Neeta v. Collector, Agra — 1990 DIGILAW 587 (ALL)

JUDGMENT N.N. Mithal, J. - This is an appeal under section 381 of the U.P. Nagar Mahapalika Adhiniyam, 1959, hereinafter referred to as the Adhiniyam, after obtaining a certificate of fitness from the Nagar Mahapalika Tribunal. 2. One Smt. Har Pyari was recorded tenure holder of three plots in one holding and sixteen plots in another holding having a total area of 16 Bigha 4 Biswa 4 Biswanai (44,678.80 sq. yds) in village Ghatwasa, mustaqil in pergana and district Agra. This entire land was in one compact block. The Nagar Mahapalika, Agra, proposed a scheme known as 'Ghatwasan Grah Evam Sarak Scheme' and a notification under S. 357 corresponding to section 4(1) of the Land Acquisition Act, hereinafter referred to as the Act, was published on 23-4-1960. This was followed by a notification under S. 363 of the Adhiniyam corresponding to S. 6 of the Act on 26-9-1964. The entire land is situated within the urban limits of Agra. 3. The Special Land Acquisition Officer made an award at the rate of Rs. 1.34 per sq. yd. for the acquired land in question. Aggrieved by the award given by the Special Land Acquisition Officer, the appellants made a representation to the Collector under S. 18 of the Act praying that the same may he forwarded to the Tribunal constituted under S. 371 of the Adhiniyam. It may be stated here that the Tribunal performs the same function as the District Judge on a reference being made to him under S. 18 of the Act. 4. It may be recalled here that Smt. Har Pyari died on 28-12-1974 and her rights and interest was inherited by her son Chhitaiya and her daughter Smt. Shyama along with her two sons Lala Ram and Ram Sahai. All these persons executed a sale-deed transferring their right and interest in the land or compensation in lieu thereof in favour of the present appellant by executing two registered sale-deeds. The name of the appellant was duly substituted in these proceedings subsequently. 5. Before the Tribunal, the appellant put up a claim for compensation at the rate of Rs. 20/- per sq. yd, as on the date of the notification under section 4(1) (S. 357 of the Adhiniyam) and in addition thereto she also claimed compensation by way of damages on account of delay in the award at the rate of Rs. 30/- per sq. yd. 20/- per sq. yd, as on the date of the notification under section 4(1) (S. 357 of the Adhiniyam) and in addition thereto she also claimed compensation by way of damages on account of delay in the award at the rate of Rs. 30/- per sq. yd. under the provisions of S. 376 of the Adhiniyam. Apart from this the appellant had also claimed interest on the entire compensation so determined at the rate of 6% besides solatium. 6. In its award 26-11-1981 the Tribunal substantially agreed to the submissions of the appellant and it determined the market value of the land on the date of notification under S. 357 of the Adhiniyam at Rs. 12,1- per sq. yd. It further held that on account of delay in giving the award, the appellant was entitled to an additional compensation at the rate of Rs. 18/- per sq. yd. after determining the market value of the land on the date of the award as Rs. 30/- per sq. yd. The Tribunal, however, declined to award any interest on this additional compensation on the ground that compensation awarded under S. 48A as added to the Land Acquisition Act by virtue of Section 376 of the Adhiniyam is not covered by S. 28 of the Land Acquisition Act. 7. In the appeal, although relief under several heads of claim was made over and above the amount awarded by the Tribunal but at the time of argument, Sri B.D. Agarwal, Senior Advocate, very candidly conceded that he cannot press his claim except in regard to interest on the additional amount of compensation determined by the court under S. 48A of the Act, and that too at the reduced rate of 6% per annum only in view of the recent decision of the Supreme Court in AIR 1989 Supreme Court 1933. 8. Before proceeding further, it would only be proper to have a glance on the provisions of S. 48A. But before doing that, a mention be made to S. 376 of the Adhiniyam which modifies the provisions of the Act in its application to acquisition of land under the Adhiniyam. S. 376 reads as under : "376. 8. Before proceeding further, it would only be proper to have a glance on the provisions of S. 48A. But before doing that, a mention be made to S. 376 of the Adhiniyam which modifies the provisions of the Act in its application to acquisition of land under the Adhiniyam. S. 376 reads as under : "376. For the purpose of acquisition of land for the Mahapalika under the Land Acquisition Act, 1894 - whether under this chapter or any other Chapter of this Act (a) the said Act shall be subject to the modification specified in the Schedule to this Act. (b) the award of the Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894." 