Gujarat High Court
Rabari Rana Madha vs State Of Gujarat on 12 April, 2022
Bench: Nirzar S. Desai
C/SCA/13857/2019 ORDER DATED: 12/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13857 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13859 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13861 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13862 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 13863 of 2019
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RABARI RANA MADHA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
NOTICE SERVED BY DS for the Respondent(s) No. 1
MR AKASH CHHAYA AGP for the Respondent - State
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 12/04/2022
ORAL ORDER
1.1 By way of these petitions, the petitioners have
challenged the order dated 15.12.2018 passed by the
learned Principal Senior Civil Judge, Palanpur below
Exh.1 in LAR (Execution Petition) No.65 of 2010 insofar
as the learned Judge has not accepted the entire
calculation of compensation to be awarded to the
petitioners, which was produced by the petitioners below
Mark-455/1 and further prayed for directions to the
respondents to pay compensation to the petitioner as per
calculation made by the petitioners in calculation-sheet
produced by the petitioners before the learned Executing
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Court.
1.2 Since all these petitions are preferred against
different LAR Execution Applications and more or less
though they were different, the orders passed in separate
LAR Execution Petitions, considering the fact that the
operative order, which is under challenge by way of each
of the petitioner is same since it pertains to same land
acquisition, all these matters are taken up together and
are heard and being decided together, with the consent of
the learned advocates for the parties.
1.3 The facts of this group of petitions are identical to
that of a group of petitions being Special Civil Application
No.6262 of 2019 and allied matters and hence for sake of
convenience, Special Civil Application No.6262 of 2019 is
treated to be a lead petition and facts of Special Civil
Application No.6262 of 2019 are being taken into
consideration as facts of all petitions preferred on the
same subject matter.
2.1 It is the case of the petitioners that lands of the
petitioners were covered under the acquisition
proceedings for which award was passed and ultimately
compensation was fixed by this Court in a group of First
Appeal No.2091 of 1993 and allied matters. Those First
Appeals were disposed of vide order dated 16.03.1996
wherein following interim directions were issued, more
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particularly the direction reproduced in para:4 of the
petition, which reads as under:
"(i) The Collector of the District shall form a
team under his direct supervision and control
where he can take assistance of officers working
under him up to the level of Deputy Collector and
preferably that of Prant Officer of the Prant, if
there be any and visit the place physically,
ascertain the position during the entire period
right from the date of publication of notification
under sec.4 i.e. 4.8.1986 till today and for that
purpose 7/12 extracts of the relevant years, the
land assessment record which is referred to as
Anawari statement and if scarcity during the
relevant period is declared, payment of scarcity
subsidy, if any made, also be taken into
consideration and likewise panchnamas that were
drawn in respect of land under acquisition and
which are brought on record in the aforesaid Civil
Applications may also be taken into
consideration. To facilitate the work of the
learned Collector of the District, the State
Authority or the Estate Officer, Deesa Airfield,
are directed to supply the copies of panchnamas
and produce the same before the Collector.
2.2 Pursuant to the aforesaid order passed in the group
of First Appeals, the petitioners preferred Land Reference
(Execution) No.65 of 2010 and allied matters before the
learned District Judge, Banaskantha.
2.3 During the course of the aforesaid proceedings, LAR
Execution applications, vide order dated 21.02.2018,
learned Principal Senior Civil Judge, Palanpur passed an
order and directed the parties to give their calculation in
the form of statement latest by 31.03.2018 and pursuant
to the aforesaid order dated 21.02.2018, the petitioners
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gave calculation and so the respondents also gave the
calculation. Both the parties gave calculation but the
Reference Court believed the calculation given by the
present petitioner except for the last column no.31.
Ultimately vide order dated 31.03.2018 Execution
Application preferred by the petitioners was disposed of
by the learned Principal Senior Civil Judge, Palanpur by
directing respondents to deposit the amount as per the
calculation-sheet prepared by them.
2.4 According to the petitioners calculation submitted by
respondents which was considered by the Reference
Court was erroneous and, therefore, the petitioners
preferred Special Civil Application No.10650 of 2018
before this Court. The aforesaid petition was disposed of
vide order dated 06.10.2018 whereby co-ordinate bench
of this Court, in paras:3 and 4, observed as under and
disposed of the petitions.
