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High Court of Karnataka
THE HONOURABLE MRS. JUSTICE MANJULA CHELLUR & THE HONOURABLE MR. JUSTICE K.N. KESHAVANARAYANA
Shivarudrappa Fakirappa Uppin Since (Deceased) By L.Rs & Others
Versus
The Executive Engineer, Karnataka Housing Board, Hubli Division, Hubli & Another
Writ Appeal Nos. 1433 & 1434 of 2007
Decided on : 09-01-2009
CODE OF CIVIL PROCEDURE, 1908 - Order 41, Rule 5 & Section 109: [Mrs. Manjula Chellur & K.N. Keshavanarayana,JJ] Appeal - Held, Mere filing of appeal does not operate as stay of proceedings. Under the decree appealed, nor execution of decree shall be stayed merely by reason of filing of an appeal against such decree. Mere pendency of Special Leave Petition before Supreme Court cannot be a ground to direct the Executing Court to stay its hands.
LAND ACQUISITION ACT, 1894 - Sections 28 & 34: [Mrs. Manjula Chellur & K.N. Keshavanarayana, JJ] Interest on solatium - Reference Court either expressly or impliedly rejected claim for interest on solatium, but merely awarded interest on compensation amount awarded - Held, Award in question has to be construed as award where compensation payable includes market value of property plus 30% solatium in light of Supreme Court decision reported in AIR 2001 SC 3516 - As such decree holders will be entitled to interest on solatium only from date (19.9.2001) of judgment reported in Sunder v Union of India, [2001 (7) SCC 211; AIR 2001 SC 3516].
LAND ACQUISITION ACT, 1894 - Sections 34 &28: [Mrs. Manjula Chellur & K.N. Keshavanarayana, JJ] Interest -Possession of land taken subsequent to passing of award - Held, The reading of Sections 28 and 34 makes it clear that the interest as contemplated under these Sections is not payable from the date of the award by Land Acquisition Officer. As per the scheme of the Act, possession of the land can be taken only after passing of the award by the Collector/Land Acquisition Officer except where the possession of the land is taken under Section 17 of the Act even before passing of the award. It is not the case of the appellants that the possession of acquired lands in the cases on hand was taken earlier to the passing of the award. Therefore, it is not a case falling under Section 17 of the Act. Therefore, the interest on the enhanced compensation awarded by the reference Court in these cases has to be calculated only from the date of taking possession of lands as provided under Section 28 of the Act. It is for this reason only the reference Court in its award has clearly stated that the claimants are entitled to interest on the enhanced compensation from the date of dispossession. No doubt while referring the matter to the Civil Court, the Land Acquisition Officer has not furnished the date of taking possession. However, the omission or the failure on the part of the authorities to furnish these particulars would not automatically entitle the claimants to claim interest from the date of award of LAO. When the award specifically says that the claimants are entitled to interest on the enhanced compensation from the date of dispossession, the executing Court could not have gone behind the decree and ordered recovery of interest from the date of award by LAO. Copy of gazette notification issued under Section 16(2) of the Act produced at any stage will have to be accepted as evidence of act of taking possession.
LAND ACQUISITION ACT, 1894 - Sections 23, 28 & 34: [Manjula Chellur & K.N. Keshavanarayana,JJ] Power of Executing Court to grant interest on Solatium - Held, If the claim for interest on solatium is not either expressly or impliedly rejected by the reference Court or by the Appellate Court, and under award merely interest on compensation is awarded, then it is open to the execution Court to apply the ratio of Sunder vs Union of India’s Case 2001 (7) SCC 211 and hold that the compensation awarded includes solatium, and, therefore, interest is payable on solatium also but only from 19.9.2001, the date of the judgment in Sunder’s case.
