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2010 DIGILAW 1390 (ALL)

TARUN PATHAK v. STATE OF U. P.

2010-04-28

JAYASHREE TIWARI, R.K.AGRAWAL

body2010
JUDGMENT Hon’ble Mrs. Jayashree Tiwari, J.—The present writ petition has been filed by the petitioners seeking relief of mandamus directing respondent No. 2 District Magistrate Banda to pay Rs.1,04,75,989.70 alongwith complete compound interest to the petitioners in terms and conditions of Hon’ble Court’s order dated 28.5.1999. 2. In short, the contention of the petitioners is that a proposal was made for construction of canal for irrigation purpose of the concerned village on behalf of State Government. The land in dispute was recorded in the name of petitioner No. 1 and his deceased brother. Both of them filed writ petition No. 40385 of 1996 which was finally disposed of on 16.12.1996. Annexure 4 is the order dated 16.12.1996 whereby Division Bench of this Court has held that in case the land of the petitioners was compulsorily taken and 80% of the compensation amount has been deposited, in that event the said amount should be handed over to the petitioners in terms of the State itself expeditiously preferably within 30 days. Thereafter the Special Land Acquisition Officer, Banda wrote a letter on 24.12.1996 to respondent No. 3 that if any canal has been constructed without acquiring the land, it is the duty of the Executive Engineer to pay the cost of the land to the person concerned. Respondent No. 3 on 27.3.1996 informed that proposal for acquiring the land has been sent to Special Land Acquisition Officer, Banda and a sum of Rs.16,48, 517/- was paid to him for the distribution of compensation to the persons whose land were acquired. On 20.2.1997 respondent No. 3 has sent a cheque to the petitioner. Again in 1998 the petitioners filed writ petition No. 17124 of 1998 before this Court. On 28th May, 1999 the aforesaid writ petition was allowed which is annexure 8 to the writ petition whereby it was directed to the respondents to prepare an award at the rate of Rs.30000/- per acre measuring 0.31 acre and to pay the said amount to the petitioners with compound interest @ 18% alongwith solatium and damages and the amount so calculated be paid to the petitioners within three months from the date of the order. On 4.1.2001 the State Government preferred a SLP which was dismissed by the Hon’ble Apex Court. On 4.1.2001 the State Government preferred a SLP which was dismissed by the Hon’ble Apex Court. The petitioners filed a contempt Petition in which order was passed on 25.2.2003 and it was held by the Hon’ble Court that the punishment in the Contempt of Court cannot be made unless there is willful disobedience of the order of the Court. Operative portion of the order has also been extracted above. It shows that there was no order of payment of interest on solatium, therefore the opposite parties cannot be punished for non-payment of interest on solatium. It is stated that Rs.4,37,910/- has been paid to the petitioners which is not sufficient. The correct amount which has been calculated as Rs.1,04,75,989.70 is to be paid to the petitioners as per contention of the petitioners. As per calculation chart it has been stated in para 28 of the affidavit that the arrears are of about 29 years in three heads. 3. The value of land @ Rs.9300/- = Rs.9300 x 143.33 = Rs.1,32,969.00 Rs.2790 as Solatium @18%= 2790x143.33 = Rs.3,99,890.00 Rs.61000 as damages @ 18% = 61000x143.33 = Rs.87,43,130.00 Total Rs. 1,04,75,989.70 4. A counter-affidavit has been filed on behalf of respondents in which they have denied the contentions as raised in the writ petition by way of affidavits annexed with the writ petition. It is contended that the petitioners being dissatisfied with the calculated amount paid by the respondents, preferred a contempt petition stating that interest on solatium and damages have not been paid. The contempt application has been rejected vide order dated 28.2.2003. From the perusal of the order passed in contempt petition it is apparently clear that the petitioners are not entitled for any interest on solatium or damages. It is also contended by way of counter-affidavit that in contempt petition the Court has held that “It is therefore a matter of decision as to whether the petitioners are entitled to damages, and if so, what amount. No such amount has been settled in the judgment. The petitioners may get the amount of damages adjudicated by the proper Court. Simply for the reason that word “damages” has also been mentioned in the operative portion of the judgment, the opposite parties cannot be punished for non-payment of damages as the same are not ascertainable.” 5. No such amount has been settled in the judgment. The petitioners may get the amount of damages adjudicated by the proper Court. Simply for the reason that word “damages” has also been mentioned in the operative portion of the judgment, the opposite parties cannot be punished for non-payment of damages as the same are not ascertainable.” 5. It is contended that the petitioners were not satisfied with the aforesaid order passed in the contempt petition and preferred review application which was rejected by the Hon’ble Court (Annexure 8 to the counter-affidavit), it was ordered therein that “ Having heard counsel for the parties, I do not find any force. The review application is thus rejected.” 