IN IN IN THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA THE HIGH COURT OF BOMBAY AT GOA CIVIL REVISION APPLICATION NO.44 OF 2001 1. The Government of Goa, through its Chief Secretary, Secretariat,Panaji-Goa; 2. The Dy. Collector South-II & Land Acquisition Officer, South Goa, Margao-Goa............... PETITIONERS VERSUS 1. Ivo Agnelo Santimano Fernandes, r/o. House No.391, Carvota, Loutolim, Salcete-Goa; 2. Herbert Santimano Fernandes, r/o. House No.391, Carvota Loutolim, Salcete - Goa; 3. Nancy Fernandes Vieira Menezes, r/o Aquem Alto, Margao - Goa; 4. Filomena Vieira Menezes, r/o. Aquem Alto, Margao - Goa; 5. Celina Barbosa Fernandes, w/o Decree Holder No.1, r/o House No.391, r/o Carvota, Loutulim, Salcete - Goa; 6. Ramira Fernandes, r/o House No.391, Carvota, Loutolim, Salcete - Goa ................... RESPONDENTS. ----- Mr. V.P. Thali, Addl. Advocate General, with Mr. H.R. Bharne, Government Advocate, for the Petitioners. Mr. M.P. Almeida, Advocate for the Respondents. ----- CORAM CORAM CORAM : S. RADHAKRISHNAN,J. : S. RADHAKRISHNAN,J. : S. RADHAKRISHNAN,J. DATED : AUGUST 16, 2002. - 2 - ORAL JUDGMENT By this Civil Revision Application, the State Government of Goa through its Chief Secretary, has challenged the Order dated 18th August,2000 passed by the learned District Judge, South Goa, at Margao in Execution Application No.3 of 1998, contending that the learned District Judge, South Goa in the said Execution Application has committed an error apparent on the face of it while directing the Applicant to pay interest as indicated in Para 6 of the Order. The learned Counsel for the Petitioners does not dispute the liability of the State to pay interest at the rate of 15% from 1st April 1996 to 8th April 1996. What is being disputed is the award of interest subsequent thereto, i.e. from 9th April 1996 to 7th January 2000. 2. The brief facts in the above matter are: A Notification under Section 4 of the Land Acquisition Act was issued on 6th September, 1984. Finally an award was passed. The original Claimants were Respondents No.1, 2, 3 and one Ana Conceicao Antonieta Santimano Fernandes and after the Reference Court made the award the said Ana died and in lieu thereof the present Respondents No.4, 5 and 6 in this Civil Revision Application are impleaded - 3 - as legal heirs of the said deceased who was one of the original Claimants in the said Reference Application. The enhanced award under Section 18 of the Land Acquisition Act was passed on 19th August, 1992 whereby it was held that the Claimants were entitled to severance charges at the rate of 20% of the said rate of 45 per square metre in respect of non-acquired portion of land with an area of 37,731 square metres. Similarly it was also held that the Petitioners were entitled to compensation with regard to the compound wall existing along the boundary of the part of the acquired land with a total length of 610 metres, at the rate of Rs.52/- per running metre. 3. On 11th March 1996, the said Ana Conceicao Antonieta Santimano Fernandes alias Ida Santimano Fernandes expired leaving a will dated 19th April, 1995 whereby the said Ana Conceicao had bequeathed the additional compensation to her son Herbert Santimano Fernandes, Respondent No.2. 4. In pursuance of the said enhancement awarded by the District Court, the State Government issued four cheques dated 29th March 1996 amounting to Rs.2,06,426/- in favour of Ivo Agnelo Santimano Fernandes, i.e. Respondent No.1 herein, another - 4 - cheque for Rs.2,06,437/- in favour of Herbert Santimano Fernandes, Respondent No.2 herein, a third cheque in favour of Ana Conceicao Antonieta Santimano Fernandes for a sum of Rs.2,06,436/- and the fourth cheque in favour of Nancy Fernandes for a sum of Rs.2,06,437/-, being Respondent No.3 herein. It may be noted that the aforesaid cheques drawn in favour of Respondent No.1 and Respondent No.2 were duly collected by both Respondents No.1 and 2. However, Respondent No.3 Nancy did not collect the cheque though issued in her favour for a sum of Rs.2,06,437/-. Similarly, even Ana Conceicao Antonieta did not collect the cheque drawn in her favour for a sum of Rs.2,06,436/- inasmuch as the said Ana Conceicao had already expired on 11th March, 1996 whereas the cheque was dated 29th March, 1996. It may be noted here that none of the Respondents, i.e. Respondents No.1, 2 nor Respondent No.3, or even the legal heirs of the said Ana Conceicao informed the State i.e. the State of Goa that the said Ana had died on 11th March, 1996 or that the said Ana had bequeathed her share of additional compensation payable by the Government in favour of Herbert by will dated 19th April, 1995. 5. The State Government, after preparing the aforesaid cheques, on 1st April 1996 issued a - 5 - letter to Ana Conceicao Antonieta Santimano Fernandes alias Ida Santimano Fernandes as well as Respondents Nos. 1 to 3 to collect their respective cheques on 8th April 1996. However, neither Nancy nor the legal heirs of Nancy collected the cheques and no one also informed the State regarding the death of the said Ana Conceicao occurred on 11th March, 1996. 