{"id":261902,"date":"2010-09-07T00:00:00","date_gmt":"2010-09-06T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-union-of-india-on-7-september-2010"},"modified":"2016-03-25T07:39:57","modified_gmt":"2016-03-25T02:09:57","slug":"appearance-vs-union-of-india-on-7-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/appearance-vs-union-of-india-on-7-september-2010","title":{"rendered":"Appearance vs Union Of India on 7 September, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Appearance vs Union Of India on 7 September, 2010<\/div>\n
Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/5341\/2010\t 13\/ 15\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5341 of 2010\n \n\nTo\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5357 of 2010 \n\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5395 of 2010\n \n\nTo\n\n\n \n\n      \n                  SPECIAL\nCIVIL APPLICATION No. 5494 of 2010  \n \nFor\nApproval and Signature: \n\n \n\n \nHONOURABLE\nMR.JUSTICE D.H.WAGHELA \n\n \n\n \nHONOURABLE\nMR.JUSTICE BANKIM.N.MEHTA\n \n=============================================================\n\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n1\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n2\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nTo\n\t\t\t\tbe referred to the Reporter or not ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n3\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n4\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tthis case involves a substantial question of law as to the\n\t\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\t\tmade thereunder ?\n\t\t\t\n\t\t\n\t\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\n5\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nWhether\n\t\t\t\tit is to be circulated to the civil judge ?\n\t\t\t\n\t\t\n\t\n\n \n\n=============================================================\n\n\n \n\nOIL\n& NATURAL GAS CORPORATION LIMITED \n\n \n\nVersus\n \n\nBHULIBEN\nLALA RATANJI AND ANOTHER\n \n\n=============================================================\n\n\n \n\nAppearance\n:  \nMR AJAY R\nMEHTA for\nthe Petitioner \nMR AJ PATEL for the Respondent No.1 \nMR PK JANI,\nGP with Ms. Monali\nBhatt, Mr. CB Upadhyay, Mr. HK Patel, Mr. AJ Desai and Ms. TK Patel,\nAGPs  for the\nRespondent   State \n\n \n\n=============================================================\n\n\n\n\t \n\t\t  \n\t\t \n\t\t  \n\t\t\t \n\t\t\t\t \n\nCORAM\n\t\t\t\t: \n\t\t\t\t\n\t\t\t\n\t\t\t \n\t\t\t\t \n\nHONOURABLE\n\t\t\t\tMR.JUSTICE D.H.WAGHELA\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t \n\t\t\t\t \n\nand\n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\t\t\t \n\t\t\t\t \n\nHONOURABLE\n\t\t\t\tMR.JUSTICE BANKIM.N.MEHTA\n\t\t\t\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 07\/09\/2010 \n\n \n\n \n \nCAV\nJUDGMENT \n<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE BANKIM.N.MEHTA)<\/p>\n
1.\tThe
\npetitioner, in this group of petitions, filed under Articles 226 and
\n227 of the Constitution of India has prayed to issue writ of
\ncertiorari or  a writ in the nature of certiorari to quash and set
\naside order dated 9-2-2010 passed in Execution Petition No.73 of 2004
\narising from Land Acquisition Case No. 435 of 1987.\n<\/p>\n
2.\tLearned
\nadvocate Mr. A.J. Patel appearing for the respondents original
\nclaimants\/land owners has stated that he appears in all the matters
\neven if notices are served, not served or not returned after service.\n<\/p>\n
3.\tThe
\nbrief facts of the case are that the petitioner, the acquiring body
\nacquired various lands of village Bhatpore and village Kavash
