Sunday 14 December 2014

Concept of unjust Enrichment in land acquisition Act



Furthermore, if the claim of rental compensation as is made by the
petitioners is tested in the light of the interest awarded by the Reference
Court, keeping in mind the date of possession, demonstrates that the right
of the petitioners qua the compensation for taking advance possession of
the land was redressed. In fact, petitioners were not entitled to interest @
9% for first year and 15% thereafter
from the date of possession as
possession was taken de hors the provisions of the Land Acquisition Act
i.e. prior to section 4 notification. By granting such interest, the petitioners
are benefited more than the rental compensation they could have got.
Writ jurisdiction under Article 226 of the Constitution of India cannot be
exercised in favour of such litigants. In case if the claim of the petitioners
for rental compensation is allowed, the same will be a case of granting
unjust enrichment to the petitioners, as the Reference Court in paragraph
17, clause (2) of the order has granted adequate compensation for taking
advance possession of the land of the petitioners.

IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD

WRIT PETITION NO. 2495 OF 2003

Madhavrao s/o Sidramappa Shetkar,
VERSUS

The State of Maharashtra

CORAM : S.V. GANGAPURWALA &
N.W. SAMBRE, JJ.
DATE
: 14th March, 2014
Citation; 2014(6) MHLJ 76
The petitioners claim that their land was acquired for the purpose of
K.T. Weir at Killari. The notification under section 4 of the Land Acquisition
Act came to be issued on 29.3.1990.The possession of the land owned

by the petitioners was taken on 15.11.1988, 
 whereas after completing the

acquisition proceedings, award came to be passed on 5.3.1992. In view
of the fact that the possession of the land was taken on 15.11.1988 and
award under Land Acquisition Act was passed on 5.3.1992, in view of the
policy of the Government reflected in Govt. Resolution dated 1.12.1972,
the petitioners are claiming rental compensation from the date of taking
3.

over possession till the date of passing of the award.
Learned Counsel for the petitioners invited attention of this Court to
the judgment passed under section 18 of the Land Acquisition Act in a
Reference moved by the petitioners on 4.9.1998. While dealing with the
claim of the petitioners for enhancement of compensation and grant of
interest under provisions of section 34 of the Act, the learned Reference
Court has observed in paragraph 15 thus :-
"The lands of the claimants are acquired by the L.A.O.
After
amendment to Sections 23 and 28 of L.A. Act, therefore, all
claimants are entitled for 30% solatium 12% interest from the date
of possession i.e. 15.10.1988 till the date of award, i.e. 15.3.1994
and entitled for 9% interest for the first year from the date of
possession and 15% interest for the subsequent year till depositing
the amount by the L.A.O. in the Court. Accordingly, Issue Nos.3
and 5 are answered in the affirmative and Issue No.4 is answered
in the negative."

The operative part of the judgment and award passed by Reference
Court reads thus :-
"1. References are partly allowed.
2. Claimants in L.A.R. Nos.92/95 and 97/95 do recover
compensation of their acquired lands @ Rs.40,000/- per Acre for
dry-lands and rest of the claimants, except in L.A.R. No.92/95 and
97/95 do recover compensation of their acquired lands @ Rs.
50,000/- per Acre for irrigated land and all claimants do recover

30% solatium, 12% increase from the date of possession i.e.
15.10.1986 till the date of award i.e. 15.3.1994 and do recover 9%
interest for the first year from the date of possession i.e.
15.10.1988 and 15% interest for the subsequent year till depositing
the amount by the L.A.O. in the Court.
3.
Respondent do bear its own costs and pay the proportionate costs
of the claimants.
4. Deficit Court Fees be recovered from the claimants, if any.
5. Decree be drawn up accordingly."
4. It is case of the petitioners that in addition to the above referred
benefits which are granted by the Reference Court in exercise of powers
under section 18 read with section 34 of the Act, they are entitled for the
rental compensation in the light
of policy of the Government dated
1.12.1972. The petitioners submit that the rental compensation is paid
based upon estimated value of the lands to be ascertained from the

Collector of the District or any other Revenue Officer but not by the Land
Acquisition Officer. The petitioners further submit that they are entitled for
yearly rental compensation to be worked out at 5% of the estimated value
of the land and required to be paid yearly to the land owners.
The
petitioners further submit that these yearly payments will be provisional
and are required to be paid after the date on which the full amount of final
award is paid to the land owners. The said scheme of the Government

further provides for payment of final amount of rental compensation to be
worked out at 6-1/2 % of the award value after the declaration of the final
award. It further provides that the balance amount if due should be paid
to the landowner within three months from the date the award value is
paid.
5.
The petitioners submit that though in the present case the award
was passed on 5.3.1992, the possession of the land in question was taken
on 15.11.1988. It is claimed by the petitioners
that the compensation
ordered by the Reference Court and the interest paid thereon in exercise
of powers under section 34 of the Act cannot be mixed with the claim of
rental
compensation
as
the
Reference
Court
is
granting
compensation/enhancement + interest under section 34 of the Act strictly
in accordance with the Land Acquisition Act, whereas the rental
compensation is provided by the Executive instructions of the State
Government.

