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2009 DIGILAW 354 (AP)

Land Acquisition Officer and Revenue Divisional Officer, Kakinada v. Koka Suryanarayana Rao

2009-06-05

A.GOPAL REDDY

body2009
ORDER In all the revision petitions, issue that arises for consideration is one and the same. Hence, they are being heard together and disposed of by this common order. 2. CR.P.Nos.273, 275 and 276 of 2008 arise out of orders dt. 26-11-2007 passed in E.P.No.83 of 1996, E.PNo.273 of 1992 and E.P.No.276 of 1995 in O.P.No.113 of 1982 respectively, whereunder learned II Additional Senior Civil Judge, Kakinada allowed E.Ps directing the Land Acquisition Officer to deposit Rs.47,06,211/-, in addition to E.P. Costs and Advocate fee by 7-12-2007. 3. C.R.P.Nos.1514, 1580, 1697 and 1698 of 2008 are directed against the orders dt. 11-8-2005 passed in E.P. Nos.83 of 1996, 237 of 1992, 279 of 1992 and 44 of 1993 in O.P. No.113 of 1982 respectively, whereunder learned II Additional Senior Civil Judge, Kakinada passed the following order: "Judgment Debtor did not file objections or file any calculation memo controverting the calculation made by Office. Hence, calculation made by Office is accepted and the Judgment Debtor is directed to deposit Rs.32,14,328/- by 1-9-2005 towards all E.Ps." 4. The facts in nutshell giving rise to filing of these revision petitions are as under. 5. The land ad-measuring Ac.1-84 cents in S.No.716/1 of Pithapuram town with a building and trees thereon, from out of Ac.4-19 cents, belonging to the claimants, was acquired through notification under Section 4(1) of the Land Acquisition Act, 1894 (for short "the Act") for the purpose of construction of Bus Station Complex at Pithapuram on a requisition made by A.P.5.R.T.C Advance possession of the land with building and trees was taken on 29-1-1978. Land Acquisition Officer passed an award being award No.23/1981 dated 1-6-1981 awarding compensation at the rate of Rs.10/- per sq.yard (Rs.48,400/- per acre) for the land; Rs.97,930/- for permanent structures and Rs.740/- towards trees. On reference being made under Section 18 of the Act, learned I Additional Subordinate Judge, Kakinada by order dt.25-4-1984 passed in O.P.No.113 of 1982 enhanced compensation at the rate of Rs.40/- per sq. yard from Rs.I0/- per sq. yard; Rs.1,70,300/from RS.97,300/- for building and the compound wall situated in the acquired land and Rs.2850/- from Rs.740/- for trees standing on the land, together with solatium at 15% and interest at 4% per annum from the date of taking possession of the acquired land. yard from Rs.I0/- per sq. yard; Rs.1,70,300/from RS.97,300/- for building and the compound wall situated in the acquired land and Rs.2850/- from Rs.740/- for trees standing on the land, together with solatium at 15% and interest at 4% per annum from the date of taking possession of the acquired land. On appeal being filed, this court by judgment dt.5-2-1992 passed in A.S.No.1970 of 1985 while confirming the compensation awarded by the reference court held that in addition to the market value of the land, the claimants shall be entitled to additional amount calculated at the rate of -12% per annum on such market value for the period commencing on and from the date of publication of notification under Section 4 (1) of the Act to the date of award of the Collector or the date of taking possession of the land, whichever is earlier as contemplated under Section 23 (I-A) of the Amended Act No. 68 of 1984; and the claimants shall also be entitled to solatium at 30% and interest at 9% per annum for a period of one year and thereafter at 15% per annum from the date of taking possession till the date of payment. 6. There is no controversy with regard to deposit of the amount as awarded by the reference court by the Land Acquisition Officer to the satisfaction of the decree. On awarding 12% additional market -value, solatium and interest by the High Court, the claimants filed above E.Ps. claiming compensation, which were ordered on 11-8-2005. The calculation made by the court in E.Ps discloses that apart from the market value, 30% solatium and 12% additional market value were also added for arriving compensation and, on which interest at 9% per annum was claimed from 29-1-1978 for a period of one year i.e., upto 28-1-79 and thereafter at 15% per annum and, deducted the award amount paid on 1-6-1981 and again interest was calculated on the balance amount including interest on additional market value and accrued interest by deducting the compensation already paid under the award in compliance with the decree passed in O.P. 7. Admittedly, the amount was deposited on 17-9-1984 in E.P.No.121 of 84 and credited to O.P on 5-10-1984 to the full satisfaction of the decree passed in O.P.No.113 of 1982 dt.25-4-1984. 8. Admittedly, the amount was deposited on 17-9-1984 in E.P.No.121 of 84 and credited to O.P on 5-10-1984 to the full satisfaction of the decree passed in O.P.No.113 of 1982 dt.25-4-1984. 