Yatindra Singh, J.
1. The main question involved in these two appeals is, if the possession of land is taken before publication of notification under Section 4(1) of the Land Acquisition Act (the Act) then, whether any interest is payable on the compensation or not.
THE FACTS
2. 5 Bigha 13 Biswa 18 Dhoor (3.56 acres) of land situate in village Manshahpur, Pargana Bhadohi district Varanasi was acquired for 'Inar Gaon Rajwaha' under the Act. The possession was taken on 10.2.1984. However the notifications under Section 4(1) and Section 6(1) of the Act were published on 25.8.1987 and 23.1.1988 after possession was taken.
3. The S.L.A.O. summoned the sale deed of the area. Five sale deeds were placed before him. He relied upon the sale deed mentioned at serial No. 4 in the Schedule II. It was executed by Smt. Kunta Devi on 6.7.1985. It was for 17 biswa 14 dhoor of land of plot No. 168 of the same village for consideration of Rs. 22,125. This sale deed gave the rate of Rs. 25,000 per bigha. It was accepted and the Special Land Acquisition Officer (the S.L.A.O.) gave his award on 29.11.1988. He also gave 12% per annum on the market value of the property and interest was also awarded.
4. The claimants filed applications under Section 18 of the Act for enhancing the market value of the land. These applications have been allowed on 18th August, 1990 and 29th August, 1990 respectively by the Vth Additional District Judge, Varanasi (the court below).
5. The court below rejected the sale deed relied upon by the S.L.A.O. He placed reliance on the sale deed dated 4.2.1985 executed by Kunjan Singh and Phulai Singh. This sale deed was mentioned at serial No. 2 of the Schedule-II and was in respect of 1 biswa 13 dhoor of plot No. 107. It was for a consideration of Rs. 9,000. This gave rate of Rs. 5,454 per biswa. He added 25% for increase in value of the property as sale deed was two years prior to the publication of notification under Section 4(1) of the Act. He also awarded the following amount from the date of possession till the date of award:
(i) 12% per annum on the market value of the property under Section 23(1) of the Act;
(ii) Interest of 9% for the first year and thereafter 15% under Section 34 of the Act.
THE SUBMISSIONS OF THE APPELLANT
6. I have heard Sri R. C. Srivastava, standing counsel for the appellants. He raised the following submissions before me:
(i) The court below committed illegality in calculating the market value of the property on the basis of sale deed dated 4.2.1985 executed by Kunjan Singh and Phulai and the market value of the property could not be enhanced.
(ii) The court below committed illegality in awarding 12% per annum on the market value of the property from the date of taking possession. It ought to have been granted from the date of publication of notification under Section 4(1) of the Act.
(iii) The possession of the land was taken prior to publication of notification under Section 4(1) of the Act and as such no interest could be awarded on the market value.
1st SUBMISSION : SALE-DEED
PRIOR-25% SHOULD BE ADDED
7. The map of the area is on the record of the case. This map shows that the plot No. 107 (property transferred by the sale deed relied by the court below) is at much greater distance from the property acquired than plot No. 168 (property transferred by the sale deed relied by the S.L.A.O.). The area of the sale deed relied by the court below is only 1 biswa 13 dhoor. It is of smaller area. It appears that it was sold for construction purposes whereas the acquired area was for agricultural purposes. It is for this reason that the S.L.A.O. had rejected the sale deed dated 4.2.1985. Due to aforesaid reasons, the S.L.A.O. was right in not relying upon this sale deed. It cannot be considered for calculating the market value of the property acquired.
8. The S.LA.O. had relied upon the sale deed executed on 6.7.1985. However, this sale deed is also two years prior to the date of publication of notification under Section 4(1) of the Act, The court below had added 25% on the rate given by the sale deed on the ground that the notification under Section 4(1) is subsequent to the date of execution of the sale deed. The sale deed relied by the S.L.A.O. and accepted by me is also executed 2 years prior to publication of notification under Section 4(1) of the Act. In my opinion, the market value should be calculated after giving due regard to this fact by increasing the rate given by this sale deed by 25%. In case 25% is added to the rate given by the sale deed dated 6.7.1985 then the market rate will be Rs. 31,250 per bigha. This is the market value of the property acquired.
