K.S. Paripoornan Vs. State of Kerala [1994] INSC 469 (12 September 1994)

Sahai, R.M. (J) Sahai, R.M. (J) Sawant, P.B. Venkatachalliah, M.N.(Cj) Sawant, P.B. Bharucha S.P. (J)

CITATION: 1995 AIR 1012 1994 SCC (5) 593 JT 1994 (6) 182 1994 SCALE (4)192

ACT:

HEAD NOTE:

The Judgments of the Court were delivered by P.B. SAWANT, J. (dissenting)- I have perused the draft of the judgment prepared by my Brother Justice Agrawal. Since, I respectfully beg to differ with the interpretation of the relevant provisions of the Act and the conclusions drawn therein, I am impelled to deliver this dissenting judgment.

2. The question of law involved in these matters though a short one, has been the subject of conflicting decisions of this Court and hence is referred to the Constitution Bench for resolving the conflict. The question is whether the benefit of sub-section (1-A) of Section 23 of the Land Acquisition Act, 1894 (the "principal Act") is to be granted only in the proceedings for the acquisition of land referred to in clauses (a) and (b) of Section 30(1) of the Land Acquisition (Amendment) Act, 1984 (the "amending Act"), or it is to be granted in all proceedings pending before the Courts on 24-9-1984.

3. To appreciate the controversy, it is necessary to refer to the relevant provisions of the principal Act. Section 3(d) defines 'Court' to mean a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed a special judicial officer within any specified local limits to perform the functions of the Court under the Act. In the context of the other provisions and the scheme of the Act, it means the Court to which the reference is made by the Collector under Section 18 of the principal Act.

4. Section 11 empowers the Collector, among other things, to enquire into the value of the land on the date of the publication of the notification for acquisition of the land under Section 4(1) and to make an award of the compensation which in his opinion, should be allowed for the land.

5. Section 15 requires the Collector while determining the amount of compensation, to be guided by the provisions of Sections 23 and 24 of the Act.

6. Section 16 empowers the Collector to take possession of the land when he has made the award under Section 11 of the Act. On taking such possession, the land vests absolutely in the Government, free from all encumbrances. In case of urgency, Section 17 empowers the appropriate Government to direct the Collector to take possession of the land after 15 608 days from the publication of the notice under Section 9(1) although no award has been made under Section 11.

7. Section 18 provides for reference to the Court by an interested person, among other things, on the ground that the amount of compensation awarded by the Collector is inadequate. When a reference is made to the Court for determining the amount of compensation, Section 23 requires the Court to take into consideration six factors which are mentioned therein, for determining the market value of the land. Sub-sections (1-A) and (2) of the said section require the Court to award in every case, amounts referred to therein in addition to the market value of the land.

Sub-section (1-A) provides for an additional amount calculated at the rate of 12 per centum per annum on the market value of the land, for the period commencing on and from the date of the publication of notice under Section 4(1) to tile date of the award of the Collector or to the date of taking possession of tile land, whichever is earlier. Likewise, sub-section (2) requires the Court to award in every case a sum of 30 per centum on the market value determined under Section 23(1) in consideration of the compulsory nature of the acquisition. This amount is commonly known as solatium and is in addition to the additional amount under sub-section (1-A).

8. Section 24 enumerates eight matters which are to be ignored while determining the compensation of the land.

9. Section 25 lays down that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Section 28 enables the Court to direct the Collector to award interest on the excess amount at the rate of 9 per centum per annum from the date on which the possession of the land is taken to the date of payment of such excess into Court if, in the opinion of the Court, the sum which the Collector ought to have awarded as compensation, was in excess of the SLIM which the Collector did award. The proviso to the said section further enables the Court to award interest at the rate of 15 per centum per annum, if the excess amount or any part thereof that is payable is not paid into the Court within one year from the date on which possession is taken.

The interest is to be paid from the date of expiry of the said period of one year.

10.Section 28-A enables the persons interested in all the other lands covered by the same notification under Section 4(1) and aggrieved by the award made by the Collector, to make a written application to the Collector within three months from the date of the award of the Court requiring that the amount of compensation payable to them be redetermined on the basis of the amount of compensation awarded by the Court to the applicants who had sought a reference under Section 18 of the Act to the Court, if the amount of compensation awarded to such applicants by the Court is in excess of the amount awarded by the Collector, although the persons concerned may not have similarly applied for a reference under Section 18 to the Court. On such application being made, the Collector is required to hold inquiry to make an award redetermining the award of compensation payable to such applicants. Any person who does not accept the award of the Collector redetermining 609 the amount of compensation, is given a right to require the Collector to refer the matter for the determination of the Court, and such application is to be deemed to be an application for reference under Section 18 of the Act.

11.Before we proceed further, it is necessary to bear in mind that the determination of the amount of compensation under Section 11 as well as by the Court on a reference under Section 18, are both regarded by the Act as an ,award' as distinguished from 'order' or 'decree' of the appellate courts such as High Court and the Supreme Court in appeal against such award. This is clear from the language of Sections 11 to 12, 13-A, 15-A, 16 to 18, 23, 25 to 28-A and 54, among others. While under Section 26, the award made by the reference Court is deemed to be a decree and the statement of the grounds of every Such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9), respectively of Civil Procedure Code, under Section 54, the order passed by the High Court is per se decree and it is appealable as such to the Supreme Court under the Civil Procedure Code. But for Section 54 of the Act, the award of the reference Court would not have been appealable. What is further, Section 30(2) of the amending Act clearly and specifically brings out the distinction between 'award' made by the Collector and by the reference Court on the one hand and the 'order' passed by the High Court or the Supreme Court in appeal on the other. It is an error to dismiss this vital distinction made in the principal and amending Acts between 'award' and 'order' by characterising the use of the word 'award' as a verb and not noun. The distinction between the two has a significant relevance for the correct interpretation of the provisions in question. According to us, the legislature has not used the two words casually or unintentionally.

