of the Court allowing the
writ applications filed by the respondent herein relying on or on the basis of
the decision referred to in the case of Steel Authority of India Ltd. (supra).
7
We may, however, before adverting to the common questions raised
before us notice the broad facts from Civil Appeal No.5763 of 2006.
The State of Tamil Nadu on a requisition made by the appellant herein
for acquiring about 90 acres of land for the purpose of building houses
through it issued a notification under Section 4(1) of the Act on or about
26.6.1985 and a declaration under Section 6 thereof on 4.9.1985.
Awards were passed on 30.6.1988. The land owners, while the
awards were made fixing market value of the land at Rs.1,61,538/ per
hectare and on being communicated thereabout, made the following
statement before the Land Acquisition Collector :
“Award enquiry notice was served on the pattadar.
Pattadar appeared for award enquiry and gave
statement stating that the acquired lands belong to
him by inheritance. The quantum of compensation
at Rs.1,61,538/- per Hectare to be awarded is too
low and the lands are abutting Salem –
Dharmapuri National Highways and the adjoining
lands are being sold at Rs.25,00,000/- per acre and
hence compensation must be paid on that rate and
there is no proof.
He also stated that the compensation amount may
be paid to him and that he would receive the same
under protest. For getting higher compensation, he
requested to make reference to Sub-Court. In
addition to make payment of compensation to the
pattadar, a reference under Section 18 of the Land
Acquisition Act will be sent to Sub-Court.”
8
However, despite the same, no reference was made by the Collector
suo motu. Representations, therefore, were made for reference by the
Association on or about 10.6.1988. Reminder thereto was sent on
21.1.1991. As despite such representations and reminders thereto, no action
was taken by the Land Acquisition Collector to make references under
Section 18 of the Act, a writ petition was filed by the respondents herein
praying, inter alia, for the following reliefs :
“…this Hon’ble Court may be pleased to issue a
writ, order or direction or any other writ in the
nature of a Writ of Certiorarified Mandamus,
calling for the records in connection with the
nd
impugned order of the 2 respondent in Na. Ka
No.549/96 dated 18.10.2000 quash the same and
direct the second respondent to refer for higher
compensation to the competent Civil Court under
Section 18 of the Land Acquisition Act, 1894 in
respect of the lands belonged to the petitioners in
S.No.475/1B-0.09.5 hcs. S.No.475/1AB-0.04.5
hcs, S.No.475/1AF-0.05, S.No.475/1ai-0.07.0,
S.No.475/1k-0.03.5 part, S.No.475/1L-0.03.5 hcs.,
S.No.475/1A-0,08.5, S.No.475/1T-0.21.5,
S.No.475/1M-0.03.5, S.No.475/1N-0.16.0,
S.No.475/1W-0.04.5, S.No.475/1X-0.1.5,
S.No.475/1AA-0.01.0, S.No.475/1AE-0.5.5,
S.No.475/1Z-0.106.0, situated at A. Jetty Halli
Village, Dharamapuri Taluk and pass such further
or other orders as this Hon’ble Court may deem fit
and proper in the circumstances of the case and
thus render justice.
It is prayed that this Hon’ble Court may be
pleased to direct the second respondent to refer for
higher compensation to the competent Civil Court
9
under Section 18 of the Land Acquisition Act,
1894 in respect of the lands belonged to the
petitioners in S.No.475/1B-0.09.5 hcs.
S.No.475/1AB-0.04.5 hcs, S.No.475/1AF-0.05,
S.No.475/1ai-0.07.0, S.No.475/1k-0.03.5 part,
S.No.475/1L-0.03.5 hcs., S.No.475/1A-0,08.5,
S.No.475/1T-0.21.5, S.No.475/1M-0.03.5,
S.No.475/1N-0.16.0, S.No.475/1W-0.04.5,
S.No.475/1X-0.1.5, S.No.475/1AA-0.01.0,
S.No.475/1AE-0.5.5, S.No.475/1Z-0.106.0,
situated at A. Jetty Halli Village, Dharmapuri
Talum, pending disposal of the above writ petition
and pass such further or other orders as this
Hon’ble Court may deem fit and proper in the
circumstances of the case and render justice.”
It is stated that in the year 1996, the State Government made reference
in about 80 matters the validity and/or legality whereof was not questioned
by the appellant. Representations, therefore, were again made for making
reference in the rest of the cases which were rejected by an order dated
18.10.2000, stating that the representations had been made after a period of
12 years.
Questioning the validity of the said order dated 18.10.2000, a writ
petition was filed by the respondent in November 2000. A prayer was
furthermore made for insurance of a direction upon the Land Acquisition
Collector to refer those cases for grant of higher compensation before the
Civil Court in terms of Section 18 of the Act. By reason of a judgment and
order dated 30.1.2001, the said writ petition was allowed.
10
We may place on record that the State Government did not raise any
contention with regard to the maintainability of the orders of reference.
Pursuant to or in furtherance of the said direction issued by the learned
Single Judge, references were made by the Land Acquisition Collector.
Appellant-Housing Board participated therein without any demur
whatsoever. By reason of a judgment dated 19.4.2003, the Reference Court
enhanced the amount of compensation from Rs.1.50 per square foot to
Rs.6.00 per square foot. Appellant preferred appeals thereagainst before the
High Court. However, by an order dated 19.7.2004, on the appellant’s
failure to comply with the directions given by the Division Bench, the
appeals were dismissed. The said order of the learned Single Judge dated
30.1.2001, by reason of the impugned judgment, has been upheld by the
Division Bench of the High Court.
Mr. Ranjit Kumar, learned counsel appearing on behalf of the Steel
Authority of India Ltd., would raise the following contentions :
1. The provisions of Section 18(1) of the Act being imperative in
character; it was obligatory on the part of the land owners to file
appropriate applications strictly in terms thereof and no such
application having been filed by them within a period of six weeks
from the date of passing of the award in the cases where awardees
11
were present and within a period of six months from the date of
communication thereof in the cases where they were not present, the
awards attained finality.
2. Both the learned Single Judge as also the Division Bench committed a
manifest error of law insofar as they failed to take into consideration
that even assuming that the land owners had constructive notice of the
award in the year 1981, appropriate applications for references should
have been filed within a period of six months thereafter and not
beyond the same.
3. In view of the fact that most of the individual land owners had
received the amount of compensation without any protest were
estopped and precluded from filing a writ application through their
Association or otherwise in view of the second proviso appended to
Section 31 of the Act.