"3. It appears that respondent no.2 - Acquiring
Body have submitted calculation sheet at Mark-
436/1 with Exh.436 before the Executing Court
and learned advocate Mr. Ankit Shah appearing
for respondent no.2 made a statement at bar that
respondent no.2 is going to deposit the amount as
early as possible as per impugned order. As and
when such amount is deposited by the
respondent no.2, the petitioners are at liberty to
withdraw the said amount as shown in the
calculation sheet submitted by the respondent
no.2 at Mark436/1 with Exh.436 by way of
account payee cheque on proper verification.
4. The petitioners (Org.claimants) have ventilated
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grievance that the amount already deposited and
now to be deposited is less than the amount
awarded to the respective petitioners and to
demonstrate the said fact the petitioners have
furnished calculation sheet with respect to
Execution Petition Nos. 60 of 2010 before this
Court along with affidavit at page no.77. So,
considering the issue involved in the execution
proceedings with regard to calculation of the
amount and its entitlement under the head
claimed by the respective petitioners
(Org.claimants), it would meet the ends of justice
if the Executing Court is directed to consider the
calculation sheet that may be placed on record by
the petitioners (Org.claimants) with respect to
each claimant and also to provide opportunity to
the respondents while deciding the legality and
correctness of the calculation that may be placed
by the petitioners (Org.claimants) before the
Executing Court. The petitioners (Org.claimants)
are directed to place their respective calculation
sheets before the Executing Court in each
execution petition on or before 22.10.2018. On
filing of such calculation sheets by the petitioners
(Org.claimants), the learned Executing Court
shall decide such dispute of calculation in
accordance with the provision of law and after
hearing both the sides and decide the same as
expeditiously as possible but not later than four
weeks from the date of filing of the calculation
sheets by the respective petitioners
(Org.claimants). It is clarified that learned
Executing Court shall decide the calculation that
may be placed by the petitioners (Org.claimants)
on record independently and uninfluenced by the
observations recorded in the impugned order and
for this limited purpose, the execution
proceedings shall stand revived on record of
learned Executing Court."
2.5 Pursuant to the aforesaid order dated 06.10.2018,
fresh calculation-sheet given by the petitioner before the
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learned Executing Court below Mark : 455/1 and
ultimately Reference Court, vide order dated 15.12.2018,
passed order below Exh.1 in LAR Execution Petition
Nos.60 of 2010 to 68 of 2010. Operative part of the
aforesaid order reads as under:-
"As per calculation sheet produced by
applicant on record at Mark-455/1 the amount
remaining unpaid as on 28.03.2000 is as per
column no.27.
For the amount remaining unpaid from
29.03.2000 to 28.11.2018, the applicant is
entitled to 15% interest on Net amount
payable shown at column no.22 as per the
award of District Court as per the calculation
sheet Mark - 455/ 1 till realization.
Inspite of the order directing the
opponents to pay the amount on or before
30.6.2018 opponents have not complied the same
and therefore the opponents are directed to
deposit the same amount within 30 days. Further
if the opponents fail to deposit the above amount
alongwith interest accrued till realization within
30 days, the applicants are at liberty to recover
the said amount by application for issuance of
Jangam Warrant in accordance with provisions of
law.
Order of this petition is kept in the
present Execution Petition No.60/2010.
A copy of this order be kept along with the
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Execution Petition No.61/2010 to 68/2010.
Pronounced in open Court on the 15th day
of the month of December, 2018."
2.6 According to the present petitioner while passing
the aforesaid order, the Reference Court observed that
amount shown at column no.28 of the calculation-sheet is
incorrect.
2.7 Since to understand the controversy by referring to
column which may lead to some confusion, the query was
put to learned advocate Mr.Majmudar, at this stage, as to
what is column no.28 which is believed to be incorrect by
the Reference Court, Mr.Majmudar submitted that by
calculating the amount at column no.28 the petitioner has
claimed interest over the interest from the date of award
till the amount was actually deposited on 28.03.2000.
