Judgment:
S.C. Mohapatra, J.
1. This is an appeal under Section 54 of the Land Acquisition Act, 1894 (for short 'the Act').
2. By a declaration of the year 1962, some lands of the respondent were acquired for the purpose of construction of a Link Road in Cuttack town. The dispute in the present case relates to 103 decimals of land with a house, compound wail and portion of a tank. Not being satisfied with the compensation, respondent claimed for reference for determination of the market value. On reference, the trial court has determined the rate of land per acre to be Rs. 50,000/-. So far as the house is concerned, the learned Subordinate Judge has awarded Rs. 3,000/- and for the compound wall he has awarded Rs. 6,000/-.
3. Learned Advocate General submitted that the valuation of the land, house and the compound wall as in this case is not based on materials and ought not to have been granted According to the learned Advocate General, a small area of 103 decimals would carry no value of a homestead since it will be of no use to any person purchasing the same. According to him, the house was in a dilapidated condition and would carry no value excepting the value of the construction materials. So far as the compound wall is concerned, it was submitted that the wall was not constructed in accordance with municipal rules. Accordingly, there would be no scope for giving compensation for the compound wall, but the claimant would be entitled to the cost of the materials only.
4. Mr. D. K. Das, the learned counsel for the claimant-respondent, submitted that this is a case where the value of the house and the compound wall has been assessed at much lower rate by the trial court and the same ought to have been enhanced. Mr. Das has relied upon a decision of the Supreme Court reported in AIR 1985 SC 1576 (Bhag Singh v. Union Territory of Chandigarh) for the purpose of claiming higher compensation even without a cross-objection,
5. Ext. 11 is a judgment of the Division Bench of this Court where market value of the lands similarly situated and compulsorily acquired for the self-same purpose has been fixed at Rs. 50,000/- per acre. No evidence has been adduced in this case to distinguish the land involved in this appeal differently. Accordingly, the rate fixed by the trial court is justified. Claimant is entitled to compensation at that rate.
6. Coming to the valuation of the house, the Collector has awarded Rs. 1404/-. The trial court has enhanced the value of _the house and fixed it at Rs. 3,000/-. It has relied upon the evidence of P.W. 1 in this respect. There is no reason why P.W. 1 would be disbelieved. Accordingly, I confirmthe finding in that regard.
7. Next comes the question of valuation of the compound wall. As I find, the trial court has assessed the value of the compound wall at Rs. 6,000/-. No consideration has been given to the depreciation of the value keeping in mind the age of the compound wall. P.W. 1 has also not given clear picture about the same. Besides, there is no material to indicate that the compound wall was constructed with permission of the municipal authorities. However, in the present case, I need not take into consideration the question of permission by the municipality since the Collector had not questioned the same. Where a construction has been made in contravention of the municipal laws or other laws regulating construction and the authorities have power to direct demolition thereof, compensation is not to be awarded for the purpose of the constructions in violation of laws and it is to be confined only to the materials used since a party has always the right to remove the materials used at his own cost. After acquisition and before taking possession, the Collector has to give opportunity to the party to remove his materials standing on the land. However, as I have already said, P.W. 1 has not given a clear picture about the depreciation of construction. I could have set aside the order to this extent and remitted the matter back for fresh enquiry. That would be more prejudicial to the parties. Accordingly, in the interest of justice, making a reasonable guess-work I assess the market valueof the compound wall at Rs. 4,000/- by deducting Rs. 2,000/- towards the depreciation.
8. Compensation has been awarded for a plinth and portion of pond. Trial court has not taken into consideration the market value of those constructions. No appeal has been preferred against the same. Accordingly, the award of Rs. 297/- towards the pond and Rs. 835/- towards the damaged plinth as determined by the Collector is to be paid to the claimant. Thus, the claimant is entitled to Rs. 5,150/- towards the cost of the land, Rs. 3,000/- towards the house, Rs. 4,000/-towards compound wall, Rs. 297/- towards-the pond and Rs. 835/- towards damage of plinth. He is also to receive Rs. 10/- towards the cost of the tree as awarded by the Collector. Claimant is entitled to solatium and interest as provided by amendment of the Act in Act 68 of 1984. In view of this finding, in the absence of cross-objection whether higher compensation can be granted to the claimant as submitted by Mr. Das recedes to the background and consideration of the same is of academic interest only.
8A. Mr. D. K. Das, the learned counsel submitted that the claimant is entitled to 12% of the market value under Section 23(1A) as inserted by Section 15 of the Act 68 of 1984. It is submitted on behalf of the appellant that the award of the Collector being before the 30th of April, 1982, Section 23(1A) is not attracted in this case. Section 30(1) of Act 68 of 1984 is relied upon for the purpose. Section 23(1A) as incorporated by Section 15 and Section 30 reads as follows : --
'23, Matters to be considered in determining compensation-
(1) xxxxx (1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, Sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation.-- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.
'30. Transitional provisions.-- (1) provisions of Sub-section (1-A) of Section 23 of the principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,--
(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), in which no award has been made by the Collector before that date;
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the commencement of this Act.
(2) The provisions of Sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition) (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act. xxxxx.'
Under Section 23(1A) of the Act as the language provides the Court while determining the market value of land is also to award 12% on the market value in addition thereof. This 12% will be confined to the period between the publication of the notification under Section 4(1) and the date of the award of the Collector or the date of taking possession of the land whichever is earlier. Court would include appellate court also. Pendency of a proceeding in Court arising out of a reference under Section 18 of the Act gives scope to the Court to award the compensation as provided under Section 23(1A) of the Act. Section 30(1) of Act 68 of 1984 is a transitional provision where the question of determination of the compensation is under consideration of the Collector. Even if no reference is pending before the Court and an award has already been given by the Collector, the claimant has a right to the compensation as provided in Clause (b). Section 30, Sub-section (2) of Act 68 of 1984 has been brought to my notice wherefrom it is stated that the power under Section 30, Sub-section (1) is not confined to be exercised by the Collector only but by any authority including a Court either dealing with the reference or in appeal to add the percentage as indicated under Section 23(1A) to the market value. This being a provision to give benefit to the claimants who come within its scope, liberal interpretation is to be made so that the benefit is available to the claimants and not to restrict the same. While Mr. Das, relied upon the decisions reported in AIR 1986 Kant 179 (FB) (Special Land Acquisition Officer, Dandeli v. Soma Gopal Gowds) and in AIR 1987 AndhPra 136 (FB) (The Special Deputy Collector, Srisailam Project (L.A.), Atmakur v. S. Venkata Seshamme) in support of getting the benefit, the learned Advocate General relied upon the decision reported in AIR 1987 Punj & Har 222 (FB) (State of Punjab v. Krishan Lal) to give a restricted meaning to Section 23(1A) read with Section 30 of the amending Act. For the reasons indicated earlier, I am inclined to accept the view of the Karnataka and Andhra Pradesh High Courts and I am not able to accept the view of the Punjab and Haryana High Court.
9. In the result, the appeal is allowed in part. There shall be no order as to costs.