fa1581.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 1581 OF 2009 Godawari marathwada Irrigation Development Corporation Aurangabad Through its Executive Engineer Lower Terna Canal Division No. 2, Latur. .. APPELLANT VERSUS 1 The State of Maharashtra Through Collector, Latur. 2 Hiralal s/o Govindrao Awate age 42 years, occ. agri r/o Manathpur, Tq. Nilanga Dist. Latur. .. RESPONDENTS Mr. B.R. Survase, advocate for the appellant. Mr. S.D. Kaldate, AGP for the State. WITH FIRST APPEAL NO. 1582 OF 2009 Godawari marathwada Irrigation Development Corporation Aurangabad Through its Executive Engineer Lower Terna Canal Division No. 2, Latur. .. APPELLANT VERSUS 1 The State of Maharashtra Through Collector, Latur. fa1581.09 2 2 Chaturabai w/o Hiralal Yewate age major, occ. agril & household r/o Manathpur, Tq. Nilanga Dist. Latur. .. RESPONDENTS Mr. B.R. Survase, advocate for the appellant. Mrs. V.A. Shinde, AGP for the State. WITH FIRST APPEAL NO. 1583 OF 2009 Godawari marathwada Irrigation Development Corporation Aurangabad Through its Executive Engineer Lower Terna Canal Division No. 2, Latur. .. APPELLANT VERSUS 1 The State of Maharashtra Through Collector, Latur. 2 Maheboob s/o Nabisaheb Saudagar age major, occ. agri r/o Manathpur, Tq. Nilanga Dist. Latur. .. RESPONDENTS Mr. B.R. Survase, advocate for the appellant. Mr. S.D. Kaldate, AGP for the State. WITH FIRST APPEAL NO. 1584 OF 2009 Godawari marathwada Irrigation Development Corporation Aurangabad Through its Executive Engineer fa1581.09 3 Lower Terna Canal Division No. 2, Latur. .. APPELLANT VERSUS 1 The State of Maharashtra Through Collector, Latur. 2 Sou Mahananda w/o Chandrakant Dharmshetti age major, occ. agril r/o Manathpur Tq. Nilanga Dist. Latur. .. RESPONDENTS Mr. B.R. Survase, advocate for the appellant. Mrs. V.A. Shinde, AGP for the State. WITH FIRST APPEAL NO. 1585 OF 2009 Godawari marathwada Irrigation Development Corporation Aurangabad Through its Executive Engineer Lower Terna Canal Division No. 2, Latur. .. APPELLANT VERSUS 1 The State of Maharashtra Through Collector, Latur. 2 Usmanmiya s/o Hafizoddin Deshmukh died thorugh LRs 2(i) Jaibunbi wd/o Jabbarmiya Deshmukh age 65 years, occ. household fa1581.09 4 r/o Manthpur Tq. Nilanga Dist. Latur. 2(ii) Iqbalmiya s/o usmanmiya Deshmukh age 66 years, occ. agril r/o Manthpur Tq. Nilanga Dist. Latur. 2(iii) Hafijmiya s/o Usmanmiya Deshmukh age 50 years, occ. agril r/o Manthpur Tq. Nilanga Dist. Latur. 2(iv) Jalil s/o Usmanmiya Deshmukh age 45 years, occ. agril r/o Manthpur Tq. Nilanga Dist. Latur. Respondent No. 2(iv) dismissed vide order dt. 23-4-2010 .. RESPONDENTS Mr. B.R. Survase, advocate for the appellant. Mr. S.D. Kaldate, AGP for the State. ===== CORAM : A.V. POTDAR DATE : 21 st NOVEMBER, 2011. ORAL JUDGMENT : 1. Admit. By consent heard finally at admission stage. 2. Heard Mr. Survase, learned counsel for the appellant and learned AGP for the State. Respondent no. 2 is absent in all the appeals though duly fa1581.09 5 served. 3. Godawari Marathwada Irrigation Development Corporation, Aurangabad / Acquiring Body raised challenge in this group of appeals raising exception to the judgment and award dated 18-2-2008 passed by the Civil Judge, Sr.Dn., Nilanga by which group of reference being LAR No. 748/1998 to 752/1998 were disposed of. 4. It is not in dispute that the lands of the claimants were acquired for Left Bank Canal of Lower Terna Project. Possession of the lands was acquire by private negotiation. It is the contention of the claimants that the land under acquisition is extremely fertile and capable of irrigated crops. The land under acquisition was able to fetch higher value than the price estimated by the Land Acquisition Officer who has awarded compensation at lower rate at Rs. 12,000/0 per are treating the acquired land as dry land. According to claimants / respondent no. 2, market price of the acquired land at the relevant time was Rs. 80,000/- per acre. It is also contended that the acquired lands are adjacent to the bank of river Terna and having sufficient water irrigation facility. State issued notification in the year 1990 which was published in the Government Gazette on 27-8-1990. Notification fa1581.09 6 of