Calcutta High Court (Appellete Side)
State Of West Bengal vs Binita Das & Ors on 20 May, 2016
Author: Indira Banerjee
Bench: Indira Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
The Hon'ble Justice INDIRA BANERJEE
And
The Hon'ble Justice SAHIDULLAH MUNSHI
F.A. Nos.51-65 of 2011
With
CAN 4201-4202 of 2016
With
CAN 4204-4211 of 2016
With
CAN 4227-4231 of 2016
State of West Bengal
... Appellant
-Versus-
Binita Das & Ors.
... Respondents
Mr. Ram Mohan Pal ... for the appellant Mr. Debayan Bera, Mr. Kinjal Kumar Boral ... for the respondents Last heard on : 17.05.2016.
Judgment on : May 20, 2016.
Sahidullah Munshi, J.:-
These appeals filed by the State of West Bengal arises out of a common judgment and decree dated 14th January, 2004, passed by the learned Additional Special L.A. Judge, 4th Court, Alipore, South 24- Parganas, in identical L.R.A. Case Nos.7 to 12 of 2001and L.R.A. 15 to 23 of 2001, which arose from L.A. Case No.19/82/2/48. Since these appeals involve identical question of law and fact with regard to the requisition and acquisition of properties of 15 referring claimants heard the appeals being F.A. No.51 of 2011 to F.A. No.65 of 2011 analogously and are disposing the same of by a common judgment and order.
Precisely the fact of the case is that land comprised in premises No.17, Convent Road, situated in the heart of the city of Calcutta, measuring about 9 bighas 4 cottahs 8 chittaks 44 square-feet was taken possession of by the Land Acquisition Collector, Calcutta on requisition thereof in exercise of his power conferred upon him under the provisions of Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 (hereinafter to be referred as the said Act of 1948).
The said requisition, ultimately, resulted in acquisition by publishing notice in the official gazette under Section 4(1a) of the said Act of 1948 being notification No.5048-LA(2) dated 13th September, 1985 which was published in the Extraordinary edition of Calcutta Gazette dated 23rd September, 1985 and on such publication the said landed property stood vested to the State of West Bengal free from all encumbrances.
On or about 10th September, 1990 Land Acquisition Collector Calcutta made and published an award towards compensation for the said requisition and acquisition for an amount of Rs.5,12,755.89/- (Rupees Five Lakh Twelve Thousand Seven Hundred Fifty Five and Eighty Nine Paisa) only, which was allotted in the name of the respondents herein being the owners of the land. As permitted under the said Act of 1948 the present respondents having grievance against the quantum of compensation awarded by the Collector they filed a petition under Section 8(1)(a) of the said Act of 1948 read with Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act I of 1894) thereby seeking a reference before the appropriate Court for adjudication of proper compensation. The reference petitions filed by the respondents herein have been made part of the paper book.
Out of the total acquired land measuring 9 bighas 4 cottahs 8 chittaks 44 square-feet, an area of 8 bighas 1 cottah 7 chittaks 39 square- feet, is involved in the said 15 reference cases from which the judgment and decree under appeal has been passed by the Additional Special L.A. Judge, Alipore.
While publishing the award the L.A. Collector valued the property under acquisition at Rs.21058/- (Rupees Twenty One Thousand Fifty Eight) only, per cottah in respect of the said premises No.17, Convent Road, Calcutta. The L.A. Collector in his award also allowed solatium @ 30% with interest @ 9% per annum and Rental Compensation @ 6% per annum.
