LA.App. 6/2003 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) These appeals and the cross objections arise out of the common j udgment and order dated 31st August, 2002 passed by the Reference Court in Misc. L.A. Case No.120/1995; Misc. LA Case No.121/1995; Misc. LA Case No.122/1995; Mi sc. LA Case No.123/1995 and Misc. LA Case No.124/1995 corresponding to LA Case N o.29/1990-91; LA Case No.5/1992-93; LA Case No.1/1991-92; LA Case No.18/1991-92 and LA Case No.18/1990-91, respectively. 2. The aforesaid land acquisition proceedings were initiated by the Collector, Sivasagar district on 7th June, 1994; 27th January, 1993; 11th May, 1994, 11th May, 1994 and 10th September, 1993 by issuing notification under Sect ion 4(1) of the Land Acquisition Act, 1894 (in short, the Act ) for acquisition of 68 Bighas 1 Katha 6 Lechas; 8 Bighas 0 Katha 12 Lechas; 46 Bighas 2 Kathas 2 Lechas; 19 Bighas 0 Katha 5 Lechas and 3 Bighas 0 Katha 2 Lechas of lands resp ectively, belonging to the respondents herein. The possession of the aforesaid land, however, was taken over, before issuance of the preliminary notifications under Section 4(1) of said Act, on 5th February, 1992; 12th April, 1991; 1st Jun e, 1993; 12th August, 1992 and 15th March, 1991, respectively. In due course of time, the declarations under Section 6 of the Act were issued. The awards by t he Collector in LA Case No.29/1990-91; LA Case No.18/1990-91; LA Case No.5/1992- 93; LA Case No.18/1991-92 and LA Case No.1/1991-92 were passed on 6th February, 1995; 3rd February, 1995; 15th July, 1994; 13th February, 1995 and on 3rd Februa ry, 1995, respectively. The awarded amount was received by the respondents on 1 st March, 1995 under objection. The respondents being not satisfied with the am ount awarded for acquisition of the land, thereafter, filed applications under S ection 18 of the Act on 30th May, 1995 requesting the Collector to refer the dis pute to the Court as envisaged under the provisions of the said Act, on the basi s of which 5 (five) references were made by the Collector to the Court of the le arned District Judge at Sivasagar, pursuant to which the aforesaid reference cas es were registered. 3. By the impugned common judgment and order dated 31st August, 200 2, the Reference Court has held that though the possession of the land acquisiti oned was taken over prior to issuance of the preliminary notification under Sect ion 4(1) of the Act, the land owners would be entitled to further amount under S ection 23(1A), at the rate of twelve per centum on the market value ascertained under Section 23 of the Act, from the date of taking over the possession till th e date of passing the final award. The Reference Court has further held that th e land owners would also be entitled to simple interest @ 9% per annum, under Se ction 34 of the Act, from the date of the award till the date of the payment. T he Collector accordingly was directed to make payment of the amount payable towa rds the interest within 2 (two) months, failing which, it has been held that the land owners would be entitled to interest @ 15% per annum. 4. The requiring department, namely Oil and Natural Gas Corporation Limited (ONGC), being aggrieved by the first part of the aforesaid impugned jud gment and order, i.e. awarding further compensation to the land owners, under Se ction 23(1A) of the Act, from the date of taking over possession to the date of passing of the award, has filed the present land acquisition appeals under Secti on 54 of the Act. The respondents in LA Appeal Nos.2/2003; LA Appeal No.3/2003; LA Appeal No.6/2003 and LA Appeal No.7/2003 have filed the aforesaid cross obje ctions challenging the second part of the judgment, whereby and where-under it h as been held that the land owners would be entitled to simple interest @ 9% per annum under Section 34 of the Act from the date of passing of the award till the date of payment, contending that such interest under Section 34 is payable from the date of taking over possession till the date of the payment, for the first 1 (one) year @ 9% and for subsequent period @ 15%. 5. I have heard Mr. P.C. Deka, learned Senior Counsel assisted by M r. N. Anix Singh, learned counsel for the appellants and Mr. D. Senapati, learne d counsel appearing for the respondents in all the appeals, who are also the cro ss objectors in the aforesaid cross objections. 6. Mr. Deka, learned Sr. Counsel for the appellants referring to th e provisions of Section 23(1A) of the Act has submitted that the further compens ation @ 12% per annum, on the market value of the land ascertained under Section 23(1) of the Act, is payable to the land owners only from the date of issuance of the notification under Section 4(1) till the date of the award or the date of taking over the possession of the land, whichever is earlier. According to Mr . Deka, since the possession of the land can be taken over under the provisions of the said Act only after issuance of notification under Section 4(1) of the Ac t, the land owners at the most, would be entitled to further compensation under Section 23(1A) of the Act from the date of issuance of the preliminary notificat ion under Section 4(1) till the date of the award and not from the date of takin g over possession, which was prior to issuance of the notification under Section 4(1) of the Act. The learned Senior Counsel, therefore, submits that the judgm ent passed by the Reference Court directing payment of interest, under Section 2 3(1A) of the Act, from the date of taking over possession of the land till the d ate of final award requires to be interfered with and set aside. 