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Rajasthan High Court · body

2005 DIGILAW 1623 (RAJ)

State of Rajasthan v. Suresh Mathur

2005-06-01

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard the learned Counsel for the parties. 2. All these five appeals raise a common question and have come for hearing today in the following circumstances. 3. These five appeals relate to the same acquisition proceedings which commenced with the issuance of notification under Section 4 of the Land Acquisition Act, 1894 on 12.04.1990. Declaration under Section 6, Direction under Section 17(4) and notice under Section 9(1) were simultaneously published on 25.04.1991. In pursuance of the aforesaid notification, possession was taken from the persons interested in the land on different dates as will appear from the table below. 4. The award was made by the Collector on 23.04.1993 and it was approved by the State Government on 110.1983. In the award, on the land value determined by the Collector, 12% additional compensation was awarded for one year only from the date of notification under Section 4 of the Land Acquisition Act, 1894. 5. However, aggrieved with the aforesaid award, the claimants have made applications for reference. In the reference, two fold contentions were raised in each case before the learned Additional District Judge No. 2, Jodhpur, firstly, that under Section 23(1-A) of the Land Acquisition Act, the additional compensation has to be paid at the rate of 12% on the market value of the land with effect from the date of notification under Section 4 until the date possession was taken over from the claimants and it could not be confined to one year only. On the additional compensation under Section 23(1-A), 30% solatium was also claimed which has not been awarded by the Collector. Reliance was placed on Section 23(2) of the Act. 6. The respondents have raised dispute about the reference on the ground that the reference was not made within limitation, therefore, was not maintainable. They supported the award inter alia on the ground that in terms of Section 23(1-A), 12% additional compensation has been paid on the market value of the land and on the additional compensation under Section 23(1-A), 30% added solatium is not permissible. 7. They supported the award inter alia on the ground that in terms of Section 23(1-A), 12% additional compensation has been paid on the market value of the land and on the additional compensation under Section 23(1-A), 30% added solatium is not permissible. 7. The learned Additional District Judge No. 2, Jodhpur, after referring to the statutory provisions of Section 23(1-A) came to the conclusion that the claimants were entitled to additional compensation at the rate of 12% on the market value of the land as on the date of notification under Section 4 for the period until possession was taken or until the date of award of the Collector whichever is earlier. Considering that the possession of the land was taken prior to making of award by the Collector in each case, additional compensation at the rate of 12% on the market value of the land was allowed from the date of notification under Section 4 until the date possession was taken over from them. However, no additional solatium was awarded. 8. The following table shows the date of taking possession of land, amount of compensation awarded by the Collector and amount of additional compensation awarded, which is subject of dispute in each case:- S. No.Spl. A. No. CMA No. Name of Party Date of taking possession Compensation amount awarded by Collector Additional Compensation amount 1.DBSAC 27/2000 CMA 1195/99 (Def .) State vs. Suresh 22.01.1993 3,23,800/-27,000/- 2.DBSAC 32/2000 CMA 1193/99 (Def .) State vs. Amraram 15.07.1992 2,17,758/-12,890/- 3.DBSAC 33/2000 CMA 1197/99 (Def .) State vs. Manjoor Ahmed 28.01.1993 63,900/-5,400/- 4.DBSAC 24/2001 CMA 1196/99 (Def .) State vs. Smt. Latesh Thakur 23.01.1993 1,66,900/-13,500/- 5.DBSAC 25/2001 CMA 1194/99 (Def ..) State vs. M/s. Sardar & Co. 23.01.1993 1,66,900/-13,500/- 9. Aggrieved with the aforesaid order passed in each case by the learned Additional District Judge No. 2, Jodhpur, separate appeals were preferred before this Court which were dismissed by the learned Single Judge on the ground of limitation by rejecting the application under Section 5 of the Limitation Act and hearing that the appellants have failed to show sufficient cause which could have prevented them from filing the appeals within limitation. 10. Against the rejection of application under Section 5 of the Limitation Act, aforesaid five appeals were preferred. 11. 10. Against the rejection of application under Section 5 of the Limitation Act, aforesaid five appeals were preferred. 11. The matter in the first instance came before the Division Bench of this Court on 15.02.2002 and the Division Bench was of the opinion that the learned Single Judge erred in rejecting the application under Section 5 of the Limitation Act, and, therefore, the application under Section 5 was allowed in each case and at the request of learned Counsel for the parties, appeals were heard on merit, instead of remanding the same to the learned Single Judge. 