IInd SUBMISSION : 12% FROM
DATE OF SECTION 4(1) OF THE ACT
9. Section 23 of the Act prescribes the matter to be considered for determining the compensation. Section 23(1) of the Act lists six factors that ought to be considered for calculating the market value of the property. Section 23(1A) of the Act prescribes that in addition to the market value of the property the Court is also required to add 12% per annum on such market value. The question is, if the possession was taken prior to the publication of notification under Section 4(1) of the Act then what should be the starting and end point?
10. Section 23(1A) provides that 12% per annum is to be granted for the period commencing on and from the date of the publication of the notification under Section 4(1) till the date of award by the Collector or taking possession of the land whichever is earlier. The starting point given in Section 23(1A) is the date of publication of notification under Section 4(1) of the Act. In the present case, the date of taking possession is prior to publication of notification under Section 4(1) of the Act. This only means that this date is not available for making any calculation under Section 23(1A) of the Act but this neither changes the starting point nor the end point mentioned therein. The starting point is the date of publication of notification under Section 4(1) of the Act and the end point in this case will be the date of award by the Collector, as the date of taking possession is not available.
11. The Supreme Court has also similarly opined in Special Tahsildar (LA.) P.W.D. Schemes, Vijayawada v. M.A. Jabbar : [1995]1SCR180 ; Siddappa Vasappa Kuri v. Special Land Acquisition Officer and Ors. 2002 (1) SCC 14 : 2002 (1) AWC 106 (SC) and IInd Additional Special Land Acquisition Officer v. Rukhi Ben 2004 (8) SCC 577.
12. In view of above, the claimants are entitled to 12% per annum on the market value of the property from the date of publication of notification under Section 4(1) of the Act till the date of award namely 29.11.1988.
IIIrd SUBMISSION : ENTITLED TO INTEREST
13. Section 34 of the Act is titled as 'Payment of interest'. The interest is determined under this section. In view of this section, the court below has granted 9% interest for one year from the date of taking possession namely 10.2.1984 and thereafter 15% till the date of payment. The standing counsel has cited R. L. Jain v. D.D.A. : AIR2004SC1904 (the R. L. Jain case) and submitted that:
(i) The possession of land was taken prior to the date of publication of notification under Section 4(1) of the Act; and
(ii) No interest could be awarded on the compensation awarded.
14. It is correct that in the R. L. Jain case no interest was paid. However, this case has been decided on its facts. It is not applicable to the facts of this case. The facts of the R. L. Jain case are as follows:
(i) In the R. L. Jain case, the property was acquired twice. For the first time, the notifications under Section 4(1) and Section 6 (1) of the Act were published on 13.11.1959 and 11.10.1961 and the award was made on 30.12.1961 (the First Acquisition).
(ii) In pursuance of the award, R. L. Jain received the compensation under protest and filed an application for enhancement of the compensation. During pendency of the proceeding for enhancement and four years thereafter, he filed Original Suit No. 154 of 1965 for declaration that the acquisition was bad. This suit was decreed on 12.4.1967 and the appeal against the same was dismissed on 31.1.1969. This judgment became final between the parities.
(iii) The acquired land was handed over to the Delhi Development Authority (the D.D.A.) for making construction over the land. R. L. Jain filed another Suit No. 421 of 1967 for injunction against the D.D.A. This suit was decreed on 19.1.1980 and the building constructed by D.D.A. was ordered to be demolished. The first appeal and the second appeal against this judgment and decree was dismissed on 18.3.1989 and 14.8.1991. The D.D.A. filed special leave petition (the S.L.P.) before the Supreme Court.
