M. Jagannadha Rao, C.J.@mdashThe point raised in this writ petition in the context of second proviso to Article 31A of the Constitution of India, is regarding the constitutional validity of Section 23(1) ''firstly'' of the Land Acquisition Act, 1894 (as extended to the State of Kerala in 1984) which prescribes that market value of the property as on the date of Section 4(1) notification is to be paid. The contention is that expropriation of the property takes place only on the date of taking of ''possession'' of the property and, therefore, if the statute does not provide for payment of market value as on the date of taking of possession, it must be treated as ultravires of the second proviso to Article 31A of the Constitution of India, insofar as lands which are within the ceiling area of the owner who is personally cultivating the said property are concerned. On the same analogy, the corresponding provisions of the Kerala Land Acquisition Act, 1961 are also sought to be declared as ultra vires. It is the contention that the Land Acquisition Act, 1894 is extended to Kerala State only in 1984 and, therefore, Section 23(1) firstly of the said Act (insofar as Kerala is concerned) and the Kerala Land Acquisition Act, 1961 are not existing laws as on 26th January 1950 and cannot hive the protection of Article 31(2) of the Constitution of India. One other contention raised relates to the interpretation and effect of the judgment in writ petition, O.P. 4393 of 1979 dated 2nd December 1981. On the main point of vires of the provisions, the judgment of the Andhra Pradesh High Court in Singareni Colleries v. V.S. Murthy 1984 (1) A.L.T. 108 decided by Madhava Reddy, C.J. (as he then was) and Lakshmana Rao, J. and of the Delhi High Court in Kundan Lal v. Union of India AIR 1988 Del 63 decided by Yogeshwar Dayal, J. (as he then was) and Kochhar, J. are against the contention of the Petitioners. Learned Counsel, however, wants to contend that the said decisions are not correct.
2. The following are the facts: The eight Petitioners in the writ petition are partners of a partnership firm ''whose'' lands of an extent of 8 acres 79 cents have been acquired for the Periyar Valley Irrigation Project by the issuance of a notification on 18th July 1978 u/s 3(1) of the Kerala Land Acquisition Act, 1961 (hereinafter called the ''Kerala Act''). Emergency provisions u/s 19(14) of the Kerala Act were invoked dispensing inquiry u/s 5 of that Act. Section 6 declaration was issued on 30th April 1979. M.P. Varghese who, it is admitted, is one of the Petitioners in the present writ petition, filed O.P. 4393 of 1979-F questioning the exercise of emergency powers u/s 19(4). Dr. Kochu Thommen, J. (as he then was), allowed the said writ petition on 2nd December 1981 as per Ext. P-2 judgment quashing the Section 6 declaration and directing a hearing in the inquiry u/s 5 of the Kerala Act. Here, one of the points to be noted is that by 2nd December 1981 when the O.P. was disposed of, the Section 3(1) notification stood statutorily ''cancelled'' because of the provisions of Section 6(3) of the Kerala Act which reads as follows:
6(3) Where no declaration under this section is made in respect of the land covered by a notification under Sub-section (1) of Section 3, or any portion of such land, within the period specified in the proviso to Sub-section (1) of this section, such notification, or as the case may be, such notification insofar as it relates to the portion of the land in respect of which no declaration is made, shall be deemed to have been cancelled on the expiry of the said period.
