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Gujarat High Court · body

2009 DIGILAW 600 (GUJ)

BAKHTAVAR NAUSHIR LAM v. LAND ACQUISITION OFFICER

2009-09-07

K.M.THAKER, M.S.SHAH

body2009
K. M. THAKER, J. This appeal under Sec. 54 of the Land Acquisition Act, 1894 read with Sec. 96 of the Civil Procedure Code, 1908 is against the judgment and award dated 11-3-1997 passed by the learned Extra Assistant Judge, Surat in Land Reference Case No. 47 of 1989. 2. The appellant was the owner of land bearing property No. 1744 admeasuring 193.98.22 sq.mts. in Ward NO.5 of Saiyedpura, Choryasi Taluka, District Sural. The State Government acquired certain lands, including the aforesaid land of the petitioner, for the Surat Municipal Corporation for .the purpose of keeping that land as open land for public use. The notification under Sec. 4 of the Land Acquisition Act, 1894 was issued on 6-5-1987 and was published in the Official Gazette on 23-7-1987. The Sec. 6 notification was thereafter issued on 1-10-1987 and published in the official gazette on 12-11-1987. The notice under Sec. 9 of the Act was issued on 28-12- 1987 and was published in the newspaper and also at the site. The Land Acquisition Officer also issued notice to the appellant for lodging his claim. The appellant claimed compensation at the rate of Rs. 5,000/- per sq.mt. with solatium and other statutory benefits and also claimed cost of the godown amounting to Rs. 17,800/-. After hearing the appellant, the Land Acquisition Officer made an award dated 10-4-1989 awarding compensation at the rate of Rs. 1,000/- per sq.mt. with solatium under Sec. 23(2) and increase at the rate of 12 % under Sec. 23(I-A). However, the Land Acquisition Officer refused to grant interest as the possession of the land was not taken over by the Corporation. The appellant applied for the reference under Sec. 18 and the reference was made to the District Court, which culminated in Land Reference Case No. 47 of 1989. Before the Reference Court, the appellant reiterated the claim for compensation at the rate of Rs. 5,000/- per sq.mt. on the ground that less valuable land were sold in the year 1987 for Rs. 2,400/- per sq.mt. and it was further submitted that the said lands were less valuable as compared to the appellant's land which was surrounded by the open land on three sides-Government land, another Government land and Saiyedpura main road. It was also contended that the acquired land was in a commercial area, the appellant was entitled to get compensation at the rate of Rs. It was also contended that the acquired land was in a commercial area, the appellant was entitled to get compensation at the rate of Rs. 5,000/- per sq.mt. 2.1. The appellant further contended that even though Sec. 4 notification was published on 23-7-1987 and the award was made on 10-4-1989, the appellant was not paid the compensation immediately in accordance with Sec. 31 of the Act, hence, the appellant sh9uld be paid interest from the date of award till the payment date. The appellant also claimed compensation for construction. After considering the submissions of the claimant in light of the material available on record, the Reference Court passed the impugned award and granted compensation at the rate of Rs. 2,000/- per sq.mt. instead of Rs. 1,000/- awarded by the L.A.O. Thus, the Reference Court awarded Rs. 1,000/- as additional compensation, making total of Rs. 2,000/-. The Reference Court also awarded solatium at the rate of 30% p.a. on the enhanced compensation and also granted 12 % increase as additional amount from the date of notification under Sec. 4 till the date of the award. The Reference Court, however, held that the claimants would not be entitled to get interest on the ground that possession was not taken over until 2003. Feeling aggrieved and being dissatisfied with the award and' direction by the Reference Court, the appellant is before this Court. 3. Mrs. Ketty A. Mehta has appeared for the appellant and Mr. Kaushal Pandya for Mr. P. G. Desai, learned Counsel has appeared for the acquiring body and Mr. Nikunt Raval, learned A.G.P., has appeared for the opponent No. 1 L.A.O. 4. Mrs. Mehta for the appellant has raised only two contentions : (a) about inadequacy of the compensation, and (b) about non-granting of interest, though she did refer to the claim for construction cost as part of appellant's contention on ground of inadequate compensation. Mrs. Mehta, while highlighting the location of the acquired land its surroundings, in particular the diverse amenities existing at the time of acquisition notification and on the basis of the contemporaneous sale instances, she strenuously urged that lands of inferior quality and lesser value and at not so advantageous location were sold at better price, hence the claimant should have been allowed compensation at the rate of Rs. 5,000/-. 5,000/-. She submitted that around the time when the notification under Sec.4 was issued, lands proximate to the acquired lands (Exhs. 19, 20 and 21) were sold at the rate of Rs. 2400/- though the said lands did not enjoy equally advantageous position as the land in question, and that therefore, the claimant should have been allowed compensation at appropriate higher rate i.e. at Rs. 5,000/-. In this context, she submitted that while the lands concerned in the said sale instances were land-blocked, the land in question was having an advantage of two open sides and that too with 30 ft. road on one side and 80 ft. road on the other. She submitted that a surgical home, hospital, vegetable market, petrol pump, bus stand, school and residential apartments were in the proximity which conferred very high potential commercial market value in favour of the land in question. On such premise, Mrs. Mehta, learned Advocate tried to justify the demand for compensation at the rate of Rs. 5,000/-. 