2.8 The aforesaid order dated 15.12.2018 was
challenged by both the sides by way of this group of
petitions, the petitioner challenged the aforesaid orders
and prayed for remaining amount which has remained
unpaid though claimed by the petitioner and stated in
column no.31 at page:51 of the petition. The aforesaid
amount is an amount calculated by the petitioner towards
interest over the interest from the date of award till
28.03.2000, the date on which the aforesaid amount was
deposited in the Registry of the trial Court. Whereas the
present Respondent No.2 i.e. Defense Estate Officer
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challenged the order dated 15.12.2018 by preferring
group of petitions being Civil Revision Application No.335
of 2021 and allied matters before this Court on the
ground that it is not open to award interest on interest
and Executing Court has placed reliance on the
calculation-sheet below Mark 455/1.
2.9 The aforesaid group of petitions being Civil Revision
Application No.335 of 2021 and allied matters was
dismissed by the coordinate Bench of this Court vide
order dated 30.11.2021. In the order dated 30.11.2021, in
paras:10, 11, 12, 13 and 14, the Coordinate Bench of this
Court, while dismissing the petitions, observed as under:
"10. Now, as per the direction issued by this
Court in the aforesaid petitions, the claimants
submitted revised calculation sheet at mark
455/1. The Executing Court has considered the
aforesaid factual background of the case and
thereafter recorded certain undisputed facts. It
has been observed by the Executing Court that as
per the award dated 1.5.1992 passed by the
District court, the claimants are entitled to
further amount of 6% severance charge. The High
Court, in the First Appeals, has merely reduced
the amount of compensation awarded by the
District Court by observing that the claimants
were entitled to Rs.6/- per sq.mtr for non-irrigated
land and Rs.7/- per sq.mtr. for irrigated land. The
rate of interest has not been disturbed by the
High Court in the First Appeals. Thus, the
Executing Court has considered the fact that the
claimants are entitled to severance charges as per
the award of the District Court.
11. It is also not in dispute that the applicant had
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deposited the principal amount on 28.3.2000
before the District Court. However, the amount of
interest @15% was not deposited. It is pertinent
to note at this stage that though Special Leave
Petition was dismissed by the Hon'ble Supreme
Court on 5.1.1998, the principal amount was
deposited by the applicant only on 28.3.2000.
Thereafter, it is also not in dispute that further
amount was deposited by the applicant on
28.11.2018.
12. Keeping in view the aforesaid factual aspects,
the Executing Court has rightly observed that the
claimant cannot claim interest over interest
amount i.e. 15% as per column no.27 but the
claimants are entitled to interest 15% as per
column no.22. Thus, it is held that the claimants
are entitled to interest from 29.3.2000 to
28.11.2018 on net amount payable in column
no.22. The Executing Court has further observed
that the Executing Court cannot go beyond the
decree. Thus, it has been observed that the
claimants are entitled to get Rs.7/- per sq.mtr. for
irrigated land and Rs.6/- per sq.mtr. for non-
irrigated land, 30% solatium and 6% severance
charges, 12% additional compensation and
thereafter 9% interest and 15% interest as per the
provisions of the Land Acquisition Act.
13. Thus, this Court is of the view that the
Executing Court has not gone beyond the decree
as contended by the learned advocate for the
applicant. Further, the Executing Court has also
not awarded interest on interest as contended by
learned advocate for the applicant.
14. In view of the aforesaid facts and
circumstances of the present case, this Court is of
the view that no jurisdictional error is committed
by the executing court while passing the
impugned order dated 15.12.2018 in LAR
Execution Petition Nos.142 of 2010 to 155 of 2010
and hence, no interference is required in these
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Civil Revision Applications. Accordingly, all these
Civil Revision Applications are dismissed."
2.10 Though the aforesaid Civil Revision Applications
preferred by the respondents were dismissed, since the
present set of petitions were preferred under Article 226
and 227 of the Constitution of India whereas those group
of petitions were filed as Civil Revision Applications, all
these mattes were not tagged and heard together and,
therefore, though Civil Revision Applications preferred by
the respondents were dismissed, the present group of
petitions remained pending and are being heard today.
3. Heard learned advocate Mr.Sharvil Majmudar with
learned advocate Mr.Kakadia for the petitioners, learned
advocate Mr.Ankit Shah with learned advocate Mr.Brijesh
Ramanuj for the respondents and learned Assistant
Government Pleader Mr.Nikunj Kanara and learned
Assistant Government Pleader Mr.Akash Chhaya for the
respondent - State authorities.
