Puranik, J.
1. Both these applications -- Misc. Civil Application No. 37 of 1986 and Misc. Civil Application No. 36 of 1986, for review of our judgments in First Appeals Nos. 40 of 1979 and 41 of 1979, respectively, decided on 21-11-1984, can be disposed of by a common judgment, inasmuch as the facts and circumstances in both the applications are identical.
2. Brief facts leading to the present applications may be narrated as follows :--
The present applicants are the landowners who were the respondents in the First Appeals mentioned above. By a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Principal Act'), issued on 11-2-1970, followed by Notification under Section 6 of the Principal Act dated 18-7-1970, 3.74 Acres of land out of Survey No. 83/1 and 3.21 acres of land out of Survey No. 98, both of village Mahadula, Tahsil and Dist. Nagpur, belonging to the applicants, were put under acquisition. The Additional Special Land Acquisition Officer, Pench Project, Nagpur, by an Award dated 28-4-1972, passed in Revenue Case No. 31/A-65/1970-71 granted a total sum of Rs. 1,24,727.85 as compensation. The matter was then referred to the Civil Court and the Joint Civil Judge, Senior Division, Nagpur, who heard this matter, being Land Acquisition Case No. 33 of 1972, by its Award dated 30-11-1978, granted enhanced compensation of Rs. 3,32,178.93, solatium at the rate of 15% and interest at the rate of 3% from the date of taking possession till the date of payment with proportionate costs.
3. The State of Maharashtra challenged this Award of the Civil Court vide First Appeals Nos. 40 of 1979 and 41 of 1979, before this Court. Both these first appeals were decided by us on 20-11-1984, in that we had agreed with the trial Court and dismissed the appeals filed by the State with costs. However, we had modified the rate of interest, in exercise of powers conferred by the provisions of Order 41, Rule 33 of the Code of Civil Procedure, 1908, and directed that the rate of interest shall be 4% instead of 3% as allowed by the trial Court.
4. The case now put forth by the landowners is that by the time the aforesaid First Appeals were decided, the provisions of the Principal Act were amended by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred as the 'Amendment Act') which was brought into force with effect from 17-9-1984. Their further case is that the provisions of Sub-section (2) of Section 23 and Section 28 of the Principal Act were amended by Clause (b) of Section 15 and Section 18 of the Amendment Act respectively. They contended that these amendments have been given retrospective effect by virtue of Sub-section (2) of Section 30 of the Amendment Act and are made applicable to all proceedings pending in any Court on 30th April 1982 and decided thereafter. They further contended that they are, therefore, entitled to all the benefits arising out of these amended provisions as, admittedly, the proceedings relating to the determination of compensation in the instant case were pending on 30th April 1982 and were decided only on 20th November 1984. According to the applicants the amended provisions could not be brought to the notice of this Court, inasmuch as the first appeals were heard on 12th September 1984 and the Amendment Act was brought into force on 17th September 1984. Further, according to the applicants, since the amended provisions, though applicable, were not considered by this Court while deciding the aforesaid first appeals, there is an error apparent on the face of the record, which needs to be corrected by reviewing the judgments dated 21-11-1984. Lastly, the applicants contended that the benefits arising out of the amended provisions can be given to them by invoking the powers under Order 41, Rule 33 of the Civil P.C. (hereinafter referred as 'C.P.C.') read with Section 151 thereof.
5. We have heard Shri M.G. Bhangde, Advocate, for the applicants-landowners, and Shri B.P. Jaiswal, A.G.P. for the respondent-State. The following points are put for our determination in the present case, namely, :--
(i) Whether non-consideration of the provisions of the Amendment Act as they were not brought to our notice, constitutes a ground for review.
(ii) Whether the provisions of the Amendment Act are applicable to the instant case.
6. Section 114 and Order XLVII of the C.P.C. deal with the provisions relating to review. Rule 1 of Order XLVII of the C.P.C. enumerates the following grounds of review :--
i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by him at the time the decree was passed or order was made; or
(ii) Mistake or error apparent on the face of record; or
(iii) Any other sufficient reason.
