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1987 DIGILAW 238 (ORI)

RADHAMADHAB DEV BIJE ARADIAPADADEITY v. LAND ACQUISITION OFFICER

1987-08-06

S.C.MOHAPATRA

body1987
JUDGMENT : S.C. Mohapatra, J. - Claimant under the Land Acquisition Act, 1894 (in short 'the Act') is the Petitioner in these two Civil Revisions against the order of refusal to exercise power u/s 152, CPC Code. Since common facts and common questions are involved, these two Civil Revisions are heard together with consent of parties and are disposed of in this common judgment. 2. Lands of the claimant were acquired in two proceedings under the Act. While not disputing that the deity would be entitled to the amount awarded by the Collector, there was dispute as to who is the trustee of the deity to receive the compensation, references were made to the Court u/s 30 of the Act. Trial Court answered the references by finding that Nanda Kishore Mohapatra is the Managing Trustee, who is to receive the amounts of compensation. 3. When compensation amounts were paid to the claimant without interest admissible u/s 34 of the Act, the same was received under protest and applications were filed in the Court for correction of the orders by incorporating direction for payment of interest u/s 34 of the Act in exercise of the powers u/s 152, CPC . The same having been rejected an the finding that the Court has no power u/s 30 of the Act to give any direction since the quantum payable is not a subject matter for consideration and as such no correction can be made, the orders are assailed. 4. Mr. S. K. Patnaik, the learned Counsel for the Petitioner submitted that the trial Court failed to exercise the jurisdiction vested in him in view of the decision reported in Srinivas Sundar Das v. State of Orissa I. L. R. 1972 Cutt. 222, which was rendered following the decision reported in Smt. Swarnamayi Panigrahi and Others Vs. Land Acquisition Collector. These decisions have been followed in Janjali Devi Vs. Tahasildar and Another, and all the three decisions have been referred to in Land Acquisition Officer, Puri v. Biswanath Das ILR 1976 Cult. 73., 5. Mr. M, R. Mohanti, the learned Additional Standing Counsel submitted that the decisions of this Court were rendered in reference u/s 18 of the Act. They would not be applicable in case of a reference u/s 30 of the Act. 6. 73., 5. Mr. M, R. Mohanti, the learned Additional Standing Counsel submitted that the decisions of this Court were rendered in reference u/s 18 of the Act. They would not be applicable in case of a reference u/s 30 of the Act. 6. There is no dispute that it is mandatory for the Collector to pay interest on the amount of compensation awarded u/s 34 of the Act if the preconditions therein are satisfied, It is also not in dispute that Court while deciding a reference u/s 18 of the Act has discretion to award interest u/s 28 of the Act on the difference of the amount awarded by it. The language of Section 28 does not authorise the Court to award interest where it accepts the market value fixed and the compensation awarded u/s 11 of the Act by the Collector. 7. In Swaramayi Panigrahi v. Land Acquisition Collector1 (supra) possession of the land was taken earlier to a proceeding for compulsory acquisition under the Act. On a proceeding being initiated later, the compensation was determinate and awarded. No interest having been awarded, a reference u/s 18 of the Act was made to the Court where the Court refused interest on the ground that possession was not taken under the Act but earlier. In appeal the Division Bench of this Court held;"......'Proper compensation' in its context means only such compensation as is provided under the Land Acquisition Act and such compensation would necessarily convey the statutory interest permissible u/s 34 of the Act." 8. In Srinivas Sundar Das v. State of Orissa1 (supra) the trial Court confirmed the award given by the Collector in a reference u/s 18 of the Act. No order was passed regarding interest from the date of taking possession till the date of the deposit of the amount awarded. The claimant applied in the trial Court for correction of the order by directing payment of interest u/s 34 of the Act which is statutory. The application having been rejected, a Civil Revision was filed in this Court, It was held after considering the .various decisions of other Courts and the provisions of Sections 26, 28 and 34 of the Act: ... The application having been rejected, a Civil Revision was filed in this Court, It was held after considering the .various decisions of other Courts and the provisions of Sections 26, 28 and 34 of the Act: ... In the present cases, therefore, when the Court, while awarding compensation, omitted to provide for payment of interest that is payable u/s 34, it is nothing but due to an accidental slip or omission and the Court has every power to correct it. 9. In Janjali Devi v. Tahasildar. Cuttack and another3 (supra) the question of grant of interest in the appellate order confirming an order in a reference under Sections 18 and 30 was the subject matter for consideration