(emphasis supplied)
Now, the proviso to Section 6(1) of the Kerala Act specified that no declaration in respect of any particular land covered by a notification under Sub-section (1) of Section 3 shall be made after the expiry of three years from the date of publication of such notification. Once the Section 6 declaration was quashed on 2nd December 1981, there was no chance of saving the Section 3(1) notification dated 18th July 1978 and, in point of fact, the Section 3(1) notification which stood statutorily cancelled could not have been revived even by the Court. But, the parties,-as we shall presently show-virtually agreed before Dr. Kochu Thommen, J. (as he then was) that no fresh Section 3(1) notification need be issued under the Kerala Act once again and were content in proceeding with the acquisition provided an opportunity in Section 5 inquiry was granted. The learned Judge observed in Ext. P-2 judgment dated 2nd December 1981 as follows:
Ext. P-7 declaration was issued within the time prescribed under the Act. But it was issued without hearing the Petitioner in circumstances which did not, as the subsequent events show, justify recourse to the emergency provisions. It has, therefore, to be declared to be invalid. I do so. But the effect of this pronouncement, in the absence of agreement between the parties would cut at the root of the notification u/s 3 for the time permissible for issuing a fresh declaration u/s 6 has expired. To issue a fresh notification u/s 3 is, I think, time consuming and contrary to the public interest. I am assuming there is a public interest on the basis of the facts stated in the counter affidavit, for the land is said to be required for construction of a dam. As I stated earlier, this is a purpose which could have prompted the Government to act immediately and complete the proceedings, but they did not do so. Not having done so, the Petitioner must be heard u/s 5. The Petitioner''s counsel Shri Subramaniam fairly submits on behalf of the Petitioner that, notwithstanding the relevant provision of law, the Petitioner will not insist upon a fresh notification u/s 3. This is recorded. Counsel says that it will be sufficient if the Petitioner is heard in terms of Section 5 and proper decision is taken by the Government in regard to his objections.
We have extracted the above portion of paragraph 3 of the said judgment as one of the points is whether, even if the vires of the statutory provisions are upheld, whether the market value that is to be paid by the Reference Court u/s 18 (where the proceedings are now pending) will be as on 18th July 1978 when Section 3(1) notification was issued or as on some date subsequent to 2nd December 1981, the date of judgment in O.P. 4393 of 1979-F. Obviously, the further proceedings u/s 6 could not have continued unless a fresh Section 3(1) notification was issued after the judgment. We shall deal with this aspect on the merits separately.
3. Coming back to the narration of the chronology, after the questioning of the Section 6 declaration, the Petitioner was heard and the objections were rejected and a fresh draft Section 6 declaration was issued by the Board of Revenue on 20th March 1982 and a fresh declaration was issued by the Collector on 21st April 1982. The same was again questioned by M. Paulose Varghese (who is admittedly one of the Petitioners now before us) by filing O.P. 5532 of 1982-J. The O.P. was admitted on 30th July 1982 and stay was granted.
4. On 24th September 1984, the Land Acquisition Act, 1894 stood territorially extended to the State of Kerala-Thereafter, the Award was passed on 31st May 1986. O.P. 5532 of 1982 was dismissed on 25th September 1986. Possession of the property was taken on 21st October 1986. There is a reference to the Civil Court u/s 18 and is now pending. The Petitioners have filed a claim statement therein as per Ext. P-4, an Advocate Commissioner submitted a report as per Ext. P-5 and a Valuation Report, Ext. P-6 on 18th January 1988.
5. The present writ petition has been filed on 29th January 1990 raising the questions of constitutional validity of the provisions of Section 23(1) ''firstly'' of the Land Acquisition Act, 1894 and of the corresponding provisions of the Kerala Land Acquisition Act.
6. Elaborate submissions have been made by learned Counsel for the Petitioners on the above aspects. Learned Additional Advocate General-II submitted that the present writ petition is liable to be dismissed also on the ground of res judicata, laches, etc., as the O.Ps. filed earlier were by M.P. Varghese, the managing partner of the firm which admittedly owns the property. As to the validity of provisions, the doctrine of eclipse is also invoked by him.
7. On the basis of the above facts and contentions, the following points arise for consideration:
(1) Whether the provisions of Section 23(1) ''firstly'' of the Land Acquisition Act, 1984 (as extended to Kerala State as on 24th September 1984) are ultravires of the provisions of the second proviso to Article 31A of the Constitution of India and whether market value for purposes of compensation is to be as on date of taking of possession?
(2) Whether the corresponding provisions of the Kerala Act, 1961 are also ultravires for the same reasons set out in Point No. 1 and whether market value for purposes of compensation is to be as on date of taking of possession?
(3) Whether the present writ petition is barred by res judicata or laches?