The learned counsel for the applicants contended that the instant case is covered by ground No. (ii) above and in support of this contention, he relied upon the decision of Federal Court in the case of Sir Hari Sankar Pal v. Anath Nath Mitter decision of single Judge of this Court in the case of Vasant v. Tukaram AIR 1960 Bom 485 and an unreported decision of the Division Bench of this Court in the case of Murlidhar v. The Collector being Misc. Civil Application No. 174 of 1985 arising out of First Appeal No. 11 of 1980, decided on 23-12-1985.
7. Their Lordships of the Federal Court in Sir Hari Sankar v. Anath Nath Mitter (supra) laid down the legal position on this point in the following words : --
'.....That a decision is erroneous in law is certainly no ground for ordering review. If the Court has decided a point and decided it erroneously, the error could not be one apparent on the face of record or even analogous to it. When, however, the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to act in a particular way, that may amount to an error analogous to one apparent on the face of record sufficient to bring the case within the purview of Order 47, Rule 1, C.P.C.......'
Following this decision a learned single Judge of this Court, in the case of Vasant v. Tukaram (Supra) held as follows :--
'.....If the relevant provision of law has not been considered at the time of passing the order, such an order can and should be reviewed if necessary by the Judge who passes that order or by his successor...'
Further, in the case of Murlidhar v. The Collector (supra) a Division Bench of this Court has also taken the same view.
8. Coming to the facts of the instant case, we find that the provisions of the Amendment Act were neither noticed nor considered by us, obviously because our attention was not drawn to the same. In the light of the legal position as discussed in the preceding paragraphs, we hold that non-consideration of the provisions of the Amendment Act constitutes an error analogous to one apparent on the face of record and we further hold that a case for review is made out in the instant case.
9. Now, coming to the second question, we find that the point is no longer res integra and stands decided by the judgment of the Supreme Court in the case of Bhag Singh v. Union Territory of Chandigarh, reported in : AIR1985SC1576 , wherein their Lordships have observed as under :--
'.....Thus, the amended provisions of Section 23, Sub-section (2) and Section 28 would apply in determination of the amount of compensation where the proceedings are either pending at the date of commencement of the amending Act or are filed subsequent to the date, whether before the Collector or before the Court or before the High Court or the Supreme Court.....'
From the aforesaid observations, it is clear that the amended provisions of Section 23, Sub-section (2) and Section 28 of the Principal Act are applicable to all proceedings pending on the date of commencement of the Amendment Act, i.e. on 30th April 1982, either before the Collector or the Court or the High Court or Supreme Court and disposed of thereafter. It is not disputed before us and for that matter it could not be disputed that the proceedings in the instant case, which was decided on 21-11-1985, were pending on 30th April 1982, the date of commencement of the Amendment Act. In the circumstances, it is clear that the amended provisions of Sub-section (2) of Section 23 and Section 28 of the Principal Act are applicable to the instant case and that the landowners are entitled to get the benefits flowing from these provisions.
10. In the light of the foregoing discussion, we would have, in exercise of our powers under Order 41, Rule 33 and Section 151 C.P.C. straightway ordered the State of Maharashtra to pay to the landowners additional solatium and interest in terms of the amended provisions of Sub-section (2) of Section 23 and Section 28 of the Principal Act. But there is one more question which needs to be considered before such an order is made, i.e. -- whether this relief can be given in an appeal by the State, to the landowners who were satisfied with the award of the Court and did not challenge the same either by filing appeal or by cross-objections. Prima facie, according to us, this question does not arise in view of the decision of the Supreme Court in the case of Bhag Singh v. Union Territory of Chandigarh (supra). However, in an unreported decision in the case of the State of Maharashtra v. Ganpatrao and others, being First Appeal No. 509 of 1978, decided on 1312-1985, the Division Bench of this Court at Aurangabad, (Hon'ble Mr. Justice S. J. Deshpande and Hon'ble Mr. Justice G. M. Khandekar), has held that in an appeal filed by the State, in the absence of a cross-appeal or a cross-objection by the landowner, the benefits of the amended provisions cannot be given to the landowners. It has been further held that Section 28 of the Principal Act, as amended in the State of Bombay in the year 1938 will continue to hold field in spite of its amendment by the Amendment Act. In view of this decision of a co-ordinate Bench, we are required to consider the question posed in the earlier part of the paragraph.