According to the respondents/referring claimants, such valuation of the land was grossly under-valued and never reflected the real value of the land on the relevant date and that is why the reference was sought for. The learned Additional Special L.A. Judge disposed of the respective L.R.A. Case Nos.7 to 12 and 15 to 23 of 2001 (V) allowing those in part on contest and thereby passed a decree to the effect that -
i) Market price of the acquired land was assessed at Rs.1,15,984/- (Rupees One Lakh Fifteen Thousand Nine Hundred Eighty Four) only, per cottah;
ii) The referring claimants were held entitled to get solatium @ 30% on the entire market value of the acquired property less the amount paid by the L.A. Collector;
iii) The referring claimants were held entitled to get additional compensation @ 9% per annum on the entire land value from the date of publication of notice under Section 4(1a) of the Act till the date of award, i.e., from 23.09.1985 to 10.09.1990 (i.e., from the date of publication of notice under Section 4(1a) of the Act till the date of award);
iv) The referring claimants were also held to be entitled to get interest on the entire compensation, i.e., enhanced land value plus solatium plus additional compensation @ 9% per annum for one year from the date of award, i.e., from 10th September, 1990 to 9th September, 1991 and thereafter, from 10th September, 1991 @ 15% per annum till the entire amount is paid in full less the amount paid by the L.A. Collector.
The Land Acquisition Collector was directed to pay the decretal amount within 90 days from the date of the decree, failing which the referring claimants were given the liberty to put the decree into execution. From the memorandum of appeal taken out by the State/appellant it appears that they have challenged the aforesaid judgment and decree on the following grounds :
1) The learned Court below should have held that the compensation awarded by the Collector was fair and based on market value of the acquired premises and should have approved the award passed by the Collector;
2) The learned Court below had acted illegally and with material irregularity in enhancing the valuation of the land under acquisition and that had been done quite arbitrarily and the judgment under appeal was based on no evidence;
3) The learned Court below had failed to appreciate that the onus of proving the market value of the acquired land at the relevant point of time lay upon the claimants but they had failed to discharge their onus.
Learned advocate appearing on behalf of the appellants, in support of the appeal, argued that on 4th May, 1987, one Amiya Kumar Das (since deceased), husband of Binita Das, a referring claimant had received a sum of Rs.1,72,732.97/- (One Lakh Seventy Two Thousand Seven Hundred Thirty Two and Ninety Seven Paisa) only, being 80% of the total provisional compensation of Rs.2,50,916.21/- (Rupees Two Lakh Fifty Thousand Nine Hundred Sixteen and Twenty one Paisa) only, for his 1/18th share of 17, Convent Road, under acquisition by executing an agreement with the State Government. The said agreement has been brought on record by the State/appellant by way of supplementary affidavit and incorporated in a supplementary paper book that has been filed.
From Clause 1 of the said agreement it appears that the said money was to be disbursed pending determination of the amount payable as compensation and making of award under Section 7 of the said Act of 1948.
It has been argued that on 19th May, 1987, one M/s. Westinghouse Saxby Farmers Ltd., filed a claim application before the Collector, Kolkata in Acquisition Case No.19/82 (Act II of 1948) stating that the claimant/company was registered under Companies Act, 1956 and was holding the entire property at 17, Convent Road as thika tenant under a registered deed of lease executed and registered on 29th December, 1951.
According to the appellant, the said company made construction at the said premises and was in occupation at the time of notification and as such, they are interested persons to claim compensation. It has been argued that the referring claimants claimed market price of the land under acquisition at 17, Convent Road, Kolkata clubbing together their entire property. When compensation is claimed at market price in respect of large tracts of land, as in the present case, then it would be necessary to deduct 331/3% towards cost of development. Learned advocate for the State/appellant submits that as per the decisions in the case of Smt. Basavva & Ors. - Vs. - Special Land Acquisition Officer & Ors. reported in AIR 1996 SC 3168 and in the case of H.P. Housing Board - Vs. - Bharat S. Negi & Ors. reported in (2004) 2 SCC 184, market value should be fair, reasonable and in case of large tract of land there shall be deduction to the tune of 331/3%.
