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2012 DIGILAW 2083 (BOM)

State Of Goa v. Communidade of Pilerne

2012-10-30

A.P.LAVANDE, U.V.BAKRE

body2012
Judgment A.P. Lavande, J. 1. By this appeal, the appellants take exception to the judgment and decree dated 15/11/2006 passed by Ad hoc Additional District Judge-I, at Panaji in Civil Suit No.272/2004 by which the suit filed by the respondent herein has been decreed. The appellants are the defendants in the above suit filed by the respondent for recovery of an amount of Rs.48,79,925/-with further interest at the rate of 15 % p.a. from 15/03/2002 till actual payment. The parties shall hereinafter be referred to as per their status before the trial Court. 2. The plaintiff filed the above suit for recovery of the amount by way of interest under Section 34 of the Land Acquisition Act ('the Act' for short). An area admeasuring 290350 square metres bearing Survey No.85/Part situated at Marra village of Bardez Taluka was acquired by defendant no.1 for public purpose i.e. setting up of industrial estate. The acquisition was for the benefit of Goa Daman and Diu Industrial Development Corporation, Panaji for setting up an industrial estate. By award dated 06/08/1993, defendant no.2 fixed the market rate of the acquired land at the rate of Rs.10/-per square metre. Though in the award, defendant no.2 awarded the entire compensation in favour of the plaintiff, defendant no.2 did not disburse the compensation to the plaintiff on the ground that the lands allotted to the tenants had not been demarcated and surveyed separately in their names and also on the ground that the names of the tenants were not removed from survey records. He, therefore, ordered that the amount of Rs.39,94,106/-be kept in revenue deposit till formalities are completed by the Communidade and a clear title was made out by the plaintiff. By lawyer's notice, plaintiff submitted to defendant no.2 a copy of the judgment dated 19/01/1999 passed in Civil Suit No.111/1998/SR, a copy of the judgment and decree dated 20/11/1992 passed by the Mamlatdar, Bardez Taluka and also a copy of the order dated 18/02/1998 passed by the Deputy Collector bringing to the notice of defendant no.2 that all the formalities as required in the award dated 06/08/1993 were completed and the plaintiff had clear title in their favour in respect of the acquired land. The plaintiff called upon defendant no.2 to release compensation to the plaintiff along with the interest as permissible under Act. The plaintiff called upon defendant no.2 to release compensation to the plaintiff along with the interest as permissible under Act. Thereafter, there was correspondence between plaintiff and the defendant & ultimately by order dated 27/06/2001, defendant no.2 directed that the entire compensation amounting to Rs.39,94,106/-in respect of the acquired land be paid to the plaintiff. The said amount was paid to the plaintiff by cheque dated 06/12/2001 which was handed over to the plaintiff on 15/03/2002. The plaintiff accepted the said compensation on 15/03/2002 under protest, without prejudice to its contention that it was also entitled to interest on the said amount. Thereafter, the plaintiff gave lawyer's notice dated 22/07/2002 under Section 80 of C.P.C. calling upon the defendants to pay the interest on the said amount of Rs.48,79,925/-by way of interest under Section 34 of the Act. Since defendants did not pay the amount, the plaintiff filed the suit for recovery of the amount on 30/06/2004. 3. On behalf of the defendants, written statement was filed, inter alia, contending that the suit did not disclose any cause of action and that the suit was barred by limitation. The defendants also claimed that the plaintiff had no title to the acquired land. 4. On the basis of the pleadings of the parties, the following issues were framed : “1. Whether plaintiffs prove that the defendants are liable to pay interest to the plaintiffs on rupees 39,94,108/-at the rate of 9% p.a. from 21/1/1993 to 20/1/1994 and at the rate of 15 % p.a. from 21.1.94 till 15.3.2002 ? 2. Whether the plaintiffs prove that plaintiffs are entitled to an interest at the rate of 15 % p.a. on sum of Rs.48,79,925/-from 15.3.2002 till actual payment ? 3. Whether defendants prove that amount of compensation has been wrongly paid to the plaintiffs ?” 