HIGH COURT OF JUDICATURE AT ALLAHABAD AFR COURT NO.37 CIVIL MISC. WRIT PETITION NO.3296 OF 2010 Smt. Sureshwati...................................................Petitioner. Versus State of U.P. and others........................... Respondents. Hon'ble R.K. Agrawal, J.
Hon'ble Surendra Kumar, J.
1. Heard learned counsel for the parties.
2. The petitioner has filed this writ petition seeking a writ, order, or direction in the nature of mandamus directing the respondents to pay interest from the year 1997 to January, 2007 for the delayed payment of compensation in respect of her land Khasra No. 554/3 measuring area 5 bigha i.e. 15125 square yard (hereinafter referred to as the land in question), situated in village Gejha Tilpatabad, Tehsil Dadri, District Gautam Budh Nagar.
3. According to the petitioner, her aforesaid land was acquired and an award of Rs. 36,90,500/- (Rupees thirty six lakh ninety thousand five hundred) was made. The compensation through cheque of the aforesaid amount was paid to her on 6.1.2007. For getting the award, the petitioner had to run from pillar to post up to Hon'ble Supreme Court. The petitioner was allotted patta of the land in question in the year 1981 as war widow and she was admitted as Bhumidhar with non transferable rights thereof. A notification dated 11.3.1995 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued and subsequently, the notification under Section 6 of the Act was also published on 21.9.1995. Thus, the land in question of the petitioner was acquired by the State Government by invoking the provisions of Section 17 of the Act and an inquiry under Section 5-A of the Act was dispensed with. The possession of the petitioner's land was taken by the State in the year 1997 and the name of NOIDA was mutated in the revenue records. Beside the petitioner's land, other adjoining land was also acquired. A common award regarding the land acquired in village Gejha Tilpatabad, Tehsil Dadri, District Gautam Budh Nagar was made on 11.1.2000 and compensation at the rate of Rs. 244/- per square yard was determined. Though the land of the petitioner was acquired by the State but the compensation was not paid to her only because Khasra number of the land of the petitioner was not mentioned in the award dated 11.1.2000.
4. One M/s N.S.R. Farms Pvt. Ltd. New Delhi being transferee of the petitioner, claimed the compensation for the land of the petitioner. The Additional District Magistrate (Land Acquisition), considering the dispute regarding the payment of compensation with regard to the land in question made a reference under Section 30 of the Act to the District Judge, Gautam Budh Nagar, for determining the person as to who is entitled for compensation. The District Judge, Gautam Budh Nagar vide order dated 24.1.2001 held that neither the petitioner nor the said N.S.R. Farms Pvt. Ltd. is entitled to receive compensation because the land in question would be deemed to be resumed by the State.
5. The petitioner challenged the order of the District Judge before this Court by way of filing First Appeal No. 384 of 2001. This Court vide an interim order dated 8.5.2001 directed that the amount of compensation shall remain in deposit under some interest bearing scheme and shall not be paid to any party until further orders of this Court. The First Appeal was finally allowed by this Court vide judgment and order dated 12.9.2005 declaring the petitioner to be entitled to get the compensation fixed under Section 11 of the Act in respect of the land in question. The State challenged the order passed in the First Appeal before the Hon'ble Supreme Court by way of filing S.L.P. No. CC 2064 of 2006-State of U.P. Vs. Smt. Sureshwati and others. The S.L.P. was dismissed by Hon'ble Supreme Court vide judgment and order dated 11.5.2006.
6. The petitioner thereafter filed an application dated 23.9.2005 before the respondent no. 3/Additional District Magistrate (Land Acquisition) for payment of the compensation along with interest at the rate of 15% per annum for her land acquired by the State. Even after obtaining the order regarding the payment of compensation in her favour from the Hon'ble Supreme Court, she was not paid compensation. She had approached this Court by way of filing Civil Misc. Writ Petition No. 38554 of 2006 seeking a direction to the respondents to pay the compensation. This Court after hearing the parties, directed the respondent no. 3 to pay compensation to the petitioner in accordance with law within six weeks from the date of filing of the representation by the petitioner, vide judgment and order dated 28.8.2006. The petitioner in compliance thereof moved a representation dated 13.9.2006 along with relevant documents before the respondent no. 3. Since the compensation even then was not paid to her, she had to file Civil Misc. Contempt Petition No. 4851 of 2006 before this Court for non-compliance of the judgment and order dated 28.8.2006 passed by this Court.
