B.P. Dharmadhikari, J.
1. All these appeals under Section 20 of Coal Bearing Areas (Acquisition and Development) Act (20 of 1957), herein after referred to as Coal Bearing Act, challenge the award passed by Special Tribunal, Nagpur, constituted under Section 14(2) thereof. The appeals are by land owners and they have restricted their claim in appeal only to entitlement to receive additional interest/component of 12%, solatium at 30% and interest at 9% or 15% as the case may be at par with amended provisions of Land Acquisition Act, more particularly Section 23(1A), 23(2) and Section 20 thereof read with Government Circular dated 12.5.1989 issued by Union of India, Ministry of Energy, Department of Coal, New Delhi. In view of clear provisions of said Circular, entitlement of appellants to receive solatium at 30% as per its Clause (a) or interest at 9% or 15% in terms of Clause (b) is also not in dispute. However, Shri Mehadia, learned Counsel appearing for the acquiring body (Respondent W.C.L.) has contended that the benefit of escalation amount at 12% per annum of the fair market value of the land contemplated by Clause 3 of said Government Circular cannot be given to present land owners because award in their cases is prior to 30.4.1982. He points out that Circular itself contemplates benefit to be given to cases in which Notification under Section 9(1) of Coal Bearing Act is issued on or after 30.4.1982. He has compared said Circular and provisions of Coal Bearing Act with provisions of Land Acquisition Act, 1894, more particularly Section 23(1A) and he states that the moment there is declaration of acquisition under Section 9 of Coal Bearing Act, in view of its Section 10, the land vests in acquiring body and the owners cease to be the owners of that land. He, therefore, argues that the effect of Section 9(1) Notification is like an award under Land Acquisition Act and Section 23(1A) of Land Acquisition Act is also applicable only in cases where award has not been made by the Collector before 30.4.1982. He points out that in view of this provision made in Section 30(1)(a) of Amending Act 68 of 1984 of Land Acquisition Act, very same Scheme is also made applicable by the Circular dated 12.5.1989 insofar as acquisition under Coal Bearing Act is concerned. He, therefore, argues that if Section 9(1) Notification is after 30.4.1982 then only escalation amount at 12% per annum can be given. He further states that in view of time frame within which the Notification under Section 4(1) of Coal Bearing Act and Notification under Section 9(1) thereof is required to be published, the Circular correctly restricts grant of said escalation amount only for a period of three years. He, therefore, argues that as in all these cases Notification under Section 9(1) is published before 30.4.1982, the said benefit cannot be extended to the appellants before this Court. He invites attention of Court to the judgment of this Court in First Appeal No. 173 of 1993 decided on 8.9.2006 and also the judgment dated 12.7.2004 delivered in First Appeals No. 7, 8, 9 & 10 of 1989 i.e. Dadaji Yenurkar v. W.C.L. reported at 2005(1) All M.R. 109. He argues that vide judgment dated 8.9.2006, this Court has correctly treated date of Notification under Section 9(1) as relevant date for the purpose of calculating interest payable under Section 16 of Coal Bearing Act. He, further states that in Dadaji Yenurkar v. W.C.L., supra, the issue has not been appropriately considered and this Court has erroneously treated award delivered under Section 14 by the Special Tribunal to be award and its date to be relevant date for grant of this benefit. He further points out that even this Court (myself) has in some matters not given benefit of escalation amount at 12% in cases where notification under Section 9(1) was published before 30.4.1982.