12.It is further necessary to bear in mind that the amending Act has added, among others, the provisions of Section 23(1- A) and Section 28-A and has amended the provisions of Section 23(2). It has also made independent transitional provision in its Section 30. The relevant provisions of Section 30 read as follows:

30. Transitional provisions.-

(1) The provisions of sub- section (1A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,-

(a) every proceeding for the acquisition of any land under the principal Act pending on 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People], in which no award has been made by the Collector before that date;

(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.

(2)The provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18 610 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act.

The date of the introduction of the Bill of the amending Act is 30-4-1982 and the date of its commencement is 24-9-1984.

13.Against the background of the aforesaid relevant provisions of the principal and the amending Act, we have to interpret the provisions of Section 23(1-A) of the principal Act. Section 23(1) speaks of the factors which the reference Court has to take into consideration while determining the amount of compensation to be awarded for the acquired land. The compensation so determined is to be the market value of the land in question on the date of the publication of the notification under Section 4(1) of the principal Act. The legislature had originally provided for a further sum in every case to be paid in addition to the market value of the land in consideration of the compulsory nature of the acquisition. That sum was 15 per centum on the market value. This additional sum known as 'solatium' was provided for in sub-section (2) of Section 23. By the amending Act, it has been increased to 30 per centum of the market value. The solatium was thus a part of the compensation from the very inception of the principal Act and all that was done by the amending Act, was to increase its amount.

14.It was, however, found that there was a considerable time lag between the date of the publication of the notification under Section 4(1) and the date of the award of the Collector. The market value of the land acquired was however frozen to the date of the notification under Section 4(1).

In order to relieve the hardship of the persons interested in the land (hereinafter compendiously termed as 'landowners' for the sake of convenience), the legislature for the first time introduced sub-section (1-A) in Section 23 of the principal Act by the amending Act. This sub- section enjoins the grant, in every case, of a further amount in addition to the market value. The amount is to be calculated at the rate of 12 per centum per annum on the market value for a specific period, namely, the period commencing on and from the date of the publication of the notification under Section 4(1) and ending with the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. The Explanation to the said sub-section (1-A), states that in computing the period for which the said amount is to be granted, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court, shall be excluded. This provision like the one for solatium in sub-section (2) of Section 23, is a substantive one. Unless therefore, there is a statutory mandate, neither this provision nor the provision for the increased solatium can be given retrospective effect. It is here that the role of Section 30 of the amending Act (hereinafter referred to as 'Section 30') which makes provisions for the transitional period, viz., the 611 period between the introduction of the Bill of the amending Act and the commencement of the said Act, comes into play.

It is the interpretation of the said Section 30 and its bearing on the provisions of Section 23 which has become a matter of controversy and a subject of conflicting decisions of this Court as stated at the outset.

15.The relevant provisions of Section 30 have already been reproduced. An analysis of the section shows that it deals separately with the two different benefits which the amending Act has conferred on the landowners. Sub-section (1) thereof deals exclusively with the provisions of sub- section (1-A) of Section 23 of the principal Act while sub- section (2) thereof deals exclusively with the provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by the amending Act. In the present proceedings, we are concerned with the applicability of the newly inserted subsection (1-A) of Section 23 of the principal Act and not with the amended Sections 23(2) and 28 of the principal Act. However, since some decisions of this Court have tried to project and rely upon sub-section (2) of Section 30 for the interpretation of sub-section (1) thereof and also for the interpretation of Section 23 of the principal Act, it will be necessary to refer to the provisions of Section 30(2) also in the course of the discussion that follows.

16.Sub-section (1) of Section 30 in its turn deals separately with two classes of cases. By clause (a) thereof it makes the provisions of Section 23(1-A) of the principal Act applicable also to and in relation to every acquisition proceeding pending on 30-4-1982 i.e. the date of the introduction of the Bill of the amending Act, in which no award has been made by the Collector before that date. By its clause (b), it makes the provisions of the said Section 23(1-A) applicable also to and in relation to every acquisition proceeding, commenced after 30-4-1982 whether the Collector has or has not made an award before the date of the commencement of the Act, i.e., 24-9-1984. It is further clear that sub-section (1) of Section 30, deals exclusively with the power and the jurisdiction of the Collector in the proceedings before him. It does not deal with or refer to the power either of the reference Court under Section 23 of the principal Act or of the appellate Court such as the High Court and the Supreme Court. With respect, it is the failure to appreciate the sine qua non of the provisions of Section 30(1) which is responsible for misinterpretation of, and wrong conclusions with regard to the applicability of Section 23(1-A). These transitional provisions with regard to the proceedings pending before the Collector were necessary, for without them it would not have been permissible for the Collector to give benefit of Section 23(1-A) to the landowners concerned. The legislature not only wanted the reference Court under Section 23, but also the Collector under Section 11 of the principal Act, to give the benefit of Section 23(1-A) in the proceedings pending before them. This is as it should be, for Section 15 of the principal Act requires the Collector to take into consideration the provisions contained in Sections 23 and 24 while determining the amount of compensation to be awarded. To get his due compensation, every landowner need not be obliged to ask for a reference under Section 18 nor is every 612 landowner in a financial position to do so. It is common knowledge that many a land acquisition proceedings come to an end at the stage of the Collector, and only some cases travel to the reference Court and thereafter to the appellate Courts. Secondly, Section 30(1) while giving the power to the Collector to grant the benefit of Section 23(1 A), also pl aces a restriction on the said power. The Collector is empowered to grant the said benefit only in those proceedings which are pending before him on 30-4-1982 and in which no award has been made by him before that date.

That is understandable since the proceedings would be pending before him on 30-4-1982 even after he has made his award, either for making a reference or for payment and distribution of the compensation. In such cases, he is not empowered to give the said benefit by reopening the award.

If the reference in such proceedings is ultimately made under Section 18 of the principal Act, the reference Court under Section 23 will have authority to give the benefit.

