Madras High Court
L.Rajeswari vs Special Tahsildar (Land Acquisition) on 6 August, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.08.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.R.P.(NPD).Nos.1461, 1462 and 1633 of 2005 L.Rajeswari ... Petitioner in CRP (NPD) Nos.1461 and 1633 of 2005 1.V.Thambiah Reddy (Deceased) 2.T.Saraswathi 3.T.Hemachandran 4.T.Maheshkumar ... Petitioners in CRP (NPD) No.1462 of 2005 (Petitioners 2 to 4 are brought on record as legal representatives of the deceased sole petitioner vide order of the court dated 7/2/2011 in CMP No.2014 of 2007) vs. Special Tahsildar (Land Acquisition) and Special Deputy Commissioner, Collectorate of Chennai, Chennai-600 001. ... Respondent in all the CRPs Prayer:- Civil Revision Petitions in CRP (NPD) Nos.1461 and 1633 of 2005 have been filed under Article 227 of the Constitution of India against the order and decretal order passed in E.P.No.6 of 1997 dated 16.02.2005 and E.P.No.6 of 1997 dated 17.03.2005 in L.A.O.P.No.3 of 1990 on the file of VI Assistant City Civil Court, Chennai. Prayer:- Civil Revision Petition in CRP (NPD) No.1462 of 2005 has been filed under Article 227 of the Constitution of India against the order and decretal order passed in E.P.No.7 of 1997 dated 16.02.2005 in L.A.O.P.No.4 of 1990 on the file of VI Assistant City Civil Court, Chennai. For Petitioners : Mr.G.Kathirvelu For Respondent : Mr.M.Venugopal, Spl.Govt.Pleader(C.S.) C O M M O N O R D E R
Civil Revision Petitions in C.R.P. (NPD) Nos.1461 and 1633 of 2005 have been filed against two orders passed in E.P. No.6 of 1997 dated 16.02.2005 and 17.03.2005. Civil Revision Petition in C.R.P. (NPD) No.1462 of 2005 has been filed against the order passed in E.P. No.7 of 1997 dated 16.02.2005.
2. For the sake of convenience, the petitioners/decree holders in the execution petitions are referred as revision petitioners and the respondent/judgment debtor in the execution petitions referred as respondent hereafter.
3. Admittedly, the revision petitioners filed two claim petitions claiming compensation for acquired lands in L.A.O.P. Nos.3 and 4 of 1990. In the above said claim petitions, common award have been passed in both petitions and became final. The revision petitioners filed execution petitions in E.P.Nos.6 and 7 of 1997 in L.A.O.P. Nos.3 and 4 of 1990 respectively and claiming compensation amount from the respondent, failing which to attach the movable properties of the respondent/judgment debtor.
4. The executing court, on the basis of calculation memo filed by the revision petitioners passed orders in both execution petitions on 03.11.2003, wherein, it has directed the respondent to pay a sum of Rs.2,64,340.92 in E.P. No.6 of 1997 and Rs.1,81,736.09 in E.P. No.7 of 1997.
5. The respondent herein informed the executing court that the compensation amount had been wrongly calculated as excessive. On perusal of the records, the executing court has issued notice to all the concerned counsels and after hearing the learned counsel appearing on either side, passed final orders on 16.02.2005 in both execution petitions. Since in E.P.No.7 of 1997, the entire compensation amount has been paid as per calculation of the executing court, the above said execution petition was terminated on 16.02.2005 itself. But, in E.P.No.6 of 1997, the respondent herein sought further time for payment and therefore, the executing court has granted extension of time till 30.03.2005, but, the entire award amount has been paid in advance (i.e.,) on 17.03.2005 and the executing court passed an order as ''full satisfaction recorded and E.P. terminated''.
