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CASE NO.:

Appeal (civil) 5515 of 1997

PETITIONER:

R.L. Jain (D) by LRs.

RESPONDENT:

DDA & Ors.

DATE OF JUDGMENT: 12/03/2004

BENCH:

S. Rajendra Babu , Dr. AR Lakshmanan & G.P. Mathur.

JUDGMENT:

JUDGMENT

G.P. MATHUR, J.

In view of conflict of opinion in two decisions of this Court, namely,

Shri Vijay Cotton & Oil Mills v. State of Gujarat 1991(1) SCC 262 and

Union of India v. Budh Singh & Ors. 1995 (9) SCC 233, the appeal has been

placed for hearing before this larger Bench and the question in issue is

whether in a case where possession is taken before the issuance of

notification under Section 4(1) of the Land Acquisition Act, the claimant

(owner of land) is entitled to interest for such anterior period in accordance

with Section 34 of the said Act.

2. The relevant facts may be noticed in brief. The Chief Commissioner,

Delhi, on behalf of the Delhi Administration, issued a preliminary

notification under Section 4(1) of the Land Acquisition Act (hereinafter

referred to as "the Act") on 13.11.1959 for acquisition of a large area of

34070 acres of land including 1 bigha 11 biswa area in khasra no.223 of

village Kharera for the planned development of Delhi. This was followed

by a declaration under Section 6 of the Act, which was published in the

Gazette on 11.10.1961. The dispute in the present appeal relates to

aforesaid plot bearing khasra no.223. Being an evacuee property, the said

plot was notified for being sold in public auction by the Ministry of

Rehabilitation and it appears that in the auction notice it was mentioned that

the same shall be out of the purview of the notification issued on 13.11.1959

under Section 4(1) of the Act for acquisition of the land. The original

appellant R.L. Jain purchased the said plot in the auction held on 8.4.1960

and a sale certificate was issued in his favour on 31.8.1961. In pursuance

of the notifications issued under Sections 4(1) and 6 of the Act, the

possession of plot no.223 was taken over by the Collector on 10.11.1961 and

was handed over to the Delhi Development Authority (for short "the

DDA"). The plot was included in Award No.1245 made by the Collector

on 30.12.1961 and compensation amount was determined. R.L. Jain

received the compensation amount under protest and sought reference to the

Court since he was dissatisfied with the amount of the compensation offered

and paid to him. The Collector thereafter made a reference to the Court

under Section 18 of the Act..

3. After considerable period of time, R.L. Jain filed Suit No.154 of 1965

impleading Union of India as the sole defendant seeking a declaration that

the proceedings taken for acquisition of plot bearing no.223 of village

Kharera, which had been purchased by him in public auction, were illegal as

it was stipulated in the auction notice that the said plot was not included in

the preliminary notification issued under Section 4(1) of the Act which was

published on 13.11.1959. After contest, the Sub-Judge First Class, Delhi

passed a decree on 12.4.1967 that the acquisition proceedings including

notification dated 11.10.1961 issued under Section 6 of the Act with regard

to the plot in dispute are null and void. The Union of India preferred an

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appeal being RCA No.59 of 1968 but the same was dismissed by Senior

Subordinate Judge, Delhi (with enhanced appellate powers) on 13.1.1969

and the judgment and decree dated 12.4.1967 of the Subordinate Judge was

affirmed. The matter rested there as it was not carried in second appeal

before the High Court.