9. By virtue of the above section, Section 48A has been implanted in the Land Acquisition Act and in its applicability to acquisition of land under the Adhiniyam, it will be deemed to be forming an integral part of the Land Acquisition Act. S. 48A reads as under : "48A. Compensation to be awarded when land not acquired within two years. - (1) If within a period of two years from the date of the publication of the declaration under Section 6 in respect of any land, the Collector has not made an award under Section 11, with respect to such land the owner of the land shall, unless he has been to a material extent responsible for the delay be entitled to receive compensation for the damage suffered by him in consequence of the delay. (2) The provision of Part III of this Act, shall apply so far as may be, to the determination of the compensation payable under this section." 10. By virtue of sub-clause (2) the various provisions under Chapter III of the Land Acquisition Act i.e. from S. 18 to S. 28A have. been made applicable for determining the compensation. Accordingly the provision of S. 23 as amended in its application to acquisition of land under the Adhiniyam along with some other provisions in Chapter III will be applicable in determining the market value etc. of the acquired land. been made applicable for determining the compensation. Accordingly the provision of S. 23 as amended in its application to acquisition of land under the Adhiniyam along with some other provisions in Chapter III will be applicable in determining the market value etc. of the acquired land. From a perusal of S. 48A, therefore, it would appear that for its applicability two conditions must exist that the award has been made beyond two years from the date of publication of declaration under S. 6 and that the claimant himself has not been responsible for the delay to a material extent. If these two conditions are satisfied, then, in addition to the compensation which the claimant would be otherwise entitled to i.e. compensation according to the market value of the acquired land on the date of notification under S. 4(1) of the Act, the claimant would be further entitled to receive compensation in respect of damage suffered by him as a consequence of the delay. Whatever additional compensation becomes payable to the claimant on this account, therefore, is also termed by S. 48A as compensation and together with the compensation normally awarded it will constitute the total amount of compensation payable for the land. To put it differently, compensation in a case where the award has been made more than two years, beyond the date of declaration will consist of the parts the first part being the compensation as is normally determined for the land i.e. its market value on the date of the first notification under S. 4(1) was issued and the second part being the amount of compensation determined in respect of damage caused to the claimant of account of delay in giving the award. The quantum of damage suffered by a claimant as a consequence of delay in giving the award generally lies in the difference between the market value of the land sought to be acquired as it was on the date when the relevant notification was issued under S. 4(1) of the Act and the market value as determined by the Tribunal on the date when the award,is given. This appears to be the fair measure of compensation which is caused due to the delay in making the award. Applying the above principle, the learned Tribunal itself has determined the market value on the date of the award as Rs. 30/- per sq. This appears to be the fair measure of compensation which is caused due to the delay in making the award. Applying the above principle, the learned Tribunal itself has determined the market value on the date of the award as Rs. 30/- per sq. yard, he having already determined the market value of the land on the date of the notification under S. 4(1) as Rs. 12/-which comes to Rs. 18/- per sq. yard. The Tribunal has, therefore, rightly awarded compensation under S. 48A at the rate of Rs. 18/- per sq. yard. 11. On the above premise, the submission of the learned counsel for the appellant was that the entire amount of compensation at the rate of Rs. 30/- (Rs. 12/- plus Rs. 18/-) therefore, constitutes compensation for the land within the meaning of S. 23 of the Land Acquisition Act. Under S. 28 of the Act the Court is empowered to award interest at the rate of 6% on the amount of compensation which is in excess over the amount of compensations awarded by the Collector. The contention was that since the entire amount of compensation that is calculated at the rate of Rs. 30/- per sq. yard. constituted the compensation for the acquired land, the appellant was entitled to interest thereon after deducting the amount awarded by the Special Land Acquisition Officer and this difference will constitute the excess amount on which interest will be payable under S. 28. 