# Smt. Mithlesh v. Collector, Agra and others

- **Citation:** (2009) 2 ILRA 528
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-05-18
- **Case number:** First Appeal No. 682 of 1992
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mithlesh-v-collector-agra-and-others-41651
- **Pages:** 7

## Headnote

Land Acquisition Act No. 68 of 1984Section 28A and 23-Award of additional
amount-in addition to market value and
interest-appeal confined in respect of
rate
of
interest
and
for
additional
amount-reference
made
on
27.2.90
much after the enforcement amended
provision-non
payment
of
excess
amount-court under statutory obligation
to
award
interest-held-entitled
for
interest on damage at the rate of 9%
one year of possession 15% thereafter
till the date of actual payment.

Held: Para 15
2 All] Smt. Mithlesh V. Collector, Agra and others
529
Thus, the second point as raised is
answered
in
favour
of
the
claimant/appellants.
They
are
held
entitle to interest at the rate of 9% p.a.
for the first year of possession and
thereafter at the rate of 15% p.a. on the
excess amount awarded by the Tribunal.
Case law discussed:
1991 ALJ 8, 1991 AWC 1376, AIR 1989
SC 1933, (1990) 1 SCC 277, 1995 (1)
SCC 367, 2008 AIR SCW 2723, 2009(4)
A.D.J. 563, 2008(8) A.D.J. 466

## Text

528 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
a question of fact and is required to be
established and proved like any other fact
which necessarily implies an opportunity
of hearing to the affected persons. The
finding in respect of fraud or forgery
cannot be recorded ex parte and it cannot
be ruled that the principles of natural
justice in such cases have no application
at all. Thus in accordance with principles
of natural justice a notice and opportunity
of hearing to the affected person is a must
before expunging entry even in cases
where the authority is prima facie of the
opinion that entry was a result of some
fraud, forgery or manipulation.

31. In view of the above, I am of the
opinion that the Orders dated 28.3.2005
and 29.11.2005 cannot be sustained, and
the same are liable to be quashed.

32. Accordingly, the Writ Petition is
allowed. The impugned Order dated
28.3.2005 (Annexure-4 to the Writ
Petition) passed by the respondent no. 2
and the impugned Order dated 29.11.2005
(Annexure-6 to the Writ Petition) passed
by the respondent no. 1, are quashed. The
matter is sent back to the respondent no. 2
(Sub-Divisional
Officer,
Khaga,
Fatehpur) for deciding the same afresh in
accordance
with
law
after
giving
reasonable opportunity of being heard to
all concerned including the petitioners.
The respondent no. 2 will decide the
matter expeditiously, preferably, within a
period of three months from the date the
petitioners and the respondent no. 4
appear
before
him
(Sub-Divisional
Officer, Khaga, Fatehpur) along-with
certified copy of this order.

33. Sri M.N. Singh, learned counsel
for the petitioners and Sri B.N. Singh
learned counsel for the respondent no. 4
are agreed that their respective parties will
appear before the Sub-Divisional Officer,
Khaga, Fatehpur (respondent no. 2) on
13th July 2009 along-with certified copy
of this order.

34. On the facts and in the
circumstances of the case, there will be no
order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. 682 of 1992

Smt. Mithlesh

...Appellant

Versus
The Collectore, Agra and others

 ...Respondents

Counsel for the Appellant:
Sri K.C. Jain
Smt. Sunita Agrawal

Counsel for the Respondents:
Sri Shreekant
Sri R.C. Srivastava
Sri P.K. Singhal

Land Acquisition Act No. 68 of 1984Section 28A and 23-Award of additional
amount-in addition to market value and
interest-appeal confined in respect of
rate
of
interest
and
for
additional
amount-reference
made
on
27.2.90
much after the enforcement amended
provision-non
payment
of
excess
amount-court under statutory obligation
to
award
interest-held-entitled
for
interest on damage at the rate of 9%
one year of possession 15% thereafter
till the date of actual payment.

Held: Para 15
2 All] Smt. Mithlesh V. Collector, Agra and others
529
Thus, the second point as raised is
answered
in
favour
of
the
claimant/appellants.
They
are
held
entitle to interest at the rate of 9% p.a.
for the first year of possession and
thereafter at the rate of 15% p.a. on the
excess amount awarded by the Tribunal.
Case law discussed:
1991 ALJ 8, 1991 AWC 1376, AIR 1989
SC 1933, (1990) 1 SCC 277, 1995 (1)
SCC 367, 2008 AIR SCW 2723, 2009(4)
A.D.J. 563, 2008(8) A.D.J. 466

(Delivered by Hon'ble Pankaj Mithal, J.)

