SCA/23146/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 23146 of 2007 To SPECIAL CIVIL APPLICATION No. 23150 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================= = RUKHIBEN MAFAJI THAKOR - Petitioner(s) Versus STATE OF GUJARAT THRO' THE SECRETARY & 1 - Respondent(s) ========================================= = Appearance : MR AJ PATEL for Petitioner(s) : 1, MR SUNIT SHAH, GOVERNMENT PLEADER for Respondent(s) : 1-2. DS AFF.NOT FILED (N) for Respondent(s) : 1, ========================================= = CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 21/07/2008 SCA/23146/2007 2/12 JUDGMENT ORAL JUDGMENT 1. As common question of law and facts arise in these group of petitions they are being disposed of by this common judgement and order. 2. In these group of petitions common question posed for consideration of this Court is; “Whether the respective petitioners-original claimants as original land owners are entitled to the interest on compensation under the Land Acquisition Act from the date of actual possession (prior to the notification under Section 4 of the Land Acquisition Act) and/or from the date of the notification under Section 4 of the Land Acquisition Act?” 3. The facts leading to the present Special Civil Applications in nutshell are as under; 3.1. The lands of the respective petitioners-original owners- original claimants came to be acquired by the respondents under the provisions of the Land Acquisition Act (hereinafter referred to as 'the Act'). Notification under Section 4 of the Act came to be published on 05/09/1991 and the notification under Section 6 of the Act came to be published on 07/09/1991. The second Special Land Acquisition Officer declared the award in LAQ Case No. 49/1991 on 06/06/1994 awarding compensation for the lands acquired at the rate of Rs. 5 per sq meter. All the respective petitioners-original claimants-original owners filed SCA/23146/2007 3/12 JUDGMENT References under Section 18 of the Act, which were numbered as Land Acquisition Reference Nos. 623/1995 to 627/1995. All the References came to be partly allowed by the learned Reference Court by judgement and award dated 02/05/1998 enhancing the amount of compensation to Rs. 65/- per sq meter. The learned Reference Court also passed an award directing to pay solatium at the rate of 30% as contemplated under the Act and also directed to pay interest at the rate of 9% for the first year of taking possession and at the rate of 15% for the period thereafter till the amount of compensation is paid. Being aggrieved and dissatisfied with the common judgement and award dated 02/05/1998 passed by the learned Reference Court, the respective petitioners-original claimants- original owners preferred First Appeal Nos. 3892 to 3896/1998. The Division Bench by judgement and order dated 29/09/1998 partly allowed the aforesaid First Appeals by enhancing the amount of compensation to Rs. 90/- per sq meter. The Division Bench also passed an order granting the benefit of 12% per annum from the date from which they were divested of the possession, as required by the provisions of Section 23 (1-A) of the Act. Being aggrieved and dissatisfied with the judgment and order passed by the Division Bench of this Court in the aforesaid First Appeals, the respondents preferred Civil Appeal Nos. 6254 to 6258/1999 before the Hon'ble Supreme Court and the Hon'ble Supreme Court confirmed the judgement and order passed by the Division Bench in so far as determining the market value of the land acquired at the rate of Rs. 90/- per sq meter, however, modified the judgement and order passed by the Division Bench to the extent that the respective petitioners-original claimants-original owners are entitled to the additional benefits under Section 23 (1-A) of the Act from SCA/23146/2007 4/12 JUDGMENT 05/09/1991 and not from 1962-63, during which year the possession of the lands acquired were taken. Thereafter, the respondents deposited the amount of compensation, considering the market value of the land in question at the rate of Rs. 90/- per sq meter calculating the interest from the date of issuance of the notification under Section 4 of the Act i.e. from 05/09/1991. As per the respective petitioners they were entitled to the interest at the rate of 15% from the date of taking over the possession i.e. 1962-63 and, therefore, the respective petitioners filed Special Darkhast Nos. 233/2006, 234/2006, 236/2006, 250/2006 and 255/2006 claiming interest at the rate of 15% per annum from 1962-63 contending interalia that the possession of the lands