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2001 DIGILAW 302 (CAL)

RADHABINOD PAL v. STATE OF WEST BENGAL

2001-05-23

D.K.SETH

body2001
DILIP KUMAR SETH, J. ( 1 ) BY an order dated 19th September, 1996 passed in L. A. Case No. 26 of 1983 (valuation) arising out of Land acquisition Case No. K-III/9 of 1980 an award was passed. By means of this writ petition, the petitioner sought to seek for direction upon the Calcutta improvement Trust for payment of the amount in terms of the said award. ( 2 ) LEARNED Counsel for the calcutta Improvement Trust (hereinafter referred to as the Trust) points out that relying on certain decisions of the Apex Court that an award is capable of being executed through independent proceedings and there being alternative remedy, this Court should not have entertained this writ petition. He further contends that a writ Court cannot take upon itself the responsibility for executing the award though there is adequate provision for execution thereof. He, therefore, prays that this writ petition be dismissed. ( 3 ) THE learned Counsel for the petitioner relied on a decision of this court by a Division Bench in The calcutta Improvement Trust v. State of west Bengal and Ors. , wherein same prayer for payment was asked for and was allowed by the learned Single judge, since been appealed against in the said appeal. The said appeal was disposed of on 2nd March, 2001 dismissing the appeal and thereby upholding the authority of this Court in the matter of payment in terms of the award. ( 4 ) I have heard the learned counsel for the respective parties at length. In the present ease, the award was passed as back as in 1996. The Trust has not disclosed any ground as to why the amount has n'ot been paid despite the award having been passed. Normally, the award could have been enforced through Execution. In the present case, there was an order by the Tribunal directing the Trust to remit the amount of the award with interest and cost within two months to the Tribunal under Section 82 (3) of the Code of Civil Procedure. It is this order which has not been complied with. In the case of R. N. De and ors. v. Bhagabat Pramanick and Ors. , it was held that the power of contempt should not be misused for the purpose of executing a decree. It is this order which has not been complied with. In the case of R. N. De and ors. v. Bhagabat Pramanick and Ors. , it was held that the power of contempt should not be misused for the purpose of executing a decree. In the said case, it was also an award by the land Acquisition Collector which was sought to be executed through a contempt proceeding. So far as the present case is concerned it is not a contempt proceeding on the other hand, it is a writ against the Trust. ( 5 ) ADMITTEDLY, the Trust is a public authority having certain public function and public duty. It is not expected that the, Trust will be behaving as an ordinary litigant and would sit tight over the matter for a long course of five years. In the order dated 19th September, 1996, the Trust was directed to remit the amount within three months in terms of section 82 (3) of the Code of Civil Procedure. It has not come out with any explanation for which it has delayed the payment or remittance. In the facts and circumstances, in exercise of writ jurisdiction High Court is empowered to direct the Trust to discharge its public function and comply with the order passed by the Tribunal in respect of payment. Admittedly, the Trust had acquired the land of the petitioner sometimes in the year 1980. A citizen has been deprived of the enjoyment of his land for almost 20/21 years and still then it had taken a technical point that this Court should not exercise its writ jurisdiction for the purpose of directing the Trust to remit the amount in terms of the order dated 19th september, 1996. Such an attitude of a public authority cannot be appreciated. When it has acquired the land it has an obligation to pay the compensation. It should have taken a reasonable time. But it cannot say that it will not pay until the award is executed through ordinary course of proceedings in which the Trust would be able to take as much 'time as it-can to delay the payment. When it has acquired the land it has an obligation to pay the compensation. It should have taken a reasonable time. But it cannot say that it will not pay until the award is executed through ordinary course of proceedings in which the Trust would be able to take as much 'time as it-can to delay the payment. Unless there is some amount of bona fide in the denial of its obligation or dispute with regard to its liability or appropriate ground to resist the payment on the part of the Trust or a public authority, this Court cannot remain an idle on looker when the public authority failed to discharge its public function. The payment of compensation when acquiring land for public purpose is also a part of same transaction under which the lands are acquired for public purpose. It is sure and certain that the land was acquired in discharge of a part of its public function. The payment of compensation on account for such acquisition cannot be segregated and separated so as to render it to be a private function or a private dispute between the Trust and a private individual, viz, a person entitled to compensation. The decision of the apex Court was on the question of a contempt proceedings. Here, there is no threat of contempt. This is not a contempt proceedings. On the other hand, it is extraordinary writ jurisdiction of this Court which is sought to be invoked in order to direct the trust to discharge its public function and public duty. Therefore, the said decision is distinguishable so far as the present case is concerned. ( 6 ) NO dispute has been raised on behalf of the Trust as to the identity or entitlement of the petitioner. It has not raised any dispute with regard to its liability under