ABDUL RASAK AND ORS.versusKERALA WATER AUTHORITY AND ORS.

                    ABDUL RASAK AND ORS.                                    A
                             v.
              KERA LA WATER AUTHORITY AND ORS.

                          JANUARY 25, 2002

              [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]                          B


     Land Acquisition Act, 1894:

       Ss. 11, 18 and 50(2)-Award-Finality of-Local authority-Right to
appeal-Right to be given notice by Collector and reference court of date on C
which compensation is to be determined-Land acquired for Public Health
Engineering Department of Government of Kera/a-Award made by Collector
in June 1986-Reference to civil court-Award made by civil court between
 !989 and 1991-Meanwhile Government of Kera/a constituted Kera/a Water
Authority which succeeded to Public Health Engineering Department-State D
of Kera/a and Kera/a Water Authority filing appeals before High Court
challenging the awards m_ade by civil court-Pending appeal judgment in
 U. P. A was Evam Vikas Parishad v. Gyan Devi* delivered by Supreme Court-
Accordingly, High Court held that proceedings before reference court stood
vitiated for want of notice to Kera/a Water Authority and remanded the case
to civil court for decision afresh after impleading K. W.A. as a party and E
 affording the parties an opportunity to adduce evidence-Held, on 20. l 0.1994,
the date on which Supreme Court delivered judgment in Gyan Devi*, the
 matters relating to compensation had not achieved finality and had not stood
finally concluded in as much as the same were pending in appeal before High
Court and appeal is a continuation of original proceedings-So far as award F
given by Collector is concerned that can be said to have become final before
the date of decision in Gyan Devi; but not the award given by civil court on
 reference-As regards right of K. W.A to notice, a notice to it was mandatory
 and even if it was aware of the proceedings, it would not be q sufficient
 compliance of S. 50-High Court has not erred in remanding the case-
 Further directions given regarding representing the parties by counsel and G
 examining and cross-examining the witnesses etc. before civil court-Notice.

      Appeal-Held, is a continuation of original proceedings.

      *U.P. Awas Evam Vikas Parishad v. Gyan Devi (Dead) By L.Rs. and
Ors., (1995) 2 SCC 326, followed.
                                  615
    616                    SUPREME COURT REPORTS                 (2002] I S.C.R.

A         Agra Development Authority v. Special Land Acquisition Officer and
    Ors.. [2001) 2 SCC 646, relied on.

         CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 704-726
    of 2002.

B         From the Judgment and Order dated 2 .11.99 of the Kerala High Court
    in L.A.A. Nos. 20, 308, 307, 310, 510, 511, 512, 530, 22, 545, 546, 547, 602,
    701, 1104, 840, 920, 866, 1008, 312, 311/92 and 263of1991.

                                       WITH

c         Civil Appeal No. 727/2000.

         T.L. Vishwanatha Iyer, Abbay Kumar, S.N. Jha and Subramonium
    Prasad for the Appellants.

          C.N. Sree Kumar and Ramesh Babu M.R. for the Respondent.

D         The following Order of the Court was delivered :

          Leave granted.

           Under Notification dated 19.07.1981, issued under Section 4 of Land
    Acquisition Act, 1894, the State of Kerala acquired land for the benefit of
E   Public Health Engineering Department of the State Government. On
    27 .08.1982, possession was taken over the acquired land. Sometime in June,
    1983 a declaration under Section 6 of the Land Acquisition Act was made.
    The Collector (Land Acquisition) initiated proceedings for assessing the
    amount of compensation payable and made an Award on 15th June, 1986.
F   The claimants sought for a reference to the Civil Court seeking enhancement
    in the quantum of compensation which was made. These reference applications
    came to be decided by different awards made by the Civil Court between
    1989 and 1991.