acquisition under section 6 of the Land Acquisition At was notified on 12-5-1992. The award came to be passed on 21-9-1995. Accordingly, compensation was offered and was received by the claimants under protest. Claimants being dis-satisfied with the award passed by the Land Acquisition Officer, filed civil applications requesting for reference of the matter for determination of proper market value of the acquired lands. Under the circumstances, reference applications were referred to the Civil Judge, Sr.Dn., Nilanga who was pleased to allow the same. 5. The only objection raised to the impugned judgment and award is in respect of award of rental compensation at the rate of 8 percent from the date of notification under section 4 of the Land Acquisition Act i.e. from 10-1-1992 till the date of award i.e. 12-9-1995. 6. During the course of submissions across the bar, learned counsel for the appellant drew my attention towards the award which is part and parcel of the record and proceeding received from the court below. He also drew my attention towards the contents of paragraph no. 2 of the reference application under section 18 of the Land Acquisition Act so also paragraph no. 2 of the amended application wherein there is statement that the fa1581.09 7 possession of the lands of the claimants was taken by the acquiring body by private negotiation before notification under section 4 of the act i.e. 10-1-1992. According to learned counsel for the appellant, the judgment is totally silent so far as evidence of claimants before lower court. The judgment is also silent as regards the exact date on which possession was taken by the acquiring body. In substance, according to the learned counsel for the appellant, claim granted by the reference court in terms of clause 3 of the operative part does not sustain in view of observations of the Apex Court in the matter of R.L. Jain vs.D.D.A. and others reported in 2004 AIR (SC) 1904. Reliance is also placed on judgment of the Single Bench of this Court in the group of appeals bearing First Appeal No. 1236/2011 and other companion appeals decided on 19-7-2011 which is identical with the subject matter of this group of matters. In paragraph nos. 6 and 7 of the judgment refereed above, the learned Single Judge of this Court has observed thus : 6 Mr. Survase, learned counsel for the appellant contends that the possession of the disputed lands is allegedly taken over on 1-6-1984 whereas notification under section 4 of the Land Acquisition Act was issued on 28-7-1995 on second occasion. Proceedings were initiated under the Land Acquisition Act after issuing fa1581.09 8 notification under section 4 of the Land Acquisition Act and award is passed by the Collector on 29-10-1995. According to learned counsel for the appellant, the claimants are not entitled to receive the benefits under the Land Acquisition Act anterior to issuance of section 4 notification. Learned counsel for the appellant places reliance on the judgment of the Apex Court in the matter of R.L. Jain vs. D.D.A. and others reported 2004 AIR (SC) 1904 and contends that the possession taken over by the acquiring body prior to initiation of proceeding under Land Acquisition Act is not within the contemplation of provisions of Land Acquisition Act and as such the benefits accruable to the claimants under the provisions of Land Acquisition Act cannot be paid in the event possession of the lands is taken prior to issuance of section 4 notification. Learned counsel Mr. Survase has invited my attention to paragraph nos. 12 and 18 of the judgment which read thus : 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, Ss. 11 and 15 of the Act which by virtue of S. 23 (1) mean market value of the land on the date of Notification under S. 4(1) and other amounts like statutory sum under sub-section (1-A) and solatium under sub- section (2) of S. 23. . The heading of Part II of the Act is fa1581.09 9 acquisition and there is a sub-heading “Taking Possession” which contains Ss. 16 and 17 of the Act. The words “So taking possession” would therefore mean taking possession in accordance with S. 