6. The main contention of the revision petitioners is that the executing court passed orders in both execution petitions on 03.11.2003, on the basis of calculation memo filed by the revision petitioners and hence, the executing court has no right to suo-motu reopen the above said orders as such, subsequent orders passed in both execution petitions are invalid. The next contention of the learned counsel appearing for the revision petitioners is that the respondent herein had admitted in several hearings to pay the award amount as claimed by the revision petitioners and also as per orders passed by the executing court on 03.11.2003. But, the executing court subsequently, after reopening the above said orders, erroneously held that the solatium amount is payable only on market value mentioned in Section 23(1) of the Land Acquisition Act, and not on the additional compensation awarded under Section 23(1-A) of the Act. Therefore, the above said orders passed by the executing court in both execution petitions are unlawful and also perverse.
7. Per contra, the learned counsel appearing for the respondent would submit that since there was an error in calculation amount, the executing court had correctly suo-motu reopened the orders and the revision petitioners have also participated in the above said proceedings, then only the executing court passed subsequent orders. The learned counsel further pointed out that the revision petitioners have not challenged the orders of reopen passed by the executing court and hence, the revision petitioners are not entitled to challenge the above said orders in these revision petitions. The learned counsel further submitted that as per the decree passed in both the claim petitions by the Tribunal, the revision petitioners are entitled to only 30% solatium amount over the enhanced compensation amount under Section 23(1) of the Land Acquisition Act, and the revision petitioners are not entitled for additional compensation as per Section 23(2) of the Land Acquisition Act, and therefore, the executing court has correctly passed orders in both execution petitions.
8. As rightly pointed out by the learned counsel appearing for the respondent, the revision petitioners have not challenged the orders of reopen passed by the executing court and further, the revision petitioners have participated in the above said proceedings after reopening the same. In the above said circumstances, the revision petitioners cannot question the above said orders of reopen passed by the executing court in these proceedings. Therefore, the above said contention of the revision petitioners cannot be accepted as rightly pointed out by the learned counsel appearing for the respondent.
9. The next contention of the revision petitioners is that the revision petitioners are entitled to the solatium amount of 30% on the market value arrived at for entire compensation amount including additional compensation as per Section 23(2) of Land Acquisition Act.
10. The learned counsel appearing for the respondent would submit that as per award passed by the Tribunal and also as per Section 23(1) of Land Acquisition Act, the claimants are entitled to solatium amount of 30% on the market value under Section 23(1) alone and the revision petitioners are not entitled to the entire compensation amount including additional compensation amount and hence, the orders passed by the executing court are correct and there is no need to interfere with the above said correct findings.
11. Considering the main dispute between parties, it is necessary to extract the relevant provisions namely Sections 23, 23(1), 23(2) of Land Acquisition Act reads as under:-
''23.Matters to be considered in determining compensation:-
(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
- first, the market value of the land at the date of the publication of the [notification under section 4, sub-section(1)];
- secondly, the damage sustained by the person interested, by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector's taking possession thereof;
- thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
- fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
- fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and
- sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
[(1-A) In addition to the market value of the land, as above provided, the Court shall, in every case, 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 under section 4, sub-section(1), 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.
Explanation.- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded].
(2) In addition to the market value of the land, as above provided, the Court shall, in every case, award a sum of [thirty per centum] on such market value, in consideration of the compulsory nature of the acquisition.''