7. It was by the intervention of this Court, the respondent no. 3 after getting formalities namely thumb impression of the petitioner on the documents necessary for disbursement of the compensation completed, made payment of Rs.36,90,500/- (Rupees thirty six lakh ninety thousand five hundred) through cheque to the petitioner filing an affidavit for compliance before this Court. Thus, in the above contempt petition, compliance affidavit along with payment voucher of the said amount and the agreement alleged to be executed between the State and the petitioner were filed.
8. The petitioner subsequently came to know about the alleged agreement dated 6.1.2007 that it was executed in total defiance of the Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules, 1997. During hearing of the contempt petition in this Court, the petitioner demanded interest over the delayed payment. The Court in contempt petition vide judgment and order dated 8.12.2009 observed as follows:-
"Undisputed position is that in compliance of the order dated 28.8.2006, on 06.01.2007 petitioner has entered into agreement and award has been passed under Section 11(2) of Land Acquisition Act. As per term and condition of the aforesaid agreement, a specific clause is there that the owner/owners and interested party/parties shall not claim any amount in addition to the amount agreed upon as aforesaid as compensation and accept it without any protest. Once the petitioner has exercised her option and accepted the amount then question is, can any extra amount be paid to her by way of interest under Section 34 of Land Acquisition Act, in addition to the amount which has been agreed upon. These are substantive rights which are to be determined and adjudicated by competent court and appropriate forum and not in Contempt proceedings.
Consequently, in the facts of the case contempt application is dismissed. Notices issued are discharged. However, dismissal of contempt application will not prevent the petitioner-applicant, in case petitioner-applicant is entitled in law to claim interest also in term of Section 34 of Land Acquisition Act, keeping in view of provision as contained under Section 11(2) of Land Acquisition Act, along with the provisions of U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules 1997.
No order as to cost."
9. Sri Nalin Kumar Awasthi, the then Additional District Magistrate (Land Acquisition), Gautam Budh Nagar, through his counter affidavit dated 3.5.2010, on behalf of the respondents has submitted that the petitioner's land namely Plot No.554/3 measuring 5 Bighas was acquired. The payment of the compensation of the acquired land was made in terms of the U.P. Land Acquisition (Determination of Compensation and Declaration of Award by Agreement) Rules 1997 (hereinafter referred to as the Rules). Since title of the land of the petitioner was disputed at the time of payment of the compensation, the reference under Section 30 of the Act was sent to the District Judge, Gautam Budh Nagar. The petitioner was paid compensation amount in compliance of the order passed by this Court in Civil Misc. Writ Petition No.38554 of 2006, dated 28.8.2006.
10. The petitioner was paid compensation amount in terms of the Karar Prapatra executed between the petitioner and the representatives of the NOIDA authority on 6.1.2007. By execution of this agreement, the amount of Rs.36,90,500/- (Rupees thirty six lakh ninety thousand five hundred) was paid to the petitioner on 6.1.2007 i.e. the day of the execution of the said agreement. This amount was received by the petitioner without any objection. The compensation was paid when this Court interfered in Contempt Petition filed by the petitioner.
11. It has also been averred in the counter affidavit filed on behalf of the respondents that the petitioner demanded compensation amount with interest in Contempt Petition and when this Court was apprised that the petitioner had received the amount of compensation in terms of Karar Niyamavali, 1997, she is not entitled for any other benefit as per terms of the agreement, then this Court dismissed the Contempt Petition vide judgment and order dated 8.12.2009.
12. The main submission of the learned counsel for the respondents is that once the petitioner executed an agreement with NOIDA authority on 6.1.2007 and received compensation in terms of the agreement, she cannot claim interest on the ground of the delayed payment of the compensation. The respondents through this counter affidavit have admitted that since the possession of the land of the petitioner which was handed over to NOIDA authority in the year 1997, according to the terms of Karar, the petitioner is not entitled for any interest over the amount of compensation. The amount of compensation dues to the petitioner, could not be paid as the matter was under litigation. It was only after the judgment and order passed by this Court, it became clear that the petitioner is the real title holder of the land in question. The petitioner received compensation after execution of Karar Prapatra and term no.3 thereof itself declares that the landlady or representative cannot claim any amount more than agreed in the Karar and will accept the amount without any protest. According to the respondents, the delay in payment of the compensation was not deliberate but it was due to litigation in different courts.
