LAND ACQUISITION

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A Comment on Tota Ram v. State of U.P.
by K.C. Jain*

Cite as : (2001) 2 SCC (Jour) 21

I. Introduction

Section 28-A was incorporated in the Land Acquisition Act, 1894 (in short, "the LA Act") in the year 1984. It was with the laudable purpose of providing an effective mechanism for redetermination of compensation of those who cannot seek reference under Section 18 of the LA Act. The inability of the poor and inarticulate to avail the right of reference used to result in considerable inequality in the quantum of compensation for similar lands to different owners.

Section 28-A enjoins an application to be made "to the Collector within three months from the date of the award of the court". But whether the period of three months begins to run from the date of the court's award or from the date of the knowledge of the court's award. This issue directly arose for consideration, in Tota Ram v. State of U.P.1 wherein a Division Bench of the Supreme Court consisting of K. Ramaswamy and D.P. Wadhwa, JJ. ruled thus: (SCC para 3)

"The proviso to Section 28-A 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."2

Can a poor and inarticulate person who is not a party to the reference proceedings of other landowners know an award as and when made by the court? In fact, no one, much less an unprivileged person (one who could not move a reference application which requires no court-fee) can be expected to keep track of a reference and then also to know its award within three months of its making. The LA Act also does not envisage a notice of the making of the award by the Reference Court or the Collector to those who are not parties to it. Naturally, the provision enabling exclusion of the time spent on obtaining copy of the court's award is also not applicable to such parties. Hence, the stipulation for exclusion of time does not ipso facto manifest an otherwise legislative intent that the period of limitation for an application under Section 28-A is to run from the "date of award" and not from the "date of knowledge of the award."

It is submitted with respect that construction of the phrase "the date of the award of the court" in Tota Ram1 is not in conformity with the rules of construction; it rather goes against the very purpose of the enactment of the provision, virtually rendering the beneficial provision a futile legislative exercise. Section 5 of the Limitation Act is also not attracted to an application under Section 28-A, as the Collector is not "court". This, therefore, rules out the possibility of the Collector condoning delay on ground of want of the applicant's knowledge of the court's award.

Since in Tota Ram1 the Court did not have the benefit of earlier decisions, all aspects of the question were not gone into and as such its dictum needs reconsideration.

II. Legislative genesis

Before adverting to the precedents, it would be useful to know the legislative genesis of Section 28-A. It was to help the poor and inarticulate who failed to take advantage of reference under Section 18 resulting in unequal compensation.3

III. Tota Ram's dictum contrary to fair play and natural justice

Apparently, Tota Ram1 lays down a proposition of law, which does not conform to the rules of fair play and natural justice. A poor and inarticulate ex-landowner is made to lose his valuable remedy to seek redetermination as he is not entitled to move application for want of knowledge of the Court's award.

The celebrated judgment in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer4 which dealt with the controversy regarding construction of the proviso to Section 18(2) of the LA Act, was not considered in Tota Ram1 though it had a great bearing on the issue. The said proviso permits moving of a reference application within a period of six months of the Collector's award, if the applicant was not present or represented at the time of making of the award. The expression "from the date of the Collector's award", as appearing in the said proviso was construed in Raja Harish Chandra4 as "from the date of the knowledge of the Collector's award". But, most unfortunately, this reading resorted to by the Supreme Court was ignored in Tota Ram1.

In this case, the award was made, signed and filed in the Collector's office on March 25, 1951. No notice of the award was given to the person interested, and it was only on or about January 13, 1953 that the person interested received information about the making of the award. He then moved an application on February 24, 1953 under Section 18 requiring that the matter be referred for the determination of the court. The Collector took the view that the application was beyond the period prescribed under the proviso to Section 18 and so he rejected. The High Court proceeded on the literal construction of the relevant clause and upheld the Collector's order. On appeal the Supreme Court reversed the ruling. Gajendragadkar, J. (as he then was) reasoned thus:

"The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression 'the date of the award' used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively."5

This ratio was, thus, based on pragmatic approach of the Court to meet the essential requirements of fair play and natural justice.

