Bombay High Court
The State Of Maharashtra vs Kashiram Bhaudu Hulgunde on 9 May, 2017
Bench: Dr. Shalini Phansalkar-Joshi
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.613 OF 1994
The State of Maharashtra ]
[Through the Special Land Acquisition Officer, ]
Nashik ] ] .... Applicant
Versus
1. Kashiram Bhaudu Hulgunde (Since Deceased), ]
Through his Legal Heirs :- ]
]
1a.Hari Kashiram Udar @ Hulgunde, Son, ]
(Since Deceased) - Through his Legal Heirs, ]
]
1a-i. Sarubai Hari Hulgunde, ]
Age : 65 Yrs., Wife, ]
R/o. Kone, Tal. Trambakeshwar, ]
Dist. Nashik. ]
]
1a-ii. Chander Hari Hulgunde, Son, ]
(Deceased) ]
]
1a-iii. Namdeo Hari Hulgunde, ]
Age : 35 Yrs., Son, ]
R/o. Kone, Tal. Trambakeshwar, ]
Dist. Nashik. ]
]
1a-iv. Jijabai Pandu Donagar, ]
Age : 30 Yrs., Daughter, ]
R/o. At Post Ghatghar, Tal. Akole, ]
Dist. Ahmednagar. ]
]
1a-v. Lahanubai Uttam Dighe, ]
Age : 38 Yrs., Daughter, ]
R/o. Kone, Tal. Trambakeshwar, ]
Dist. Nashik. ]
]
1b.Kalu Kashiram Hulgunde, Adult, Son, ]
R/o. Kone, Post Waghera, ]
Dist. Nashik. ]
]
1/16
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1c.Parvatibai Babu Bhandange, ]
Adult, Daughter, ]
R/o. Gorthan, Post Waghera, ]
Tal. & Dist. Nashik. ] .... Respondents
Mr. Ameet Palkar, A.G.P., for the Applicant-State.
None for the Respondents-Claimants.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 9TH MAY 2017.
ORAL JUDGMENT :
1. The challenge in this Appeal is to the Judgment and Order dated
26th February 1992 passed by the Reference Court of Joint District Judge
at Nashik, thereby correcting its Award passed in Land Reference No.158
of 1984 and directing the State to pay the interest @ 15% p.a. until the
entire compensation amount is paid to the Respondents-Claimants or it is
deposited in the Court.
2. Facts leading to this Appeal may be stated, in brief, as follows :-
. The Appellant - the State of Maharashtra has acquired the land at
Village Kone in Nashik and belonging to the Respondents-Claimants, as
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per the Notification published on 17th July 1980, under Section 4 of the
Land Acquisition Act, 1894. The Special Land Acquisition Officer made the
Award. Against the Award passed by the Special Land Acquisition Officer,
the Respondents-Claimants made a Reference under Section 18 of the
LA Act. The Reference came to be decided by the Joint District Judge,
Nashik, and the Award was passed by him on 26th February 1992, thereby
enhancing the market value of the land acquired from the Respondents-
Claimants.
3. Pending this Reference before the Joint District Judge, Nashik, the
Land Acquisition Act, 1894 came to be amended by the Amending Act
No.68 of 1984 with effect from 24th September 1984. By the said
Amending Act, certain additional benefits were given. By addition of sub-
section (1-A) to Section 23, additional component at the rate of 12% p.a.
of the market value was provided for the first time. Similarly, by way of
amendment in sub-section (2) of Section 23, the amount of solatium was
increased from 15% to 30%. By making amendment in Section 34, the
rate of interest was also increased from 6% to 9% for the first year after
taking possession of the land, and 15% beyond the period of one year
after taking possession till the payment of compensation amount.
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4. In view of this Amendment Act, the Respondents-Claimants filed
Review Application No.534 of 1985, seeking these additional benefits,
which were not awarded in the Judgment and Award passed by the
Reference Court.
5. This Review Application was opposed on behalf of the Appellant-
State. However, after hearing learned counsels for both the parties, the
Trial Court was pleased to pass the impugned order dated 26 th February
1992, granting additional benefits to the Respondents-Claimants, as per
the amended provisions of the Land Acquisition Act, 1894.
