Madras High Court
The Nilgiris District ... vs Ahmed Sait on 11 January, 2022
C.R.P.(NPD).No.860 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.01.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.R.P.(NPD)No.860 of 2011
and M.P.Nos.1 & 2 of 2011
The Nilgiris District Co-Operative Milk
Producers Union,
Rep. By its General Manager,
Udhagamandalam.
(Impleaded as per order in E.A.No.60/09
dated 07.12.2009) ..
Petitioner
Vs.
Cassim sait (Since deceased)
1.Ahmed Sait
Ali Sait (Since deceased)
2.Zulaika Alias Sherein
3.Hanifa Zaveed alias Yasmin
4.Sarah Oomer @ Shamima
5.Amina Faisel Patel @ Parveen
6.Zainab Gaya @ Nasreen
7.Tahseen Zaffar
8.Abdul Rahaman Cassim Said
9.Rashida
10.Fakeer Mohammed @ Junaid
11.Humairae Ayub
12.The Land Acquisition Officer
and Sub-Collector,
1/17
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
Coonoor. .. Respondents
(respondents 9 to 11 - LRs of Ali Sait
impleaded as per order in
E.A.No.17/2009 dated 08.06.2009)
Prayer: Civil Revision Petition filed under Article 227 of the Constitution
of India, against the order and decree dated 08.02.2011 made in
E.P.R.No.17 of 2008 in L.A.O.P.No.13 of 1989 on the file of the District
Court, the Nilgiris, Ootacmund.
For Petitioner : Mr.G.Muniratnam
For Respondents : No appearance (For R1, 8 & 10)
No appearance (For R2 to 7, 9 & 11)
Mr.D.Gopal (For R12)
Government Advocate (CS)
ORDER
(The matter is heard through 'video conferencing/hybrid mode')
This Civil Revision Petition is filed against the order and decree
dated 08.02.2011 made in E.P.R.No.17 of 2008 in L.A.O.P.No.13 of
1989 on the file of the District Court, the Nilgiris, Ootacmund.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
2.The petitioner is 2nd respondent in E.P.R.No.17 of 2008 on the
file of the District Court, the Nilgiris, Ootacmund, filed by the
respondents 1 to 11 herein, along with the deceased Cassim Sait. The 12 th
respondent is Land Acquisition Officer. At the request of the petitioner,
the 12th respondent, after following the procedure, acquired 11.32 acres
for the purpose of putting up newly proposed Diary Complex consisting
of Milk Reception and processing wing, milk by-products wing, including
cheese plant, cold storage, dairy stores and cattle feed stores, boiler room,
etc. The 12th respondent passed an award dated 26.08.1981, fixing the
value of the land at Rs.50,000/- per acre and fixed Rs.150/- for trees
standing in Survey No.1106/4a3 and Rs.1552.50/- for crops standing in
the land acquired, together with interest at the rate of 4% from the date of
possession, till the date of deposit. The 12th respondent also awarded 15%
solatium for the amount fixed. The petitioner calculated the amounts
payable as per the award and deposited a sum of Rs.6,69,599.70/- on
26.08.1981. The respondents 1 to 11/the land owners withdrew the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
amount deposited, on 29.08.1981. The land owners filed O.P.No.38 of
1981 before the Sub Court, Uthagamandalam, for enhancement of
compensation. The learned Sub Judge fixed the value of the land at
Rs.5,00,000/- per acre, Rs.1702.50/- for crops and trees, 15% for
solatium together with interest at the rate of 4% from the date of
possession i.e., 05.01.1981 to till the date of award i.e., 26.08.1981. The
12th respondent filed First Appeal in A.S.No.388 of 1984 before this
Court. This Court, in C.M.P.No.7917 of 1984 in A.S.No.388 of 1984,
granted stay on condition to deposit entire enhanced amount. Challenging
the said order made in C.M.P.No.7917 of 1984, the 12th respondent filed
L.P.A.No.71 of 1984. The Division Bench of this Court, by order dated
17.09.1984 in C.M.P.No.12781 of 1984 in L.P.A.No.71 of 1984, directed
the petitioner to deposit Rs.15,00,000/-. As per the said order, the
petitioner deposited a sum of Rs.15,00,000/- on 18.10.1984. The
respondents 1 to 11/land owners withdrew the said amount. Again, this
Court, by the order dated 19.12.1985, directed the petitioner to deposit
further sum of Rs.15,00,000/-. Aggrieved by the said order dated
19.12.1985, S.L.P.No.3797 of 1986 was filed by the petitioner and the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
same was dismissed. Subsequent to dismissal of S.L.P., the petitioner
deposited another sum of Rs.15,00,000/- on 15.04.1986. The respondents
1 to 11/land owners withdrew the said amount.