In the above referred judgment in the case of Smt. Basavva & Ors. (supra) the Hon'ble Apex Court held that each case depends upon its own facts for deduction of developmental charges, for deduction of development charges, the nature of the development, conditions and nature of the land, the land required to be set apart under the building rules for roads, sewerage, electricity, parks, water etc. and all other relevant circumstances involved are to be considered. In the said case the claimants filed appeal against the decision of the High Court whereby the High Court fixed the compensation at a certain sum thereby reducing the amount. State wanted to file appeals against enhancement of the compensation. But the Hon'ble Supreme Court dismissed those special leave petitions. In the appeal of the claimant it was argued that deductions ought to have been made by the reference Court. The appeal filed by the claimant was, however, dismissed. It was observed by the Hon'ble Supreme Court that the land in the area was not developed and there was no development towards that area. It has been observed that the High Court also noted that it takes years for development in those lands though, the lands are capable to be used for non-agricultural purpose. Therefore, the said decision referred to by the learned advocate for the appellant has no application in the present case as the land under acquisition in these appeals are already developed and are situated in the heart of the city. The learned Court below has rightly passed no order for deduction of the land.
In the case of H.P. Housing Board (supra) the land under acquisition was approximately 53.12 bighas of land. Reference Court refused to give any deduction for largeness of the land which is not comparable to the case at hand and they have, therefore, got no application to the present case.
Referring to a judgment in the case of Major General Kapil Mehra & Ors. - Vs. - Union of India & Anr. reported in (2015) 2 SCC 262 the learned advocated appearing for the State/appellant has submitted that there should be 1/3rd deduction since the land under acquisition is a large tract of land. Referring to another judgment in the case of State of U.P. & Anr. - Vs. - Purushottam Das & Ors. reported in AIR 2009 (NOC) 2909 (All) the learned advocate appearing for the State/appellant has argued that the reference Court is not a Court of appeal and it should adopt an independent procedure in coming into conclusion on the basis of evidence adduced before it and further it has been argued that once compensation has been obtained without objection under Section 9, no reference is maintainable for enhancement of compensation. Learned advocate has also relied on a judgment in the case of State of Karnataka & Anr. - Vs. - Sangappa Dyavappa Biradar & Ors. reported in (2005) 4 SCC 264 and has argued that once award is accepted no legal right survives for claiming a reference to Civil Court.
In the above cited decision of Major General Kapil Mehra (supra) the Hon'ble Apex Court allowed deduction on the question of largeness of the land under acquisition. In the said decision the Hon'ble Apex Court held deduction for development consists of two components, firstly, appropriate deduction is to be made towards the area required to be utilized for roads, drains and common facilities like parks etc., and secondly, further deduction is to be made towards the cost of development, i.e., cost of leveling the land, cost of laying roads and drains, erection of electrical poles and water lines etc. The said developments as indicated in the said decision were not necessary in the land under acquisition in these appeals, therefore, the ratio decided in the said judgment has no manner of application in these appeals. The learned advocate, while relying on the said judgment, although, pointed out that the reference Court has not taken into consideration about the deduction but has not pointed out to this Court that the Hon'ble Apex Court has held that Section 34 has made it mandatory for award of interest. It has been held by the Hon'ble Apex Court that the scheme of the Act and the express provisions thereof establish that the interest payable under Section 34 of the Act is statutory. This proposition, however, supports the contention of the respondents. Paragraph 45 of the said judgment has got some relevance in the present appeal and the same is set out herein below :
"45. Award of interest under Section 34 is mandatory inasmuch the word used in the section is "shall". The scheme of the Act and the express provisions thereof establish that the interest payable under Section 34 is statutory. The claim for interest under Section 28 of the Act proceeds on the basis that due compensation not having been paid, the claimant should be allowed interest on the enhanced compensation amount. The award of interest under Section 28 is discretionary power vested in the court and it has to be exercised in a judicious manner and not arbitrarily. The use of the word "may" in Section 28 does not confer any arbitrary discretion on the court to disallow interest for no valid or proper reasons. Normally, the court awards interest if it enhances the compensation in excess of the amount awarded by the Collector, unless there are exceptional circumstances."
Few other judgments have been referred to in the additional written notes of argument but the relevance of the propositions of law laid down in those judgments to the present case, have not been explained.
Learned advocate appearing for the referring claimants/respondents has submitted that the requisition and acquisition of the lands in question are matters of record. It was argued that the property was requisitioned under Section 3 of the West Bengal Land (Requisition and Acquisition) Act, 1948 after expiry of the lease which lease was created by a registered deed dated 29th December, 1951 in favour of M/s. Westinghouse Saxby Farmers Ltd. It is also not in dispute that the property was acquired pursuant to notification under Section 4(1a) of the Act of 1948 which was published on 23rd September, 1985 in the official gazette and on the publication of the said notification the property stood vested in the State.
