Union of India rep. by Government of Pondicherry rep. by Secretary (Rev) Department,Pondicherry v. Pushpavathi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 08.07.2009CORAMTHE HONOURABLE MR. JUSTICE S.J.MUKHOPADHAYAAND THE HONOURABLE MR. JUSTICE RAJA ELANGOW.A.NOS.1384 TO 1392 & 1755 OF 1999ANDC.M.P.NOS.12687 TO 12695 OF 19991.Union of India rep. by Government of Pondicherry rep. by Secretary (Rev) Department,Pondicherry. 2.The Revenue Officer-cum-Land Acquisition Officer Central University Land Acquisition Wing Education Department Pondicherry. ..Appellants in all the appeals- Vs -Pushpavathi ..Respondent in W.A.1384/99Pandurangam Chettiar ..Respondent in W.A.1385/99Subbarayan ..Respondent in W.A.1386/99Ethiraju ..Respondent in W.A.1387/99Pondurenga Chettiar ..Respondent in W.A.1388/99Vasudeva Chettiar ..Respondent in W.A.1389/99Devagi Ammal ..Respondent in W.A.1390/99Malligambal ..Respondent in W.A.1391/99Saraswathy @ Dhamayanthy ..Respondent in W.A.1392/99Joseph Prem Raja ..Respondent in W.A.1755/99Writ Appeals under Clause 15 of Letters Patent against theCommon order dated 13.4.1999 made in W.P.Nos.5486 to 5494 of 1999 andorder dated 13.7.1999 made in W.P.No.11806 of 1999. W.P.No.11806 of 1999: Writ Petition praying to issue a Writ ofMandamus, directing the 2nd respondent to award interest inaccordance with Section 34 of the Land Acquisition Act, 1894 on theenhanced compensation awarded under Section 28-A of the LandAcquisition Act by the 2nd respondent in his proceedingsNo.566/CULAW/EDN/94 dated 3.12.98. https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.5486 to 5494 of 1999: Writ Petitions praying to issue aWrit of Mandamus, calling for the records of the second respondent-pursuant to the order Nos.1281/CULAW/Edn/94 (ii) 1254/CULAW/Edn/94(iii) 1278/CULAW/Edn/94 (iv) 1277/CULAW/Edn/94 (v) 1763/CULAW/Edn/94(vi)1267/CULAW/Edn/94 (vii) 1276/CULAW/Edn/94 (viii)514/CULAW/Edn/94(ix) 1289/CULAW/Edn/94 respectively dated 14.12.1998 and to quash thesame and directing the respondents to pay interest amount of(1)Rs.88,827/- (2)Rs.2,92,430/- (3)Rs.1,38,081/2; (4) Rs.,14,450/-(5)Rs.3,8,55,139 (6)Rs.3,53,115/- (7)Rs.1,09,940/- (8) Rs.1,48,088/-(9)Rs.1,70,845/- respectively to the petitioner in each of thepetitions.For Appellants : M/s N.Mala, Govt. Adv. (Pondy) in all the WPs.For Respondents :Mr.V.Raghavachari in W.A.Nos.1384 for Mr. G.R. Swaminathan (Caveator)to 1392/2009 Mr.Venkatesan for Mr. Ajmal Khan (Caveator) in WP.No.1755/2009COMMON JUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY S.J.MUKHOPADHAYA, J.)All these appeals have been preferred against the common orderdated 13.4.1999 made in W.P.Nos.5486 to 5494 of 1999 and the orderdated 13.7.1999 made in W.P.No.11806 of 1999. They arise out ofcommon Land Acquisition Proceedings and as common question of law isinvolved thereon, all these appeals are taken together in disposeof by this common judgment. 2. The Land Acquisition Proceedings was initiated by theappellants. Notification under Section 4(1) of the Land AcquisitionAct, 1894(hereinafter referred to as 'the Act' 1894) was issued on22.12.1986. Declaration under Section 6 of the Act was issued on12.3.1987. Amount was awarded on 01.06.1987 under Award No.2/1987and compensation was paid at the rate of Rs.318/- per Are. OneGovindammal being not satisfied with the quantum of compensationawarded by the Land Acquisition Officer, moved under Section 18 ofthe Act, in L.A.O.P.No.337 of 1988 and the Reference Court enhancedthe compensation and awarded Rs.1000/- per Kuzhi (Rs.1868/- per Are)on 09.05.1989. Having come to know, the Respondents/Land ownerspreferred application under Section 28A of the Act, on 08.08.1991 forredetermination of amount of compensation on the basis of the awardof the Court in L.A.O.P.No.337 of 1988. All the applications filedby the Respondents/Land owners on 08.08.1991 were followed by theenquiry made on 05.06.1992. However, the applications under Section28A of the Act have not been disposed of about 7 years, theRespondents/Land owners filed writ petitions in W.P.Nos.10649 of 1996 https://hcservices.ecourts.gov.in/hcservices/ etc. Those writ petitions were allowed on 19.8.1998 directing theRespondents therein to dispose of the representations. Pursuant towhich, the Collector redetermined the compensation and awardedcompensation enhancing the amount. The orders were passed between15.11.1994 and 22.11.1994.3. After redetermination of the amount of compensation the landowners preferred representation for payment of interest. Therepresentation for interest was rejected by the appellants by similarproceedings dated 14.12.1998. 