LAND ACQUISITION ACT, 1894 - Sections 28 & 34: [Manjula Chellur & K.N. Keshavanarayana,JJ] Award of Interest -Date from which interest could be awarded -Held, interest is payable only from the date of taking possession of the acquired lands and not from the date of award. The interest on the enhanced compensation payable as per Section 28 of the Act has to be calculated from the date of dispossession of the claimants from the lands. Further, in the present case that the Executing Court was under an obligation to ascertain the date of dispossession by directing the parties to place evidence in that respect. Copy of the Gazette Notification issued under Section 16(2) of the Act can be taken, at any stage of the proceeding, as evidence of fact of taking possession of lands.
K.N. Keshavanarayana, J.
As common questions of fact and law arise for consideration in these appeals, they were heard together and are being disposed of by this common order.
2. The appellants in W.A. No. 1433 of 2007 are the respondents 2(a) to 2(d) in W.P. No. 8657 of 2007. The appellants in W.A. No. 1434 of 2007 are the respondents 2(a), 2(b) and 3(a) to 3(f) in W.P. No. 8517 of 2007. The common respondent 1 in these appeals is the petitioner in the writ petitions. The appellants are aggrieved by the orders passed by the learned Single Judge allowing the petitions and quashing the impugned orders passed by the Executing Court and remanding the matter to the Executing Court for fresh consideration.
3. The undisputed facts are as under:
Certain lands owned by the appellants situated in Lakkammanahalli, Dharwad, were acquired as per the provisions of Land Acquisition Act, 1894 for the benefit of Karnataka Housing Board. The Land Acquisition Officer by his award dated 8-5-1989 determined the market value of the acquired lands at Rs. 25,000/- per acre. On reference under Section 18 of the Act the Reference Court determined the market value of the acquired lands at Rs. 13,800/- per gunta, and further held that the claimants are entitled for solatium at 30% on the market value, additional market value at 12% p.a. on the market value from the date of preliminary notification up to the date of award less the amount paid under the award, and that the claimants are entitled for interest on the enhanced compensation at 9% p.a. from the date of dispossession for a period of one year and at 15% p.a. thereafter up to the date of payment. Against the said judgment and award of the Reference Court, respondent 1 filed appeals before this Court in M.F.A. Nos. 3939 and 3940 of 1998. The appeals were dismissed on 8-3-2006 and the award of the Reference Court was affirmed. Against the dismissal of the appeals, respondent has filed special leave petitions before the Hon'ble Supreme Court and they are pending. However, there is no order of stay. In the meanwhile the appellants in W.A. No. 1433 of 2007 filed Ex. P. No. 133 of 2006 in the Court of Civil Judge (Senior Division), Dharwad claiming Rs. 90,00,580/- and the appellants in W.A. No. 1434 of 2007 filed Ex. P. No. 135 of 2006 on the file of the same Court claiming Rs. 37,42,358/- as the amounts payable as per the awards of the Reference Court. The execution petitions were accompanied with memo of calculations. As per the memo of calculations, the claimants calculated interest on the total market value of the land at the rate determined by the Reference Court, additional market value and also solatium, from the date of award by the Land Acquisition Officer, as according to them the date of dispossession has not been stated either in the award of Land Acquisition Officer or in the award of Reference Court.
In both the execution petitions the decree-holders sought attachment and sale of moveable properties of judgment-debtors and also arrest and detention of judgment-debtors in civil prison. Initially cause notice of execution petitions were issued to the judgment-debtors and upon service of cause notice only 2nd judgment-debtor namely respondent 1 herein appeared before the Court. However, as objections were not filed, the Executing Court directed issue of attachment warrants in both the petitions on 27-11-2006. Subsequently when the attachment warrants were sought to be recalled by judgment-debtor 2, a conditional order came to be passed on 4-12-2006. Pursuant to the said order, judgment-debtor 2, deposited by way of cheques Rs. 60,07,691/-in Ex.
P. No. 133 of 2006 and Rs. 24,66,174/- in Ex. P. No. 135 of 2006, on 12-12-2006 and on such deposit, the attachment warrants were recalled. The amounts so deposited by judgment-debtor 2 were paid to the decree-holders by means of cheques. Thereafter on 22-2-2007 office of the Executing Court prepared calculation memo showing that the judgme
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