Shri Shanti Sarup & Ors vs Uoi & Ors.
2010 Latest Caselaw 2102 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            LA. APP. 874/2008

                                            Date of decision: 21.04.2010
IN THE MATTER OF :

       SHRI SHANTI SARUP & ORS                  ..... Appellants
                     Through : Mr. H.K. Chaturvedi, Adv.

                    versus

       UOI & ORS.                        ..... Respondents
                         Through : Mr. Sanjay Poddar with
                                   Mr. Ramesh Ray, Adv. for UOI.

  CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may     Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?    Yes

     3. Whether the judgment should be            Yes
        reported in the Digest?


HIMA KOHLI, J. (ORAL)

1. The present appeal is directed against the judgment dated

28.4.2007 passed by the Reference Court in respect of the land

situated in village Gharonda Neemka Bangar, Delhi, covered under

Award No.6-C/1971-72(supplementary) made on 31.3.1977. The

limited grievance of the appellants in the present appeal is that while

passing the impugned judgment, they were not granted interest on the

enhanced compensation for the acquired land at the market value as

fixed by the Reference Court, for the period from the date of death of

appellant No.1, Shri Shanti Sarup, i.e., from 5.2.1988, till the date of

filing of an application by his legal heirs under Order 22 Rule 3 and

Section 151 CPC read with Section 53 of the Land Acquisition Act,

1894 (in short 'the Act'), i.e., till 5.7.2006, while excluding the period

of 90 days granted for filing such an application. Similarly, the legal

heirs of the deceased appellant No.2, Shri Surender Nath, were held

dis-entitled to interest on the enhanced compensation from the date of

his death, i.e., from 30.4.1979, till the filing of the application by his

legal heirs under Order 22 Rule 3 and Section 151 CPC read with

Section 53 of the Act, i.e, till 5.7.2006, while excluding the period of

90 days granted for filing such an application.

2. Before dealing with the contentions raised by the counsel

for the appellants, certain undisputed relevant dates are necessary for

consideration. On 11.5.1977, a reference petition was filed by the

predecessors-in-interest of the appellants under Section 18 of the Act.

On 19.1.1979, a separate reference was forwarded by the Land

Acquisition Collector under Sections 30 & 31 of the Act. On the same

date, the Land Acquisition Collector also forwarded the amount as per

the award made on 31.3.1977, to the Reference Court under Sections

30 & 31 of the Act. However, the reference under Section 18 of the

Act was received by the Reference Court on 25.3.2006. On 5.7.2006,

two applications were filed by the legal heirs of the appellants under

Order 22 Rule 3 and Section 151 CPC read with Section 53 of the Act

stating inter alia that they are predecessors-in-interest of appellant

No.1, Shri Shanti Sarup, who expired on 5.2.1988, and of appellant

No.2, Shri Surender Nath, who expired on 30.4.1979. Consequently,

the legal heirs sought impleadment as appellants in the pending

proceedings before the Reference Court.

3. The aforesaid applications were disposed of by the

Reference Court, vide order dated 2.4.2007. While allowing the said

applications, the learned Additional District Judge held that the

appellants would not be entitled for the interest on the enhanced

compensation for the intervening period, from the date of death of

their predecessors-in-interest, namely, Shri Shanti Sarup and Shri

Surender Nath, till the date of filing of the applications under Order 22

Rule 3 CPC, i.e., till 5.7.2006, except for the period of 90 days granted

for filing of such applications. The aforesaid order was assailed by the

appellants by preferring a petition under Article 227 of the Constitution

of India, registered as CM(M) No.540/2007, entitled "Shri Shanti

Sarup & Ors. vs. UOI & Ors". However, the appellants (petitioners

therein) sought to withdraw the said petition in view of the fact that in

the interregnum, the impugned order dated 28.4.2007 came to be

passed. Vide order dated 8.8.2008, the petition was permitted to be

withdrawn, while granting liberty to the appellants herein to assail the

order dated 28.4.2007 as per law.

4. Counsel for the appellants submits that the Reference Court

erred in holding that the appellants were not entitled to interest on the

enhanced compensation for the intervening period from the date of the

death of their predecessors-in-interest, till the date of filing of the

applications under Order 22 Rule 3 CPC, i.e., till 5.7.2006, for the

reasons that the proceeding before the Land Acquisition Collector

cannot be treated as one pending before a civil court and hence, the

provisions of Order 22 Rule 3 CPC do not apply to such proceedings.

In support of the aforesaid submission, he draws support from a

judgment dated 3.2.2009 in the case of Dayanand Deceased (through

LRs) vs. UOI in CM(M) No.1369/2007.

