Bombay High Court
Bhiwandi Nizampur City Municipal ... vs State Of Maharashtra Through Spl. ... on 23 September, 2016
Bench: Dr. Shalini Phansalkar-Joshi
vks
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.205 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ig ]Respondent No.1
]
2. Smt. Shaheda Shahnawaz Vinchu ]Respondent No.2
adult,Occn.Household ]Original
Residing at: 76/1st Mohalla, Nizampura ]Petitioner.
Bhiwandi 421 302 ]
WITH
FIRST APPEAL NO.206 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Mohkamuddin Gulam Gaus Kazi ]Respondent No.2
age: 59,Occn:Business ]Original
Residing at: 181/4th Patel Mohalla ]Petitioner.
Bhiwandi 421 302 ]
WITH
FIRST APPEAL NO.207 OF 2014
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Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Shahnawaz Siddique Vinchu ] Respondent No.2
age: adult,Occn: business ] Original
Residing at: 13/1st Mohalla, Ghans Bazar ]Petitioner.
Bhiwandi ig ]
WITH
FIRST APPEAL NO.208 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Zaki Gulam Gous Kazi ] Respondent No.2
age: adult,Occn: business ] Original
Residing at: 181/4th Patel Mohalla ]Petitioner.
Nizampura, Bhiwandi, Dist: Thane ]
WITH
FIRST APPEAL NO.210 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
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Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Akhtari Mokhmuddin Kazi (since deceased) ] Respondent
Through: ] Nos.2 (a)
2(a) Mohkamuddin Gulam Gaus Kazi ] to
Age: 66 years, Occn. Business ] 2((d)
r/o Aashiana, 181/4th Patel Mohalla ] Original
Nizampur, Bhiwandi 421 302, Dist. Thane ] heirs of
ig ] Petitioner.
2(b) Smt. Sadaf Danish Patel ]
Age:39 years, Occ. Household, ]
r/o 38/1, GF 3rd Mohalla, Nizampur ]
Bhiwandi, Dist.Thane. ]
]
2(c) Safi Mokkhmuddin Kazi, ]
age: 38 years,Ocn. Doctor, ]
r/o Aashiana, 181/4th patel Mohalla ]
Nizampur, Bhiwandi 421 302, Dist.Thane ]
]
2(d) Smt. Hina Wazid Zakeria ]
age: 37 rs, Occn.household. ]
r/o Manzile Nizam, 1st floor ]
Burhan Chowk, Nala Spara ]
Tal. Vasai, Dist.Thane. ]
WITH
FIRST APPEAL NO.213 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
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Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Shakila Iqbal Goray ] Respondent No.2
age: adult,Occn: Household ] Original
Residing at: Village Talwali ]Petitioner.
Tal. Bhiwandi, Dist.Thane ]
WITH
FIRST APPEAL NO.215 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ig ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Smt. Rehana Aqueel Vinchu ] Respondent No.2
age: adult,Occn: business ] Original
r/o 19/1st Mohalla Nizampur, ]Petitioner.
Tal. Bhiwandi, Dist.Thane ]
WITH
FIRST APPEAL NO.221 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Amichand Lavji Madhani ] Respondent No.2
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age: adult,Occn: business ] Original
Residing at: 111 Chawala Building ]Petitioner.
Room No.21, 2nd Floor, Mumbai Devi ]
Mumbai 400 003 ]
WITH
FIRST APPEAL NO.224 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ig ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Sarfaraj Siddique Vinchu ] Respondent No.2
age: adult,Occn: business ] Original
Residing at: 13/1st Mohalla, Ghans Bazar ]Petitioner.
Bhiwandi ]
WITH
FIRST APPEAL NO.228 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Shayesta Tafaaj Dhole ] Respondent No.2
age: adult,Occn: Household ] Original
Residing at: Patel Mohalla, 4th ] Petitioner.
Nizampura, Tal. Bhiwandi, Dist. Thane ]
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WITH
FIRST APPEAL NO.233 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Laeeque Gulam Gaus Kazi ] Respondent No.2
age: adult,Occn: businessig ] Original
Residing at: 181/4th Patel Mohalla, ]Petitioner.