4.1. As regards the demand for interest for the period during which the compensation was not paid, Mrs. Mehta relied on provisions under Secs. 31 and 34 of the Act as well as on the provision under the Interest Act, 1978 and submitted that though the award by the L.A.O. was made on 10-4-1989 and despite the requests by the appellant -claimant to the acquiring body to take possession, the acquiring body had chosen to not to take possession and/or did not tender payment and the compensation amount was deposited only on 6-121996 and second instalment was deposited on 16-7-1998. She submitted that in view of the said unjustified delay on the part of the acquiring body, the claimant should not suffer and should be compensated by way of interest as per the provisions under the Act and that if the interest on the amounts payable to the claimant is not paid, then provision under Sec. 31 will be frustrated, particularly because the appellant had offered possession of the land in question. In support of her submissions, she relied on Ambalal Purshottam v. Ahmedabad Municipal Corporation of the City of Ahmedabad & Ors., AIR 1968 SC 1223 , Hissar Improvement Trust v. Smt. Rukmani Devi & Anr., AIR 1990 SC 2033 , Chinubhai Nanalal & Ors. v. Additional Special Land Acquisition Officer, Ahmedabad. In support of her submissions, she relied on Ambalal Purshottam v. Ahmedabad Municipal Corporation of the City of Ahmedabad & Ors., AIR 1968 SC 1223 , Hissar Improvement Trust v. Smt. Rukmani Devi & Anr., AIR 1990 SC 2033 , Chinubhai Nanalal & Ors. v. Additional Special Land Acquisition Officer, Ahmedabad. AIR 1989 Gujarat 123 and Dayaprakash Trikambhai v. Special Land Acquisition Officer, Baroda, 1969 GLR 234 at 240. Except the aforesaid submissions, any other submissions have not been raised on behalf of the appellant. 5. Per contra, Mr. Pandya, learned Advocate for the Corporation vehemently opposed the submissions and all claims of the appellant. He submitted that in view of the peculiar facts involved in the case and a disadvantage or the infirmity attached to the land in question, the appellant's claim is not only unjustifiably inflated and exaggerated but they are reflection of appellant's flight of fancy and conveniently overlook the disadvantages which infected the land in question. He submitted that not only there was a sitting tenant in possession of a part of the land in question, but he had also trespassed and encroached upon other/more land than what was actually rented to him. He submitted that the said tenancy had also caused litigation by way of Small Cause Suit No. 912 of 1979 filed by appellant which resulted in decree in favour of the appellant. Besides the said proceedings, the tenant had approached the High Court by way of writ petition being Spl. C.A. No. 6589 of 1988 and challenged the acquisition proceedings under which the acquiring body was by order of the High Court, restrained from taking possession. He submitted that the sitting tenant on the land in question and the tenant's action of further encroachment on the land not rented in his favour coupled with the fact of litigation, actually rendered the land in question an unattractive proposition and also reduced, or rather more than halved, the market price of the land in question. He urged that otherwise also the appellant's claim for compensation at rates higher than even the rate reflected in sale instances relied on by the appellant i.e. Exhs. 19, 20 and 21 is not only without support of, but also contrary to, evidence. He urged that otherwise also the appellant's claim for compensation at rates higher than even the rate reflected in sale instances relied on by the appellant i.e. Exhs. 19, 20 and 21 is not only without support of, but also contrary to, evidence. He further submitted that the L.A.O. had taken all relevant aspects into consideration including the relevant sale instances while passing the award dated 10-4-1989, and that therefore, in the facts of the case there was no scope or room for any further enhancement and in any case there was no justification in support of the appellant's demand for compensation at any rate higher than the rate awarded by the Reference Court. He submitted that the appeal deserves to be and therefore, it may be rejected. 6. At the outset, it is appropriate to take note of certain factual aspects which the Reference Court has noted as facts undisputed by the parties before the Court. The Reference Court has noted (1) there was no dispute about the ownership of the land. (2) about the fact that other adjoining lands were also acquired for the same purpose as in the case "bf land in question. (3) about the fact that there was a sitting tenant who was using the rented place at the rate of Rs. 121/- per month as rent, and (4) also about the fact that the tenant had also encroached upon other lands forming part of land in question. (5) that the tenant had initiated litigation which was pending at the relevant time. (6) about the fact that in the proceeding against acquisition preferred by the tenant in the High Court order restraining the authority from taking possession was passed. (7) about the fact that the appellant had to file Small Cause Suit No. 912 of 1979. 7. On behalf of the appellant, evidence (Exh. 14) of witness Bakhtavar Nauhsir Lam was recorded. During her deposition, the witness relied on sale instances Exhs. 19, 20 and 21, however, denied the suggestion that the lands concerned in the said sale instances were situate at farther distance from the land in question. 7. On behalf of the appellant, evidence (Exh. 14) of witness Bakhtavar Nauhsir Lam was recorded. During her deposition, the witness relied on sale instances Exhs. 19, 20 and 21, however, denied the suggestion that the lands concerned in the said sale instances were situate at farther distance from the land in question. She, during her deposition, admitted that part of the property in question was given on rent to the tenant M/s. Ambica Sanitary Stores and, that the said tenant was in possession of two godowns on the said land and that the said tenant had also encroached upon further land which was part of the land in question and at the time of acquisition proceedings as well as at the time of the proceedings before the Reference Court, the tenant continued to be in possession of the rented as well as encroached part of the land in question. The witness admitted in cross-examination that the suit proceedings had commenced before the acquisition proceeding commenced and that during the acquisition proceeding the suit was pending. She also admitted that in the petition filed by the tenant against acquisition proceeding, the High Court had passed injunction order against L.A.O. to not to take over possession. She also admitted that even at the time of her oral evidence the petition was pending in High Court. The deposition of the said witness was recorded on different dates e.g. 5-11-1996, 3-12-1996 and 4-12-1996 and in her deposition the witness admitted that at the time when her deposition was recorded, the possession of the land in question was not