Kerala High Court
C.K.Aboobacker vs The Special Tahsildar (L.A.) on 13 March, 2025
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
L.A.A. No.238 of 2020 1 2025:KER:21456
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 13TH DAY OF MARCH 2025/ 22ND PHALGUNA, 1946
LA.APP. NO. 238 OF 2020
AGAINST THE JUDGMENT AND DECREE DATED 15.6.2020 IN LAR NO.1
OF 2016 IN THE COURT OF THE SUBORDINATE JUDGE, THALASSERY
APPELLANT/CLAIMANT :
C.K.ABOOBACKER
AGED 52 YEARS
S/O.MAMU, KANOLIMMAL HOUSE, VETTUMMAL P.O.,
KOTTAYAMPOIL, KANNUR DISTRICT.
BY ADVS.
JOBY JACOB PULICKEKUDY
SRI.ANIL GEORGE
RESPONDENTS/RESPONDENTS :
1 THE SPECIAL TAHSILDAR (L.A.)
THALASSERY, KANNUR DISTRICT - 670101.
2 THE CHIEF MANAGER (CONSTRUCTIONS)
GAIL INDIA LTD., KINFRA HIGH TECH PARK,
H.M.T.COLONY, KALAMASSERY,
ERNAKULAM - 683 503.
3 GOVERNMENT OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR,
KANNUR - 670002.
BY ADV SRI.T.K.SHAJAHAN, SR.GP, FOR R1 & R3
BY SMT. LATHA ANAND FOR R2
SRI. P.B. KRISHNAN, AMICUS CURIAE
THIS LAND ACQUISITION APPEAL HAVING COME UP FOR HEARING ON
12.02.2025, THE COURT ON 13.03.2025 DELIVERED THE FOLLOWING:
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"C.R"
DR. A.K. JAYASANKARAN NAMBIAR & EASWARAN S., JJ.
---------------------------------------------------------------------
L.A.A. No.238 of 2020
------------------------------------------
Dated this the 13th day of March 2025
JUDGMENT
Easwaran S., J.
Efficacy of an award passed under the erstwhile Land
Acquisition Act 1894 after the promulgation of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (for short, Act 30 of
2013) has arisen for consideration in this appeal preferred by the
claimant. Though the claimant sought reference under Section 18
of the erstwhile Land Acquisition Act, the Subordinate Judges
court, Thalassery by judgment and decree dated 15.06.2020
upheld the award passed by the Collector, granted enhancement to
the claimant and answered the reference in L.A.R. No.1 of 2016.
Aggrieved by the same the claimant is before us in appeal.
2. The brief facts for the disposal of the appeal are as follows:
An extent of 0.1850 hectares of land comprised in Re-survey
No.50/2 (New Survey No.50/7) of the Eruvatty village of Thalassery
taluk was acquired for the purpose of establishing SV/IP Station of
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Gas Authority of India Limited. The Land Acquisition Officer
awarded a total compensation of Rs.6,27,605/- (Rupees Six Lakhs
Twenty Seven Thousand Six Hundred and Five only). Dissatisfied
with the amount awarded by the Land Acquisition Officer, the
claimant sought reference under Section 18 of the erstwhile Land
Acquisition Act.
3. Before delving further into the issues presented before us
in the present appeal, we need to notice certain indisputable facts.
The date of Section 4(1) notification was on 14.12.2012. The award
was passed on 15.03.2014 fixing the land value at Rs.13,734/- per
cent. The erstwhile Land Acquisition Act, 1894 was repealed by the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (for short, Act 30 of
2013) on 1.1.2014. Pursuant to the award dated 15.3.2014, the
land was taken possession on 11.4.2014. The reference court
answered the reference on 15.6.2020. While answering the
reference, the reference court noticed that though the claimant
contended that since the award was passed after the enactment of
the new Act, he was entitled to get compensation as per the scheme
under Act 30 of 2013, subsequently, after the argument was
concluded, he had agreed to the award be passed as per
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Section 18 of the erstwhile Land Acquisition Act, 1894. Therefore,
the reference court concluded that in view of the endorsement
'waving his right under the new Act', the court can proceed under
the earlier Act, and, accordingly rendered its findings.
4. Certain intricate questions have presented itself before us
for consideration. For the sake of convenience, we deem it
appropriate to broadly frame the following questions which arise
for consideration.
a. Whether the award dated 15.3.2014 has any
efficacy of law in view of the promulgation of Act
30 of 2013.
b. Whether the claimant can waive his right to
claim compensation under the New Act.
c. Whether the Sub Court, Thalassery, had
jurisdiction to answer the reference.
5. We have heard Sri. Joby Jacob Pulickekudy, the learned
counsel appearing for the appellant, Sri. T.K. Shajahan, the learned
Senior Government Pleader, Smt. Latha Anand, the learned counsel
appearing for the requisitioning authority, and Sri. P.B Krishnan,
the learned Senior counsel assisted by Ms. Chithra, the learned
Amicus Curiae appointed by this Court to assist the Court on the
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intricate questions of law.