12. In the instant case, the Tribunal has passed decree in both L.A.O.P. Nos.3 and 4 of 1990 as follows:-
''1 nfhhpf;ifahsUf;F vjph;kDjhuh; xU fput.z;L kjpg;g. U/11000/- ypUe;J U/45000/- Mf cah;j;jp ,k;kD rk;ge;jg;gl;l Mh;Ipj epyj;jpd; tp!;jpuzj;Jf;F ,Hg;gPL fzf;fpl;L bfhLf;f ntz;Lk;/ 2/ epy Mh;Ipj rl;lk; gphpt. 23(1)V gphptpy; ePf;fg;gl ntz;oa fhyk; VjkpUg;gpd; mij ePf;fp kPjp fhyj;Jf;F nkw;go gphptpd; fPH; 4(1) mwptpf;if njjp 2/8/72 Kjy; 22/10/80 njjp tiu nkny fzf;fplg;gLk; bjhiff;F 12% TLjy; ,Hg;gPL nrh;j;J vjph;kDjhuh; nfhhpf;ifahsUf;F bfhLf;f ntz;Lk;/ 3/ epy Mh;Ipj rl;lk; gphpt. 23(2)d; go 30% Mwjy; bjhif (solatium) nkny fzf;fplg;gLk; bjhiff;F vjph;kDjhuh; nfhhpf;ifahsUf;F bfhLf;f ntz;Lk;/ 4/ epy Mh;Ipj rl;lk; gphpt. 28d; go RthjPdj; njjpapypUe;J Kjy; Mz;Lf;F 9% tl;oa.k; Kjy; Mz;Lf;F gpwF bjhif brYj;jg;gLk; njjp tiu 15% tl;oa.k; nrh;j;J fzf;fpl;L vjph;kDjhuh; nfhhpf;ifahsUf;F bfhLf;f ntz;Lk;/ 5/ bkhj;jj; bjhifapy; Kd;dnu bfhLf;fg;gl;Ltpl;l bjhifapid Fiwj;Jf; bfhz;L kPjpj; bjhif vjph;kDjhuh; nfhhpf;ifahsUf;F bfhLf;f ntz;Lk;/''
13. The learned counsel appearing for the respondent would submit that in the above said decree, passed in both cases, it is mentioned in clause-3, as the claimants are entitled 30% solatium under Section 23(2) of the Land Acquisition Act, only for enhanced amount (i.e.,) amount awarded under Section 23(1) of the Land Acquisition Act, and therefore, the executing court has correctly calculated and passed orders in both execution petitions.
14. The learned counsel appearing for the revision petitioners submitted that the trial court, in its award clearly stated that the claimants are entitled to amount under Sections 23(1-A) and 23(2) for entire compensation amount and therefore, the contention of the learned counsel appearing for the respondent is not correct. In support of his contention, the learned counsel appearing for the revision petitioners relied on a decision of Hon'ble Supreme Court reported in (2001)7 SCC 211 (Sunder v. Union of India) and contended that the revision petitioners are entitled to the compensation as per Section 23 including all sub-sections, but, the executing court has not at all considered the above said law laid down by the Hon'ble Supreme Court. Therefore, he prayed for setting aside the orders passed by the executing court. The relevant portion relied on by the learned counsel appearing for the revision petitioners in the above said decision reported in (2001) 7 SCC 211 (Sunder v. Union of India) in para 23 reads as follows:-
''23. .... 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.''
15. As rightly pointed out by the learned counsel appearing for the revision petitioners, the Hon'ble Supreme Court has discussed the law laid down in various decisions on this aspect and finally held that the ''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. Therefore, in the instant case, the revision petitioners are entitled to claim compensation as per Section 23 including all sub-sections (i.e.,) entire award amount as claimed by the revision petitioners. Therefore, the findings of the executing court are liable to be set aside as contended by the learned counsel appearing for the revision petitioners.
16. In the result, all the three revision petitions are allowed and the orders passed by the executing court in E.P. Nos.6 and 7 of 1997 are set aside. The executing court is directed to restore the above said E.P.Nos.6 and 7 of 1997 and the respondent herein is directed to pay the balance amount within three months from the date of receipt of a copy of this order, failing which, the executing court is directed to proceed further as prayed for by the revision petitioners. No order as to costs.
06.08.2014 Index:Yes/No Internet:Yes/No ssn To VI Assistant City Civil Court, Chennai.
R.KARUPPIAH, J., ssn Pre-delivery Order in C.R.P.(NPD).Nos.1461, 1462 and 1633 of 2005 06.08.2014