S. Balasubramanian rep. by Power of Attorney Agent Gomathinayagam Vs. Land Acquisition Officer and Assistant/Sub Collector, Collector's Officer, Tirunelveli, Tirunelveli Kattabomman District (01.03.2001 - MADHC) - Court Judgment

Excerpt:
property - acquisition - sections 4 (1), 6 (1), 23 28 and 34 of land acquisition act, 1894 and section 1 of interest act, 1978 - petitioner's land were acquired by government - land acquisition officer fixed market value at rate of rs. 18000 per acre and awarded total compensation of rs. 236072 - in appeal before sub judge determined market value at rate rs. 25000 per acre - petitioner claimed market value of land at rate of rs. 30000 - aggrieved by award both parties filed appeal - property taken in possession in year 1976 and notification issued in year 1990 - petitioner entitled to interest on market value of land in year 1976 - petitioner entitled to 30% solatium on rs. 10000 per acre but from date of notification entitled to interest and solatium on market value of land at rate of rs. 25000 - award given by sub-judge to petitioner justified - judgment of sub-judge modified to some extent in favour of respondent - appeal partly allowed. - - 1. the claimant as well as the land acquisition officer, aggrieved by the common judgment rendered under the land acquisition act, have filed the above appeals. 3. not being satisfied with the enhancement and seeking for a further enhancement to rs. no records have been produced to show that there was any other notification under section 4(1) prior to 30.5.1990. the sub-court also has given a finding that the land was taken possession of on 1.7.1976. however, the question to be considered is whether the claimant is entitled to compensation on the market value on the date of publication of the notification under section 4(1) or from the date of taking possession, prior to the notification under section 4(1). the award officer as well as the court below has determined the compensation on the date of the notification under section 4(1), i. the claimant cannot get the market value fixed in the year 1990 and seek other benefits such as additional amount under section 23(1a) as well as interest from 1976 on the market value of the year 1990. we do not find any power either to the land acquisition officer or to the court to determine the amount of compensation for the purpose of awarding compensation anterior to the notification under section 4(1). if possession was taken not under the land acquisition act, especially when the land acquisition officer has stated that the land was taken over by the public works department with the consent of the land owners and that they appear not to have objected to the taking possession of the land being given to the public works department for formation of the water tank, they will be entitled for compensation for the deprivation of their land, but not under the land acquisition act. once the conditions under sections 28 and 34 of the act are satisfied, award of interest is consequential and automatic.orderp. shanmugam, j.1. the claimant as well as the land acquisition officer, aggrieved by the common judgment rendered under the land acquisition act, have filed the above appeals.2. an extent of 11.38.0 hectares of dry lauds in survey no.918/3 part etc. of mutliur village, palayankottai taluk, tirunelveli kattabomman district were acquired for the formation of a new water tank. the notification under section 4(1) of the land acquisition act, 1894 (hereinafter referred to as the act) was published on 30.5.1990. the land acquisition officer, by award no. 1 of 1993 dated 30.4.1993, determined the compensation for the various claimants. the lands in question that were acquired are confined to 2.23.0 hectares in s.no.926/1 etc. before the land acquisition officer, one thiru gomathinayagam, general power of attorney of the claimant s. balasubramanian is said to have given a statement on his behalf stating that he has no objection to the proposed acquisition, but requested to make early payment of compensation for the proposed acquisition of the lands. accordingly, the land acquisition officer, as far as these lands are concerned, fixed a total compensation of rs.2,36,072 including 30% solatium and 12% interest on the land value, from 20.6.1990 to 30.4.1993. the market value was determined at the rate of rs.18,000 per acre by the officer. aggrieved by this, the claimant filed a statement dated 22.8.1994 for a reference under section 18 of the act seeking to determine the market value at rs.30,000 per acre and also claiming that possession of the lands was taken long prior to the notification under section 4(1) of the act, i.e. on 1.5.1975. on reference, the learned sub judge, in l.a.o.p no. 85 of 1994, fixed the market value at the rate of rs. 25, 000 per acre ( rs. 61,750 per hectare). he has also awarded 9% interest from 1.7.1976, the alleged date of taking possession of the land, for a period of one year and 15% interest thereafter.3. not being satisfied with the enhancement and seeking for a further enhancement to rs.30,000 per acre, the claimant has filed the appeal a.s. no. 63 of 1996. the land acquisition officer has also questioned the judgment in reference to the market value, solatium and interest from the alleged date of taking possession of the lands in a.s. no. 269 of 1996 .4. learned counsel for the claimant mr.s. jayaraman made two submissions. as far as the merits in fixation of the market value are concerned, according to him, the disallowance of the claim of rs.30,000 peracre instead of rs.25,000 is erroneous. according to him, the learned judge having accepted ex.a.1, erred in deducting rs.6,000 towards expenses for the formation of the water tank. on the second point, it is submitted that the learned judge foiled to give the benefit under section 23(1a) of the act from the date of taking possession of the land till realisation of the entire amount, but has given only from the date of the notification under section 4(1) of the act.5. learned additional government pleader mr. v. ravi submitted that the claimant, after having accepted the compensation before the land