(4) Whether the compensation u/s 23(1) firstly is to be paid by the Reference Court u/s 18 of the Act on the basis of Section 3(1) notification (under the Kerala Act) dated 13th July 1978 or on the basis of any date subsequent to Ext. P-2 judgment dated 2nd December 1981 in view of the statutory ''cancellation'' of the earlier Section 3(1) notification dated 13th July 1978? and if so, as on what date?
8. Point Nos. 1 and 2.-The second proviso to Article 31A introduced by the Constitution (Seventeenth Amendment) Act, 1964 reads as follows:
Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.
(emphasis supplied)
Article 31(1) was amended twice, once by the Constitution (Fourth, Amendment) Act, 1955 with effect from 27th April 1955 and again by the Constitution (Twentyfifth Amendment) Act, 1971 with effect from 20th April 1972. Various judgments have been rendered by the Supreme Court as to the meaning and effect of the word ''compensation'' used in the Constitution initially and as to the effect of the two Constitutional Amendments. Learned Counsel for the Petitioners referred to most of these cases to emphasize the point that compulsory ''acquisition'' meant actual ''expropriation'' by the taking of physical possession and wanted to contend that the second proviso to Article 31A introduced in 1964 required market value as on the date of taking of possession to be paid or else, the land acquisition statute will be ultravires.
Principles of interpretation of Constitutional provisions:
9. It would be advantageous to approach the problem first by resort to well-accepted principles of interpretation applicable to Constitutional provisions. Higgins, J. observed (A.G. for N.S.W. v. Brewery Employees Union (1908) 6 C.L.R. 469 at 611-12, in words ''that have not withered or grown sterile with years'', that
although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act we are interpreting, to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be.
Therefore, it is that the principles of interpretation of ordinary statutes are indeed applicable to the Constitution also subject to the above words of caution [Chandra Mohan v. State of U.P. AIR 1966 S.C. 1987,
10. In interpreting the Constitution, the Court is entitled to take into consideration, the history behind the enactment of the said provision [
From Bella Banerjee to Keshavananda:
(Constitutional Amendment of 1951, 1955, 1964 and 1971)
11. For understanding the scope of Article 31A and its second proviso, it is necessary to go back to Article 31(2), consider the historical developments in relation to that Article first and the reason for various Constitutional Amendments. In the Constitution, as it originally stood, it was provided in Article 31(1) that no person shall be deprived of his property save by authority of law. Article 31(2) provided that:
Article 31(2).-No property, movable or immovable, including any interest in or in any company owning, any commercial or industrial undertaking, shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition, unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of the compensation, or specifies the principles on which, arid the manner in which, the compensation is to be determined and given.
(emphasis supplied)
The provision was more or less substantially the same in Section 299 of the Government of India Act, 1935 so far as the points now is issue are concerned. A strict view was taken under Article 31(2) (as it stood originally and before its amendment by the Fourth Amendment Act, 1955), that the ''compensation'' cannot be paid with reference to a date anterior to the Section 4(1) notification under the Land Acquisition Act, 1894. In three cases decided by the Supreme Court, the facts were governed by Article 31(2) as on 26th January 1950 and related to a period before the Fourth Amendment Act, 1955.
12. In
The fixing of an anterior date for the ascertainment of value may not, in certain circumstances, be a violation of Constitutional requirement as for instance, when the proposed scheme of acquisition becomes known before it is launched and prices rise sharply in anticipation of the benefits to be derived under it, but the fixing of an anterior date, which might have no relation to the value of the land when it is acquired, may be, many years later, cannot but be regarded as arbitrary.
(emphasis supplied)
But, on the facts of that case, it was observed:
...it is common knowledge that since the end of the war, land, particularly around Calcutta, has increased enormously in value and might still further increase very considerably in value when the pace of industrialisation increases. Any principle for determining compensation which denies to the owner this increment in value cannot result in the ascertainment of the true equivalent of the land appropriated.
