Full Judgment Text
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REPORTABLE
SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 475 OF 2020
[ARISING OUT OF S.L.P. (CIVIL) NO.29148 OF 2016]
CHANABASAPPA …APPELLANT
VERSUS
KARNATAKA NEERAVARI NIGAM LTD. & ANR. …RESPONDENTS
J U D G M E N T
ARUN MISHRA, J.
1. This appeal has been preferred by the appellantclaimant
aggrieved by the judgment and order dated 17.02.2016 passed by the
High Court of Karnataka, Circuit Bench at Dharwad, enhancing the
compensation to Rs.3,00,000/ per acre. Interest under section 34 of
the Land Acquisition Act, 1894 (for short, ''the Act") has also been
awarded from the date of the award, i.e. 23.07.2009 and not for the
period prior thereto.
2. Notification under section 4 was issued on 7.6.2007 for
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2020.01.21
17:17:21 IST
Reason:
acquiring inter alia the land belonging to the appellant, and the award
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was passed on 23.7.2009. It was submitted that under Malprabha
Reservoir Project, a dam was constructed in the district of Belgaum
across the Malprabha river by the Government of Karnataka. The
original height of the dam was 2074.5 feet. This was raised to 2079.5
feet. However, while raising the height, a proper survey was not
conducted as to the land which would come under submergence. As
a result thereof, in the year 1991 when the full reservoir level
breached, water entered into those lands which were not acquired.
The issue was raised in the Karnataka Legislative Assembly on
6.9.1991; however, the acquisition process was initiated belatedly in
the year 2007.
3. Notification under section 4 of the Act was issued on 7.6.2007.
Declaration under section 6 of the Act was issued on 15.12.2007.
The award was passed on 23.7.2009, awarding a sum of Rs.56,672/
per acre. Reference was sought on 1.9.2009, claiming compensation
at the rate of Rs.5,00,000/ per acre. The Senior Civil Judge,
Bailhongal, awarded a sum of Rs.2,70,000/ per acre. Aggrieved by
the decision, an appeal was preferred before the District Court. The
District Court reduced the compensation to Rs.2,25,000/ per acre by
applying the capitalization method. Aggrieved thereby, Misc. Second
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Appeal was preferred in the High Court. The High Court awarded
compensation at the rate of Rs.3,00,000/ per acre. By the impugned
order, the High Court ordered payment of interest from the date of
award, i.e. 23.7.2009, and not from the date of notification issued
under section 4 or w.e.f. 1991. Hence this appeal has been preferred.
4. It was submitted by Shri Gaurav Banerjee, learned senior
counsel appearing on behalf of the appellant that, as a matter of fact,
the area came under submergence in the year 1991. Thus, the
damages ought to have been awarded from the year 1991 till the date
of notification under section 4, and interest under section 34 should
have been awarded with effect from the date of notification under
section 4. It was submitted that rent or damages may be awarded as
the amount of interest to be awarded under section 34 of the Act.
5. On the other hand, Shri Naveen R. Nath, learned counsel
appearing for the respondent submitted that no case is made out to
award the compensation from 1991 or from the date of notification
under section 4. He also disputed that the area came under
submergence from the year 1991 and submitted that several
documents from the year 1993 to 2005 had been placed on record
showing cultivation on the disputed land. Inquest conducted in the
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presence of panchas dated 9.6.2009 is on record in which crops of
sugarcane, wheat, jwar, cotton are shown. An inspection of the land
was conducted on 20.07.2008, which shows the existence of open
well, borewell in the said land. Thus, having claimed to be in
cultivation possession of the land, the appellant cannot be said to be
entitled for any compensation for the period 1991 till the date of the
notification. Interest has been awarded from the date of the award.
As such no interference is called for in the matter.