It has been submitted that the State Government issued notice under the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981. The present respondents challenged the notice in writ petition and the said notice was, ultimately, quashed by this Hon'ble Court holding that the owners were entitled to get compensation money for acquisition of their lands and directed the Land Acquisition Collector to deposit the entire compensation money with the then A.N.Z. Grindlays Bank, having its branch at 6, Church Lane, Kolkata - 700 001 through the appointed receiver, Mr. G.C. Banerjee. Against the said order the State of West Bengal went up in appeal before the Hon'ble Apex Court. However, (as pointed out in the written notes of argument by the respondents) the Hon'ble Apex Court, by a judgment and order dated 7th February, 1995 held that the notice under West Bengal Thika Tenancy (Acquisition and Regulation) Act, 1981 was not valid.
It has been admitted by the respondents that prior to declaration of the award under Section 7 of the said Act of 1948, one of the referring claimants, Sri Amiya Kumar Das (since deceased), husband of Binita Das, received payment of Rs.1,72,732.97/- (Rupees One Lakh Seventy Two Thousand Seven Hundred Thirty Two and Ninety Seven Paisa) only, being ad hoc compensation under Section 8B of the aforesaid Act of 1948 on 4th May, 1987. Such payment was made subject to the final award which was to be declared under Section 7 of the said Act of 1948. Ultimately, an award was declared under Section 7 of the said Act of 1948 on 10th September, 1990 and the Collector assessed the valuation of the acquired land @ Rs.21,058.00/- (Rupees Twenty One Thousand Fifty Eight) only, per cottah and valued the structure there at @ Rs.1,14,90,000.00/- (Rupees One Crore Fourteen Lakh Ninety Thousand) only. The Collector awarded rental compensation @ 6% on land value and structure from 20th August, 1982 to 22nd September, 1985 and granted compensation under Section 23(2) with solatium @ 30% and damages under Section 23(1) and interest @ 9% for the first one year and @15% for four years eleven months and sixteen days under Section 34 of the Land Acquisition Act, 1894.
It has been agitated that no notice under Section 7(aa) (ii) of the West Bengal Act II of 1948 were served upon the respondents. However, the Land Acquisition Collector, Calcutta, served notice about the declaration of the award upon the advocate for the respondents in the High Court on 22nd November, 1990.
The respondents thereafter, filed an application for reference to Court seeking higher valuation under Section 8(1) of Act II of 1948 on 28th December, 1990. 15 co-owners filed separate writ petitions. It has been submitted that an order was passed on 28th January, 1991 in appeal No.421 of 1988 by a Division Bench of this Hon'ble Court directing the receiver to disburse the money lying with him to the respondents making it clear that such payment would be made without prejudice to the rights and contentions of the parties and any other proceeding which may be made or initiated against the award.
The awarded amount was disbursed by the receivers to the respondents on diverse dates from 30th December, 1990 to 29th September, 1999. No payment was made to the respondents by the L.A. Collector, Calcutta. All payments were received by the respondents from the receivers after the filing of the reference petitions which were filed on 28th December, 1990.
It has been submitted on behalf of the referring claimants that the learned L.A. Judge decided the reference cases enhancing the land value and granted solatium and rental compensation and interest on land value and solatium but it is the grievance of the respondents that the learned Judge did not grant additional compensation as per provisions of Section 23 (1A) of the L.A. Act, 1894 for the period from the date of the notification (i.e., 23rd September, 1985) to the date of the award (i.e., 10th September, 1990) and any interest on rental compensation which was allowed @ 9% per annum on the entire land value from 20th August, 1982 to 27th September, 1985.
It has been argued by the learned advocate appearing for the referring claimants/respondents that reference petitions are quite maintainable even after acceptance of the awarded money and he cited a judgment in the case of Ajit Singh & Ors. - Vs. - State of Punjab & Ors. reported in (1994) 4 SCC 67.
