The State Of Mah & 2 Others vs Babarao Mahadeorao Khunkar & ...
2017 Latest Caselaw 8979 Bom

        J-fa384.03.odt                                                                                                       1/7


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           NAGPUR BENCH, NAGPUR


                                      FIRST APPEAL No.384 OF 2004


        1.    The State of Maharashtra, 
               through Collector, Yavatmal.

        2.    The Sub-Divisional Officer-cum-
               Land Acquisition Officer, Yavatmal.

        3.    The Executive Engineer,
                Minor Irrigation Division,
               (Local Section),
               Near Sai Satyajyoti Mangal Karyalaya,
               Arni Road, Yavatmal.                                                   :      APPELLANTS

                           ...VERSUS...

        1.    Babarao s/o. Mahadeorao Khunkar,
               Aged about 44 years,
               Occupation : Agriculturist & Service,
               R/o. Tambhakey Layout, Jagat Mandir Rd.,
               Yavatmal.

        2.    Rameshwar s/o. Mahadeorao Khunkar,
               aged about 38 years,
               Occupation : Agriculturist,
               R/o. Deonala, At & Post : Jodmoha,
               Tq. Kalamb, Distt. Yavatmal.

        3.    Adeshwar s/o. Mahadeorao Khunkar,
               Aged about 33 years,
               Occupation : Contractor.

        4.    Smt. Kasabai wd/o. Mahadeorao Khunkar,
               aged about 65 years,
               
               Applicant Nos.3 and 4 are
               r/o. Tambhakey Layout, Jagat Manir Rd.,
               Yavatmal, Tq. And Distt. Yavatmal.       :      RESPONDENTS




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         J-fa384.03.odt                                                                                                       2/7




        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
        Shri M.A. Kadu, Asstt. Government Pleader for the Appellants.
        Shri Anand Parchure, Advocate for the Respondent Nos.1 to 4.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                                       CORAM  :   S.B. SHUKRE, J.

rd DATE : 23 NOVEMBER, 2017.

ORAL JUDGMENT :

1. This is an appeal which questions the legality and correctness

of the judgment dated 26th April, 2002. The appellants think that the

compensation granted at enhanced rate by the Reference Court under

Section 18 of the Land Acquisition Act is quite on the higher side. The

Reference Court found the true market value of the acquired land to be

of Rs.82,500/- at the time of publication of notification under Section 4

of the Land Acquisition Act. The Reference Court also granted enhanced

compensation for the teak trees and other trees. The other challenge

made in this appeal relates to grant of additional component under

Section 23(1-A) and grant of interest under Section 28 of the Land

Acquisition Act.

2. During the pendency of this appeal, this Court decided an

appeal being First Appeal No.143/2003 on 16 th August, 2017, in which

the acquired land was covered by the same notification and same project

and was from the same village as the land involved in this appeal. By the

J-fa384.03.odt 3/7

judgment dated 16th August, 2017, this Court confirmed the findings

recorded by the Reference Court regarding valuation of the acquired land

and the teak trees. But, this Court modified the operative portion of the

order passed by the Reference Court in respect of grant of additional

component under Section 23(1-A) and interest under Section 28 of the

Land Acquisition Act. Such confirmation and modification made by this

Court in the judgment dated 16 th August, 2017 was based upon the

consideration of the sale instances which represented true market value

of the acquired land and valuation of the teak trees and other trees and

the law settled by the Hon'ble Apex Court and this Court in respect of

grant of additional component and interest on the enhanced

compensation.

3. Shri M.A. Kadu, learned Assistant Government Pleader for

the appellants graciously concedes that all the issues involved in this

appeal are covered by the view taken by this Court in the said judgment

dated 16th August, 2017.

4. Shri Anand Parchure, learned counsel for the respondents

also accepts the fact that so far as the substantive challenge is concerned,

same is covered by the view taken by this Court in the said judgment

dated 16th August, 2017. However, he has a difference of opinion as

regards the interest to be granted under Section 28 of the Land

Acquisition Act. He submits that the modification made by this Court in

J-fa384.03.odt 4/7

the operative order passed in First Appeal No.143/2003 in respect of

grant of interest at the rate of 9% p.a. was based upon the Full Bench

Judgment of this Court in the case of State of Maharashtra vs. Kailash

Shiva Rangari, reported in 2016(4) ALL MR 513 (F.B.), wherein a view

has been taken that the interest at the rate of 9% p.a. can be granted for

a period of one year only from the date of award and not from the date

of possession, as a result of interpretation made by the Full Bench of this

Court, of the provision of Section 34 of the Land Acquisition Act and in

the present case the interest at the rate of 9% p.a. has been granted for a

period of one year by resorting to the provision of Section 28 of the Land

Acquisition Act and therefore, the view so taken by the Full Bench of this

Court would have no bearing upon grant of interest by the Reference

Court under Section 28 of the Land Acquisition Act. Learned counsel,

however, raises no objection in respect of modification to be done on the

additional component portion of the impugned order.

