Bombay High CourtLalitkumar Himmatlal Shah vs The State Of Maharashtra on 10 May, 2012Author:Vasanti A. NaikBench:Vasanti A. Naik,Prasanna B. Varale1                                                              wp4506.11


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,




                                                                                         
                          NAGPUR BENCH, NAGPUR.

                          WRIT PETITION NO. 4506 OF 2011.




                                                           
    Lalitkumar Himmatlal Shah,
    aged about 65 years, Occupation 
    Business, R/o Durgesh Nandini 




                                                          
    Apartment, Durga Chowk,
    Akola, Tahsil and District Akola.                         ... PETITIONER

                                         VERSUS




                                        
    1. The State of Maharashtra,
         through Principal Secretary,
                        
         Jal Sampada and Land Acquisition
         Department, Mantralaya, Mumbai.

    2. The Collector, Akola,
                       
         Taluka and District Akola.

    3. Special Land Acquisition Officer,
         Panjabrao Krishi Vidyapeeth, 
         Akola, Tq. and Distt. Akola.                       ... RESPONDENTS
      


                                           ....
   



    Shri S.S. Sarda with Shri S.D. Kane, Advocates for the petitioner.
    Smt. K.S. Joshi, Assistant Government Pleader for the respondents.
                                           ....





                                      WITH
                          WRIT PETITION NO. 4505 OF 2011.

    Tansukh Himmatlal Parekh,
    aged about 70 years, Occupation 
    Business, R/o Nanabhai Plots,





    Akola, Tahsil and District Akola.                         ... PETITIONER

                                         VERSUS

    1. The State of Maharashtra,
         through Principal Secretary,
         Jal Sampada and Land Acquisition
         Department, Mantralaya, Mumbai.

    2. The Collector, Akola,
         Taluka and District Akola.




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    3. Special Land Acquisition Officer,




                                                                                         
         Panjabrao Krishi Vidyapeeth, 
         Akola, Tq. and Distt. Akola.                       ... RESPONDENTS




                                                           
                                           ....
    Shri S.S. Sarda with Shri S.D. Kane, Advocates for the petitioner.
    Smt. I.L. Bodade, Assistant Government Pleader for the respondents.
                                           ....




                                                          
                                      WITH
                          WRIT PETITION NO. 4623 OF 2011.

    Sheikh Babu Sheikh Badrodin,




                                        
    aged about 62 years, Occupation 
    Business, R/o Gawalipura,
    Akola, Tahsil and District Akola.
                         ig                                   ... PETITIONER

                                         VERSUS
                       
    1. The State of Maharashtra,
         through Principal Secretary,
         Jal Sampada and Land Acquisition
         Department, Mantralaya, Mumbai.
      


    2. The Collector, Akola,
         Taluka and District Akola.
   



    3. Special Land Acquisition Officer,
         Panjabrao Krishi Vidyapeeth, 
         Akola, Tq. and Distt. Akola.                       ... RESPONDENTS





                                           ....
    Shri S.S. Sarda with Shri S.D. Kane, Advocates for the petitioner.
    Shri T.R. Kankale, Assistant Government Pleader for the respondents.
                                           ....





                                      WITH
                          WRIT PETITION NO. 4763 OF 2011.

    Suresh Shankarrao Takore,
    aged about 50 years, Occupation 
    Business, R/o Round Road, Near
    Tukaram Hospital, Akola, Tahsil 
    and District Akola.                                     ... PETITIONER

                                         VERSUS

    1. The State of Maharashtra,



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         through Principal Secretary,




                                                                                                                  
         Jal Sampada and Land Acquisition
         Department, Mantralaya, Mumbai.




                                                                                    
    2. The Collector, Akola,
         Taluka and District Akola.

    3. Special Land Acquisition Officer,
         Panjabrao Krishi Vidyapeeth, 




                                                                                   
         Akola, Tq. and Distt. Akola.                                                ... RESPONDENTS

                                           ....
    Shri S.S. Sarda with Shri S.D. Kane, Advocates for the petitioner.
    Shri N.S. Khubalkar, Assistant Government Pleader for the respondents.




                                                                 
                                           ....
                                          ig             WITH
                                             WRIT PETITION NO. 4720 OF 2011.
                                        
    Kazi Syed Gyasuddin Kazi
    Syed Ajijuddin,
    aged about 76 years, R/o Agarwes,
    Old City, Akola, Tahsil and District Akola.   ... PETITIONER
      


                                                                  VERSUS
   



    1. The State of Maharashtra,
         through Principal Secretary,
         Jal Sampada and Land Acquisition
         Department, Mantralaya, Mumbai.





