Gas Turbine Research ... vs Nazima Saliq
2022 Latest Caselaw 9678 Kant

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                                                             WP No. 10625 of 2022


                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 27TH DAY OF JUNE, 2022

                                                BEFORE
                           THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
                           WRIT PETITION NO. 10625 OF 2022 (LA-RES)
                      BETWEEN:

                      GAS TURBINE RESEARCH ESTABLISHMENT DEFENSE UNIT
                      THE DEFENCE ESTATE OFFICER
                      KARNATAKA AND GOA CIRCLE
                      K. KAMARAJ ROAD
                      BANGALORE-560042
                                                                   ...PETITIONER

                      (BY SRI. H. SHANTHI BHUSHAN, ASG)

                      AND:

                      1.   NAZIMA SALIQ
                           D/O LATE M.K.RAFIQ SAHEB
                           AGED ABOUT 53 YEARS

                      2.   ZAHID FAKIR. R
                           S/O LATE M.K. RAFIQ SAHEB
                           AGED ABOUT 51 YEARS

Digitally signed by
                      3.   REHNUMA THAUHEED. R
POORNIMA                   S/O LATE M K RAFIQ SAHEB
SHIVANNA
Location: HIGH             AGED ABOUT 49 YEARS
COURT OF
KARNATAKA
                           ALL ABOVE ARE RESIDING AT
                           NO.40/4-1, 'BLESSINGS', VIVIANI ROAD
                           RICHARDS TOWN, BENGALURU -560 005

                      4.   THE SPECIAL LAND ACQUISITION OFFICER
                           V.V.TOWER, BENGALURU - 01
                                                                  ...RESPONDENTS
                      (BY SRI. NITHYANANDA.K.R, AGA FOR R4;
                         SRI. SIDDHANT S. DARIRA, ADVOCATE FOR
                         SRI. ARUN GOVINDRAJ, ADVOCATE FOR R1 TO R3)
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                                           WP No. 10625 of 2022


      THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
ENTIRE RECORDS PERTAINING TO EX.NO.2091/2011 ON THE FILE
OF II ADDL. CITY CIVIL & SESSIONS JUDGE & SPL. JUDGE, CITY
CIVIL COURT, BANGALORE AND ISSUE A WRIT OF CERTIORARI OR
ANY OTHER WRIT TO SET-ASIDE THE IMPUGNED ORDER DATED
09/11/2021 VIDE ANNEXURE-L REJECTING THE CALCULATION MADE
BY THE PETITIONER PASSED BY THE II ADDL. CITY CIVIL &
SESSIONS JUDGE & SPL.JUDGE, CITY CIVIL COURT AT BANGALORE,
IN EX.PTN. NO.2091/2011 IN THE INTEREST OF JUSTICE AND
EQUITY AND ETC.

       THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY THE COURT MADE THE FOLLOWING:

                             ORDER

1. The petitioner is before this Court seeking for the

following relies:

i) To call for the entire records pertaining to Ex.No.2091/2011 on the file of II Addl. City Civil & Sessions Judge & Spl. Judge, City Civil Court, Bangalore;

ii) Issue a writ of certiorari or any other writ to set-

aside the impugned order dated 09/11/2021 vide ANNEXURE-L rejecting the calculation made by the petitioner passed by the II Addl. City Civil & Sessions Judge & Spl.Judge, City Civil Court at Bangalore, in Ex.Ptn. No.2091/2011 in the interest of justice and equity;

iii) Set aside the Arrest Notice issued to JDR-2 vide Order dated 21.02.2022 in Ex. No.2091/2011 passed by the II Addl. City Civil & Sessions Judge & Spl.Judge, City Civil Court at Bangalore vide Annexure-M;

iv) Issue appropriate writ or direction directing the Executing Court- II Addl. City Civil & Sessions Judge & Spl. Judge, City Civil Court at Bangalore,

WP No. 10625 of 2022

in Ex.Ptn. No.2091/2011 in Ex.Ptn. No.2091/2011 in terms of the dictum in sunder versus Union of India, 2001 AIR SCW 3692 and Gurupreet Singh versus UOI, 2006(8) SCC 457, on the file of the City Civil Judge at Bangalore;

v) Allow this Petition with costs and issue such other writ or order or direction as this Hon'ble Court may deem fit and necessary in the circumstances of the case.

