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Malprabha reservoir project – If disputed area comes under submergence, then the claimant shal

Chanabasappa v Karnataka Neeravari Nigam Ltd and Ors., Civil Appeal No. 475 of 2020 arising out of SLP (CIVIL) No. 29148 of 2016 – January 21, 2020.

The Bench comprising of the Justice. Arun Mishra and the Justice. Indira Banerjee has directed the collector to decide the appeal filed before this court.

Facts.

The notification was issued for acquisition of appellant’s land on 07.06.2007 and the award was passed on 23.07.2009 to construct the dam under Malprabha Reservoir Project. But the land was said to be came under submergence in the year 1991 when the notification was issued. The High Court ordered that the interest is to be paid from date of the award i.e. 2009 but not from the date of notification issued.

The issues framed by the bench are, Whether the land come under submergence in the year 1991 ? Whether the land was in cultivating possession of the appellant after the notification issued in 1991 ? Whether the damages are claimed from the date of possession or from the date of submergence ?

The contention on the side of the appellant is that the area came under submergence in the year 1991, so the damages have to awarded from the year 1991 till the date mentioned in the notification for acquisition i.e. 2007 and the rent or damages to be awarded as the amount of interest under section 34 of the Land Acquisition Act.

The contention on the side of the respondent side is that the land was in cultivating possession of the appellant from the year 1993 to 2005. Also, the interest amount have been awarded in the year 2009. And the compensation cannot be entitled by the appellant from the year 1991 till the year 2007.

The court observed that in , R.L. Jain v. DDA & Ors. (2004) 4 SCC 79 this Court held that   “In a case where the landowner is dispossessed prior to the issuance of  preliminary notification under section 4 of the Act, it is open to the  landowner to recover the possession of his land by taking appropriate  legal proceedings. Therefore, he is only entitled to get rent or damage  for use and occupation for the period the Government retains possession of the property. When possession is taken prior to  issuance of preliminary notification, the Collector may also determine the rent or damages”.

The Court stated that  while determining the compensation under section 23(1) of the Act, the Court shall take into consideration firstly, the market value of the land on the date of publication, secondly, the damage sustained by reason of taking of any standing crops or trees and other damages at the time of taking possession. Under section 23(1)(A) of the Act, the additional compensation is awarded at the rate of twelve percent per annum on the market value from the date of notification under section 4.  Under section 23(2) of the Act, in addition to the market value, thirty percent solatium is awarded on such market value.

Here the amount of interest been already paid to the appellant under section 34 of Land  Acquisition Act, 1894 from the date of award and not from the date of notification under section 4. As there is no clear documents regarding the question of cultivating possession of the appellant over the land and whether the land has come under submergence in the year 1991 or for how much period the disputed land is under submergence, the court directed the collector to examine the above mentioned issues.

The court held that if the land came under submergence, the interest amount shall be awarded under section 34 to the appellant, from the date of notification under section 4 till the date of award or also if it is found to be submerged even before the issuance of notification.

–  Prithisha S

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