5. The plaintiff examined two witnesses namely PW1 Anthony Correia, who was past President of the plaintiff & PW2 Francis Cosmos Fernandes, the attorney of the Communidade. The defendants did not lead any evidence. By judgment and decree dated 15/11/2006, the trial Court decreed the suit. 6. Mr. Rodrigues, learned Additional Government Advocate appearing on behalf of the appellants / defendants submitted that the suit filed by the plaintiff was not maintainable inasmuch as under the Act, no suit is maintainable to claim any relief available under Act. Mr. By judgment and decree dated 15/11/2006, the trial Court decreed the suit. 6. Mr. Rodrigues, learned Additional Government Advocate appearing on behalf of the appellants / defendants submitted that the suit filed by the plaintiff was not maintainable inasmuch as under the Act, no suit is maintainable to claim any relief available under Act. Mr. Rodrigues further submitted that the suit filed by the plaintiff on 30/06/2004 for recovery of the amount was clearly barred by limitation and as such, the decree passed by the trial Court is liable to be set aside. In support of his submissions, Mr. Rodrigues relied upon the judgment of the Apex Court in the case of LaxmiChand and another Vs. Gram Panchayat Kararia and others; AIR 1996 SC 523 and unreported judgment of this Court dated 05/08/2010 in Writ Petition No.294/2008. 7. Per contra, Mr. Nadkarni, learned Advocate appearing on behalf of the respondent/ plaintiff submitted that the suit filed by the plaintiff for recovery of an amount due by way of interest under Section 34 of the Act was clearly maintainable and was not barred under the provisions of the Act. Mr. Nadkarni further submitted that Civil Court had jurisdiction to entertain the suit for recovery of an amount due by way of interest inasmuch as it is the statutory liability of the defendants to pay the amount by way of interest under Section 34 of the Act, since when the possession of the land was taken, the amount due in terms of the award, was neither paid nor deposited and as such, the defendants are liable to pay the interest under Section 34 of the Act. Mr. Nadkarni invited our attention to Section 52 of the Act and submitted that the said provision makes it clear that the suit is maintainable if cause of action arises under the Act. In support of his submissions, Mr. Nadkarni relied upon the following judgments : “(i) Lila Ghosh (Smt) (Dead) Through LR. Tapas Chandra Roy Vs. State of W.B.; (2004) 9 SCC 337 . (ii) Executive Engineer, Osmanabad Medium Project, Osmanabad Vs. Bhagwan s/o. Yashwanta Kulkarni and another; (2009)4 Mh.L.J. 593 . (iii) Vasant Balkrishna Wale Vs. Vithal Mahadeo Deshmukh and others; 2005(4) Mh.L.J. 957 . (iv) The Punjab State Vs. Jhandu Lal & others; ILR (1967)2 Punjab and Haryana 649”. 8. Tapas Chandra Roy Vs. State of W.B.; (2004) 9 SCC 337 . (ii) Executive Engineer, Osmanabad Medium Project, Osmanabad Vs. Bhagwan s/o. Yashwanta Kulkarni and another; (2009)4 Mh.L.J. 593 . (iii) Vasant Balkrishna Wale Vs. Vithal Mahadeo Deshmukh and others; 2005(4) Mh.L.J. 957 . (iv) The Punjab State Vs. Jhandu Lal & others; ILR (1967)2 Punjab and Haryana 649”. 8. We have carefully considered the rival submissions, perused the record and the judgments relied upon. 9. In view of the rival submissions, the following points arise for determination in the appeal : “(i) Whether the suit filed by the respondent was maintainable ? (ii) Whether the suit filed by the respondent was barred by limitation ?” 10. In order to appreciate the rival contentions, it would be appropriate to quote sections 31, 34 and 52 of the Act upon which reliance has been placed by Mr. Nadkarni, learned Counsel for the respondent. They read thus : “31. Payment of compensation or deposit of same in Court – (1) On making an award under section 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 be 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 Section 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 Section 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 subsection 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. 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 per centum 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 per centum 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. 52. Notice in case of suits for anything done in pursuance of Act. -No suit or other proceeding shall be commenced or prosecuted against any person for anything done in pursuance of this Act, without giving to such person a month's previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends”. 11. We shall deal with the judgments relied upon by both sides. 12. In the case of Lila Ghosh (supra), the Apex Court has held that interest in terms of Section 34 of the Act is payable if the compensation payable has not been paid or deposited before taking possession. 11. We shall deal with the judgments relied upon by both sides. 