JUDGMENT
K.J. Sengupta, J.
1. All the three matters have the common origin, as to question of payment and non-payment of the claims and dues of the writ petitioner in terms of the Order dated 9th May, 1996, passed by B.P. Banerjee, J. (as His Lordship then was) in C.O. No. 6681(W) of 1996. The first two matters are contempt application of the allegation of non-compliance of subsequent Orders dated 4th August 1998 and 9th December 1998 passed in the contempt proceedings itself. The third application is for appropriate Order and/or direction upon the BOrder Security Force (BSF) authorities for supply of necessary funds for payment of interest. Before I consider the applications for contempt and the above application, I for the convenience sake narrate the short fact.
2. The land with structure comprised of the premises No. 20/1, Gurusaday Road, Calcutta was acquired by the then First Land Acquisition Collector for the requirement of the BSF authorities, under the provision of Land Acquisition Act, 1894 (hereinafter referred to as the said Act). Therefor,
an award of a sum of Rs. 58,98,171.90 was passed in the said land acquisition case being numbered D-2/86. Possession of the said premises was taken on 18th February 1987. The original owner of the said property was one Nawab Sir. Kazii Golam Mohiuddin Faroqui since deceased, and on his death on the strength of his last will and testament followed by grant of probate dated 9th April 1990 the petitioner, namely Krishna Vir Singh, as an Executor was entitled to receive the aforesaid compensation amount. Therefore the petitioner once attempted to stall the acquisition proceedings by filing a writ petition on or about 11th February 1987, when Ajit Kr. Sengupta, J. (as His Lordship then was) pleased to pass an Order restraining the Land Acquisition Collector and other officials from taking any step and further step, pursuant to the aforesaid acquisition. The said writ petition, however, was dismissed as being withdrawn on 10th of March, 1987 and thus, the interim Order passed thereon stood vacated on 17th of March, 1987, pursuant to the Order of dismissal as aforesaid. Other facts stated by the petitioner which, in my view, are not so much important nor relevant for deciding these contempt applications. On 9th May 1986 the second writ application was filed and on that writ petition B.P. Baneriee, J. was pleased to pass an Order on 9th May 1986, which is reproduced hereunder :-
“………Let the matter appear in the list as a Contested Application four weeks after the summer vacation. Let the affidavits, if any, be filed in the meantime.
There will be an interim Order directing the respondents concerned to pay the amount under the Award to the petitioner along with interest and solatium which has already been determined within four weeks from date……”
3. A contempt application was taken out, alleging non-compliance and/ or violation of the aforesaid Order for non-payment of the amount of the award, along with interest and solatium. The said first contempt application was disposed of by an Order dated 9th June 1987 by B.P. Banerjee, J. by allowing the petitioner to withdraw a sum of Rs. 38,98,619.00 which was then kept in fixed deposit with Allahabad Bank, pursuant to the previous Order of the Court. After disposal of the said first contempt application, an application dated 8th July 1998 was taken out, alleging non-payment of interest, under Section 34 of the Land Acquisition Act, 1894 and the solatium as has been determined upto that date. On 4th August 1998 on the application dated 8th July 1998 an Order was passed by B.P. Banerjee, J. in the manner as follows:-
“………From the amount of the award together with interest accrued thereon as per provision of law the estate duty liability including Income Tax arrears shall be deducted if the same has not been done so and the balance amount to be paid to the petitioner within a period of one month from today.
At the time of calculation break up of calculation as claimed by the petitioner in this application should be taken into consideration and the balance amount should be fixed up including the interest payable under Section 34 of the Act by a speaking Order and details of the same……”
4. The said contempt application being no C.P.A.N. 1981 of 1998 was filed alleging non-compliance of the above Order dated 4th August 1998. This came up before me for hearing on 18th November 1998 and on that date, I directed to serve a copy of the contempt application upon the learned senior lawyer Mr. Amal Basu Chowdhuri. On 9th December 1998 the matter came up for hearing and on that date Mr. Amal Basu Chowdhuri gave an undertaking on behalf of his client that his client will comply with the Order of this Court dated 4th August 1998. So, 1 directed the alleged contemners to file compliance report, one week after Christmas vacation and also directed them to supply copy of the calculation to the learned advocate for the petitioner. Ultimately, in terms of the Order dated 4th August 1998 the First Land Acquisition Collector calculated the amount of interest and passed a speaking Order. In his speaking Order he found that no interest was payable by the First Land Acquisition Collector. I set aside this Order of the alleged contemner No. 1, as I was of the view that such Order Js contrary to the Order passed by this Court. To be specific when the Court decided that the petitioner is entitled to interest it is nobody’s excepting competent Court, business to upset such decision. Subsequent contempt proceedings were taken out on the allegations that, contrary to the Order of this Court an Order has been passed by the alleged contemner No. 1.