6. The efficacy of the award dated 15.3.2014.
6.1. In the present case, Section 4(1) notification was issued
on 14.12.2012. Under the earlier regime of the Land Acquisition
Act, 1894, before passing an award, it is imperative to issue a
declaration under Section 6. Section 6 of the erstwhile Land
Acquisition Act reads as under:
6. Declaration that land is required for a public purpose. -
(1) Subject to the provisions of Part VII of this Act, [when the
[appropriate Government] [or the Board of Revenue] is satisfied,
after considering the report, if any, made under Section 5-A, sub-
section (2)], that any particular land is needed for a public purpose,
or for a Company, a declaration shall be made to that effect under
the signature of a Secretary to such Government or of some officer
duly authorised to certify its orders [ or of the Secretary of the
Board of Revenue, as the case may be], [and different declarations
may be made from time to time in respect of different parcels of any
land covered by the same notifications under Section 4, sub-section
(1), irrespective of whether one report or different reports has or
have been made (wherever required) under Section 5-A, sub-section
(2)]:
[Provided that no declaration in respect of any particular land
covered by a notification under Section 4, sub-section (1),-
(i) published after the commencement of the Land Acquisition
(Amendment and Validation) Ordinance, 1967 (1 of 1967), but
before the commencement of the Land Acquisition (Amendment)
Act, 1984, shall be made after the expiry of three years from the
date of the publication of the notification; or
(ii) published after the commencement of the Land Acquisition
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(Amendment) Act, 1984, shall be made after the expiry of one year
from the date of the publication of the notification:]
Provided further that no such declaration shall be made unless the
compensation to be awarded for such property is to be paid by a
Company, or wholly or partly out of public revenues or some fund
controlled or managed by a local authority.
[Explanation 1.- In computing any of the periods referred to in the
first proviso, the period during which any action or proceedings to
be taken in pursuance of the notification issued under Section 4,
sub-section (1), is stayed by an order of a Court shall be excluded.
Explanation 2.- Where the compensation to be awarded for such
property is to be paid out of the funds of a corporation owned or
controlled by the State, such compensation shall be deemed to be
compensation paid out of public revenues].
(2) [Every declaration shall be published in the Official Gazette,
[and in two daily newspapers circulating in the locality in which the
land is situate of which at least one shall be in the regional
language, and the Collector shall cause public notice of the
substance of such declaration to be given at convenient places in
the said locality (the last of the dates of such publication and the
giving of such public notice, being hereinafter referred to as the
date of the publication of the declaration), and such declaration
shall state] the district or other territorial division in which the land
is situate, the purpose for which it is needed, its approximate area,
and, where a plan shall have been made of the land, the place where
such plan may be inspected.
(3) The said declaration shall be conclusive evidence that the land
is needed for a public purpose or for a Company, as the case may
be; and, after making such declaration the [appropriate
Government] [or the Board of Revenue, as the case may be,] may
acquire the land in a manner hereinafter appearing.
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6.2. Section 11A of the erstwhile Land Acquisition Act reads
as under:
"11-A. Period within which an award shall be made. -The
Collector shall make an award under Section 11 within a period
of two years from the date of the publication of the declaration
and if no award is made within that period, the entire
proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been
published before the commencement of the Land Acquisition
(Amendment) Act, 1984, the award shall be made within a period
of two years from such commencement.
Explanation.- In computing the period of two years referred
to in this section, the period during which any action or
proceeding to be taken in pursuance of the said declaration is
stayed by an order of a Court shall be excluded."
6.3. Therefore, it is clear that an award is required to be
passed within two years from the date of declaration made under
Section 6 of the erstwhile Land Acquisition Act, 1894. In the
present case, though the notification dated 14.12.2012 does not
suffer from any infirmities, the problem is compounded by the fact
that the State chose to pass an award only on 15.3.2014 by which
time, Act 30 of 2013 came into force.
6.4. Section 24 of Act 30 of 2013 provides for the lapsing of
the award under the earlier regime of land acquisition. Section
24(1) of the Act 30 of 2013 reads as under:
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"24. Land acquisition process under Act No.1 of 1894 shall
be deemed to have lapsed in certain cases. -
(1) Notwithstanding anything contained in this Act, in any
case of land acquisition proceedings initiated under the Land
Acquisition Act, 1894,-
(a) where no award under Section 11 of the said Land
Acquisition Act has been made, then, all provisions of this Act
relating to the determination of compensation shall apply; or
(b) where an award under said Section 11 has been made,
then such proceedings shall continue under the provisions of the
said Land Acquisition Act, as if the said Act has not been repealed.
(2) Notwithstanding anything contained in sub-section (1), in
case of land acquisition proceedings initiated under the Land
Acquisition Act, 1894, where an award under the said Section 11
has been made five years or more prior to the commencement of
this Act but the physical possession of the land has not been taken
or the compensation has not been paid the said proceedings shall
be deemed to have lapsed and the appropriate Government, if it so
chooses, shall initiate the proceedings of such land acquisition
afresh in accordance with the provisions of this Act:
Provided that where an award has been made and
compensation in respect of a majority of land holdings has not been
deposited in the account of the beneficiaries, then, all beneficiaries
specified in the notification for acquisition under Section 4 of the
said Land Acquisition Act, shall be entitled to compensation in
accordance with the provisions of this Act."
6.5. A reading of Clause (a) of subsection (1) of Section 24
shows that when an award under Section 11 of the erstwhile Land
Acquisition Act has not been passed, then the provisions for
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determination of the compensation under the new Act shall apply.
This means the acquisition proceedings taken under the earlier Act
will not lapse, but the award has to be passed following the
prescribed procedure under the new Act.
6.6. Turning to the procedure prescribed under the new Act,
we find that there is substantial change in the procedure followed
while determining compensation. Section 26 of Act 30 of 2013
deals with the procedure, and Section 28 is the provision that deals
with the parameters to be considered by the Collector while
determining the compensation. This leads to a question as to what
is the legal status of the award passed on 15.3.2014.