7. It has also been submitted by the learned Senior Counsel for the appellants that the reference petition filed by the appellants under Section 18 of the Act is barred by time, the same having not been filed within 6 (six) wee ks from the date of receipt of the notice of the award, which was 22nd February, 1995 and as such, the Reference Court ought to have dismissed the reference pro ceeding on the ground that the petitions under Section 18 were filed beyond the time as provided under proviso to Section 18 of the Act. 8. Relating to the cross objections filed by the respondents/land o wners, it has been submitted by Mr. Deka, learned Sr. Counsel for the appellants that since under the scheme of the Act, generally possession can be taken over only after passing of the award by the Collector under Section 11 of the Act, no interest under Section 34 of the Act is awardable from the date of taking over the possession, if such possession was taken over prior to issuance of the preli minary notification under Section 4(1) of the Act. According to Mr. Deka, the r espondents/land owners would be entitled to interest under Section 34 of the Act from the date of the award till the date of making payment, as has been awarded by the Reference Court. Mr. Deka submits that the judgment and order passed by the Reference Court in that respect needs no interference. 9. Mr. Senapati, learned counsel appearing for the respondents/land owners, on the other hand, has submitted that since the possession of the land was taken over prior to issuance of the notification under Section 4(1) of the A ct, the land owners are entitled to further compensation, at the rate of twelve per centum on the market value, under Section 23(1A) of the Act from the date of taking over possession till the date of passing of the final award under Sectio n 11 of the Act. It has also been submitted that on the same analogy, the land owners are also entitled to interest under Section 34 of the Act, for the first year @ 9% and thereafter, @ 15% from the date of the possession till the date of payment. Relating to the contention of the learned Sr. Counsel for the appella nts that the applications filed under Section 18 of the Act were barred by time, it has been submitted by Mr. Senapati, the learned counsel for the respondents that the notice dated 22nd February, 1995, which was proved and marked as Exhibi t-3, cannot be treated as the notice required to be issued under Sub-Section (2) of Section 12 of the Act. According to Mr. Sentapati, since the applications u nder Section 18 were filed within 6 (six) months from the date of passing of the award, the said applications were within time as provided under Sub-Section (2) of Section 18 of the Act. 10. I have considered the submissions of the learned counsel for the parties and also perused the materials available on record including the judgme nt and order dated 31st August, 2002 passed by the Reference Court. 11. From the submissions of the learned counsel for the parties, as have been noticed above, the following points are required to be decided in the present batch of appeals and the cross objections:- (1) Whether the applications filed by the land owners under Section 18 of the Ac t are barred by time? (2) Whether the land owners are entitled to further compensation @ twelve per ce ntum per annum, on the market value ascertained under Section 23(1) of the Act, from the date of taking over the possession of the land acquired, which was prio r to issuance of the notification under Section 4(1) of the Act, till the date o f passing of the award under Section 11 of the Act? (3) Whether the land owners are entitled to interest, under Section 34 of the Ac t, from the date of taking over the possession of the land, which was prior to t he preliminary notification issued under Section 4(1) of the Act, till the date of payment? 12. Sub-Section (1) of Section 18 of the Act provides that any perso n interested, who has not accepted the award, may by written application to the Collector, require that the matter be referred by the Collector for the determin ation of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportion ment of the compensation among the persons interested. Proviso to Section 18 st ipulates the time limit within which such application, seeking reference of the dispute, is required to be filed before the Collector. Clause (a) of the said p roviso stipulates that such application has to be filed within 6 (six) weeks fro m the date of passing of the award by the Collector if the person filing such ap plication, was present or represented before the Collector at the time when he m ade his award. Clause (b) provides that in other cases such application has to b e filed within 6 (six) weeks of the receipt of the notice from the Collector und er Sub-Section (2) of Section 12 or within 6 (six) months from the date of the C ollector’s award, which period shall expire first. The said period, as stipulat ed in proviso to Section 18, cannot be extended either by the Collector or by th e Court. 