3.This Court, by the judgment and decree dated 11.08.1988,
allowed the First Appeal in A.S.No.388 of 1984, setting aside the award
of the learned Sub Judge in O.P.No.38 of 1981 dated 26.09.1983 and
remanded back the O.P. to the learned District Judge and the said
O.P.No.38 of 1981 was renumbered as L.A.O.P.No.13 of 1989.
Aggrieved by the judgment in the First Appeal, the respondents 1 to
11/land owners filed S.L.P.No.10133/1988 and the same was dismissed
on 30.09.1988, directing the learned District Judge to dispose the
L.A.O.P.No.13 of 1989 within a period of four months from the date of
copy of that order. The learned District Judge, by the order dated
09.05.1996, fixed the land value at Rs.2,40,000/- per acre together with
interest at 12% for the value fixed and granted 30% solatium and
confirmed the value fixed for trees and crops. Aggrieved by the said order,
the 12th respondent filed First Appeal in A.S.No.237 of 1997 and the same
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
was dismissed on 11.08.2006. The respondents 1 to 11 filed E.P.R.No.17
of 2008 in L.A.O.P.No.13 of 1989. Pending E.P.R, the petitioner
deposited further sum of Rs.9,36,286.40/- on 06.05.2010 and the same is
pending in the deposit to the credit of E.P. The learned District Judge
directed the petitioner to deposit Rs.25,26,996.30/- on or before
08.03.2011.
4.Challenging the said order dated 08.02.2011 made in
E.P.R.No.17 of 2008 in L.A.O.P.No.13 of 1989, the present Civil
Revision Petition is filed.
5.The learned counsel appearing for the petitioner reiterated the
above averments and contended that the learned Judge failed to consider
that the petitioner deposited Rs.36,69,599.70/- and the said amount was
already withdrawn by the land owners in the year 1986 itself. The order
of the learned District Judge made in L.A.O.P.No.13 of 1989 is passed
only on 09.05.1996, after 10 years of withdrawal of entire amount
deposited by the petitioner. The learned District Judge, in L.A.O.P.,
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
ordered 12% interest only on the land value fixed and no interest was
ordered on solatium. The learned Judge, in the E.P., calculated interest on
solatium also and directed the petitioner to deposit the said amount. The
compensation amount has been deposited by the petitioner to the tune of
Rs.36,66,599.70/- and the same was withdrawn by the land owners on
11.05.1981, 28.08.1981, 17.10.1984 and 15.04.1986. The learned Judge
without taking note of the said fact, committed an error in calculating the
interest for compensation and solatium, as if the petitioner has deposited
the award amount subsequent to the order dated 09.05.1996 in
L.A.O.P.No.13 of 1989. The learned Judge has committed an error in
calculating interest at the rate of 12% for the entire period from
11.05.1981 to till the date of realization. The petitioner had already
deposited the compensation amount and the entire amount was
withdrawn by the land owners as early as in the year 1986 itself. The
petitioner deposited the amount without waiting for the order passed in
L.A.O.P.No.13 of 1989. The learned Judge ought to have held that the
land owners have already withdrawn the entire amount with interest and
hence, they are not entitled to claim anything in the E.P.R.No.17 of 2008.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
Pending E.P., the petitioner has also made erroneous calculation and
deposited further sum of Rs.9,36,286/- over and above the amount of
Rs.36,69,599.70/- on 20.04.2010. After remand, the learned Judge
passed the order in L.A.O.P.No.13 of 1989 only on 09.05.1996. Before
the said order, the petitioner deposited more than the amount awarded.
The land owners are entitled to interest at the rate of 12% only on the
land value, if entire amount is not deposited. The learned Judge, without
considering the fact that entire amount was deposited as early as in the
year 1986 itself, committed an error in awarding interest on solatium,
cost for trees and crops, etc. The judgments relied on by the learned
Judge are totally different from the facts and circumstances of the present
case. The learned counsel appearing for the petitioner contended that the
petitioner is liable to pay interest only on Rs.1,90,000/-, after deducting
Rs.50,000/- fixed by the Land Acquisition Officer and not on
Rs.2,40,000/-. The learned counsel for the petitioner relied on para nos.27
and 31 of the judgment of the Hon'ble Apex Court reported in (2006) 8
SCC 457 [Gurpreet Singh Vs. Union of India], which reads as follows:
“27.As an illustration, we can take the following
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
situation. Suppose, a decree is passed for a sum of Rs.5,000/- by
the trial court along with interest and costs and the judgment
debtor deposits the same and gives notice to the decree holder
either by approaching the executing court under Order XXI Rule
2 of the Code or by making the deposit in the execution taken out
by the decree-holder under Order XXI Rule 1 of the Code. The
decree holder is not satisfied with the decree of the trial court.
