High Court
Facts
957-FA-1483-2016+.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 1483 OF 2016WITHCIVIL APPLICATION NO. 5952 OF 2016 IN FA/1483/2016The Executive Engineer Kukadi Canal Construction Division, Kolwadi Division….AppellantVERSUSChandrakala Dinkar Borade And Another…..Respondents…..Mr. G. B. Rajale, Advocate for AppellantMr. G. D. Kale, Advocate for Respondent No. 1Mr. D. B. Bhange, AGP for Respondent No. 2…..CORAM:R.M. JOSHI, JDATE:JANUARY 10, 2024PER COURT : 1.Present Appeal is filed challenging judgment and award dated05.05.2012 passed by learned CJSD, Shrigonda, Dist. Ahmednagar in LARNo. 427/2008 whereby reference is partly allowed and enhancedcompensation has been granted in favour of the Respondent – OriginalClaimant.2. The land of the respondent was acquired under an awardpassed by Land Acquisition Officer under Section 11 of the Act. TheRespondent had made a reference Petition under Section 18 of the LandPage 1 of 6
Legal Reasoning
957-FA-1483-2016+.odt4.At this juncture, the reference to the findings recorded by theLarger Bench of this Court in the case of State of Maharashtra Vs. KailashShiva Rangari (Supra) in Paragraph No.32 is necessary, which reads thus:“32. Keeping in view the entire scheme of the Land Acquisition Actand 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 besummarized as under :(i) If the possession of the land under acquisition is taken underSection 16 of the said Act i.e. after an award is made by the Collectorunder Section 11 therein, the interest would be payable under Section34 from the date of passing of the award and we are in agreementwith 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 ofMaharashtra & anr. Vs. Rajendra Narayanrao Gaikwad, reported in2008 (1) Bom. C.R. 839 (A.B.).(ii) The interest as provided under Section 34 of the said Act shallstart running from the date of possession, only if the possession istaken by the Collector in exercise of his powers under Section 17 ofthe said Act which would obviously be after issuance of notice underSection 9(1) of the said Act. If the possession is taken under Section17, the interest payable under Section 34 of the said Act shall startrunning from the date of possession and not from the date of award.(iii) Where the possession of the land under acquisition is taken priorto issuance of notification under Section 4(1), then there would be noquestion of invoking the urgency clause under Section 17 of the saidAct and the interest under Section 34 shall start running from thedate of passing of the award.(iv) The starting point for the purposes of calculating the amount ofadditional component under Section 23(1-A) of the said Act at therate of twelve per centum per annum is the date of publication of thenotification under Section 4 of the said Act, and the terminal point iseither the date of the award or the date of taking possession,Page 3 of 6 957-FA-1483-2016+.odtwhichever is earlier.(v) We hold that in none of the eventualities, the claimant shall beentitled to interest under Section 34 of the said Act from the date ofpublication of the notification under Section 4(1) of the said Act.(vi) There is no overlapping of the benefits under Section 23(1-A) andSection 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 theprovisions operate in different fields.(vii) We express our full agreement with the view taken by theDivision Bench of this Court in Lalitkumar Shah's case, cited supra,that in a case where possession is taken prior to issuance ofnotification under Section 4(1) of the said Act, the interest underSection 34 shall start running from the date of award only.(viii) We also express our full agreement with the view taken by theDivision Bench of this Court in Lalitkumar Shah's case, cited supra,that the decision of the Division Bench in the case of JafaraliMithabhai Hirani & Ors. v. State of Maharashtra & Ors., reported in2009 (3) All MR 779, and the similar view taken in other matters isno longer a good law.”5.Pertinently, this Court in the matter of State of Maharashtra Vs.Ramesh Tukaram Meshram (supra) again dealt with the finding recorded bythe full bench and interpreted the provisions of Section 28 fo the Act andconcluded that the interpretation accorded to Section 34 would also have itsequal application while understanding the import of Section 28 of the Act. Itis further observed that the interest awarded under Section 28 of the Act,just like under Section 34 thereof, cannot be a compensation or damages forthe loss of right to retain possession but only compensation payable by theState for keeping back the amount payable to the owner.Page 4 of 6 957-FA-1483-2016+.odt6.Keeping in mind the aforesaid propositions of law, it can beseen that manifest error is committed by the reference Court while passingthe impugned judgment and award to the extent of grant of interest fromthe date of award.7.Mr. Kale, learned Counsel appearing for Respondent, thoughendeavors to support the award, did not dispute the legal propositionsunderlined in the aforesaid judgments.8. In view of the aforesaid discussion, this Court proceed to passthe following order:ORDER(i)The Appeal is partly allowed.(ii)The clause no. 5 of the operative part in the impugnedjudgment and award dated 05.05.2012 passed by CJSD,Shrigonda in LAR No. 427/2008 stands partially replacedas under, without disturbing the other clauses:(a)The Applicants shall be entitled for the benefitunder Sections 28 and 34 of the Act from the date of awardi.e., 21.05.2004.(b)The Applicants shall be entitled for the interest @9% per annum for the first year from the date of award andthereafter @ 15% till realization of the entire amount. (iii)The judgment and award passed by the reference Court ismodified in the aforesaid terms while confirming rest ofaward.(iv)The appeal is disposed of accordingly.Page 5 of 6
Arguments
957-FA-1483-2016+.odtAcquisition Act, 1894 seeking enhancement of compensation. The referenceCourt partly allowed the claim in reference petition and granted theenhanced compensation @ Rs. 9000/- per R. The interest under Section 34of the Act has been awarded from the date of possession. Similarly, thebenefit under Section 28 of the Act is also granted from that date.3.Mr. Rajale, learned Counsel for the Appellant, points out thatthe reference Court has committed an error in awarding the interest de horsstatutory scheme. He submits that the interest under Section 28 and 34 ofthe Act has been granted by the reference Court contrary to the law declaredby the Full Bench judgment in case of State of Maharashtra Vs. KailashShiva Rangari, 2016 (4) ALL MR 513 and subsequent judgment in the caseof State of Maharashtra and Others Vs. Ramesh Tukaram Meshram andOthers, 2018 (3) Mh.L.J. 616. He also points out that in the present case,the Special Land Acquisition Officer has passed an award on 21.05.2004.The notification under Section 4 of the Act was published on 25.05.2002.Inthat view of the matter, he urged that the reference Court erred in grantingthe interest/benefit under Sections 28 and 34 of the Act from the date ofpossessions. The issue raised on behalf of the Appellant is no more resintegra. It is well settled that the benefit under Sections 28 and 34 of the Actwill be available from the date of award passed by the Land AcquisitionOfficer in terms of Section 11 of the Act.Page 2 of 6
Decision
957-FA-1483-2016+.odt(v)In view of disposal of appeal, pending civil applications, ifany, are also disposed of. (R. M. JOSHI, J.) MalaniPage 6 of 6