13. The petitioner filed rejoinder affidavit averring that the possession of petitioner's land was taken in the year 1997 and the name of NOIDA authority was mutated in the revenue record in place of the name of the petitioner and the common award dated 11.1.2000 was made. Since Khasra number of the petitioner's land was not mentioned in the award, the petitioner was not paid any compensation though other farmers whose land adjoining to the land of the petitioner was also acquired, were paid compensation in the year 2000. Subsequently, non-mention of Khasra number of the petitioner's land in the award developed into a dispute regarding title of the petitioner. The rejoinder affidavit filed by the petitioner reiterated the same facts as mentioned in the instant writ petition.
14. The petitioner has further submitted that on receiving the contempt notice in Contempt Petition issued by this Court, the respondent no.3 had called upon the petitioner to sign on cyclostyle format of agreement on the pretence that for getting the compensation, she was required to sign on the papers without informing her about the terms and conditions thereof. After receiving the amount of compensation through cheque on signing the papers put forward by the respondent no.3, when the petitioner consulted the legal counsel then only she came to know that she was paid only amount of compensation to which she was entitled to receive in the year 2000 and no interest was paid over to her for the period w.e.f. 2000 to 2007.
15. According to the petitioner, there is no fault on her part and she was deprived of her land since 1997 as the possession was taken over by NOIDA authority and now she cannot be deprived of the interest over the amount of compensation paid to her after delay of more than seven years.
16. It has been submitted on behalf of the petitioner that Hon'ble Supreme Court in several cases held that the consent means free and voluntary consent or informed consent, hence terms and conditions and consequence of the agreement if not informed to a person who is illiterate then the consent cannot be said to be valid consent merely because he/she had signed the agreement. The petitioner is claiming the interest for the delayed payment of compensation under Section 34 of the Act. It is settled law that while dealing with the public, the State cannot act arbitrarily paying compensation to most of the persons in the year 2000 at the settled rates and while paying compensation to others at the same rate for the similar land in the 2007 without any interest. NOIDA authority had enjoyed the land of the petitioner since 1997 to 2007 without paying compensation which is nothing but unjust, embarrassment and harassment on the part of the State and NOIDA authority namely the respondents depriving the poor farmers from their land.
17. Learned counsel for the petitioner further submitted that even if it is admitted for the sake of argument that the petitioner had executed the agreement dated 6.1.2007, even in the agreement it was mentioned that both the parties agreed to refer the matter to the Collector and if the Collector made any award, both the parties would accept the award. The Collector has not made any award in pursuance of the agreement dated 6.1.2007. According to the agreement dated 6.1.2007, the State can take immediate possession of the land if required after execution of this agreement. But in the case of the petitioner, the possession was taken in the year 1997 and the petitioner had not accepted any part of this agreement that she will never claim any interest over the amount of compensation. By executing the said agreement, the petitioner had agreed to accept the rate of compensation determined at the rate of Rs.244/- per square yard, therefore, the petitioner is entitled to interst as claimed above. According to the petitioner, she is entitled to interest over the amount of compensation for the period w.e.f. 1997 to 2007, during which the land of the petitioner was in possession of the respondents/NOIDA authority.
18. The main thrust of the arguments of the learned counsel for the petitioner is that since other farmers of the land adjoining the petitioner's land whose land was acquired by the same notification during the same period and the award was fixed at the rate of Rs.244/- per square yard, were paid compensation in the year 2000 whereas the petitioner was paid compensation at the same rate in the year 2007, hence the petitioner is entitled to interest on the delayed payment of compensation in the year 2007.
19. According to the petitioner, those farmers who were paid compensation in the year 2000 got interest from the Bank over the amount for the period of seven years. The petitioner has laid emphasis on the term no.3 of the agreement executed on 6.1.2007 between the petitioner and NOIDA authority or the State Government. The same is quoted hereinbelow:
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20. We have deeply and carefully gone through the terms and conditions of the agreement. There is no clause to prohibit the petitioner from claiming any interest over the amount of compensation. A perusal of the whole agreement shows that there is no clause dis-entitling any person to claim interest over the amount of compensation. Clause no.4 of this agreement stipulates that in case the land is handed over back to the land holder, he or she shall pay back the amount of compensation to the Government or authority at the interest of 9% for the first year and 15% for the subsequent years. Thus, there is a clause in favour of the authority or State Government entitling to interest in case land had to be handed back to the landholder.
21. The main submission of the learned counsel for the respondents is that since the petitioner was not allowed the interest in Contempt Petition, she cannot agitate the same point of interest in the instant writ petition. Taking us through the judgment and order dated 8.12.2009 passed by this Court, the learned counsel for the petitioner has submitted that this Court dismissed the Contempt Petition discharging the contempt notices with the observation that the dismissal of Contempt Petition will not prevent the petitioner to claim interest under Section 34 of the Act.