5. Meanwhile, the application being CAN 8666 of 1999 was taken out by the alleged contemner No. 2 for direction upon the requiring body, namely, BSF to pay further amount on account of interest.
6. Mr. Bhaskar Sen, senior advocate, with Mr. Santimoy Panda senior advocate in support of the contempt applications submits that the petitioner is entitled to get interest on the amount of the compensation under Section 34 of the Land Acquisition Act 1894 since the same was neither paid nor deposited on or before taking possession of the land. Under Section 34 of the said Act the Collector is obliged to pay interest at the rate of 9 percent per annum for one year from the date of the taking possession of the property, after one year the interest would be at the rate of 15 percent per annum till payment is made. By the Order dated 9th May 1998 B.P. Banerjee, J. directed the Land Acquisition Collector concerned to pay the amount under the award to the petitioner alongwith interest and solatium, which has already been determined, within four weeks from the date, that Order was not complied with. So, contempt application had to be initiated by the petitioner. On that contempt application, further Order was passed, directing the alleged contemners to pay the entire compensation together with interest, within ten days from the date of passing of the said Order, after deducting the dues and outstanding, in relation to the said property
on account of estate duty and income tax. Thereafter a sum of Rs. 11,39.578 was paid on 31st March 1996 after deducting the outstanding income tax, estate duty and other dues.
7. The contempt application being numbered 1981 of 1998 had to be initiated in view of non-compliance of the Order dated 4th August, 1998, by the said Order it was incumbent upon the Land Acquisition Collector, namely, alleged contemners No. 1 herein to pay the balance amount of compensation together with interest after deducting income tax and estate duty liability. Before making such payment the alleged contemners No. 1 was to calculate the interest payable under Section 34 of the said Act and to furnish details of such account. However, the same was not done, rather, it was decided illegally by the alleged contemners No. 1 that no interest is payable to the petitioner and this decision is contrary to and inconsistent with the decision of this Hon’ble Court. According to Mr. Sen the petitioner is still entitled to get a sum of Rs. 87,36,691. Therefore, the calculation done by the alleged contemner No. 1 on the face of it was erroneous, motivated and aiming at to frustrate the Order of this Hon’ble Court. He further contends that, in fact, the alleged contemners have admitted that further amount of interest is payable to the petitioner and that is why a letter had been written by the alleged contemners to the Inspector General, BSF, West Bengal for supply of funds of Rs. 69,24,393.34 paise to the First Land Acquisition Collector for payment to the petitioner. Therefore, the alleged contemners have admitted the interest under Section 34 is payable to the petitioner. The defence set up by the alleged contemners, according to Mr. Sen. is unacceptable. Thee plea of non-supply of the fund by the BSF to the First Land Acquisition Collector is baseless in the context of the legal provision. He submits that before taking possession of the land the Collector had to pay or deposit the amount awarded, under the provisions of Section 31 of the said Act failing which interest is chargeable and payable. Therefore, he contends, there is clear violation of the Order passed by this Court.
8. Mr Debasish Kar Gupta (now the Additional Government Pleader) appearing on behalf of the alleged contemners submits that there is no violation, either wilful or otherwise or any non-compliance of the Orders passed by this Court by any of the alleged contemners. He submits that the Order has been carried out by passing a speaking Order in terms of the Order dated 4th August 1998 passed by B.P. Banerjee, J. After assessment of the compensation, and award having been passed the money was lying ready, none came forward to accept the compensation amount. Moreover, he contends that there were Orders of attachment passed by revenue officials asking the First Land Acquisition Collector not to pay a substantial amount of the compensation. Ultimately, when the actual liability of the estate duty having been ascertained and payment thereof was made, compensation amount was duly paid. Therefore, during the period, when this Order of attachment was subsisting, question of payment of interest did not and could not arise. In any event, the interest was calculated, a sum of Rs. 35 lakhs and odd has been paid. Apart from payment of the aforesaid amount
a principal sum aggregating to Rs. 50,38,197 was paid. He further contends that there is no contrary and inconsistent decision taken by any of the alleged contemners. He submits further that if there is any violation or non-compliance of the Order of this Court, then, alleged contemners are tendering unconditional apology.
