Judgment:
B.C. Patel, C.J.
Background
1. The present appeal is filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and was listed before this bench in view of the order made by a Division Bench on 17th March, 2005. The Division Bench hearing the matter expressed an opinion that the decision of this court in case of Union of India v. Rajiv Gupta and Ors. : 96(2002)DLT225 (DB) requires reconsideration where in an identical situation the view was taken that the State is liable to pay interest as it was a statutory liability even for the period for which interest was waived by the claimant. This view was expressed without considering the decision of the Apex court in the case of State of Assam and Anr. v. Jitendra Kumar Senapati and Ors. reported in : [1981]2SCR850 . The Division Bench in view of the decision of Apex court in case of Jitendra Kumar Senapati (Supra) expressed the view that the Larger Bench should consider whether there can be waiver of interest or not.
Factual Matrix
2. The short facts required to be considered are as under: -
A notification under Section 4 of the Act was issued on 4.3.1963, followed by a declaration under Section 6 of the Act dated 13.12.1966. After following the procedure laid down in the Act, the Land Acquisition Collector made an award no. 36/81-82. In view of public notice and notices issued under Sections 9 and 10 of the Act, interested persons lodged their claims. After considering the same the award was made on 10-11-1981 fixing the market value of acquired land under the aforesaid notification in three categories, namely, A, B and C at Rs. 2400/-, Rs. 2100/- and Rs. 1800/- per bigha respectively. It is against this award, dissatisfied claimant sought reference under Section 18 of the Act for enhancement of the compensation. In the present case in is required to be noted that the claimant was claiming compensation as an 'asami', for acquisition of land bearing khasra no. 33/10 admeasuring 2 bighas 8 biswas. However, it appears that he claimed to be in possession for a limited period of five years. It is contended that the claimant re-claimed the land and subsequently he became 'bhoomidar' of the land in question. Against the claim made by the claimant, Union of India as well as Gaon Sabha, Badli, filed written statements raising preliminary objection that the claimant was not a recorded 'bhoomidar' of the land in question and the market value assessed by the Land Acquisition Collector was correct and proper and did not require any interference.
Order made by Reference Court
3. When the matter was before the reference court, on 12-5-1983 the claimant requested the court to stay the reference application sine die, which was placed before the court under Section 18 of the Act, till the decision of another reference made under Section 30-31 of the Act. The claimant through counsel looking to the nature of claim referred above, undertook that the claimant will not claim interest for the period during which the reference under Section 18 of the Act would remain stayed. It is upon the claimant's say the court hearing the reference at the relevant time made the order as under:-
'In view of the above statement of the counsel for the petitioner this reference is stayed sine die till the decision of the reference court under Section 30/31 of the Act. However, the petitioner will not be entitled to claim interest for the period during which this reference shall remain stayed.'
4. It transpires that thereafter, on 6.3.2000 the reference was taken up and the Delhi Development Authority (hereinafter as the DDA) was joined as a party respondent. However, no written statement was filed and the issues were framed on 25-2-2000. Reference court allowed the reference application under Section 18 of the Act to the extent indicated in para 15 of the judgment, by enhancing the compensation @ Rs. 5600/- per bigha and other statutory benefits as indicated in the said para. However, it further held that the claimant will not be entitled to claim interest on enhanced compensation amount from 12-5-1983 to 6-3-2000, the period during which the reference petition remained stayed in view of the request made by the claimant himself.
Question raised
5. Before this court, the question raised is that the reference court has committed an error in not awarding the interest for the period indicated hereinabove as the statement was made and the order was passed in view of waiver of interest for the period during stay of proceedings. This order was never challenged thereafter. Procedure under the Act
6. Section 11 of the Act refers to enquiry and award by Collector. The Collector has to enquire into the objections (if any) which any person interested has lodged pursuant to a notice given under Section 9 of the Act to the measurements made under Section 8 of the Act, the value of the land on the date of the publication of the notification under Section 4(1) of the Act, and the respective interest of persons claiming the compensation. The Collector has to make an award under his hand of the true area of the land, the compensation which in his opinion should be allowed for the land and the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or all whose claims, he has, information, whether or not they have respectively appeared before him. Sub-section (2) of Section 11 of the Act permits the Collector, if he is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the collector in the form prescribed by the rules made by the appropriate Government he, may, without making further enquiry make an award according to the terms of such agreement.