4. The High Court committed a serious error in entertaining the writ
petition at the instance of the respondent association which was
neither a ‘person interested’ within the meaning of Section 3(b) of the
Act nor being entitled to act within the meaning of Section 3(g)
thereof and that too after a long period of 20 to 25 years from the date
of making of the award.
12
5. Section 5 of the Limitation Act, 1963 being not applicable, the High
Court could not have issued any writ after expiry of the period of
limitation or as specified in sub-section (2) of Section 18 of the Act.
6. The reliefs prayed for in the writ petition by the association for
enmass reference under the Land Acquisition Act is wholly
impermissible in law inasmuch as even the Land Acquisition
Collector is required to go into the merit of each individual case
independently.
7. Unless the impugned judgment is set aside, the appellant, which is a
Public Sector Undertaking, shall incur huge financial liabilities
without any legal justification whatsoever.
Mr. V. Krishnamurthy, learned counsel appearing on behalf of the
Tamil Nadu Housing Board, adopted the said arguments of Mr. Ranjit
Kumar. He furthermore contended that Tamil Nadu Housing Board being a
person interested in the matter of enhancement of compensation should have
been given due notice by the Reference Judge. Had such notice been
granted in the writ petition, it could have been pointed out that the writ
petition was not maintainable.
13
Mr. Jayant Mukhraj, learned counsel appearing on behalf of the
respondent, on the other hand, urged :
1. The provisions contained insub-section (1) of Section 18 being
procedural in nature, filing of an application for reference in writing is
not imperative.
2. By reason of the representations made by the land owners that they
were not satisfied with the amount of compensation awarded in their
favour, they called upon him to make a reference which has been
agreed upon by the Land Acquisition Collector and consequently the
State Government and the appellant herein are estopped and precluded
from contending that sub-section (1) of Section 18 is mandatory in
nature.
3. The land owners of the area being poor agriculturists and having not
been informed about their legal rights, no illegality has been
committed by the High Court in entertaining the writ petition of the
respondent-Association.
4. The right of a land owner to obtain a fair market value of the land,
being a valuable right, the same would prevail over the procedure
contained in Section 18 of the Act.
14
5. The High Court, in exercise of its power of judicial review is entitled
to issue such directions which are necessary for doing complete
justice to the parties, keeping in view the ignorance of the small
farmers who are residents of remote villages.
The State exercises its power of eminent domain for the purpose of
acquisition of private land as also its own land. Such acquisition is
permissible not only for a public purpose but also for a company. The
Parliament as also the State Legislatures enacted a large number of statutes
with a view to give effect to its power of eminent domain vis-à-vis the
constitutional safeguard provided to the owners of the land, as envisaged
under Article 300A of the Constitution of India.
While a land is acquired in terms of the provisions of the Act not only
a public purpose therefor must exist, acquisition must also take place within
a required time-frame. Provisions have been made for grant of
compensation, procedures wherefor have been laid down in the statute itself.
Unlike some other statutes, the Act makes elaborate provisions for payment
of compensation. The constitution of forums had several hierarchical levels
including appellate forums. A land acquisition collector is a statutory
authority. He may or may not be a collector within the meaning of the
provisions of Section 2(c) of the Act.
15
If he is not a collector within the meaning of the provisions of the Act,
he, subject to the just exceptions to which we would refer to a little later,
would not be entitled to act as a collector for the purpose of Part III of the
Constitution of India.
Section 4(1) of the Act provides for the publication of the preliminary
notification for acquiring any land in three modes viz. in the Official
Gazette, in two daily newspapers circulating in that locality — of which one
shall be in the regional language, and at convenient places in the locality
where the Collector is enjoined to publish a substance of the notification.
Section 12(1) of the Act reads as follows:
"12. Award of Collector when to be final.—(1)
Such award shall be filed in the Collector's office
and shall, except as hereinafter provided, be final
and conclusive evidence, as between the Collector
and the persons interested, whether they have
respectively appeared before the Collector or not,
of the true area and value of the land, and the
apportionment of the compensation among the
persons interested."
The finality of the awards is, however, subject to review by the
Reference Court under Section 18 read with Section 31(2) or Section 30 of
the Act. Except for the finality of these three factual matters, there is nothing
in the Act making the award final as regards its legality. Moreover, the use
16
of the word "final" in the statute only means that there would be no appeal.
The use of the expression "final" or "conclusive" in a statutory provision has
been interpreted by Lord Denning, M.R. in R. v. Medical Appeal Tribunal
(1957) 1 QB 574, 583 in the following words:
"The word 'final' is not enough. That only means
'without appeal'. It does not mean 'without recourse
to certiorari'. It makes the decision final on the
facts, but not on the law. Notwithstanding that the
decision is by a statute made 'final', certiorari can
still issue for excess of jurisdiction or for error of
law on the face of the record."
For the purposes of Land Acquisition Act, proceedings are carried on
by an officer appointed by the Government known as Land Acquisition
Collector. The proceeding under the Land Acquisition Collector is of an
administrative nature and not of a judicial or quasi judicial character. When
a Government intends to occupy a land in any locality it has to issue a
notification under Section 4 in the official gazette as also newspaper and
give a public notice which entitles anyone on behalf of the Government to
enter into the land for the purposes of digging, taking level, set out
boundaries etc. The notification puts forward the intention of the
Government to acquire the land, in terms whereof the government officials
became entitled to investigate and ascertain whether the land is suitable for
the purpose for which the land is sought to be acquired. The section also
17
makes it mandatory for the officer or person authorised by the Government
to give a notice of seven days signifying his intention to enter into any
building or enclosed court or garden in any locality. This is a mandatory
provision of the process of land acquisition
An officer or authorised person of the Government has to tender
payment for all necessary damage, and all disputes as to insufficiency of
amount lie before the Collector. Under Section 5(a) any person interested in
land which is notified under Section 4 (who is entitled to claim an interest in
compensation) can raise an objection, in writing and in person. The collector
after making inquiry to such objections has to forward the report to the
Government whose decision in this respect would be final. After considering
such report made by the collector under Section 5A the Government may
issue a declaration within one year of the notification under Section 4 to
acquire land for public purposes or company and this declaration is a
mandatory requirement of the acquisition.
After the declaration under Section 6, collector has to take order from
the appropriate Government whether State or Central for the acquisition of
land in terms of Section 7. The next step in the process of acquisition is that
Collector has to cause land to be marked out, measured and appropriate plan
to be made accurately , unless it is already done. Requirement of this section
18
deals only with approximation and does not require exact measurement. An
important process that takes place under this section is demarcation which
consists of marking out boundaries of land to be acquired, either by cutting
trenches or fixing marks as posts. Object is to facilitate measurement and
preparation of acquisition plan and also let the private persons know what
land is being taken. It is to be done by requiring a body that is the
Government department or company whichever be the case. Obstruction
under Section 8 and Section 4 are offences punishable with an imprisonment
not exceeding one year and with fine not exceeding fifty rupees.
