Chattisgarh High Court
Harishankar Patel And Other vs Sub Divisional Officer And Another on 6 January, 2025
-1-
2025:CGHC:787
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
FAM No. 13 of 2010
1 - Harishankar Patel S/o Late Krishna Lal Patel Aged About 45 Years R/o Village
Bhedikona, Tahsil Dabhra, District Janjgir - Champa Chhattisgarh.
2 - Gaurishankar Patel S/o Late Krishna Lal Patel Aged About 40 Years R/o
Village Bhedikona, Tahsil Dabhra, District Janjgir - Champa Chhattisgarh.
3 - (Deleted) Padum Kunwar (Died) As Per Honble Court Order Dated 15-06-
2024.
Appellants No. 1 to 3 Legal Representative of late Krishna Lal.
4 - Resham Lal Patel (Dead) Through Legal LRs. as Per The Hon'ble Court
Order 01-10-2019
4.-A. Smt. Kumudani Patel W/o Late Resham Lal Patel Aged
About 65 Years R/o Village Bhedikona, Tahsil Dabhara
District - Janjgir Champa, Chhattisgarh
4- B. Sadanand Patel S/o Late Resham Lal Patel Aged About
45 Years R/o Village Bhedikona, Tahsil Dabhara District -
Janjgir Champa, Chhattisgarh
4.-C. Hiteshwar Patel S/o Late Resham Lal Patel Aged About
40 Years R/o Village Bhedikona, Tahsil Dabhara District -
Janjgir Champa, Chhattisgarh
... Appellant (s)
versus
1 - Sub Divisional Officer, Mand Shirsha Karya, Upsambhag Kharsia, District
Raigarh, Chhattisgarh
2 - State Of Chhattisgarh Through Collector-Cum Land Acquisition Officer, Janjgir
District - Janjgir Champa Chhattisgarh.
Digitally ... Respondent(s)
signed by
PRAVEEN
KUMAR For Appellants : Mr. Sourabh Sharma, Advocate
SINHA
For Respondents/State : Mr. Santosh Kumar Soni, Govt.
Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
Order On Board
06/01/2025
Heard.
1. This appeal is filed by the appellants challenging the legality and
sustainability of the Award dated 27.07.2009 passed in Miscellaneous Civil
Suit No.3/2008 by learned Additional District Judge, Sakti, District -Janjgir
Champa whereby learned Reference Court has partly allowed the
Application for Reference filed under Section 18 (2) of the Land Acquisition
Act, 1894 (hereafter referred to as "the Act of 1894").
2. Facts relevant for disposal of this appeal are that the appellants are
owner of the land bearing kh. No.88 area 0.146 hectare, kh. no.61 area
0.012 hectare, kh. No.80/2 area 0.032 hectare, kh. no.80/5 area 0.004
hectare, kh. no.80/1 area 0.045 hectare, kh. no.88 area 0.062 hectare, kh.
No.85/3 area 0.299 hectare, kh. No.85/1 area 0.401 hectare, kh. no.85/2
area 0.081 hectare and kh. no.277 area 0.243 hectare total area 1.325
hectare situated at Village- Bhedikona, Tahsil Dabhra, District Janjgir-
Champa. Aforementioned land was acquired by respondent-State for
purpose of construction of irrigation canal. As per pleadings made in the
application under Section 18 (2) of the Act of 1894, possession of the land
owned by the appellants were taken by the respondent prior to initiating the
acquisition proceedings and pursuant to taking of possession, work of
construction of canal was also started. Notification under Section 4 of the
Act of 1894 was published on 19.03.2004 and after following due procedure
as provided under the Act of 1894, Award was passed by the Land
Acquisition Officer on 16.03.2007 calculating the amount of compensation
with respect to land owned by the appellants based on the market value as
provided under the guidelines prepared by the Registrar, District- Janjgir
Champa valuing the kanhar land at the rate of Rs.2,46,400/- per hectare
and matasi land at the rate of Rs.1,66,600/- per hectare. In the Award,
apart from the amount of compensation of land, amount towards solatium of
30%, interest is also awarded at the rate of 12% per annum from
19.03.2004 till 15.03.2007.
3. Aggrieved by the amount of compensation as calculated by the Land
Acquisition Officer and the award of interest not from the date of taking over
possession but from the date of notification, appellants submitted
application under Section 18 (2) of the Act of 1894 before the Collector
seeking reference of the Award. The Collector has allowed the application
and referred the case to the Addl. District Judge, based upon which,
Miscellaneous Civil Suit No.3/2008 was registered and accordingly,
proceedings was initiated. After hearing both the sides, learned Addl. District
Judge has passed the impugned Award, partly allowing the application filed
under Section 18 (2) of the Act of 1894.
