Special Land Acquisition Officer vs Patel Hiraben Gangaramdas
2021 Latest Caselaw 16766 Guj

      C/CRA/221/2021                                          ORDER DATED: 26/10/2021




            IN THE HIGH COURT OF GUJARAT AT                    AHMEDABAD
         R/CIVIL REVISION APPLICATION NO.                      221 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     222 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     223 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     224 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     225 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     226 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     227 of 2021
                               With
          R/CIVIL REVISION APPLICATION NO.                     279 of 2021
==========================================================
                       SPECIAL LAND ACQUISITION OFFICER
                                     Versus
                           PATEL HIRABEN GANGARAMDAS
==========================================================
Appearance:
MR JAYNEEL S PARIKH, AGP for the Applicant(s) No. 1,2
MR JINESH H KAPADIA(5601) for the Opponent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                Date : 26/10/2021

                                COMMON ORAL ORDER

1. All these revision applications are filed by the applicants - State Authorities under Section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code') challenging the order dated 19.10.2019 passed by the concerned Civil Court in Regular Darkhast filed by the present opponent and similarly situated persons - claimants.

2. Heard learned Assistant Government Pleader Mr. Jayneel S. Parikh for the applicants and learned advocate Mr. Jinesh Kapadia for the opponents in all

C/CRA/221/2021 ORDER DATED: 26/10/2021

the matters.

3. As the issue involved in all these applications is similar, learned advocates appearing for the parties jointly requested that all these applications may be heard together. Accordingly, all these applications are taken up for final disposal.

4. For the sake of convenience, the facts stated in Civil Revision Application No.221 of 2021 are considered. It is submitted by learned Assistant Government Pleader Mr. Parikh that present opponent is the original claimant who had filed LAR No.1983 of 2009 before the concerned Civil Court under the provisions of the Land Acquisition Act. During the course of hearing of the said proceedings, the parties have entered into settlement and therefore consent decree was passed by the concerned Civil Court on 16.12.2012. It is submitted that the present applicants - original opponents, though, have complied with the decree, the present opponent - claimant filed Execution Application No.170 of 2019 before the concerned Civil Court. In the said application, it is contended by the opponent - claimant that the claimant is entitled to claim interest at the rate of 9% for the first year and at the rate of 15% for the subsequent years from the date of taking over the possession of land in question by the respondent authority or from the date of issuance of notification under Section 4 of the Land Acquisition Act, whichever is earlier. It is

C/CRA/221/2021 ORDER DATED: 26/10/2021

submitted that as per Section 28 of the Land Acquisition Act, the claimant is not entitled to claim interest at the rate of 15% from the date of issuance of notification under Section 4. The aforesaid aspect was specifically pointed out before the Executing Court, in spite of that, the Executing Court passed the impugned order dated 19.10.2020 and thereby rejected the objections taken by the present applicants and thereafter warrant has been issued. The applicants have, therefore, filed the present application.

5. Learned AGP has referred the provisions contained in Section 28 as well as Section 34 of the Land Acquisition Act. It is pointed out that as per Section 28 of the Land Acquisition Act, the interest is required to be paid by the acquiring body from the date of taking over the possession of the subject land. It is further pointed out from the record that in the present case, Section 4 notification was issued on 22.08.2003. Thereafter, the award was passed under Section 11 of the Act on 05.04.2006 and possession of the land in question was taken over on 08.08.2006. Therefore, the claimant is entitled to claim the interest from 08.08.2006 till the payment is received by him. However, the claimant has claimed interest from 22.08.2003 i.e. from the date of issuance of notification under Section 4 of the Act. Learned AGP has, therefore, urged that the impugned order passed by the concerned Executing Court be quashed and set aside.

C/CRA/221/2021 ORDER DATED: 26/10/2021

6. On the other hand, learned advocate Mr. Kapadia for the opponent - original claimant has opposed this application. Learned advocate Mr. Kapadia has submitted that the concerned trial Court has passed consent decree on 16.12.2012 and in the said decree, it has been specifically observed that the claimant is entitled to claim interest at the rate of 9% for the first year and at the rate of 15% for the subsequent years from the date of taking over the possession of subject land by the respondent authority or from the date of issuance of notification under Section 4 of the Land Acquisition Act, whichever is earlier. Thus, the consent decree was passed by the trial Court and therefore it is not open for the present applicants to contend that the original claimant is not entitled to claim interest from the date of issuance of notification under Section 4 of the Act. Learned advocate Mr. Kapadia would further contend that it is well settled that Executing Court cannot go beyond the decree passed by the trial Court. Learned advocate further submits that the present applicants - original opponents have not challenged the consent decree before the higher forum nor any review application has been filed before the concerned trial Court and therefore it is not open for the present applicants to contend in execution proceedings that the claimant is not entitled to claim interest from the date of issuance of notification under Section 4 of the Act. It is, therefore, urged that no error is committed by the executing court while passing the impugned order and

C/CRA/221/2021 ORDER DATED: 26/10/2021

therefore these applications may not be entertained.

