CHINUBHAI DURGAJI KAMBLE Vs. WESTERN COALFIELDS LTD

JUDGEMENT

(1.) All these appeals under section 20 of Coal Bearing Areas (Acquisition and Development) Act (20 of 1957) , herein after referred to as Coal Bearing Act, challenge the award passed by Special Tribunal, Nagpur, constituted under Section 14 (2) thereof. The appeals are by land owners and they have restricted their claim in appeal only to entitlement to receive additional interest/ component of 12%, solatium at 30% and interest at 9% or 15% as the case may be at par with amended provisions of Land Acquisition Act, more particularly Section 23 (1-A) , 23 (2) and section 30 thereof read with Government circular dated 12. 5. 1989 issued by Union of india, Ministry of Energy, Department of Coal, new Delhi. In view of clear provisions of said circular, entitlement of appellants to receive solatium at 30% as per its clause (a) or interest at 9% or 15% in terms of clause (b) is also not in dispute. However, Shri. Mehadia, learned counsel appearing for the acquiring body (Respondent W. C. L. ) has contended that the benefit of escalation amount at 12% per annum of the fair market value of the land contemplated by clause 3 of said Government Circular cannot be given to present land owners because award in their cases is prior to 30. 4. 1982. He points out that Circular itself contemplates benefit to be given to cases in which Notification under section 9 (1) of Coal Bearing Act is issued on or after 30. 4. 1982. He has compared said circular and provisions of Coal Bearing Act with provisions of Land Acquisition Act, 1894, more particularly Section 23 (1a) and he states that the moment there is declaration of acquisition under Section 9 of Coal Bearing Act, in view of its Section 10, the land vests in acquiring body and the owners cease to be the owners of that land. He, therefore, argues that the effect of Section 9 (1) Notification is like an award under Land Acquisition Act and Section 23 (1-A) of Land Acquisition Act is also applicable only in cases where award has not been made by the Collector before 30. 4. 1982. He points out that in view of this provision made in Section 30 (1) (a) of Amending Act 68 of 1984 of Land Acquisition Act, very same Scheme is also made applicable by the Circular dated 12. 5. 1989 insofar as acquisition under Coal bearing Act is concerned. He, therefore, argues that if Section 9 (1) Notification is after 30. 4. 1982 then only escalation amount at 12% per annum can be given. He further states that in view of time frame within which the notification under Section 4 (1) of Coal Bearing act and Notification under Section 9 (1) thereof is required to be published, the Circular correctly restricts grant of said escalation amount only for a period of three years. He, therefore, argues that as in all these cases notification under Section 9 (1) is published before 30. 4. 1982, the said benefit cannot be extended to the appellants before this Court. He invites attention of Court to the judgment of this court in First Appeal No. 173 of 1993 decided on 8. 9. 2006 and also the judgment dated 12. 7. 2004 delivered in First Appeals No. 7, 8,9 and 10 of 1989 i. e. Dadaji Yenurkar Vs. W. C. L. reported at 2005 (1) ALL MR 109. He argues that vide judgment dated 8. 9. 2006, this Court has correctly treated date of Notification under section 9 (1) as relevant date for the purpose of calculating interest payable under Section 16 of Coal Bearing Act. He, further states that in dadaji Yenurkar Vs. W. C. L, supra, the issue has not been appropriately considered and this court has erroneously treated award delivered under Section 14 by the Special Tribunal to be award and its date to be relevant date for grant of this benefit. He further points out that even this Court (myself) has in some matters not given benefit of escalation amount at 12% in cases where notification under Section 9 (1) was published before 30. 4. 1982.

(2.) Shri. Dhore, learned counsel, appearing for the appellants in First Appeal no. 159 of 1989, Shri. Sirpurkar, learned counsel appearing for the appellants in First appeal No. 179 of 1990 and other matters and shri. Parchure, learned counsel for the appellants in First Appeal No. 436 of 1990, have however contended that award contemplated under Land Acquisition Act cannot be equated with Section 9 (1) notification. They contend that under Coal Bearing Act, though land vests in government after Section 9 (1) notification itself, determination of compensation continues even thereafter and such determination is over only after award is pronounced by the Special tribunal under Section 14. They further state that in Land Acquisition Act, procedure contemplated for verification of claims of interested persons is entirely different and even before determination of market value for the purpose of award, land owners are served with notice under Section 9 of Land Acquisition Act and their objection or material produced by them is taken into account by the Land Acquisition officer for determining the market value. According to them, in the absence of such participation by land owners before vesting of land in Government, insofar as acquisition under Coal Bearing Act is concerned, notification under Section 9 (1) cannot be relevant at all for the purpose of deciding the entitlement of land owners. They, therefore, state that award by the Special Tribunal under section 14 is the first determination in which the land owners get opportunity to participate and hence award declared by the Special tribunal alone needs to be looked into for the purpose of finding whether benefit equivalent to one under Section 23 (1-A) can be given to present appellants/land owners. They contend that the issue was squarely raised before the learned Single Judge of this Court in First appeal Nos. 7 to 10 of 1989 and after considering the judgment of the Hon'ble Apex court in the case of Omprakash Vs. State of uttar Pradesh, reported at 1974 (1) SCC 628, the learned Single Judge has correctly answered the controversy. They further state that the issue was not raised before this Court when it decided first Appeal No. 173 of 1993 on 8. 9. 2006 because the claimant there was demanding interest only in terms of Section 16 of Coal bearing Act and hence the question of interpretation or application of the Government circular dated 12. 5. 1989 did not fall for consideration there. It is also argued that when this Court (myself) decided similar matters, the counsel representing the appellants did not address the Court on this issue and attention of this Court was not invited to this aspect at all. They contend that the question has arisen specifically for the first time in view of objection raised by Shri. Mehadia, learned counsel, after noticing the judgment dated 12. 7. 2004.

(3.) In reply, Shri. Mehadia, learned counsel states that said judgment Dadaji yenurkar Vs. W. C. L. (2005 (1) ALL MR 109) , supra, was also pointed out to this Court (myself) when it decided the similar matters. Shri. Mehadia also states that the contention that there is no determination of compensation in coal Bearing Act before Section 14 stage is incorrect because until and unless the competent Authority determines the amount to be offered to land owners, the party cannot take recourse to Section 14. He contends that when amount determined by the Competent Authority is not acceptable to landowners, then only recourse to remedy before the Special Tribunal is contemplated by Coal Bearing Act. According to him, therefore, the entitlement claim of appellants to escalation amount in terms of clause (3) of Government Circular dated 12. 8. 1989 needs to be answered against the appellants and in favour of acquiring body.