6. This order has been challenged in the present Appeal by the State
of Maharashtra. The first and foremost submission advanced by learned
A.G.P. is that, as the Reference was already decided, when the Award
was passed by the Trial Court, the Trial Court had no jurisdiction to
entertain the Review Application filed by the Respondents-Claimants for
grant of additional benefits. Secondly, it is submitted that the order passed
by the Trial Court awarding enhanced rate of interest on whole of the
compensation amount, i.e. total market value plus additional component
plus solatium, cannot be called as legal and valid, as the enhanced rate of
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interest can be awarded only on the amount of compensation granted by
the Court, which was in excess of the compensation awarded and paid by
the Collector.
7. By placing reliance on the Judgment of the Single Bench of this
Court, that of State of Maharashtra Vs. Shyamkant Dattatraya Patil, 2006
(5) Bom.C.R. 739, it is submitted that the Trial Court has committed an
error in interpreting the provisions of the Amending Act and thereby
granting enhanced rate of interest on the total amount of compensation.
According to learned A.G.P., therefore, the impugned order of the learned
Trial Court needs to be quashed and set aside.
8. Though the notice of this Appeal was duly served on the
Respondents-Claimants, they have preferred to remain absent. As a
result, this Appeal is proceeded ex-parte.
9. The first issue involved in this matter pertains to the power of the
Trial Court to review its own order so as to increase the rate of interest
and the solatium. The next legal issue pertains to the interpretation of the
amended provisions of the Land Acquisition Act.
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10. As regards the first issue, the submission advanced by learned
A.G.P. is that, once the Award was passed by the Trial Court in Land
Reference No.158 of 1984, the Trial Court has become functus officio and
it has no jurisdiction or power to review the same, except for some clerical
or minor errors. According to learned A.G.P., the Trial Court has no power
either to review or amend its own Award substantially by increasing the
amount of interest, as the Award was converted into Decree under Section
26(2) of the Land Acquisition Act. Here in the case, it is submitted by
A.G.P. that the Trial Court has substantially modified its own Award by
enhancing the rate of interest and thus the Trial Court has exceeded its
jurisdiction in passing the impugned Judgment and Award on the Review
Application of the Respondents-Claimants.
11. However, in my considered opinion, this submission of learned
A.G.P. cannot be accepted for the simple reason that the Review
Application was filed by the Respondents-Claimants in view of the
amendments in the Land Acquisition Act. It is pertinent to note that,
though the Award was passed by the Trial Court, immediately thereafter
Amended Act came into force on 29th April 1984. In the Amended Act,
some additional benefits were given to the Claimants and by way of
introducing transitional provisions, these additional benefits were
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extended even to those Claimants to whom compensation amount was
not paid before 30th April 1982. Therefore, in fact, it was necessary for the
Trial Court to take a note of these amended provisions and act suo-motu
to give benefit of those provisions to the Respondents-Claimants.
Respondents-Claimants have, by filing the Review Application, brought
those facts to the notice of the Trial Court. By passing the impugned order,
the Trial Court has only corrected its Award to bring it in tune with
amended legal provisions. Hence, it cannot be said that the Trial Court
has acted beyond its jurisdiction or exceeded its authority in passing the
impugned order.
12. As a matter of fact, as held by the Hon'ble Apex Court in the case of
Shree Vijay Cotton & Oil Mills Ltd. Vs. State of Gujarat, (1991) 1 SCC 262,
the interest can be claimed by the Claimants at any stage of the
proceedings under the Land Acquisition Act. Award of interest being
obligatory and consequential to the application of Section 34 of the Land
Acquisition Act, such interest can be claimed even in the Appeal filed by
the State and it is not necessary to file separate Appeal or Cross-
Objection. According to the Hon'ble Apex Court, substantive right, under
the Land Acquisition Act, to get the interest cannot be affected by the
procedural rules, as procedural rules are, after all, hand-maiden of justice.
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The procedural rules cannot come in the way of substantive right
subsisting under the Land Acquisition Act.
13. Here in the case, therefore, when the Trial Court has awarded the
interest to bring it in tune with the amended provisions of the Land
Acquisition Act, which the Trial Court should or could have done on its
own motion suo-motu also, no fault can be found with the impugned order,
which the Trial Court has passed on the Review Application moved by the
Respondents-Claimants. In my considered opinion, therefore, it cannot be
said that the Trial Court has exceeded its jurisdiction or acted after having
seized to have the jurisdiction.