6.7. The learned counsel appearing for the appellant as well
as Senior Counsel Sri. P.B. Krishnan, the learned Amicus Curiae
appointed by this Court would unanimously assert before this
Court that the award passed after coming into force of the new Act
has no legal sanctity.
6.8. To appreciate the above contention, we need to
elaborately consider the impact of the decision of the Hon'ble
Supreme Court in Indore Development Authority v. Manoharlal and
Others [2020 (8) SCC 129] wherein, the Constitution Bench of the
Supreme Court extensively considered the question of lapsing of
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the acquisition proceedings under the erstwhile Land Acquisition
Act on promulgation of Section 24. We deem it appropriate to
extract paragraph Nos.162, 163, 164,165 and 166 of the aforesaid
judgment as follows:
"162 . The Land Acquisition, Rehabilitation and Resettlement
Bill, 2011 (Bill No.77 of 2011) was introduced in the
Parliament. The provisions of S.24, as introduced in
the said Bill, read as under:
"24. Land Acquisition process under Act 1 of 1894 shall be
deemed to have lapsed in certain cases.- (1) Notwithstanding
anything contained in this Act, in any case where a
notification under Section 4 of the Land Acquisition Act, 1894
was issued before the commencement of this Act but the
award under Section 11 thereof has not been made before
such commencement, the process shall be deemed to
have lapsed and the appropriate Government shall
initiate the process for acquisition of land afresh in
accordance with the provisions of this Act.
(2) Where possession of land has not been taken, regardless
of whether the award under Section 11 of the Land
Acquisition Act, 1894 Act (1 of 1894) has been made or not,
the process for acquisition of land shall also be deemed to
have lapsed and the appropriate Government shall initiate
the process of acquisition afresh in accordance with the
provisions of this Act."
163. It is apparent from S.24(1), as introduced originally,
contained a provision with respect to award, which has not
been made, but it was later on amended, and now as provided
in S.24(1)(a), there is no lapse and only higher compensation
is available in case award has not been passed. The earlier
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Section 24(2) contained only the provision with respect to
possession of the land that has not been taken. Earlier, there
was no time limit prescribed, and it was proposed that the
process for acquisition of land shall lapse.
Clause 24 of Notes on clauses of Bill read thus:
"Clause 24 seeks to provide that land acquisition process
under the Land Acquisition Act, 1894 shall be deemed to have
lapsed in certain cases where the award has not been made
and possession of land has not been taken before the
commencement of proposed legislation."
164. After considering the various suggestions of the
State Government, the Committee made some
recommendations, which are extracted hereunder:
"16.5 The Committee note that Clause 24 of the Bill provides
that land acquisition cases/process shall be invalid on
enactment of the new Act in cases where Collector has not
given award or possession of the land has not been taken
before the commencement of the proposed legislation. Some
of the representatives of the industry and also the Ministries
like Railways and Urban Development submitted before the
Committee that land acquisition proceedings already
initiated under the existing Land Acquisition Act, 1894 should
not lapse as it would lead to time and cost overrun in many
infrastructural projects. However, in such cases land
compensation and R&R benefits could be allowed as per the
provisions of LARR Bill. The Committee would like the
Government to re - examine the issue and incorporate
necessary provisions in the Rules to be framed under the new
Act with a view to ensuring that the land owners / farmers /
affected families get enhanced compensation and R & R
package under the provisions of the LARR Bill, 2011 and at
the same time, the pace of implementation of infrastructural
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projects is not adversely impacted."
165. Debates in the Lok Sabha on 29.8.2013, were referred
to during the hearings, to cite various reasons given in
respect of the question why effect should be given
retrospectively in cases where acquisition has not been
completed. Shri Jairam Ramesh, Minister concerned at the
relevant time, replied to debate about the retrospective
part with respect to Section 24 thus:
"... The hon'ble member has also raised question about
retrospective clause. This is about Section 24 under which it
has been provided that if the award has not been passed
under the previous law than the new law will be applicable.
Secondly, if the award has been passed and no compensation
has been given and no physical possession has been taken the
new law will be applicable. The third situation where this
clause will be applicable is when award has been passed but
farmer has not been given more than 50 per cent
compensation which will entail enforcement of this law. The
hon'ble member and several others have raised this
apprehension that this Act will ultimately give vast powers to
the bureaucracy. In regard to this apprehension I would like
to say that we have fixed time limit at every level of the
procedure and I hope that the states will adhere to these
timelines." (emphasis supplied)
166. It is clear that while replying to the debate, the Minister
concerned has stated that there would be lapse only if in case
possession has not been taken and compensation has not
been paid. The emphasis right from the beginning was on
possession. Thus, from the perusal of debate too, it is
apparent that the word "or" had been understood as "and"."
6.9. The Supreme Court, after analysing the debates in the
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Lok Sabha as regards the element of lapsing of the earlier land
acquisition proceedings, made the final analysis of Section 24 of
Act 30 of 2013 as follows:
"191. S.24(1)(a) operates where no award is made in a
pending acquisition proceeding; in such event all provisions
of the new Act relating to determination of compensation
would apply. S.24(1)(b) logically continues with the second
situation, i.e. where the award has been passed, and states
that in such event, proceedings would continue under the
1894 Act. S.24(2) - by way of an exception, states that where
an award is made but requisite steps have not been taken
for five years or more to take possession nor compensation
has been paid then there is lapse of acquisition. If one of the
steps has been taken, then the proviso can operate. Time is
the essence. It is on the basis of time - lag that the lapse is
provided and in default of payment for five years as provided
on failure to deposit higher compensation is to be paid. It is
based on that time - lag higher compensation has to follow.