acquisition officer and having only sought for early payment of compensation only, the learned judge erred in accepting ex.c.1 sale deed without examining either the vendor or the vendee in order to prove the sale deed. according to him, the land acquisition officer has considered the document and rejected the same on the ground that the land covered under ex.c.1 sale deed is more than one kilometre away and hence, its value does not reflect the real market value, whereas, he has accepted the data sale deed, out of the 31 sates in reference to 16 cents of land, namely document no.2745 dated 13.11.1989, which worked out to rs.18,000 per acre or rs.44,450 per hectare (ex.b.2). according to him, the enhancement of compensation from rs.180 per cent to rs.250 per cent is exorbitant and without considering the relevant document.6. on the interest point, the learned additional government pleader submitted that the claimant is entitled interest only from the date of the notification under section 4(1) and not from an earlier date. there are no records to show that there was any previous notification under the land acquisition act. if the claimant wants compensation from the year 1975, he cannot base that claim on the assumed market price of the year 1990. he can claim compensation with reference to the actual market price as on 1.7.1975 with 30% solatium and interest allowable as per sections 28 and 34 of the act. he further submitted that the claimant cannot seek for 12% additional value as per section 23(1a) as it is not admissible for the prior entry cases. both the counsel relied on the rulings in support of their contentions,7. we have heard the counsel for both sides, gone through the records and considered matter carefully.8. of the total extent of 11.38 hectares acquired for the formation of water tank, the claimant, who claims to be the owner of 3.23 hectares, alone has sought for a reference and an enhanced compensation. the reference court has enhanced the compensation from rs.180 per cent to rs.250 per cent by accepting the ex.a.1 sale deed value, which works out at the rate of rs.30,052 per acre and rejecting a,2 data sale deed. the learned judge deducted rs.6,000 towards development charges and fixed the market value at rs.25,000 per acre. though the vendor and the vendee have not been examined, the said document formed part of consideration by the award officer, but rejected on the ground that it was located one kilometre away.considering the facts and circumstances, the value having been determined on the basis of the sale deed dated 10.11.1989, the market value as determined by the reference court is reasonable and can be accepted as representing the market value as on the notification under section 4(1) of the act, i.e. 30.5.1990. the claimant, for the first time, in his reference application, has stated that the land was taken possession of on 1.5.1975, much prior to the notification under section 4(1) dated 30.5.1990. in the counter filed by the land acquisition officer, it is submitted that the lands were already taken over by the public works department with the consent of the land owners and that the tank was formed. but, it is also stated that the land acquisition proceedings were initiated for the lands in the year 1990 only. no records have been produced to show that there was any other notification under section 4(1) prior to 30.5.1990. the sub-court also has given a finding that the land was taken possession of on 1.7.1976. however, the question to be considered is whether the claimant is entitled to compensation on the market value on the date of publication of the notification under section 4(1) or from the date of taking possession, prior to the notification under section 4(1). the award officer as well as the court below has determined the compensation on the date of the notification under section 4(1), i.e. 30.5.1990. however, the reference court has awarded interest under section 34 from the date of taking possession, i.e. from 1.7.1976 at the rate of 9% for the first year and 15% from 1.7.1977. as rightly pointed out by the learned additional government pleader, if the claimant wants compensation from the year 1975, then he can claim the value which prevailed only in 1975 with 30% solatium and interest admissible as per sections 28 and 34 of the act. the claimant cannot get the market value fixed in the year 1990 and seek other benefits such as additional amount under section 23(1a) as well as interest from 1976 on the market value of the year 1990. we do not find any power either to the land acquisition officer or to the court to determine the amount of compensation for the purpose of awarding compensation anterior to the notification under section 4(1). if possession was taken not under the land acquisition act, especially when the land acquisition officer has stated that the land was taken over by the public works department with the consent of the land owners and that they appear not to have objected to the taking possession of the land being given to the public works department for formation of the water tank, they will be entitled for compensation for the deprivation of their land, but not under the land acquisition act. it is pointed out that as a matter of fact, the claimant has filed a writ petition no.2813 of 1978 seeking for a mandamus to direct the respondents to pay compensation for the lands. a learned judge of this court, by order dated 31.7.1978, dismissed the writ petition with an observation that if there is any unreasonable delay in the acquisition proceedings, the petitioner could come to this court at a later date. the petitioner has not objected to the notification under section 4(1) and during the enquiry, he has conceded for the compensation awarded on the market value on the date of the notification under section 4(1). having accepted the fixation of market value on the date of the notification undersection 4(1), it is not open to the claimant to claim interest and other benefits from an anterior date, i.e. 1976 and as per the 1990 market value.9. in astekaar naganatha rao v. assistant commissioner and land acquisition officer, , the supreme