| SooperKanoon Citation | sooperkanoon.com/1181468 |
| Court | Kerala High Court |
| Decided On | Jan-18-2016 |
| Case Number | WA. No. 559 of 2008 (A) |
| Judge | The Honourable Chief Justice Mr. Ashok Bhushan &Amp; A.M. Shaffique |
| Appellant | Haji A. Abdul Rashid and Others |
| Respondent | The Special Tahsildar (L.A. General) and Others |
Ashok Bhushan, C.J.
1. This Writ Appeal has been filed against the judgment dated 14.02.2008 in W.P(C) No.31996 of 2006 by which judgment the Writ Petition filed by the petitioners has been dismissed.
2. Brief facts giving rise to the Writ Appeal are:
For the purpose of constructing a new Railway Line from Thrissur to Guruvayoor, land acquisition proceedings were initiated. The Special Land Acquisition Officer gave award dated 21.12.1990, 29.12.1990 and 20.01.1991 in respect of the petitioners' land. Some of the land owners covered by the very same Notification made application under Section 18 of the Land Acquisition Act, 1894 (for short, the Act ) being L.A.R. No.2 of 1994 and others. The Sub Court, Thrissur by judgment and order dated 31.10.2001 enhanced the compensation payable to them as Rs.51,850/- per Are. Petitioners filed applications under Section 28A for redetermination of the compensation on the basis of the judgment dated 31.10.2001 in L.A.R. No.2 of 1994, on 20.12.2002. Applications filed by the petitioners were rejected by orders dated 09.10.2006, 11.10.2006 and 28.10.2006. Against the award of the Sub Court, Thrissur dated 31.10.2001, an appeal was also filed before this Court being L.A.A. No.1401 of 2002, which appeal came to be dismissed by judgment dated 12.12.2005. Petitioners thereafter filed separate applications for reference under Section 28A(3). Challenging orders rejecting their applications under Section 28A, petitioners filed W.P(C) No.31996 of 2006 praying for the following reliefs:
(a) Call for the records leading to Ext.P4 series orders passed by the 1st respondent and quash the same by means of a writ of certiorari or other appropriate writ or order.
(b) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondent to reconsider Ext.P2 series applications filed by the petitioners under section 28A of the Land Acquisition Act and re-determine the compensation in the light of Ext.P1 award of the Reference Court.
(c) Grant such other reliefs which this Hon'ble Court feels just and proper to grant in the circumstances of the case.
The learned Single Judge dismissed the Writ Petition by judgment dated 14.02.2008. The learned Single Judge held that applications filed by the petitioners under Section 28A were barred by time since it was not filed within three months from the date of the award of the Sub Court. It was held that limitation for filing application under Section 28A shall be three months from the date of the award and cannot be counted from the date of dismissal of the appeal by the High Court on 12.12.2005. Aggrieved by the judgment of the learned Single Judge, this Writ Appeal has been filed.
3. Learned counsel for the petitioners in support of the Writ Petition contends that the applications could not have been filed by the petitioners under Section 28A in view of Rule 12A(v) of the Land Acquisition (Kerala) Rules, 1990 (for short, the 1990 Rules ) during the pendency of the appeal. Appeal against the award of the Sub Court was dismissed only on 12.12.2005 and the applications of the petitioners having been filed much before, i.e., 20.12.2002 the same could not have been rejected as barred by time. It is submitted that when the applications under Section 28A cannot be entertained during the pendency of an appeal, the limitation has to start from the date of decision of the appellate court.
4. Shri C.R.Syamkumar, learned Government Pleader, refuting the submissions of the learned counsel for the petitioners contends that limitation for filing application under Section 28A of the Act starts running from the date of the award given under Section 18 of the Act by the court and the award having been given on 31.10.2001 and petitioners having filed applications on 20.12.2002, i.e., more than a year after, the applications were rightly rejected as barred by time. It is contended that dismissal of the appeal on 12.12.2005 shall not give a fresh period of limitation to the petitioner. With regard to Rule 12A (v) of 1990 Rules it is contended that the said Rule only prohibits entertainment of application, i.e., consideration on merit. There cannot be any prohibition in filing the application within the limitation.