Nizampur, Bhiwandi, Dist. Thane. ]
WITH
FIRST APPEAL NO.315 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Smt Yasmin Zahid Patel ] Respondent No.2
age: 51 yrs, ,Occn: household ] Original
Residing at: Haji Miyan Patel Manzil ]Petitioner.
Gr. Floor, 15, Dr. Nair Road, ]
Agripada, Mumbai 400 011 ]
WITH
FIRST APPEAL NO.320 OF 2014
Bhiwandi Nizampur City ] Appellant
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City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Biharilal Manilal Shah ] Respondent No.2
Through his legal heir ] Heir of
Manoj Biharilal Shah ] Original
age: 38 yrs, Occn: business ] Petitioner
Residing at: 37, G Tambakanta, Pydhonie, ]
Mumbai 400 003 ig ]
WITH
FIRST APPEAL NO.365 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Zakir Gulam Gous Kazi ] Respondent No.2
age: 54 yrs, ,Occn: household ] Original
Residing at: Aashiana, 181/4th Patel Mohalla ]Petitioner.
Nizampur, Bhiwandi, Dist. Thane ]
WITH
FIRST APPEAL NO.366 OF 2014
Bhiwandi Nizampur City ] Appellant
City Municipal Corporation ] Original
Kap Ali, Bali, ] Respondent
District: Thane ] No.2.
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V/s.
1. The State of Maharashtra ]Respndent No.1
Special Land Acquisition officer, ]Original
District: Thane ]Respondent No.1
]
2. Smt Nuzhat Nizar Kazi ] Respondent No.2
age: adult, ,Occn: household ] Original
Residing at: Haji Miyan Patel Manzil ]Petitioner.
R/o 29, Shaniwar Peth, Pune-30, ]
Mr. N. R. Bubna, for the appellant in all appeals.
Mr. Rajesh Datar, for Respondent No.2 claimant inall appeals.
Mr. Sooraj Halke, AGP for the respondent No.1 State in all appeals
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 23rd SEPTEMBER, 2016.
COMMON JUDGMENT :
1. As all these appeals raise common questions of law and
facts, they are heard together and are being decided by this common
judgment.
2. These appeals are preferred taking an exception to the
judgment and order dated 26.3.2013, passed by the Joint Civil Judge
Senior Division, Thane, in each of Land Reference Cases filed by
respondent No.2.
3. By the impugned judgment and order, the learned trial Court
has enhanced the compensation amount to Rs.1400/- per square meter
and at the same time, directed statutory benefits to be paid with the
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additional component and the amount of solatium @ Rs.9% per annum for
the first year and thereafter @ Rs.15% per annum for the subsequent
years from the date of possession i.e. 17.02.1990, till its realization.
4. Facts of the appeal can be stated in brief as under;-
The Respondent No.2/claimants in each of the appeal were
the owners of the land bearing City Survey Nos.4366 (part), 4364 (part),
admeasuring 9139.15 Sq. meters, situate at Nizampur Bhiwandi, District:
Thane. The said land was reserved for Primary School and play ground in
the development plan, prepared by the then Bhiwandi Municipal Council
(now Municipal Corporation) on 19th December, 1989. The claimants
herein addressed a letter to the Chief Officer, of the Municipal Council
offering to immediately hand over possession of two portions of the land
bearing C.T.S.No.4366 for the public purpose of construction of school
and play ground provided the market value of the plot is paid at the rate
between Rs.500/- sq. yard to 600 per sq. yard. It was further stated that
the price of the land may be fixed by such procedure as may be
applicable. The possession of the land was accordingly handed over to
the appellant Municipal Council vide receipt dated 17.2.1990. In the
possession receipt, it was inter alia recorded that in pursuance of the
correspondence arrived at between owners i.e. the claimants and the
Municipal Council, it was agreed by the claimants that pending declaration
of the final award by competent authority under the Land Acquisition Act,
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1894 (for short called as L.A. Act) as well as Maharashtra Regional Town
Planning Act, 1966 (for short called as MRTP Act), the owners/claimants
shall hand over portion of the said plot of land so as to enable the
Municipal Council, to undertake development of the said land for the
public purpose of construction of Primary School and play ground. It was
also recorded in the possession receipt that the owners shall execute
final deed in favour of the Municipal Council, after the award is declared
by the competent authority, subject to payment of compensation by the
Municipal Council and the Municipal Council shall pay price of the land as
per award as also owners/claimants shall have right to challenge the
award as provided by law.