13. In the instant cases, it is not in dispute that the persons inte rested were not present at the time of making the award and, therefore, Clause ( a) of proviso to Section 18 is not applicable. According to the requiring depar tment, namely ONGC, since the notice of the award was issued on 22nd February, 1 995, which was received by the persons interested, namely the respondents, appli cations under Section 18 of the Act were required to be filed within 6 (six) wee ks from the date of the said notice, i.e. by 7th April, 1995 but as such applica tions were filed on 30th April, 1995, the same were barred by time, in view of t he provisions contained in Clause (b) of proviso to Section 18 of the Act. 14. The said contention, however, has been refuted by the learned co unsel appearing for the respondents contending that the notice dated 22nd Februa ry, 1995 cannot be treated as a notice issued under Section 12(2) of the Act, as the said notice does not contain any particulars relating to the award passed e xcept intimating the date for collection of the compensation awarded. Referring to the decision of the Apex Court in Bhagwan Das & Ors. -Vs- State of Uttar Pra desh & Ors. reported in (2010) 3 SCC 545, it has been submitted by Mr. Senapati that since the purpose of issuing the notice under Section 12(2) of the Act is t o make aware the land owner about all the relevant particulars of the award so a s to enable him to decide whether he should seek reference or not and since the notice dated 22nd February, 1995 does not contain any particulars of the award p assed, the same cannot be treated as notice under Section 12(2) of the Act and hence, the land owners get 6 (six) months time for filling the application under Section 18 of the Act from the date of passing of the award and in the instant cases, such applications having admittedly been filed within 6 (six) months from the date of passing of the award, the same cannot be held to be barred by time under Section 18 of the Act. 15. It appears from the aforesaid notice dated 22nd February, 1995 ( Exhibit-3) issued from the Office of the Collector that the respondents were inf ormed to attend the office of the Collector for receiving the amount awarded. E xcept giving such information, no other particulars relating to the quantum of c ompensation awarded and details thereof has been furnished to the land owners/re spondents, so as to make up their mind about the requirement of filing an applic ation under Section 18 of the Act. As observed by the Apex Court in Bhagwan Das (supra), a notice given to the land owners or any person interested can be trea ted to a notice under Section 12(2) of the Act, provided it contains the detaile d particulars of the compensation awarded by the Collector with all relevant par ticulars, which will enable the land owners or the person interested to decide w hether he should seek reference or not. As discussed above, no particulars abou t the award passed was furnished to the land owners/respondents by the aforesaid document being Exhibit-3 dated 22nd February, 1995. That being the position, t he said document cannot be treated as notice under Section 12(2) of the Act and as such the requirement of filing the application under Section 18 of the Act se eking reference within 6 (six) weeks, as provided in Clause (b) of the proviso d oes not apply in the cases in hand. The land owners/persons interested, theref ore, have to file the application seeking reference within 6 (six) months from t he date of the Collector’s award. There is no dispute that such applications, u nder Section 18 of the Act, were filed by the land owners within 6 (six) months from the date of passing of the award by the Collector. That being the position , it cannot be held that the applications filed by the respondents seeking refer ence of the dispute under Section 18 of the Act are barred by time. 16. The next question, which requires determination, is whether the land owners/respondents would be entitled further compensation under Section 23( 1A) of the Act from the date of taking over the possession till the date of pass ing of the award under Section 11 of the Act. As noticed above, the possession of the land acquired was taken over much prior to the issuance of the preliminar y notification under Section 4(1) of the Act. 17. Section 23(1A) of the Act provides that in addition to the marke t value of the land, ascertained under Sub-Section (1) of Section 23, the Court shall in every case award an amount calculated at the rate of twelve per centum on such market value for the period commencing on and from the date of the publi cation of the notification under Section 4(1), in respect of such land, to the d ate of the award of the Collector or the date of taking over possession of the l and, whichever is earlier. 