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 Ss. 4(1) and 9(1) of the Act. If possession is taken prior to the issuance of the Notification under S. 4(1) it would not be in accordance with S. 16 and 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 S. 28 of the Act would also mean lawful taking of possession in accordance with S. 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 S. 4(1) of the Act which is dehors the provisions of the Act. 18 In a case where the land owner is dispossessed prior to the issuance of preliminary Notification under S. 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of fa1581.09 10 the property. Where possession is taken prior to the issuance of the preliminary Notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property. The provisions of S. 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded. . On consideration of the scheme of the Land Acquisition Act, as has been observed by the Apex Court, taking over of the possession prior to initiation of proceeding under Land Acquisition Act cannot be said to be “so taking over possession” within contemplation of sections 16 and 17 of the Land Acquisition Act. The claimants, therefore, would be entitled to claim damages or rental compensation in a separate proceeding. However, they cannot claim benefits under sections 28 and 34 of the Land Acquisition Act. In the instant group of matters, reference court has directed payment of rental compensation at eight percent pr annum from 1-6-1984 till 28-7-1995. It was not open for the reference court to direct payment of rental compensation while dealing with the reference applications which are presented under the provisions of Land Acquisition Act. It would be open for the claimants to agitate their grievance in respect of payment of damages or rental compensation in accordance with the policy prescribed by the State Government, by filing appropriate proceeding. It was an error on the part of the reference court to direct payment of rental compensation while dealing with the reference applications. Direction issued by the reference court in respect of payment of rental compensation being in violation of provisions of Land fa1581.09 11 Acquisition Act is liable to be set aside and the same is accordingly set aside. 7 Another objection raised by the appellant is in respect of payment of interest under section 34 of the Land Acquisition Act. On consideration of the judgment of the Apex court ( supra ) it would be clear that in the instant group of matters, possession taken over by the acquiring body cannot be said to be “so taking over possession” within contemplation of sections 16 and 17 of the Land Acquisition Act. Claimants, therefore, are not entitled to claim interest under section 34 of the Land Acquisition Act as the possession is taken over prior to initiation of proceeding under the Land Acquisition Act. Direction issued by the reference court in respect of payment of interest under section 34 of the Land Acquisition Act from 28-7-1995 is beyond the scope of the proceeding and is liable to be quashed and set aside. Direction issued by the reference court in respect of payment of interest under section 34 of the Land Acquisition Act is accordingly quashed and set aside. 7. Perusal of the record and proceeding clearly disclose that the subject matter of these appeals is identical with the subject matter of group of appeals decided by the learned Single Judge of this Court vide order dated 19-7-2011. Considering this aspect, the impugned award in this group of appeals, in terms of clause 3 about recovery of rental compensation at the rate of 8 per cent per annum from the date of notification under section 4 of the Land Acquisition Act i.e. 10-1-1992 till the date of award is hereby quashed and set aside. It is hereby clarified that the award and judgment fa1581.09 12 impugned is modified to the extent of clause no. 3 only and confirmed so far as remaining part of the judgment is concerned. Appeals stand disposed of accordingly. Considering the facts and circumstances, no order as to costs. It is hereby clarified that if the claimants are entitled to any remedy available under law, they are not precluded to avail that remedy by virtue of this judgment. ( A.V. POTDAR ) JUDGE dyb