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2012 DIGILAW 93 (GAU)

Union of India v. Paramani Marak

2012-01-24

UTPALENDU BIKAS SAHA

body2012
JUDGMENT U.B. Saha, J. 1. The challenge in this revision petition under Article 227 of the Constitution of India is the order, dated 21.09.2010, passed by the learned Land Acquisition Judge, (Addl. District Judge), Court No. 4, Agartala, West Tripura in Misc. (Review) No. 63 of 2010 whereby and where under the learned Land Acquisition Judge, the Executing Court dismissed the prayer for review of the order dated 16.3.2010 wherein the Executing Court held that the decree holder is entitled to interest. In solatium and the revision petitioner-judgment debtor was directed to pay the amount of interest on solatium. As agreed to by the Learned Counsel for the parties, the instant revision petition is taken up for final disposal at this stage. 2. Heard Mr. A. Nandi, learned Central Govt. Counsel appearing for the petitioner-Union of India as well as Mrs. S. Deb (Gupta), Learned Counsel appearing for the respondent-claimant-awardee. 3. The brief facts of the case needed to be discussed for disposal of the instant revision petition are as follows : 4. On 15.3.1982, a notification was issued by the L.A. Collector, West Tripura, Agartala under Section 4 of the L.A. Act which was published in Tripura Gazette on 27.3.1982 by which land measuring 2.00 acres of the claimant respondent was acquired. Thereafter, as the claimant respondent was not satisfied with the award of compensation, she made an application under Section 18 of the Land Acquisition Act, 1894 (in short 'the L.A. Act'), before the L.A. Collector, West Tripura, Agartala. 'The said application was subsequently referred to the L.A. Judge, West Tripura, Agartala for determination of the market value of the acquired land which was prevailing at the time of acquisition. The said petition was numbered as Misc. (L.A) case No. 42 of 1987. 5. On 31.7.1998, the learned L.A. Judge, West Tripura, Agartala i.e. the Reference Court decided the said misc. case along with other cases by a common judgment and thereby held that all the claimant-petitioners are entitled to get the market value of the acquired land @ Rs. 12,000/- per kani (flat rate) and besides that, an additional amount @ 12% per annum from the date of notification under Section 4 of the L.A. Act till the date of award given by the Land Acquisition Collector, West Tripura or the date of taking over the possession of the acquired land whichever is earlier. 12,000/- per kani (flat rate) and besides that, an additional amount @ 12% per annum from the date of notification under Section 4 of the L.A. Act till the date of award given by the Land Acquisition Collector, West Tripura or the date of taking over the possession of the acquired land whichever is earlier. They were also provided solatium @ 30% of the market value of the acquired land and interest @ 9% per annum from the date of possession for on (sic, one) year and thereafter @ 15% per annum on the enhanced amount and also the cost @ Rs. 200/- in each case. 6. The decree holder i.e. the claimant awardee, the respondent herein, filed an application before the Executing Court on execution of the aforesaid award passed by the learned L.A. Judge. The said petition was registered as Ex (M) 12 of 1999. On 14.9.2007, the learned Executing Court i.e. the learned Addl. District Judge, West Tripura, Agartala passed an order relying on a decision in Sunder v. Union of India, (2001) 7 SCC 211 held that decree holder i.e. the respondent herein, is entitled to have the interest on solatium and the judgment debtor i.e. the revision petitioner herein, was directed to pay the amount of solatium as per calculation sheet filed by the decree holder. 7. Being dissatisfied with the said order dated 14.9.2007, the revision petitioner (the judgment debtor) filed an application under Section 151 read with Section 153 of the Civil Procedure Code for modification/ correction of the order dated 14.9.2007. The said prayer of the judgment-debtor i.e. the revision petitioner herein, was rejected by the Executing Court on 16.3.2010. 8. Aggrieved by the order, dated 16.3.2010, the petitioner preferred the application under Order XLVII, Rule 1 read with 14 of the CPC for reviewing the said order, dated 16.3.2010, passed in Execution (M) 12 of 1999. After hearing the parties, the learned L.A. Judge, Court No. 4, West Tripura, Agartala vide his order, dated 21.09.2010, dismissed the revision petition. Hence the instant revision petition. 9. Mr. A. Nandi, learned Central Govt.. Counsel appearing for the petitioner-Union of India while urging for relief as sought for would contend that the Executing Court while affirming its earlier order failed to consider the law relating, to the interest on solatium. Hence the instant revision petition. 