11. In the case of Bhag Singh v. Union Territory of Chandigarh : AIR1985SC1576 (supra). Their Lordships of the Supreme Court have observed, in paragraph-5, as under :--
'......The appeal against the award would be a continuation of proceeding initiated before the Court by way of reference under Section 18 and when the High Court hears the appeal, it would in effect and substance be hearing the reference and while determining the amount of compensation, it would have to give effect to Sections 23 and 28 as it finds them at the date of decision of the appeal....... .....The amended provisions in Section 23, Sub-section (2) and Section 28 would therefore have to be applied by the High Court while determining the amount of compensation'.
From these observations it is apparent that if the proceedings for determination of the amount of compensation are pending on the relevant date, the amended provisions have to be applied. The question that now arises is whether an appeal by State of Maharashtra filed in this Court under Section 54 of the Principal Act challenging the award of Court in a reference under Section 18 of the Principal Act is a proceeding(?) for determination of amount of compensation. The answer is clearly in the affirmative. It was not and it cannot be disputed that such an appeal is a proceeding for determination of amount of compensation payable to the person whose lands have been compulsorily acquired. Thus, it follows that for the purposes of applicability of the amended provisions there is no distinction between the appeal filed by the State under Section 54 of the Principal Act or the appeal filed by the landowners under the same provisions. The landowners are entitled to the benefits arising from the amended provisions, if the proceedings are pending on the relevant date at their instance or at the instance of the State.
12. The Supreme Court has itself in the case of State of Punjab v. Mohindersingh reported in : AIR1987SC758 granted benefits under the amended provisions of Sub-section (2) of Section 23 and Section 28 of the Principal Act to the respondent landowners in an appeal filed by the State of Punjab in the absence of a cross-appeal or cross-objections. In the following matters, Division Benches of this Court have also taken the same view and granted benefits under the amended provisions to the respondent-landowners in appeals filed by the State or Union Government --
(1) Union of India v. Smt. Maria -- reported in : AIR1986Bom1 (Panaji Bench -- Goa) by Hon'ble Mr. Justice Dr. Couto and Hon'ble Mr. Justice Kamat.
(2) State of Maharashtra v. Bansilal & others, being First Appeal No. 127 of 1980 decided on 29-1-1986 by Hon'ble Mr. Justice V.A. Mohta and Hon'ble Mr. Justice B.G. Deo.
(3) State of Mahrashtra v. Martand, being First Appeal No. 172/84 by interim Order dated 18-12-1985 passed by Hon'ble Mr. Justice M. S. Jamdar and Hon'ble Justice G.G. Loney.
(4) State of Maharashtra v. Prahlad, being First Appeal No. 3 of 1984, by interim Order dated 14-3-1986 passed by Hon'ble Mr. Justice M.M. Qazi and Hon'ble Mr. Justice B.G. Deo.
The decision of the Supreme Court in Bhag Singh's case and Mohindersingh's case (referred to in paragraph 4 of the judgment in Bhag Singh's case) were before the Aurangabad Bench when they decided the case of State of Maharashtra v. Ganpatrao and Ors., on 13-12-1985. We, therefore, say with respect that the learned Judges of the said Division Bench committed an error when, in paragraph-17 of their judgment, they observed as under :--
'.......We did not come across any decision of the Supreme Court or other High Court nor was any such brought to our notice on behalf of the respondents in which the benefits, which are sought to be claimed by the respondents in these appeals, were made available to the claimants in an appeal filed by the rival party........'
