Himachal Pradesh High Court
State Of Himachal Pradesh vs Roshan Lal on 28 July, 1988
Equivalent citations: AIR1989HP67
JUDGMENT V.K. Mehrotra, J.
1. Some Property belonging to Roshan Lal, resident of village Sothal, Tikka Mann, was acquired under the provisions of the Land Acquisition Act, 1894, (for brief, "the Act"), for construction of Pong Dam over river Beas at Talwara. An award was made by the Land Acquisition Collector on May 25, 1971. The claimant was not satisfied with the amount awarded and sought a reference under Section 18 of the Act. The reference came to be decided by the learned Addl. District Judge on Dec. 18, 1973, The amount of compensation was enhanced at the rates mentioned in the order of the learned Judge. It was also directed that 15% by way of solatium for compulsory nature of the acquisition and interest at the rate of 6% per annum on the enhanced amount of compensation from the date of the Collector's award till the date of payment was also payable to Roshan Lal.
2. Feeling aggrieved by the enhancement in compensation, the State of Himachal Pradesh filed Regular First Appeal No. 48, of 1974 in this Court. The claimant, namely, Roshan Lal, filed a cross-objection. It appears that when the first appeal was heard and decided by this Court by its judgment dated Dec. 26, 1977, the fact that a cross-objection had been filed by Roshan Lal was not brought to the notice of the Court. Later, Roshan Lal made an application in this Court that the cross-objection be also heard and disposed of. On direction to that effect the cross objection was kept alive for decision. It has now come up before us for disposal.
3. Several grounds have been mentioned in the cross-objection. However, what has been urged before us by the learned counsel for Roshan Lal is that interest oh the amount of compensation from the date of Notification under Section 4 of the Act should have been allowed to Roshan Lal. This amount has been quantified at Rs. 12,500/-.
4. The claim aforesaid is sought to be founded by the learned counsel upon the provisions of Section 23(1-A) of the Act as introduced in the Act by the Land Acquisition Amendment Act, 1984 (Act 68 of 1984). Section 23(1-A) is in the following terms :--
23(1A) in addition to market value of the land, as above provided, the court shall in every case award 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 Section 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation.-- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded."
5. Before dealing with the submission we might notice the relevant part of Section 30 of the Amending Act which reads thus:--
"30. Transitional provisions.-- (1) the provisions of Sub-section (1A) of Section 23 of the principal Act as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,--
(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982, (the date of introduction of, the Land Acquisition (Amendment) Bill 1982, in the House of the people) in which no award has been made by the Collector before that date;
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date whether or not an award has been made by the Collector before the commencement of this Act.
(2) The provisions of Sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of People) and before the commencement of this Act.
(3) The provisions of Section 34 of the principal Act, as amended by Section 20 of this Act, shall apply, and shall be deemed to have applied, also to and in relation to,
(a) every case in which possession of any land acquired under the principal Act had been taken before the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of people), and the amount of compensation for such acquisition had not been paid or deposited under Section 31 of the principal Act until such date, with effect on and from that date; and
(b) every case in which such possession had been taken on or after that date but before the commencement of this Act without the amount of compensation having been paid or deposited under the said Section 31, with effect on and from the date of taking such possession."
6. This Court had occasion to deal with a similar submission in State of H.P. v. Chhaju Ram, (connected with several other first appeals) I.L.R. (1986 Him Pra 657 : (AIR 1987 Him Pra 79). These cases were decided by one of us (V.P. Bhatnagar, J). This is what was said (in paragraph 6 of the report) :--
"the amending Act of 1984 came into force on Sept. 24, 1984 on which date it received the assent of the President and was also published in the Gazette of India, Extraordinary. Sub-section (1) of Section 30 of the said Act pertains to the application of Sub-section (1-A) of Section 23 of the principal Act with retrospective effect. It reads :--
"30. Transitional provisions.- (1) The provisions of Sub-section (1-A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,--
(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), in which no award has been made by the Collector before that date;
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.
It means that the provisions of Section 23(1-A) of the principal Act would apply to all acquisition proceedings which are pending on April 30, 1982 but where Collector has not made his award before that date. The said provisions will also apply to all acquisition proceedings commenced after April 30, 1982. In other words, the provisions of Section 23(1-A) will not apply where Collector has made his award before April 30, 1982 but would apply to all other cases. It means that the respondents in the appeals under consideration are not entitled to the benefit of Section 23(1-A) of the amending Act of 1984 and, therefore, additional amount to be (sic)ted at the rate of 12% on the market- value is not payable to them within the ambit of the said Section because, admittedly, the awards in all these cases were made by the Collector before April 30, 1982".