    3. Special Land Acquisition Officer,
         Panjabrao Krishi Vidyapeeth, 
         Akola, Tq. and Distt. Akola.

    2. The Collector, Akola,





         Taluka and District Akola.                                                  ... RESPONDENTS

                                          ....
    Shri J.J. Chandurkar, Advocate for the petitioner.
    Shri A.D. Sonak, Assistant Government Pleader for the respondents.
                                          ....

                                                                  CORAM : SMT. VASANTI A. NAIK AND
                                                                                      PRASANNA B. VARALE,      JJ.
                                                                  DATED  : 10TH MAY, 2012.




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    ORAL JUDGMENT : (Per Smt. Vasanti A. Naik, J.)Whether  a person  would  be  entitled  to grant  of  interest   underSection 34of the Land Acquisition Act from the date of his dispossession if 

    the dispossession is prior to the issuance ofSection 4notification and if not 




                                                                
    what  would  be  the  relevant  date  for  claiming  interest  is the  question  that 

    arises for consideration in these writ petitions.Since a common issue is involved in these writ petitions, they are 

    heard together and are decided by this common judgment.Rule.    Rule  is made  returnable  forthwith.    Heard  finally  by  the 
      

    consent of the parties.The   relevant   facts   for   deciding   the   issue   involved   in   these 

    petitions   are   brief.     The   possession   of   land   belonging   to   each   of   the 





    petitioners   was   acquired   by   the   State   of   Maharashtra   for   the   purpose   of 

    construction   of   flood   prevention   wall   on   15.01.1997.     TheSection   4notification was issued on 20.01.2005 and the award was passed by the Land 





    Acquisition Officer on 05.02.2008.  The compensation was determined under 

    the provisions ofSection 23of the Act.  The petitioners were also granted 8% 

    rental   compensation   in   pursuance   of   the   government   resolutions   issued 

    from   time   to   time   as   the   lands   were   acquired   before   the   issuance   of   theSection 4notification..  Since the petitioners were not granted interest on the 

    compensation under the provisions ofSection 34of the Land Acquisition Act,::: Downloaded on - 09/06/2013 18:35:56 :::5                                                              wp4506.11


    the petitioners have filed the present petitions.It was the case of the petitioners that in view of the provisions ofSection   34of   the   Land   Acquisition   Act,   it   was   necessary   for   the   Land 

    Acquisition Officer to have granted interest underSection 34of the Act to the 




                                                                 
    petitioners from the date of dispossession and the Land Acquisition Officer 

    has committed a serious error in not granting the same.  The learned Counsel 




                                               
    for the petitioners relied on the judgment in the case of  Jafarali Mithabhai 
                           
    Hirani and others .v. State of Maharashtra and others (reported in 2009(3) 

    ALL MR, 779), wherein, in similar set of facts, this Court had granted interest 
                          
    on   the   compensation   underSection   34of   the   Act   from   the   date   of 

    dispossession.On the previous date of hearing, it was pointed out to this Court 

    by the learned Assistant Government Pleader that the judgment in the case of 

    Jafarali   Mithabhai   Hirani   and   others   .v.   State   of   Maharashtra   and   others 





    cannot   be   helpful   for   seeking   interest   underSection   34of   the   Act   as   the 

    Division Bench of this Court had not considered the judgments of the Apex 

    Court in the cases of  R.L. Jain (D) By Lrs. .v. DDA and others (reported in 





    2004(4) SCC 79)  and  Lila Ghosh (Smt)(Dead)  through LR Tapas Chandra 

    Roy .v. State of W.B. (reported in 2004(9) SCC 337) while rendering the said 

    judgment.  It was brought to the notice of this Court by the learned Assistant 

    Government   Pleader   that   the   judgment   in   the   case   of  Jafarali   Mithabhai 

    Hirani and others .v. State of Maharashtra and others was not in consonance 

    with the law laid down by the Supreme Court in the two aforesaid judgments.::: Downloaded on - 09/06/2013 18:35:56 :::6                                                              wp4506.11