court held that the claimants are entitled to interest at 9% for one year from the date of notification and on expiry thereof, at the rate of 15% till the date of deposit. in that case, the lands were taken possession of on 31.12.1942: however, the notification under section 4(1) of the act was published in february, 1983. it was contended that no amount as rent has been paid from the year 1942. the question that arose for consideration was from what date the claimants were entitled to interest. the supreme court held that the respondents were liable to pay rent payable from the date of taking possession till the date of the notification as per the direction and settlement. since notification under section 4(1) of the act was published in the year 1983, it was held that the claimants were entitled to interest at 9% for one year and on expiry thereof, they were entitled to 15% from the year 1984. in collector of puri v. hrushikesh mitra, , a division bench of the orissa high court lias held that legally, the claimants can claim compensation only from the date on which the proceedings under the land acquisition act commenced and possession of the property under the act must also be deemed to have been taken only from that date and interest can be only from that date by virtue of section 34 of the act. however, in that case, since the deputy collector himself allowed interest from the date of acquisition, the court did not interfere with the award.10. in shree vijay cotton and oil mills limited v. state of gujarat, , the supreme court held as follows:'there is no dispute that under the act, the claimant is entitled to compensation at the rate of the market value of the land under the date of 4(1) notification. section 23(1) of the act enumerates the matters which are to be taken into consideration in determining the compensation. on reference under section 18 of the act, the parties go to trial before the court primarily on the issue of determination of market value of the land. so far as the award of interest is concerned, this is never an issue between the parties. once the conditions under sections 28 and 34 of the act are satisfied, award of interest is consequential and automatic.' in that case, there was no notification under section 4(1) at all. but, the declaration under section 6(1) was treated as composite notification under section 4(1) and market value was determined on that day. in those circumstances, their lordships held that the payment of interest is not dependent on any claim and when once section 34 is attracted, it is obligatory to pay interest and accordingly, it was held in that case that the appellant was entitled to interest on the compensation amount for the period from the year 1949 to 1955. in revenue divisional officer, guntur v. vasireddy, , it was held that interest is payable on equitable principles by way of compensation for deprivation of possession without payment of thevalue thereof. their lordships held that in order to give effect to that principle completely, perhaps the logical and proper course is to calculate the value at the end of each year and award interest thereon upto the date of payment. that result is achieved in effect by grant of interest on the value as on the date of acquisition, that is 1956, which is somewhere midway between taking possession and the award of compensation, and calculating interest at 6% on that day. in that case, a question arose as to whether the claimants are entitled to interest under the act or as on 30.11.1950, when the municipality is said to have taken possession not under the act, but by private negotiation or from the date of notification under section 4(1) of the act, namely 12.4.1956 or from the date of making the award namely 31.3.1958 or from any subsequent date under the act.11. in smti. swarnamayi v. land acquisition collector, , a division bench of the orissa high court has held that the proper compensation means only such compensation as is provided for under the land acquisition act and such compensation necessarily implies the statutory interest permissible under section 34 of the act. in cases where the owner is deprived of his possession of certain property without payment of compensation and money, the owner undoubtedly loses both his interest on the money as also his possession. justice requires that the owner should not lose both and therefore, to compensate his property is either to pay him immediately the consideration money or to pay interest on the same until the date of payment. in assistant commissioner gadag v. mathapathi basavannewwa, , the supreme court held that if possession is taken earlier and notification issued later but the award is subsequently made, the owner is entitled to compensation from the date of taking possession till the date of the award. the expression whichever is earlier in section 23(1a) has to be construed in that backdrop and the claimant would be entitled to additional amount from the date of taking possession. according to the supreme court, the object of introducing section 23(1a) is to mitigate the hardship caused to the owner of the land who has been' deprived of the enjoyment of his land by taking possession from him and using it for public purpose, because of considerable delay in making the award offering payment thereof. to obviate such hardship, section 23(1a) was introduced and the legislature envisaged that the owner of the land is entitled to 12 per cent per annum additional amount on the market value for a period commencing on and from the date of publication of the notification under section 4(1) of the act. in revenue divisional officer v. venkatarama ayyar, a.i.r. 1936 mad. 199, a division bench of our high court has held that the right to receive interest takes the place of right to retain possession. the foundation of section 34 of the act is that when compensation is payable and has not been paid, interest for non-payment must be given from the date of taking possession. their lordships followed the decision of the bombay high court, in vallabdas narainji v. divisional officer, bandra a.i.r. 1929 p.c. 163, wherein it was held that the