IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25 .11.2009
CORAM:
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
C.R.P.(NPD).No.1006 of 2006
1. Sarada Rajagopalan
2. Usha Srinivasan
3. Vasantha Ramachandran
4. R.Sunderganapathy
5.Ananda Ramasundar
6. Mathangi narayanamurthi
7. Anupama
8. Yamuna Ganesan ... Petitioners/Petitioners 2 to 9
Vs.
1. The Sub Collector,
rep. by Tahsildar,
Polachi, Udumalpet.
2. The Secretary,
Coimbatore Marketting
Committee,
Coimbatore 641 ... Respondents/Respondents
Prayer: Petition filed under Article 227 of the Constitution of India against fair and final order dated 01.12.2005 made in E.P.No.32 of 2002 in L.A.O.P.No.99 of 1988 on the file of the Sub Ordinate Judge, Udumalpet.
. . .
For Petitioner : Mr. K.M.Santhanagopalan,S.C
for Mr.S.Thangavel
For Respondents : Mrs.Bhavani Subburayan (R1)
Mr. V. SriKanth (R2)
. . .
O R D E R
The Civil Revision Petitioners/Petitioners 2 to 9/Claimants 3 to 5 and 7 to 10 have has filed this Civil Revision Petition against the order dated 01.12.2005 made in E.P.No.32 of 2003 in L.A.O.P.No.99 of 1988 passed by the learned Sub Ordinate Judge, Udumalpet, in dismissing the Execution Petition filed by the petitioners under Order 21 Rule 11(2) of C.P.C.
2. The Executing Court while passing orders in E.P.No.32 of 2003 on the file of the learned Subordinate Judge, Udumalpet has inter alia observed that the amounts have been deducted and interest has not been calculated and for the original amount of Rs.17,41,214/- every time the interest has been prayed for and added and moreover, there is a difference between the amount shown in the Calculation memo and the amount mentioned in the Execution Petition and resultantly, the Memo of Calculation filed on the side of Revision petitioners/Petitioners is a wrong one and that the Execution petition is not to be accepted and consequently, dismissed it without costs.
3. The learned counsel for Revision petitioners/Petitioners submits that the Executing Court has not taken into account of the fact that in the Memo of Calculation filed by the first respondent along with the counter statement in E.P.No.32 of 2003, no interest has been calculated on solatium and on additional market value and further that the first respondent, based on his Memo calculation has stated in his counter statement that the entire amount has been paid and also that an Executing court has committed an error in ignoring the important fact that no interest has been paid by the respondents on solatium and the petitioners are entitled to claim interest on the excess compensation, solatium etc. in view of the decision of the Hon’ble Supreme Court in Sunder Vs Union of India reported in 2002(2) L.W 39 and also in view of the direction given by this court in its Judgment dated 12.07.2001 in A.S.No.1101 of 1993 and added further that as per Section 53 of the Land Acquisition Act, the provisions of Civil Procedure Code is applicable to the proceedings before the Court concerned and as per Section 26(2) of the Land Acquisition Act, the award passed in L.A.O.P. is a money decree and under Order 21 Rule (1) and (2) of C.P.C how the apportionment is to be made has been set out and in the case of a debt due with interest, the normal rule is that any payment made in the first instance is applied towards the satisfaction of interest and thereafter tot he principal and there are no arrears in the calculation of memo filed on the side of the petitioners and in any event, instead of directing the parties to file a fresh memo of calculation, the Executing Court has committed an error in dismissing the Execution Petition without any reason therefrom and in as much as the impugned order of the Executing Court in E.P.No.32 of 2003 dated 01.12.200t is against law and facts, the same needs to be set aside by this Court in the interest of justice by means of allowing the present Civil Revision Petition.
