C.M.13833-36 of 2008 in/and
R.A.No.88-CII of 2002 in/and 1
C.R.No.3276 of 2001
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.M.13833-36 of 2008 in/and
R.A.No.88-CII of 2002 in/and
C.R.No.3276 of 2001
Date of decision 10.12.2008.
State of Haryana & Ors.
...... Petitioners
versus
Jeewan Dhar Jain & Ors.
...... Respondents.
CORAM :- HON’BLE MR.JUSTICE ADARSH KUMAR GOEL.
HON’BLE MR.JUSTICE L.N.MITTAL.
Present :- Mr. J.R.Mittal, Senior Advocate with
Mr. Kashmir Singh, Advocate for the applicant-respondents.
Mr. Ajay Nara, Advocate for the HUDA.
Mr. Sanjeev Kaushik, Addl.AG, Haryana for the petitioners.
L.N.MITTAL.J.
In view of order dated 14.7.2008 of Hon’ble Supreme Court,
application bearing C.M.No.13836 CII of 2008 is allowed subject to all just
exceptions.
Review application No.88-CII of 2002 in civil revision
No.3276 of 2001 is taken up for hearing.
Land of applicant-respondent nos.1 to 4 was acquired. On
reference under Section 18 of the Land Acquisition Act, 1894 (in short – the
Act), compensation amount was enhanced. In first appeal, compensation
was further enhanced by this Court.
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R.A.No.88-CII of 2002 in/and 2
C.R.No.3276 of 2001
Land owners applicant-respondent nos.1 to 4 filed execution
petition for recovery of the enhanced compensation amount. Learned
executing Court vide order dated 27.1.2001 held that the decree-holders are
entitled to get interest on additional amount (payable under Section 23(1-A)
of the Act) and also on solatium. It was also held that the decree-holders
can appropriate the amount, paid or deposited by the judgment debtors,
firstly towards interest and costs and then towards the principal.
Aggrieved by the aforesaid order of the executing Court, State
of Haryana and Collector filed Civil Revision No.3276 of 2001 in this
Court. Learned Single Judge of this Court found that the following three
important questions of law arose for adjudication in the revision petition :-
“(i) Whether the claimants/land-owners are entitled to claim
interest on solatium ?
(ii) Whether interest is to be calculated on the basis of
enhancement ordered by Reference Court/High Court or the
Apex Court i.e. only on the excess amount of compensation
of the same has to be calculated after deducting the amount
of compensation already paid ?
(iii) Whether claimants/land-owners do have the right to
appropriate the amount deposited by the Land Acquisition
Collector as per their own discretion or the same has to be
paid in view of the Scheme of the Act ?”
On question No.1, it was conceded by learned Advocate
General, Haryana that in view of judgment of Hon’ble Apex Court in case
titled Sunder vs. Union of India & others JT 2001(8) Supreme Court 130,
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C.R.No.3276 of 2001
the decree holders are entitled to get interest on the aggregate amount
including solatium. Accordingly, finding of the Executing Court on this
question was affirmed.
On question No.2 , it was found that the amount earlier paid
cannot be adjusted towards interest because that amount was paid towards
the compensation by the Collector as determined by him or by the court and
in case the amount is further enhanced by the Reference Court or the High
Court/Supreme Court, in that situation, the claimants could not be allowed
to turn around and to say that the amount received earlier will be adjusted
towards interest and not towards the principal amount of compensation.
On question No.3, the learned Single Judge, after referring to
the Scheme of the Act and relying on judgment of Hon’ble Supreme Court
in the case of Prem Nath Kapoor vs. National Fertilizers Corporation of
India Limited and others (1996) 2 S.C.C. 71 concluded that the order under
revision was not sustainable insofar as it provided for making appropriation
of the amount deposited by the Collector, first towards costs, then interest,
then additional amount and remaining to be adjusted towards the principal
amount and the claimants have no right to appropriate the amount which is
deposited strictly in accordance with the Award firstly towards
compensation and then the other benefits accruing out of the compensation
to be paid.
In view of the aforesaid conclusions, impugned order of the
Executing Court was set aside by allowing the revision petition vide
judgment dated 25.10.2001 by which bunch of similar revision petitions
was disposed of, and the Executing Court was directed to disburse the
C.M.13833-36 of 2008 in/and
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C.R.No.3276 of 2001
compensation amount in the following manner :-
“(i) That the claimants shall be entitled to interest on solatium
in view of law laid down by Hon’ble Supreme Court in Sunder’s
case (supra).
(ii) That the interest shall be calculated only on the excess
amount of compensation determined under Section 23(1) and
not on the amount already determined by the Land Acquisition
Officer under Section 11 and paid to the party or deposited into
the Court or determined under Section 26 or Section 54 and
deposited into the Court. The amount already paid, in no case,
shall be adjusted towards the interest accrued on excess
compensation.
(iii)That the claimants shall not be allowed to appropriate the
amount deposited by the Collector at their discretion and
appropriation and payment shall be made strictly in view of
the law laid down by Hon’ble Supreme Court in Prem Nath
Kapur’s case (supra).”