7. What has been urged with some emphasis before us is that the view taken in the case of Chhaju Ram (AIR 1987 Him Pra 79) requires reconsideration and does not represent the correct position in law. It is urged that on account of Sub-section (2) of Section 30, the provisions of Sub-section (1-A) of Section 23 would also be applicable in those cases where the acquisition probeeding had come to a close by making of the Award prior to April 30, 1982. Reliance has been placed upon some decisions in this respect. The first of these decisions is of the Karnataka High Court in Special Land Acquisition Officer v. Soma Gopal Gowda, AIR 1986 Kant 179. A Full Bench of that Court considered this aspect in para 13 of its judgment. It said :
What remains to be considered is whether the Parliament had intended to restrict the operation of Sub-section (1A) of Section 23 only to matters covered under the transitional provisions to Sub-section (1) of Section 30 of the Amending Act. Mr. Hiremath has strenuously contended for such an interpretation. But we find it hard to accept it. Sub-section (1) of Section 30 of the Amending Act states that Sub-section (1A) of Section 23 shall apply "also to". It means, in addition to. That is in addition to its application to proceedings in Courts, it shall apply and shall be demand to have applied "also to" in relation to specified matters. The specified matters are those provided under Sub-section (1) of Section 30 of the Amending Act, Firstly, it shall apply and shall be deemed to have applied to every proceeding which was pending on April 30, 1982 and in which no award has been made by the Deputy Commissioner before the said date. Secondly, it shall apply to every proceeding for acquisition of any land commenced after April 30, 1982, whether or not an award has been made by the Deputy Commissioner before 24-9-1984. Thus, it has given a limited retrospectively to category of cases specified under Sub-section (1) of Section 30. But that does not mean that Sub-section (1A) of Section 23 has only limited operation. Apart from its general application, it has been expressly made applicable to proceeding before the Deputy Commissioner pending or disposed of between the said two cut-off days. It impliedly provides for re-determination of the award amount even at the hands of the Deputy Commissioner where, the claimant has not sought for a reference to the Court."
8. We find ourselves unable to agree with the statement of law contained in this paragraph. After observing that the Amending Act had given limited retrospectively to the category of cases specified under Sub-section (1), of Section 30, the Bench proceeded to observe that it did not mean that Sub-section (1A) of Section 23 has only limited operation. It said that apart general application, it has been expressly made applicable to the proceedings before the Deputy Commissioner pending or disposed of between the said two cut-off days. It impliedly provides for re-determination of the award amount even at the hands of the Deputy Commissioner where the claimant has not sought for a reference to the Court. We are unable to subscribe to the view endorsed in this observation and find that no reasons have been mentioned by the learned Judges constituting the Full Bench for the view that they have taken in the aforesaid statement.
9. Following the aforesaid judgment, a Full Bench of the Andhra Pradesh High Court held in The Special Deputy Collector, Srisailam project (L.A.), Atmakur v. B. Venkata Seshamma, AIR 1987 Andh Pra 136 that the language of Section 30(1) and Section 23(1A) led to the view that the predominant intention of the Parliament is to award interest in all cases (pending on the date, of enforcement of Act 68 of 1984) decided after the Amending Act is enforced, and further that "though there are indications in Section 23(1-A) and 30 to the contrary, (to repeat) we are satisfied the predominant intention of the Amending Act 68 of 1984 is to award 12% interest in all cases pending before the authorities and Courts irrespective of the fact when Section 4(1) notification was published or when the award was passed......". A perusal of the judgment shows that the learned Judges adopted the reasoning which commended itself to the Judges of the Karnataka High Court in the case of Soma Gopal Gowda (AIR 1986 Kant 179) (FB). We may, however, observe that after recognizing that there are indications to the contrary in Sections 23(1-A) and 30, the Court proceeded, (illegible), to take the view that the provisions of Section 23(1-A) will also apply to the cases where the award had been made before April 30, 1982. To us, it does not appear to be an acceptable view considering the words that were used by the learned Judges in their judgment themselves.