If it is not made, the proceedings will stand closed without the said benefit. On the other hand, if the proceedings are pending before him on 30-4-1982 in which no award is made, he is empowered to give the said benefit in such proceedings since, as pointed out earlier, under Section 15 of the principal Act he is to be guided by the provisions of Sections 23 and 24 of that Act while determining the compensation. This is the substance of clause (a) of Section 30(1).

17.Clause (b) of Section 30(1) takes care of another situation where the Collector is given power to give the benefit of Section 23(1-A). That, situation is where the proceedings for acquisition have been started after 30-4- 1982 whether an award has been made or not by the Collector before 24-9-1984, which is the date of the commencement of the amending Act. In other words, the Collector has been given power to give benefit of Section 23(1-A) in all acquisition proceedings started after 30-4-1982. This provision was also necessary, since but for the said provision, the Collector would have been powerless to give the said benefit in the acquisition proceedings started after 30-4-1982 in which he has made his award before 24-9- 1984. The clause (b) empowers the Collector to reopen such awards whether the proceedings are pending before him or not. Secondly, the said clause empowers the Collector to give the said benefit also in all acquisition proceedings started after that date in which he has not made award till 24-9-1984.

18.Thus, the provisions of sub-section (1) of Section 30 are in conformity with the object of the amending Act, namely, to give benefit to the landowners who were denied the benefit of compensation for a long time and were put to an avoidable loss. There is no reason why if the reference Court under Section 23 of the principal Act can give the benefit of Section 23(1-A) in the proceedings pending before it on the date of the commencement of the amending Act, the Collector should not have power to give the said benefit in the proceedings before him. The only restriction that the legislature has placed on the said power of the Collector is that it has prevented him from reopening the awards which he had already made before 30-4-1982 in proceedings pending before him on that day. This was, as, stated above, for the reason that those of the awards made by him in such 613 proceedings which were the subject-matter of reference under Section 18 could be taken care of by the reference Court under Section 23. On the other hand, those of such awards which were not questioned and, therefore, had become final, should not be reopened.

19.What is, therefore, necessary to note is that Section 30(1) deals exclusively with the powers of the Collector and it has no bearing on the powers of the reference Court under Section 23. What is more, clause (a) of the said Section 30(1) is not retrospective in operation. It speaks of power of the Collector in the proceedings pending before him on 30-4-1982 in which lie has yet to make the award. It Is only clause (b) of the said section which gives a limited retrospectivity to the power of the Collector when it enables him to reopen the award made by him before the commencement of the amending Act, viz., 24-9-1984 in proceedings started after 30-4-1982.

20.The reference Court in its turn in the matters pending before it on the date of the commencement of the amending Act, viz., 24-9-1984 is enjoined upon to give the benefit of Section 23(1 A) in awards made by it on and after the date of the commencement of the Act. For granting the said benefit, Section 23 of the principal Act nowhere makes any distinction between the acquisition proceedings commenced prior to and after 30-4-1982 or inhibits the power of the reference Court, unlike the provisions of Section 30(1) which deal with the powers of the Collector. When the reference Court does so, it gives prospective effect to the provisions of Section 23(1-A). It does not give retrospective effect to the said provisions. To import the concept of retrospectivity in Section 23 merely because the reference Court gives the benefit of Section 23(1 A) in the proceedings pending before it on the date of the commencement of the amending Act, is neither interpretatively correct nor in conformity with the provisions of Section 23. It is wrong to say that merely because the acquisition proceedings were commenced prior to 30-4-1982, i.e., the date of the introduction of the Bill of the amending Act, the grant of the said benefit has a retrospective effect, although the benefit is given by the reference Court in the proceedings pending before it. In the first instance, the additional amount under Section 23(1 A) is to be calculated till the date of the award or the date of taking possession of the land whichever is earlier.

Secondly, when the legislature does not use any expression to indicate that the law made by it shall apply only to causes of action or incidents taking place after the coming into force of the amending Act, the law has to be applied to all matters pending before the Court even if those matters had arisen before coming into force of the Act.

21."A statute is not retrospective merely because it affects existing rights;nor it is retrospective merely because a part of the requisites for its action is drawn from a time antecedent to Its passing." (Halsbury's Laws of England, Vol. IV, para 221). In R. v. Inhabitants of St. Mary, White chapel1 the law intended to secure that a widow residing in a parish with her husband shall not be removed for twelve months after his death. The benefit of the 1 (1848) 12 QB 120, 127: 17 LJMC 172: 116 ER 811 614 law was extended even when the husband had died before coming into force of the Act and it was observed :

"It was said that the operation of the statute was confined to persons who had become widows after the Act was passed, and that the presumption against a retrospective statute being intended supported this construction;

but we have shown before that the statute Is in its direct operation prospective, as it relates to future removals only, and that it is not properly called a retrospective statute because apart of the requisites for its action is drawn from time antecedent to its passing." In this case the words 'shall be removed' were thus found appropriate to cover all cases of future removals irrespective of whether the husband had died prior to the Act but they were not found wide enough to nullify completed removals prior to the Act, even if the widow was removed within twelve months of her husband's death. This principle was approved by our Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh2 and in T.K. Lakshmana Iyer v. State of Madras3. In Trimbak Damodhar Raipurkar v. Assaram Hiraman Patil4, it was observed by the Constitution Bench:

"....where a statute operates in future it cannot be said to be retrospective merely because within the sweep of its operation all existing rights are included." 22.In Bishun Narain Misra v. State of U.p.5 a rule made by the State Government providing that the age of retirement would be 55 years came up for consideration before the Constitution Bench. It was argued that since the rule could not apply retrospectively, a government servant who was recruited and appointed earlier to the date when the rule was made by the Government, could not be retired in exercise of power under this rule retrospectively. The submission was repelled and it was held that the rule could not be struck down on the round that it was retrospective in operation as all that it provided was that from the date it came into force the age of retirement became 55 years.