\npursuant to Notification issued u\/s 4 of the Land Acquisition Act<\/a>
\n(hereinafter referred to as  the Act ) in the year 1982-83. The
\nSpecial Land Acquisition Officer  declared his award in the year
\n1986. The original claimants\/land owners preferred  Reference u\/s 18
\nof the Act. The Reference Court after hearing  the parties fixed
\nmarket value of the lands in question at Rs.17\/- per sq. mtr. by its
\njudgment and award dated 29-2-2000. The Reference Court while
\ndeciding Reference  held that the original claimants\/land owners
\nwould be entitled to interest @ 9% p.a. for the first year and @ 15%
\np.a. thereafter on the market value fixed. Being aggrieved by the
\nsaid decision, original claimants\/land owners preferred  First Appeal
\nbefore the High Court. The First Appeals were partly allowed  by
\njudgment and order dated  21-12-2000 and the market value of the
\nlands in question  was reduced from Rs.17\/- per sq. mtr. to Rs.13.50
\nper sq. mtr. It was also observed that,  It is understood  that the
\nrespondents   original claimants would also be entitled to all
\nstatutory allowances  under the Act on the basis of the aforesaid
\nmarket value. Decree accordingly.\n<\/p>\n
\tThe
\noriginal claimants\/land owners withdrew the execution proceedings
\nfiled by them as the acquiring body deposited the amount of
\nadditional compensation reserving their right and on condition to
\nfile execution proceedings afresh to claim interest  on the amount of
\nsolatium and additional compensation. The petitioner acquiring body
\ndeposited the amounts  due under the award on 9-7-2001 and the
\noriginal claimants\/land owners withdrew  the said amounts
\nunconditionally. After about one year, the original claimants\/land
\nowners served a notice to the petitioner  and claimed interest  on
\nthe amount of solatium and additional  compensation as per the
\ndecision of the Hon’ble Supreme Court in the case of  Sunder
\nV\/s. Union of India,
\nreported
\nin 2001 (3) G.L.H. 446, which was decided subsequent to
\nwithdrawal of the amounts by the original claimants\/land owners.
\nSome of the original claimants\/land owners filed Special Civil
\nApplications in the High Court praying for writ of mandamus directing
\n the acquiring body to deposit amount of interest  on the aggregate
\namount of compensation including solatium and other statutory
\nbenefits  and for direction to the State Government to issue
\nnotification\/ resolution\/circular for payment of the same. After
\nhearing the parties, the Court by order dated 10-12-2003 disposed  of
\nthe petitions observing that if the claimants have not received
\namounts as per the order of the High Court or any court, they have to
\nmove the Executing Court highlighting  that they are entitled  to
\nthat amount as per the decree, if such amount is not paid by the
\nacquiring body. Thereafter,  the original claimants\/land owners filed
\nexecution proceedings on 25-6-2004.  After hearing the parties, the
\nExecuting Court by order dated 9-2-2010 directed the acquiring body
\nto deposit  in the court or to pay to the original claimants\/land
\nowners, the amounts claimed in the Execution Application with
\ninterest @ 15% p.a. from 24-7-2001 till realisation of the same.
\nBeing aggrieved by the said decision, the petitioner, the acquiring
\nbody, has preferred this group of petitions.\n<\/p>\n
4.\tWe
\nhave heard learned advocate Mr. Ajay R. Mehta for the petitioner and
\nlearned advocate Mr. A.J. Patel for the original claimants\/land
\nowners as well as Mr. PK Jani, learned Government Pleader with Ms.