4. As mentioned earlier in pursuance of the notifications issued under

Sections 4(1) and 6 of the Act, the possession of the plot in dispute had been

taken over by the Collector on 10.11.1961 and was handed over to the DDA

which commenced construction on the acquired land. R.L. Jain then filed

Suit No.421 of 1967 against Union of India and DDA for permanent

injunction restraining them from making any construction over the disputed

plot and from disposing of the same in any manner. During the pendency of

the suit an undertaking was given by the DDA that no construction would

be raised on the plot in dispute. However, the DDA proceeded with the

constructions and consequently the plaint was amended and relief of

mandatory injunction for removal of the construction was sought. The Sub-

Judge, Delhi decided the suit on 19.1.1980 and passed a decree for

demolition of the construction and the possession. The appeal (RCA

No.465 of 1980) preferred against the said judgment and decree was

dismissed by the Additional District Judge, Delhi on 18.3.1989 and the

decree for demolition and removal of the construction was affirmed. The

DDA preferred a second appeal (RSA No.71 of 1989) in Delhi High Court

which was summarily dismissed on 14.8.1991 and then Special Leave

Petition was filed in this Court. In order to save the demolition of the

building constructed over the plot in dispute, the appropriate authority issued

fresh notification under Section 4(1) of the Act for acquisition of the plot in

dispute on 9.9.1992 and the declaration made under Section 6(1) of the Act

was published on 8.9.1993. After noticing that the notifications under

Sections 4 and 6 had already been issued, the Special Leave Petition filed by

DDA was disposed of on 13.12.1993 with the following directions :

"Keeping in view the facts and circumstances of this case and

to do complete justice between the parties we are of the view

that it would not be appropriate to permit the demolition of the

flats which have already been constructed on the land in

dispute. We, therefore, direct that the compensation which

shall be determined under the land acquisition proceedings in

respect of the land in dispute shall be payable and paid to the

respondent \026 R.L. Jain or his nominee. Needless to say that

all offers and counter offers for settling the dispute which were

made before this Court, shall stand withdrawn and ineffective.

We direct that the land acquisition proceedings be expedited

and be completed preferably within six months from today.

We allow the appeal in the above terms. No costs."

The Collector thereafter made an award on 11.6.1994 for the plot in

dispute determining its market value as Rs.16,54,175/- and solatium at the

rate of 30% on the said amount as Rs.4,96,252/-. The Collector also

awarded interest from 10.11.1961 to 9.11.1962 at the rate of 9% amounting

to Rs.1,93,538/- and 10.11.1962 to 10.6.1994 (from the date of

dispossession till the date of the award) at the rate of 15% amounting to

Rs.1,01,86,839/-.

5. The award of the Collector was challenged by the DDA by filing

Writ Petition No.292 of 1995 which has been partly allowed by the High

Court by the impugned judgment and order dated 19.3.1997. The High

Court has held that the award of interest under Section 34 of the Act at the

rate of 9% p.a. w.e.f. 10.11.1961 to 9.12.1962 and then at the rate of 15%

p.a. from 10.11.1962 to 10.6.1994 is without jurisdiction and to that extent

the award has been set aside. The remaining part of the award i.e. for

market value of land and solatium has been upheld.

6. Shri Vijay Cotton & Oil Mills Ltd. v. State of Gujarat 1991 (1) SCC

262 has been decided by a Bench of two Judges. In this case the possession

of the land was taken over by the government on 19.11.1949 under an

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arrangement that suitable land of equal value will be given to the owner.

But, the government did not give any other alternative land and acquisition

proceedings were initiated whereunder the notification under Section 6(1) of

the Act was issued on 1.2.1955. The claimant was not satisfied with the

award made by the Collector and accordingly asked for a reference under

Section 18 of the Act. The District Judge determined the amount of

compensation for the acquired land but did not award any interest. The

owner of the land did not prefer any appeal against the award of the District

Judge before the High Court, but the State preferred an appeal challenging

enhancement in compensation. The claimant, then filed time barred cross

objection under Order 41 Rule 22 CPC along with an application for

condonation of delay. The application for condonation of delay was

dismissed with the result, the cross objection stood rejected as time barred.

It was contended on behalf of the claimant (owner of the land) that he was

entitled to interest with effect from 19.11.1949. The High Court took the

view that as the District Judge had not awarded interest for the period

claimed by the claimant and his cross objection having been rejected as time

barred, the claimant had no right to claim interest in the appeal preferred by

the State Government. The claimant then preferred an appeal in this Court

which modified the decree of the High Court by awarding interest. Paras 16

and 17 of the Report wherein the matter was dealt with read as under:

"16. \005\005\005\005..The interest to be paid under Section 34 and

also under Section 28 is of different character than the

compensation amount under Section 23(1) of the Act. Whereas

the interest, if payable under the Act, can be claimed at any

stage of the proceedings under the Act, the amount of

compensation under Section 23(1) which is an award-decree

under Section 26 is subject to the rules of Procedure and

Limitation. The rules of procedure are hand-maiden of justice.

