High Court
Legal Reasoning
(1)fa2037.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADFIRST APPEAL NO. 2037 OF 2024ANDFIRST APPEAL NO. 1458 OF 2024 THE EX. ENGINEER, MINOR IRRIGATION DIVISION,OSMANABD THR G.M.I.D.C., AURANGABAD….Appellant VERSUSNAMDEV JIVLA BOLKE AND OTHERS…..RespondentsMr. S. B. Bhalerao, Advocate for the appellant Mr. D. B. Bhange, AGP for the respondents/StateMr. N. J. Patil, Advocate for the respondent Nos. 1 to 5CORAM:KISHORE C. SANT, J.RESERVED ON:08th JULY, 2024PRONOUNCED ON:16th AUGUST, 2024JUDGMENT1.Since common questions are involved in all theseappeals, these are taken together and are being disposed off bycommon judgment. The first question is as to which is a materialdate for grant of interest under Section 28 of the LandAcquisition Act. Whether it is to be granted from the date of1 of 11 (2)fa2037.24taking of possession of the lands of claimants, if possession istaken prior to notification under section 4(1) of the Act, or it isto be granted from the date of award or any other date. Secondquestion is that whether the judgment in the case of State ofMaharashtra Vs Kailash Shiva Rangari reported in 2016 (3)Mh.L.J. 457 and followed in the case of State of Maharashtra VsRamesh Tukaram Meshram and another reported in 2018 (1)ALL MR 645 is applicable in these case.2.In all these appeals the learned reference court hasgranted interest to the claimants on the amount ofcompensation from the date of actual taking of possession oflands. Possession of land in all these cases is taken prior tonotification under Section 4(1) of the Act. These appeals arethus, filed for limited purpose challenging award of interestfrom the date of possession and not from the date of award. It isthe submission of the learned advocate for acquiring body thatthis case is clearly covered by the judgment in the case ofKailash Shiva Rangari (supra) and Ramesh Tukaram Meshram2 of 11 (3)fa2037.24(supra) this position is disputed by the claimants.3.It is the submission of the claimants that the saidjudgments are not applicable to the present cases. The judgmentin the case of Kailash Shiva Rangari (Supra) is given consideringjudgment of the Hon’ble Supreme Court in the case of R. L. Jain(D) by LRs Vs V. D. D. A. and others reported in AIR 2004 SC1904. Both the judgments deal with the aspect of grant ofinterest under Section 34 of the Act and not in respect of section28 of the Act. The judgment in the case of Ramesh TukaramMeshram (supra) is not in tune with the judgment in the case ofKailash Shiva Rangari (supra) and R. L. Jain (D) by LRs(supra). The claimants therefore, support the impugnedjudgments. 4.Heard the parties for quite some time.5.For understanding the exact dispute few facts aretaken from the lead matter i.e. first appeal No. 1543/2023. In3 of 11 (4)fa2037.24this case, the facts in short are that, the respondent-claimantwas the owner of various lands acquired for Sina Kolegaonproject situated at Kaudgaon, Tq. Paranda, Dist. Osmanabad.6.For the purpose of acquisition notification underSection 4(1) of the Act was published in the GovernmentGazette on 24-07-1997. Declaration under Section 6 waspublished in the Gazette dated 18-03-1999. The claimantsreceived notice under Section 12(2) of the Act on 18-08-2006.Before publishing of the notifications under Section 4 of the Act,the possession of the land was already taken. The referencecourt directed to pay interest under Section 28 of the Act fromthe date of publication of notice under Section 4(1) i.e. from 24-07-1997. Since other facts and rate of lands are not in dispute,this court need not go into further details. The appellantacquiring body filed appeal only to the extent that the interest isdirected to be paid from the date of possession instead ofgranting the same from the date of award. 4 of 11
Legal Reasoning
(5)fa2037.247.Mr. A. M. Gaikwad, learned advocate for theappellant in a lead case, argued at length. He submits that thelearned reference court could not have granted interest from thedate of taking possession of the land, on the strength of thejudgment in the case of R. L. Jain (Supra), Kailash ShivaRangari (supra) and Ramesh Tukaram Meshram (supra).8.He submits that as per the scheme of the actnotification under section 4(1) only shows that the governmentis intending to acquire the land. Section 5 of the Act authorizesthe authorities to inspect the land by visiting the lands likely tobe acquired and objections are called under Section 5(1-a).Section 6 is a declaration that the lands are required by theGovernment for the purposes under the Act. Section 9 is only anotice to the persons interested. Section 11 provides the powersof the Collector to pass an award. It is section 12 which givesfinality to the award. It is only after award is passed theauthorities can take possession of the land under Section 16. Itis only a possession taken under Section 16 that passes the title5 of 11 (6)fa2037.24of the land in favour of the government/acquiring body. Till thatdate title