7. Thus, it is clear that while making an award, the Land Acquisition Collector is not only entitled to determine the market price of the land, but is also entitled to apportion the amount of compensation amongst the persons known or believed to be interested in the land, and, for whose claim he has information notwithstanding the fact that persons have not appeared before him. Reading sub-section (2) of section 11 of the Act, it is clear that even if persons interested have arrived at an agreement and if the collector is satisfied, then without making further enquiry, the collector is entitled to record about the apportionment of the compensation. In either event it is open for the collector to make a provision for apportionment of the compensation.
8. Section 18 of the Act pertains to reference to the court. The person interested who has not accepted the award may by the written application require the collector to refer the matter for determination of the court with regard to measurement of land or amount of the compensation or the persons to whom it is payable or the apportionment of the compensation amongst the persons interested. Section 18 of the Act can be invoked by a claimant.
9. There is yet another provision for apportionment of compensation. Reading Section 29 with Sub-section (2) of Section 11 of the Act it becomes clear that when there is an agreement for the apportionment of the compensation, then in such a case the particulars of such apportionment is required to specified in the award and as between such persons the award shall be conclusive evidence of the correctness of the apportionment. In view of the legislative mandate when there is an agreement about the appointment then the same is to be accepted as conclusive evidence of the correctness of the apportionment and that it becomes final. In a given case there may be an agreement about the apportionment, yet parties may not agree to the amount of compensation and may claim higher amount under Section 18 of the Act by seeking a reference. In view of language used in sub-section (2) of Section 11 of the Act it is clear that without making an enquiry, if the Collector is satisfied then in view of agreement may make an award. Section 29 of the Act will apply when there is an agreement with regard to apportionment. Section 18 of the Act requires the collector to make a reference not only with regard to measurement of the land and amount of compensation or to who it is payable but also with regard to apportionment of the compensation among the persons interested.
'Dispute'
'Section 30 and distinction between Sections 30 and 18
10. When the dispute is raised before the collector, there is no question of discretion left with the collector but to make a reference for the subjects indicated in Section 18 of the Act. So far as Section 30 of the Act is concerned, in view of the language used in Section 30 of the Act it is not compulsory for the collector to make a reference. The Section reads as under:-
'30.Dispute as to apportionment.' When the amount of compensation has been settled under section 11, if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof, is payable, the Collector may refer such dispute to the decision of the court.'
11. Section 30 of the Act can be invoked by the Collector. It appears that the section makes provision even for decision of complicated matters where apportionment of consideration is difficult or at least disputed. A reference under Section 30 of the At can be made, even if a dispute is raised by any person other than those who have been mentioned as persons interested in the award of the Collector. This section contemplates a reference to the Court by the Collector suo moto, while under Section 18 of the Act reference is made on an application of a party. There is distinction between Section 18 and Section 30 of the Act: (1) Collector has a discretionary power in the matter of Section 30 of the Act. However, when an application under Section 18 of the Act is made, no discretion is left with the Collector; (2) the subject matter of reference under Section 30 of the Act is limited to the cases in which Government is not directly interested; and (3) Section 18 of the Act contains a definite provision of limitation whereas no such limitation is prescribed for invocation of Section 30 of the Act. If one has failed to make an application under Section 18 of the Act, such defaulter cannot invoke Section 30 of the Act. Again reference under Section 30 is confined to the determination of the question as to the persons entitled to the compensation and its apportionment amongst them. The Court is not called upon to decide the adequacy of amount of compensation under Section 30 of the Act.
12. Section 30 of the Act refers to the word 'dispute'. It implies any controversy as to title, whether as between the actual claimants, or as appearing from the documents made available by the Government. A reference under Section 30 of the Act pre-supposes any one of the two kinds of disputes i.e. (1) any dispute as to the apportionment of the compensation awarded or any part thereof; and (2) any dispute as to the persons to whom the same or any part thereof is payable. A dispute of this nature re-supposes the rival claims of two or more contending parties which are to be decided by the District Judge. When there is a dispute as to who is entitled to the compensation, the matter is referred for decision by the Civil Court under Section 30 of the Act.