The procedural hassle cannot come in the way of substantive

rights of citizens under the Act.

17. We do not, therefore, agree with the reasoning and the

findings reached by the High Court. We are of the opinion that

it was not necessary for the appellant-claimant to have filed

separate appeal/cross objections before the High Court for the

purposes of claiming interest under Section 28 or Section 34 of

the Act. He could claim the interest in the State appeal. The

fact that he filed cross-objections which were dismissed as time

barred, is wholly irrelevant."

7. The appeal preferred by the claimant was accordingly allowed and it

was held that he was entitled to interest on the compensation amount for the

period 19.11.1949 to 1.2.1955 in accordance with the provisions of the Act,

as they stood prior to amendment made by Act No. 68 of 1984.

8. In Union of India v. Budh Singh & Ors. (1995) 6 SCC 233 which has

also been decided by a Bench of two Judges, the possession of land was

taken on 15.3.1963 and the notification under Section 4(1) of the Act was

published on 16.11.1984. The award decree passed by the reference Court

attained finally. In execution proceedings the High Court passed an order

that in the event of default in payment of the amount within the stipulated

time, interest at the rate of 18 per cent per annum from the date of taking

possession shall be paid. In appeal before this Court the only question raised

was whether the owners of the land were entitled to interest at the rate of 18

per cent per annum from 15.3.1963, the date on which the possession was

taken, till 15.11.1984, preceding the date on which the notification under

Section 4(1) had been published. After analysis of the provisions of the Act

it was held that the Land Acquisition Act is a complete Code covering the

entire field of operation of the liability of the State to make payment of

interest and entitlement thereof by the owner when the land is taken over.

The court has no power to impose any condition to pay interest in excess of

the rate and the manner prescribed by the statute as well as for a period

anterior to the publication of notification under Section 4(1) of the Act. It

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was also held that the parameter for initiation of proceedings is the

publication of the notification under Section 4 (1) of the Act which would

give legitimacy to the State to take possession of the land in accordance with

the provisions of the Act and further any possession taken otherwise would

not be considered to be possession taken under the Act. The Bench went on

to hold that the Act being a self-contained code, the common law principles

of justice, equity and good conscience cannot be extended in awarding

interest, contrary to the provisions of the statute.

9. Shri Dushyant Dave, learned senior counsel for the appellant has

submitted that in Suit No. 154 of 1965 filed by the original appellant R.L.

Jain, a decree had been passed that the notification issued under Section 6 of

the Act on 11.10.1961 was null and void and the proceedings for acquisition

of land with regard to plot No. 223 of village Kharera were illegal and the

said decree became final in view of the dismissal of the appeal preferred by

Union of India. The earlier notifications issued under Section 4(1) and 6 of

the Act, therefore, became non est in the eyes of law but the possession of

the plot in dispute had been taken over by Union of India on 10.11.1961.

The fresh notification under Section 4(1) of the Act was issued on 9.9.1992.