\nMonali Bhatt, Mr. CB Upadhyay, Mr. HK Patel, Mr. AJ Desai and Ms. TK
\nPatel, learned AGPs for the respondent State at length and in great
\ndetail.\n<\/p>\n
5.\tIt
\nis submitted by learned advocate  Mr. Mehta for the petitioner  that
\nthe Reference Court  ordered to pay interest on the market value  and
\nnot on the entire compensation and the court has misinterpreted  the
\ndecision in Sunder’s case (supra). He also submitted that the
\npetitioner   the  acquiring body  had deposited  the amount of
\naward in the court and the same was withdrawn by the original
\nclaimants\/land owners without any objection. Therefore, the award
\npassed by the Reference Court  was satisfied and  after unconditional
\n withdrawal of the amount, the original claimants\/land owners, in
\norder to take  advantage of the decision  of Hon’ble Supreme Court in
\nthe case of Sunder (supra), filed petitions and claimed amount of
\ninterest.  But the petitions were not entertained  and taking
\nadvantage of the observations made in the said petitions that  if
\nthe claimant has not received the amount as per award of the High
\nCourt or any Court, he has to move Executing Court,  the execution
\napplications are filed.  He also submitted that the original
\nclaimants\/land owners had earlier filed execution applications  but
\nthe same were withdrawn and hence they  have no right to reopen their
\nclaim of interest on the basis of decision in  case of Sunder
\n(supra) as the said decision could not be applied to closed
\nexecutions. He, in the alternative, submitted that in view of the
\ndecision in the case of Gurpreet Singh V\/s. Union of India,
\nreported in (2006) 8 SCC 457, the original claimants\/land owners
\nwould be entitled to interest from 19-9-2001 and not for any prior
\nperiod, hence the Executing Court committed  error in passing the
\nimpugned order and awarding interest  as claimed  in the Execution
\nApplications.\n<\/p>\n
6.\tLearned
\nadvocate Mr. Patel for the respondents  – the original claimants\/land
\nowners submitted that  the executions were withdrawn reserving the
\nright to claim interest and award passed by the Court was never
\nsatisfied as the Acquiring Body did not deposit the amount of
\ncompensation as per the award passed by the Court, and therefore, the
\noriginal claimants\/land owners were entitled to file execution
\napplications  for the amount of compensation which was not paid to
\nthem under the award. He  also submitted that in view of the decision
\nin Sunder’s case (surpa) the acquiring body was required to
\npay interest, but the same was not paid, and therefore, the execution
\nproceedings were  filed to claim the amounts and the executing court
\nwas justified in passing the impugned  order. Therefore these
\npetitions are required to be dismissed. He relied upon the decisions
\nin (i) Shree Vijay Cotton and Oil Mills Ltd. Vs. State of Gujarat,
\nreported in AIR 1991 SC l656; (ii) State of Gujarat V\/s. Dinesh
\nJaga Rabadiya reported in 2002 (2) GLH (UJ) 8, (iii) Patel
\nJoitaram Kalidas & Ors. V\/s. Spl. Land Acquisition Officer &
\nAnr. Reported in (2007) 2 SCC 341 (iv) Narain Das Jain (since
\ndeceased) by LRs. Vs. Agra Nagar Mahapalika, Agra, reported in
\n(1991) 4 SCC 212, unreported  decisions of this Court rendered in the
\ncase of State of Gujarat & Anr. Vs. Ranchhodbhai Hirabhai
\nin Civil Revision Application No. 321, 322, 323, 353 of 2009 dated
\n1-4-2010 and Civil Revision application Nos. 51, 103, 105, 145 of
\n2005 dated 14-5-2010 .\n<\/p>\n
7.\tLearned
\nA.G.P. supported the petitioner and submitted that the original
\nclaimants\/land owners have no right to claim interest  as prayed for.\n<\/p>\n
8.\tIt
\nappears from the history of the case that the lands in question
\nbelonging  to the original claimants\/land owners were acquired  and
\nawards for compensation were passed by Land Acquisition Officer. The
\noriginal claimants\/land owners made applications for reference under
\nSection 18<\/a> of the Act and hence References were made to the Court.
