ssp 1 NMW 413 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.413 OF 2010 IN WRIT PETITION NO.1855 of 2001 1. Smt.Leela Bhagwansingh Advani, Age 86 years, Occu – Doctor (Retired), Residing at 6/65, Sham Niwas Co-op. Housing Society, Bhulabai Desai Road, Mumbai. 2. Shri Anil Bhagwansingh Advani, Age 57 years, Occu – Business, Residing at 6/65, Sham Niwas Co-op. Housing Society, Bhulabai Desai Road, Mumbai. 3. Smt.Aruna Bhagwansingh Advani, Age 56 years, Occu – Business, Residing at 6/65, Sham Niwas Co-op. Housing Society, Bhulabai Desai Road, Mumbai. .....Petitioners versus 1. Union of India (Summons to be served on the Learned Government Pleader appearing for Union of India under the provisions of Code of Civil Procedure, 1903). 2. The Special Land Acquisition Officer, MHADA, Mumbai. (Summons to be served on the Learned Government Pleader appearing for State of Maharashtra under the provisions of Code of Civil Procedure, 1903). ..... Respondents ssp 2 NMW 413 of 2010 WITH CONTEMPT PETITION NO.72 OF 2010 IN WRIT PETITION NO.1855 OF 2001 Smt.Leela Bhagwansingh Advani & Ors. ..... Petitioners V/s. Union of India and Ors. ..... Respondents WITH WRIT PETITION NO.1912 OF 2010 Smt.Leela Bhagwansingh Advani & Ors. ..... Petitioners V/s. Union of India and Ors. ..... Respondents Mr.A.V.Anturkar i/by Mr.S.B.Deshmukh, for the petitioners. Mr.G.N.Srinivasan and Mr.G.Hariharan i/by Dr.T.C.Kaushik, for respondent No.1 Union of India. Mr.P.L.Lad, AGP, for respondent No.1 in WP. Mr.M.D.Naik, AGP, for respondent No.4 in WP. CORAM: P.B.MAJMUDAR& R.M.SAVANT, JJ. DATE: 1st DECEMBER,2010. ORAL JUDGMENT : ( PER R.M.SAVANT, J. ) : - 1. The above Notice of Motion has been filed by the original petitioners in the above writ petition No.1855 of 2001. The cause for filing the above notice of motion is that the petitioners have not been paid interest on solatium whilst making the payment of compensation to them for the subject lands, which were the subject matter of acquisition for the Defence and in respect of which an Award was passed on 30-05-1995. 2. To appreciate the controversy, it would be relevant to set ssp 3 NMW 413 of 2010 out few facts which according to us, are necessary to be cited. The subject lands were occupied by the Defence authorities from 1942 onwards for defence purposes and were used as such, during the course of Second World War. Upon persistent request of the petitioners, an Award came to be ultimately passed on 30-05-1995. However, in spite of the passing of the said Award and despite protracted correspondence between the parties, the compensation was not paid to the petitioners and ultimately, a notice came to be issued to the petitioners that the authorities intended to withdraw from acquisition. The said notice came to be challenged by the petitioners by way of the above writ petition, which was finally heard and disposed of by us by Judgment and Order dated 17-06-2009. In the context of the issue raised in the above Notice of Motion, it would be relevant to extract the operative part of the said judgment, which reads as under : “Considering the aforesaid aspect of the matter, this petition will have to be allowed and is accordingly allowed. The order passed under Section 48(1) of the Act, is quashed and set aside. The respondents are now directed to make the necessary payment to the petitioners as per the award dated 30th May, 1995, within a period of three months along with interest as contemplated under the provisions of the Act. Rule is made absolute accordingly. There shall be no order as to costs. At this stage, the learned counsel for the respondent Nos.5 and 6 requested that this order may be stayed for some time. ssp 4 NMW 413 of 2010 The order passed by this Court is stayed for a period of two months from today. 3. The matter was thereafter, carried to the Apex Court by way of SLP No.23536 of 2009, which came to be dismissed in limine by the Apex Court on 05-10-2009. Thereafter, in view of the procrastination on the part of the authorities to comply with the said judgment and order, in spite of the SLP being dismissed, the petitioners were constrained to file two Contempt Petitions, one of which was pending when the SLP was filed and one of which being (L) No.26 of 2010, which was filed sometime in April, 2010. It is in the course of hearing of the said Contempt Petition, that the payment of compensation was sought to be made to the petitioners. The said compensation amounted to Rs.64,81,72,626/-. The said compensation was offered in the said Contempt Petition on 28th April, 2010. Cheques have been accepted by the petitioners under protest subject to their right to claim appropriate compensation as per their entitlement in law. 4. It is the grievance of the petitioners that they are entitled to interest on solatium under Section 34 of the Land Acquisition Act. It is further grievance of the petitioners that though the said solatium has been claimed vide letter at Page 156 of the paper book in W.P.No.1855 of 2001, the Collector who is obligated under the provisions of the said Act, to ssp 5 NMW 413 of 2010 grant compensation inclusive of statutory allowances and interest thereon, has failed to grant them the said interest on solatium. To buttress the said submission, the learned counsel for the petitioners relied upon a judgment of the Apex Court in the case of Sunder V/s. Union of India (2001) 7 SCC 211. The said judgment is of the Constitution Bench of the Apex Court, to whom the matter was referred to in view of the divergence of views between co-equal Benches on the aspect of interest on solatium. In so far as the present issue is concerned, Para Nos.26 and 27 of the said report are material and are reproduced herein under : - “26. We think it useful to quote the reasoning advanced by Chief Justice S.S.Sandhawalia of the Division Bench of the Punjab and Harayana High Court in State of Harayana V/s. Kailashwati (SCC p 119 para 10). Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act, forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value along and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore, would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorise the grant of interest on solatium as well. 27. In our view, the aforesaid statement of law is in accord with the sound principles of interpretation. Hence, the person entitled to get interest on the aggregate amount including solatiu. The reference is answered accordingly.” ssp 6 NMW 413 of 2010 5. In the context of the Sunder’s case (supra), the subsequent judgment of the Supreme Court in the case of Gurpreet Singh V. Union of India, (2006) 8 SCC 457, on which reliance was sought to be placed by the learned counsel for respondent No.1, would also have to be referred to. The said judgment is also of a Constitution Bench of the Supreme Court, upon a Reference made to it on the following questions. “What is the rule of appropriation in execution of money decrees? Is the rule the same in the case of an award-decree under the Land Acquisition Act or, is there anything in the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act (68 of 1984) making that rule inapplicable or not wholly applicable? Para No.54 of the said report, on which some emphasis was sought to be laid on behalf of the respondents herein, so as to contend that the petitioners were not entitled to interest on solatium, would have to be reproduced : - “54. One other question also 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 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 ssp 7 NMW 413 of 2010 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 ration of Sunder and say that the compensation awarded 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 claim 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 (19-09-2001) and not for any prior period. We also clarify that this will not entail any reappropriation 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. 6. The learned counsel for the petitioners thereafter, drew our attention to an unreported decision of the Apex Court in Civil Appeal Nos. 4988-5047 of 2010 and companion Civil Appeals, in the matter of Land Acquisition Officer & Asstt. Commnr & Anr., V/s. Shivappa Mallappa Jigalur and Ors. By the said decision, the Apex Court has in a manner explained the Constitution Bench Judgment in Gurpreet Singh’s case and has considered the various eventualities in which the claimants would and ssp 8 NMW 413 of 2010 would not be entitled to the payment of interest on solatium. Para 13 of the said unreported judgment is material for the purposes of the present controversy and is reproduced herein under : - “13.We are unable to accept the submission and in our view, the decision in Gurpreet Singh has no application to the facts of the present case. In paragraph 54 of the decision in Gurpreet Singh’s case, the Court was considering the scope of execution proceedings and the limitations of the execution court. The three lines relied upon by Mr.Hegde must be read and understood in the context of what is said earlier. The Court clearly said that the execution Court could not go beyond the decree. In the event, the claim of interest was rejected expressly or by necessary implication in the decree, it would not be permissible for the execution court to grant interest relying upon the decision in Sunder. But, even then the Court went on to clarify that if the award of the reference court or the appellate court was silent on the issue of solatium and interest then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded would include solatium and in such an event interest on the amount could be directed to be deposited in execution. The decision in Gurpreet Singh’s thus, actually enlarged the scope of execution proceeding, in a certain way, on the basis of the decision in Sunder. Coming now to the passage specially relied upon by Mr.Hegde, we do not have the slightest doubt that the reference to “closed executions” does not mean cases in which the main proceedings arising from the landowner’s claim for enhanced compensation remains pending before the civil court or at the appellate stage. It may sometimes happen, as illustrated by this case that the award of the Collector or the decree of the civil court is put to execution and payments are made in terms of the award or the decree of the civil court and in that sense the award or the decree is satisfied. Nevertheless, an appeal against the award or the decree of the civil court may still remain pending either