Karnataka High Court
The Karnataka Housing Board vs Mr Derrick D Sa on 16 August, 2018
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
W.P. No.23080/2017 (GM-CPC)
BETWEEN
THE KARNATAKA HOUSING BOARD
CAUVERY BHAVAN
BANGALORE-560009.
...PETITIONER
(By Mr. BASAVARAJ V. SABARAD, ADV.,)
AND
1. MR. DERRICK D'SA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVES.
1(a) MRS. HARRIET D'SA
W/O LATE DERRICK D'SA
AGE 66 YEARS.
1(b) MR. VINOD D'SA
S/O LATE DERRICK D'SA
AGE 43 YEARS.
1(c) MRS. MARITA D'SA
D/O LATE DERRICK D'SA
AGE 35 YEARS.
ALL RESIDING AT No.42B
CUNNINGHAM ROAD CROSS
BANGALORE-560 052.
2. MR. ERIC D'SA
S/O LATE DOROTHY D'SA
AGE 70 YEARS
Date of Order 16-08-2018 W.P.No.23080/2017
The Karnataka Housing Board Vs.
Mr. Derrick D'Sa, since deceased by his LRs & Ors.
2/12
RESIDING AT 14
SARASBAUG, DEONAR
MUMBAI-400 088.
3. COL. FEDRICK D'SA
S/O LATE DOROTHY D'SA
GE 68 YEARS.
4. MRS. MABEL JUSTINA D'SA
W/O LATE JOSEPH J.P. D'SA
AGE 58 YEARS.
5. MRS. TABITHA SANIA D'SA
D/O LATE JOSEPH J.P. D'SA
AGE 31 YEARS.
6. MRS. JOVITHA SHAINA D'SA
D/O LATE JOSEPH J.P. D'SA
AGE 28 YEARS.
7. MRS. SAMANTHA JOELIE D'SA
D/O LATE JOESPH J.P. D'SA
AGE 25 YEARS.
RESPONDENT Nos.3 TO 7 ARE
RESIDING AT DOTS DREAM
CUNNINGHAM ROAD CROSS
BANGALORE-560 052.
8. THE SPECIAL LAND ACQUISITION OFFICER
OFFICE OF THE DEPUTY COMMISSIONER
MANGALORE-575 001.
...RESPONDENTS
(By Mr. S. JAYARAMA BHATT, ADV., FOR
R1 (A TO C) & R2 TO R7
Mr. VIKRAM A. HUILGOL, HCGP FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS. QUASH/SET ASIDE THE ORDER DATED 22-4-2017
IN EXE. CASE No.25/2011 PASSED BY II-ADDL. SR. CIVIL
JUDGE, MANGALORE, D.K. AT ANNEX-A & ETC.
Date of Order 16-08-2018 W.P.No.23080/2017
The Karnataka Housing Board Vs.
Mr. Derrick D'Sa, since deceased by his LRs & Ors.
3/12
THIS PETITION COMING ON FOR PRLY. HEARING IN 'B'
GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Mr.Basavaraj V. Sabarad, Adv. for Petitioner. Mr.S.Jayarama Bhatt, A Adv. for Respondents.
The petitioner-Karnataka Housing Board (for short 'KHB') has filed this writ petition under Article 227 of the Constitution of India aggrieved by the order dated 22.04.2017 by which the learned Executing Court below has directed the attachment of the property of the Housing Board in favour of the Respondents under the land acquisition proceedings for which an Award was passed by the Land Acquisition Officer and subsequently enhancement of compensation was given by the Reference Court u/S.18 of the Act.
2. The grievance of the petitioner-KHB is that though the Constitution Bench decision of the Hon'ble Supreme Court in the case of Gurpreet Singh -vs- Union of India (2006) 8 SCC 457 has been referred to Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors. 4/12 by the Court below but the calculation of the interest as submitted by both the sides have not been appreciated by the Executing Court below and therefore, the impugned order passed by the Court below suffers from legal infirmity.
3. Learned counsel for the petitioner-KHB has relied upon paras-28 and 36 of the Constitution Bench decision of the Hon'ble Supreme Court which are quoted below for ready reference:
"28. Going by this principle and for the moment keeping out the scheme of the Land Acquisition Act, it appears to us that on payment or deposit of the amount awarded by the Collector in terms of Section 11 read with Section 31 of the Act, the claimant cannot thereafter claim any interest on that part of the compensation paid to him or deposited for the payment to him once notice of deposit is given to him. Thereafter, when the reference court enhances the compensation with consequential enhancement in solatium and interest under Section 23(1A) of the Act and further awards interest on the enhanced Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors.5/12
compensation in terms of Section 28 of the Act, the claimant/decree holder can seek an appropriation of the amounts deposited pursuant to that award decree, only towards the enhanced amount so awarded by the reference court. While making the appropriation, he can apply the amount deposited, first towards the satisfaction of his claim towards interest on the enhanced amount, the costs, if any, awarded and the balance towards the land value, solatium and the payment under Sections 23 (1A) of the Act and if, there is a shortfall, claim that part of the compensation with interest thereon as provided in Section 28 of the Act and as covered by the award decree. Once the sum enhanced by the reference court, along with the interest is deposited by the State, there will be no occasion for the claimant/awardee to seek a reopening of the amount awarded by the Collector, substituted by the amount awarded by the reference court and seek to have a re-appropriation of the amount towards what is due. Same would be the position in a case where the amount awarded by the reference court, including the interest is deposited, but the amount is further enhanced in appeal by the High Court. Again, the same principle would apply. The principle would Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors.6/12
continue to apply when the Supreme Court awards further enhancement in a further appeal to that Court. But if after the award by the reference court the amount is not deposited by the State, interest would run on the compensation in terms of Section 28 of the Act on that amount as provided in Section 28. The same would be the position regarding the enhancement given in appeal by the High Court and in the enhancement given in appeal by the Supreme Court. The mandate of Section 34 and Section 28 that interest would run from the date the Collector takes possession till the particular amount is deposited as provided in those sections ensures that the claimant is recompensed adequately. Section 28 ensures such recompense at each stage of enhancement of compensation.
