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Rajasthan High Court · body

2003 DIGILAW 47 (RAJ)

Moman Ram v. State of Raj.

2003-01-10

RAJESH BALIA

body2003
Honble BALIA, J.–Heard learned counsel for the parties. (2). This writ petition raises the short, but interesting question about the inter-connection and interpretation of Sections 18, 23 and 54 of the Land Acquisition Act, 1894 (hereinafter referred to as ``the Act of 1894) and Section 30 of the Land Acquisition (Amendment) Act, 1984, (in short ``the Act of 1984), which provide certain provisions for transitory period. (3). The land in question, which is situated in Chak 16 ML, Tehsil Ganganagar, was acquired by the State Government and the Collector made an award in respect of the land in question on 9.10.80 for a sum of Rs. 22,000/- in favour of Baba Hardwari Nath Trust and a cheque was sent to him. (4). The petitioner made an application without challenging the quantum of compensation that infact the award ought to have been made in his favour as the land in question was allotted to him in 1974. On objection being raised by the petitioner, the amount paid to the Baba Haridwari Trust was paid back to the Land Acquisition Officer. (5). A reference u/s. 30 was made by the Collector to the Civil Judge, Sriganganagar, who by order dated 24/04/1990 held the petitioner to be person interested in the land and accordingly, he became entitled to receive the amount. As per decree of the Civil Judge, the amount was deposited in the Court on 2/02/1991 after the petitioner applied for execution on 24.4.1990. (6). It further appears that for executing the decree passed by the Civil Judge on 24/04/1990, the petitioner-decree-holder has moved an application for execution of the decree for the sum of the amount awarded plus 30% solatium as payable u/s. 23(2) of the Act of 1894 as amended by the Land Acquisition (Amendment) Act, 1984 and the increased price of land by 12% against compulsory nature of acquisition u/s. 23(1)(A) of the Act of 1894 as amended by the Act of 1984. That application was rejected by the learned Civil Judge on 27.2.91. (7). Thereafter, the petitioner moved an application before the Land Acquisition Officer for making the reference u/s. 18 for challenging the award of compensation seeking enhancement by way of increased solatium and increase in the land price as aforesaid. This reference application was rejected by the Land Acquisition Officer vide his order dated 27.3.91, which was subject matter of challenge in Writ Petition No. 3922/91. This reference application was rejected by the Land Acquisition Officer vide his order dated 27.3.91, which was subject matter of challenge in Writ Petition No. 3922/91. (8). The petitioner moved an application on 8.7.91 for claiming the interest u/s. 34 of the Act of 1894 as amended by the Act of 1894 and the increase in the compensation as per Section 23(1)(A) and 23(2) of the Act of 1894 as amended by the Act of 1984, which application was rejected on 20/07/1991 as barred by time. This led to filing of S.B. Civil Writ Petition No. 3922/91 before this Court by the petitioner. The said writ petition was decided on 16.9.91. (9). Before the Court, it was submitted by the learned counsel for the petitioner in S.B. Civil Writ Petition No. 3922/91 that his application for claim to interest u/s. 34 is still pending and on this submission, the Court directed to decide the said application within three months. In pursuance of this, the application u/s. 34 was rejected by order dated 19.12.91 by the Land Acquisition Officer-cum-Sub Divisional Officer, Ganganagar by holding that the award was made on 9.10.80 and it does not suffer from any clerical or arithmetical error, which could be corrected u/s. 13. Therefore, it is now not possible to make any order for payment of interest. He also held that as far as solatium is concerned, it was given to the petitioner as per law as was in force at the time of making of the award, as such there was no error, which could be corrected. (10). This led to filing of this writ petition. The following relief has been claimed by the petitioner. ``An appropriate writ, direction or order be issued directing the Sub-Divisional Officer-cum-Land Acquisition Officer, Sriganganagar to make the payment to the petitioner the solatium under Section 23(1)(A) of the Land Acquisition Act, 1894 or in the alternative the Sub-Divisional Officer may be directed to make a reference under Section 18. (11). It is apparent that the acquisition proceedings started u/s. 4 of the Land Acquisition Act prior to 1980 and on 9.10.80 the award has been made by the Collector determining the compensation as well as also holding person to whom it is payable. It appears that the petitioner has not filed any claim before the Collector showing himself as person interested. It appears that the petitioner has not filed any claim before the Collector