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PETITIONER: KRISHI UTPADAN MANDI SAMITI

       Vs.

RESPONDENT: KANHAIYA LAL & ORS.

DATE OF JUDGMENT:       29/09/2000

BENCH: A.P.  Misra & S.S.M.  Quadri ,

JUDGMENT:

Misra, J.

   This appeal raises two questions:

   (A) Whether the High Court could at all have awarded the compensation  exceeding the claim made by the owners in  the reference.   The claim being Rs.10,000/- per Bigha while the High  Court awarded @ Rs.11/- per sq.  yd.  (B) Whether  the High  Court  was right in awarding interest @ 9% and 15%  to the  respondent-land  owners in a case where the  award  was rendered on 27.12.77 and the reference order was also passed on 28.2.1981.

   In  order to appreciate the controversy we are hereunder giving essential matrix of facts.  The appellant desiring to establish mandi and its office complex, sent the proposal to the Special Land Acquisition Officer in which acquisition of certain compact land falling in villages, namely, Sangrampur and  Kasba  Khair  both  in  Tehsil  and  Pargana  District, Aligarh.   Accordingly a notification under Section 4(1)  of the  Land  Acquisition  Act   was  published  on  28.5.1976. Invoking  the urgency clause under Section 17(1)  possession of  the land was taken on 28.8.1976.  Award was made by  the said  Special  Land Acquisition Officer on  27.12.1977.   By this   he  awarded  the  market   value  of  the  land,   as agricultural land @ Rs.5159/- per acre, having ‘Parata’ rate of  Rs.4.43  per acre.  The respondent-land owner  preferred reference under Section 18 which concluded by an award dated 28.2.1981  under which market value @ Rs.3/- per square yard was fixed with solatium at 15% and interest at 6% per annum. Aggrieved  by this the appellant filed an appeal in the High Court  for  restoration of the order passed by  the  Special Land   Acquisition  Officer   while  respondent-land   owner preferred  cross-objection  for further enhancement  of  the compensation.   The appellant raised three questions  before the  High Court:  (1) The reference application moved by the respondent-land  owners was beyond the period of limitation.@@                             JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ (2)  The reference application moved under Section 18 of the Act was non-maintainable as several persons, having separate and distinct interest, had joined together therein.  (3) The market  value  determined  by the Special  Land  Acquisition Officer  was just and adequate and the reference court ought not to have enhanced compensation.

   As   against  this  respondent-land   owners  in   their

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cross-objections  sought  for a higher rate of market  value and  assailed  the  impugned order on the  ground  that  the assessment of market value was on much lower side.  The High Court  on the first question raised, held that the reference was  filed  within  the period of limitation and  on  second question held that the reference was not incompetent because of  several  persons having joined.  On third question  read with cross-objections of the respondent-land owners enhanced the  rate  of  compensation from Rs.3/- per square  yard  to Rs.11/- per square yard.

   Now,  we proceed to take up the questions raised by  the appellant.   Submission with reference to the first question is,  in  view of the Section 25 as it stood then,  the  High Court  should  not have enhanced the compensation  over  and above what is claimed by the land owners.

   It  is  relevant to quote the then existing  Section  25 under the aforesaid Act which is quoted hereunder:

   "25.  Rules as to amount of compensation -

   (1) When the applicant has made a claim to compensation, pursuant  to  any notice given under Section 9,  the  amount awarded  to him by the Court shall not exceed the amount  so claimed  or be less than the amount awarded by the Collector under Section 11.

   (2) When the applicant has refused to make such claim or has  omitted sufficient reason (to be allowed by the  judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.

   (3)  When  the  applicant has omitted for  a  sufficient reason  (to be allowed by the judge) to make such claim, the amount  awarded to him by the Court shall not be less  than, and  may  exceed,  the  amount awarded  by  the  Collector." {Emphasis supplied}

   The aforesaid Section 25 was substituted by Act No.68 of 1984 which is recorded hereunder:

   "25.   Amount  of compensation by Court not to be  lower than  the  amount awarded by the Collector - The  amount  of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11."

   Section  25  before its substitution by Act 68 of  1984, mandated  the court not to award compensation exceeding  the amount so claimed by the land owners and not to be less than the  amount  awarded  by the Collector.  This  very  clearly limits  awarding of compensation within the amount  claimed. On  the  facts of the present case it is not in dispute  the award  itself  was given on 27.12.1977 and  even  proceeding pursuant  to  referring order , was concluded on  28.2.1981, i.e.,  much  prior to the aforesaid Amending Act.  Thus,  on the  facts  of  this case it is unamended Section 25  to  be applicable and not the amended section.  In view of this the peripheral   limitation   on   the    court   awarding   the compensation,   would  equally  apply  to  the  High   Court exercising its power as the first appellate court.  The case of Gobardhan Mahto vs.  State of Bihar (1979) 4 SCC 330, was also  a  case in which unamended Section 25 was  applicable. The Court held:

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   "The  short answer to this contention is to be found  in the  provisions  of Section 25 of the Land Acquisition  Act. By  sub-section 1 of that section, when an applicant makes a claim  to  compensation  pursuant to a notice given  to  him under Section 9 the amount awarded to him by the court shall not  exceed  the  amount so claimed.  By  sub-section  2  of Section  25,  when  the applicant has refused to  make  such claim  or has omitted without sufficient reason to make such claim,  the  amount  awarded by the court shall in  no  case exceed the amount awarded by the Collector."     Thus,  on  the  facts of this case  compensation  cannot exceed what is claimed.