\nThe Reference Court enhanced the compensation and passed following
\naward :\n<\/p>\n
\t The
\npresent References are partly allowed.\n<\/p>\n
The referrers are
\nhereby ordered to pay to the claimants, the claim of acquired lands,
\nat the rate of Rs.17\/- (Rupees Seventeen only) per square metre,
\ninstead of the amount granted by the Land Acquisition Officer and
\nadditional compensation, after deducting  the amount awarded by the
\nLand Acquisition Officer.\n<\/p>\n
\tThe claimants are
\nalso entitled to recover the amount of solatium at the rate of 30%
\n(thirty percent) on the aforesaid enhanced compensation  and the
\nclaimants are also entitled to get 12% (twelve percent) per annum as
\nadditional market value from the date of notification under Section 4<\/a>
\ntill the date of taking over the possession.\n<\/p>\n
\tThe claimants are
\nalso entitled  to get interest on the amount of market value
\ndetermined above, at the rate of 9% (nine percent) per annum  for the
\nfirst year  from the date of taking over possession of land, and at
\nthe rate of 15% (fifteen percent)  per annum thereafter, till the
\namount is paid to the claimants.\n<\/p>\n
\tAnd if the  Kharaba
\nlands were acquired  by the Land Acquisition Officer, then the
\nclaimants are entitled to get the same amount on that lands.\n<\/p>\n
\tThe claimants are
\nalso entitled to recover the  proportionate costs on the amount
\nawarded and the  referrers should bear their own.\n<\/p>\n
\tAward
\nbe drawn accordingly.\n<\/p>\n
9.\tThe
\nacquiring body  preferred First Appeals before  High Court
\nchallenging  the award passed by the Reference Court. The High Court
\npartly allowed the appeals and held as under :\n<\/p>\n
\t In the premises
\naforesaid, we determine the market value of the acquired lands in
\nthis group of Appeals at Rs.13.50 per sq. mtr.  Consequently, these
\nAppeals are partly allowed with no order as to costs.\n<\/p>\n
\tIt is understood that
\nthe respondent   original  claimants would also be entitled to all
\nstatutory allowances under the Act on the basis of the aforesaid
\nmarket value. Decree accordingly.\n<\/p>\n
10.\tThe
\n original claimants\/land owners filed  execution proceedings for
\nenforcement of the award. It appears that  as the acquiring body
\ndeposited in the Court, additional amount of compensation, the
\noriginal claimants\/land owners in the said execution proceedings,
\nfiled application stating  that the acquiring body  had deposited the
\namount of additional compensation as per the award of the learned
\nCivil Judge (S.D.) and  High Court but has  not calculated the
\namount of interest on 30%  solatium as provided under 23 (1) of the
\nAct and amount of 12% on the market value as provided u\/s 23(1)(a) of
\nthe Act. It was also stated in the said application that in view of
\nthe decision of Hon’ble Supreme Court dated 19-1-2001 in Civil
\nApplication No.671 of 1999  and the decision of High Court dated
\n11-4-2002 in Civil Revision Application No.1125 of 2001 the Acquiring
\nBody is required to pay interest @ 9% p.a. for the first year and @
\n15% p.a. for  subsequent  years on the amount of 30% solatium u\/s 23
\n(2) of the Act and on additional amount of 12% on market value u\/s
\n23(1)(a) of the Act and hence the execution application has been
\nwithdrawn reserving their right and on condition to file execution
\nafresh to claim such amounts.\n<\/p>\n
11.\tThe
\nExecuting Court passed order of  granted  on such applications
\nand disposed of the execution applications. Thereafter some of the
\noriginal claimants\/land owners  approached  this Court by filing
\npetitions under Article 226<\/a> of the Constitution of India praying for
\ndirections to deposit amounts of interest on the aggregate amount of
\ncompensation including solatium and other statutory benefits payable
\nto them as laid down by Hon’ble Supreme Court in the case of Sunder
\n(Supra) and also made prayer for directions to issue notifications\/
\nresolutions\/circulars or orders for payment of such amounts.  The
\npetitions were dismissed  but  the court observed that claimant has
\nto move Executing Court by highlighting  that he is entitled to that
\namount as per the decree and such amount has not been paid by the
\nAcquiring Body. Therefore, the original claimants\/land owners filed
\nExecution Applications claiming interest @ 9% for one year from the
\ndate of taking possession and interest @ 15% p.a. from the date of
\nexpiry of one year.  The petitioner resisted the execution
\napplications contending that the amounts of interest claimed in the
\nexecution application have not been awarded in the judgment of the
\nReference Court or High Court and hence, the original claimants\/land
