Executive Engineer vs Bhagwan S/O Yashwanta Kulkarni on 21 January, 2009

[Cites 15, Cited by 0]

Bombay High Court

Executive Engineer vs Bhagwan S/O Yashwanta Kulkarni on 21 January, 2009

1. These Second Appeals, being arising out of common judgment of Civil Judge, Senior Division, dt.27.2.2004 and the common order dt.13.10.2008 passed in Miscellaneous Civil Appeal by the learned Principal District Judge, Beed, are heard together.

The parties are referred by their original status.

2. The acquiring body, the Executive Engineer, is in the Second Appeal, to challenge the judgment and decree referred above, whereby invoking provisions of Section 34 of the Land Acquisition Act, the suits of respective plaintiffs for award of interest were decreed.

3. In the award passed in File No.35/LNQ/SR/95 dated 2.7.2001, possession was taken on 1.3.1993, compensation of the land has been actually paid to the plaintiffs on 13.12.2001. It is also not in controversy that the land owners had moved Reference under Section 18 of the Land Acquisition Act and respective References are allowed, award is passed ::: Downloaded on - 09/06/2013 14:16:13 ::: (20) in favour of the land owners/plaintiffs. In the award passed by the Special Land Acquisition Officer, there is no indication of interest. Consequently, the plaintiffs urged the authorities to make payment thereof. Since no heed to the demands was taken, the suits came to be filed by issuing statutory notice of demand.

4. The contesting defendant no.2 challenged the maintainability of the suit and claim that, by virtue of the provisions of Land Acquisition Act and pronouncement of the judgments by the Apex Court, such suit in the Civil maintainable as the procedure envisaged under the Land Court is not Acquisition Act, itself, takes care of all the disputes and controversies. The acquiring body disputed its liability to make payment of interest.

5. The learned Civil Judge, Senior Division, Beed, in the light of respective pleadings, has formulated the issues as under, with the findings recorded against them:

------------------------------------------------------

Sr.No. ISSUES FINDINGS

------------------------------------------------------

1. Is suit tenable for want of In the jurisdiction? affirmative.

2. Do/Does plaintiff/s prove In the that he/they is/are affirmative.

exempted from payment of Court fees on the claim amount though the suit is for recovery of amount?

::: Downloaded on - 09/06/2013 14:16:13 ::: (21)

3. Is suit within limitation ? In the affirmative.

4. Is/are plaintiff/s prove In the that he/they entitled to affirmative, claim interest at the rate with 6% P.A. as of 9 % per P.A. for the future interest.

first year from the date of taking possession and at the rate of 15% p.a. after first year upto the actual payment of compensation amount?

5. What order and relief ? As per final order.

---------------------------------------------------- . Being aggrieved by the said decree, writ petitions were preferred by the acquiring body before this Bench, being Writ Petition Nos.3679 to 3805 of 2006, 15.1.2008 dt.7.4.2006 and were finally disposed with observation that the order impugned is of on appealable before the first appellate Court ( District Court) and the parties are at liberty to file the same.

6. It is in this situation, the acquiring body moved the learned District Judge for taking the appeals by condoning the delay of four years, five months, caused in filing the appeals. The learned Principal District Judge, taking recourse to judgment in the matter of State of Maharashtra & others Vs. Shri Vithu Kalva Gavari & others ( 2008(4) ALL M.R.

856) observed that the delay of more than two years in filing the appeals, on the ground that there was official hassles and, approval at different levels, would not constitute sufficient or reasonable cause to condone the delay, particularly in absence of any ::: Downloaded on - 09/06/2013 14:16:13 ::: (22) other explanation. Even after the directions of the High Court, the appeals were not moved for more than seven months, and learned Judge found that there is no sufficient ground, much less bona fide reason, to condone the delay.

7. In view of dismissal of application, the same can be taken by way of Second Appeal, as settled in the matter of Sheodan Singh V. Daryao Kunwar ( AIR 1966 SC 1332 ) and 2005 (1) Mh.L.J. (SC) ( Shyam Sunder Sarma Vs. Pannalal Jaiswal and others).

8. ig The Counsel for the acquiring body, posed following substantial question of law :

Whether the Civil Court has jurisdiction under Section 9 of C.P.C. to entertain the suit in the matter of acquisition of property by acquiring body, through process of Collector.

In the matter of Achutananda Baidya V. Prafully Kumar Gayen and others ( AIR 1977 SUPREME COURT 2077);

                                                    2077)                             in





     the     matter       of     Leela Nagesh Mandake          and      others        V.

     State      of   Maharashtra and others (               2006(4)         Bom.C.R.

     501)    the Civil Courts powers to challenge acquisition

     was     negatived.              Those    proceedings          revolved           to





     challenge       the       acquisitions and notices              contemplated

     under      Sections 4, 6 or 9 of the Land Acquisition Act.

