High Court · 2024
Facts
FA-3561-2016-judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 3561 OF 2016Executive Engineer,Minor Irrigation, Osmanabad… Appellant [Ori. Respondent No.3]VERSUS1.Sambhaji s/o Vasant DasmeAge 46 yrs, Occu. Agriculturer/o Renapur, tq. Omerga,Dist. Osmanabad … Respondent no.1 Original Claimant2.The State of MaharashtraThrough the Collector,Osmanabad3.The Special Land Acquisition OfficerManjara Project, Osmanabad…Respondent No. 2 & 3 [Original Respondent Nos. 1 & 2].…Ms Ranjana Reddy, Advocate for Appellant Mr. S. G. Joshi, Advocate h/f Ms. Deepali S. Patil, Advocate forRespondent No.1Mr. D. B. Bhange, AGP for Respondent Nos. 2 and 3 – State .…CORAM: Y. G. KHOBRAGADE, J.RESERVED ON : 06 MAY 2024PRONOUNCED ON : 10 MAY 2024 JUDGMENT1. By the present Appeal under Section 54 of the LandAcquisition Act, 1894 (for short, ‘the Act’), the Acquiring Body 1 of 12 (( 2 ))FA-3561-2016-judgmenttakes exception to the judgment and award dated 02.01.2014,passed by the learned reference Court i.e. Civil Judge Senior Division,Omerga in L.A.R. No.1261 of 2009, whereby the learned ReferenceCourt considered 8 sale instances Exh.34 and enhanced thecompensation to the tune of Rs.1,42,000/- per Acre. 2.Having regard to the submissions canvassed by both thesides, I have gone through the record. It is undisputed that on15.02.1996 even prior to issuance of notification u/s 4 of the LandAcquisition Act, 1894, the present Appellant/Acquiring Body hastaken the possession of present Respondent/ Original Claimant’s landbearing Survey/Gat No.120 admeasuring 0H 25 R situated at Rampur,Taluka Omerga, District Osmanabad. 3.On 29.10.1998, a notification under Section 4 of the Actcame to be issued showing intention of the Acquiring Body foracquisition of the claimant’s land. It is not in dispute that, on24.07.1999, a village notification was published and subsequently anotification under Section 6 of the Act was published on 21.09.2000.The Special Land Acquisition Officer passed an award on 24.03.2003,and determined the compensation to the tune of Rs. 35,500/- perHectare. 2 of 12
Legal Reasoning
(( 8 ))FA-3561-2016-judgmentJJ.) in the case of State of Maharashtra & anr. v.Rajendra Narayanrao Gaikwad, reported in2008 (1) BCR 839.(ii)The interest as provided under Section 34 of thesaid Act shall start running from the date of possession,only if the possession is taken by the Collector inexercise of his powers under Section 17 of the saidAct which would obviously be after issuance of noticeunder Section 9(1) of the said Act. If the possessionis taken under Section 17, the interest payable underSection 34 of the said Act shall start running from thedate of possession and not from the date of award.(iii) Where the possession of the land under acquisition istaken prior to issuance of notification underSection 4(1), then there would be no question ofinvoking the urgency clause under Section 17 of thesaid Act and the interest under Section 34 shall startrunning from the date of passing of the award.(iv) The starting point for the purposes of calculating theamount of additional component underSection 23(1A) of the said Act at the rate of twelveper centum per annum is the date of publication ofthe notification under Section 4 of the said Act, andthe terminal point is either the date of the award orthe date of taking possession, whichever is earlier. (v) Wehold that in none of the eventualities, the claimantshall be entitled to interest under Section 34 of thesaid Act from the date of publication of thenotification under Section 4(1) of the said Act.(vi) There is no overlapping of the benefits underSection 23(1A) and Section 34 of the said Act. Theterminal points under Section 23(1A) are the startingpoints under Section 34 of the said Act and both theprovisions operate in different fields.(vii) We express our full agreement with the view takenby the Division Bench of this Court in Lalitkumar Shah'scase, cited supra, that in a case where possession is 8 of 12 (( 9 ))FA-3561-2016-judgmenttaken prior to issuance of notification underSection 4(1) of the said Act, the interest underSection 34 shall start running from the date of awardonly.(viii) We also express our full agreement with the viewtaken by the Division Bench of this Court in LalitkumarShah's case, cited supra, that the decision of the DivisionBench in the case of Jafarali Mithabhai Hirani & Ors. v.State of Maharashtra & Ors., reported in 2009 (3) All MR779, and the similar view takenin other matters is no longer a good law.33. In view of above, we answer the question of reference asunder :(a) If the possession is taken before the notificationunder Section 4(1) of the Land Acquisition Act ispublished and/or before the award is passed, thelandowner would be entitled for interest as perSection 34 necessarily from the date of passing of theaward under Section 11 of the said Act, except in caseswhere the possession is taken in accordance withSection 17 of the said Act, and in that situation only, theprovision of Section 34 of the said Act shall startoperating from the date of possession.