R IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE9H DAY OF APRIL, 2021 BEFORE THE HON’BLE MR. ABHAY S. OKA, CHIEF JUSTICE WRIT PETITION No.108888/2016 (GM-CPC) BETWEEN: BASAPPA GADIGAPPA PUJAR, SINCE DECEASED BY HIS L.RS., 1. SAVAKKA W/O BASAPPA PUJAR, SINCE DECEASED BY HER L.RS., 2 . GADIGAPPA S/O BASAPPA PUJAR, AGE:58 YEARS, OCC. SERVICE, R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD. 3 . CHANNABASAPPA S/O BASAPPA PUJAR, SINCE DECEASED BY HIS LRS. SMT. SHOBHA W/O DHANABASAPPA PUJAR AGE:39 YEARS, OCC. HOUSEHOLD, R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD. 4 . SIDDAWWA W/O BENAKAPPA SHIRAGUPPI AGE:67 YEARS, OCC. HOUSEHOLD, R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD. 5 . SMT. BASAWWA W/O GARIMALLAPPA GOBBARGUMPI AGE:65 YEARS, OCC. HOUSEHOLD, :
2. : R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD.
6. SMT. TANGEWWA W/O ARJUNAPPA BUDHIHAL AGE:57 YEARS, OCC. HOUSEHOLD, R/O KADAPATTI, TQ. KUNDAGOL, R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD. 7 . SMT.NEELAWWA W/O CHANNAPPA GOBBARGUMPI AGE:57 YEARS, OCC. HOUSEHOLD, R/O NAVALUR, DHARWAD, TQ AND DIST. DHARWAD. 8 .SMT. CHANNAWWA W/O BRURDAPPA SARTUR, AGE:51 YEARS, OCC. HOUSEHOLD WORK, R/O RAYAPUR, DHARWAD, TQ AND DIST. DHARWAD. 9 . SMT.GANGAWWA W/O BEERESA KOPPAD, AGE:41 YEARS, OCC. HOUSEHOLD WORK, R/O KAKATI BELAGAVI TQ AND DIST. BELAGAVI PETITIONER NO.1, 3 TO9REP BY GENERAL POWER OF ATTORNEY HOLDER PETITIONER NO.2 SRI. GADIGAPPA BASAPPA PUJAR R/O RAYAPUR DHARWAD, TQ AND DIST. DHARWAD. . . . PETITIONERS (BY SRI. F V PATIL, ADVOCATE) :
3. : AND:
1. . THE SPECIAL LAND ACQUSITION OFFICER, ATTACHED TO KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD (KIADB) DHARWAD, TQ AND DIST. DHARWAD. 2 . THE EXECUTIVE MEMBER, KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD (KIADB) BENGALURU. 3 . KARNATAKA INDUSTRIAL AREA DEVELOPMENT BOARD (KIADB) REP. BY ITS COMMISSIONER, BENGALURU. . . . RESPONDENTS (BY SRI. SHIVAPRABHU S HIREMATH, AGA FOR R1, SMT. SHARMILA M PATIL, ADVOCATE FOR R2 & R3) THIS PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER
DATED:03.10.2016 VIDE ANNEXURE- F, PASSED IN E.P.NO.40/2005 ON THE FILE OF COURT OF II ADDITIONAL SENIOR CIVIL JUDGE, DHARWAD AND DIRECT THE RESPONDENTS TO DEPOSIT AN AMOUNT OF RS.55,47,779/- BEFORE THIS HON'BLE COURT IN TERMS OF THE MEMO OF CALCULATION FILED BY THE PETITIONERS/DECREE HOLDERS WHICH HAS BEEN CALCULATED STRICTLY IN TERMS OF THE JUDGMENT
AND AWARD DATED;07.01.2002 PASSED IN LAC NO.322/1996 BY THE II ADDITIONAL CIVIL JUDGE (SR.DN), DHARWAD, VIDE ANNEXURE-A. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN B-GROUP THIS DAY, THE COURT MADE THE FOLLOWING: :
4. : ORDER
I have heard learned counsel appearing for the petitioners, the learned Additional Government Advocate for the first respondent and the learned standing counsel for the first and second respondents.