appellant was entitled to compensation for occupation of the lands when acquisition was before the notification, byaward of interest on the value of the land computed from the date when the government lakes possession.12. in satinder singh v. uhrao singh, , their lordships considered the question whether the amount, of compensation awarded for the property acquired under the east punjab requisition of immovable property (temporary powers) act should carry a reasonable rate of interest from the date when the claimants lost possession of the properties. their lordships observed as follows :'what then is the contention raised by the claimants? they contended that their immovable property has been acquired by the state and the state has taken possession of it. thus they have been deprived of the right to receive the income from the property and there is a time lag between the taking of the possession by the state and the payment of compensation by it to the claimants. during this period they have been deprived of the income of the property and they have not been able to receive interest from the amount of compensation. stated broadly the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the state. .... it wouldthus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. .....when a claim for payment ofinterest is made by a person whose immovable properly has been acquired compulsorily he is not making claim for damages properly or technically so called: he is basing his claim on the general rule that if he is deprived of his land he would be put in possession of compensation immediately, if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation..... we have already seen that the right toreceive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right, and so, the proviso to section 1 of the interest act saves the said right. we must accordingly hold that the high court was in error in rejecting the claimants' case for the payment of interest on compensation amount, and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimant's lands to the date on which it deposited or paid the amount of compensation to them.' 13. from the above decisions, it is clear that the claimants are entitled to interest from the date of taking possession for deprivation of the right to their property. at the same time, it has been held that the interest must represent their probable loss of income. in this case, the property was said to have been taken possession of in the year 1976, whereas the notification under section 4(1) was of the year 1990. therefore, the value that is fixed as compensation is on the basis of the year 1990. the market value of the land in the year 1976 could not have been the same as that of the year 1990. therefore, the claimants are entitled to interest only on the market value of the land in the year 1976 inasmuch as 15 years have gone by from the date of taking possession. if the claimants are to be given interest at the rate of 6%, till the year 1984, 9% from the year 1984 and 15% from the year 1985, besides 12% from the year 1984 as additional amount, the claimants will be making a profit out of this compensation.14. we are not inclined to remand the matter for the purpose of fixing the market value of the land prevalent in the year 1976 or the rent or income that the land would have earned in the year 1976. learned counsel for the appellant prays that whatever be the value, the same may be decided by this court as the matter is pending from the year 1976, we cannot treat the award of the year 1993 for the purpose of claim under section 23(1 a), section 23(2) and section 34 of the act from the year 1976. that will lead to unrealistic compensation being given. practically, the lands were dry lands and were not cultivated. there are no records or evidence to fix the market value as prevailing in the year 1976. therefore, considering the value of the land at rs.30,050 per acre in the year 1-990, after giving due allowance for the 15 years, we fix the market value of the land for the purpose of awarding interest at rs.10,000 per acre and award interest at the rate of 6% from 1.7.1976 for one year, additional interest at the rate of 15% and interest under section 34 of the act at this rate, from 1.7.1977 to 30.5.1990. the constitution bench in k.s. paripoornan v. state of kerala, 1994 (5) s.c.c. 591 has held that section 23(1a) (additional amount) shall not apply to proceedings initiated prior to the commencement of the amending act on 24.9.1984. the claimants are not entitled to additional amount. but, they shall be entitled to 30% solatium on rs.10,000 per acre. from the date of notification under section 4(1), the claimant shall be entitled to interest, additional interest, solatium and additional amount for the value of the land at rs.25,000 per acre.15. the liability to pay interest is only on the excess amount of compensation paid under section 23(1) of the act and not on the amount, already determined by the land acquisition officer under section 11 and paid or deposited. the claimant/claimants are not entitled to interest on solatium under section 23(2) or on the additional amount under section 23(1a). similarly, no solatium is payable on additional amount as held by the supreme court in premnath kapoor v. national fertiliser corporation of india limited, 1996 (2) s.c.c. 711, tehri hydro development corporation, , state of haryana v. joginder singh, and yadav rao p. pathade v. state of maharashtra, , the question whether solatium has to be considered as a component of compensation and whether interest can be paid thereon has been referred to a larger bench by the supreme court in kapurchand v. state of himachal pradesh, . therefore, the claimant/claimants shall be entitled to interest on the basis of the judgment that will be rendered by the supreme court in this case, without seeking further amendment to the decree in case the point is decided in their favour.16. for the above reasons, the government appeal a.s.no.269 of 1996 is allowed to extent indicated. the appeal filed by the claimant a.s.no.63 of 1996 is dismissed. no costs. consequently, the connected c.m.ps. are closed.