taken over. 8. an examination of the impugned award, it transpires that in all about eight sale instances were taken into account by the L.A.O. out of which a deed executed in August, 1986 for which the consideration was paid at the rate of Rs. 1172/- per sq.mt. was highest. Thus, as per the said-sale-deed, the highest market price one year prior to the date of Sec. 4 notification in present case, was Rs. 1172/- per sq.mt. 9. In view of the said sale-deed observed that if 10% increase was allowed (since the transaction was of period one year prior to the date of Sec. 4 notification in this case) the market price would come to around Rs. 1,289/-. However, in view of Exhs. 1172/- per sq.mt. 9. In view of the said sale-deed observed that if 10% increase was allowed (since the transaction was of period one year prior to the date of Sec. 4 notification in this case) the market price would come to around Rs. 1,289/-. However, in view of Exhs. 19, 20 and 21, the Reference Court formed an opinion that the rate for compensation fixed by the L.A.O. did not reflect the actual market price prevailing at the time of notification under Sec. 4. The Reference Court, therefore, did not approve L.A.O.'s decision. Instead the Court took into consideration Exh. 19 which was executed on 25-6-1986 and reflected the price fixed at Rs. 2400/- per sq.mt. The another (sic.) sale instance taken into consideration by the Reference Court is Exh. 20 executed on 21-3-1987 wherein the price was fixed at the rate of Rs. 800/- per sq.mt. The third sale instance relied upon by the claimant and considered by the Reference Court happens to be Exh. 21 which was executed on 29-8-1987 for consideration of Rs. 2400/- per sq.mt. 10. It needs to be recalled at this stage that in present case, notification under Sec. 4 was published in the Gazette on 23-7-1987 which would render the Exh. 19 one year older and Exh. 21 one month later. The gap between the Exhs. 20 and Sec. 4 notification comes to about 4 months. According to the said sale instances, the lowest market price appears to be Rs. 800/- and highest is of Rs. 2400/-. 11. In light of the said sale instances, the Reference Court has arrived at a conclusion, and we don't find any fault or error in Reference Court's conclusion, that the claimant's demand for compensation at the rate of Rs. 5000/- is unjustified and untenable. We cannot, at this stage, forget to take into consideration that as per the sale instances considered by L.A.O., the highest market price-even after allowing 10% increase, would be Rs. 1,289/- only, which also justifies the said conclusion of the Reference Court. 12. Even from the examination of the entire impugned award and other material obtaining on the record, we, as the Reference Court did not, could not find any cogent and satisfactory and conclusive material which could lend any support to the claim of compensation at the rate of Rs. 5,000/-. 12. Even from the examination of the entire impugned award and other material obtaining on the record, we, as the Reference Court did not, could not find any cogent and satisfactory and conclusive material which could lend any support to the claim of compensation at the rate of Rs. 5,000/-. The claimant has not been able to produce any sale instance or any other acceptable and reliable material on record to convince the Court about the maintainability and justifiability of the claim for compensation at the rate of Rs. 5,000/-. the market value of the property in question, after accommodating the peculiar feature attached to the property viz., the fact that on the date of notification and even during the proceedings the land in question had sitting tenant and litigation was also pending, at Rs. 2,000/- per sq.mt. After determining the said market price i.e. Rs. 2,000/- the Reference Court determined additional compensation at the rate of Rs. 1,000/- upon adjusting Rs. 1,000/- awarded by L.A.O. Any convincing and compelling ground to interfere with the decision of the Reference Court in fixing the market price and additional compensation is not made out. We are neither convinced nor inclined to interfere with the market price and rate of additional compensation fixed by Reference Court. 18.1. The opponent would, therefore, submit that the said peculiar disadvantage attached to the property in question would, in any given case of a prospective purchaser bring down the price of the property in question by 50% than the prevailing market price. Actually, we find some substance in the submission of the opponent Counsel that the Reference Court has been slightly more lenient in favour of the claimant in awarding compensation at the rate of Rs. 2,000/- per sq.mt. 18.2. However, since there are no cross-objections and/or any cross-appeal filed by the opponent, we are not required to go into and examine the said aspect of the. matter. 18.3. While we are not called upon by the opponent and are not required to examine the issue whether to value fixed by the Reference Court is on higher side or not and whether it should be appropriately reduced or not, we are certainly not convinced about the claim of the appellant for higher rate of compensation much less for additional compensation at the rate of Rs. 5000/-. 18.4. 5000/-. 18.4. In our view, not only there is no material on record to justify such demand, the market price reflected by the Exhs. 19, 20 and 21 i.e. of Rs. 2400/deserve to be, as rightly held by the Reference Court, appropriately adjusted/reduced so as to accommodate appropriate adjustment in view of the peculiar feature of sitting tenant and pending litigation with regard to the land in question. 18.5. The Reference Court, has therefore, allowed adjustments and accordingly fixed the market value at Rs. 2,000/- per sq.mt., and thereby the additional compensation at Rs. 1,000/- per sq.mt. and we see no error or cause and justification for interference with the decision of the Reference Court. We are inclined and convinced to confirm the said decision of the Reference Court and we do hereby confirm the same. 18.6. Consequently, we have no hesitation in rejecting the appellant's claim for higher rate of compensation than what is granted i.e. Rs. 1,000/- per sq.mt. by the Reference Court. 