23.The fact that the provisions of sub-section (1) of Section 30 are confined to the powers of the Collector and have no relation to or bearing on the power of the reference Court under Section 23 of the principal Act or of the appellate Courts, becomes abundantly clear when we contrast the said provisions with the provisions of sub-section (2) of the said Section 30. That sub-section extends the benefit of the amended Section 23(2) and Section 28 of the principal Act also to and in relation to not only the award made by the Collector but also to that made by the reference Court and further to the orders passed by the High Court and the Supreme Court in appeals against any such award made by the Collector or the reference Court after 30-4-1982 and before 24-9-1984. In other words, subsection (2) of Section 30 2 AIR 1953 SC 394, 398 3 (1968) 3 SCR 542 : AIR 1968 SC 1489 4 AIR 1966 SC 1758 : 1962 Supp (1) SCR 700 5 AIR 1965 SC 1567 :(1965) 1 SCR 693 615 empowers all the tribunals, viz., the Collector, the reference Court and the appellate Courts to grant the benefits of the amended Section 23(2) and Section 28 in contradiction to its sub-section (1) which only speaks of the Collector and the award made by him.

24. In the face of these clear indications given by Section 30(1) and(2),it is incorrect to read in Section 23, the limitations of Section 30(1)and circumscribe the powers of the reference Court under Section 23.The reference Court acting under Section 23 is not inhibited in any manner as the Collector under Section 30(1), from giving benefit of Section 23(1-A) in the proceedings pending before it on 24-9-1984, whether the said proceedings were started prior to or after 30-4-1982. In fact the plain language of Section 23 enjoins upon the reference Court to grant the said benefit in all proceedings pending before it on the date of the commencement of the amending Act. For the same reason, neither the reference Court nor the appellate Court like the High Court and the Supreme Court can give the benefit of Section 23(1-A) in proceedings which were closed before the reference Court before 24-9-1984. This is so, because unlike sub-section (2) of Section 30 which extends the benefit of the amended Section 23(2) and Section 28 of the principal Act to the awards made by the reference Court after 30-4-1982 and before 24-9-1984 or to any order passed by the High Court or the Supreme Court in appeal against such award, sub-section (1) of Section 30 does not extend the benefit of Section 23(1-A) to such awards of the reference Court and to the orders of High Courts and the Supreme Court in appeal against such award.

25. The above interpretation is also in conformity with the object of the legislation. It must be remembered in this connection that according to the Agricultural Census of 1985-86 [All-India Report on Agricultural Census, 1985-86 (1992)] the small holders of agricultural land, i.e., those who hold land between 1 to 2 hectares, constitute 18.4 per cent of the agriculturists whereas marginal holders, i.e., those who possess less than one hectare constitute 57.8 per cent of the agriculturists. Thus, together, the small and the marginal holders constitute 76.2 per cent of the agriculturists. The average small holding is 1.43 hectares whereas the average marginal holding is 0.39 hectare. Out of the total holdings, only 27.1 per cent are wholly irrigated whereas 17.8 per cent are partly irrigated and remaining 55.1 per cent are wholly unirrigated. The vast majority of the landholders in this country, thus, are subsistence farmers. It is also a notorious fact that agriculture 'In this country has never been a profitable occupation. The vagaries of nature, the spiraling prices of inputs and the basic necessities of life, uneconomic prices fixed for the agricultural products, the exploitation of farmers by the middlemen and market forces, the growing burden of dependents on the limited holdings are rendering even the so-called large holdings, the area of which ranges between 10 hectares to 50 hectares on average, unremunerative. When the acquisition takes away either wholly or partly the lands from the farmers, they are deprived of their only means of 616 livelihood or the already slender means are still further slimmed, depending upon the area of the land acquired and the person from whom it is acquired.

26. The right to receive compensation under the principal Act accrues to the owner when the possession is taken by the Collector. Section 16 vests the land in the State absolutely free from all encumbrances when the Collector takes possession of the land after making the award in non- urgent circumstances, the urgent cases being covered by Section 17 of the principal Act. But as stated above between the date of notification under Section 4 and the date of award and of taking possession of the land, very often than not a long delay occurred which affected the landowners materially as the market value of the land is to be determined under Section 23 of the principal Act with reference to the date of the notification issued under Section 4(1). The delays became more pronounced and their consequences to the landowners more and more adverse with the passage of time on account of the spiraling of the prices. To remedy the situation, the Law Commission as early as in 1958 observed as follows:

"It is noteworthy, however, that the State Governments themselves admit that the delay is largely due to the tardy manner in which the machinery of the Government moves in the matter. They also admit that, if the land acquisition officers are made to work methodically and expeditiously, the pace can be quickened. Any proposal for the reform of the law should, therefore, aim at overcoming these evils. Most of the delay occurs in the initial stages of the proceedings between the date of the notification under Section 4 and the declaration under Section 6. Further delays arise in the making of the award by the Collector, with the result that as under the existing law, the Government cannot obtain possession until the award is made and th e taking of possession is indefinitely delayed." The report submitted in 1970 which suggested a time-frame for completion of the acquisition proceedings, particularly to relieve the poor landholders whose only means of livelihood was taken away, recommended as follows:

"The Land Acquisition Act is over 75 years old. When enacted it was not faced with the requirements of the Constitution of India. It is remarkable that broadly speaking it fulfilled the needs of the community for such a length of time. Even today the Act is not so much vulnerable on its provisions as on the way the executive authority tried to implement them. From one end of the country to the other the same story has been repeated again and again (with provincial variations) that it has been used as an engine of oppression by the administrative authorities and the weaker poorer sections of the community have suffered the most. The complaint (not without substance) is that only an illusory compensation was awarded in an appreciable number of cases and that too was not paid for years. Emergent acquisition was the order of the day without the existence of any emergency. The law was ignored and the exception was made the law perhaps on the round that ob servance of law would have meant delay. Tile executive mind 617 considered the delay in acquiring possession as a matter of greater of great importance but the delay in payment of compensation to poor landowners as of no consequence. This callous indifference was manifested again and again.