2. Shri Dhore, learned Counsel, appearing for the appellants in First Appeal No. 159 of 1989, Shri Sirpurkar, learned Counsel appearing for the appellants in First Appeal No. 179 of 1990 and other matters and Shri Parchure, learned Counsel for the appellants in First Appeal No. 436 of 1990, have however contended that award contemplated under Land Acquisition Act cannot be equated with Section 9(1) notification. They contend that under Coal Bearing Act, though land vests in Government after Section 9(1) notification itself, determination of compensation continues even thereafter and such determination is over only after award is pronounced by the Special Tribunal under Section 14. They further state that in Land Acquisition Act, procedure contemplated for verification of claims of interested persons is entirely different and even before determination of market value for the purpose of award, land owners are served with notice under Section 9 of Land Acquisition Act and their objection or material produced by them is taken into account by the Land Acquisition Officer for determining the market value. According to them, in the absence of such participation by land owners before vesting of land in Government, insofar as acquisition under Coal Bearing Act is concerned, notification under Section 9(1) cannot be relevant at all for the purpose of deciding the entitlement of land owners. They, therefore, state that award by the Special Tribunal under Section 14 is the first determination in which the land owners get opportunity to participate and hence award declared by the Special Tribunal alone needs to be looked into for the purpose of finding whether benefit equivalent to one under Section 23(1A) can be given to present appellants/land owners. They contend that the issue was squarely raised before the learned Single Judge of this Court in First Appeal Nos. 7 to 10 of 1989 and after considering the judgment of the Hon'ble Apex Court in the case of Omprakash v. State of Uttar Pradesh reported at : [1974]2SCR731 , the learned Single Judge has correctly answered the controversy. They further state that the issue was not raised before this Court when it decided First Appeal No. 173 of 1993 on 8.9.2006 because the claimant there was demanding interest only in terms of Section 16 of Coal Bearing Act and hence the question of interpretation or application of the Government Circular dated 12.5.1989 did not fall for consideration there. It is also argued that when this Court (myself) decided similar matters, the counsel representing the appellants did not address the Court on this issue and attention of this Court was not invited to this aspect at all. They contend that the question has arisen specifically for the first time in view of objection raised by Shri Mehadia, learned Counsel, after noticing the judgment dated 12.7.2004.
3. In reply, Shri Mehadia, learned Counsel states that said judgment Dadaji Yenurkar v. W.C.L, supra, was also pointed out to this Court (myself) when it decided the similar matters. Shri Mehadia also states that the contention that there is no determination of compensation in Coal Bearing Act before Section 14 stage is incorrect because until and unless the Competent Authority determines the amount to be offered to land owners, the party cannot take recourse to Section 14. He contends that when amount determined by the Competent Authority is not acceptable to landowners, then only recourse to remedy before the Special Tribunal is contemplated by Coal Bearing Act. According to him, therefore, the entitlement claim of appellants to escalation amount in terms of Clause (3) of Government Circular dated 12.8.1989 needs to be answered against the appellants and in favour of acquiring body.
4. From the above arguments of the respective counsel, it is clear that entitlement of land owners to 30% solatium in terms of Clause (a) or to receive 9% or 15% interest in terms of Clause (b) is not at all in dispute. The only question which therefore falls for determination before me is whether the appellants are entitled to claim escalation amount at 12% as per Clause (3) of Government Circular dated 12.5.1989 even though the notification under Section 9(1) in their case is prior to 30.4.1982.
5. The provisions of Land Acquisition Act, 1894, clearly show that the award under Section 11 is to be made by the Collector after the compensation is determined pointing out its amount. Section 9 of the Land Acquisition Act requires the Collector to cause public notice to be given of the intention of Government to take possession of land and also inviting claims to compensation for all interests in such land. The Collector has also to serve notice to the same effect on the occupier of such land or all such persons who are interested or believed to be interested. Section 11(1) then permits the Collector to hold enquiry in such claim and thereafter to arrive at true area of land, compensation to be allowed for its acquisition and the apportionment thereof. Under Section 12 the award becomes final and Section 12(2) requires the Collector to give notice of award to the persons interested and call upon them to receive payment. Section 16 permits Collector to proceed to take possession of acquired land after award under Section 11 has been made. Section 18 of Land Acquisition Act permits the interested person, who is aggrieved by determination of compensation, to file reference after following procedure prescribed. This procedure, therefore, clearly shows that in Land Acquisition Act before the possession of land is taken and even before the compensation is determined, the Collector is required to hear and consult the land owners/persons interested and thus there is participation of land owners in the process of determination of compensation. Until and unless the compensation is determined, award cannot be passed.