5. In the aforesaid case, the question which arose for

determination, was as to whether the application preferred under

Order 22 Rule 3 CPC for impleading legal heirs could have been filed

before the Collector or should the petitioners therein have waited, for

a reference petition to be filed by the Collector before the Court. While

discussing the provisions of Section 3(c) and (d) of the Act, which

define the expressions, "Collector" and "Court", respectively, read

along with Section 53 of the Act, which specifies that the provisions of

Code of Civil Procedure would apply to proceedings before the Court

under the Land Acquisition Act, the learned Single Judge, relied on two

judgments of the Supreme Court in the case of Mahadeo Bajirao Patil

vs. State of Maharashtra & Ors., reported as (2005) 7 SCC 440 and

Kailash vs. Nanhku & Ors., reported as (2005) 4 SCC 480, to hold

that the petitioners therein were not legally bound to file an application

under Order 22 Rule 3 CPC, till the proceedings were pending before

the Collector and as the Land Acquisition Collector is not a court,

therefore the provisions of Order 22 Rule 3 CPC do not apply to the

proceedings pending before him. The said conclusion was arrived at

by drawing parity from the aforesaid two judgments of the Supreme

Court, wherein it was observed that provisions of Section 5 of the

Limitation Act do not apply to the proceedings before the Collector as

he is not a court.

6. Counsel for the appellants further contends that while

passing the order dated 28.4.2007, reliance placed by the Reference

Court on the order dated 25.8.2005 passed by a Division Bench in RFA

No.107/1986, was mis-conceived for the reason that unlike the

proceedings in the case in hand, which were pending before the Land

Acquisition Collector, in the aforesaid case, the proceedings were

pending before the Court. He submits that Section 53 of the Act

would come into play only if proceedings are pending before the civil

court and hence his clients could not be deprived of the interest

payable on the enhanced compensation as awarded by the Reference

Court.

7. In the present case also, the appellants are justified in

submitting that they could not be deprived of the interest on the

enhanced compensation as fixed by the Reference Court till the date

25.3.2006, when the reference under Section 18 of the Act was

received by the Reference Court. The appellants are also entitled to

claim interest on the enhanced compensation as granted by the

Reference Court to the respondent No.3 herein (original petitioner

No.2 before the Reference Court).

8. Counsel for the respondent has no quarrel with the

aforesaid conclusion, but he submits that as the amount under the

award was forwarded on 19.01.1979 by the Land Acquisition Collector

to the Reference Court under Sections 30-31 of the Act, the

respondent cannot be held liable to pay interest on the said amount.

In this regard, he draws the attention of this Court to Section 34 of the

Act. Section 34 stipulates that 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 @ 9%

per annum from the time of so taking possession, until it shall have

been so paid or deposited. Section 28 of the Act, however, stipulates

that the Collector may be directed to pay interest on excess

compensation @ 9% per annum from the date on which he took

possession of the land to the date of payment of such excess

compensation into court. Accordingly, the present appeal is disposed

of by modifying the operative para of the impugned order dated

28.04.2007, as below :-

"The appellants shall be entitled to market value of the land

acquired by notification dated 13.11.1959 under Section 4 of the Act

@ Rs.8,064/- per bigha. They shall also be entitled to enhanced

compensation as per the details mentioned in the statement under

Section 19 of the Act and also on the basis of judgment dated

22.11.1985 passed in LAA No.16/1979 entitled UOI vs. Smt. Saroj

Malik & Ors. Besides the above, the appellants shall be entitled to get

of solatium under Section 23 (2) of the Act @ 30% per annum on the

enhanced amount of compensation, and interest under Section 28 of

the Act @ 9% per annum for the first year from the date of

dispossession and @ 15% per annum on the difference between the

enhanced compensation awarded by the Reference Court and the

compensation awarded by the Land Acquisition Collector for the

subsequent period till the payments. The appellants shall also be

entitled to grant of interest @ 6% per annum on the market value,

w.e.f., 13.11.1962 till the date of tender of the compensation awarded

by the Collector, in terms of Section 4(3) of the Land Acquisition

(Amendment & Validation) Act, 1967, till 19.1.1979. The appellants

shall be further entitled to interest on solatium in terms of the

judgment of the Supreme Court in the case of Sunder vs. UOI,

reported as DLT 2001 (SC) 569. However, the appellants shall not

be entitled to interest on the enhanced compensation, w.e.f.,

25.3.2006, the date when the reference under Section 18 of the Act

was received by the Reference Court, till 5.7.2006, the date when the

appellants filed two applications under Order 22 Rule 3 CPC."

9. The aforesaid modifications in the impugned order shall be

taken into consideration, when the appellants approach the Executing

Court. While the appellants shall be awarded interest on the

compensation in terms of Section 34 of the Act and interest on the

enhanced compensation in terms of Section 28 of the Act, but the

period, w.e.f., 25.3.2006 till 5.7.2006 shall be excluded for the

purposes of calculating interest on the compensation awarded under

Section 34 of the Act. The Executing Court shall also take into

consideration the fact that as per the award, the Land Acquisition

Collector deposited the amount with the Reference Court under

Sections 30 & 31 of the Act on 19.1.1979.

10. The appeal is partly allowed and disposed of on the

aforesaid lines, while leaving the parties to bear their own costs.

11. A modified decree sheet shall be drawn in terms of the

aforesaid orders.

(HIMA KOHLI) JUDGE APRIL 21, 2010 sk