showing himself as person interested. However, when he approached the Collector raising this objection, he still did not raise any grievance about the compensation amount. The Collector referred the matter to the Civil Judge u/s. 30 of the Act of 1894 for deciding the question about the person interested in the land, which was decided in favour of the petitioner as noticed above and the amount of compensation under the original award was subsequently paid in the Court on 2.7.91 in execution proceedings. (12). The petitioner has taken recourse to Section 30, in the first instance, which clearly goes to show that there was no dispute about the compensation and only dispute was about the person to whom the amount of compensation was to be paid. (13). Section 30 of the Land Acquisition Act, 1894 reads as under: 30. Dispute as to apportionment.-When the amount of compensation has been settled under Section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. (14). From the perusal of aforesaid provision, it is apparent that pre-condition for invoking Section 30 is that the amount of compensation is to be settled u/s. 11 and there is no dispute about it. Only when the dispute is confined to the apportionment of the same or any part thereof or as to the persons to whom the same or any part thereof is payable, the Collector may have recourse to refer such dispute to the decision of the Court u/s. 30. It also reveals that u/s. 30, the Collector can act suo moto when such dispute is raised before him. That being so, on admitted facts there was no dispute about determination of compensation vide award dated 9.10.80. It also appears that at that time the proceedings were pending under the Rajasthan Land Acquisition Act, 1954 and Land Acquisition Act, 1894 has not been amended so as to claim additional amount of compensation u/s. 23(1)(A) at the rate of 30% instead of 10% u/s. 23(2) of the Act of 1894. It also appears that at that time the proceedings were pending under the Rajasthan Land Acquisition Act, 1954 and Land Acquisition Act, 1894 has not been amended so as to claim additional amount of compensation u/s. 23(1)(A) at the rate of 30% instead of 10% u/s. 23(2) of the Act of 1894. This also justifies that claim or any dispute about amount of compensation was not subject matter of any pending lis at any time whether on the date the Bill Amending Act, 1894 was introduced in the Parliament i.e. 30/04/1982 nor any proceeding in respect thereof was pending before any forum. (15). It is in these circumstances, unless the petitioners case comes within the province of Section 30 of the Act of 1984, which introduces sub-section (1-A) of Section 23 and amended sub- section (2) of Section 23, he is not entitled to enhance the rate of market rate or the solatium as the case may be. (16). Section 30 of the Act of 1894 reads as under: 30. Transition provisions.-(1) The provisions of sub- section (1-A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,- (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the (House of the People) in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act. (2) The provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or court to or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of People and before the commencement of this Act. (3) The provisions of Section 34 of the principal Act, as amended by Section 20 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,- (a) every case in which possession of any land acquired under the principal Act had been taken before the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People], and the amount of compensation for such acquisition had not been paid or deposited under Section 31 of the principal Act until such date, with effect on and from that date; and (b) every case in which such possession has been taken on or after that date but before the commencement of this Act without the amount of compensation have been paid or deposited under the said Section 31, with effect on and from the date of taking such possession. (17). Apparently, sub-section (1-A) has been made applicable only in case no award has been made by the Collector before 30th day of April, 1982. In this case, the award was made by the Collector on 9.10.80 and therefore, the provisions of sub-section (1-A) cannot be invoked by the petitioner on its plain reading. (18). Learned counsel for the petitioner urged that no award was made in his favour in the first instance, but was made in his favour only by the decree of the Civil Court dated 24/04/1990 and as such, that must be deemed to be the date of the award of the Collector and he was entitled atleast to seek a reference against the award of Collector as it became final on 24/04/1990. He did make an application for making reference u/s. 18 against that award, which has been rejected. Therefore, on plain reading of Section 30(1)(a)(b) and sub-section (2) of Section 