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IN THE HIGH COURT OF BOMBAY
(PANAJI BENCH)
M.L. Pendse, G.F. Couto G.D. Kamat, JJ.
Jaiwant Laxman P. Sardesai Appellant.
Versus
Government of Goa, Daman and Diu, through the
Revenue Secretary another.... Respondents.
First Appeal No. 83/84, 94/85, 95/85, 98/85, 99/85, 102/85, 104/85, 123/85, 124/85, 125/85, 135/85, 136/85 and 147/85, decided on 28-1-1987.
Advocates appeared :
S.G. Desai and C.F. Alvares, for appellant.
V.B. Nadkarni, G.P., for respondents.
S.K. Kakodkar, for interveners
The language of Section 30 sub-section (2) and in paragraph 5 of the judgment Chief Justice Bhagwati observed that in absence of provisions or Section 30 sub-section (2) the amended provisions of Section 23 sub-section (2) and Section 28 would have been effective from September 24, 1984 and each of the authorities exercising powers under the Act for determination of compensation would have been bound to award solatium and the interest at the enhanced rate, irrespective of the fact when the award was passed. The Supreme Court further observed that the object of the Parliament was that the amended provisions should be given effect from the date of the introduction of the Bill in the Parliament and therefore enacted Section 30 of the Amending Act. It was further observed that the intention of Parliament in enacting Section 30 sub-section (2) was to confer advantage on the claimants whose proceedings for determination of compensation were concluded between April 30, 1982 and September 24, 1984. Thereafter the Supreme Court considered the ambit of sub-section (2) of Section 30 and .concluded that the amended provision of Section 23 sub-section (2) and Section 28 are made applicable to all proceedings relating to compensation pending on April 30, 1982 or tiled subsequent to that date, whether before the Collector or before the Court of Reference or the High Court or the Supreme Court, even if they have finally terminated before the enactment of the Amending Act. In the light of the conclusions reached by the Supreme Court in this judgment, it is necessary to consider the exact ambit of provisions of Sections 30 (1) (a) and (b).
Section 30 of the Amending Act deals with transitional provisions. The expression "transitional" according to Concise Oxford Dictionary means change from one place or state or act or set of circumstances to another. The transitional provisions by its very nature are enacted to deal with the claims arising during the interregnum, that is between the date of introduction of the Bill and coming into force of the Amending Act. The provisions of sub-sections (1) and (2) of Section 30 are entirely independent and their fields of application are distinct and separate. Sub-section (2) of Section 30 prescribes that amending provisions of Section 32 (2) and Section 28 shall apply and shall be deemed to have applied also, to and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court between April 30, 1982 and September 24, 1984. By sub-section (2) of Section 30 a right is conferred on the claimant to receive solatium at the rate of 30% instead of 15% and interest at the enhanced rate even though the proceedings are finally concluded between the two cut off dates, that is April 30, 1982 and September 24, 1984. The legislature has enacted this provision to remove the bar of finality of the proceedings and to enable the claimant to receive the additional amount even though the proceedings have been finally concluded, provided the final order is passed between the two cuto off dates. In other words, the claimant, whose claim for compensation is not decided on April 30, 1982 by ally of the authorities prescribed under the Act or the appellate authorities, but determined before September 24, 1984 can make a fresh claim for the amount available, in view of the amendment of sub-section (2) of Section 12 and amendment of Section 28. It is, therefore, clear that the transitional provisions enacted under sub-section (2) of Section 30 confer power on the claimant to demand additional amount as per the amended provisions, irrespective of the fact that the award is passed before April 30, 1982 provided that the proceedings for determination of compensation were pending before reference Court or appellate Court on that date.
