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Hiraji Budho Dhake Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 142 of 1983
Judge
Reported inAIR1986Bom390
ActsLand Acquisition Act, 1894 - Sections 23 (1A), 23(2), 28 and 30; Land Acquisition Amendment Act, 1984
AppellantHiraji Budho Dhake
RespondentState of Maharashtra
Appellant AdvocateG.B. Karandikar, Adv.
Respondent AdvocateS.G. Page and;Manjula Rao, Asstt. Govt. Pleaders
Excerpt:
.....of the act would not be available to any award that was pending under section 18 of the said act, but it would be available to those awards that were made by the collector after 30.4.1982 - - 9,000/-,without his being in a position to substantiate his bare word by producing documentary evidence like tip pans of income and expenditure. the claimant also failed to produce any record to show on what date the possession of the acquired land was taken. if the new law speaks in language, which, expressely or by clear intendment, takes in even pending matters, the court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance. 26(n) and (o) of the bihar..........a claim at the rate of rs. 16,000/- per hectare, but the special land acquisition officer by an award dated 26th march, 1979 assessed the value at the rate of rs.6,500/- per hectare and awarded a total compensation of rs. 31,845.80. in the reference, the learned assistant judge increased the value of the land from rs. 6,500/- to rs. 8,500/- per hectare and thus enhanced the compensation by rs. 9,798/- in all.2. in the present appeal, the claimant has limited the compensation to rs. 14,945/- inclusive of solatium.3. shri karandikar, the learned advocate appearing for the appellant-claimant, contended that the lower court was in error in fixing the price at rs. 8,500/- per hectare and that the price ought to have been fixed at the rate of rs. 16,000/- per hectare as claimed by the.....
Judgment:

Aggarwal, J.

1. This appeal is by the original claimant whose land bearing Gat No. 493 admeasuring 4 hectareas 26 areas (plus 1 are Pot-Kharab) situated at Varad-Seem, Taluka Bhusawal, District Jalgaon, has been acquired for construction of Waghur Project Colony and he is aggrieved of the judgment and order passed by the learned Assistant Judge, Jalgaon, in Land Reference being Miscellaneous Civil Application No. 388 of 1980. The brief facts are that section 4(1) Notification under the Land Acquisition Act, 1894, was published on25th August, 1977. The claimant made a claim at the rate of Rs. 16,000/- per hectare, but the Special Land Acquisition Officer by an Award dated 26th March, 1979 assessed the value at the rate of Rs.6,500/- per hectare and awarded a total compensation of Rs. 31,845.80. In the Reference, the learned Assistant Judge increased the value of the land from Rs. 6,500/- to Rs. 8,500/- per hectare and thus enhanced the compensation by Rs. 9,798/- in all.

2. In the present appeal, the claimant has limited the compensation to Rs. 14,945/- inclusive of solatium.

3. Shri Karandikar, the learned Advocate appearing for the appellant-claimant, contended that the lower Court was in error in fixing the price at Rs. 8,500/- per hectare and that the price ought to have been fixed at the rate of Rs. 16,000/- per hectare as claimed by the claimant. The learned Counsel took us through the relevant evidence of the impugned judgment. Shri Karandikar was unable to convince us that the lower Court has wrongly rejected the sale instances as discussed in the judgment. The lower Court has borne in mind the various circumstances brought on record, namely, that the acquired land was connected with the S.T. bus service and that it was possessed of N.A. potentially and that there was a rising trend in prices in village Varad-Seem. The lower Court has taken into consideration the oral testimony of the claimant Hiraji to the effect that he was getting income to the tune of Rs. 8,000/- to Rs. 9,000/-, without his being in a position to substantiate his bare word by producing documentary evidence like tip pans of income and expenditure. The lower Court has relied upon the sale instance dated 29th of April 1974 pertaining to Gat No. 678, which was sold at the rate of Rs. 7,870/- per hectare.

4. We are, therefore, of the opinion that the compensation fixed by the lower Court is just and fair and no case is made out for further enhancing the same.

