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SCA/5341/2010 13/ 15 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5341 of 2010
To
SPECIAL
CIVIL APPLICATION No. 5357 of 2010
With
SPECIAL
CIVIL APPLICATION No. 5395 of 2010
To
SPECIAL
CIVIL APPLICATION No. 5494 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=============================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=============================================================
OIL
& NATURAL GAS CORPORATION LIMITED
Versus
BHULIBEN
LALA RATANJI AND ANOTHER
=============================================================
Appearance
:
MR AJAY R
MEHTA for
the Petitioner
MR AJ PATEL for the Respondent No.1
MR PK JANI,
GP with Ms. Monali
Bhatt, Mr. CB Upadhyay, Mr. HK Patel, Mr. AJ Desai and Ms. TK Patel,
AGPs for the
Respondent State
=============================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.H.WAGHELA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 07/09/2010
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)
1. The
petitioner, in this group of petitions, filed under Articles 226 and
227 of the Constitution of India has prayed to issue writ of
certiorari or a writ in the nature of certiorari to quash and set
aside order dated 9-2-2010 passed in Execution Petition No.73 of 2004
arising from Land Acquisition Case No. 435 of 1987.
2. Learned
advocate Mr. A.J. Patel appearing for the respondents original
claimants/land owners has stated that he appears in all the matters
even if notices are served, not served or not returned after service.
3. The
brief facts of the case are that the petitioner, the acquiring body
acquired various lands of village Bhatpore and village Kavash
pursuant to Notification issued u/s 4 of the Land Acquisition Act
(hereinafter referred to as the Act ) in the year 1982-83. The
Special Land Acquisition Officer declared his award in the year
1986. The original claimants/land owners preferred Reference u/s 18
of the Act. The Reference Court after hearing the parties fixed
market value of the lands in question at Rs.17/- per sq. mtr. by its
judgment and award dated 29-2-2000. The Reference Court while
deciding Reference held that the original claimants/land owners
would be entitled to interest @ 9% p.a. for the first year and @ 15%
p.a. thereafter on the market value fixed. Being aggrieved by the
said decision, original claimants/land owners preferred First Appeal
before the High Court. The First Appeals were partly allowed by
judgment and order dated 21-12-2000 and the market value of the
lands in question was reduced from Rs.17/- per sq. mtr. to Rs.13.50
per sq. mtr. It was also observed that, It is understood that the
respondents original claimants would also be entitled to all
statutory allowances under the Act on the basis of the aforesaid
market value. Decree accordingly.
The
original claimants/land owners withdrew the execution proceedings
filed by them as the acquiring body deposited the amount of
additional compensation reserving their right and on condition to
file execution proceedings afresh to claim interest on the amount of
solatium and additional compensation. The petitioner acquiring body
deposited the amounts due under the award on 9-7-2001 and the
original claimants/land owners withdrew the said amounts
unconditionally. After about one year, the original claimants/land
owners served a notice to the petitioner and claimed interest on
the amount of solatium and additional compensation as per the
decision of the Hon’ble Supreme Court in the case of Sunder
V/s. Union of India,
reported
in 2001 (3) G.L.H. 446, which was decided subsequent to
withdrawal of the amounts by the original claimants/land owners.
Some of the original claimants/land owners filed Special Civil
Applications in the High Court praying for writ of mandamus directing
the acquiring body to deposit amount of interest on the aggregate
amount of compensation including solatium and other statutory
benefits and for direction to the State Government to issue
notification/ resolution/circular for payment of the same. After
hearing the parties, the Court by order dated 10-12-2003 disposed of
the petitions observing that if the claimants have not received
amounts as per the order of the High Court or any court, they have to
move the Executing Court highlighting that they are entitled to
that amount as per the decree, if such amount is not paid by the
acquiring body. Thereafter, the original claimants/land owners filed
execution proceedings on 25-6-2004. After hearing the parties, the
Executing Court by order dated 9-2-2010 directed the acquiring body
to deposit in the court or to pay to the original claimants/land
owners, the amounts claimed in the Execution Application with
interest @ 15% p.a. from 24-7-2001 till realisation of the same.