4. Before the Executing Court in E.P.No.32 of 2003 a Memo of Calculation has been filed upto 03.10.2002, which indicates that there is a balance of Rs.26,64,500/- to be paid to the petitioners along with future interest till the date of payment. However, the first respondent has filed a memo of calculation before the Executing Court , in and by which, the balance of Rs.5,96,656.70 has been deposited on 04.07. 2002 in the Sub court, Udumalpet. Again on 24.01.2005, a revised memo of calculation has been filed on the Petitioner’s side before the Executing Court in E.P.No.32 of 2003, in and by which, the total amount due as on 24.01.2005 comes to Rs.30,11,594/- It is to be pointed out that this Court on 12.07.2001, in A.S.No.1101 of 1993 and Cross Objection 90 of 1996, while dismissing the appeal and allowing the Cross Objection, has passed the following decree:
“1. That the respondents/respondents 2 to 8 & 11/Claimants/Cross Objectors be and hereby are entitled to the compensation (market value ) as fixed by the Court below and solatium at the rate of 30% on the market Value, of the lands acquired.
2. That the respondents/respondents 2 to 8 & 11/Claimants/Cross Objectors be and hereby are entitled to a further sum calculated at 12% per annum from the date of 4(1) Notification till the date of passing of award or delivery of possession whichever is earlier.
3. That the respondents/respondents 2 to 8 & 11/Claimants/Cross Objectors be and hereby are entitled to interest on the market value, the additional amount and solatium at the rate of 9% per annum from the date of possession for a period of one year and 15% per annum thereafter till the date of deposit.”
5. Subsequently, respondents 1 and 2 in the Civil Revision Petition before this Court are the appellants in A.S.No.1101 of 1993 and Cross Objectors 1 to 8 are figured as Revision petitioners. Further, some of the Revision petitioners were figured as respondents in the appeal and as Cross Objectors 1 to 8 therein.
6. The learned counsel for Revision Petitioners cites a decision of the Hon’ble Supreme Court in Sunder Vs Union of India reported in 2002(2) L.W 39 wherein it has been held as follows:
” Interest is payable on the compensation awarded and not merely on the market value of the land, and interest awardable under S.28 would include market value and the statutory solatium and also the legal obligation on the part of the Collector is to pay ‘ the compensation awarded by him’ and it would include not only the sum arrived at as per S.23(1) but the remaining subsections as well.”
7. He also relies on a decision in the case of State of Haryana VS Smt.Kailashwati and others reported in A.I.R.1980 Punjab and Haryana 117 wherein it has been observed as follows:
“The solatium provided for under Section 23 (2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, further from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. The language of Sec.28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well.”
8. Further, the learned counsel has brought to the notice of the Court, the decision in Sub Collector, Padmanabhapuram, Thjakkalai village, Kalkulam taluk, Kanyakumari District Vs. R.s.Raveendran reported in2006-2-L.W.102, wherein it has been held as follows:
“As per Proviso to Section 28, 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 15 per cent 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-Judgment and decree of the learned subordinate Judge has to be modified in so far as payment of interest in terms of section 28 and not at the rate of 15 per cent per annum as fixed.
After the decision of the Supreme Court, interest is payable not only to the actual market value of the land, but also for the additional amount as well as solatium”.
9. He also seeks in aid of a decision of the Hon’ble Supreme Court in Gurpreet Singh Vs Union of India reported in (2006) 8 Supreme Court Cases 457 wherein it has been held as follows:
“Scheme of S.28 of the 1894 Act also indicates such a scheme of appropriation and further, when an award-decree is passed specifying the amounts under different heads, as required under S.26 of the 1894 Act, and the judgment debtor State makes a deposit of specified sums under these different heads, it will amount to the judgment debtor intimating to the decree holder as to how the sum deposited is to be applied and decree holder will not be entitled to appropriate at his volition”.
10. Before this Court on the side of the Revision Petitioners, a revised memo of calculation h as been filed in respect of the amount due as on 17.09.2009, which comes to Rs.42,26,271.25 and the details of the said calculation is as follows:
Amount in Rs.
Compensation amount awarded by L.A.O. At Rs.15,192/- per acre for 7.16 acres
1,08,774/-
Value of trees
2100/-
Total Market Value
1,10,874.00
Addl.amount U/S 23(1-A) at 12% on Rs.1,10,874/- from 06.05.1986 the date of Sec.4(1) Notification to 29.02.1988 the date of passing of award for 1 year 9 months and 24 days.
24,156/-
Solatium U/S.23(2) at 30% on Rs.1,10,874/-
33262/-
Total Compensation awarded by L.A.O.
