Bombay High Court
The Mah Krishn A Valley Dev ... vs The State Of Maharashtra Through ... on 6 January, 2021
Bench: M. G. Sewlikar
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
946 FIRST APPEAL (ST) NO. 1347 OF 2011
WITH CA NO.177 OF 2021 WITH CA/1099/2011 WITH CA/1100/2011
WITH CA/1101/2011 IN FAST/1347/2011
The Maharashtra Krishna Valley
Development Corporation,
Through Executive Engineer,
Minor Irrigation Division No. 1., Solapur ... Appellant
(Acquiring body)
VERSUS
1) State of Maharashtra
Through Collector, Osmanabad.
2) Vishnu Tukaram Rupnure
Age : Adult, Occ. Agri.
R/o. Bolegaon, Tq. Tuljapur,
Dist. Osmanabad. ... Respondents
(Ori. Res. No.1 &
Orig. Claimants)
WITH
947 FIRST APPEAL (ST) 1351 OF 2011
WITH CA.178 OF 2021 WITH CA/1102/2011 WITH CA/1103/2011
WITH CA/1104/2011 IN FAST/1351/2011
The Maharashtra Krishna Valley
Development Corporation,
Through Executive Engineer,
Minor Irrigation Division No. 1., Solapur ... Appellant
(Acquiring body)
VERSUS
1) State of Maharashtra
Through Collector, Osmanabad.
2) Uttam S/o Tukaram Rupnure
Age : Adult, Occ. Agri.
R/o. Bolegaon, Tq. Tuljapur,
Dist. Osmanabad. ... Respondents
(Ori. Res. No.1 &
Orig. Claimants)
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WITH
948 FIRST APPEAL (ST) 1355 OF 2011
WITH CA NO.179 OF 2021 WITH CA/1105/2011 WITH CA/1106/2011
WITH CA/1107/2011 IN FAST/1355/2011
The Maharashtra Krishna Valley
Development Corporation,
Through Executive Engineer,
Minor Irrigation Division No. 1., Solapur ... Appellant
(Acquiring body)
VERSUS
1) State of Maharashtra
Through Collector, Osmanabad.
2) Bramhanand S/o Tukaram Rupnure
Age : Adult, Occ. Agri.
R/o. Bolegaon, Tq. Tuljapur,
Dist. Osmanabad. ... Respondents
(Ori. Res. No.1 &
Orig. Claimants)
Mr. Gulab Rajale, Advocate for the appellants
Mr. S. J. Salgare, AGP for the respondent/State
Mr. V. P. Golewar h/f Mr. A. R. Joshi, Advocate for respondent No. 2.
CORAM : M. G. SEWLIKAR, J.
DATED : 06-01-2021
JUDGMENT :-
1. In all these appeals a common question of law is raised and
therefore, all these three appeals are being disposed of by common
judgment.
2. Section 4 notification was issued for acquisition of land for
Minor Irrigation Tank, Bhuri-Kawathe project. In L.A.R. No. 136/1992 land
acquired is 4 Acre 32 Gunthas, in L.A.R. No. 133/1992 land acquired is 4
Acre 24 Gunthas and in L.A.R. No. 137/1992 land acquired is 3 Acre 32
Gunthas.
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3. Award was passed by the Special Land Acquisition Officer
(SLAO) on 29/03/1990. All the appellants made reference against the
award passed by SLAO which was decided by the Jt. Civil Judge, Senior
Division, Osmanabad. The learned Jt. C.J.S.D. allowed the reference and
enhanced the compensation by passing the following order:-
ORDER
1. The claim is partly allowed with proportionate
costs, as per description in E-Statement and award.
2. The claimants in LAR Nos. 137/1992, 136/1992 and
133/1992 are hereby entitled for the recovery of
enhanced amount of compensation at the rate of
Rs.16,000/- (Rs. Sixteen thousand only) per acre after
deducting the amount of compensation already received
from the L.A.O.
3. The claimants in LAR Nos. 137/1992, 136/1992 and
133/1992 are also entitled to recover the solatium @ 30%
interest at the rate of 9% per annum for the first year and
@15 % per annum for the subsequent years on the
enhanced compensation amount from the date of
notification till realization of the amount.
4. Claimants in LAR Nos. 137/1992, 136/1992,
133/1992 are also entitled to get additional benefit at the
rate of 12% per annum.