Being aggrieved by the said decision, the petitioner, the acquiring
body, has preferred this group of petitions.
4. We
have heard learned advocate Mr. Ajay R. Mehta for the petitioner and
learned advocate Mr. A.J. Patel for the original claimants/land
owners as well as Mr. PK Jani, learned Government Pleader with Ms.
Monali Bhatt, Mr. CB Upadhyay, Mr. HK Patel, Mr. AJ Desai and Ms. TK
Patel, learned AGPs for the respondent State at length and in great
detail.
5. It
is submitted by learned advocate Mr. Mehta for the petitioner that
the Reference Court ordered to pay interest on the market value and
not on the entire compensation and the court has misinterpreted the
decision in Sunder’s case (supra). He also submitted that the
petitioner the acquiring body had deposited the amount of
award in the court and the same was withdrawn by the original
claimants/land owners without any objection. Therefore, the award
passed by the Reference Court was satisfied and after unconditional
withdrawal of the amount, the original claimants/land owners, in
order to take advantage of the decision of Hon’ble Supreme Court in
the case of Sunder (supra), filed petitions and claimed amount of
interest. But the petitions were not entertained and taking
advantage of the observations made in the said petitions that if
the claimant has not received the amount as per award of the High
Court or any Court, he has to move Executing Court, the execution
applications are filed. He also submitted that the original
claimants/land owners had earlier filed execution applications but
the same were withdrawn and hence they have no right to reopen their
claim of interest on the basis of decision in case of Sunder
(supra) as the said decision could not be applied to closed
executions. He, in the alternative, submitted that in view of the
decision in the case of Gurpreet Singh V/s. Union of India,
reported in (2006) 8 SCC 457, the original claimants/land owners
would be entitled to interest from 19-9-2001 and not for any prior
period, hence the Executing Court committed error in passing the
impugned order and awarding interest as claimed in the Execution
Applications.
6. Learned
advocate Mr. Patel for the respondents – the original claimants/land
owners submitted that the executions were withdrawn reserving the
right to claim interest and award passed by the Court was never
satisfied as the Acquiring Body did not deposit the amount of
compensation as per the award passed by the Court, and therefore, the
original claimants/land owners were entitled to file execution
applications for the amount of compensation which was not paid to
them under the award. He also submitted that in view of the decision
in Sunder’s case (surpa) the acquiring body was required to
pay interest, but the same was not paid, and therefore, the execution
proceedings were filed to claim the amounts and the executing court
was justified in passing the impugned order. Therefore these
petitions are required to be dismissed. He relied upon the decisions
in (i) Shree Vijay Cotton and Oil Mills Ltd. Vs. State of Gujarat,
reported in AIR 1991 SC l656; (ii) State of Gujarat V/s. Dinesh
Jaga Rabadiya reported in 2002 (2) GLH (UJ) 8, (iii) Patel
Joitaram Kalidas & Ors. V/s. Spl. Land Acquisition Officer &
Anr. Reported in (2007) 2 SCC 341 (iv) Narain Das Jain (since
deceased) by LRs. Vs. Agra Nagar Mahapalika, Agra, reported in
(1991) 4 SCC 212, unreported decisions of this Court rendered in the
case of State of Gujarat & Anr. Vs. Ranchhodbhai Hirabhai
in Civil Revision Application No. 321, 322, 323, 353 of 2009 dated
1-4-2010 and Civil Revision application Nos. 51, 103, 105, 145 of
2005 dated 14-5-2010 .
7. Learned
A.G.P. supported the petitioner and submitted that the original
claimants/land owners have no right to claim interest as prayed for.
8. It
appears from the history of the case that the lands in question
belonging to the original claimants/land owners were acquired and
awards for compensation were passed by Land Acquisition Officer. The
original claimants/land owners made applications for reference under
Section 18 of the Act and hence References were made to the Court.
The Reference Court enhanced the compensation and passed following
award :
The
present References are partly allowed.
The referrers are
hereby ordered to pay to the claimants, the claim of acquired lands,
at the rate of Rs.17/- (Rupees Seventeen only) per square metre,
instead of the amount granted by the Land Acquisition Officer and
additional compensation, after deducting the amount awarded by the
Land Acquisition Officer.