7. Learned advocate Mr. Kapadia has placed reliance upon the following decisions:

(1) in the case of Kanwar Singh Saini v. High Court of Delhi, reported in (2012) 4 SCC 307;

(2) In the case of S.Bhaskaran v. Sebastian (Dead) By Lrs. & Ors., reported in (2019) 9 SCC 161.

8. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it would emerge that the present opponent is the original claimant and had filed LAR No.1983 of 2009 before the concerned trial Court. During the pendency of the said proceedings, the settlement was arrived at between the parties and on the basis of the said settlement, a consent decree dated 16.12.2012 came to be passed by the concerned trial Court. In the said decree it has been specifically stated as under:

"claimant is entitled to claim interest at the rate of 9% for the first year and at the rate of 15% for the subsequent years from the date of taking over the possession of the subject land by the respondent authority or from the date of issuance of notification under Section 4 of the Land Acquisition Act, whichever is earlier."

C/CRA/221/2021 ORDER DATED: 26/10/2021

9. It would further emerge from the record that in

notification was issued on 22.08.2003 and the possession of the land in question was taken over by the concerned authority on 08.08.2006. The applicants have placed reliance upon the provisions contained under Section 28 of the Act and thereby contended that the claimant is entitled to get the interest from the date of taking over the possession of the land in question. However, it is pertinent to note that the consent decree has been passed by the concerned Civil Court in which it has been specifically stated on the basis of the settlement arrived at between the parties that, "claimant is entitled to claim interest at the rate of 9% for the first year and at the rate of 15% for the subsequent years from the date of taking over the possession of the subject land by the respondent authority or from the date of issuance of notification under Section 4 of the Land Acquisition Act, whichever is earlier." It is not in dispute that the aforesaid decree has attained finality and the present applicants have not challenged the said decree by filing an appeal before the higher forum or by filing review application before the concerned Civil Court. Thus, it is not open for the present applicants to contend that the claimant is not entitled to claim interest from the date of issuance of notification under Section 4 of the Act.

10. At this stage, this Court would like to refer

C/CRA/221/2021 ORDER DATED: 26/10/2021

the decision rendered by the Hon'ble Supreme Court in the case of Kanwar Singh Saini (supra), wherein the Hon'ble Supreme Court has observed in para 25 as under:

"25. It is a settled legal proposition that the executing court does not have the power to go behind the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution. (Vide State of Punjab & Ors. v. Mohinder Singh Randhawa AIR 1992 SC 473).

11. In the case of S.Bhaskaran (supra), the Hon'ble Supreme Court has observed in para 9 as under:

"9. Having perused the records and the findings of the Trial Court, we find ourselves unable to agree with the decision of the High Court in the impugned judgment. It is well-settled that an executing court cannot travel beyond the order or decree under execution (see Rameshwar Dass Gupta v. State of U.P. and Another, (1996) 5 SCC 728).

12. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it is clear that the Executing Court does not have powers to go beyond the decree. Thus, in absence of any challenge to the decree, no objection can be raised in execution.

13. Keeping in view the aforesaid decisions rendered by the Hon'ble Apex Court, if the facts of the present case are examined, this Court is of the view that when the applicants have not challenged the

C/CRA/221/2021 ORDER DATED: 26/10/2021

consent decree, which has attained finality, it is not open for the applicants to raise an objection before the Executing Court by placing reliance upon Section 28 of the Act. Thus, the Executing Court has not committed any error while rejecting the objections raised by the present applicants in the execution proceedings.

14. In view of the aforesaid facts and circumstances of the present case, this Court is not inclined to interfere with the impugned orders passed by the concerned Executing Court in the execution proceedings filed by the original claimants. Accordingly, all these revision applications are dismissed. Rule discharged.

(VIPUL M. PANCHOLI, J) LAVKUMAR J JANI