EXECUTIVE ENGINEER, NANDUR, MADHAMESHWAR CANALversusVILAS EKNATH JADHAV AND OTHERS

                    [2013) 2 S.C.R. 493


 EXECUTIVE ENGINEER, NANDUR, MADHAMESHWAR                         A
                   CANAL
                              v.
         VILAS EKNATH JADHAV AND OTHERS
           (Civil Appeal No. 2919 of 2013 etc.)
                                                                  B
                      APRIL 02, 2013

             [SURINDER SINGH NIJJAR AND
              PINAKI CHANDRA GHOSE, JJ.]

    LAND ACQUISITION ACT, 1894:                                   c
     Dispossession of land owner prior to notification u/s 4(1)
- Damages - Held: In case the land owner has been
dispossessed prior to the issuance of the preliminary
Notification uls 4(1) of the Act, it will be open to such land    D
owner to recover the possession of his land by taking
appropriate legal proceeding - In case the possession is not
recovered, he would be entitled to rent or damages for use
and occupation for the period Government retained
possession of the properly.
                                                                  E
   R.L. Jain (DJ by LRs. versus D.D.A. and Others 2004(2)
SCR 1156 =AIR 2004 SC 1904 - relied on.

                     Case Law Reference:
                                                                  ·F
    2004 (2) SCR 1156         relied on             para 1
     CIVIi APPELLATE JURISDICTION: Civil Appeal No. 2919
of 2013.

     From the Judgment and Order dated 28.04.2009 of the          G
High Court of Judicature of Bombay, Bench at Aurangabad in
Writ Petition No. 2458 of 2009.
                              WITH

                             493                                  H
    494      SUPREME COURT REPORTS                    [2013] 2 S.C.R.


A C.A. No. 2920 of 2013.

        Babu Marlapalle, Sudhanshu S. Choudhari for the
    Appellant.

B       Shankar Chillarge, Asha Gopalan Nair for the
    Respondents.

          The following order of the Court was delivered

                                  ORDER
c         1. Leave granted.

          2. In spite of service, none has appeared on behalf of
    respondent Nos. 1 to 4, the persons whose land was acquired.
    Mr. Babu Marlapalle, learned senior counsel appearing for the
D   appellant submits that the judgment of the High Court is contrary
    to the law laid down by this Court in R.L Jain(D) by LRs.
    versus D.D.A. and Others reported in AIR 2004 SC 1904. He
    submits that the appellant had taken possession of the land of
    respondent Nos. 1 to 4 on 3.6.2001 whereas the Notification
E   under Section 4 of the Land Acquisition Act, 1894 (hereinafter
    referred to as 'the Act') was issued on 30th December, 2006.
    Undoubtedly, the aforesaid respondents would have been
    entitled to interest on the statutory benefits under the Act
    calculated from the date when the Notification under Section 4
F   of the Act was issued. However, for the period between
    3.6.2001 and 30.12.2006, they would only be entitled to rental
    compensation. On the rental compensation determined by the
    Land Acquisition Officer, the respondents would also be
    entitled to the interest at Bank rate. In support of this, he relies
G   on observations made in paragraph 18 of the judgment in R.L.
    Jain(D) supra. In the aforesaid paragraph, this Court has
    observed as follows :-

                "18.ln a case where the land owner is dispossessed
          prior to the issuance of preliminary Notification under
H         Section 4(1) of the Act the Government merely takes
  EXECUTIVE ENGINEER, NANDUR, MADHAMESHWAR                        495
          CANAL v. VILAS EKNATH JADHAV
       possession of the land but the title thereof continues to vest     A
       with the land owner. It is fully open for the land owner to
       recover the possession of his land by taking appropriate
       legal proceedings. He is therefore only entitled to get rent
       or damages for use and occupation for the period the
       Government retains possession of the property. Where               s
       possession is taken prior to the issuance of the preliminary
       Notification, in our opinion, it will be just and equitable that
       the Collector may also determine the rent or damages for
       use of the property to which the land owner is entitled while
       determining the compensation amount payable to the land            c
       owner for the acquisition of the property. The provision of
       S.48 of the Act lend support to such a course of action.
       For delayed payment of such amount appropriate interest
       at prevailing bank rate may be awarded."
     3. The aforesaid observations make it abundantly clear that . D
in case the land owner has been dispossessed prior to the
issuance of the preliminary Notification under Section 4(1} of
the Act, it will be open to such land owner to recover the
possession of his land by taking appropriate legal proceeding.
In case the possession is not recovered, he would be entitled E
to rent or damages for use and occupation for the period
Government retained possession of the property.
     4. These observations fully support the submissions made
by learned senior counsel for the appellant.                              F
    5. In view of the above, the appeals are allowed. The
judgment and order of the High Court is modified to that extent.
R.P.                                               Appeals allowed.