It is not the mere use of colon under Section 24(2) but the
placement of the proviso next to Section 24(2) and not below
Section 24(1)(b). Thus, it is not permissible to alter a
placement of proviso more so when it is fully in consonance
with the provisions of Section 24(2). Section 24(2)
completely obliterates the old regime to the effect of its
field of operation. Under Section 24(1)(a), there is a partial
lapse of the old regime because all proceedings, till the
stage of award are preserved. The award, in such
proceedings, made after coming into force of the 2013 Act
has to take into account its provisions, for determination of
compensation. Thus, proceedings up to the stage of the
award are deemed final under the old Act. In the case under
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Section 24(1)(b), the old regime prevails. The proviso is an
exception to Section 24(2) and in part the new regime for
payment of higher compensation in case of default for 5
years or more after award."
6.10. On a close exploration of the principles expounded by
the Hon'ble Supreme Court, we are definite in our view that though
the proceedings for the acquisition of the land in question would
not lapse, the award passed on 15.3.2014 is certainly without
jurisdiction and therefore the award does not have the efficacy of
law.
6.11. In Maharashtra Vidarbha Irrigation Development
Corporation v. Mahesh and Others [2022 (2) SCC 772] the Hon'ble
Supreme Court considered the issue once again and it was held
that Clause (a) to Section 24(1) of the 2013 Act would apply as the
land acquisition proceedings initiated under the earlier regime
had not culminated into an award till the repeal of the Land
Acquisition Act, 1894. Section 24(1)(a) partly nullifies the legal
effect of the saving clause under Section 6 of the General Clauses
Act as it hybridizes the application of the 1894 Act and 2013 Act.
The validity of the acquisition proceedings under the earlier Act
is certainly preserved. Paragraph No.15 and 16 of the said
judgment reads as under:
" 15. In the present case, clause (a) to Section 24(1) of
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the 2013 Act would apply as the land acquisition
proceedings initiated under the 1894 Act had not
culminated into an award till the repeal of the 1894 Act.
Section 24(1)(a) partly nullifies the legal effect of savings
under Section 6 of the General Clauses Act as it
hybridizes application of the 1894 Act and the 2013 Act.
While preserving validity of the acquisition proceedings
by issue of declarations under the 1894 Act, it states that
all the provisions for determination of compensation
under the 2013 Act shall apply. The section consciously
saves the legal effect of the notifications issued under
Section 4 and / or Section 6 of the 1894 Act and obviates
the necessity to issue a fresh notification under the 2013
Act. This "perseveration of the determination date" for
the computation of compensation for the awards made
under Section 24(1)(a) of the 2013 Act is a thought
through legislative invocation that curtails time delays
and cost escalation of infrastructure projects, as well as
checks the post - acquisition notification malpractices,
and at the same time ensures that the landowners are
entitled to the benefit of the enhanced compensation as
per the 2013 Act.
12. In Indore Development Authority v. Manoharlal and
Others (2020 KHC 6270 : (2020) 8 SCC 129 : 2020 (4)
SCC (Civ) 496] (Lapse - 5 Judges), a Constitution Bench
held that where proceedings for acquisition had been
initiated under the 1894 Act but no award under Section
11 of the 1894 Act had been made, the provisions of the
2013 Act would apply limited to determination of
compensation. Where, however, an award had been made
under the 1894 Act, clause (b) to Section 24(1) protects
the vested rights of the parties. We need not, for the
purpose of the present case, elucidate the ratio of the
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aforementioned judgment on interpretation of Section
24(2) of the 2013 Act, but it is apposite to notice that the
Constitution Bench has emphasised that the 2013 Act
provides for higher compensation along with provisions
for rehabilitation, and that this intended benefit,
wherever applicable, should not be taken away. At the
same time, on the aspect of legal interpretation, it is
observed that full effect has to be given to the provisions
contained in Section 24 as it is not for the Court to
legislate. The Courts can and do, in appropriate cases,
clear ambiguity in legislations."
6.12. On a cumulative consideration of the principles laid
down by the Supreme Court in Indore (Supra) and Maharashtra
Vidarbha (Supra), we are inclined to hold that the proceedings
taken by the State for acquiring the land in question will not lapse
but the award passed on 15.3.2014 is null and void.
7. The applicability of the doctrine of eminent domain.
It must be remembered that when the State seeks to deprive
the citizen of the right over the property, it exercises the power
conferred on it under the doctrine of eminent domain. The said
principle allows the Government to take private property for a
public use, which is also known as forced acquisition or
expropriation. This principle highlights the balance between
promoting societal welfare and protecting private property rights.
Historically, the ethical implications and practical applications of
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the aforesaid doctrine have been subjected to intense public
debate. The Government can acquire the land if it is reasonably
shown that the property is to be used for public purposes. The State
can acquire the land under eminent domain laws as long as the
property owner is compensated at a fair market value. The
contemporary idea of eminent domain stems from the English
Common Law, where the crown's power to acquire private property
for a greater good was established. Gradually this idea transformed
into a more systematic legal framework, encompassing restitution
to safeguard the landowners from unjust expropriation. It is
precisely keeping in mind the sound principles governing the
exercise of the power under the aforesaid doctrine that the
provisions of the Land Acquisition Act, 1894 were enacted. A
reading of the preamble of the Act 30 of 2013 and the statement of
objects gives a fair indication about the concerns/shortcomings
that were expressed in the implementation of the erstwhile Land
Acquisition Act, 1894 and hence mentions fair compensation for
acquiring private land and a fair rehabilitation of the landowners
and those affected by the acquisition of the land became more
important. It is perhaps with the belief that a combined approach
was necessary, one that legally explains the clauses of
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rehabilitation and resettlement and assists the Government in
acquiring the land for a public purpose, the Act 30 of 2013 was
enacted. When we look into the salutary principles which guided
the Parliament to enact the Act 30 of 2013, the right to receive
compensation to a compulsory acquisition though not enshrined
under Article 300A of the Constitution of India became imbibed
under the said Article thereby casting an obligation on the State to
pay adequate compensation to an individual once the property is
sought to be acquired.