13. There is a distinction between Sections 18 and 30 of the Act. Under Section 18, Collector may be requested to refer the matter only by the parties who did not accept the award and the party, considering himself aggrieved by the award, makes a written application, inter alia, requesting that the objection raised by him be referred to the Reference Court. Under Section 30, no application is required and if the Land Acquisition Collector thinks that he cannot give a proper and effective decision regarding such dispute or even otherwise, he can, in his own initiative, refer the matter to the Court. However, existence of a dispute as regards apportionment of compensation is a must. Unless there is such a dispute, the Land Acquisition Collector has no jurisdiction to make a reference under Section 30 of the Act. As indicated earlier, the claimant himself was not sure about his right, as he was claiming as bhumidar while other side contended that he was an asami . It is in view of these aspects, the claimant was not sure and he wanted to see that before labouring much for enhancement of compensation or on the question of adequacy of the amount of compensation, the Court should decide the question of entitlement or apportionment.
14. The Apex Court in Dr. G.H. Grant v. The State of Bihar : [1965]3SCR576 has pointed out that the powers exercisable by the Collector under Section 18(1) and under Section 30 of the Act are distinct and may be invoked in contingencies which do not overlap. The Court also pointed out that under Section 18 of the Act, the Collector is bound to make a reference on a petition filed by a person interested. The Collector under Section 30 of the Act is not enjoined to make a reference: he may direct the person raising a dispute as to apportionment, or as to the person to whom the compensation is payable, to agitate the dispute in a suit and pay the compensation in the manner declared by his award. In the instant case, award was made by the Collector and reference was also raised under Section 18 of the Act against the adequacy of the amount of compensation only. An application was separately made under Section 30 of the Act. thereforee, proceedings being distinct, request was made to stay the proceedings under Section 18 of the Act. The question, however, to be considered is whether an amount of interest can be claimed for the period during which matter remained stayed at the instance of claimant stating that he shall not claim interest during the period of stay.
Contentions and discussion
15. Reliance was placed on behalf of the claimant on the decision of this court in Union of India v. Rajiv Gupta and Ors. : 96(2002)DLT225 (DB). The Division Bench considering the decisions of the Apex court in Vijay Cotton and Oil Mills v. State of Gujarat : AIR1991SC656 ; Manipur Tea Co. Pvt. Ltd. v. Collector of Hailakandi : AIR1997SC1779 ; Womar Srinivas Kimi v. Rahul Lal Bhagwan Das and Co. : AIR1959SC689 ; Supdt of Taxes, Dhubri and Ors. v. Onkarmal Nathmal Trust : AIR1975SC2065 and considering the provisions made in Section 28 and 34 of the Act expressed the opinion that payment of interest is not a matter of lis or controversy between the claimants and the State. Section 28 of the Act is mandatory in character, which mandates payment of interest at the rates specified therein, as also the period for which it is to be paid. It is a legislative policy to pay interest to the claimants under Section 28 and 34 of the Act. There is absolutely no discretion left with the Collector or the Court in the matter of grant of interest. Considering these aspects the Division Bench pointed out that reference court proceeded to hold that the claimants were entitled to interest even for the period of stay. The court expressed an opinion that the award before the court is unassailable for the reason that it is a legislative mandate that the claimant must be paid interest at the specified rate for the period mentioned in Section 28 of the Act. In the aforesaid case with regard to entitlement of interest for the period during which the proceedings before the reference court remained stayed, reliance was placed by the Union of India to the order passed in four reference petitions and the order made by the Additional District Judge.
16. It is clear that in view of the orders passed by the Additional District Judge as noted by the High Court in case of Union of India v. Rajiv Gupta (Supra) the petitions were stayed sine die as the petitioner was not claiming any interest on the enhanced amount of compensation, if any, for the period of stay and, as counsel for the Union of India had no objection. The court adjourned the proceedings sine die on condition that no interest will be awarded to the petitioners on the enhanced compensation which may eventually be granted to him for the period of stay.
