IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JULY 2008 / 12TH ASHADHA 1930 WP(C).No. 36442 of 2007(L) -------------------------------------- (L.A.R.93/1994 OF SUB COURT, MUVATTUPUZHA) .................... PETITIONER: ------------------- K.J.ANTONY, THOPPIL HOUSE, OLIYAPURAM KARA, THIRUMARADY VILLAGE. BY ADV. SMT.SANTHAMMA ISSAC, SRI.N.C.THOMAS, SRI.CHERIAN THOMAS, SMT.ANU THANKAM MATHEW. RESPONDENT: --------------------- STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, ERNAKULAM. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36442/2007-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT DTD. 24/01/07 IN W.P.(C).396/07 OF HIGH COURT OF KERALA. EXT.P.2: COPY OF THE CALCULATION STATEMENT FILED BY THE JUDGMENT DEBTOR BEFORE THE SUB COURT ON 23/08/07. EXT.P.3: COPY OF THE CALCULATION STATEMENT FILED BY THE JUDGMENT DEBTOR BEFORE THE SUB COURT ON 11/09/07. EXT.P.4: LOWER COURT ORDER DTD. 30/10/07 IN C.A. NO. 584/06-07 IN E.P. NO. 228/03 IN LAR 93/94 OF SUB COURT, MUVATTUPUZHA. EXT.P.5: LOWER COURT ORDER DTD. 25/10/07 IN C.A. NO. 584/06-07 IN E.P. NO. 228/03 IN LAR 93/94 OF SUB COURT, MUVATTUPUZHA. EXT.P.6: COPY OF THE DECREE DTD. 29/10/98 IN LAR NO. 93/94 OF SUB COURT, MUVATTUPUZHA. EXT.P.7: COPY OF THE AWARD APPORTIONMENT IN RESPECT OF LAR NO. 93/94. RESPONDENTS' ANNEXURE: ANNEXURE R1.A: COPY OF THE BALANCE STATEMENT. //TRUE COPY// prv. M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P(C). NO. 36442 OF 2007 ------------------------------------------ Dated this the 3rd day of July, 2008 JUDGMENT Petitioner is the claimant in L.A.R.93 of 1994. E.P. 228 of 2003 was filed for execution of the award granting enhanced compensation before Sub Court, Muvattupuzha. On attachment of the movables Rs.87,800/- was deposited in court by the garnishee. Petitioner filed cheque application for withdrawing the amount. The learned Sub Judge dismissed the application. It was challenged before this court in WP(C) 396 of 2007. Under Ext.P1 judgment dated 24.1.2007 that order was set aside and cheque application was remanded to reconsider the question in the light of the decision of the Apex Court in Gurpreet Sing v. Union of India (2006 8 SCC 457). Thereafter a statement was filed by State the judgment debtor. Under Ext.P5 order dated 25.10.2007, learned Sub Judge found that award enhancing the compensation does not specifically provide for payment of interest on solatium or the benefit granted under 23(1A) of Land Acquisition Act and therefore interest could be claimed only from the date of the decision in Sundar v. Union of India (2001 (3) WPC36442/07 2 KLT 489) namely, 19.9.2001. The learned Sub Judge thereafter fixed the amount due based on the statement filed by the State and total balance amount due to the petitioner was found Rs.3,932/-. Petitioner was directed to produce a fresh schedule and receipt for the same. Petitioner did not produce them and consequently the cheque application was dismissed under Ext.P4 order dated 30.10.2007. This petition is filed under Article 227 of the Constitution of India challenging Ext.P4 and P5 orders. 2. Learned counsel appearing for petitioner and learned Government Pleader were heard. 3. The argument of the learned counsel appearing for petitioner is that eventhough Constitution Bench of Supreme Court in Sundar v. Union of India held that a claimant is entitled to get interest on the entire compensation, including solatium and the benefit under Section 23(1A), and that judgment was pronounced on 19.9.2001, the amount due in this case was not deposited even thereafter and as decided in Sundar’s case State is not entitled to split up the amount while depositing it and therefore petitioner is entitled to get interest on the entire compensation amount from 4.8.1992 at the rate of 9% for one year and thereafter at 15% and as learned Sub Judge did not WPC36442/07 3 grant the same Ext.P4 and P5 orders are to be quashed. Learned Government Pleader pointed out that executing court rightly applied the principles laid down in Gurpreeth Singh’s case and petitioner is only entitled to the amount as found by the court. 