Nath Moitra & Ors vs State Of West Bengal
2023 Latest Caselaw 3403 Cal

S/L 17
16.5.2023
Court No.652
SD
                                     CO 737 of 2021

               Smt. Lalita Moitra, since deceased, represented by Monindra
                                   Nath Moitra & Ors.
                                             Vs.
                                    State of West Bengal

               Mr. Tanmoy Mukherjee
               Ms. Paromita Moitra
                                                       ... for the Petitioners.
               Ms. Sutapa Sanyal
               Ms. Susnita Saha
                                                   ... for the Opposite Party.

                     Being aggrieved and dissatisfied with the Order No.86

               dated 18.02.2021 passed by the learned Additional District

               Judge, 1st Court at Howrah in Money Execution Case No.35

               of 2013 arising out of L.A. Misc. Case No.22 of 2005, present

               application under Article 227 of the Constitution of India has

               been preferred.

                     The petitioner states that the Division Bench of this

               Court while disposing FA No.317 of 2007 was pleased to

               observe vide it's order dated 08.02.2013 as follows:-

                            "It is also made clear that if the entire
                     compensation amount in terms of the order passed
                     hereinabove is not paid to the appellant within the
                     time granted to the State-respondent, then the

solatium amount will carry further interest @ 8% per annum from the date of this order till realisation."

It is further submitted on behalf of the petitioners

that on the basis of said order, the compensation amount

along with interest at the rate of 8% was required to be paid

by the State within two months from the date of the order,

i.e., April 8, 2013. Subsequently, the Land Acquisition

Tribunal by its order dated June 29, 2017 passed in Money

Execution Case No.35 of 2013, was pleased to observe as

follows:-

"So, it appears that the decree-holder is entitled to get a total amount of Rs.3,35,96,048/-, out of which, the Judgement-debtor i.e. State of West Bengal paid total amount of Rs.2,71,72,343/- and as such, the claimant/decree-holder is entitled to get a rest total amount of Rs.64,23,705/-. Although the Hon'ble High Court, Calcutta directed this Court to give the interest @ 8% per annum on the solatium from the date of the order of the Hon'ble Court to till realization. As it is not known to this Court on which date, the payment will be made by the State of West Bengal, therefore, it is impossible to calculate the same as on this date. The State of West Bengal/Judgment-debtor is hereby directed to calculate the amount after this day on solatium only and the same will be made payment after that calculation till payment of the same.

In this order, the interest calculated in view of the spirit of the provisions of Section 28 of the L.A. Act, 1894 and Section 23 of the Act is meant for compensation and the solatium includes u/s 23(2) of the Act. Therefore, under the scheme of the Act is supported to calculate the interest u/s 28 including the solatium in favour of the decree-holder.

The State Authority as well as the Requiring Body are hereby directed to disburse the entitled amount to the claimant within two months from the date of this order positively in order to save the Government from paying further interest."

It is now submitted on behalf of the petitioner that the

State made the actual payment of Rs.64,23,705/- on

05.02.2021 by issuing account payee cheque. Now, the

petitioner contends that the State is also liable to pay the

interest from 30.8.2017 till actual realisation of money, i.e.,

26.01.2021 which is amounting to Rs.25,22,209/- and

accordingly, they filed an application before the executing

court under Section 151 of the Code of Civil Procedure on

February 15, 2021.

Learned court below by the impugned order was

pleased to reject the said application with the observation

that decree-holder received the entire amount on the basis of

award passed by the court and the decree-holder previously

did not file any such application before the court before

receiving the decreetal dues from the State of West Bengal

amounting to Rs.64,23,705/-. Accordingly, the decree-

holder by her own conduct waived her claim of further dues

from the State of West Bengal.

Learned counsel appearing on behalf of the State

submits that the delay in such payment was caused due to

laches on the part of the decree-holder for not supplying the

correct name in whose favour the State was liable to disburse

the said amount and as such, the State is not liable to pay

any further interest for the laches on the part of the decree-

holder.

In reply, petitioner's counsel submits that his client's

instruction is petitioner received said amount on protest,

reserving her right to claim interest till actual realisation of

compensation amount with interest.

However, learned counsel appearing on behalf of the

petitioner submits that it is immaterial whether he received

said amount on protest or not because State is duty bound to

carry out court's order. According to the spirit of the order,

State is under obligation to pay the interest till the date of

actual realisation of the amount, i.e. 05.02.2021 and in this

context, he also quoted provision laid down under Section 34

of the Land Acquisition Act and submitted that it is

mandatory obligation on the part of the State to pay interest

till the date of actual disbursement of said amount.

In the above backdrop, the order impugned passed by

court below is not only cryptic but also not supported by

reason. From the order impugned it appears that court

below jumped to a conclusion that petitioner has waived her

right to claim interest since she did not make such prayer

earlier, without having any reference to the earlier orders

passed by courts time to time and without having any

discussion on the representation made by the State in

support of delayed disbursement. As such, I find that this is

a fit case for remanding the issue involved in present

application for fresh hearing in presence of both the parties.

Accordingly, the impugned order dated 18.02.2021 is

hereby set aside.

Learned court below is directed to dispose of the

decree-holder's application dated February 15, 2021 afresh

after hearing the contention raised by the State as well as by

the decree-holder and to pass a reasoned order afresh within

a period of four weeks from the date of communication of

the order.

With these observations, C.O. 737 of 2021 is disposed

of.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)