It is clearly resisted that sub-section (1-A) of Section 23 shall apply and shall be deemed to have applied, also to, and in relation to every proceeding for acquisition of any land pending On April 30, 1982 in which no award has been made by the Collector before that date. It was contended that the advantage of amended sub-section (1-A) of Section 23 is available only to those pt. actedin88 for acquisition which were pending on April 30, 1982 before the Collector and where no award was made. It is not possible to give such a restricted meaning to sub-section (1) of Section 30. Section 23 (1-A) prescribes that the Court shall in every case award an amount calculated at the rate of 12 per centum per annum on the market value to be determined. The mandate is to the Court and not to the Collector. It is no doubt true that the Collector while determining compensation is guided by the provisions contained in Sections 23 and 24, but the legislature by enacting sub-section (1) of Section 30 desired to make it crystal clear that the amended provisions of Section 23 (1-A) shall apply even in relation to the proceedings pending before the Collector on April 30, 1982 and in which no award has been made.
The crucial words in sub-section (1) of Section 30 are that the provisions of sub-section (1-A) of Section 23 "shall apply and shall be deemed to have applied, also to, and in relation to" cases covered by Clauses (a) and (b). The expression "also to and in relation to" clearly indicates that the cases set out in Clauses (a) and (b) are not the only cases to which the amended provisions of sub-section (1-A) of Section 23 apply. The sweep of sub section (1) of Section 30 is very wide and take in its embrace even the cases set out under Clauses (a) and (b). It is not possible to read down the provisions of sub-section (1) of Section 30, so as to restrict the application of the amended provisions of sub-section (1-A) of Section 23 only to two categories of cases set out in Clauses (a) and (b). Clause (a) covers the cases where the acquisition proceedings bad already commenced before April 30, 1982 but in which no award bas been made by the Collector by that date, while Clause (b) deals with the cases where proceedings for acquisition were commenced after April 30, 1982 and where the award has been made or not made before September 24, 1984. It is obvious that the legislature desired to confer the advantage of amended provisions of sub-section (1-A) of Section 23 even to those cases where the acquisition proceedings before Collector commenced and concluded between the cut-off dates. The provisions of amended sub-section (1-A) of Section 23 apply to all cases pending on April 30, 1982 either before the Collector or before the Court in reference or before the High Court or Supreme Court in appeals, irrespective of the fact whether the award is declared prior to April 30, 1982 or on a subsequent date. Court unable to accept the submission that the Parliament enacted sub-section (1) of Section 30 to indicate clearly and beyond doubt that the amended sub-section (1-A) of Section 23 was to govern only the awards made by the Collector after April 30, 1982 and is not applicable to the proceedings pending before the reference Court or before the appellate Courts where the awards are declared by the Collector prior to April 30, 1982. In case the Parliament intended to prescribe such a restricted application or the amended provisions, then the phraseology of Section 30 (1) would have been totally different.
The Statement of Objects and Reasons of the amending Act clearly recites that the amendment was enacted as a large number of cases for the acquisition of land are pending before various authorities for a very long time and payment of the market value of the land obtaining on the date of the preliminary notification under Section 4 of the Act is likely to be unrealistic and iniquitous. By insertion of amending provision of sub-section (1-A) of Section 23 the object proposed to be achieved was payment of simple interest at 12 per centum per annum on the amount of compensation for the period commencing from the date of issue of notification under Section 4 to the date of tender of payment, in respect of all pending proceedings on April 30, 1982. The Statement of Objects indicates that the Parliament did not desire to restrict the advantage of the amended provisions only to those cases where the award was declared subsequent to April 30, 1982, but was desirous of conferring the benefit in favour of claimants whose proceedings for determination of compensation were pending before the authorities under the Act or the appellate Courts.