Another decision of three-Judge Bench, comprising H.R. Khanna, V.R. Krishna Iyer and A.C. Gupta, JJ., in Madan Lal v. State of U.P.6 is also relevant. Therein, the "date of order" was also construed as the "date of knowledge of the order if passed without notice and in the absence". The question of maintainability of an appeal under Section 17 of the Indian Forest Act (1927) was in issue in that case. Section 17 of the Forest Act provided a right to appeal from an order passed by the Forest Settlement Officer under Section 11 and laid down a time limit of three months from the date of the order for presenting the appeal. The order under Section 11 was recorded by the Forest Settlement Officer on May 9, 1955 and the appeal under Section 17 was filed on July 20, 1956, which was obviously long after the expiry of three months. Against this factual matrix, A.C. Gupta, J., for the Bench, ruled thus:

"It is a fundamental principle of justice that a party whose rights are affected by an order must have notice of it. This principle is embodied in Order XX Rule 1 of the Code of Civil Procedure; though the Forest Settlement Officer adjudicating on the claims under the Act is not a court, yet the principle which is really a principle of fair play and is applicable to all tribunals performing judicial or quasi-judicial functions must also apply to him."7

He further held that:

"The High Court in the case before us was therefore right in holding that the impugned order should be deemed to have been passed on 24-4-1956 when the Forest Department came to know of the order and 'the right of appeal granted to the Department should be determined on that very basis'."8

The only contrary judgment, wherein the Supreme Court declined to read the "date of order" as the "date of knowledge of the order" is Municipal Board, Pushkar v. State Transport Authority9. In Madan Lal6 this decision was distinguished. The ground of distinction was that in Municipal Board, Pushkar9 the publication of the notification under the Motor Vehicles Act, 1939 (MV Act) served as notice to the aggrieved party and enabled him to make an application under Section 64-A of the MV Act within the prescribed time limit. The publication under the scheme of the MV Act was deemed notice. But, in Section 28-A, no such fiction of notice has been created regarding the court's award. Hence, the ground of distinction, as pointed out in Madan Lal6, applies with full force to Section 28-A.

It may not be out of context to refer to Article 123 of the Limitation Act 1963, which prescribes the period of limitation of 30 days "to set aside a decree passed ex parte or to rehear an appeal decreed or heard ex parte". The period of 30 days, where the summons or notices were not duly served begins to run "when the applicant had knowledge of the decree". The purpose is evident. An applicant cannot move such application unless he had knowledge of the decree. Similar is the case with an applicant, who has no knowledge of the court's award. By analogy, the mode as given in Article 123 also needs to be applied for computing limitation under Section 28-A.

Another relevant decision is Urban Improvement Trust v. Gokul Narain10. It related to Article 120 of the schedule to the Limitation Act which specifies period of limitation of 90 days for an application to bring LRs on record, and such period is to run from "the date of death". Though Article 120 does not postulate the period to run from the date of knowledge, yet the Supreme Court construed it to be so on the principal premise that "the State is not expected to keep watch over the survival of the respondent".

IV. Knowledge of essential contents of award

While in Raja Harish Chandra4, the expression "the date of Collector's award" was read as and equated with "the date of the knowledge of the Collector's award", a Division Bench of the Supreme Court, consisting of S.K. Das, A.K. Sarkar and N. Rajagopala Ayyangar, JJ., dynamically added another salutary dimension to the issue in State of Punjab v. Qaisar Jehan Begum11. The term "knowledge" was given an expanded meaning to further the ends of justice and fair play. Their Lordships elucidated "knowledge of the award" as "knowledge of the essential contents of the award". S.K. Das, J. reasoned thus:

"It seems clear to us that the ratio of the decision in Harish Chandra case4 is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under Section 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated 24-12-1954 that the respondents had knowledge of the award."12

Since the application for reference in this case was clearly made within six months from 22-7-1955, it was held by the Supreme Court to be in time. Thus, Qaisar Jehan Begum11 was a step ahead of Raja Harish Chandra4.

Again in Panna Lal v. Murari Lal13 the Supreme Court ruled:

"It is sufficient that the defendant has knowledge of the material facts concerning the decree, so that he has a clear perception of the injury suffered by him and can take effective steps to set aside the decree."14

If the above principle is applied to an applicant, aspiring to seek redetermination under Section 28-A, it follows that the applicant must necessarily know the material contents of the court's award, the land involved therein and also the location of such award's land. It would enable him to establish comparability of the award's land qua his own land. Reason being that comparability of both the lands is decisive for redetermination, which is not automatic.