19. So far as the second claim of the appellant towards construction (godown) is concerned, we are of the view that there is substance in the grievance made by the appellant. The appellant had claimed Rs. 17,800/- towards cost of construction of godown. We have noticed from the award of the Reference Court that the Reference Court has not considered claim for compensation towards the existing construction and not allowed any amount above the amount allowed by the L.A.O. It deserves to be mentioned that there was no dispute about the fact that there was an existing construction namely, godown, when the notification under Sec. 4 came to be issued. The appellant had, as mentioned above, demanded Rs. 17,800/- towards the cost of construction, however, even in absence of any evidence to the contrary from the side of the opponent/acquiring body, either disproving the entitlement and the claim amount or establishing any other and lesser amount as reasonable compensation towards construction, the Reference Court has not dealt with the claim and has not granted any amount above the L.A.O.'s award towards this claim. In view of the conspicuous absence of any contrary evidence establishing that the appellant is not entitled for the said claim, we are inclined to accept and allow the said claim of the claimant. Hence, we hold that the appellant is entitled for compensation at the rate of Rs. In view of the conspicuous absence of any contrary evidence establishing that the appellant is not entitled for the said claim, we are inclined to accept and allow the said claim of the claimant. Hence, we hold that the appellant is entitled for compensation at the rate of Rs. 17,800/- towards the existing construction namely, godown i.e. additional Rs. 7,579/- above Rs. 10,221/- already allowed. 20. Now, coming to the second contention of the appellant which is for interest for the intervening period, it is necessary to keep in focus that the appellant's claim for interest is for the period from the date of L.A.O.'s award until the date of payment/deposit of the compensation. It also deserves to recall that the L.A.O. passed the award on 10-4-1989, while the notification under Sec. 4 was published in the Gazette on 23-7-1987. 21. In this context, it is necessary also to recall that at the relevant time, there was a sitting tenant and that he had also encroached upon some further additional land as well. 21.1. This position had caused initiation of litigation in the Small Cause Court, and thereafter, in the High Court as mentioned hereinabove earlier. 21.2. There was also an order of injunction, passed by the High Court, against L.A.O. restraining the action of taking over the possession. 21.3. It should also be noted that in backdrop of such facts, the possession was taken on 11-3-2003. The aforesaid facts are undisputed. 22. In backdrop of such facts, the appellant insists that for the interregnum and until the compensation amount came to be deposited (it is asserted by the appellant that the first instalment was deposited on 6-12-1996 and second instalment was deposited on 16-7-1998) the appellant must be awarded interest on the entire compensation amount. Differently put, the appellant claims that even for the period when the possession could not be and was not taken, interest must be paid. It is submitted by the appellant that offer to hand over the possession was made by appellant, but it was not taken by the authority. However, the opponent is quick to remind us about the civil suit, writ petition by tenant and the injunction order of which reference is made earlier. 23. The appellant has relied on the provision under Secs. 31 and 34 of the Act. However, the opponent is quick to remind us about the civil suit, writ petition by tenant and the injunction order of which reference is made earlier. 23. The appellant has relied on the provision under Secs. 31 and 34 of the Act. Hence, it is necessary to have a closere look at the said provisions which are reproduced below :- "Section 31. Payment of compensation or deposit of same in Court ;- (1) on making an award under Sec. 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section. (2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there by any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under Sec. 18 would be submitted : Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount : Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under Sec. 18 : Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) Notwithstanding anything in this Section, the Collector may, with the sanction of (appropriate Government) instead of awarding a money compensation in respect of any land, make any arrangement with a person having a limited interest in such land, either by the grant of other lands in exchange, the remission of land revenue on other lands, held under the same title, or in such other way as may be equitable having regard to the interest of the parties concerned. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. Section 34. (4) Nothing in the last foregoing sub-section shall be construed to interfere with or limit the power of the Collector to enter into any arrangement with any person interested in the land and competent to contract in respect thereof. Section 34. Payment of interest ;- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of (nine percent) per annum from the time of so taking possession until it shall have been so paid or deposited : (Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen percentum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry)." 24. So as to examine the claim and submissions of the appellant, it is also necessary to keep in focus the provision under Sees. 23(1A) and 28 which are also reproduced below. "Section 23(1A). In addition to the market value of the land, as above provided, the Court shall in every case aware an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Sec. 4, sub-sec. (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. Section 28. Collector may be directed to pay interest on excess compensation. (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. Section 28. Collector may be directed to pay interest on excess compensation. If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine percentum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court : (Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen percentum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry)." A conjoint reading of the provisions under Sec'. 23(1A) and Sec. 28 with Secs. 31 and 34 makes the scheme with regard to payment of compensation, solatium and interest clear. 