In view of the foregoing discussions, we find ourselves unable to subscribe to the view taken by the Division Bench at Aurangabad in the case of State of Maharashtra v. Ganpatrao and, as such, we respectfully dissent from the same.
13. In Ganpatrao's case, the Division Bench at Aurangabad has also held, as pointed out above, that in spite of the provisions of the Amendment Act, the provisions of Section 28 of the Principal Act, as amended in the year 1938 in the State of Bombay, shall continue to prevail. In this behalf, the learned counsel for the applicants submitted that this view is incorrect, inasmuch as the Division Bench has not adverted to Article 254 of the Constitution as well as the decision of the Supreme Court in the case of 'T. Barai v. Henry Ah Hoe' reported in : 1983CriLJ164 . The learned counsel for the applicants also relied upon the decision of Gujarat High Court in the case of Lalbhai Talsibhai Patel v. Addl. Spl. Land Acquisition Officer reported in : AIR1986Guj24 and a decision of the Kerala High Court in the case of Mohammed Sheriff v. State of Kerala reported in : AIR1986Ker67 . Referring to these cases, the learned counsel for the applicants submitted that the provisions of the Amendment Act, viz., Section 18 which has amended Section 28 of the Principal Act, will prevail and that the amendment made to Section 28 of the Principal Act in the year 1938 will have to give way. We find that this submission is correct and deserves to be accepted.
14. Article 254 of the Constitution of India reads as under : --
'254(1). If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.'
The Supreme Court had an occasion to consider this provision in the case of T. Barai v. Henry Ah Hoe : 1983CriLJ164 (supra). The scope of this provision has been explained and laid down in paragraph-15 of the judgment as under : --
'....The proviso to Article 254(2) empowers the Union Parliament to repeal or amend a repugnant State law even though it has become valid by virtue of the President's assent. Parliament may repeal or amend the repugnant State law, either directly, or by itself enacting a law repugnant to the State Saw with respect to the 'same matter'. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made. A State law would be repugnant to the Union law when there is direct conflict between the two laws. Such repugnancy may also arise where both laws operate in the same field and the two cannot possibly stand together, e.g., where both prescribe punishment for the same offence but the punishment differs in degree or kind or in the procedure prescribed. In all such cases, the law made by Parliament shall prevail over the State law under Article 254(1). That being so, when Parliament stepped in and enacted the Central Amendment Act, it being a later law made by Parliament 'with respect to the same matter', the West Bengal Amendment Act stood impliedly repealed.'
The Gujarat High Court in Lalbhai's case (supra) following this view, has held that the State Amendments made to Section 28 of the Principal Act in the year 1965 cannot now operate in view of the provisions of the Amendment Act which is a Central legislation. The Kerala High Court in the case of Mohammed Sheriff (supra) has also held that the State Amendments made to Sections 23(2) and 28 of the Principal Act in the year 1962 are rendered void in view of the provisions of the Amendment Act.
15. Coming to the instant case, we find that in Section 28 of the Principal Act, the rate of interest payable to the landowners is 'six per centum'. In the State of Maharashtra, however, in view of Section 2 of the Land Acquisition (Bombay Amendment) Act XVIII of 1938 as extended to whole of the State of Maharashtra by Maharashtra Act XXXVIII of 1964, the rate of interest is reduced to 'four per centum'. Section 18 of the Amendment Act has amended Section 28 of the Principal Act by substituting the words 'nine per centum' in place of the words 'six per centum' and a proviso is added to Section 28 which reads as under : --
'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.