1. These are two appeals by the
claimants against the judgment, order and
award dated 27.2.90 by the Nagar
Mahapalika Tribunal, Agra in Land
Acquisition Case No.5 of 1975 and 7 of
1975 whereby the claimants have been
awarded compensation to the tune of
Rs.94,261.92
and
Rs.1,53,798.74
respectively, damages @ Rs.18/- per sq.
yard and interest thereon at the flat rate of
9% from the date of the possession.

2. The land in dispute was acquired
under the provisions of Section 357 of the
Nagar
Mahapalika
Adhiniyam
(hereinafter
referred
to
as
the
'Adhiniyam') which is para materia with
Section 4 of the Land Acquisition Act
(hereinafter referred to as the 'Act'). The
notification under the aforesaid provision
was
issued
on
23.4.1960
and
the
notification under Section 363 of the
Adhiniyam which is analogous to Section
6 of the Act was issued on 26.9.1964. The
possession was taken on 18.6.1971. The
Special Land Acquisition Officer made
the award on 22.6.72 against which the
above two references were preferred by
the claimants separately.

3. Heard Sri K.C.Jain learned
counsel for the claimant/appellants in
both the appeals, Shri Shreekant for
respondent no.4 to whom the scheme was
transferred and Sri R.C. Srivastava
learned standing counsel for respondents
no.1, 2 and 3.

4. Learned counsel for the appellants
has submitted that he is not pressing his
claim for enhancement of the market
value as awarded by the Tribunal. He has
made two submissions. First, in view of
the amended provisions of the Act the
claimants are entitle to interest on
damages. Secondly, the claimants are also
entitle to interest at the higher rate as
provided under the amended provisions of
Section 28 of the Act i.e. at the rate of 9%
for the first year of possession and at the
rate of 15% for subsequent years on the
excess amount of compensation awarded.

5. A perusal of the impugned award
of the Tribunal indicates that the claimant
has been awarded damages at the rate of
Rs.18/- per sq. yard but on this amount no
interest has been given. In the case of
Neeta Vs. Collector, Agra 1991 ALJ 8
which was also a case relating to the same
acquisition, this Court has ruled that for
the delay in awarding compensation the
claimant is entitled to damages under
Section 48-A of the Act and interest under
Section 28 of the Act is also admissible
on such damages. To the same effect is
another decision of this Court which is
reported in 1991 AWC 1376 Inder
Chandra Jain and others Vs. Collector,
Agra and others. No contrary view on the
point has been placed. Therefore, in view
of aforesaid two decisions it is held that
the claimant appellants are is entitle to
interest on the damages as awarded by the
530 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
reference court on compensation/damages
under Section 48-A of the Act.

6.

Now
comes
the
second
submission of the learned counsel for the
appellant as to the rate of interest which is
admissible to the claimant/appellants on
the excess amount of compensation
awarded by the Tribunal if the same is not
paid and deposited within one year of
taking possession. According to him,
under the proviso to Section 28 of the Act
(as amended) interest on such excess
amount at the rate of 15% per annum is
admissible. This has been objected to by
Shri Shreekant learned counsel for
respondent no.4 and the learned standing
counsel and it has been urged that in view
of the decision of the Apex Court in the
case of Union of India Vs. Raghubir
Singh reported in AIR 1989 SC 1933 the
interest of 15% on such excess amount for
the period after one year of possession is
admissible only if the award of the
Special Land Acquisition Officer and that
of
the
Collector
falls
within
the
interregnum period i.e. between 30.4.1982
and
24.9.1984
and
would
not
be
applicable where the award was made
beyond the above two dates.

