Full Judgment
2. For the sake of brevity and convenience, facts are taken from Civil Revision Application No.51 of 2004.
3. The petitioner State of Gujarat has filed all these Civil Revision Applications challenging the judgment and order dated 04.04.2003 passed below Exh.1 in Land Reference Darkhast No.10 of 2002 by the learned 2^nd Joint Civil Judge (S.D.), Junagadh awarding interest on the solatium.
4. All these Civil Revision Applications were admitted and rule was issued in each of these matters and interim relief was granted against further proceedings of Execution Petitions.
5. The brief facts giving rise to the present Civil Revision Application are that all these Land Reference Cases were decided and as per the award passed by the Land Acquisition Officer, the amounts were deposited and no further appeals were filed. However, on the basis of the decision of the Apex Court in the case of Sunder V/s. Union of India 2001 (3) GLH 446, Execution Petition was filed claiming interest on the solatium. The Executing Court while disposing of the said Execution Petition granted interest on solatium after following the decision of the Apex Court in Sunder's case (Supra).
6. It is this order of the Executing Court awarding interest on solatium which is under challenge in the present Civil Revision Applications.
7. Ms. Mini Nair, learned Assistant Government Pleader appearing for the petitioners in all these Civil Revision Applications submitted that the decision of the Apex Court in Sunder's case has no application to the facts of the present case. She has further submitted that the Reference Court while disposing of the reference has specifically awarded the market price of the land acquired by the State Government. The Reference Court further awarded 30% solatium on the amount of additional compensation to the claimant and thereafter interest @ 9% p.a. for the first year from taking possession of the land and thereafter @ 15% p.a. till realization was awarded. The Reference Court has also awarded 12% on the market value from the date of publication of Notification under Section 4, sub-Section (1) upto the date of award or the date of taking possession of the land, whichever is earlier. She has, therefore, submitted that by implication, no interest was awarded on solatium.
8. In support of her submission, she relied on the decision of the Apex Court in the case of Gurpreet Singh V/s. Union of India, (2006) 8 SCC 457 and the Division Bench judgment of this Court in Special Civil Application No.5341 of 2010 and other cognate matters decided on 07.09.2010. Based on this subsequent development, she has submitted that the claimants are not entitled to the interest on solatium.
9. Mr. Utpal M. Panchal, learned advocate appearing for the respondents original claimants, on the other hand, has submitted that the Executing Court has rightly awarded the interest on solatium after following the decision of the Apex Court in Sunder's case (Supra) and no interference is called for while exercising the revision powers of this Court under Section 115 of the Code of Civil Procedure. He has, therefore, submitted that all these Civil Revision Applications deserve to be rejected.
10. Having heard learned advocates appearing for the parties and having considered the rival submissions, the Court is of the view that the issue involved in all these Civil Revision Applications is similar to the issue involved in Special Civil Application No.5341 of 2010 and other cognate matters decided by this Court on 07.09.2010. The Division Bench, at length, discussed the controversy between the parties and extensively quoted paragraph 54 of the decision of the Apex Court in the case of Gurpreet Singh (Supra). The Apex Court 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."
11. The Division Bench thereafter observed 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. However, in the case before the Division Bench as well as in the present matters, the Court expressly granted interest on the market value. Therefore, the claim of interest on solatium was negatived by implication. 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.
12. In view of above, since 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. Hence, all these Civil Revision Applications are allowed and the impugned orders are set aside with no order as to costs.
13. Registry is directed to place copy of this order in each of these Civil Revision Applications.