Section 34 clearly lays down that when the amount of compensation is not

paid or deposited on or before taking possession of the land, the Collector

shall pay the amount awarded with interest thereon from the time of so

taking possession until it is paid or deposited. The appellant was

consequently entitled to interest from the date of taking possession, viz. from

10.11.1961 and the Collector had rightly included the interest component in

the award made by him. Learned counsel has submitted that language of

Section 34 and also of Section 28 is plain and unambiguous and, therefore,

no other view is possible. He has also submitted that in case it is held that

the owner of the land is not entitled to interest for the period anterior to

notification under Section 4(1) of the Act, it will be highly unjust and

inequitable. In support of his submission, he has placed reliance on

Inglewood Pulp and Paper Co. Ltd. v. New Brunswick Electric Power

Commission AIR 1928 PC 287, wherein it was held that on a contract for

sale and purchase of land it is the practice to require the purchaser to pay

interest on his purchase money from the date when he took possession. He

has also referred to The Revenue Divisional Officer Guntur v. Vasireddy

Rama Bhanu Bupal & Ors. AIR 1970 AP 262 (FB) wherein it was held that

possession taken even prior to acquisition proceedings and with the consent

of the owner would be possession of land under the Act and interest is

payable from the date of taking possession. Reliance has also been placed

upon Smt. Swarnamayi v. Land Acquisition Collector, AIR 1964 Orissa 113,

where having regard to Chapter XXVI Rule 3 of Land Acquisition Manual,

it was held that where possession was obtained in accordance with the

consent of the owner thereof before acquisition proceedings started, interest

from the date of taking over possession can be granted. Learned counsel has

lastly submitted that the view taken by this Court in Shri Vijay Cotton & Oil

Mills (supra) is the legally correct and equitable view and applying the

ratio of the said case, the award made by the Collector wherein the appellant

had been awarded interest from the date of taking over possession, was

perfectly correct and the High Court has erred in setting aside the interest

component.

10. Shri Mukul Rohtagi, learned Additional Solicitor General appearing

for the respondents has submitted that under the Scheme of the Act no event

prior to publication of notification under Section 4(1) of the Act can be taken

note of as any proceedings under the Act can commence only after

publication of the said notification. The market value of the land has to be

determined as on the date of issuance of preliminary notification under

Section 4(1) and therefore, the Collector or the Court cannot travel prior to

the said date. Both Sections 28 and 34 contemplate payment of interest

where possession is taken over under the Act after the notification under

Section 4(1) has been issued and compensation amount has not been paid

and not for any anterior period. The view taken in Union of India v. Budh

Singh (supra) it is submitted, represents the correct legal position which has

been reiterated in a recent decision in Smt. Lila Ghosh v. State of West

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Bengal JT 2003(9) SC 23.

11. In order to decide the question whether the provisions of Section 34

of the Act regarding payment of interest would be applicable to a case

where possession has been taken over prior to issuance of notification under

Section 4(1) of the Act it is necessary to have a look at the Scheme of the

Land Acquisition Act. Acquisition means taking not by voluntary

agreement but by authority of an Act of Parliament and by virtue of the

compulsory powers thereby conferred. In case of acquisition the property is

taken by the State permanently and the title to the property vests in the State.

The Land Acquisition Act makes complete provision for acquiring title over

the land, taking possession thereof and for payment of compensation to the

land owner. Part II of the Act deals with acquisition and the heading of

Section 4 is "Publication of preliminary notification and powers of officers

thereupon". Sub-section (1) of Section 4 provides that whenever it appears

to the appropriate government that land in any locality is needed or is likely

to be needed for any public purpose or for a company, a notification to that

effect shall be published in the Official Gazette and in two daily newspapers

circulating in that locality and the Collector shall cause public notice of the

substance of such notification to be given at convenient places in the said

locality. Sub-section (2) provides that thereupon it shall be lawful for any

officer either generally or specially authorised by such Government in this

behalf and for his servants and workmen, to enter upon and survey and take

levels of any land in such locality, to dig or bore in the sub-soil and to do all

other acts necessary to ascertain whether the land is adapted for such

purpose etc. etc. This provision shows that the officers and servants and

workmen of the government get the lawful authority to enter upon and

survey the land and to do other works only after the preliminary

notification under Section 4(1) has been published. Section 5-A enables a

person interested in any land which has been notified under Section 4 (1) to

file objection against the acquisition of the land and also for hearing of the

objection by the Collector. If the State Government is satisfied, after

considering the report, that any particular land is needed for public

purposes or for a company, it can make a declaration to that effect under

Section 6 of the Act and the said declaration has to be published in the

Official Gazette and in two daily newspapers and public notice of the

substance of such declaration has to be given in the locality. Thereafter the

Collector is required to issue notice to persons interested under Section 9 (1)