\nowners are not entitled for such amounts. After hearing the parties,
\nthe Executing Court allowed the execution applications and directed
\nthe petitioner\/original judgment debtor to deposit  the  amount
\nclaimed in the execution applications.\n<\/p>\n
12.\tAccording
\nto the petitioner, in view of the decision  of the Hon’ble Supreme
\nCourt in the case of Gurpreet Singh V\/s. Union of India, reported in
\n(2006) 8 SCC 457, interest on solatium can be claimed only if  claim
\nfor interest was not negatived, either expressly or by necessary
\nimplication by the judgment\/decree and also in pending executions,
\nbut as there was no execution pending on the date of decision in
\nSunder (Supra) and, as the court directed payment of interest on the
\nmarket value only, interest was not awarded on solatium and hence the
\noriginal claimants\/land owners were not entitled for such amounts.\n<\/p>\n
13.\tIn
\nthe case of Sunder (supra),  the Hon’ble Supreme Court in paras 23
\nand 24 has held as under :\n<\/p>\n
 23 : In deciding
\nthe question as to what amount would bear interest  under Section 34<\/a>
\nof the Act a peep into Section 31(1)<\/a> of the Act would be
\nadvantageous. That sub-section  says    On making an award under
\nSection 11<\/a>, the Collector shall tender payment of the compensation
\nawarded by  him to the persons interested  or entitled thereto
\naccording to the award,  and shall pay it to them unless prevented by
\nsomeone  or more of the contingencies mentioned in the next
\nsub-section.  The remaining sub-sections in that provision only
\ndeal with the contingencies in which  the Collector has to deposit
\nthe amount instead of paying it  to  the party concerned. It is the
\nlegal obligation  of the Collector to pay   the compensation
\nawarded by him  to the party entitled thereto. We make it clear
\nthat the compensation awarded would include not only  the total sum
\narrived  at as per sub-section (1) of Section 23<\/a> but the remaining
\nsub-sections thereof  as well. It is thus clear from Section 34<\/a>  that
\nthe expression  awarded amount   would mean the  amount of
\ncompensation  worked out in accordance with the provisions  contained
\nin Section 23<\/a>, including all the  sub-sections thereof.\n<\/p>\n
24 : The proviso to
\nSection 34<\/a> of the Act makes the position further clear. The proviso
\nsays that   if such compensation  is not paid within one year
\nfrom the date of taking possession of the land, interest shall stand
\nescalated to 15% per annum from the date of expiry of the said period
\nof one year  on the amount of compensation or part  thereof which
\nhas not been paid or deposited before the date of such expiry . It
\nis inconceivable that the solatium amount would attract  only the
\nescalated rate of interest  from the expiry of  one year and that
\nthere would  be no interest on solatium during the preceding period.
\nWhat the Legislature intended  was to make the aggregate amount under
\nSection 23<\/a> of the Act to reach the hands of the person as and when
\nthe award is  passed, at any rate as soon as he is deprived of the
\npossession of his land. Any delay in making payment of the said sum
\nshould enable the party to have  interest on the said sum until he
\nreceives the payment. Splitting up the compensation into different
\ncomponents  for the purpose of payment of interest  under Section 34<\/a>
\nwas not in the contemplation of the Legislature  when that Section
\nwas framed or enacted.\n<\/p>\n
14.\tSection
\n23<\/a> of the Act provides for the matters  to be considered  by the
\nCourt in determining the amount of compensation.  It provides  that
\nthe Court shall take into consideration the  market value of the land
\nat the date of the publication  of the notification u\/s 4,
\nsub-section (1) of the Act. Section 23(1A)<\/a>  provides that in addition
\nto  the market value of the land, the court  shall award an amount
\ncalculated at the rate of twelve  per centum per annum on such market
\nvalue  for the period commencing on and from the date  of the
\npublication of the notification u\/s 4 (1) of the Act in respect of
\nsuch land to  the date of the award  of the Collector  or the date of
\ntaking possession of the land, whichever is earlier. Section 23(2)<\/a>
\nprovides that in addition to the market value of the land, the court
\nshall award  a sum of thirty per centum on such market value,  in
\nconsideration of the compulsory  nature of the acquisition.\n<\/p>\n
15.\tConsidering
\nthe scheme of the Act, it emerges that while making award under
\nSection 11<\/a> of the Act, Collector has to inquire  into the value of
\nthe land and the compensation which in his opinion  shall be allowed
