1. Can the Collector grant interest under S.34 of the Land Acquisition Act, 1894 (hereinafter referred to as the) on the enhanced amount awarded on re-determination of compensation under S.28A of the, especially when the original award of the Collector is prior to the amendment of the No. 68 of 1984, is the main issue to be decided in this appeal.

2. Before answering the question, I may consider the facts of the case. An extent of 10.5923 hectares of land in Tikkodi village of Koyilandy Taluk was acquired for the construction of Buffer storage godown of Food Corporation of India (second respondent herein). The above land was owned by several persons including the appellant. Possession was taken on 29.6.1978. Award No. 8 of 1978 was passed by the Land Acquisition Officer on 30.12.1978 assessing land value at the rate of Rs. 960-50 per cent uniformly to all claimants for the entire extent of land. Appellant/ claimant did not apply for reference under S.18 of the. But, some of the adjacent land owners applied for reference under S.18 and one of the reference is numbered as L.A.R. No. 388 of 1981. Civil Court in that case enhanced the land value at the rate of Rs.1,250/- per cent by award dated 28.2.1986. Appellant/claimant and some other neighbours whose properties were also acquired by the same notification for the same purpose and covered.by award No. 8 of 1978 applied for re-determination of compensation under S.28A of the. The Collector accordingly redetermined the compensation. On the enhanced compensation, 30% solatium under S.23(2) of the was also granted. But, no interest under S.34 was granted on the enhanced compensation. Additional compensation under S.23(1A) was not claimed or granted. Reasons for denying interest is stated as follows:

The Government in their letter No.68066/81//92/80 dated 5.5.1993 received on 9.11.1993 has directed that S.28A of L.A. Act does not stipulate payment of interest in cases even if the court allows interest on the similar cases which are taken on the basis for redetermination of compensation and hence there is no need to pay interest while passing the award redetermining compensation under S.23A of the Land Acquisition Act. Therefore the award is prepared fixing the compensation excluding interest."

3. As far as the appellant in concerned, value was redetermined as follows:

4. Common supplementary award No.2 of 1994 was thus passed on 4.3.1994 under S.28A of the with respect to lands acquired by the same award, wherever application under S.28A was filed in time. Appellant and some of the claimants applied for reference under S.28A(3) read with S.18 of the with regard to the question of awarding interest. Reference court by common judgment in L.A.R. No. 67 of 1994 and other connected cases rejected the claim on the ground that appellants are not entitled to benefits granted by Amendment Act No. 68 of 1984 and the Collector erroneously granted enhanced under S.28A and granted solatium under S.23(2). What is granted by the Collector cannot be reduced in a reference; but applicants are not entitled to interest under S.28 or 34 of the. Hence, reference application was dismissed by common judgment.

5. Now, applicability of S.28A and consequential matters are well settled by Apex Court judgments. In Babua Ram and Ors. v. State of U.P. and Anr. (1995 (2) SCC 689 [LQ/SC/1994/953] ) and Union of India and Ors. v. Kamail Singh and Ors. ((1995) 2 SCC 728 [LQ/SC/1994/1080] ), it was held that S.28A as inserted by Act 68 of 1984 is prospective. But, right to file an application under S.28A will accrue when an award under S.26 is passed in respect of property covered by same notification. That is, if award of the reference court is passed after the date of amendment, that is, after 24.9.1984, S.28A will apply. In other words, if the reference court passes the award under S.26 before 24.9.1984, claimants cannot file an application under S.28A but if the award of the reference court is after 24.9.1984, interested person can file an application under S.28A within three months from the date of the award of the reference court under S.26. However, in the decisions cited above, it was held that limitation to file application will stand from the first award of the civil court. That part of the ruling in the above mentioned judgments was overruled in Union of India and Anr. v. Pradeep Kumari and Ors. ((1995) 2 SCC 736 [LQ/SC/1995/364] ).

6. In Union of India and Anr. v. Pradeep Kumari and Ors. ((1995) 2 SCC 736 [LQ/SC/1995/364] = AIR 1995 SC 2259 [LQ/SC/1995/364] ), it was held that:

"S.28A is, therefore, in the nature of a beneficent provision intended to remove inequality and to give relief to the inarticulate and poor people who are not able to take advantage of right of reference to the Civil Court under S.18 of the. In relation to beneficent legislation, the law is well-settled that while construing the provisions of such a legislation the Court should adopt. a construction which advances the policy of the legislation to extend the benefit rather than a construction which has the effect of curtailing the benefit conferred by it. The provisions of S.28A should, therefore, be construed keeping in view the object underlying the said provision."

Apex Court also held that if the following conditions are satisfied, S.28A will be applicable.

"(i) An award has been made by the court under Part III after the coming into force of S.28 A;

(ii) By the said award the amount of compensation in excess of the amount awarded by the Collector under S.11 has been allowed to the applicant in that reference;

(iii) The person moving the application under S.28A is interested in other land covered by the same notification under S.4(1) to which the said award relates;

(iv) The person moving the application did not make an application to the Col lector under

S.18;

(v) The application is moved within three months from the date of the award on the basis of which the redetermination of amount of compensation is sought; and

(vi) Only one application can be moved, under S.28 A for redetermination of compensation by an applicant."