(emphasis supplied)
Likewise, in
Even the Land Acquisition Act provides for assessment, of compensation on the basis of market value of the land not on the date on which interest of the owner of the land is existinguished u/s 16, but on the ''basis of market value prevailing on the date on which the notification u/s 4(1) is issued''. Whether this rule in all cases irrespective of subsequent developments ensures just indemnification of expropriated owner so as to be immune from attack, does (not) call for comment in this case.
(not supplied as it is a clerical mistake)
(emphasis supplied)
It will be noticed that Shah, J. (as he then was) left open the question of the validity of Section 4(1) of the Land Acquisition Act, 1894 in the context of the unamended Article 31(2). Having then left open the said question, the learned Judge observed further as follows:
But any principle for determination of compensation denying to the owner all increments in value of land between a fixed date and the date of issue of the notification u/s 4(1), prima facie, be regarded as denying to him the true equivalent of the land which is expropriated and it is for the State to show that fixation of compensation on the market value on an anterior date does not amount to a violation of the Constitutional guarantee. No materials have been placed by the State before this Court which would support any such case.
Thus, while the point arising in the context of Section 4(1) notification was left open, the provisions of the Madras Act were struck down as the State had not placed any material to justify the date.
13.
The Fourth Amendment Act, 1955: (Justiciability excluded)
14. Then came the Constitution (Fourth Amendment) Act, 1955 which substituted a new Sub-clause (2) in Article 31. It reads as follows:
No property shall be compulsorily acquired or requisitioned save for a public purpose and save by authority of law which provides for compensation for the property so acquired or requisitioned and either fixes the amount of compensation or specifies the principles on which and the manner in which, the compensation is to be determined and given; and no such law shall be called in question in any Court on the ground that the compensation provided by that law is not adequate.
(emphasis supplied)
In Vajravelu v. Spl. Dy. Collector AIR 1965 S.C. 1016, the Land Acquisition (Madras Amendment) 1961 was the statute under which a notification was issued on 13th November 1961. It was held that the use of the word ''compensation'' required a ''just equivalent'' to be paid, but that insofar as the Madras Amendment modified Section 23(1)-''firstly'' and added a clause seventhly,- thereby permitting payment of something less than u/s 23(1) of the Land Acquisition Act, 1894 and insofar as Section 23(2) was altered directing only 5 per cent solatium rather 15 per cent, the Amending Act did not violate Article 31(2). These amendments were held to be valid within Article 31(2). But the Court struck down the amendments on Anr. ground, i.e., under Article 14 on the ground of invalid discrimination between acquisition of land for housing purposes and other purposes.
15. The question arose in
Under the Land Acquisition Act, compensation is determined on the basis of the market value of the land on the date of the notification u/s 4(1) of that Act. That is a specification of principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified.
(emphasis supplied)
This would mean that Section 4(1) of the Land Acquisition Act, 1894 was held to be valid even as per Article 31(2) as it stood on 26th January 1950 before the Constitution (Fourth Amendment) Act, 1955.
16. Another important aspect in that case was the rejection of the argument based on the long distance of time between the date fixed for ascertaining the market value (the date of intention to bring in a scheme, which was 18th April 1927 and the final scheme was published in 1957) and the date of payment of compensation 23rd August 1957, Shah, J. (as he then was) observed: (para 29)
It is perhaps right to say that compensation cases should not be allowed to drag on for a long time, because then the compensation paid has no relevance to the exact point of time when the extinction actually takes place. But the validity of an Act cannot ordinarily be judged in the light of facts of a given case.
(emphasis supplied)
The learned Judge approved the observations of Subba Rao, C.J. in Vajravelu''s case AIR 1965 S.C. 1016 (supra) insofar as interpretation of the words ''compensation'' in Article 31(2) are concerned while at the same time upholding the Bombay Act, 1955 on the ground that the Act prescribed a principle and the validity was not justiciable.