\nfor the land. When the award is not accepted and a  reference is made
\n to the court under Section 18<\/a> of the Act, after considering  the
\nmatters mentioned in Section 23<\/a> of the Act, the Court  is required to
\npass award. In the decision of Sunder (supra) Hon’ble Supreme Court
\nhas held that  the compensation awarded would include  not only the
\ntotal sum arrived at as per sub-sec. (1) of Section 23<\/a> but  remaining
\nsub-sections thereof as well. Therefore, the amount of compensation
\nwould consist of market value of land, additional amount of 12% per
\ncentum on the market value and solatium. The award of Reference
\ncourt, as confirmed by the High Court indicates  that original
\nclaimants\/land owners are entitled to recover the amount of solatium
\n@ 30 % on the enhanced compensation and amount of 12% as additional
\nmarket value  from the date of notification u\/s 4 of the Act till the
\ndate of taking possession  and interest @ 9% p.a. on the market value
\n from the date of taking possession for the first year and at @ of
\n15%  p.a. thereafter. In appeal, High Court held that original
\nclaimants\/land owners are entitled to all statutory allowances under
\nthe Act on the basis of market value determined by it. It was
\nsubmitted that by Mr. Mehta that interest was awarded only on market
\nvalue and hence the court could not have granted  interest on
\nsolatium. As observed earlier, the Reference Court passed a specific
\norder awarding interest on the market value only.  Therefore, it
\ncannot be said that interest was allowed on solatium and on the
\namount of 12% p.a. on market value.  It may be noted here that
\ndiscretion is allowed to the Court in respect of awarding interest
\nunder section 28<\/a> of the Act and payment of such interest has to be
\nordered and cannot be inferred by the executing or any other Court.\n<\/p>\n
16.\tIn
\nGurpreet Singh’s case (supra)  the Hon’ble Supreme Court, in para 54,
\nhas held as under :\n<\/p>\n
 One other question
\nalso was sought to be raised and answered by this Bench though  not
\nreferred to it. Considering  that the question arises in various
\ncases pending in courts all over the country, we permitted the
\ncounsel to address us on that question. That question  is whether in
\nthe light of the decision in Sunder, the awardee\/decree-holder would
\nbe entitled to claim interest on solatium in execution though it is
\nnot specifically granted by the decree.  It is well settled that  an
\nexecution court  cannot go behind  the decree. If, therefore, the
\nclaim for interest  on solatium had been made and the same has been
\nnegatived either expressly or by necessary implication by the
\njudgment or decree of the Reference Court or of the appellate court,
\nthe execution court will have necessarily to reject the claim for
\ninterest  on solatium based on Sunder on the ground that the
\nexecution court cannot go behind the decree.  But if the award   of
\nthe Reference Court or that of the appellate court does not
\nspecifically  refer to the question of interest  on solatium or in
\ncases where claim had not been made and rejected either  expressly or
\nimpliedly by the Reference Court or the appellate court, and  merely
\ninterest  on compensation is awarded, then it would be open to the
\nexecution court to apply the ratio of Sunder and say that the
\ncompensation awarded includes solatium and in such  an event interest
\non the amount could be directed  to be deposited in execution.
\nOtherwise, not. We also clarify that  such interest on solatium can
\nbe claimed only in pending executions and not in closed executions
\nand the execution court will be entitled to  permit its  recovery
\nfrom the date of the judgment in Sunder (19-9-2001) and not for any
\nprior period.  We also clarify that this will not entail any
\nre-appropriation or fresh appropriation by the decree holder.  This
\nwe have indicated  by way of clarification also in exercise of  our
\npower under Articles 141 and 142 of the Constitution of India with a
\nview to avoid multiplicity of litigation on this question.\n<\/p>\n
17.\tIn
\nthe decision of Gurpreet Singh (surpa) the Hon’ble Supreme Court has
\nheld that interest on solatium can only be awarded in execution , if
\nReference Court  or appellate court has not negatived the same
\nexpressly or by implication and merely interest on compensation is
\nawarded then it would be open to the executing court to apply the
\nratio of Sunder’s case and say that compensation awarded includes
\nsolatium. In the present  case, the court expressly granted interest
\non the market value.  Therefore, the claim of interest on solatium
\nwas negatived by implication. Learned Advocates for the respondents
\nhas relied upon the decision