1,68, 292.00
Enhanced compensation as awarded by Sub-Court, Udumalpet at Rs.1,74,000/- per acre for 7.16 acres
12,53,000/-
Value of Trees as enhanced
5000/-
Total Market Value
12,58,000.00
Addl.Amount U/S.23(1-A) at 12% on Rs.12,58,000/- from 06.05.1986, the date of Sec.4(1) Notification to 29.02.1988, the date of passing of award by L.A.O. For 1 year 9 months and 24 days.
2,74,106/-
Solatium U/S23(2) at 30% on Rs.12,58,000/-
3,77,400/-
Total enhanced compensation awarded by Court
19,09,506.00
Balance Compensation to be paid:
Market
Value
12% Addl.
Amount
30% Solatium
1.Enhanced compensation 12,58,000.00
2,74,106.00
3,77,400.00
ii.Less amount awarded 1,10,874.00
and deposited by
L.A.O.P. into
Sub Court,
Udumalpet on
04.09.1988
24,156/-
33,262/-
11,47,126.00
2,49,950.00
3,44,138.00
Total enhanced compensation amount to be paid
i) Market Value
ii)12% Addl.Amount
iii) 30% Solatium
11,47,126.00
2,49,950.00
3,44,138.00
Total enhanced compensation amount to be paid 17,41,214.00
Interest Calculation
1
Interest at 9% p.a on Rs.1,68,292/-(amount awarded by L.A.O) from 11.03.1988, the date of possession to 04.09.1988, the date of deposit by L.A.O.(for 178 days) as per Sec.34
7386
2
Interest at 9% on Rs.17,41,214/- (enhanced compensation amount as awarded by Court) from 11.03.1988, the date of possession to 10.03.1989(for 1 year) as per Sec.28
1,56,709.00
3
Interest at 15%p.a. on Rs.17,41,214/- from 11.03.1989 to 25.01.1994, the date of 1st deposit of Rs.5,42,172/- for 4 years 10 months and 14 days, as per Sec.28
12,72,397.00
Total (1+2+3)
14,36,492.00
Less the sum ofRs.5,42,172/- deposited on 25.01.1994 (1st deposit)
5,42,172.00
Balance
8,94,320.00
4
Interest at 15% p.a on Rs.17,41,214/- from 26.01.1994 to 06.06.1994, the date of 2nd deposit of Rs.5,42,140/- for 4 months and 10 days as per Sec.28
94215
Total
9,88,535.00
Less the sum of Rs.5,42,140/- deposited on 06.06.1994(2nd deposit)
5,42,140.00
Balance
4,46,395.00
5
Interest at 15% p.a on Rs.17,41,214/- from 07/06/1994 to 07.02.1997, the date of 3rd deposit of Rs.10,84,345/- for 2 years and 8 months, as per Sec.28
6,94,485.00
Total
11,40,880.00
Less the sum of Rs.10,84,345/- deposited on 07.02.1997 (3rd deposit)
10,84,345.00
Balance
56535
6
Interest at 15% p.a on 17.41,214/- from 08.02.1997 to 04.07/2002, the date of 4th deposit of Rs.5,96,657/- for 4 years , 4 months and 16 days as per Sec.28
11,43,237.00
Total
11,99,772.00
Less the sum of Rs.5,96,657/- deposited on 04.07.2002 (4th deposit)
5,96,657.00
Balance
6,03,115.00
7
Interest of 15% p.a on Rs.17,41,214/- from 05.07.2002 to 17.09.2009 for 7 years , 2 months and 14 days as per Sec.28
18,81,942.25
Total interest due upto 17.09.2009
24,85,057.25
Total amount due:
Total enhanced compensation to be paid
17,41,214.00
Total interest due on the enhanced compensation upto 17.09.2009
24,85,057.25
TOTAL AMOUNT DUE AS ON 17.09.2009
42,26,271.25
11. However, the first respondent h as filed a memo of Calculation before the Executing Court in E.P.No. 32 of 2003 and the same is as follows:
“Enhanced compensation as awarded by
Sub Court, Udumalpet @ Rs.1,74,000/-
per acre for 7.20 Acres 12,60,000.00
Tree Value 5,000.00
----------------
Total 12,65,000.00
30% solatium for Rs.12,65,000/- 3,79,500.00
12% Addl.amount date of 4(1) Notification
to the date of passing of award i.e. 06.05.86
to 29.02.88, 1 year 9 months and 24 days 2,75,631.40
-----------------
Total 19,20,131.40
----------------
Land Value Solatium 12% Addl.
