Bhagappa and Another vs State of Karnataka

Hari Nath Tilhari, J.-These appeals arise from the common judgment dated 2nd July, 1999, by the 1st Additional District Judge, Gulbarga, in Appeal Nos. L.A.Cs. As. 241 to 251 of 1997, arising from the Land Acquisition Case Nos. L.A.Cs. 98 to 100 of 1996, 102 and 103 of 1996, 107, 109, 110, 112, 113 and 550 of 1996.

In these cases, the land was acquired vide preliminary notification published on 25-4-1991, under Section 4 of the Land Acquisition Act and the final notification had been published in Karnataka Gazette, dated 25-6-1992.

The Land Acquisition Officer awarded the compensation at the rate of Rs. 14,000/- per acre, and on reference being made to the Civil Judge, (Senior Division), Yadgir, in the above land acquisition cases, the Civil Judge enhanced the amount of compensation to Rs. 26,000/- per acre.

The learned Civil Judge also ordered that claimants will be entitled to additional market value at the rate of 12% per annum determined from the date of notification till the date of award or till the date of taking possession whichever is earlier. The Civil Judge further held that the claimants were entitled to interest at the rate of 9% per annum on enhanced compensation for the first year and at the rate of 15% per annum for the subsequent years till the amount is paid and deposited.

On the appeals being filed before the District Judge, the learned District Judge allowed all the appeals, in part, from the order of the Reference Court and held that the appellants are entitled to compensation at the rate of Rs. 32,500/- per acre and the appellants are entitled to the benefits awarded by the Trial Court. Thus modified the judgment of the learned Civil Judge, Senior Division.

Feeling aggrieved by that order of the learned District Judge, the claimants have come up before this Court by way of these miscellaneous second appeals.

I have heard learned Counsel for the appellants Sri V.N. Madhava Reddy and the learned Government Counsel for the respondents-the State.

The only contention that has been advanced in these appeals in that the Reference Court as well as the Appellate Court acted illegally and committed error of law by not awarding 12% additional market value with effect from the date of taking of possession of the appellants'' lands by the respondent in December 1975, that is from 22-12-1975. He submitted that there is notification of the Government under Section 16 of the Act which indicates that possession was taken from 22-12-1975. He further contended that finding on that aspect. Whether possession had was taken on 22-12-1975, suffers from error of law, as the Reference Court as well as the Appellate Court did not apply their minds to the order of reference of land which indicated that the claimants were deprived of their possession with effect from 22-12-1975. He no doubt fairly submitted, that appellants did not state in deposition that possession was taken from 1975, but he submits even the reference order clearly shows and admits possession to have been taken in 1975. He submitted that Section 23(1-A), sub-section (1) provides that compensation is to be paid, if possession has been taken, before publication of notification under Section 4 of the Act, then from the date of possession to the date of award and not from date of notification under Section 4. He submitted that the expression from the date of possession or whichever is earlier is to be read, as to control the country or determination two points of the periods, i.e., date of commencement of the period as well as the date of ending of that period. If possession has been taken earlier, then it has to be counted upto the date of award, but it has to be counted from the date of taking of possession.

Learned Counsel for the appellants in the connection made reference to the decision of their Lordships of the Supreme Court in the case of Assistant Commissioner, Gadag Sub-Division, Gadag v Mathapathi Basavannewwa, 1996(6) Kar. L.J. 554 (SC). The contentions of the appellants'' Counsel have hotly been contested by the learned Government Counsel Sri Ramaiah. Sri Ramaiah contended, that firstly the finding of fact has been recorded by two Courts that there has been no evidence to prove that the possession of the land had been taken on 22-12-1975. He contended that appellants should have filed that notification on which they want to rely here, at the stage of second appeal and appellants did not file the evidence and so it is not to be taken on record and the finding has been arrived at after considering the statement of P.W. 1, who has nowhere said that possession was taken earlier to notification under Section 4 of the Act and the Land Acquisition Officer inspected on 5-8-1992, and found the owners were all cultivating their lands.