   Hence  we  have no hesitation to conclude that the  High Court  committed  error in enhancing the  compensation  from Rs.3/-  per  square  yard to Rs.11/- per square  yard.   The enhancement  could only be to the extent the respondent-land owners claimed.  It is also not in dispute that the claim by the  land-owners  was Rs.10,000/- per Bigha.  Hence,  though the   enhancement  to  Rs.11/-  per   square  yard  is   not sustainable yet enhancement to the extent of Rs.10,000/- per Bigha is held to be valid.

   With  reference to the next question raised, awarding of interest  @  9%  and 12% respectively,  the  first  question arises, whether on the facts of the present case, amended or unamended  Section  28 would be applicable in  granting  the interest?  The present Section 28 as it stands now is quoted hereunder:

   "28.   Collector  may  be directed to  pay  interest  on excess  compensation  - If the sum which, in the opinion  of the   court,  the  Collector  ought   to  have  awarded   as compensation is in excess of the sum which the Collector did award  as  compensation, the award of the Court  may  direct that  the Collector shall pay interest on such excess at the rate  of nine per centum per annum from the date on which he took  possession of the land to the date of payment of  such excess into court.

   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.  "

   The  only difference on the structure of Section 28  is, prior to the Land Acquisition (Amendment) Act, 1984 [Act No. 68  of 1984], the interest rate was 6% instead of 9% and the proviso  did not exist.  If unamended section is  applicable the  rate of interest would only be 6% per annum and further interest  @  15% per annum as provided through  the  proviso would  not  be applicable.  We may refer here that the  High Court granted interest as per amended section @ 9% per annum from  the date on which possession of land was taken to  the date  of payment of such excess amount in Court.  It further held,  if  this excess amount is paid after the expiry of  a period  of  one year the interest admissible to land  owners would  be  @  15% per annum.  The High Court relied  on  the cases  of  this  Court  in Bhag Singh  &  Ors.   vs.   Union Territory  of Chandigarh, AIR 1985 SC 1576, and in Union  of

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India  &  Anr.   vs.  Raghubir Singh (Dead)  by  LRs.   etc. (1989)  2 SCC 754.  It further held, in view of the decision in  Union of India & Anr.  vs.  Zora Singh & Ors.  (1992)  1 SCC  673,  the appellant is not entitled to  the  additional benefit under Section 23(1-A).

   In  Union of India & Anr.  vs.  Raghubir Singh (Dead) by LRs.   etc.   (1989) 2 SCC 754, this Court  was  considering Sections  30(2) and 15 whether claimant was entitled for the increase  in  solatium  to 30% which was enhanced  from  15% through  the aforesaid Amending Act.  It was held that  this amending  provision  would only be applicable to the  awards given by the Collector or Court between 30th April, 1982 and 24th  September,  1984.  The benefit of  amended  provisions would  not  apply and cannot be granted either by  the  High Court  or the Supreme Court in respect of awards made by the Collector or court prior to 30th April, 1982.  This decision overruled  Bhag  Singh (Supra) which was relied by the  High Court.  It held:

   "Para  32.   .It seems to us that the learned Judges  in that  case missed the significance of the word ‘such’ in the collocation   ‘any  such  award’  in  Section  30(2).    Due significance  must be attached to that word, and to our mind it must necessarily intend that the appeal to the High Court or  the Supreme Court, in which the benefit of the  enhanced solatium  is  to  be given, must be confined  to  an  appeal against  an award of the Collector or of the Court  rendered between April 30, 1982 and September 24, 1984.

   Para  34.  .The word ‘or’ is used with reference to  the stage  at  which the proceeding rests at the time  when  the benefit  under  Section 30(2) is sought to be extended.   If the  proceeding  has  terminated  with   the  award  of  the Collector  or  of the Court made between the  aforesaid  two dates,  the benefit of Section 30(2) will be applied to such award  made  between  the  aforesaid   two  dates.   If  the proceeding has passed to the stage of appeal before the High Court  or  the Supreme Court, it is at that stage  when  the benefit  of  Section  30(2) will be applied.  But  in  every case,  the award of the Collector or of the Court must  have been made between April 30, 1982 and September 24, 1984."

   Learned  counsel  for  the respondent  made  attempt  to submit  that  the  compensation awarded by the  Court  under Section  25  is  only procedural right and  not  substantive right  hence the aforesaid Amending Act would be  applicable in  both computing the compensation and the interest as  per the Amending Act.  He relied in K.S.  Paripoornan vs.  State of Kerala and Ors.  (1994) 5 SCC 593.