5. In pursuance thereto, on 14th March, 1990, the Municipal
Council passed resolution authorizing payment of 50% amount, as part
payment at the rate of Rs.125 per sq. meter. The Assistant Town Planning
vide letter dated 6th June, 1995 informed the Chief Officer, Municipal
Council, that the value of the land is Rs.140/- per sq. meter. According to
the claimants, the said decision was neither communicated by the
Municipal Council or the Assistant Director, Town Planning nor copy of the
letter was served on them, hence they accepted the payment without
prejudice to their rights.
6. Subsequent thereto, on 29th November, 1991, Municipal
Council addressed a letter to the claimants offering 30% further payment
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assuring that the said payment would be made at the time of execution of
the sale deed. In reply to the said letter of the Municipal Council, the
claimants/respondent No.2 informed vide their letter dated 9 th December,
1995 that they had offered to co-operate with Municipal Council in a public
cause by handing over possession of the property, even before acquisition
proceedings were taken up because it was represented to them that such
procedure will take long time and for that purpose development work
should not be halted. However, at no point of time, claimants had
accepted any amount of compensation as adequate. Conversely, the
claimants had insisted on acquisition of land under the provisions of Land
Acquisition Act, so that legal justice can be done to them.
7. In view of this demand made by the claimants for acquisition
of land under the provisions of Land Acquisition Act, on 13 th April, 1992,
Municipal Council, passed resolution to refer the matter for declaration of
award to the Collector of Thane, by letter dated 17 th January,1995. The
Administrator of the Municipal Council, forwarded their proposal for
acquisition of the land to the Collector. Accordingly on 8 th August, 2000,
Notification under Section 6 of the L.A. Act read with Section 126(4) of the
MRTP Act, was issued on 21st October, 2000. Notice under Section 9 of
the Act was issued to the persons interested inviting claims. After the
claims were received, on 31st March, 2001, Special Land Acquisition
Officer (for short, referred as, "SLAO"), passed award after taking
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approval of the District Collector,Thane. As the payment was not received,
the claimants filed Writ Petition No.424 of 2002 on 8.1.2002 seeking
directions to the State Government and the Municipal Corporation to pay
compensation as per award made by SLAO.
8. The appellant herein i.e. Municipal Corporation, then
preferred Writ Petition No.859 f 2002 before this Court, challenging the
said award. Writ Petition came to be dismissed by this Court vide
judgment and order dated 12th August, 2003.
9.
In the meanwhile the claimants, herein had filed various Land
References before the trial Court, seeking enhancement of the amount of
compensation. It was specific contention of the claimants that the amount
of compensation was not calculated properly; it was highly inadequate
considering locality and the potentiality of the property being non
agricultural and required for development purpose. It was contended that
the suit property is situated in the heart of the city, having all the facilities
and is adjacent to Bhiwandi Nashik Highway, but SLAO has failed to take
into consideration these important factors while fixing rate of
compensation. Moreover, it was urged that while fixing rate of
compensation, SLAO has made the divisions therein. He has fixed
compensation at the rate of Rs.1345 for the first 1000 sq. meters and
Rs.807 per sq. meter for the remaining area. However, SLAO has failed
to explain on which basis such differentiation was made. It was further
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urged that the claimants had co-operated and voluntarily surrendered the
possession of the land considering public purpose for which it was
required and in view thereof they were entitled to get adequate amount of
compensation, which was not done by the impugned award and thus, the
claimants claimed enhancement of compensation to the tune of Rs.2500/-
per sq.meter.
