Executive Engineer, Lower (Nimn) Dudhana Project, Selu Division, Selu and Anr v. Appasaheb Gokul Bhawar

JUDGMENT :

¶1Heard.

¶2Admit. Taken up for final hearing with the consent of parties.

¶3By these first appeals filed under Section 54 of the Land Acquisition Act, acquiring body challenges clause (4) of the common judgment and award passed by 4th Joint Civil Judge, Senior Division, Dist. Ahmednagar in Land Acquisition Reference Nos. 11 of 2011 to 66 of 2011, thereby awarding interest under Section 28 @9% per annum w.e.f. 01.09.1984 for a period of one year and thereafter @ 15% till realization of the amount and under Section 34 w.e.f. 01.09.1984 till the date of award.

¶4Facts which are necessary to decide these first appeals are as follows: Jayakwadi dam was constructed in the year 1971. For this project some lands were acquired. However, lands of the claimants were not acquired. In the year 1984 Jayakwadi dam was filled to its maximum capacity and lands of the claimants {38} submerged in the water. Since claimants were unable to cultivate their lands as their lands were submerged in the water, they made correspondence with the Government and subsequently filed Writ Petition No. 133 of 2005 in this Court. In the said petition, a statement was made that Government has started acquisition process, hence, this Court directed that the joint measurement should be carried out within one month and award be passed within one year. In spite of directions issued by this Court, lands were not acquired and award was not declared.

¶5Notification under Section 4 was published on

07.02.2008 and award was declared on 30.09.2008. Special Land Acquisition Officer awarded compensation @ Rs. 2461 to Rs. 3250 per Are as per the category of the land. Claimants filed references for enhancement. Appellant/acquiring body did not participate in the references and ex-parte award was passed against it. Reference Court by common judgment and award granted compensation @ Rs. 4506 to Rs. 9012 per Are as per the category of land. Impugned clause (4) of the operative order of judgments and awards reads thus: "4-vtZnkj fn-01@09@1984 iklwu Eg.ktsp rkck xsY;kP;k fnolkiklwu Hkqlaiknu dk;nk dye 28 izek.ks 1 o"kkZlkBh n-lk-n-'ks- {39} 9 Vdds o RksFkwu iq<s laiq.kZ jDde olqy gksbZi;Zar n-lk-n-'ks-15 Vdds njkus O;kt feG.;kl ik= vkgs-rlsp Hkqlaiknu dk;nk dye 34 uqlkj fn-01@09@1984 iklwu vokWMZP;k rkj[ksi;Zar dk;n;kuqlkj Qk;nk feG.;kl ik= vkgs-" Appellant/Acquiring Body is aggrieved by the direction in the above clause thereby awarding interest w.e.f.

01.09.1984.

¶6Heard learned advocates for appellant-acquiring body, learned AGP for State and learned advocates for claimants.

¶7Learned advocates representing appellants assailed clause (4) of the award by submitting that Reference Court could not have awarded interest by presuming that claimants lost possession of their respective lands w.e.f. 01.09.1984. They submit that there is no material on record to show that possession was taken on 01.09.1984. In view of the fact that notification under section 4 is published on 07.02.2008 and award was declared on 13.09.2008, claimants are entitled for interest under section 28 from 13.09.2008. In support of their submissions they relied on State of Maharashtra Vs. Kailash Shiva Rangari, 2016(4) ALL MR 513 (F.B.) and Lila Ghosh (SMT)

(DEAD) Through LR. Tapas Chandra Roy vs. State of W.B., {40}

(2004) 9 SCC 337.

¶8Learned advocates for claimants, on the other hand, supported the impugned judgment and award. They submitted that the Reference Court is justified in awarding interest w.e.f.

01.09.1984 on the ground that Jayakwadi dam was filled to its maximum capacity in the year 1984, hence, claimants lost possession of their lands in the year 1984, as they could not take crops, since the dam was filled to its maximum capacity. They further submitted that they have examined officer of irrigation department, namely Bhimrao Deshpande, Deputy Engineer, Paithan Jalvidyut Prakalp, Sub Division, Aurangabad, to prove letters Exhibit-16 to 18, by which his office directed some of the claimants that since the dam is filled to its maximum capacity and acquisition process is in progress, they should not take crops in their respective lands, which are under survey. If the crops are sown and they are damaged by water, his office will not be responsible for the same. By relying on these letters and his evidence it is submitted that this is sufficient to prove that possession of the lands of claimants was taken in the year 1984. Hence, they tried to justify the direction to award of interest w.e.f. 01.09.1984, contained in clause (4) of the award. {41}

¶9Heard learned advocates for acquiring body, learned AGP for State and learned advocates for claimants at length. Perused the record.