18. Section 23 (1A) of the Act, therefore, envisages payment of the further compensation @ 12% per annum on the market value of the land from the da te of issuance of the notification under Section 4(1) of the Act till the date o f passing of the award of the Collector or the date of taking over possession of the land, whichever is earlier. The scheme of the Act envisage taking over the possession of the land after passing of the award, which is the normal rule. Th e Collector, however, in exceptional circumstances, can take over the possession of the land even before passing of an award as envisaged under Section 17 of th e said Act. The Act does not provide for taking over the possession of the land sought to be acquired at any time prior to issuance of the preliminary notifica tion under Section 4(1) of the Act, not even invoking the power under Section 17 of the Act and hence, if the possession of the land, proposed to be acquired, i s taken over by the Collector, even before issuance of the notification under Se ction 4(1) of the Act, taking over of such possession may be illegal and not in terms of the provisions of the Act, as the title over the property remains with the land owners. For that purpose the land owner may claim the damage or compen sation for that period by initiating appropriate proceeding in the appropriate C ourt of law. Since Section 23(1A) of the Act clearly provides payment of furthe r compensation from the date of issuance of the notification under Section 4(1) of the Act till the date of passing of the award and in case of taking over the advance possession as stipulated under Section 17 of the Act, to the date of tak ing over such possession, the land owners would not be entitled to such amount u nder Section 23(1A) of the Act for any period prior to issuance of the notifica tion under Section 4(1) of the Act. The Apex Court in R.L. Jain (D) By LRS -Vs - DDA & Ors. reported in (2004) 4 SCC 79, has held that persons interested are n ot entitled to further compensation under Section 23(1A) as well as interest und er Section 34 for the period of possession prior to issuance of notification und er Section 4(1) of the Act. 19. The Reference Court while directing payment of further compensat ion, under Section 23(1A) of the Act, from the date of taking over possession ti ll the date of passing of the award, had assumed that such possession was taken over under Section 17 of the Act, which, however, is not factually correct, sinc e the possession of the land was never taken over under Section 17 of the Act af ter issuance of the notification under Section 4(1) of the Act. 20. In view of the above, the land owners would be entitled to furth er compensation at the rate of twelve per centum per annum, under Section 23(1A) of the Act, from the date of issuance of the notification under Section 4(1) of the Act till the date of passing of the award and not from the date of taking o ver the possession, which was prior to issuance of the notification under Sectio n 4(1) of the Act. 21. Relating to the claim of the interest under Section 34 of the Ac t, as noticed above, the possession of the land was taken over prior to issuance of the notification under Section 4(1) of the Act. The Act does not envisage t aking over the possession of any land sought to be acquired prior to issuance of the preliminary notification under Section 4(1) of the Act. As held above, tak ing over such possession, prior to issuance of such preliminary notification may be illegal for which the land owners or person interested may initiate appropri ate proceeding before the appropriate Court of law. 22. Section 34 of the Act requires payment of interest for the first year @ 9% and thereafter @ 15% per annum provided the compensation or any part thereof awarded is not paid or deposited on or before taking over the possession of the land. As discussed above, general rule under the Act is to take over th e possession of the land after passing of the award under Section 11 of the Act. In the instant case, the possession was not taken over by invoking the power c onferred under Section 17 of the Act. The earliest date on which the possession , in these cases, deemed to have been taken over under the Act would be the date of passing of the award. That being the position, the respondents/land owners would be entitled to interest under Section 34 of the Act from the date of pass ing of the award to the date of actual payment and not from the date of taking o ver the possession, which was much prior to issuance of the notification under S ection 4(1) of the Act, as has been awarded by the Reference Court. 23. The appellants shall, therefore, pay the further compensation @ 12% per annum under Section 23(1A) of the Act to the respondents/land owners fro m the date of issuance of the notification under Section 4(1) of the Act to the date of passing of the final award and interest under Section 34 of the Act from the date of passing of the award till the date of payment of the awarded amount . It is, however, made clear that since the Collector, in some of the land acqu isition proceedings, have awarded compensation under Section 23(1A) for a period of 1 (one) year though the respondents are not found to be entitled to and sinc e the Court cannot reduce the compensation awarded by the Collector, there canno t be any recovery of the said amount payable by the appellants in view of this j udgment and order. It would also not preclude the respondents from initiating a ny proceeding against the appellants for assessment and recovery of rental or ot her compensation for the period for which the possession of the land was taken o ver prior to issuance of the notification under Section 4(1) of the Act, if perm issible under the law. 24. The appeals are accordingly allowed to the extent indicated abov e. The cross-objections stand dismissed. No costs.