before the High Court or even before this Court. In appeal, ssp 9 NMW 413 of 2010 the superior court may enhance the compensation which would lead to enhancement of solatium and consequently the interest on the additional amounts of compensation and solatium. In such a situation, the landowner/claimant would be bound to go back to the execution court for realization of the additional amounts in terms of the modified decree. In such cases, the execution proceedings cannot be deemed to be closed and neither was it the intent of the observations in paragraph 54 of the decision in Gurpreet Singh. Coming now to the stipulation that any interest on solatium can only be granted for the period subsequent to September, 19, 2001, the date of the decision in Sunder, it is evident that this again, is a limitaiton on the power of the execution Court. The direction is actually referable to those cases in which the award of the reference court or the appellate court being silent, it is left open to the execution court to give direction for the deposit of interest on solatium. In such cases, the reference court can ask for interest only for the period subsequent to September 19, 2001. The direction in no way circumscribes the power of the Court dealing with the main proceeding relating to enhancement of the compensation. The matter can be looked at from another angle. The appeal being the continuation of the original proceedings, in the facts of the cases in this sub-group, there can be no question of accrual of interest only after the date of the decision in Sunder. At this stage, it may be recalled that the civil court had awarded solatium @ 30% and interest @ 9% for the first year and @ 15% from second year onwards till the date of realization. The State’s appeal against the judgment of the civil court was dismissed. Thus, the direction for payment of solatium with interest at the rates indicated had become final. The High Court enhanced the rate of compensation. This would inevitably lead to an increase in the amount of solatium and consequently in the amount of interest on the unpaid amount of solatium. Thus, looked at from any point of view, the question of payment of interest subsequent to September 19, 2001 does not arise. 7. The learned counsel for the petitioners Mr.Anturkar, ssp 10 NMW 413 of 2010 submitted that whilst disposing of the said writ petition No.1855 of 2001 by a judgment and order dated 17-06-2009, what was contemplated by this Court was also the interest on solatium, though it has not been so stated in terms. The learned counsel further contended, relying upon the judgment in Shivappa’s case (supra), that this Court should decide the entitlement of the petitioners to interest on solatium under Section 34 of the said Act, and may not relegate the petitioners to the Collector for the said purpose. 8. Per contra, it is submitted by the learned counsel Mr.Srinivasan, appearing for respondent No.1 that though, the matter was carried to the Apex Court by the respondents by way of an SLP wherein the petitioners had appeared, no such grievance was made by the petitioners before the Apex Court, nor any such grievance was made while accepting compensation during the course of the hearing of the Contempt Petition (L) No.26 of 2010 and therefore, the petitioners are now estopped from raising the claim for interest on solatium. The learned counsel relying upon the averments made in the affidavit-in-reply filed by the respondent No.1, would contend that the petitioners if aggrieved by the alleged non-payment of interest on solatium, ought to have invoked the remedy provided under Section 18 of the said Act and that the Notice of Motion filed for relief claimed, is not maintainable. ssp 11 NMW 413 of 2010 9. We have heard the rival contentions. It is required to be noted that though, the possession of the lands was obtained from the petitioners in the year 1942 and though, an Award was passed on 30-05-1995, the compensation was not paid to the petitioners and in fact, the authorities intended to withdraw from acquisition which resulted in the petitioners filing the above petition, which was disposed of by our judgment and order dated 17-06-2009 and it was ordered that the respondents could not withdraw from acquisition and that the petitioners would be entitled to payment of compensation, as also interest in terms of Statute. It cannot be gainsaid that the solatium is a part of the compensation offered to the deprived land holder and if interest is payable on account of the eventualities contemplated under Section 34 of the said Act, then obviously the deprived land holder would be entitled to the same. It is infact, the statutory duty of the Collector under the said Act, to compute and pay compensation in terms of the said Act and failure to compute and pay the statutory compensation/allowance, in our view, would amount to a failure of duty on his part. 10. In the instant case, it is required to be noted that the petitioners have been paid compensation in terms of the Award dated 30-05-1995, pursuant to the directions issued in our said judgment and order dated 17-06-2009. If the petitioners are entitled to be paid interest ssp 12 NMW 413 of 2010 on the amount of solatium, that would have to be