MITHLESH Vs. COLLECTOR

JUDGEMENT

(1.) THESE are two appeals by the claimants against the judgment, order and award dated 27.2.90 by the Nagar Mahapalika Tribunal, Agra in Land Acquisition Case No.5 of 1975 and 7 of 1975 whereby the claimants have been awarded compensation to the tune of Rs.94,261.92 and Rs.1,53,798.74 respectively, damages @ Rs.18/- per sq. yard and interest thereon at the flat rate of 9% from the date of the possession. The land in dispute was acquired under the provisions of Section 357 of the Nagar Mahapalika Adhiniyam (hereinafter referred to as the 'Adhiniyam') which is para materia with Section 4 of the Land Acquisition Act (hereinafter referred to as the 'Act'). The notification under the aforesaid provision was issued on 23.4.1960 and the notification under Section 363 of the Adhiniyam which is analogous to Section 6 of the Act was issued on 26.9.1964. The possession was taken on 18.6.1971. The Special Land Acquisition Officer made the award on 22.6.72 against which the above two references were preferred by the claimants separately. Heard Sri K.C.Jain learned counsel for the claimant/appellants in both the appeals, Shri Shreekant for respondent no.4 to whom the scheme was transferred and Sri R.C.Srivastava learned standing counsel for respondents no.1, 2 and 3. Learned counsel for the appellants has submitted that he is not pressing his claim for enhancement of the market value as awarded by the Tribunal. He has made two submissions. First, in view of the amended provisions of the Act the claimants are entitle to interest on damages. Secondly, the claimants are also entitle to interest at the higher rate as provided under the amended provisions of Section 28 of the Act i.e. at the rate of 9% for the first year of possession and at the rate of 15% for subsequent years on the excess amount of compensation awarded. A perusal of the impugned award of the Tribunal indicates that the claimant has been awarded damages at the rate of Rs.18/- per sq. yard but on this amount no interest has been given. In the case of Neeta Vs. Collector, Agra 1991 ALJ 8 which was also a case relating to the same acquisition, this Court has ruled that for the delay in awarding compensation the claimant is entitled to damages under Section 48-A of the Act and interest under Section 28 of the Act is also admissible on such damages. To the same effect is another decision of this Court which is reported in 1991 AWC 1376 Inder Chandra Jain and others Vs. Collector, Agra and others. No contrary view on the point has been placed. Therefore, in view of aforesaid two decisions it is held that the claimant appellants are is entitle to interest on the damages as awarded by the reference court on compensation/damages under Section 48-A of the Act. Now comes the second submission of the learned counsel for the appellant as to the rate of interest which is admissible to the claimant/appellants on the excess amount of compensation awarded by the Tribunal if the same is not paid and deposited within one year of taking possession. According to him, under the proviso to Section 28 of the Act (as amended) interest on such excess amount at the rate of 15% per annum is admissible. This has been objected to by Shri Shreekant learned counsel for respondent no.4 and the learned standing counsel and it has been urged that in view of the decision of the Apex Court in the case of Union of India Vs. Raghubir Singh reported in AIR 1989 SC 1933 the interest of 15% on such excess amount for the period after one year of possession is admissible only if the award of the Special Land Acquisition Officer and that of the Collector falls within the interregnum period i.e. between 30.4.1982 and 24.9.1984 and would not be applicable where the award was made beyond the above two dates. The Bill for amendment of the Land Acquisition Act No.68 of 1984 was introduced on 30.4.1982 and it was passed and enforced with effect from 24.9.1984. By the said amendment apart from introducing and new provisions in the Land Acquisition Act, i.e. Section 11-A and 28-A of the Act specific amendments for the purposes of awarding compensation and interest were also made in Section 23 and 28 of the Act. In this regard Section 23(1-A) was added and it was provided that in addition to the market value the Court shall in every case award additional amount at the rate of 12% per annum on the market value from the date of publication of the notification under Section 4 of the Act till the award of the Collector or the date of possession of the land whichever is earlier. The provisions of Section 23(2) of the Act with regard to payment of 15% solatium was amended and the rate of solatium was increased to 30% of the market value. Similarly in Section 28 of the Act the rate of interest admissible on excess amount of compensation determined by the Court was increased from 6% to 9% per annum from the date of possession till the payment of excess amount in the Court with a further modification that in case such excess amount is not paid within one year of possession interest at the rate of 15% in place of 9% shall be payable on such excess amount after expiry of the