(b) We also hold that the decision of the DivisionBench of this Court in the case of Lalitkumar HimmatlalShah v. State of Maharashtra and others, decided bySmt. Vasanti A. Naik and Shri Prasanna B. Varale, JJ.,and reported in 2012(4) Mh.L.J. 742, lays down acorrect position of law and it does not requirereconsideration.”12.It is well settled principle of law that while determiningthe compensation of acquired land under the Act, sale instances andfertility of the acquired land required is to be considered. In case in 9 of 12 (( 10 ))FA-3561-2016-judgmenthand, the learned reference court has considered the certified copiesof award Exh.37 and E-statement Exh.38 passed in other similarlyacquired land wherein the land of the owners were acquired forKalnimbala Medium Project Right Canal. 13. Further, the claimant proved other 8 sale instances atExh.34. The learned Special Land Acquisition considered Exh. 34 i.e.8 (Eight) Sale instances and awarded compensation only to the tuneof Rs. 35,500/- per Hectare, though, Exh. 34 Sale instances provedby the claimant at Exh.34 for the year 1999, is comparable saleinstances after calculating the same at the same rate per Acre, whichcomes to Rs. 1,42,000/- per Acre. 14.Merely, production of the sale-deed for less area than theacquired land it cannot be discarded while determining thecompensation. Therefore, I do not find substance in submissionscanvassed on behalf of the appellant. 15. Since the land of present respondent/original claimanthas been acquired on 15.02.1996, much prior to issuance of villagenotification. Therefore, as per the ratio laid down in the case of Stateof Maharashtra Vs. Kailash Shiva Rangari (supra), by the Full Bench 10 of 12 (( 11 ))FA-3561-2016-judgmentof this Court, the respondent/original claimant is entitled for interestas per Section 34 of the Act from the date of possession of land andnot from the date of passing of the award.16.On perusal of the impugned judgment and award itappears that the learned reference Court has rightly enhanced thecompensation to the tune of Rs. 1,42,000/- per Acre for acquired landof 24 R out of Survey No.120, situated at village Rampur withsolatium at the rate of 30% under Section 23(2) of the Act onenhanced amount of compensation. It further held entitle for interestat the rate of 12% p. a. from the date of notification under Section 4and under Section 23(1) of the Act and interest at the rate of 9% p.a., for the first year from the date of notification under Section 4 ofthe Act. Further after the date of expiry of one year, granted interestat the rate of 15% p. a., till realization of the amount under Section28 of the Act and rental compensation at the rate of 8% p. a., fromthe date of taking over possession of the land i.e. 15.02.1996, doesnot appears to be perverse, illegal and bad in law. 17.In view of the above discussions, I proceed to pass thefollowing order: 11 of 12 (( 12 ))FA-3561-2016-judgment:: ORDER ::(i)First Appeal is hereby dismissed.(ii)No order as to costs.(iii)The record and proceedings be remitted back to the trial Court.[ Y. G. KHOBRAGADE, J. ]SMS 12 of 12
Arguments
(( 3 ))FA-3561-2016-judgment4. Being dissatisfied with the said Award, presentRespondent/original Claimant made reference under Section 18 ofthe Act. After conclusion of trial, the learned reference Courtconsidered 8 sale instances Exh.34 as well as Exh.37 the certifiedcopies of Award and E-statement Exh.38, and enhanced thecompensation to the tune of Rs.1,42,000/- per Acre. Therefore, thepresent Appellant/Acquiring Body has assailed the Judgment &Award dated dated 02.01.2014, passed by the learned referenceCourt i.e. Civil Judge Senior Division, Omerga in L.A.R. No.1261 of2009 under Section 54 of the Act. 5.Ms. Ranjana Reddy, the learned Counsel appearing for theappellant/Acquiring Body vehemently canvassed that the learnedreference Court committed gross error while considering the saleinstances under Exh.34 and without appreciating the evidence,enhanced ten times excess compensation. So also, the factors ofproximity, fertility productivity and quality of the land not beenconsidered. It further canvassed that, the learned reference Court haswrongly granted the interest at the rate 9% p. a., for the first yearfrom the date of notification under Section 4 of the Act and after 3 of 12 (( 4 ))FA-3561-2016-judgmentexpiry of one year interest at the rate 15% p.a., has been grantedunder Section 28 of the Act. 6. It is further canvassed on behalf of learned Counselappearing for the appellant/Acquiring Body that land of claimant notacquired by invoking Section 17 of the Act. Therefore, as per Section16 of the Act, the Collector is empowered to take possession of theland after the Award is passed under Section 11 of the Act. Therefore,the claimant is not entitled for rental compensation and the interestbetween the period from the date of possession till issuance ofnotification under Section 4 of the Act. However, the learnedreference Court wrongly granted rental compensation with interest,hence, prayed for quashing and setting the impugned judgment andaward. 