Full Judgment Text
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PETITIONER:
MIR FAZEELATH HUSSAIN & ORS.
Vs.
RESPONDENT:
SPECIAL DEPUTY COLLECTOR, LAND ACQUIS TION, HYDERABAD
DATE OF JUDGMENT23/03/1995
BENCH:
HANSARIA B.L. (J)
BENCH:
HANSARIA B.L. (J)
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1995 AIR 1424 1995 SCC (3) 208
JT 1995 (3) 410 1995 SCALE (2)424
ACT:
HEADNOTE:
JUDGMENT:
HANSARIA, J.:
1. A land acquisition proceeding which was initiated by
issuing notification under Section 4(1) of the Land
Acquisition Act, 1984 (hereinafter referred to as ’the Act’)
on 25.4.1963 has brought the appellants to this Court as
they have felt dissatisfied with the fixation of a market
value by the Andhra Pradesh High Court, which granted
compensation on belt wise basis. The appeal came up for
hearing before a two Judge bench and by judgments dated May
15, 1992 the appeal came to be allowed in part as indicated
in the judgments. The two learned Judges, however, differed
on the question as to whether the appellants are entitled to
interest as enhanced by Section 18 of the Land Acquisition
(Amendment) Act, 1984 (for short, ’the Amendment Act’).
Kasliwal, J. took the view that despite what has been held
by the Constitution Bench in the Case of Union of India v.
Raghubir Singh, 1989 (2) SCC 754 enhanced rate of interest
as visualised in the Amendment Act would be available to the
appellants on a harmonious reading of the provisions, if the
intention of the legislature in enhancing the rate of inter-
est is kept in view. Punchhi, J., however, was of the
opinion that awarding of enhanced rate on the face of what
was held in Raghubir Singh’s case would militate against the
ratio of that case and would do violence to the statute.
The learned Judges, therefore, while allowing the appeal in
part and setting aside the judgment of the High Court to the
extend indicated in the judgments, requested the Hon’ble
Chief Justice to constitute a larger bench to resolve the
disagreement with regard to the rate o interest as, though
the controversy is short, the same is likely to affect large
number of cases. Hence, this appeal has come up for hearing
by this bench.
2.The provisions of the Act which are relevant for our
purpose are Sections 11, 23, 25, 26 and 28, which may be
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noted the threshold :
"11. Enquiry and award by Collector.-
(1) On the day so fixed, or on any other day
to which the enquiry has been adjourned, the
Collector shall proceed to enquire into the
objections (if any) which any person
interested has stated pursuant to a notice
given under Section 9 to the measurements made
under Section 8, and into the value of the
land at the date of the publication of the
notification under Section 4, sub-section (1),
and into the respective interests of the
persons claiming the compensation and shall
make an award under his hand of -
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(i) the true area of the land
(ii) the compensation which in his opinion
should be allowed for the land; and
(iii) the appointment of the said compensation
among all the persons known or believed to be
interested in the land, of whom or of whose
claims, he has information, whether or not
they have respectively appeared before him :
x x x x x x x
x x x x x x x
23. Matters to be considered in determining compensation.
(1) In determining the amount of compensation to be awarded
for land acquired under this Act, the Court shall take into
consideration -
first:-- the market-value of the land at the
date of the publication of the notification
under Section 4, sub-section (1) ;
secondly:-- the damage sustained by the
person interested, by reason of the taking of
any standing crops or trees which may be on
the land at the time of the Collector’s taking
possession thereof ;
thirdly:-- the damage (if any) sustained by
the person interested, at the time of the
Collector’s taking possession of the land, by
person of severing such land from his other
land;
fourthly:- the damage (if any) sustained
by the person interested, at the time of the
Collector’s taking possession of the land, by
reason of the acquisition injuriously affect-
ing his other property, movable or immovable,
in any other manner or his earnings;
fifthly:-- If in consequence of the
acquisition of the land by the Collector, the
person interested is compelled to change his
residence or place of business, the reasonable
expenses (if any) incidental to such change;
and
sixthly:-- the damage (if any) bona fide
resulting from diminution of the profits of
the land between the time of the publication
of the declaration under Section 6 and the
time of the Collector’s taking possession of
the land.
(1 -A) In addition to the market-value of the
land, as above provided, the Court shall in
every case award an amount calculated at the
rate of twelve per centum per annum on such
market-value for the period commencing on and
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from the date of the publication of the
notification under Section 4, sub-section (1),
in respect of such land to the date of taking
possession of the land, whichever is earlier.