It has been further submitted that the learned Land Acquisition Judge was justified in enhancing the land value of the acquired land @ Rs.1,15,984.00/- per cottah relying upon Sale-deed dated 27th July, 1985 (Ext. 1) filed on behalf of the referring claimants and discarding Ext. D, the Sale-deed filed on behalf of the State/appellant. With regard to appropriateness of the fixation of valuation made by the learned Land Acquisition Judge he has relied on a judgment of the Hon'ble Supreme Court in the case of Valliyammal & Anr. - Vs. - Special Tahsildar (Land Acquisition) & Anr. reported in (2011) 8 SCC 91. Learned advocate for the respondents further submitted that the value of the other land situated in the same locality or in the vicinity of the land under acquisition should be taken into consideration and to substantiate his argument he has relied on a decision in the case of Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) by LRS. & Ors. - Vs. - Special Land Acquisition Officer & Ors. reported in (2012) 7 SCC 595 and the case of Valliyammal (supra).
Although, no cross-objection has been filed in this case by the referring claimants/respondents, it has been argued that learned Land Acquisition Judge has committed error in not allowing the additional compensation @ 12% per annum in view of Section 23 (1A) of the Land Acquisition Act, 1894 for the period from 23rd September, 1985 (date of notification) till 10th September, 1990 (date of award). It has also been argued that the learned L.A. Judge has not granted interest on all heads of compensation. The learned Judge had allowed interest on enhanced land value and solatium (payable under Section 23(2) of the L.A. Act, 1894) but the learned Judge has not granted any interest on rental compensation. It has been submitted that the respondents are entitled to interest on all heads of compensation.
The questions those emerge to be decided are -
1) Whether reference petitions were maintainable even after acceptance of the awarded money;
2) Whether the learned Land Acquisition Judge was justified in enhancing the land value of the acquired land @ Rs.1,15,984.00/- (Rupees One Lakh Fifteen Thousand Nine Hundreds Eighty Four) only, per cottah;
3) Whether the learned Judge was correct in not allowing additional compensation strictly as per provisions of Section 23 (1A) of the Land Acquisition Act, 1894 for the period from the date of notification, i.e., 23rd September, 1985 to the date of the award, i.e., 10th September, 1990 and interest on the amount of additional compensation and the rental compensation.
So far the first question is concerned, we hold that Act II of 1948 is a complete Code and is a Legislation by incorporation. In Section 8(2) of Act II of 1948, the legislator has incorporated only Section 18(2), 19 to 22 and 25 to 28 of the Land Acquisition Act, 1894 and no other Sections have been incorporated. So, the provisions of Section 31 of the Land Acquisition Act, 1894 which provides that no reference will lie unless payment is accepted under protest, has no manner of application for reference under Section 8(1) of the said Act of 1948. Section 8(b) of the said Act of 1948 only provides that the provisions of Section 31 to 33 of the Land Acquisition Act, 1894 are to be followed in the matter of making payment. The provisions of Sections 31 to 33 of the Land Acquisition Act, 1894 were not incorporated in Section 8(2) of Act II of 1948. Therefore, there is no bar apparent in the reference petition under Section 8(1) of the Act II of 1948 to be held to be maintainable even if part-payment of compensation has been accepted without protest.
As held by the Hon'ble Apex Court in Ajit Singh (Supra) we agree with the submissions made by the learned advocate for the respondents that the reference applications were very much maintainable particularly in view of the fact that those reference applications were made before the acceptance of the award by one of the awardees, namely, Amiya Kumar Das (since deceased). In this regard, paragraph 5 of the said judgment of the Hon'ble Apex Court is relevant and it is set out below :-
"5. Having regard to the contiguity of these lands the High Court is correct in its valuation. Besides, the date of notification, issued under Section 4 of the Act, is October 4, 1978 while Exh. R-6 is nearer to it, namely, August 16, 1978, in comparison to Exh. A-6 dated January 14, 1977. 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. The District Judge and the High Court, therefore, fell into patent error in denying the enhanced compensation to the appellants."