Judgment:
ORDER

P. Shanmugam, J.

1. The claimant as well as the Land Acquisition Officer, aggrieved by the common judgment rendered under the Land Acquisition Act, have filed the above appeals.

2. An extent of 11.38.0 hectares of dry lauds in Survey No.918/3 Part etc. of Mutliur Village, Palayankottai Taluk, Tirunelveli Kattabomman District were acquired for the formation of a new Water Tank. The notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was published on 30.5.1990. The Land Acquisition Officer, by Award No. 1 of 1993 dated 30.4.1993, determined the compensation for the various claimants. The lands in question that were acquired are confined to 2.23.0 hectares in S.No.926/1 etc. Before the Land Acquisition Officer, one Thiru Gomathinayagam, General Power of Attorney of the claimant S. Balasubramanian is said to have given a statement on his behalf stating that he has no objection to the proposed acquisition, but requested to make early payment of compensation for the proposed acquisition of the lands. Accordingly, the Land Acquisition Officer, as far as these lands are concerned, fixed a total compensation of Rs.2,36,072 including 30% solatium and 12% interest on the land value, from 20.6.1990 to 30.4.1993. The market value was determined at the rate of Rs.18,000 per acre by the Officer. Aggrieved by this, the claimant filed a statement dated 22.8.1994 for a reference under Section 18 of the Act seeking to determine the market value at Rs.30,000 per acre and also claiming that possession of the lands was taken long prior to the notification under Section 4(1) of the Act, i.e. on 1.5.1975. On reference, the learned Sub Judge, in L.A.O.P No. 85 of 1994, fixed the market value at the rate of Rs. 25, 000 per acre ( Rs. 61,750 per hectare). He has also awarded 9% interest from 1.7.1976, the alleged date of taking possession of the land, for a period of one year and 15% interest thereafter.

3. Not being satisfied with the enhancement and seeking for a further enhancement to Rs.30,000 per acre, the claimant has filed the appeal A.S. No. 63 of 1996. The Land Acquisition Officer has also questioned the judgment in reference to the market value, solatium and interest from the alleged date of taking possession of the lands in A.S. No. 269 of 1996 .

4. Learned counsel for the claimant Mr.S. Jayaraman made two submissions. As far as the merits in fixation of the market value are concerned, according to him, the disallowance of the claim of Rs.30,000 peracre instead of Rs.25,000 is erroneous. According to him, the learned Judge having accepted Ex.A.1, erred in deducting Rs.6,000 towards expenses for the formation of the water tank. On the second point, it is submitted that the learned Judge foiled to give the benefit under Section 23(1A) of the Act from the date of taking possession of the land till realisation of the entire amount, but has given only from the date of the notification under Section 4(1) of the Act.

5. Learned Additional Government Pleader Mr. V. Ravi submitted that the claimant, after having accepted the compensation before the Land Acquisition Officer and having only sought for early payment of compensation only, the learned Judge erred in accepting Ex.C.1 sale deed without examining either the vendor or the vendee in order to prove the sale deed. According to him, the Land Acquisition Officer has considered the document and rejected the same on the ground that the land covered under Ex.C.1 sale deed is more than one kilometre away and hence, its value does not reflect the real market value, whereas, he has accepted the data sale deed, out of the 31 sates in reference to 16 cents of land, namely document No.2745 dated 13.11.1989, which worked out to Rs.18,000 per acre or Rs.44,450 per hectare (Ex.B.2). According to him, the enhancement of compensation from Rs.180 per cent to Rs.250 per cent is exorbitant and without considering the relevant document.