Many of the sufferers lost their hereditary occupation also which alone provided them with some sort of economic security. As a result quite an appreciable number of citizens were completely uprooted and turned into refugees in their own land of birth."

27. To implement these recommendations and suggestions, the amending Act was enacted. One of the suggestions made in the debate in Parliament was that the determination of the value of the land be made with reference to the notification issued under Section 6 of the principal Act. The Honorable Minister who piloted the Bill expressed his inability to do so due to various difficulties. Instead, he opted for measures including- that provided under Section 23(1 A) to mitigate the miseries of the landowners. In this connection, he stated thus:

"It is, therefore, necessary to ensure particularly that the interest of the weak and the poor are not overlooked in our concern for modernisation and industrialisation. Even when acquisition of their land, becomes an inescapable necessity for the larger interest of the community, they ought to be provided with the necessary where witlials of rehabilitation. In making provision in the amending Bill, we have been animated by our concern of ensuring that the person who loses his property right in land, particularly one who belongs to the weaker sections of the community, is adequately compensated for his loss.... As it is well known, a number of land acquisition proceedings have been pending for the award of the Collector for years on end.

In some cases, the preliminary notification under Section 4(1) was issued many years ago.

Payment of compensation to the interested parties on the basis of the market value of the land prevailing on the one of the preliminary notification will be purely unfair. To remedy this unfairness, the Bill provides for payment, in every proceeding for acquisition of land where the award of the Collector had not been given on 30-4-1982, an additional payment of 10 per cent per annum from the date of the preliminary notification to the date of the payment or deposit of compensation."

28. It is, therefore, clear that the intention of the legislature in enacting the amending Act and in particular Section 23(1-A) with which we are concerned, was to give additional amount to the deprived landowners in all the proceedings which were pending before the Collector on 30-4- 1982 and before the reference Court on 24-9-1984 i.e. the date of the commencement of the Act. However, the legislature conferred the power on the Collector to give the said benefit only in those proceedings which were pending before him on 30-4-1982, where no award was made by him.

This is because, as explained earlier, where he had made his awards in such proceedings, either they had travelled to the reference Court and were pending before it or had been accepted and become final. The awards which were before the reference 618 Court were left to be dealt with by it under Section 23 while those which had become final were not to be reopened.

However, in proceedings which were started after 30-4-1982, whether the award was or was not made by the Collector before the date of commencement of the Act, the legislature gave the Collector the power to grant the said benefit even by reopening the award, because the Collector was seized of the proceedings between 30-4-1982 and 24-9-1984 when the benefits were on the anvil. If he could give the benefit to the awards made by him in such proceedings after 24-9-1984, there is no reason why the awards made by him during the said interregnum should not receive the same treatment. The reference Court proprio vigore was empowered to give the said benefit in all proceedings which were pending before it on the date of the commencement of the amending Act. If the Collector could give the said benefit in proceedings pending before him on 30-4-1982, although started prior to that date, where he had not made his award, it will be against the scheme of the Act to contend that the reference Court could not give the same benefit in the proceedings pending before it because the acquisition proceedings had started prior to 30-4-1982.

29. According to me the error in the contrary view springs, firstly, from the fact that the said view fails to notice that Section 30(1) of the amending Act is confined to spelling out the powers of the Collector. It has no reference to and bearing on the powers of the reference or the appellate Court. The dovetalling of the provisions of Section 30(1) into the provisions of Section 23 is, therefore, mainly responsible for the error. Secondly, Sections 30(1) and 30(2) deal with different benefits and speak of powers of different tribunals. While Section 30(1) speaks of powers only of the Collector, Section 30(2) speaks of powers of the Collector, the reference Court and also of the appellate Court. An attempt to project the provisions of Section 30(2) into the provisions of Section 30(1) and consequently III Section 23(1 A) is no less responsible for the erroneous interpretation of the powers of the reference Court under Section 23 to rant the benefit of Section 23(1 A).

30. The relevant decisions of this Court may now be referred to. There are three decisions directly on Section 23(1-A), viz., Union of India v. Filip Tiago De Gama of Vedeln Vasco De Gama6; Union of India v. Zora Singh7 and the referring judgment in K.S. Paripoornan v. State of Kerala8.

The other decisions, viz., Union of India v Raghubir Singh9 which is a Constitution Bench decision and K. Kamalajammanniavaru v. Special Land Acquisition Officer10; Bhag Singh v. Union Territory of Chandigarh11 and 6 (1990) 1 SCC 277 7 (1992) 1 SCC 673 8 (1992) 1 SCC 684 9 (1989) 2 SCC 754 10 (1985) 1 SCC 582 11 (1985) 3 SCC 737 619 State of Punjab v. Mohinder Singh 1 2 are all on the interpretation of amended Sections 23(2) and 28 of the principal Act and, therefore on the interpretation of Section 30(2) of the amending Act.

31. In Vasco De Gama6 the facts were that the acquisition proceedings were commenced with the notification published under Section 4(1) of the principal Act on 26-10-1967. The Collector made his award on 5-3-1969 and the reference Court made its award on 28-5-1985. The Court was here called upon to interpret the provisions of Sections 23(2) and 28 of the principal Act and, therefore, of Section 30(2) of the amending Act as well as the provisions of Section 23(1-A) of the principal Act and of Section 30(1) of the amending Act.

I am in respectful agreement with the observations made in the said judgment that Section 30(1) of the amending Act refers to the Collector's award and Section 30(2) refers to the award of the reference Court as well. To this extent, the view which I have taken above on the point finds support in these observations. The conclusion, drawn in this case however as far as Section 23(1-A) is concerned, was, with respect, incorrect inasmuch as it denied the power to the reference Court to give the benefit of Section 23(1-A) in the proceedings in that case, though they were pending before the Court on the commencement of the amending Act, i.e., on 24-9-1984. This decision, with respect, has committed the error of projecting the provisions of Section 30(2) in Section 30(1) and in Section 23 and Section 23(1 A) of the principal Act.