6. In Lila Ghosh v. State of West Bengal (2004) 9 SCC 337, this
court held that interest under section 34 or section 28 can start only
from the date the possession is taken. Unless there is a case of
urgency under section 17(1) of the Act where possession has been
taken, or the acquisition process is initiated, in such cases,
compensation would be payable by virtue of provisions of section 17
of the Act. This Court observed :
“19 . Even though the authority in Shree Vijay Cotton & Oil Mills
Ltd (1991) 1 SCC 262 appears to support the claimants, it is to be
seen that apart from mentioning Sections 28 and 34, no reasons
have been given to justify the award of interest from a date prior
to commencement of acquisition proceedings. A plain reading of
Section 34 shows 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 the case where possession is taken prior to acquisition
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proceedings, a party may have a right to claim compensation or
interest. But such a claim would not be either under Section 34 or
Section 28. 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 under Section 17, whereby invoking urgency clause
possession has been taken before the acquisition proceedings are
initiated. In such cases, compensation, under the Land Acquisition
Act, would be payable by virtue of the provisions of Section 17.
As in cases under Section 17, compensation is payable; interest
may run from the date possession was taken. However, this case
does not fall into this category.”
(emphasis supplied)
7. In R.L. Jain v. DDA & Ors. (2004) 4 SCC 79 this Court held that
in a case where the landowner is dispossessed prior to the issuance of
preliminary notification under section 4 of the Act, it is open to the
landowner to recover the possession of his land by taking appropriate
legal proceedings. Therefore, he is only entitled to get rent or damage
for use and occupation for the period the Government retains
possession of the property. When possession is taken prior to
issuance of preliminary notification, the Collector may also determine
the rent or damages. This Court has observed thus:
“18. In a case where the landowner 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 continues to vest with the landowner. It is fully open for
the landowner 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 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
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which the landowner is entitled while determining the
compensation amount payable to the landowner for the
acquisition of the property. The provisions of Section 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.”
8. In Siddhappa Vasappa Kuri & Anr. v. Special Land Acquisition
(2002) 1 SCC 142 this Court has laid down:
Officer & Anr.
“6. It is, as we see it, clear from Section 23(1-A) that the starting
point for the purposes of calculating the amount to be awarded
thereunder, at the rate of 12 per centum per annum on the market
value, is the date of publication of the Section 4 notification. The
terminal point for the purpose is either the date of the award or the
date of taking possession, whichever is earlier. In the present case,
possession of the land having been taken prior to the publication
of the Section 4 notification, that terminal is not available. The
only available terminal is the date of the award. The High Court,
therefore, was in no error in holding that the appellants were
entitled to the additional compensation under Section 23(1-A) for
the period 8-3-1991 to 6-2-1993.”
9. In the Special Land Acquisition Officer v. Karigowda & Ors.
(2010) 5 SCC 708 has observed that no interest can be claimed for
the period prior to the Section 4 notification. Where possession has
been lost prior to initiation of the acquisition proceedings, the
landowners can claim rent or damages before the Collector.
Following observations have been made in Karigowda supra:
"101. As is evident from the above dictum of the Court, despite
dispossession, the title continues to vest in the landowners and it
is open for the landowners to take action in accordance with law.
Once notification under Section 4(1) of the Act has been issued
and the acquisition proceedings culminated into an award in terms
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of Section 11, then alone the land vests in the State free of any
encumbrance or restriction in terms of provisions of Section 16 of
the Act. The court, in situations where possessions have been
taken prior to issuance of notification under Section 4(1) of the
Act, can direct the Collector to examine the extent of rent or
damage that the owners of land would be entitled to, the
provisions of Section 48 of the Act would come to aid and the
court would also be justified in issuing appropriate direction. This
was the unequivocal view expressed by the Court in R.L. Jain
case as well. This legal question is no more open to controversy
and stands settled by this Court. We would follow the view taken
and accept the contention of the appellant State that the Reference
Court as well as the High Court could not have granted any
interest under the provisions of the Act, for a date anterior to the
issuance of notification under Section 4 of the Act. However,
following the dictum of the Bench in R.L. Jain case , we direct the
Collector to examine the question of payment of rent/damages to
the claimants, from the period when their respective lands were
submerged under the backwater of the river, till the date of
issuance of the notification under Section 4(1) of the Act, from
which date, they would be entitled to the statutory benefits on the
enhanced compensation.”