4.1 Learned advocate Mr.Majmudar submitted that the
present petitioners being lost their land pursuant to the
land acquisition and in fact the award was passed only on
24.03.1988 whereas for the first time after award was
passed amount was deposited in the registry in the year
2012 i.e. after 12 years of the order dated 24.03.2022
and, therefore, though Reference Court has taken care of
directing respondents to make payment of interest from
28.03.2000 till 28.11.2018 for a period of 18 years and 08
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months, the trial Court has lost sight of the fact that
interest was not awarded and directed to be paid to the
petitioners for a period from the date of award i.e.
24.03.1988 till 28.03.2000.
4.2 Learned advocate Mr.Majmudar further submitted
that as the interest has not been paid in time, the
petitioners have suffered lost on account of financial
crunches and even today after the order dated
15.12.2018, after about more than three years also the
amount has not been deposited by the respondents and
the order of the Reference Court merely remained on
paper and has not been executed and, therefore, he
prayed for direction directing the respondents to make
payment of the amount of interest from 24.03.1988 till
28.03.2000.
5.1 As against that, learned advocate Mr.Ankit Shah for
the respondents vehemently opposed the petition and
submitted that in fact the petitioners demand for interest
from 24.03.1988 till 28.03.2000 has already been
considered by the Reference Court. He submitted that in
view of calculation-chart produced before the Reference
Court, in column no.24, the aspect of interest for a period
for which petitioner have claimed interest has been take
care of and, therefore, there is no question of making
payment of interest once again.
5.2 Mr.Shah further submitted that the very order,
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which is under challenge by way of this group of
petitions, has already been examined by the coordinate
Bench of this Court and by dismissing petitions preferred
by the Respondent No.2 - Defense Estate Officer, the
Coordinate Bench of this Court has confirmed the award
and pronounced that Reference Court has not committed
any error. Mr.Shah submitted that aforesaid order passed
by the coordinate Bench of this Court dated 30.11.2021 is
binding on this Court as this Court cannot take different
view as if the Court is sitting in appeal over the aforesaid
order. Mr.Shah further submitted that the order dated
30.11.2021 is not challenged by the Respondent No.2 till
date and, therefore, this Court may not take any other
view but confirm the order dated 15.12.2018, which is the
subject matter of challenge before this Court.
6. Learned Assistant Government Pleader Mr.Akash
Chhaya for the respondent - State also opposed the
petition by adopting the submissions made by learned
advocate Mr.Ankit Shah for the private respondent and
prayed for dismissal of the present petition.
7. At this stage, learned advocate Mr.Majmudar
clarified that actual the trial Court i.e. Executing Court
has committed error by mentioning column no.28 instead
of column no.31 and actual grievance in respect of
column no.31, which is not disputed by learned advocate
Mr.Ankit Shah for the private respondent.
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8.1 Considering the arguments advanced by learned
advocates for the parties and after perusing the material
available on record as well as the order dated 30.11.2021
passed in Civil Revision Application No.335 of 2021 and
allied matters, which is not on record, but it has been
provided by both the learned advocate Mr.Majmudar and
learned advocate Mr.Ankit Shah appearing for respective
parties, this Court is of the view that Reference Court
has, in detailed, examined the grievance of the
petitioners. In fact, the Reference Court directed both the
parties to place on record the respective calculation by
the parties. When the calculation submitted by the
respondent No.2 - Defense Assistant Officer was disputed
and the issue went upto this Court by way of Special Civil
Application No.10650 of 2018 and allied matters,
ultimately vide order dated 06.11.2018 the Coordinate
Bench of this Court directed the Executing Court that the
calculation that may be placed by the petitioner on record
be decided by the Executing Court independently and
ultimately calculation provided by the petitioner was
believed except for the calculation no.31 ( as claimed by
learned advocate Mr.Majmudar) which is the column
whereby the petitioners have claimed for interest which
is concurrent interest over interest and above statutory
interest @ 15% for a period from 24.03.1988 till
28.03.2000. As such the petitioners are entitled to further
interest @ 15% over the interest amount as mandatory as
provided by the Act for a period from 24.03.1988 till
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28.03.2000.