The learned Government Counsel further contended, that therefore the finding of fact recorded by two Courts that the possession has been taken earlier has not been established is justified, correct and need not be interfered with. In the alternative, Government Counsel contended that even if that be taken to be the date and anyhow it is established that possession was taken on 22-12-1975 earlier to notification, as alleged by the appellant''s Counsel, in view of language of Section 23(1-A) the provisions of Section 23(1-A) indicates the period for which and commencing from which date and ending or upto which additional value will be allowed at the rate of 12% p.a. and the language being specific, clear, and not being ambiguous or dubious and it provides and specifies that the period has to be counted from the date of notification under Section 4 of Act and till the date of award or till the date of possession being taken whichever is earlier. Learned Government Counsel contended that date of commencement is one only, i.e., date of publication of notification but the date upto which it is to be counted are either date of award or date of taking of possession whichever is earlier, so Courts below did not commit any error. Learned Counsel for the Government contended that the benefit of this provision is also not available in relation matters of possession which had taken at any time earlier to the publication of notification under Section 4 of the Act as it is publication of notification under Section 4 of Act that sine qua non to commencement of acquisition proceedings.

The learned Government Counsel urged the language of Section 23(1-A) being clear and unambiguous it has to be taken as expressive of legislative intent and specially when with reference to commencement of period specific reference has been made to one date, that is the date of publication of notification and no other date, but while with respect to ending period, i.e., upto which date two alternative dates have been mentioned whichever is earlier. Keeping in view the point of time, i.e., on which Land Acquisition proceeding commences.

Learned Government Counsel made reference in this connection to another decision of their Lordships of the Supreme Court delivered in the case of Special Tahsildar (LA), P.W.D. Schemes, Vijayawada v M.A. Jabbar, AIR 1995 SC 762 and placed reliance on observations mentioned on paragraph 3.

Learned Government Counsel contended, that while dealing with the case of Mathapathi Basavannewwa,supra which was decided on 17-8-1995, it appears that the earlier decision in the case of M.A. Jabbar, supra, escaped the notice of the Bench or it was not brought to the notice of the Bench, i.e., their Lordships of the Supreme Court.

Learned Government Counsel contended, that as such decision in Mathapathi Basavannewwa''s case, supra, which appears to be in conflict with earlier decision in M.A. Jabbar''s case, supra, no doubt the Senior Judge in the Bench is the same Judge, though the other brother is different. The decision in the case of Jabbar has not been taken note of, escaped notice of Hon''ble Judges while deciding the Mathapathi Basavannewwa''s case, supra and so the decision in Mathapathi Basavannewwa''s case may be said to be per incuriam. Learned Counsel further contended that this Court had expressed the view in Assistant Commissioner-cum-Land Acquisition Officer, Hospet v S.P. Mallaiah, 1991(4) Kar. L.J. 101 (DB), which appears to be running in consonance with the view expressed in AIR 1995 SC 2767 that 12% additional market value is available from the date of notification to the date of taking possession. He also referred to my earlier decision as well in the case of B.S. Ramaswamy v Land Acquisition Officer, Sagar, 1999(2) Kar. L.J. 239, where this Court had also taken the view that claimant has been entitled to additional amount at the rate of 12% per annum on the market value from the date of publication of notification under Section 4(1) of Land Acquisition Act till the date of award and urged that the Court below rightly held that the claimant is entitled to award of 12% p.a. additional sum from the date of notification under Section 4 of the Act to the date of award.

I have applied my mind to the contentions made by the learned Counsels for the parties.