8. On the touchstone of the principles as enunciated by us
above, when we investigate the action of the State in the present
case, it certainly falls short of the purpose for which Act 30 of 2013
was enacted. Such a colourable exercise of power by the State in
passing an award under the erstwhile regime of the Land
Acquisition Act, 1894, despite the coming into force of the new
enactment, is clearly arbitrary and illegal, thus, calling for a further
scrutiny by this court.
9. Though the appellant raised this issue before the reference
court, the reference court concluded that since the appellant,
immediately after the arguments were over, endorsed in the
application that he was satisfied with compensation under the
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erstwhile Land Acquisition Act, 1894, the contention on the
efficacy of the award stood waived by the claimant.
10. Applicability of the Doctrine of Waiver
'Waiver', as the word suggests is giving up consciously a right
which is conferred upon an individual. Waiver can be that of an
individual right, a contractual right, or even a statutory right. The
law regarding waiver needs no further exposition at our hands
especially since it is now settled that even if a provision of law is
mandatory in its operation, if such provision deals with the
individual rights of a person concerned and the same is for his
benefit, the same can be waived by the said person. Before delving
deep into this issue, let us first consider whether the appellant had
any vested right or any right accrued under the earlier regime of
land acquisition, namely the Land Acquisition Act 1894.
11. A "right accrued" is certainly saved by the saving clause
under Section 6 of the General Clauses Act, 1897. However, the
mere right, existing on the date of repeal of the Statute, to take
advantage of the provision of the repealing Statute is not a right
accrued within the meaning of the saving clause. [ See Abbot Vs
Minister for Lands [(1895) AC 425] & G. Ogden Industries Pvt. Ltd
Vs. Heather Doreen Lucas [(1969) 1 ALL ER121]
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12. In this context, it is worthwhile to extract the
observations of Lord Atkin's observations in Hamilton Gell v. White,
[1922 (2) KB 422 : 38 TLR 829]. "It is obvious that that provision
was not intended to preserve the abstract rights conferred by the
repealed Act, such for instance as the right of compensation for
disturbance conferred upon tenants generally under the Act of
1908, for if it were the repealing Act would be altogether
inoperative. It only applies to the specific rights given to an
individual upon the happening of one or other of the events
specified in the statute."
13. The observations of Lord Atkin in Hamilton Gell v. White,
[1922 (2) KB 422 : 38 TLR 829 were quoted with approval by the
Supreme Court in Lalji Raja & Sons v. Firm Hansraj, [(1971) 1 SCC
721 : (1971) 3 SCR 815]
14. In Halsbury's Laws of England Volume 36 of Page 444 it
is stated as follows:
"A statutory right which is granted in privilege may be waived
either altogether or in a particular case."
15. The above passage from Halsbury's Laws of England was
quoted with approval by the Supreme Court in Vijay Cotton and Oil
Mills Ltd vs. State of Gujarat [1969 (2) SCR 60] wherein it was held
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that if all persons interested in the land, waive the benefit of
procedure under Section 5-A, the government may lawfully issue a
composite notification under Sections 4(1) and 6(1) of the Act.
16. In Lachoo Mal v. Radhey Shyam [1971 (1) SCC 619], the
Supreme Court held that as a general principle, everyone has a
right to waive and to agree to waive the advantage of a law or rule
made solely for the benefit and protection of the individual in his
private capacity which may be dispensed without infringing any
public right or public policy. Thus the maxim which sanctions the
non-observance of the statutory provisions is "cuilibet licet
renuntiare Juri pro se introducto ".
17. As a general rule, any person can enter into a binding
contract to waive the benefits conferred upon him by an Act of
Parliament or, as it is said, can contract himself out of the Act
unless it can be shown that such agreement is in the circumstances
of a particular case contrary to the public policy. In India,
contracting out of the Statute is prohibited under Section 23 of the
Indian Contract Act, 1872. Therefore, when we read the purpose
of Act 30 of 2013, it becomes clear that the Statute is one for the
benefit of general public and contracting out of the same will defeat
the public policy.
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18. In Commissioner of Customs, Mumbai vs. M/s Virgo
Steels [2002 (4) SCC 316], the Supreme Court considered the
question as to whether a mandatory requirement of the Statute can
be waived by the party concerned. In answering this question, the
Court said that "we are aided by a catena of judgments of this
Court as well as the Privy Council." We shall first refer to the
judgment of the Privy Council which has been consistently followed
by the Supreme Court in a number of subsequent cases involving
similar points.
19. In Vellayan Chettiar v. Govt. of Province of Madras [AIR
1947 PC 197], the Privy Council held that even though Section 80
of the Civil Procedure Code is mandatory, still non-issuance of such
notice would not render the suit bad in the eye of law because of
such non-issuance of notice can be waived by the party concerned.