7. In Union of India and Ann v. Hansoli Devi and Ors. 2003 (1) KLT (SC) (SN) 31 = (2002 AIR SCW 3755) a Constitution Bench of the Apex Court held that application under S.28A can be made by interested person who had made reference under S.18 but whose application as rejected on the ground of delay. The five-member Bench further held that application can be made under S.28A by persons who have received Collectors award without protest also. It is held as follows:

"6. Coming to the second question for reference the receipt of compensation with or without protest pursuant to the award of the Land Acquisition Collector is of no consequence for the purpose of making a fresh application under S.28A. If a person has not filed an application under S.18 of the to make a reference, then irrespective of the fact whether he has received the compensation awarded by the Collector with or without protest, he would be a person aggrieved within the meaning of S.28 A and would be entitled to make an application when some other land owners application for reference is answered by the reference court. It is apparent on the plain language of the provisions of S.28 A of the. Otherwise, it would amount to adding one more condition, not contemplated or stipulated by the Legislature itself to deny the benefit of substantial right conferred upon the owner."

In view of the above, observations to the contrary in Para.5 and 6 of the Division Bench judgment in State of Kerala v. Kumaran Nair (2000 (1) KLT 539) is no more good law.

8. With regard to the benefit under S,23(1A), now, it is settled that benefit of the amendment is applicable only if the proceedings of the Collector are pending at the time when the bill was presented in the Parliament, that is, as on 30th April, 1992. Therefore, if the original award under S.11 is passed by the Collector before 30th April, 1992, one will not get the benefit of S.230 A) introduced by the Amendment Act 68 of 1984, in view of the transitional provisions, (S.30(1) of the Amendment Act) as held by the Constitution Bench of the Supreme Court in KS. Paripoornan v. State of Kerala ((1994) 5 SCC 593 [LQ/SC/1994/859] ). In this case, since original award of the Collector is before 30th April, 1982, Collector did not award the benefits under S.23(1 A) correctly when it re-determined compensation under S.28A.

9. It was also held by the Constitution Bench of the Supreme Court that in view of S.30(2) of the Amendment Act, if the award of the civil court (not of the Collector) is passed after 30th April, 1982, one will get the benefit of amendment under S.23(2) and 28 of the. But, if the award of the reference court is passed before 30th April, 1982, the benefit of the amendment will not be available even if appeal is pending as on 30.4.1982 in the High Court or in the Supreme Court (Union of India and Ann v. Raghubir Singh (AIR 1989 SC 1933 [LQ/SC/1989/332] ).

10. In this case, even though land acquisition officer passed the original award in 1978, reference court passed the award in the connected case, namely, L.A.R. No. 388 of 1981 only in 1986, much after the Amendment Act 69 of 1984 came into force. Hence, appellant became entitled to apply under S.28A on the date of passing of the award in L.A.R. No. 388 of 1981 as held in Pradeep Kumaris case (supra). He applied within the time limit. The Land Acquisition Officer rightly entertained it and awarded enhanced compensation under S.28A by award No.2 of 1994 dated 4.3.1994. Therefore, view of the reference court that Collector went wrong in entertaining the application under S.28A is wrong.

11. Now, we are left with the only question whether land acquisition officer is justified in not awarding interest under S.34 on the enhanced amount of compensation on the basis of the Government order referred in para 2. By award in L.A.R. No. 388/81 passed in February 1986, reference court has granted interest under S.28 of the. On the basis of the award, S.28A petition was filed. The question whether Collector can award interest under S.34 on the enhanced compensation in a proceeding under S.28A is answered in Pradeep Kumaris case (supra). Para.14 as follows:

"14. Shri. Goswamy has next contended that while redetermining the amount of compensation under S.28A it is not permissible for the Collector to award interest on the additional amount of compensation award by him for the reason that under S.28 of the only the Court can direct payment of interest on the excess amount awarded as compensation and no such power is conferred on the Collector and, therefore, interest cannot be awarded by the Collector on the additional amount of compensation determined, under S.28A. It is no doubt true that under S.28 only the court can direct payment of interest on the excess amount awarded as compensation and the Collector is not competent to award interest on the additional amount of compensation under the said provision. But, sub-s. (2) of S.28A provides that after an application has been submitted under sub-s. (1) of S.28A the Collector after conducting an inquiry makes an award determining the amount of compensation payable to the applicants and under sub-s. (3) of S.28A any person who has not accepted the award under sub-s. (2) may move the Collector requiring that the matter be referred for determination to the court and the provisions of S.18 to 28 have been made applicable to such reference. This would show after an application has been submitted under S.28 A(1) for redetermination of the amount of compensation the process of such redetermination results in making of an award by the Collector and a person not accepting the said award can move the Collector to refer the matter to the Court for determination and such reference is governed by S.18 to 28. If that is so, S.34 of the would be applicable to the award that is made by the Collector under sub-s. (2) of S.28A and it would be permissible for him to award interest under S.34 on the additional amount of compensation awarded by him. The second contention urged by Shri. Goswamy is, therefore, rejected."

12. Therefore, land acquisition officer ought to have granted interest under S.34 on the enhanced compensation when it redetermined the compensation under S.28A. Compensation includes solatium also as held by the Constitution Bench of the Apex Court in Sunder v. Union of India (2001 (3) KLT 489 SC = 2001 AIR SCW 3692).

In the above circumstances, the appeal is allowed with consequential reliefs.