5. Learned counsel for the parties have placed reliance on various judgments of this Court and the Apex Court which shall be referred to while considering the submissions in detail.
6. We have considered the submissions and perused the records.
7. From the submissions of the learned counsel for the parties, the following are the issues which arose for consideration.
(I) Whether the limitation for filing application under Section 28A of the Act is three months from the date of award under Section 18 of the Act or the period of limitation can be availed by a claimant after decision in the appeal filed against the award under Section 18?
(II) Whether in the facts of the present case when award of the Sub Court under Section 18 of the Act was given on 31.10.2001 against which appeal being L.A.A. No.1401 of 2005 filed was dismissed only on 12.12.2005, applications filed by the petitioners under Section 28A on 20.12.2002, could have been rejected as barred by time?
(III) Whether Rule 12A(v) of the 1990 Rules prohibits even filing of an application under Section 28A or Rule 12A(v) can be read as only prohibiting consideration of application during the pendency of the appeal?
8. All the issues being interconnected are taken together.
9. Section 28A is a beneficial provision which gives entitlement to land holders who have not made reference under Section 18 of the Act but seeks to take advantage of the award given under Section 18 on an application by any other land holder covered by the same notification issued under Section 4(1) of the Act. Section 28A is as follows:
28A. Re-determination of the amount of compensation on the basis of the award of the court .- (1) Where in an award under this Part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under section 11I, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court
The period for limitation for filling application under Section 28A is provided in Section 28A(1) which is to the following manner.
Within three months from the date of the award of the court
The above words refer to the words used in the beginning of sub-section (1), where in an award under this Part, the Court allows to the applicant any amount of compensation awarded by the Collector under Section 11.
Part III to which reference is made contains Sections 18 to 28A which section was inserted by Act 68 of 1994 with effect frtom 24.9.1984. Thus the award referred to under Section 28A(1) is an award given under Section 18 by the court. An appeal to the High Court against the award by court is contemplated under Section 54 of the Act. Thus a plain reading of Section 28A(1) would indicate that the period of limitation of three months is provided from the date of the award of the court.
Further, Section 28A(1) contains a proviso which is to the following effect:
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
When the Legislature contemplated that for computing the period of three months, the day on which award was passed and the time required for obtaining a copy of the award is to be excluded, if the Legislature intended that period undertaken during the pendency of the appeal against the award of the court should also be excluded, the proviso would have been differently worded. What is to be excluded in computation of the three months from the date of the award having been specifically provided under the proviso to Section 28A (1), to accept the submission of the learned counsel for the petitioners that the period shall start running after decision of the appeal against the award of the court would be adding words to Section 28A(1) of the Act which is not permissible.