32. In Zora Singh7 notification under Section 4(1) of the principal Act was issued on 10-5-1979. The Collector made his award on 31-3-1981 and the Court made its award in 1985, i.e., after the commencement of the principal Act.

Although I agree with the proposition laid down there that the plain language of Section 23(1-A) shows that a duty is cast on the reference Court to award the additional amount in all cases pending before that Court on 24-9-1984 even if the award of the Collector was made before 30-4-1982, with respect, I am unable to agree with the following observation underlined by me in paragraph 14 of the judgment: (SCC p. 680, para 14) "On a correct interpretation of the provisions of Section 23(1-A) read with Section 30(1)(a) of the Amendment Act of 1984, an additional amount calculated in the manner indicated in Section 23(1-A) is also payable in those cases where the Collector had not made his award on or before 30-4-1982, even in cases where the Court might have made its award before 24-9-1984." The above observation, according to me, ignores that in cases where

(a) acquisition proceedings were pending on 30-4-1982 and the award is made by the Collector after that date and

(b) where acquisition proceedings had started after 30-4-1982 and the Collector made award after that date but before the commencement of the amending Act, i.e., 24-9-1984, the 12 (1986) 1 SCC 365 6 (1990) 1 SCC 277 7 (1992) 1 SCC 673 620 Collector is given power to reopen the award and give the benefit of Section 23(1 A). The reference Court under Section 23 has no power to reopen the award made by it before 24-9-1984 to give the benefit of Section 23(1 A), since the provisions of Section 23(1-A) have no retrospective effect. The retrospective effect is given only to the powers of the Collector to reopen the awards made by him before 24-9-1984. For the similar reason, the observations made by the Court to the same effect in paraaraph 15, with respect, cannot be accepted.

33. As regards the referring judgment in K.S. Paripoorna case8 the facts in that case show that notification under Section 4(1) was issued on 21-3-1978. The Collector made his award on 30-12-1980 and the reference Court gave its award on 28-2-1985. 1 agree with the observation made there that the said case is not covered by Section 30(1).

However, I am unable to agree that in that case the benefit of Section 23(1-A) is not available to be ,,ranted by the reference Court under Section 23. With respect, the decision confuses the powers of the Collector under Section 30( 1) with the powers of the Court under Section 23. The provisions of Section 30(1) govern only the powers of the Collector under Section 11 and not the powers of the Court under Section 23. Further, there is no retrospectivity given by Section 30(1) to the powers of the Collector except where it enables the Collector to reopen the award made by him before 24-9-1984 in proceedings for acquisition started after 30-4-1982. In all other respects, the powers of the Collector are prospective in nature inasmuch as both clauses (a) and (b) of Section 30(1) grant power to the Collector to give the benefit of Section 23(1-A) in proceedings pending before him on 30-4-1982 and thereafter. I am also unable to agree that the use of the word 'Court' in Section 23(1 A) is of no significance and that the said expression would include the appellate Courts, i.e., the High Court and the Supreme Court. It is also difficult to agree with the statement made in paragraph 11 of the judgment that even the High Court and the Supreme Court can award the benefit of Section 23(1-A) if they decide the matter on or after 24-9- 1984 irrespective of the date on which the award was made by the reference Court. The said interpretation gives retrospective effect to Section 23(1-A) inasmuch as it applies the provisions of the said section also to awards made by the reference Court prior to 24-9-1984.

34. 1 am further unable to accept the view that the word 'award' occurring in Section 23(1-A) is used there not as a noun but as a verb. Although the word 'award' is not defined in the Act, as pointed out at the outset, the legislature has used the said word in various provisions of the Act with a specific intention and meaning and hence there cannot be any mistake that the said word has been used even in Section 23(1-A) as a noun. The inconvenient words, expressions and language, when their intendment and meaning are plain, cannot be got over by either mutilating them or by attributing to them unnatural and unwarranted role. Such an exercise is against all canons of the interpretation of statutes.

8 (1992) 1 SCC 684 621

35. Coming now to the decisions of this Court on Section 23(2), 1 find that on the language of Section 30(2) of the amending Act, this Court in Kamalajammnaniavaru v. Special Land Acquisition Officer10 has with respect taken the correct view of the law. In that case, the notification under Section 4(1) was issued on 28-11-1957 and the Collector and the Court made their awards either in 1970 or prior to it. The Court held that the provisions of Section 23(2) read in the light of Section 30(2) of the amending Act did not apply to the said case. This judgment is also relevant for yet another reason in that it states that it is only the awards made by the Collector under Section 11 and the reference Court under Section 18 which are 'awards' proper under the Act. This observation supports the view I have taken.

36. 1 am, however, unable to agree with the decision in Bhag Singh, which was also a decision under Section 23(2) and Section 28 of the principal Act read with Section 30(2). In that case, notification under Section 4(1) of the principal Act was issued on 19-10-1974. The Collector made his award on 9-10-1975 and the Court made its award on 31-7- 1979. This decision ignores the limited prospectivity given by Section 30(2) of the amending Act and makes the amended provisions of Sections 23(2) and 28 of the principal Act applicable also to cases where the awards were made by the Collector or the Court prior to 30-4-1982. This decision has relied upon the earlier decision of the Court in State of Punjab v. Mohinder Singhl2. Unfortunately the latter decision has not given any reasons for coming to the conclusion in question except that SLP against the same decision was already dismissed. For the reasons given above, I am unable to agree with the conclusions in this decision.

37. The last decision on the amended Sections 23(2) and 28 read with Section 30(2) is of the Constitution Bench in the case of Raqhubir Singh9. This decision has overruled the decisions in Bhag Singh11 and Mohinder(letSinghl2. With respect, I am in complete agreement with the decision which has taken the correct view of law as taken in the case of K. Kamalajammaniavaru v. Special Land Acquisition Official0, viz. that under Section 30(2), the High Court and the Supreme Court have power to give the benefit of the amended Sections 23(2) and 28 retrospectively only in those proceedings where the awards are made by the Collector or the reference Court between 30-4-1982 and 24-9-1984. It is further only to Such awards of the Collector and the reference Courts that the said provisions apply retrospectively.