   "64.   A statute dealing with substantive rights differs from  a statute which relates to procedure or evidence or is declaratory  in  nature inasmuch as while a statute  dealing with substantive rights is prima facie prospective unless it is  expressly  or  by  necessary implication  made  to  have retrospective  effect,  a  statute   concerned  mainly  with matters  of procedure or evidence or which is declaratory in nature  has to be construed as retrospective unless there is a  clear  indication that such was not the intention of  the legislature.   A statute is regarded as retrospective if  it operates  on cases or facts coming into existence before its commencement  in the sense that it affects, even if for  the future  only, the character or consequences of  transactions previously entered into or of other past conduct."

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   He  also referred to Jose Da Costa & Anr.  vs.   Bascora Sadasiva  Sinai Narcornim & Ors.  (1976) 2 SCC 917.  In para 31  it  held that procedural right is declaratory in  nature and  is restrictive in operation while substantive right  is prospective unless the legislature intends otherwise is well settled.   The  question is, whether Section 25 of the  Act, would  be  said to be procedural right and  not  substantive right.   In support, submission is, looking to the scheme of the  Act the preceding Sections 23 and 24 merely refers  how compensation  to  be  determined  and  what  matters  to  be neglected  in  determining compensation in  the  background, Section  25 is merely procedural.  We have no hesitation  to reject  such a submission.  Section 25 deals with amount  of compensation  to  be awarded by the Court.  It mandates  the Court  that  such  compensation shall not be less  than  the amount  awarded by the Collector under Section 11.  Awarding of  compensation, curtailing, restricting or adding right to the  compensation  can never be said to be procedural.   The language  of this section clearly reveals, it is substantive in nature, hence it cannot be held to be retrospective as to make  the  Amending  Act applicable.  In fact,  this  second question,  regarding granting of interest, with reference to the  applicability  of  the  Amending Act,  this  Court  has considered  it  in  Mir  Fazeelath  Hussain  and  Ors.   vs. Special Deputy Collector, Land Acquisition, Hyderabad (1995) 3  SCC  208.  This Court held, awards made by Collector  and Reference   Court   prior  to   30.4.1982  but   amount   of compensation  enhanced  by the Supreme Court in appeal  long after the period of 30.4.1982 to 24.9.1984.  The claimant is entitled  to interest on enhanced amount of compensation  at the  old rate of 6 per cent only.  It further held, interest under  Section  28 and solatium under Section 23(2) are  not parts  of the award hence what was stated in Raghubir  Singh case, solatium would equally apply to the interest also.

   Accordingly,  we  hold on the facts of the present  case interest admissible to the respondent-claimant would only be 6% as per unamended provision.  Thus the High Court granting interest  @  9%  and 15% under the proviso  of  the  amended section cannot be sustained.  Accordingly, we set aside that part of the High Court order which enhanced the compensation to  respondent-claimant  over and above what is claimed  and also  set aside award of compensation with reference to  the interest at 9% and 15% respectively.  Interest admissible to the  claimant would be 6%.  Accordingly, the present  appeal succeeds  and  is allowed.  The impugned order of  the  High Court to the aforesaid extent is set aside.  However, on the facts and circumstances of the case, costs on the parties.

   REVIEW  PETITION  (C) NO.  33 OF 1995 IN  SPECIAL  LEAVE PETITION (C) NO.  12623 OF 1993 :

   The  case of the petitioner while filing review petition is  that the petitioner’s advocate was under the  impression that  one bigha of land comprised of 1000 square yards  and, therefore,  what  was  granted by the High  Court,  was  not beyond  the  claim made by the land-owners.  It is  only  in connection  with another special leave petition relating  to the  land in the same village, it transpired that one  bigha of land comprised of 2756 square yards.  In view of this the petitioner  submits that the claim of the respondent is only Rs.15,000/-  per pucca bigha, i.e., Rs.5.45 per square yard, therefore,  the  High Court has no jurisdiciton to  award  @ Rs.9/- per square yard.  We have considered this submission.

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We do not find any merit in this review petition.

   Award  being in this case between the dates 30th  April, 1982  and 24th September, 1984 and as per the Union of India &  Anr.  vs.  Raghubir Singh (Dead) by LRs.  etc.   (Supra), the amended provisions would be applicable under which there is  no restriction that award could only be upto the  amount claimed  by  the claimant.  Hence High Court order  granting compensation  more than what is claimed cannot be said to be illegal or contrary to the provisions of the Act.  Hence the review itself, as is confined for the aforesaid reasons, has no merit.

   The  faint submission was also made that example  relied by  the  High  Court for enhancing  the  compensation  being agreement  to sale should not have been relied.  Firstly, we would  not  like  to enter into this question  as  scope  of review  was  not  to re-assess or re-appraise  the  evidence which was considered by the High Court and finally dismissed by  this  Court.   Even otherwise while  fixing  the  market value, in totality of circumstances if any rate is specified in  a document, namely, agreement to sale, that could not be said  to  be either inadmissible or if considered makes  the fixation  of  valuation illegal.  Hence we do not  find  any merit  in  this  review petition.  Accordingly the  same  is dismissed.