12. Section 28 of the Land Acquisition Act came up for consideration by a Division Bench of the Delhi High Court in Raghubir Singh v. Union of India, AIR 1985 Delhi 228 and in paragraph 28 of the Report, this is what their Lordships of the Delhi High Court had to say on this point at Page 236 : "any thing over and above the Collector's award is 'excess compensation'. The theory underlying S. 28 is evident from the opening words we have quoted. Interest has to be awarded on excess compensation'. How much we found the excess ? The formula is this. See what is given by the Collector. Then see what is given by the Court on reference and appeal. The difference of these two figures is the excess compensation'. The critical words of the Section are ought' and did....... Interest has to be awarded on excess compensation'. How much we found the excess ? The formula is this. See what is given by the Collector. Then see what is given by the Court on reference and appeal. The difference of these two figures is the excess compensation'. The critical words of the Section are ought' and did....... What the Collector 'ought to have awarded as compensation' and what he 'did award as compensation' are the two figures with which S. 28 is concerned. Find out what is the difference between 'ought' and did'. You get the excess. The ethical 'ought' legally expresses the amount of compensation to which the land owner is finally found to be entitled on reference or appeal." 13. Thus on a plain reading of the language of S. 28 the appellant would be entitled to interest on the total amount of compensation determined minus the amount awarded by the Collector and this should constitute the excess amount on which the interest would be payable. 14. The submission made on behalf of the respondent State, however, was that on an amount of damages, no interest is payable unless special damages in that regard are established by cogent evidence adduced by the parties. The submission of the learned Standing Counsel, however, is not acceptable for the simple reason that under 23 when the court determines compensation it takes into account several items which are mentioned as damages in the section itself. For example, clauses secondly, thirdly, fourthly and sixthly of S. 23(1) of the Land Acquisition Act clearly state that damages sustained by a person on the grounds mentioned therein will be taken into consideration in determining the amount of compensation to be awarded. The sum total of all the items including the market value of the land on the date of notification under S. 4(1) and the claim which arises under clauses first to sixthly in S. 23(1) together constitutes the compensation which is payable to the land owner. 15. Section 28 which deals with payment of interest does not speak of damages or any other claims but only speaks of compensation which has been awarded and which ought to have been awarded by the Collector. 15. Section 28 which deals with payment of interest does not speak of damages or any other claims but only speaks of compensation which has been awarded and which ought to have been awarded by the Collector. Thus when on a reference under S. 18 read with S. 48-A added to the Land Acquisition Act by virtue of 1959 Adhiniyam will comprise the compensation which is payable in respect of the land acquired and under S. 28 interest will be payable on this amount. In view of this, it is difficult to accept the contention raised by the learned counsel for the State. 16. The view of the Tribunal that since there was no specific provision for awarding interest on compensation determined under S. 48A of the Act, no interest is payable thereon is, therefore, erroneous. As already mentioned above, the entire amount which is determined as compensation is compensation for the purpose of payment of interest thereon. In view of the discussion made above, the appeal has force and is accordingly partly allowed. The appellant will also be entitled to interest @ 6% on the amount of compensation awarded by the court under S. 48A of the amended Land Acquisition Act. The amount of interest will be payable in respect of compensation determined for the market value of the land. The claim in respect of enhanced interest and for compensation for the well as set out in paragraphs 1(a), decree but at the reduced rate of 6% on the sum of Rs. 8,04,218.40. The appeal is, therefore, allowed to the extent stated above along with proportionate costs.