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Gujarat High Court · body

2009 DIGILAW 279 (GUJ)

Dy. Inspector General v. State of Gujarat

2009-04-17

K.A.PUJ

body2009
JUDGMENT : K.A. Puj, J. Since, common issue is involved in all these Civil Revision Applications and, since, they are heard together, they are being disposed of by this common judgment and order. 2. The facts are taken from Civil Revision Application No. 76 of 2004 arising out of execution Application No. 7 of 2002, for the sake of convenience. 3. Civil Revision Application No. 76 of 2004 is filed by the applicant/original judgment debtor in Execution Application No. 7 of 2002 praying for quashing and setting aside the impugned judgment and order dated 31st December 2003 passed by learned Civil Judge (S.D) Ahmedabad (rural), Gandhinagar in execution application No. 7 of 2002. The applicant has also prayed for stay against the operation and implementation of the impugned judgment and order dated 31st December 2003. 4. This Court has issued rule on 24th February 2004 and further proceedings in Execution Application No. 7 of 2002 were stayed. All these matters were thereafter fixed for final hearing on various occasions. On 24th March 2008, this Court has passed order observing therein that no one has remained present for the petitioners. While granting one more opportunity, the Court has observed that no further adjournments would be granted in these matters. Accordingly all these matters are taken up for final hearing today. 5. It is the case of the applicant that the reference Court i.e the learned Civil Judge (S.D) Gandhinagar, while partly allowing the reference cases and ordering enhancement of compensation vide his order dated 13th April 1998, directed as under : "The claimants are also paid the solatium at the rate of 30% and interest at the rate of 9% p.a till one year after the possession of the acquired lands was taken by the Government and if the amount is not paid within one year, the claimants are entitled to the interest at the rate of 15% thereafter till the entire amount is deposited. The claimants are also entitled to get increase of 12% from the date of the publication of notification under section 4 to the date of the award passed by the Land Acquisition Officer as already granted by the L.A.O in the award." However, there was no direction for payment of interest on solatium. 6. The claimants are also entitled to get increase of 12% from the date of the publication of notification under section 4 to the date of the award passed by the Land Acquisition Officer as already granted by the L.A.O in the award." However, there was no direction for payment of interest on solatium. 6. It is also the case of the applicant that the Division Bench of this Court in the First Appeal filed by the applicant challenging the said order of the Reference Court, confirmed the said order of the learned Civil Judge (S.D) on 13th October 1998, save and except modifying the order in so far as the quantum of compensation is concerned. However, no First Appeal was filed by the opponent/original claimants challenging the order of the Reference Court. The special leave petition filed by the applicants challenging the judgment of this Court was also dismissed by the Hon'ble Supreme Court. The applicants, therefore, deposited the amount of compensation along with the interest thereon as well as the amount of solatium before the reference Court and the said amount was withdrawn by the opponents/original claimants without any objection. 7. Thereafter, the Hon'ble Supreme Court in the case of Sunder v. Union of India, reported in 2001(7) SCC 211 decided on 19th September 2001, held that the interest for the purpose of Sections 28 and 24 of the Land Acquisition Act would also be payable on the solatium amount. Based on this judgment, execution applications were filed by the opponents/original claimants before the trial court, claiming interest on solatium and for appropriate proceedings and orders under order 21 of Code of Civil Procedure. Based on this judgment, execution applications were filed by the opponents/original claimants before the trial court, claiming interest on solatium and for appropriate proceedings and orders under order 21 of Code of Civil Procedure. The applicants have raised written objections and written submissions were also filed contending, inter alia, that there was no direction for payment of interest on solatium in the judgment and award passed by the learned Civil Judge (S.D) and that decree stood totally satisfied on deposit of the amount of principal plus interest on 29th November 1999 and on consequential withdrawal by the opponents/original claimants without any objection, and that the decree should be executed as it is and it is not permissible for the executing Court to read any directions in the judgment and decree and that the same would amount to amendment of the decree and that, in any case, the subsequent decision of the Hon'ble Supreme Court in Sunder's case would not enable the opponents/original claimants to seek payment of interest on solatium by making it applicable retrospectively. In any case, the proceedings between the applicants and the opponents/original claimants having attained finality the same would not enable reopening of the case on the basis of the decision subsequently rendered. 8. Despite the aforesaid objections raised by the applicants, the learned trial judge, vide his order dated 31st December 2003 has directed that the interest on solatium would be payable by the applicant on the basis of the aforesaid judgment of the Hon'ble Supreme Court. 