6. On the interest point, the learned Additional Government Pleader submitted that the claimant is entitled interest only from the date of the notification under Section 4(1) and not from an earlier date. There are no records to show that there was any previous notification under the Land Acquisition Act. If the claimant wants compensation from the year 1975, he cannot base that claim on the assumed market price of the year 1990. He can claim compensation with reference to the actual market price as on 1.7.1975 with 30% solatium and interest allowable as per Sections 28 and 34 of the Act. He further submitted that the claimant cannot seek for 12% additional value as per Section 23(1A) as it is not admissible for the prior entry cases. Both the counsel relied on the rulings in support of their contentions,

7. We have heard the counsel for both sides, gone through the records and considered matter carefully.

8. Of the total extent of 11.38 hectares acquired for the formation of water tank, the claimant, who claims to be the owner of 3.23 hectares, alone has sought for a reference and an enhanced compensation. The Reference Court has enhanced the compensation from Rs.180 per cent to Rs.250 per cent by accepting the Ex.A.1 sale deed value, which works out at the rate of Rs.30,052 per acre and rejecting A,2 data sale deed. The learned Judge deducted Rs.6,000 towards development charges and fixed the market value at Rs.25,000 per acre. Though the vendor and the vendee have not been examined, the said document formed part of consideration by the Award Officer, but rejected on the ground that it was located one kilometre away.Considering the facts and circumstances, the value having been determined on the basis of the sale deed dated 10.11.1989, the market value as determined by the Reference Court is reasonable and can be accepted as representing the market value as on the notification under Section 4(1) of the Act, i.e. 30.5.1990. The claimant, for the first time, in his reference application, has stated that the land was taken possession of on 1.5.1975, much prior to the notification under Section 4(1) dated 30.5.1990. In the counter filed by the Land Acquisition Officer, it is submitted that the lands were already taken over by the Public Works Department with the consent of the land owners and that the tank was formed. But, it is also stated that the land acquisition proceedings were initiated for the lands in the year 1990 only. No records have been produced to show that there was any other notification under Section 4(1) prior to 30.5.1990. The Sub-court also has given a finding that the land was taken possession of on 1.7.1976. However, the question to be considered is whether the claimant is entitled to compensation on the market value on the date of publication of the notification under Section 4(1) or from the date of taking possession, prior to the notification under Section 4(1). The Award Officer as well as the court below has determined the compensation on the date of the notification under Section 4(1), i.e. 30.5.1990. However, the reference court has awarded interest under Section 34 from the date of taking possession, i.e. from 1.7.1976 at the rate of 9% for the first year and 15% from 1.7.1977. As rightly pointed out by the learned Additional Government Pleader, if the claimant wants compensation from the year 1975, then he can claim the value which prevailed only in 1975 with 30% solatium and interest admissible as per Sections 28 and 34 of the Act. The claimant cannot get the market value fixed in the year 1990 and seek other benefits such as additional amount under Section 23(1A) as well as interest from 1976 on the market value of the year 1990. We do not find any power either to the Land Acquisition Officer or to the court to determine the amount of compensation for the purpose of awarding compensation anterior to the notification under Section 4(1). If possession was taken not under the Land Acquisition Act, especially when the Land Acquisition Officer has stated that the land was taken over by the Public Works Department with the consent of the land owners and that they appear not to have objected to the taking possession of the land being given to the Public Works Department for formation of the water tank, they will be entitled for compensation for the deprivation of their land, but not under the Land Acquisition Act. It is pointed out that as a matter of fact, the claimant has filed a Writ Petition No.2813 of 1978 seeking for a mandamus to direct the respondents to pay compensation for the lands. A learned Judge of this Court, by order dated 31.7.1978, dismissed the writ petition with an observation that if there is any unreasonable delay in the acquisition proceedings, the petitioner could come to this court at a later date. The petitioner has not objected to the notification under Section 4(1) and during the enquiry, he has conceded for the compensation awarded on the market value on the date of the notification under Section 4(1). Having accepted the fixation of market value on the date of the notification underSection 4(1), it is not open to the claimant to claim interest and other benefits from an anterior date, i.e. 1976 and as per the 1990 market value.

9. In Astekaar Naganatha Rao v. Assistant Commissioner and Land Acquisition Officer, , the Supreme Court held that the claimants are entitled to interest at 9% for one year from the date of notification and on expiry thereof, at the rate of 15% till the date of deposit. In that case, the lands were taken possession of on 31.12.1942: however, the notification under Section 4(1) of the Act was published in February, 1983. It was contended that no amount as rent has been paid from the year 1942. The question that arose for consideration was from what date the claimants were entitled to interest. The Supreme Court held that the respondents were liable to pay rent payable from the date of taking possession till the date of the notification as per the direction and settlement. Since notification under Section 4(1) of the Act was published in the year 1983, it was held that the claimants were entitled to interest at 9% for one year and on expiry thereof, they were entitled to 15% from the year 1984. In Collector of Puri v. Hrushikesh Mitra, , a Division Bench of the Orissa High Court lias held that legally, the claimants can claim compensation only from the date on which the proceedings under the Land Acquisition Act commenced and possession of the property under the Act must also be deemed to have been taken only from that date and interest can be only from that date by virtue of Section 34 of the Act. However, in that case, since the Deputy Collector himself allowed interest from the date of acquisition, the court did not interfere with the award.