10. The issue is not res integra. The Apex Court has answered the issue in Jose Antonio Cruz Dos R.Rodriguese v. Land Acquisition Collector ([1996] 6 SCC 746). In the above case, the provision of Section 28A (1) in the context of limitation of three months came up for consideration. In the above case, the Land Acquisition Officer made an award on 02.08.1972. Reference was made under Section 18 of the Act which was disposed of on 24.06.1985 enhancng compensation. Another award was made on 14.10.1985. Appeal was filed against the award of the court in the High Court and the High Court by judgment dated 24.02.1987 reduced the rate. The appellant thereafter filed an application under Section 28A on 13.05.1987 for redetermination of the compensation for his plot of land. Application was dismissed as time barred by the Deputy Collector. That was questioned before the High Court. The High Court dismissed the application against which the matter was taken in appeal. The Apex Court held that the period of three months limitation is to be reckoned from the date of award by the court deciding the reference under Section 18 of the Act and not from the date of the appellate's court order deciding the appeal against the award of the reference court. The following was laid down in paragraphs 3 and 4:
3. Before examining the decisions of this Court on which the High Court has placed reliance, we deem it appropriate to first examine the plain language of S.28A extracted earlier. S.28A was inserted as the last Section in Part III entitled 'Reference to Court and Procedure thereon' by Act 68 of 1984. Part III begins with S.18 which provides that if an interested person does not accept the award made by the Collector under S.11 of the Act, he may, by a written application to the Collector, require that the matter be referred for determination of the Court. S.2 (d) defines the expression 'Court' to mean the Principal Civil Court of original jurisdiction unless a Special Judicial Officer has been appointed. Therefore, the Court referred to under S.18 can only mean the principal Civil Court of Original Jurisdiction. S.23 then sets out the matters to be taken into consideration in determining the compensation to be awarded for the acquired land, and S.24 indicates the matters to be omitted from consideration S.26 provides that the award shall be in writing signed by the judge which shall be deemed to be a decree within the meaning of clauses (2) and (9) of S.2 of the Civil Procedure Code, 1908. S.27 provides for costs to be awarded and S.28 provides for payment of interest on excess compensation. We then come to S.28A. The first part of the Section begins with the words 'where in an award under this part, Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under S.11 which clearly indicate that the legislature was talking of an award made under the provisions of part III, i.e., an award under S.11 and therefore, in that context, reference to 'Court' can only mean the Court to which a reference is made by the Collector under S.18. This position is further clarified when the Section refers to compensation awarded in excess of the amount awarded under S.11 of the Act. The second part of the Section then addresses 'the persons interested in all the other land covered by the same notification......and who are also aggrieved by the award' and permits them to make a written application to the Collector 'within three months from the date of the award of the Court' requiring him to redetermine the amount of compensation on the basis of the amount awarded by the Court, notwithstanding the fact that they had not sought a reference under S.18 of the Act. Thus, the newly added Section seeks to give the same benefit, which a person who had sought a reference and had secured the Court's award for a higher amount of compensation had received, to those who had, on account of ignorance or financial constraints, not sought a reference under S.18. In the latter part of the Section also, reference is to the award under S.11 and later, to the award of the reference Court under S.18 of the Act. Therefore, the Court referred to therein is again the Court referred to in S.2(d) of the Act, i.e., the Principal Civil Court of Original jurisdiction. The plain language of S.28A, therefore, prescribes the three months period of limitation to be reckoned from the date of the award by the Court disposing of the reference under S.18, and not the appellate Court dealing with the appeal against the award of the reference Court.
4. We may now refer to the case law. A two judge Bench of this Court in Babua Ram v. State of U.P., (1995 (2) SCC 689 : 1995 AIR SCW 65), dealt with this precise question and held that the period of limitation begins to run from the date of the first award made on a reference under S.18 of the Act, and successive awards cannot save the period of limitation; vide paragraphs 19 and 20 of the reporter. This view was reiterated by the same Bench in Union of India v. Karnail Singh, (1995 (2) SCC 728), wherein this Court held that the limitation of three months for an application for redetermination of compensation must be computed from the date of the earliest award made by a Civil Court, and not the judgment rendered by an appellate Court. This was followed by the decision of a three judge Bench in Union of India v. Pradeep Kumari, (1995 (2) SCC 736 : 1995 AIR SCW 1834), wherein it was held that the benefit under S.28A can be had within three months from the date of the award of the reference Court on the basis whereof redetermination is sought. The earlier two decisions in the case of Babua Ram and Karnail Singh were overruled on the limited question that they sought to confine the right to seek redetermination to the earliest award made by the Court under S.18 of the Act after the introduction of S.28A into the Act. There is, however, no doubt that the period of limitation has to be computed from the date of the Court's award under S.18 on the basis whereof redetermination is sought. Admittedly, in both the cases at hand, the applications for redetermination of compensation under S.28A were made long after the expiry of three months from the date of the award of the Court which constituted the basis for seeking redetermination. We are, therefore, of the opinion that the High Court was right in taking the view that both the applications were time barred.
