ash 1 fa-156and116.92 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.156 OF 1992 WITH FIRST APPEAL NO.116 OF 1992 FA NO. 156 OF 1992 The State of Maharashtra. .. Appellant Vs Shankar Yeshu Gundale (since deceased) 1­a Shri Bhagwan Shankar Gundale & Ors. .. Respondents ­­ FA NO.116 OF 1992 The State of Maharashtra. .. Appellant Vs Sukhadeo Rama Sargar. .. Respondent ­­ Shri A.R. Patil, AGP for the State. ­­ CORAM : A.S. OKA, J DATED : 21ST JUNE, 2011 ORAL JUDGMENT : . Heard the learned AGP for the Appellant­State of Maharashtra. None appears for the Respondents. The office noting shows that in both the Appeals, the Court service notice was issued to ash 2 fa-156and116.92 the Respondents and the notice has been served. These Appeals can be disposed of by a common judgment. 2. The challenge in these Appeals is to the awards made under References under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). 3. The acquisition in both these Appeals related to the lands at village – Kole, Taluka­ Sangola. The lands were notified for acquisition on 24th May, 1982 by a Notification under Section 4(1) of the said Act. The award under Section 11 of the said Act was made on 23rd November, 1983. The compensation offered by the awards under Section 11 of the said Act was at the rate of Rs.7,000/­ per Hectare. By the impugned awards, the market value has been enhanced to Rs. 9,000/­ per Hectare. The learned Judge granted statutory benefits under Section 23(1­A), 23(2) and 28 of the said Act. However, relief of interest under Section 28 was granted with effect from 22nd August, 1979 on the ground that the possession was taken over prior to issuance of the notification under Section 4(1) of the said Act. 4. The learned AGP appearing for the appellant submitted that the entire approach of the Reference Court is erroneous. The market value could not have been enhanced to Rs.9,000/­ per Hectare ash 3 fa-156and116.92 in absence of any evidence on record. He submitted that the interest under Sections 28 or 34 of the said Act could not have been granted from the date prior to the date of notification under Section 4(1) of the said Act as the possession was not taken under the provisions of the said Act. 5. None appears for the Respondents. I have considered the submissions. Clause 5 of the operative part of the impugned award reads thus:­ “The applicant is also entitled to recover interest @ Rs.9% p.a. over Rs.2948.60ps for the first year from 2.8.1979 and further at the rate of Rs.15% p.a. till 30.11.1983 on which date applicant has accepted the amount under protest. (9% interest Rs.265 and 15% interest Rs.1476/­)”. 6. The learned Judge has recorded a finding that the possession was taken over in August, 1979 before the date on which the notification under Section 4(1) of the said Act was issued. In view of a decision of the Apex Court in the case of R.L. Jain (D) by Lrs. Vs D.D.A. and others (AIR 2004 SC 1904), while granting interest either under Section 28 or under Section 34 of the said Act, the same cannot be applied from a date prior to Notification under Section 4(1) of the said Act. The Apex Court held that the act of taking over such possession is not in accordance with either under Section 16 or Section 17 of the said ash 4 fa-156and116.92 Act. However, from the date of dispossession till the date of the award under Section 11 of the said Act, the Claimants can claim rental compensation/damages as per the policy of the government by filing appropriate proceedings. Thus, to that extent, the impugned award will have to be set aside. Similarly, interest under Section 23(1­A) of the said Act will not be payable as the possession was handed over prior to the notification under Section 4(1). However, the interest under Section 28 will be payable from the date of the Award under Section 11 of the said Act. The legal possession vested in the State Government on that day. 7. The Special Land Acquisition Officer has fixed the market value at Rs.9,000/­ per Hectare to the superior quality of Jirayat land. The lands subject matter of these Appeals were classified as Jirayat II inferior, and therefore, the market value was fixed at Rs.7,000/­ per Hectare. The learned Trial Judge relied upon the admission in the award under section 11 that the land under acquisition was a good piece of land. In both these cases, the Claimants stepped into the witness box and deposed regarding crops like jawar, groundnut, Bajara, paddy, etc. taken in the said land. Both of them have deposed that the acquired lands were on the bank of a stream and the same were fertile lands. The learned Reference Court has enhanced the market value to Rs.9,000/­ per Hectare which was already granted to Jirayat land of ash 5 fa-156and116.92 superior quality. Considering the area of the land subject matter of these Appeals, the enhancement granted is reasonable and in any event, the same is supported by the evidence on record. Hence no interference is called for in that behalf. 8. Hence, I pass the following order:­ (a) The Appeals are partly allowed with no orders as to costs. (b) Clauses 5 and 6 of the operative part of the impugned judgment and awards in Land Acquisition Reference No. 20 of 1989 and Land Acquisition Reference No.147 of 1990 are quashed and set aside. The clause 3 of the operative part of the impugned judgment and awards is also set aside. However, the Claimants will be entitled to interest in accordance with Section 28 of the Land Acquisition Act, 1894 subject to what is observed in Paragraph 6 above. (c) Rest of the awards are confirmed. ( A.S. OKA, J )