We have perused the documents, exhibits and the impugned judgment and decree passed by the learned Court below. On perusal of the judgment under appeal we find that the learned Court below has rightly held that the sale value under Ext. 1 can be taken into consideration for assessing the market value of the property under acquisition having proximity from time angle, situation angle and similarity in nature and enjoyment of similar facilities and advantages. As per Ext.1 the value of the land per cottah was Rs.1,44,980/- (Rupees One Lakh Forty Four Thousand Nine Hundred Eighty) only. After taking into consideration of various aspects regarding location, road frontage, its position in comparison to other lands, appreciation and deduction 80% of the aforesaid sale value under Ext.1 has been taken to be the appropriate value of the land under acquisition, i.e., Rs.1,15,984.00/- (Rupees One Lakh Fifteen Thousand Nine Hundred Eighty Four) only, per cottah on the relevant date of publication of notice (23rd September, 1985). It is evident from the judgment under appeal that the learned Judge has not only considered Ext.1 but after considering the evidence adduced on behalf of the State he has relied on Ext.1 and discarded Ext.3 and Ext.D. The learned Judge has also taken into consideration the depositions made by two witnesses examined on behalf of the referring claimants and one witness examined on behalf of the State. As pointed out by the learned Judge in the judgment under appeal, we have also taken note of the evidence of the Surveyor-cum- Valuer, Nirmal Kumar Mitra, of the office of the 1st Land Acquisition Collector, Kolkata, who deposed on behalf of the State/appellant. He said "the distance from acquired property to that crossing would about 650 yards by road. The co-efficient unit chart has not been filed in this case as it is not supplied by the office. I prepared a plan for calculation of co-efficient unit system that plan has not been filed in this case by office. Sale deed under Ext.D does not abut on Ananda Palit Road but a passage of about 10 feet wide common passage plot in Ext.D is surrounded by bustees/huts. It is located in an undeveloped area." It appears from the comparable Sale-deed produced by the referring claimants, the land was situated on the same Convent Road. The comparable sale-deed is situated at a distance of only 200 yards from the acquired land whereas the land under Ext.D is situated at 132A, Ananda Palit Road and is at a distance of about 45 feet from crossing of Ananda Palit Road and CIT Road and the said crossing is at a distance of about 655 yards from the acquired land and does not abut on Ananda Palit Road but on a common passage of 10 feet wide only and surrounded by bustees/huts and located in an undeveloped area. The learned Judge was, therefore, quite justified in relying upon Ext.1 filed on behalf of the referring claimants/respondents and discarding Ext.D, the sale-deed filed on behalf of the State/appellant in regard to the assessment of the valuation of the land under acquisition. As argued by the learned advocate appearing for the respondents we find that the learned Court below has satisfied the requirement to be noted in computation of the valuation of the acquired land and that apart, we also find that the ratio of the judgment of the Apex Court in Sabhia Mohammed Yusuf Abdul Hamid Mulla (supra) has been duly followed by the learned Judge in computing the compensation. The learned Judge has taken into consideration the existing geographical situation of the land, existing use of the land, available advantages like proximity to the other arterial road as well as the other developed area in the locality, market value of other land situated in the same locality. Therefore, we have no other alternative but to hold that the learned Judge has committed no error in enhancing the value of the land and assessing the same @ Rs.1,15,984.00/- (Rupees One Lakh Fifteen Thousand Nine Hundred Eighty Four) only, per cottah for the land under acquisition. The only question left to be answered is whether the learned Court below has committed any error in not allowing additional compensation @ 12% per annum in view of Section 23 (1A) of the Land Acquisition Act, 1894 for the period from 23rd September, 1985 (date of notification) to 10th September, 1990 (date of award) and whether such additional compensation can be granted in absence of any cross-objection filed by the respondents and whether the respondents are also entitled to interest on all heads of compensation.