10. These References came to be resisted by the respondent
No.1 State of Maharashtra vide affidavit-in-reply and written statement at
Exh.17, admitting the fact that the claimants were the owners and
possessors of the land and they had voluntarily handed over possession
of the same for the public purpose of primary school and playground.
Accordingly award was passed after acquisition of the said land under the
provisions of Land Acquisition Act. It was, however, denied that the
amount of compensation awarded by the SLAO was inadequate or it was
not just and proper. According to respondent No.1, SLAO has considered
all the material aspects, while determining the amount of compensation
and it was fixed at the market rate prevailing at the relevant time;
therefore, no interference was warranted in the impugned award.
11. The appellants herein Municipal Corporation, filed its
affidavit in reply at Exh.24 and supported the case of respondent No.1
State and raised the same contention that the amount of compensation is
fixed by SLAO after considering all the relevant factors and therefore, the
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References hold no merits.
12. On the respective pleadings of the parties, the trial Court
framed issues at Exh.25. In support of their respective contentions, parties
examined themselves.
13. Both the appellant and respondents herein relied upon
various documentary evidence like sale instances of the area adjacent
thereto and also copy of ready reckoner, copy of Bazar Mulya Takta and
other relevant documents.
14.
On the basis of this oral and documentary evidence, trial
Court came to the conclusion that, having regard to the location of the suit
land in the heart of the City of Bhiwandi and considering the fact that it
was adjacent to 60 feet width D.P. road and surrounded by the residential
houses and commercial buildings, compensation fixed by the SLAO was
not just and adequate. While doing so, the trial Court also considered the
ready reckoner and Bazar Mulya Takta, sale deeds of the nearby
properties, on which parties had placed reliance and accordingly
enhanced compensation to Rs.1400/- per sq. meters. The trial Court also
found that there was absolutely no reason for the SLAO to make any
distinction for fixing compensation at the rate of Rs.1345 for first 1000 sq.
meters and Rs.807 per sq. meter for the remaining area.
15. While awarding this compensation at the enhanced rate as
stated above, the trial Court also granted solatium of 9% per annum for
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the first year and thereafter at the rate of Rs.15% per annum for the
subsequent years from the date of possession of i.e. 17.2.1990 till its
realisation.
16. These judgments and orders, passed in the Land References,
are challenged in these appeals by learned counsel for appellant, the
Municipal Corporation, mainly on the two grounds. In the first place, it is
submitted that there was no sufficient material before the trial Court for
enhancement of the compensation amount from Rs.1345/- per sq. meter
for first 1000 sq. meters and Rs.807/- per square meter for the remaining
area as awarded by the S.L.A.O, to Rs.1400/-per sq. meter. It is urged by
learned counsel for the appellant, that the trial Court has not considered
the relevant sale instances which were produced by the Municipal
Corporation at the time of hearing. Secondly it is urged that in paragraph
No.23 of its judgment, the trial Court itself has made observation that:-
"Court should have to take middle way while granting and
enhancing rate of compensation, though the aggregate rate
comes to Rs.950/- per sq. meter, however, I am of the view that
an amount of Rs.1400/- per sq. meters would be reasonable and
appropriate rate of the suit property".
17. It is urged by learned counsel for appellant Shri. Bubna, that
these very observations made by the trial Court make it apparently clear
that the trial Court has enhanced compensation amount to Rs.1400/- per
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sq. meter at its own whims and fancies, though the trial Court itself has
considered that aggregate rate comes to Rs.950/- per sq. meter. Hence
according to learned counsel for appellant, without there being any
reasoning, recorded by the trial Court as such, the trial Court has
enhanced the compensation and on this very ground itself, the impugned
judgment and order of the trial Court needs to be interfered with.
18. Per contra, learned counsel for respondent claimants have
taken this Court through the entire judgment and award of the trial Court,
pointing out that in various paragraphs, the trial Court has recorded the
reasons why it has come to the conclusion to enhance the compensation
amount to Rs.1400/- per sq. meter.