The claimants are
also entitled to recover the amount of solatium at the rate of 30%
(thirty percent) on the aforesaid enhanced compensation and the
claimants are also entitled to get 12% (twelve percent) per annum as
additional market value from the date of notification under Section 4
till the date of taking over the possession.
The claimants are
also entitled to get interest on the amount of market value
determined above, at the rate of 9% (nine percent) per annum for the
first year from the date of taking over possession of land, and at
the rate of 15% (fifteen percent) per annum thereafter, till the
amount is paid to the claimants.
And if the Kharaba
lands were acquired by the Land Acquisition Officer, then the
claimants are entitled to get the same amount on that lands.
The claimants are
also entitled to recover the proportionate costs on the amount
awarded and the referrers should bear their own.
Award
be drawn accordingly.
9. The
acquiring body preferred First Appeals before High Court
challenging the award passed by the Reference Court. The High Court
partly allowed the appeals and held as under :
In the premises
aforesaid, we determine the market value of the acquired lands in
this group of Appeals at Rs.13.50 per sq. mtr. Consequently, these
Appeals are partly allowed with no order as to costs.
It is understood that
the respondent original claimants would also be entitled to all
statutory allowances under the Act on the basis of the aforesaid
market value. Decree accordingly.
10. The
original claimants/land owners filed execution proceedings for
enforcement of the award. It appears that as the acquiring body
deposited in the Court, additional amount of compensation, the
original claimants/land owners in the said execution proceedings,
filed application stating that the acquiring body had deposited the
amount of additional compensation as per the award of the learned
Civil Judge (S.D.) and High Court but has not calculated the
amount of interest on 30% solatium as provided under 23 (1) of the
Act and amount of 12% on the market value as provided u/s 23(1)(a) of
the Act. It was also stated in the said application that in view of
the decision of Hon’ble Supreme Court dated 19-1-2001 in Civil
Application No.671 of 1999 and the decision of High Court dated
11-4-2002 in Civil Revision Application No.1125 of 2001 the Acquiring
Body is required to pay interest @ 9% p.a. for the first year and @
15% p.a. for subsequent years on the amount of 30% solatium u/s 23
(2) of the Act and on additional amount of 12% on market value u/s
23(1)(a) of the Act and hence the execution application has been
withdrawn reserving their right and on condition to file execution
afresh to claim such amounts.
11. The
Executing Court passed order of granted on such applications
and disposed of the execution applications. Thereafter some of the
original claimants/land owners approached this Court by filing
petitions under Article 226 of the Constitution of India praying for
directions to deposit amounts of interest on the aggregate amount of
compensation including solatium and other statutory benefits payable
to them as laid down by Hon’ble Supreme Court in the case of Sunder
(Supra) and also made prayer for directions to issue notifications/
resolutions/circulars or orders for payment of such amounts. The
petitions were dismissed but the court observed that claimant has
to move Executing Court by highlighting that he is entitled to that
amount as per the decree and such amount has not been paid by the
Acquiring Body. Therefore, the original claimants/land owners filed
Execution Applications claiming interest @ 9% for one year from the
date of taking possession and interest @ 15% p.a. from the date of
expiry of one year. The petitioner resisted the execution
applications contending that the amounts of interest claimed in the
execution application have not been awarded in the judgment of the
Reference Court or High Court and hence, the original claimants/land
owners are not entitled for such amounts. After hearing the parties,
the Executing Court allowed the execution applications and directed
the petitioner/original judgment debtor to deposit the amount
claimed in the execution applications.
12. According
to the petitioner, in view of the decision of the Hon’ble Supreme
Court in the case of Gurpreet Singh V/s. Union of India, reported in
(2006) 8 SCC 457, interest on solatium can be claimed only if claim
for interest was not negatived, either expressly or by necessary
implication by the judgment/decree and also in pending executions,
but as there was no execution pending on the date of decision in
Sunder (Supra) and, as the court directed payment of interest on the
market value only, interest was not awarded on solatium and hence the
original claimants/land owners were not entitled for such amounts.