5. Shri Karandikar next urged that the lower Courts should have, in any event, granted interest from the date of the order enhancing the compensation from Rs. 6,500/- to Rs. 8,500/- per hectare. There is no merit in this contention. In this respect, the lower Court found that the claimant had not cared to produce evidence about the date of taking over possession of the acquired land either in his pleadings or in his testimony before the Court. The claimant also failed to produce any record to show on what date the possession of the acquired land was taken. On the other hand, it was found that the possession was taken by the Acquiring Body by private negotiations. The Award, Ex. 20, itself shows that the Acquiring Body was directed to pay rent to the claimant from the date of taking possession. Thus, the claimant could not receive rent and interest at the same time. Therefore, interest at the same time. Therefore, interest was not rightly granted by the lower Court on the enhanced amount.

6. Shri Karandikar lastly referred to the amendments of sections 23 and 28 of the Land Acquisition Act, 1894, introduced by the Land Acquisition (Amendment) Act, 1984, published on 24th of September 1984, and the transitional provisions enacted by section 30 of the said amending Act and submitted that the claimant in the present case is entitled to additional amount of compensation under the newly added section 23(1-A) and also additional solatium by virtue of the amendment of sub-section (2) of section 23 and also higher rate of interest by reason of the amendment of section 28 of the principal Act, because these amended provisions of sections 23 and 28 are also applicable to an order passed in appeal by the High Court/Supreme Court after 30th April, 1982, therefore the benefit conferred by the amended provisions is available to the claimant. Shri Karandikar submitted that the provisions of sub-section (2) of section 30 are not confined only to an award made by the Collector after 30th April, 1982 but to any award made by the Court under section 18 of the Act or to any order passed by the High Court or the Supreme Court in appeal after 30th April, 1982.

7. In order to appreciate these contentions, it is necessary to refer to these new amendments introduced by sections 15,18 and 30:-

'15. Amendment of Section 23. - In section 23 of the principal Act, -

(a) after sub-section (1), the following sub-section shall be inserted, namely:-

'(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 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, which ever is earlier.

Explanation:- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded';

(b) in sub-section(2), for the words 'fifteen per centum', the words 'thirty per centum' shall be substituted:

xx xx xx xx

'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 into Court before the date of such expiry.'

'30. Transitional provisions - (1) The provisions of sub-section (1-A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to, -

(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th of April, 1982 the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People,in which no award has been made by the Collector before that date;

'(b) every proceeding for the acquisition of any land under the principal Act commenced after the date, whether or not an award has been made by the Collector before the date of commencement of this Act.

(2) The provisions of sub-section (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 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.'

8. The above amendments to sections 23 and 28 are designed to provide higher compensation, solatium and rate of interest. In so far as the additional compensation at the rate of 12% per annum of the market value of land under the newly added section 23(1-A) is concerned, out understanding of this newly added section is that in addition to the compensation to be awarded for land acquired under the Act, for the various factors enumerated in sub-section (1) of section 23 of the principal Act, the Legislature has given a kind of bonus at the rate of 12% per annum from the date of the publication of the Notification under section 4(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, but this additional benefit at the rate of 12% per annum is limited to cases in clauses (a) and (b) of sub-section (1) of section 30 of the amending Act. A plain reading of these provisions shows that this additional benefit is available only to proceedings for acquisition pending on 30th April 1982 in which no award has been made by the Collector before that date or to proceedings for acquisition of any land commenced after that date whether or not an award has been made by the Collector before the date of commencement of the amending Act. In the present case, the proceedings were not pending on 30th of April 1982 nor the proceedings were commenced after 30th of April 1982, but the award had been made on 26th of March 1979 and, therefore, the claimants in the present case is not entitled to additional compensation made payable under section 23(1-A).