2. The facts in brief are:

2.1. The land of one M.K.Rafiq Saheb measuring 34

guntas in Sy.No.6/2 of Binnimangala

Mahavartha kaval, K.R.Puram, Bangalore had

been acquired by issuance of a notification

under Section 4(1) on 12.08.1993, final

notification having been issued on 17.07.1994,

the Special Land Acquisition Officer passed an

award on 26.09.1995 determining the

compensation at Rs.1,30,000/- per acre

treating the land as agricultural land.

2.2. Aggrieved by the same, M.K.Rafiq Saheb

sought for reference under Section 18 of the

Land Acquisition Act, 1894 for enhancement of

WP No. 10625 of 2022

compensation as that awarded in pursuance of

which LAC No.253/1996 was registered and

vide Judgment dated 28.05.1999 the

compensation was enhanced to Rs.4,00,000/-

per acre along with other statutory benefits.

2.3. The said M.K.Rafiq Saheb not being satisfied

with the said amount being awarded filed MFA

No.3832/1999 in which the petitioners filed

cross objections which came to be numbered as

MFA CROB No.81/2000 and this Court vide

order dated 17.06.2004 enhanced the

compensation to Rs.35,17,470/- for 34 guntas

of land acquired along with other statutory

benefits.

2.4. Being aggrieved by the same, the petitioner

approached the Hon'ble Apex Court in SLP (C)

No.23521/2004 when the Apex Court admitted

the petition subject to depositing of 1/3rd of the

enhanced compensation. The Apex Court

WP No. 10625 of 2022

dismissed the Civil Appeal registered pursuant

to the admission of SLP No.23521/2004,

however, modified the order increasing the

deduction of development charges from 50 to

60%. It is stated that in compliance with the

said Judgment, the petitioner has deposited a

sum of Rs.47,37,097/- with the Registrar, City

Civil Court, Bangalore, on 19.10.2012.

2.5. In the meanwhile, respondents No.1 to 3 who

are the legal heirs of late M.K.Rafeq Saheb filed

execution proceedings in Execution

No.2091/2011 claiming that an amount of

Rs.79,65,500/- was due and payable. The

petitioner who was respondent No.4 therein

filed its objections. The respondents herein had

filed memo of calculation detailing out the dues

as on 28.02.2020 along with interest of

Rs.99,44,085/-.

WP No. 10625 of 2022

2.6. The petitioner filed statement of objections

contending that in terms of the decision of the

Apex Court in Gurupreeth Singh -v- Union of

India [(2006) 8 SCC 457], the petitioner has

made payment of all amounts that are due and

there are no further amounts that are due and

liable to be paid. In view thereof, the

Registrar, City Civil Court directed the office to

calculate the amounts due and payable by the

petitioners in terms of the decision in

Gurupreeth Singh's case. The office of the

Court filed a memo of calculation on 6.01.2021

indicating that an amount of Rs.96,91,024/-

was due and payable. Objections were filed to

the said memo of calculation by the petitioner.

The trial Court accepted the memo of

calculation prepared by the office and directed

the petitioners to make payment of the monies.

The petitioners not having made payment of

WP No. 10625 of 2022

the monies, arrest notice came to be issued. It

is the said arrest notice which is under

challenge in the present petition and the

aforesaid reliefs have been sought for.

3. Sri.Shanthi Bhushan, learned Assistant Solicitor

General would submit that calculation made by the

office is in accordance with the decision in

Gurupreeth Singh's case, therefore, the order

passed by the executing court directing arrest of an

officer of the petitioner is nonest and is required to

be set-aside.

4. Per contra, Sri.Siddhanth, learned counsel appearing

for the respondents would submit that the calculation

made by the office is proper and correct. It was for

the petitioners to have made payment of the said

amounts, if not the petitioner would have had to

challenge the said order which has not been done.

Payment not having been made by the petitioner, the

execution court has rightly issued an arrest warrant

WP No. 10625 of 2022

and as such, this Court ought not to interfere with

the matter and the petition is liable to be dismissed.

5. Heard Sri.Shanthi Bhushan, learned Assistant

Solicitor General for the petitioner and Sri.Siddhanth

S.Darira for Sri.Arun Govindaraj, learned counsel for

the respondents No.1 to 3 and Sri.Nithyananda.K.R.,

Addl. Government Advocate for respondent No.4.

Perused papers.

6. The aspect of acquisition of land, the orders passed

by the Apex Court are not in dispute and are not

required to be adverted to. The only issue in

question is, whether the memo of calculation filed by

the petitioner and/or that prepared by the office of

the execution court is in accordance with the decision

of the Apex Court in Gurupreeth Singh's case or

not.