(iv) During pendency of the S.L.P., fresh notifications under Section 4(1) and Section 6(1) were published on 19.1.1992 and 8.9.1993 (The Second Acquisition). In view of the Second Acquisition the Supreme Court disposed of the S.L.P. and ordered that compensation, on the basis of Second Acquisition, be given.
(v) In the Second Acquisition, the S.L.A.O. gave his award on 10.6.1994. By this award he also granted 9% per annum interest from the date of possession namely 10.11.1961 for one year thereafter 15% interest up to the date of award, The D.D.A. challenged the award by means of a writ petition before the High Court. The writ petition was allowed. The grant of interest was set aside by the High Court on 19.3.1997. This judgment was challenged before the Supreme Court.
15. In the R. L. Jain case, two acquisitions were made and compensation was determined both the times. In pursuance of the First Acquisition, R. L. Jain received the compensation in 1961. He also filed application under Section 18 of the Act for enhancement. The First Acquisition was held to be void yet he never returned the compensation. He enjoyed the interest on the compensation received by him. In case the interest is again given on the second acquisition then he will receive it twice. No one is entitled to receive interest twice. It is for this reason that the Supreme Court denied interest to him the second time. This is clear from the last three paragraphs of the judgment in the R. L. Jain case.
16. The submission of the standing counsel may be considered from another angle. In case it is accepted then, if the possession is taken legally (after publication of notification under Section 4(1) of the Act) then interest under Section 34 will be payable. But if it is taken illegally (prior to the publication of notification under Section 4(1) of the Act) then no interest will be payable. There will be premium to act legally and benefit in acting illegally-this can never be the intention of the Act.
17. The rational of the R.L. Jain case is that no one is entitled to interest twice. Section 34 is applicable only when no compensation was received earlier. And the dictum of this case should be so confined. It is limited to the cases where acquisition is made more than once and the claimants have enjoyed the compensation determined in the earlier acquisition.
18. Apart from above, the Supreme Court in paragraph 18 of the judgment has also held that a person who is being dispossessed prior to the date of publication of notification under Section 4(1) is also entitled for damages for use and occupation of the land for the period for which he was illegally dispossessed. In Land Acquisition Officer v. Hemanagouda 2005 (12) SCC 443, the case was remanded back to the S.L.A.O. to determine the damages for the use and occupation of the land. One method to determine the damages for use and occupation is, to remand the matter back to the S.L.A.O. to determine the same. This will not only take time but will always vary, and will make result uncertain. The other method is to decide it in such a way that brings uniformity. In my opinion, such interpretation should be adopted that brings uniformity and certainty.
19. Section 34 of the Act is clear. The starting point is the date of taking possession. If any case is similar to the facts of the R. L. Jain case and is covered by its rational (as explained in paragraph 17 of this judgment) then,
(i) It may be decided accordingly; and
(ii) Interest may not be granted.
Otherwise there is no justification in not applying the plain language of Section 34 of the Act. And it should be so applied. In any case, the grant of interest can always be treated as damages for use and occupation of the land.
20. In view of above and in the facts and circumstances of the case, the claimants will be entitled to 9% interest for the first year from the date of taking possession and thereafter 15% interest till the date of payment.
CONCLUSIONS
21. My conclusions are as follows:
(i) The market value of the property is Rs. 31,250 per bigha.
(ii) The R. L. Jain case, : AIR2004SC1904 , should be confined to the facts of the case as explained in paragraph 17 of this judgment.
(iii) In case possession is taken prior to publication of notification under Section 4(1) of the Act then:
(a) The claimants are entitled to 12% per annum under Section 23(1A) of the Land Acquisition Act from the date of notification under Section 4(1) of the Act till the date of award by the Collector.
(b) Unless the case is covered by the R. L. Jain case (see paragraph 17 of this judgment), the claimants are also entitled to interest at the rate of 9% for the first year from the date of taking possession and thereafter 15% till the date of payment.
22. In view of my conclusions, the appeals are partly allowed. The compensation will be determined as held above. The parties shall bear their own costs.