9. Mr. A. Nandi, learned Central Govt.. Counsel appearing for the petitioner-Union of India while urging for relief as sought for would contend that the Executing Court while affirming its earlier order failed to consider the law relating, to the interest on solatium. According to him, interest on solatium is not permissible in view of the decision of the Apex Court in Gurpreet Singh v. Union of India, (2006) 8 SCC 457 wherein the Apex Court considered the decision in Sander's case (supra) and noted that an Executing Court cannot go behind the decree. He also placed reliance on a decision of the Apex Court in Collector, Land Acquisition and another v. Jaswant Singh & Ors., 2008 AIR SCW 7164 wherein the Apex Court after taking note of Gurpreet Singh (supra) remitted the case to the High Court to consider the matter in the light of what has been stated in paragraph-54 of Gurpreet's case (supra) wherein the power of executing Court was examined. 10. Learned Counsel has also placed reliance to support his contention that the Executing Court cannot go behind the decree, on the decision of the Apex Court in Food Corporation of India, Kakinada Rep. by District Manager v. Yarlagadda Narayana Apparao & Ors., 2008 AIR SCW 7640 wherein the Apex Court while considering Sections 23(2) and 28 of the L.A. Act, held that the interest can be granted only if it is not specifically denied by Reference Court or the Appellate Court. 11. Mrs. S. Deb (Gupta), Learned Counsel for the respondent while resisting the submission of Mr. Nandi would contend that the learned L.A. Judge, i.e. the Executing Court rightly dismissed the review petition filed by the revision petitioner herein. 11. Mrs. S. Deb (Gupta), Learned Counsel for the respondent while resisting the submission of Mr. Nandi would contend that the learned L.A. Judge, i.e. the Executing Court rightly dismissed the review petition filed by the revision petitioner herein. She also contended that the judgment delivered by the Apex Court in Sunder's case (supra) is still a good law in view of the judgment of the Apex Court in Gurpreet Singh (supra) wherein the Apex Court noted inter alia "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 the ratio of Sunder (supra) 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. 12. She has also placed reliance on a later decision of the Apex Court in General Manager, Oil and Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel & Anr., 2008 AIR SCW 5947 wherein the Apex Court while taking note of Section 23 of L.A. Act noted, inter alia, that subsequent to the decision of the High Court, a Constitution Bench of the Apex Court in Sunder v. Union of India, 2001(7) SCC 211 held that the amount awarded for the purpose of interest will include not only the market value but also the additional amount under Section 23(1-A) and solatium under Section 23(2) of the Act. In Patel Joitaram Kalidas & Ors. v. Special Land Acquisition Officer and Anr, LAO, 2007 (2) SCC 341 , the Apex Court held that the calculation of interest on the additional amount under Section 23(1-A) and 23(2) is automatic and consequential, even in the absence of any specific appeal by the claimants in respect of non-grant of such interest. 13. Before dealing with the submission of the Learned Counsel of the parties, it would be proper to reproduce the Sections 23, 28 and 34 of the L.A. Act which are reproduced hereunder : 23. 13. Before dealing with the submission of the Learned Counsel of the parties, it would be proper to reproduce the Sections 23, 28 and 34 of the L.A. Act which are reproduced hereunder : 23. Matters to be considered in determining compensation.--(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-- first, the market value of the land at the date of the publication of the notification under Section 4, sub-section (1); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the-time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. (1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation.--In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. Explanation.--In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of (thirty per centum) on such market-value, in consideration of the compulsory nature of the acquisition. **** 28. Collector may be directed to pay interest on excess compensation.--If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine per centum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry. * * ** 34. Payment of interest.--When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of (nine per centum) per annum from the time of so taking possession until it shall have been so paid or deposited. (Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.) 14. this Court has given anxious thought to the submission of the Learned Counsel of the parties and also considered the Law Reports cited by them. In Sunder's case (supra), the Apex Court considered the words 'solatium' as discussed in the Law Lexicom (1997), 2nd Edn. By P. Ramanatha Aiyar that "Solatium" is an expression apt to describe an award of some amount to cover inconvenience and, in a proper case, distress caused by compulsory taking. It is quite inapt to describe an amount awarded for provable loss to which the claimant is entitled. (Per Barber, J. in March v. City of Frankston (stroud)." 15. The Apex Court in Sunder's case considering its earlier judgments in Prem Nath Kapur v. National Fertilisers Corporation of India Ltd., (1996) 2 SCC 71 and Mir Fazeelath Hussain v. Special Dy. Collector, (1995) 3 SCC 208 in para-23 of the said report also held : 23. In deciding the question as to what amount would bear interest under Section 34 of the Act, a peep into Section 31(1) of the Act would be advantageous. That sub-section says : 31.