6. Finally, the Execution Application was filed by Ivo Agnelo Santimano Fernandes, Herbert Santimano Fernandes for recovery of the balance amount along with interest accrued thereon. This Execution Application No.3 of 1998 was filed before the learned District Judge, South Goa, Margao who passed the Order on 18th August,2000 whereby the learned Judge has directed as under:- "6. The decree holders have not contested the figures mentioned in the reply, Exh. 20 dated 15/7/2000 filed by the judgment debtors, which show that an amount of Rs.8,80,372/- was due and payable to them upto 31/3/96. Decree holders nos. 1 and 2 would be therefore, entitled to receive further interest at the rate of 15% from 1/4/96 to 8/4/96 on the said sums of Rs.2,06,436/-and Rs.2,06,437/- respectively. Likewise, decree holder no.1 would also be entitled to receive further interest at the rate of 15% on Rs.60,000/- from 1/4/96 to - 6 - 7/1/2000 and decree holder no.2 would also be entitled to receive further interest at the rate of 15% on Rs.3,52,873/- from 1/4/96 to 7/1/2000. Judgment debtors are hereby directed to pay the same to the said decree holders nos. 1 and 2, respectively." 7. The learned Addl. Advocate General, who is appearing on behalf of the Petitioners herein, strongly contended that the learned District Judge had committed an error on the face of it inasmuch as a bare perusal of Sections 28 and 34 of Land Acquisition Act read with Order XXI, Rule 1 of Code of Civil Procedure, 1908, would clearly indicate that the State was not liable to pay any additional interest as directed by the learned Judge except for the period from 1st April 1996 to 8th April 1996. The contention of the learned Addl. Advocate General is that two of the original Claimants, in fact, pursuant to the communication by the Petitioners had promptly collected their respective cheques, being Ivo Agnelo Santimano Fernandes a sum of Rs.2,06,476/- and Herbert Santimano Fernandes a sum of Rs.2,06,437/-. However, the third Claimant, Nancy Fernandes, though was communicated that a cheque for Rs.2,06,437/- was kept ready, she did not come to collect the same. Similarly, Ana Conceicao Antonieta Santimano Fernandes also did not collect the cheque for a sum - 7 - of Rs.2,06,437/-. The learned Addl. Advocate General also pointed out that the Petitioners were not at all informed of the death of the said Ana Conceicao and also they were not informed that pursuant to the Will dated 19th April,1995, the additional compensation payable to Ana Conceicao was bequeathed by her to Herbert Santimano Fernandes. 8. The learned Addl. Advocate General pointed out that the provisions of Sections 28 and 34 of the Land Acquisition Act, 1894 read as under:- " 28. Collector may be 28. Collector may be 28. Collector may be directed directed directed to pay interest on to pay interest on to pay interest on excess excess excess compensation.- compensation.- compensation.- If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court : Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof - 8 - which has not been paid into Court before the date of such expiry. 34. 34. 34. Payment of interest.- Payment of interest.- Payment of interest.- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited: Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry." 9. Apart from the above, the learned Addl. Advocate General also pointed out the provisions of Order XXI, Rule 1 of the Code of Civil Procedure, 1908, wherein the relevant portion reads as under:- "1. 1. 1. Modes of paying money Modes of paying money Modes of paying money under under under decree.- decree.- decree.- (1) All money, payable under a decree shall be paid as follows, namely:- (a)... ... ... ... (b) out of Court, to the decree-holder by postal money order or through a bank, or by any other mode wherein payment is evidenced in writing; or - 9 - (c) ... .... .... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... (5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment : Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be." 10. The learned Addl. Advocate General, therefore, contends that as far as the State is concerned, they had actually tendered and paid the money to the original Claimants by drawing four cheques for the amount mentioned hereinabove with regard to the four original Claimants by cheques dated 29th March, 1996 and also by communicating by letter dated 1st April 1996 that the Claimants ought to come and collected their respective amount payable under the cheques on 8th April 1996. The learned Addl. Advocate General also pointed out that in pursuance thereof, in fact, the Respondents - 10 - Nos. 1 and 2 had promptly come and collected the amounts payable whereas Ana Conceicao as well as Nancy did not collect the amount payable to them. Therefore, the contention of the learned Counsel is that once the State Government prepares a cheque and keeps it ready for the Claimants to come and collect, there is no duty cast on State to deposit the same in the Court unless and until the State is informed that Ana could not claim the amount and also that Ana had bequeathed the said amount to Herbert etc. There is no dispute at all that such a notice was duly sent to Nancy and Ana. There is also no dispute that the said Nancy as well as the legal heirs of Ana Conceicao had not communicated to the Petitioners regarding the death of Ana Conceicao as well as the fact that the amount due to Ana Conceicao was bequeathed to Herbert. The learned Addl. Advocate General stressed on the