in question were taken over by the respondents in the year 1962-63 and as per the judgement and award passed by this Court and confirmed by the Hon'ble Supreme Court, respective petitioners are entitled to the interest at the rate of 15% per annum from the date of possession i.e. 1962-63. All the respective petitioners submitted applications, Exh. 8 in Special Darkhast Nos. 233/2006, 234/2006, 236/2006, 250/2006 and 255/2006 under Order 21 Rule 30 of the Code of Civil Procedure for issuing jungam warrant for recovery of the amount of interest at the rate of 15% from the date of possession i.e. 1962-63 till 05/09/1991. The learned 2nd Additional Senior Civil Judge, Ahmedabad-Rural, Mirzapur by impugned order dated 21/07/2007 rejected the applications, Exh. 8 in Special Darkhast Nos. 233/2006, 234/2006, 236/2006, 250/2006 and 255/2006 by holding that the respective petitioners are not entitled to interest at the rate of 15% per annum payable under the Act for the period prior to the notification under Section 4 of the Act. Being aggrieved and dissatisfied with the SCA/23146/2007 5/12 JUDGMENT impugned orders passed by the learned Executing Court dated 21/07/2007 below Exh. 8 in Special Darkhast Nos. 233/2006, 234/2006, 236/2006, 250/2006 and 255/2006, the respective petitioners-original claimants-original owners have preferred the present Special Civil Applications under Article 227 of the Constitution of India claiming interest at the rate of 15% per annum from the date of taking over the possession of the lands acquired i.e. 1962-63 payable under the Act i.e. for the period prior to the notification under Section 4 of the Act. 4. Shri Shital Patel, learned advocate appearing on behalf of the respective petitioners has vehemently submitted that the learned Executing Court has materially erred in rejecting the applications, Exh. 8 and denying the interest at the rate of 15% per annum from 1962-63 i.e. from the date of taking over actual possession. It is submitted that the judgement and award passed by the learned Reference Court awarding interest at the rate of 9% per annum for the first year of taking possession and thereafter at the rate of 15% per annum from the date of taking over the possession, so far as that part of the award is concerned, the same came to be confirmed up to the Hon'ble Supreme Court and, therefore, the respective petitioners are entitled to the interest at the rate of 15% per annum from the date of actual possession i.e. 1962-63. It is submitted that the learned Executing Court has misinterpreted and/or not properly appreciated the order passed by the Hon'ble Supreme Court. It is submitted that admittedly the possession of the lands acquired were taken over by the respondents in the year 1962-63 and the notification under Section 4 of the Act came to be published in the year 1991 and for all these years, the respective petitioners-original SCA/23146/2007 6/12 JUDGMENT claimants-original owners were deprived of the possession of the lands acquired and, therefore, the respective petitioners are entitled to the interest at the rate of 15% per annum payable under the Act. It is further submitted that the learned Executing Court has materially erred in going beyond the decree when it was under the obligation to confine itself only to the execution of the decree as it is. It is further submitted that the learned Executing Court failed to appreciate Section 28 of the Act, which contemplates giving interest from the date of taking possession irrespective of the fact that whether the possession was taken prior to issuance of Section 4 notification. By making the above submissions it is requested to allow the present Special Civil Applications. 5. All these petitions are opposed by Shri Sunit Shah, learned Government Pleader appearing on behalf of the respondents. It is submitted that the petitioners-original claimants-original land owners are entitled to the interest payable under the Act from the date of taking over the possession and/or from the date of initiation of the proceedings under the Act i.e. from the date of the notification under Section 4 of the Act. It is submitted that for the period prior thereto as there were no proceedings under the Act, there is no question of payment of interest payable under the Act. It is further submitted that even as such the Hon'ble Supreme Court has by modifying the judgement and order passed by this Court, granted the benefit under Section 23 (1-A) only from the date of the notification under Section 4 of the Act and not from the date of actual taking over the