38. The transitional provision is by its very nature an enabling one and has to be interpreted as such. In the present case, it is made to take care of the period between 30-4-1982 and 24-9-1984, i.e., between the date of the introduction of the Bill of the amending Act and the date of the commencement of the Act. Since some awards might have been made by the 10 (1985) 1 SCC 582 11 (1985) 3 SCC 737 12 (1986) 1 SCC 365 9 (1989) 2 SCC 754 622 Collector and the reference Court during the said interregnums, the legislature did not want to deprive the aware concerned either of the newly conferred benefit of Section 23(1 A) or of the increased benefit under Sections 23(2) and 28. The second object was to enable the Collector and the Court to give the said benefits in the proceedings pending before them where they had not made awards. The only limitation that was placed on the power of the Collector in this behalf was that he should not reopen the awards already made by him in proceedings which were pending before him on 30-4-1982 to give the benefit of Section 23(1- A) to such awarders. This was as stated earlier, for two reasons. If the said awards are pending before the reference Court on the date of the commencement of the amending Act, viz., 24-9-1984, the reference Court would be able to give the said benefit to the awardees. On the other hand, if the awardees in question had accepted the awards, the same having become final, should not be reopened. As regards the increased benefit under Sections 23(2) and 28, the intention of the legislature was to extend it not only to the proceedings pending before the reference Court on 24- 9-1984 but also to those where awards were made by the Collector and the reference Courts between 30-4-1982 and 24- 9-1984. Hence these awards could not only be reopened but if they were the subject matter of the appeal before High Courts or the Supreme Court, the appellate orders could also be reopened to extend the said benefits.

39. The difference made in the transitional provisions of Section 30 between payment of the additional amount under Section 23(q A) and of the increased solatium and interest under Sections 23(2) and 28 has to be noted. While the former is provided for under sub-section (1) of Section 30, the latter are taken care of by sub-section (2) thereof.

Sub-section (1) gives power to the Collector while sub- section (2) gives power to all the tribunals the Collector, the reference Court and the appellate Courts.

The Collector's powers under subsection (1) are confined (a) to the acquisition proceedings pending before him on 30-4- 1982 where he has not made award before that date and (b) to the acquisition proceedings commenced after 30-4-1982 whether he has or has not made award prior to the commencement of the amending Act, i.e., 24-9-1984. As against this, the power conferred by sub-section (2) on all the tribunals is confined only to the awards made by the Collector and the reference Court between 30-4-1982 and 24-9-1984. This distinction is necessitated by the difference in the nature of the benefit. While the additional amount under Section 23(1-A) which is for the first time made payable by the amending Act is to compensate for the delay in the making of the award or taking possession of the land, the solatium under Section 23(2) and interest on the excess amount under Section 28 which were always payable were increased to take care of the inflation and the fall in the purchasing power of the rupee in the meanwhile.

40. But for the provisions of sub-section (1) of the said Section 30, the Collector would not have been able to give the benefit of Section 23(1-A) in the proceedings referred to therein. This would have defeated the object of the Act in those cases which had not traveled or could not travel to the reference Court and had or would become final with the Collector's award.

623 The legislature, therefore, wanted to give the power to the Collector in addition to the reference Court to take care of such cases. It was aware that many cannot and did not go to the reference Court to get their due compensation.

41. According to me, any other interpretation will be a distortion of' the plain language, meaning and intendment of the relevant provisions. It will also amount to reading limitation on the powers of the Collector and the Courts where the legislature intended to expand them.

42. 1, therefore, hold that:

(i) Sub-section (1) of Section 30 of the amending Act relates only to the powers of the Collector. It has no relation to or bearing on the powers of the reference Court.

It is erroneous to read its provisions and the limitations placed by and the distinction made by it between acquisition proceedings commenced prior to and after 304-1982, into the provisions of Section 23 including of sub-section (1-A) thereof.

(ii) Under clause (a) of sub-section (1) of the said Section 30, the Collector has power to grant benefit of Section 23(1-A) of the principal Act in every proceeding for the acquisition which is pending before him on 30-4-1982 but in which he has made no award before that date.

(iii) Under clause (b) of sub-section (1) of the said Section 30, the Collector has power to give the benefit under Section 23(1- A) in every proceeding for the acquisition commenced after 30-4-1982 whether or not he has made his award in such proceeding before 24-9-1984. Where he has made his award in such proceeding before that date, he is empowered to reopen the same and grant the said benefit.

(iv) Section 23 does not make any distinction in the acquisition proceedings pending before the reference Court on 24-9- 1984, between those which had commenced prior to 30-4-1982 and those which had commenced thereafter. If the proceedings are pending before the reference Court on the date of the commencement of the Act, viz., 24-9-1984, the reference Court is enjoined upon to give the benefit of Section 23(1-A) in all such proceedings without making any distinction.

When the reference Court does so, it gives prospective effect to Section 23(1-A). It does not give retrospective effect to the said section merely because the proceedings in question had started prior to 30-4-1982.

(v) It is not permissible to read the provisions of sub-section (2) of Section 30 of the amending Act into the provisions of sub-section (1) thereof and thereby in Sections 23 and 23(1-A). The provisions of Section 30(2) are exclusively concerned with Sections 23(2) and 28 and have no relation to the provisions of Section 23(1-A).

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(vi) Neither the reference Court under Section 23 nor the appellate Court, whether High Court or the Supreme Court can grant the benefit of Section 23(1-A) in any proceeding in which the reference Court has made its award prior to 24-9-1984. The grant of such benefit by the Courts is not warranted by the transitional provisions of Section 30(1).

The provisions of Section 30(2) as stated above are not applicable to the benefit under Section 23(1-A). For the Courts to grant t he said benefit in such proceedings is to give retrospective effect to the provisions of Section 23(1-A) which is impermissible in law.