Section 9 requires the collector to cause a public notice displayed at
convenient places expressing the Government’s intention to take possession
of the land and requiring all persons interested in the land to appear before
him personally and make claims for compensation before him. In effect this
section requires the Collector to issue two notices; one in the locality of
acquisition and other to occupants or people interested in the lands to be
acquired. It is a mandatory provision.
Next step in the process of acquisition requires a person to deliver
names or information regarding any other person possessing interest in the
land to be acquired and the profits out of the land for the last 3 years. It also
binds the person by requiring him to deliver such information to the
19
collector by making him liable under Sections 175 and 176 of the Indian
Penal Code.
The Final stage of the proceedings before the Collector involves an
enquiry by him into the objections made by the interested persons regarding
the proceedings under Sections 8 and 9 and making an award to persons
claiming compensation as to the value of land as on the date of notification
under Section 4. The enquiry involves hearing of parties who appear in
response to the notices, investigate their claims, consider the objections and
take all the information necessary for ascertaining the value of the land.
Such an enquiry can be adjourned from time to time as the collector thinks
fit. An award is to be made at the end of the enquiry. The award made must
be under the following three heads:
• Correct area of land
• Amount of compensation he thinks should be given
• Apportionment of compensation, if any.
Section 11 makes it obligatory on the part of the collector to safeguard
the interests of all persons interested, even though they might not have
appeared before him. In awarding compensation the Land Acquisition
Collector should look into the estimate value of land and give due
20
consideration to the other factors specified therein. Value of the property in
the neighbourhood can be used as a criterion. The award should be made
within a period two years.
A perusal of the provisions of Sections 12, 18, 30, 31 and the
procedure for reference as contained in Part III of the Act, reveals that
except for the right of reference on the said three factual matters, the Act
does not provide for appeal from the award of the Collector. Of course, an
appeal lies under Section 54 to the High Court from an award of the
Reference Judge made under Section 26 of the Act, and a second appeal lies
to the Supreme Court from the decision of the High Court. But the remedy
of appeal is restricted only to the questions relating to the aforesaid three
factual matters. At most, therefore, the Act can be said to be a complete
code, only for the special purpose of adjudicating any dispute with respect to
the three factual matters of the area, value of the land and the apportionment
of the compensation among the interested persons.
Besides the same, there exists neither any express provision that no
order or proceeding taken under the Act shall be called in question in any
court, nor any implied intendment barring the jurisdiction of the civil court.
There is no finality attached to any of the proceedings taken under the Act or
as to the validity of the award, which cannot be called in question in a court
21
of law on any judicially recognized grounds. A perusal of the scheme also
reveals that there is no machinery for determining all questions of law,
which may conceivably arise under the Act. The Act also does not contain a
machinery for restoration of any land, which may be unauthorizedly taken
away.
Even those who had not made any application for reference in terms
of Section 18 of the Act have, however, a right to obtain a similar amount of
compensation in terms of Section 28A thereof. Thus, only because at one
stage, a holder of a land does not file any application for reference, the same
would not mean that they do not have any further remedy at all. Section
28A of the Act seeks to deal with a situation where a person because of
ignorance of his right was not in a position to file any application for
enhancement of compensation. It provides that even in such a case, he
should receive a just amount of compensation.
The provisions of the Act must be read in their entirety. A holistic
approach is required to be made for the purpose of interpretation of
application of the provisions of the Act and so given, we are of the opinion
that the provisions thereof meet the tests of Article 300A of the Constitution
of India. The Act provides for a fair procedure. The Parliament in its
wisdom is entitled to lay down conditions for application of other or further
22
relief. While it does so, it is entitled to lay down a procedure therefor in
respect thereof. Such a procedure although meets the tests of fairness and
reasonableness for the purpose of determining the constitutionality thereof,
ordinarily, the mode and manner in which the provisions are required to be
applied should be adhered to. The same shall, however, be subject to the
interpretation of the statute as to whether the procedures laid down therein
would be treated to be mandatory or directory. From the scheme of the Act,
as noticed hereinbefore, the mode and manner in which the amount of
compensation is required to be determined is in several phases, i.e., notice to
the persons interested, making of an award, the period for doing so and
publication of the award itself.
Section 12 of the Act provides that the award of Collector is to be
final. It also provides for a duty upon the Collector to issue notice of his
award to such of the persons interested as are not present personally or by
their representatives when the award is made. Knowledge of making and/or
publication of the award, therefore, plays an important role.
For the purpose of invoking Section 18 of the Act, the person
interested is required:
(i) not to accept the award;
23
(ii) that the matter may be referred to the Collector for determination
by the court by way of a written application inter alia pointing out
his objection with regard to: (a) amount of compensation, (b)
person to whom it is payable or (c) apportionment thereof amongst
the persons interested.
Reference, thus, may be made by the Collector on receipt of the
application in writing keeping in view the objections of the land owners or
land holders in regard to one or all the matters as enumerated hereinbefore.
The law does not contemplate that even before an award is made, a
general or vague objection can be entertained by the Collector. Objection to
the award, therefore, must be specific. When a reference is made, the court
shall ordinarily be bound by the terms of the reference. The Reference
Court does not have a plenary jurisdiction. It does not have any original
jurisdiction to entertain an application directly from the Collector or from
the land holders.
Once an award is made, having regard to the conclusiveness and
finality attached thereto, the Collector has also a statutory duty to offer
payment of the awarded amount subject, of course, to the provisions for
reference. For the aforementioned purpose, Section 18 of the Act is required
to be read with the provisos appended to Section 31 of the Act. The person
24
interested may question the correctness or legality of the award on one or the
other grounds specified in Section 18 of the Act. He, even, for the purpose
of payment of the amount of compensation and/ or acceptance thereto,
would be governed by the provisos appended to Section 31 of the Act.
When payment of awarded amount is tendered, under the common parlance,
a person may not accept the same, if he objects thereto. Section 31 of the
Act, however, enables the person interested to accept the award under
protest. Acceptance of such an award under protest, however, is
circumscribed by the conditions laid down in the provisos appended both to
Sub-section (2) of Section 18 of the Act as also Sub-section (2) of Section
31 thereof.
The said provisos, therefore, circumscribe the rights of the persons
interested. The right to receive compensation, thus, having been
circumscribed by the conditions attached, ordinarily, they should be held to
be imperative in character.