The Apex Court while considering the period of limitation of three months under Section 28A(1) has held that the court means the court of original civil jurisdiction to which reference under Section 18 has been made and further the three months period starts from the date of the award and not from the date of knowledge. In Tota Ram v. State of U.P. ([1997] 6 280), the following was laid down in paragraph 3:
3. A reading thereof clearly indicates that a person whose land is acquired under a common notification issued under S.4(1) of the Act but who failed to avail of the remedy of reference under S.18, is eligible to make a written application within three months from the date of the award of the Court enhancing the compensation. It has been interpreted by this Court that the "court" means Court of Original Civil Jurisdiction to whom reference under S.18 would lie. Admittedly, the award of the reference court having been made on 18/05/1990, the limitation began to run from that date. The proviso to S.28A gives a right to the persons to obtain the certified copy of the award and decree and the time taken for obtaining the certified copy of the award and the decree shall be excluded in computing the period of three months. In view of the express language, the question of knowledge does not arise and, therefore, the plea of the petitioner that the limitation of three months begins to start from the date of the knowledge is clearly unsustainable and cannot be accepted. The High Court, therefore, is right in its decision in that behalf.
Thus the issue that the period of limitation of three months for filing application under Section 28A(1) from the date of award of the reference court has already been settled and view of the learned Single Judge that applications filed by the petitioners were barred by time is in accordance with the settled proposition of law.
11. Now we come to the submission of the learned counsel for the petitioners based on Rule 12A(v) of the 1990 Rules. The 1990 Rules contains Rule 12A which has been framed in reference to Section 28A of the Act. Rule 12A provides for procedure after receipt of an application under Section 28A for redetermination of the compensation. Rule 12A(v) which is relevant for the present case is quoted below:
12A. Re-dertermination of the amount of compensation on the basis of the award of the court.
....
(v) No application under Section 28A shall be entertained when a land acquisition appeal case is pending before a court.
The above Rule provides that no application under Section 28A shall be entertained when a land acquisition appeal is pending before a court. Sub-rule (v) of Rules 12A uses the word entertained . Whether sub-rule (v) has to be read as to prohibit even filing of an application under Section 28A during the pendency of the appeal or it only prohibited consideration of the application during the pendency of the appeal is the question to be answered.
12. The word entertain has been defined in P.Ramanath Ayar s Law Lexicon, 3rd Edn. in the following manner:
Entertain. The expresson entertain: means to admit a thing for consideration and when a suit or proceeding is not thrown out in limine but the Court receives it for consideration and disposal according to law it must be regarded as entertaining the suit or proceeding, no matter whatever the ultimate decison might be. Entertain means the first time a Court applied its mind to any matter. Premier Insurance Co. Ltd. v. Smt.Vidyawali, AIR 1978 All 264-266.
The word 'entertain' means to receive and take into consideration . Khatumol Charshandas v. Abdul Quadir Jamaluddin, AIR 1961 MP 295, 297 (Motor Vehicle Act, 1939, S.110-F).
The dictionary meaning of the word 'entertain' means either to deal with or admits to consideration . The expression 'entertain' does not mean same thing as filing of the appeal. Unless a deposit is made as provided by the section, the appeal though filed in Court cannot be entertained. Rajasthan State Road Transport Corporation v. Smt.Santhosh AIR 1995 Raj.2, 4. (Motor Vehciles Actes (59 of 1988), S.173).
