Shankar @ Vishwambhar S/O Kacchiram Waghmare and Smt. Kantabai @ Nalini W/O Damodhar Shyamkule Vs. Western Coalfields Ltd. Through Its General Manager - Court Judgment

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property - land acquisition - compensation - award of interest on compensation amount - sections 9, 10 and 17(3) of coal bearing areas (acquisition and development act), 1957 - appellant-claimant's land was acquired by respondent under coal bearing areas act and compensation in respect of same was awarded - dissatisfied with the amount of compensation awarded, appellant-claimants made a reference before tribunal which enhanced the compensation amount - however, appellant- claimants was still not satisfied with the award on ground that tribunal had not awarded interest on compensation amount - hence, present appeal - whether appellant-claimants are entitled to interest on the amount of compensation from the date of notification under section 9 of the act till the date of actual payment of the compensation or deposit of the same - held, as soon as notification under section 9 of the act is published, the land is deemed to have vested with the government under section 10 of the said act - therefore, once a notification is issued, the claimant ceases to have any interest in the property, the respondent may or may not take possession - hence, the acquiring body cannot deprive the claimant of interest - it must, therefore, pay interest under section 17(3) of the coal bearing areas act from the date of notification under section 9 at 5% till the amount is actually deposited - appeal partly allowed. - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 4. i have heard the learned counsel for the appellants as well as the respondent. 9. (1) when the central government is satisfied, after considering the report, if any, made under section 8 that any land or any rights in or over such land should be acquired, a declaration shall be made by it to that effect [ and different declarations may be made from time to time in respect of different parcels of any land, or of rights in or over such land, covered by the same notification under sub-section (1) of section 7, irrespective of whether one report or different reports has or have been made (wherever required) under sub-section (2) of section 8]: [provided that no declaration in respect of any particulars land, or rights in or over such land, covered by a notification under sub-section (1) of section 7, issued after the commencement of the coal bearing area (acquisition and development) amendment and validation act, 1971, shall be made after the expiry of three years from the date of the said notification:c.l. pangarkar, j.1. all these appeals can be disposed of by a common judgment since the question involved in these appeals is identical.2. the owners, whose land has been acquired under coal bearing areas (acquisition and development act), 1957, have come up in appeal.3. the facts are as follows:the land of all the appellants has been acquired under the coal bearing areas act. notification under section 4 of the act for the acquisition was issued in 1990 and notification under section 9 was issued in the year 1995. the land acquisition officer under the act determined the compensation. since the compensation awarded was found to be inadequate, a reference was sought to the tribunal constituted under the coal bearing areas act. the tribunal enhanced the compensation. different amount of compensation was determined in respect of each claimant. the claimants, however, feel aggrieved by the fact that the tribunal had awarded inadequate compensation and had not awarded interest under section 17(3) of the act.4. i have heard the learned counsel for the appellants as well as the respondent.5. learned counsel for the appellant, however, restricted his submission with regard to the interest payable under section 17(3) of the act and the date from which it is payable. as far as quantum of compensation is concerned, that is not challenged.6. shri charde, learned counsel for the appellants submits that each of the claimants was entitled to interest on the amount of compensation from the date of notification under section 9 of the act till the date of actual payment of the compensation or deposit of the same. shri mehadia, learned counsel for the respondent submits that the respondent is not bound to pay any interest since the possession is not delivered to the respondent. he submits that interest can be awarded only when respondent takes possession and does not pay the compensation.7. in the context, sections 9 and 10 of the coal bearing areas act will have to be looked into. section 9 and 10 reads as follows:9. (1) when the central government is satisfied, after considering the report, if any, made under section 8 that any land or any rights in or over such land should be acquired, a declaration shall be made by it to that effect [ and different declarations may be made from time to time in respect of different parcels of any land, or of rights in or over such land, covered by the same notification under sub-section (1) of section 7, irrespective of whether one report or different reports has or have been made (wherever required) under sub-section (2) of section 8]:[provided that no declaration in respect of any particulars land, or rights in or over such land, covered by a notification under sub-section (1) of section 7, issued after the commencement of the coal bearing area (acquisition and development) amendment and validation act, 1971, shall be made after the expiry of three years from the date of the said notification:[provided further that, where a declaration] relates to any land or to any rights in or over land belonging to a state government which has or have not been leased out, no such declaration shall be made except after previous consultation with the state government.(2) [every declaration] shall be published jin the official gazette, and(a) in any case where land is to be acquired, shall state the district or other territorial division in which the land is situate and its approximate area; and, where a plan shall have been made of the land, the place where such plan may be inspected;(b) in any case where rights in or over such land are to be acquired, shall state the nature and extent of the rights in addition to the matters relating to the land specified in clause (a); and a copy of every such declaration shall be sent to the state government concerned.10. (1) on the publication in the official gazette of the declaration under section 9, the land or the rights in or over the land, as the case may be, shall vest absolutely in the central government [ free from all encumbrances].thus, it is clear that as soon as notification under section 9 of the act is published, the land is deemed to have vested in the government under section 10 of the said act. under the land acquisition act, 1894, the land vests under section 16 only after possession is taken. in the circumstances, the delivery of possession is irrelevant in cases under the coal bearing areas act. the land instantly vests in the government on publication of the notification under section 9 of the act. the moment it vests in government, the owner thereof is divested of the title. even otherwise, i would say that the claimants would certainly be entitled to claim interest, from the date of notification. i proceed to give reasons as to why the respondent would be liable to pay interest on delayed payment. the compensation becomes payable the moment the owner is divested of title that is the date of notification. once a notification is issued, the claimant ceases to have any interest in the property, the respondent may or may not take possession. even though the respondent may not take possession, the claimant can neither cultivate the land nor sale it. an occasion may arise for claimant to incur expenditure to meet the expenses for marriage or some medical treatment. he may not be able to raise money for such marriage or medical treatment without selling the land. once notification of acquisition is issued, he is prohibited from selling the land. the government may defer taking possession for a long time. the question would be what should the claimant do from the date of notification till possession is taken. he cannot raise money by sale nor the acquiring body pays him the money. in such cases, he may be required to obtain loan and pay interest to the creditor. it is for this reason that even if acquiring body may not take possession, it would still be bound to pay interest on delayed payment. the claimant cannot even cultivate the land because that would be too risky a proposition. he may sow a crop in the land and midway the acquiring body may take possession. that would cause huge loss to the owner/claimant. for these reasons, the acquiring body cannot deprive the claimant of interest. it must, therefore, pay interest under section 17(3) of the coal bearing areas act from the date of notification under section 9 at 5% till the amount is actually deposited.8. the appeals are, therefore allowed partly.the respondent shall, therefore, calculate the interest at five per cent on the amount of compensation determined initially, from date of notification till date of actual payment or deposit. the said difference be paid to claimants within three months. if the amount of difference is not paid within the time stipulated, the respondent would be liable to pay interest at six per cent instead of five per cent.no order as to costs.