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Madhya Pradesh High Court · body

2016 DIGILAW 794 (MP)

M. P. Housing Board v. Jabbar

2016-09-08

J.P.GUPTA

body2016
ORDER : J.P. Gupta, J. This appeal under section 54 of the Land Acquisition Act read with section 96 of the Code of Civil Procedure has been filed against the judgment dated 1.11.2001 passed by the II Addl. District Judge, Khandwa, in Land Acquisition Case No.95/2001, arising out of Reference Application filed under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') against the award dated 20.3.1990 passed by the Land Acquisition Officer, Khandwa, in Revenue Case No. 1A/82/89-90. 2. In brief, the relevant facts of the case are that the respondents were the owners of land bearing Survey Nos. 260/1, 260/2, 260/3, 260/4, total area 20 acres, situated at village Khandwa Taraf Mankar, District Khandwa, which was acquired by the appellant for construction of houses by a notification published in official gazette dated 17.11.1989 under section 4(1) and 17 of the Land Acquisition Act and the Land Acquisition Officer passed an award on 20.3.1990 in which market value of the land was determined at the rate of Rs.42,250/- per acre and compensation was awarded accordingly along with other statutory benefits. The award was challenged by the respondents by submitting an application under section 18 of the Land Acquisition Act before the Collector, which was referred to the District Court, Khandwa, in which respondents claimed that the market value of the acquired land fixed by the Land Acquisition Officer is very less. The acquired land is situated in the residential area and it is also acquired for the construction of the houses, therefore, it has the potentiality of being used for construction of houses. Its market value should have been determined at the rate of Rs.90,000/- per acre. Accordingly, with all statutory benefits, an award for compensation be passed. 3. On behalf of the appellant, it was stated that compensation determined by the Land Acquisition Officer is proper and does not require any interference. 4. Learned court below after recording the evidence passed the impugned judgment holding the market price of the land at the rate of Rs.52,000/- per acre. Accordingly, revised the total value of the land and directed to pay the amount of compensation along with other statutory benefits. Against the aforesaid judgment, appellant has filed this appeal. 5. Learned counsel for the appellant submitted that the impugned judgment is contrary to law. Accordingly, revised the total value of the land and directed to pay the amount of compensation along with other statutory benefits. Against the aforesaid judgment, appellant has filed this appeal. 5. Learned counsel for the appellant submitted that the impugned judgment is contrary to law. The learned court below has enhanced the amount of compensation in arbitrary manner without considering the pleadings, evidence and the law. It is also submitted that the application for reference was time barred as per law which cannot be accepted for consideration. Similarly, the amount of compensation passed by the Land Acquisition Officer was received by the respondents without any protest; therefore, they have no right to make reference under section 18 of the Land Acquisition Act. Hence, the impugned order be set aside and the appeal be allowed. 6. On behalf of the respondents, it is submitted that the appeal is groundless. The compensation determined by the Reference Court is not on higher side. It requires enhancement in view of the evidence adduced by the respondents and the compensation was received under protest. Filing of application under section 18 for reference is itself an evidence to show that the compensation was received under protest. Similarly, the objection that the reference application was time barred is also not correct as the award was passed on 20.3.1990 by the L.A.O. and the application under section 18 for reference was submitted on 25.4.1990, which is also clear from the endorsement of the Receiving Officer of the application. Accordingly, the application was submitted within six weeks from the date of award. Hence, the appeal is liable to be dismissed. 7. On behalf of the respondents an application under Order 41, Rule 3 C.P.C. is also filed stating that by the impugned order learned court below has awarded interest on the enhanced amount of compensation from the date of impugned judgment, i.e. 1.11.2001, while as per law it should have been awarded from the date of taking possession of the acquired land, i.e. 22.1.1990. This mistake is glaring and apparent on the face of record, hence, it be corrected by the appellate court under the aforesaid provisions. In this regard, he has placed reliance upon the judgment of the apex court in the case of Shree Vijay Cotton and Oil Mills Ltd. v. State of Gujarat, AIR 1991 SC 656 . 8. This mistake is glaring and apparent on the face of record, hence, it be corrected by the appellate court under the aforesaid provisions. In this regard, he has placed reliance upon the judgment of the apex court in the case of Shree Vijay Cotton and Oil Mills Ltd. v. State of Gujarat, AIR 1991 SC 656 . 8. Having considered the contention advanced by learned counsel for the parties and on perusal of the record in this case following questions arise for determination :- (i) Whether, the application under section 18 of the Land Acquisition Act made by the respondents for reference to the District Judge against the award is time barred ? (ii) Whether the respondents have received the compensation amount without protest and, therefore, the respondents have no right to challenge the award ? (iii) Whether the market value of the acquired land determined by the lower court at the rate of Rs.52,000/- per acre is arbitrary and require any interference ? (iv) Whether the respondents are entitled to get the interest on the enhanced amount from the date of taking possession of the acquired land instead of the date of impugned judgment ? (v) Whether this court in absence of cross appeal or cross objection can modify the impugned judgment accordingly for granting the aforesaid relief in favour of the respondents ? (vi) Relief and cost ? 