The word entertain in the context of filing appeals, references, applications, has come up for consideration before different High Courts and Apex Court. In this context, judgment of the Apex Court in Hindusthan Commercial Bank Ltd. v. Punnu Sahu (Dead) through Legal representatives (AIR 1970 SC 1384) is relevant. The Apex Court had occasion to consider the provisions of Order XXI Rule 90 of the CPC as amended by the Allahabad High Court. The Rule provided that no application to set aside an award shall be entertained unless the conditions specified in clauses (a) and (b) of the Rules are satisfied. In the above context the Apex Court explained the word entertain in paragraph 4 of the judgment. The Apex Court clearly laid down the following in paragraph 4:
4. Before the High Court it was contended on behalf of the appellant and that contention was repeated in this Court, that Clause (b) of the proviso did not govern the present proceedings as the application in question had been filed several months before that clause was added to the proviso. It is the contention of the appellant that the expression. "entertain" found in the proviso refers to the initiation of the proceedings and not to the stage when the court takes up, the application for consideration. This; contention was rejected by the High Court relying on the decision of that court in Kundan Lal v. Jagan Nath Sharma AIR 1982 All 547 The same view had been taken by the said High Court in Dhoom Chand Jain v. Chamanlal Gupta AIR 1902 All 543 and Haji Rahim Bux and Sons v. Firm Samiullah and Sons, AIR1963All320 and again in Mahavir Singh v. Gauri Shankar, AIR1964All289 . These decisions have interpreted the expression "entertain" as meaning 'adjudicate upon' or 'proceed to consider on merits'. This view of the High Court has been accepted as correct by this Court in Lakshmiratan Engineering Works Ltd. v. Asst Commr., Sales Tax, Kanpur, [1968]1SCR505 . We are bound by that decision and as such we are unable to accept the contention of the appellant that Clause (b) of the proviso did not apply to the present proceedings . An earlier decision in Lakshmi Rattan Engineering Works Ltd. v. Asstt. Commr. Sales Tax, Kanpur and Anr. (1968 SC 488) is also relevant for the purpose of the present case. Section 9 of the UP sales Tax Act 1948 contained a proviso which provided that no appeal against an assessment order can be entertained unless it is accompanied by satisfactory proof of payment of tax admitted by the appellant to be due or such installment has become payable. In the above context, the Apex Court had occasion to examine the word entertain . While explaining the word entertain , the following was laid down in paragraphs 7 and 10:
7. To begin with it must be noticed that the proviso merely requires that the appeal shall not be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due. A question thus arises what is the meaning of the word 'entertained' in this context? Does it mean that no appeal shall be received or filed or does it mean that no appeal shall be admitted or heard and disposed of unless satisfactory proof is available? The dictionary meaning of the word 'entertain' was brought to our notice by the parties, and both sides agreed that it means either "to deal with or admit to consideration......."
10. In our opinion these cases have taken a correct view of the word 'entertain' which according to dictionary also means 'admit to consideration'. It would therefore appear that the direction to the Court in the proviso to S.9 is that the Court shall not proceed to admit to consideration an appeal which is not accompanied by satisfactory proof of the payment of the admitted tax. This will be when the case is taken up by the Court for the first time. In the decision on which the Assistant Commissioner relied, the learned Chief Justice (Desai C. J.) holds that the words "accompanied by" showed that something tangible had to accompany the memorandum of appeal. If the memorandum of appeal had to be accompanied by satisfactory proof, it had to be in the shape of something tangible, because no intangible thing can accompany a document like the memorandum of appeal. In our opinion, making 'an appeal' the equivalent of the memorandum of appeal is not sound. Even under 0.41 of the Code of Civil Procedure, the expressions "appeal" and "memorandum of appeal" are used to denote two distinct things. In Wharton's Law Lexicon, the word "appeal" is defined as the judicial examination of the decision by a higher Court of the decision of an inferior Court. The appeal is the judicial examination; the memorandum of appeal contains the grounds on which the judicial examination is invited. For purposes of limitation and for purposes of the rules of the Court it is required that a written memorandum of appeal shall be filed. When the proviso speaks of the entertainment of the appeal, it means that the appeal such as was filed will not be admitted to consideration unless there is satisfactory proof available of the making of the deposit of admitted tax."