36. Can a claimant or decree holder who has received the entire amount awarded by the reference court or who had notice of the deposit of the entire amount so awarded, claim interest on the amount he has already received merely because the appellate court has enhanced the compensation and has made payable additional compensation? We have already referred to Order XXI and Order XXIV of the Code to point out that Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors.7/12
such a blanket re-opening of the transaction is not warranted even in respect of a money decree. Section 28 of the Act indicates that the award of interest is confined to the excess compensation awarded and it is to be paid from the date of dispossession. This is in consonance with the position that a fresh re-appropriation is not contemplated or warranted by the scheme of the Act. But if there is any shortfall at any stage, the claimant or decree holder can seek to apply the rule of appropriation in respect of that amount, first towards interest and costs and then towards the principal, unless the decree otherwise directs."
4. The reasons assigned by the Executing Court below in its impugned order are quoted below for ready reference:
"08. On examination of Memo of Calculation preferred by the decree holder, it is noticed that the decree holder has adjusted the payment made by the J.Dr No.2 towards the interest at first and then towards the principal. There is no irregularity found in the procedure or method adopted by the decree holder in respect of Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors.8/12
appropriating of the amount first towards the interest and towards cost and thereafter towards the principal amount as per the settled principles of law and by virtue of the ratio laid down in Gurupreeth Singh - Vs - Union of India by the Hon'ble Supreme Court of India.
09. Further it is submitted at Bar during the course of arguments from the side of J.Dr. No.2 that the interest is to be payable on solatium only after passing of the judgment as per the ratio laid down by the Hon'ble Supreme Court of India in Sundar - Vs - Union of India. But as far as the ratio laid down in the decision relied upon by the J.Dr. No.2 the contention taken by J.Dr. No.2 not appears to be proper. Hence, under the circumstances the decree holder is entitled to interest on solatium also. Therefore for the aforesaid reasons and the discussion made thereon this Court is of the opinion that the objection preferred by the J.Dr. No.2 in respect of the Memo of calculation preferred by the decree holders holds no water and does not sustained. Hence this Court is of the opinion that the Memo of calculations preferred by the decree holder is to be considered. Therefore, the J.Dr. No.2 being beneficiary has no other option except to make Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors.9/12
payment of the balance amount as specified by the decree holder in the Memo of calculations preferred by him. Hence, this Court hereby directed the J.Dr.No.2 to make payment of the balance amount as specified in the memo of calculations preferred by the decree holder at the earliest.
10. It is pertinent to note that already much time has been elapsed. The claimants now appearing before Court submitting that they are senior citizen and ex-service person. The beneficiary the judgment no.2 has taken much time on one or the other pretext of making payment of decreetal amount, making payment of excess amount. The same is causing delay in execution of decree. Further the Summer Vacation is also fast approaching. Hence, under the circumstances the J.Dr. No.2 is directed to deposit the balance amount due by it to the Decree holders as per the memo of calculations filed by the Decree holders on or before next date of hearing."
5. Having heard the learned counsels, this Court is satisfied that the learned Executing Court Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors. 10/12 below does not appear to have fully appreciated the ratio of the Constitution Bench of the Hon'ble Supreme Court with regard to the computation of interest payable on the enhancement of the compensation in the Land Acquisition proceedings, the relevant facts and figures of interest, date of compensation awarded by the Land Acquisition Officer, date of enhancement of Award by the Executing Court and the reference made for such enhancement have been discussed and the computation of the claims by the decree holders have been taken at its face value.
6. The case therefore calls for remand to the learned Executing Court by setting aside the impugned order for recomputing the claims of the decree holders in accordance with the orders passed by the LAO and the Reference Court u/S.18 of the Act for computing the compensation with interest in accordance with Date of Order 16-08-2018 W.P.No.23080/2017 The Karnataka Housing Board Vs. Mr. Derrick D'Sa, since deceased by his LRs & Ors. 11/12 aforesaid Supreme Court decision which is binding on all the parties.
7. Therefore, the present writ petition is allowed and setting aside the impugned order dated 22.04.2017, the learned Executing Court is directed to pass fresh orders strictly in accordance with the Constitution Bench of the Hon'ble Supreme Court in Gurpreet's case (supra) particularly, paras-28 and 36 quoted above, the writ petition is accordingly allowed.
8. The learned counsel for the Respondents submitted that the Division Bench of this Court vide order dated 12.11.2014 in MFA No.10128/2010 had modified the award of the Reference Court.
9. The parties shall appear before the Court below without any further notice in the first instance on 03.09.2018.
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10. Heard on I.A.No.1/17 for release of deposit amount and I.A.No.2/17 for vacating interim stay.
11. The amount deposited by the petitioner- KHB under the interim orders passed by this Court shall remain deposited with the Registrar of this Court and separate orders may be passed later on after the fresh orders are passed by the Executing Court below upon this remand.
Sd/-
JUDGE TL