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Orissa High Court · body

2007 DIGILAW 316 (ORI)

LAND ACQUISITION COLLECTOR v. SITA DEI

2007-05-03

A.K.PARICHHA

body2007
( 1 ) THIS is a petition by the claimant-respondent No. 1 seeking direction of this Court to the appellant to deposit the entire awarded amount and to allow him (R-1) to withdraw 50% of such deposited amount without furnishing any guarantee or security and the balance 50% by furnishing bank guarantee or property security. According to the claimant-respondent, her lands were acquired in the year 1983 for bidanasi Triangular Development Project, but till date she has not received the compensation for the lands as the matter is still pending for determination of the fair market price, as a result, she is undergoing undue hardship and irreparable injury. Counter affidavit has been filed by the appellant wherein it is stated that in view of order 27, Rule 8a of the CPC the State Government cannot be asked to deposit the decretal amount or furnish security contemplated under Order 41 Rule 1 (3) or Order 41, Rule 5 (5) of the CPC. ( 2 ) LEARNED counsel for the claimant-respondent stated that as per the provision of order 41, Rule 1 (3) and Order 41. Rule 5 (5)of the CPC an appellant shall deposit the differential decretal amount or furnish security for such amount in order to obtain an order of stay of the decree. He states that despite existence of Order 27, Rule 8a of the CPC the State appellant has to make the deposit as Order 41, CPC nowhere exempts the State Government or the Development Authority from depositing the decretal amount and considering this aspect the depositing the decretal amount and considering this aspect the Apex Court and this court have in many cases directed a State appellant to deposit the entire or part of the decretal dues as a condition for grant of stay. In support of his contention he relied on the cases of State of Orissa v. Pratibha Prakash bhawan etc. (1990) 69 CLT 323; State of U. P. v. Ratan Lal etc. Spl. Land Acquisition officer, Bangalore v. Dyavappa, 1995 LACC 637; Chief General Manager, Telecom, orissa v. V. N. Enterprises, A Partnership firm, 2004 (1) OLR 687 . In support of his contention he relied on the cases of State of Orissa v. Pratibha Prakash bhawan etc. (1990) 69 CLT 323; State of U. P. v. Ratan Lal etc. Spl. Land Acquisition officer, Bangalore v. Dyavappa, 1995 LACC 637; Chief General Manager, Telecom, orissa v. V. N. Enterprises, A Partnership firm, 2004 (1) OLR 687 . ( 3 ) IT is also argued that the Land Acquisition Act is a special and self-contained Act where deposit of the awarded amount at different stages of the proceedings is contemplated and as such the provisions of the order 27, Rule 8a of the CPC would not be applicable in appeal filed u/s. 54 of the L. A. Act as 'provisions of CPC which are inconsistent with the provisions of the L. A. Act, have been made non-applicable to L. A. proceedings including appeals. In support of this plea, learned counsel cited the cases of gurpreet Singh v. Union of India, (2006) 8 scc 457 : (2006 AIR SCW 5813); Prem Nath kapur v. National Fertilizers Corpn. of India Ltd. (1996) 2 SCC 71 . ( 4 ) LEARNED Addl. Standing Counsel contended per contra that the provisions of order 27, Rule 8a, CPC not being in conflict with the provisions of L. A. Act, the same would be applicable to L. A. proceedings. He states that right from the beginning the State government has been exempted from demand of security or deposit in appeals as a condition for grant of stay as even before order 27, Rule 8a, CPC came into force there was Order 41, Rule 7, CPC in this regard. He explained that this exemption has been provided, as solvency of the State Government cannot be doubted. In support of this contention he relied on the case of Collector, Cuttack v. Padma Charan Mohanty. (1980) 50 CLT 191. He further argued that the cases cited by the claimant-respondent would not be of any help as they do not lay down any ratio and never considered the provision of Order 27, Rule 8a of the CPC before passing the orders. (1980) 50 CLT 191. He further argued that the cases cited by the claimant-respondent would not be of any help as they do not lay down any ratio and never considered the provision of Order 27, Rule 8a of the CPC before passing the orders. ( 5 ) IN view of the rival submissions of learned counsel for the respective parties, the following points emerge for consideration: (i) Whether in an appeal u/s. 54 of the l. A. Act the State without deposit of the differential decretal amount can get order of stay of the execution proceeding ? (ii) Whether in view of the Order 27, Rule 8a, CPC the State-appellant is exempted from depositing the differential decretal amount or security as envisaged under order 41. Rule 1 (3) and Rule 5 (5) of the CPC ? ( 6 ) AT the out set, it will be profitable to note the relevant provisions available in the CPC. ( 7 ) ORDER 41, Rule 1 (3) of the CPC runs as follows : "where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. " The relevant portion of Rule 5 of Order 41 runs as follows : "5. Stay by Appellate Court :- (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant falls to make the deposit or furnish the security specified