of the Act stating that the Government intends to take possession of the land

and that claims to compensation for all interests in such land may be made to

him. Section 11 provides for making of an award by the Collector of the

compensation which should be allowed for the land. Section 16 provides

that when the Collector has made an award under Section 11, he may take

possession of the land which shall thereupon vest absolutely in the

Government, free from all encumbrances. This provision shows that

possession of the land can be taken only after the Collector has made an

award under Section 11. Section 17 is in the nature of an exception to

Section 16 and it provides that in cases of urgency, whenever the

appropriate Government so directs, the Collector, though no such award has

been made, may, on the expiration of fifteen days from the publication of

the notice mentioned in Section 9 (1), take possession of any land needed for

a public purpose and such land shall thereupon vest absolutely in the

Government, free from all encumbrances. The urgency provision contained

in Section 17(1) can be invoked and possession can be taken over only after

publication of notification under Section 9(1) which itself can be done after

publication of notification under Sections 4(1) and 6 of the Act. Even here in

view of sub-section (3-A) the Collector has to tender 80 per cent of the

estimated amount of compensation to the persons interested entitled thereto

before taking over possession. The scheme of the Act does not contemplate

taking over of possession prior to the issuance of notification under Section

4(1) of the Act and if possession is taken prior to the said notification it will

de hors the Act. It is for this reason that both Sections 11(1) and 23(1)

enjoin the determination of the market value of the land on the date of

publication of notification under Section 4(1) of the Act for the purpose of

determining the amount of compensation to be awarded for the land acquired

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under the Act. These provisions show in unmistakable terms that

publication of notification under Section 4(1) is the sine-qua-non for any

proceedings under the Act Section 34 of the Act, on the basis whereof the

appellant laid claim for interest, reads as under:

"34. Payment of Interest \026 When the amount of such

compensation is not paid or deposited on or before taking

possession of the land, the Collector shall pay the amount

awarded with interest thereon at the rate of nine per centum per

annum from the time of so taking possession until it shall have

been so paid or deposited.

Provided that if such compensation or any part thereof is

not paid or deposited within 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 compensation or

part thereof which has not been paid or deposited before the

date of such expiry."

12. The expression "the Collector shall pay the amount awarded with

interest thereon at the rate of nine per centum per annum from the time of so

taking possession until it shall have been so paid or deposited" should not be

read in isolation divorced from its context. The words "such possession"

and "so taking possession" are important and have to be given meaning in

the light of other provisions of the Act. "Such compensation" would mean

the compensation determined in accordance with other provisions of the Act,

namely, Sections 11 and 15 of the Act which by virtue of Section 23(1)

mean market value of the land on the date of notification under Section 4(1)

and other amounts like statutory sum under sub-section (1-A) and solatium

under Sub-section (2) of Section 23. The heading of Part II of the Act is

Acquisition and there is a sub-heading "Taking Possession" which

contains Sections 16 and 17 of the Act. The words "so taking possession"

would therefore mean taking possession in accordance with Sections 16 or

17 of the Act. These are the only two Sections in the Act which specifically

deal with the subject of taking possession of the acquired land. Clearly the

stage for taking possession under the aforesaid provisions would be reached

only after publication of the notification under Sections 4(1) and 9(1) of the

Act. If possession is taken prior to the issuance of the notification under

Section 4(1) it would not be in accordance with Sections 16 or 17 and will

be without any authority of law and consequently cannot be recognised for

the purposes of the Act. For the parity of reasons the words "from the date

on which he took possession of the land" occurring in Section 28 of the Act

would also mean lawful taking of possession in accordance with Sections 16

or 17 of the Act. The words "so taking possession" can under no

circumstances mean such dispossession of the owner of the land which has

been done prior to publication of notification under Section 4(1) of the Act

which is de hors the provisions of the Act.

13. In Union of India v. Budh Singh (supra) after analysis of the

provisions of the Act the Bench arrived at the following conclusions:

"The parameter for initiation of the proceedings is the

publication of the notification under Section 4(1) of the Act in

the State Gazette or in an appropriate case in District Gazette

as per the local amendments. But the condition precedent is

publication of the notification under Section 4(1) in the

appropriate gazette. That would give legitimacy to the State to

take possession of the land in accordance with the provisions

of the Act. Any possession otherwise would not be considered

to be possession taken under the Act."