4. Learned Addl. District Judge has formulated as many as eight issues
for consideration and based upon evidence brought on record by the
respective parties has concluded that the possession of the land owned by
the appellants have been taken by the respondent in the month of April
2002, awarded interest at the rate of 12% per annum from 2 nd April 2002 till
16.03.2007 and thereafter interest at the rate of 15 % per annum till deposit
of amount of compensation so awarded.
5. Learned Addl. District Judge has further assessed the value of land at
the rate of Rs.2,46,400/- per hectare as per un-irrigated kanhar land for
calculating the amount of compensation to be awarded to the appellants
based on Ex.A-1 which is the guidelines for market value of land prepared
by the Registrar, District Janjgir Champa .
6. Contention of learned counsel for the appellants is that the award of
interest will govern by the provision under Section 34 of the Act of 1894. In
the provision, it is specifically provided that interest is to be awarded at the
rate of 9% from the date of possession for a period of one year, and
thereafter, land oustee/land owners whose land is subject matter of
acquisition are entitled for the interest at the rate of 15% from the next year
till deposit of amount of compensation to the land oustee. It is contention of
learned counsel for the appellants that in view of provision under Section 34
of the Act of 1894, appellants are entitled to receive interest at the rate of
9% from April 2002 till April 2003 and since May 2003 till the date of deposit
of compensation at the rate of 15%. Learned Addl. District Judge fell into
error in awarding interest at the rate of 12% overlooking the specific
provision under Section 34 of the Act of 1894.
7. On the other hand learned counsel for the State has supported the
impugned award. He contended that the Reference Application itself was
not maintainable as it was submitted after six months from the date of
passing of Award. He also contended that apart from aforementioned
objection which is raised in the cross- appeal filed under Order 41 Rule 22
of CPC, on merits, there is no error in the impugned Award passed by
learned Addl. District Judge in a proceeding under Section 18 (2) of the Act
of 1894. He next contended that there is no specific evidence with respect
to taking over the possession of the land by respondent-State. From the
evidence available in the record it is apparent that the possession of the
land was taken in the month of February 2003 when the agreement was
entered into between the Contractor and respondent-State and thereafter
the Contractor has started the work.
8. I have heard learned counsel for the parties, perused the records of
this appeal as also records of MJC No.3/2008.
9. Perusal of the records of MJC No. 3/2008 would show that the
application is filed under Section 18 (2) of the Act of 1894 seeking reference
of the Award passed by the Land Acquisition Officer, for its determination by
the Court. Reference Application filed by the appellants - Krishna Lal and
Resham Lal was referred to Addl. District Judge and received in the Court
on 10.12.2007 and it was registered as Miscellaneous Civil Suit. Notices
were issued to the concerned parties. Based on the pleadings made in the
Reference Application as also reply learned Additional District Judge Sakti
has formulated as many as eight issues for consideration. Parties to the
proceedings led oral evidence as also placed documentary evidence in
support of their claim. In support of their contention and claim, applicants
have submitted as many as two documents namely- copy of Guidelines for
assessment of land (Ex.A-1) and copy of power of attorney (general) (Ex.A-
2 C).
10. Non-applicant/State has produced and exhibited the memo for
preferring Reference in the Court of Addl. District Judge under Section 18
(2) of the Act of 1894 as Ex.D-1, copy of reference application before the
Court as Ex.D-2, Sale Chart as Ex.D-4, Compensation Payable Sheet as
Ex.D-5, proposed Award dated 16.03.2007 as Ex. D-6 and Respondent-
State has further examined M.L. Sirdar, Sub Divisional Officer (R) as DW1.