When the statute provides for a law of limitation, compliance thereof
is mandatory. For the purpose of applying the statute of limitation, the
courts should, however, be liberal in their approach.
25
Section 18 (2) (b) of the Act provides for the maximum period of six
months from the date of the Collector’s award. It was, therefore,
impermissible to direct references to be made after a long period particularly
when the provisions of Section 5 of the Limitation Act, 1963 cannot be said
to have any application.
In Officer on Special Duty (Land Acquisition) & Anr. v. Shah Manilal
Chandulal & ors. [1996 (9) SCC 414], this Court held:
“8. The right to make application in writing is
provided under Section 18(1). The proviso to sub-
section (2) prescribes the limitation within which
the said right would be exercised by the claimant
or dissatisfied owner. In Mohd. Hasnuddin v. State
of Maharashtra, this Court was called upon to
decide in a reference under Section 18 made by the
Collector to the court beyond the period of
limitation, whether the court can go behind the
reference and determine the compensation, though
the application for reference under Section 18 was
barred by limitation? This Court had held that the
Collector is required under Section 18 to make a
reference on the fulfilment of certain conditions,
namely, ( i ) written application by interested person
who has not accepted the award; ( ii ) nature of the
objections taken for not accepting the award; and
( iii ) time within which the application shall be
made. In paragraph 22 after elaborating those
conditions as conditions precedent to be fulfilled, it
held that the power to make a reference under
Section 18 is circumscribed by the conditions laid
down therein and one such condition is a condition
regarding limitation to be found in the proviso.
The Collector acts as a statutory authority. If the
application is not made within time, the Collector
26
will not have the power to make reference. In order
to determine the limitation on his own power, the
Collector will have to decide whether the
application presented by the claimant is or is not
within time and specify the conditions laid down
under Section 18. Even if the reference is wrongly
made by the Collector, the court will have to
determine the validity of the reference because the
very jurisdiction of the court to hear a reference
depends upon a proper reference being made under
Section 18. If the reference is not proper there is
no jurisdiction in the court to hear the reference. It
was, therefore, held that it is the duty of the court
to see that the statutory conditions laid down in
Section 18 including the one relating to limitation,
have been complied with and the application is not
time-barred. It is not debarred from satisfying itself
that the reference which it is called upon to hear is
a valid reference. It has to proceed to determine
compensation and if it is time-barred, it is not
called upon to hear the same. It is only a valid
reference which gives jurisdiction to the court.
Therefore, the court has to ask itself the question
whether it has jurisdiction to entertain the
reference. If the reference is beyond the prescribed
period by the proviso to sub-section (2) of Section
18 of the Act and if it finds that it was not so made,
the court would decline to answer the reference.
Accordingly, it was held that since the reference
was made beyond the limitation, the court was
justified in refusing to answer the reference.
9. It would thus be clear that one of the
conditions precedent to make a valid reference to
the court is that the application under Section 18(1)
shall be in writing and made within six weeks from
the date of the award when the applicant was
present either in person or through counsel, at the
time of making of the award by the Collector
under clause ( a ) of proviso to sub-section (2). The
Collector, when he makes the reference, acts as a
statutory authority.”
27
It was furthermore held:
“ 17. It is to be remembered that the Land
Acquisition (Amendment) Act (68 of 1984) was
enacted prescribing the limitation to exercise the
power under Sections 4, 6 and 11 and also
excluded the time occupied due to stay granted by
the courts. Taking cognizance of the limitation
prescribed in proviso to sub-section (2) of Section
18, the provisions of the Limitation Act were not
expressly extended. Though Section 29(2) of the
Limitation Act is available, and the limitation in
proviso to sub-section (2) of Section 18 may be
treated to be special law, in the absence of such an
application by Land Acquisition (Amendment) Act
(68 of 1984), the Act specifically maintains
distinction between the Collector and the court and
the Collector/LAO performs only statutory duties
under the Act, including one while making
reference under Section 18. It is difficult to
construe that the Collector/LAO while making
reference under Section 18, as statutory authority
still acts as a court for the purpose of Section 5 of
the Limitation Act.
18. Though hard it may be, in view of the
specific limitation provided under proviso to
Section 18(2) of the Act, we are of the considered
view that sub-section (2) of Section 29 cannot be
applied to the proviso to sub-section (2) of Section
18. The Collector/LAO, therefore, is not a court
when he acts as a statutory authority under Section
18(1). Therefore, Section 5 of the Limitation Act
cannot be applied for extension of the period of
limitation prescribed under proviso to sub-section
(2) of Section 18. The High Court, therefore, was
not right in its finding that the Collector is a court
under Section 5 of the Limitation Act.”
28
In State of Karnataka v. Laxuman [2005 (8) SCC 709], it was opined :
“ 9. As can be seen, no time for applying to the
court in terms of sub-section (3) is fixed by the
statute. But since the application is to the court,
though under a special enactment, Article 137, the
residuary article of the Limitation Act, 1963,
would be attracted and the application has to be
made within three years of the application for
making a reference or the expiry of 90 days after
the application...”
The cause of the owners of the land is purported to have been
espoused by the respondent – Association. Association is stated to have
been registered under the Societies Registration Act in the year 1970. There
is, however, nothing on record to show as to whether it had filed any
application for reference before the Collector.
It is, however, a matter of some significance that mostly awards were
passed during the period 1972 and 1974. Only some awards were passed in
the years 1970, 1975, 1976, 1977 and 1978. The State expressed its
helplessness to specify exactly the number of the persons who had received
the amount of award under protest or who had filed applications for
reference.
We will, however, proceed on the assumption that most of the
awardees were poor and illiterate and they were not aware of their rights. It
29
is one thing to say that an Association, like the first respondent, takes up its
cause but it would be another thing to say that only due to the said reason the
mandatory provisions of the statutes would not be necessary to be complied
with.
The Act uses the expression “person interested”. The definition of the
expression “person interested” as contained in Section 3(b) of the Act is an
inclusive definition although not an exhaustive one. Primarily it includes
“all persons claiming an interest in compensation to be made on account of
the acquisition of land under this Act; and a person shall be deemed to be
interested in land if he is interested in an easement affecting the land”.
The expression “person interested” for the purpose of Section 18 of
the Act may be given a restricted meaning. A State is not a person
interested. A company or a local authority for whose benefit the lands are
acquired, having regard to the provisions of Sub-section (2) of Section 50 of
the Act, is not entitled to file any application for reference.
