Bombay High Court
State Of Maha vs Dashrath Tatya Bansode on 29 January, 2018
Bench: M.S. Sonak
(1) 212-FA 333 of 2004 & ors.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
212 FIRST APPEAL NO. 333 OF 2004
The State of Maharashtra
Through the Collector Beed. ..Appellant
VERSUS
Dadarao s/o.Vaijnath Agarkar
Age: 55 yrs., Occu.: Agri.,
R/o.Kanadimali,
Tal.Kaij, District Beed. ..Respondent
...
AGP for Appellant : Mr.A.M.Phule
Advocate for Respondents : Mr.M.M.Patil Beedkar,
Mr.S.P.Katneshwarkar (absent)
...
WITH
FA/334/2004 WITH FA/335/2004 WITH FA/336/2004 WITH
FA/337/2004 WITH FA/338/2004
...
CORAM : M.S.SONAK, J.
DATE : 29.1.2018
ORAL JUDGMENT:-
1) Heard Mr.A.M.Phule learned AGP for the appellant in
all these appeals.
2) In all these appeals, the Reference Court has
(2) 212-FA 333 of 2004 & ors.
enhanced the compensation in respect of the acquired land
from Rs.120/- per Are to Rs.600/- per Are. In addition,
the Reference Court has held that the claimants are
entitled to interest under Section 34 of the Land
Acquisition Act, 1984, @ 9% p.a. for a period of one year
from the date of taking possession i.e. 31.10.1985 to
30.10.1986 and @ 15% p.a. from 31.10.1986 to the date of
payment i.e. 31.1.1991.
3) Mr.A.M.Phule learned AGP submits that there was no
basis for grant of enhancement from Rs.120/- per Are to
Rs.600/- per Are and in any case he submits that the
award of interest under Section 34 of the Land
Acquisition Act is contrary to the law laid down by the
Full bench of this Court in the case of State of
Maharashtra Vs. Kailash Shiva Rangari [AIR 2016 Bom.
141]. On these two grounds, Mr.Phule submits that
impugned Judgments and awards are liable to be set aside.
(3) 212-FA 333 of 2004 & ors.
4) In so far as the enhancement is concerned, the
record and proceeding has been perused and on the basis
of the same, it cannot be said that there is any legal
infirmity on the part of the Reference Court in ordering
enhanced compensation from Rs.120 per Are to Rs.600/- per
Are, such increase is supported by the evidence on record
and therefore, there is no case made out to interfere
with the enhancement.
5) However, in so far as award of interest under
Section 34 of the Land Acquisition Act is concerned,
Mr.Phule is right that the award is contrary to the law
laid down by this Court in the case of Kailash Shiva
Rangari (supra) and therefore, modification is necessary.
In Kailash Shiva Rangari (supra), the Full Bench has held
as follows:-
"32. Keeping in view the entire scheme of the
Land Acquisition Act and the ratio of the
decisions of the Apex Court in the cases of R. L.
Jain (AIR 2004 SC 1904) and Lila Ghosh (AIR 2004
(4) 212-FA 333 of 2004 & ors.
SC 288), cited supra, the position of law can be
summarized as under:
(i) If the possession of the land under
acquisition is taken under Section 16 of the said
Act i.e. after an award is made by the Collector
under Section 11 therein, the interest would be
payable under Section 34 from the date of passing
of the award and we are in agreement with such a
view expressed by the Division Bench of this
Court (S/Shri N. V. Dabholkar and M. G. Gaikwad,
JJ.) in the case of State of Maharashtra and Anr.
v. Rajendra Narayanrao Gaikwad, reported in
(2008) 1 Bom CR 839.
(ii) The interest as provided under Section 34 of
the said Act shall start running from the date of
possession, only if the possession is taken by
the Collector in exercise of his powers under
Section 17 of the said Act which would obviously
be after issuance of notice under Section 9(1) of
the said Act. If the possession is taken under
Section 17, the interest payable under Section 34
of the said Act shall start running from the date
of possession and not from the date of award.