¶10The point raised in these first appeals is no more res integra and same is squarely covered by Full Bench decision in Kailash Rangari (supra). Relevant observations of Full Bench are as follows: "13. Taking over the possession of the land by the Collector, is the necessary ingredient or an instance of vesting of title in the Government under the provisions of the said Act and it is, therefore, of a great significance. The proceedings commenced for acquisition of land upon issuing notification under Section 4(1) of the said Act can be dropped in terms of Section 48 therein, before the land vests in the Government. Once the land vests in the Government, it is not even possible to withdraw it from acquisition. For vesting of title, the manner of taking possession has to be strictly adhered to. The concept of deemed vesting of land in the Government as has been canvassed by S/Shri Agnihotri and Thakre, the learned counsel for the claimants, cannot be imported upon publication of notification under Section 4(1) of the said Act, if the possession of the land taken by the Collector de hors the provisions of the Act, continues with him upon issuance of such notification. The possession taken over in the acquisition proceedings de hors the provisions of the Act will not confer or vest the title over it in the Government merely because notification under Section 4(1) of the said Act is issued and the proceedings for acquisition of the land have commenced.

14.------ {42}

¶31If the land-owner is divested the possession of his land by the Collector or the State Government illegally or de hors the provisions of the said Act, it is open for him to recover such possession and claim rent and damages for the use and occupation for the period for which the State Government has illegally retained the possession of the land. To take care of such situation, certain administrative circulars have been issued by the State Government for payment of rental compensation, in accordance with which the claimants are paid for the period for which they are deprived of the benefits of the land till the notification is published under Section 4(1) of the said Act. We are not concerned in this matter about the rental compensation or the damages to which the claimants are entitled, if the possession of the land is de hors the provisions of the Act.

¶32Keeping in view the entire scheme of the Land Acquisition Act and the ratio of the decisions of the Apex Court in the cases of R.L. Jain and Lila Ghosh, cited supra, the position of law can be summarized as under :

(i) If the possession of the land under acquisition is taken under Section 16 of the said Act i.e. after an award is made by the Collector under Section 11 therein, the interest would be payable under Section 34 from the date of passing of the award and we are in agreement with such a view expressed by the Division Bench of this Court (S/Shri N.V. Dabholkar and M.G. Gaikwad, JJ.) in the case of State of Maharashtra & anr v. Rajendra Narayanrao Gaikwad, reported in 2008(1) BCR 839: [2007(5) ALL MR 521].

(ii) The interest as provided under Section 34 of the said Act shall start running from the date of possession, only if the possession is taken by the Collector in exercise of his powers under Section 17 of the said Act which would obviously be after issuance of notice under {43} Section 9(1) of the said Act. If the possession is taken under Section 17, the interest payable under Section 34 of the said Act shall start running from the date of possession and not from the date of award.

(iii)-----

(iv) The starting point for the purposes of calculating the amount of additional component under Section 23(1-A) of the said Act at the rate of twelve per centum per annum is the date of publication of the notification under Section 4 of the said Act, and the terminal point is either the date of the award or the date of taking possession, whichever is earlier."

¶11In the light of aforesaid observations of the Full Bench, claimants are not entitled for interest w.e.f. 01.09.1984. But interest under Section 28 and 34 needs to be awarded w.e.f. the date of award i.e. 30.09.2008.

¶12The Reference Court erred in coming to a conclusion that since the dam was filled to its maximum capacity, lands of claimants submerged in the water, in the month of September, 1984 and therefore they are entitled for interest under Section 28 and 34 from that date, without there being any material on record to show that possession was taken before passing of the award. These observations are contrary to the settled legal position, hence, cannot be sustained. {44}

¶13In the result, following order: ORDER

(I) First Appeals are allowed.

(II) Clause (4) of the common impugned judgment and award passed by 4th Joint Civil Judge, Senior Division, Dist. Ahmednagar in Land Acquisition Reference Nos. 11 of 2011 to 66 of 2011 is hereby quashed and set aside and same is substituted as follows: "(4) Claimants shall be entitled for interest under Section 28 and 34 of the Land Acquisition Act @ 9% per annum for a period of one year from the date of award i.e. 30.09.2008 and thereafter @ 15% till realization of the amount.

(III) Rest of the award is maintained.

(IV) In view of disposal of first appeals, pending civil applications, if any, are disposed of.

[NITIN B. SURYAWANSHI, J.]

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