14. The next issue necessarily pertains to the interpretation of amended
provisions of the Land Acquisition Act. While passing the impugned order,
the learned Trial Court has awarded the enhanced rate of interest on the
whole of the amount of compensation i.e. total market value plus
additional component plus solatium. Whereas, according to the learned
A.G.P., enhanced rate of interest could be payable only on the amount of
compensation awarded by the Court in excess of the compensation
awarded and paid by the Collector, as per the Award passed by the
Special Land Acquisition Officer.
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15. For deciding the legal issue, the provisions of Section 23(1-A), as
added by the Amending Act, are, therefore, relevant. Section 23(1-A), as
added by the Amending Act, reads as follows :-
"(1-A) In addition to the market value of the land, as above
provided, the Court shall in every case award an
amount calculated at the rate of twelve per centum per
annum on such market value of the period commencing
on and from the date of the publication of the
notification under Section 4, sub-section (1) in respect
of such land to the date of the award of the Collector or
the date of taking possession of the land, whichever is
earlier."
16. By this provision, thus, in addition to the market value of the lands,
as determined under Section 23(1), the Court is directed in every case to
award additional component @ 12% p.a. on the market value from the
date of publication of the notification under Section 4, or, the date of taking
possession of the land, whichever is earlier. This benefit was not available
prior to the amendment. Needless to state, that such amendment is
generally prospective. However, Amendment Bill was introduced in the
Parliament on 30th April 1982 and it is clear that, in its own wisdom,
Legislature has thought it fit to give this additional benefit to those
proceedings also, which were pending before the Collector on 30 th April
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1982, i.e. the date of introduction of the Amendment Bill, in which no
Award was passed before that date. Therefore, Section 30 sub-section (1)
of the Amendment Act provides as follows :-
"30. Transitional Provisions -
(1) The provisions of sub-section (1-A) of Section 23 of
the principal Act, as inserted by Clause (a) of Section
15 of this Act, shall apply, and shall be deemed to
have applied, also to, and in relation to, -
(a) every proceeding for the acquisition of any
land under the Principal Act pending on the
30th day of April 1982 (the date of
introduction of the Land Acquisition
(Amendment) Bill, 1982, in the House of the
People, in which no award has been made
by the Collector before that date;
(b) every proceeding for the acquisition of any
land under the Principal Act commenced
after that date, whether or not an award has
been made by the Collector before the
commencement of this Act."
17. The effect of Section 30(1) of the Amending Act r/w. sub-section (1-
A) of Section 23, added by the Amending Act, was considered by the
Hon'ble Supreme Court in Union of India & Ors. Vs. Filip Tiago De Gama,
AIR 1990 SC 981, and it was held as follows :-
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"20. Entitlement of additional amount provided under section
23(1-A) depends upon pendency of acquisition
proceedings as on 30th April 1982 or commencement of
acquisition proceedings after that date. Section 30, sub-
section (1)(a) provides that additional amount provided
under Section 23(1-A) shall be applicable to acquisition
proceedings pending before the Collector as on 30 th April
1982, in which he has not made the award before that
date. If the Collector has made the Award before that
date, then, that additional amount cannot be awarded.
Section 30 sub-section (1)(b) provides that Section 23(1-
A) shall be applicable to every acquisition proceedings
commenced after 30th April 1982, irrespective of the fact
whether the Collector has made an award or not before
24th September 1984. The final point to note is that
Section 30 sub-section (1) does not refer to Court award
and the Court award is used only in Section 30, sub-
section (2)."
18. This view has been reaffirmed in another decision by the Hon'ble
Supreme Court in the case of K.S. Paripoornan Vs. State of Kerala &
Ors., AIR 1995 SC 1012.
19. Thus, in view of this legal position, there remains no doubt that the
benefit of additional component under sub-section (1-A) of Section 23 is to
be given if the proceedings for acquisition were pending and Award was
not passed by the Collector. It has no reference to the Award to be passed
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by the Court on reference under Section 18 of the Act. As such, the
Claimants, in whose case the Award was already passed by the Collector
prior to 30th April 1982, could not be entitled to the benefit of additional
component under Section 23(1-A); whereas, in respect of the Claimants,
in whose case the Award was passed after 30 th April 1982, which is the
cut-off date when the Bill was introduced in the Parliament, such benefit
could be granted.