6. However, the Scheme of Coal Bearing Act appears to be totally different. Under Section 4 thereof, the Central Government is authorised to issue preliminary notification declaring its intention to prospect for coal in any area and Section 4 also provides for powers of Competent Authorities after such preliminary notification is declared. Section 7(1) requires Central Government to issue further notice of its intention to acquire whole or any part of the land covered under Section 4 notification if government decides to acquire it or acquire rights in or over any such land. Section 8 then permits person interested in such land to raise objection to such acquisition and competent authority has thereafter to give the objector an opportunity of being heard either in person or by a legal practitioner and thereafter it has to make report to Central Government in this respect. From view of Hon'ble Apex Court in : [1970]3SCR409 -National Coal Development Corporation Ltd. v. Manmohan Mathur, it is clear that this opportunity is equivalent to one under Section 5A of Land Acquisition Act & determination of market value or compensation is not its purpose. Provision in Rule 5A of Coal Bearing Areas (Acquisition and Development) Rules 1957 for filing of claims by persons interested in compensation with authority prescribed thereunder also shows that the present appellants are statutorily entitled to raise claim for compensation as per Section 13(5) after publication of notification under Section 9 of Coal Bearing Act. After report under Section 8 read with Rule 4 of the Rules, under Section 9 the Central Government can make & publish a notification declaring that the lands are being acquired. Under Section 10, after such declaration is published in official gazette as per Section 9(2), the land or right in that land vests absolutely in Central Government free from encumbrances. Section 12 thereafter permits Competent Authority to require any person in possession of any land acquired under this Act to surrender or deliver possession thereof.
7. Section 14 of the Coal Bearing Act is the first section which deals with method of determining compensation in the scheme of said Act. Under Sub-section (1) of Section 14. if the amount of compensation is fixed by agreement between parties, it is to be paid in accordance with such agreement. However, when such agreement is not reached, the land owner can approach Tribunal constituted under Section 14(2) and the Tribunal shall under Section 14(5) make an award determining the amount of compensation which appears to be just and it can also specify the person or persons to whom compensation shall be paid. Under Sub-section (8) of Section 14, certain powers of Civil Court under Civil Procedure Code are conferred upon said Tribunal. Under Section 17(1), the compensation can be tendered to the person interested by Central Government and under Sub-section (2) if such person does not consent to receive it or if there is any dispute about sufficiency of the amount, the Central Government can deposit the amount of compensation with the Tribunal. Section 16 deals with interest on awards and interest is to be calculated on compensation awarded in excess of the sum which the Central Government has stated to be a fair amount of compensation. The Tribunal is competent to direct Central Government to pay interest on said excess at the rate of 5% per annum from the date on which it became payable to the date of payment of such excess. It is more than clear that reference to award in Section 16 is to the award made by the Special Tribunal under Section 14(5).
8. Section 13(5) of Coal Bearing Act stipulates the norms relevant for determining the compensation but it nowhere mandates that competent authority has to determine the compensation accordingly before Section 9 stage or before asking for possession. In fact there is no provision in Coal Bearing Act requiring the competent authority to determine it before publication of declaration of acquisition in terms of Section 9(1) or vesting under its Section 10. Provision in Rule 5A of Coal Bearing Rules, 1957 about filing of claims for determination of compensation requires landowners like present appellants to file claim for compensation within 90 days after Section 9 notification i.e. after vesting & authority functioning under it is not obliged to hold any enquiry as required by Section 11 of Land Acquisition Act. This is evident from treatment given to Section 8 objections when said Section & Rule 4 is read in contradistinction with Rule 5A of Coal Bearing Rules, 1957. Legislature has prescribed complete procedure like time limit for lodging such objections by person interested, its notice to other interested person with opportunity to him to file reply, fixing the matter for hearing, right to appear through legal practitioner, opportunity to lead evidence for such inquiry in said objection. Absence of such provisions for consideration of claims for compensations is conspicuous in the scheme. Final notification under Section 9(1) of Coal Bearing Act is not required to disclose any amount of compensation. Hence Section 9 notification can not be treated as equivalent to award under Section 11 of Land Acquisition Act. In Coal Bearing Act the word award has been used for the first time in Section 14 only. Benefit of Section 30(1)(a) of Amending Act 68 of 1984 or of Section 23(1A) of Land Acquisition Act) need to be made available to appellants also & the Circular dated 12.5.1989 insofar as acquisition under Coal Bearing Act is concerned can not create any bar in that.
9. In the judgment of this Court dated 8.9.2006 delivered in First Appeal No. 173 of 1993, the question was only of calculating 5% interest per annum on excess amount. Section 17(3) of Coal Bearing Act requires Central Government to pay interest at 5% per annum from the time compensation becomes due until it shall have been so paid or deposited when the amount of compensation is not paid or deposited as required by Section 17. Thus, the starting time from which said interest of 5% is to be calculated, has been considered in said judgment and it has been only observed that date of notification under Section 9 in that case was 17.2.1990 and date on which compensation was initially paid was 15.6.1992. The Court, therefore, calculated the delay of two years, two months and two days. The question which is raised before me was not at all raised and it appears that parties there agreed to treat the date of notification under Section 9 as relevant date for the purposes of calculating the interest under said Section 17(3). The said judgment therefore is of no assistance in present matter.
