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1985 DIGILAW 353 (GUJ)

VARSANJI ATAJI v. STATE

1985-12-27

D.C.GHEEWALA, J.P.DESAI

body1985
J. P. DESAI, J. ( 1 ) * * * * ( 2 ) NOW we come to the question as to from what date interest should be allowed. Sec. 34 of the Act says 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 from the time of taking possession until it is paid or deposited. In view of the clear provision made in sec. 34 of the Act the claimants are entitled to interest from the date of taking over possession. It is true that possession was taken over long before the notifications under sec. 4 were issued in these cases but that was because the Government claimed ownership over these lands but ultimately failed to establish their claim. The fact however remains that possession was taken over on 22-6-1960. That fact is not disputed. It is even mentioned in the awards passed by the Land Acquisition Officer that possession was taken over on 22-6-1960 as the Government claimed to be the owner of the lands but ultimately the Supreme Court decided in favour of the claiments. It is true that the claimants have filed suits claiming mesne profits for the earlier period i. e. from the date of taking over possession till the issuance of notifications under sec. 4 of the Act. The claimants cannot claim mesne profits and interest both for that period. But even the claimants are prepared to withdraw the suits as stated by them before the trial Court and before this Court. Thus there is no reason why they should not be allowed interest from the date of taking over possession. No authority is needed for a proposition that interest is to be awarded from the date of taking over possession because sec. 34 is very clear. There are however some decisions which support the view which we are taking that interest has to be awarded from the date of taking over possession. ( 3 ) THE Supreme Court has in the case of Satinder Singh v. Umrao Singh AIR 1961 SC 908 held that interest on amount of compensation for the period between deprivation of possession and payment of compensation has to be awarded. ( 3 ) THE Supreme Court has in the case of Satinder Singh v. Umrao Singh AIR 1961 SC 908 held that interest on amount of compensation for the period between deprivation of possession and payment of compensation has to be awarded. ( 4 ) AS back as in 1936 the Madras High Court has held in Revenue Divisional Officer v. Venkatarama Ayyar AIR 1936 Madras 199 that right to interest is equivalent to right to retain possession and if possession of land is taken before acquisition award interest on value of land should be allowed from the date of possession. ( 5 ) TO the same effect is a decision of the Orissa High Court reported in Smt. Swarnamayi Panigrahi v. Lad Acquisition Collector AIR 1964 Ori 113 . ( 6 ) A Full Bench decision of the Andhra Pradesh High Court reported in The Revenue Divisional Officer Guntur v. Vasireddy Rama Bhanu Bhupal AIR 1970 Andhra Pradesh 262 is also to the same effect. The Full Bench has held therein that even if possession is taken prior to acquisition proceedings and with consent of the owner it would be possession of land under the Act and interest is payable from the date of taking possession whether possession is taken under the Act or by private negotiations or otherwise in anticipation of valid proceedings under the Act. The Full Bench has also held that on equitable principle also interest would be payable from the date of deprivation of possession. In the present case possession was taken over prior to acquisition on the Government claiming to be the owner of these lands as discussed earlier but that does not make any difference so far as the right of the claimants to claim interest from the date of taking over possession is concerned. ( 7 ) THE above decision of the Full Bench of the Andhra Pradesh High Court was followed by a Division Bench of the Mysore High Court reported in Subhadra Bai v. State of Mysore AIR 1973 Mysore 13 In that case it appears that the claimants land was sub-merged in construction of tank by the Government and acquisition proceedings were started subsequently. Interest prior to that period was allowed in that case. ( 8 ) THE last decision to which our attention is drawn by Mr. Soparkar is reported in The Kachariagaon Tea Co. Interest prior to that period was allowed in that case. ( 8 ) THE last decision to which our attention is drawn by Mr. Soparkar is reported in The Kachariagaon Tea Co. Ltd. v. The Collector of Darrang AIR 1975 Gauhati 78. In that case also the Collector took advance possession on mutual agreement on payment of certain amount A and it was held that owner was entitled to interest on the balance amount from the date of taking possession till it is paid or deposited. ( 9 ) WE are thus fortified in our view by the above decisions that the claimants are entitled to claim interest from the date of taking over possession even though sec. 4 notifications were issued after taking over possession by the Government. It is pertinent to note that after the Government lost in the Supreme Court possession was not handed over back to the claimants but notifications under sec. 4 were issued in respect of these lands and that way the Government continued to be in possession right from 22-6-1960 and that possession continued even after notifications under sec. 4 were issued in these cases. If the Government had handed over possession back to the claimants and then issued sec. 4 notifications and then taken over possession pending proceedings under the Land Acquisition Act then the claimant would be entitled to interest not from 22/06/1960 but from the date of taking over possession after issuance of sec. 4 notification but in that case they would be entitled to claim mesne profits for that earlier period. Simply because the claimants filed suits for mesne profits for the period prior to the date of sec. 4 notifications