Explanation. In computing the period referred to in this
sub-section any period or periods during which the pro-
ceedings for the acquisition of the land were held up on
account of any stay or
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injunction by the order of any court shall be excluded.
(2) In addition to the market-value of the land, as above
provided, the Court shall in every case award a sum of
thirty per centum on such market-value, in consideration of
the compulsory nature on the acquisition.
25. Amount the compensation by Court not to be lower than
the amount awarded by the Collector.- The amount of
compensation awarded by the Court shall not be less that the
amount awarded by the Collector under Section 11.
26. Form of awards.- (1) Every award under this Part shall
be in writing signed by the Judge, and shall specify the
amount awarded under clause first of subsection (1) of
Section 23, and also the amounts (if any) respectively
awarded under each of the other clauses of the same sub-
section, together with the grounds of awarding each of the
said amounts.
(2) Every such award shall be deemed to be a decree and the
statement of the grounds of every such award a judgment
within the meaning of Section 2, clause (2), and Section 2,
clause (9), respectively, of the Code of Civil Procedure,
1908. (5 of 19-8).
28. Collector may be directed to pay interest on excess
compensation.If the sum which, in the opinion of the Court,
the Collector ought to have award as compensation is in
excess of the sum which the Collector did award as com-
pensation, the award of the Court may direct that the
Collector shall pay interest on such excess at the rate of
nine per centum per annum from the date on which he took
possession of the land to the date of payment of such excess
into Court:
Provided that the award of the Court may also direct that
where such excess or any part thereof is paid into Court
after the date of expiry of a period of one year from the
date of 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
such excess or part thereof which has not been paid into
Court before the date of such expiry.
3. We may also note Section 18 of the Amendment Act which
brought out amendment in Section 28 of the principal Act,
which reads as below:
"18. Amendment of Section 28. In Section 28
of the Principal Act, -
(a) for the words "six per centum", the
words "nine per centum" shall be substituted;
(b) the following proviso shall be inserted
at the end, namely:-
"Provided that the award of the Court may also
direct that where such excess or any part
thereof is paid into Court after the date of
expiry of 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 such
excess or part thereof which has not been paid
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into Court before the date of such expiry."
4. The aforesaid shows that the rate of interest was
increased from 6 per centum to 9 which would become 15 after
expiry of the period mentioned in the proviso to the
Amendment Act. The question for determination is whether
advantage of the increased in rate of in rest would be
available to the appellants. To decide this we
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have to keep in mind the following dates:
(1) Date of Collector’s award 10.6.1968,
(ii) Date of taking over of possession 24.6.1968
(iii) Date of Reference Court’s award 30.8.1972;
(iv) Date of the decision of the High Court: 24.6.1974 ;and
(v) Date, of this Court’s aforesaid Judgments : 15.5.1992.
5. The answer to the controversy lies mainly in finding
out as to whether the appellants’ case is covered by Section
30 (2) of the Amendment Act which reads as below:
"30(2) The provisions of subsection (2) of
Section 23 and Section 28 of the principal
Act, as amended by clause (b) of Section 15
and Section 18 of this Act respectively shall
apply, and shall be deemed to have applied,
also to, and in relation to, any award made by
the Collector or Court or to any order passed
by the High Court or Supreme Court in appeal
against any such award under the provisions of
the principal Act after the 30th day of April,
1982 [the date of’ introduction of the Land
Acquisition (Amendment) Bill, 1982, in the
House of the people] and before the
commencement of this Act."
(Emphasis supplied)
6. As to what is the reach and extent of the aforesaid
section came to be examined by the Constitution Bench in
Raghubir Singh’s case. Para 32 of that judgment is relevant
for our purpose, according to which the expression "any such
award" in the section referred to awards made by the
Collector or Court between April 30 1982 and September 24,
1984 (which is the date of commencement of the Amendment
Act); or the appeals against such awards decided by the High
Court and the Supreme Court, whether the decisions are
rendered before September 24, 1984 or after that date. In
the present case the award of the Collector as well as of
the Court being before April 30, 1982, on the ratio of
Raghubir Singh’s case benefit o amended section28 is not
available to the appellants. However, it deserves to be
noted that Raghubir Singh’s case dealt with the question of
payment of solatium as enhanced by the Amendment Act. The
real point for consideration, therefore, is whether what was
stated by Raghubir Singh’s Bench regarding solatium would
apply to interest as well; and this is the point of
difference between the two leaned Judges who heard the
appeal earlier. May we state that the view taken by the
Raghubir Singh’s Bench has been endorsed by the Constitution
Bench in K.S. Paripooran v. State of Kerala, JT 1994 (6) SC
182 (sec para 58, 59, 102, 106 and 107).