22. The Hon'ble Supreme Court in the case of Indian Council for Enviro-Legal Action Vs. Union of India, (2011) 8 SCC 161, in paragraphs 149, 150, 191 and 192 held that;
"149. No one can take advantage of his own wrong. Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non-compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them."
"150. Whatever benefits a person has had or could have had by not complying with the judgment must be disgorged and paid to the judgment- creditor and not allowed to be retained by the judgment-debtor. This is the bounden duty and obligation of the court. In fact, it has to be looked at from the position of the creditor. Unless the deprivation by reason of delay is fully restituted, the creditor as a beneficiary remains a loser to the extent of the unrestituted amount."
"191. In consonance with the principles of equity, justice and good conscience Judges should ensure that the legal process is not abused by the litigants in any manner. The court should never permit a litigant to perpetuate illegality by abusing the legal process. It is the bounden duty of the court to ensure that dishonesty and any attempt to abuse the legal process must be effectively curbed and the court must ensure that there is no wrongful, unauthorised or unjust gain for anyone by the abuse of the process of the court. One way to curb this tendency is to impose realistic costs, which the respondent or the defendant has in fact incurred in order to defend himself in the legal proceedings. The courts would be fully justified even imposing punitive costs where legal process has been abused. No one should be permitted to use the judicial process for earning undeserved gains or unjust profits. The court must effectively discourage fraudulent, unscrupulous and dishonest litigation."
"192. The court's constant endeavour must be to ensure that everyone gets just and fair treatment. The court while rendering justice must adopt a pragmatic approach and in appropriate cases realistic costs and compensation be ordered in order to discourage dishonest litigation. The object and true meaning of the concept of restitution cannot be achieved or accomplished unless the courts adopt a pragmatic approach in dealing with the cases."
23. Hon'ble Supreme Court in the case of Rakesh Kumar Jain and another Vs. State of U.P. through Collector and another (2007) 2 SCC page 461, has laid down the law on the point of interest as provided under Section 34 of the Act. Hon'ble Supreme Court observed that where the land of the land owner is acquired and the possession thereof, is taken by the development authority without following procedure under the Act, the development authority in compliance of the order of the Court issued the cheque by way of the payment of the compensation after a reasonable delay, the land owner having refused to receive the cheque, the authority deposited the same with the Court which does not carry any interest. The land owner is entitled to interest of the delayed payment of compensation. Hon'ble Supreme Court in the case of Rakesh Kumar Jain (supra) held the development authority liable to pay simple interest at the rate of 18% per annum from the date of taking the possession of the land till the date of actual payment because the land owner has been wrongly deprived of the beneficial use of his money.
24. In the case of Lucy Mary Agnes Saladanha Vs. The Land Acquisition Officer, AIR 1965 Mysore 72, the division Bench held that the interest under Section 34 of the Land Acquisition Act, 1894 becomes payable by the Land Acquisition Officer in a case where compensation amount is not paid to the claimant. It was held in clear terms that interest can be claimed under this Section even in a case where the Land Acquisition Officer does not pay the compensation awarded to the claimant. The short point involved in the case of Lucy Mary (supra) before the division Bench was whether the land owner is entitled to interest on the compensation awarded by the Land Acquisition Officer by his award for the period between the date on which possession of the acquired property was taken and the date on which the compensation amount was deposited. The division Bench answered the question in affirmative directing the respondent/Land Acquisition Officer to pay the interest to the claimant on the sum awarded for the period between the date on which the possession of the acquired land was taken and the date on which the amount of compensation was deposited.
25. Hon'ble Supreme Court in the case of Lila Ghosh (Smt) (Dead) through LR. Tapas Chandra Roy Vs. State of West Bengal (2004) 9 SCC 337, held that the interest under Section 34 of the Land Acquisition Act, 1894 is payable only if the compensation, which is payable, is not paid or deposited before taking possession. The interest under this Section can only start running from the date the compensation is payable. Normally, this would be from the date of the award. There may be cases under Section 17 whereby invoking urgency clause, the possession has been taken before the acquisition proceedings are initiated. As in cases under Section 17, compensation is payable, interest may run from the date possession was taken. In the case of Lila Ghosh (supra), the compensation was allowed from the date of award, as compensation payable was not paid or deposited, interest thereof, either under Section 28 or 34 will be payable from the date of award till payment.