possession i.e. 1962-63 and, therefore, it is submitted that as such the impugned orders passed by the learned Executing Court below SCA/23146/2007 7/12 JUDGMENT Exh. 8 in not awarding the interest at the rate of 15% per annum payable under the Act for the period prior to the notification under Section 4 of the Act is just and proper and in consonance with the order passed by the Hon'ble Supreme Court. It is further submitted that even the prayer of the respective petitioners to pay the interest at the rate of 15% per annum from 1962-63 is not justifiable in as much as the amendment under Section 28 of the Act was brought in the year 1984 and with respect to the award and the orders passed after 30/04/1982, and, therefore, the respective petitioners cannot claim interest on the excess amount of compensation, which was not there in the statute at all. Shri Sunit Shah, learned Government Pleader has heavily relied upon the following decisions of the Hon'ble Supreme Court in support of his prayer to dismiss the present Special Civil Applications in support of his submission that the respective petitioners- original claimants-original owners are entitled to the interest on the excess amount of compensation only from the date of the notification under Section 4 of the Act. 1. SMT. LILA GHOSH Vs STATE OF WEST BENGAL reported in AIR 2004 SC 288; 2. R.L. JAIN Vs. D.D. A AND Ors reported in AIR 2004 SC 1904; 3. SIDDAPPA VASAPPA AND ANR Vs. SPECIAL LAND ACQUISITION OFFICER AND ANR reported in 2002(1)SCC 142. 5.1. By making the above submissions and relying upon the above decisions, it is requested to dismiss the present Special Civil Applications. SCA/23146/2007 8/12 JUDGMENT 6. Heard the learned advocates appearing on behalf of the respective parties. It is an admitted position that the notification under Section 4 of the Act to acquire the lands of the respective petitioners came to be issued for the first time on 05/09/1991 and, therefore, it can be said that the proceedings under the Act came to be initiated on 05/09/1991. It appears that the possession of the lands acquired were taken over by the respondents with the consent of the respective petitioners-original claimants-original land owners by private negotiation in the year 1962-63 and, therefore, it is the case on behalf of the respective petitioners-original claimants- original land owners that they are entitled to the interest on the amount of compensation as contemplated under Section 28 of the Act at the rate of 15% per annum from 1962-63. The learned Executing Court rejected the applications submitted by the respective petitioners claiming interest at the rate of 18% per annum on the amount of compensation from 1962-63 by holding that the respective petitioners-original claimants- original owners are entitled to the interest at the rate of 15% per annum from the date of the notification under Section 4 of the Act. 7. Some what identical question came to be considered by the Hon'ble Supreme Court in the case of SMT. LILA GHOSH (Supra). The Hon'ble Supreme Court in the aforesaid decision has observed and held that the interest is payable under Section 34 of the Act only if the compensation, which is payable, is not paid or deposited before taking possession and the question of payment or deposit of compensation will not arise if there is no acquisition proceedings. It is further held SCA/23146/2007 9/12 JUDGMENT that in case where possession is taken prior to the acquisition proceedings a party may have a right to claim compensation or interest but such a claim would not be either Sections 34 or 28 of the Act and, therefore, it is held that the interest under Sections 34 or 28 of the Act can only start running from the date the compensation is payable and normally this would be from the date of the award. 8. In the case of R.L. JAIN (Supra) while considering the interest awarded under Section 34 of the Act, again the Hon'ble Supreme Court has held that the claimants are not entitled to the interest prior to the date of the notification under Section 4 of the Act and are entitled to the interest only from the date of issuance of the notification under Section 4 of the Act. The Hon'ble Supreme Court in the said decision further observed that in a case where the land owner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act, the Government merely takes possession of the land but the title thereof continue to vest with the land owner. It is fully open for the land owner to recover the possession of the land by taking appropriate legal proceedings. 