9. Coming to the provisions of sub-section (2) of section 23 as amended, relating to the increase in the solatium from 15% to 30% these provisions are given retrospective effect to the extent and in the manner laid down in sub-section (2) of section 30 of the amending Act. Bearing these provisions in mind, we feel that the reasonable way to read and understand these provisions is that they are applicable to any award made by the Collector after the 30th April 1982 and not to any award made by the Court under section 18 of the principal Act or to any order passed by the High Court or the Supreme Court afterr 30th of April 1982. The order of the High Court or the Supreme in appeal must be in respect of an Award made after 30th April 1982 and it does not cover Awards made before 30th April 1982. These provisions apply to pending matters under section 18 of the Land Acquisition Act, 1894, and to appeals pending in High Court or Supreme Court but in respect of awards made by the Collector after 30th April 1982. This is clear from th expression 'against any such award'. If the meaning, as suggested by Shri Karandikar, is given then the expression 'against any such award' would become redundant. On the contrary, this expression indicates that the Court under section 18 or the High Court or the Supreme Court in appeal, while passing an order, is not to give effect to the newly added provisions of S. 23(2) and S. 28 to any and every award which may be the subject matter before the Court under section 18 of the Act or in appeal before the High Court or the Supreme Court, but to awards made after 30th April 1982. It seems that the Legislature has fixed the date '30th of April 1982' as the date from which the benefit of the newly amended Act is to be given and that date is the date of introduction of the Bill relating to the amending provisions. The intention of the Legislature does not seem to give a sweeping retrospective effect to each and every Award pending under section 18 or in appeal before the High Court or the Supreme Court, as otherwise sub-section (2) of section 30 of the amending Act would not have been worded in this manner. This interpretation of sub-section (1) of section 30 in relation to the benefit of additional compensation at the rate of 12% per annum. There, too the Legislaruture, as discussed above, had confined the benefit to the period after 30th of April 1982 and not to Awards pending or commenced before that date. The effect of our interpretation of the provisions of section 23(2) would be the same as regards the provisions of section 28, which provides a higher rate of interest. The benefit of interest is also not available to any Award, but to an Award made by the Collector after 30th of April 1982.

10. In understanding the application of the 'Transitional Provisions' enacted by section 30 of the 1984 Amendment, we have borne in mind the following proposition as stated in Dayawati v. Inderjit : [1966]3SCR275 as per Hidayatullah, J. (as he then was):-

'Now as a general proposition, it may be admitted that ordinarily a Court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been rendered, because the rights of the litigantsin an appeal are determined under the law in force at th date of the suit. Even before the days of Coke, whose maxim - a new law ought to be prospective, not retrospective in its operation- is oft quoted, Courts have looked with disfavour upon laws which take away vested rights or affect pending cases. Matters of procedure are, however, different and the law affecting procedure is always retrospective. But it does not mean that there is an absolute rule of inviolability of substantive rights. If the new law speaks in language, which, expressely or by clear intendment, takes in even pending matters, the Court of trial as well as the Court of appeal must have regard to an intention so expressed, and the Court of appeal may give effect to such a law even after the judgment of the Court of first instance. The distinction between laws affecting procedure and those affecting vested rights does not matter when the Court is invited by law to take away from a successful plaintiff, what he has obtained under a judgment. See Quilter v. Mapleson, (1882) 9 QBD 672 and Stovin v. Fairbrass, (1919) 88 LJKB 1004, which are instances of new laws being applied. In the former the vested rights of the landlord to recover possession and in the latter the vested right of the statutory tenant to remain in possession were taken away after judgment. See also Maxwell, Interpretation of Statutes (11th Edn.) pp. 211 and 213, and K.C. Mukerjee v. Mst. Ramratan Kuer where no saving in respect of pending suits was implied when S. 26(N) and (O) of the Bihar Tenancy Act (as amended by Bihar Tenancy Amendment Act, 1934) were clearly applicable to all cases without exception.........'

11. In the present case, the newly inserted provisions under consideration, i.e., sub-section (1-A) of section 23 and sub-section (2) of section 23 and section 28 (as amended), are conferring new rights and do not taking away existing rights. These new rights are made applicable retrospectively and the use of the expression 'shall be deemed to have applied' in sub-sections (1) and (2) of section 30 of the 1984 Amendment puts beyond doubt any uncertainty about retrospectivity. But the perimeters of retrospectivity are marked and the retrospectivity does not travel back beyond 30 th of April 1982, subject to the fulfilment of other qualifying conditions discussed above.

12. In the result, the appeal fails and is dismissed. The parties will, however, bear their own costs. Appeal dismissed.


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