          With effect from 1st April, 1984, the State of Kerala, through an
G   executive order, constituted Kerala Water Authority (K. W.A., for short) as a
    statutory Corporation. The Kerala water Supply and Sewerage Act, 1986
    (Act No. 14 of 1986), which was given a retrospective operation with effect
    from !st day of March, 1984 declared Kerala Water Authority to have been
    constituted under the Act.

H         The State of Kerala and Kerala Water Authority preferred appeals,
             ABDUL RASAK v. KERALA WATER AUTHORITY                        617
laying ch1tllenge to the several awards made by the Civil Court and for A
enhancing the amount of compensation. During the pendency of appeals
before the High Court, came the Constitution Bench decision of this Court in
UP. Awas Evam Vikas Parishad v. Gyan Devi (Dead) By L.Rs. and Ors.,
[1995] 2 sec 326, wherein it was held that the company for whose benefit
the land was acquired was also entitled to appear and adduce evidence for the B
purpose of determining the compensation. One of the grounds which persuaded
the Constitution Bench in forming that opinion was that the amount shall
have to be paid by the local authority and, therefore, it was a proper party
entitled to contest the proceedings. We need not reproduce in extenso the law
laid down by the Constitution Bench. For our purpose, it would suffice to
note that in the opinion of the Constitution Bench, the right conferred on the C
 local authority under Section 50(2) of the Land Acquisition Act, in the light
 of the scheme of the Act, carried with it the right to be given adequate notice
by the Collector as well as the reference court before whom acquisition
 proceedings are pending of the date on which the matter of determination of
 compensation will be taken up; the local authority is a proper party in the
 proceedings before the reference court and is entitled to be impleaded as a D
 party in those proceedings wherein it can defend the determination of the
 amount of compensation by the Collector and oppose enhancement of the
 said amount and also adduce evidence in that regard; in the event of
 enhancement of amount of compensation by the reference court if the
 Government does not file any appeal, the local authority can file an appeal E
 against the award in the High Court after obtaining leave of the Court. The
 Constitution Bench, however, added a rider to its judgment that the law laid
 down by it would not have the effect of re-opening the matters which stand
 finally concluded.

      It cannot be doubted that on 20th October, 1994, the date on which the      F
Constitution Bench delivered its judgment, the matters relating to compensation
in the present case had not achieved the finality !!lld had not stood finally
concluded inasmuch as the same were pending in appeal in the High Court
and appeal is a continuation of original proceedings. So far as the award
given by the Collector is concerned, that can be said to have become final        G
before the date of decision of Constitution Bench but not the award given by
the Civil Court on reference.

      The High Court, in its impugnM judgment, formed an opinion that the
law laid down by the Constitution Bench governed the cases at hand and,
therefore, the award given by the Civil Court on reference, stood vitiated for    H
                                                                                       y

    618                    SUPREME COURT REPORTS                    [2002] I S.C.R.

A want of notice to K.W.A. The High Court allowed all the appeals pending
    before it and remanded the case for decision afresh by the reference court,
    after affording the parties an opportunity of adducing evidence in support of
    their respective contentions. Feeling aggrieved by the order of remand, the
    claimants have filed these appeals, by special leave.