17. The contention was raised that on the enhanced amount of compensation, interest cannot be allowed for the period during which the reference proceedings under Section 18 of the Act remained stayed because of pendency of reference under Section 30/31 of the Act. On the other hand on behalf of the claimants reliance was placed on orders awarding interest in some of the cases which are referred to in para 14 of the judgment.
18. No doubt Section 34 of the Act indicates that the Collector shall pay the amount awarded with interest thereon @ 9% p.a. from the time of so taking possession until it shall have been so paid or deposited. It is fairly conceded before the court that the attention of the Division Bench in the case of Rajiv Gupta (supra) was not drawn to the decision of the Apex Court in the case of State of Assam and Anr. v. Jitendra Kumar Senapati and Ors. : [1981]2SCR850 . The Apex court in the aforesaid case examined the provisions contained in Section 34 of the Act where the claimants complained of hardship due to delay in payment of compensation and in order to avoid further hardships, they had agreed to reduce the cost of acquisition of land i.e. compensation and also agreed that they would make no further claim in regard to compensation if actual compensation was received by them within the stipulated time. It is in this situation the Apex Court held that they would not be entitled to any interest on the sum of compensation received by them under the conditions attached by them to the agreement that they relinquished all future claims by accepting the quantified sum of compensation. The expression 'compensation' used in agreement could not be said to be used in the sense in which it is used in Section 23 and 34 but more comprehensively meaning reimbursement in full and final satisfaction of their claim in respect of acquisition. The claim was made later on for interest @ 11-1/2% per annum and the claim was laid before Chief Secretary. Ultimately, the claimants approached the High Court. The High Court accepted the petition and held that the Collector was bound to pay to the respondents i.e. claimants, interest on the amount covered by the award @ 6% p.a. from the date on which the possession of the land was taken over by the Collector till the date of payment. In that case in the agreement signed by the claimants no doubt the word 'compensation' was used but they added that they would make no further claim if actual payment was received by them before 31st March, 1969. The amount was quantified and they condoned the delay in payment and also ignored 'all future claims to interest'. The court pointed out if it were otherwise, there is no reason why respondents would not have expressly reserved their right to claim interest under Section 34 of the Act. It is in these circumstances the Apex Court set aside the judgment of the High Court and denied the interest as claimed by the claimants.
19. In the instant case for the acquisition of the land two sets of references were pending before the reference court, one under Section 18 of the Act and the other under Section 30/31 of the Act. As indicated earlier, Section 30 refers to disputes as to apportionment. The claimant knowing fully well that there is a serious dispute about the claim and if reference under Section 18 is answered deciding the amount of compensation payable without agitating and deciding the disputes, the claimant thought he will not be in a position to address the court under Section 18 of the Act and, thereforee, requested the court by making a specific request that the reference under Section 18 of the Act may be adjourned sine die and that he shall not claim any interest over the amount till the reference under Section 30 of the Act is decided. For reference under Section 18 of the Act, the claimant, before the Court, being not certain about entitlement was not interested in proceeding with reference under Section 18 of the Act. It is in this situation, the claimant volunteered not to claim any interest during the pendency of the reference under Section 18 of the Act. It is the claimant who gave up or abandoned his right to claim interest and it is he who delayed the proceedings by getting the reference adjourned sine die. The court was thereforee justified in passing the order.
20. Ordinarily, the amount of interest is to be awarded. However, if the claimant of his own conduct disentitles himself to claim interest, then in the opinion of this Court it cannot be said that the amount of interest should be awarded even during the period for which the proceedings remained stayed. It was open for the claimant not to make such a request and to proceed with the matter. But having once requested the court it is not open for a party to back out from the statement made before the court. It is in view of what we have indicated hereinabove we are of the view that ordinarily the claimants would be entitled to get interest. However, if one has abandoned the right of interest during the period of stay, then in view of the language use in Section 28 the court may direct not to pay the interest for such period. Section 28 reads as under:-
'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 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.'
