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Judgment
This appeal is directed against an order dated 23rd August, 2017 by which the writ application was dismissed on merits.
The genesis of the dispute is with regard to an unacquired portion of the land situated near the bank of river Ganga. The writ petitioners initially made a representation before the appropriate authority for acquiring the entirety of the dwelling house and not a portion of its, which they are entitled to do under Section 49(1) of the West Bengal Land Acquisition Act, 1894.
During the pendency of the proceeding, the unacquired portion of the dwelling house has been eroded by the river in 2002. On humanitarian and sympathetic consideration the Principal Secretary, Land and Land Reforms Department, on 23rd November, 2009 requested the Collector to prepare an estimate providing solatiun to the writ petitioners as he deems fit with intimation to R.B. for placement of additional requisite fund following the department's Memo No. 5216-LA dated 16th May, 1997 and Rule 49(1) of the Land Acquisition Manual, 1991.
The said decision of the Principal Secretary appears to have been passed in terms of the order passed by the learned Single Judge on 27th August, 2009.
During the hearing of the earlier writ petition, the learned Counsel for the writ petitioners submitted that the petitioners were willing to accept the decision of the Principal Secretary. Justice Jayanta Kumar Biswas, as His Lordship then was, disposed of the writ petition by observing that the facts of the case and considering the social and economic conditions of the petitioners who have lost their dwelling house. The authority shall determine the market value of the unacquired property as on the date of the judgment i.e. 9th December, 2009 and pay a compensation after such determination. The Special Land Acquisition Officer, Malda, thereafter determined the compensation and passed an order dated 16th February, 2017. This order was challenged before the learned Single Judge on the ground that the claim of the petitioners for interest on the amount of solatium was turned down.
The learned Counsel for the petitioners submits that the respondent authorities have failed to consider the prayer of the writ petitioners for estimate of interest on the amount of solatium in terms of the provisions of Section 23(2) and Section 28 of the Land Acquisition Act, 1894. It is submitted that the petitioners are entitled to get interest on the amount of solatium as per the provisions of Section 23(2) and Section 28 of the Land Acquisition Act, 1894.
Mr. Mukherjee, learned Senior Advocate appearing on behalf of the State respondents has submitted that the solatium is provided to the writ petitioners by the State not on the basis of the provisions of the Land Acquisition Act, 1894 and as such, the petitioners are not entitled to get any interest on the amount of solatium.
It appears from the order dated 9th December, 2009 passed in WP No. 15950(W) of 2004 that the solatium was paid by the State for unacquired portion of the dwelling house of the petitioners on the basis of the policy of the Government of West Bengal. The amount of solatium is decided by the collector by taking into consideration the market value of the property on the date of the order passed by the Court on December, 9, 2009, which implies that the amount of solatium was not decided by the collector on the basis of the provisions of the Land Acquisition Act, 1894, but on the basis of the director given by this Court on December 9, 2009. Section 23(2) of the Land Acquisition Act gives power to the Court to award a sum of 30% on the market value of the land in addition to the market value that may be determined under Section 23(1) of the Land Acquisition Act. There is no provision for payment of interest awarded under the said provisions of law. This provision would not be applicable in the instant case as the amount of solatium is paid to the petitioners by the State on the basis of the policy adopted by the State and by direction of the Court.
We are in agreement with the view expressed by the learned Single Judge that Section 28 of the Land Acquisition Act, 1894 would be invoked by the Land Acquisition Judge for the purpose of payment of interest on excess amount of compensation determined by the Judge and as such, the said provision cannot have any manner of application in the present case of the petitioners.
We, however, make it clear that we have not decided the issue as to whether the petitioners are entitled to get interest on the amount of solatium in respect of the acquired portion of the land. We request Mr. Mukherjee to look into the matter and if it is found that the interest of solatium has not been paid in respect of the acquired portion of the land, the State Government shall take appropriate steps in the matter so that the grievances of the appellants in respect of the acquired portion of the land are redressed.
On such consideration, we do not find any reason to interfere with the order passed by the learned Single Judge.
Both the appeal and the application are taken up for consideration and are accordingly disposed of by this order.
Urgent photostat certified copy of this order, if applied for, be given to be parties as expeditiously as possible.