8. While E.Ps were pending, A.P.S.R.T.C filed E.A.No. 424 of 1996 in E.P No. 279 of 1995 in O.P.No.113 of 1982 for impleading it as second respondent- Judgment Debtor to give an opportunity to contest the E.Ps stating that they have deposited the amount under the threat of attachment . On dismissed of the above EA No. 424/1996 in EP No.279/1995 in O.P. No.113/1982 APSRTC filed CRP No.3894/1997. The said CR.P. was dismissed by this Court by order dated 10-8-2001. On dismissal of the above revision petition, the A.P.S.R.T.C filed W.P.No.18813 of 2003 before this court. This Court by judgment dt.13-4-2004 dismissed the writ petition. The- judgment passed in W.P.No.18813 of 2004 dt.11-8-2004. Special Leave Petition filed by the Corporation against the judgment passed in W.ANo.1190 of 2004 was also dismissed by the Supreme Court by Order dt.21-2-2005. On dismissal of the• same, the Corporation filed C.R.P.Nos.601, 602, 603 and 604 of 2006 with leave to file revisions against the orders of the executing court i.e., II Additional Subordinate Judge, Kakinada dt.11-8-2005 passed in E.P.Nos.237 of 92,44 of 1993,279 of 92 and 83 of 1996 respectively. The said revision petitions were dismissed by this court by separate orders dt.28-4-2006. Special Leave petition filed against the orders passed by this court in C.R.P.Nos.601 to 604 of 2006 was also dismissed by the Supreme Court in Special Leave to Appeal (Civil) No.15494 of 2006 dt.20-8-2007. On dismissal of C.R.P.Nos.601 to 604 of 2006, the Land Acquisition Officer filed review petitions to revise the orders passed in C.R.P.Nos.601 to 604 of 2006. Pending the above review petitions, the executing court allowed the E.Ps and directed the Land Acquisition Officer to deposit the E.P amount by order dt.26-11-2007. Against which, three . revisions i.e., C.R.P.Nos.273, 275 and 276 of 2008. The review petitions filed by the Land Acquisition Officer were withdrawn by the Land Acquisition Officer and four revision petitions i.e., C.R.P.Nos. 1514, 1580, 1697 and 1698 of 2008 were filed by the Land Acquisition Officer against the orders passed by the executing court dt.11-8-2005 in E.P. Nos. 83 of 96,237 of 92,279 of 92 and 44/93 in O.P.No.113 of 1982 respectively. 9. 1514, 1580, 1697 and 1698 of 2008 were filed by the Land Acquisition Officer against the orders passed by the executing court dt.11-8-2005 in E.P. Nos. 83 of 96,237 of 92,279 of 92 and 44/93 in O.P.No.113 of 1982 respectively. 9. Learned Special Government Pleader in for the petitioners in all the revision petitions contended that when it is admitted that the award is passed earlier to Act. 68 of 1984 came into force, the claimants ale not entitled to additional market value as awarded by this court in AS.NBo.1970 of 1985. Learned Government Pleader by placing reliance on the judgment of the 2003 has been confirmed in W.A.No.1190 of Supreme Court in Urban Improvement Trust v. Gokul Narain (1) (1996) 4 SCC 178 = 1996 (2) ALT 34 (D.N.) contended that the court will not have jurisdiction to award additional benefits under Section 23(1-A) and claimants cannot adjust the receipts towards principal amount as against interest. He further contended that once the reference court will not have jurisdiction and the decree passed in A.S.No.1970 of 1985 is nullity, it can be gone into by the execution court and placed reliance on the judgment of the learned single Judge of this court in Special Deputy Collector Land Acquisition v. P.Ch.Hussainaiah (2) 2004 (2) ALT 699 , who dismissed the revision petition Nos. 601 to 604 of 2006. 10. Sri M. Adinarayana Raju, learned counsel appearing for respondents claimants contended that the judgment passed by this court awarding additional market value in A.S.No.1970 of 1985 was as par the law existing as on the date when the appeal was dismissed, and judgments of the Supreme Court in Union of India v. Zora Singh (3) (1992) 1 SCC 673 and K.S. Paripoornan v. State of Kerala (4) (1994) 5 SCC 593 were subsequently overruled in Urban Improvement Trust (1 supra), which has not been applicable to the present case. He further contended that the decree passed by this court in A.S.No.1970 of 85 has not been questioned and it has become final. Further when no objection is raised to the calculation memo, it was accepted by the executing court on 11-8-2005 and the order passed by this court confirming the same in C.R.P.Nos.601 to 604 of 2006 has become final and same cannot be reopened. Further when no objection is raised to the calculation memo, it was accepted by the executing court on 11-8-2005 and the order passed by this court confirming the same in C.R.P.Nos.601 to 604 of 2006 has become final and same cannot be reopened. Once the Land Acquisition Officer withdrew review petitions filed against the orders passed in C.R.P.Nos.601 to 604 of 2006, he cannot question the orders passed in E.Ps. dt.11-8-2005 as it was merged in C.R.P.Nos.601 to 604 of 2006. Further, the Land Acquisition Officer waived his right by his conduct where the Collector and District Magistrate through his letter dt.5-10-2007 addressed to the Managing Director, A.P.S.R.T.C for deposit of the amount of Rs.32,14,328/- and interest from 1-9-2005 to the satisfaction of the decree. 