                                                                                              
                  After   reading   the   two   aforesaid   judgments   of   the   Hon'ble 




                                                                
    Supreme Court, the learned Counsel for the petitioners fairly conceded that 

    the petitioners are not entitled to claim interest underSection 34of the Act 

    from   the   date   of   dispossession   when   the   dispossession   was   prior   to   the 




                                                               
    issuance ofSection 4notification.  It is however submitted on behalf of the 

    petitioners by relying on the judgment in the case of  R.L. Jain (D) By Lrs. .v.DDA   and   others  that   the   petitioners   are   entitled   to   interest   on   the 
                          
    compensation   from   the   date   of   issuance   ofSection   4notification   till   the 

    compensation   was   actually   paid   to   them.     The   learned   Counsel   for   the 
                         
    petitioners   submitted   that   the   scheme   of   the   Act   does   not   contemplate 

    taking of possession prior to the issuance ofSection 4notification and as it is 
      

    held in the said judgment that the possession of the land could be secured by 

    the State after the issuance ofSection 4(1)notification, the petitioners should 
   



    be granted interest from 20.01.2005 till the compensation is actually paid to 

    them.  The learned Counsel for the petitioners fairly conceded that in view of 





    the law laid down by the Supreme Court in the case of State of Maharashtra 

    and others .v. Maimuma Banu and others (reported in 2003(7) SCC 448), 

    the petitioners are not entitled to interest underSection 34of the Act on the 





    amount  payable  towards  rental  compensation  and  are  entitled  to   interest 

    only on the amount of compensation determined under the provisions of theLand   Acquisition   Act.     The   learned   Counsel   for   the   petitioners,   therefore, 

    restricted their prayer for grant of interest on the compensation determined 

    underSection 23of the Act from the date of issuance ofSection 4notification 

    on 20.01.2005 till the compensation was actually paid to the petitioners.::: Downloaded on - 09/06/2013 18:35:56 :::7                                                              wp4506.11




                                                                                              
                  Smt.   K.S.   Joshi,   the   learned   Assistant   Government   Pleader 




                                                                
    appearing on behalf of the State Government submitted that the petitioners 

    would not be entitled to interest underSection 34of the Land Acquisition Act 

    at all as the taking of possession on 15.01.1997 was dehors the provisions of 




                                                               
    theLand Acquisition Act.  It is submitted that it has been held by the Hon'ble 

    Supreme Court in the case of  R.L. Jain (D) By Lrs. .v. DDA and others  that 




                                             
    interest   underSection   34of   the   Act   would   not   be   granted   where   the 
                          
    possession is taken prior to the issuance ofSection 4notification, as the title 

    of the land continues  to vest with the land owners.    The learned Assistant 
                         
    Government Pleader relied on para 11 of the said judgment to submit that 

    the scheme of the Act does not contemplate taking of possession prior to the 
      

    issuance of notification underSection 4(1)of the Act and if the possession is 

    taken prior to the said notification it will be dehors the provision of the Act. 
   



    Reliance was placed on para 12 of the said judgment to point out that the 

    words "such compensation" and "so taking possession" are important and 





    since the taking of possession on 15.01.1997 was dehors the provisions of the 

    Act,   the   petitioners   are   not   entitled   to   interest   on   the   compensation   asSection 34of the Act is inapplicable in such cases.For determination of the issue involved in these writ petitions, it 

    would   be   necessary   to   consider   the   provisions   of   the   Act.The   Land 

    Acquisition Actis a complete code in itself and provides for the acquisition of 

    the lands, taking possession thereof and for payment of compensation to the 

    land owners.    Whenever  an appropriate government  is of the opinion that::: Downloaded on - 09/06/2013 18:35:56 :::8                                                              wp4506.11


    the   land   in   question   is   likely   to   be   needed   for   any   public   purpose,   a 




                                                                                               
    notification to that effect shall be published in the official gazette and two 




                                                                 
    daily newspapers circulated in the localities, underSection 4of the Act.  By 

    issuing   notification   underSection   4of   the   Land   Acquisition   Act,   the 

    government expresses its intention to acquire the land.  Section 5-A enables 




                                                                
    a person interested in the land notified underSection 4(1)to file an objection 

    against   the   acquisition   of   land.     If   the   State   Government   is   satisfied,   on 