is with the owner of the land /claimants. It is only inexceptional circumstances under Section 17 the Government cantake possession by invoking emergency clause, whereconsiderations for grant of compensation are distinct. Thus, forthe purpose of grant of interest, it is the date of possession,when possession is taken under Section 16 of the Act is thematerial date. Thus, the claimant himself is owner of the landtill that date. This argument is adopted by all the lawyers for theappellants.9.Mr. Mulkul Kulkarni, learned Advocate adoptsargument of Mr. A. M. Gaikwad. In addition he submits thatpurpose of notification under Section 4(1) is only to give thepoint at which market value is to be determined. Thisnotification does not take away title of the owner over the land.If possession is taken prior to this event owner is entitled only toget rental compensation or damages. This submission is made inview of the judgment which are already stated above. In6 of 11 (7)fa2037.24addition he relied upon the judgment in the case ofGurpreetsingh Vs Union of India reported in 2006 AIR (SCW)5813.10.Respective AGPs support arguments of theappellants.11.To counter this argument learned advocate AbhijitChaudhary for the claimants submits that the judgment in thecase of Kailash Shiva Rangari (supra) deals only with the aspectof grant of interest under Section 34 of the Act. The analogy inthe judgment of Kailash Shiva Rangari (Supra) is wronglyapplied in the case of Ramesh Tukaram Meshram (supra). In thecase of Ramesh Tukaram Meshram (supra) question was of grantof interest under Section 28. He further submits that at any ratethat judgment would not be applicable while consideringquestion of grant of interest under Section 23(1-A) and section28. The starting point is only dispossession of owner from theland even if it is prior to notification under Section 4(1). He7 of 11 (8)fa2037.24relied upon the judgment reported in 2011 11 page 648 in thecase of Revenue Divisional Officer, Karnool District Vs M.Ramkrishna Reddy. In any case, he submits that interest needsto be granted at the most from the date of publication of section4(1) notification. He also relied upon the judgment reported inAIR 2021 SC 4962 in the case of Shankarrao Bhagwantrao PatilEtc. Vs State of Maharashtra. His main submission is that grantof interest under Section 34 is different from section 28 andSection 23(1A). He lastly relied upon the judgment reported inManu/MH/0733/2012 in the case of Lalitkumar Shah Vs Stateof Maharashtra. He ultimately submits that the appeal needs tobe dismissed. The learned advocate for the claimants in otherappeals adopted his arguments.12.Thus, on hearing the arguments, this court needs toconsider whether reference courts in these cases have rightlygranted interest from the date of possession in the present casein the light of the judgment of the full bench in the case ofKailash Shiva Rangari (supra) followed in the judgment of8 of 11 (9)fa2037.24Ramesh Meshram (supra) on grant of interest under Section 28and 34 of the Act.13.In view of the judgment in the case of KailashRangari (supra) it is clear that section 34 interest is to beawarded only from the date of award under Section 11 or fromthe date of possession, if said possession is taken in the mannerprovided by the act i.e. under section 16. This court is notconsidering possession taken under Section 17 of the Act. In thepresent case, the possession is taken prior to notification underSection 4(1). Though the possession is taken prior to suchnotification, it cannot be taken to be a starting point for grant ofinterest under Section 34.14.So far as Section 28 interest is concerned, this courtin the case of Ram has clearly held that the interest is payableeven under this section from the date of award and if thepossession is taken pursuant to section 16 of the Act then fromthe date of possession whichever is earlier. No case is made out9 of 11 (10)fa2037.24to take a different view than taken in the case of RameshMeshram (supra).15.So far as interest under Section 23(1A) is concernedthe Hon’ble Supreme Court in the case of Siddappa Visappa Kuriand Anr Vs Special Land Acquisition Officer and anotherreported in 2002(1)ALL MR 262 (SC) has clearly held that thestarting point is only section 4(1) till the date of award underSection 11.16.Thus, considering all above, this court finds that inthe present case, the learned reference courts have erred indirecting payment of interest from the date of actual possessionor from the date of section 4(1) notification. Said needs to bemodified by directing to pay interest under Section 28 and 34from the date of award under Section 11. So far as interestunder Section 23(1A) is concerned, there is no error committedby the learned trial court.10 of 11 (11)fa2037.2417.All the appeals are thus stand disposed off in aboveterms.18.In view of disposal of the appeals, pending civilapplications, if any do not survive and are disposed off. [KISHORE C. SANT, J.]VishalK/fa2037.2411 of 11