14. In Shri Vijay Cotton & Oil Mills (supra), the precise question raised

here namely whether in a case where the possession is taken prior to the

issuance of notification under Section 4(1) of the Act, interest can be

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awarded in accordance with Sections 28 or 34 of the Act was not examined

and the only issue examined was whether in an appeal which has been

preferred by the State Government challenging the quantum of

compensation awarded by the District Judge it is open to the High Court to

award interest to the claimant even though he had not preferred any appeal

or cross objection for the said purpose. It is well settled that a decision as an

authority for what it actually decides. What is of the essence in a decision is

its ratio and not every observation found therein nor what logically follows

from the various observations made therein. (See Krishena Kumar v. Union

of India, AIR 1990 SC 1782, Municipal Corporation of Delhi v. Gurnam

Kaur, AIR 1989 SC 38 and M/s. Orient Paper and Industries Ltd. & Anr. v.

State of Orissa AIR 1991 SC 672). Shri Vijay Cotton & Oil Mills (supra)

is therefore not an authority for the proposition that where possession is

taken before issuance of notification under Section 4(1), interest on the

compensation amount could be awarded in accordance with Section 34 of

the Act with effect from the date of taking of possession.

15. Similar view has been taken in a recent decision by a Bench of two

Judges in Smt. Lila Ghosh vs. State of West Bengal J.T. 2003 (9) SC 23 and

the reasons given there in para 16 of the Report are being reproduced below:

"Even though the authority in Shree Vijay Cotton & Oil Mills

Ltd. appears to support the claimants, it is to be seen that apart

from mentioning sections 28 and 34, no reasons have been

given to justify the award of interest from a date prior to

commencement of acquisition proceedings. A plain reading of

section 34 shows that interest is payable only if the

compensation which is payable, is not paid or deposited before

taking possession. The question of payment or deposit of

compensation will not arise if there is no acquisition

proceeding. In case where possession is taken prior to

acquisition proceedings a party may have a right to claim

compensation or interest. But such a claim would not be either

under section 34 or section 28. In our view interest under these

sections can only start running from the date the compensation

is payable. Normally this would be from the date of the award.

Of course, there may be cases under section 17 where by

invoking urgency clause possession has been taken before the

acquisition proceedings are initiated. In such cases,

compensation, under the Land Acquisition Act, would be

payable by virtue of the provisions of section 17. As in cases

under section 17 compensation is payable, interest my run from

the date possession was taken\005\005\005\005\005\005"

16. In this connection it will be apposite to refer to Sub-section (1A) of

Section 23 of the Act which enjoins payment of an amount calculated at the

rate of twelve per centum per annum on such market value for the period

commencing on and from the date of the publication of the notification

under Section 4(1), in respect of such land to the date of the award of the

Collector or the date of taking possession of the land, whichever is earlier.

There are two decisions of this Court, wherein same controversy arose

namely, whether the claimant would be entitled to additional sum at the rate

of twelve per centum on the market value where possession has been taken

over prior to publication of notification under Section 4(1). In Special

Tehsildar (LA) PWD Schemes Vijaywada v. M.A. Jabbar AIR 1995 SC 762

which has been decided by a Bench of two Judges (K. Ramaswamy and

Mrs. Sujata V. Manohar, JJ) it was held that claimant would not be entitled

to this additional sum for the period anterior to publication of notification

under Section 4(1). However in Assistant Commissioner, Gadag, Sub-

Division, Gadag v. Mathapathi Basavanewwa & Ors. AIR 1995 SC 2492

also decided by a two-Judge Bench (K. Ramaswamy and B.L. Hansaria, JJ)

it was held that even though notification under Section 4(1) was issued after

taking possession of the acquired land the owners would be entitled to

additional amount at twelve per cent per annum from the date of taking

possession though notification under Section 4(1) was published later. For

the reasons already indicated, we are of the opinion that the view taken in

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Special Tehsildar is legally correct and the view to the contrary taken in

Assistant Commissioner, Gadag (supra), is not in accordance with law and

is hereby overruled.