The Collector is a statutory authority. He, therefore, ordinarily must
exercise its statutory jurisdiction within the four-corners of the statute,
although this would not mean that a superior court in exercise of its power of
judicial review would be denuded of its power to interfere with an order of
reference or issue a direction when the same has unjustly been withheld in
30
appropriate cases, but, such a power as is well known should be exercised
only in exceptional situations and subject to the condition that adequate
grounds exist therefor.
The Association, therefore, could file a writ application representing
its members but, stricto sensu, it could not have filed any application for
reference in terms of Section 18 of the Act. For the purpose of making such
an application, indisputably, the period of limitation provided for therein
must be resorted to. However, there cannot be any doubt whatsoever that a
statute of limitation should receive strict construction.
Reference has been made to Karnataka State Road Transport
Corporation v. KSRTC Staff & Workers’ Federation & Anr. [(1999) 2 SCC
687], wherein in regard to a matter relating to conditions of employment of
the workers of the Karnataka State Road Transport Corporation, the
Association was held to have a locus standi to challenge the Government
Order and consequent notification issued by the corporation, stating:
“9 . So far as the locus standi of the Union in the
present proceedings is concerned, it must be kept
in view that the Corporation itself by its order
dated 24-12-1987 granted recognition to the Union
as the sole bargaining agent for its members. It was
noted by the office memorandum of the
Corporation dated 24-12-1987 that the Federation
having secured 53.04% of the votes polled at the
Corporation level in the referendum held on 11-12-
31
1987, the Corporation was pleased to accord
recognition to the respondent-Federation as the
sole bargaining agent at the Corporation level.
However, this was subject to the conditions
stipulated under the notification dated 30-4-1987
which prescribed four years’ period from the date
of such conferment of the right of collective
bargaining with the employer by the Union
concerned. It is also not in dispute between the
parties that even in the subsequent referendum, the
respondent-Federation/Union secured 61.07% of
the votes polled at the Corporation level and the
Corporation, by its office memorandum dated 16-
7-1992, continued recognition to the Union as the
sole bargaining agent subject to the conditions
stipulated in the earlier notification dated 3-12-
1991. It is, therefore, not in dispute between the
parties that till 16-7-1996, the respondent-
Federation/Union remained a recognised Union.
We fail to appreciate how the said Union cannot
challenge the government order dated 10-9-1993
and the consequent notification issued by the
Corporation on 21-9-1993. On both these
occasions, the respondent-Union was admittedly a
recognised Union of the employees and had got the
benefit of the payroll check-off facility under the
settlement of 28-7-1988….”
In a land acquisition matter, the question of a body of the persons
being represented by Association does not arise. The statute provides for
filing of claim applications as also filing of objections by the land holders
and not by and/or on behalf of the Association and that too an independent
body corporate.
32
An owner of a land has a right to receive just compensation. He,
having regard to his human right of access to justice as has been declared by
the ICESCR on December 10, 2008 should be given an opportunity to make
a reference. A person may get an opportunity to get a reference only when
he is informed about the making of an award.
We may notice that before the High Court it was conceded that in the
cases where the award of the Collector was served on the claimant and yet
reference was not made within time, prayer for reference was not
maintainable.
The High Court in its judgment had divided the claimants in four
categories. So far as the first category of claimants is concerned, there
cannot be any doubt that their applications for reference would be
maintainable. So far as the second category of claimants is concerned, their
applications being barred by limitation, the same could not have been
entertained by the Collector, being beyond his jurisdiction. So far as the
third category of claimants is concerned, the time for making application
would indisputably run from the date of communication thereof. As far as
the land holders belonging to the fourth category of claimants are concerned,
the question being of some importance would be discussed a little later.
We may notice a few precedents operating in the field.
33
In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition
Officer and Another [(1962) 1 SCR 676], this Court referring to Section 12
of the Act held:
“It is significant that the section requires the
Collector to give notice of the award immediately
after making it. This provision lends support to the
view which we have taken about the construction
of the expression “from the date of the Collector’s
award” in the proviso to Section 18. It is because
communication of the order is regarded by the
legislature as necessary that Section 12(2) has
imposed an obligation on the Collector and if the
relevant clause in the proviso is read in the light of
this statutory requirement it tends to show that the
literal and mechanical construction of the said
clause would be wholly inappropriate. It would
indeed be a very curious result that the failure of
the Collector to discharge his obligation under
Section 12 (2) should directly tend to make
ineffective the right of the party to make an
application under Section 18, and this result could
not possibly have been intended by the
legislature.”
Similar observations have been made in State of Punjab v. Mst. Qaisar
Jehan Begum & Anr. [(1964) 1 SCR 971, thus:
“…Now knowledge of the award does not mean a
mere knowledge of the fact that an award has been
made. The knowledge must relate to the essential
contents of the award. These contents may be
known either actually or constructively. If the
award is communicated to a party under Section
34
12(2) of the Act, the party must be obviously fixed
with knowledge of the contents of the award
whether he reads it or not. Similarly when a party
is present in court either personally or through his
representative when the award is made by the
Collector, it must be presumed that he knows the
contents of the award. Having regard to the
scheme of the Act we think that knowledge of the
award must mean knowledge of the essential
contents of the award. Looked at from that point of
view, we do not think that it can be inferred from
the petition dated December 24, 1954 that the
respondents had knowledge of the award.”
The said decision, therefore, itself is an authority for the proposition
that constructive knowledge would also subserve the purpose of the Act.
Whether a person had the actual or constructive knowledge of the contents
of a document is essentially a question of fact. The onus would be on the
landholder to show that he did not have any knowledge of the contents of the
award.
We may furthermore notice that in a case where communication gives
rise to a cause of action, the same must be held to be mandatory in nature.
{See State of Punjab v. Amar Singh Harika [AIR 1966 SC 1313]}
But in State of Punjab v. Khemi Ram [(1969) 3 SCC 28 : AIR 1970
SC 214], it was stated :
35
“16. The last decision cited before us was that
of State of Punjab v. Amar Singh Harika where
one of the questions canvassed was whether an
order of dismissal can be said to be effective only
from the date when it is made known or
communicated to the concerned public servant.
The facts of the case show that though the order of
dismissal was passed on June 3, 1949, and a copy
thereof was sent to other 6 persons noted
thereunder, no copy was sent to the concerned
public servant who came to know of it only on
May 28, 1951, and that too only through another
officer. On these facts, the Court held, rejecting the
contention that the order became effective as soon
as it was issued, that the mere passing of the order
of dismissal would not make it effective unless it
was published and communicated to the concerned
officer.”