24.1. Issuance of notification under Sec. 4 of the Act is sine qua non for taking possession. Section 16 of the Act provides that the possession of the land (for which Sec. 4 notification is issued) may be taken when award under Sec.11 has been made. A conjoint reading of Sees. 16 and 17 suggests that except in the case covered under Sec. 17 of the Act, the possession "may" be taken, as per Sec. 16 of the Act after "award" under Sec. 11 of the Act is made. 24.2. When the possession is taken thus (i.e. in accordance with the provision of the Act) the land would then "vest absolutely in the Government free of all encumbrances", of course, the provision under Sec. 17 being the exception/urgency clause. 24.3. Now, a person who is aggrieved by the award under Sec. 11 of the Act, can seek reference under Sec. 18 of the Act and he can, inter alia, claim higher/additional compensation. 24.3. Now, a person who is aggrieved by the award under Sec. 11 of the Act, can seek reference under Sec. 18 of the Act and he can, inter alia, claim higher/additional compensation. When such reference is made, the Reference Court has to fix the market price upon taking into account the factors mentioned under Sec. 23(1) of the Act. 24.4. The Court has to also award additional amount as per Sec. 23(1A) of the Act. It is pertinent that such additional amount has to be paid for the period "from the date of publication of Sec. 4 notification" until "the date of award" or "the date of taking possession", whichever is earlier. Thus, if the date of taking possession is prior to the date of publication of award, then the period for calculation of such 12 % increase would be restricted to the date of possession. The Reference Court would also award solatium under Sec. 23(2) of the Act. 24.5. These provisions make the position clear that the date and action of taking possession, is a relevant and a vital factor. The reason being that until then i.e. until the possession is taken, the land owner continues to be in possession, and consequently, continues to enjoy the title, possession and use of the property and until the possession is not taken in accordance with Sec. 16 read with Sees.11, 4, 5, 6 and 9 (Sec. 17 being the exception/urgency clause) the land does not vest in the acquiring body. 24.6. It is also pertinent that none of the said Sections impose obligation to pay interest. Such liability and obligation is introduced and imposed by virtue of provision under Sec. 28 and Sec. 34. 24.7. What, in this regard, is more relevant and important is that the Sec. 28 obliges (a) payment of interest "on the excess sum awarded by the Court, and (b) to pay interest "from the date on which possession is taken" till the date of actual payment. 24.8. Now, from Sec. 28 of the Act, it emerges that the said Section requires the Court to award interest on excess rates "from the date on which the possession of the land is taken until the date of actual payment of such excess amounts". 24.8. Now, from Sec. 28 of the Act, it emerges that the said Section requires the Court to award interest on excess rates "from the date on which the possession of the land is taken until the date of actual payment of such excess amounts". Hence, as per Sec. 28, the liability to pay interest arises and commences "from the date on which the possession is taken", and consequently, the right to claim interest would also accrue and commence from the date on which possession of the land is taken. 24.9. It is pertinent to note that while imposing the obligation to pay interest the legislature provided that it shall be paid "from the date on which he took possession of the land", and the legislature did not add the words "or the date on which award is passed, whichever is earlier". The marked difference between this and the earlier provision regarding compensation indicates the intention of the legislature. The scheme of the Act is also thus clarified. 25. Now, we may see what obligation is imposed by virtue of Sec. 34. 25.1. The provision under Sec. 34 of the Act provides that if the amount of compensation is not paid or deposited "on or before taking possession of the land", then the Collector shall pay the awarded amount with interest at the rate of 9 % p.a. "from the time of taking possession" until it shall have been so paid and if not paid within period of one year than for subsequent period until it is actually paid, the amount shall carry interest at the rate of 15 %. Thus, as per Sec. 34, the obligation to pay interest arises and commences "from the time of taking possession". Under Sec. 34 also the legislature did not add the words "or the date on which the award is passed, whichever is earlier" . 25.2. The key words, for the purpose on hand, even in this Section like Sec. 23(1A) and Sec. 28, are "on or before taking possession of the land" and also the words "from the time of so taking possession". 25.2. The key words, for the purpose on hand, even in this Section like Sec. 23(1A) and Sec. 28, are "on or before taking possession of the land" and also the words "from the time of so taking possession". The conspicuous absence of the phrase "or the date on which the award is passed" followed, with the words "whichever is earlier" in Sec. 28 as well as in Sec. 34, after expressly using the said expression in Sec. 23(lA) magnifies the position that the obligation to pay interest, and consequently, the right to claim interest would arise upon taking possession. 25.3. Thus, as per Sec. 34 also the right for interest accrues in favour of the land owner "from the time of taking possession", and not from the date of award. The reason behind such arrangement is, as mentioned earlier that the land owner continues, until possession is actually taken, to hold and enjoy the possession and the title of the land. 25.4. Hence, the appellant's demand for interest for the period prior to the date on which possession was actually taken is, in our view, not justified and not tenable, but is contrary to the provision under Sees. 28 and 34 and also the scheme of the Act for the purpose of payment of compensation. 26. On behalf of the appellant, reliance to get out of the position arising from conjoint reading of the aforesaid provisions, is placed on Sec. 31 of the Act which; inter alia, provides that the Collector shall tender the amount when award is made and shall offer the payment unless prevented by one or more of the contingencies mentioned in sub-section of Sec. 34. The appellant has submitted that none of the contingencies contemplated under any of the subsections of Sec. 31 had arisen or existed in present case, and therefore, it was obligatory for the Collector to make or offer the payment after the L.A.O. made the award, otherwise Sec. 31 would be frustrated. 