9. It is this order of the learned trial judge which is under challenge in the present civil revision application. 10. Mr. Harin Raval, learned Assistant Solicitor General appearing with Mr. K. T Dave, learned standing counsel for the applicant has submitted that the impugned order dated 31st December 2003 is a non speaking order and the same does not even remotely deal with or decide any of the objections filed by the applicant regarding maintainability of the execution application and hence, the same deserves to be quashed and set aside on this ground alone. Mr Raval has further submitted that in the judgment and award dated 13th April 1998 was not assailed by the opponents/original claimants before this Court and the same was, therefore, executed by the applicant/original claimants. Mr Raval has further submitted that in the judgment and award dated 13th April 1998 was not assailed by the opponents/original claimants before this Court and the same was, therefore, executed by the applicant/original claimants. He has further submitted that the amount of compensation and interest thereon as directed were already deposited by the applicant on 29th November 1999 pursuant to the dismissal of the special leave petition by the Hon'ble Supreme Court. The said amount was withdrawn by the opponents/original claimants without any objections whatsoever and hence, as per the direction in the judgment and award, the decree drawn in terms thereof stood totally satisfied and hence, the execution application filed in the year 2002 on the basis of the subsequent decision rendered by the Hon'ble Supreme Court in September 2001 in some other case, was not maintainable in view of well settled law that the decree must be executed as it is not permissible for executing court to add to or subtract or read something into the decree which is not directed by the trial court. The same proceedings having attained finality and the decree have been satisfied totally. The execution application claiming interest on solatium on the basis of the subsequent decision of the Apex Court was not maintainable and, it, ought to have been rejected. Mr. Raval has further submitted that no direction for payment of interest on solatium could have been given in the judgment and award dated 13th April 1998 of the reference court, since, during the said period, the consistent view of the Apex Court was that no interest is payable on the solatium amount. By that time the proceedings between the applicant and the opponents/original claimants had already been concluded and there was no cause of action surviving between the parties since the amount of compensation plus interest as deposited on 29th November 1999 was withdrawn by the opponents-claimants and other claimants. Hence, on the basis of the subsequent decision rendered in Sunder's case, the same would not enable reopening of the matters which had finally concluded and that too by way of execution application. The said decision in Sunder's case could not, therefore, have retrospectively applied since, judgment and decree of 1998 had attained finality in so far as the applicant and the opponents-claimants are concerned. Mr. The said decision in Sunder's case could not, therefore, have retrospectively applied since, judgment and decree of 1998 had attained finality in so far as the applicant and the opponents-claimants are concerned. Mr. Raval has relied on decision of Hon'ble Supreme Court in the case of Mafatlal v. Union of India, reported in 1997 (5) Supreme Court Cases 536 as well as the decision of the Hon'ble Supreme Court in the case of Trilokchand v. H.B. Munishi reported in AIR 1971 SC 898 . 11. Mr Raval has further submitted that effect of the execution application filed by the opponents/original claimants would be that the judgment and decree would virtually stand amended, since, despite the fact that no direction for payment of interest on solatium was given in the judgment and decree by the Reference Court, any such decision for payment of interest on solatium would amount to amending the judgment and decree which is clearly impermissible under Order 21 of the Code of Civil Procedure. He has therefore, submitted that the impugned order sufferes from gross error in exercise of jurisdiction thereby warranting interference of this Court. 12. On behalf of the opponents Mr. Mayank Vora learned advocate has filed his appearance. No reply to the present application is filed, however, the opponents have filed reply to the objections raised by the present applicant before the executing Court wherein it is contended that the learned Civil Judge (S.D) in the reference Case has awarded solatium at 30% and interest @ 9% per annum. It is further contended that since, interest on solatium was not paid. The opponents have issued legal notice on 29th September 1999. Since, several matters were pending at that time before the Hon'ble Supreme Court involving the identical issue regarding payment of interest on solatium, the opponents have accepted the amount of compensation reserving his right to claim interest on solatium as and when the matters are decided by Hon'ble Supreme Court. The issue was decided in September 2001 in Sunder's case by the Hon'ble Supreme Court wherein the statement of law propounded by Punjab and Haryana High Court in the case of State of Haryana v. Srimati Kailashvati and others was approved and it was held that the persons entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium. The opponents have also filed written submissions before the executing court wherein reliance was placed on the decision of the Hon'ble Supreme Court reported in AIR 1987 SC 1073 wherein it is held that the ratio of any decision must be understood in the background of the facts of that case. The opponents have also relied upon the un-reported judgment of this Court wherein the Court has directed to pay interest on solatium after the judgment of the Hon'ble Supreme Court in Sunder's case. It is therefore, contended that the decree passed by the Reference Court is not fully satisfied and the learned trial judge is fully justified in directing the applicants to pay the interest on the amount of solatium. 