2. The petitioners in this writ petition under Article 226 of the Constitution of India are the claimants in a reference under Section 18 of the Land Acquisition Act, 1894 (for short, “the said Act”). The Reference was partly allowed by the judgment and award dated 07th January, 2002. The operative part of the judgment and award of the Reference Court reads thus: “i) LAC No.322/96 is partly allowed with costs. ii) The market value of the acquired land of 12 acres 35 guntas of Rayapur village in survey No.145/1 belonging to the petitioner is fixed at the rate of Rs.45,000/- (Rupees forty five thousand only) per acre with solatium of 30% on such market value, as per Sec.23(2) of the Act. iii) Further, petitioner is entitle to the amount calculated at 12% on such market value from the date of publication of preliminary notification :
5. : namely 3.4.1975 till the date of award passed by LAO on 23.3.1996 or till date of taking possession, whichever is earlier, as per Sec.23(1A) of the Act. iv) Further, the petitioners are entitled for interest at the rate of 9% p.a. for a period of one year and thereafter at the rate of 15% p.a. on such excess amount from the date of possession till t6he date of realisation as per Sec.28 of the Act. v) The petitioners are entitled for interest as held in 2001 SAR CIVIL799in the case of Sunder Vs. Union of India. vi) The amount paid if any by LAO shall be deducted in the above said amounts.
3. An Execution Petition was filed by the petitioners for execution of said judgment and award. The Executing Court directed both the petitioners and the respondents to file a memorandum of calculations indicating the amount payable under the said judgment and award. Accordingly, memoranda of calculation were filed by both the parties. The challenge in this petition under Article 227 of the Constitution of India is to the order :
6. : dated 03rd October, 2016 passed by the Executing Court. The challenge is to the extent to which the Executing Court directed that interest on solatium under sub-section (2) of Section 23 of the said Act will be payable not from the date of taking over of the possession of the acquired land but from 19th September, 2001 which is the date on which the Constitution Bench of the Apex Court decided in the case of Sunder v. Union Of India1.
4. The submission of the learned counsel for the petitioners is that the Executing Court was not right in relying upon the ratio of the decision of the Constitution Bench of the Apex Court in the case of Gurupreet Singh v. Union Of India2. His submission is that in the present case, a specific direction has been issued by the reference Court that the petitioners would be entitled to interest as held in the case of Sunder (supra). He submitted that only in those cases where there is no direction issued by the reference Court to pay interest under Section 28 on the solatium, interest can be restricted from the date of judgment in the case of 1 (2001)7 SCC2112 (2006)8 SCC457:
7. : Sunder (supra). Therefore, he submitted that the view taken by the Executing Court is erroneous.
5. The learned Additional Government Advocate relied upon the recent judgment of the Apex Court dated 13th January, 2021 in the case of Tamilnadu Housing Board v. Adbul Salam Sarkar (Dead) And Others in Civil Appeal No.94 of 2021. He relied upon the observations made by the Apex Court in paragraphs 8 to 10. He would, therefore, submit that the Executing Court was right in granting interest on solatium only from the date of decision in Sunder’s case.
6. The learned standing counsel for the first and second respondents adopted the submissions of the learned Additional Government Advocate.
7. I have considered the submissions. Section 28 of the said Act, reads thus: “28. Collector may be directed to pay interest on excess compensation.- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum :
8. : which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.” (underlines supplied) 8. It is necessary to make a reference to the decision of the Constitution Bench of the Apex Court in the case of SUNDER (supra). The issue before the Apex Court in the said case was whether interest under Sections 28 and 34 of the said Act is payable on the component of solatium payable under Sub-section (2) of Section 23 of the said Act. The Apex Court observed that :
9. : there were divergent views expressed on the issue by co-ordinate Benches of the Apex Court. The Apex Court held that interest under Section 28 of the said Act will be also payable on component of solatium under Sub-Section (2) of Section 23 of the said Act. It is necessary to quote paragraphs 26 and 27 of the said decision, which read thus: “26. We think it useful to quote the reasoning adanced by Chief Justice S.S. Sandhawalia of the Division Bench of the Punjab and Haryana High Court in State of Haryana V. Kailashwati (AIR1980P&H117: “Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the marked value of the land. Indeed the language of Section 28 does not even remotely refer to market value alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore, would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant :
10. : and authorize the grant of interest on solatium as well.
