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2005 DIGILAW 1438 (BOM)

Madan Vishwanath Naik v. State of Maharashtra

2005-10-17

B.P.DHARMADHIKARI

body2005
Judgment ( 1 ) BY this Writ Petition under article 226 of the Constitution of India, the petitioner-landowner has claimed interest @ 9% on the amount of bonds given to him on 26-11-1987, from the date on which possession of surplus land under the Maharashtra agricultural Land (Ceiling and Holding) Act, 1961 (hereinafter referred to as "the Act" for short), was taken from him, till the date on which the bonds were issued. He has also claimed compensation of 3 Jambul trees, one pal (Embankment) and one Well. It is also stated that the petitioners are also entitled to interest on account of delay in delivering of bonds ( 2 ) THE facts which are not in dispute can be briefly stated as under : the surplus land from the holding of the petitioner was determined on 26-12-1970 and it is the contention of the petitioner that surplus land vested in government on 21-1-1971. It is further stated that proceeding for computing the amount of compensation in relation to these surplus lands were over and on 26-11 -1987 the petitioner was given bonds as contemplated under section 26 of the Act. The petitioner therefore, claims interest @ 9% on the amount of bonds from 21-1-1971 till 26-11-1987. Attention of the court is also invited to the record of rights in the year 1971-72, 1972-73 to state that there were Jambul trees, embankment and Well in the said surplus land and no compensation has been paid to the petitioner about it. As the possession was taken in 1971 and the bonds were delivered in 1987 interest for this delay is also sought for The learned counsel for the petitioner Shri. R. R deshpande, has relied upon unreported judgment of this Court in Writ Petition No. 640/1988, decided on 14-10-1991, in support He points out that this Court has drawn support from the provisions of the Land Acquisition act and the judgment reported at 1985 mh. LJ. 636 (Madhav Gopalrao Ganap Vs. State of Maharashtra ). ( 3 ) LEARNED AGP appearing for respondents had today filed return. He has argued that the petitioner is trying to gain double advantage, in as much as the interest sought is for delay in delivering of bonds. He states that had the bonds been delivered in time or at the time of taking possession, the petitioner could not have claimed any interest. He has argued that the petitioner is trying to gain double advantage, in as much as the interest sought is for delay in delivering of bonds. He states that had the bonds been delivered in time or at the time of taking possession, the petitioner could not have claimed any interest. He therefore, contends that the only prayer for grant of interest on account of delay in delivering the bonds needs to be considered in this Writ Petition. He invites attention to the fact that the proceedings for determination of compensation were opened in 1985 and within two years the amount of compensation was paid in the shape of bonds to the petitioner. He further states that, possession was not taken on 21-1-1971, but the possession has been taken in the year 1973 He further invites attention to the findings reached by the Subdivisional officer, that on 3-11-1985 when spot inspection was done there were no Jambul trees or Embankment or Well in the surplus land. He therefore contends that the prayer for compensation under these three heads is misconceived He points out that embankment found was not fit for awarding any compensation and the well also was dilapidated. He invites attention of the court to the provisions of Section 26 of the Act, to contend that interest @ 9% p. a. , on the amount of bond cannot be awarded. ( 4 ) AFTER hearing both the counsel, I find that in the above mentioned unreported ruling this Court, has awarded interest @ 9% and the relevant observations are contained in para Nos. 5 to 7. Those paragraph reads as under:"5. It is however, clear that the Ceiling Act is silent with regard to the period between the date of taking over of possession of the surplus land and the award of compensation, and there is no legislative mandate regarding the manner in which the landholder should be compensated in respect of the land of which he is dispossessed. In the present case, that period would be from 22-7-1971 to 8-4-1986 in respect of Umari land and 29-12-1978 to 8-4-1986 in respect of Chimur Land. ""6. In Madhav Gopalrao Ganap Vs. State of Maharashtra (1985 Mh. LJ. In the present case, that period would be from 22-7-1971 to 8-4-1986 in respect of Umari land and 29-12-1978 to 8-4-1986 in respect of Chimur Land. ""6. In Madhav Gopalrao Ganap Vs. State of Maharashtra (1985 Mh. LJ. 636), a division Bench of this Court, after considering that there was a delay in making the award for nearly ten years because of non-allotment of funds for payment of compensation, pointed out that section 34 of the Land Acquisition Act covers cases when the amount of compensation is not paid or deposited on or before taking possession of the land and directs the Collector to pay the amount with interest at the rate of 4 per cent per annum from the time of so taking possession until it shall have been so paid or deposited. It was held that the principle underlying is that the party dispossessed should not also be subjected to the pecuniary loss and should receive interest at part of the compensaion. The principle underlying section 34 is an equitable one and can be extended to such type of situations where delay is occasioned clearly to the prejudice to the party by reason of administrative inaction such as non-placement of funds. It is not as if that the State is not possessed of funds; it is merely the case that a particular departmental allotment was not received by the given authority. Equity would require that no party would suffer by such executive of administrative delays, and when the area is not covered by the legislative enactment, the Courts jurisdiction in equity would not be barred. It was further pointed out that such a jurisdiction can be exercised even while considering the matter under Article 226 of the Constitution and