9. Having heard respective contentions and submission of the learned counsels and having considered the material placed before me, it appears to me that the present two contempt application have been taken out in relation to the Order dated 4th August 1998 passed by B.P. Banerjee, J. which was passed on an application for appropriate Order dated 8th July 1998, after disposal of the first contempt application which was taken out on or about 20th January 1997. Therefore, the Order dated 4th August 1998 needs to be re-produced here in Order to ascertain actual direction and mandate given by this Court for compliance :
“……The payment of interest on the award money for late payment is a statutory liability and accordingly the petitioner is entitled to get interest under Section 34 of the said Act. In this case it appears that there were some Estate Duty liability and Income Tax liability through Tax recovery officer as well as Corporation Duty. From the amount of award together with interest accrued thereon as per provisions of law the Estate Duty liability including income-tax arrears shall be deducted if the same has not been done so and the balance amount be paid to the petitioner within a period of one month from today.
At the time of calculation break up of calculation as claimed by the petitioner in this application should be taken into consideration and the balance amount should be fixed up including the interest payable under Section 34 of the Act by a speaking Order and details of the same.”
10. Therefore, it appears that the alleged contemner No. 1 is supposed to calculate interest on the compensation amount because of non-payment and/or late payment and, to deduct the statutory dues by a speaking Order and further to make payment within a period of one month from 4th August 1998.
11. The aforesaid Order was purported to have been complied with on 20th January 1999. Therefore, technically the alleged contemner No. 1 has failed to obey the direction of this Court, within 30 days from the date of the passing of the aforesaid Order. On 10th December 1999 another payment, amounting to Rs. 35,5,265 was made. Now the fact remains that, Order of B.P. Banerjee, J. has been factually carried out by making calculation and further effecting payment of amount of compensation purported to have been computed together with interest. Now the incorrect calculation of interest by the alleged contemner No. 1 cannot be a relevant factor for holding guilty of commission of contempt. If the impugned Order passed by the alleged contemners No. 1 manifestly erroneous and absurd can at best be set aside by passing an appropriate Order which 1 have done earlier. In the impugned Order it has been stated no further amount is payable on account of interest as the writ petitioner never came forward to
the office of the Collector to receive the compensation money under the award and furthermore, that there were statutory liabilities, namely, Excise Duty, arrears of taxes of Calcutta Municipal Corporation and Income Tax dues, therefore, payment of interest does not and cannot arise. The plea taken in the affidavits-in-opposition and further observation recorded in the impugned Order by the alleged contemner No. 1 is not at all tenable under the law. The impugned Order is manifestly contrary to the provision of the law as well as the direction given by this Court and furthermore, the impugned Order was passed beyond the time stipulated by this Court.
12. Therefore, next question remains as to what would be the amount of interest and how much is to be paid to the petitioner, though the petitioner claims that an aggregate sum of Rs. 128,18,00,26.58 paise was payable on the date initiation of the contempt application. In my view such claim as indicated in annexure ‘K’ to the writ petition is manifestly absurd for the following reasons :
13. The compensation was awarded including the amount of solatium calculated at the rate of 30 per cent under Section 23 Sub-section 2 of the Land Acquisition Act, 1894 to Rs. 58,98,171, the petitioner, however, has wrongfully added a sum of Rs. 17,69,451 which cannot be done. Therefore, the petitioner is entitled to get interest at the rate of 9 per cent per annum from 20th September, 1986 to 20th September, 1987, on the aforesaid amount of Rs. 58,98,171. The petitioner is entitled to get further interest at the rate of 15 per cent on and from 20th September 1987 to 26th July, 1996 on the aforesaid sum of Rs. 58,98,171 as on 26th July, 1996 the petitioner was paid a sum of Rs. 11,39,578. The service of Order of attachment upon the Land Acquisition Collector by the Estate Duty Authorities cannot be a justification for non-payment of interest which is allowable under Section 34 of the aforesaid Act or Order of attachment does not stop the accrual of interest Moreover, under the provisions of Section 31 of the Act as rightly argued by Mr. Sen the amount of compensation should have been deposited on or before taking possession of the property in question, so, this amount of compensation should have been deposited with the Court under the provision of the law much before service of notice of attachment. Therefore, this calculation has to be made afresh as stated above. In view of the fresh calculation and after giving adjustment of the payment already made to the petitioner and payment to the statutory authorities the petitioner is entitled to get a sum of Rs. 54,44,951 for the reasons and particulars given below.
