Gujarat High Court
Oil vs Bhuliben on 7 September, 2010
Author: D.H.Waghela
Bench: D.H.Waghela
Gujarat High Court Case Information System
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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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