8.2 The aforesaid issue was examined by the trial Court
and the trial Court has categorically observed in
paras:20, 21 and 22 as under:-
"20. The applicant is as such entitled to
unpaid amount as on 28.03.2000 as per column
no.27 of the Calculation sheet produced at Mark-
455/1. The applicant thereafter at column no.28
claims 15% interest from 29.03.2000 to
28.11.2018 and at column no.30 shows total
amount payable as on 28.11.2018 (column no.27
+ column no.28 + column no.29 cost awarded by
court). The applicant at column no.31 claims 15%
interest per day on unpaid amount as on
28.03.2000 i.e. on column no.27.
However, so far as the calculation of
applicant in Calculation sheet Mark - 455 / 1 at
column no.28 is concerned the applicant is
claiming 15% interest on column no.27 but this
column no.27 is already including the amount of
interest till 28.03.2000. As held in the judgment
relied by opponent Prem Nath Kapur Versus
National Fertilisers Ltd., 1995 (0) GLHEL -
SC 21457 claimants are not entitled to deduct
from the amount of compensation towards costs,
interest additional amount under section - 23
(1A) within interest and then to claim total
balance amount with further interest. Therefore
the applicant cannot claim interest over interest
amount i.e. 15% column no.27 but applicant is
entitled to 15% interest on column no.22. As
such the applicant is entitled to 15% interest
from 29.03.2000 to 28.11.2018 on Net
amount payable at column no.22 and
accordingly 15% interest per day on Net
amount payable at column no.22.
(21) It is profitable to note that as this
court is executing court it is settled principle that
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Executing Court cannot go beyond the decree. In
this matter some facts are admitted that land was
acquired, award was passed, award was
challenged before Hon'ble High Court, thereafter
till Supreme Court, Hon'ble High Court has only
reduced by Rs.1 the rate fixed by Hon'ble District
Court and has not disturbed any other benefits
available to the applicants under other heads as
awarded by District Court. So this court is of the
opinion that the claimants are entitled to get Rs.7
for irrigated land and Rs.6 for non irrigated land
and 30% solatium, 6% severance charges, 12%
additional compensation and thereafter 9%
interest and 15% interest as per the provisions of
Land Acquisition Act.
(22) In view of the above discussion the
Calculation sheet produced by the applicant at
Mark-455/1 is partly considered and the amount
remaining unpaid as on 28.03.2000 is as per
column no.27. I also agree with the argument of
Ld.Adv. For opponent that claimants cannot claim
interest over interest and as such, the amount
shown at column no.28 of this Calculation sheet
is not correct and instead the applicant is entitled
to 15% from 29.03.2000 to 28.11.2018 on Net
amount payable shown at column no.22 and
following order is passed in interest of justice."
8.3 The aforesaid order of the trial Court is confirmed by
the Coordinate Bench of this Court vide order dated
30.09.2021. This Court is mindful of the fact that the
order of the Coordinate Bench of this Court is passed in
respect of the same order dated 15.12.2018 and
considering the fact that entire issue revolves around
issue agitated about wrong calculation and about
entitlement of the petitioners on interest over interest
and hence when the aforesaid order dated 15.12.2018 is
confirmed by Coordinate Bench of this Court dated
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30.09.2021, this Court cannot sit in appeal over the
aforesaid order and, therefore, this Court is of the view
that while passing the order dated 15.12.2018 the
learned Principal Senior Civil Judge, Palanpur has not
committed any error while deciding LAR Execution
Petitions being Nos.60 of 2010 to 68 of 2010 and allied
matters.
8.4 However, as far as grievance of the learned advocate
Mr.Majmudar in respect of the fact that the respondents
have not deposited the amount till 15.12.2018 is
concerned, the respondents are directed to deposit the
amount within a period of two months from today in view
of the order which is under challenged by way of this
petitions.
9. With the aforesaid observations and directions,
present petitions deserve to be dismissed and they are
dismissed accordingly. Notice is discharged, in each
petition. No order as to costs.
9.1 Office of the Registry to tag the copy of the present
order in each petition.
Direct service is permitted.
(NIRZAR S. DESAI,J)
MISHRA AMIT V.