19. With the able assistance of learned counsel for parties, this
Court has gone through the impugned judgment and order of the trial
Court, and on perusal of the same this Court is satisfied that the trial Court
has elaborately considered the reasons as to why it found it fit to enhance
the compensation amount to Rs.1400/- per sq. meter. The trial Court, in
paragraph No.17 of its judgment has considered various sale instances on
which reliance was placed by the parties. The Trial Court also taken into
consideration the ready reckoner and Bazar Mulya Takta, which were
produced by the parties themselves and found that this ready reckoner
and Bazar Mulya Takta are squarely and perfectly applicable to the lands
in the instant case. Trial Court also found that in the award itself, SLAO
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has noted that the suit lands are situated in the heart of the Bhiwandi city,
adjacent to 60 feet D.P. road and very near to Nashik Agra Road. The trial
Court also noted that residential houses and power looms are in the
vicinity as well as the suit property is also acquired for the purpose of
Primary School and playground. The trial Court, further considered the
fact that the suit land is not only non-agricultural, but it has all
infrastructural facilities such as road, water, electricity, drainage etc.
20. The trial Court further found that SLAO has totally ignored
the rate mentioned in the ready reckoner, produced at exh. 80, 94 and 97
which were filed in L.A.R. No.111 of 2011 though they were very relevant
for the purpose of deciding the compensation amount. The trial Court also
considered the fact that there was every possibility of the prices of the
land increasing in the surrounding area due to faster development and the
potentiality of the land. Having regard to all these factors, the trial Court
found that the compensation amount, as awarded by the S.L.A.O., needs
to be enhanced.
21. In my considered opinion, all these factors which are
discussed in detail by the trial Court, in its judgment, in paragraph Nos. 17
to 19, are not only relevant factors but they are just and proper factors to
be considered for the purpose of deciding the amount of compensation in
respect of any property. It is pertinent to note that when award itself
mentions that the suit property is situated in the heart of the city, adjacent
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to 60 feet D.P. road and very near to Nashik-Agra road and when
admittedly the suit property was non-agricultural land having all the
necessary amenities and facilities and further considering the most
important factor that the suit property was acquired for the purpose of
Primary School and playground, all these factors make it essentially clear
that the suit property was very much in the centre of the city and
surrounded by the residential and commercial premises. The trial Court,
has in this respect also considered the oral evidence as well as other
documents like copies of maps at Exh.106 and 107 and observed that the
Bazar Mulya Takta and ready reckoner of the year 2000 shows the price
of the suit land in the range of Rs.1400/- per sq. meter and Rs.2745 per
sq. meter. It is pertinent to note that in paragraph No.16, the trial Court
has also taken note of the fact that the suit property falls within location of
area known as Chavindra road. Thus, it is apparent that the trial Court has
considered all the relevant factors while enhancing amount of
compensation.
22. As to the observations made by the trial Court in paragraph
No.23 of its judgment and order, that the aggregate rate comes to
Rs.950/- per sq. meter, the trial Court has arrived at this aggregate rate in
view of the distinction made by the Land Acquisition Officer for awarding
compensation at the rate of Rs.1345/ per sq. meter for the first 1000 sq.
meters and Rs.807 for the remaining area. Needless to say that the
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SLAO has not at all given any reason for such distinction.
23. Thus, having regard to all the relevant factors which the trial
Court has discussed in its judgment and especially to the rate mentioned
in the ready reckoner and Bazar Mulya Takta, coupled with the sale
instances, produced by the parties, this Court has no hesitation in coming
to conclusion that the Trial Court has rightly arrived at the compensation
at the rate of Rs.1400/- per sq. meter. Hence, absolutely no grounds are
made out to cause any interference in the same so as to reduce the said
amount.
24. It may be stated that the claimants herein are also not
aggrieved by the said rate of compensation, as fixed by the trial Court and
have not challenged the impugned judgment and order of the trial Court,
which makes it clear that they also found the said amount to be
reasonable and appropriate. Therefore, so far as first challenge to the
judgment and order of the trial Court, relating to the amount of
compensation at the rate of Rs.1400/- per sq. meter needs to be rejected
outrightly.
