RFA No.2473 of 1989 1 In the Punjab and Haryana High Court,at Chandigarh. RFA No. 2473 of 1989 Decided on December 12,2008. State of Haryana Appellant vs. Manbhari Respondent Coram: Hon'ble Mr.Justice Rakesh Kumar Jain. Present: Mr.Rajiv Kawatra,Sr.D.A.G,Haryana,for the appellant(s) None for the respondent (s)/landowners(s) Rakesh Kumar Jain,J: This order shall dispose of seven Regular First Appeals bearing RFA Nos.2473 to 2475 of 1989 and 1141 to 1144 of 1991, as common question of law and facts are involved therein. Vide notification dated 15.4.1979 issued under Section 4 of the Land Acquisition Act, 1894 (for short,'the Act') followed by subsequent notification dated 14.8.1979 issued under Section 6 of the Act, 66.774 acres of land in village Bhatsana, Tehsil Rewari, District Mohindergarh was acquired for constructing Massani Barrage by the Irrigation Department. Land Acquisition Collector vide his award No.37 dated 27.6.1980 divided the land into four categories and assessed the RFA No.2473 of 1989 2 compensation as under:- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - Chahi: @ Rs.11,000/- per acre Barani: @ Rs.7,000/- per acre Bhood: @ Rs.6,000/- per acre Banjar: @ Rs.4,.000/- per acre - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - -- - -- -- - - - - - - - - - - - - On reference made by the landowners/claimants under Section 18 of the Act, the learned Addl.District Judge, Narnaul, vide his award dated 12.6.1989 enhanced the compensation in respect of Chahi land from Rs.11,000/- per acre to Rs.14,000/- per acre and also awarded solatium @ 30% under Section 23 (2) of the Act, additional compensation @ 12% under Section 23 (1-A) of the Act and interest @ 9% and 15% per annum as provided under Section 28 of the Act. Mr. Rajiv Kawatra, Sr. D.A,G,Haryana, appearing for the appellant-State has only objected to the award of additional compensation under Sections 23 (2), 23 (1-A) and 28 of the Act on the ground that the notification under Section 4 of the Act was issued on 15.4.1979 followed by a notification of declaration under Section 6 of the Act dated 14.8.1979 for which the award was announced by the Collector on 27.6.1980. I have heard the learned counsel for the appellants and have perused the record. Before proceeding with the adjudication of the present lis, both the provisions of Section 23 of the un-amended Act and amended Act are required to be noticed: Section 23 of the un-amended Act. “Matters to be considered in determining compensation- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration:- RFA No.2473 of 1989 3 first, the market value of the land at the date of publication of the [notification under section 4, sub section (1)] ; secondly, the damage sustained by the person interested, by reason of taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of Collector's taking possession of the land,by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona-fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector taking possession of the land. (2) In addition to market value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market value, in consideration of the compulsory nature of the acquisition.” Section 23 of the amended Act. “Matters to be considered in determining compensation- (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration:- first, the market value of the land at the date of publication of the RFA No.2473 of 1989 4 [notification under section 4, sub section (1)] ; secondly, the damage sustained by the person interested, by reason of taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of Collector's taking possession of the land,by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; fifthly,if,in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona-fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector taking possession of the land. (2)In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per-centum per annum on such market value for the period commencing on and from the date of publication of the notification under section 4 , sub section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation : - in computing the period referred to in this sub section, any period or periods during which the proceedings for the acquisition of the RFA No.2473 of 1989 5 land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of [thirty per centum] on such market value, in consideration of the compulsory nature of acquisition. Section 28 of the unamended Act. Collector may be directed to pay interest on excess compensation:- If the sum which in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess @ six per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court. Provisions of the amended Act Collector may be directed to pay interest on excess compensation:- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess @ (nine per centum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court: [Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest @ fifteen per centum per annum shall be payable from the date of expiry of the RFA No.2473 of 1989 6 said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.] According to the above provisions, Section 23(1-A) has been added in Section 23 vide which the Court, in every case shall award an amount calculated @ 12% per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4 (1) in respect of such land to the date of award of the Collector or the date of taking the possession of the land whichever is earlier. But while computing the aforesaid period, if any period or periods during which the proceedings of the acquisition of land were held up on account of any stay or injunction by the order of any Court shall be excluded. Under Section 23(2) of the amended Act, amount of solatium from 15% to 30% was raised and as per the amendment of Section 28, interest @ 9% for the first year and 15% for the subsequent year is envisaged. In the present case, notification under Section 4 of the Act was issued on 15.4.1979. Notification of declaration under Section 6 was issued on 14.8.1979. The Land Acquisition Collector gave his award on 27.6.1980 but the learned Reference Court gave its award on 12.6.1989. In the backdrop of the aforesaid facts, so far as the applicability of Section 23(1- A) of the Act is concerned, majority view on the decision of the Supreme Court in the case of K.S. Paripoornan v. State of Kerala and others, AIR 1995 Supreme Court 1012 makes its clear that provision of Section 23 (1-A) of the Act is applicable only to cases where the award of the Collector has been made after 30.4.1982 and the said provision is not app- licable to cases where the award of the Collector was made prior to RFA No.2473 of 1989 7 30.4.1982, although the award of the learned Reference Court or the High Court or even of the Supreme Court has been passed after 30.4.1982 or even after 24.9.1984 when the amending Act 68/84 was enforced. In another case reported as Krishi Utpadan Mandi Samiti Bulandshahr etc v. Ganga Sahai & Ors.etc. J.T.1996 (7) Supreme Court 120, notification under Section 4 of the Act was issued on 25.5.1976 and the award of the Collector was passed on 10.5.1977. The learned Additional District Judge, gave his award on 15.9.1979. The Supreme Court thus held that the landowner shall not be entitled to enhanced solatium and interest and additional amount since the learned Reference Court had made the award and decree on 15.9.1977 much earlier to the introduction of the amended Act 68/84. Only solatium @ 15% and interest @ 6% were allowed on the enhanced compensation from the date of taking possession till date of deposit. In the present case, since the award of the learned Reference court is after 1982 but the award of the Collector is before 30.4.1982, the claimant/landowner shall be entitled to the benefits in view of Section 23 (2) and Section 28 of the Amended Act in view of the judgment of the Supreme Court in the case of Union of India and another v. Raghubir Singh (dead) by LRs. etc. A.I.R.1989 Supreme Court 1933, but the claimant shall not be entitled to the benefit of Section 23 (1-A) of the Act. To summarize what has been said above, (i) If the award of the Collector is after 30.4.1982, the claimant shall be entitled to all the benefits of amended Act; (ii) If the award of the Collector is before 30.4.1982 but the award of the Civil Court in reference under Section 18 of the Act, is after 30.4.1982, the claimant is entitled to the RFA No.2473 of 1989 8 benefits under Section 23 (2) and Section 28 as amended by the Amending Act, but is not entitled to the benefit under Section 23 (1-A) of the Act; In view of the above discussion, the appeals filed by the State of Haryana, are partly allowed and that of the landowners/claimants are dismissed, however, without any order as to costs. December 12,2008 (Rakesh Kumar Jain) RR Judge