27. It deserves to be noted that the payment referred to and contemplated under Sec. 31, is even otherwise, the payment of only that amount which is awarded by the Collector. 27. It deserves to be noted that the payment referred to and contemplated under Sec. 31, is even otherwise, the payment of only that amount which is awarded by the Collector. In this context, it must be recalled that the claim of the appellant is for interest on the entire amount payable to the appellant and until the possession came to be taken, the appellant was in occupation of and was enjoying the possession and title of the property. 28. In our view, the provision under Sec. 31 cannot be divorced from the provisions under Sec. 23(1A), Sec. 28 and more particularly from Sec. 34, and the said provisions have to be read conjointly and also harmoniously. As noticed earlier, the obligation to pay interest would arise from the date of taking over possession and that therefore provision under Sec. 31 have to be read harmoniously, more so when the proceedings under Sec. 18 of the Act are commenced at the behest of the claimant-land owner. The appellant's contention militates against the scheme of the Act and the policy of the legislature. 29. We may, at this stage refer to Ambalal Purshottam v. Ahmedabad Municipal Corporation, AIR 1968 SC 1223 on which the appellant relied, wherein' the Hon'ble Supreme Court, has observed that : "We are not hereby to be understood as suggesting that after issue of the notifications under Sees. 4 and 6, the appropriate Government would be justified in allowing the matters to drift and to take in hand the proceedings for assessment of compensation whenever they think it proper to do. It is intended by the scheme of the Act that the notification under Sec. 6 of the Land Acquisition Act must be followed by a proceeding for determination of compensation without any reasonable delay." The Apex Court also observed that : "If either the land owners or the tenants were aggrieved by the delay, it was open to them to claim writs or orders compelling the State Government to complete the assessment and payment of compensation." 29.1. In present case, the facts are different from the facts before the Apex Court inasmuch as there was no lack of bona fides. Further, there was a sitting tenant and also pending litigation with the tenant, coupled with trespass as well as further encroachment on more than the rented land. In present case, the facts are different from the facts before the Apex Court inasmuch as there was no lack of bona fides. Further, there was a sitting tenant and also pending litigation with the tenant, coupled with trespass as well as further encroachment on more than the rented land. Besides this, there was also the restrain order by the Court as regards the possession. In present case, the award by the L.A.O. was made in prescribed time and the reference was also made immediately upon demand by the appellant and Court's award also came to be made in reasonable time. Thus, there was no delay caused by authorities or the acquiring body in initiating/completing the proceedings. Further, during this entire period, even as per appellant's witness, the litigation initiated by appellant and/or by tenant was pending wherein at one stage the High Court passed restrain order against L.A.O. restraining the taking over of possession. Besides, present appellant, in the interregnum never took any steps, as indicated/suggested by the Apex Court, for demanding payment. The appellant cannot escape all these events and/or the consequences of ail these events merely by urging that the stay order was passed in litigation by tenant. Hence, this case does not support the claim of the appellant. 29.2. On Chinubhai Nanalal v. Additional Special Land Acquisition Officer, Ahmedabad, AIR 1989 Guj. 123 , Mrs. Mehta relied to urge that the claimant can be awarded interest, in light of provisions under Sec. 34 of Civil Procedure Code or in alternative i. e. if recourse cannot be had to Sec. 34, then on equitable grounds. The relevant portion of Baragraph 16 on which Mrs. Mehta in particular relied reads thus : 16. "........ .So far as the question of interest is concerned, the provisions of Sec. 48 of the Land Acquisition Act do not provide for payment of any interest on the amount of compensation to be fixed under the said Section. Even if recourse cannot be had to Sec. 34, C.P.C. in the present case, interest from the date of the application can certainly be awarded on equitable grounds. Even if recourse cannot be had to Sec. 34, C.P.C. in the present case, interest from the date of the application can certainly be awarded on equitable grounds. The power to award interest on equitable grounds even for the period prior to the filing of the suit is expressly saved by the proviso to Sec. 1 of the Interest Act, 32 of 1839." The said judgment, in our view, would not help the appellant because in the said case notification under Sec. 4 was published in August, 1962 and notification under Sec. 6 was published in June, 1963. The land for which the said notifications were issued was acquired for the purpose of construction of dispensary. Thereafter, the acquisition of the said land was withdrawn by order made in September, 1970 under Sec. 48(1). In view of such development, the claimants had filed claims by way of damages because the land remained unused on account of acquisition. In the said case, the Court took into consideration the basic premise on which the claim was made, i.e. the damages suffered by the land owners since the acquisition proceedings were withdrawn after issuing notification under Sec. 6, in view of which the land owners were deprived of fruitful utilization of the land in question. The period for which the question of compensation was considered was the period during which injunction was granted by the Court. However, having taken note of the premise of the claim, Court considered the vital fact that there was no stay order against withdrawal of the acquisition proceedings and since the cause of action was said withdrawal of acquisition proceedings after issuance of Sec. 6 notification, the Court held that the land owners were entitled for compensation for the period in question. In such backdrop of facts, the