11. So far as the ground raised in this appeal with respect to not awarding
proper and appropriate interest as provided under provision of Section 34 of
the Act of 1894 is concerned the witnesses to application under Section 18
(2) of the Act of 1894 have made categorical statement in the affidavit filed
under Order 18 Rule 4 of CPC that possession of the land was taken in the
month of April 2002. No cross question was put to these witnesses with
respect to taking possession in the month of April 2002 and therefore the
statement made under Order 18 Rule 4 of CPC with respect to date of
taking possession remains uncorroborated. In the evidence of M.L. Sirdar
(DW1) Sub Divisional Officer, Dabhara has stated that he is not in a position
to state that State Govt. has taken possession of the land in month of April
2002. However, in his statement he stated that on the land acquired, work
done by Contractor till 03.03.2003. He also stated that in memo dated
03.03.2003 it is mentioned as to land acquired on 03.03.2003. However in
self statement he stated that the meaning of acquisition, is to the work
done . He also admitted that in the memorandum, it is not specifically
mentioned as to on which date land was acquired. He stated that as per
record, possession was taken on 06.02.2003. In the evidence he stated that
agreement between the State and Contractor was executed and pursuant
thereto the Contractor has given intimation on 19.02.2003 prior to starting of
work and the agreement was executed on 06.02.2003 bearing Agreement
No.26/D.L.2002-03.
12. From aforementioned facts and evidence of DW1 it is apparent that
after taking possession of the land, agreement was executed on 06.02.2003
between the State Govt. and Contractor. State Govt. has not submitted any
document or there is no categorical statement/evidence of witness DW1
with respect to date of taking possession of the land.
13. In para-6 of the impugned judgment /award, learned Addl. District
Judge had considered the evidence of DW1 of starting of work on
19.02.2003 and in absence of any evidence, came to conclusion that
possession was taken in the month of April 2002. Though in the cross-
appeal, finding recorded by the Court with respect to taking possession is
challenged, however, along with the cross-appeal also no document is
placed on record of taking possession of land. In absence of any evidence
brought on record by respondent to prove fact of taking possession of the
land subject matter of proceeding under Section 18 (2) of the Act of 1894
and the evidence of the appellants before the Reference Court, it cannot be
said that finding recorded by the learned Court in Reference Proceeding to
be perverse to any evidence available on record. Submission of learned
counsel for the respondent-State and ground taken in the cross-appeal for
the afore discussion is not sustainable and it is repelled.
14. For the foregoing discussion, I do not find any good ground to interfere
with the finding recorded by learned Addl. District Judge of taking
possession of land in the month of April 2002.
15. Section 34 of the Act of 1894 talks of payment of interest . Section 34
of the Act of 1894 is extracted below for ready reference:
"34. Payment of Interest - 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] [Substituted by Act 68 of 1984, Section 20, for "
six per centum" (w.e.f. 24.9.1984).] per annum 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 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.]
[Inserted by Act 68 of 1984, Section 20 (w.e.f. 24.9.1984).]"
16. Perusal of the aforementioned provision would show that it provides for
interest when the amount of 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 cent per annum from
the time so taking possession until it shall have been so paid or deposited.
Under proviso to Section 34 also further provides 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 fifteen per cent
per annum shall be payable from the date of expiry of the said period of one
year on the amount of compensation.
17. Provision is very clear that the land oustee are entitled for the interest
at the rate of 9% per annum for period of one year from the date of taking
possession of their land. When compensation is not paid or deposited
within one year, interest payable thereafter is at the rate of 15%.
18. The Land Acquisition Officer in its award has awarded interest at the
rate of 12 percent from 19.03.2004 till 15.03.2007. Reference Court has
awarded interest from 2nd April 2002 till 16.03.2007 at the rate of 12 per cent
and from 16.03.2007 till deposit of amount at the rate of 15 % . Addl. District
Judge has not taken into consideration the proviso to Section 34 of the Act
of 1894 which was inserted w.e.f. 24.09.1984, therefore, erred in awarding
the interest at lesser rate.
19. Hon'ble Supreme Court in case of Prem Nath Kapur and Anr. Vs.
National Fertilizers Corpn. Of India and Ors. (1996) 2 SCC 71 has
observed thus:
"12. It is clear from the scheme of the Act and the express
language used in Sections 23(1) and (2), 34 and 28 and
now Section 23(1-A) of the Act that each component is a
distinct and separate one. When compensation is
determined under Section 23(1), its quantification, though
made at different levels, the liability to pay interest thereon
arises from the date on which the quantification was so
made but, as stated earlier, it relates back to the date of
taking possession of the land till the date of deposit of
interest on such excess compensation into the court.
Equally, when the appellate court under Section 54 further
enhances the compensation, interest is payable on such
excess amount determined under Section 23(1). In other
words, the liability to pay interest arises as and when the
compensation is further enhanced and liability to pay
interest would be coterminous with the payment of the
amount under Section 34 from the date of taking
possession till date of payment or deposit or under Section
28 or Section 54 from the date of taking possession till the
date of deposit of such excess amount into the court. The
liability to pay interest is only on the excess amount of
compensation determined under Section 23(1) and not on
the amount already determined by the Land Acquisition
Officer under Section 11 and paid to the party or deposited
into the court or determined under Section 26 or Section 54
and deposited into the court or on solatium under Section
23(2) and additional amount under Section 23(1-A).