\nof Patel Joitaram Kalidas & Others (supra), wherein Hon’ble
\nSupreme Court has held that grant of interest on amount payable by
\nway of additional amount and solatium is automatic and does not
\ninvolve any  judicial discretion.  He has also relied on the decision
\nof Dinesh Jaga Rabadiya (supra) and  unreported decisions of Ranchhod
\nHirabhai and Patel Bhagwanbhai Chaturdas (supra), wherein this Court
\nhas held that interest on amount payable by way of additional amount
\nand solatium is automatic and does not involve any judicial
\ndiscretion.  In view of the judgment of Reference Court, interest is
\nawarded only on market value and thereby, interest on solatium and
\namount of 12% p.a. on market value has been impliedly negatived and
\nthe Executing Court was not justified in going behind the award and
\nawarding interest on solatium and on amount of 12% p.a. on market
\nvalue by applying ratio of Sunder’s
\ncase.\n<\/p>\n
18.\tAs
\nregards submission of Mr. Mehta that the ratio of Sunder’s case
\n(supra) cannot be made applicable in the present case as the
\nexecution was closed, it appears that the original claimants\/land
\nowners were permitted to withdraw the execution proceedings by order
\ndated 30.10.2002.  The decision in Sunder’s case was delivered on
\n19.9.2001.  Therefore, on the date of decision of Sunder’s case, the
\nexecution proceedings were pending, but the earlier execution
\nproceedings were withdrawn reserving right to file execution
\napplication afresh to claim interest on solatium and on amount of 12%
\non market value.  The Executing Court granted the application.
\nTherefore, submission of Mr. Mehta cannot be accepted, but it is not
\nin dispute that the amounts deposited in the Court were
\nunconditionally withdrawn by the original claimants\/land owners and
\nthereafter, the execution proceedings were withdrawn.  In the
\ndecision of Gurpreet Singh (supra), Hon’ble Supreme Court has held
\nthat an Execution Court cannot go behind the decree and hence, the
\nclaim for interest on solatium had been made and the same has been
\nnegatived either expressly or by necessary implication by judgment or
\ndecree of the Reference Court or of the Appellate Court, the
\nExecution Court will have to reject the claim for interest on
\nsolatium, based on Sunder case.  As observed earlier, the Reference
\nCourt judgment indicates that interest was awarded on the market
\nvalue only.  Therefore, interest on solatium and on the amount of 12%
\np.a. on market value was negatived by implication.  Therefore, the
\noriginal claimants\/landlords are not entitled for interest on the
\nbasis of Sunder case.  Moreover, the execution applications do not
\nmention about the award or decree and the amount received by the
\noriginal claimants\/land owners towards the decree.  It also appears
\nthat claim of interest is made from the date of taking possession
\ntill the date of deposit of allegedly part of the decretal amount in
\nthe Court i.e. 27.7.2001.  The original claimants\/land owners cannot
\nclaim interest on the amount received by them.  Therefore also, they
\nare not entitled for the interest claimed in the execution
\napplications and the original claimants\/land owners are not entitled
\nto the benefit of Sunder’s case (supra).\n<\/p>\n
19.\tIn
\nview of above, as the Reference Court has negatived the claim of
\ninterest on solatium and on the amount of 12% p.a. on market value by
\nimplication, the original claimants\/land owners cannot claim such
\namount relying upon Sunder’s case (supra).  The Execution Court
\ncommitted error in going behind the award relying upon the decision
\nof Sunder’s case (supra) and passing the impugned order.  Therefore,
\nthe group of petitions succeeds and the orders impugned in the group
\nof these petitions are set aside with no order as to costs.  Copy of
\nthis judgment be placed in the allied matters.\n<\/p>\n
                                                                (D.H.\n<\/p>\n
WAGHELA, J.)<\/p>\n
                                                   (BANKIM
\nN. MEHTA, J.)<\/p>\n
shekhar\/-\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Appearance vs Union Of India on 7 September, 2010 Author: D.H.Waghela,&Nbsp;Honourable Mr.Justice Bankim.N.Mehta,&Nbsp; Gujarat High Court Case Information System Print 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-261902","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAppearance vs Union Of India on 7 September, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/appearance-vs-union-of-india-on-7-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Appearance vs Union Of India on 7 September, 2010 - 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