43. For the reasons stated above, I agree with the conclusion drawn in Union of India v. Zora Singh7 that in all proceedings pending before the reference Court on 24-9- 1984, the reference Court has to give benefit of the provisions of Section 23(1-A) to the claimants.

S.C. AGRAWAL,, J. (for Venkatachaliah, C.J., himself and Bharucha, J.) --By order dated 17-12-1991 + these matters have been referred to a larger bench to consider the correctness of the decision in Union of India v. Zora Singh7 (decided by a bench of three Judges). In Zora Singh case7 this Court has held that the payment of additional amount payable @ 12% per annum oil the market value under sub-section (1-A) inserted in Section 23 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the principal Act') by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as 'the amending Act') is to be ordered in every case where the reference was pending before the reference Court oil the date of commencement of the amending Act even though the award of the Collector was made prior to 30-4-1982.

45. In all these matters preliminary notification under Section 3(1) of the Kerala Land Acquisition Act, 1961 was published on 21-3-1979 and the notification under Section 6 of the said Act was published on 15-5-1979. The Land Acquisition Officer made the award on 30-12-1980. The reference under Section 18 was decided by IInd Additional Subordinate Judge, Trivandrum on 28-12-1985, after the commencement of the amending Act. The amending Act also repealed the Kerala Land Acquisition Act, 1961 and extended the principal Act as amended to Kerala with effect from 24-9-1984. The civil Court enhanced the compensation and awarded interest 12% per annum from 11-3-1981 till the deposit of the excess amount of compensation awarded by it.

The High Court rejected the claim for additional amount at the rate of 12% per annum payable under Section 23(1-A) on the view that the said provision was not attracted in view of Section 30(1) of the amending Act. The said view is assailed by the petitioners on the basis of the decision in Zora Singh7. Therefore, this reference.

46. The question which is required to be examined by this Bench is Whether the additional amount payable @ 12% per annum on the market value under Section 23(1 A) is restricted to matters referred to in clauses (a) 7 (1992) 1 SCC 673 + K S. Paripoornan v. State of Kerala, (1992) 1 SCC 684 625 and (b) of sub-section (1) of Section 30 of the amending Act or is to be awarded in every case where the reference was pending before the reference Court on 24-9-1984 (the date of the commencement of the amending Act) irrespective of the date on which the award was made by the Collector.

47. Section 23 of the principal Act prescribes, in sub- section (1), the matters which are required to be considered in determining compensation by the Court on a reference under Section 18. Sub-section (2) of Section 23 makes provision for award of a sum, commonly known as 'solatium', in consideration of the compulsory nature of the acquisition. Prior to the amending Act, 15% of the market value of the land was required to be paid as solatium. In Section 28 of the principal Act provision has been made for payment of interest on the amount which has been awarded as compensation in excess of the sum awarded by the Collector.

Prior to the amending Act the said interest was payable at the rate of 6% per annum. Similarly in Section 34 of the principal Act provision is made for payment of interest on the amount of compensation when the said amount is not paid or deposited before taking possession of the land. Prior to the amending Act the said interest was payable at the rate of 6% per annum. Having regard to the recommendations of the Law Commission and the Land Acquisition Review Committee, a Bill (Bill No. 67 of 1982) for amending the various provisions of the principal Act was introduced in the Lok Sabha on 30-4-1982. While the said Bill was pending consideration before Parliament various other proposals for amendment in the principal Act were received and after considering these proposals in consultation with the State Governments and other agencies the said Bill was withdrawn and another Bill (Bill No. 63 of 1984) was introduced and the same was enacted as the amending Act which came into force on 24-9-1984. The amending Act introduced amendments in various provisions of the principal Act. The amendments relevant for the purpose of the present controversy are those introduced in Section 23 of the Act. Sub-section (1- A) inserted after sub-section (1) in Section 23 reads as under:

" (1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.

Explanation.- In computing the period referred to in this sub section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded."

48. In sub-section (2) of Section 23 solatium was enhanced from 15% to 30%. The rate of interest prescribed in Sections 28 and 34 was enhanced from 6% to 9%.

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49. Section 30 of the amending Act contains the following transitional provisions:

"30. Transitional provisions.- (1) The provisions of sub-section (1-A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,- (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People], in which no award has been made by the Collector before that date;

(2) The provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act.

(3) The provisions of Section 34 of the principal Act, as amended by Section 20 of this Act, shall apply, and shall be deemed to have applied, also to, in relation to,- (a) every case in which possession of any land acquired under the principal Act had been taken before the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People], and the amount of compensation for such acquisition had not been paid or deposited under Section 31 of the principal Act until such date, with effect on and from that date; and (b) every case in which such possession has been taken on or after that date but before the commencement of this Act without the amount of compensation having been paid or deposited under the said Section 3 1, with effect on and from the date of taking such possession."

50. Section 23(1-A) of the principal Act and Section 30(1) of the amending Act are interrelated and have to be read together. Similarly Section 23(2) of the principal Act, as amended, and Section 30(2) of the amending Act have to be read together. Though sub-sections (1) and (2) of Section 30 of the amending Act are differently worded, the construction that is placed on one set of provisions has a bearing on the construction of the other set. Since the provisions of Section 23(2) of the principal Act and Section 30(2) 627 of the amending Act came up for consideration before this Court earlier than the provisions of Section 23(1-A) of the principal Act and Section 30(1) of the amending Act, we will briefly refer to the decisions wherein Section 23(2) of the principal Act as amended and Section 30(2) of the amending Act have been construed before we come to the decisions on Section 23(1-A) of the principal Act and Section 30(1) of the amending Act.

51. In K. Kamalajammanniavaru v. Special Land Acquisition Officer10 a two-Judge Bench of this Court rejected the contention that the amendment in the provisions of Section 23(2) regarding enhanced solatium at the rate of 30% was applicable to all proceedings in regard to compensation which had not become final whether they be pending before t