the power to give directions which would cover the field of law as well as equity is available depending upon the exigencies of the case, and the court will have to work out the reliefs. Therefore, interest was directed to be paid at Rs. 4/- per cent per annum, for the period of ten years over which the making of the award had been delayed. ""7. Though these principles have to be applied to the present case also, Shri. Deshpande, relied on an unreported decision of this Court in Krishnakumar Vs. Therefore, interest was directed to be paid at Rs. 4/- per cent per annum, for the period of ten years over which the making of the award had been delayed. ""7. Though these principles have to be applied to the present case also, Shri. Deshpande, relied on an unreported decision of this Court in Krishnakumar Vs. State of Maharashtra, (Writ Petition No. 83 of 1986, decided on 28th June, 1991), for urging that he would be entitled to interest even during the period covered by the bonds at the enhanced rate of 9% per annum. In that case, the position was that the award had been approved by the State on 30th May, 1986, but the payment had not been made and so interest at Rs. 9/- per cent per annum was ordered to be paid from the date of taking possession. In the present case, the area, which is not covered by the legislative mandate, as already stated, is from the date of taking possession until the date of determination of the compensation. It would not be open to me to extend the principle beyond what is laid down in madhavs case (1985 Mh. LJ. 636), regardless of the facts of the present case, by ignoring the legislative mandate. I find that the petitioner would be entitled to interest on equitable considerations, because of the gross delay on the part of the respondent in fixing the amount of compensation, though the landholder was deprived of possession ot the land. " ( 5 ) FROM the discussions made in these paragraphs, it is apparent that this court has accepted 9% interest only in view ot the earlier judgment reported in 1985 Mh. L. J. 636. However, the said judgment is under the provisions of the Land Acquisition Act and at the end of the paragraph No. 6, it is observed that interest was directed to be paid @ 4% per annum for the period of 10 years over which the making of the award had been delayed. In fact there is no discussion as to why and how the interest @ 9% per annum has been awarded even under the provisions of the Ceiling Act considering the date of judgment that may be on account of fact that at the relevant time interest @ 9% was being awarded by all courts. In fact there is no discussion as to why and how the interest @ 9% per annum has been awarded even under the provisions of the Ceiling Act considering the date of judgment that may be on account of fact that at the relevant time interest @ 9% was being awarded by all courts. However, as pointed out by the learned agp, there is a drastic departure in so far as the rate of interest is concerned under the provisions ot Section 26 of the Act As per section 26, the said rate is only 3%. The provision of Section 26 reads as under :"26. Mode of Payment of amount of compensation :- (1) The amount of compensation may, subject to the provisions of sub-section (3), be payable in transferable bonds carrying interest at three per cent, per annum. "thus, when provisions of section 26 itself restrict the grant of interest of 3% on the amount of bonds, the Court of law will not be in a position to override this statutory provision by way of awarding interest at the rate which will be more than 3%. It appears that this ceiling on rate of interest was not pointed out to the Honble Judge, who considered the issue in the above referred unreported judgment the petitioner is claiming interest only because the bonds have been delivered belatedly to him. Had the bond been delivered within time to him, he would have earned interest @ 3% as contemplated under section 26 (1) of the Act therefore, considering the provisions ot section 26, the petitioner can claim at the most 3% interest from the date ot delivery ot possession till the date on which the bonds are handed over to him by the government In so far as the date of possession is concerned, the maharashtra Land Revenue Tribunal has expressly observed in its order that the possession was taken from petitioner some time in May, 1973. The land cannot vest with government till possession is taken in view ot provisions of Section 21 (4) ot the Act Hence, i find that the petitioner is entitled to interest @ 3% per annum on the amount ot bond given to him on 26-11-1987 from 1-5-1973 till 26-11-1987. The respondent shall hand over the said amount of interest to the petitioner within a period of 4 months from today. The respondent shall hand over the said amount of interest to the petitioner within a period of 4 months from today. The Claim of petitioner for grant of interest on the amount of bonds trom 1971 to 1987, cannot be entertained because the petitioner has already been compensated above by granting him interest @ 3% per annum. ( 6 ) IN so far as the claim of petitioner about Jambul trees, Embankment and Well is concerned, the material on record is not sufficient to arrive at any definite finding in this petition. The said issue is therefore kept open and remanded to the S. L. D. T. competent to adjudicate upon it. The S. L. D. T. shall issue notice to petitioner and also to other interested, to find out the entitlement of the petitioner for compensation towards the alleged Jambul tiees, Embankment and Well The said exercise shall be completed by the S. L. D. T. as early as possible and in any case within a period of 6 months, from the date of communication of this order to it. ( 7 ) IN view of this order the impugned order of MRT, dated 12-11-1986 and the order of SDO dated 28-04-1986, to the extent mentioned above are quashed and set aside The issue only in relation to entitlement of the petitioner to claim compensation for jambul Trees, Embankment and Well is placed before the SLDT for adjudication as stated above. Rule is made absolute in the aforesaid terms, with no order as to costs. Order accordingly.