12. The only contention raised before the Division Bench was that the respondents claimants having accepted the amount of impugned award and the amount of impugned award having been paid by the Land Acquisition Officer, no reference was maintainable under the Land Acquisition Act. The Division Bench opined that no factual foundation about the payment of compensation to the claimants, the date of actual payment or whether the amount was accepted under protest, have been laid in the pleadings and no such objection appears to have been raised before the learned Additional District Judge. The question being wholly dependent on existence of certain facts, which have not been determined and about which there was no material, could not have been gone into for the first time at this stage. 13. Thus, finding no force in the only contention raised before the Court, the appeals were dismissed by separate orders on 15.02.2002. Since, no contention was raised about the award of additional compensation at the rate of 12% of the market value from the date of notification under Section 4 of the Land Acquisition Act until the date of taking over the possession, the Court has not examined that issue at all. However, the Division Bench noticed as fact what had transpired before the learned District Judge as under:- “The Court taking into consideration the provisions of the Act and the two relevant dates namely of the publication of the notification under Section 4 as 12.04.1990 and the date on which the possession of the land in question was taken over by the State as 22.01.1993, entitled in addition to amount determined under Section 23(1) an amount equal to @ 12% of the market value of the land w.e.f. 12.04.1990 to 22.01.1993 in terms of provisions of Section 23(1-A).” 14. Aggrieved with the aforesaid Judgment in each of the appeals, the State preferred appeals before the Honble Supreme Court and these appeals have come to be allowed on 010.2004. The order passed by the Supreme Court reads as under:- “Heard learned Counsel for the parties. Leave granted. In all these cases, the common issue is, whether the Court was justified in upholding the direction given by the Court noting as follows:-“The Court taking into consideration the provisions of the Act and the two relevant dates namely of the publication of the notification under Section 4 as 12.04.1990 and the date on which the possession of the land in question was taken over by the State as 22.01.1993, entitled in addition to amount determined under Section 23(1) an amount equal to @ 12% of the market value of the land w.e.f. 12.04.1990 to 22.01.1993 in terms of provisions of Section 23(1-A). Learned Counsel for the appellants submits that the direction given by the High court is contrary to what has been stated by this Court in Prem Nath Kapur & Ors. vs. National Fertilizers Corpn. of India Ltd. & Ors., 1996 (2) SCC 71 and Swadesh Ranjan Sinha vs. Haradeb Banerjee, 1991 (4) SCC 572 .It appears that these authorities were not placed before the High Court. In the fitness of things, the matter deserves to be reheard by the High Court for taking a fresh decision keeping in view the aforesaid Judgment s; their relevance and applicability to the facts of the present case. The appeals are accordingly disposed of .” 15. We have heard the learned Counsel for the parties and considered the two Judgment s referred to above, in the Supreme Court order, the learned Counsel for the respondent has pointed out that reference to Haradeb Banerjees case appears to have been made under some mistaken identity as the Haradebs case relates to rent eviction suit and determination of title issue. However, he pointed out that on Page 212 of the same report, the Supreme Court Judgment on the scope of Article 23(1-A) of the Act is to be found and that appears to be the appropriate Judgment to which the reference can be related to. 16. However, he pointed out that on Page 212 of the same report, the Supreme Court Judgment on the scope of Article 23(1-A) of the Act is to be found and that appears to be the appropriate Judgment to which the reference can be related to. 16. In Prem Nath Kapurs case (Supra), which is a later Judgment , the Supreme Court was considering the question of land acquisition proceedings commenced for the purpose of acquiring land for National Fertilizer Corporation of India by Notification dated 05.02.1973 under Section 4(1) of the Land Acquisition Act, 1984. Apparently, this notification was prior to amendment of Land Acquisition Act, 1894 by the Amending Act, 1984. The award by the Collector has been made in 1975 and the award by the civil Court has also been made on reference on 02.01.1979. In another reference arising from the same proceedings, the District Collector vide decree and award dated 24.01.1980 enhanced the compensation. On further revision, the High Court by its order dated 23.05.1983 determined the compensation @ Rs. 24,000/-per acre. In another revision, the appellants claim to solatium and interest on damages was granted by the High Court. In yet another revision, the High Court has enhanced the solatium and interest and additional amount under Section 23(2), 28 and 23(1-A) as amended by Act No. 68/1984. 