As regards the question regarding possession being taken earlier to notification, the appellants had not filed in Courts below the notification issued under Section 16 of the Act which appellants has sought to file here, though it was available to the appellants nor the State Government has filed it. The Land Acquisition Authority did not indicate that in Ex.P. 1, a judgment in another case, relating to the same circumstances, it has been mentioned that possession was taken on 22-12-1975, but in that case notification with respect to all those lands involved therein was issued in 1988. Therefore, that Ex. P. 1 may not be of much help, because that related to those lands which were subject matter of notification under Section 4, issued in 1988. The question of fact, very material in these cases, because these lands which were acquired under Section 4(1) of the Land Acquisition Act notification issued and published in 1991; is whether their possession was taken from the land owners earlier to 1991.

In oral evidence, the claimants have not deposed as to when possession of land acquired was taken nor have they deposed that it was taken in December 1975. But, the reference order made by the Land Acquisition Officer clearly shows and mentions that possession was taken from the owners of lands involved, on 22-12-1975 and interest was awarded from that date. It indicates that the Land Acquisition Officer himself admits that possession had been taken on 22-12-1975. This evidence furnished on the record by reference order itself clearly proves the claimants case that possession of the land was taken in December 1975 (22-12-1975) and this has escaped notice of the two Courts. Thus the finding recorded by the two Courts that claimants failed to establish that possession was taken prior to issuance of notification under Section 4, is incorrect and suffers from error of law being based on non-consideration of admissible material and relevant evidence available on the point available on record.

That finding is reversed, it is held that possession was taken, no doubt, on 22-12-1975, as per reference order made by the Land Acquisition Officer. Further, the Court can take notice, no doubt in the interest of justice, of the notification issued under Section 16. That also establishes, that possession of the land was taken from the appellants on 22-12-1975 much before the issuance of notification under Section 4(1) of the Land Acquisition Act.

Section 23(1-A). This Section''s sub-section was introduced by amending Act 68 of 1984 and here Land Acquisition proceedings, firstly, i.e., originally started in 1991. This section will, no doubt apply to this proceeding and there is no dispute about it.

The only question is from what date the period is to be counted forwarding 12% additional market value at the rate of 12% per annum.

Section 23(1-A) reads.-

"In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of 12% per annum on such market value for the period commencing on and from the date of publication of notification under Section 4, sub-section (1), in respect of such land to the date of award of the Collector or the date of taking possession of the land whichever is earlier".

The question before the Court is if the expression, or the words, "the date of taking possession of the land whichever is earlier", is to control and apply with reference to both the dates, namely, the date of commencement of the period from which date that period is to be counted as well as the date on which this period is to end or it only controls the latter date, that it is the latter means, date on which the period is to come to an end, that is the date upto which the relevant period under Section 23(1-A) is and has to be counted.

It is one of the well-settled principle of law of interpretation of statute, if the language of the statute or the provision is clear and unambiguous, it has to be given effect to, but if there is ambiguity in the language of an enactment, and it appears to entertain two interpretations or if two interpretations are possible thereof, then no doubt interpretation beneficial to the subject as well as one fulfilling the object of enactment has to be adopted, and, the other considerations may arise in that situation, but as mentioned earlier where the language is very clear, unambiguous and is expressive of the legislative intent, then it has to be interpreted literally and in accordance with the clear terms and expressions used in this section of the enactment. When I so observe, I find support from the following observations of the Hon''ble Supreme Court in M/s. Oswal Agro Mills Limited v Collector of Central Excise, AIR 1993 SC 2288, which read as under.-

"Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The Court would interpret them as they stand. The object and purpose is to be gathered from such words themselves. Words should not be regarded as being surplus nor be rendered otiose. Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings. The safer and more correct course to deal with a question of construction of statute is to take words themselves and arrive, if possible, at their meaning, without in the first place, reference to cases of theories of construction".