17. The Madras Act, 1961 was upheld by Subba Rao, J. (as he then was) in Vajravelu''s case AIR 1965 S.C. 1016 (supra), on the ground of non-justiciability. In Vajravelu''s case AIR 1965 S.C. 1016 (supra), the compensation payable was something less than the one payable u/s 23(1) and Section 23(2) of the Land Acquisition Act, 1894 while in
18. We finally come to
Both the lines of thought which converge in the ultimate result, support the view that the principle specified by law for determination of compensation is beyond the pale of challenge, if it is relevant to the determination of compensation and is a recognised principle applicable in the determination of compensation for property compulsorily acquired and the principle is appropriate in determining the value of the class of property sought to be acquired.
(emphasis supplied)
After stating so, the learned Judge struck down the relevant provisions of the Bank Nationalisation Act as they failed to provide to the expropriated banks compensation determined according to relevant principles.
The Constitution (25th Amendment) Act, 1971:
19. However, in view of the confusion created by the meaning of the word ''compensation'', the Constitution (25th Amendment) Act, 1971 was brought in and the word ''amount'' was substituted for the word ''compensation''. Now as per this amendment, the amount payable (i.e., the amount under the law of acquisition or requisition) cannot be subjected to judicial scrutiny. This position is made abundantly clear by the
Is Shantilal''s case over-ruled by Cooper''s case No.?
20. A contention was raised for the Petitioners before us that
Article 31(2) on 26th January 1950 and Section 23(1) firstly of the Land Acquisition Act, 1894:
21. We have seen the various stages in the development of the law with respect to Article 31(2). For the purpose of satisfying Article 31(2) as it stood on 26th January 1950, it is sufficient if the law provided for payment of compensation and either fixed the amount of compensation or specified the principles on which, and the manner in which, the compensation was to be determined and given.
22. So far as Section 23(1) of the Land Acquisition Act, 1894 is concerned, it provided that the market value as on Section 4(1) notification is to be paid. Section 23(1)(2) and Section 24 laid down various principles for determination of compensation. A question was posed in
Under the Land Acquisition Act, compensation is determined on the basis of the market value of the land on the date of the notification u/s 4(1) of that Act. That is a specification of principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined in a principle specified.
(emphasis supplied)
23. A close reading of
24. It is true that the Supreme Court in Aflatoon v. Lt. Governor, Delhi AIR 1974 S.C. 634 and in
25. Presumably because of this difficulty created by
Article 31A (1951) and its Amendments in 1955, 1964:
26. Article 31A and Article 31B were added with retrospective effect by the Constitution (First Amendment) Act, 1951. The object was to validate the acquisition of Zamindaries or the abolition of the permanent settlement in such a manner so as to put the said acquisition beyond the purview of the Courts. Article 31A, as introduced in 1951, provided that notwithstanding anything in Part III, no law providing for acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights-shall be deemed to be void on the ground that it takes away or abridges any of the rights conferred by any provisions of this part and there was a 1st proviso requiring any legislation, if made by a State, to receive the assent of the President for its validity.
27. By the Constitution (Fourth Amendment) Act, 1955, Article 31A was amended by adding to Article 31A(1) some more items other than acquisition of any estate but saving them , only insofar as they offended Articles 14, 19 or 31.
28. By the Constitution (Seventeenth Amendment) Act, 1964, the 2nd proviso was introduced (as extracted earlier) and the original Sub-clause (2) was replaced with retrospective effect by the present clause, the main object being to acquire not merely "estates" as traditionally known but also ''land held under ryotwari settlement''. The Statement of Objects and Reasons for the 1964 Bill clarified:
...Moreover, many of the land reform, enactments relate to lands which are not included in an estate. Several State Acts relating to land reform were struck down on the ground that the provisions of those Acts were violative of Articles 14, 19 and 31 of the Constitution and that the protection of Article 31A was not available to them (Kunhikoman v. State of Kerala AIR 1962 S. C. 708). It is, therefore, proposed to amend the definition of ''estate'' in Article 31A of the Constitution by including therein lands held under ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments.
(emphasis supplied)
2nd proviso to Article 31A creates a fundamental right to property:
29. The Supreme Court has held in
But we are clearly of the view that the second proviso to Clause (1) of Article 31A does confer a fundamental right. This conclusion is inevitable if we look at the conspectus of Articles 31 and 31A.