17. It may be noticed that matters were relating to acquisition proceedings which had commenced prior to amendment in 1984 and even awards were made before such amendment. 18. These matters were in appeal before the Supreme Court. Three-fold contentions have been raised before the Supreme Court. Firstly, that because of the delayed payment of compensation, the claimants were entitled to appropriate the costs from the principal amount of compensation, then towards interest on total amount of compensation from the date of taking possession till the date of payment as determined by the Collector as well as the High Court. The Courts would determine the amount of compensation after considerable delay and the owner or interested person is entitled for compensation for loss of the value of their land. On determination, the State as Judgment debtor is liable to restitute the owner with just compensation by way of principal amount and interest accrued thereon. The first question, therefore, considered by the Supreme Court was when does the liability of the State to pay interest ceases? On determination, the State as Judgment debtor is liable to restitute the owner with just compensation by way of principal amount and interest accrued thereon. The first question, therefore, considered by the Supreme Court was when does the liability of the State to pay interest ceases? The Court held on this aspect that “the liability to pay interest on the amount of compensation determined under Section 23(1-A) continues to subsist until it is paid to the owner or interested person or deposited in the Court under Section 34 read with Section 31. Equally, the liability to pay interest on the excess amount of compensation determined by the civil Court under Section 26 over and above the compensation determined by the Collector/Land Acquisition Officer under Section 11 subsists until it is deposited in the Court. Proprio vigore in case of further enhancement of compensation on appeal under Section 54 to the extent of said enhanced excess amount or part thereof , the liability subsists until it is deposited in the Court. The liability to pay interest ceases on the date on which the deposit is made in the Court with the amount of compensation so deposited”. 19. The Court further held that when the deposit is made towards the specified amount, the claimants/owner is not entitled to take out of the amount of compensation interest under Section 23(1-A) and then claim the total amount with further interest. 20. Apparently, that is not the controversy raised in this case which need to be decided. 21. The second contention which was raised before the Court in Prem Nath Kapoors case by the claimant was that he was entitled to interest on solatium. That contention was also negatived by the Supreme Court by referring to the provisions of Section 23(2) itself . The Court said that the expression “in addition to market value” solatium was required to be paid as provided under Section 23(1-A) by necessary implication excludes the liability to pay interest on solatium. 22. The third question which the Court answered was about the question of payment of solatium on additional amount of compensation payable under Section 23(1-A). It was held that it was not payable. 22. The third question which the Court answered was about the question of payment of solatium on additional amount of compensation payable under Section 23(1-A). It was held that it was not payable. No interest is payable on the additional amount under Section 23(1-A) and other compensation except compensation or excess compensation or part thereof determined under Section 23(1) over and above the award under Section 11 by civil Court under Section 26 or the appeal under Section 54 respectively. 23. In coming to this conclusion, the Court followed its earlier Judgment in P. Ram Reddy vs. LAO, 1995 (2) SCC 305 . 24. Thus, it is apparent that in Prem Nath Kapurs case, the questions which the Court considered were liability to pay interest on the amount of compensation and payment of solatium on additional compensation. In the present cases too the civil Judge has held that no solatium was payable on additional amount of compensation under Section 23(1-A). The claimants too have not pursued that claim. No question about liability to pay interest is involved in the present appeals. 25. The question that upto which period the additional amount of compensation is to be computed under Section 23(1-A) was not under consideration before the Supreme Court in Premnath Kapoors case. 26. Another decision which has been referred in the directives of Supreme Court is Swadesh Ranjan Sinha vs. Haradeb Banerjee, 1991 (4) SCC 572 . 