In the said judgment, the Privy Council held that the protection
provided under Section 18 is a protection given to a person
concerned, and if, in a particular case, that person does not require
the protection, he can lawfully waive his right.
20. In Dhirendra Nath Gorai v. Sudhir Chandra Ghosh [AIR
1964 SC 1300] the Supreme Court followed the judgment in
Vellayan Chettiar (Supra) and held that even though the
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requirement of Section 35 of the Bengal Moneylenders Act is
mandatory in nature, such mandatory requirement could be waived
by the party concerned, since on a true construction of Section 35
of that Act, the Supreme Court was of the view that the said Section
is intended only for the benefit of the judgment-debtor and,
therefore, he can waive the right conferred on him under the said
section.
21. In Sidheswara Cooperative Bank Ltd. vs. Iqbal [2013 (10)
SCC 83], the Supreme Court considered the question as to whether
a borrower can waive the mandatory period of thirty days in issuing
the sale under the provisions of the Security Interest Enforcement
Rules, 2002 and held that the provisions contained under the Act
and the Rules are intended only for the benefit of the borrower, the
right can be waived by the individual borrower.
22. The principles discussed above also finds a place in the
book authored by Spencer Bower and Turner on Estoppel by
Representation, 3rd Edition, where the learned author has carved
out succinctly the principles governing the waiver of a right by an
individual. The learned authors have expressed their views
at page No.143 as follows:
"If the public, or a class or section of the community, are
interested, as well as himself, in the general observance of the
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conditions prescribed by the statute, it has always been held on the
ground of public policy that there can be no waiver, even by express
contract or consent, of the right to such observance by any individual
party; but where, on the other hand, no public interest, and no interest
intended to be promoted or protected by the statute, is in the least
affected by the contract or consent to waive, and the matter is one
which concerns the parties alone, such contract or consent has never
been interfered with, but on the contrary has always been enforced. So
also, in cases of waiver by conduct which gives rise to an estoppel, the
same essential distinction has always been observed. On the one side
of the line are the cases where the estoppel or waiver, if allowed, would
defeat the objects of the statute, and injure the interests of the public,
or of persons other than the immediate parties, and where therefore
the affirmative answer of illegality has prevailed, and the estoppel has
been defeated". (R.v. Blenkinsop [1892 (1) Q.B.43]
23. The ratio decidendi culled out from the decisions of the
Supreme Court and the discussions by us above would irresistibly
lead to a conclusion that even though a provision of law is
mandatory in its operation, if such provision is one which deals
with the individual rights of the person concerned and for his
benefit, the said person can always waive such a right.
24. Whether Waiver is permissible when the element of
public duty is involved.?
24.1. We deem it appropriate to consider this issue especially
since the reference court proceeded to answer the reference solely
on the ground of waiver. Normally, when a question of waiver is
presented before the court, the courts will have to see whether the
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right sought to be waived imposes a corresponding duty on the
State. It is an element in the concept of property that the right to
it can be given up if the owner thinks fit. Where the right is
conferred by the Act, this liberty to renounce is precluded only
where the Parliament so intends. Such an intention may exist on
grounds of public policy, or where other persons have an equal
right which might be adversely affected by renunciation. The
intention may be set out expressly, or may be left to be inferred.
See Francis Bennion on Statutory Interpretation Second Edition].
24.2. The author in his book at Page 37 goes on to opine that
where a person is entitled by virtue of a legislation to the
performance of a duty by another and the case is within the
principle pacta privata juri publico derogare non possunt (a public
right is not overridden by an agreement of private persons), then
the person under the duty cannot effectively contract out of
performing it and the beneficiary cannot effectively waive his
performance.
24.3. The question whether it is possible to contract out, or
waive performance, of a statutory duty depends as always on the
wording of the legislation. A well-drafted modern Act makes the
matter clear. The aforecited maxim derives at a time when such
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clarity was rare, Acts were the subject of the disorganised
composition. The aforesaid rule was applied in relation to a
protective provision concerning insurance policies. In Equitable
Life Assurance Society of USA vs. Reed [1914 AC 587]. Lord
Dunedin said, " their lordships have no doubt that this section
intended to lay down a rule of public policy and it is impossible for
either an assured or an assurer to contract himself out of it or to
waive its effect."
25. When the aforesaid rule is applied to the modern context
of interpretation of the Act 30 of 2013, we find that the District
Collector or the Land Acquisition Collector was obliged to follow
the procedure laid down under the new Act. The non-adherence to
the provisions will render the award void and the State cannot
clothe the award with a legal colour on the ground of waiver and
apply it against the mandate of Article 300A of the Constitution of
India.
26. There is yet another reason as to why the plea of waiver
must fail. The right to hold property is a constitutional right
guaranteed under Article 300A of the Constitution of India. When
a forceful acquisition of property by the State in the exercise of the
power of "eminent domain", the claimant has every right to receive
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just and equitable compensation. Once we read the right to receive
just and equitable compensation as a right embodied under Article
300A of the Constitution of India, then it becomes imperative for
us to hold that the right to receive compensation becomes a
constitutional right as well as a human right. This will lead to a
larger question before us as to whether a constitutional right can
be waived by a party.
27. In Dharnidhar Mishra v. State of Bihar [2024 (10) SCC
605] the Supreme Court held that the right to property ceased to
be a fundamental right by the Constitution (Forty-fourth
Amendment) Act, 1978, however, it continued to be a human right
in a welfare State, and a constitutional right under Article 300-A of
the Constitution. Article 300-A provides that no person shall be
deprived of his property save by authority of law. The State cannot
dispossess a citizen of his property except in accordance with the
procedure established by law. The obligation to pay compensation,
though not expressly included in Article 300-A, can be inferred in
that Article.