He goes up in appeal and the appellate court enhances the
decree amount to Rs.10,000/- with interest and costs. The rule in
terms of Order XXI Rule 1, as it now stands, in the background
of Order XXIV would clearly be, that the further obligation of the
judgment debtor is only to deposit the additional amount of Rs.
5,000/- decreed by the appellate court with interest thereon from
the date the interest is held due and the costs of the appeal. The
decree holder would not be entitled to say that he can get further
interest even on the sum of Rs.5,000/- decreed by the trial court
and deposited by the judgment debtor even before the
enhancement of the amount by the appellate court or that he can
re-open the transaction and make a re-appropriation of interest
first on Rs.10,000/-, costs and then the principal and claim
interest on the whole of the balance sum again. Certainly, at both
stages, if there is short-fall in deposit, the decree holder may be
entitled to apply the deposit first towards interest, then towards
costs and the balance towards the principal. But that is different
from saying that in spite of his deposit of the amounts decreed by
the trial court, the judgment debtor would still be liable for
interest on the whole of the principal amount in case the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
appellate court enhances the same and awards interest on the
enhanced amount. This position regarding execution of money
decrees has now become clear in the light of the amendments to
Order XXI Rule 1 by Act 104 of 1976. The argument that what is
awarded by the appellate court is the amount that should have
been awarded by the trial court and so looked at, until the entire
principal is paid, the decree holder would be entitled to interest
on the amount awarded by the appellate court and therefore he
can seek to make a re-appropriation by first crediting the amount
deposited by the judgment debtor pursuant to the decree of the
trial court towards the cost in both the courts, towards the
interest due on the entire amount and only thereafter towards the
principal, is not justified on the scheme of Order XXI Rule 1
understood in the context of Order XXIV Rules 1 to 4 of the
Code. The principle appears to be that if a part of the principal
has been paid along with interest due thereon, as on the date of
issuance of notice of deposit, interest on that part of the
principal sum will cease to run thereafter. In other words, there
is no obligation on the judgment debtor to pay interest on that
part of the principal which he has already paid or deposited.
.................
31.Under Section 54 of the Act, a person, still not
satisfied with the decree of enhancement in his favour on the
reference under Section 18 of the Act, has a right to file an
appeal to the High Court and from the decision of the High
Court in such an appeal, an appeal to the Supreme Court. If one
were to go by the definition of 'Court' occurring in Section
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
3(d) of the Act, Section 28 providing for payment of interest on
excess compensation may not apply to an appeal under Section
54 of the Act on the excess, if any awarded by the High Court or
in subsequent appeal by the Supreme Court. But when in an
appeal under Section 54 of the Act, the appellate court further
enhances the compensation, it awards the compensation that the
reference court ought to have awarded and so
understood, Section 28 of the Act may be applied at the appellate
stage. If the expression 'Court' used in Section 28 of the Act is
understood in the generic sense, (on the basis that the context
otherwise requires it), the result would be the same. The other
provision relevant to be noted is Section 53 of the Act which
makes the Code of Civil Procedure applicable to all proceedings
before the Court under the Act save in so far as the provisions of
the Code are found to be inconsistent with anything contained in
the Act. Section 54 also does not keep out the Code, but makes
the appeal under it subject to the provisions of the Code
applicable to appeals from original decrees. ”
The learned counsel appearing for the petitioner further contended
that the petitioner is entitled to counter interest on the amounts already
deposited pending appeal. The petitioner, due to erroneous calculation,
has already deposited excess amount of Rs.6,26,918.37/-. The learned
counsel for the petitioner filed memo of calculation and submitted that the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
order of the learned District Judge dated 08.02.2011 made in E.P.R.No.17
of 2008 in L.A.O.P.No.13 of 1989 is erroneous and prayed to set aside
the said order.
6.Though the respondents 1, 8 and 10 entered appearance, on
06.12.2021, there was no representation for them. Today also none
appeared on behalf of them.
7.Though notice has been served on the respondents 2 to 7, 9 and
11 and their names are printed in the cause list, there is no representation
for them either in person or through counsel.
8.Heard the learned counsel appearing for the petitioner as well as
Mr.D.Gopal, learned Government Advocate (CS) appearing for the 12 th
respondent and perused the entire materials available on record.
9.In the present Civil Revision Petition, the only issue to be decided
is whether the calculation made by the learned Judge in the E.P. is correct
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
or the amounts payable by the petitioner is only as per the calculation
filed by the petitioner.