10. The decision of a learned single Judge of the Orissa High Court in Collector, Cuttack v. Smt. Jayasri Debi AIR 1988 Orissa 163, is in line with what has been held by the Full Bench decisions of the Karnataka and the Andhra Pradesh High Courts in the two cases noticed above. We do not find any reason, other than what was mentioned in these two judgments, in this decision. The learned Judge has dissented from the view taken by a Full Bench of the Punjab and Haryana High Court in State of Punjab v. Krishan Lal, AIR 1987 Punj & Har 222. He dissents by saying that ".....Section 30, Sub-section (2) of Act 68 of 1984 has been brought to my notice wherefrom it is stated that the power under Section 30, Sub-section (1) is not confined to be exercised by the Collector only but by any authority including a Court either dealing with the reference or in appeal to add the percentage as indicated under Section 23(1-A) to the market value. This being a provision to give benefit to the claimants who come within its scope, liberal interpretation is to be made so that the benefit is available to the claimants and not to restrict the same.............. The learned Advocate General relied upon the decision reported in AIR 1987 Punj & Har 222 (FB) (State of Punjab v. Krishan Lal) to give a restricted meaning to Section 23(1-A) read with Section 30 of the amending Act. For the reasons indicated earlier, I am inclined to accept the view of the Karnataka and Andhra Pradesh High Courts and I am not able to accept the view of the Punjab and Haryana High Court."
11. Turning now to the decision of the Punjab and Haryana High Court, we find that, after noticing the conflict of views in certain decisions and the relevant statutory provisions, the learned Judges have opinion thus: --
"A perusal of the section clearly shows that newly inserted Sub-section (1A) of Section 23 has been given retrospective operation only in following two classes of cases : --
(1) The cases in which the proceedings were pending on April 30, 1982, and in which no award had been made by the Collector before that date, and (2) The cases in which proceedings for acquisition of land were commenced after April 30, 1982, whether or not the award had been made by the Collector before Sept. 24, 1984.
This provision therefore, applies only to cases falling within two cut-off dates, namely, April 30, 1982, and Sept. 24, 1984, and in which the Collector made his award after April 30, 1982. It certainly does not apply to a case, like the one before us, in which the award of the Collector had been made prior to April 30, 1982. The wordings of Sub-sections (1) and (2) of Section 30 of the Amending Act clearly negative any implication that the Legislature intended to give any retrospective operation, beyond that specified therein, to Section 23(1A) of the Act.
We are, therefore, clearly of the opinion that neither Section 23(1A), by itself, nor it being read along with Section 30 of the Amending Act, enables the applicant to claim the benefit thereunder."
12. They have also considered the views expressed in the Karnataka case and have said (in paragraph 10 of the report) that "the Full Bench eventually came to the conclusion that in cases where the proceedings for determination of compensation were pending either before the original authority or in a Court of reference or appeal on Sept. 24, 1984, the provisions of Section 23(1A) became application and that having regard to the setting in which the sub-section appeared, it could not be said that in such a case it was being given any retrospective operation. There is nothing in this judgment to support the applicant's claim that Sub-section (1A) of Section 23 would, on its own, apply also to proceedings which had been finally concluded before Sept. 24, 1984. This case also does not lay down that in case where the award had been made prior to April 30, 1982, and the proceedings were concluded in between April 30, 1982, and September 24, 1984, the benefit of Sub-section (1A) of Section 23 can be given with the aid of Section 30(1) of the Amending Act."
13. After giving due consideration to the divergent views taken in the aforesaid decisions, we feel that on the clear language of Section 30(1) it cannot be said that the benefit contemplated by Section 23(1A) would also be available in cases where the acquisition proceedings have come to an end by the making of the award by the Collector before April 30, 1982. Holding so, would be straining the language of the statute, and in effect, amount to re-writing the same.
14. The next submission, which was made on behalf of Roshan Lal before us, was that even though no specific plea to that effect has been raised in the cross-objection, the claimant should be held entitled to enhanced amount of solatium at the rate of 30% in terms of Section 23(2) of the Act and interest thereon under Section 28 of the Act. We may only mention that the question whether the claimant would be entitled to the enhanced amount of solatium and interest thereon has been agitated before the Supreme Court and has been heard by a Constitution Bench. This we find observed in Mahabir Prasad Santuka v. Collector, Cuttack, AIR 1987 SC 720 and Munnalal Shivdin Jaiswal v. State of Maharashtra, AIR 1987 SC 1896 by two different Benches of the Supreme Court. The learned Judges of the Supreme Court have observed, in these cases, that if and when judgment is delivered by the constitutional Bench in the matter and the claimants are found entitled to the increased amount of solatium and interest, they would be entitled to receive the same in accordance with law and, as observed in the latter of the two decisions, it will be open to the claimants, like Roshan Lal in the case before us, to apply for review of this order.
15. In conclusion, the cross-objection fails and stands disposed of in the terms aforesaid.
We, however, leave the parties to bear their own costs.