12. In the case of Lila Ghosh (supra), the Apex Court has held that interest in terms of Section 34 of the Act is payable if the compensation payable has not been paid or deposited before taking possession. In terms of subsection (2) of Section 31 of the Act in case of any dispute as to the title to receive the compensation or as to apportionment of it, the Collector is bound to deposit the amount of compensation in the Court to which reference under Section 18 of the Act would be submitted. Interest under Section 34 of the Act starts running from the date the compensation is payable. “In the case of Jhandu Lal (Supra), the learned Single Judge of Punjab High Court upon consideration of sections 28, 32 and 34 of the Act as existing then, held that upon plain reading of these provisions, it is evident that the deposit has to be made in terms of Section 31(2) of the Act to the Court to which reference lay, if made under Section 18 of the Act. The Punjab High Court has further held that such a deposit has to be made even if no reference is actually made. It is pertinent to note in the said case that the deposit was made by the Land Acquisition Officer in the Government treasury. But the Punjab High Court has held that the Legislature intended that the deposit ought to be made in the Reference Court and not in the Government treasury and if deposit is not made in the Reference Court, the interest will not cease to run and interest would cease to run only if the deposit is made in the Reference Court. In the case of Bhagwan Kulkarni (Supra), the learned Single Judge of this Court after considering the several judgments of the Supreme Court and this Court has held that a suit simpliciter for recovery of the amount due by way of interest under Section 34 of the Act is maintainable under Section 9 of C.P.C. and such a suit is not barred. In the case of Vasant Wale (Supra), the Division Bench of this Court has held that writ of mandamus would be maintainable against the Collector for payment of interest under Section 34 of the Act. In the case of Vasant Wale (Supra), the Division Bench of this Court has held that writ of mandamus would be maintainable against the Collector for payment of interest under Section 34 of the Act. The Division Bench has held that it is the statutory obligation of the Collector to pay interest in terms of Section 34 of the Act and it is not necessary for person interested to make any demand for the same. The Division Bench has also held that availability of remedy by way of an appeal would not bar the claimant from approaching the High Court under Article 227 of the Constitution of India. In the case of Laxmi Chand (Supra), relied upon by Mr. Rodrigues, the Apex Court has held that a suit to challenge the land acquisition proceedings under the Act was not maintainable and only remedy available to aggrieved person is to approach the Constitutional Court i.e. the High Court or the Supreme Court. The ratio of the said judgment does not advance the case of the appellants/ defendants inasmuch as in the present case, what is claimed is the amount by way of interest under Section 34 of the Act & challenge is not to the acquisition proceedings. The judgment of Division Bench of this Court in the case of Pilerne Citizens Forum (Supra), does not advance the case of the appellants. In the said case, the Division Bench of this Court was dealing with the allotment of lands of Communidade of Pilerne contrary to the provisions of Code of Communidade. In the said judgment, this Court has held that once the land was vested in a tenant in terms of 5th amendment to Agricultural Tenancy Act, there was no question of giving up of tenancy by the deemed purchaser. Having regard to the factual and legal aspects considered in the aforesaid judgment, the same does not advance the case of the appellants”. 13. Section 52 of the Act relied upon by Mr. Nadkarni provides that no suit or proceeding shall be commenced or prosecuted against any person for anything done in pursuance of the Act, without giving to such person a month's previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends. We find merit in the submission of Mr. Nadkarni provides that no suit or proceeding shall be commenced or prosecuted against any person for anything done in pursuance of the Act, without giving to such person a month's previous notice in writing of the intended proceeding, and of the cause thereof, nor after tender of sufficient amends. We find merit in the submission of Mr. Nadkarni that Section 52 of the Act contemplates a suit or other proceeding against the authority under the Act if cause of action arises under the Act. No doubt, the Apex Court has