9. Question No.1 : On perusal of record it is found that the objection regarding not filing of the application under section 18 of the Act within time by the respondents is against the record as the endorsement of receiving the application shows that the application was received on 25.4.1990 in the office of the Collector, Khandwa, and the L.A.O. passed the award on 20.3.1990. Therefore, the application under section 18 of the Act was filed within the prescribed time period, i.e. six weeks, as per the proviso (a) of sub clause (2) of section 18 of the Act. Hence, it is determined that the application under section 18 of the Act was filed within time. Question No.1 is answered accordingly. 10. Therefore, the application under section 18 of the Act was filed within the prescribed time period, i.e. six weeks, as per the proviso (a) of sub clause (2) of section 18 of the Act. Hence, it is determined that the application under section 18 of the Act was filed within time. Question No.1 is answered accordingly. 10. Question No.2 : Learned counsel for the appellant has vehemently contended that the respondents received the compensation amount without protest, hence they have no right to challenge the award passed by the L.A.O. by making an application under section 18 of the Act for reference to the Civil Court. In this regard, he has placed reliance on the judgment of the apex Court in the case of Ashwani Kumar Dhingra v. State of Punjab, AIR 1992 SC 974 : 1992(2) SCC 592 , in which the validity of proceeding of acquisition was under consideration. The apex court observed in para 10 of the judgment as under :- "10. The acceptance of compensation under protest was not done by the appellant with a view to safeguard his right to challenge the acquisition itself but to safeguard his right to require the matter being referred by the Collector for determination of the Court in relation to the matters mentioned in Section 18 of the Land Acquisition Act. It is clear from the provisions of Section 18 of the Land Acquisition Act that the person interested, in order to enable him to seek the remedy of reference can do so only if he does not accept the Award. In order to show that the person concerned had not accepted the Award the claimants accept the compensation only under protest because once the compensation awarded in pursuance of the Award is accepted without protest the person concerned may lose his right of a reference for various matters mentioned in Section 18 of the Land Acquisition Act. 11. On the other hand, learned counsel for the respondents has placed reliance on the judgment of the Apex court in the case of Ajit Singh and others v. State of Punjab and others, (1994)4 SCC 67 , wherein it is observed that inasmuch as the appellants have filed an application for reference under section 18 of the Act that will manifest their intention. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. Therefore, the protest against the award of the Collector is implied notwithstanding the acceptance of compensation. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the applicant. Relying on the aforesaid judgment, this Court in the case of Bhagwati Bai and others v. State of M.P. and another, 2004(3) MPLJ 200 , has held that there is no prescribed mode under section 18 of the Act in which method protest should be lodged. Intention has to be gathered from the conduct even if the application has been filed for seeking reference is enough to show the protest. Therefore, the Additional District Judge has gravely erred in law in dismissing the reference on the ground of maintainability. 12. This Court in the case of Kabul Singh v. State of M.P., 2012(4) MPLJ 61 , has held that on the hyper-technical reasons of an express protest not being made, the State cannot deny the land owner the right to seek reference to the Civil Court for a reasonable compensation. Fair administration of the State demands that they bestow objection approach to such a situation and that they shall not deprive the citizen of their property just for hyper-technical reasons. The question whether the protest was express or implied did not fall for consideration before the court. Section 31(2) of the Act envisages no particular form of protest. Protest has to be implied in the facts and circumstances of each case. Mere acceptance of the compensation does not deprive the appellants to lodge a protest by way of seeking a reference. Even oral protest by itself is sufficient. 13. Recently, hon'ble the Apex Court in the case of V. Chandrashekharan v. Administration of land Acquisition Officer, (2012)12 SCC 133 , held that though accepting compensation under protest is precondition of reference; but reference to court implies that award was not accepted. 14. Even oral protest by itself is sufficient. 13. Recently, hon'ble the Apex Court in the case of V. Chandrashekharan v. Administration of land Acquisition Officer, (2012)12 SCC 133 , held that though accepting compensation under protest is precondition of reference; but reference to court implies that award was not accepted. 