25. The next ground on which learned counsel for the appellant
has challenged the impugned judgment and order of the trial Court is
relating to the award of interest from the date of possession i.e. 17.2.1990
and there appears to be much substance in this contention.
26. It is pertinent to note that the trial Court while awarding the
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interest from the date of handing over possession has not given any
reason. Only in the last paragraph No.25 of the judgment and order, the
trial Court has made such order, but without there being any discussion as
to why trial Court found it fit to award interest from the date of possession,
when as per law and settled legal position and having regard to provisions
of Land Acquisition Act itself, cause for the interest accrues from the date
of Notification under Section 4 of the L.A. Act and not from the date of
possession. If at all any authority is required for this legal proposition,
learned counsel for appellant herein has rightly placed reliance on two
decisions of the Apex Court. First is Siddhappa Vasappa Kuri and anr
-vs- Special Land Acquisition officer and anr wherein after taking
review to all provisions of Land Acquisition Act, the Apex Court was
pleased to observe in paragraph No.6 of it's judgment as follows :-
"It is, as we see it, clear from Section 23(1-A) that the starting
point for the purposes of calculating the amount to be awarded
thereunder, at the rate of 12 per centum per annum on the
market value, is the date of publication of the Section 4
notification. The terminal point for the purpose is either the
date of the award or the date of taking possession, whichever
is earlier. In the present case, possession of the land having
been taken prior to the publication of the Section 4 notification,
that terminal is not available. The only available terminal is the
date of the award. The High Court, therefore, was in no error
1 (202) 1 SCC 142,
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in holding that the appellants were entitled to the additional
compensation under Section 23(1-A) for the period 8-3-1991
to 6-2-1993".
27. It was further held in this authority that section 23 (1-A) of the
L. A. Act admits of no other meaning than that the interest is required to
be calculated from the date of notification, even if possession of the land
is taken prior to the publication of section 4 Notification.
28. In the second judgment of the Apex Court, in case of R.L.
Jain (d) by Lrs. -vs- DDA and ors, 2 also similar question was raised
before Apex Court as to, "whether in a case where possession is taken
before issuance of notification under Section 4(1) of the L.A. Act, the
claimant is entitled to interest for such anterior period in accordance with
Section 34 of the said Act?" The Apex Court, in this case was dealing with
two conflicting decisions of the Division Benches, namely Shree Vijay
Cotton & Oil Mills Ltd v. State of Gujarat3 and Union of India -vs-
Budh Singh4. In the case of Shree Vijay Cotton Mills (supra), the Division
Bench of the Supreme Court has awarded interest from the date of
possession in view of Section 34 of the Act; whereas in case of Budh
Singh (supra) such claim for the interest from the date of possession was
rejected.
2 (2004) 4 SCC 79,
3 (1991) 1 SCC 363
4 (1995) 6 SCC 233
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29. In this judgment of R. L. Jain (supra), while resolving the
conflict between these two decisions, the Hon'ble Supreme Court once
again analyzed the provisions of the L. A. Act and held that "Land
Acquisition Act" is a complete Code covering entire field of operation of
the liability of the State to make payment of interest and entitlement
thereof by the owner when the land is taken over. It was, therefore, held
that Court has no power to impose any condition to pay interest in excess
of the rate and the manner prescribed by the statute as well as for a
period anterior to the publication of notification under Section 4(1) of the
Act. According to the Hon'ble Supreme Court, the parameter for initiation
of proceedings is the publication of the notification under Section 4(1) of
the Act, which would give legitimacy to the State to take possession of the
land in accordance with the provisions of the Act. Hence, any possession
taken otherwise, would not be considered to be possession taken under
the L. A. Act. It was also held that the Land Acquisition Act being self
contained code, the common law principles of justice, equity and good
conscience cannot be extended in awarding interest, contrary to the
provisions of the statute.
