Bombay High Court
Jaiwant Laxman P. Sardesay And Etc. Etc. vs Government Of Goa, Daman And Diu And Anr. ... on 28 January, 1987
Equivalent citations: AIR 1987 BOMBAY 214, (1987) 2 BOM CR 319, (1987) MAH LJ 564, (1987) MAHLR 976, (1987) 89 BOM LR 111, 1987 BOM LR 89 111
JUDGMENT Pendse, J.
1. A gorup of thriteen appeals filed ;under S. 54 of the land Acquisition Act, 1894 thereinafter referred to as the Act.), challenging the judgment delivered by court in reference under S. 18 of Act were posted for hearning before the Division Bench of this Court. During the arguments the Division Bench noticed conflict between the decisions delivered by two Division Benches . Union of India V. Smt Maria Olivia Carvalho and Hiraji Budho Bhake v. State of Maharashtra about the application of provisions of S. 23(1-A) of the Act, and thereupon the Division Bench the Division Bench also referred the question as to wherther the enhanced rate of 15. Per cent of the interest prescribed by proviso to S.s 28, as per the amendment is to be grandted in every case or the grant lies in the dicretion of the Court The two questions referred are as follows.
Whether the provision of S. 23(1-A) is applicable retrospectively only to these pending cases where no ward had been made by the Collector(LAQ) before the 30th April. 1982 or whether the said provision of law is to be appelied to all pending cases even to those in appeal to the hight court or the Supreme Court; and
(b) Whether the enhanced rate of fiteen percentum of interest spoken of in the proviso to S. 28 of the Act as amended is tobe mandatorily awarded or whether its grant lies within the discretionaly powers of the refernece or appellatn court.
As the Division Bench has referred these specific two question and not the appeals it is not necessary to set out the facts which give rise to these appeals and it would be suffice if only relevant facts involved in first Appeal No. 94 of 1985 are set out to approciate the controversy arising inthis reference.
2. By Notification under S. 4 of the Act published in the Government Gazette on Octorber 3, 1969, the government of Goa, Daman and Diu declared intention of acquire Plots Nos. 13 14 and 93 situated at Cavolossin for costruction of Air of Ground range for the use of Indian Nevy. Notification under S. 6 was published on June 10, 1971 and after holding unquiry as contempleted under S. 11 of the Act. The Land Acquisition Officer decleared award on August 2 , 1972 determining compensation for Plots Nos. 13 and 14 at the rate of Rs. 1,15 per sp. Metre and at the rate of Rs. 2, 50 per Ap. Metre for Plot No. 92 The claimant sought reference to the Civil court unde rS.s 18 of the Act on December 24, 1973 and the refernce when duty made, the Civil Court investigated the claim and judgment was delivered on June 24, 1985. The Civil Court came to the conclusion that the claimant was entitled to the compensation at the rate of Rs. 5/- per Sq. metre for all the three plots in addition to 15% solatium and 6% interest per annum form the date of recovery of possession till the date of payments of compensations, The claimant being dissatisfied with the quantum of enhancement of compensation preferred appeal to this Court. During the course of hearing of the appeals, question arose as to whether the claimant would be entitled to the advantage of amend provsions fo S. 23(1-A) adnproviso to S. 28 of the Act, and in view of the conflicting decisionns, the reference was made to the larger Bench.
3. On April 30, 1982, the Land Acquisition (Amendment) Bill, 1982 was introduced in the Housse Of People for amending various provisions of the Act, and after the two House passed the Bill the land Acquisition (Amendment) Act, 1984 Being Act, No. 68 of 1984 received assent of President on September 24, 1984, By s. 15 of the amending Act, S. 23 of the principaal Act was amended by introduction of sub-sec. (1-A) which reads as under :
"(-A) In addition to the market value of the land as above provided th Court shall in every case award as amount calculated at the rate of twelve per centum per annum of such market value for the period commencing on an form the date of the publication of he notification under S. 4, sub-sec (1) In respect collector or the date to taking possession of the land whichver is earlier.
Explanation - In computing the period refered to the this sub-section any period or periods duing which proceedings for the acquisition of the land were held up on account of any stay or injunced by the order of any Court shall be excluded. Per centum" the words "thirty per centum" shall be subsituted."