4. On hearing the learned counsel I cannot accept the argument advanced. Though in Sundar v. Union of India the Constitution Bench held that interest is payable on the entire compensation including solatium and the benefit provided under Section 23 (1A), as specifically declared in Gurpreeth Singh’s case, when question of entitlement of interest on solatium and Section 23(1A) benefit was neither considered by the Court nor refused, petitioner is entitled to interest on solatium and 23(1A). But it can only be from 19.9.2001 and not from 4.8.1992 from the date of award as canvassed by the learned counsel. For the reason that in Sundar v. Union of India it was held that State is not entitled to deposit the amount in piecemeal, it cannot be said that State is liable to pay interest on the solatium and Section 23(1A) benefit from any day prior to 19.9.2001. The argument of the learned counsel relying on the decision of Apex Court in Patel Joitaram Kalidas v. Spl.Land Acquisition Officer (2007 (2)SCC 341) is that decree cannot be differentiated and WPC36442/07 4 the decree includes the interest payable on the entire compensation amount including solatium and Section 23(1A) and therefore Ext.P5 orders are to be quashed. 5. Apex Court in Patel Joitaram Kalidas’s case was considering a Special Leave Petition filed against judgment of the High Court which in turn was against the enhanced compensation granted by the Land Acquisition Court. Though in the Special Leave Petition, challenge was only with regard to the non- granting of interest on solatium under Section 23(2) and benefit under Section 23(1A), it was held that interest is payable on the entire compensation. But, it was not a case when the award was finally disposed and only execution petition was pending. It cannot be disputed that if the claim is pending before the Land Acquisition Court or the Appellate Court or the Supreme Court, the claimant is entitled to get interest on the entire compensation which includes the land value, the solatium and the benefit under Section 23(1A). But if the award has become final, then interest can be claimed only as provided in Gurpreeth’s case. There can be three types of cases. First type of case is where an award which has become final and executed. The second category is where an award has become final but execution is pending. The WPC36442/07 5 third type is where an award is passed by the court but appeal is pending before the Appellate Court. As far as the third case is concerned, in view of Sundar’s case and as declared in Patel Joitaram Kalidas’s case interest is payable on the entire compensation including land value, solatium and Section 23(1A) benefit. 6. In respect of first category, as held in Gurpreeth’s case when the matter is concluded by executing the award, party is not entitled to get any interest on solatium or the benefit under Section 23(1A). 7. In respect of the second category of cases, there could be two types of cases. In the first sub category is the case where there was a claim for interest on solatium and the benefit under Section 23(1A), which was rejected by the Land Acquisition Court or High Court or Supreme Court. In spite of the declaration of law in Sundar v. Union of India, in view of the dictum in Gurpreeth Singh’s case, interest on solatium or Section 23(1A) cannot be claimed. The second sub category of cases is where claim for interest was not raised or considered or specifically denied or granted. In such cases, interest on solatium and benefit under Section 23(1A) is payable but only from 19.9.2001. Once the WPC36442/07 6 award has become final, then interest can be claimed only if award was not executed. If execution petition is pending then interest is payable. But even in such a case interest could be claimed only as provided in Gurpreet Singh’s case and that liability is only from 19.9.2001. For the reason that amount was not deposited immediately after 19.9.2001 and was deposited only later a claimant is not entitled to claim interest from a day prior to 19.9.2001 on the solatium or the benefit under Section 23 (1A). The position has been settled in paragraph 54 of Gurpreet Singh’s case as follows:- “One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder, the awardee/decree- holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well WPC36442/07 7 settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded WPC36442/07 8 includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (19.9.2001) and not for any prior period. We also clarify that this will not entail any re-appropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question.” 8. In view of the law, petitioner is not entitled to the interest claimed on solatium or the benefit under Section 23(1A) of the Act, before 19.9.2001. Petitioner has no case that if the interest is payable is only from 19.9.2001, then the amount fixed WPC36442/07 9 by the court is not correct. Hence I find no illegality or irregularity in Ext.P4 and P5 orders. Petitioner is entitled to withdraw the amount as found in Ext.P4 order. Writ petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-