In Land Acquisition officer v. Shivabai and Others [(1997) 9 SCC
710], this Court held :
“…The limitation begins to run from the date of
the notice as per the proviso to Section 18(2). The
date of the award and the date of the receipt of the
compensation were incidentally the same. Under
these circumstances, it must be presumed that they
were present on the date when the award was made
and the compensation was received without any
protest. Under these circumstances, they are not
entitled to seek any reference.”
36
In Parsottambhai Maganbhai Patel and Others v. State of Gujarat
Through Dy. Collector Modasa and Another [(2005) 7 SCC 431], it was
observed :
“7. This Court, therefore, held that the
limitation under the latter part of Section 18(2)(b)
of the Act has to be computed having regard to the
date on which the claimants got knowledge of the
declaration of the award either actual or
constructive. This principle, however, will apply
only to cases where the applicant was not present
or represented when the award was made, or where
no notice under Section 12(2) was served upon
him. It will also apply to a case where the date for
the pronouncement of the award is communicated
to the parties and it is accordingly pronounced on
the date previously announced by the Court, even
if, the parties are not actually present on the date of
its pronouncement.”
The State issued a notification directing the Collector to exercise its
jurisdiction under Section 18 of the Act. Such a notification, therefore,
would amount to a constructive knowledge. It was obligatory on the part of
the land owners to file an appropriate application within the prescribed
period.
The State, however, clarified the said notification on or about
25.01.1983 stating that its earlier notification of the year 1981 would not
mean that the statutory period of limitation provided for under the Act
37
should be given a complete go-by. It is only on or about 2.12.1983 that the
writ petition was filed.
Indisputably, pursuant to or in furtherance of the notification of the
State of Tamil Nadu issued in the year 1981, no reference was made as the
awards were made principally during the period 1972 to 1974.
The writ petition, therefore, was also filed after inordinate delay.
In Mirza Majid Hussain v. State of M.P. and Another [(1995) 2 SCC
422], this Court held:
“4. Then we have to see whether the appellant
was justified in approaching the High Court after
an inordinate delay of more than 10 years from the
date of the order of the Collector or at any rate
from the date of the order passed by the District
Judge. The High Court exercised its jurisdiction
under Article 226 but not under Section 115 CPC.
Even if it is to be converted as a revision under
Section 115 CPC, the order of the High Court is
not vitiated by any error of jurisdiction or material
irregularity in the exercise of its jurisdiction. The
High Court has rightly refused to exercise its
discretionary jurisdiction after an inordinate delay
of more than 5 years from the date of the order of
District Judge and more than 10 years from the
date of the order of the Land Acquisition
Collector. Under these circumstances, we do not
think that it is a case warranting interference by
this Court under Article 136.”
38
Indisputably, those who received compensation without any protest
keeping in view the second proviso appended to Section 31 must be held to
have expressed no reservation in regard thereto whatsoever.
Objections, however, appeared to have been filed in printed forms
contending that all awards should be subject to objections and payments
would be received on protest. Raising of such an objection in response to a
notice under Section 9 of the Act, in our opinion, cannot have the same
effect as if an application has been filed for reference under Section 18 of
the Act.
We may, however, notice that in terms of the proviso (b) appended to
sub-Section (2) of Section 18, the maximum period fixed for filing of an
objection is six months from the date of the Collector’s award. The statute,
therefore, imposed a duty on the owner of land to keep track as to what has
happened to his objection.
The learned counsel, however, invited our attention to take recourse to
the purposive interpretation doctrine in preference to the literal
interpretation. It is a well settled principle of law that a statute must be read
as a whole and then chapter by chapter, section by section, and then word by
word. For the said purpose, the Scheme of the Act must be noticed. If the
principle of interpretation of statutes resorted to by the court leads to a fair
39
reading of the provision, the same would fulfil the conditions of applying the
principles of purposive construction.
In New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3
SCC 279], this Court held:
“ 49. Section 5 of the Act, on a plain reading,
would place the entire onus upon a noticee. It, in
no uncertain terms, states that once a notice under
Section 4 is issued by the Estate Officer on
formation of his opinion as envisaged therein it is
for the noticee not only to show cause in respect
thereof but also adduce evidence and make oral
submissions in support of his case. Literal meaning
in a situation of this nature would lead to a
conclusion that the landlord is not required to
adduce any evidence at all nor is it required even
to make any oral submissions. Such a literal
construction would lead to an anomalous situation
because the landlord may not be heard at all. It
may not even be permitted to adduce any evidence
in rebuttal to the one adduced by the noticee nor it
would be permitted to advance any argument. Is
this contemplated in law? The answer must be
rendered in the negative. When a landlord files an
application, it in a given situation must be able to
lead evidence either at the first instance or after the
evidence is led by the noticee to establish its case
and/or in rebuttal to the evidence led by the
noticee.”
In Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd. [(2007) 8 SCC 705], this Court held:
40
“57 . The Act being regulatory in nature as by
reason thereof the right of an owner of property to
use and develop stands restricted, requires strict
construction. An owner of land ordinarily would
be entitled to use or develop the same for any
purpose unless there exists certain regulation in a
statute or a statutory rules. Regulations contained
in such statute must be interpreted in such a
manner so as to least interfere with the right to
property of the owner of such land. Restrictions
are made in larger public interest. Such
restrictions, indisputably must be reasonable ones.
(See Balram Kumawat v. Union of India ; Krishi
Utpadan Mandi Samiti v. Pilibhit Pantnagar Beej
Ltd. and Union of India v. West Coast Paper Mills
Ltd. ) The statutory scheme contemplates that a
person and owner of land should not ordinarily be
deprived from the user thereof by way of
reservation or designation.
58 . Expropriatory legislation, as is well-known,
must be given a strict construction.
We may, however, hasten to add that we do not intend to lay down a
law that the protest in regard to making of an award must be done in a
manner specified expressly. When an application for reference is filed,
protest to the award is implicit as has been held by this Court in Ajit Singh
& ors. v. State of Punjab & ors. [(1994) 4 SCC 67]:
“5. Having regard to the contiguity of these
lands the High Court is correct in its valuation.
Besides, the date of notification, issued under
Section 4 of the Act, is October 4, 1978 while Exh.
R-6 is nearer to it, namely, August 16, 1978, in
comparison to Exh. A-6 dated January 14, 1977.
41
Inasmuch as the appellants have filed an
application for reference under Section 18 of the
Act that will manifest their intention. Therefore,
the protest against the award of the Collector is
implied notwithstanding the acceptance of
compensation. The District Judge and the High
Court, therefore, fell into patent error in denying
the enhanced compensation to the appellants.”
