HIGH COURT OF CHATTISGARH AT BILASPUR
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WRIT PETITION C No 848 of 2011 & WRIT PETITION C No 1034 of 2011
Manoj Modi & Another
Arjunlal
…Petitioners
VERSUS
State of Chhattisgarh & Others
…Respondents
! Shri Rupesh Shrivastava Advocate for the petitioners
^ Shri V V S Moorthy Deputy Advocate General for the respondents
CORAM: Honble Shri Satish K Agnihotri J
Dated: 27/01/2012
: Judgement
(Delivered on 27th day of January, 2012)
WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF
INDIA
1. Since common facts and question of law are involved in
these petitions, thus, they are being disposed of by this
common order.
2. By these petitions, the petitioners seek a direction to
the respondents to make payment of compensation to the
petitioners in lieu of acquisition of their respective land
and to pay the interest on the amount of compensation at the
rate of 15% as per section 34 of the Land Acquisition Act,
1894 (for short `the Act, 1894′).
3. The facts, in brief, as projected by the respective
petitioners, are that the petitioners’ land being survey
number 369/3, 368, area 0.03 and 0.07 acre {in W.P.(C) No.
848/2011 (for short `the first petition’)} and 369/2 area
0.03 acre, {in W.P.(C) No. 1034/2011 (for short `the second
petition’)} situated in village Jagdalla, District Janjgir-
Champa were acquired by the State Government without
initiating any process lawfully for the construction of
Champa-Jagdalla, Kurda Road. The petitioners filed
applications for grant of compensation in lieu of
acquisition of their respective lands. On receipt of their
applications, the respondent No. 3 directed the respondent
No. 4 to enquire into the matter and send the proposal
within 7 days vide letter dated 09.12.2005 and 21.03.2007.
(Annexure P/3 and P/4 to the first petition). Thereafter,
the respondent No. 5 submitted the case and proposal report
to the respondent No. 4 on 18.09.2007 (Annexure P/5 in the
first petition) and on 16.10.2007 (Annexure P/5 in second
petition). After receipt of the proposal from the office of
the respondent No. 4 and 5, the Sub Divisional Officer
(Revenue) Champa directed the respondent No. 4 to deposit
80% of the total compensation amount as per the provisions
of the Act. The respondent No. 4, in turn replied that since
no funds were available, the demand of the petitioners was
refused vide communication dated 29.10.2007. Again, on
17.08.2009, after lapse of more than 17 months, the
respondent No. 4 deposited the 80% of the compensation
amount before the respondent No. 3 in the form of cheque,
but the respondent No. 3 did not pay the said amount to the
petitioners. Thus, these petitions.
4. Shri Shrivastava, learned counsel appearing for the
petitioners would submit that the impugned action of the
respondent authorities is illegal, arbitrary and against the
well settled principles of law as the respondent authorised
have deprived the petitioners of their lawful right of
getting compensation, which was to be paid to the
petitioners on account of acquisition of their respective
lands. The respondent authorities have not followed the
provisions of the Act, 1894 in its letter and spirit as the
lands in question have been acquired by the authorities
without affording proper opportunity of hearing to the
petitioners, without obtaining consent of the petitioners or
without issuing any notification as required under the
provisions of the Act, 1894.
5. On the other hand, Shri Moorthy, learned counsel
appearing for the State/respondents would submit that the
land acquisition proceedings had already been initiated by
the respondents and estimated amount of compensation has
already been deposited with the Land Acquisition Officer.
The Land Acquisition Officer, issued a memo for publication
of notification under section 4(1) of the Act, 1894.
Therefore, it is clear that the determination of
compensation and passing of the award is under process. Shri
Moorthy would further submit that as and when the
proceedings of land acquisition is completed, the
compensation would be paid to the respective petitioners on
the basis of the award passed by the Land Acquisition
Officer. Shri Moorthy would next submit that since the land
acquisition proceeding is under process, thus, this Court
while exercising its power under Article 226 of the
Constitution of India cannot assess the compensation in lieu
of acquisition of land. Thus, this petition deserves to be
dismissed. Lastly, he would submit that compensation amount
would be payable to the petitioner, as early as possible
after completion of the land acquisition proceedings.
6. Heard learned counsel appearing for the parties,
perused the pleadings and documents appended thereto.
7. Article 300A of the Constition of India was inserted by
the Constitution (Forty-fourth Amendment) Act, 1978 (w.e.f.
20.06.1979) after the fundamental right to property was
deleted from the provisions of the Constitution of India.
Article 300A provides that no person shall be deprived of
his property save by authority of law. The right to property
is a constitutional right and the land of the petitioners
could not have been taken without following the process of
law. The Act, 1894 provides for publication of preliminary
notification under section 4 of the Act, 1894, expressing
intention of the Government to acquire the land for any
public purpose.
8. Section 5A of the Act, 1894 provides for hearing of the
objections and thereafter, publication of declaration of
intended acquisition under Section 6 followed by other
provisions providing for compensation to be computed and
paid in accordance with the provisions of the Act, 1894 and
the passing of the award under section 11 of the Act, 1894.
9. In the case on hand, the petitioners have been deprived
of their constitutional right as enshrined under Article
300A of the Constitution of India, since the day, the land
came under acquisition for construction of the road. The
submission of the State counsel that the government proposes
to issue notification would not achieve the full object of
the provisions of the Act, as the objection can be raised
only in respect of the compensation not any other reason.
Thus, it is just and proper to direct the authorities to
take immediate steps to compute the compensation amount and
pay the interest from the date of possession, till the
amount is paid.
10. Section 23 of the Act, 1894 provides for determining
compensation wherein the market value of the land at the
date of publication of the notification under section 4(1)
of the Act, 1894 has to be considered. Thereafter, the
damage sustained by the person interested at the time of the
taking of possession of the land by the Collector, has also
to considered while determining the amount of compensation.