2nd proviso to Article 31A creates a right to compensation greater than Article 31(2) as it stood after the Constitution (25th Amendment) Act, 1971: Yes.
30. In
Parliament was anxious to protect the interest of the small landholders, the common man who holds land within the ceiling limit and, therefore, enacted the second proviso requiring that a law which permits acquisition of land within the ceiling limit must provide for compensation at a rate not less than the market value. The second proviso restores the right of property with added vigour in case of small holdings of land. It does much further than Article 31l, Clause (2) and provides a larger protection in that, Clause (2) of Article 31 merely requires that a law authorising acquisition should fix an amount to be paid for the acquisition or specify the principles in accordance with which the amount may be determined and the manner in which it may be given-and this may be very much less than the market value - while the second proviso insists that at the least, full market value must be paid for the acquisition.
(emphasis supplied)
and added:
Thus, there can be no doubt that the second proviso confers a right-and the right higher than the one under Clause (2) of Article 31....
x(emphasis supplied)
The use of the word ''amount'' by the Supreme Court, it is conceded for the Petitioners, is proof that the Supreme Court was comparing the second proviso to Article 31A with Article 31(2) as it stood after the Constitution (25th Amendment) Act, 1971 when the word ''compensation'' was replaced by the word ''amount''- We have, therefore; to proceed on the basis that the second proviso to Article 31A creates a fundamental right which is superior to the right under Article 31(2) as the said Article stood after the Constitution (25th Amendment) Act, 1971.
Does the 2nd proviso to Article 31A create a right superior to the right under Article 31(2) as it stood on 26th January 1950?
31. This, in fact, is the crucial question. We have already noticed that the second proviso to Article 31A creates a fundamental right and that the said right has been held to be superior to the right under Article 31(2) as it stood after the Constitution (25th Amendment) Act, 1971, which amendment substituted the word ''amount'' for the word ''compensation'' in Article 31(2). But then the question is whether the said right under the second proviso to Article 31A is superior in content of the right under Article 31(2) as it stood on 26th January 1950?
32. A reading of the second proviso to Article 31A introduced in 1964 shows that while the proviso requires compensation to be paid on the basis of ''market value'', it does not refer to any particular date with reference to which the market value is to be fixed. If Parliament intended that the right to compensation should be superior to the right created under Article 31(2) as on 26th January 1950, nothing precluded Parliament from expressly stating that the market value will be as on the date of taking of possession or extinction of the rights of the owner. After all, Parliament was conscious of the fact that ever since the amendment to Section 23(1) of the Land Acquisition Act, 1894 in 1923, owners were getting compensation with reference to the market value of the land as on the date of Section 4(1) notification only. Even before 1923, the owners were getting compensation only as oh the date of section 6 declaration. In our view, if Parliament intended that the owner who is holding the land under self-cultivation,-such land being within the ceiling area-is to get compensation which is higher than what is stated in Section 23(1) firstly, Parliament would have certainly stated so affirmatively. Take the case of a person who held (say) only one acre of land under self-cultivation on 26th January 1950, an area which, even as per the land ceiling laws of latter years-was within the ''ceiling area''. If the said land had been acquired before the Constitution (Seventeenth Amendment) Act, 1964, the owner would have got compensation as per Section 23(1) of the Land Acquisition Act, 1894 on the basis of the market value on the date of Section 4(1) notification. Could Parliament have intended that after introduction of the. second proviso in 1964, such an owner''s land, if'' acquired after the Seventeenth Amendment of 1964, should fetch compensation not as on the date of Section 4(1) notification but as on the date of taking of possession or extinction of interest u/s 16? In our view, not. After all, the position of the land owner who was personally cultivating the land and whose land was acquired before the land ceiling laws were enacted and the position of a person whose land within the ceiling area was acquired after 1964, could not be different.
