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2008 DIGILAW 1745 (ALL)

BHAGVATI PRASAD v. STATE OF U P

2008-08-22

ABHINAVA UPADHYA, PRADEEP KANT

body2008
PRADEEP KANT AND ABHINAVA UPADHYA, JJ. It has not been disputed by the learned Counsel for the State nor there is anything on record to rebut the plea that the petitioners land bearing Gata Nos. 5 and 12, an area of 2 Bigha, 7 Biswa, 8 Biswansi was used for construction of canal. The possession of which was taken by the Executive Engineer, Sharda Canal Pariyojna, District Barabanki, though without taking any proceeding of acquisition under the provisions of Land Acquisition Act. 2. The dispute arose as the petitioner was not initially paid compensa tion but when the compensation was paid, he was not paid the interest. This led to the filing of present writ petition. 3. During the pendency of this writ petition, the matter was considered by the State and an interest of Rs. 45,199/- on the amount of award has been paid to the petitioner sometimes in the year in August 2000 at the rate of 9% per an num. 4. The grievance of the petitioner is that in terms of section 34 of the Land Acquisition Act he was entitled to the interest at the rate of 15% and not that of 9% from the date of taking over the possession as the amount of compensation was not paid or deposited on or before taking over the possession within a pe riod of one year from the date on which possession was taken. 5. If the land or property of any person is acquired under the provision of Land Acquisition Act, the complete machinery has been provided for the award of compensation along with the interest etc. In a case where acquisition proceedings have not been undertaken but even then the land/property of the person has been taken under possession by the State, such a person would still be entitled to have the compensation which compensation is to be calculated on the same principles and in the same manner as is given in the Land Acquisition Act irrespective of the fact that the acquisition has not been done under the said Act. 6. 6. The learned Counsel for the petitioner has relied upon the judgment of Apex Court in the case of U. P. Jal Nigam, Lucknow through its Chairman and another v. M/s Kalra Properties (P) Ltd. Lucknow and others, AIR 1996 SC 1170 =1996 (27) ALR 28 (Sum) (SC), in support of plea of interest being awarded under section 34 of the Act. 7. Admittedly, the award in this case was made sometimes in the year 1992 and the petitioner has been awarded a certain amount in the said award which had already been paid. 8. The Constitution Bench of the Apex Court in the case in Sunder v. Union of India, 2001 (45) ALR 397 (SC), has held that in the given circumstances under section 34, the person would be entitled to interest at the rate of 15% per annum and in the case in Manipur Tea Co. Pvt. Ltd. v. Collector of Haiakandi, AIR 1997 SC 1779 , where the acquisition was made in the year 1982 and the award was pronounced in 1985, the Court held that 9% interest is for the first year from the date of taking possession and thereafter 15% has to be awarded. The Court further observed that it is a legislative principle that the claimant would be entitled to the rate of interest for the said period. 9. In the instant case it is admitted to the respondents that possession of the land of the petitioner was taken sometimes on or before the year 1978, com pensation being awarded to him under the award published in the year 1992 and the interest has been paid at the rate of 9% only after the petition has been filed before this Court. Since the 9% interest could be given only for the first year and if the amount is not deposited or paid within one year from the date of taking possession then the petitioner would be entitled to the interest of 15% per annum. 10. The petitioner is thus entitled to the difference of the interest as against the interest paid at the rate of 9% for the first year and for rest of the period for which the interest was to be paid at the rate of 15% per annum, since the compensation was not paid after taking possession within a period of one year. He was, therefore, entitled to the interest at the rate of 15% for a period upto 29. 8. 2000. The petitioner shall be thus paid the balance of the amount of the interest aforesaid. 11. We, therefore, dispose of the writ petition finally with the direction that the State/collector shall calculate the interest in terms of section 34 of the Act and shall pay the difference of the interest without any undue delay. 12. The matter being quite old, we further direct that this exercise shall be done within a maximum period of three months from the date of receipt of a certified copy of this order, during which period the amount shall also be paid after determining the same for period upto 29th August, 2000, i. e. the date when certain amount of interest has already been paid. 13. The writ petition is accordingly disposed of. Petition Disposed Of. .