By introduction of sub-sec. (1-A) the claimant was granted of right toreceive an amount calculated at the rate of 12 per centurm per calculated of he market value for the perod commencing form the date of publication of the Notification under S. 4 and ending with the date of the award of the Collector or the date of taking possession of the land, whichever is earlier, The introduction of this sub-section confers an additional right on the claimant toreceive the amount over and above the market value of the land and the solatium.
Section 18, Cl. (A) of the amending Act provides that in S. 28 of the principal Act of the words "six per centum" the words "nine per centum" shall be subsituted Section 28 of the principal Act conferes power on the Court todirect the Collector to pay interest on excess amount of compensation which would be determined in a reference.
Section 30 of the amenting Act deals with transitional provisions and it is necessary to set out these provisions in its entirily.
" 30. Transitional provision. - (1) the provisions of sub-sec (1-A) of S. 23 of the Principal Act as inserted by Cl. (a) ofd S. 15 of the Act shall apply and shall be deemed to have applied also toand inrelation to-
every proceedings for the acquisition of any land under the principal Act pending on the 30th Day of April 1982 (the date of introduction on the land Acquisition (Amendment) Bill `1982, inth House of People in which no award had ;been , made byt eh Collector before the date.
(b) every proceedings for the acquistition of any land under the principal Act commenced after that date whether or not an award had been ,made by the Collector before the date of commencement of this Act.
(2) The provisions of sub-sec (2) of S. 23 and S. 28 of the principal Act asamended by Cl. (b) of S. 15 and S. 18 of this Act respectively shall apply and shall be deemed tohave applied also toand in relation to anyward made by the Collector or court or any order passed by High Court or Supreme Court in appell agasint any such award under the provisons of the principla act after the 30 the day of April 1982 the bill 1982 in the House of People and before the commencement of this Act.
(3) The provisins of S. 34 of the prinicipal Act, as amended by S. 20 of this Act shall apply and apply be deemed to have applied alsotoand inrelation to-
every case in which possession of any land acquired under the principle Act had been taken before the 30 the day of April 1982 (the date of introduction of the Land Acquisition (Amendment) bill 1982 in theHouse of the People and the amount of compensation for such acquisition had not beenpaid or depsited under S. 31 of the principal Act until such date with effect on and form that date and.
every case in which such possession had been taken on or after that date but before the commecemant of this Act without the mount of compensation having been paid or deposital under the said S. 31 with effect an and from the date of taking suuch possession."
4. the claimants on the basis of amended S. 23(1-A) have contended that they are entiled to receive the additoinal amount at the rate of 12 per centum per annum on the market value determined, for the period commencing form october, 3. 1969 till the date of award or recovery of possesion The claimants content that S. 23(1-A) applies and shallbe deemed to have applied to the acqusition preceedings all along and though the award was declared on August 2, 1972 refernce proceedings came under S. 18 were order after the amendment came into force and therefore claimants are entitled to benefit of amendment. On the other land it was urged onbehalf of the land Acquisition Officer that S. 30 of the amending Act deals with pending cases and asub-sec (1) is party prospective and party retrospective innature the retrospectivity being only in relation to these case falling strictly witing the field specified in Cls. (a) and (b) It was contended that Cl. (a) applies tocases pending before the Collector on Aprial 30,1982 and where the Collector has not made the award while Cl. (b) acquilsition were initiated after April 30, 1982 and where the award is either passed of not passed before the date of commencement of the Act. The contention is that the claimants would not be entitled to the advantage of amending provisions of S 23 (1) (a) as the Proceedings for a acquisition of land were not pending before the Collector on April 30, 1982 and Cl.s (b) has be application as the proceedings were commending prior to April 30, 1982 In vies of these rival contentions it is necessary toconsider on a true interpretation of language of S. 30 subsec. (1) as to whether the amending provisions of S. s23 (1-A) are applicable only ro cases referred in subas (1) (a) and (b) of S. 30 or whether the amended provisions are applicable to all preceedings pending either before the Collector the reference Court High Court and the Supreme Court on April 30, 1982.