(6)
While responding to the above referred submissions of the
6.

petitioners, the learned A.G.P. has relied upon the observations made by
the learned Reference Court, wherein Reference Court was aware of the
fact that the possession of the property in question was taken on
15.10.1988 and the notification under section 4 of the Land Acquisition
Act was passed on 29.3.1990 and still awarded 9% interest for the first

year from the date of possession and 15% interest for the subsequent
year till the deposit of the amount. The learned A.G.P. as such, submits
that the payment of rental compensation as is claimed by the petitioners
for loss of use of the land of which possession was taken in advance, is
taken care of by the Reference Court.
7.
Having considered rival contentions of the parties, prima facie it
appears that the claim of the petitioners is based upon the policy of the
Government reflected in the Government Resolution dated 1.12.1972, to
which corrigendum was issued on 2.4.1979, to the extent of enhancing the
rental compensation from 6-1/2% to 8%.
Admittedly there is no source in
the Land Acquisition Act for claim of rental compensation. However, the
rental compensation is granted based upon the above referred
Government decisions, which in any case, cannot be read down under the
provisions of the Land Acquisition Act.

A reference to the judgment of the Apex Court in the matter of State
8.
SC 448 is worth consideration.
of Maharashtra & ors. vs. Maimuma Banu & ors., reported in (2003) 7
The Honourable Apex Court, while
restricting the claim of rental compensation has, in categorical terms,
observed that the directions about payment of rental compensation shall
not apply to the cases where the payments have already been made prior
In the present case, it appears that the payment under the
to 1.4.2000.

award was made to the present petitioners prior to 1.4.2000 and even the
Reference Court has passed an award on 4.9.1998. There is no whisper
in the petition by the petitioners that they were not paid the amount prior to
1.4.2000, either under the award or under the order passed by the
Reference Court.
9.
The observations of the Apex Court, in the matter of State of Mah.
vs. Maimuma (cited supra), more particularly in paragraphs no.7, 8 and 9,
fortifies the above referred view taken by this Court.
The said
observations read thus :-
"7.
It is to be noted that the resolutions adopted
Government were
intended to benefit
by the
the landowners whose
lands were acquired. To avoid unnecessary delays in payment
urgency for follow-up action was indicated in the resolutions. To
that extent, learned counsel for the landowners are on terra firma.
But legally the landowners are not entitled to any interest. There is
no provision either in the resolutions or in the statutes concerned

statutorily payable has
which entitles the landowners to payment of interest. Whatever is
been clearly indicated in the Act itself.
Section 23 (1-A) of the Act was introduced by the Amendment Act
of 1984. There is no dispute, and in our opinion rightly, that rental
compensation is not relatable to the act.
The entitlement of the
claimant is on the basis of the government resolutions i.e. on the
basis of executive orders.
It is crystal clear from a bare reading of the provisions of the
8.
Act that it does not provide for payment of any rental

compensation. Therefore, the appellants are correct in their stand
to the extent that the liability for rental compensation does not have
its source under the Act. Therefore, the logic of Sections 17 (3-A),
23 (1-A) and 28 of the Act and Section 34 has no application in law
to rental compensation. That being the position, the High Court
was not justified in relying on Sections 17 (3-A), 23 (1-A) or Section
28 of the Act to grant interest.
9.
But the problem does not end there.
Admittedly, the
possession of the land was taken long years back. Thereafter, the
landowner does not practically possess any right over the land in
question except to the compensation as statutorily provided for.
But it would be illogical and improper to turn a Nelson's eye to the
factual position as highlighted by the respondents.
It is not in
dispute that in most of the cases the rental compensation has not
been paid. If that factual position continues, it clearly is a case
where the amount to which a person is entitled is withheld without
any legitimate excuse.
The learned Counsel for the appellants
strenuously urged that in most of the cases the proceedings have
not yet attained finality and are pending either before
the
Reference Court or in appeal. That does not provide a legitimate

to the appellants to withhold payment of the rental
excuse
compensation. The amount calculated on the basis of award by
the Land Acquisition Officer cannot be below than the amount to be
ultimately fixed. If in appeal or the reference proceedings, there is
any variation, the same can be duly taken note of as provided in
law.
There is no difficulty and we find none as to why the
compensation on the basis of value determined by the Land
Acquisition Officer cannot be paid. If there is upward revision of
the
consequences will follow and if necessary,
the amount,
redetermination of the rental compensation can be made and after

adjustment of the amount paid,if any, balance can be paid. If,
however, the Land Acquisition Officer's award is maintained then
nothing further may be required to be done.
In either event,
payment of the rental compensation expeditiously would be an
appropriate
step.
Looking at the problem from another
perspective, one thing is clear that authorities have clearly ignored
the sense of urgency highlighted in the various resolutions. "
10.
Furthermore, if the claim of rental compensation as is made by the
petitioners is tested in the light of the interest awarded by the Reference
Court, keeping in mind the date of possession, demonstrates that the right
of the petitioners qua the compensation for taking advance possession of
the land was redressed. In fact, petitioners were not entitled to interest @
9% for first year and 15% thereafter
from the date of possession as
possession was taken de hors the provisions of the Land Acquisition Act
i.e. prior to section 4 notification. By granting such interest, the petitioners
are benefited more than the rental compensation they could have got.
Writ jurisdiction under Article 226 of the Constitution of India cannot be
exercised in favour of such litigants. In case if the claim of the petitioners
for rental compensation is allowed, the same will be a case of granting
unjust enrichment to the petitioners, as the Reference Court in paragraph
17, clause (2) of the order has granted adequate compensation for taking
advance possession of the land of the petitioners.
In that view of the matter, no case for interference is made out. As
11.

such, the petition is dismissed. Rule discharged. No costs.
(S.V. GANGAPURWALA, J.)
(N.W. SAMBRE, J.)


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