21. No doubt Section 28 of the Act has been interpreted by the Apex Court inter alias pointing out that the word 'may' has to be construed as 'shall'. However at the same time in the instant case the party has waived right of interest and once the is a clear waiver, the party is estopped from resiling from the statement made before the court and in this view of the matter this court is of the opinion that no doubt it is for the court to grant interest, but, if there is waiver of interest, then the same cannot be claimed.
22. The Apex court has laid down the general preposition about payment of interest. However the decisions which were cited before us are silent on the situation where the claimant on his own sweet will has waived right to claim interest. The principle of waiver is not opposed to any law nor the same is prohibited under the law. On behalf of Union of India it was submitted that the claimant's conduct is required to be seen and as the matter was adjourned sine die on account of waiving the right to claim interest now the claimant is estopped from claiming the same relief to the disadvantage of the other party. Had he not waived right of interest and had proceeded with the matter this situation would not have arisen. It must be remembered that the pasty to the litigation is not allowed to take advantage of its own action and/or default.
23. On behalf of Union of India it was submitted that reading Section 28 of the Act, discretion is left with the court and it is for the court to exercise the discretion. It was submitted that once the court exercises the discretion then the court has to grant the interest as indicated in the Section. However it is for the court to exercise its discretion and grant interest including for the period for which interest is to be granted and for which period interest is not to be granted. It was submitted that if for such a period interest is to be granted then it must be granted as per provisions contained in law. In the case of Raghubans Narain Singh v. The Uttar Pradesh Government AIR 1967 SC 465 the contention was raised that under Section 28 neither the District Judge nor the High Court had any discretion in allowing the interest at a rate less than six per cent. On behalf of the other side it was contended that Section 28 provides for a ceiling at the rate of interest. It was further contended that since Section confers discretion on the ground that court may or may not grant interest that discretion impliedly means that even where the court grants interest it can do so at any rate up to six percent.
24. The court pointed out the consequences that Section 28 as it stands must apply and thereforee where the court exercise discretion and grants interest, the interest has to be at the rate of six percent. Relying on this decision it was submitted that the larger bench of the Apex Court has not held that interest is mandatory but what is held is that once the discretion is exercised to grant interest then the court has no further discretion in the rate of interest Act of the Court
25. One has to bear in mind the distinction between inviting an order of the Court and the Court making an order of its own. In a case where the Court has made an order of its own of staying the proceedings, then the claimant should not be asked to suffer. In such a situation it was open to the other side to move the higher forum with the request to proceed with the matter so as to avoid the payment of amount of interest for the interregnum. In the case of Lekh Raj and Co v. Union of India and Ors. , Civil Appeal No. 5690 of 1985 decided on 24.3.1992, the Apex Court in a somewhat similar situation, where the Court had stayed proceedings of its own and refused to grant interest during the interregnum for the period 17.11.1968 to 23.7.1974 as there was a stay order, pointed out that 'Though the grant of interest under section 28 of the Land Acquisition Act is discretionary with the court but in the facts and circumstances of this case, we are of the view that the discretion has wrongly been exercised by the High Court. A dispute of apportion of compensation under section 30 of the Act is the progeny of the Act and since the Court thought to stay the proceedings for enhancement of compensation, the act of the Court in these circumstances could not go to prejudice the accrual of interest on compensation which was kept retained by the State in the interval'. It is in view of this the Apex Court allowed interest for the period for which it was declined. On behalf of the Union of India it was submitted that in the instant case it is not an act of the Court, but the claimant being not certain about his entitlement made an application to the Court, inter alia, requesting to stay the proceedings, with a further condition that he would not claim the amount of interest and under these circumstances the interest was denied and, thereforee, the claimant is not entitled to claim any interest.
26. In view of what we have discussed hereinabove, we hold that the principle laid down in the case of Union of India v. Rajiv Gupta (supra) for payment of interest during the period the proceedings remained stayed at the instance of the claimant with the statement that he shall not claim interest during the period of stay, interest is required to be granted is not in consonance with law. This Court is of the opinion that when a claimant requested the Court to stay the proceedings with the statement that the party shall not claim any interest during the period of stay, the party cannot claim any interest for such period.
27. In view of what is discussed hereinabove, appeal deserves to be dismissed with no order as to cost. Ordered accordingly.