5. We will first consider what would be position if S. 30. Sub-sec. (1) wasnot enacted and the amended S, 23 (1-A) became effective only from the date on which the amending Act came into force that is September 24, 1984, It is not in dispute that where on the date of the commencement of the amending Act any proceedings for determination of compensation were pending before the Collector under S. 11 of the Act of before the Court under reference under S. 18 of the Act of before HighCourt in appeal under S. 54 of the Act, thenthe amended S. 23(1-A) would be applicable to such proceedings in absence of sub-sec. 91) of S. 30 It is obvious that authorities like Collector or Court towhichreference is made or the Court in which appeal is filed must apply the provisions of the amended S.s 23(1-A) when such proceedings come for determination after September 24, 1984 The express words of S. 23(1-A) clearly enjoin a duty on the Court toward the amouont inevery case and the mandate of he legislation inthis respect cannot be ingnored. A reference can be usefully made in this connection to the decision of the Supreme Court reported in AIR 1985 Sc 1567, Bhagsigh v. Union Territory of Chandigarth where the Supreme Court examined the true interprepation of the language of S. 30 sub-sec (2) and in para 5 of the Judgment Chief Justice Bhagwati observed that in absence of provisions of S. 30 sub-Sec. (2) the amended provisions of S.s 23 sub-sec (2) and A. 28 would have been effective form September 24, 1984 and each of the authorities exercising powers under the Act for determination of compensation would have been bound to award soletium andth einterest at the enhanced rate irrespective of the fact when theward was passed. The Supreme Court further observed that the object of the Parliement was that the amended provisions should be given effect formthe date of the introduction of the Bill of the Parliameant and therefore enacted S. 30 of the amending Act. It was further observed that h intention of Parliament in encting S. 30 Sub-sec, (2) was to conter advantage on the claimants whose preceedings for determi nation. Of compensation were concluded between April 30, 1982 and September 24, 1984, Thereafter the Supreme Court considered that ambiut the sub-sec, (2) of S. 30 and concluded that the amended provisions of S. 23 Subsec. (2) and S.s 28 are made applicable toall proceedings relating to compensation pending of April 30, 1982 or filed subsequent of theat date. Whether before the Collector or before the Court of Reference or the High court or the Supreme Court even ir they have finally terminted before the enactment of the amending Act. In the light of he conclusions reached byt ehSupreme Court inthis judgment it is necessary to consider the exact ambit of provisions of S. s30(1)(a) and (b).
6. Section 30 of the amending Act deals withtransitionsl provisions. The expression "transitional" according to Concise Oxford Dictionary means change form onf place of state or act of set of circumstances of another The transititionalo provisions byits very nature are enacted todeal with the claims arising during the introduction of the Bill and and coming into force of the amending Act. The provisions of sub-sec (1) and (2) of S. 30 are entirely independent and their fields of application are distinct and separte Sub-sec (2) of 30 prescribes that amending provisions of S. 23 (2) and S.s 28 shall apply and shallbe deemed to have applied also he and in relation toany award made by the Collector or Court or ot any order passed bythe HighCourt or Supreme Court between April 30, 1982 and September 24, 1984, By sub-sex. (2) of S. 30 right is confered on the clamied to receive solatium at the rate of 30 % instead of 15 % and interest at the enhanced rate even between the two cut off dates. That is April 30, 1982 and September 24, 1984, The legislature has encated this provision to remeove thebar of finality of the proceedings anf to enable the claimant ot receive the additional amount even thought the preceedings have been finally concluded provided the final order is passed between the two cut of dates . In other words the claimant whose claim for compensation is not decided on April 30, 1982 by any of the authorities prescirbed but determined before September 24, 1984 can made a fresh claim for the amount available inview of the amendmant of sub-s. (2) of S. 23 and amendments of S.s 28 It is, therefore clear that he transitional provsions enacted under sub-sec (2) of S. 30 confer power on the claiment todemand additional amount as per the amended provisions irrespective of the fact the the award is passed before April 30, 1982 provided that the proceedings for determin nation of compensation were pending before reference Court or appellate court on the date. The Supreme Court inBhag Singh's case 9AIR 1985 Sc 1567) had laid down this principle.