27. In our view the aforesaid statement of law is in accord with the sound principles of interpretation. Hence, the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium….” (Underlines supplied) Thus, it was held that compensation referred in Section 28 of the said Act will also include the component of solatium payable under Sub-Section (2) of Section 23 of the said Act.
9. Now, it is necessary to consider the view taken by the Apex Court in the case of Gurupreet (supra) by the Constitution Bench of the Apex Court. Paragraph 54 of the said judgment is relevant. It reads thus: “54. 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 case 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 :
11. : decision in Sunder, the awardee/decree-holder would be entitled to claim interest on solatium in execution through 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 among 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 :
12. : execution court will be entitled to permit its recovery from the date of the judgment in Sunder *19.09.2001) 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.” (Underlines supplied) In paragraph 54, the Apex Court specifically dealt with the cases where while passing an award under Section 18 of the said Act, there was no direction issued to pay interest under Section 28 on the component of solatium. Keeping in mind the principle that normally the Executing Court cannot go beyond the decree or award, the Apex Court observed that in such cases, interest on solatium can be claimed from the date of the judgment in Sunder’s case and not from the date of possession. What is held in paragraph 54 is not applicable to those cases where there is specific direction to pay interest on the component of solatium in the award made under Section 18. :
13. :
10. In the present case, I have already quoted the operative part of the award under Section 18 of the said Act. There is a specific direction issued by the Reference Court holding that the petitioners are entitled to interest as held in the case of Sunder (supra). As observed earlier, in the case of Sunder (supra), the Apex Court held that component of solatium under Sub-Section (2) of Section 23 of the said Act is an integral part of compensation referred in Sections 28 and 34 of the said Act. Thus, in this case, there is a specific direction to pay interest as held in the case of Sunder (supra). The learned Additional Government Advocate tried to argue that Clause (v) of the award itself means that the interest will be payable from the date of decision in the case of Sunder (supra). The said submission cannot be accepted inasmuch as in the case of Sunder, only the legal position under Section 28 was stated. In Sundar’s case, there is no directions issued that interest under Section 28 will be payable on the component of solatium only from the date of the said decision. Therefore, in the present case, the directions contained in paragraph 54 of the decision in the case of Gurpreet (supra) will not apply. :
14. :
11. The decision relied upon by the learned Additional Government Advocate in the case of Tamilnadu Housing Board (supra) will not help him. In the facts of that case, the Reference Court had granted interest on solatium. However, in an appeal, a direction was issued by the High Court holding that the claimants were not entitled to interest on solatium. However, liberty was granted to them to file a petition before the Reference Court depending upon the decision of the larger Bench. The said direction of the High Court was confirmed by the Apex Court. Therefore, in the facts of the case before the Apex Court, there was no direction issued in the award made under Section 18 of the said Act to pay interest on solatium. That is how the Apex Court directed that interest on solatium will be payable in the facts of the case from the date of decision in the case of Sunder (supra).
12. Therefore, I am of the considered view that the learned Executing Court committed an error by holding that the petitioners will be entitled to interest under Section 28 of the said Act on the :
15. : component of solatium from the date of the decision in the case of Sunder (supra) and not from the date of dispossession. Therefore, the impugned order, insofar as the finding recorded in paragraph 6 is concerned, has to be set aside. Consequently, the order of refund has to be set aside. Accordingly, I pass the following: ORDER
(i) I hold that the finding recorded by the Executing Court in paragraph 6 of the impugned order is erroneous; (ii) The petitioners are entitled to interest under Section 28 of the Land Acquisition Act, 1894 on the component of solatium as provided in Section 28 and not from the date of decision in Sunder’s case. Thus, as provided under Section 28 of the said Act, interest on solatium will be also payable from the date on which the possession of the acquired land was taken over. :
16. : (iii) Consequently, the order of refund is also set aside; (iv) To avoid any controversy, I direct the Executing Court to precisely calculate the interest payable to the petitioners on solatium in accordance with Section 28 of the said Act and to quantify the said amount. Consequential orders regarding payment/refund, if any, shall be passed by the Executing Court within a period of three months from today (v) The petition is partly allowed in the above terms. Sd/- CHIEF JUSTICE Lnn/Vr