11. Section 11 deals with the enquiry of award by the
Collector in respect of the objections (if any) which any
person interested has raised pursuant to the notice under
section 9 of the Act, to the measurements made under section
8 of the Act, 1894 and the value of the land should be
determined at the date of the publication of the notice
under section 4(1) of the Act, 1894.
12. Section 11A of the Act, 1894, provides that the award
shall be made by the Collector within a period of two years
from the date of publication of the declaration. Section 16
of the Act, 1894 deals with the power to take possession.
Bare reading of section 16 of the Act, 1894 makes it clear
that the Collector on behalf of the State may take
possession of the land free from all encumbrances, after the
award has been passed under section 11 of the Act, 1894.
13. This is a peculiar and unfortunate case wherein
possession of the lands in dispute were taken three years
before, the process for acquisition of the land was
initiated by publication of the notice under section 4(1) of
the Act, 1894 only after 22.06.2011 as evident from letter
dated 22.06.2011 (Annexure R/2) to the Controller,
Government Printing Press, Rajnandgaon, from the Land
Acquisition Officer, Champa. Other provisions which had been
made to ensure proper and just payment of compensation to
the land owners, have completely been given a go bye. Thus,
the date of publication of notice under section 4(1) of the
Act, 1894 is not very relevant, in the instant case.
14. In these cases, whether the land should be restored
back to the petitioners on or before notice under section
4(1) of the Act, 1894 was issued or the land owners should
be paid damages for depriving them of the use of the land,
without taking recourse to legal provisions of the Act,
1894.
15. Learned counsel appearing for the petitioners would
submit that the petitioners are not interested to take back
possession of the land in dispute on the ground that the
possession was taken over about three years before
publication of the notice under section 4(1) of the Act,
1894. In view of that, the petitioners should be adequately
compensated for the loss of their land and illegal
deprivation dehors the constitutional and statutory
provisions.
16. Section 5 and 5A of the Act, 1894 reads as under:
“5. Payment for damage.-The
officer so authorized shall at
the time of such entry pay or
tender payment for all necessary
damage to be done as aforesaid,
and, in case of dispute as to
the sufficiency of the amount so
paid or tendered, he shall at
once refer the dispute to the
decision of the Collector or
other Chief Revenue Officer of
the district, and such decision
shall be final.
5-A. Hearing of objections.-(1)
Any person interested in any
land which has been notified
under Section 4, sub-section
(1), as being needed or likely
to be needed for a public
purpose or for a Company may,
within thirty days from the date
of the publication of the
notification, object to the
acquisition of the land or of
any land in the locality, as the
case may be.
(2) Every objection under sub-
section (1) shall be made to the
Collector in writing, and the
Collector shall give the
objector an opportunity of being
heard 11 in person or by any
person authorised by him in this
behalf or by pleader and shall,
after hearing all such
objections and after making such
further inquiry, if any, as he
thinks necessary, either make a
report in respect of the land
which has been notified under
Section 4, sub-section (1), or
make different reports in
respect of different parcels of
such land, to the appropriate
Government, containing his
recommendations on the
objections, together with the
record of the proceedings held
by him, for the decision of that
Government. The decision of the
appropriate Government on the
objections shall be final.”
(3) For the purposes of this
section, a person shall he
deemed to be interested in land
who would be entitled to claim
an interest in compensation if
the land were acquired under
this Act.
17. Now the question is asto whether the petitioners are
entitled to interest on the compensation amount from the
date of taking over of the possession of the land in
question or from the date of publication of Section 4(1)
notification ?
18. Law in this respect is well settled that under Section
4(1) of the Act, 1894 the market value shall be determined
on the date of publication of notification under Section 4
(1) and the interest shall be payable from the date of
taking over possession of the land.
19. The Supreme Court in State of Punjab v. Amarjit Singh
and Another1 observed as under :
“12. Thus a person whose land is
acquired is entitled to the
following amounts under the Act :
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) Interest on the
aggregate of (a), (b) and (c)
above for the period between the
date of taking possession to the
date of payment/deposit at the
rate of 9% per annum for the
first year and 15% per annum for
the remaining period.”
20. In Udho Dass v. State of Haryana & Others2, the Supreme
Court observed that if the land owners have been deprived of
the compensation for a long period, grant of damages or
compensation must be considered as if the land owners had
been granted compensation amount at the time of acquisition
of the land, it would have been possible for them to
rehabilitate their holdings in some other place or use the
money for some other purposes.
21. The scheme of the Act, 1894 contemplates acquisition of
the land and payment of compensation only after award has
been passed. Thus, any step taken by the State Government
for taking possession over the land in dispute before
passing of the award comes within the purview of damages and
the same can be dealt under section 5 of the Act, 1894. In
that event, the Collector is directed to consider and
determine the damages, caused to the petitioners on account
of taking possession of the land illegally by the State,
after affording proper opportunity of hearing to the
petitioners. The payment thereon shall be made as
expeditiously as possible, preferably within a period of
four months.
22. In view of the abovestated direction for payment of
damages, the State/respondents are not exempted from
determining the compensation payable to the petitioners, in
accordance with provisions of section 23 of the Act, 1894 as
early as possible, after affording the petitioners an
opportunity of hearing and considering their objections, if
any. It is ordered accordingly.
23. The petitioners shall be entitled to interest at the
rate of 9% per annum for the first year from the date of
taking over possession of their land and thereafter, at the
rate of 15% per annum for the remaining period, till
compensation amount is paid.
24. Resultantly, both the writ petitions are allowed.
25. There shall be no order asto costs.
JUDGE
Discussion
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