Section 23(1-A) and it appears to me that the language of Section 23(1-A) is unambiguous and clear and is not susceptible to two interpretations. It no doubt provides for awarding of additional market value or something in addition to market value, at the rate of 12% per annum on the market value, and with reference to what period, it has to be awarded at the rate of 12% per annum, has very specifically been stated therein i.e.,for the period commencing on and from the date of publication of notification under Section 4, sub-section (1) and the latter part, again says upto the date of the award being given by the Collector or the date of taking possession whichever is earlier. It is beyond doubt and very clearly provided that it is to be awarded for the period which commences or starts from the date of publication of notification under Section 4(1) of the Land Acquisition Act and no other date is mentioned or referred to therein with reference to date of commencement of that period. This expression, "or the date of possession whichever is earlier" refers to the point of time or date upto which the period is to be counted. Had the intent of the Legislature been that the period for which 12% additional amount has to be paid on the market value of such amount, even for the period prior to the commencement of acquisition proceedings by issuance of notification under Section 4, for the reason that in some case possession might have been taken before the issuance of notification under Section 4, the Legislature would have used that expression and it would have run for the period commencing on or from the date of publication of notification or the date of taking possession, if earlier and to the date thereafter to the date of award and taking of possession, if it is later or earlier. The Legislature has not used any such word. The Legislature could as well have provided an explanation that if possession has been taken earlier than issuance of notification under Section 4(1), then the period is to be counted from the date of taking possession. When we look to the scheme of the Land Acquisition Act, it is the law which provides for acquisition of land. Under the scheme of the Act vide Section 4 notification has to be issued and be published for commencement of or for initiating land acquisition proceedings then it provides for a declaration under Section 6 which declares that declaration made under Section 4 of the Act is being confirmed, and notification under Section 6 is conclusive evidence that the Land is needed for public purpose.

Section 5 indeed deals with payment of damages and hearing of objection. Then thereafter the Legislature has provided taking of possession of the land under Section 16 of the Act which generally provides that when the Collector has made the award under Section 11, he may taken possession of land which thereupon shall vests absolutely in the Government free from encumbrances. It is also provided under Section 17, as a special provision dealing with the cases of urgency, that whenever appropriate Government in cases of urgency so directs, though no award has been made, the Collector may on the expiration of 15 days of notice under Section 5, tale possession of the land needed for public purpose, that is before making of the award.

General principle under Section 16 is that, possession is to be taken after the award has been made under Section 11, but in cases of exceptional circumstances, provisions of the Act such as Section 17, have also been provided that after publication of notice under Section 4, the authorities may take possession even before the award is made and in the circumstances of contingencies, as indicated in Section 17 of the Act.

Keeping these provisions, in view it appears that Legislature did never conceive that possession of the land will be taken by authorities from the land owners, without having recourse to the provisions of law or the Act relating to Land Acquisition, keeping in provisions of Constitution including Articles 31 and 300-A and others. That under provisions of Land Acquisition Act for commencing the acquisition proceeding, necessary notifications under Sections 4 and 6 of the Act have to be issued and the said notifications are sin qua non therefore and the possession can be taken only after issuance of notification under Sections 4 and 6, and generally after the delivery of award by the Land Acquisition Officer under Section 11, but in cases of urgency covered by Section 17, clauses (a) to (iv), the authorities are no doubt permitted to take possession, even before the delivery of award but beyond doubt only after publication of notification under Section 4 of the Act. The Act does not appear to conceive, as mentioned earlier, of taking of possession earlier then commencement of land acquisition proceedings by issuance and publication of notification under Section 4(1) of the Act. In such circumstances when the Act itself does not appear to conceive the taking of possession before the commencement of proceedings under Section 4(1) of the Act the Legislature/Parliament when it enacted under Section 23(1-A), it specifically provided that the relevant period thereunder is to commence from the date of publication of notification under Section 4, and then the period has to run either upto either of the two dates i.e., the date of award or to the date of taking of possession of land, if possession has been taken under Section 17 of the Act earlier to the date of award, but not earlier to issuance of notification under Section 4 of the Act, the compensation under Section 23(1-A) at the rate of 12% p.a. is to be awarded from the date of issuance of notification under Section 4 to the date of taking of the possession or to the date of giving of the award whichever is earlier. No doubt it has been contended that if possession has been taken from a land owner and he has been deprived his right to possess and enjoy the land and the benefits thereof even before the issuance of notification under Section 4, the land owners are to be subjected to loss and injury if it is so interpreted as above and as contended by learned Government Counsel. That may be so, but where words are clear and unambiguous it is not the function of the Court to add any words or to modify the language of the Act or section or provision. It is the function of Court in cases where language of Act is clear, express and unambiguous to give it effect.