7. The Bill for amendment of the
Land Acquisition Act No.68 of 1984 was
introduced on 30.4.1982 and it was passed
and enforced with effect from 24.9.1984.
By the said amendment apart from
introducing and new provisions in the
Land Acquisition Act, i.e. Section 11-A
and 28-A of the Act specific amendments
for
the
purposes
of
awarding
compensation and interest were also made
in Section 23 and 28 of the Act. In this
regard Section 23(1-A) was added and it
was provided that in addition to the
market value the Court shall in every case
award additional amount at the rate of
12% per annum on the market value from
the date of publication of the notification
under Section 4 of the Act till the award
of the Collector or the date of possession
of the land whichever is earlier. The
provisions of Section 23(2) of the Act
with regard to payment of 15% solatium
was amended and the rate of solatium was
increased to 30% of the market value.
Similarly in Section 28 of the Act the rate
of interest admissible on excess amount of
compensation determined by the Court
was increased from 6% to 9% per annum
from the date of possession till the
payment of excess amount in the Court
with a further modification that in case
such excess amount is not paid within one
year of possession interest at the rate of
15% in place of 9% shall be payable on
such excess amount after expiry of the
period of one year. The aforesaid
Amending Act was enforced with effect
from 24.9.1984. Therefore, irrespective of
the date of initiation of the acquisition
proceedings
or
its
completion,
the
aforesaid
enhanced
benefits
are
admissible in all cases where award either
by the Collector or the Court are made
after the aforesaid date. In the instant
case, the award of the reference court was
admittedly made on 27.2.1990 i.e. much
after the enforcement of the Amending
Act and therefore, logically interest as per
the amended provisions of Section 28 on
the excess amount determined was
payable at the rate of 15% after the expiry
of one of one year from the date of
possession in the event of non payment of
such excess amount. Thus, the court was
under a statutory obligation to award such
increased rate of interest.

8. However, some difficulty arises in
extending the aforesaid benefits on
2 All] Smt. Mithlesh V. Collector, Agra and others
531
account of the language used in Section
30(2) of the Amending Act which
provides as under:

"30.
Transitional
provisions:(1)...............
(2) The provisions of sub-clause (2)
of Section 23 and Section 28 of of the
principal Act, as amended by clause (b) of
Section 15 and Section 18 of this Act
respectively, 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 in
appeal against any such award under the
provisions of the principal Act after the
30th day of April, 1982 [the date of
introduction of the Land Acquisition
(Amendment) Bill, 1982, in the House of
the
People]
and
before
the
commencement of this Act."

9. The provisions of Section 30(2) of
the Amending Act are only transitional
and not ment to be applied where the
award of the Collector or the Court is
made after coming into force of the
Amending Act. The aforesaid transitional
provision is only for the purpose to meet
the peculiar situation with regard to the
awards of the Collector or the Court
made before the enforcement of the
Amending Act but not earlier to the
introduction of the Bill for the aforesaid
amendments. Thus, it was provided that
the benefits contained under the amended
provisions of Section 23(2) i.e. solatium
and Section 28 i.e. interest shall be
deemed to be applicable even to the
awards of the Collector or the Court
made between the aforesaid two dates.
There is no provision which restricts or
creates bar to the extension of above
benefit to the award of the Collector or
the Court made after the aforesaid dates.
It was in this context that the Apex Court
while interpreting Section 30(2) of the
Amending Act in the case of Raghubir
Singh (supra) laid down that the benefit of
the Amending Act would be available in
every case where the award of the
Collector or of the Court is made between
30.4.82 and 24.9.84. It was nowhere said
by the Supreme Court that such benefit of
Section 23(2) or Section 28 would not be
admissible to the claimants where the
awards are made after the enforcement of
the Amending Act.

10. A plain reading of Section 30(2)
of the Amending Act would itself make it
clear that the benefit of Section 23(2) of
the Act and Section 28 of the Act (as
amended) is available in relation to any
award made by the Collector or the Court
or any order passed by the High Court or
the Supreme Court in appeal against any
such award made after 30.4.1982 but
before
24.9.1984
also.
The
words
"deemed to have applied" and "also" used
in Section 30(2) of the Amending Act are
very material and relevant and connotes
that the award of higher rate of solatium
and interest is not only limited to the
award of the Collector or the Court made
between the aforesaid two dates but
extends to other situations also which
obviously refer to the award of the
Collector or the Court made subsequent to
the enforcement of the Amending Act.