13. Having heard the learned advocates appearing for the parties and having considered their rival submissions, the Court is of the view that there was no specific direction by the reference court to pay the interest on solatium. The direction was with regard to the payment of interest @ 9 % per annum till one year after the compensation of the acquired land was taken by the Government and if the amount was not paid within one year, the claimants are entitled to the interest @ 15% thereafter till the entire amount is deposited. However, this does not include the interest on solatium. The word interest uses reference to amount of compensation and the direction is only with regard to the payment of solatium @ 30%. It was not directed that the amount of solatium should be paid along with interest. The learned trial judge has committed an error to read the direction with regard to the interest also in connection with the amount of solatium. As a matter of fact, as on the date of the decision by the reference court the prevalent law did not contemplate the payment of interest on solatium. It is true that certain matters were pending before the Hon'ble Supreme Court. The opponents should have kept the issue alive by challenging the order of the reference court or before this Court either by way of filing First Appeal or cross-objections but nothing was done by the opponents. Not only, this the decreetal amount deposited by the applicants was withdrawn by the opponents without any objections. The opponents should have kept the issue alive by challenging the order of the reference court or before this Court either by way of filing First Appeal or cross-objections but nothing was done by the opponents. Not only, this the decreetal amount deposited by the applicants was withdrawn by the opponents without any objections. The execution application was filed only after the decision rendered by the Hon'ble Supreme Court in September 2001 in Sunder's case. 14. It is settled position in law that once the judgment is pronounced by the Apex Court could apply prospectively by the Apex Court in the case of Mohammed Azizalam and ors v. Union of India and ors., reported in (2001) 10 Supreme Court Cases 199. It is clearly held by the Hon'ble Supreme Court that so far as the question of appellants right of consideration to the post applied for has become final and would not be reopened merely on the ground that in some other matters filed at behest of some similarly situated persons, the tribunal or the Court has granted some relief. In the case of Mafatlal industries and others v. Union of India and ors. wherein it is held that it is only not open to any person to make a refund claim on the basis of a decision of a court or tribunal rendered in the case of another person. He cannot also claim that the decision of the court/tribunal in another person's case has led him to discover the mistake of law under which he has paid the tax nor can he claim that he is entitled to prefer a writ petition or to institute a suit within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case . Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72(1)(c) of the Limitation Act, 1963 has no application to such a claim for refund. 15. Any proposition to the contrary not only results in substantial prejudice to public interest but is offensive to several well established principles of law. It also leads to grave public mischief. Section 72(1)(c) of the Limitation Act, 1963 has no application to such a claim for refund. 15. In view of the clear position of law and in view of the fact that no specific direction was given by the reference Court to pay interest on solatium, this Court is of the view that the executing Court has gone beyond the scope of decree by directing the applicants to pay interest on solatium such an order is not sustainable in the eye of law and it is therefore, required to be quashed and set aside. The impugned order is therefore, quashed and set aside. This Civil Application is accordingly allowed. Rule is made absolute with no order as to costs. 17th April 2009 16. After the above matter is heard and the order is dictated, but before it is transcribed and/or signed, Mr. K.V. Shelat the learned advocate appearing with Mr. Mayank Vora for the opponents has submitted before the Court today i.e 17th April 2009 that the issue involved in this group of Civil Applications is squarely covered against the applicant - Union of India by the three judgments of the Hon'ble Supreme Court and hence, the opponents may be heard in the matter. Accordingly, the learned counsels appearing for the parties were heard again and their submissions are considered. 