Court No. - 33
Case :- WRIT - C No. - 6730 of 2018 Petitioner :- Jagdish Prasad And 13 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shri Krishna Mishra Counsel for Respondent :- C.S.C.,Anoop Trivedi,Kartikeya Saran
Hon'ble Manoj Misra,J.
Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the petitioners; the learned Standing Counsel for the respondent nos. 1,2 and 3 and Sri Devesh Saxena, Advocate, holding brief of Sri Kartikeya Saran, for the respondent no.4.
The petitioners' land was notified for acquisition under the Land Acquisition Act, 1894. Challenging the acquisition notifications the petitioners along with others filed writ petitions. Writ C No. 7697 of 2014 was filed by the petitioners along with few others. An interim order was obtained in the said petition on 07.02.2014. In the meantime, a number of land owners chose to avail compensation under the award instead of obtaining interim orders from the writ court. The award passed in respect of such land owners included additional compensation admissible / payable under Section 23 (1-A) of the Land Acquisition Act, 1894.
Some of the petitioners of Writ C No. 7697 of 2014, who are petitioners in this petition, moved an application for withdrawal of their petition to avail the benefit of the award as offered by the respondent- authority. As a consequence whereof vide order dated 20.09.2017 Writ C No. 7697 of 2014 was disposed off, in so far as the petitioners herein are concerned. The order is extracted below:-
"Heard Sri Vibhu Rai along with Anoop Trivedi, learned counsel for the parties.In support of this application a supplementary affidavit has been filed today. A combined reading of the application and the supplementary affidavit indicates that the petitioner nos. 4, 5, 24, 26, 27, and 29 intend to pursue the writ petition whereas rest of the petitioners have agreed to accept the compensation as offered by the respondent-authority. They, therefore, pray that the petition be accordingly disposed off.
To that effect, we have passed similar orders today in Writ Petition No. 10443 of 2014, the order is extracted hereinunder:
"Heard Sri Pankaj Dubey, learned counsel for the petitioners and Sri Vibhu Rai holding brief of Sri Anoop Trivedi, learned counsel for the respondent no. 4 and learned Standing Counsel for the respondent nos. 1, 2 and 3.
This application has been filed praying that all the petitioners now do not want contest the notification which is under challenged and they give their consent for acceptance of compensation as agreed by the respondent-authority together with interest as on date.
Sri Vibhu Rai submits that so far as issue of interest is concerned that can not be assumed to be part of the claim of the petitioners as firstly it has to as to whether they are entitled for interest and secondly, the calculation if required.
This application is disposed of and so is the writ petition with a direction that the petitioners shall be disbursed the entire compensation has already settled so far as the issue of interest is concerned, it will be open to the petitioners to move an appropriate application before the respondent nos. 3 and 4 who may in the event any such interest is permissible in law shall pass appropriate orders within six weeks of the date of presentation of certified copy of the order."
This application is therefore, disposed off and the writ petition is also disposed off on the above terms except for petitioner nos. 4, 5, 24, 26, 27 and 29 subject to above."
(Emphasis Supplied)
Pursuant to the order dated 20.09.2017, the petitioners made a claim for additional compensation as payable under Section 23(1-A) of the Land Acquisition Act, 1894. This claim has been rejected by the Additional District Magistrate (Land Acquisition), Ghaziabad by impugned order dated 13.11.2017 on the ground that this additional compensation payable under Section 23 (1-A) was not admissible for the period during which the petitioners had an interim order operating in their favour that is from 07.02.2014 to 20.09.2017.
The petitioners thereafter approached the Ghaziabad Development Authority with the same prayer and the said prayer was rejected with the same reasoning by impugned order dated 18.01.2018.
Assailing the orders dated 13.11.2017 and 18.01.2018 with a prayer to direct the respondents to pay additional compensation @ 12 per cent per annum from 07.02.2014 to 20.09.2017, this petition has been filed.
The learned counsel for the petitioners has urged that the writ petition of the petitioner was disposed off on the understanding that they would get additional compensation that was paid to other land owners therefore there was no legal justification to deny additional compensation to the petitioners. It has been urged that the petitioners in any case were entitled to interest under Section 34 of the Land Acquisition Act.
The learned counsel for the respondents have submitted that a bare reading of the order passed in Writ C No. 7697 of 2014 would indicate that the entitlement for interest was to be first ascertained and if such interest was permissible and admissible in law to the petitioners then only it was to be paid. It has been contended by the learned counsel for the respondents that since it is not in dispute that there existed an interim order from 07.02.2014 up to 20.09.2017 in favour of the petitioners thereby restraining the respondents from taking possession of the land notified for acquisition, by virtue of Explanation to sub-section (1A) of Section 23 of the Land Acquisition Act, 1894, no additional compensation, as contemplated by sub section (1A) of Section 23 of the Act, 1894, was payable for the period during which there existed a stay or injunction granted by the order of Court.
We have considered the rival submissions and have perused the record carefully. The order passed in Writ C No. 7697 of 2014 does not unconditionally provide that additional compensation would be admissible and payable to the petitioners. In fact, the said writ petition was disposed off in terms of the order passed in Writ Petition No. 10443 of 2014. The operative portion of the order passed in Writ Petition No. 10443 of 2014, which has been quoted in the order dated 20.09.2017 passed in Writ C No. 7697 of 2014, would reveal that the liability to pay interest was subject to the interest being admissible and permissible in law.
As it is not in dispute that in between 07.02.2014 and 20.09.2017, there operated an interim order of this Court in Writ C No. 7697 of 2014 to the extent it related to the land of the petitioners, the Explanation to sub- section (1A) of Section 23 of the Land Acquisition Act, 1894 would come into play. The said Explanation provides that in computing the period referred to in sub-section (1A), any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. This implies that the interest which is otherwise payable @ 12 percent per annum on the market value of the land from the date of publication of the notification under Section 4 (1) to the date of the award of the Collector or the date of taking of possession of the land, whichever is earlier, shall be excluded for the period or periods during which any stay or injunction of any Court is operating.
Since it is not dispute that there was an interim order operating from 07.02.2014 up to 20.09.2017, the authorities were justified in rejecting the claim of the petitioner for payment of additional compensation @ 12 per cent per annum for the period between 07.02.2014 up to 20.09.2017. Hence, no case to interfere with the impugned orders is made out.
In so far as payment of interest under Section 34 of the Land Acquisition Act is concerned, in that regard there is no adjudication by the authorities and the claim of the petitioner in that regard has not yet been adjudicated, we therefore do not wish to express any opinion on that count. Under the circumstances, in respect of entitlement of interest under Section 34 of the Land Acquisition Act, 1894, the petitioners are at liberty to ventilate their grievance before the authority concerned, as per advise.
Subject to above, the petition is dismissed.
Order Date :- 30.11.2018 A. Tripathi