Bombay High Court
Maharashtra State Electricity ... vs The State Of Maharashtra And ... on 19 July, 2021
Bench: R. G. Avachat
1 WP-6273-2020-Judgment.doc
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6273 OF 2020
Maharashtra State Electricity Board
Now, Maharashtra State Electricity
Distribution Co. Ltd., Aurangabad
Through its Executive Engineer,
CCCM Division, Vidyut Bhavan,
Dr. Ambedkar Road, Aurangabad ... PETITIONER
(Original Applicant/
Judgment Debtor)
Versus
1] The State of Maharashtra
Through Special Land Acquisition Officer,
Special Unit, Aurangabad
2] S. B. @ Gulabrao Balbhimrao Deshmukh
Age: 72 years, Occupation: Agriculturist,
R/o. "Gajendra" 118, Shreyanagar,
Aurangabad
3] Rajeshwar Satishrao Deshmukh
Age: 50 years, Occupation: Agriculturist,
R/o. "Gajendra 118, Shreyanagar,
Aurangabad ... RESPONDENTS
(Respondent No. 2 & 3 are Original
Non-Applicants/Decree Holders)
....
Mr. Indraneel S. Godsay, Advocate for the petitioner
Mr. S. N. Morampalle, AGP for respondent No.1
Mr. A. P. Bhandari, Advocate for respondent Nos. 2 and 3
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 11th FEBRUARY, 2021
PRONOUNCED ON : 19th JULY, 2021
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J U D G M E N T :-
. Rule. Rule made returnable forthwith and heard finally
with consent of learned counsel for the parties.
2. The challenge in this writ petition is to the order dated
17.02.2020, passed by the Civil Judge, Senior Division, Aurangabad
in Regular Darkhast (Execution Proceeding) No.210 of 2014. By the
impugned order, the application moved by the petitioner (for short,
'the Judgment Debtor) for recall of the order of issuance of warrant
of attachment of movable properties of the Judgment Debtor on
account of failure to clear/pay the decretal amount, came to be
rejected.
3. Heard.
The Judgment Debtor is the Maharashtra State
Electricity Distribution Company Limited, Aurangabad. For
establishment of 33 K.V. sub-station, the land admeasuring 1600.36
square meters belonging to respondent Nos. 2 and 3 (Decree
Holders), came to be acquired. The Special Land Acquisition Officer
(S.L.A.O.) had determined the value of the land at Rs.3097/- per
square meter vide award dated 10.07.2002.
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Feeling aggrieved by and dissatisfied with the award
passed by the S.L.A.O., the Decree Holders preferred Land
Acquisition Reference (L.A.R.). The Reference Court passed the
award on 21.03.2014 enhancing the value of the land from
Rs.3097/- to Rs.4,555/- per square meter. The Judgment Debtor
challenged the said award in First Appeal. The appeal came to be
dismissed. The Special Leave Petition preferred thereagainst, has
also been dismissed by the Hon'ble Apex Court.
4. Since the Judgment Debtor did not pay the entire
amount of compensation determined in L.A.R., the Decree Holders
filed Execution Proceedings, No.210 of 2014. The Executing Court
issued warrant of attachment of movable properties of the Judgment
Debtor on account of its failure to pay the outstanding amount of
Rs.30,93,299/-. The Judgment Debtor preferred the application
(Exhibit-18) for recall of the said order. It is their case that nothing
was due against them and the Decree Holders have, in fact, been
overpaid. The Executing Court, on hearing the Judgment Debtor and
Decree Holders passed the impugned order in the following terms:-
"5] On the perusal of calculation submitted by D. H. as
well as Judgment Debtor, it appears that, J. D. while
submitting the calculation not considered that the L.A.R.
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No.309/2002 allowed with proportionate costs, also not
considered and in that calculation amount Rs.2,40,000/-
of material cost is not included as a land value as per
Section 23(1) Fourth and Fifth clause of the Land
Acquisition Act not considered in that calculation,
therefore, the calculation submitted by J. D. along with
list Exh.20 is not just and proper. As per calculation
submitted by J.D. in application Exh.15, it appears that,
total remaining amount is Rs.30,93,299/-, therefore,
amount of Rs.30,93,299/- is yet to be recovered,
therefore, application is liable to be rejected. Hence,
application is rejected, J.D. is directed to pay an amount
of Rs.30,93,299/-."