9. Even in the case of SIDDAPPA VASAPPA KURI AND ANR (Supra) while dealing with Section 23 (1-A) of the Act the Hon'ble Supreme Court has held that if possession is taken prior to publication of Section 4 notification, additional compensation under Section 23 (1-A) is payable to the period starting from the date of publication of Section 4 notification. Similar analogy would be applicable while considering the award of interest under Sections 28 or 34 of the Act. SCA/23146/2007 10/12 JUDGMENT 10. In view of the above decisions of the Hon'ble Supreme Court, it cannot be said the learned Executing Court has materially erred in rejecting the applications of the respective petitioners claiming interest from the year 1962-63 i.e. for the period prior to notification under Section 4 of the Act. 11. It is required to be noted that the respective petitioners are claiming the interest at the rate of 15% per annum payable under the Act and it cannot be disputed that the proceedings under the Act can be said to have been initiated only when the preliminary notification under Section 4 of the Act is published and, therefore, prior to the publication of the preliminary notification under Section 4 of the Act, there are no proceedings under the Act and, therefore, for the period during which there are no proceedings under the Act there is no question of payment of any interest payable under the Act and, therefore, also the respective petitioners are not entitled to the interest payable under Section 28 of the Act for the period prior to the notification under Section 4 of the Act. 12. Even otherwise, the claim of the respective petitioners claiming interest at the rate of 15% per annum payable under Section 28 of the Act right from 1962-63 is required to be viewed from another angle. Amendment in Section 28 of the Act has been brought on statute in the year 1984 awarding interest at the rate of 9% per annum for the first year of taking possession and at the rate of 15% per annum for the subsequent years and the said interest is payable if the SCA/23146/2007 11/12 JUDGMENT award and/or the order is passed after 30/04/1982 and, therefore, even for the period prior to 1982, interest at the rate of 15% per annum on the excess amount of compensation was not payable at all under the statute and, therefore, the respective petitioners cannot be awarded the interest at the rate of 15% per annum from 1962-63, which was not there in the statute and was not payable under the Act. On this ground also the respective petitioners are not entitled to the interest at the rate of 15% per annum payable under Section 28 of the Act from 1962-63. 13. Now so far as the contention on behalf of the respective petitioners that the learned Executing Court cannot go beyond the decree and that when initially the judgement and award was passed by the Reference Court awarding interest at the rate of 9% per annum for the first year and at the rate of 15% per annum for the subsequent years from the date of taking over the possession and the said order has not been upset by the Hon'ble Supreme Court, the respective petitioners are entitled to the interest at the rate of 15% per annum from 1962-63 cannot be accepted. At the outset, it is required to be noted that there was no lis between the parties with respect to the fact whether the claimants were entitled to the interest at the rate of 15% payable under Section 28 of the Act for the period prior to the notification under Section 4 of the Act. Even otherwise, as stated hereinabove the respective petitioners are not entitled to the interest at the rate of 15% per annum for the period prior to the notification under Section 4 of the Act and, therefore, any order without any lis between the parties, which has no statutory force and/or which is not payable under the statute, cannot be implemented and/or SCA/23146/2007 12/12 JUDGMENT executed. Even otherwise, as stated hereinabove, and considering the aforesaid decisions of the Hon'ble Supreme Court, the respective petitioners are not entitled to the interest under Section 28 of the Act for the period prior to the notification under Section 4 of the Act. 14. In view of the above and for the reasons stated hereinabove, the respective petitioners are not entitled to the interest payable under Section 28 of the Act for the period prior to the notification under Section 4 of the Act and, therefore, all the petitions fail and deserves to be dismissed and are dismissed accordingly. Rule is discharged. In the facts and circumstances of the case, there shall be no order as to costs. (M.R. SHAH, J.) siji