It may be in such cases where a land owner has been or is being deprived of possession and right of enjoyment of his land by State or authorities in a manner otherwise than the authority of law he may claim compensation or damage for civil wrong done to him as above by way remedies under law or tort and damages in Civil Court,. Such a person may be entitled to be compensation for loss, but nor under Land Acquisition Act, he may have a remedy for being deprived of possession and enjoyment of the land earlier to its acquisition, according to ordinary civil law read with Article 300-A of the Constitution but he may not get that in proceedings under Land Act until the provisions under Section 23(1-A) is so amended to cover such a situations also.

If I accept the contention of the learned Counsel for the appellants that claimants are entitled to compensation from the date of taking of possession from them, even before issuance of notification under Section 4 of the Act, in my opinion firstly it will be rewriting the section which is not permissible while dealing with the question of interpretation. Legislation is the function of Legislature, it can amend it no doubt. If I accept the interpretation suggested and placed by the learned Counsel for the appellant, it would in effect be giving the retrospective effect to the provisions of Section 23(1-A) and more retrospective than Section 30, of Act 68 of 1984 has provided for it. In this view of the matter, I am unable to accept the contention. When I so observe, I find support for my view from the decision of their Lordships of the Supreme Court in the case of M.A. Jabbar, supra (Civil Appeal Nos. 1891 and 1892 of 1989, decided on 11th January, 1995). In that decision, a Bench consisting of Hon''ble Mr. Justice K. Ramaswami and Mrs. Sujatha V. Manohar, JJ., laid down, law on the subject. In that case also the claim was made for additional sum under Section 23(1-A) from the date of possession being taken on February 15th, 1965, that is long before issuance of notification under Section 4 which notification was issued and published under Section 4(1) on March 6th, 1980. It was contended that since possession was taken earlier to the date of notification under Section 4(1), the claimants are entitled to additional amount of 12% per annum from the date of taking possession from them namely February 15th, 1965. Dealing with the question their Lordships laid down in paragraph 3, as under:

"On a true interpretation of sub-section (1-A) of Section 23, we are of the considered opinion that the High Court was right in concluding that the claimants are entitled to the additional amount at the rate of 12% per annum from March 6th, 1980, the date of publication of the notification till the date of award, namely 30th September, 1983, sub-section 1-A of Section 23, adumbrates, that in addition to the market value of the land, the Court shall in every case award an amount calculated at the rate of 12% per centum per annum on such market value for the period commencing on and from the date of publication of the notification under Section 4(1) in respect of such land to the date of the award of Collector or the date of taking possession whichever is earlier. In other words the owner of land, who has been deprived of the enjoyment of land by having been parted with possession, the Act intended that owner be compensated by awarding an additional amount calculated at the rate of 12 per centum on the enhanced market value for the period from the date of notification and the date of award or date of taking possession whichever is earlier. Admittedly possession having already taken on February 15th, 1965 before publication of notification under Section 4(1) on March 6th, 1980, the award of additional amount for the period from March 6th to 30th September, 1993, the date of award under Section 11 is perfectly correct. In addition to the statutory benefits the owner is entitled to the additional amount, but to give an award for additional amount from 15th February, 1965, from the date of taking possession, though apparently earlier in point of time mentioned in Section 23(1-A), in effect it amounts to giving retrospective effect to sub-section (1-A) to Section 23 under the Amendment Act 68 of 1984, even though the amendment was prospective and transitory provision had in the retro limited activity.