28. In N. Padmamma v. S. Ramakrishna Reddy [ (2008) 15
SCC 517], the Supreme Court held that if the right of property is a
human right as also a constitutional right, the same cannot be
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taken away except in accordance with law. Article 300-A of the
Constitution protects such right. The provisions of the Act seeking
to divest such right, keeping in view of the provisions of Article
300-A of the Constitution of India, must be strictly construed.
29. In Kolkata Municipal Corporation & Another v. Bimal
Kumar Shah and Others [(2024) 10 SCC 533], the Supreme Court
formulated seven sub-rights or strands of this swadeshi
constitutional fabric constituting the right to property. Paragraph
30 of the judgment reads as under.
"30. What then are these sub-rights or strands of this swadeshi
constitutional fabric constituting the right to property? Seven such
sub-rights can be identified, albeit non-exhaustive. These are:
(i) The duty of the State to inform the person that it intends to
acquire his property -the right to notice.
(ii) The duty of the State to hear objections to the acquisition - the
right to be heard,
(iii) The duty of the State to inform the person of its decision to
acquire- the right to a reasoned decision.
(iv) The duty of the State to demonstrate that the acquisition is for
public purpose - the duty to acquire only for public purpose,
(v) The duty of the State to restitute and rehabilitate- the right of
restitution or fair compensation,
(vi) The duty of the State to conduct the process of acquisition
efficiently and within prescribed timelines of the proceedings -the
right to an efficient and expeditious process, and
(vii) The final conclusion of the proceedings leading to vesting - the
right of conclusion."
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30. Therefore, we conclude that the right to hold property
under Article 300-A is a Constitutional right as well as human right.
That leads to another vexatious question: Can the party waive the
said right? In this regard we find that there is a considerable
difference between the American Constitution and our Constitution
which combines the Rule of Law propagated by British Constitution
and equal protection clause under the 14th Amendment to the
American Federal Constitution.
31. In Behram Khursid Pesikaka Vs State of Bombay [(1955)
1 SCR 613], the Supreme Court considered this pivotal question
and held that the doctrine of waiver of the constitutional rights as
propounded certain American Judges interpreting the American
Constitution cannot be applied to our Constitution. It was
ultimately held that the said theory has no application so far as the
rights guaranteed under Part III of our Constitution is concerned.
32. In Basheshar Nath Vs Commissioner of Income Tax Delhi
& Rajasthan and Another [(1958) SCC Online 7] the Supreme Court
reiterated that the rights guaranteed under Part III of the
Constitution cannot be waived by the individual. But, we must note
that at the time when the Supreme Court rendered the Judgment,
Article 19(1) (c) was there in the Constitution.
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33. The situation however underwent a change when the
Constitution (Forty Fourth Amendment) Act 1978 was promulgated
by which Article 19(1)(c) was omitted. Instead of Article 19(1)(f),
Article 300-A was inserted. Does the insertion of Article 300-A
change the principles enunciated by the Supreme Court in
Basheshar Nath(supra).
34. We are inclined to think that it does not. The reason
being the enlargement of the scope of Article 21 of the Constitution
through Judicial Interpretation. Once the right to hold the property
is considered as a Human Right then the same will automatically
fall with the folds of Article 21 of the Constitution of India. But at
the same time, it may not be possible to hold that any attempt to
deprive the person his right to hold property will offence Article
21.
35. In Chameli Singh Vs State of U.P. [(1996) 2 SCC 549] a
three bench of the Supreme Court, enumerating the components
of Article 21 of the Constitution of India, held that that the right of
the State to acquire property through eminent domain will not
amount to deprivation of right to livelihood. Acquisition in
accordance with procedure is valid exercise of power.
36. What happens if the acquisition is not accordance with
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procedure? Does it offend Article 21 of the Constitution of India?
We are inclined to think that violation of the procedure established
by law for acquisition of land will offend Article 21 of the
Constitution of India primarily for the reason that the Right to Life
guaranteed under Article 21 includes Right to Shelter which is a
fundamental right enshrined under Article 19(1) (e). [see U.P.Avas
Evam Parishad Vikas and another Vs Friends Cooperative Housing
Society Ltd and Another [1995 Supp (3) SCC 456)].
37. In N.D. Jayal Vs Union of India [(2004) 9 SCC 362] the
Supreme Court held that rehabilitation of the oustees is a
necessary corollary of Article 21 of the Constitution of India.
Therefore we are inclined to hold that a citizen cannot tell the state
that you can discriminate by waiving the right under Article 21.
38. Thus, we see no reason not to hold that the right to hold
property has a close nexus with Right to Life under Article 21 and
the right to hold the property being a constitutional right and a
human right is intertwined with Article 21 any decision to deprive
the said right can only be done by awarding a just and equitable
compensation and thus cannot be waived by the land owner.
Accepting the proposition would go against the constitutional
mandates but also would go against the public policy of the State,
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which led to the enactment of the Right to Fair Compensation,
Rehabilitation and Resettlement Act, 2013. Therefore, we hold that
the reference court erred egregiously in holding that it had the
jurisdiction to consider the reference because the appellant had
waived his right to get compensation under Act 30 of 2013 and
chose to confine his right to the erstwhile Land Acquisition Act,
1894.