in order staying the execution of the decree. " Rule 8a of Order 27, CPC reads thus : "no such security as is mentioned in rules 5 and 6 of XLI shall be required from the Government or, where the Government has undertaken the defence of the suit, from any public officer sued in respect of an act alleged to be done by him in his official capacity. " Sub-rule (3) of Rule 1 and sub-rule (5) of rule 5 of Order 41 were introduced by Civil procedure Amendment Act, 1976. Prior to that the State Government was exempted from being required to furnish security as per the provision of Order 41. Rule 7 of the cpc. This provision was omitted and by way of amendment re-enacted as Order 27, Rule 8a. Prior to that the State Government was exempted from being required to furnish security as per the provision of Order 41. Rule 7 of the cpc. This provision was omitted and by way of amendment re-enacted as Order 27, Rule 8a. Sub-rule (3) of Rule 1 imposes an obligation on the appellant, who has appealed against a decree for payment of money either to deposit the amount in dispute in appeal or furnish such security in respect thereof as the Court may direct. By introduction of sub-rule (5) of Rule 5 of Order 41 where it was intended that where an appeal is against a decree for payment of money, the appellant must deposit the amount in dispute in appeal or furnish security notwithstanding anything contained in sub-rules (1), (3), (4) of Rule 5. Rule 8a of Order 2-7 however provides an exception. It says that no such security as mentioned in Rules 5 and 6 of Order 41 shall be required from the government. Sub-rule (5) of Rule 5 expressly mentions furnishing security as specified in sub-rule (3) of Rule 1. So sub-rule (5) mentions about the security under sub-rule (3) (c)of Rule 5. A conjoint reading of the above noted provisions would show that although an appellant appealing against a money decree is required to deposit the disputed decretal amount or furnish security for such amount, the Government-appellant in such situation is not liable to furnish security in view of the Rule 8a of Order 27 of the CPC. Keeping this provision in mind a Division bench of this Court in the case of Collector, cuttack v. Padma Charan Mohanty (supra)ruled that while granting stay in the execution case the State-appellant is not to be called upon for furnishing security for the due performance of the decree as may ultimately be binding upon it because the solvency of the State Government cannot ever be in doubt. In the case of State of Orissa v. Pratibha Prakash Bhawan etc. In the case of State of Orissa v. Pratibha Prakash Bhawan etc. (supra), this court after analyzing the provisions of Order 41, Rule 1 (3), order 41, Rule 5 (5) and Order 27, Rule 8a, CPC came to the conclusion that security as contemplated under rule 1 (3) and Rule 5 (5) cannot be demanded from the State Government, but deposit, of the entire or part of disputed decretal amount can be directed as a condition for grant of stay of a money decree. It was reasoned that Order 27, Rule 8a, CPC exempts the State Government from furnishing security, but does not bar the Court to demand deposit of the decretal amount as a condition for grant of stay. Mr. Das submitted that the finding of the learned single judge in the case of Prativa Prakash Bhawan (supra) will be of no help in view of the ratio laid down in the case of Padma Charon mohanty's case (supra) by the Division bench. It is to be noted that in the case of prativa Prakash Bhawan (supra) learned single Judge did not differ from the ratio laid down by the Division Bench in Padma charan Mohanty's case, but interpreting the provisions an observation was only made that demand for deposit of the decretal amount is not prohibited under Order 27, rule 8a of the CPC. It is worthwhile to note that In the case of Chief General Manager. Telecom Orissa (supra) a Division Bench of this Court directed the Central Government to deposit the decretal amount and allowed the respondent to withdraw a part of it without furnishing bank guarantee. In this judgment the division Bench also took the view that Order 27, Rule 8a, CPC does not prohibit the court from insisting upon the Government or public officer to deposit the entire or part of the disputed decretal amount. In the case of State of U. P. v. Ratan Lal (supra) the Apex Court in a land acquisition matter directed the State to deposit 50% of the awarded amount in the reference Court and allowed the respondent to withdraw 50% of such deposited amount without security and the rest 50% on furnishing security. In the case of State of U. P. v. Ratan Lal (supra) the Apex Court in a land acquisition matter directed the State to deposit 50% of the awarded amount in the reference Court and allowed the respondent to withdraw 50% of such deposited amount without security and the rest 50% on furnishing security. A close reading of the provisions of Order 41, rule 1 (3), rule 5 (5) Order 27, Rule 8, CPC along with the above noted case laws make it clear that in an appeal against a money decree the State Government appellant cannot be asked to furnish security for the disputed decretal amount, but it can be asked to deposit of the entire disputed decretal amount or part thereof before grant