33. In
34. In our view, merely because the words ''compensation'' and ''market value'' are used in the second proviso and the word ''acquisition'' is also used, it is not permissible to contend that Parliament intended to give market value as on the date of taking of possession or extinction of interest. We have already held that payment of compensation u/s 23(1) firstly of the Land Acquisition Act, 1894 did not offend Article 31(2) as it stood on 26th January 1950. We hold that payment of compensation u/s 23(1) firstly in respect of land within ceiling area and under self-cultivation-if acquired after 1964,-does not offend the second proviso to Article 31A of the Constitution of India. What we have said above applies equally to the corresponding provisions of the Kerala Land Acquisition Act, 1961. As pointed out in Shantilal''s case 1984 (1) A.L.T. 108 and also in Singareni Colleries'' case 1984 (1) A.L.T. 108 and Kundan Lal''s case AIR 1988 Del 63, the fact that in a given case, there is long delay between the date of Section 4(1) notification and the date of taking of possession or payment of compensation does not mean that the statutory provisions themselves should be struck down. At the most, such long delays can be dealt with under Article 14 as pointed out in Singareni Colleries'' case 1984 (1) A.L.T. 108 (supra).
35. We hold accordingly on Point Nos. 1 and 2 against the Petitioners.
36. Point No. 3.-On the question of constructive res judicata raised by the learned Additional Advocate General, we are of the view that the judgments in the earlier writ petitions are not res judicata. We are here concerned with the question as to what is the appropriate date for fixing the market value of the acquired property. The matter is now in the reference Court u/s 18 and the present writ petition is intended to help the Petitioners in that Court. In any event, in view of our finding on Point Nos. 1 and 2 against the Petitioners, it is not necessary to go into this question. Point No. 3 is decided accordingly.
37. Point No. 4.-On the facts of the present case, the position is that the notification dated 18th July 1978 issued u/s 3(1) of the Kerala Land Acquisition Act, 1961 stood statutorily ''cancelled'' by virtue of the provisions of Section 6(3), upon the quashing of the Section 6 declaration on 2nd December 1981 by Dr. Kochu Thommen, J. (as he then was) in O.P. 4393 of 1979-F. As pointed out earlier, the learned Judge considered the question whether a fresh notification u/s 3(1) should be passed. The Petitioners and the Government agreed that it is not necessary and that a direction could be issued for inquiry u/s 5 of the Kerala Act, 1961. This, in our opinion, was clearly on the basis that there is, as required by law, a fresh Section 3(1) notification. Obviously, neither the parties nor the Court could have revived the earlier Section 3(1) notification dated 18th July 1978 which stood statutorily cancelled.
38. The question then is whether compensation u/s 23(1) of the Land Acquisition Act, 1894 (which was extended to Kerala on 24th September 1984) is payable as per the market value on 18th July 1978 and if not, as on what latter date?
39. In our view, there is no question of paying compensation as per the market value on 18th July 1978 inasmuch as the said notification stood ''cancelled'' statutorily. Then the directions issued by Dr. Kochu Thommen, J. (as he then was) in O.P. 4393 of 1979-F have to be understood on the basis that there was, in fact, a fresh Section 3(1) notification atleast on 2nd December 1981 when O.P. 4393 of 1979-F was allowed directing a fresh inquiry u/s 5 of the Kerala Act, 1961. We accordingly hold that the Reference Court where the matter is now pending must fix market value of the acquired property as on 2nd December 1981 and not as on 18th July 1978. Point No. 4 is decided accordingly.
40. In the result, it is declared that Section 23(1) of the Land Acquisition Act, 1894 and the corresponding provisions of the Kerala Land Acquisition Act, 1961 are valid and are not violative of the second proviso to Article 31A of the Constitution of India. However, it is declared that the Petitioners are entitled to be paid the market value of the acquired land as on 2nd December 1981 and not as on 18th July 1978, treating that there was a notification u/s 3(1) of the Kerala Act, 1961 [corresponding to Section 4(1) of the Central Act, 1894] as on 2nd December 1981. The other benefits under the Central Act of 1894, as amended in 1984, will also have to be granted on that basis.
The writ petition is partly allowed. No cost