11. This is what has been interpreted
to mean by the Supreme Court in the case
of Union of India and others Vs. Filip
Tiago De Gama of Vedem Vasco De
Gama reported in (1990) 1 SCC 277 and
it was held that in view of construction of
Section 30(2) the enhanced benefit under
the Amending Act would be available
532 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
even in the cases where the awards are
made after September 24, 1984. The
Supreme Court in the aforesaid decision
has observed as under:

"17. Section 30(2) provides that
amended provisions of Section 23 (2)
shall apply, and shall be deemed to have
applied, also to, and in relation to, any
award made by the Collector or court
between April 30, 1982 and September
24, 1984, or to an appellate order
therefrom passed by the High Court or
Supreme Court. The purpose of these
provisions seems to be that the awards
made in that interregnum must get higher
solatium inasmuch as to awards made
subsequent to September 24, 1984.
Perhaps it was thought that awards made
after the commencement of the Amending
Act 68 of 1984 would be taken care of by
the amended Section 23(2). The case like
the present one seems to have escaped
attention by innocent lack of due care in
the drafting. The result would be an
obvious anomaly as will be indicated
presently. If there is obvious anomaly in
the application of law the court could
shape the law to remove the anomaly. If
the strict grammatical interpretation gives
rise to absurdity or inconsistency, the
court could discard such interpretation
and adopt an interpretation which will
given effect to the purpose of the
legislature. That could be done, if
necessary even by modification of the
language used [See Mahadeolal Kanodia
v. Administrator General of West Bengal
AIR 1960 SC 936]. The legislators do not
always deal with specific controversies
which the courts decide. They incorporate
general purpose behind the statutory
words and it is for the courts to decide
specific cases. If a given case is well
within the general purpose of the
legislature but not within the literal
meaning of the statute, then the court
must strike the balance.
18. The
criticism
that
the
literal
interpretation of Section 30(2), if adhered
to would lead to unjust result seems to be
justified.
Take
for
example
two
acquisition proceedings of two adjacent
pieces of land, required for the same
public purpose. Let us say that they were
initiated on the same day - a day some
time prior to April 30, 1982. In one of
them the award of the Collector is made
on September, 23, 1984 and in the other
on September 25, 1984. Under the terms
of Section 30(2) the benefit of higher
solatium is available to the first award
and not to the second. Take another
example: the proceedings of acquisition
initiated, say, in the year 1960 in which
award was made on May 1, 1982. Then
the amended Section 23(2) shall apply
and higher solatium is entitled to. But in
an acquisition initiated on September 23,
1984 and award made in the year 1989
the higher solatium is ruled out. This is
the intrinsic illogicality if the award made
after September 24, 1984, is not given
higher solatium. Such a construction of
Section 30(2) would be vulnerable to
attack under Article 14 of the Constitution
and it should be avoided. We, therefore,
hold that benefit of higher solatium under
Section 23(2) should be available also to
the present case. This would be the only
reasonable view to be taken in the
circumstances of the case and in the hight
of the purpose of Section 30(2). In this
view of the matter, the higher solatium
allowed by the High Court is kept
undisturbed."

12. The three Judges Bench of the
Supreme Court in the case of K.S.
Paripoornan (II) Vs. State of Kerala
2 All] Smt. Mithlesh V. Collector, Agra and others
533
1995 (1) SCC 367 also after considering
the Raghubir Singh's (supra) case held
that the restricted interpretation given to
Section 30(2) of the Amending Act
should not be understood to mean that the
benefit thereof would not be available to
the award of the civil court which was
made after the enforcement of the
Amending Act. Thus, the benefits of the
Amending Act are admissible in all those
cases where the award of the Collector or
the Court is made after the enforcement of
the Amending Act and by virtue of
transitional provisions of Section 30 of
the Amending Act even to those cases
where awards of the Collector or the
Court made during the interregnum period
i.e. 30.4.82 to 24.9.84. Therefore, in view
of above legal position, it appears
reasonable
to
hold
that
the
claimants/appellants in the instant case
are entitled to interest at the rate of 15%
on the excess amount of compensation
determined by the Tribunal after the
period of one year of possession in view
of the proviso to section 28 of the Act as
the award of the reference court was made
on
27.2.1990,
i.e.
much
after
the
enforcement of the Amending Act i.e.
24.9.1984.