6. Thus, it is clear that the entire amount for which the petitioners were entitled was paid to them. The petitioners as per order of the Hon’ble Court have made a detailed representation (Annexure CA-10) to the District Magistrate and the District Magistrate after due consideration rejected the representation of the petitioners by passing a reasoned order dated 11.7.2004. which is Annexure CA-11 to the counter-affidavit. The Modification application was ultimately rejected by the Hon’ble High Court vide its order dated 6.12.2004. During the pendency of modification application the petitioners filed an execution proceeding , copy of the execution proceeding is filed as Annexure CA-12 to the counter-affidavit. The Execution application was rejected as not maintainable and the same was restored vide order dated 17.9.2005. Thereafter the petitioners moved the Hon’ble High Court for a direction that Execution Application be expeditiously disposed of. The execution proceeding was again rejected by a detailed order dated 10.11.2005 holding that against the judgment of Hon’ble High Court the execution does not lie in the District Court. A copy of the order is annexed as CA-13 to the counter-affidavit. Present writ petition is the fourth writ petition with the same cause of action and relief. In para 15 of the counter-affidavit it is stated that till the date of payment petitioner was paid entire amount alongwith interest as per decision of the Hon’ble Court and subsequently the said payment was held sufficient by the contempt Court. 7. While retaliating the contentions raised in the counter-affidavit, rejoinder affidavit has been filed in which it is stated that no specific denial of the contentions raised in the counter-affidavit has been made by way of rejoinder affidavit dated 18th September, 2007. 8. 7. While retaliating the contentions raised in the counter-affidavit, rejoinder affidavit has been filed in which it is stated that no specific denial of the contentions raised in the counter-affidavit has been made by way of rejoinder affidavit dated 18th September, 2007. 8. We have heard learned counsel for the parties and perused the record. 9. The crux of the matter to be determined in the present case is as to whether the contentions of the petitioners for calculation of the interest of 18% on the solatium as well as 18% interest on the damages with a request of mandate of payment as mentioned in para 28 of the writ petition is maintainable or not. In this connection, it will be appropriate to peruse and consider the judgment by which the petitioners were granted a mandate dated 28.5.99. It will be appropriate for the Court to consider the directions given by the judgment of the Division Bench dated 28.5.1999 which is annexure 8 to the writ petition. Operative portion of the said judgment directs that respondent No. 2 District Magistrate, Banda will prepare the award at the rate of Rs.30,000/- per acre of the land measuring 0.31 acre and pay the same to the petitioners with compound interest @ 18%. So the first mandate issued by this order of the Division Bench to calculate the rate of land measuring 0.31 acre of the petitioners @ Rs.30,000/- per acre and to pay the calculated amount with compound interest @ 18% . So the 18% interest has been granted by the Court with respect to the value of the land calculated as aforesaid. 10. The second mandate is to prepare the aforesaid award alongwith solatium as also the damages, but apparently on the solatium as well as damages no interest has been awarded by this mandate of the Court. 11. No appeal against this order of the Division Bench dated 28.5.1999 has been preferred by the petitioners claiming 18% interest on the solatium and damages as well. So this judgment against the petitioners has attained finality so far as the solatium and damages are concerned. 12. Though the petitioners have challenged the calculation made by the District Magistrate by way of Contempt Application and not by preferring any appeal to the Apex Court. So this judgment against the petitioners has attained finality so far as the solatium and damages are concerned. 12. Though the petitioners have challenged the calculation made by the District Magistrate by way of Contempt Application and not by preferring any appeal to the Apex Court. The Contempt Court is bound by the directions issued by the Division Bench and it can consider as to whether any directions issued by the Division Bench has not been complied with mala fide or deliberate intend to disobey and not beyond that. The petitioners have challenged before the Contempt Court that 18% interest has not been paid on the solatium and damages. Extracted operative portion of the order of Contempt Court shows that there is no order of payment of interest on solatium. So the Contempt Court came to the conclusion that opposite parties cannot be punished for non-payment of interest on solatium. 13. Regarding the next question of payment of damages and interest on damages, the Contempt Court has held that damages was claimed but the damages were not ascertained. So it is a matter of decision as to whether the petitioners are entitled to damages and if so what amount. No such amount has been settled in the judgment. The petitioners may get the amount of damages adjudicated by appropriate Court. Simply for the reason that the damages have been mentioned in the operative portion, the respondents cannot be punished for the non-payment of the damages. Despite findings given by the Contempt Court the petitioners had not taken any recourse to the legal proceedings for ascertainment of the damages to which they are entitled. So, in absence of any such recourse being taken and also no damages being ascertained the question of interest on any damages is only in air and more so it has not been directed by the Division Bench that any amount of interest has to be paid on damages. The interest is only on the amount with respect to value of the land calculated @ Rs.30,000/- per acre . 14. In the circumstances, the contention raised by the petitioners in the present writ petition appears to be baseless and beyond relief granted to them by way of order of the Division Bench. We, therefore, are of the opinion that the writ petition is not sustainable. 15. The writ petition is devoid of any merit in it. 14. In the circumstances, the contention raised by the petitioners in the present writ petition appears to be baseless and beyond relief granted to them by way of order of the Division Bench. We, therefore, are of the opinion that the writ petition is not sustainable. 15. The writ petition is devoid of any merit in it. It is accordingly dismissed. ————