                                              
    hearing the objection and after considering the report that the land is needed 
                           
    for   a   public   purpose,   a   declaration   to   that   effect   could   be   made   underSection 6of the Act.   Thereafter, the Collector is required to issue a notice 
                          
    underSection 9of the Act expressing his intention to take possession of the 

    land and stating that the claims for compensation be made to him.Section 
      

    11provides for making of an award by the Collector.Section 16provides that 

    after the Collector makes an award underSection 11of the Act, he may take 
   



    possession   of   the   land   which   shall   thereupon   vest   absolutely   in   the 

    government free from all encumbrances.It is apparent from a reading ofSection 16that the possession of 

    the land can be taken after the Collector makes an award underSection 11.Section   17is   however   an   exception   to   the   provisions   ofSection   16and 

    provides   for   taking   of   possession   in   cases   of   urgency.     The   aforesaid 

    provisions   of   theLand   Acquisition   Actwere   considered   by   the   Hon'ble 

    Supreme Court in the case of  R.L. Jain (D) By Lrs. .v. DDA and others.   The 

    issue involved in that case was whether in a case where possession is taken 

    before issuance ofSection 4notification, the claimant is entitled to interest::: Downloaded on - 09/06/2013 18:35:56 :::9                                                              wp4506.11


    for   such   anterior   period   in   accordance   withSection   34of   the   Act.     The 




                                                                                               
    Hon'ble Supreme Court while dismissing the appeals filed by the claimants 




                                                                 
    for   grant   of   interest   on   compensation   from   the   date   of   dispossession 

    observed that the normal rule of payment of interest underSection 34of the 

    Act from the date of dispossession till the date of payment of compensation 




                                                                
    would   apply   only   in   cases   where   the   land   has   been   acquired   after   the 

    issuance   of   the   preliminary   notification   underSection   4of   the   Act.     The 




                                              
    Supreme Court observed that the scheme of the Act does not contemplate 
                           
    taking of possession prior to the issuance of notification under 4(1) of the Act 

    and if the possession is taken prior to the said notification, it will be dehors 
                          
    the Act.    It is for this reason that bothSections  11(1)and23(1)enjoin the 

    determination of the market value of the land on the date of publication of 
      

    notification underSection 4(1)of the Act for the purpose of determining the 

    amount of compensation to be awarded for the land acquired under the Act. 
   



    The   Hon'ble   Supreme   Court   observed   that   the   provisions   show   in 

    unmistakable terms that the publication of notification underSection 4(1)is 





    the sine qua non for any proceedings under the Act.  In the facts of that case, 

    the Collector had granted interest at the rate of nine per cent from the date of 

    dispossession for a period of one year and at the rate of 15 per cent till the 





    date of passing of the award.  The Delhi Development Authority had filed an 

    appeal before the High Court and the High Court while allowing the appeal 

    filed by the Authority had held that the interest awarded underSection 34of 

    the Act was without jurisdiction and had set it aside.A similar question came up for consideration in the judgment in::: Downloaded on - 09/06/2013 18:35:56 :::10                                                              wp4506.11


    the case of Lila Ghosh (Smt)(Dead) through LR Tapas Chandra Roy .v. State 




                                                                                                
    of W.B..  In that case, the claimants had claimed interest underSection 34of 




                                                                  
    the Act from the date of taking of possession prior toSection 4notification. 

    In the said case, the reference Court had granted interest underSection 34on 

    the   compensation   amount   from   the   date   of   taking   of   possession   and   the 




                                                                 
    High   Court   had   directed   the   payment   of   interest   only   from   the   date   of 

    passing of the award by the Land Acquisition Officer.   The Supreme Court 




                                               
    while deciding the said issue thus observed in para 19 of the judgment :-"... A plain reading ofSection 34shows that interest is payable only 
                          
            if  the  compensation,  which  is payable,  is not  paid  or  deposited 
            before taking possession.   The question of payment or deposit of 
            compensation will not arise if there is no acquisition proceeding.In case where possession is taken prior to acquisition proceedings 
            a party may have a right to claim compensation or interest.   But 
   



            such a claim would not be either underSection 34orSection 23. 
            In our view, interest under these sections can only start running 
            from the date the compensation is payable.  Normally this would 





            be   from   the   date   of   the   award.     Of   course,   there   may   be   cases 
            underSection 17where by invoking urgency clause possession has 
            been taken before the acquisition proceedings are initiated."The issue involved in these writ petitions stands answered by the 

    aforesaid dictum of the Hon'ble Supreme Court.   In clear and unequivocal 

    terms,   the   Hon'ble   Supreme   Court   has   observed   that   in   cases   where   the 

    possession is taken prior to the acquisition proceedings, the claimant would 

    have no right to claim compensation or interest under the provisions ofSec. 