It was strenuously urged on behalf of Land Acquisition Officer that while interpreting the true ambit of sub-section (1) of Section 30, the different phraseology used by legislature in sub-sections (1) and (2) should be borne in mind. Sub-section (1) refers to every proceeding for acquisition in which no award has been made by Collector, while sub-section (2) refers to award made by Collector or Court and order passed by High Court and Supreme Court. Proceedings for acquisition, it was contended, commence with Section 4 notification and Lands with award and taking over of possession and therefore sub-section (1) keeps out reference proceedings before Court and proceedings thereafter before appellate authorities. It was submitted that in case subsection (1) was not limited only to cases covered under Clauses (a) and (b), then there was no occasion to enact different sub-sections (1) and (2) of Section 30. The submission overlooks that sub-sections (1) and (2) of Section 30 covers different areas, sub-section (2) deals with cases decided between cutout dates and deals with enhanced amount of solatium and rate of interest, the rights which were already available to claimant under unamended Act, while sub-section (1) covers all cases where the proceedings are not concluded before April 30, 1982 and deals with a new right to receive amount in accordance with amended Section 23 (1-A) of the Act. The enactment of different subsections and different phraseology cannot, therefore, warrant a conclusion that advantage of Section 23 (1-A) is available only to those cases where the award is passed by Collector after April 30, 1982.
Section 28 proviso (As amended by Amendment Act 68 of 1984)-Awarding of interest either under Section 28 or enhanced interest under the amended proviso.
It is not obligatory on the Court to award interest either under Section 28 or the enhanced interest under the amended proviso, though it must be made clear that the discretion to be exercised is judicial is nature and not arbitrary. In normal course the claimant is entitled to the award of interest under Section 28 of the Act and also to enhanced interest under the amended proviso to Section 28, and unless specific case in made out, the claimant could not be deprived of the advantage. It should not he overlooked that the proceedings in acquisition are compulsory in nature and the claimant must be awarded all the benefits provided under the stature unless it is shown by the acquiring authority that the claimant has disentitled himself to avail of the same.
(a) Whether the provision of section 23(1-A) is applicable retrospectively only to those pending cases where no award has been made by the Collector (LAO) before the 30th April, 1982, or whether the said provision of law is to be applied to all pending cases, even to those in appeal to the High Court or the Supreme Court; and
(b) Whether the enhanced rate of fifteen per centum of interest spoken of in the proviso to section 28 of the Act as amended is to be mandatorily awarded or whether its grant lies within the discretionary powers of the reference or Appellate Court.
As the Division Bench has referred these specific two questions and not the appeals, it is not necessary to set out facts which gave rise to these appeals and it would be suffice if only relevant facts involved in First Appeal No. 94 of 1985 are set out to appreciate the controversy arising in this reference.
2. By notification under section 4 of the Act published in the Government Gazette on October 3, 1969, the Government of Goa, Daman Diu declared intention to acquire Plot Nos. 13, 14 and 92 situated at Cavolossim for construction of Air to Ground range for the use of Indian Navy. Notification under section 6 was published on June 10, 1971 and after holding inquiry as contemplated under section 11 of the Act, the Land Acquisition Officer declared award on August 2, 1972 determining compensation for Plot Nos. 13 and 14 at the rate of Rs. 1.25 per sq. metre and at the rate of Rs. 2.50 per sq. metre for Plot No. 92. The claimant sought reference to the Civil Court under section 18, of the Act on December 24, 1973 and the reference when duly made, the Civil Court investigated the claim and judgment was delivered on June 24, 1985. The Civil Court came to the conclusion that the claimant was entitled to the compensation at the rate of Rs. 5/- per sq. metre for all the three plots in addition to 15% solatium and 6% interest per annum from the date of recovery of possession till the date of payment of compensation. The claimant being dissatisfied with the quantum of enhancement of compensation, preferred appeal to this Court. During the course of hearing of the appeals, question arose as to whether the claimant would be entitled to the advantage of amended provisions of section 23(1-A) and proviso to section 28 of the Act, and in view of the conflicting decisions, the reference was made to the larger Bench.
3. On April 30, 1982, the Land Acquisition (Amendment) Bill, 1982 was introduced in the House of People for amending various provisions of the Act, and after the two Houses passed the Bill, the Land Acquisition (Amendment) Act, 1984, being Act No. 68 of 1984 received assent of the President on September 24, 1984. By section 15 of the Amending Act, section 23 of the principal Act was amended by introduction of sub-section (1-A) which reads as under :
"(1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount cal
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