13. Thus we hold that the liability to pay interest on the
amount of compensation determined under Section 23(1)
continues to subsist until it is paid to the owner or interested
person or deposited into court under Section 34 read with
Section 31. Equally, the liability to pay interest on the
excess amount of compensation determined by the Civil
Court under Section 26 over and above the compensation
determined by the Collector/Land Acquisition Officer under
Section 11 subsists until it is deposited into court. Proprio
vigore in case of further enhancement of the compensation
on appeal under Section 54 to the extent of the said
enhanced excess amount or part thereof, the liability
subsists until it is deposited into court. The liability to pay
interest ceases on the date on which the deposit into court
is made with the amount of compensation so deposited. As
held earlier, the computation of the interest should be
calculated from the date of taking possession till date of
payment or deposit in terms of Section 34 or deposit into
court in terms of Section 28, as the case may be."
20. Hon'ble Supreme Court in the case of Major General Kapil Mehra &
Anr. Vs. Union of India & Anr. (2015) 2 SCC 262, observed thus"
"45. Award of interest under Section 34 is mandatory
inasmuch the word used in the section is "shall". The
scheme of the Act and the express provisions thereof
establish that the interest payable under Section 34 is
statutory. The claim for interest under Section 28 of the
Act proceeds on the basis that due compensation not
having been paid, the claimant should be allowed interest
on the enhanced compensation amount. The award of
interest under Section 28 is discretionary power vested in
the court and it has to be exercised in a judicious manner
and not arbitrarily. The use of the word "may" in Section
28 does not confer any arbitrary discretion on the court to
disallow interest for no valid or proper reasons. Normally,
the court awards interest if it enhances the compensation
in excess of the amount awarded by the Collector, unless
there are exceptional circumstances.
46. A Constitution Bench of this Court in Gurpreet Singh v.
Union of India [Gurpreet Singh v. Union of India, (2006) 8 SCC
457] , considering the scope of Section 34 and Section 28 of
the Act, has held as under : (SCC pp. 481-82, paras 44-45)
"44. Section 34 of the Act fastens liability on the Collector
to pay interest on the amount of compensation determined
under Section 23(1) with interest from the date of taking
possession till date of payment or deposit into the court to
which reference under Section 18 would be made. On
determination of the excess amount of compensation,
Section 28 empowers the court, if it was enhancing the
compensation awarded by the Collector, to award interest
on the sum in excess of what the Collector had awarded as
compensation. The award of the court may also direct the
Collector to pay interest on such excess or part thereof
from the date on which he took possession of the land to
the date of payment of such excess into court at the rates
specified thereunder. The Court stated : (Prem Nath Kapur
v. National Fertilizers Corpn. of India Ltd. [(1996) 2 SCC 71
: 1995 Supp (5) SCR 790] , SCC p. 77, para 10)
'10. ... In other words, Sections 34 and 28 fasten the
liability on the State to pay interest on the amount of
compensation or on excess compensation under
Section 28 from the date of the award and decree but
the liability to pay interest on the excess amount of
compensation determined by the Court relates back to
the date of taking possession of the land to the date of
the payment of such excess "into the court".'
45. The Court concluded : (Prem Nath Kapur case
[(1996) 2 SCC 71 : 1995 Supp (5) SCR 790] , SCC p.
78, para 12)
'12. It is clear from the scheme of the Act and the
express language used in Sections 23(1) and (2), 34
and 28 and now Section 23(1-A) of the Act that each
component is a distinct and separate one. When
compensation is determined under Section 23(1), its
quantification, though made at different levels, the
liability to pay interest thereon arises from the date on
which the quantification was so made but, as stated
earlier, it relates back to the date of taking possession
of the land till the date of deposit of interest on such
excess compensation into the court. ... The liability to
pay interest is only on the excess amount of
compensation determined under Section 23(1) and not
on the amount already determined by the Land
Acquisition Officer under Section 11 and paid to the
party or deposited into the court or determined under
Section 26 or Section 54 and deposited into the court or
on solatium under Section 23(2) and additional amount
under Section 23(1-A).'"
