DURGI DEVI Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The above appeal has been filed by the claimants whose land came to be acquired under the provisions of Land Acquisition Act, 1894, as amended, (hereinafter referred to as the Act) against the judgment/award passed by the learned District Judge, Solan, dated 19.9.1991 in Land Reference Petition No. 129 -S/4 of 89. The relevant facts, which are necessary to appreciate the question that has been raised for consideration in the appeal, are that the land of the appellants measuring 17 Biswas in village Tipra, Pargana Bhaget, Tehsil Kasauli, was notified for acquisition by the State Government for a public purpose for the construction of Patta Beja Masul Khana road by means of a notification issued under Section 4 of the Act dated 11.6.1985 and that the same was published in Rajpatra onl3.7.1985. It was followed up by a declaration under Section 6 of the Act dated 17.12.1985 and this was published on 5.7.1986. The Collector, Land Acquisition, made his award under Section 11 of the Act on 29.6.1988 determining the compensation payable for the land acquired and the market value of the land was fixed at the rate of 20,000/ - per Bigha. In addition to compensation awarded, as above, the Land Acquisition Collector further awarded solatium at the rate of 30% of the market value assessed by him and additional acquisition charges at the rate of 12% per annum on the market value from the date of publication of notification under Section 4 till 31.5.1988. The acquisition pertains to the land measuring 11 Biswas belonging to the petitioner and proforma respondent No.3. Not satisfied, a reference was sought for by the claimants and on such reference the learned District Judge, Solan, concurred with the market value of the land fixed at the rate of Rs. 20,000/ - per Bigha. As for the claim made on behalf of the appellants that the possession having been taken of the acquired land even in the year 1978 much before its actual acquisition under the provisions of the Act, they are entitled to interest under Section 28 of the Act on the sum determined as a market value from the date of taking over of possession till the date of payment. So far as the additional amount claimed under Section 23(1 -A) of the t\ct as amended by Central Act 68 of 1984, the learned District Judge was of the view that the date on which the possession was actually taken has not been brought on record and, therefore, the award of the sum under Section 23(1 -A) from the date of publication of the notification under Section 4(1) till 29.6.1988, the date of the award, alone is to be countenanced. Not satisfied, the above appeal has been filed contending that the possession of the lands were taken actually from the claimants on 23.1.1978.

(2.) Mr. K.D. Sood, learned Coumel for the appellants sought to place reliance upon the earlier award passed by the Land Acquisition Collector on 15.2.1979 in award No. 43 of 78, whereunder reference is made to the notification issued under Section 4 on 23.1.1978 under the Act and contend that the possession must be held to have been taken on that day inasmuch as, according to the learned Counsel for the appellants, it is only while taking the possession of the land pursuant to.the said notification made in the year 1978 that larger extent than what was notified therein was actually taken possession of, which necessitated the initiation of the subsequent acquisition proceedings to formally legalise the takirg over of possession on an earlier date and consequently the date of taking over of possession, which according to the learned Counsel for the appellants, being 23.1.1978, the amount due under Section 23(1 -A) has to be awarded from the said date. In support of the said stand, the learned Counsel relied upon a decision of a Division Bench of this Court reported in 1997 (2) Sim. L.C. 461 (L.A.C., H.P.P.W.D., Kulluv. Smt. Dugli Devi and others) and a decision of the Supreme Court reported in (1996) 2 S.C.C. 369 (Astekaar Naganaatha Rao and others v. Assistant Comissioner and Land Acquisition Officer and others). Per contra, the learned Advocate General placed strong reliance upon the decisions reported in 1995 (2) S.C.C. 142 (Special Tehsildar (LA), P. W.D. Schemes, Vijayawada v. M.A. Jabbar) and (1995) 6 S.C.C. 233 (Union of India v. Budh Singh and others) for the contra position contending that the provisions of Section 23(1 -A) cannot be applied in such a manner as to award the sum envisaged therein based on the alleged and even actual date of taking of possession from a date anterior to Section 4 notification and that, therefore, no exception could be taken to the award passed by the learned District Judges.

(3.) The provisions of Section 23(1 -A) need be set out and which are as follows: "(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 cent per annum on such market -value for the period commencing on and from the date of the publication of the notification under Section 4, sub -section (1) in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation. -In computing the period referred to in this subsection, any period or periods during which the proceedings for the acquisition of the land were held up an account of any stay or injunction by the order of any Court shall be excluded."