Respondent nos.1 to 4 filed review application for review of
aforesaid judgment dated 25.10.2001 of the learned Single Judge. However,
a Division Bench of this court, vide judgment dated 18.10.2005, dismissed
the bunch review applications.
Feeling aggrieved, the decree-holders preferred Civil Appeal
No.4365 of 2008 in Hon’ble Supreme Court. Hon’ble Supreme Court vide
judgment dated 14.7.2008 set aside judgment and order dated 18.10.2005 of
this Court (whereby review applications were dismissed in the bunch of
C.M.13833-36 of 2008 in/and
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C.R.No.3276 of 2001
civil revision petitions) and remitted the matter back to this Court for
decision in the light of observations of the Hon’ble Apex Court made by a
Constitution Bench in the case of Gurpreet Singh vs. Union of India (2006)
8 Supreme Court Cases 457. It was also observed by the Hon’ble Apex
Court in judgment dated 14.7.2008 that in the event High Court feels that
while deciding the review petition, it would be appropriate for it to take the
civil revision cases as well, it will be open to the High Court to take up the
review petitions also along with the civil revision cases treating the orders
passed by the High court in revision as set aside.
Accordingly, review petitions as well as civil revisions have
been taken up for hearing.
We have heard learned counsel for the parties and perused the
records.
It is conceded position that the decree-holders are entitled to
interest on solatium as well. It has been submitted that the only question
that remains to be determined is regarding the manner of appropriation of
the amount deposited by the State/judgment-debtors.
In so far as the question of appropriation of the amount
deposited by the judgment debtors is concerned, the same is not res integra.
This question has been dealt with in detail by Hon’ble Supreme Court in the
case of Prem Nath Kapur (supra). Even the Constitution Bench in the case
of Gurpreet Singh (supra) did not over-rule the ratio of law laid down in the
case of Prem Nath Kapur (supra) on this question. The same was rather
held to be justified. It was observed by the Hon’ble Apex Court in the case
of Gurpreet Singh (supra) as under :-
C.M.13833-36 of 2008 in/and
R.A.No.88-CII of 2002 in/and 6
C.R.No.3276 of 2001
“51. Prem Nath Kapur also indicates that when an award-
decree is passed specifying the amounts under different heads
like the amount under Section 23(1), the amount under section
23(2), the amount under Section 23(1-A) and the interest under
Section 28 and the judgment-debtor makes a deposit of
specified sums under these different heads, it will amount to
the judgment-debtor intimating the decree-holder as to how the
sum deposited is to be applied in discharge of the obligation of
the judgment-debtor. Once a decree-holder receives the
payment of the sums thus deposited, he would be accepting the
appropriation made by the judgment-debtor under the award-
decree in the scheme of the Land Acquisition Act. This part of
the reasoning in Prem Nath Kapur is, of course, also based on
the reasoning that there is some inconsistency in Order 21 Rule
1 of the Code and the scheme of the Act. Prem Nath Kapur
also indicates that when the decree itself specifies the amount
payable under different heads ( the decree has to do so under
Section 26 of the Act) and amounts are deposited towards those
different heads, the appropriation would be on the basis of the
direction under the decree which must be taken to be one for
crediting the various sums paid under particular heads. On the
scheme of the Act, especially the wordings of section 34 and
section 28 of the Act, it is not possible to say that the said
approach made in Prem Nath Kapur is erroneous or is
unreasonable or is not (sic) a line of approach that is not
C.M.13833-36 of 2008 in/and
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warranted. Therefore, when the judgment-debtor State makes
a deposit along with the calculation appropriating distinct sums
towards various heads of compensation as awarded by the
Reference Court or by the appellate court in the appellate
decree, and the amount is received by the decree-holder, the
decree-holder must be taken to be not entitled to seek an
appropriation as if the judgment-debtor has not made any
intimation and that he is entitled to appropriate at his volition.
Considering the scheme of compensation under the Act in the
context of the specific nature of the items specifically referred
to in section 23 of the Act, we are of the view that the approach
adopted in Prem Nath Kapur is justified……….”
In view of the aforesaid, learned counsel for both the parties
submitted that the matter may be remitted to the executing Court for passing
fresh order in accordance with law on the question of appropriation of the
amount deposited/paid by the judgment-debtors.
In view of the aforesaid submission made by learned counsel
for both the parties, we dispose of all the connected review petitions and
the civil revision petitions with the following directions :-
(i) the claimants/decree-holders shall be entitled to interest on
additional amount and solatium.
(ii) the Executing Courts shall pass fresh orders in accordance
with law on the question of appropriation of the amount
paid/deposited by the judgment-debtors.
(iii) the parties are directed to appear before the Executing
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Courts for further proceedings on 29.1.2009. The Executing
Courts may dispose of the matter expeditiously.
( L.N. MITTAL )
JUDGE
(ADARSH KUMAR GOEL)
JUDGE
December 10, 2008
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