The learned counsel for the respondents would, however, make an
appeal that in a situation of this nature we should exercise our jurisdiction
under Article 142 of the Constitution of India. The learned counsel for the
said purpose refers to a large number of cases. We may notice some of
them.
In Supreme Court Bar Association v. Union of India & Anr. [(1998) 4
SCC 409], a Constitution Bench of this Court was dealing with a decision
rendered in Vinay Chandra Mishra, Re [(1995) 2 SCC 584], wherein the
statutory provisions dealing expressly with the subject were said to have
been ignored by this Court while exercising power under Article 142 of the
Constitution of India. In that case itself, it was held:
“47. The plenary powers of this court under
Article 142 of the Constitution are inherent in the
court and are complementary to those powers
which are specifically conferred on the court by
various statutes though are not limited by those
statutes. These powers also exist independent of
the statutes with a view to do complete justice
42
between the parties. These powers are of very wide
amplitude and are in the nature of supplementary
powers. This power, exists as a separate and
independent basis of jurisdiction, apart from the
statutes. It stands upon the foundation, and the
basis for its exercise may be put on a different and
perhaps even wider footing, to prevent injustice in
the process of litigation and to do complete justice
between the parties. This plenary jurisdiction is,
thus, the residual source of power which this Court
may draw upon as necessary whenever it is just
and equitable to do so and in particular to ensure
the observance of the due process of law, to do
complete justice between the parties, while
administering justice according to law. There is no
doubt that it is an indispensable adjunct to all other
powers and is free from the restraint of jurisdiction
and operates as a valuable weapon in the hands of
the court to prevent "clogging or obstruction of the
stream of justice"…..”
In H.M. Kelogirao & ors. v. Govt. of A.P. & ors. [(1997) 7 SCC 722],
this Court was dealing with a case where the appellants had not accepted the
award which was put in issue by them in the Writ Petition. It was in the
aforementioned extraordinary situation and particularly having regard to the
fact that they had filed writ petitions, this Court granted time to them to seek
reference under Section 18 of the Act in exercise of its equitable jurisdiction
as also in the interests of justice.
A foundational fact, therefore, in that case for reference has been
made out. Such is not the position here. As indicated hereinbefore, no
43
application for reference has been made in these cases either by the land
holders or by the Association for a long time. Therefore, in our opinion, no
case for exercising our extraordinary jurisdiction under Article 142 of the
Constitution of India has been made out.
Reliance has also been placed on Orissa Industrial Infrastructure
Development Corpn. v. Supai Munda & ors. [(2004) 12 SCC 306] wherein
this Court was dealing with a case where State Authorities awarded
compensation which was supported by convincing evidence. It was also
furthermore found that the claimant made oral protest as regards the
sufficiency of the amount of compensation which had been cowed down by
resorting to coercive methods. It is in the aforementioned situation, it was
held that the benefit of the proviso appended to sub-Section (2) of Section 31
of the Act was not available to the State as the claimants had received
compensation under duress. The direction to proceed with the reference by
this Court in the aforementioned situation was not made in exercise of its
extraordinary jurisdiction under Article 142 of the Constitution of India but
on the principle that a decision obtained under coercion is no decision in the
eye of law and was liable to be ignored.
44
Land Acquisition Collector is a statutory authority. The proceeding
before the Land Acquisition Collector is a quasi-judicial Proceeding. A
party before it may waive its right.
In Jaya Chandra Mohapatra v. Land Acquisition Officer, Rayagada
[(2005) 9 SCC 123], this Court held:
“8. In law, there is no bar in filing applications
for review successively if the same are otherwise
maintainable in law. The Civil Court herein
admittedly had not granted to the Appellant the
benefit of solatium at the rate of 30% of the
amount of enhanced compensation as also the
additional amount and interest as contemplated
under the Amending Act of 1984. To the said
benefits, the Appellant was entitled to in terms of
Section 23(1A), Section 23(2) as also Section 28
of the Act. It is one thing to say that the omission
to award additional amount under Section 23(1A),
enhanced interest under Section 28 and solatium
under Section 23(2) may not amount to clerical or
arithmetical mistake in relation whereto an
executing court will not be entitled to grant relief
but it is another thing to say that the grant thereof
would be impressible in law even if the Reference
Court on an appropriate application made in this
behalf and upon application of its mind holds that
the statutory benefits available to the claimant had
not been granted to him and pass an order in that
behalf by directing amendment of decree. In a case
of former nature, an executing court may not have
any jurisdiction to pass such an order on the
ground that it cannot go behind the decree, but in
law there does not exist any bar on a Reference
Court to review its earlier order if there exists an
error apparent on the face of the record in terms of
45
Order 47, Rule 1 of the Code of Civil Procedure.
Such a jurisdiction cannot be denied to the
Reference Court. The Act 68 of 1984 is a
beneficial statute and, thus, the benefits arising
thereunder cannot ordinarily be denied to a
claimant except on strong and cogent reasons.”
In Union of India v. Pramod Gupta (Dead) by LRs. & ors. [(2005) 12
SCC 1]:
“104. It may not, thus, be correct to contend that
the said provisions are so imperative in character
that waiver thereof is impermissible in law or
would be against public interest. Grant of interest
in terms of Section 28 of the Land Acquisition Act
is discretionary. Only rate of interest specified
therein is mandatory. Section 34 of the Act ex
facie, however, appears to be imperative in
character as the word 'shall' has been used. A
discretion vested in the court, it is trite, may not be
exercised where the right to claim interest has been
waived expressly by the parties and/or their
counsel. Even a mandatory provision of a statute
can be waived.
xxx xxx xxx
108. It is not in dispute that if a person alters its
position pursuant to the representation made by the
other side, the principles of estoppel would be
applicable and by reason thereof, the person
making the representation would not be allowed to
raise a plea contra thereto. In Krishna Bahadur v.
Purna Theatre and Ors. (2004) 8 SCC 229, this
Court held: (SCC p. 233, paras 9-10)
" 9. The principle of waiver although is
akin to the principle of estoppel; the
46
difference between the two, however, is that
whereas estoppel is not a cause of action; it
is a rule of evidence; waiver is contractual
and may constitute a cause of action; it is an
agreement between the parties and a party
fully knowing of its rights has agreed not to
assert a right for a consideration.
10. A right can be waived by the party for
whose benefit certain requirements or
conditions had been provided for by a
statute subject to the condition that no public
interest is involved therein. Whenever
waiver is pleaded it is for the party pleading
the same to show that an agreement waiving
the right in consideration of some
compromise came into being. Statutory
right, however, may also be waived by his
conduct."