30. In this respect it would be useful to reproduce relevant portion
of paragraph No.11 as under:-
"11. ..... ....... ......... ....... .... The Scheme of the Act does not
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contemplate taking over of possession prior to the issuance of the
notification under section 4(1) of the Act and if possession is taken
prior to said notification, it will be dehors the Act. It is for this reason
that both Sections 11(1) and 23(1) enjoin the determination of the
market value of the land on the date of publication of notification
under Section 4(1) of the Act for the purpose of determining the
amount of compensation to be awarded for the land acquired under
the Act. These provisions show in unmistakable terms that
publication of notification under Section 4(1) is the sine qua non for
any proceedings under the Act.
31.
In the paragraph No.12, it was held that :-
"The expression "the Collector shall pay the amount awarded with
interest thereon at the rate of nine per centum per annum from the
time of so taking possession until it shall have been so paid or
deposited" should not be read in isolation divorced from its
context. The words "such compensation " and "so taking
possession" are important and have to be given meaning in the
light of other provisions of the Act. "Such compensation" would
mean the compensation determined in accordance with other
provisions of the Act, namely, Sections 11 and 15 of the Act which
by virtue of Section 23(1) mean market value of the land on the
date of notification under Section 4(1) and other amounts like
statutory sum under Sub-section (1-A) and solatium under Sub-
section (2) of Section 23. The heading of Part II of the Act is
Acquisition and there is a sub-heading "Taking Possession"
which contains Sections 16 and 17 of the Act. The words "so
taking possession" would therefore mean taking possession in
accordance with Sections 16 or a17 of the Act. These are the only
two Sections in the Act which specifically deal with the subject of
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taking possession of the acquired land. Clearly the stage for taking
possession under the aforesaid provisions would be reached only
after publication of the notification under Sections4(1) and 9(1) of
the Act. If possession is taken prior to the issuance of the
notification under Section 4(1) it would not be in accordance with
Sections 16 or 17 and will be without any authority of law and
consequently cannot be recognised for the purposes of the Act.
For the parity of reasons the words "from the date on which he
took possession of the land" occurring in Section 28 of the Act
would also mean lawful taking of possession in accordance with
Sections 16 or 17 of the Act. The words "so taking possession"
can under no circumstances mean such dispossession of the
owner of the land which has been done prior to publication of
notification under Section 4(1) of the Act which is de hors the
provisions of the Act".
32. Thus, ultimately, Apex Court in this decision upheld the
view taken in the case of Budh Singh (supra) and categorically held
that even on equitable grounds, the interest cannot be awarded from
the date of possession.
33. In the instant case though it is true that the possession of
the land was handed over voluntarily by the respondents, in the year
1990 itself that is before publication of the award, as such possession
does not amount to acquisition of possession under the provisions of
the L. A. Act; in view of the legal position, as crystallized and laid
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down by the Apex Court in the above said two authorities, the
impugned order passed by the trial Court granting interest from the
date of possession i.e. 7.2.1990 is required to be quashed and set
aside. Needless to state that, respondents are entitled to the interest
at the rate as awarded by the trial Court only from the date of
Notification under Section 4 of the Act ON 8.8.2000. Hence following
order.
Order
i.
All the above appeals are accordingly allowed partly, with
proportionate costs.
ii. The impugned judgment and order of the trial Court,
enhancing the compensation to the tune of Rs.1400/- per sq.
meter, is hereby confirmed.
However, the impugned order of the trial Court awarding
iii.
interest from the date of possession i.e. 7.2.1990 is quashed
and set aside. It is directed that the respondent/claimants are
entitled to the interest at the rate as awarded by the trial Court,
from the date of Notification under Section 4 of the Land
Acquisition Act i.e. 8.8.2000.
iii) The trial Court is directed to pay the compensation amount
to respondents with interest as directed by this Court and
refund the balance amount of interest to the appellant.
iv) Considering the fact that the possession of the land was
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handed over to the appellant by the claimants, way back in the
year 1990, the trial Court is directed to do the needful as
expeditiously as possible and preferably within one month
from the receipt of this order.
v) Aaccordingly all the appeals are disposed off finally.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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