It is more than clear that the Collector, being
bound, competent and under obligation to order to make
payment of interest, in the light of Section 34 of the
Act,
has
statutory
with
civil
obliterated
Authority
its
effect.
having not acted
Therefore,
in
the
conformity
the principles laid down under the statute,
the
court’s jurisdiction, by any implication, shall
not be treated as barred.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NOS. 36 OF 2009
WITH
Executive Engineer,
Osmanabad Medium Project
Division,
VERSUS
Bhagwan s/o Yashwanta Kulkarni,
CORAM : K.U.CHANDIWAL, J.
Date:
21.1.2009
Citation; 2009 (3) ALL M R 840
1.
out
These
of
Division,
common
judgment
Appeals, being
of Civil
and
dt.27.2.2004
the
arising
Judge,
Senior
common
order
passed in Miscellaneous Civil Appeal by
dt.13.10.2008
learned Principal District Judge, Beed, are heard
together.
ig
the
Second
The parties are referred by their original
status.
2.
The
is
Engineer,
judgment
acquiring
body,
the
Executive
in the Second Appeal, to challenge
and decree referred above, whereby
the
invoking
of Section 34 of the Land Acquisition Act,
the provisions of
suits
respective
plaintiffs
for
award
of
interest were decreed.
3.
In
No.35/LNQ/SR/95
on
1.3.1993,
actually
the
in File
dated 2.7.2001, possession was taken
compensation
award
of
passed
the
land
has
paid to the plaintiffs on 13.12.2001.
been
It is
also not in controversy that the land owners had moved
Reference under Section 18 of the Land Acquisition Act
and respective References are allowed, award is passed
in favour of the land owners/plaintiffs.
In the award
passed by the Special Land Acquisition Officer, there
is indication
no
urged
thereof.
the
authorities
to
make
the
payment
Since no heed to the demands was taken, the
came to be filed by issuing statutory notice of
demand.
4.
The
contesting
no.2
claim
and
Court,
by virtue of the provisions of Land Acquisition
pronouncement of the judgments by
ig
that,
defendant the maintainability of the suit and
challenged
Act
Consequently,
suits
interest.
plaintiffs
of
such
suit
in
the
Civil
Court
the Apex
is not
Acquisition
disputes
maintainable as the procedure envisaged under the Land
Act,
and
itself,
takes
controversies.
care
The
of
all
acquiring
the
body
disputed its liability to make payment of interest.
5.
Division,
has
The
learned
Civil
Judge,
Senior
Beed, in the light of respective pleadings,
formulated the issues as under, with the findings
recorded against them:
------------------------------------------------------
Sr.No. ISSUES
FINDINGS
------------------------------------------------------
1. Is suit tenable for want of In the
jurisdiction? affirmative.
2. Do/Does plaintiff/s prove In the
that he/they is/are affirmative.
exempted from payment of
Court fees on the claim
amount though the suit is
for recovery of amount?
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(21)
Is suit within limitation ? In the
affirmative.
4. Is/are plaintiff/s prove In the
that he/they entitled to affirmative,
claim interest at the rate with 6% P.A. as
of 9 % per P.A. for the future interest.
first year from the date
of taking possession and
at the rate of 15% p.a. after
first year upto the actual
payment of compensation
amount?
5. What order and relief ? 3.
As per final
order.
----------------------------------------------------
.
Being aggrieved by the said decree, writ
Bench,
2006,
this
were preferred by the acquiring body before
being Writ Petition Nos.3679 to 3805
dt.7.4.2006
and
were finally disposed
of
of
on
with observation that the order impugned is
15.1.2008
petitions
appealable before the first appellate Court ( District
Court)
and
the
parties are at liberty to
file
the
same.
6.
body
It is in this situation, the acquiring
moved the learned District Judge for taking
appeals by
months, caused
Principal
in
the
Shri
condoning the delay of four
in filing the appeals.
years,
The
the
five
learned
District Judge, taking recourse to judgment
matter of State of Maharashtra &
Vithu
others
Kalva Gavari & others ( 2008(4) ALL
Vs.
M.R.
856) observed that the delay of more than two years in
filing
official
the
appeals,
hassles
on the ground
that
there
and, approval at different
was
levels,
would not constitute sufficient or reasonable cause to
condone
the
delay,
particularly in absence
of
any
explanation. Even after the directions of
other
High
the
Court, the appeals were not moved for more
than
seven months, and learned Judge found that there is no
ground,
much
less bona fide
reason,
condone the delay.
7.
In
the
same
settled
can
in
view of dismissal of
application,
be taken by way of Second
the
Appeal,
matter of Sheodan Singh
V.
Sunder
Sarma
Vs.
Pannalal
(SC)
Jaiswal
and
Shyam
as
Daryao
Kunwar ( AIR 1966 SC 1332 ) and 2005 (1) Mh.L.J.
(
to
sufficient
ig
others).
The
Counsel
for the acquiring
body,
8.
posed following substantial question of law :
Whether the Civil Court has jurisdiction under
Section 9 of C.P.C. to entertain the suit in
the matter of acquisition of property by
acquiring body, through process of Collector.
In the matter of Achutananda Baidya V.
Gayen
the
Prafully Kumar
and others ( AIR 1977 SUPREME COURT 2077);
2077)
matter
State
of
of
Leela Nagesh Mandake
Maharashtra and others (
and
others
2006(4)
in
V.
Bom.C.R.