Therefore, we hold that claimant will be entitled to an additional amount of the enhanced rate of market value at 12% per annum, again from the date of publication of notification under Section 4(1), till the date of the award since possession had already been taken before Amending Act has come into force".

A Division Bench of this Court in the case of Mallaiah, supra (Miscellaneous First Appeal No. 2585 of 1991, decided on 20th December, 1991) has also case their Lordships laid down that:

"It is true in the given case is in the general purpose of the Legislature, but it is not within the literal meaning of the statute, then the Court must strike the balance by reading a general statute as has been pointed out by the Supreme Court in the aforementioned observations. But when we look to the period for which the amount awardable under Section 1-A of Section 23 of the Act has to be awarded, it is the period which occurs between the date on which the proposal for acquisition of the land is made, and the date on which the proposal becomes conclusive by making of the award or by taking possession of the land, whichever is earlier and for which period no amount of interest is awardable under the Act on the amount of compensation so awarded. The period which may lie between the date of preliminary notification for acquisition of such land and the date of award of Collector, by which the proposal of acquisition is concluded, or the date of taking possession of such land, from the point of view of claimants of those lands, would be a period of suspense or waiting for them and will result in non-effective utilisation of such lands in that period, inasmuch as compensation for improvements effected for land for that period is not payable in the Act. It is obvious that the purpose of sub-section (1-A) of Section 23, is to compensate the claimants for the said period of suspense and waiting and non-effective utilisation of the land, that the amount of 12% on the market value of the land when the possession of land to be acquired in pursuant to the preliminary notification already taken and interest on such compensation becomes payable from the date of taking possession, question of the period of suspense or of waiting of the claimants, for which they are to be compensated cannot arise. When the matter is moved at in this light, non-payment of amount awardable under Section (1-A) of Section 23 in respect of land for the period between the date of publication of the preliminary notification to the date of making of award, the clear meaning of that sub-section cannot in any way defeat the purpose of that sub-section".

Following the decision of the Supreme Court in the case of M.A. Jabbar, supra, this Court in the case of B. Ramaswamy, supra, has also opined that claimant is entitled to an amount of 12% per annum on the market value only from the date of notification under Section 4, of the Act and upto the date of award, though possession had been taken in that case as well before the issuance of notification under Section 4.

The learned Counsel for the appellant placed much reliance on the another decision of the Supreme Court in Mathapathi Basavannewwa''s case, supra (In SLP (Civil) No. 17885 of 1995, on 17th August, 1995). In this above noted case, the possession was taken, no doubt in 1971, and notification under Section 4(1) of the Land Acquisition Act was published on 2-8-1984. The award was given on 15-1-1986 and the question had arisen before the Court; whether the claimant was entitled to grant of award from the date of taking of possession anterior to issuance of notification under Section 4 of the Land Acquisition Act to the date of award or from the date of notification till the date of giving award. In this Mathapathi Basavannewwa''s case, it appears additional amount was awarded under Section 23(1-A) of the Act at the rate of 12% per annum on the market value from the date of taking of possession, and the appeal was filed by the State, and in that case dismissing the SLP, the Bench consisting of Hon''ble Ramaswamy and Hansaria, JJ., observed:

"The object of introducing Section 23(1-A) is to mitigate the hardship caused to the owner of the land, who has been deprived of the enjoyment of the land by taking possession from him and using it for the public purpose, because of considerable delay in making the award and offering payment thereof. To obviate such hardship, Section 23(1-A) was introduced and the Legislature envisaged that owner is entitled to 12% per annum additional amount on the market value for the period commencing on and from the date of publication of the notification under Section 4, i.e.,Section 4(1) of the Act in respect of such land upto the date of the award of the Collector or the date of taking of possession of land whichever is earlier. At times after publication of notification under Section 4(1), by invoking power of urgency under Section 17(4), possession is taken before making the award. The additional amount of 12% was intended to be paid as compensation from the date of taking possession. But strict construction leads to unjust result and hardship to the owner and defeats legislative object, to a case like one in hand, when possession was taken long before publication of notification.