13. In
the case of Sunder (supra), the Hon’ble Supreme Court in paras 23
and 24 has held as under :
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 On making an award under
Section 11, the Collector shall tender payment of the compensation
awarded by him to the persons interested or entitled thereto
according to the award, and shall pay it to them unless prevented by
someone 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.
24 : The proviso to
Section 34 of the Act makes the position further clear. The proviso
says that if such compensation is not paid within one year
from the date of taking possession of the land, interest shall stand
escalated to 15% per annum 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 . It
is inconceivable that the solatium amount would attract only the
escalated rate of interest from the expiry of one year and that
there would be no interest on solatium during the preceding period.
What the Legislature intended was to make the aggregate amount under
Section 23 of the Act to reach the hands of the person as and when
the award is passed, at any rate as soon as he is deprived of the
possession of his land. Any delay in making payment of the said sum
should enable the party to have interest on the said sum until he
receives the payment. Splitting up the compensation into different
components for the purpose of payment of interest under Section 34
was not in the contemplation of the Legislature when that Section
was framed or enacted.
14. Section
23 of the Act provides for the matters to be considered by the
Court in determining the amount of compensation. It provides that
the Court shall take into consideration the market value of the land
at the date of the publication of the notification u/s 4,
sub-section (1) of the Act. Section 23(1A) provides that in addition
to the market value of the land, the court shall 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 u/s 4 (1) of the Act 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. Section 23(2)
provides that in addition to the market value of the land, the court
shall award a sum of thirty per centum on such market value, in
consideration of the compulsory nature of the acquisition.
15. Considering
the scheme of the Act, it emerges that while making award under
Section 11 of the Act, Collector has to inquire into the value of
the land and the compensation which in his opinion shall be allowed
for the land. When the award is not accepted and a reference is made
to the court under Section 18 of the Act, after considering the
matters mentioned in Section 23 of the Act, the Court is required to
pass award. In the decision of Sunder (supra) Hon’ble Supreme Court
has held that the compensation awarded would include not only the
total sum arrived at as per sub-sec. (1) of Section 23 but remaining
sub-sections thereof as well. Therefore, the amount of compensation
would consist of market value of land, additional amount of 12% per
centum on the market value and solatium. The award of Reference
court, as confirmed by the High Court indicates that original
claimants/land owners are entitled to recover the amount of solatium
@ 30 % on the enhanced compensation and amount of 12% as additional
market value from the date of notification u/s 4 of the Act till the
date of taking possession and interest @ 9% p.a. on the market value
from the date of taking possession for the first year and at @ of
15% p.a. thereafter. In appeal, High Court held that original
claimants/land owners are entitled to all statutory allowances under
the Act on the basis of market value determined by it. It was
submitted that by Mr. Mehta that interest was awarded only on market
value and hence the court could not have granted interest on
solatium. As observed earlier, the Reference Court passed a specific
order awarding interest on the market value only. Therefore, it
cannot be said that interest was allowed on solatium and on the
amount of 12% p.a. on market value. It may be noted here that
discretion is allowed to the Court in respect of awarding interest
under section 28 of the Act and payment of such interest has to be
ordered and cannot be inferred by the executing or any other Court.
16. In
Gurpreet Singh’s case (supra) the Hon’ble Supreme Court, in para 54,
has held as under :
One other question
also was sought to be raised and answered by this Bench though not
referred to it. Considering that the question arises in various
cases pending in courts all over the country, we permitted the
counsel to address us on that question. That question is whether in
the light of the decision in Sunder, the awardee/decree-holder would
be entitled to claim interest on solatium in execution though it is
not specifically granted by the decree. It is well settled that an
execution court cannot go behind the decree. If, therefore, the
claim for interest on solatium had been made and the same has been
negatived either expressly or by necessary implication by the
judgment or decree of the Reference Court or of the appellate court,
the execution court will have necessarily to reject the claim for
interest on solatium based on Sunder on the ground that the
execution court cannot go behind the decree. But 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 apply the ratio of Sunder 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.