10.From the materials on record, it is seen the cost of land acquired
was finally determined by the order dated 09.05.1996 by the learned
District Judge in L.A.O.P.No.13 of 1989. The said order has become final
as the appeal filed by the 12th respondent was dismissed. The operative
portion of the said order reads as follows:
“16/ ,Wjpahf 21 Kjy; 23 tiua[s;s nfhhpf;ifahsh;fSf;F
ghj;jpag;gl;l murhy; ifafg;gLj;jg;gl;l epyj;jpw;F Vf;fh; xd;Wf;F
U:/2.40.000 tpiy eph;zak; bra;J nkw;go bjhiff;F 30 rjtPjk;
Mwjy; bjhifa[k; kw;Wk; eph;zak; bra;ag;gl;l bjhiff;F epyj;ij
RthjPdk; vLj;J njjpahf 5/1/1981 Kjy; 12# tl;oa[k;
ifafg;gLj;jg;gl;l epyj;jpypUe;J ku';fSf;F U:/150 tPjk;
,Hg;gPlhft[k; epy';fspy; ,Ue;j gaph;fspd; kjpg;g[fF ; U:/1552/50
,Hg;gPlhft[k; tH';fg;gl ntz;Lbkd;Wk; jPh;tk; tH';fg;gLfpwJ/
,t;tHf;fpd; NH;epiyapy; bryt[j;bjhif tH';fg;gltpy;iy/ muR
tH';Fiu"hpd; Cjpak; U:/500 vd eph;zak; bra;ag;gLfpwJ/”
11.From the said order, it is seen that the learned District Judge
granted 12% interest only for the land value fixed. No interest was
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
granted on solatium and value of trees and crops. The learned District
Judge, in the E.P., calculated interest on solatium. The same is liable to be
set aside and is hereby set aside.
12.Originally, the 12th respondent/Land Acquisition Officer passed
an award on 26.08.1981, fixing the value of the land at Rs.50,000/- per
acre together with 4% interest and 15% solatium and Rs.1702.50/- for
crops and trees standing in the land. The petitioner calculated the
amounts as per the award dated 26.08.1981 and deposited a sum of
Rs.6,69,599.70/- and the same was withdrawn by the land owners on
29.08.1981. As per the final order dated 09.05.1996 made in
L.A.O.P.No.13 of 1989, determining the value of the land, 12% interest
was awarded for the period from the date of taking possession i.e.,
05.01.1981, for the value of the land fixed. The petitioner has taken
possession of the land on 05.01.1981. The contention of the learned
counsel appearing for the petitioner is that the petitioner has deposited the
amount calculated at Rs.50,000/- per acre together with interest at the
rate of 4% and solatium 15% and Rs.1702.50/- for trees and crops on
26.08.1981. Therefore, the petitioner has to pay Rs.1,90,000/- for 11.32
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
acres and 12% interest only on Rs.1,90,000/- per acre for the land
acquired. The said contention has considerable force and is acceptable, as
per the judgment of the Hon'ble Apex Court reported in (2006) 8 SCC
457 (cited supra). The petitioner is liable to pay compensation only at the
rate of Rs.1,90,000/- for 11.32 acres, after deducting Rs.50,000/- from
Rs.2,40,000/- being the amount already fixed by the Land Acquisition
Officer. The petitioner is liable to pay interest at the rate of 12% per
annum on the sum of Rs.21,50,800/- (Rs.1,90,000/- x 11.32), from
05.01.1981, the date of possession, till 2010, when the petitioner lastly
deposited Rs.9,36,286/- in E.P.No.17 of 2008, to the credit of
L.A.O.P.No.13 of 1989. The learned Judge has erroneously calculated
interest on Rs.2,40,000/-, solatium and calculated value of trees and
crops, contrary to the ratio laid down by the Hon'ble Apex Court in the
judgment reported in 2006 (8) SCC 457 (cited supra). The learned Judge
has also not properly considered the amount deposited by the petitioner
and amount withdrawn by the land owners.
13.In view of the above error committed by the learned Judge, the
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
impugned order dated 08.02.2011 made in E.P.R.No.17 of 2008 in
L.A.O.P.No.13 of 1989 is liable to be set aside and is hereby set aside.
E.P.R.No.17 of 2008 in L.A.O.P.No.13 of 1989 is remitted to E.P. Court
for fresh calculation as per the judgment of the Hon'ble Apex Court,
referred to above. It is open to the petitioner and respondents to file their
respective memos of calculation for consideration of the learned Judge.
With the above direction, the Civil Revision Petition is allowed. No
costs. Consequently, connected Miscellaneous Petitions are closed.
11.01.2022
Index :: Yes/No
gsa
To
The District Judge,
The Nilgiris,
Ootacmund.
https://www.mhc.tn.gov.in/judis
C.R.P.(NPD).No.860 of 2011
V.M.VELUMANI, J.
gsa
C.R.P.(NPD)No.860 of 2011
11.01.2022
https://www.mhc.tn.gov.in/judis