14. In view of the aforesaid judgment of the apex Court and of this court, learned counsel for the respondents submits that even there is no specific proof on record that whether the amount was received under protest or not, the facts that the respondents submitted the application under section 18 of the Act for reference is itself a circumstance which show impliedly that the amount of compensation was received under protest, hence on the aforesaid ground the respondents cannot be deprived to exercise their right to challenge the award passed by the L.A.O. The judgment relied by learned counsel for the appellant in the case of Ashwani Kumar Dheengra (supra) has no application to the facts of the present case, because in the aforesaid judgment it is only laid down that in order to enable to seek the remedy of reference, receiving of compensation under protest is must. But, how protest to be made, it was not considered and in other judgments mentioned hereinbefore, it is considered that protest may be impliedly and filing of application under section 18 of reference is also a circumstance to show that the compensation was received under protest and the person cannot be deprived of their right to get determined the appropriate compensation of his property merely on the hyper technical ground as the person has not expressed his protest expressly in writing. 15. In view of the aforesaid discussion, the objection raised by the appellant has no force, hence it is rejected and it is held that the reference application under section 18 is maintainable and the compensation amount was received by the respondents under protest as they have submitted reference application under section 18 of the Act, which impliedly show their protest. Accordingly, question no.2 is answered. 16. Question No. 3 : The market value of the acquired land enhanced by the learned reference court by determining at the rate of Rs.52,000/- per acre in place of Rs.42,250/- per acre. Accordingly, question no.2 is answered. 16. Question No. 3 : The market value of the acquired land enhanced by the learned reference court by determining at the rate of Rs.52,000/- per acre in place of Rs.42,250/- per acre. On perusal of the record, particularly, the statements of respondents Jabbar, PW1 and Abid Ali, PW3 and sale-deed, Ex.P/2, it is apparent that Abid Ali, PW3 has sold his land situated near the acquired land on 28.4.1989 vide sale-deed, Ex.P/2 whereby he sold his 1.6 acres land for Rs.90,000/-. Accordingly, the per acre rate comes to near about Rs.85,000/- and the learned lower court has determined the market value of the acquired land only Rs.52,000/- per acre. 17. Looking to the aforesaid evidence, learned counsel for the appellant with all fairness did not give much emphasis to consider his objection regarding the value of the land. Hence, it is held that the market value of the acquired land fixed by the learned court below is not excessive and does not require any interference. Therefore, the same is affirmed and question no.3 is answered accordingly. 18. Question No. 4 & 5 : In this case on behalf of the respondents, an application under Order 41, Rule 33 C.P.C. has been filed praying that the respondents are entitled to get interest under section 34 of the Act from the date of taking possession of the land. Similarly, on the enhanced amount under section 28, he has also a right to get the interest from the date of taking possession; but the learned court below without giving any reason awarded the interest from the date of the impugned judgment. Hence, the impugned judgment be modified directing the appellant to pay the interest on the enhanced amount from the date of possession instead of the date of impugned judgment. 19. Learned counsel for the appellant has placed reliance on the judgment of the Apex Court in the case of Shree Vijay Cotton and Oil Mills Ltd. (supra), in which it is held that the interest under sections 28 or 34 of the Act is added to the compensation amount to make it a consolidated award. The cost and interest under the Act, if not awarded by the court below can always be awarded by the higher court in any proceeding under the Act and to any party entitled to the same under the Act. The cost and interest under the Act, if not awarded by the court below can always be awarded by the higher court in any proceeding under the Act and to any party entitled to the same under the Act. We are of the opinion that it was not necessary for the respondent claimant to have filed separate appeal/cross objection before the High Court for the purpose of claiming interest under section 28 or 34 of the Act. He could claim the interest in the State appeal. 20. Learned counsel for the appellant has contended that as the respondents have not filed cross objection or cross appeal, therefore, they are not entitled to pray for aforesaid modification in the impugned judgment. But, this contention has no force in view of the law laid down by the apex court in the case of Shree Vijay Cotton and Oil Mills Ltd. (supra), and in the interest of justice, this court can pass an order of modification as sought by the respondents. The provisions of section 28 of the Act reads as under :- 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 per centum] 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 per centum 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. 21. 21. According to the aforesaid provision, the respondents are entitled to get interest on the enhanced amount from the date of taking possession, which is 22.1.1990, and the learned court below has not mentioned any reason for granting the interest from the date of the impugned judgment. It reflects that the learned court below has not applied its mind to fix the date for passing the order regarding grant of interest. Therefore, the impugned judgment requires modification. Accordingly, questions no.4 and 5 are also answered. 22. Question No. 6 : In view of the aforesaid discussion and the findings on the aforesaid questions, the appeal filed by the appellant has no substance, hence it is dismissed. So far as the prayer made by the respondents in exercise of power vested under Order 41, Rule 3 C.P.C. is concerned, this court directs the Collector concerned that on the enhanced amount of compensation interest be paid as per the direction of the lower court under section 28 of the Act from the date of taking possession, i.e. 22.1.1990, and the impugned judgment be deemed to be modified accordingly. 23. No order as to cost.