    34orSec. 28of the Land Acquisition Act.  In the view of the Supreme Court,::: Downloaded on - 09/06/2013 18:35:56 :::11                                                              wp4506.11


    interest   is   payable   underSections   34or   28   of   the   Act   from   the   date   the 




                                                                                                 
    compensation   is   payable   to   the   claimant.     The   Hon'ble   Supreme   Court 




                                                                   
    observed that normally this would be from the date of the award.   Though 

    the Hon'ble Supreme Court has not made a particular reference toSection 16of   the   Land   Acquisition   Act   while   making   the   aforesaid   observations,   it 




                                                                  
    appears that the Hon'ble Supreme Court had granted interest to the claimant 

    underSection 34of the Act from the date of passing of the award in view of 




                                                
    the provisions ofSection 16of the Act which empower the Collector to take 
                            
    possession of the land only after the award is passed.Section  16of the Land 

    Acquisition  Act  provides  that  a Collector  may  take  possession  of   the   land 
                           
    when he makes an award and on taking of the possession, the land shall vest 

    absolutely   in   the   government   free   from   all   encumbrances.     Since   the 
      

    Collector is empowered to take the possession of the land after the passing of 

    the award, it is clear that the possession taken by the Collector prior to the 
   



    issuance   of   theSection   4notification,   on   15.01.1997   was   dehors   the 

    provisions of the Act and as held by the Hon'ble Supreme Court in the case of 





    Lila Ghosh (Smt)(Dead) through LR Tapas Chandra Roy .v. State of W.B., the 

    petitioners  were not entitled  to interest  underSection  34of the Act either 

    from the date of taking of possession or from the date of issuance ofSection 4notification.     The   State   was   liable   to   pay   the   interest   on   compensation 

    determined underSection 23of the Act only on the passing of the award on 

    05.02.2008.    Though the possession was physically obtained on 15.01.1997, 

    on an assumption that the possession was legally taken by the Collector on 

    05.02.2008 after the passing of the award in pursuance of the provisions ofSection   16of   the   Act,   the   petitioners   would   be   entitled   to   interest   under::: Downloaded on - 09/06/2013 18:35:56 :::12                                                              wp4506.11Section 34of the Act with effect from 05.02.2008.  It is worthwhile to note that 




                                                                                              
    the petitioners  have been duly  compensated  for their  dispossession  as the 




                                                                
    Collector   has   awarded   8%   rental   compensation   to   them   from   the   date   of 

    dispossession till the date of the award.  The judgment in the case of Jafarali 

    Mithabhai Hirani and others .v. State of Maharashtra and others holding that 




                                                               
    the claimants would be entitled to interest underSection 34of the Act from 

    the date of dispossession when the possession is taken prior to the issuance 




                                             
    ofSection 4notification is not good law as the judgments rendered by the 
                          
    Hon'ble Supreme Court in the cases of  Lila Ghosh (Smt)(Dead) through LR 

    Tapas Chandra Roy .v. State of W.B.  and  R.L. Jain (D) by LRs .v. DDA and 
                         
    others were not brought to the notice of the Court.We,   therefore,   hold   that   a   person   would   be   entitled   to   claim 

    interest   on   the   compensation   determined   underSection   23of   the   Land 
   



    Acquisition Act from the date of the passing of the award underSection 11of 

    the Act and not from the date of dispossession when the possession is taken 





    before the issuance ofSection 4notification.Hence,   for   the   reasons   aforesaid,   the   writ   petitions   are   partly 





    allowed.  The petitioners would be entitled to interest underSection 34of the 

    Land   Acquisition   Act   on   the   amount   of   compensation   determined   underSection 23of the Act from 05.02.2008 till the amount is actually paid to the 

    petitioners.    It is made  clear  that  the  petitioners  would  not be  entitled   to 

    interest   on   the   rental   compensation   as   the   same   is   not   paid   under   the 

    provisions of theLand Acquisition Act.  The respondents are directed to pay::: Downloaded on - 09/06/2013 18:35:56 :::13                                                              wp4506.11


    the interest to the petitioners within a period of four months.  Rule is made 




                                                                                            
    absolute in the aforesaid terms with no order as to costs.JUDGE                                                             JUDGE 
              




                                                          
           
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