11. Sri M. Adinarayana Raju though filed 10 judgments in the book form, fairly conceded that except the judgments in Union of India v. Zora Singh (3 supra); K.S. Paripoornan v. State of Kerala (4 supra), and Urban Improvement Trust (1 supra) he is not relying on the other judgments. 12. Sri CB. Ramamohan Reddy, learned counsel for the claimants/respondents by placing reliance on the judgment of the Supreme Court in Ishwar Dutt v. Land Acquisition Collector (5) (2005) 7 SCC 190 = 2005 (6) SCJ 613 = 2005 (6) ALT 42.4 (DNSC) contended that the principle of res judicata is applicable to the land acquisition proceedings and issue once decided by this court cannot be re-opened. 13. In the light of the submissions, as referred to above, the point that arises for consideration is: "Whether the order passed by the executing court accepting the calculation made by office can be revised or not? 14. Learned counsel appearing for the parties have not disputed the facts emanated prior to passing the impugned orders by the executing court; satisfying the decree as per the award passed in O.P.No.l13 of 1982 at the lesser rate of interest at 4% and solatium at 15% on the market value arrived and filing full satisfaction memo to the said effect subject to the outcome of the appeal filed by the claimants. 15. Admittedly, the award was passed on 1-6-1981 awarding compensation at the rate of Rs.10/- per sq. yard for the land; Rs.97,930/- for permanent structures and Rs.740/- for trees. The reference court enhanced the compensation to Rs. 15. Admittedly, the award was passed on 1-6-1981 awarding compensation at the rate of Rs.10/- per sq. yard for the land; Rs.97,930/- for permanent structures and Rs.740/- for trees. The reference court enhanced the compensation to Rs. 40/- per sq.yard from Rs.10/- per sq.yard; Rs.1,70,300/- from Rs.97,930/- for permanent structures and Rs.2,850-00 from Rs.7 40 for trees. On such enhancement being made, entire enhanced compensation amount has been deposited by the Land Acquisition Officer on 17-9-1984 and credited to O.P. on 5-10-1984. It is needless to say, once the award amount arrived at Rs.10/- per sq.yard has been paid on passing the award, the same will not carry any further interest for the subsequent period except enhanced rate of solatium ,and enhanced interest on the said market value. On depositing of the balance of enhanced compensation, namely, land value at Rs.2,67,168/-, enhanced structural value and trees value on 17-9-1984 (credited to O.P. on 5-10-1984), the same shall cease to carry any interest for the subsequent period except enhanced rate of solatium and enhanced interest on such amount as per the decree passed in A.S.No.1970 of 1985. 16. This court in A.S.No.1970 of 1985 while confirming the market value fixed at Rs.40/- per sq. yard ordered that the claimants are entitled to additional amount calculated at 12% per annum on such market value from the date of notification to the date of award i.e., 13-7-1979 to 1-6-1981 i.e., 23 months and higher rate of solatium at 30% on such market value instead of 15% awarded by the reference court. Further interest was awarded at the rate of 9% per annum on the market value from the date of taking possession until it has been deposited and if such compensation or any part thereof is not paid or deposited within a period of one year from the date of taking possession, interest at the rate of 15% per annum shall be payable on such amount. 17. From the above decree, it is clear that the claimants are entitled to (1) 12% additional market value; (2) higher rate of solatium at 30% on the market value arrived; and (3) interest at the rate of 9% for one year and thereafter at 15% on the enhanced market value including solatium awarded at the rate of 30%. No interest was awarded on the additional market value by this court in A.S.No.1970 of 85. 18. No interest was awarded on the additional market value by this court in A.S.No.1970 of 85. 18. The calculation memo as prepared and accepted by the executing court through the impugned order dt.11-8-2005 is the subject matter in C.R.P.Nos.1514, 1580, 1697 and 1698 of 2008. Though entire decree has been satisfied on 5-10-1984, appropriation of the amount deposited towards interest does not arise. Further interest on additional market value was not granted in the decree passed in A.S.No.1970 of 1985. The said additional market value can be only from the date of notification and not from the date of taking possession. But curiously, interest was calculated from the date of taking possession on the additional amount in the impugned order dated 11-8-2005, which per se illegal. 