5. The claimants claim regarding well, fruit trees, and
tal etc. Sands rejected.
6. The respondent/State is directed to deposit the
aforesaid amount within the period of six months from the
ate of this Judgment.
7. Original Judgment be kept in LAR No. 137/1992
and copies of Judgment be kept in LAR Nos. 136/1992
and 133/1992.
8. Award be prepared accordingly.
4. From this order it is evident that the learned Reference Court
has awarded interest at rate of 9% per annum for the first year and 15%
per annum for the subsequent years on enhanced compensation from the
date of "notification".
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5. Learned counsel Shri. Rajale argued that the interest ought to
have been paid from the date of award and not from the date of
notification. He argued that this issue has been concluded by the full bench
judgment in the case of State of Maharashtra Vs. Kailash Shiva Rangari,
2016(4) All MR 513 (F.B.). Shri. Rajale also placed reliance on the case of
Lalitkumar Himmatlal Shah Vs. State of Maharashtra and others, 2012(4)
Mh.L.J. 742 for the proposition that interest under Section 28 of the Land
Acquisition Act cannot be paid from the date of notification but from the
date of award if possession is taken prior to the date of notification.
6. Shri. Golewar, learned counsel for the claimants disputes this
position. He argued that the learned Reference court has correctly granted
interest from the date of notification. However, he has not supported his
submission by any authoritative pronouncement.
7. Admittedly, notification was issued on 01/06/1988 whereas
possession was taken before issuance of the notification under Section 4 of
the Land Acquisition Act. In the case of Lalitkumar Himmatlal Shah (cited
Supra) Division Bench of this Court, relying on the decision of the Hon'ble
Apex Court in the case of R. L. Jain (D) by Lrs. Vs. DDA and others, has
observed as under:-
"10. It is apparent from a reading of section 16 that
the possession of the land can be taken after the
Collector makes an award under section 11. Section 17
is however an exception to the provisions of section 16
and provides for taking of possession in cases of
urgency. The aforesaid provisions of the Land
Acquisition Act were considered by the Hon'ble
Supreme Court in the Case of R. L. Jain (D) by Lrs. Vs.
DDA and others. The issue involved in that case was
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whether in a case where possession is taken before
issuance of section 4 notification, the claimant is
entitled to interest for such anterior period in
accordance with section 34 of the Act. The Hon'ble
Supreme Court while dismissing the appeals filed by
the claimants for grant of interest on compensation
from the date of dispossession observed that the
normal rule of payment of interest under section 34 of
the Act from the date of dispossession till the date of
payment of compensation would apply only in cases
where the land has been acquired after the issuance of
the preliminary notification under section 4 of the Act. "
8. In the case of Kailash Shiva Rangari, full bench of this Court
has summarized the position of law in paragraph Nos. 32 and 33 as under:-
"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 and Lila Ghosh, 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 v. Rajendra Narayanrao
Gaikwad, reported in 2007 MhLJ Online 2: 2008 (1) BCR
(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 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(1-A)
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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(1-A) and Section 34 of the said Act. The terminal
points under Section 23(1-A) 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 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 land-
owner 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 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)
Mh.L.J. 742, lays down a correct position of law and it
does not require reconsideration."
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9. The position that emerges from these two authorities is that
interest under Section 28 of the Land Acquisition Act or under Section 34 of
that Act will be payable to the land owner from the date of award if
possession is taken by the acquiring body before the issuance of
notification. In the case at hand admittedly possession was taken before
issuance of notification. Therefore, the learned Reference Court was in error
in granting interest under Section 28 and under Section 34 of the Land
Acquisition Act from the date of notification.
10. No other point was raised by both the parties. In this view of
the matter appeals are partly allowed. The judgment and award passed by
the learned Joint Civil Judge, Senior Division, Osmanabad, dated
02/04/2008 is confirmed only with the modification that the interest shall
run from the date of award passed by SLAO and not from the date of
notification.
11. Learned counsel Shri. Rajale states that within two weeks he
will deposit the amount and will not seek extension for depositing the
amount of compensation. Though appeals are disposed of, civil application
Nos. 177 of 2021, 178 of 2021 and 179 of 2021 stand over to 18/01/2021
are kept pending for depositing the amount of compensation. Other civil
applications are disposed of.
[M. G. SEWLIKAR, J.]
ssp
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