The Hon'ble Supreme Court in the case of Shree Vijay Cotton & Oil Mills Ltd. - Vs. - the State of Gujarat reported in (1991) 1 SCC 262 has held that substantive right under the Act cannot be affected by procedural rules. Question arose for decision in the said case as to whether even after dismissal of the cross-objection as time-barred whether the statutory claims were to be payable to the claimants. Paragraph 17 of the said judgment is relevant for the present case which is set out below :-
"17. We do not, therefore, agree with the reasoning and the findings reached by the High Court. We are of the opinion that it was not necessary for the appellant-claimant to have filed separate appeal/cross-objections before the High Court for the purposes of claiming interest under Section 28 or Section 34 of the Act. He could claim the interest in the State appeal. The fact, that he filed cross-objections which were dismissed as time barred, is wholly irrelevant."
As held by the Hon'ble Apex Court we deem it appropriate to hold that the referring claimants cannot be deprived of appropriate additional compensation even in absence of any cross-objection filed by them. In another decision in the case of State of West Bengal - Vs. - Anil Kumar Ghosh reported in 2001(2) CLJ 100 this Hon'ble Court held that benefits of Section 23 (1A) of the 1894 Act will also be available in respect of lands acquired under Act II of 1948. However, the difference in this case is that the referring claimants had filed a cross-objection. In the said judgment it has been made clear that the provisions of Act I of 1894 relating to compensation will have application to lands acquired under Act II of 1948, with the incorporation of sub-Section (1A) in Section 23 of Act I of 1894, the same would also apply in respect of references made under Section 8 of Act II of 1948. This court held that the cross-objector will, therefore, be also entitled to the said benefit in respect of acquired plots with effect from the date of publication of notice under Section 4(1a) of Act II of 1948. In the said judgment this Court has clearly concluded that referring claimants would be entitled to the benefit of Section 23 (1A) and be entitled to an additional amount on the entire market value of the acquired plots @ 12% per annum from the date of publication of the notification under Section 4(1a) of Act II of 1948 till the date of award; it has been further held that the referring claimants would be entitled to interest on the enhanced amount of compensation on account of market value of the acquired plots including solatium under Section 23(2) and the additional amount under Section 23 (1A) of Act I of 1894 and recurring compensation for the period from the date of notification till the date of award calculated @ 9% per annum for one year from the date of possession and thereafter, @15% per annum till payment of the award money subject to deduction of amounts already paid.
In view of Section 23 (1A) of the Land Acquisition Act, 1894, proposition of law laid down both by the Apex Court and this Hon'ble Court, we hold that appropriate additional compensation ought to have been granted by the learned Land Acquisition Judge in favour of the referring claimants even in absence of cross-objection. Therefore, we direct the Land Acquisition Officer to make computation of the additional compensation as indicated hereinabove and also the interest on the rental compensation as provided under Section 28 of the Land Acquisition Act, 1894. The Land Acquisition Officer concerned shall compute the amount of additional compensation @ 12% per annum in view of Section 23 (1A) of the Land Acquisition Act, 1894 for the period from 23rd September, 1985 (date of notification) till 10th September, 1990 (date of award) and as mentioned in Section 28 of the 1894 Act, shall further compute the amount of interest @ 9% per annum on the amount of appropriate additional compensation and rental compensation. Such computation has to be completed by the Land Acquisition Officer within a period of three months from the date of providing with him a copy of this judgment and order by the respondents and shall thereafter, make payment of the amount due and payable to the referring claimants within a period of four weeks from the date of final computation. The Land Acquisition Officer shall intimate his computation of additional compensation and interest as indicated above to the respondents immediately after the computation is made as directed above. Decree is modified to the above extent.
All the appeals stand disposed of by this common judgment and order and all the connected applications also stand disposed of.
There will be no order as to costs.
Urgent Photostat certified copy of this judgment, if applied for, be supplied to the learned advocates for the parties upon compliance of all requisite formalities.
I agree.
(Indira Banerjee, J.) (Sahidullah Munshi, J.) Later :
Mr. Ram Mohan Pal, learned Counsel for the appellant prays for stay of operation of this judgment and order. The award in this case was published in 1990. Matter is pending in Court for last 26 years. Considering such state of affairs we are not inclined to grant any order of stay. Prayer for stay, is, therefore, refused.
I agree.
(Indira Banerjee, J.) (Sahidullah Munshi, J.)