(iii) Where the possession of the land under
acquisition is taken prior to issuance of
(5) 212-FA 333 of 2004 & ors.
notification under Section 4(1), then there would
be no question of invoking the urgency clause
under Section 17 of the said Act and the interest
under Section 34 shall start running from the
date of passing of the award.
(iv) The starting point for the purposes of
calculating the amount of additional component
under Section 23(1A) of the said Act at the rate
of twelve per centum per annum is the date of
publication of the notification under Section 4
of the said Act, and the terminal point is either
the date of the award or the date of taking
possession, whichever is earlier.
(v) We hold that in none of the eventualities,
the claimant shall be entitled to interest under
Section 34 of the said Act from the date of
publication of the notification under Section
4(1) of the said Act.
(vi) There is no overlapping of the benefits
under Section 23(1A) and Section 34 of the said
Act. The terminal points under Section 23(1A) are
the starting points under Section 34 of the said
Act and both the provisions operate in different
fields.
(vii) We express our full agreement with the view
(6) 212-FA 333 of 2004 & ors.
taken by the Division Bench of this Court in
Lalitkumar Shah's case, cited supra, that in a
case where possession is taken prior to issuance
of notification under Section 4(1) of the said
Act, the interest under Section 34 shall start
running from the date of award only.
(viii) We also express our full agreement with
the view taken by the Division Bench of this
Court in Lalitkumar Shah's case, cited supra,
that the decision of the Division Bench in the
case of Jafarali Mithabhai Hirani v. State of
Maharashtra, reported in (2009) 3 All MR 779, and
the similar view taken in other matters is no
longer a good law.
33 . In view of above, we answer the question of
reference as under :
(a) If the possession is taken before the
notification under Section 4(1) of the Land
Acquisition Act is published and/or before the
award is passed, the landowner would be entitled
for interest as per Section 34 necessarily from
the date of passing of the award under Section 11
of the said Act, except in cases where the
possession is taken in accordance with Section 17
(7) 212-FA 333 of 2004 & ors.
of the said Act, and in that situation only, the
provision of Section 34 of the said Act shall
start operating from the date of possession.
(b) We also hold that the decision of the
Division Bench of this Court in the case of
Lalitkumar Himmatlal Shah v. State of
Maharashtra, decided by Smt. Vasanti A. Naik and
Shri Prasanna B. Varale, JJ., and reported in
(2012) 4 Mah LJ 742, lays down a correct position
of law and it does not require reconsideration."
6) In this case, there is no clarity as to precise date
of award, however, in the decision of the Full Bench, it
is clear that interest u/s 34 will have to be awarded
from the date of award and not from the date of
possession, particularly, since in this case, there is no
material on record to indicate that the possession was
taken after invoking the urgency clause as stipulated u/s
17 of the Land Acquisition Act. To that extent,
therefore, the impugned awards will have to be modified.
7) The appeals are therefore disposed of with the
(8) 212-FA 333 of 2004 & ors.
following order:-
ORDER
(I) All the appeals are partly allowed.
(I) The enhancement of compensation by the
Reference Court is not disturbed.
(III) However, interest u/s 34 of the said Act is
to be computed from the date of award and not
from the date of possession. To that extent, the
direction made in the award is set aside.
(IV) On the basis of the aforesaid modification,
the compensation amount together with interest
thereon will have to be recomputed and held as
payable to the respondents/claimants.
(V) The respondents/claimants will be entitled to
withdraw the compensation amount, if deposited,
on the basis of such recomputation.
(VI) If the compensation amount is not deposited,
the appellant to deposit the same within eight
weeks from today before the Reference Court on
(9) 212-FA 333 of 2004 & ors.
the basis of such recomputation.
(VII) If the compensation amount is already
deposited and is already withdrawn, even, the
respondents/claimants to refund the excess amount
as per recomputation as aforesaid, within a
period of eight weeks from the date of receipt of
notice from the appellant together with the copy
of this Judgment and Award. If this is not done,
the appellants will be entitled to recover such
amount by instituting execution proceeding.
(VIII) The appeals are disposed of in the
aforesaid terms.
(IX) There shall be no order as to costs.
[M.S.SONAK, J.]
SPT/212-FA 333 of 2004 & ors.