10. The other judgment i.e. Dadaji Yenurkar v. W.C.L., supra considers the Circular dated 12.5.1989 and it also finds that the Hon'ble Apex Court has in the case of Omprakash v. State of U.P. (supra) laid down that there cannot be any discrimination in the matter of payment of solatium or calculation of compensation for land acquired depending upon the acquiring agency or acquiring body. The judgment of the Hon'ble Apex Court in the case of AIR 2004 S.C. 1179 --Panna Lal Ghosh v. Land Acquisition Collector-is also taken into account and it was noticed that even though the West Bengal Land Development and Planning Act, 1948, did not contemplate payment of solatium, still the solatium was allowed and the argument that Section 8(2) of West Bengal Land Development and Planning Act, 1948, excluded compensation by way of solatium was turned down. It has been further observed that in view of the Hon'ble Apex Court's decisions mentioned earlier, land owners were entitled for solatium as per Land Acquisition Act as well as interest and such benefits as available under the Land Acquisition Act. Therefore, in operative order vide para 16, this Court granted land owners 12% additional component as the award was passed after 30.4.1982 as per para 9 of its judgment. It is, therefore, clear that again award delivered by the Special Tribunal was treated as relevant in this judgment. The contention of equivalence which is raised by Shri Mehadia before me was not raised in that matter and therefore, the Court was not required to consider it.
11. Even in judgment dated 12.12.2007 delivered by me in First Appeal No. 114 of 1990 and other connected matters, the learned Counsel for the appellants appearing there did not raise this controversy and matter proceeded with presupposition between both parties that as Section 9(1) notification was prior to 30.4.1982, the appellants were not entitled to escalation amount at 12%. This is the first matter in which in view of arguments advanced by Shri Mehadia and learned Counsel for the appellants, the equivalence is being considered. I, therefore, find that there was no view in this respect taken by me & occasion for it on 12.12.2007.
12. The perusal of Circular dated 12.5.1989 mentioned above clearly shows that it expressly restricts grant of escalation amount of 12% to cases where Notification under Section 9(1) of Coal Bearing Act is issued on or after 30.4.1982. Shri Mehadia, learned Counsel has contended that 30.4.1982 is, therefore, the date on which in terms of Land Acquisition Act, an award should be deemed to have been delivered. However, as already noticed above, it is apparent that award contemplated under Land Acquisition Act, 1894, stands on much better footing than the determination of market value by authorities of respondent 'acquiring body'. It has the effect of acquiring the land after offering a specified sum as compensation as per scheme of statute. When the authorities determined the market value and offer said amount to the landowner as contemplated by Section 14(1) of the Coal Bearing Act, there is no statutory determination or inquiry as such. The said determination or inquiry is contemplated because of Section 9 and Section 11 of Land Acquisition Act, when award under Section 11 is prepared by the Collector. The market value determined under Section 11 of the Land Acquisition Act is, therefore, after considering the view placed before it by the landowner. That is not the position insofar as Coal Bearing Act is concerned. Coal Bearing Act for the first time introduces the machinery for determination of compensation vide Section 14. In the Scheme of Act, said section is placed even after Section 12 which confers power upon Central Government to take possession of acquired land. Section 10 vests the land in government immediately after the government declares the acquisition. It is, therefore, obvious that the owner is divested of his land though compensation thereof is not determined at all. The determination for the first time takes place via Section 14 and it may take place in a given case even after taking of possession under Section 12 as Coal Bearing Act does not prohibit it. The contention that Section 9(1) Notification, therefore, should be equated with award under Section 11 of Land Acquisition Act is without substance. In fact such an analogy can not be resorted to because of express provisions of Coal Bearing Act which contemplate determination of compensation for the first time by the Special Tribunal vide its Section 14. If the market value or compensation determined is in view of the agreement between parties, it is apparent that there need not be any recourse to Section 14 of Coal Bearing Act. The question crops up only when there is no such agreement and the amount offered by acquiring body is disputed by the land owner. Thus, an independent or impartial agency for the first time determines the compensation under Section 14 in said scheme.