5. Shri Indraneel S. Godsay, learned Advocate for the
Judgment Debtor would submit that the calculations made by the
Decree Holders are incorrect. He referred to the details of the
amount deposited by the Judgment Debtor towards payment of the
amount of compensation. According to the learned Advocate, the
S.L.A.O. and the Reference Court did not correctly interpret
provisions of Section 23 of the Land Acquisation Act, 1894 (for short
'the Act'). According to him, additional compensation under Section
23(1-A) of the Act is to be calculated from the date of publication of
notification under Section 4(1) of the Act to the date of the award of
the Collector or the date of taking possession of the land, whichever
is earlier. In the case in hand, the date of notification is 25.08.1999.
The Collector's award is dated 10.07.2002. The possession has,
however, been taken on 29.01.2000 i.e. before the award was
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passed. Moreover, grant of Rs.2,40,000/- by the Reference Court
towards the material cost has wrongly been included in the amount
of compensation determined in terms of Section 23 of the Act. The
learned Advocate would further submit that the Decree Holders have
added interest on interest, which resulted the Judgment Debtor
paying them more amount than they were entitled to. The learned
Advocate has placed on record the calculations made by the
Judgment Debtor and submitted for setting aside of the impugned
order rejecting application Exhibit-18. The learned Advocate has
relied on the following authorities.
(i) National Textile Corporation Ltd. v. Nareshkumar
Badrikumar Jagad and Ors. - 2011 AIR SCW 6180;
(ii) Yeshwant Deorao v. Walchand Ramchand - AIR
1951 SC 16;
(iii) State of U.P. and Ors v. Jeet S. Bisht and Anr - 2007
AIR SCW 3427;
(iv) Commissioner of Income Tax, Faridabad v.
Ghanshyam (HUF) - AIR 2009 SC (SUPP) 2353.
6. Shri A. P. Bhandari, learned Advocate for the Decree
Holders would, on the other hand, submit that the sum of
Rs.2,40,000/- awarded by the Reference Court towards the material
cost is the part of the amount of compensation determined in terms
of Section 23 of the Act. The learned Advocate took me through the
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provision of the said Section and relied on the judgment of the Apex
Court in the case of Sunder vs. Union of India - AIR 2001 SC 3516.
The learned Advocate also took me through the chronology of
events. According to him, the Decree Holders have not challenged
the order passed by the Executing Court on 15.10.2018 below
Exhibit-15 and therefore, the Judgment Debtor is now estopped to
challenge the impugned order. Learned Advocate has also placed on
record the calculation sheet indicating what is due from the
Judgment Debtor as on the date, the application for issue of
attachment warrant was preferred.
7. Without detaining myself to the submissions of learned
Advocate for the Decree Holders, it would be apposite to turn to the
merits of the matter.
8. The land admeasuring 1600.36 square meters belonging
to the Decree Holders came to be acquired for establishment of
substation, at Aurangabad. The S.L.A.O. passed the award dated
10.07.2002 and thereby determined the value of the land at
Rs.3097/- per square meter. The details of valuation made by the
S.L.A.O. for determining compensation for the land acquired, is as
under:-
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Details of Valuation:-
a) The land under acquisition ........ CTS No.9233/1 Pt of
Baijipura
b) Area of the land under acquisition 1600.36 Sq.Meter
c) Value of the land under acquisition
in its open state @ Rs.3097/- Rs. 49,56,387.00
sq.meter (i.e. 1600.36 Sq.meter x
Rs.3097/- sq.meter).
d) Total Market value ...... Rs. 49,56,387.00
e) Solatium @ 30% over & above the Rs. 14,86,916.00
market value ..........
f) Addl. Component @ 12% over &
above the market value for a
period (from the date 25th August, Rs.17,09,342.00
99 to the date 10th July, 2002, the
probable date of declaration of
Award i.e. for a period of 1049
days) (0.0328 per day) (34.40%)
Total :- Rs. 81,52,645.00
9. The S.L.A.O., thus, determined the amount of
compensation to Rs.81,52,645.00. Having not been satisfied with the
award passed by the S.L.A.O., the Decree Holders filed L.A.R. No.309
of 2002. The Reference Court passed the award on 21.03.2014 in
terms of the following order :-
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"1. Reference Petition No.309/2002 is hereby partly
allowed with proportionate costs as under:-
2. Claimants are entitled to have enhancement in the
amount of compensation at the rate of Rs.4555/-
per Sq.Meter along with all statutory benefits after
deducting the amount of compensation which they
have accepted pertaining to their acquired land
under protest.
3. The respondents shall also pay claimants 30%
solatium and 12% component on enhanced
compensation with effect from the date of
notification under Section 4 of the Land Acquisition
Act, till the date of Award.
