CRP/3997/2010 of Dara Ramanna Vs Polla Mangamma on 31 December 2010

COMMON ORDER:

CRP.No. 4570 of 2010 is filed against the order dated 02-6-2010passed in EP.No.78 of 2004 in OP.No. 77 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3445 of 2011 is filed against the order dated 08-6-2010passed in EP.No.80 of 2004 in OP.No. 89 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3446 of 2011 is filed against the order dated 08-07-2010passed in EP.No.78 of 2004 in OP.No. 77 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3489 of 2011 is filed against the order dated 08-07-2010passed in EP.No. 74 of 2004 in OP.No. 1609 of 1990 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3491of 2011 is filed against the order dated 08-07-2010passed in EP.No. 77 of 2004 in OP.No. 174 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3491of 2011 is filed against the order dated 08-6-2010passed in EP.No. 62 of 2004 in OP.No. 76 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3513 of 2011 is filed against the order dated 08-7-2010passed in EP.No. 76 of 2004 in OP.No. 74 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3996 of 2011 is filed against the order dated 02-6-2010passed in EP.No. 74 of 2004 in OP.No. 160 of 1990 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3997 of 2011 is filed against the order dated 02-6-2010passed in EP.No. 77 of 2004 in OP.No. 1743 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 3998 of 2011 is filed against the order dated 02-6-2010passed in EP.No. 80 of 2004 in OP.No. 89 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

CRP.No. 4089 of 2011 is filed against the order dated 02-6-2010passed in EP.No. 62 of 2004 in OP.No. 76 of 1989 by the First AdditionalDistrict Judge, Nizamabad and CRP.No. 4040 of 2011 is filed against the order dated 02-6-2010passed in EP.No. 76 of 2004 in OP.No. 74 of 1989 by the First AdditionalDistrict Judge, Nizamabad.

2. The issues involved in the above Civil Revision Petitions and thereliefs sought being one and the same between both the parties, all the Civil Revision Petitions are heard together and are being disposed of by thiscommon order.

3. The Revision Petitioners are the claimants-decree holders.Aggrieved by the award passed by the Land Acquisition Officer on 10-11-1998 awarding compensation, the Revision Petitioners filed petition undersection 18 of the Land Acquisition Act. The learned First Additional DistrictJudge, Nizamabad, partly allowed the O.Ps. and enhanced thecompensation as mentioned in the orders passed by the learned FirstAdditional District Judge, Nizamabad. Against the said orders, the LandAcquisition Officer preferred appeals in all the matters and the appealswere dismissed by this Court. As the Land Acquisition Officer did not paythe amounts, the Revision Petitioners-Decree-holders filed ExecutionPetitions for realization of the decretal amount and the District Court passedconditional orders dated 04-07-2007 directing the respondent-Judgmentdebtor to recalculate the entire amount payable to the Revision Petitioners-claimants-Decree holders by including the interest on the solatium followingthe guidelines issued by the High Court of Andhra Pradesh and theJudgment in CHIEF ENGINEER, ITDA, (TW DEPT), HYDERABAD AND ORS.V/s. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT,VISAKHAPATNAM AND ANR[[1]], and deposit the said amount within thirtydays from the date of the order and also stated in the sdaid order that on failure to deposit the amount, the EP schedule properties involved in thecases shall be attached.

4. It is submitted by the Revision Petitioners that inspite of the saidconditional order passed by the District Judge, the Land Acquisition Officerneither filed calculation memo nor deposited any amount. Aggrieved by thedirections of the First Additional District Judge, Nizamabad, therespondents filed these Civil Revision Petitions and in the said CivilRevision Petitions, this Court upon hearing the arguments of both sides andpursuing the calculation memo filed by the parties, directed deposit of one-third of the amount in dispute.

5. It is the contention of the Revision Petitioners that subsequentlythe Land Acquisition Officer deposited some amounts which is not basedon the calculation memo filed before this court and the said amounts arealso not equivalent to the one-third of the disputed amount. Thus, the LandAcquisition Officer failed to comply with the order passed by this Court.

6. The Revision Petitioners brought to the notice of this Court aboutthe depositing of some amounts by the Land Acquisition Officer, which isnot one-third of the disputed amount as directed by this Court. Then thisCourt heard both sides, set aside the order passed earlier and remandedthe matter to the court below giving opportunity to both parties to filecalculation memos within four weeks from the date of receipt of copy of theorder and directed the court below to dispose of the matter within a period of one month from the date of filing the calculation memos by both theparties.