observations regarding interest came to be made by the Court in Para 16 of the judgment. In this context, reference deserves to be made to the observations made by the Court in Para 5 of the judgment, which reads thus : "5. Now, so far as the first point is concerned, as stated earlier, the stay order granted by this Court in Special Civil Application No. 819 of 1963, was only with regard to making or declaring the award and against taking possession from the petitioners therein. Now, so far as the first point is concerned, as stated earlier, the stay order granted by this Court in Special Civil Application No. 819 of 1963, was only with regard to making or declaring the award and against taking possession from the petitioners therein. There was no injunction or stay order with regard to the withdrawal of the acquisition proceedings. The acquisition proceedings were withdrawn on 1-9-1970. Before the withdrawal of the acquisition proceedings, Civil Suit No. 63 of 1960 filed for the specific performance of the agreement for sale, was decreed and possession was also received in 1969 and even sale-deed was also executed on 19-8-1969. There is no dispute with regard to the fact that there was no stay order for the withdrawal of the acquisition proceedings. Therefore, if the Government wanted to withdraw the acquisition proceedings earlier, it could have very well done so. There was no order operating against the Government for the withdrawal of the acquisition proceedings at all............... Therefore, if the acquisition is not complete and has been withdrawn, compensation due for damage suffered by the owner in consequence of the acquisition proceedings has to be paid." Thus, the said matter essentially pertains to the withdrawal of acquisition and claim for damages, in different factual background, while such are not the facts in present case. 29.3. Mrs. Mehta relied on Para,graph 18 of the judgment reported. in Dayaprakash Trikambhai v. Special Land Acquisition Officer, Baroda, 1969 GLR 234 , which reads thus : "18. Section 16 of the Land Acquisition Act states that: "when the Collector has made an award under Sec. 11, he may take possession of the land, which shall thereupon (vest absolutely in the Government), free from all encumbrances." It does not lay down any time-limit within which the Collector is obliged to take possession after the declaration of the award. The Collector can take possession at his own sweet-will. It is not certain as to when he will take possession. The claimant is not expected to keep his land uncultivated till the Collector decides to take possession of it. If the possession had not been taken prior to the reaping of these crops, no question of claiming any compensation in regard to it would have arisen. It, therefore, cannot be said that the claimant could have anticipated these damages and could have claimed them. If the possession had not been taken prior to the reaping of these crops, no question of claiming any compensation in regard to it would have arisen. It, therefore, cannot be said that the claimant could have anticipated these damages and could have claimed them. If the possession had not been taken prior to the reaping of these crops, the question of making any claim for these damages would not have arisen. In such event, we are of the view that no such objections against this claim could be sustained on these grounds in a reference that could be made. The claimant, in our opinion, is entitled to make such a claim." Mrs. Mehta submitted that the Court has to take into consideration the damage sustained by the claimant on account of the delay on the part of the acquiring authorities. The facts of the said case also are different, and therefore, the said judgment would not offer any assistance to the appellant inasmuch as the claim before the Court in the said case was about the damages sustained by the claimant on account of the standing crops or trees at the time of taking possession. In the said case, the Court observed that the claimant is not expected to keep his land uncultivated till the Collector decides to take possession. In view of the set of facts of present case being different from those in the referred case, the judgment does not render any assistance. 29.4. So as to submit that the amount has to be paid before taking possession, as provided under Sec. 31 and in the event amount is not deposited in time, interest is payable, Mrs. Mehta relied on Hissar Improvement Trust v. Smt. Rukmani Devi, AIR 1990 SC 2033 . She, in particular, referred to Paragraphs 5 and 7 of the said judgment, which reads thus : "5. It cannot be gainsaid that interest is due and payable to the land-owner in the event of the compensation not being paid or deposited in time in Court. Before taking possession of the land, the Collector has to pay or deposit the amount awarded, as stated in Sec. 31, failing which he is liable to pay interest as provided in Sec. 34. (Emphasis supplied) 7. We make it clear that insofar as the land-owner is concerned, his right to be compensated is enforceable against the State. Before taking possession of the land, the Collector has to pay or deposit the amount awarded, as stated in Sec. 31, failing which he is liable to pay interest as provided in Sec. 34. (Emphasis supplied) 7. We make it clear that insofar as the land-owner is concerned, his right to be compensated is enforceable against the State. It is the liability of the Collector in terms of the relevant provisions to pay the amount awarded, together with interest in the event of the amount not being paid in time. The liability of the appellant-Trust arising under its agreement with the Government for payment in respect of the property acquired is a matter on which we express no view." The said judgment also would not carry the case of the appellant further inasmuch as even in the said judgment it is observed that amount is to be paid "before taking possession of the land". In present case, there are additional features as well viz., there was a sitting tenant and pending litigation and an injunction order was also operating. The facts of this case are different. In present case, the possession could not be and was not taken until 11-3-2003 for the reasons discussed earlier, therefore, the said judgment would not help the appellant. Further, in the facts of present case, it cannot be overlooked that after the rendition of the award by L.A.O., the appellant-claimant had, on one hand, initiated proceedings under Sec. 18 of the Act for demanding higher compensation and• on the other hand proceedings before the small cause Court and the High Court were also initiated ,by the appellant and the tenant respectively and the proceeding before High Court was pending as a result of which the acquiring body, even otherwise, could not take possession of the land in question, due to circumstances and facts beyond its control. 