Gujarat High Court
Project Manager,Ongc Ltd. vs Deputy Collector on 11 May, 2018
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/FA/919/2003 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 919 of 2003
With
R/FIRST APPEAL NO. 920 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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PROJECT MANAGER,ONGC LTD.
Versus
DEPUTY COLLECTOR
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Appearance:
MR AJAY R MEHTA(453) for the PETITIONER(s) No. 1
MR TIRTHRAJ PANDYA, AGP (1) for the RESPONDENT(s) No. 1
MR NS SHETH(840) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 11/05/2018
CAV JUDGMENT
1. Both these appeals have been filed by the appellant ONGC, the acquiring body, challenging Page 1 of 11 C/FA/919/2003 CAV JUDGMENT the judgement and award dated 9.11.2001 passed by the Extra Assistant Judge, Mehsana (hereinafter referred to as "the Reference Court") in Land Reference Case No.1414 of 1997 and No.1415 of 1997, whereby the Reference Court has directed the appellant - original opponent to pay additional compensation to the respondents - claimants at the rate of Rs.9.80 per sq. mtrs., over and above the amount of compensation awarded by the Special Land Acquisition Officer, and pay interest at the rate of 12% per annum on the additional amount of compensation under Section 23(1A) and solatium at the rate of 30% on the additional amount of compensation under Section 23(2) of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act"). The Reference Court has also directed the appellant - opponent to pay interest at the rate of 9% per annum on the additional amount of compensation from the date of taking the possession or from the date of issuance of Notification under Section 4 of the said Act, whichever is earlier for the first year and thereafter at the rate of 15% per annum Page 2 of 11 C/FA/919/2003 CAV JUDGMENT till realization on the aggregate amount payable as per Section 28 of the said Act.
2. The lands in question belonging to the respondents - claimants situated at Village Indrap, Taluka Bechraji, District Mehsana were sought to be acquired for the purpose of drilling project BCDK/R-B.C.28 of the appellant ONGC, vide the Notification under Section 4 of the said Act published on 12.8.1995 and the Notification under Section 6 of the said Act published on 5.10.1995. The Special Land Acquisition Officer after following the procedure had passed the common award on 20.2.1997 awarding compensation at the rate of Rs.2.20 per sq. mtrs. The respondents - claimants being aggrieved by the said award had sought References to the District Court under Section 18 of the said Act, claiming compensation at the rate of Rs.190/- per sq. mtrs. The Reference Court after considering the evidence on record adduced by the parties passed the impugned award.
3. Though the learned Advocate Mr.Ajay Mehta Page 3 of 11 C/FA/919/2003 CAV JUDGMENT appearing for the appellant had faintly assailed the award on the ground that the additional amount of compensation awarded by the Reference Court was without any basis and on guess work, he mainly assailed the operative part of the award, whereby the appellant has been directed to pay interest on the additional amount of compensation at the rate of 9% per annum from the date of taking over the possession or from the date of issuance of Notification under Section 4 of the said Act, whichever is earlier for the first year and at the rate of 15% per annum thereafter as contemplated in Section 28 of the said Act. According to Mr.Mehta, the said part of the award is dehors the Act and beyond the jurisdiction of the Reference Court. He submitted that the amount would become payable only after the possession is taken over as contemplated under Section 16 or Section 17, as the case may be, however, the Reference Court has directed the appellant to pay interest from the day prior to the Notification under Section 4 of the said Act. He has relied upon the decision of the Supreme Court in case of R.L. Page 4 of 11 C/FA/919/2003 CAV JUDGMENT Jain (D) by LRs Vs. DDA and Ors., reported in (2004) 4 SCC 79, and other decisions of the Supreme Court in support of his submissions.
4. However, the learned Advocate Mr.N.S. Sheth for the respondents - claimants submitted that the additional amount of compensation awarded by the Reference Court being just and proper considering the material on record, this court should not interfere with the same. Relying upon the Full Bench decision of the Andhra Pradesh High Court in case of The Revenue Divisional Officer, Guntur Vs. Vasireddy Rama Bhanu Bhupal and Ors., reported in AIR 1970 Andhra Pradesh 262, he submitted that the expression 'taking possession of the land' contained in Section 28 means 'possession even prior to acquisition proceedings', and therefore, the interest would be payable from the date of taking over possession on equitable principle also. He submitted that there being no infirmity in the impugned award made by the Reference Court, the appeals be dismissed.
5. So far as additional amount of compensation Page 5 of 11 C/FA/919/2003 CAV JUDGMENT awarded by the Reference Court is concerned, the Reference Court after discussing in detail the evidence on record has relied upon the award produced at Exh.22 in respect of the compensation awarded to the claimants in the acquisition proceedings of the lands situated in the adjacent village Rantej, in which the compensation was awarded at the rate of Rs.12/- per sq. mtrs. The Reference Court considering the other sale deeds and other evidence, relied upon the said award finding it most comparable with the instant cases for fixation of compensation. The Reference Court has also relied upon the decision of the Supreme Court in case of The State of Madras Vs. A. M. Nanjan and Anr., reported in (1976) 1 SCC 493, in which it has been held inter alia that the award passed by the competent Court, if comparable would be relevant for fixation of the compensation, even if that award relates to the land in nearby area or town. The Reference Court having passed elaborate order giving cogent reasons for granting additional amount of compensation at the rate of Rs.9.80 per sq. mtrs., over and Page 6 of 11 C/FA/919/2003 CAV JUDGMENT above the amount of compensation already awarded by the Special Land Acquisition Officer and also the amount of interest and solatium as required to be paid statutorily under Section 23(1A) and Section 23(2) of the said Act, the Court is not inclined to interfere with the said part of the award.