[See also Vijay Cotton & Oil Mills Ltd. v. The
State of Gujarat (1969) 2 SCR 60, SCR at p. 63].
109. Yet again recently in State of Karnataka and
Anr. v. Sangappa Dyavappa Biradar and
Ors.(2005) 4 SCC 264, the principles of estoppel
was applied in relation to a consent award holding
that once a consent award had been passed, the
claimants were precluded from applying for a
reference under Section 18 of the Act.”
In Tamil Nadu Electricity Board v. Status Spinning Mills Ltd. [(2008)
7 SCC 353], this Court held:
“34. Validity of the notifications on the ground
that they are unreasonable has not been raised
47
before the High Court. We, therefore, cannot go
into the issue. If that be so, it is difficult to agree
with Mr Parasaran that we should undertake an
exercise to interpret the notifications in a manner
which would not lead to unreasonableness. For the
purpose of declaring a statute unconstitutional,
foundational facts have to be laid therefor. (See
Seema Silk & Sarees v. Directorate of
Enforcement11.) Grounds are required to be raised
therefor. In absence thereof it would not be
possible for us to enter into the debate of
constitutionality of the said provisions. The
Division Bench of the High Court had rightly or
wrongly opined that the doctrine of promissory
estoppel has no application. The fact that the said
doctrine may apply even in relation to a statute is
beyond any dispute as has been held by this Court
in Mahabir Vegetable Oils (P) Ltd. v. State of
Haryana12, A.P. Steel Re-Rolling Mill Ltd.9,
Pawan Alloys and Casting (P) Ltd. v. U.P. SEB13
and Southern Petrochemical Industries Co. Ltd. v.
Electricity Inspector & ETIO14.”
The appeals preferred by the Tamil Nadu Housing Board, however,
stand on a different footing. Therein, the writ petition was allowed by a
learned single judge of the High Court. Pursuant thereto or in furtherance
thereof, reference was made. A finding of fact had been arrived at. A
prayer was also made for reference to the Civil Court. The Land Acquisition
Officer assured them that a reference shall be made. The promise, however,
was not kept. In the aforementioned situation, the writ petition was filed.
48
The judgment of the Single Judge having been acted upon and Tamil
Nadu Housing Board, having participated in the proceedings without any
demur whatsoever, cannot be permitted to turn round and contend that the
proceeding was illegal. They not only participated in the proceedings but
also questioned the adduction of evidence in regard to the quantum of
compensation and preferred appeals against the judgment and award of the
Reference Judge. The said proceedings having attained finality, the writ
appeals preferred by them should not have been entertained.
In a case of this nature, in the absence of any material brought on
record by the State and/or the appellant, we may assume that the Land
Acquisition Officer is a Collector within the meaning of Section 3(c) of the
Act. He was, therefore, bound by his promise.
In the aforementioned situation, it would not be a case where a
statutory authority has been asked by a higher authority to perform his
jurisdiction in a particular manner. No form of protest, as indicated
hereinbefore, is prescribed under the Act. No form of application in writing
has also been prescribed. In a given case, keeping in view the object and
purport the statute seeks to achieve, a Collector being a statutory authority
and having the jurisdiction to make a reference can waive the same. We
may consider it from another angle. Had a reference been made pursuant to
49
the request made by the awardees, could it be held to be wholly illegal or
without jurisdiction only because the protest made in regard to the quantum
of compensation under the award is oral and not in writing? The answer to
the said question must be rendered in the negative. The form, mode and
manner of protest are procedural in nature. The statute does not provide for
a thing to be done in a particular manner.
Submission of Mr. Krishnamurthy that the doctrine that where a
statute prescribes a thing to be done in a manner as prescribed or not at all is
applicable where statutory authority is to perform his function in terms of
the provisions of the statute. It is not meant to be applied to a litigant. A
procedure, as is well known, is hand maid of justice. A substantive provision
providing for substantive right or a statutory provision providing for a
substantive right shall prevail over the procedural aspect of the matter. In a
situation of this nature, therefore, the Land Acquisition Collector could have
been, having regard to the principles of promissory estoppel, held bound to
fulfil his promise.
In Nagar Palika Nigam v. Krishi Upaj Mandi Samiti & Ors. [2008
AIR SCW 7114], this Court held:
50
“8. The normal function of a proviso is to except
something out of the enactment or to qualify
something enacted therein which but for the
proviso would be within the purview of the
enactment. As was stated in Mullins v. Treasurer
of Survey 1880 (5) QBD 170, (referred to in Shah
Bhojraj Kuverji Oil Mills and Ginning Factory v.
Subhash Chandra Yograj Sinha (AIR 1961 SC
1596) and Calcutta Tramways Co. Ltd. v.
Corporation of Calcutta (AIR 1965 SC 1728);
when one finds a proviso to a section the natural
presumption is that, but for the proviso, the
enacting part of the section would have included
the subject matter of the proviso. The proper
function of a proviso is to except and to deal with a
case which would otherwise fall within the general
language of the main enactment and its effect is
confined to that case. It is a qualification of the
Page 4544 preceding enactment which is expressed
in terms too general to be quite accurate. As a
general rule, a proviso is added to an enactment to
qualify or create an exception to what is in the
enactment and ordinarily, a proviso is not
interpreted as stating a general rule. "If the
language of the enacting part of the statute does
not contain the provisions which are said to occur
in it you cannot derive these provisions by
implication from a proviso." Said Lord Watson in
West Derby Union v. Metropolitan Life Assurance
Co. 1897 AC 647 (HL). Normally, a proviso does
not travel beyond the provision to which it is a
proviso. It carves out an exception to the main
provision to which it has been enacted as a proviso
and to no other. (See A.N. Sehgal and Ors. v. Raje
Ram Sheoram and Ors. (AIR 1991 SC 1406),
Tribhovandas Haribhai Tamboli v. Gujarat
Revenue Tribunal and Ors.(AIR 1991 SC 1538)
and Kerala State Housing Board and Ors. v.
Ramapriya Hotels (P) Ltd. and Ors. (1994 (5) SCC
672).”
51
For the reasons aforementioned, the appeal preferred by M/s Steel
Authority of India Ltd. is allowed with no order as to costs and the appeals
filed by the Managing Director, Tamil Nadu Housing Board are dismissed
with costs. Counsel’s fee assessed at Rs. 25,000/- each.
..……………………………..J.
( S.B. SINHA )
..……………………………..J.
(CYRIAC JOSEPH)
New Delhi
July 29, 2009