39. Even if we are to assume for a moment that the right to
hold property is only a Constitutional right, even then it will be
difficult for us to uphold the order of the reference court . It is true
that Article 300-A provides that the right to property can be
deprived through due process of law. The due process means
initiating measures under the Act 30 of 2013. The state cannot
justify its action or failure to follow the procedure under Act 30 of
2013 on the ground that the landowner has waived his right under
the new Act. Upholding the said view may lead to anarchy
permitting the State to violate the constitutional mandate. We are
thus of the view that the protection of the right to property under
Article 300A cannot be unilaterally waived by an individual or
authority, as it is a constitutional right. However, it can be
restricted or deprived of only in accordance with valid laws passed
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by the legislature and subject to constitutional procedures thereby
casting an obligation on the state to follow the due process of law
thereby creating a balance between individual property rights and
public or state interest under the framework of the Indian
Constitution.
40. Incidentally, we may also consider whether a party can
waive the right under the Statute and opt for a right which was
never there, since the earlier Statute stood repealed. This
according to us assumes significance especially since the reference
court negated the challenge to the award on the ground that the
claimant has waived his right to receive the compensation under
the new Act.
41. When a Statute is repealed, there is no right accrued
within the meaning of the usual saving clause. Normally, when a
statute is repealed, the repeal and saving clause under Section 6
of the General Clauses Act will come in aid to protect any action
that is taken in pursuance to the repealed provisions. It is in this
context the observations of Lord Atkin in Hamilton Gell vs. White
[(1922) 2 KB 422] assumes significance. In this case, when the
erstwhile Land Acquisition Act was repealed, the Collector was
obliged to pass the award after following the procedure under the
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new Act. Therefore, we are of the view that as of 1.1.2014, when
Act 30 of 2013 came into force, there was no vested right accrued
in favour of the appellant to enable him to waive his right to get
the benefit of the erstwhile regime of the land acquisition.
Lack of Jurisdiction of Reference Court
42. That leads us to the final question as to whether the
reference court on a finding that the award is unenforceable in law
could have set it aside? The power of the reference court under
Section 18 is to judge whether the compensation granted by the
Land Acquisition Officer was adequate or not. Going by the scheme
of Section 18, we find that the reference court can only answer the
question which is referred before it, that is, whether the quantum
of compensation awarded by the Collector is adequate or not.
Aggrieved by an order answering the reference under Section 18,
the party can prefer an appeal under Section 54 of the erstwhile
Land Acquisition Act, 1894. Thus, in the present case, ideally, the
award passed by the Land Acquisition Officer ought to have been
challenged by the appellant before this Court in appropriate
proceedings especially since the Land Acquisition Act, 1894 having
stood repealed with effect from 1.1.2014, a reference under
Section 18 could not have been maintained except in cases where
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the award was passed prior to 1.1.2014. We say so because, the
party aggrieved by the compensation awarded to him under the
provisions of the new Act shall have the right to move before the
Land Acquisition, Rehabilitation and Resettlement Authority
constituted under Section 51 of the Act 30 of 2013. Instead of
adopting the said recourse, the appellant, on a misconception,
continued to prosecute the application under Section 18 and
thereafter carried forward the challenge before this Court in the
present appeal. This leads to a question whether, in the present
appeal, we can exercise the power of the appellate court and
correct the error which has crept into while passing the award by
the Land Acquisition Officer. The answer to this question would
perhaps lie under Article 215 of the Constitution of India.
43. The High Court's power under Article 215 is of the widest
amplitude. The High Court can determine its own powers in an
unlimited manner to render justice. Prima facie, no matter is
deemed beyond the jurisdiction of a superior court unless it is
expressly shown to be so. It must also be borne in mind that even
when we are exercising the appellate jurisdiction under Section 54
of the erstwhile Land Acquisition Act 1894, we are not precluded
from exercising our inherent power to set right the illegality
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perpetuated by the State and the injustice caused to the appellant
due to the jurisdictional error committed by the reference court.
Therefore, we are of the view that the award dated 15.3.2014 as
well as the judgment and decree of the Sub Court, Thalassery in
L.A.R. No.1 of 2016 requires to be interfered with. Therefore, we
set aside the award as well as the judgment and decree of the
reference court and remand the matter back to the District
Collector, Kannur for the purpose of redetermining the market
value of the land in accordance with the principles governing the
determination of the same under Section 26 of Act 30 of 2013 and
pass an award determining the compensation under Section 27 and
disburse the same to the appellant at any rate within a period of
six months from the date of receipt of a copy of the judgment. We
also take note of the fact that during the pendency of the appeal,
the State has deposited the compensation as ordered by the
reference court and the appellant has withdrawn the same from
the Sub Court, Thalassery. We make it clear that on
redetermination of the compensation, the State is required to
deposit only the balance amount after deducting the amount of
Rs.29,75,414/- deposited before the Sub Court, Thalassery. The
appeal is thus allowed. The cost made easy.
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44. Before parting with this case, the Court would like to
express our deep appreciation and gratitude to the learned Senior
counsel Shri. P.B. Krishnan, appointed as Amicus Curiae in this
case. Senior Counsel's unparalleled legal acumen, impeccable
presentation of the law, and commitment to assisting the Court in
navigating the complexities of the issues presented have been
invaluable. The Court recognizes the effort of the learned Senior
counsel contributing significantly to the fair and just resolution of
the case and the Court is deeply appreciative of the contributions
made.
Ordered accordingly.
Sd/-
DR. A.K. JAYASANKARAN NAMBIAR
JUDGE
Sd/-
EASWARAN S.
JUDGE
NS