period of one year. The aforesaid Amending Act was enforced with effect from 24.9.1984. Therefore, irrespective of the date of initiation of the acquisition proceedings or its completion, the aforesaid enhanced benefits are admissible in all cases where award either by the Collector or the Court are made after the aforesaid date. In the instant case, the award of the reference court was admittedly made on 27.2.1990 i.e. much after the enforcement of the Amending Act and therefore, logically interest as per the amended provisions of Section 28 on the excess amount determined was payable at the rate of 15% after the expiry of one of one year from the date of possession in the event of non payment of such excess amount. Thus, the court was under a statutory obligation to award such increased rate of interest. However, some difficulty arises in extending the aforesaid benefits on account of the language used in Section 30(2) of the Amending Act which provides as under: "30. Transitional provisions:(1)............... (2) The provisions of sub-clause (2) of Section 23 and Section 28 of 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." The provisions of Section 30(2) of the Amending Act are only transitional and not ment to be applied where the award of the Collector or the Court is made after coming into force of the Amending Act. The aforesaid transitional provision is only for the purpose to meet the peculiar situation with regard to the awards of the Collector or the Court made before the enforcement of the Amending Act but not earlier to the introduction of the Bill for the aforesaid amendments. Thus, it was provided that the benefits contained under the amended provisions of Section 23(2) i.e. solatium and Section 28 i.e. interest shall be deemed to be applicable even to the awards of the Collector or the Court made between the aforesaid two dates. There is no provision which restricts or creates bar to the extension of above benefit to the award of the Collector or the Court made after the aforesaid dates. It was in this context that the Apex Court while interpreting Section 30(2) of the Amending Act in the case of Raghubir Singh (supra) laid down that the benefit of the Amending Act would be available in every case where the award of the Collector or of the Court is made between 30.4.82 and 24.9.84. It was nowhere said by the Supreme Court that such benefit of Section 23(2) or Section 28 would not be admissible to the claimants where the awards are made after the enforcement of the Amending Act. A plain reading of Section 30(2) of the Amending Act would itself make it clear that the benefit of Section 23(2) of the Act and Section 28 of the Act (as amended) is available in relation to any award made by the Collector or the Court or any order passed by the High Court or the Supreme Court in appeal against any such award made after 30.4.1982 but before 24.9.1984 also. The words " deemed to have applied" and "also" used in Section 30(2) of the Amending Act are very material and relevant and connotes that the award of higher rate of solatium and interest is not only limited to the award of the Collector or the Court made between the aforesaid two dates but extends to other situations also which obviously refer to the award of the Collector or the Court made subsequent to the enforcement of the Amending Act. This is what has been interpreted to mean by the Supreme Court in the case of Union of India and others Vs. Filip Tiago De Gama of Vedem Vasco De Gama reported in (1990) 1 SCC 277 and it was held that in view of construction of Section 30(2) the enhanced benefit under the Amending Act would be available even in the cases where the awards are made after September 24, 1984. The Supreme Court in the aforesaid decision has observed as under: "17. Section 30(2) provides that amended provisions of Section 23 (2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or court between April 30, 1982 and September 24, 1984, or to an appellate order therefrom passed by the High Court or Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium inasmuch as to awards made subsequent to September 24, 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended Section 23(2). The case like the present one seems to have escaped attention by innocent lack of due care in the drafting. The result would be an obvious anomaly as will be indicated presently. If there is obvious anomaly in the application of law the court could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the court could discard such interpretation and adopt an interpretation which will given effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used [See Mahadeolal Kanodia v. Administrator General of West Bengal AIR 1960 SC 936]. The legislators do not always deal with specific controversies which the courts decide. They incorporate general purpose behind the statutory words and it is for the courts to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the court must strike the balance. 