5. If one goes through the provisions of Section 28 and Section

34 of the Land Acquisition Act, one would require no time to understand

that these provisions are in pari materia. They are identical in every

sense except for the stage at which the interest is to be granted. Section

34 is about the interest to be granted at the rate of 9% for a period of

one year by the Collector at the stage of Section 11 Award, while Section

28 is on the interest to be granted not by the Collector but by a Civil

J-fa384.03.odt 5/7

Court which decides the application referred to it by the Collector under

Section 18 of the Land Acquisition Act. Except for this difference, one

would see no variation and no difference in the intent and the language

expressed and used in both these Sections. Therefore, in my humble

opinion, the interpretation accorded to Section 34 would also have its

equal application while understanding the import of Section 28 of the

Land Acquisition Act. The conclusion so drawn by me also receives

support from the observations of the Hon'ble Apex Court in the case of

Dr. Sham Lal Narula vs. Commissioner of Income-tax, Punjab,

Jammu and Kashmir, Himachal Pradesh and Patiala, reported in AIR

1964 SC 1878, wherein in paragraphs 9 and 10, the Hon'ble Apex Court

has described the basic characteristics of Section 34 and Section 28 of the

Land Acquisition Act. In paragraph 9, the Hon'ble Apex Court has

observed that the statutory interest payable under Section 34 is not

compensation paid to the owner for depriving him of the right to

possession of the land acquired, but that given to him for the deprivation

of the use of the money representing the compensation for the land

acquired. The Hon'ble Supreme Court further observed in paragraph 10

somewhere in the later portion of its beginning, that the interest awarded

under Section 28 of the Act, just like under Section 34 thereof, cannot be

a compensation or damages for the loss of right to retain possession but

only compensation payable by the State for keeping back the amount

J-fa384.03.odt 6/7

payable to the owner. Therefore, I find no substance in the argument of

learned counsel for the claimants and I further find that the view taken

by this Court in the aforestated First Appeal decided on 16 th August, 2017

regarding the interest payable at the rate of 9% p.a. for a period of one

year would also cover the issue involved in this regard in the present

appeal.

6. In view of above, I find that on the substantive challenge

raised in this appeal by the appellant, the appeal deserves no

consideration and needs to be dismissed. However, the appeal would

require consideration only on the limited aspect of what could be seen as

manifest error committed by the Reference Court while delivering

operative portion of the impugned award confined to the award of

additional component at 12% p.a. from the date of Section 4 Land

Acquisition Act notification to the date of award of Collector or to the

date of taking possession of the land, whichever is earlier and granting

interest at the rate of 9% p.a under Section 28 of the Land Acquisition

Act for a period of one year from the date of taking possession of land.

7. The appeal is, therefore, partly allowed only on the limited

aspect of grant of additional component under Section 23(1-A) and grant

of interest under Section 28 of the Land Acquisition Act and is dismissed

as regards other challenges.

8. It is directed that the appellant shall pay 12% p.a. as

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additional component on the enhanced compensation amount from the

date of notification published under Section 4 of the Land Acquisition Act

i.e. 13th August, 1998 to the date of award of the Collector i.e. 7.9.1999.

9. It is further directed that the appellant shall pay to the

claimants interest on the enhanced compensation amount at the rate of

9% p.a. for a period of one year from the date of award or to be specific

from 7.9.1999 to 6.9.2000 and thereafter shall pay such interest at the

rate of 15% p.a. from 7.9.2000 to the actual realization of the enhanced

compensation amount.

10. The impugned award stands modified in the above terms.

11. The appellants are at liberty to recover with interest from

the claimants any amount which has been paid in excess of the amount

granted under this Order, subject to such claim, when made, being

verified for its correctness by the executing Court after giving due

opportunity of hearing to the claimants. Similarly, the claimants are at

liberty to initiate appropriate proceedings for claiming rental

compensation, if it is proved to be not paid.

12. Parties to bear their own costs.

JUDGE okMksns