clearly held that the land acquisition proceedings initiated under the Act by issuing notifications under Sections 4 and 6 cannot be challenged by filing a suit since the Act is Code by itself and only remedy available to such aggrieved persons is to approach the Constitutional Courts i.e. the High Court or the Supreme Court. But in our considered view, the suit to recover the amount by way of interest in terms of Section 34 of the Act is clearly maintainable under Section 9 of C.P.C. We are in respectful agreement with the view taken by the learned Single Judge in the case of Bhagwan Kulkarni (Supra). In the present case, admittedly, appellant no.2/ defendant no.2 did not deposit the amount in the Reference Court after making the award. Indisputably, the Land Acquisition Officer in the award dated 06/08/1993 awarded total compensation in favour of the plaintiff, but refused to disburse the compensation in view of the fact that the lands allotted to the tenants were not demarcated and their names were not removed from the survey records. There is no serious dispute that thereafter the plaintiff produced several documents in support of its contention that separate portions of lands were allotted to the tenants and the acquired lands were given separate survey numbers and being satisfied with the same, the Land Acquisition Officer by order dated27/06/2001 ordered that the compensation of Rs.39,94,106/-be paid to the plaintiff and the said amount was paid vide cheque dated 06/12/2001 which was handed over to the plaintiff on 15/03/2002. There is no serious dispute that the plaintiff accepted the said compensation under protest & without prejudice to its contention that it was entitled to interest on the said amount. There is no serious dispute that the plaintiff accepted the said compensation under protest & without prejudice to its contention that it was entitled to interest on the said amount. This being the position, in our considered view, the suit filed by the plaintiff for recovery of the amount due by way of interest in terms of Section 34 of the Act is maintainable. 14. Insofar as the issue of limitation raised on behalf of the appellants/ defendants is concerned, indisputably, the Land Acquisition Officer by order dated 27/06/2001 ordered that the entire compensation be paid to the plaintiff & pursuant there to, a cheque dated 06/12/2001 was issued which was handed over to the plaintiff on 15/03/2002. The suit was filed on 30/06/2004. As such, it is evident that the suit was filed within three years of the cause of action. Therefore, we hold that the suit filed by the respondent was within the period of limitation. 15. Having answered both the points for determination against the appellants/ defendants, the necessary sequitur is that the appeal is without any merit & as such, liable to be dismissed. 16. In the present case, liability to pay the amount by way of interest under Section 34 of the Act on the part of the appellants/ defendants has arisen on account of the fact that the Land Acquisition Officer did not think it appropriate to deposit the compensation in the Reference Court but kept it under revenue deposit. In terms of Section 31(2) of the Act, the Land Acquisition Officer ought to have deposited the compensation in the Reference Court, once he decided not to release the compensation in favour of the plaintiff after holding that the compensation was payable to the plaintiff. Had the Land Acquisition Officer deposited the compensation in the Reference Court, the appellants would not have been liable to pay to the plaintiff the amount denied which is quite substantial. No doubt, in the present case, the ultimate liability to pay the amount is on the Goa Industrial Development Corporation since the acquisition was for the benefit of the said Corporation. No doubt, in the present case, the ultimate liability to pay the amount is on the Goa Industrial Development Corporation since the acquisition was for the benefit of the said Corporation. We, therefore, deem it appropriate to send a copy of the judgment to Chief Secretary, Government of Goa so that in future the Land Acquisition Officers dealing with such cases take appropriate steps and deposit the compensation payable in the Reference Court thereby avoiding liability of the State Government to pay the interest under Section 34 of the Act. We expect the Chief Secretary to circulate a copy of the judgment to all the Land Acquisition Officers in the State of Goa. 17. In view of the above discussion, we do not find any merit in the appeal. Consequently, the appeal stands dismissed. However, the parties are directed to bear their own costs.