7. It is said that the court below instead of examining the calculationmemos filed by both parties in the light of section 23, 28 and 34 of the LandAcquisition Act and in utter disregard of the judgment of the Apex Court in

SUNDER V/s. UNION OF INDIA [[2]],GURPREET SINGH V/s. UNION OF INDIA[3],GENERAL MANAGER, OIL AND NATURAL GAS CORPORATION LTD., V/s.RAMESHBHAI JIVANBHAI PATEL AND ANR [[4]],LAND ACQUISITION OFFICERAND ASST. COMMISSIONER AND ANR. V/s. SHIVAPPA MALLAPPA JIGALURAND ORS[[5]], upheld the contention of the judgment debtor-Land AcquisitionOfficer and passed an order to the effect that the total amounts under theEPs are satisfied and no amounts are due to the decree holders andaccordingly closed the EPs.

8. The Hon’ble Supreme Court in para Nos. 52 and 54 of its judgment in Gurpreet singh referred supra-3, held as follows:

52. What is to happen when a part of the amount awarded by theReference Court or by the appellate court is deposited pursuant to aninterim order of the appellate court or of the further appellate courtand the awardee is given the liberty to withdraw that amount? In sucha case, the amount would be received by the decree holder on thestrength of the interim order and the appropriate will be subject to thedecision in the appeal or the further appeal and the direction, if any,contained therein. In such a case, if the appeal is disposed of in hisfavour, the decree holder would be entitled to appropriate the amountalready received by him pursuant to the interim order first towardsinterest then towards costs and the balance towards principal as ondate of the withdrawal of the amount and claim interest on thebalance amount of enhanced compensation by levying execution. Buton the part appropriated towards the principal, the interest wouldcease from the date on which the amount is received by the awardee. Of course, if while passing the interim order, the court hasindicated as to how the deposited amount is to be appropriated, thatdirection will prevail and the appropriation could only be done on thebasis of that direction.

53………………………

54. One other question also was sought to be raised andanswered by this Bench though not referred to it. Considering that thequestion arises in various cases pending in Courts all over thecountry, we permitted counsel to address us on that question. Thatquestion is whether in the light of the decision in Sunder (supra), theawardee/decree holder would be entitled to claim interest on solatiumin execution though it is not specifically granted by the decree. It iswell settled that an execution court cannot go behind the decree. If,therefore, the claim for interest on solatium had been made and thesame has been negatived either expressly or by necessaryimplication by the judgment or decree of the reference court or of theappellate court, the execution court will have necessarily to reject theclaim for interest on solatium based on Sunder (supra) on the groundthat the execution court cannot go behind the decree. But if the awardof the reference court or that of the appellate court does notspecifically refer to the question of interest on solatium or in caseswhere claim had not been made and rejected either expressly orimpliedly by the reference court or the appellate court, and merelyinterest on compensation is awarded, then it would be open to theexecution court to apply the ratio of Sunder (supra) and say that thecompensation awarded includes solatium and in such an eventinterest on the amount could be directed to be deposited in execution.Otherwise, not. We also clarify that such interest on solatium can beclaimed only in pending executions and not in closed executions andthe execution court will be entitled to permit its recovery from thedate of the judgment in Sunder (September 19, 2001) and not for anyprior period. We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree-holder. This wehave indicated by way of clarification also in exercise of our powerunder Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question.

9. Having gone through the submissions made by the counsel appearing for the Revision Petitioners, I am of the considered view thatwhile calculating the amounts due under the awards, the learned executingcourt did not take into consideration the above referred judgments reliedupon by the Revision Petitioners-decree holders and failed to considerSections 23, 28 and 34 of the Land Acquisition Act. The orders dated 02-6-2010, 08-6-2010 and 08-07-2010 passed by the learned court below are therefore set aside and the matters are remitted back to the court belowwith a direction to restore the EPs. The learned First Additional DistrictJudge, Nizamabad is directed to obtain calculation memo from both parties,arrive at a proper calculation to the award amount in all the matters withreference to sections 23, 28 and 34 of the Land Acquisition Act and in thelight of the judgments of the Apex Court referred supra and dispose of theEPs within a period of two months from the date of receipt of records.

10. With the above direction, the Civil Revision Petitions aredisposed of. There shall be no order as to costs.

________________________

JUSTICE R. KANTHA RAO

18-10-2011I s L

CRP.NO. 4570 of 2010 CRP.NOs. 3445, 3446, 3489, 3491,3492, 3513, 3996, 3997, 3998, 4039 AND 4040 OF 2011

Circulation No. 160Date:18-10-2011Court Master: I s LComputer No.43

[1]) 2005 (4) ALD-756[2]) 2001 (2) LACC-341[3]) (2006)8 SUPREME COURT CASES-457[4]) 2009 (2) SCJ-473

[5]) 2010 (6) SCALE-623