4. The aforesaid orders were challenged by the Respondents/landowners in writ petitions in which the appellants raised the questionof maintainability of the writ petitions and taken a plea that theRespondents/writ petitioners should have moved before a civil Courtunder Section 18 of the Act.5. The learned Government Advocate appearing on behalf of theUnion Territory of Pondicherry has submitted that in a case of LandAcquisition Proceedings this Court has no jurisdiction under Article226 of the Constitution of India to direct the authorities to payinterest. There is no scope for such direction to pay interest in amanner not contemplated either under Section 28 or under Section 34of the Act. She placed reliance of the Supreme Court of India inD.D.A. vs. Mahender Singh & Anr. (2009 SAR (Civil) 439). She alsoplaced reliance on the reasoning shown in the impugned order dated14th Dec., 1998, relevant portion of which is quoted hereunder :-"i. The relief sought for in the above said WritPetition is totally misconceived and it is outside thescope and ambit of jurisdictionof the Hon'ble HighCourt under Article 226 of the Constitution of Indiainasmuch as the Petitioner herein has filed the aboveWrit Petition for awarding of interest on thecompensation amount granted to the Petitioner in theaward passed under Section 28-A of the LandAcquisition Act.ii. The Proceedings contemplated under Section 28-Aof the L.A.Act in the matter of redetermination of thecompensation by the L.A.O. and on the basis of theCivil Court Award passed in respect of the proceedingsinitiated under this Act and in which the Petitionerhas not filed any petitions under Section 18 of theL.A. Act. Section 28-A is a code by itself and theremedy, if any, to be availed of under the LandAcquisition Act is to be pursued in the manner asindicated under Section 28-A of the Land AcquisitionAct and not otherwise. The Petitioner herein isaggrieved of award passed by under Section 28-A (2) of https://hcservices.ecourts.gov.in/hcservices/ the Land Acquisition Act and the Petitioner isdissatisfied to the quantum of compensation awarded inthe award passed by the Land Acquisition Act in theproceedings Act. In the event of being not satisfiedwith the award passed by the Land Acquisition Officerunder Section 28-A(2) of the Land Acquisition Act, theonly proper course open to the Petitioner is to seekreference to Civil Court for adjudication of the claimof the Petitioner in terms of Section 28-A(3) of theLand Acquisition Act. The concerned Civil Court willalone have jurisdiction to go into the correctness andlegality of the award passed by the Land AcquisitionOfficer under Section 28-A(2) of the Land AcquisitionAct in exercise of the jurisdiction vested under theCivil Court under Section 18.iii. .....iv. The Petitioner herein has relied on Section 34of the Land Acquisition Act for the relief prayed forin the said Writ Petition. This Section 34 of theLand Acquisition Act is not applicable to the case ofthe Petitioner inasmuch as Section 34 deals with thesituation of compensation not having been paid ordeposited on or before taking possession of the land.The facts and situation in this case are quietotherwise. The Land Acquisition Officer has passedAward No.2/87 dated 01.06.1987. The lands were takenpossession by Government on 25.05.1987 as per mandateof Section 34 of the Land Acquisition Act. The entireamount was paid and there was no breach of mandatorySection 34 of the Land Acquisition Act."6. Per contra, according to the learned counsel appearing onbehalf of the Respondents/Petitioners it was incumbent on the part ofthe Collector to pass orders for interest under Section 34 of theAct. Once the conditions under Section 34 of the Act is satisfiedthe award of interest is consequential and automatic. He placedreliance upon the decision of the Supreme Court in Shree Vijay Cotton& Oil Mills Ltd., Vs. State of Gujarat reported in (1991) 1 SCC 262. 7. We heard the learned counsel for the parties and noticedtheir rival contentions and perused the records. 