501) the Civil Courts powers to challenge acquisition
was negatived.
challenge
under
In
proceedings
acquisitions and notices
revolved
to
contemplated
Sections 4, 6 or 9 of the Land Acquisition Act.
the matter of S.P.Subramanya Shetty and others Vs.
Karnataka
(
the
Those
AIR
State Road Transport Corporation and others
1997 SUPREME COURT 2076), it was
2076)
relating
to
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grant
(23)
mandatory
of
injunction
against
the
State,
restraining them from interfering with possession of a
it
or to denotify acquisition under Section 48 and
was
observed,
such
contentions
are
To
present
claims
case,
revert
the
maintainable, in a suit.
9.
not
party
back to the facts
plaintiffs
have
of
confined
the
their
to the extent of grant of interest in terms of
Section
34 of the Land Acquisition Act,1894.
Section
34 conceives:
ig
"34.
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) 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.)"
.
It is, thus, obvious, the Statute obligates on
the Collector the amount awarded at the rate of 9 per centum from
the time of so taking possession until it shall have
been paid or so deposited and the proviso, as
above,
also
subsequent
to pay and arrange to pay interest
contemplates
events.
payment
of
on
stated
interest
for
Thus, the language of the Statute
unambiguously binds the Collector to comply payment of
interest.
If
the Collector fails to
discharge
his
the aggrieved landholders/claimants cannot be
duties,
expected
to
to wander and roam again, by taking recourse
Section
18 of the Land Acquisition Act
as,
such
has already been put in force and award
enhanced compensation in favour of the plaintiffs
of
The
bar of Civil Court, in the
light
Section 9, as tried to be canvassed to project
substantial
question
of
law,
is
apparently in subsistence.
10.
for
exercise
again
needs
to
as
be
Court
in the matter of Dhulabhai,
etc.
V.
ig
Supreme
considered in the light of the judgment of the Hon’ble
State of Madhya Pradesh and another ( AIR 1969 SUPREME
COURT 78), the Lordships have observed:
78)
"(1)
Where the statute gives a finality to
the orders of the special tribunals the civil
courts’ jurisdiction must be
held to be
excluded if there is adequate remedy to do
what the civil court would normally do in a
suit.
Such provision,
however, does not
exclude those cases where the provisions of
the particular Act have not been complied with
or the statutory tribunal has not acted in
conformity with the fundamental principles of
judicial procedure."
11.
case,
To
reiterate
facts
of
the
present
it is more than clear that the Collector, being
bound, competent and under obligation to order to make
payment of interest, in the light of Section 34 of the
Act,
has
statutory
with
civil
obliterated
Authority
its
effect.
having not acted
Therefore,
in
the
conformity
the principles laid down under the statute,
the
court’s jurisdiction, by any implication, shall
not be treated as barred.
12.
The
matter
of
Abdul
Hon’ble
Gafur
Supreme
and another
Court,
Vs.
in
the
State
of
of
11, 2008, taking recourse to the jurisdiction
civil
C.P.C.
court, as contemplated under Section
9
of
August,
Uttarakhand and others ( (2008) 10 SCC 97), decided on
97)
have observed in paragraph 16 as under:
ig
" Section 9 CPC provides that the civil court
shall have jurisdiction to try all suits of a
civil nature excepting the suits of which
their
cognizance is
either expressly or
impliedly barred. To put it differently, as
per Section 9 CPC, in all types of civil
disputes, the civil
courts have inherent
jurisdiction
unless
a
part
of
that
jurisdiction
is
carved
out
from
such
jurisdiction,
expressly or
by
necessary
implication by any statutory provision and
conferred on other tribunal or authority.
Thus, the law confers on every person an
inherent right to bring a suit of civil nature
of one’s choice, at one’s peril, howsoever
frivolous the claim may be, unless it is
barred by a statute. "
13.
The scheme of Land Acquisition Act, to
reiterate, in the light of Section 34 thereof will not
bar
the jurisdiction of the Civil Court to
entertain
demand of interest.
14.
The
acquiring body has not challenged
the quantum of interest which, they reasonably
not do,
in the light of very
statutory
could
arrangement
contemplated under Section 34 of the Act.
15.
the
on
The
claims are within limitation,
as
award is dt.13.12.2001, while the suits are filed
30th
Sept.,2002.
The
plaintiffs
have,
before
invoking
their
statutory
(26)
action,
notice
defendant,
upon
making
out
to file
the
suits,
the acquiring
body
their legitimate
issued
and
the
case.
The
They
amount fixed
cannot be
have not challenged
the Land
said
plaintiffs,
that
the
Officer,
it
action
taken
by
the
by resorting to civil suits, is barred by
of limitation.
Act
period of three
amount is paid
and
The provisions of Art.113 of
will be applicable, which
years and, since
the
the
suits
are
a
compensation
on 13.12.2001, they made
then
the
provide
Limitation
notice
compensation
Acquisition
ig
law
by
the
manner.
defendants failed even in responding the notice in any
demand
filed
on
by
30th
16.
Sept.,2002, within ten months.
Taking
recourse
to
the
substantial question of law to cause an
discussion,
in
the
present appeals do not
orders of the Civil Judge,
the
entire
project
any
interference
Senior
Division,
Beed, granting interest to the respective plaintiffs.
.
Second Appeals with Civil Applications
are accordingly dismissed.
( K.U.CHANDIWAL, J.)
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