30 of the Act of 1984, he is entitled to these beneficial provisions. (19). This contention, in my opinion, is fallacious and cannot be sustained. (20). Section 30, which contains a provision for transition, has to be read in the context in which it has been introduced. Sub- section (1) of Section 30 and sub-section (2) of Section 30 contain the provision for extending the benefit of more beneficial. Sub-section (1A) and sub-section (2) of Section 23 of the Principal Act as amended by the Act of 1984, deals with determination of compensation only and therefore, these provisions must be read subject to the determination of the amount of compensation by the Collector by way of award either under clause (a) or sub-section (2) where the date of order of the Collector as well as date of the order passed by the Civil Court on a reference in respect of the compensation on a reference u/s. 18 becomes relevant. (21). The question, which calls for consideration, is whether the provisions of Section 30 can be considered as part of the award made by the Collector or not? (22). In this connection, consensus of the opinion of the Court in India appears to be that the order passed u/s. 30, where compensation amount of award is not in dispute, is not itself an award, but is a decree by the Civil Court declaring the right to get the amount determined under the award and is appealable only not as an award u/s. 54 of the Land Acquisition Act, but a decree of Civil Court under the Code of Civil Procedure, 1908. (23). Section 54 of the Land Acquisition Act, 1894 as applicable to all States except State of Karnataka where it has been subjected to State Amendment, reads as under: 54. (23). Section 54 of the Land Acquisition Act, 1894 as applicable to all States except State of Karnataka where it has been subjected to State Amendment, reads as under: 54. Appeals in proceedings before Court.-Subject to the provisions of the Code of Civil Procedure, 1908, applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in section 110 of the Code of Civil Procedure, 1908 and in Order 45 thereof. (24). Section 54 provides that an appeal lies only against the award or any part of the award made by the Court. Obviously, the award u/s. 54 does not refer to the award made by the Collector, which is not directly made appealable. (25). In this connection, the view expressed by various High Courts is that right of appeal is a right, which is created by the statute and such a right cannot be claimed unless it is expressly conferred by law. (26). Section 54 confers a right of appeal against an award. The order of apportionment or any subject matter on which reference is made u/s. 30 is not an award, but the decree of Civil Court and in such cases an appeal lies u/s. 96 of the Code of Civil Procedure, 1908, as appeal against any other decree lies in the Court that depending upon the rules governing the respective pecuniary jurisdiction of the Court making an award and the court hearing appeal therefrom which restriction is not applicable to an award made u/s. 18. (27). In this connection, reference may be made to the decision of various High Courts in India. The Division Bench of Bombay High Court in Raghunathdas Harjivandas vs. District Superintendent of Police, Nasik (1), held that order of apportionment on reference u/s. 30 is appealable as decree and not as an award u/s. 54 of the Act. The similar view was expressed by Allahabad High Court in Smt. Tijiya vs. Bhaggu & Ors. The Division Bench of Bombay High Court in Raghunathdas Harjivandas vs. District Superintendent of Police, Nasik (1), held that order of apportionment on reference u/s. 30 is appealable as decree and not as an award u/s. 54 of the Act. The similar view was expressed by Allahabad High Court in Smt. Tijiya vs. Bhaggu & Ors. (2), by Patna High Court in [1987 BLJ-475] (3), by Madras High Court in Srimathu Muthu Vijaya Ragunatha Duraisingam vs. Karuppiah & Ors. (4), A. Mahalinga Kudumban & Ors. vs. Theetharappa Mudaliar (5), by Gujrat High Court in Bal Lalita vs. Shardaben & Ors. (6), and by Andhra Pradesh High Court in Dy. Director of Agriculture Khammam & Anr. vs. Sarvadevabhatla Ramanadham & Ors. (7). (28). In contrast thereto, the Karnataka State has made the legislative amendment in Section 54 by providing a direct appeal against the decree of any court to the High Court only if the amount of value of the subject matter in dispute in appeal exceeds two thousand rupees or the case involves any question of title to the land. (29). This is found on the principle enunciated in T.B. Ramchandra Rao vs. A.N.S. Ramchandra Rao (8). Lord Buckmaster speaking for the Board opined that once the amount has become final, all questions as to fixing of compensation are then at an end; the duty of the Collector in case of dispute as to the relative rights of the persons together entitled to the money is to place the money under the