8. To determine the issue, it is desirable to notice therelevant provisions as discussed hereunder :-Section 18 do not stipulate reference for claim of interest asevident from Section 18, relevant portion of which is quotedhereunder :- https://hcservices.ecourts.gov.in/hcservices/ “18. Reference to Court – (1) Any person interestedwho has not accepted the award may, by writtenapplication to the Collector, require that the matterbe referred by the Collector for determination of theCourt, whether his objection be to the measurement ofthe land, the amount of the compensation, the personsto whom it is payable, or the apportionment of thecompensation among the persons interested.”From the aforesaid provision, it will be evident that a personcan file application u/s 18 only with regard to the followingobjections :-i) with regard to measurement ;ii) compensation ;iii) person to whom it is payable ;iv) apportionment compensation.Such application can be determined by Civil Court of competentjurisdiction by following the procedure u/s 19 to 26 of the Act.9. U/s 28, if the Court is of the opinion that the Collectorought to have awarded compensation in excess of the sum of which theCollector has to award compensation, it may direct the Collector topay interest on such excess at the rate prescribed u/s 28 and quotedhereunder :-“28. Collector may be directed to pay interest onexcess compensation – If the sum which, in the opinionof the Court, the Collector ought to have awarded ascompensation is in excess of the sum which theCollector did award as compensation, the award of theCourt may direct that the Collector shall pay intereston such excess at the rate of nine per centum perannum from the date on which he took possession of theland to the date of payment of such excess intoCourt.”The other provision to claim and pay interest is Section 34,which Collector is supposed to decide in the circumstances mentionedtherein and quoted hereunder :-“34. Payment of interest – When the amount of suchcompensation is not paid or deposited on or beforetaking possession of the land, the Collector shall paythe amount awarded with interest thereon at the rateof [nine per centum] per annum from the time of so https://hcservices.ecourts.gov.in/hcservices/ taking possession until it shall have been so paid ordeposited.”10. Section 28-A relates to redetermination of amount ofcompensation on the basis of award of the Court, where the awardunder Part-III is allowed by Court and similarly situated personsapply for the same. Under sub-section (2) of Section 28-A, whileprocedure for redetermination of compensation is prescribed, undersub-section (3) of Section 28-A, if a person do not accept the award(on redetermination u/s 28-A (1) and (2)), then he may fileapplication before the Collector for reference for determination byCourt and only in such case, provisions of Sections 18 to 28 shallapply on such reference.From a plain reading of Section 28-A, it will be evident thatSection 28-A only relates to redetermination of compensation andobjection for reference can be filed only with regard to the award ofredetermination of such compensation and not with regard to theinterest. 11. The provisions of Section 28-A fell for consideration beforethe Supreme Court in Union of India Vs. Pradeep Kumari, AIR 1995Supreme Court 2259, the Court held that the Collector can awardinterest on the additional amount of compensation awarded by him andobserved as follows:- "It is no doubt true that under Section 28 only thecourt can direct payment of interest on the excessamount awarded as compensation and the Collector isnot competent to award interest on the additionalamount of compensation under the said provision. Buta reading of S.28A shows that after an application hasbeen submitted under Section 28-A(i) for re-determination of the amount of compensation theprocess of such re-determination results in making ofan award by the Collector and a person not acceptingthe said award can move the Collector to refer thematter to the court for determination and suchreference is governed by Sections 18 to 28. If thatis so Section 34 of the Act would be applicable to theaward that is made by the Collector under sub-section(2) of Section 28-A and it would be permissible forhim to award interest under Section 34 on theadditional amount of compensation awarded by him."12. In Shree Vijaya Cotton & Oil Mills Ltd., Vs. State ofGujarat, (supra) - (1991)1 SCC 262 the Supreme Court having noticedthe provisions of Section 28 and 34 observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ "There is no dispute that under the Act the claimantis entitled to compensation at the rate of the marketvalue of the land on the date of notification underSection 4 of the Act. Section 23(1) of the Actenumerates the matters which are to be taken intoconsideration in determining the compensation. On areference under Section 18 of the Act the parties goto trial before the court primarily on the issue ofdetermination of market value of the land. So far asaward of interest is concerned it is never an issuebetween the parties. Once the conditions underSection 28 or Section 34 of the Act are satisfied theaward of interest is consequential and automatic.The High