The above judgment of the Apex Court thus clearly provides that the word entertain has to be read to mean adjudicate upon or proceed to consider on merits . The word entertain cannot be held to mean filing or receiving an application. A learned Single Judge of this Court while considering Rule 12A(v) of the 1990 Rules has held in Sophy Paul v. District Collector (2012 [3] KLT 909) that what is prohibited under Rule 12A(v) is to admit the application for consideration but it does not mean that actual filing is prohibited. In paragraph 15 of the judgment, the following has been laid down:
15. Although it is true that, in Nani v. District Collector, 1998 KHC 132 : 1998 (1) KLT 705 : 1998 (1) KLJ 727 and Thomas v. District Collector, 2000 KHC 338 : 2000 (2) KLT 160 it has been held by this Court that during the pendency of an appeal, an application under S.28A of the Act should not be disposed of, question to be considered in this case is whether in view of R.12A (v), pendency of an appeal enables the applicant to file the petition under S.28A within the 3 months from the date of disposal of the appeal. I have already referred to the Apex Court judgment in Jose Antonio Cruz Dos R. Rodriguese and Another v. Land Acquisition Collector and Another, 1996 KHC 992 : 1996 (6) SCC 746 : AIR 1997 SC 1915, where it has been held that the application has to be filed within 3 months of the award passed by the reference Court under S.18 of the Act. If I am to accept the contention of the learned counsel for the petitioner that in view of R.12A(v) of the Rules the 3 months period commences only after the disposal of the appeal, such a view will be contrary to the principles laid down by the Apex Court judgment and against S.28A itself. If such an interpretation is accepted, the Rule being a piece of subordinate legislation, it will have to be held invalid as being contrary to the parent Act. As far as R.12A(v) of the Rules is concerned, this Rule only prohibits "the entrainment" of an application during the pendency of the appeal. From the judgments referred to above, it is clear that the meaning of the word 'entertained' has to be understood in the context in which the legislature has used this word. Therefore if the meaning of the word is so understood, it means either to deal with or admit to consideration and it does not mean that the actual filing of the application under S.28A is postponed till the appeal is disposed of. If that be the legal position, Ext. P3 application dated 03/08/2010 and filed on 17/08/2010 for re - determination of the compensation under S.28A of the Act is not maintainable. In such circumstances, petitioner cannot seek any direction from this Court for the consideration of Ext. P3 application.
13. Learned counsel for the petitioners has relied on the judgment of the learned Single Judge in Thomas v. District Collector (2000 [2] KLT 160) where the learned Single Judge has held that clause (v) of Rule 12A of the 1990 Rules is invalid and ultra vires. In the above case an application was filed by the petitoner under Section 28A for redetermination. The application was rejected saying that an appeal is pending in L.A.R. No.289 of 1994. The Tahsildar has taken the view that in view of Rule 12A(v) no application under Section 28A shall be entertained when a land acquisition appeal is pending. In the above context, the learned Single Judge has held the following:
.....The Tahsildar has taken the view that under R.12A(v) of the Land Acquisition Rules, 1990, no application under S.28A shall be entertained when a land acquisition appeal case is pending before a Court. So far as the present case is concerned, it is now stated that the appeal filed has been dismissed. But even without ascertaining that the reference application under S.28A has been dismissed on the basis of clause.(v) of R.12A, I am of the view that Clause.(v) of R.12A of the Land Acquisition Rules, 1990 is invalid and is ultravires. What is guaranteed under S.28A of the Act is that a person who has not filed the reference application will be entitled to same compensation as that is given to a property covered by the same Notification and for which the enhanced value has been given by the Land Acquisition Court. As per S.28A a period of 3 months is prescribed for filing the application under S.28A. The Section does not give any power to dismiss the application on the ground that an appeal is pending. Such a Rule I am of the view is arbitrary. Merely because of an appeal is filed it does not mean that the award passed by the Sub Court has been set aside. In the facts of the present case, it is seen that the appeal has been dismissed. Thus the injustice done in the applications can be seen in the facts of the case itself. In such circumstances, I am of the view that when an appeal is pending, the course open to the authority is to pass an award making it subject to the final orders to be passed in the appeal and if the awardee insists on payment of the amount, the amount can be paid after getting security. To deny the benefit of S.28A to a person on the ground that appeal is pending is arbitrary and unconstitutional. So far as this case is concerned, it is now stated that the appeals have been dismissed. Hence I direct the second respondent, the Special Tahsildar (LA), Vyttila to reconsider the application under S.28A of the Land Acquisition Act and pass appropriate orders regarding compensation. Such orders shall be passed within a period of two months from the date of receipt of a copy of this judgment.