7. Shri Madhav Reddy, learned Sr. Advocate appearing for
the appellants, has submitted that as appellants are not
claiming enhanced interest retrospectively but from the date
of coming into force of the amending Act (September 24,
1984) what was stated in Raghubir Singh’s case has no
application. We find no force in this submission inasmuch
as enhanced interest as contemplated by section 18 of the
Amending Act de hors what has been stated in sub-section (2)
of Section 30. This is for
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the reason that the Amending Act has made available the
enhanced rate only to those cases mentioned in sub-section
(2) of Section 30. The Court has no power to enlarge the
scope of this sub-section. That would be either "violence
to the statute" as put by Punchhi, J., or an act of legisla-
tion by us, which as a court we cannot undertake.
8. Let it, therefore, be seen whether, despite what was
stated in Raghubir Singh’s case qua solatium, enhanced
interest can be claimed by the appellants. This aspect is
being examined by us because interest is not a part of the
award and section 30(2) of the Amendment Act deals with
awards. That interest does not form of award would appear
from a combined reading of Sections 11, 23 and 26 of the
Act. Section 111 which enjoins the Collector to make an
award, requires him to specify: (i) the true area of the
land; (11) the compensation which in his opinion should be
allowed for the land and (iii) the apportionment o the said
compensation. Section 23 deals with the matters to be
considered in determining the compensation. Sub-section (1)
requires six aspects to be taken note o which are subject
matters of six clauses o that sub-section. Sub-section (2)
of Section 23 has provided for payment colloquially known as
solatium. Section 26, which is on the subject of form o
awards, states that every award specify the amount awarded
under clause first of subsection (1) of Section 23, and also
the amounts, if any, awarded under each o the other clauses
of the same sub-section. Sub-section (2) of this section
states that every such award shall be deemed to be a decree.
9. The aforesaid clearly shows that the interest
visualised by section 28 of the Act is not a part of the
compensation, and so, not a part of award. This has also
been the view expressed by a two-Judge bench of this Court,
to which one of us (Kuldip Singh, J) was a party, in Shree
Vijay Cotton & Oils Mills Ltd. v. State of Gujarat, 1991 (1)
SCC 262. (See para 15). A combined reading of aforesaid
sections would show that solatium too is not a part of the
award inasmuch as sub-section (1) of Section 26 specifically
states that the award shall specify the amount awarded under
each of the clauses of sub-section (1) of Section 23,
whereas solatium is dealt by sub-section (2) of Section 23.
10. The aforesaid being the position, we have to hold that
what was stated in Raghubir Singh’s case qua solatium shall
apply to interest also. Enhanced interest is not demanded
by a harmonious reading of relevant provisions, as opined by
Kasliwal, J., because the "Intention of the legislature"
about which the leaned Judge spoke, really shows the
contrary, according to us, as the increase was sought to be
confined (for reasons which need no examination) to the
awards made between the dates noted above, whereas the
present award is anterior to the starting point. We are,
therefore, in agreement with the view taken by Punchhi, J.
and state that the appellants are not entitled to enhanced
rate of interest as contemplated by section 18 of the
Amendment Act.
11. It has also been submitted by Shri Madhava Reddy that
higher rate of interest may be ordered to do equity between
the parties. We are unable to concede, as, had present been
a case of non-awarding of any interest, we would have done
so, because, interest in such cases may be-
417
come payable on equity, for it is meant to make good the
loss suffered by a person due to delayed payment. This view
has been reiterated recently by this Court in Kalimpong Land
& Building Ltd. v. State of West Bengal, JT 1994 (6) SC 102,
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in which payment of interest was ordered, even when
acquisition was under Requisitioning and Acquisitioning of
Immovable Property Act, 1-952, which statute has made
specific provision, unlike the Act at hand, for payment of
interest. But equity has no role when the question relates
to rate o interest. Whether the rate of interest should be
6% or 9% is not a matter which would require invocation of
Court’s equitable jurisdiction. The same has to be governed
by statutory provision. Had the rate of interest been too
low, we could have perhaps on equity granted some relief But
6% has been the rate for a very long period insofar as the
Act is concerned as the enhancement came only in 1984
whereas the Act is of 1894. So, we are not satisfied if
equity demands granting of relief in question.
12. This is our answer to the point referred to this bench.
The appeal may now be placed for final disposal before an
appropriate bench.
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