17. Shri Dave learned counsel for the appellant has also placed strong

reliance on Satinder Singh v. Umrao Singh and another AIR 1961 SC 908

wherein the question of payment of interest in the matter of award of

compensation was considered by this Court. In this case the initial

notification was issued under Section 4(1) of Land Acquisition Act, 1894

but the proceedings for acquisition were completed under East Punjab Act

No. 48 of 1948. The High Court negatived the claim for interest on the

ground that the 1948 Act made no provision for award of interest. After

quoting with approval the following observations of Privy Council in

Inglewood Pulp and Paper Co. Ltd. vs. New Brunswick Electric Power

Commission AIR 1928 PC 287:

"upon the expropriation of land under statutory power, whether

for the purpose of private gain or of good to the public at large,

the owner is entitled to interest upon the principal sum awarded

from the date when possession was taken, unless the statute

clearly shows a contrary intention."

the bench held as under :

"\005\005\005.When a claim for payment of interest is made by a

person whose immovable property 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 should 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.

The normal rule, therefore, is that if on account of acquisition of land

a person is deprived of possession of his property he should be paid

compensation immediately and if the same is not paid to him forthwith he

would be entitled to interest thereon from the date of dispossession till the

date of payment thereof. But here the land has been acquired only after the

preliminary notification was issued on 9.9.1992 as earlier acquisition

proceedings were declared to be null and void in the suit instituted by the

land owner himself and consequently he was not entitled to compensation or

interest thereon for the anterior period

18. In a case where the land owner is dispossessed prior to the issuance of

preliminary notification under Section 4(1) of the Act the government

merely takes possession of the land but the title thereof continues to vest

with the land owner. It is fully open for the land owner to recover the

possession of his land by taking appropriate legal proceedings. He is

therefore only entitled to get rent or damages for use and occupation for the

period the government retains possession of the property. Where possession

is taken prior to the issuance of the preliminary notification, in our opinion,

it will be just and equitable that the Collector may also determine the rent or

damages for use of the property to which the land owner is entitled while

determining the compensation amount payable to the land owner for the

acquisition of the property. The provision of Section 48 of the Act lend

support to such a course of action. For delayed payment of such amount

appropriate interest at prevailing bank rate maybe awarded.

19. The case may be examined from the equitable consideration as well.

In the earlier acquisition proceedings the notification under Section 4(1) had

been published on 13.11.1959 and the Collector had made an award for

Rs.6301/- for the plot in dispute on 30.12.1961. The award was made within

1-1/2 months of dispossession which allegedly took place on 10.11.1961.

This amount was paid to R.L. Jain and was retained by him. Learned

counsel for the respondent has placed before the Court a copy of the sale

certificate issued in favour of R.L. Jain on 31.8.1961 which shows that the

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plot was purchased by him for Rs. 3200/- only and thus he had received

almost double amount of compensation. Therefore, even on equitable

ground he is not entitled to any amount from the date of dispossession till

the date of second notification under Section 4(1) of the Act which was

issued in 1992.

20. In this connection, it may be noted that the only plea taken in Suit

no.154 of 1965 filed by R.L. Jain was that it was given out at the time of

auction sale of the plot that the same was outside the purview of the

preliminary notification issued on 13.11.1959 under Section 4(1) of the Act.

Even assuming that it was so but that by itself could not render the

acquisition proceedings invalid. At best, he would have been entitled to

refund of the sale consideration paid by him. However, the Sub-Judge

passed a decree that the acquisition proceedings with regard to the plot in

dispute are illegal and the notification issued under Section 6(1) of the Act

on 11.10.1961 is null and void. The decree having become final it is binding

upon the respondent, DDA. The original appellant R.L. Jain on the one

hand received compensation amount in terms of the award of the Collector

and sought a reference to the Court on the ground of alleged inadequacy of

compensation and at the same time filed the suit challenging the acquisition

proceedings wherein he obtained a decree that the acquisition proceedings

are null and void. It was on account of this judgment and decree that he

succeeded in the second suit (Suit No.421 of 1967), wherein a decree for

demolition of construction made by DDA and restoration of possession in

his favour was passed. It is in such circumstances that in order to save the

construction the land acquisition proceedings were initiated again by issuing

a notification under Section 4(1) of the Act on 9.9.1992. Under the award

given by the Collector on 11.6.1994 he has been awarded Rs.16,54,175 as

the market value of the land and Rs.4,96,252 as solatium. The appellant

has thus been more than adequately compensated and in our opinion even

on equitable grounds he is not entitled to any further amount.

For the reasons discussed above, there is no merit in this appeal and

the same is hereby dismissed with costs.