27. With utmost respect, the learned Counsel for the respondent has, in our opinion rightly pointed out that said case relates to determination of the question that who could be considered land lord or owner in the context of Rent Control Act in and filing suits. In the present case, no such controversy about the title in rent eviction suit arises. 28. Be that as it may, the learned Counsel for the respondent has also brought to our notice the decision of the Supreme Court in the same report, reported at Page No. 212 viz. Narain Das Jain (since deceased) vs. Agra Nagar Mahapalika, Agra, 1991 (4) SCC 212 . 28. Be that as it may, the learned Counsel for the respondent has also brought to our notice the decision of the Supreme Court in the same report, reported at Page No. 212 viz. Narain Das Jain (since deceased) vs. Agra Nagar Mahapalika, Agra, 1991 (4) SCC 212 . It was a case in which the claim has been awarded by the High Court for additional amount of compensation under Section 23(1-A) by raising the determination of market value of the property as on the date of notification under Section 4 at the rate 12% per annum until the date of payment of compensation in terms of the Section 23(1-A). However, the High court has refused to award solatium firstly on the ground that the Collector has not awarded solatium and the appellant while taking the matter to the Tribunal had not raised such claim. Secondly, after the order of the Tribunal, the appellant when taking the matter to the High Court in appeal, had not raised a dispute nor laid claim to it in his grounds of appeal. However, the Court considering it a statutory obligation to determine the amount of compensation in terms of the statutory provision, stated that distinction made by the High Court in regard to the award of solatium was not justified. The appellant has not pleaded for grant of solatium in the grounds of appeal before the High Court while claiming enhanced compensation, and yet the High Court felt that it was under the statutory duty to grant solatium on the amount enhanced by it. As the High Court did not shut out the claim of the appellant on the ground that he had not asked for it specifically in the grounds of appeal, the legal error which was otherwise patent needed to be rectified by the High Court in favour of the appellant; more so when there was a cross appeal of the Nagar Mahapalika before it and resort could be had to the provisions of Order 41 Rule 33, CPC. 29. In coming to this conclusion, the Court observed that solatium is a “money comfort”, quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare State such as ours. The importance of the award of solatium cannot be undermined by any procedural blockades. 29. In coming to this conclusion, the Court observed that solatium is a “money comfort”, quantified by the statute, and given as a conciliatory measure for the compulsory acquisition of the land of the citizen, by a welfare State such as ours. The importance of the award of solatium cannot be undermined by any procedural blockades. It follows automatically the market value of the land acquired, as a shadow would to a man, it springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. It follows as a matter of course without any impediment. That it falls to be awarded by the Court “in every case” leaves no discretion with the Court in not awarding it in some cases and awarding in others. 30. The ratio of this case, if it at all applies to the present case, computation of award of compensation under Section 23 as a whole has been held to be a statutory obligation at all levels by the authority determining compensation and it does not depend on raising of issue. 7.31. In the present case, it is not in dispute that the notification under Section 4 has been issued after the 1894 Act has been amended in 1984 by substituting Sub-section (1-A) in Section 23. The provision was very much in force on the date notification under Section 4 was issued and market price was to be determined as per the rate prevalent as on the date of such notification. Hence, Section 23(1-A) is applicable in fullness on such market rate additional compensation has to be paid for the entire period as per Sub-section (1-A) of Section 23 @ 12% per annum Section 23(1-A) does not say additional compensation for one year only. 8.32. The Collector awarded 12% additional compensation only for a period of one year from the date of notification under Section 4. Obviously, it was referable to Section 23(1-A). 8.32. The Collector awarded 12% additional compensation only for a period of one year from the date of notification under Section 4. Obviously, it was referable to Section 23(1-A). Section 23(1-A) in turn reads as under:- (1-A) In addition to the market-value of the land, as above provided the Court shall in every case award an amount calculated at the rate of 12% per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. 