Reference to the decision of a Division Bench of the Allahabad High Court, consisting of K.N. Singh (as he then was) and N.N. Mithal, JJ in National Thermal Power Corpn. (NTPC) v. Raghunath Prasad15 is also not out of context. In this case, certain land was acquired for the benefit of NTPC. A reference under Section 18 of the LA Act was made to the court on behalf of the landowner, but NTPC was not put to any notice by the Reference Court that made its award on 19-9-1979. On coming to know the award, NTPC preferred an appeal before the Allahabad High Court against the same on 22-4-1980 with delay of 120 days. Before the High Court, NTPC contended that the appeal was filed within 90 days from the date of it's acquiring knowledge. The question addressed by the Court was "when the period of limitation will commence if judgment is pronounced in the absence of the parties or their counsel on a date of which no notice is given to them". K.N. Singh, J. answered it thus:

"The appellant for the first time got the full details of the order of the District Judge by the letter of the Special land acquisition Officer dated 19-3-1980, so the date of knowledge would be the date of receipt of that letter. Since the appellant filed appeal on 22-4-1980, it is well within time."16

V. Construction of Section 28-A and rules of interpretation

Section 28-A, being a beneficial provision providing for a remedy must receive liberal construction. Again, the principle that a construction that promotes the general legislative purpose should be preferred to literal construction, requires Section 28-A to be interpreted liberally17.

It will be befitting in this context to recall the view expressed by Judge Frank in Guiseppi v. Walling18 which reads thus:

"The necessary generality in the wordings of many statutes, and ineptness of drafting in others frequently compels the court, as best as they can, to fill in the gaps, an activity which no matter how one may label it, is in part legislative. Thus the courts in their way, as administrators perform the task of supplementing statutes. In the case of courts, we call it 'interpretation' or 'filling in the gaps'; in the case of administrators we call it 'delegation' or authority to supply the details."

The dictum of Tota Ram1 is, thus, not in line with the precedents, as reflected by a chain of authorities as indicated above. Hence, it needs judicial correction. Precedents, as observed by Lord Macmillan, should be "stepping stones and not halting places"19. P.N. Bhagwati, J. also aptly remarked: "To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience."20 It is sincerely hoped that the Supreme Court would do the needful in the near future.

*        Advocate, Supreme Court of India, New Delhi. Return to Text

1. (1997) 6 SCC 280. Return to Text
2. Ibid., at p. 282. Return to Text
3. See: Para 2(ix) of the Statement of Objects and Reasons of the LA Act, which reads thus:
   "2. (ix) Considering that the right of reference to the civil court under Section 18 of the Act is not usually taken advantage of by inarticulate and poor people and is usually exercised only by the comparatively affluent landowners and that this causes considerable inequality in the payment of compensation for the same or similar quality of land to different interested parties, it is proposed to provide an opportunity to all aggrieved parties whose land is covered under the same notification to seek redetermination of compensation, once any one of them has obtained orders for payment of higher compensation from the Reference Court under Section 18 of the Act." Return to Text
4. AIR 1961 SC 1500. Return to Text
5. Ibid., at p. 1504, para 6. Return to Text
6. (1975) 2 SCC 779. Return to Text
7. Ibid., at p. 784, para 8. Return to Text
8. Ibid., at pp. 784-85, para 9. Return to Text
9. AIR 1965 SC 458. Return to Text
10. (1996) 4 SCC 178. Return to Text
11. AIR 1963 SC 1604. Return to Text
12. Ibid., at p. 1607. Return to Text
13. AIR 1967 SC 1384. Return to Text
14. Ibid., at p. 1386, para 4. Return to Text
15. AIR 1981 All 344. Return to Text
16. Ibid., at p. 351, para 19. Return to Text
17. See: Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31, Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, (1977) 2 SCC 256 and Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 favouring liberal interpretation. Return to Text
18. 144 F 2d 608, 622 (CCA 2d, 1944), quoted in 60 Harvard Law Review 370, 372 and approved by Supreme Court in Deepak Mahajan (supra). Return to Text
19. Birch v. Brown, 1931 AC 631. Return to Text
20. Distributors (Baroda) (P) Ltd. v. Union of India, (1986) 1 SCC 43 at p. 46, para 2. Return to Text