10. In Shree Vijay Cotton and Oil Mills Limited v. State of Gujarat, , the Supreme Court held as follows:

'There is no dispute that under the Act, the claimant is entitled to compensation at the rate of the market value of the land under the date of 4(1) notification. Section 23(1) of the Act enumerates the matters which are to be taken into consideration in determining the compensation. On reference under Section 18 of the Act, the parties go to trial before the court primarily on the issue of determination of market value of the land. So far as the award of interest is concerned, this is never an issue between the parties. Once the conditions under Sections 28 and 34 of the Act are satisfied, award of interest is consequential and automatic.'

In that case, there was no notification under Section 4(1) at all. But, the declaration under Section 6(1) was treated as composite notification under Section 4(1) and market value was determined on that day. In those circumstances, their lordships held that the payment of interest is not dependent on any claim and when once Section 34 is attracted, it is obligatory to pay interest and accordingly, it was held in that case that the appellant was entitled to interest on the compensation amount for the period from the year 1949 to 1955. In Revenue Divisional Officer, Guntur v. Vasireddy, , it was held that interest is payable on equitable principles by way of compensation for deprivation of possession without payment of thevalue thereof. Their Lordships held that In order to give effect to that principle completely, perhaps the logical and proper course is to calculate the value at the end of each year and award interest thereon upto the date of payment. That result is achieved in effect by grant of interest on the value as on the date of acquisition, that is 1956, which is somewhere midway between taking possession and the award of compensation, and calculating interest at 6% on that day. In that case, a question arose as to whether the claimants are entitled to interest under the Act or as on 30.11.1950, when the Municipality is said to have taken possession not under the Act, but by private negotiation or from the date of notification under Section 4(1) of the Act, namely 12.4.1956 or from the date of making the award namely 31.3.1958 or from any subsequent date under the Act.

11. In Smti. Swarnamayi v. Land Acquisition Collector, , a Division Bench of the Orissa High Court has held that the proper compensation means only such compensation as is provided for under the Land Acquisition Act and such compensation necessarily implies the statutory interest permissible under Section 34 of the Act. In cases where the owner is deprived of his possession of certain property without payment of compensation and money, the owner undoubtedly loses both his interest on the money as also his possession. Justice requires that the owner should not lose both and therefore, to compensate his property is either to pay him immediately the consideration money or to pay interest on the same until the date of payment. In Assistant Commissioner Gadag v. Mathapathi Basavannewwa, , the Supreme Court held that if possession is taken earlier and notification issued later but the award is subsequently made, the owner is entitled to compensation from the date of taking possession till the date of the award. The expression whichever is earlier in Section 23(1A) has to be construed in that backdrop and the claimant would be entitled to additional amount from the date of taking possession. According to the Supreme Court, the object of introducing Section 23(1A) is to mitigate the hardship caused to the owner of the land who has been' deprived of the enjoyment of his land by taking possession from him and using it for public purpose, because of considerable delay in making the award offering payment thereof. To obviate such hardship, Section 23(1A) was introduced and the Legislature envisaged that the owner of the land is entitled to 12 per cent per annum additional amount on the market value for a period commencing on and from the date of publication of the notification under Section 4(1) of the Act. In Revenue Divisional Officer v. Venkatarama Ayyar, A.I.R. 1936 Mad. 199, a Division Bench of our High Court has held that the right to receive interest takes the place of right to retain possession. The foundation of Section 34 of the Act is that when compensation is payable and has not been paid, interest for non-payment must be given from the date of taking possession. Their Lordships followed the decision of the Bombay High Court, in Vallabdas Narainji v. Divisional Officer, Bandra A.I.R. 1929 P.C. 163, wherein it was held that the appellant was entitled to compensation for occupation of the lands when acquisition was before the notification, byaward of interest on the value of the land computed from the date when the Government lakes possession.