4. Respondents shall pay the claimants interest at the
rate of 9% per annum on enhanced compensation
from the date of Notification under Sec.4, for first
one year and interest @ 15% per annum for the
subsequent years till realization of entire amount in
accordance with Section 28 of the L.A. Act.
5. Respondents shall pay the claimants the amount of
Rs.2,40,000/- (Rs. Two Lakhs Forty Thousand only)
towards material costs of 19 shops in lumpsum i.e.
damage sustained.
. ........
. ........"
10. Section 23 of the Act speaks of matters to be considered
in determining compensation. Section 23 of the Act reads thus:-
"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);
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secondly, the damage sustained by the person
interested, by reason of the taking of any standing crops
or 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 compulsory nature of the acquisition. "
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11. As per the fourth clause above, the damage 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, in any other manner or his earnings, have to be
considered. In the present case, the Reference Court awarded
Rs.2,40,000/- under this clause. This amount would necessarily be a
part/component of the amount of compensation to be awarded for
the land acquired under the Act. In the case of Sunder (supra), it has
been held, thus:
"The question referred to this Bench of five Judges is a
simple one. Is the State liable to pay interest on the
amount envisaged under Section 23(2) of the Land
Acquisition Act, 1894 (for short 'the Act')? The sum
contemplated in the aforesaid sub-section can
conveniently be called "solatium" as that expression has
been used plentifully in almost all land acquisition
proceedings in India. The reference of the aforesaid
question to this larger Bench was necessitated on account
of a seeming conflict as between the decision of a three
Judge Bench of this Court in Union of India vs. Shri Ram
Mehar and ors. {1973(1) SCC 109} on the one hand and
a few later decisions of co-equal Benches of this Court on
the other hand.
.................
.................
Thus interest has to accrue as per Section 34 and Section
28 of the Act on the compensation awarded, whether it is
as per the award initially passed by the Collector or by the
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Court later. What is meant by "the compensation"
awarded? Both sides cited different definitions for the
word "compensation" as contained in different
lexicographys. In "Words and Phrases" (Permanent Edn.)
different connotations of the word "compensation" have
been delineated. One of them relates to the law of
eminent domain, where compensation means recompense
in value, a quid pro quo, and must be in money. Another
is relating to the property taken for public use. Then it is
the fair market value at the time of taking it. From the
Constitutional perspective the word 'compensation' for the
property taken was understood as the just equivalent of
the value of the property. But when compensation is
regarded as a statutory obligation the afore-cited
definitions need not detract the courts in fathoming the
real import of it. The exercise can be done with the aid of
the provisions in the statutes. So what the Court, in the
context of land acquisition, has to decide is how the Act
has designed the compensation vis-a-vis the liability to
pay interest. In this context we have to read Section 23 of
the Act.
.................
.................
In deciding the question as to what amount would bear
interest under Section 34 of the Act a peep into Section
31(1) of the Act would be advantageous. The sub-section
says: "On making an award under section 11, the
Collector shall tender payment of the compensation
awarded by him to the persons interested entitled thereto
according to the award, and shall pay it to them unless
prevented by some one or more of the contingencies
mentioned in the next sub-section." The remaining sub-
sections in the provisions only deal with the contingencies
in which the Collector has to deposit the amount instead
of paying it to the party concerned. It is the legal
obligation of the Collector to pay "the compensation
awarded by him" to the party entitled thereto. We make it
clear that the compensation awarded would include not
only the total sum arrived at as per sub-section (1) of
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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.
.................
.................
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 market
value of the land. Indeed the language of S.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 and authorise
the grant of interest on solatium as well."
12. In view of the above, the sum of Rs.2,40,000/-
awarded towards material cost, shall form integral part of the
amount of compensation determined under Section 23 of the
Act and interest would be liable to be paid on the entire amount
of compensation fixed in terms of Section 23 of the Act.
13. Learned Advocate for the Judgment Debtor would
submit that the date of publication of notication is 25.08.1999
and not 05.08.1999. According to him, reading of Section
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23(1-A) makes it clear that the additional compensation @ 12%
is to be calculated from the date of publication of the
notification under Section 4 to the date of the award of the
Collector or the date of taking possession of the land, whichever
is earlier.
14. The learned Advocate may be correct in his
submissions. It is also true that the possession had already been
taken before the award was passed. The learned Civil Judge,
Senior Division, Aurangabad vide Clause 3 of the award directed
to pay 30% solatium and 12% interest component on enhanced
compensation from the date of notification to the date of award.