16. The result of these amendments is that the rate of interest payable is nine per cent per annum from the date of taking possession of the land till the date of payment of enhanced compensation. In case such payment is not made without the period of one year from the date of taking possession, then the rate of interest payable will be 15 per cent per annum for the period commencing from expiry of one year from the date of taking possession of the land till the date of making such payment. Now the question arises whether the State Amendment to Section 28 of the Principal Act can survive or stands repealed in view of the provisions of the Amendment Act. The subject of land acquisition occurs in the Concurrent List. It needs no reason to say that the State Amendment which provides for interest at the rate of four per centum cannot stand together with the provisions of the Amendment Act, a Central enactment, which provides for interest at the rate of nine per centum and fifteen per centum. The State Amendment is, thus, clearly repugnant to the subsequent Central enactment, i.e. the Amendment Act. In view of the proviso to Article 254 of the Constitution, therefore, the State Amendment stands impliedly repealed. The provisions of the Amendment Act, therefore, prevail and hold field. In this view of the matter, we disagree with the decision given in the case of Ganpatrao (supra) by the Division Bench at Aurangabad, on this point as well.
17. Lastly, only one point survives for consideration, and that relates to the procedure which we should follow because of our disagreement with the view of a co-ordinate Bench. Now, it is a trite law that normally one Division Bench of a High Court cannot take a view contrary to the decision given by another Bench of that Court. In case of disagreement the only course open to the later Division Bench is to refer the matter to a larger Bench. However, there are a few exceptions to this Rule. The learned counsel for the applicants drew our attention in this behalf to a decision of Court of Appeal in Young v. Bristol Aeroplane Co. Ltd. (1944) 1 KB 718, wherein it is observed as under : --
'The Court of Appeal is bound to follow its own decisions and those of Courts of coordinate jurisdiction, and the 'full' Court is in the same position in this respect as a Division of the Court consisting of three members. The only exceptions to this rule are :--
(1) The Court is entitled and bound to decide which of two conflicting decisions of its own it will follow :
(2) The Court is bound to refuse to follow a decision of its own which, though now expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords :
(3) The Court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam, e.g. where a statute or a rule having statutory effect which would have affected the decision was not brought to the attention of the earlier Court.'
Relying on these observations, the learned counsel for the applicants contended that the judgment of Aurangabad Bench in Ganpatrao's case need not be followed on two grounds, viz., (1) it has failed to consider and give effect to the two judgments of the Supreme Court in Bhag Singh's case : AIR1985SC1576 and Mohindersingh's case : AIR1987SC758 and (2) it has failed to take into account the provisions of Article 254 of the Constitution and its interpretation by the Supreme Court in the case of T. Barai : 1983CriLJ164 (supra). For all these reasons the learned counsel submitted that the decision in Ganpatrao's case is rendered per incuriam and, therefore, there is no need to refer the matter to a larger Bench to resolve the conflict. We are inclined to agree with the learned counsel for the applicants.
18. In Ganpatrao's case, as pointed out above, two questions were decided. One relates to giving of relief under the amended provisions to the respondent in appeal filed by the State and the other relates to the effect of the provisions of the Amendment Act over the State Amendment. On the first question, in Ganpatrao's case, no reference was made to the relevant observations of the Supreme Court in Bhag Singh's case and Mohindersingh's case, which, in our opinion, clinch the present issue. Therefore, the decision in Ganpatrao's case cannot stand with these two decisions of the Supreme Court. On the second point, in Ganpatrao's case, Article 254 of the Constitution of India and its interpretation by the Supreme Court in T. Barai's case (supra) is not at all considered. In our opinion, therefore, the decision in Ganpatrao's case cannot stand with the provisions of Article 254 of the Constitution of India and the judgment of the Supreme Court in T. Barai's case. With respect, therefore, we hold that the decision in Ganpatrao's case is rendered per incuriam and, hence, not binding on us.
19. In the result, we allow both the applications and hold that the State of Maharashtra is liable to pay the applicants interest at the rate of nine per cent for a period of one year from the date of taking possession of the land and thereafter at the rate of 15 per cent till the date of payment, and (ii) additional solatium at the rate of 15 per cent of the market value of the land. In the circumstances of the case, there shall be no order as to costs of these two applications.