12. In Satinder Singh v. Uhrao Singh, , their Lordships considered the question whether the amount, of compensation awarded for the property acquired under the East Punjab Requisition of Immovable Property (Temporary Powers) Act should carry a reasonable rate of interest from the date when the claimants lost possession of the properties. Their lordships observed as follows :

'What then is the contention raised by the claimants? They contended that their immovable property has been acquired by the State and the State has taken possession of it. Thus they have been deprived of the right to receive the income from the property and there is a time lag between the taking of the possession by the State and the payment of compensation by it to the claimants. During this period they have been deprived of the income of the property and they have not been able to receive interest from the amount of compensation. Stated broadly the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. .... It wouldthus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. .....When a claim for payment ofinterest is made by a person whose immovable properly has been acquired compulsorily he is not making claim for damages properly or technically so called: he is basing his claim on the general rule that if he is deprived of his land he would be put in possession of compensation immediately, if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation..... We have already seen that the right toreceive interest in lieu of possession of immovable property taken away either by private treaty or by compulsory acquisition is generally regarded by judicial decisions as an equitable right, and so, the proviso to Section 1 of the Interest Act saves the said right. We must accordingly hold that the High Court was in error in rejecting the claimants' case for the payment of interest on compensation amount, and so we direct that the said amount should carry interest at 4% per annum from the date when respondent 2 took possession of the claimant's lands to the date on which it deposited or paid the amount of compensation to them.'

13. From the above decisions, it is clear that the claimants are entitled to interest from the date of taking possession for deprivation of the right to their property. At the same time, it has been held that the interest must represent their probable loss of income. In this case, the property was said to have been taken possession of in the year 1976, whereas the notification under Section 4(1) was of the year 1990. Therefore, the value that is fixed as compensation is on the basis of the year 1990. The market value of the land in the year 1976 could not have been the same as that of the year 1990. Therefore, the claimants are entitled to interest only on the market value of the land in the year 1976 inasmuch as 15 years have gone by from the date of taking possession. If the claimants are to be given interest at the rate of 6%, till the year 1984, 9% from the year 1984 and 15% from the year 1985, besides 12% from the year 1984 as additional amount, the claimants will be making a profit out of this compensation.

14. We are not inclined to remand the matter for the purpose of fixing the market value of the land prevalent in the year 1976 or the rent or income that the land would have earned in the year 1976. Learned counsel for the appellant prays that whatever be the value, the same may be decided by this court as the matter is pending from the year 1976, we cannot treat the Award of the year 1993 for the purpose of claim under Section 23(1 A), Section 23(2) and Section 34 of the Act from the year 1976. That will lead to unrealistic compensation being given. Practically, the lands were dry lands and were not cultivated. There are no records or evidence to fix the market value as prevailing in the year 1976. Therefore, considering the value of the land at Rs.30,050 per acre in the year 1-990, after giving due allowance for the 15 years, we fix the market value of the land for the purpose of awarding interest at Rs.10,000 Per acre and award interest at the rate of 6% from 1.7.1976 for one year, additional interest at the rate of 15% and interest under Section 34 of the Act at this rate, from 1.7.1977 to 30.5.1990. The Constitution Bench in K.S. Paripoornan v. State of Kerala, 1994 (5) S.C.C. 591 has held that Section 23(1A) (additional amount) shall not apply to proceedings initiated prior to the commencement of the Amending Act on 24.9.1984. The claimants are not entitled to additional amount. But, they shall be entitled to 30% solatium on Rs.10,000 per acre. From the date of notification under Section 4(1), the claimant shall be entitled to interest, additional interest, solatium and additional amount for the value of the land at Rs.25,000 per acre.

15. The liability to pay interest is only on the excess amount of compensation paid under Section 23(1) of the Act and not on the amount, already determined by the Land Acquisition Officer under Section 11 and paid or deposited. The claimant/claimants are not entitled to interest on solatium under Section 23(2) or on the additional amount under Section 23(1A). Similarly, no solatium is payable on additional amount as held by the Supreme Court in Premnath Kapoor v. National Fertiliser Corporation of India Limited, 1996 (2) S.C.C. 711, Tehri Hydro Development Corporation, , State of Haryana v. Joginder Singh, and Yadav Rao P. Pathade v. State of Maharashtra, , The question whether solatium has to be considered as a component of compensation and whether interest can be paid thereon has been referred to a larger Bench by the Supreme Court in Kapurchand v. State of Himachal Pradesh, . Therefore, the claimant/claimants shall be entitled to interest on the basis of the judgment that will be rendered by the Supreme Court in this case, without seeking further amendment to the decree in case the point is decided in their favour.

16. For the above reasons, the Government appeal A.S.No.269 of 1996 is allowed to extent indicated. The appeal filed by the claimant A.S.No.63 of 1996 is dismissed. No costs. Consequently, the connected C.M.Ps. are closed.