In the meanwhile owner was deprived of enjoyment of property, in otherwords, if possession is taken earlier and notification is issued later, but award is made subsequently owner or the claimant is entitled to the compensation from the date of taking possession till the date of award, though possession was taken before notification under Section 4(1) was published. The expression "whichever is earlier, has to be construed in that backdrop and the claimant would be entitled to additional amount from the date of taking possession". This other decision of the Supreme Court in a sense runs counter to and in conflict with the decision of the Supreme Court in the case of M.A. Jabbar, supra, to which decision the attention of the Court was not invited at the time of hearing and decision of the case Mathapathi Basavannewwa, supra, and this later decision appears to have given in ignorance of its earlier decision in Jabbar''s case. It is one of the trite principle of law or precedent that a decision which is sub silentio or per incuriam, that is not binding precedent. A per incuriam decision is one which has been arrived at in ignorance or is arrived at without taking into consideration either the material provisions of the Act or of some earlier decision of its own or of Higher Court of the land. In this case, it appears attention of the Hon''ble Judges was not invited to the earlier decision of their Lordships of the Supreme Court in the case of M.A. Jabbar, supra which had been given by a Bench consisting of Hon''ble Ramaswamy, J. and Madame Sujatha Manohar, J. in January 1995. The decision i.e., the subsequent decision in Mathapathi''s case, supra, therefore, both, in my opinion cannot be taken to be laying down or declaring the law under Section 23(1-A) nor can operate as precedent, as earlier decision of their Lordships, has not been taken into consideration law laid in Jabbar''s case and decision therein was not brought to their notice. So the decision in Mathapathi''s case, is really per incuriam. Further it has not been brought to their notice of the Lordships that Land Acquisition Act provides for taking of possession only of the land acquired in accordance with the provisions of law of acquisition and under the scheme of the Act, it is no where been conceived that possession can be taken by state even otherwise than according to law or even without following the provisions of Land Acquisition Act.

Land Acquisition Act conceives that possession can be taken from the land holder only after the proposal has been published under Section 4 and not otherwise, no doubt in a case of urgency, possession may be taken following the procedure under Section 17, even before the delivery of award otherwise ordinarily under and as per scheme of the Principal Act, that is Land Acquisition Act. The possession can be taken only under Section 16 of the Act, i.e., after the award has been made, then the Collector may taken possession of the land where upon land shall stand vested. The exception to Section 16 is carved out with reference to case covered by urgency class cases under Section 17 of the Act, whereunder Collector, as per the provisions of Section 17 of the Act may take possession before the delivery of award by Collector but that after notification under Section 4 of the Act being published. With all due respect to Court giving decision in the case of Mathapathi, I follow the earlier decision of Supreme Court M.A. Jabbar''s case, supra and other decisions, and taking that the decision in AIR 1995 SC 2532, to be per incuriam decision as not being binding for the above reason.

Thus considered, in my opinion, the additional amount that has been awarded in all these cases under Section 23(1-A) at the rate of 12% per centum per annum on the market value from the date of notification under Section 4 of the Act till the date of award cannot be said to suffer from any error of law or jurisdiction.

Learned Counsel fo r the appellant contended that he is entitled to interest under Section 28, at the rate of 9% per annum from the date of possession being taken, and to the date of payment of interest for one year he is entitled at 9% and for remaining period, at the rate of 15%, order of the Reference Court has to be read as awarding interest under Section 28 of the Act, as law provides. There is nothing to interfere with the order, as such, except explaining as above.

Thus considered the orders impugned in these appeals have not been shown to suffer from any error either of jurisdiction or of law or of fact as such all these appeals have no merits and are hereby dismissed. No costs.