14. I cannot accept the argument of Mr. Sen that his client is entitled to appropriate the amount received by him, from time to time, against the amount of interest accrued thereon. Under the Land Acquisition Act or any other law it does not specify as to how the amounts should be appropriated. Provision of Section 34 of the said Act provides for payment of interest and this amount of interest, in my view, should be added to the principal amount and the payment which is made or will be made should be adjusted against the entire amount which includes interest. The decision of the Supreme Court cited by Mr. Sen, in support of his argument
is not applicable simply because the aforesaid decision was rendered at the time of the execution of a decree and in the context of provision of Order 21 rule 1 of the Civil Procedure Code. In this case the interest has to be calculated in terms of the Order of B.P. Banerjee, J. dated 4th August 1998 under Section 34 of the said Act. As far as another Supreme Court decision, cited by Mr. Sen, reported in AIR 1996 SC 2033 is concerned the principle laid down therein cannot be disputed as it was rendered on interpretation of Sections 31 and 34 of the aforesaid Act. Interest indeed has been sought to be calculated following this principle. Similarly, the Calcutta decision relied on by Mr. Sen is also not applicable as it was rendered in the context of the provision of Order 21 rule 1 of the Code of Civil Procedure, which provides for deposit in Court or payment outside of the decretal amount by the judgment debtor.
15. The right of claiming interest in this case emanates from Section 34 of the said Act, which is quoted hereunder :
“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.)”
16. It will appear from the said section that the awardee is entitled to interest on the whole of the principal amount or part thereof. In my view, the moment entire principal amount of award is paid the accrual of Interest seizes under Section 34 of the said Act, therefore, calculation of interest has been done in this case, in the manner as follows.
(I) @ 9 per cent per annum from 20th September 1986 till 20th September 1987, on Rs. 58,98,171.00.
(II) @ 15 per cent on and from 21st September 1987 till 26th July 1996 on Rs. 58,98,171.00 upto the date of first payment of Rs. 11,39,578.40p (part of compensation)
(III) @ 15 per cent on and from 27 July 1996 till 9th July 1997 being date of payment of a sum of Rs. 47.58,593.00.
17. So the petitioner is not entitled to any interest under Section 34 pf the said Act on and from 9th June 1997 as on this date entire amount of compensation after deducting statutory dues was paid. A sum of Rs. 35,55,265.00 was paid on 11th December 1999. This payment can be adjusted against interest and the balance amount of Rs. 54,44,951 is payable on account of interest. The petitioner may have claim on account
of interest, not under Section 34 of the said Act, but under provision of some other law for which I have not been called upon to decide.
18. The claim put forwarded by the petitioner in my view is a tall one as he has added the amount of solatium at the rate of 30 per cent twice over again. On the facts and circumstances of this case I am of the view that the alleged contemners were lackadaisical and negligent in calculation of interest and further making payment but I cannot say their non-compliance of the Order was wilful or deliberate. However, this compliance could be achieved only after initiation of the contempt application. I hold that the alleged contemners did not carry out the Order within the time stipulated by the Court, nor did they come forward to ask for extension of the time. Successive contempt applications could bring about the solution of the problem of the petitioner. Therefore, I warn each of the alleged contemners for not complying with the Order within the time stipulated by this Court. However, the petitioner is entitled to costs of this application assessed at Rs. 10,000/- to be paid by the State Government initially, thereafter Secretary, Land and Land Reforms Department will make an inquiry as to why there was such delay and this costs may be realised from the salary of the person or persons who were responsible for non-compliance with the Order of this Court, if any person or persons are found to be responsible upon making proper inquiry. The aforesaid payment has to be made within one month from date.
19. Let the matter appear again within six weeks from date.
20. As far as the application taken out by the alleged contemners for direction of this Court for supplying fund to them by the BSF authorities is concerned, I hold that this application is wholly misconceived, as the aforesaid requiring body has already paid money and deposited before the acquisition proceedings had been initiated. Therefore, they have no liability to make any further payment whatsoever. This application is dismissed without any Order as to costs.