6. However, so far as the direction to pay interest at the rate of 9% per annum on the additional amount of compensation from the date of taking over the possession of the lands in question or from the date of issuance of Notification under Section 4 of the said Act, whichever is earlier for the first year and at the rate of 15% per annum thereafter till realization as per Section 28 of the said Act is concerned, the Court finds much substance in the submission of Mr.Mehta that the said direction was without any authority of law and jurisdiction. In the opinion of the Court, the said issue is squarely covered by the decision of the Supreme Court in case of R.L. Jain (D) by LRs Vs. DDA and Ors. (supra), whereby the Supreme Court while Page 7 of 11 C/FA/919/2003 CAV JUDGMENT considering the issue of entitlement to interest for the period from the date of taking over the possession till the date of Section 4 Notification, and also interpreting the words 'such compensation' and 'so taking possession' contained in Section 34 of the said Act observed as under:-
"12. The expression "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" should not be read in isolation divorced from its context. The words "such possession" and "so taking possession" are important and have to be given meaning in the light of other provisions of the Act. "Such compensation"
would mean the compensation determined in accordance with other provisions of the Act, namely, Sections 11 and 15 of the Act which by virtue of Section 23(1) mean market value of the land on the date of notification under Section 4(1) and other amounts like statutory sum under subsection (1A) and solatium under Subsection (2) of Section
23. The heading of Part II of the Act is Acquisition and there is a subheading "Taking Possession" which contains Sections 16 and 17 of the Act. The words "so taking possession" would therefore mean taking possession in accordance with Sections 16 or 17 of the Act. These are the only two Sections in the Act which specifically deal with the subject of taking possession of the acquired land. Clearly the stage for taking possession under the aforesaid provisions would be reached only after publication of the notification under Sections 4(1) and Page 8 of 11 C/FA/919/2003 CAV JUDGMENT 9(1) of the Act. If possession is taken prior to the issuance of the notification under Section 4(1) it would not be in accordance with Sections 16 or 17 and will be without any authority of law and consequently cannot be recognised for the purposes of the Act. For the parity of reasons the words "from the date on which he took possession of the land" occurring in Section 28 of the Act would also mean lawful taking of possession in accordance with Sections 16 or 17 of the Act. The words "so taking possession" can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(1) of the Act which is de hors the provisions of the Act."
7. Similar view has also been taken by the Supreme Court in case of Smt. Lila Ghosh (dead) through LR. Vs. State of West Bengal, reported in AIR 2004 SC 288 -
"19. Even though the authority in Shree Vijay Cotton & Oil Mills Ltd. appears to support the claimants, it is to be seen that apart from mentioning Sections 28 and 34, no reasons have been given to justify the award of interest from a date prior to commencement of acquisition proceedings. A plain reading of Section 34 shows that interest is payable only if the compensation, which is payable, is not paid or deposited before taking possession. The question of payment or deposit of compensation will not arise if there is no acquisition proceeding. In case where possession is taken prior to acquisition proceedings a party may have a right to claim compensation or interest. But such a claim would not be either under Section 34 Page 9 of 11 C/FA/919/2003 CAV JUDGMENT or Section 28. In our view interest under these Sections can only start running from the date the compensation is payable. Normally this would be from the date of the Award. Of course, there may be cases under Section 17 where by invoking urgency clause possession has been taken before the acquisition proceedings are initiated. In such cases, compensation, under the Land Acquisition Act, would be payable by virtue of the provisions of Section 17. As in cases under Section 17 compensation is payable interest may run from the date possession was taken. However, this case does not fall into this category."
8. Though the learned Advocate Mr.Sheth has relied upon the Full Bench decision of the Andhra Pradesh High Court, the same does not deserve consideration in view of the afore-stated clear legal position settled by the Supreme Court.
9. In that view of the matter, it is required to be held that the interest under Section 28 or under Section 34 can be awarded only from the date when the compensation becomes payable, i.e. the date of award, except when the proceedings have been initiated under Section 17 invoking urgency clause. In that view of the matter, the direction contained in paragraph 5 of the operative part of the impugned award directing the opponents to pay interest from the date of Page 10 of 11 C/FA/919/2003 CAV JUDGMENT taking over the possession or from the date or issuance of Notification under Section 4 of the said Act, whichever is earlier, is required to be quashed and set aside.
10. In that view of the matter, the direction contained in paragraph 5 of the operative part of the impugned award is quashed and set aside. Rest of the award is confirmed.
11. The appeals stand partly allowed accordingly.
Sd/-
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 11 of 11