(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub-section.' The remaining sub-sections in that provision only deal with the contingencies in which the Collector has to deposit the amount instead of paying it to the party concerned. It is the legal obligation of the Collector to pay 'the compensation awarded by him' to the party entitled thereto. We make it clear 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. 16. Mrs. 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. 16. Mrs. Deb (Gupta) has also placed reliance on a decision of this Court dated 6.9.2005 in F.A. 17 of 1998, The Union or India v. Sri Anil Chandra Dey alias Anil Dey, wherein this Court observed, inter alia, "we do not feel inclined to add anything more touching the directions' given in the impugned judgment with the trust and belief at the same time that the rate of interest on solatium being now a settled legal position and no longer res Integra, the concerned authorities shall grant the rate of interest on solatium to the respondents as admissible under the law. 17. Admittedly, in the instant case, while the Reference Court granted the solatium @ 30% on the market value of the acquired land did not exclude the interest on solatium. Therefore, the case of Sunder (supra) is wholly applicable as award of Reference Court dose not specifically refer to the question of interest on solatium. Only when the reference Court rejects the prayer for interest on solatium, then the Executing Court is wholly debarred from passing order of interest on solatium. 18. In the instant case, the learned Executing Court taking note of Gurpreet Singh (supra) as well as Rameshbhai Jivanbhai Patel & Anr. (supra) held that the claim for interest on solatium has not been negative by the learned L.A. Judge. Therefore, it cannot be said that the Executing Court, it committed any error by allowing interest on solatium going beyond the decree/award and thus the order dated 16.3.2010 passed by the Executing Court is not against the ratio of law laid down by the Hon'ble Supreme Court in Civil Appeal No. 4570 of 2006, Gurpreet Singh v. Union of India (supra), as it is well settled that the 'amount awarded' will include not only market value but also solatium under Section 23(2) of the L.A. Act. 19. In Collector, Land Acquisition and Anr. 19. In Collector, Land Acquisition and Anr. (supra), while the Apex Court considering the power of Executing Court remitted the case to the High Court on the ground that the Reference Court specifically noted that the awardee shall not be entitled to interest on the amount of solatium, but then also the Executing Court granted the interest on solatium and the High Court upheld the same. Therefore, the case of Collector, Land Acquisition and Anr. (supra) in no way helps the petitioner. 20. The case of Food Corporation of India, Kakinada (supra) as referred by Mr. Nandi in no way helps the revision petitioner- the judgment debtor, as in that case, the Apex Court also clarified that such interest on solatium can be claimed only pending executions and not in closed executions and the Executing Court will be entitled to permit its recovery from the date of judgment in Sunder's case (supra) and not for any prior period. 21. Having considered the decisions in the cases referred to above, this Court is of the opinion that the principle laid down by the Apex Court is that the interest can be granted only if the same is not specifically denied by the Reference Court or by the Appellate Court. In the instant case, admittedly, the Reference Court did not deny the interest, rather the matter has been kept open for the Executing Court considering the fact that the interest on solatium is a right of decree holder-awardee. Thus the case of Food Corporation of India (supra) also, in no way, helps the revision petitioner. More so, in the instant case, the revision petitioner did not challenge the order/ dated 14.9.2007, passed by the Executing Court whereby and hereunder the decree holder i.e. the respondent herein was allowed interest on solatium though the same was challenged before the Executing Court by way of filing an application under Section 151 read with Section 153 of the CPC 22. According to this Court, the High Court can exercise its power under Article 227 of the Constitution of India only when the Court subordinate to it passed an order in grave dereliction of duty or flagrant violation of law or the order is fully perverse and stands on the way of justice and that also has to be exercised most sparingly and not in each and every case, unless the petitioner makes out a case of grave injustice. In the instant case, the Executing Court did not visit beyond the decree/award, as the Executing Court correctly took the view, inter alia, that interest on solatium is permissible and more so, the award includes the solatium and when interest is awarded by the Reference Court, the award has to be considered with interest also on solatium. In view of the above, the instant revision petition fails. No order as to costs.