The observations made by the learned Single Judge in the above judgment were in the context of the reasoning given by the Tahsilar in rejectging the application under Section 28A. The learned Single Judge's view has to be read that in the event Rule 12A (v) is interpreted to mean that application cannot be entertained that shall become arbitrary, invalid and ultra vires.
14. We have already considered the meaning which has to be given to the word 'entertain' used in Rule 12A (v). Rule 12A(v) only prohibits consideration of application on merits/adjudication of application or admitting the application. But Rule 12A(5) cannot be mean that it prohibits even filing of the application. When limitation period is provided for filing application under Section 28A(1) holding that application cannot be filed if the appeal is pending shall be contrary to and not in accord with the object and purpose of Section 28A. In the case before the learned Single Judge reason given by the Tahsildar may not be correct and the view of the learned Single Judge in so far as it set aside the order can be said to be correct. However, the observations of the learned Single Judge in Thomas's case that the proivision of Rule 12A(v) are invalid and ultra vires cannot be approved. The aforesaid judgment is overruled to the above extent.
15. Learned counsel for the appellant has placed reliance on the decison in District Collector v. Athickal Muhammed Kunhi (2013 [1] KHC 13). In the above case, the Division Bench held that liberal interpretation has to given to Section 28A to give opportunity to owners of the land. The following was laid down in paragraph 17:
17. From the above decisions and provision of law the following principles emerge out. The goal of equality enshrined in the preamble of Constitution and Art.38, Art.39 and Art.46 are attempted to be made a reality by the legislature, so far as payment of compensation to the losers of the land for the benefit of the State, its agencies / instrumentalities and even private parties. Acquisition of land deprives the agriculturist of his livelihood and some times throws them to the streets. S.28A envisages solace to such owners of land whose lands are also acquired under the same notification but for various reasons like poverty, ignorance and other inabilities could not join others in seeking reference under S.18 of the Act for enhancement of compensation. The scheme under S.28A thrives at removing the disability suffered by the owners of land and removes the inequality, if any, so far as payment of compensation. This gives one more opportunity to the land owners who did not or could not seek reference under S.18 to seek higher compensation. It could be termed as beneficial legislation so far as land losers. Therefore, there has to be liberal interpretation with a purpose to champion the policy of the legislation giving opportunity to the owners of land who miss their chance by not filing an application under S.18 of the Act.
There cannot be any dispute to the proposition as laid down by the Division Bench in the aforesaid case that Section 28A envisages solace to such owners of land who could not make reference under Section 18 for enhancement of compensation. It is also relevant to note that even the Division Bench in the said case also held that the limitation for filing application under Section 28A of three months starts from the date of making the award and not from the date of knowledge of the award. In paragraph 18 the following has been laid down:
18. Though in Babu Ram's case (supra) their Lordships held, the starting point for computation of period of three months must be reckoned from the date of earliest award of reference Court, later in Pradeep Kumari's case (supra) this view is modified by saying redetermination of compensation could be sought on the basis of any one of the awards of the reference Court as long as it pertains to other lands but covered under the same notification where the claimant had not sought for reference earlier. The period of limitation would start running from the last award provided the award is subsequent to coming into force of S.28A of the Act if application is filed within three months from the date of making award on the basis of which redetermination of compensation is sought. Hence there is no restriction so far the earliest award. The limitation starts from the date of award and not from the date of knowledge of award. Time spent in obtaining copy is to be excluded.
The above case in no manner help the petitioners in the present case.
16. In view of the foregoing discussion we do not find any error in the judgment of the learned Single Judge which warrant any interference in the Appeal.
Writ Appeal is dismissed.