Court while appreciating the point inissue did not consider the mandatory provisions ofSection 34 of the Act. The said section specificallyprovides that when the amount of compensation is notpaid on or before taking possession of the land theCollector shall pay interest at 6 per cent per annumfrom the date of taking over possession. The paymentof interest is not dependent on any claim by theperson whose land has been acquired. There can be nocontroversy or any lis between the parties regardingpayment of interest. When once the provision ofSection 34 are attracted it is obligatory for theCollector to pay the interest. If he fails to do sothe same can be claimed from the court in proceedingsunder Section 18 of the Act or even from the appellatecourt/courts thereafter."13. In Union of India Vs. Budh Singh 1995 (6) SCC 233, theSupreme Court had occasioned to deal with Sections 28 and 34 of theAct and it was observed that these were the only provisions whichdeal with the payment of interest to the land owners. The Courtobserved :"Thus, it could be seen that the statute covers theentire field of operation of the liability of theState to make payment of interest and entitlementthereof by the owner when land has been taken over andpossession in consequence thereof, the land owner wasdeprived of the enjoyment thereof. Thus, it could beseen that the Court has no power to impose anycondition to pay interest in excess of the rate andmanner prescribed by the statute as well as for aperiod anterior to the publication of Section 4(1)notification under this Act." https://hcservices.ecourts.gov.in/hcservices/ In D.D.A. Vs. Mahender Singh & Anr. (supra) - 2009 SAR (Civil)439, similar view was expressed by the Court. 14. From the provisions of law and observation as made bySupreme Court and noticed above, we hold as follows :-(i) No independent petition for claim of interest ismaintainable u/s 18 of the Act, if person otherwise hasno objection either with regard to measurement of landor amount of compensation or person to whom it ispayable or apportionment amongst persons interested.(ii) Similarly, no independent petition for interestcould be filed for reference under sub-section (3) ofSection 28-A, if person concerned has no objection withregard to compensation as redetermined by Collectorunder sub-section (2) of Section 28-A of the Act.(iii) The only provisions for payment of interest areunder Sections 28 and 34 of the Act. Under Section 28the Court is empowered to order to pay interest onexcess amount of compensation if any determined in apetition under Section 18 of the Act.iv) Under Section 34 the Collector is empowered toorder to pay interest on the amount awarded, if amountnot paid or deposited on or before taking possession ofthe land. v) The Collector is also empowered under Section 28-Aof the Act to pass order to pay interest in terms ofSection 34 of the Act on the re-determined award, on theexcess amount of compensation which was not paid ordeposited before the date of possession.15. So far as the present case is concerned, it is not indispute that the Collector has re-determined the award and enhancedit under Section 28-A of the Act by orders passed in between15.11.1994 and 22.11.1994. The Respondents applied for interestunder Section 34 of the Act. They being entitled for the same andsuch claim having rejected by the authority, learned single Judgerightly held the said order is illegal.16. In the present case though we may not agree with thereasonings shown by learned single Judge or observations made atparagraph 15 of the impugned order dated 14.12.1998, but in view ofour finding as recorded above that the petitioners are entitled forinterest as per Section 34 of the Act on the excess amount ofcompensation determined in their favour, we are not inclined tointerfere with the order passed by the learned single Judge. https://hcservices.ecourts.gov.in/hcservices/

17. There being no merit, all these writ appeals are accordinglydismissed. Consequently, connected miscellaneous petitions are alsodismissed. But in the facts and circumstances, there shall be noorder as to costs. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarGR/GLNTo1. The Secretary (Rev) Department, Government of Pondicherry Pondicherry. 2. The Revenue Officer-cum-Land Acquisition Officer Central University Land Acquisition Wing, Education Department Pondicherry.+ 9 c.cs. to Mr. G.R. Swaminathan, Advocate. S.R.No.30336.+ 1 c.c. to Mr. Ajmal Khan, Advocate. S.R.No.29606.+ 1 c.c. to The Government Pleader. S.R.Nos.29593 to 29601. COMMON JUDGMENT IN W.A.NOS.1384 TO 1392 and 1755 of 1999GV (CO)GSK 03.08.2009.