control of the Court and the parties then can proceed to litigate in the ordinary way to determine what their right and title to the property may be. (30). The Board also opined that the question determined u/s. 30 of the Land Acquisition Act by the Civil Court determines the respective rights of the parties and operate as res judicata between them. In these circumstances, the finding of the Civil Court u/s. 30 about the respective interest of the litigants except to the amount of compensation becomes final and therefore, that cannot be agitated again. The question of compensation having already become final and not subject matter of dispute, the question seeking reference in that respect also cannot be raised, merely on the basis of decision on reference u/s. 30. The question of compensation having already become final and not subject matter of dispute, the question seeking reference in that respect also cannot be raised, merely on the basis of decision on reference u/s. 30. It is from that aspect apparently the petitioner has not raised such issue while raising the dispute about title to the compensation as the amount of compensation has become final so far as Land Acquisition Officer and the person interested in the land are concerned. Thereafter, it could not have been made subject matter of reference for enhancement of compensation on insistence of any of the claimants. (31). This brings us to the question whether the petitioner is not entitled to the benefit of the amended provisions as discussed above. Since that award of compensation has become final, prior to or the date 30/04/1982 by award of Collector and which award has not been made subject matter of reference, the question of applicability of sub-section (1) of Section 30 of the amended Act 1984 would not arise. Since award passed by the Collector has become final prior to 30/04/1982 and no award by the Court has come into existence after 30.4.1982, sub-section (2) of Section 30 of the Amendment Act, 1984 will not operate. (32). However, provision of sub-section (3) of Section 30 of the Act of 1984 stands on different footing. This is a direction to the concerned authority to compensate the person interested in the land to whom compensation is payable, in case possession of acquired land has been taken over without payment or deposit of compensation as the case may be. Section 34 of the principal Act of 1894 provides for this relief by prescribing rate at which interest is to be paid to the persons entitled to such compensation for compulsory acquisition of land concerned. (33). By virtue of sub-section (3) of Section 30 of the Land Acquisition (Amendment) Act, 1984, the provision of Section 34 has been made applicable to all such cases where possession of land has been taken even prior to introduction of Bill for Amending Act i.e. 30.4.82. (34). (33). By virtue of sub-section (3) of Section 30 of the Land Acquisition (Amendment) Act, 1984, the provision of Section 34 has been made applicable to all such cases where possession of land has been taken even prior to introduction of Bill for Amending Act i.e. 30.4.82. (34). In a case where possession has been taken before 30/04/1982, the provision of Section 34 as to the payment of interest has been made applicable w.e.f. 30/04/1982 in respect of the amount of compensation remaining unpaid or undeposited until 30/04/1982 upto the amount is so paid or deposited in the Court. (35). In the present case, there is no dispute about the fact that possession of land was taken on 6.12.1980. The amount of the compensation was though offered in the first instance to Haridwar Trust, but the same was received back by the Collector. Notwithstanding reference having been made to the Civil Court was only about the title thereto, the amount was not deposited in the Court to be paid to the rightful claimant until the amount was deposited in the Court of Civil Judge only after laying the execution, on 2/02/1991. In these circumstances, the petitioner is certainly entitled to the claim of interest at the rate as was in force from time to time u/s. 34 w.e.f. 1/05/1982 to 2/03/1991 the day on which the amount was so deposited in the Court. (36). Accordingly, this petition is partly succeed as aforesaid. While claim of the petitioner to additional compensation by way of additional compensation under sub-section (1A) of Section 23 and solatium at the increased rate of 30% under sub-section (2) of Section 23 of the Land Acquisition Act, 1894 read with Section 30 of Amending Act of 1984 and that he is not entitled to seek a reference now for enhancing the compensation on those counts, the same are rejected. However, he is entitled to the relief to claim interest on the amount of award from 1.5.1982 until the date of deposit in the Court on 2.3.91 at such rate as prescribed u/s. 34 of the Principal Act from time to time. (37). There shall be no order as to costs.