17. Mr. Shelat has submitted that before he refers to the judgments of the Hon'ble Supreme Court, certain relevant dates are required to be taken note of. The Reference Court has passed an award on 13th April 1998 granting solatium at 30% and interest on the entire amount which inter alia includes the amount of solatium was awarded. Being aggrieved by this order of the Reference Court, the applicants have filed First Appeals before this Court which were partly allowed on 13th October 1998. While partly allowing the appeals, the Court observed that in all other aspects, the impugned orders are upheld and the claimants shall be entitled to all consequential benefits in accordance with law. The special leave petitions filed against the order and judgment of this Court was dismissed by the Hon'ble Supreme Court on 3rd August 1999. While partly allowing the appeals, the Court observed that in all other aspects, the impugned orders are upheld and the claimants shall be entitled to all consequential benefits in accordance with law. The special leave petitions filed against the order and judgment of this Court was dismissed by the Hon'ble Supreme Court on 3rd August 1999. The opponents have issued the first notice to the applicant -Union of India on 29th September 1999. The reply was given on behalf of Union of India on 15th October 1999 stating therein that the matter was under consideration by Union of India. The compensation amount was deposited and received by the claimants on 17th December 1999 with objection. Mr. Raval has raised an objection that at the time of receipt of the amount no objection was lodged by the opponents. The Supreme Court thereafter decided Sunder's case on 11th September 2001 and the judgment was reported in 2001 (7) SCC 211 . Based on this judgment, the opponents have issued second notice to Union of India on 8th November 2001 claiming interest on solatium. The reply was given on behalf of Union on 5th December 2001. Since, the amount of interest on solatium was not received by the opponent, execution applications were filed in 2002 and the executing court has passed the order on 31st December 2003 which is under challenge in the present Civil Revision Applications. 18. Mr. Shelat has submitted that Hon'ble Supreme Court has made very clear that it is the legal obligation of the collector to pay " compensation awarded by him" to the party entitled thereto. It is clarified that the compensation awarded would include not only the total sum arrived at as per sub-section (1) of section 23 but the remaining sub-sections thereof as well. It is thus clear from section 34 that the expression " awarded amount" would mean the amount of compensation worked out in accordance with the provisions contained in Section 23, including all the sub-sections thereof. The proviso to Section 34 of the Act makes the position further clear. It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. The proviso to Section 34 of the Act makes the position further clear. It is inconceivable that the solatium amount would attract only the escalated rate of interest from the expiry of one year and that there would be no interest on solatium during the preceding period. What the legislature intended was to make the aggregate amount under section 23 of the Act to reach the hands of the person as and when the award is passed, at any rate as soon as he is deprived of the possession of his land. Any delay in making payment of the said sum should enable the party to have interest on the said sum until he receives the payment. Splitting up the compensation into different components for the purpose of payment of interest under section 34 was not in the contemplation of the legislature when that section was framed or enacted. 19. Mr. Shelat has further submitted that the question as to whether in the light of the decision in Sunder's case, the awardee/decree holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree is considered by the Constitutional Bench of the Hon'ble Supreme Court in the case of Gurpreet Singh v. Union of India, (2006) 8 SCC 457. In the concluding para 54 of the judgment it is observed as under : "One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in Courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder ( 2001 7 SCC 211 ), the awardee/decree holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium has been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate Court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution, otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder and not for any prior period. We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree holder. This we have indicated by way of clarification also in exercise of our powder under Article 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question." 20. In view of the above judgment Mr. Shelat has submitted that the Execution Court is perfectly justified in awarding the interest on solatium. 