B          Shir T.L.V. Iyer, the learned senior counsel for the claimant-appellants
    has submitted that Kerala Water Authority is successor of Public Health
    Engineering Department of the State Government, and bound by the
    proceedings conducted by or against the State Government and, therefore,
    the Constitution Bench decision does not have any applicability to the facts
C of the present case and the High Court ought not to have set aside the awards
    and remanded the cases to the reference court. We find it difficult to subscribe
    to the view so forcefully canvassed by the learned senior counsel for the
    appellants. K. W.A. came into existence as a statutory Corporation on I st
    April, 1984. It may be said to have succeeded to the liability incurred by the
    State Government so far as the quantum of compensation awarded by the
D · Collector is concerned but so far as the enhancement in the quantum of
    compensation is concerned, it will be a liability of the K.W.A. incurred by
    it after its coming into existence and, therefore, to the extent of enhancement,
    the Authority was certainly entitled to notice and right to participate in the
    proceedings before the reference court leading to enhancement of
E compensation.
          Learned counsel for the claimant-appelllmts also submitted that
    Superintending Engineer of the K.W.A. had appeared as a witness in the
    proceedings before the Civil Court and, therefore, it can be inferred that the
    Authority was aware of the proceedings and if it did not promptly take steps
F   for impleadment, it should not have been heard to complain before the High
    Court that it did not have notice of the proceedings and, that it was denied
    participation in the proceedings before the Civil Court. It has been held by
    this Court in Agra Development Authority v. Special Land Acquisition Officer
    and Ors., [200 I] 2 SCC 646 that where land was acquired at the cost of local
G   Development Authority, a notice to it was mandatory and simply because the
    local authority was aware of the proceedings and had participated in the
    meetings where matters as to compensation were discussed, was not a sufficient
    compliance with Section 50 of the Land Acquisition Act.
                                                                                           .
                                                                                           _



           In our opinion, the High Court has not erred in taking the view which
H   it has taken and directing the reference cases to be remitted to the Civil Court
              ABDUL RASAK v. KERALA WATER AUTHORITY                        619

consistently with the law laid down by the Constitution Bench, as K.W.A.           A
shall have to be impleaded as party to the proceedings before civil court from
very beginning a retrial becomes unavoidable.

       However, the learned counsel for the appellants submitted that certain
directions are called for inasmuch as some of the witnesses examined by the
claimants may not now be available and the claimants should not be made            B
to suffer if the K. W.A. were to contend before the Civil Court for the evidence
of such witnesses being excluded from consideration because their statements
were not recorded in the presence of the Authority. He further submitted that
in the peculiar facts and circumstances of these cases, when the Authority has
succeeded to the State Government (Public Health Engineering Department),          C
and the cases are being remitted to Civil Court for no fault of claimants,
some protection deserves to be given to the claimants for protecting them
from any likely injustice. We find merit in the submission so made.

        Keeping in view the fact that the Constitution Bench judgment of this
  Court was delivered during the pendency of appeals before the High Court         D
  and the manner in which K.W.A. also came to be constituted after
  commencement of land acquisitioq proceedings and the delay which has
  already taken place in the conclusion of the proceedings for finalising
  compensation which delay is not attributable to the claimants though, we
  maintain the order of remand made by the High Court but make the following       E
· directions :

       I. The Kerala Water Authority shall be deemed to have been brought
 on record in the reference cases as defendant. The cause title of the reference
 cases shall be amended accordingly. The K.W.A. may file its written statement
 to the claim petition filed by the claimants;                                     F
      2. The Civil Court shall expeditiously proceed to try the reference cases
 in compliance with the order of remand made by the High Court;

      3. The statement of the witnesses already recorded on behalf of the
 claimants need not be recorded afresh;                                            G
       4. The Kerala Water Authority shall be allowed an opportunity of cross-
 examining the witnesses which have already been 'l:xamined. However, such
 of the witnesses as are not available, and, therefore, cannot be called before
 the Court, their statements shall not be excluded from consideration and shall
 be read in evidence;                                                              H
                                                                                      y

    620                   SUPREME COURT REPORTS                    [2002] I S.C.R.

A          5. The claimants may adduce such other evidence as they may propose
    to do and both the State of Kerala and Kerala Water Authority shall have the
    liberty of cross-examining such witnesses who are now examined by the
    claimants;

          6. The Kerala Water Authority shall have the liberty of adducing such
B   evidenc11 as it may propose to do.

           The Kerala Water Authority shall not be entitled to a separate notice of
    the proceedings. All the parties present in this Court are directed through
    their respective counsel to appear before the Trial Court on 05.03.2002.

C          The appeals stand disposed of accordingly.

    R.P.                                                    Appeals disposed of.
             \




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