7. The objections filed by the petitioner gives raise to

an interesting reading. The petitioner has sought to

WP No. 10625 of 2022

contend that the amount which has been deposited

under two different stages in the Apex Court has

been made in compliance with the decision in

Gurupreeth Singh's case, therefore, there is no

amount which is liable to be paid by the petitioners.

By relying on paragraph 40 to 43 of Gurupreeth

Singh's case, it is contended that there is no balance

which is required to be paid.

8. A perusal of the entire objections does not indicate

the methodology of calculation made by the

petitioner. The amounts which are due in terms of

the decision of the Apex Court in Gurupreeth

Singh's case and how the petitioners' deposit would

be in compliance with the decision of the Apex Court

in the SLP (Civil) Appeal between the parties as also

the decision of the Apex Court in Gurupreeth

Singh's case relating to the aspect of payment of

interest which is liable to be paid by the petitioner

calculated from 1999-2001 i.e. the date of decision in

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WP No. 10625 of 2022

Gurupreeth Singh's case. The petitioner has only

stated that at the time of execution petition, the

decree holder deposited Rs.79,65,500/- and

therefore, the petitioners having deposited

Rs.38,44,096/- on 10.01.2005 and a sum of

Rs.47,37,095/- on 17.10.2012, the total deposited

amount being Rs.85,81,091/-, there is an excess

amount which has been deposited and or received by

the decree holders.

9. While doing so, there is no reference made by the

petitioners to the interest payable in terms of the

decision of the Apex Court in Gurupreeth Singh's

case on the solatium. Reference of monies which

have been deposited is only as regards that order in

C.A. No.1086/2006 without reference to the interest

which is liable to be paid on solatium.

10. In the above circumstances, I am of the considered

opinion that the manner in which the objections to

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WP No. 10625 of 2022

memo of calculation is filed is very convoluted and

not expected of an authority like the petitioner, who

is represented by an Estate officer.

11. The manner in which acquisition was made,

compensation was fixed at a meagre amount which

was enhanced by the reference court and further

enhanced by this Court would indicate that the very

compensation which has been fixed by the acquiring

authority is on a very low end.

12. When the compensation was enhanced by the

reference court and this court, it was for the

petitioner to have made payment of the

compensation amount which also the petitioner failed

to do and even after the execution proceedings were

filed, the manner in which the objections have been

filed to memo of calculation without taking into

consideration the interest liable to be paid on the

solatium in terms of the decision of the Apex Court in

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WP No. 10625 of 2022

Gurupreeth Singh's case to be calculated from the

year 1991 does not behold the petitioner and leaves

much to be desired on the conduct of the petitioner.

13. Faced with the above, at this stage, Sri.Shanthi

Bhushan, learned ASG submits that there is a

mistake which has occurred in the trial Court in the

calculation which has been filed and he submits that

the petitioner would comply with the directions

issued by the Apex Court in Gurupreeth Singh's

case and make payment of the interest on the

solatium calculated at 9% from the year 1991 which

unfortunately has not been done.

14. I am of the considered opinion that in cases of

acquisition interest for the first year is 9% p.a. and

subsequent thereto it is 15%. The same principle

would also apply to solatium and it is only for the

first year, interest at 9% as stated in the decision in

Gurupreeth Singh's case would apply and

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WP No. 10625 of 2022

thereafter interest would have to be calculated at

15% p.a.

15. In view of the above, accepting the submission of

Sri.Shanthi Bhushan, learned ASG that there was a

genuine and bonafide mistake in not taking into

calculation of interest on solatium while filing the

statement of objections, the arrest notice issued to

JDR-2 would be required to be set-aside.

16. In view of the above, I pass the following

ORDER

i) The writ petition stands disposed of.

ii) A certiorari is issued, Order dated 9.11.2021 in

Execution Petition No.2091/2011 passed by the

II Addl. City Civil and Sessions Judge, City Civil

Court, Bangalore, is quashed. Consequently,

the arrest notice issued to JDR-2 vide order

dated 21.02.2022 is also quashed.

iii) The execution court is directed to consider the

amounts payable by the petitioner who is the

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WP No. 10625 of 2022

Judgment debtor there in in accordance with

the decision of the Apex Court in Gurupreeth

Singh's case calculating the interest on

solatium at 9% for one year from the year 1991

and post the said one year calculate interest at

the rate of 15% p.a. Apart therefrom, the

Execution Court is directed to verify the

amounts paid on account of compensation and

interest paid thereon in a similar manner and

pass necessary orders.

iv) Once the calculation is made known by the

Execution Court, the petitioner would be

required to make payment of those monies

within a period of four weeks from the date on

which the petitioner informs of the same.

Sd/-

JUDGE

ln