13. Learned counsel for the
respondent no.4 further placed reliance
upon the reference order of the Supreme
Court in the case of Smt. Leelawati
Agarwal Vs. State of Jharkhand and
another 2008 AIR SCW 2723 wherein the
view expressed in the case of K.S.
Paripoornan (II) (supra) has been
referred to the larger Bench. The said
reference has not yet been decided and the
view which has been expressed in the
case of Filip Tiago De Gama of Vedem
Vasco De Gama (supra) has not been
considered therein. There is no authority
which overrules the view taken in the
above two cases i.e. K.S. Paripoonnan
(supra) and Filip Tiago De Gama of
Vedem
Vasco
De
Gama
(supra).
Therefore, the view expressed therein still
holds the field and this Court, as such, is
bound by the same. It is a recognised
principle of law that the view expressed
by the Court in the order of reference does
not constitute a precedent or a law as
declared by the Court.

14. A Division Bench of this Court
in the case of Globe Metal Industries and
others Vs. State of U.P. and others
reported in 2009(4) A.D.J. 563 has held
that where the larger Bench of the
Supreme Court has not decided the
reference the earlier decisions of the
smaller Bench continues to hold the field
and the courts would be bound by the
same. A Single Judge of this Court in the
case of Ram Adhar Vs. State of U.P. and
others reported in 2008(8) A.D.J. 466 in
context of the reference order in the case
of Smt. Leelawati Agarwal (supra) has
held that as the larger Bench to which the
matter has been referred in the Supreme
Court has not decided the same, the
earlier decision, i.e. the decision in the
case of K.S. Paripoornan (II) (supra)
shall govern the appeals.

15. Thus, the second point as raised
is
answered
in
favour
of
the
claimant/appellants. They are held entitle
to interest at the rate of 9% p.a. for the
first year of possession and thereafter at
the rate of 15% p.a. on the excess amount
awarded by the Tribunal.

16. Accordingly, both the appeals
succeed in part. The judgment, order and
award of the Tribunal dated 27.2.1990 is
534 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
modified and the claimants/appellants are
held entitled to:

(i) interest on damages as awarded
by the Tribunal under Section 48-A of the
Act; and
(ii) interest on compensation at the
rate 9% p.a. for one year of possession
and at the rate 15% p.a. thereafter.

17. However, in view of the
reference pending before the Supreme
Court, liberty is given to the respondents
to apply for review, if necessary, in
accordance with the view ultimately
expressed by the Apex Court in the
pending reference of Smt. Leelawati
Agarwal (supra).

18. Parties to bear their own costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.05.2009

BEFORE
THE HON'BLE S.P. MEHROTRA, J.

Civil Misc. Writ Petition No. 3365 of 2007

Rashi Kesh

...Petitioner

Versus
Veer Bahadur Singh Poorvanchal University,
Jaunpur and others
 ...Respondents

Counsel for the Petitioner:
Sri P.N. Saksena
Sri S.M. Yadav

Counsel for the Respondents:
Sri Anil Tiwari
S.C.

Constitution
of
Indian-Art.
226Cancellation of M.Com. Degree as well as
the registration of research Scholar-on
the ground after M.B.A. 2002-petitioner
got registration for Ph.D. Course from
Purvanchal University-submits thesis in
the year 2005-during this period persue
the M.Com. Degree and also worked as
teacher
in
self
finance
institution
affiliated to the university-appointment
was duly approved-consequently the
executive
council
takes
impugned
decision-without
any
notice
or
opportunity of hearing-held-principle of
Natural Justice violated- order quashed-
with
liberty
take
fresh
decision
in
accordance with law after given full
opportunity of hearing to petitioner.

Held: Para 26 & 27

In my opinion, before taking the above
decisions,
the
Academic
Counsel
(Respondent no. 2) was bound to give
notice
to
the
petitioner,
and
after
affording
reasonable
opportunity
of
hearing to the petitioner, any decision in
the matter should have been taken. The
Academic Council has evidently taken
the above decisions in total disregard of
the principles of natural justice.

In the circumstances, the decision of the
Academic Council (respondent no. 2)
taken in its meeting held on 9.12.2006 in
regard to the petitioner under Agenda -
Item No. 3 under the heading "Other
points raised with the permission of the
Chairman"
whereby
the
petitioner's
M.Com. Degree as well as his registration
for Ph.D. have been cancelled, cannot be
sustained, and the same is liable to be
quashed, and the matter is liable to be
remanded to the Academic Council for
deciding the same afresh after getting
reasonable opportunity of being heard to
the petitioner.

(Delivered by Hon'ble S.P. Mehrotra, J.)

1. The petitioner has filed the
present Writ Petition under Article 226 of
the Constitution of India, interalia,
praying for quashing the decision of the
Academic
Council
dated
9.12.2006