13. It cannot be held that entire process of land acquisition in Coal Bearing Act ends without determining the amount of market value payable to landowner. The determination of market value via Section 14 is part and parcel of acquisition proceedings and though land is vested in Central Government, the proceedings for its determination continue even thereafter before the Special Tribunal. Though authority under the Rules framed under Coal Bearing Act invite claims, it is not obligatory for them to work out compensation amount before publication of Section 9(1) notification or before vesting. This is unlike Section 11 of Land Acquisition Act where award is published only after the compensation amount is determined after inquiry & considering the claims of owners. I, therefore, find that award declared under Section 14(5) by Special Tribunal is the first stage at which the market value & compensation is statutorily determinable under the Coal Bearing Act, 1957. Section 14 is the first provision which uses the word award' & its Sub-section (5) mandates Special Tribunal to determine just compensation after hearing the dispute before it. The date of notification under Section 9(1) of Coal Bearing Act mentioned in Circular dated 12.5.1989, therefore, cannot be a cut off date for the purpose of deciding the grant of escalation amount of 12%. Final declaration of acquisition and vesting of land without consequential statutory determination of compensation therefor can not be the end of any statutory land acquisition. The land acquisition proceedings in Coal Bearing Act can not end only because landowners are divested of their lands and remain pending till statutory determination of compensation payable to them. Neither Section 30(1)(a) of Amending Act 68 of 1984 or of Section 23(1A) of Land Acquisition Act mention the date of award as relevant date for its operation. This Court has in its judgment dated 12.7.2004 in First Appeal Nos. 7 to 10 of 1989 (Dadaji Yenurkar v. W.C.L., supra) clearly held that there cannot be two procedures or two standards for determination of compensation after relying upon the judgments of Hon'ble Apex Court. The said proposition is not in dispute even before me. The Hon'ble Apex Court has also reiterated this principle in its judgment in the case of Nagpur Improvement Trust v. Vasantrao reported at : [2002]SUPP2SCR636 . Hence, even in absence of notification dated 12/5/1989 the benefit of Section 30(1)(a) of Amending Act 68 of 1984 or of Section 23(1A) of Land Acquisition Act must be made available to appellants and in that case date of award under Section 14 of Coal Bearing Act will be the relevant date. The date of vesting of land with government can not be the relevant date at all as fact that land owner is being divested is certain & unavoidable in compulsory acquisition and landowner is therefore only interested in statutory determination of his legal entitlement i.e. compensation. In Land Acquisition Act it takes place via procedure in Section 11 and is prior to vesting. Thus when award is communicated the amount of compensation is already fixed & can be collected by landowner. Hence, in Land Acquisition Act one can say that acquisition proceedings end with award and hence Section 30(1)(a) of Land Acquisition Amending Act, 1984 extends 23(1A) benefit to only pending proceedings i.e. where award is yet to be declared by Collector under Section 11. In Coal Bearing Act where there is no such statutory requirement, acquisition proceedings continue till the compensation amount is worked out after holding statutory inquiry as per Section 14 thereof. As claims for compensation as per Rule 5A of Coal Bearing Rules are to be filed after vesting itself, determination of compensation is also possible only after Section 9 notification & hence date of Section 9 notification can not be relevant at all & date of award of special tribunal under Section 14(5) of Coal Bearing Act has to be the crucial date.
14. The contention of Shri Mehadia, learned Counsel that under Section 17(2), no person who has received the amount otherwise than under protest is entitled to prefer claim under Section 14 shows that the determination of compensation has taken place even before the person approaches the Tribunal under Section 14, cannot be accepted because Section 17 only contemplates payment of compensation if the person agrees to the amount determined and therefore he cannot approach the Special Tribunal under Section 14. Third proviso to Section 17(2) does not lay down anything more than this. I, therefore, find no substance in this contention. It is, therefore, apparent that even if notification under Section 9(1) is published before 30.4.1982 but proceedings for determination of compensation under Section 14 of Coal Bearing Act are pending before the Special Tribunal on said date or are decided by Special Tribunal after said date, the land owner is eligible to claim benefit of escalation amount of 12% per annum in terms of para 3 of Circular dated 12.5.1989.
15. In view of this, I find that appellants in all these matters are entitled to benefit of 30% of solatium in terms of Clause (a), 9% interest per annum for first year and 15% interest per annum for subsequent years under Clause (b) and escalation amount calculated at 12% per annum of fair market value in terms of Clause (3) of Circular/letter dated 12.5.1989 issued by Government of India mentioned above.
16. The appeals are accordingly partly allowed. The respondent is directed to pay to the appellants the benefit of above referred circular as mentioned above within a period of six months from today. However, in the circumstances of the case, there shall be no order as to costs.