amount
-----------------------------------------
i. Enhanced land value
due 12,65,000.00 3,79,500.00 2,75,631.40
ii. Amount already
deposited in the Sub
Court,Udumalpet on
04.09.1988 1,11,484.55 33,445.35 24,291.40
-----------------------------------------------
iii.Balance to be paid 11,53,515.45 3,46,054.65 2,51,340.00
-__________________________________
Land Value 11,53,515.45
Less:Amount deposited at
Sub Court,
Udumalpet on
25.01.94 5,42,172.00
----------------
6,11,343.45
-____________
Less amount deposited at
Sub Court,Udumalpet
on 06.06.94 5,42,172.00
-----------------
Balance amount to be paid 69,171.45
------------------
Interest Calculations:
1.Interst at 9% p.a to be paid from
11.03.88 to 04.09.88 for Rs.12,85,000/-
(178 days) : 55,521.40
2. Interest at 9% from 05.09.88 to
10.03.89 for Rs.11,53,515.45
(For 107 days) : 53,188.10
2. Interest at 15% p.a from 11.3.89
to 25.1.94 for Rs.11,53,515.445
(4 years,321 days) : 8,44,278.20
4. Interest from 26.1.94 to 06.06.94
for Rs.6,11,343.45 @ 15% p.a.
(132 days) : 33,163.60
5. Interest from 07.06.1994 to
25.02.1994 for Rs.69,171.45 : 28,284.30
------------------
Total : 10,14,435.60
------------------
Balance amount of enhanced compensation
to be remitted on 06.06.94 69,171.45
Interest to be remitted as on 25.02.97 10,14,435.60
-------------------
Total amount remitted on 25.02.97 at
Sub Court, Udumalpet 10,84,345.00
Less balance amount of enhanced
compensation to be remitted on
06.06.94 plus interest to be
remitted : 10,83,607.05
Amount available at Sub Court,
Udumalpet as excess : 737.95
-------------------
Solatium to be paid 3,46,054.65
12% Addl. Amount to be paid 2,51,340.00
------------------
Total 5,97,394.65 -------------------
Less amount available at Sub Court,
Udumalpet : 737.95
Balance to be deposited in the Sub Court,
Udumalpet : 5,96,656.70
-------------------
The Balance of Rs.5,96,656.70 was deposited on 04.07.2002 in the Sub Cout, Ulundurpet
12. In this connection, Order 21 Rule 21 of Civil Procedure Code speaks of “Modes of paying money under decree” and the same is extracted as under:
“R.1.Modes of Paying money under Decree: (1) All money payable under a decree shall be paid as follows, namely:-
(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
(b) Out of court to the decree holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or
) Otherwise, as the Court which made the decree directs.
2. Where any payment is made under clause (1) or Clause ) of sub rule (1), the judgment-debtor shall give notice thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgment due.
(3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub0rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, name:-
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
(d) the number of the execution case of the Court, whether such case is pending; and
(e) the name and address of the payer.
(4) on any amount paid under clause (a) or clause ) of sub rule (1) interest, if any, shall cease to run from the date, of service of the notice referred to in sub-rule(2)
(5) On any amount paid under clause (b) of Sub-Rule (1) interest, if any shall cease to run from the date of such payment:
Provided that, where the decree-holder refused to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids the acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be.”
13. As far as the present case is concerned, the fact remains that the Appeal 1101 of 1993 preferred by the respondents as appellants has been dismissed by this Court on 12.07.2001 and Cross Objection No.90 of 1996 filed by the respondents in appeals by Cross Objectors 1 to 8 therein has been allowed.
14. Earlier, an award has been passed in L.A.O.P.No.99 of 1998 by the Subordinate Judge, Udumalpet on 14.02.1992 and the appeal in A.S.No.1101 of 1993 and Cross Objection 90 of 1996 have been disposed of by this Court on 12.07.2001. Inasmuch as the appeal preferred by the respondents in Civil Revision petition, as appellants has been dismissed by this Court on 12.07.2001 and consequently, Cross Objection No.90 of 1996 filed by the Cross Objectors 1 to 8 has been allowed. It is crystal clear that the award passed in L.A.O.P.99 of 1998 dated 14.12.1992 has been modified.