18. The criticism that the literal interpretation of Section 30(2), if adhered to would lead to unjust result seems to be justified. Take for example two acquisition proceedings of two adjacent pieces of land, required for the same public purpose. Let us say that they were initiated on the same day - a day some time prior to April 30, 1982. In one of them the award of the Collector is made on September, 23, 1984 and in the other on September 25, 1984. Under the terms of Section 30(2) the benefit of higher solatium is available to the first award and not to the second. Take another example: the proceedings of acquisition initiated, say, in the year 1960 in which award was made on May 1, 1982. Then the amended Section 23(2) shall apply and higher solatium is entitled to. But in an acquisition initiated on September 23, 1984 and award made in the year 1989 the higher solatium is ruled out. This is the intrinsic illogicality if the award made after September 24, 1984, is not given higher solatium. Such a construction of Section 30(2) would be vulnerable to attack under Article 14 of the Constitution and it should be avoided. We, therefore, hold that benefit of higher solatium under Section 23(2) should be available also to the present case. This would be the only reasonable view to be taken in the circumstances of the case and in the hight of the purpose of Section 30(2). In this view of the matter, the higher solatium allowed by the High Court is kept undisturbed." The three Judges Bench of the Supreme Court in the case of K.S. Paripoornan (II) Vs. State of Kerala 1995 (1) SCC 367 also after considering the Raghubir Singh's (supra) case held that the restricted interpretation given to Section 30(2) of the Amending Act should not be understood to mean that the benefit thereof would not be available to the award of the civil court which was made after the enforcement of the Amending Act. Thus, the benefits of the Amending Act are admissible in all those cases where the award of the Collector or the Court is made after the enforcement of the Amending Act and by virtue of transitional provisions of Section 30 of the Amending Act even to those cases where awards of the Collector or the Court made during the interregnum period i.e. 30.4.82 to 24.9.84. Therefore, in view of above legal position, it appears reasonable to hold that the claimants/appellants in the instant case are entitled to interest at the rate of 15% on the excess amount of compensation determined by the Tribunal after the period of one year of possession in view of the proviso to section 28 of the Act as the award of the reference court was made on 27.2.1990, i.e. much after the enforcement of the Amending Act i.e. 24.9.1984. Learned counsel for the respondent no.4 further placed reliance upon the reference order of the Supreme Court in the case of Smt. Leelawati Agarwal Vs. State of Jharkhand and another 2008 AIR SCW 2723 wherein the view expressed in the case of K.S. Paripoornan (II) (supra) has been referred to the larger Bench. The said reference has not yet been decided and the view which has been expressed in the case of Filip Tiago De Gama of Vedem Vasco De Gama (supra) has not been considered therein. There is no authority which overrules the view taken in the above two cases i.e. K.S.Paripoonnan (supra) and Filip Tiago De Gama of Vedem Vasco De Gama (supra). Therefore, the view expressed therein still holds the field and this Court, as such, is bound by the same. It is a recognised principle of law that the view expressed by the Court in the order of reference does not constitute a precedent or a law as declared by the Court. A Division Bench of this Court in the case of Globe Metal Industries and others Vs. State of U.P. and others reported in 2009(4) A.D.J. 563 has held that where the larger Bench of the Supreme Court has not decided the reference the earlier decisions of the smaller Bench continues to hold the field and the courts would be bound by the same. A Single Judge of this Court in the case of Ram Adhar Vs. State of U.P. and others reported in 2008(8) A.D.J. 466 in context of the reference order in the case of Smt. Leelawati Agarwal (supra) has held that as the larger Bench to which the matter has been referred in the Supreme Court has not decided the same, the earlier decision, i.e. the decision in the case of K.S. Paripoornan (II) (supra) shall govern the appeals. Thus, the second point as raised is answered in favour of the claimant/appellants. They are held entitle to interest at the rate of 9% p.a. for the first year of possession and thereafter at the rate of 15% p.a. on the excess amount awarded by the Tribunal. Accordingly, both the appeals succeed in part. The judgment, order and award of the Tribunal dated 27.2.1990 is modified and the claimants/appellants are held entitled to: (i) interest on damages as awarded by the Tribunal under Section 48-A of the Act; and (ii) interest on compensation at the rate 9% p.a. for one year of possession and at the rate 15% p.a. thereafter. However, in view of the reference pending before the Supreme Court, liberty is given to the respondents to apply for review, if necessary, in accordance with the view ultimately expressed by the Apex Court in the pending reference of Smt. Leelawati Agarwal (supra). Parties to bear their own costs.