Otherwise, not. We also clarify that such interest on solatium can
be claimed only in pending executions and not in closed executions
and the execution court will be entitled to permit its recovery
from the date of the judgment in Sunder (19-9-2001) and not for any
prior period. We also clarify that this will not entail any
re-appropriation or fresh appropriation by the decree holder. This
we have indicated by way of clarification also in exercise of our
power under Articles 141 and 142 of the Constitution of India with a
view to avoid multiplicity of litigation on this question.
17. In
the decision of Gurpreet Singh (surpa) the Hon’ble Supreme Court has
held that interest on solatium can only be awarded in execution , if
Reference Court or appellate court has not negatived the same
expressly or by implication and merely interest on compensation is
awarded then it would be open to the executing court to apply the
ratio of Sunder’s case and say that compensation awarded includes
solatium. In the present case, the court expressly granted interest
on the market value. Therefore, the claim of interest on solatium
was negatived by implication. Learned Advocates for the respondents
has relied upon the decision
of Patel Joitaram Kalidas & Others (supra), wherein Hon’ble
Supreme Court has held that grant of interest on amount payable by
way of additional amount and solatium is automatic and does not
involve any judicial discretion. He has also relied on the decision
of Dinesh Jaga Rabadiya (supra) and unreported decisions of Ranchhod
Hirabhai and Patel Bhagwanbhai Chaturdas (supra), wherein this Court
has held that interest on amount payable by way of additional amount
and solatium is automatic and does not involve any judicial
discretion. In view of the judgment of Reference Court, interest is
awarded only on market value and thereby, interest on solatium and
amount of 12% p.a. on market value has been impliedly negatived and
the Executing Court was not justified in going behind the award and
awarding interest on solatium and on amount of 12% p.a. on market
value by applying ratio of Sunder’s
case.
18. As
regards submission of Mr. Mehta that the ratio of Sunder’s case
(supra) cannot be made applicable in the present case as the
execution was closed, it appears that the original claimants/land
owners were permitted to withdraw the execution proceedings by order
dated 30.10.2002. The decision in Sunder’s case was delivered on
19.9.2001. Therefore, on the date of decision of Sunder’s case, the
execution proceedings were pending, but the earlier execution
proceedings were withdrawn reserving right to file execution
application afresh to claim interest on solatium and on amount of 12%
on market value. The Executing Court granted the application.
Therefore, submission of Mr. Mehta cannot be accepted, but it is not
in dispute that the amounts deposited in the Court were
unconditionally withdrawn by the original claimants/land owners and
thereafter, the execution proceedings were withdrawn. In the
decision of Gurpreet Singh (supra), Hon’ble Supreme Court has held
that an Execution Court cannot go behind the decree and hence, the
claim for interest on solatium had been made and the same has been
negatived either expressly or by necessary implication by judgment or
decree of the Reference Court or of the Appellate Court, the
Execution Court will have to reject the claim for interest on
solatium, based on Sunder case. As observed earlier, the Reference
Court judgment indicates that interest was awarded on the market
value only. Therefore, interest on solatium and on the amount of 12%
p.a. on market value was negatived by implication. Therefore, the
original claimants/landlords are not entitled for interest on the
basis of Sunder case. Moreover, the execution applications do not
mention about the award or decree and the amount received by the
original claimants/land owners towards the decree. It also appears
that claim of interest is made from the date of taking possession
till the date of deposit of allegedly part of the decretal amount in
the Court i.e. 27.7.2001. The original claimants/land owners cannot
claim interest on the amount received by them. Therefore also, they
are not entitled for the interest claimed in the execution
applications and the original claimants/land owners are not entitled
to the benefit of Sunder’s case (supra).
19. In
view of above, as the Reference Court has negatived the claim of
interest on solatium and on the amount of 12% p.a. on market value by
implication, the original claimants/land owners cannot claim such
amount relying upon Sunder’s case (supra). The Execution Court
committed error in going behind the award relying upon the decision
of Sunder’s case (supra) and passing the impugned order. Therefore,
the group of petitions succeeds and the orders impugned in the group
of these petitions are set aside with no order as to costs. Copy of
this judgment be placed in the allied matters.
(D.H.
WAGHELA, J.)
(BANKIM
N. MEHTA, J.)
shekhar/-
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