their claim for interest from the date of taking over possession cannot be negatived when they were prepared to withdraw the suits and are still prepared to withdraw the suits for mesne profits. We are thereore inclined to award interest from the date of taking over possession i. e. from 22-6-1960 on Mr. Soparkar making a statement that the claimants will be withdrawing the suits as interest is being awarded by us from the date of taking over possession. ( 10 ) COMING to the question of the rate of interest and solatium the Amending Act of 1984 provides for interest at 9% per annum for the first year and at 15% per annum for the subsequent years. ( 10 ) COMING to the question of the rate of interest and solatium the Amending Act of 1984 provides for interest at 9% per annum for the first year and at 15% per annum for the subsequent years. The question whether the amendment will apply to these pending proceedings is settled by the Supreme Court in Bhag Singh and Others v. Union Territory of Chandigrah AIR 1985 Supreme Court 1576. The Supreme Court has held therein that the amended provisions are applicable to all proceedings relating to compensation pending at the date of commencement of amending Act or filed subsequent to that date whether before Collector or before Court or High Court or Supreme Court. The Supreme Court had earlier in the case of State of Punjab v. Mohinder Singh AIR 1985 SC 576 taken a contrary view but that decision has been overruled by this latest decision. In view of this clear pronouncement of the Supreme Court the. appellants-claimants are entitled to claim interest as per the amending Act and also solatium as per the amending Act. ( 11 ) THE learned advocate Mr. Soparkar for thy appellants submitted that the learned trial Judge had directed the claimants to pay the Court-fees or deposit the amount of Court-fees in the trial Court within one month from the date of the order passed by the trial court Mr. Soparkar urged that in view of the decision of a Full Bench of this Court in that case of Lady Tanumati v. Special Acquisition Officer 14 GLR 537 the claimants were not liable to pay the Courts and therefore the learned trial Judge committed an error in giving the above directions. It is true that an appeal is pending before the Supreme Court against this decision of the Full Bench of this Court. But simply because the appeal is pending before the Supreme Court the claimants cannot be directed to pay the Court-fees. The claimants will of course be liable to pay the Court-fees if ultimately the Supreme Court decides in favour of the Revenue. Till then they cannot be made to pay the Court-fees. The claimants have of course to give an undertaking before the trial Court that they will pay up the Court-fees if ultimately the decision of the Supreme Court is in favour of the Revenue. Such a course was adopted by this Court in First Appeals Nos. Till then they cannot be made to pay the Court-fees. The claimants have of course to give an undertaking before the trial Court that they will pay up the Court-fees if ultimately the decision of the Supreme Court is in favour of the Revenue. Such a course was adopted by this Court in First Appeals Nos. 216 of 1985 to 241 of 1985 decided by a Division Bench of this Court on 15 (Coram: D. C. Gheewala and B. S Kapadia JJ ). Same course has been adopted by this Court in the case of Ranchhodbhai Madhabhai Patel v. Special Land Acquisition Officer 1985 GLH 960 . In view of this we propose to set aside the direction given by the learned trial Judge in this regard and direct the claimants to given an undertaking as stated above. Mr. Soparkar states that the claimants will be giving such an undertaking before the trial Court if not given. ( 12 ) THE learned Government Pleader Mr. Vin submitted that the claimants are liable to pay the Court-fees on the amount of solatium awarded to them by the Court below and claimed in these appeals. A learned single Judge of this Court in Chandulal Pitamberdas v. The Special Land Acquisition Officer 7 GLR 889 took the view that the claimants are liable to pay the Court-fees on the amount of solatium. After referring to this judgment of the learned single Judge a Division Bench of this Court (Coram J. M. Sheth and S. N. Patel JJ ) in First Appeal No. 709 of 1971 with First Appeal No. 657 of 1971 decided on 28 took the contrary view and held that the claimants are not liable to pay the Court-fees on the amount of solatium. ( 13 ) A Full Bench of the Andhra Pradesh High Court in the case of Kesireddi Appala Swamy v. Special Tahsildar Land Acquisition Officer AIR 1970 Andhra Pradesh 139 tool the view that no Court-fee is payable on difference of solatium as a result of increase in compensation awarded by Court and that awarded by Collector. The Andhra Pradesh High Court took the view that solatium as awarded under sec. 23 is not part of award within the meaning of section 26. The Andhra Pradesh High Court took the view that solatium as awarded under sec. 23 is not part of award within the meaning of section 26. After referring to the relevant provisions of the L3nd Acquisition Act and the Court Fees Act the Full Bench of the Andhra Pradesh High Court has taken the above view. We need not elaborate our reasons for concurring with this view taken by the Andhra Pradesh High Court when there is a direct decision of a Division Bench of this Court taking the view that Court fees are not payable on solatium. ( 14 ) A Division Bench of the Bombay High Court in the case of Abdul Sultan Hussainbhai v. Collector of Ahmednagar AIR 1968 Bombay 39 has also taken the same view after referring to several decisions. We are inclined to agree with this view for the same reasons which prevailed with the Andhra Pradesh High Court and the Bombay High Court. ( 15 ) WE therefore negative the contention raised by Mr. Vin that the appellants-claimants are liable to pay Court-fees on the amount of solatium. Appeals allowed. .