x x x
x x x
49. When the High Court enhanced the compensation,
the High Court held that the appellants shall be paid
interest in terms of Section 28 of the Act. On the
enhanced compensation, the High Court ordered
payment of interest at the rate of 9% from 19-2-1997 to
18-2-1998 and thereafter at the rate of 15% p.a. till the
date of payment. The relevant portion of the judgment
of the High Court reads as under : (Maj. Gen. Kapil
Mehra case [Maj. Gen. Kapil Mehra v. Union of India,
(2011) 176 DLT 361] , DLT p. 379, para 40)
"40. ... On the enhanced market value, the
appellant shall be paid interest under Section 28 of
the Act @ 9% per annum from 19-2-1997, the date
of issuance of Section 4 notification for the first year
ending on 18-2-1998 and thereafter, @ 15% per
annum till the date of tender of compensation.
Interest shall also be paid on the solatium and the
additional amount in view of the judgment of the
Supreme Court in Sunder v. Union of India [(2001) 7
SCC 211 : (2001) 93 DLT 569] ."
Since the statutory interest under Section 34 and also the
interest in terms of Section 28 of the Act had been awarded
to the appellants, we find no merit in the grievance of the
appellants as to the payment of interest."
21. Hon'ble Supreme Court in the case of Union of India And Anr. Vs.
Pushpavathi & Ors. (2018) 3 SCC 28 has observed thus:-
"40. This Court explained the object and scope of Sections
28 and 34 succinctly in Shree Vijay Cotton & Oil Mills Ltd.
v. State of Gujarat [Shree Vijay Cotton & Oil Mills Ltd. v.
State of Gujarat, (1991) 1 SCC 262] , in the following
words: (SCC pp. 269-70, para 16)
"16. There is inherent evidence in the wording of
Sections 28 and 34 to show that the framers of the Act
intended to assure the payment of interest to the person
whose land was acquired and it was not the intention to
subject the said payment to procedural hazards.
Section 34 lays down that "the Collector shall pay the
amount awarded with interest at 6 per cent per annum
...". The legislative mandate is clear. It is a directive to
the collector to pay the interest in a given circumstance.
Section 34 nowhere says that the interest amount is to
be included in the award-decree as prepared under
Section 23(1) read with Section 26 of the Act. Similarly
Section 28 provides "the award of the court may direct
that the Collector shall pay interest". Here also the
award under Section 23(1) read with Section 26 has
been kept distinct from the payment of interest under
the section. The interest to be paid under Section 34
and also under Section 28 is of different character than
the compensation amount under Section 23(1) of the
Act. Whereas the interest, if payable under the Act, can
be claimed at any stage of the proceedings under the
Act, the amount of compensation under Section 23(1)
which is an award-decree under Section 26, is subject
to the rules of procedure and limitation. The rules of
procedure are hand-maiden of justice. The procedural
hassle cannot come in the way of substantive rights of
citizens under the Act."
22. In the case at hand, admittedly, finding recorded by learned Addl.
District Judge is that the possession of land was taken in the month of April
2002 and, therefore, appellants are entitled for the interest at the rate of 9%
per annum from April 2002 for a period of one year and at the rate of 15%
per annum on the amount of compensation so calculated by the Court after
completion of period of one year. It is ordered accordingly.
23. So far as the ground raised in cross-appeal with respect to
maintainability of Reference Application as the Reference Application has
been filed after six months from the date of award is concerned, learned
Addl. District Judge has considered the issue in para-11 and has observed
that the applicants therein have received information with respect to award
only on 22.09.2007 and thereafter the Reference Application is filed and
from the date of its knowledge the application under Section 18 has been
held to be within the limitation. Though the objection is raised by learned
counsel for the State with respect to maintainability on the ground that it is
filed beyond period of six months as provided under Section 18 of the Act of
1894, however, there is no argument and evidence or document placed on
record by learned counsel for the State with respect to compliance of
provision under Section 12 (2) of the Act of 1894. Section 12 (2) of the Act of
1894 provides that the Collector shall give immediate notice of his award to
such of the persons interested as are not present personally or by their
representatives when the award is made.
24. In aforementioned facts of the case in absence of compliance under
Section 12 (2) of the Act of 1894, submission/ground raised by learned
counsel for the State is not sustainable and it is repelled.
25. For the foregoing discussions, appeal filed by the appellants/land
oustee are allowed in the above terms. Cross-appeal filed by respondent-
State is dismissed.
Sd/-/-/---/
Sd/-
(Parth Prateem Sahu)
Judge
Praveen