in a subsequent application u/s 152, CPC After the order of the trial Court was confirmed in appeal an application was filed in this Court for correction of the decree by directing payment of interest. Relying upon the earlier decisions of this Court referred to earlier, it was held: On the consistent view of this Court in favour of granting interest in a matter of this nature, the Court below and/or this Court should have exercised its discretion in favour of the Petitioner by directing payment of interest in accordance with the provisions of Section 28 of the Act, for there is no special reason to refuse the same in this case. The omission of a direction regarding payment of interest in our judgment in First Appeal No. 255 of 1967 was only due to an accidental slip or omission, and so in the interest of justice the judgment and decree of this Court should be corrected by including therein a direction that the Petitioner is entitled to interest on the compensation amount at 6 per cent per annum from the date of taking possession of the acquired lands by the Collector till the date of payment or deposit of the compensation amount. If the compensation fixed by the Collector had been paid or deposited before or at the time of taking possession of the land, then interest has to be paid only on the excess amount awarded by the Court below from the date of taking delivery of possession of the acquired lands by the Collector till the date of payment or deposit of the excess compensation amount. 10. 10. In Land Acquisition Officer's case4 (supra) considering the aforesaid decisions and several other decisions on the question ot direction for payment of interest by this Court even where absence of such a direction was not challenged in appeal or cross-objection, it was held that direction for payment of interest u/s 28 of the Act can be given even in absence of appeal or cross-objection. 11. In view of the aforesaid decisions of this Court, there would not have been any difficulty in directing amendment of the order if the reference would have been u/s 18 of the Act. The reference in this case, however, is u/s 30 of the Act. It is, therefore- required to be considered whether in such a reference Court can direct payment of interest u/s 34 of the Act and where such direction is not given whether the mistake can be corrected u/s 152 of the Act. 12. In a reference u/s 18 of the Act- if the rate fixed and the amount of compensation awarded by the Collector u/s 11 is not enhanced, there is no scope for a direction for interest u/s 28 of the Act. In spite of it, this Court held that the decree can be corrected, to give direction for payment of interest u/s 34 of the Act. On the same analogy, even if the language of. Section 30 does not provide for a direction to the Collector for payment of interest u/s 34 of the Act being statutory, such a direction can be given. 13. Considered from another angle, the same would be the result. u/s 31 (2) of the Act, where the Collector makes an award u/s 11 of the Act and tenders the amount to the person interested and such person does not consent to receive it or where there is a dispute relating to title of the person to receive the amount, the duty of the Collector is to deposit the amount in Court to which reference can be made u/s 18 of the Act. On such deposit being made, the Court has the power u/s 33 of the Act to invest the amount on Government or other approved security so that the interest or other benefits can be available to the person interested. On such deposit being made, the Court has the power u/s 33 of the Act to invest the amount on Government or other approved security so that the interest or other benefits can be available to the person interested. Therefore, it is the duty of the Court to ascertain where a reference has been made either u/s 18 or u/s 30 of the Act whether the amount has been deposited. Where the Collector has not deposited the amount and the Court remained silent, the party is deprived of the benefit of the compensation.. As has been held in Tewari Raghuraj Chandra and Ors. v. Rani Subhadra Kunwar and Ors. AIR 1928 P.C. 87 . On a contract for sale and purchase of land it is the practice to require the purchaser to pay interest on his purchase money from the date when he takes possession and the same rule applies even in case of compulsory acquisition as the owner is deprived of his property in this case as much as in the other. When on account of the inaction of the Collector and the Court a party is deprived of the scope of making application under-Section 33 of the Act, he is entitled to a direction from the Court to the Collector for payment of interest u/s 34 of the Act which is a statutory interest. 14. Taking any view of the matter, 1 am satisfied that the order u/s 30 of the Act ought to have contained a direction to pay interest u/s 34 of the Act and when the same was omitted, trial Court ought to have allowed the application in exercise of the power u/s 152. CPC 15. In the result, the Civil Revisions are allowed. There shall be no order as to costs. Final Result : Allowed