Vide Clause 4 of the award dated 21.03.2014, it has been
directed to pay 9% interest for first year and 15% interest
thereafter from the date of notification under Section 4 to the
date of payment of the entire amount. Needless to mention, the
Judgment Debtor has been unsuccessful in his challenge to the
award, first in First Appeal before this Court and then in S.L.P.
before the Hon'ble Apex Court. As such, the award has attained
finality. The Judgment Debtor now, therefore, cannot take a plea
that the amount of interest shall be payable for the period from
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the date of notification under Section 4 of the Act to the date of
taking possession of the land. The reliance placed on the
judgment in the case of National Textile Corporation Ltd.
(supra), would be of no assistance to the Judgment Debtor.
15. Let us advert to the calculations and the chronology
of events.
The area of the land acquired is 1600.36 square
meters. Notification under Section 4 of the Act had been
published on 25.08.1999 (this date has been confirmed upto the
Apex Court). The S.L.A.O. passed the award on 10.07.2002. The
amount of compensation determined by the S.L.A.O.
Rs.81,52,645 (Rs.49,56,314.92 + additional compensation +
Solatium + interest under Section 34 of the Act). The amount
under the said award has been paid on or before 15.01.2003.
There is no dispute about this amount. After the dismissal of
S.L.P. No.6245 of 2018 on 28.03.2018, the Judgment Debtor
deposited in Executing Court a sum of Rs.83,90,669/- on
05.05.2018.
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16. The market value of the land determined by the
S.L.A.O. is Rs.49,56,314/-. The market value determined by the
Reference Court is Rs.72,89,640/-. As such, the difference in
enhanced compensation is Rs.23,33,325/-. Rs.2,40,000/-
awarded towards material cost would be included in this
amount. Then, it would come to Rs.25,73,325/-. The additional
component @ Rs.12% p.a. and solatium @ 30% under Section
23(1-A) and (2), respectively would be calculated on this
amount of Rs.25,73,325/-. Additional component @ 12% from
the date of notification to the date of award (25.08.1999 to
10.07.2002 = total days 1050) would come to Rs.8,88,326/-.
Solatium @ 30% would come to Rs.7,71,997/-. Total of these
three figures comes to Rs.42,33,648/-.
17. Now, interest under Section 28 of the Act @ 9% for
first one year from the date of notification and 15% for rest of
the period till the deposit of the amount would be as under:-
(A)
9% interest for one year from the
date of Notification viz.
25.08.1999 to 24.08.2000 on the Rs.3,81,028
amount of Rs.42,33,648/-. Total
365 days
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(B)
I-slab for 15% interest -
15% interest from 25.08.2000 to
13.10.2014.
Total : 5162 days.
The Judgment Debtor has Rs.89,81,133/-
deposited Rs.62,81,772/- in the
High Court on 13.10.2014. So,
break-up is made till 13.10.2014
(C) (A) (B)
Total : 42,33,648 + 3,81,028 + 89,81,133 = Rs.1,35,95,809/-
Amount deposited in High Court (-)Rs. 62,81,772/-
-----------------------------
Rs. 73,14,037/-
------------------------------
18. The balance amount comes to Rs.73,14,037/-.
Hence, interest @ 15% needs to be calculated on this amount.
(D)
II Slab for 15% interest
14.10.2014 to 05.05.2018 Rs.39,07,499/-
Total = 1300 days
[Date 05.05.2018 is taken as last amount of Rs.83,90,669/-
deposited on 05.05.2018.
(E)
Total due amount
Rs.73,14,037+Rs.39,07,499 = Rs.1,12,21,536/-
(Amount Deposited on 5.5.2018) (-) Rs. 83,90,669/-
--------------------------
Rs. 28,30,867/-
Cost: + Rs. 60,790/-
--------------------------
Total Due: Rs. 28,91,657/-
--------------------------
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19. In view of the aforesaid calculations and the reasons
given above, it cannot be said that nothing was due from the
Judgment Debtor and it has in fact overpaid the Decree Holders.
20. No interference with the impugned order, is therefore
called for. The writ petition, therefore, fails. The same is dismissed.
Rule discharged.
21. It appears that pursuant to the order passed by this
Court on 16.09. 2020, the Judgment Debtor has deposited a sum of
Rs.15,00,000/- in this Court on 16.10.2020. The said amount be
transferred with interest accrued thereon, to the Executing Court for
being paid to the Decree Holders. The Judgment Debtor is expected
to pay the balance amount within a period of eight weeks from the
date of this order, failing which, the Executing Court shall proceed
with the execution proceeding.
[ R. G. AVACHAT, J. ]
SMS
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