30. Our view and conclusion that interest would become payable if the compensation is not paid/deposited at the time of taking possession, is fortified by the observation of the Hon'ble Supreme Court in the case between D-Block Ashok Nagar (Sahibabad) Plot Holders Association v. State of U.P. & Ors., AIR 1997 SC 2981 wherein, the Apex Court has observed that : " ..... The liability to pay interest arises only when the Land Acquisition Officer takes possession of the land after the award comes to be made. The liability to pay interest arises only when the Land Acquisition Officer takes possession of the land after the award comes to be made. It is stated on behalf of the Parishad that the possession of an extent of only 9.2 acres of land alone was delivered and the rest of the land has not been delivered. In view of the fact that the liability to pay the interest arises only from the date of taking possession and as it is claimed that the entire extent of the land has not been given possession, the Land Acquisition Officer is directed to determine as to what extent of the area possession of which has been given after the award; for those claimants whose lands have been taken possession, interest shall be calculated as per the award from the date of taking possession till date of deposit and interest shall accordingly be deposited within a period of six months from the date of the receipt of the judgment. " (Emphasis supplied) 31. In the case between Shri Kishan Das v. State of U. P., AIR 1996 SC 274 wherein notification under Sec. 4 of the Act was published on 29-9-1976 and declaration under Sec. 6 was made on 30-9-1976 and where the Government had exercised powers under Sec. 17(4) of the Act, the Apex Court considered the claim for interest by the appellant therein in backdrop of the fact that the exercise of powers under Sec. 17(4) were challenged. In the said case, the relevant observations of the Hon'ble Apex Court are in Paras 3 and 4. The relevant observations read thus : "3. ..........Sec. 34 of the Act obligates the State to pay interest from the date of taking possession under the unamended Act @ 6 per cent and after the Amendment Act 68 of 1984 at different rates mentioned therein........ 4. .......... Under these circumstances, the liability to pay interest would arise when possession of the acquired land was taken and the amount was not deposited....... " (Emphasis supplied) In this context, it deserves to be recalled that in present case, the first instalment was deposited on 6-12-1996 and the second instalment was deposited on 16-7 -1998. 4. .......... Under these circumstances, the liability to pay interest would arise when possession of the acquired land was taken and the amount was not deposited....... " (Emphasis supplied) In this context, it deserves to be recalled that in present case, the first instalment was deposited on 6-12-1996 and the second instalment was deposited on 16-7 -1998. Thus, in view of the observations by the Apex Court in the aforesaid case of Shri Kishan Das, AIR 1996 SC 274 , the liability to pay interest would arise when the possession of the acquired land is taken and the amount is not deposited. 32. In our view, even the provisions under the Interest Act, 1978 will not help the appellant because ordinarily when specific and special provision regarding liability to pay interest is made under Special Act, the obligation will have to be discharged as per the said provision. Further, the liability and obligation to pay interest under the provisions of Interest Act arises only when any "debt" which had to be discharged, is not discharged. "Debt", as per Sec. 2(c) of the Interest Act, 1978 means any liability for an "ascertained sum". As noticed earlier, Sec. 34 provides that if "such compensation is not paid or deposited on or before taking possession of the land", which means that Sec. 34 contemplates obligation to pay or deposit "compensation" on or before taking possession and not when the award is passed and then the said Section proceeds to impose the liability to pay interest at specified rate if at the time taking possession the "compensation" is not paid or deposited. Hence, ordinarily the failure to pay/deposit "compensation" would acquire the status and character of "debt" when (a) amount payable towards "such compensation" (which includes the amount determined by Court under Secs. 23(1A) and 23(2) of the Act) is ascertained; and (b) "such compensation" is not paid/deposited even when (i.e. at the time of or before taking possession), possession is taken. 32.1. If the contention and claim of the appellant were to be accepted, then it would render the provision under Secs. 28 and 34 otiose and nugatory and will also militate against the scheme of the statute. In the result, we find no error in the decision of the Reference Court of not granting interest from the date of award. 32.1. If the contention and claim of the appellant were to be accepted, then it would render the provision under Secs. 28 and 34 otiose and nugatory and will also militate against the scheme of the statute. In the result, we find no error in the decision of the Reference Court of not granting interest from the date of award. We are not inclined to accept the contentions and this claim of the appellant and the same is hereby rejected. ORDER 33. As an upshot of the foregoing discussion, except so far as the claim for additional compensation for construction (godowns) is concerned, the appeal does not deserve to be accepted. The appeal is accordingly partly allowed only to the extent of claim for construction as indicated in Para 19 above, other claims are, however, rejected. The other directions for additional price and solatium etc. are not disturbed. We have been informed that the amount was deposited by the acquiring body. If the amount is not withdrawn by and paid to the appellant, the Reference Court shall make necessary order for payment of the amount to the appellant after due and proper verification. With the aforesaid directions, the appeal is disposed of.