done so by the Collector, taking into consideration the facts and circumstances of the present case. It is not in dispute that the petitioners have been paid solatium which is a part of the compensation of Rs.64,81,72,626/-, which was paid to the petitioners. However, the grievance of the petitioners is as regards the non-payment of interest to them on the said amount of solatium. The Apex Court in Sunder’s case (supra) has in terms held that if the land holder satisfies the requirements of Section 34 of the said Act, he would be entitled to payment of interest on the amount of solatium, which is a component of compensation. Though, a slightly different note was struck by the Supreme Court in Gurpreet Singh’s case (Supra), the same was in the light of the Reference that was before it. It cannot be said that Sunder’s case (Supra), is no more good law, infact the Apex Court spelt out the eventualities in which Sunder’s case would be applicable. As mentioned hereinabove, Gurpreet Singh’s case has been explained by the Apex Court in its subsequent unreported judgment in the case of Shivappa (Supra) and in our view, there is no dilution of the ratio laid down in Sunder’s case (Supra). 11. In so far as the submission of Mr.Anturkar that this Court itself should decide the petitioner’s entitlement and should not remand the matter back to the Collector, in our view, it is not possible to accept the ssp 13 NMW 413 of 2010 said submission, the entitlement of the petitioners for interest on solatium, would have to be considered considering the facts and circumstances of the present case and in the light of the law laid down by the Apex Court in the judgments cited supra. The Collector is statutorily obliged to decide the entitlement of the petitioners and that if held entitled, to quantify the amount of interest that would be payable to the petitioners in the context of the compensation, which has already been paid to them under the Award. 12. Now coming to the submission of learned counsel Mr.Srinivasan that the petitioners ought to have invoked the remedy under Section 18, we are afraid the said submission does not impress us in the facts and circumstances of the present case, wherein the petitioners have been deprived of compensation for almost a period of more than 15 years. The fact that the petitioner No.1 is 86 years old, also cannot be lost sight of. It is also not a case where the petitioners have any grievance or are claiming any enhancement in the market value, as determined by the Land Acquisition Officer. This is a case where the Land Acquisition Officer has failed to discharge his statutory duty to the extent of determining the interest under Section 34 that would be payable to the petitioners, namely whether the petitioners are entitled to payment of interest on the solatium which has been paid to them. We are of the view that this Court in ssp 14 NMW 413 of 2010 exercise of its Writ Jurisdiction, can obviously intervene in a case where the Collector/Special Land Acquisition Officer has failed to carry out his statutory duty. We make it clear that we have not expressed any opinion on the petitioner’s entitlement to interest on solatium and it would be for the Collector/Special Land Acquisition Officer to decide in the facts and circumstances of the case, whether the petitioners would be so entitled and if entitled, to quantify the said amount. The submission of the learned counsel Mr.Srinivasan that no such claim was made for interest on solatium whilst arguing the earlier writ petition No.1855 of 2001 or in the Contempt Petition, is in our view, mis-founded in the light of the statutory provisions, such a submission cannot be countenanced. Moreover, it is required to be stated that the petitioners have infact made claim for interest on solatium in terms of letter dated 21-12-1998 at page 156 of WP No.1855 of 2001 and have also accepted the amount of compensation offered to them, during the course of the hearing of the said Contempt Petition (L) No.26/2010, under protest. In the light thereof, we do not find any merit in the said submission advanced on behalf of the respondents. 13. We therefore, dispose of the Notice of Motion seeking clarification, by the following directions. (i) The concerned Special Land Acquisition Officer is directed ssp 15 NMW 413 of 2010 to hear the petitioners and the representative of respondent No.1 and decide the issue of the entitlement of the petitioners for interest on solatium as contemplated under Section 34 of the Act. (ii) The petitioners and the respondents would be entitled to rely upon such material including judgments in support of their respective cases. (iii) The parties to appear before the Special Land Acquisition Officer, on 20-12-2010 and the SLAO thereafter, to decide the said issue within a period of six weeks of 20-12-2010. The parties are directed to cooperate in the disposal of the said issue, as the matter has already had a chequred history since the year 1995. The learned AGP to inform the concerned S.L.A.O., and also send a copy of the order to him. 13. In view of the above order, the learned counsel for the petitioners seeks withdrawal of Writ Petition No.1912 of 2010 and further seeks liberty to file a fresh petition by deleting