7. In support of these submissions, the learned Counselappearing for the appellant has placed reliance on the following caselaws. (i)Shankarrao Bhagwantrao Patil and others Vs. The State ofMaharashtra and others – LAWS (BOM) 2016 3 122;(ii)Lalitkumar Himmatlal Shah Vs. State of Maharashtra –LAWS (BOM) 2012 5 67;(iii)Dinkar Sandipan Gholve and others Vs. State ofMaharashtra and others – 2008 SCC OnLine Bom 696; 4 of 12 (( 5 ))FA-3561-2016-judgment(iv)Bhagwat Nathu Patil Vs. State of Maharashtra and others –2009(3) Mh.L.J. 413;(v)State of Maharashtra Vs. Kailash Shiva Rangari – 2016(3)Mh.L.J. 457.8.Per contra, the learned Counsel appearing for presentrespondent/original claimant has filed written notes of argument. Healso argued the matter for a considerable period. The learned counselfor the claimant submits that, on 24.03.2003, the learned SpecialLand Acquisition Officer passed the award and granted very meagreamount of compensation of Rs.35,500/- per Hectare. Therefore,present respondent/original claimant made reference under Section18 of the Act and proved substantial documentary evidence, certifiedcopy of award Exh.37, E-statement Exh.38 and other 8 sale instancesExh.34. The market price of the acquired land was Rs. 2,00,000/- perAcre. Therefore, after considering the evidence, the learned referenceCourt has enhanced the compensation at the rate of Rs. 1,42,000/-per Acre, which is just and proper, hence, prayed for dismissal ofpresent appeal. 9.It is further canvassed on behalf of the claimant that, thepossession of the land of present respondent/ claimant was taken bythe Government on 15.02.1996, much prior to publication of 5 of 12 (( 6 ))FA-3561-2016-judgmentnotification under Section 4 of the Act and award was passed on24.03.2003. Therefore, the respondent/claimant is entitled for rentalcompensation under Section 34 of the Act. 10.In the case in hand, the question arises as to whether aperson would be entitled for interest under Section 34 of the Act fromthe date of his dispossession, if the dispossession is prior to theissuance of notification under Section 4 of the Act and if not, whatwould be the date of claiming of interest. 11.In case of State of Maharashtra Vs. Kailas Shiva Rangari –2016 (3) Mh.L.J. 457, the Full Bench considered various case lawscited therein as well as scope of Section 34 of the Act, has observed inPara Nos. 29 to 33, as under:- “29.In terms of the decision of the Apex Court in the case ofSiddappa Vasappa Kuri and another v. Special Land AcquisitionOfficer and another, reported in AIR 2001 SC 2951, it is heldthat the starting point for the purposes of calculating theamount of additional compensation under Section 23(1A) ofthe said Act at the rate of twelve per centum per annum on themarket value of the land is the date of publication of Section 4notification. The terminal point for the purpose is either thedate of the award or the date of taking possession, whichever isearlier. The interest payable under Section 34 of the said Act isin the case where the possession is taken under Section 17 ofthe said Act, but the compensation determined under clause (a)of subsection (3A) of Section 17 or under Section 11 of the saidAct has not been paid or deposited on the date when it becamedue and payable. As such, Section 34 of the said Act operates 6 of 12 (( 7 ))FA-3561-2016-judgmentonly from the date on which the compensation determinedbecomes due and payable. As against this, the additionalcomponent under Section 23(1A) becomes payable on the dateof publication of the notification under Section 4(1) of the saidAct, or from the date of taking possession of the land,whichever event occurs earlier.30.In view of above, there is no question of overlapping thebenefits available to the claimants under Section 23(1A) orSection 34 of the said Act. The terminal point under Section23(1A) is either the date of the award or taking of possession,whereas the starting point of interest under Section 34 of thesaid Act is the passing of the award or taking of possession;both terminating on the date of payment or deposit in Courtpursuant to the award passed under Section 11 of the said Act.31.If the landowner is divested the possession of his landby the Collector or the State Government illegally or de horsthe provisions of the said Act, it is open for him to recover suchpossession and claim rent and damages for the use andoccupation for the period for which the State Government hasillegally retained the possession of the land. To take care ofsuch situation, certain administrative circulars have been issuedby the State Government for payment of rental compensation,in accordance with which the claimants are paid for the periodfor which they are deprived of the benefits of the land till thenotification is published under Section 4(1) of the said Act. Weare not concerned in this matter about the rental compensationor the damages to which the claimants are entitled, if thepossession of the land is de hors the provisions of the Act.32. Keeping in view the entire scheme of the Land AcquisitionAct and the ratio of the decisions of the Apex Court in the casesof R.L. Jain and Lila Ghosh, cited supra, the position of law canbe summarized as under :(i) If the possession of the land under acquisition is takenunder Section 16 of the said Act i.e. after an award ismade by the Collector under Section 11 therein, theinterest would be payable under Section 34 from thedate of passing of the award and we are in agreementwith such a view expressed by the Division Bench ofthis Court (S/Shri N.V.. Dabholkar and M.G. Gaikwad, 7 of 12