20. The learned Trial Court has directed that the total amount of
compensation shall carry interest @ 9% p.a. from the date of notification
under Section 4, or, the date of taking possession, whichever is earlier, till
expiry of one year and awarded interest @ 15% p.a. for the period beyond
expiry of one year. Learned Trial Court has done so in view of the
amended provisions of Section 34, which read as follows :-
"34. When the amount of such compensation is not paid or
deposited on or before taking possession of the land, the
Collector shall pay the amount awarded with interest
thereon at the rate of (nine per centum) from the time of
so taking possession until it shall have been so paid or
deposited.
Provided that if such compensation or any part thereof is
not paid or deposited within a period of one year from the
date on which possession is taken, interest at the rate of
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fifteen per centum per annum shall be payable from the
date of expiry of the said period of one year on the
amount of compensation or part thereof, which has not
been paid or deposited before the date of such expiry."
21. Thus, it can be found that, in the original Section 34, the rate of
interest was 6%; however, by way of amendment, it was increased to 9%.
In view of this, prior to the amendment, when the amount of compensation
was not paid or deposited, the Collector was to pay compensation amount
with interest thereon @ 6% from the date of taking possession till the
amount of Award was paid or deposited. However, by way of amendment,
not only the rate of interest was increased from 6% to 9%, but it is also
made clear that if the amount is not paid within a period of one year after
taking possession, the rate of interest would be 15% p.a. for the period
beyond one year.
22. This amended provision was also given some retrospective effect
by Section 30 sub-section (3) of the Amending Act of 68/1984, which
reads as follows :-
"(3) The provisions of section 34 of the Principal Act, as
amended by section 20 of this Act, shall apply, and shall be
deemed to have applied, also to, and in relation to,
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(a) every case in which possession of any land
acquired under the Principal Act has been taken
before the 30th date of April 1982 (the date of
introduction of the Land Acquisition (Amendment)
Bill, 1982 in the House of the People) and the
amount of compensation for such acquisition had
not been paid or deposited under Section 31 of
the principal Act until such date, with effect on
and from that date; and
(b) every case in which such possession had been
taken on or after that date but before the
commencement of this Act without the amount of
compensation having been paid or deposited
under the said Section 31, with effect on and from
the date of taking such possession."
23. The perusal of this provision makes it clear that, if the possession
was taken prior to 30th April 1982 and the compensation amount was not
paid or deposited till 30th April 1982, then, only the amended provisions
would be applicable with effect from 30th April 1982. However, if the
payment is already made or deposited prior to 30th April 1982, as per the
Award passed by the Collector, the increased rate of interest would not be
applicable.
24. In the present case, admittedly, as can be revealed from the
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impugned order of the Trial Court, the amount of compensation was
deposited and it was also received by the Respondents-Claimants much
after the cut-off date of 30th April 1982. It is pertinent to note that, even the
impugned Judgment and Award was passed by the Trial Court after the
cut-off date of 30th April 1982. As a result, the amount of compensation
was not paid or deposited till 30 th April 1982. Hence, the amended
provisions will definitely have application to the instant case. Therefore,
the impugned Judgment and Order of the Trial Court, granting such
benefit of the amended provisions to the Respondents-Claimants in
respect of the enhanced rate of interest, has to be held as legal, correct
and valid.
25. The facts of the case, on which learned A.G.P. has relied upon, that
of Shyamkant Dattatraya Patil (Supra), needs to be distinguished, as, in
the said case, the payment of compensation amount was already made
on 17th March 1982 and the Award was also passed on 3 rd March 1982.
Hence, as the compensation amount was paid before 30th April 1982, it
was held that the amended provisions of Section 34, enhancing the rate of
interest, could not have been made applicable to the facts of the said
case. As a result, the order passed by the Civil Judge, Senior Division,
giving directions for payment of enhanced rate of interest on whole of
compensation amount, was held to be not correct and legal. It was held
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that such direction for enhanced rate of interest could be given only in
respect of the amount of compensation awarded by the Reference Court,
in excess of the compensation awarded by the Collector.
26. As against it, in the present case, as stated above, the amount of
compensation as awarded by the Special Land Acquisition Officer, being
deposited after the cut-off date of 30th April 1982, and the Award itself is
passed by the Reference Court after the cut-off date of 30 th April 1982, the
Respondents-Claimants become entitled to get enhanced rate of interest
on the whole of the compensation amount. In consequence, the Appeal
challenging the said order holds no merit; hence, stands dismissed.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
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