1. Plot No. 4045 in mouza Gadakana comprising an area of2.89 acres belonging to the petitioner was acquired for the Sainik School at Gadakana, Bhubaneswar. The Collector fixed the compensation for the said land at Rs. 5,317.60 paise and the learned Subordinate Judge, Cuttack; in Misc. Case No. 39/67-L.A., being a reference under Sections 18 and 30 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), fixed the full compensation at Rs. 17,400, plus 15 per cent of the same under Section 23(2) of the Act. Against the aforesaid judgment and decree passed by the learned Subordinate Judge, Cuttack, the opposite party herein preferred First Appeal No. 255 of 1967 in this Court which was dismissed on 8-9-72 and the decision of the learned Subordinate Judge was confirmed as such. The present petition under Sections 151 and 152, C.P.C. has been filed for the incorporation of a direction in the judgment and decree of the said First Appeal for payment of interest at 6 per cent per annum on the additional compensation fixed by the court below from the date of taking over of possession till the date of the payment of the same, as the same has not been mentioned therein due to an accidental slip.
2. Mr. Patra, the learned Additional Standing Counsel appearing for the opposite parties, opposes this petition on the ground that the petitioner did not agitate the question of payment of interest at any earlier stage and the learned Subordinate Judge while enhancing the compensation fixed by the Collector did not order for payment of interest as provided under Section 28 of the Act and the petitioner took no action in the First Appeal for obtaining that relief.
3. In Sriniwas Sundar Das's case, (1972 (1) Cut WR 244) it has been held that 'the principle that interest either under Section 28 or 34 of the Act constitutes an integral part of the compensation to be awarded is well settled and not open to dispute'. In arriving at the said conclusion A. Misra, Acting C.J. (as he then was) has referred to the decision of this Court in Smt. Swarnamayi Devi's case reported in AIR 1964 Orissa 113 and the decision in A.S. Krishnamurthi's case reported in AIR 1971 Mad 236. In Smt. Swarnamayi's case it has been held:--
'..... by any construction the expression 'proper compensation' can never mean to exclude interest. In a case reported in State of West Bengal v. Mrs. Bela Banerjee, AIR 1954 SC 170 the expression 'compensation' has been construed as the just equivalent of what the owner has been deprived of. In cases where the owner is deprived of his possession of certain property without payment of compensation money, he undoubtedly loses both his interest on the money as also his possession. Justice requires that he should not loss both and to compensate his property is either to pay him immediately the consideration money or to pay interest on the same until the date of payment. In some cases the delay in payment of compensation is so great that without interest the compensation is merely illusory and does not represent the true loss to the owner.'
Therein it has further been held:--
'Rule 3 of Chapter 26 of the Land Acquisition Manual also contemplates that the owner of the land shall ordinarily be entitled to get interest on the compensation money from the date of dispossession even where possession of any land is taken independently of the Land Acquisition Act, unless the officer while entering into possession obtains an undertaking from the owner that he will not claim any interest from the date of taking possession. As stated already, admittedly no such undertaking was given in the case by the owner. Thus, so far as interest is concerned, it makes no difference whether the possession is taken under the Land Acquisition Act or independently of the same. In either case the owner becomes entitled to interest on the basis of deprivation of his property without immediately payment of compensation.'
In the abovementioned case reference has been made to the following observation in AIR 1928 PC 87 :
'On a contract for sale and purchase of land it is the practice to require the purchaser to pay interest on his purchase money from the date when he takes possession and the same rule applies even in case of compulsory acquisition as the owner is deprived of his property in this case as much as in the other.'
In the Division Bench decision reported in AIR 1973 Orissa 70 (Collector, Cuttack v. Mahabir Prasad) it has been held that under Section 34 of the Act payment of interest on the excess amount is compulsory and interest has to be calculated from the date of taking possession of the land by the Collector until the excess amount is paid or deposited.
4. In Raghubans Narain Singh's case (AIR 1967 SC 455), it has of course been held that the words 'may direct' in Section 28 of the Land Acquisition Act mean that it is discrationary on the part of the court to grant or refuse to grant interest. Though to grant interest or not under Section 28 of the Act is discretionary on the part of the court, that discretion has to be exercised judicially, and so a reasoned order has to be passed either granting or refusing to grant interest on the compensation awarded. The absence of any order in the positive or in the negative form to that effect would show that the court did not at all apply its mind to that matter, and thus failed to exercise its jurisdiction in an essential matter requiring decision of the court. The failure of the claimant to put forth a specific claim for interest cannot always be a ground not to exercise the said judicial discretion one way or the other. That being so, the failure to pass an order to that effect can justly be considered as an error arising from an accidental slip or omission on the part of the court. In Srinivas Sundar Das's case (1972 (1) Cut WR 244) it has been held that an omission of a direction regarding payment of interest in the operative portion of the decision has to be considered as an accidental slip, and the court has the power under Section 152, C.P.C. to correct the award passed by it. In the case reported in AIR 1966 Madh Pra 270 (State of Madhya Pradesh v. Man Mohan Swaroop) it has been held that 'where a direction as to interest is inadvertently omitted, we do not see any reason why the decree or order may not be amended by adding any appropriate direction'. In the decision reported in AIR 1971 Mad 236 (A.S. Krishnamurthi v. Revenue Divisional Officer) the question relating to payment of interest under Section 28 of the Land Acquisition Actwas taken, up, and the award allowed to be corrected in exercise of the powers under Section 152, C.P.C. and the submission to the contrary was negatived.
5. On the consistent view of this Court in favour of granting interest in a matter of this nature, the Court below and/or this Court should have exercised its discretion in favour of the petitioner by directing payment of interest in accordance with the provisions of Section 28 of the Act, for there is no special reason to refuse the same in this case. The omission of a direction regarding payment of interest in our judgment in First Appeal No. 255 of 1967 was only due to an accidental slip or omission, and so in the interest of justice the judgment and decree of this Court should be corrected by including therein a direction that the petitioner is entitled to interest on the compensation amount at 3 per cent. per annum from the date of taking possession of the acquired lands by the Collector till the date of payment or deposit of the compensation amount. If the compensation fixed by the Collector had been paid or deposited before or at the time of taking possession of the lend, then interest has to be paid only on the excess amount awarded by the court below from the date of taking delivery of possession of the acquired lauds by the Collector till the date of payment or deposit of the excess compensation amount.
6. In the result, therefore, the M.J.C. petition is allowed, and it is hereby ordered that the operative portion of the judgment of this Court in First Appeal No. 255 of 1967 and the de-cree passed therein be corrected by incorporating therein the abovementioned direction regarding payment of interest. The award of the court below, which has been confirmed by this Court, shall be given effect to accordingly.
In the circumstances these will be no order as to costs.
R.N. Misra, J.
7. I agree.