15. It is to be noted that numerous rules of order 21 of the Civil Procedure Code take care of different situations, providing effective remedies not only to judgment-Debtors, decree-holders, but also to claimants/objectors and in an exceptional case, where provisions are rendered incapable of granting relief in adequate measure and at relevant time, the option is available to file a regular suit before the appropriate civil forum.
16. Also, that the payment made by judgment-debtor otherwise than in accordance with rule and without recording of satisfaction under rule 2, the payment has to be adjusted strictly in accordance with the directions of the Court, if any, and in the absence of such directions adjustment has to be made, subject to an agreement to the contrary between the parties, firstly, towards interests and costs and thereafter towards principal sum etc ., and sections 59 to 61 of the Contract Act 1972 do not deal with cases where principal and interest are due under a single debt and in the sections 59 and 60 of the Contract Act are applicable not at the post-decretal stage but only applies at pre-decretal stage, in the considered opinion of this Court.
17. There is no inconsistency between order 21 Rule 1 proviso of Civil Procedure Code and Sections 28 and 34 of the Land Acquisition Act as per decision in the Government of Goa and another Vs IVO Angnelo Santimano Fernandes and others reported in 2002 A.I.H.C. 4941.
18. It cannot be in dispute that the liability of State to pay interest ceases when the amount of compensation is paid to the claimant or deposited into Court as per decision in Premnath Kapur and another Vs National Fertilizers Corporation of India Ltd., and others reported in (1996) 2 S.C.C 71 .
19. On a careful consideration of respective contentions, and also taking note of the fact that the Appeal No.1101 of 1993 has been dismissed by judgment of this Court dated 12.07.2001 and further, that Cross Objection 90 of 1996 has been allowed by this Court and added further, after going through the order passed by the Executing Court in E.P.No.32 of 2003, this Court is of the considered view that the observations made by the Executing Court that ” there is difference in regard to the amount shown in the memo of calculation and that of the one shown in the petition and therefore, it is dismissed by the Execution petition on the ground that the memo of calculation filed by the Revision petitioners is wrong one” are not a valid and correct one in the eye of law. Further this Court opines that if the memo of calculation filed by the Revision petitioners is not a correct one, then the Executing Court, instead of dismissing the Execution petition, ought to have directed the petitioners to file a fresh memo of calculation in regard to the amount due to be paid to the petitioners by the respondents herein or it should have also worked out a memo of calculation by itself by taking the aid of the office through Chief Ministerial Officer viz. Sheristadar But unfortunately, such a procedure has not been resorted to by the Executing Court, and this has resulted in miscarriage of justice. But however, on a conspectus of over all assessment of the facts and circumstances of the present case, in a cumulative and integrated manner, this court on the basis of Equity, FairPlay and Good Conscience and as a matter of Prudence, sets aside the order passed by the Executing Court in E.P.No. 32 of 2003 and allows the Civil Revision petition in the interest of justice by means of issuing an appropriate direction to the Executing Court to restore E.P.No.32 of 2003 to its file and to decide the same afresh on merits dispassionately uninfluenced with any of the observations made by this court in this Revision and in accordance with law, after providing due opportunities to the respective parties to let in oral or documentary evidence as the case may be, if so advised, and if exigency of situation so requires. The parties are directed to file a fresh memo of calculation as on date on their side and to present before the Court effectively and efficaciously and the Executing Court shall dispose of the Execution Petition No.90 of 1993 by passing a reasoned order on merits within a period of three weeks from the date of receipt of copy of this order and to report compliance to this Court without fail.
20. With the above observations, the Civil Revision petition is allowed and the order of the Executing Court in E.P.No.32 of 2003 is set aside. Having regard to the facts and circumstances of the case, there shall be no order as to costs.
pal
To
1. The Sub Collector,
rep. by Tahsildar,
Polachi, Udumalpet.
2. The Secretary,
Coimbatore Marketting
Committee,
Coimbatore