33. Apparently, as per clear provision of the section, it does not rest on discretion of Land Acquisition Officer to enhance or not to enhance the market value of the land in question which is to be determined with reference to Section 23 of the Land Acquisition Act, 1984 as amended by amending Act of 1984. Market value of the land sought to be acquired is to be determined firstly as on the date notification under Section 4(1) was published. Such market value of the land is to be enhanced in every case at the rate of 12% per annum until the date possession of land is taken over by the Acquiring Authority or award is made by the Collector under Section 11 whichever is earlier. The object of this provision is clearly to mitigate the hardship arising from freezing the market value as on the date of publication of notification under Section 4. The provision ensures on the one hand that benefit of escalation in market value due to the proposed public purpose for which land is acquired may not go into the pocket of person interested in land and make the acquisition mere burdensome and on the other hand, the person interested in land may not be altogether deprived of normal price escalation upto the date the land is actually vested in State or first stage compensation determined by the Collector, which becomes immediately payable to the claimant or at least it becomes a debt and carries interest over it. There is no room for any discretion in the matter of rate at which market value is to be enhanced or the period upto which the annual enhancement continues. 34. There is no room for any discretion in the matter of rate at which market value is to be enhanced or the period upto which the annual enhancement continues. 34. About object of inserting Section 23(1-A) in the Land Acquisition Act, one can aptly refer to the following observation made in State of Tamil Nadu vs. L. Krishnan, AIR 1996 SC 497 :- “The provisions in this sub-section are designed to compensate the owners of the land for the rise in prices during the pendency of the land acquisition proceedings. It is a measure to off-set the effects of inflation and the continuous rise in the value of properties over the last few decades and appears to be more beneficial to the claimants.” In somewhat different situation, the Court in Special Tehsldar (LA) PWD, Scheme, Vijayawada, vs. M.A. Jabbar, AIR 1995 SC 762 , holding it to be a beneficinal provision extended the benefit of enhanced compensation under Section 23(1-A) to claimants. After quoting the Sub-section (1-A), the Court said:- “In other words, the owner of the land, who has been deprived of the enjoyment of the land by having been parted with possession, the Act intended that the owner be compensated by awarding an additional amount calculated at the rate of 12 per centum per annum on the enhanced market value for the period between the date of notification and the date of award or date of taking possession of the land whichever is earlier.” 1.35. In the case before the Supreme Court, possession of land is taken in 1965. Award of Collector was made after the amendment of 1984 had come into operation. Thus, Sub-section (1-A) of Section 23 was attracted. Since, fact of possession has taken place prior to coming into force of amendment, the Court held provision to be applicable for the remaining conditions and allowed the enhanced market value from the date of notification until the date of award. 2.36. It was followed in the Assistant Commissioner, Gadag Sub-Division vs. Mathapathi Basdavannewwa, AIR 1995 SC 2492 . 3.37. These cases show that no artificial period can be substituted for awarding enhanced market value in terms of Sub-section (1-A) of Section 23 different from what has been provided under the statute. 2.36. It was followed in the Assistant Commissioner, Gadag Sub-Division vs. Mathapathi Basdavannewwa, AIR 1995 SC 2492 . 3.37. These cases show that no artificial period can be substituted for awarding enhanced market value in terms of Sub-section (1-A) of Section 23 different from what has been provided under the statute. That is to say when the land vests in the State by taking possession or until compensation is determined by the Collector whichever is earlier, the enhancement in the market value @ 12% per annum is not to fall beyond the award made by the Collector. 38.It may be noticed in the present case that so far as the market value of the land determined in each case by the Collector is concerned, it was not the subject matter of reference. The subject matter of reference was only enhancing the market value of land in terms of Section 23(1-A) upto the date of taking over possession which in each case preceded the date of award made by the Collector. Apparently, the order passed by the Additional District Judge was in consonance with Section 23(1-A) which was very much applicable to the facts of the present case and no interference is called for in that respect. 39. The appeals must fail and accordingly, the appeals are dismissed. No order as to costs.