19. It is well settled that mere issuing direction to deposit the amount as per the calculation memo cannot become final and any number of calculation memos can be filed till the decree is fully satisfied, that does not extinguish the right either to the claimants or to the Judgment-Debtors to question the correctness of the calculation memo as to whether it was in accordance with the decree or not. Even on deposit of the amount, as directed, it is the duty of the court as to verify whether the amount deposited is correct or requires to be modified at the time of ordering payment of the amount to the claimants. 20. Further, the Land Acquisition Officer has not preferred any revisions questioning the correctness of the calculation memo, but it is only A.P.S.R.T.C, requisitioning department has filed implead petitions for enabling it to question the correctness of the calculation memo, which was dismissed and the dismissal order was also confirmed by this court and special leave petition filed against the dismissal order passed by this court was also dismissed. 21. Learned counsel for the respondents strenuously contended that the order passed in C.R.Ps. has become final and correctness of the same cannot be gone into. What was confirmed by this court in dismissing revisions is right to question the calculation by A.P.S.R.T.C., which is not a party to the O.P. but not the party to the decree and that does not take away the right of the Land Acquisition Officer for raising an objection with regard to the calculation at any time until E.P is closed. If we strictly implement the decree passed by this court in A.S.No.1970 of 85, the claimants are entitled to additional market value at the rate of 12% per annum from the date of notification till the date of award, and nothing more or nothing less. For satisfaction. of the decree passed in O.P., what remains to be complied with is deposit of enhanced solatium at 30% on the market value minus amount already deposited at 15% and interest on such enhanced compensation including solatium at the rate of 9% for a period of one year from the date of taking possession and thereafter at 15% till the date of realization minus interest already paid at 4% on such amount. 22. The Constitution Bench of the Supreme Court in Gurpreet Singh v. Union of India (6) (2006) 8 SCC 457 = 2007 (1) Supreme 521 approved the ratio laid down in Prem Nath Kapur v. National Fertilizers Corporation of India Limited (7) (1996) 2 SCC 71 on appropriation of compensation deposited at different heads. 23. For the reasons aforementioned and in view of the law laid down by the Supreme Court in Gurpreet Singh v. Union of India (6 supra) approving the ratio laid down in Prem Nath Kapur v. National Fertilizers Corporation of India Limited (7 supra), the calculation made by the executing court through the impugned orders is not in tune with the law declared by this court, as referred to above, and is accordingly set-aside and the matter is remitted to the executing court to have a fresh calculation as under: 1. The executing court has to arrive the compensation at the rate of Rs.40/- per sq. yard after giving deduction of the amount deposited under the award in compliance with the decree passed in O.P and from the date of such payment, the above amount shall not carry any further interest except difference of interest payable on the compensation including land value and solatium; 2. Solatium should be calculated at 30% on such enhanced compensation minus amount already paid at the rate of 15%; 3. The executing court has to calculate interest at 9% per annum for a period of one year from the date of taking possession on the compensation arrived at Rs.40/- per sq. Solatium should be calculated at 30% on such enhanced compensation minus amount already paid at the rate of 15%; 3. The executing court has to calculate interest at 9% per annum for a period of one year from the date of taking possession on the compensation arrived at Rs.40/- per sq. yard and 30% solatium on the market value so arrived till it is deposited by giving credit to the interest paid at 4% and arrive the balance of interest payable on such amount, and from the date of deposit of the principal amount including 15% solatium into court the claimants are not entitled to further interest on such amount except enhanced solatium and higher rate of interest on the market value. If the principal amount under any of the heads namely, land value, structural value, trees value, enhanced solatium has not been fully satisfied as per the decree, such part of the amount shall carry interest till it is paid. 4. Though the claimants are not entitled to additional market value at 12% per annum, the decree passed by this court in A.S.No.1970 of 1985 awarding additional market value at 12% per annum has become final and same has not been challenged, the said amount has to be deposited from the date of notification under Section 4 (1) of the Act till the date of passing award. As claimants are not entitled to additional market value, they are not entitled to interest on such market value. 24. With the above directions, the Civil Revision Petitions are allowed. There shall be no order as to costs.