7. Now turning to the provisions of sub-sec (1) of S. 30 it is clearly recited that subsec..(1-A) of S. 23 shall apply and shall deemed tohave applied also toand in relation to every proceedings ofr acquisition of any land pending on April 30, 1982 in which no award had been made bythe Collector before that date. It was contended that the advantage of amended sub-sec. (1A) of S. 23 is available only of those proceedings for acquisition which were pending on Aprial 30, 1982 before the Collector and where no ward was made,. It is not possible to giver such a resticted meaning tosub-sec. (1) of S. 30 Section 23 (-A) presecibes that the court shall inevery case award an amount calculated at the rate of 12 per centum per annum of the marked value of be determined. The mandate is to court and not to the collector. It is no doubt true that he Collectro while determining compensation is guided by the provisions contained in Ss. 23 and 24 but the legistature by enacting sub-s. (1) of S. 30 desired to make it creysel clear that the amended provisions of S.s 23(1-A) shall apply evenin relation to the proceedings pernding before the CollectoronApril 30, 1982 and inwhichno award has been made. The crucial words in sub-sec (1) of S.s 30 are that the provisions of sub-sec 1- A of s.s 23 --- shall apply and shall be deemed to have applied also toand inrelation to "case converedby cls (a) and (b) The expression alsotoand in relation to clearly indicates that the case s set out in Cls. (a) and (b) arenot the only cases of which the amended provisions of sub-sec (1-A) of S. 23 apply The sweep of sub-sec. (1) of s. 30 is very wide and takes in its embrace even the cases set out undr Cls. (a) and (b) In our judgment it is not possible to read down the provisons of sub-sec (1) of S. 30so as to restirct the application of the amended provisions of sub-sec (1-A) of s. 23 only to two cataegories of cases set out in Cls. (a) and (b) clause (A) covers the cases where the acquisition proceedings had already commended before April 30, 1982 but in which no award has been made by the Collector by that the date while Cl. (b) deals with the cases where proceeedings for acquisitio where commended after April 30, 1982 and where the kawqrd has been made or not made before September 24, 1984 It is obvious that the legislature desired to confer the advantage of amended provisions of sub-sec. (1-A) of s. 23 even to those cases where the acquistition proceedings before Collector commended and concluded between the cut- off dates. In our judgment the provisions of amended sub- sec. (1-A) of S. 23 apply to all cases pending on April 30, 1982 either before the Collector or before the Court in reference or before the High court Or Supreme court in appeals. Irrespective of the fact whether theaward is decleard prior to April 30, 1982 or in a susequent date. We are unable to accept the submission that the Parliament encactd sub-sec. (1) of S. 30 to indicate clearly and beyond doubt that the amended sub-sec. (1-A) of S. 23 was to given onlythe wards mad ebythe Collector After April 30, 1982 and is not applicable to the preceedings pendings before the reference Court or before the appellante Courts where the wards the declared bythe collector prior to April 30,1982, case the Parliament intended to precribe such a restrited application of he amended provisins thenthe phraseology of S. 30(1) would have been to tally Differnet. The Statement of Objectes and Reasons of the amending Act clearly recites that the amendment was enacted as a large number of cases of the acquisition of land are pending before various authorities for a very long lime and payment of he market value of the land of obtaining onth edate of the preliminary notification under s. 4 of the Act likely to be unrealistic and iniquitous. By insertion of amending provision of sub-s, (1-A) od S. 23 the object proposed to be acheved was paymebt of simple interest at 12 pwe centum per annim of the a,mount of compensation for the period commencing formt he date of issue of intification under S. 4 to the date of lender of payment in respet of all pending proceedings of Aprial 30, 1982. The Statement of Objects indicates that the parliament did not desire torestirct theadvatage of the amended provisions only to those cases where theaward was declared subsequent of april 30, 1982, but was desirous of conferring the benefit infavour of claimants whose prceedings of dtermination of compensation were pending before the authorities under the Act or the appellate Courts.
It was stenuosuly urged on behalf of Land Acquisition Officer that while interpreting thetrue ambit of sub-sec. (12) of S. 30 the different phraseoloty used by legislature in sub-sec (1) and (2) should be borne in mind. Sub-sec. (1) refers to every prceedings for acquisition in which noaward has ;been made by Collector, or Court andorder passed by High Court and Supreme Court. Proceedings for acquisition. It was contended, commence with S.4 notificaiton and ends with award and taking ouver of possession and therefore sub-sec (1) keeps out refernece prceedings before court and proceedings thereafter before appellate suthorities. It was submitted that in case sub-sec. (1) was not limited only to cases covered under Cls. (a) ans (b) then there was no occasion toenact different sub-sec (q) and (2) of S. 30 The submission overlooks that sub-sec, (1) and (2) covers defferent areas, sub-s.(2) deals with cases decided between cout ot dates and deals withenhanced amount of solatium and rate in interest. The rights which were already available to claimant under unamended act while sub-sec. (1) coveral all cases where the prveedings are not concluded before Aprial 30, 1982 and deals with a new right of receive amount in accordings withamended S. 23(1-A) of the Act, The enactment of different subsections and differnet phraseology cannot. Therefore warrant a conclusion that advantage of S. 23(1-A) is available only to those cases where the award is passed by Collector after April 30, 1982.