the award. It has only contended that it is not liable to pay interest on solatium. ( 7 ) AT one point of time there was a divergence of opinion as to whether interest is payable on solatium. It has not raised any dispute with regard to its liability under the award. It has only contended that it is not liable to pay interest on solatium. ( 7 ) AT one point of time there was a divergence of opinion as to whether interest is payable on solatium. In premnath Kapoor v. National Fertiliser corporation Ltd. , Yadau Rao P. Pathade v. State of Maharashtra, Sita-devi v. State of Haryana and State of haryana v. Joginder Singh, the Apex court had held that no interest is payable on solatium or additional amount under Section 23 (1a) since section 28 expressly mentions payment of interest on compensation. Relying on the above two decisions in yadav Rao P. Pathade (supra); in State of U. P. v. Akhiles Kumar and in U. P. Avas and Vikash Parishad v. Satya prakash and Ors. , it was held that, compensation under Section 23 comprises of three components viz. compensation, additional compensation and solatium. It is only compensation on which interest is payable. Interest is not payable on solatium. But, in Narayan Das Jain v. Agra nagar Mahapalika, it was held that solatium is part of compensation and interest therein must be paid in all cases. But, this decision was reversed in Premnath Kapoor (supra), and Yadau rao P, Patha. de (supra ). So. long the decision in Premnath Kapoor remains and governs the field, the contention that solatium is also part of compensation and, therefore, interest is payable thereon as was held in State of Punjab v. Kailashbati, Kuldip Raj v. State of J. and K. , Union of India v. Harbanslal; State of West Bengal v. Belarani Devi, cannot be held to be good law. In R. D. Swjanarayana Rao v. R. D. O. , Guntur, it was held that solatium is not part of the award. ( 8 ) THEN again this case relates to an acquisition under the Calcutta (Improvement) Act, 1911. Section 71 and schedule, para 9 (2) of the 1911 act was amended by West Bengal Act 32 of 1955, (Section 74 ). Under the said provision for the purpose of acquisition of land in pursuance of calcutta (Improvement) Act, subsection (2) of Section 23 is allotted and at the end of Section 23 sub-section (3) is added. Section 71 and schedule, para 9 (2) of the 1911 act was amended by West Bengal Act 32 of 1955, (Section 74 ). Under the said provision for the purpose of acquisition of land in pursuance of calcutta (Improvement) Act, subsection (2) of Section 23 is allotted and at the end of Section 23 sub-section (3) is added. By reason thereof Section 23 (2) of the L. A. Act has no application "with regard to the land acquired under the Calcutta (Improvement) Act in view of para 9 of the schedule. Thus, in respect of such acquisition the solatium is not payable. In the case of State of West Bengal v. Asitendra-nath Mitra, it was held that on the ground of Article 14 of the Constitution such classification with regard to acquisition and payment of compensation is not a rational classification and infringed the equality clause. Therefore, solatium is payable under section 23 (2) of the L. A. Act even in respect of acquisition made under the calcutta Improvement Act. ( 9 ) BE that as it may the respondents are only claiming that interest on solatium is not payable. In the circumstances the respondents may retain the amount of interest on solatium or the solatium, as the case may be, if they are so advised, till the decision of the Apex Court but, however, the other components of the compensation together with interest in terms of the award shall be paid in terms of this order. ( 10 ) IN view of the provisions contained in the Land Acquisition Act, it is not open to the Trust to question the amount of compensation or the award except the question of interest on the solatium or the solatium as the case may be. Inasmuch as Section 18 provides a right to make a reference only by the claimant. It does not provide any right to the beneficiary or the authority acquiring the land. Though, however, in a reference such beneficiary or the authority acquiring the land are entitled to contest. But, by reason of Section 25, the referee court cannot determine the compensation on a reference less than the amount awarded. However, such restriction is not available when an appeal is preferred under Section 54. Though, however, in a reference such beneficiary or the authority acquiring the land are entitled to contest. But, by reason of Section 25, the referee court cannot determine the compensation on a reference less than the amount awarded. However, such restriction is not available when an appeal is preferred under Section 54. Section 54 does not preclude either the acquiring authority or the beneficiary from challenging the order of the court on a reference or by the High court on an appeal. This restriction is only related to the original award. Section 18 in no uncertain terms prescribes the right of a reference only to a person interested. And that is also supported by Section 25 which makes it clear that the amount of compensation awarded by the Court shall not be less than the amount awarded by the collector under Section 11. Thus, even in a reference the beneficiary or the acquiring authority cannot question the amount of the award as made by the collector. Nor, it can do so in an appeal before the High Court or the Supreme Court. In State of haryana v. Gurucharan Singh and ram Piariv. L. A. Collector, it was held that even the Supreme Court cannot reduce the amount of the award of the collector even if it is illegal. In both these cases, the High Court had reduced, the amount less than the award which were set-aside. Thus, the trust cannot refuse to pay the amount on any account whatsoever, except the question of solatium or the interest on solatium as observed earlier. Petition allowed accordingly.