     In    the matter of S.P.Subramanya Shetty and others Vs.

     Karnataka       State Road Transport Corporation and others

     (    AIR   1997 SUPREME COURT 2076),
                                   2076) it was                      relating         to




                                                       ::: Downloaded on - 09/06/2013 14:16:13 :::
                            (23)
     grant     of     mandatory       injunction    against         the      State,

restraining them from interfering with possession of a party or to denotify acquisition under Section 48 and it was observed, such contentions are not maintainable, in a suit.

9. To revert back to the facts of the present case, the plaintiffs have confined their claims to the extent of grant of interest in terms of Section 34 of the Land Acquisition Act,1894. Section 34 conceives:

"34. 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) 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.)"

. It is, thus, obvious, the Statute obligates on the Collector to pay and arrange to pay interest on the amount awarded at the rate of 9 per centum from the time of so taking possession until it shall have been paid or so deposited and the proviso, as stated above, also contemplates payment of interest for subsequent events. Thus, the language of the Statute unambiguously binds the Collector to comply payment of interest. If the Collector fails to discharge his ::: Downloaded on - 09/06/2013 14:16:13 ::: (24) duties, the aggrieved landholders/claimants cannot be expected to wander and roam again, by taking recourse to Section 18 of the Land Acquisition Act as, such exercise has already been put in force and award for enhanced compensation in favour of the plaintiffs is apparently in subsistence.

10. The bar of Civil Court, in the light of Section 9, as tried to be canvassed to project as substantial question of law, again needs to be considered in the light of the judgment of the Hon'ble Supreme Court in the matter of Dhulabhai, etc. V. COURT 78), State of Madhya Pradesh and another ( AIR 1969 SUPREME

78) the Lordships have observed:

"(1) Where the statute gives a finality to the orders of the special tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

11. To reiterate facts of the present case, it is more than clear that the Collector, being bound, competent and under obligation to order to make payment of interest, in the light of Section 34 of the Act, has obliterated its effect. Therefore, the statutory Authority having not acted in conformity with the principles laid down under the statute, the civil court's jurisdiction, by any implication, shall not be treated as barred.

::: Downloaded on - 09/06/2013 14:16:13 ::: (25)

12. The Hon'ble Supreme Court, in the matter of Abdul Gafur and another Vs. State of Uttarakhand and others ( (2008) 10 SCC 97),

97) decided on August, 11, 2008, taking recourse to the jurisdiction of civil court, as contemplated under Section 9 of C.P.C. have observed in paragraph 16 as under:

" Section 9 CPC provides that the civil court shall have jurisdiction to try all suits of a civil nature excepting the suits of which their cognizance is either expressly or impliedly barred. To put it differently, as per Section 9 CPC, in all types of civil disputes, the civil courts have inherent jurisdiction unless a part of that jurisdiction is carved out from such jurisdiction, expressly or by necessary implication by any statutory provision and conferred on other tribunal or authority. Thus, the law confers on every person an inherent right to bring a suit of civil nature of one's choice, at one's peril, howsoever frivolous the claim may be, unless it is barred by a statute. "

13. The scheme of Land Acquisition Act, to reiterate, in the light of Section 34 thereof will not bar the jurisdiction of the Civil Court to entertain demand of interest.

14. The acquiring body has not challenged the quantum of interest which, they reasonably could not do, in the light of very statutory arrangement contemplated under Section 34 of the Act.

15. The claims are within limitation, as the award is dt.13.12.2001, while the suits are filed on 30th Sept.,2002. The plaintiffs have, before ::: Downloaded on - 09/06/2013 14:16:13 ::: (26) invoking their action, to file the suits, issued statutory notice upon the acquiring body and the defendant, making out their legitimate case. The defendants failed even in responding the notice in any manner. They have not challenged the compensation amount fixed by the Land Acquisition Officer, it cannot be said that the action taken by the plaintiffs, by resorting to civil suits, is barred by law of limitation. The provisions of Art.113 of the Limitation Act will be applicable, which provide a period of three years and, since the compensation amount is paid on 13.12.2001, they made demand by notice and ig then Sept.,2002, within ten months.

                                      the   suits      are      filed       on      30th
                        
     16.                      Taking        recourse       to         the        entire

     discussion,         the       present appeals do not             project        any

     substantial         question of law to cause an                  interference
      


     in    the    orders of the Civil Judge,                 Senior         Division,

Beed, granting interest to the respective plaintiffs.

. Second Appeals with Civil Applications are accordingly dismissed.

( K.U.CHANDIWAL, J.) J ) ...

(agp:u/sa36-09gr) AUTHENTIC COPY (A.G.Paralikar) P.S. to Hon'ble Judge ::: Downloaded on - 09/06/2013 14:16:13 :::

Unlock Advanced Research with PRISMAI

Bombay High Court