8. We are therefore in agreement with the view taken by theDivision Bench of June 25, 1985 in the case of Smt. Nayantare W/O Gangadhar Agrawal v. Government of Goa, Daman and Diu, first Appelas Nos,. 62 and 63 of 1984 and decision of the Division Bench , Union of India v. Smt Maria Olivia Carvalho and express our disagreement with the view taken by the Division Bench , Hiraji Budho Dhake v State of Maharashtra The decision in Hiraji's case canot be regarded as laying down the correct law in regard to the interpretation to sub-sec (1) of 30. The decision in Hiraji's case inregard tot he interpertation of sub-sec (2) the Supreme Court in Bhan Singh's case . We are also in agreement with the conclusion reached by Delhi High Court in the decision , Raghbir Singh v. Union of India and the conclusions reached by the Full Bench of he Karnataka High Court in the dicision reported in AIR 19186 Kant 179, Special Land acquisition Officer Dendelhi V. Some Gopal Gawda and decision of the single Judge of the Punjab and Haryana High Court , Puran. V. State of Haryana.
Our answer of apont NO. 1 referred to the larger Bench is that the amended provision of sub-sec. (1-A) of S. 23 of the Act is applicable to all cases pendingof Aprial 30, 1982 whether before the Collector or before the Court of reference under S.18 or before the High Court or Supreme Court of appeals.
Section 28 of the Act to its amendement read as under.
"28. If the sum which in the opinion of he Court the Collector ought to have awarded as compensation is in excess of the sum of sum which the Collector did award as compensation,the ward the of court may direct the the Collector shall pay interest in such excess at the date of six per centum per annum from thedate onwhich he took possession of the land to the date of payment of such excess into court."
By S. 18 of the amending Act,. The words "six per centum" were subsituted bythe words "none per centum" and a proviso was inserted at the end of the section whichreads as under:
"Provided that the award of the Court may also direct that where such excessor any part thereof is paid into court after the date of exprity of perod of one year formthe date onwhich possesion in taken, interest at the rate of fitteen per centum per annum shall be payable formthedate of expirty of the said period of one year on the amount of such excess of part thereof whichhas not beenpaid into court before thedate of such expirty."
It was contended that the view taken by the Division Bench in Union of India v. Maria Olivia Carvalho, that the enhanced rate of fifteen per centum per annum prescribed under the proviso must be awarded in all cases is not correct. It was urged thag payment of such enhanced interest is nt mandatory but its grant llies exclusively in the discrition of the Court reliance was placed on the use of the expression 'may' both in S. 28 and the amended proviso to contend that the grant of enhanced rate of interest is not a must in every case, but lies witin the dicretion of the Court In support of the soubmission reliance is placed on the decision of the Supreme Court . (Reghubans) Narain Sigh v. Uttar Pradesh Government where the question considered was whether theCourt has a dicretion togrant interest under S. 28 of the Act. The Supreme court observed (at p. 469).
"in its language the discretion that is conferred on the court is whether in the given circumstances of a particular as the Court should award interest or not. The words the part of Court to grant orrefust to grant interest. But the words following those words, viz., the Collector shall pay interest onsuch excess at the rate of six per centum per annum' would mean that once the discretion to grant interest is exercised there is no further discrition and the interest if awarded to has be at therate of six per centum per annum."
In the view of the idctum land down bytheSupreme Court it is obvious that it is not obligatoty in the court to award interest either under S. 28 or the enhanced interest under the amended prisio thout it must be made clear that the discretion to be exercised is judicial in nature and not arbitrary. In normal course the claimant is entitled to the award of interest under S. 28 of the Act and also of interest under S. 28 of the Act and also to enhanced interest under the amended proviso to s. 28 and unlessspecific case is made out the claimant could not be deprived of the advantage. It shoul not be overlooked that the proceedings in acquisition are compulsory in nature and theclaimant must be awarded all the benefits provided under the statute unless it is shown byt heacquiring authority that the claimant has disentitled himself to avail of the same.
Our answer to question (b) referred to the larger Bench is that thegrant of enhanced rate of interest prescribed under proviso of s.s 58 is within the discretionary powers of the court.
The appeals shouldnow the posted before theconcerned Courts for disposal on merits.
9. Reference answered accordingly.