21. Mr. Shelat further relied on the decision of the Hon'ble Supreme Court in the case of Food Corporation of India, Kakinada Rep. By District Manager v. Yarlagadda Narayana Apparao reported in JT 2008 (10) S.C 305. The dispute relates to the liability to interest on the amount envisaged under section 23 (2) of the Act. The learned single judge allowed the Civil Revision Application in which it is stated that the decision of this Court in Prem Nath Kapur and Anr v. National Fertilizer Corporation of India Ltd. and ors., (1996) 2 SCC 71 was over ruled by the Constitution Bench of this Court in Sunder v. Union of India, (2001) 7 SCC 211 . The Court has remanded the matter back to the High Court to consider the matter afresh, in view of the observations made by the Court in Gurpreet Singh Case. Similarly in the case of Collector, Land Acquisition and another v. Jaswant Singh and Ors. The Court has remanded the matter back to the High Court to consider the matter afresh, in view of the observations made by the Court in Gurpreet Singh Case. Similarly in the case of Collector, Land Acquisition and another v. Jaswant Singh and Ors. reported in (2008) 12 Supreme Court Cases 745 the Court has remanded the matter to the High Court to examine the position in the light of the decision in Gurpreet Singh Case as the said decision is subsequent to the judgment of the High Court. Since the factual position has not been noted by the High Court, the matter was remitted to High Court to consider the matter in the light of what has been stated in para 54 of Gurpreet Singh case. 22. Mr. Shelat has relied on the decision of this Court in State of Gujarat v. Dinesh Jaga Rabadiya reported in 2002 (2) G.L.H. (U.J) 8 wherein it is held that the petitioner State has already deposited the additional amount of compensation granted by the Reference Court with solatium and interest. However, the Government has not deposited the interest on the solatium as well as interest on the additional amount granted by the Reference Court. In the light of the decision of the Apex Court in Sunder's case the contentions raised by the State are not available. The execution applications are filed only in respect of recovery of amount of interest on solatium as well as interest on additional amount and the learned trial judge has passed orders on applications for execution under order 21 Rule 30. Accordingly, the Court took the view that this is not a case where the High Court is required to interfere while exercising its revisional jurisdiction and accordingly all the revision applications filed by the petitioner State deserve to be rejected. 23. Mr. Shelat has therefore, submitted that the executing Court has rightly awarded the interest on solatium and this Court should not interfere in the order passed by the executing court, while exercising its revisional jurisdiction under section 115 of the Civil Procedure Code. 24. Mr. Harin Raval learned Assistant Solicitor General appearing for the Union of India has submitted in response to the submissions made by Mr Shelat that none of the judgments would render any assistance to the case of the opponents. 24. Mr. Harin Raval learned Assistant Solicitor General appearing for the Union of India has submitted in response to the submissions made by Mr Shelat that none of the judgments would render any assistance to the case of the opponents. In Gurpreet's case, the Hon'ble Supreme Court has clearly held that such interest on solatium can be claimed only in pending execution and not in closed executions and the executing court shall be entitled to permit its recovery only on and from the date of judgment in Sunder's case i.e from 19th April 2001 and not for any prior period. Here in the present case admittedly, the execution proceedings were not pending. The entire issue was closed and the decreetal amount was already paid by the applicant -Union of India and the same has also been withdrawn by the opponents. Despite the notice, the opponents have not filed any execution proceeding and the same was filed only after the decision of Sunder's case as stated earlier. The reference court has not specifically referred to the question of interest on solatium and what was awarded was merely an interest on compensation. Thus, the executing court is empowered to award interest on solatium only in pending execution proceedings and not the proceedings which were filed subsequent to the judgment of Sunder's case. He has therefore, submitted that the opponents are not entitled to claim the interest on solatium. The other two judgments cited by Mr. Shelat are based on the judgment of Gurpreet's case and for consideration of the said judgment the matters were sent back to the High Court. The decision of this Court in Dinesh Jaga's case is rendered before the decision of Gurpreet's case and hence, it has no application to the facts of the present case. 25. The Court finds sufficient substance in the submissions made by Mr. Raval and is of the view that as per the ratio laid down by the Constitutional Bench of the Hon'ble Supreme Court in the case of Gurpreet Singh the opponents are not entitled to interest on solatium as no execution proceedings were pending before the executing court as on the date when the Supreme Court has pronounced the judgment of Sunder's case. The execution proceedings were not even contemplated. The execution proceedings were not even contemplated. The amount of compensation was deposited by Union of India and the same was received by the opponents without any protest as no objection was recorded before the reference court at the time when the amount was ordered to be disbursed. It was also made very clear in Gurpreet Singh's case that it will not entail any re-appropriation or fresh application by the decree holder. 26. In the above view of the matter the finding recorded by this Court earlier on 16th April 2009 does not require any modification and hence, all these civil revision applications are accordingly allowed with no order as to costs. Application allowed.