10. In Karigowda supra, the question came up for consideration as
to interest payable on taking of possession. This Court considered
various issues and observed that the decision of Larger Bench in R.L.
Jain‘s case (supra) is binding. It has been observed that once
notification under section 4(1) has been issued and the award has
been passed, then only the land will vest in the State. In case its
possession has been taken earlier to the issuance of notification
under section 4(1) of the Act, the Court can direct the Collector to
examine the extent of rent or damage that the owners of the land
would be entitled to. The Collector was directed to examine the
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question of payment of rent/ damages from the period their respective
lands were submerged in the backwater of the river, till the date of
issuance of notification under section 4(1) from which date, they
would be entitled to claim benefits on the enhanced compensation.
The question of interest arises after the date of notification under
Section 4 and not prior to under section 28 or 34 of the Act.
11. When we consider the provisions of section 23, while
determining the compensation under section 23(1) of the Act, the
Court shall take into consideration firstly, the market value of the
land on the date of publication, secondly, the damage sustained by
reason of taking of any standing crops or trees and other damages at
the time of taking possession. Under section 23(1)(A) of the Act, the
additional compensation is awarded at the rate of twelve percent per
annum on the market value from the date of notification under
section 4. Under section 23(2) of the Act, in addition to the market
value, thirty percent solatium is awarded on such market value.
12. In the present matter, we are concerned with the question of
interest to be awarded under section 34. Section 34 of the Act is
extracted hereunder:
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“34. Payment of interest – When the amount of such
compensation is not paid or deposited on or before taking
possession of the land, 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:
[Provided that if such compensation or any part thereof is
not paid or deposited within a period of one year from the
date on which possession is taken, interest at the rate of
fifteen per centum per annum shall be payable from the date
of expiry of the said period of one year on the amount of
compensation or part thereof which has not been paid or
deposited before the date of such expiry.]”
13. Under section 34, nine percent interest is payable for the first
year from the date of taking possession, and in case it is not paid
within one year from the date of possession, the interest at the rate of
fifteen percent per annum is payable.
14. In the present matter, interest has been awarded from the date
of the award under section 34, not from the date of notification under
section 4. It was submitted on behalf of the respondents that it was
not claimed before the reference court that possession was deprived
of in the year 1991. Compensation / Damages were not claimed
from the year 1991 and the factum of submergence has been
disputed.
15. In the instant case, the date of taking of the
possession/submergence is disputed, and there is no categorical
finding recorded that area in question came under submergence with
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effect from the year 1991 and was not as a matter of fact in
possession of the appellant. Certain documentary evidence has been
pointed out, indicating that the land was in cultivating possession of
the appellant. It is also not clear for how much period of a year the
area in question remained in submergence. Certain documents have
been filed by the appellant in this Court in the form of
correspondence showing that certain survey numbers in various
villages came under submergence, which was required to be acquired.
The question is, which were those survey numbers that came under
submergence has to be examined by the Collector. The claim of
damages would depend upon the factum whether the land has come
under submergence in the year 1991 for which adequate directions
have been issued by the High Court to the Collector.
16. In these circumstances, we direct the Collector shall examine
whether the area had come under submergence and shall determine
the quantum of damages to be paid from 1991 till the date of
notification under section 4. In case the area has come in
submergence, then the appellant shall be entitled to the interest
under Section 34 from the date of notification under Section 4 till
award also. Interest under Section 34 at the most can follow from the
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date of notification under section 4, in case the area had come under
submergence at any point of time before the notification was issued.
The Collector shall determine the aforesaid aspect within six months
after hearing the parties and the evidence as may be adduced. The
appeal is accordingly disposed of .
…..………………………J.
(Arun Mishra)
…..………………………J.
(Indira Banerjee)
New Delhi;
January 21, 2020