26. Hon'ble Supreme Court in the case of R.L. Jain Vs. DDA and others (2004) 4 SCC 79, in paragraph no.17 observed as follows:
"Now, the normal rule is that if on account of acquisition of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest thereon from the date of dispossession till the date of payment thereof. In the present case the land has been acquired only after the preliminary notification was issued on 9.9.1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the landowner himself and consequently, he was not entitled to compensation or interest thereon for the anterior period.
27. In the instant case, the sole point for consideration is whether the petitioner/land owner is entitled to get interest over the delayed payment of the compensation from the respondent/ NOIDA authority from the date of taking possession of the acquired land of the petitioner till the date of actual receipt of the amount of the compensation from the respondents. In this case, the petitioner's land was acquired along with adjoining land of the other farmers under the same notification and at the same rate and the common award along with other farmers was passed on 11.1.2000. All the other farmers except the petitioner were paid compensation in the year 2000. The petitioner was not paid compensation in the year 2000 as Khasra number of her land was not mentioned in the award, which started a series of long litigation and the petitioner had to run from pillar to post upto Hon'ble Supreme Court in order to get compensation for the land which was acquired and the possession thereof was taken from her in the year 1997, even her title to the land was tried to be put into dispute and she ultimately succeeded in establishing her real and genuine title to the land acquired.
28. This Court in First Appeal filed by the petitioner vide judgment and order dated 12.9.2005 declared the petitioner to be entitled to recover the compensation as fixed under Section 11 of the Act in respect of her land in question. The title of the petitioner, Smt. Sureshwati was even valid and Patta which was granted to her in the year 1981 was also found to be valid by the Board of Revenue vide judgment and order dated 24.6.1999. Thus, this Court vide judgment and order dated 12.9.2005 held the petitioner to be entitled to recover the compensation from the respondents but even then she was not paid the compensation till 6.1.2007. The respondents had to pay compensation by executing an agreement on 6.1.2007 when the respondent no.3 was summoned in Contempt Petition filed by the petitioner and the respondent no.3 in order to save the respondents from punishment in Contempt Petition got the agreement executed between the authority and the petitioner on 6.1.2007 and then paid the compensation of Rs.36,96,500/- (Rupees thirty six lakh ninety six thousand five hundred) through cheque. Thus, even after the judgment and order dated 12.9.2005 passed by this Court in favour of the petitioner against the respondents, the petitioner was not paid compensation dragging the mater on one pretext or other.
29. It is quite established on record that all the other farmers whose adjoining land was acquired under the same notification as that of the petitioner, the common award including the acquired land of the petitioner was passed on 11.1.2000, were paid compensation in the year 2000 but the petitioner since she was a helpless lady and widow of Ex-army man who was granted Patta of the land in question as war widow and was admitted as Bhumidhar with non-transferable rights thereof, was not granted compensation inspite of the decision of this Court in her favour.
30. The respondents preferred S.L.P. before Hon'ble Supreme Court which was also dismissed vide judgment and order dated 11.5.2006. Inspite of dismissal of S.L.P. by Hon'ble Supreme Court, the respondents were not willing and interested to pay the compensation to the petitioner. The petitioner was then compelled to file another Civil Misc. Writ Petition No.38554 of 2006 before this Court for a direction to the respondents to pay the amount of compensation and again this Court directed the respondents to make the payment of the compensation within six weeks. This all shows apathy, arbitrariness, malafide, unwillingness on the part of the respondents in adopting a tough and unjust attitude towards the petitioner for not making the payment of compensation to her since the year 2000 to January, 2007. When the respondents felt helpless and remediless after exhausting all ways and means to harass and embarrass the petitioner and found themselves to be caught in the net in this very Court in Contempt Petition then they had to make the payment of the compensation to the petitioner on 6.1.2007 and that too by compelling her to execute an agreement dated 6.1.2007 in a whimsical, arbitrary, and unjust way by putting her signature/thumb impression thereon and when she completed these formalities, she was paid the amount of compensation through cheque on 6.1.2007 itself.
31. These facts and circumstances are enough to inspire this Court that the petitioner should be awarded interest over the delayed payment of compensation from the date of award viz 11.1.2000 to the date of payment viz 6.1.2007 and the respondents are bound to pay the interest at the rate of 9% per annum.
32. In view of the foregoing discussions, we are of the opinion that the appellant is entitled to interest from the date of award i.e. 11.1.2000 till the date on which the compensation was paid to the appellant i.e. 6.1.2007 at the rate of 9% per annum from the respondents. It is, accordingly, ordered.
33. The writ petition is, accordingly, allowed.
34. No order as to costs.
Dt. 11.11.2011 rkg