of stay of execution of the money decree. ( 8 ) REGARDING applicability of Order 27, rule 8a, CPC to a land acquisition appeal, it is worthwhile to note that Land Acquisition act is a self-contained Act and Section 53 of the Act provides that the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under the l. A. Act. So far as the provisions are not inconsistent with the provision of the L. A. Act. So the provisions of the CPC shall apply to all proceeding under the L. A. Act unless the provisions are inconsistent with the spirit and contents of the L. A. Act. ( 9 ) ACCORDING to learned counsel for the claimant-respondent. Chapter V of the Land acquisition Act deals with deposit of the awarded amount at every stage and, the provisions of Order 27, Rule 8a, CPC being inconsistent with the provisions of Chapter v of the L. A. Act must stand excluded in view of Section 53 of the Act. In case of Prem nath Kapur (supra), while dealing with the matter relating to the L. A. Act. the Apex court observed in paragraph 16 of the judgment as follows. "it is seen that by operation of Section 53 of the Act, Order 21, Rule 1 being inconsistent with the express provisions contained in Sections 34 and 28 stands excluded. " ( 10 ) ORDER 27. Rule 8-A of CPC speaks about security only. the Apex court observed in paragraph 16 of the judgment as follows. "it is seen that by operation of Section 53 of the Act, Order 21, Rule 1 being inconsistent with the express provisions contained in Sections 34 and 28 stands excluded. " ( 10 ) ORDER 27. Rule 8-A of CPC speaks about security only. It says that security mentioned in Rules 5 and 6 of Order 41 cannot be demanded from the State Government but it does not say that deposit of the decreetal amount cannot be demanded in an appeal from a money decree. So, this provision is not inconsistent with the provisions of the L. A. Act. ( 11 ) IT can be gathered from the above noted observation that whenever any provision of the CPC is inconsistent with the express provision of the L. A. Act. in view of the bar provided in Section 53 of the Act, the specific provision contained in L. A. Act would prevail. ( 12 ) IN case of Gurpreet Singh (supra)also the Apex Court repeatedly observed that the L. A. Act does not contemplate anything about security but contemplates deposit of the award in Court at every stage of the proceeding (Sections 28, 31, 34 of the Act ). ( 13 ) IT cannot be lost sight of that in majority cases compensation-for the acquired land is not paid promptly and the land owners have to wait for decades to get their actual dues which they are entitled to be paid. In their anxiety to gear up the process of payment of compensation, the Land Acquisition act was drastically amended raising solatium from 15% to 30%, interest from 6% to 9% for the first year of the Government taking over possession and 15% for subsequent years till payment or deposit is made. So, the legislative intent can be achieved if the compensation amount is deposited in the Court so that the same can be disbursed soon after the termination of the L. A. proceeding without leaving the landowner to lengthy process of execution proceedings. As has been stated earlier on many occasion the Apex Court and this Court have issued direction to the State Government to deposit the awarded amount or part thereof and have allowed the claimant to take that amount on furnishing security or guarantee. As has been stated earlier on many occasion the Apex Court and this Court have issued direction to the State Government to deposit the awarded amount or part thereof and have allowed the claimant to take that amount on furnishing security or guarantee. ( 14 ) FOR all the aforesaid reasons, one can reasonably conclude that the bar provided under order 27, Rule 8a of the CPC about demand of security from the State government not being inconsistent with the provision of the L. A. Act, would hold the field. But there being no specific bar in the said provision about deposit of the awarded amount and the spirit of the amended L. A. Act being for ensuring prompt payment of compensation to the land owners, the State government can be directed for deposit of the differential award amount as a condition for grant of stay of any execution proceeding. ( 15 ) IN the present case, admittedly an award has been passed in favour of the claimant-respondent for some lands acquired in 1983 and the State-appellant is seeking stay of execution of that award. In such situation, it will neither be illegal nor unreasonable to direct the State-appellant to deposit 50% of the differential award amount in the executing Court as a condition for grant of stay. Accordingly, the prayer of claimant-respondent is allowed. State-appellant is directed to deposit 50% of the differential award amount in the executing court as a condition for grant of stay of the execution proceeding. On such deposit being made; the Execution Proceeding No. 49 of 2004 pending before the Civil Judge, (Senior Division), 1st Court, Cuttack shall remain under stay and the claimant-respondent would be at liberty to withdraw half of the deposited amount on furnishing security to the satisfaction of the executing Court. Both the Misc. Cases are disposed of accordingly. Order accordingly.