proviso to Order XXI, Rule 1 which clearly mentions that if a decree-holder refuses to accept or avoids to accept the payment made through a Bank, the interest shall cease to run from time on which the money was tendered to him through Bank. To put in other words, if the decree-holder either refuses to accept the amount or avoids its acceptance when the same is tendered to him, then any payment of interest thereon ceases to run from that date. Therefore, - 11 - the contention of the learned Addl. Advocate General is that the amount was duly calculated and the cheques were also drawn in favour of the said Nancy as well as Ana Conceicao which were not collected at all and now the Respondents herein cannot turn round and state that the State is liable to pay interest thereon from 1st April 1996 till 7th January 2000 which is the date on which the aforesaid amount payable to Ana Conceicao was paid over to Herbert as per the Will and similarly the amount payable to Nancy also was collected by Respondents No.1 and 2 herein on her behalf. Therefore, the contention of the learned Addl. Advocate General is that as far as the Petitioner State is concerned, they had kept the amount of interest payable ready from 29th March 1996 and also had asked the original Claimants to come and collect the same from 8th April,1996. Therefore, from 8th April 1996 the Petitioners are not liable at all in any manner whatsoever to pay any interest as sought to be awarded by the learned District Judge in the said Execution Application. 11. The learned Addl. Advocate General referred to the following Judgments in support of his contention: - 12 - Jaiwant Jaiwant Jaiwant Laxman P. Sardesai and etc. etc. Laxman P. Sardesai and etc. etc. Laxman P. Sardesai and etc. etc. v. v. v. Government of Goa, Daman and Diu and another Government of Goa, Daman and Diu and another Government of Goa, Daman and Diu and another etc. etc. etc. (AIR 1987 Bom. 214) (AIR 1987 Bom. 214) (AIR 1987 Bom. 214) wherein this Court was interpreting the language of Section 28 of the Land Acquisition Act with regard to grant of interest. Relying on the Judgment of the Hon’ble Apex Court in Raghubans Raghubans Raghubans Narain Singh v. Uttar Pradesh Government Narain Singh v. Uttar Pradesh Government Narain Singh v. Uttar Pradesh Government (AIR (AIR (AIR 1967 SC 465), 1967 SC 465), 1967 SC 465), the categorical view of the Full Bench is as under:- "In view of the dictum laid down by the Supreme Court, it is obvious that it is not obligatory on the Court to award interest either under S.28 or the enhanced interest under the amended proviso, though it must be made clear that the discretion to be exercised is judicial in nature and not arbitrary. In normal course the claimant is entitled to the award of interest under S.28 of the Act and also to enhanced interest under the amended proviso to S.28, and unless specific case is made out, the claimant could not be deprived of the advantage. It should not be overlooked that the proceedings in acquisition are compulsory in nature and the claimant must be awarded all the benefits provided under the statute unless it is shown by the acquiring authority that the claimant has disentitled himself to avail of the same." 12. To put in other words, the Full Bench - 13 - was of the view that the power to award interest is discretionary. 13. Under the aforesaid facts and circumstances, the learned Addl. Advocate General submits that ex facie reading the provisions of Sections 28 and 34 of the Land Acquisition Act and also of Order XXI, Rule 1 of the Code of Civil Procedure, 1908, it is clear that the Claimants in this matter cannot insist upon that the Petitioners State ought to deposit the amount in Court and that the Petitioners State is not entitled to pay the amount directly to the Claimants and that must only deposit the amount in Court. The learned Addl. Advocate General submitted that, as clearly indicated above, the Petitioner State duly informed to the original Claimants of the fact that cheque dated 29th March 1996 were kept ready and they were all requested to collect the same on 8th April 1996 but except for Respondents No.1 and 2 i.e. Ivo Agnelo and Herbert, others did not collect the same. The non-collection cannot be faulted upon and the Petitioners cannot be foisted with additional liability of interest from 8th April 1996. Also the learned Addl. Advocate General admitted that the Petitioner State will pay whatever amount of interest due and payable from 1st April 1996 to 8th - 14 - April 1996 and not subsequent thereto inasmuch as the Petitioner was not at fault and it was purely the Respondents’ fault in not collecting the amount when the same was made available to them. In these circumstances, the learned Addl. Advocate General submitted that the learned District Judge had committed a patent error of law in not construing the aforesaid provisions of Land Acquisition Act i.e. Sections 28 and 34 in the context of Order XXI, Rule 1 of the Code of Civil Procedure,1908, in that manner. 14. The learned Counsel appearing on behalf of the Respondents, Shri Almeida, strongly contended that Section 28 makes it abundantly clear that the amount has to be only paid in Court and the Petitioner State had committed a default and they cannot escape the liability to pay the interest. The learned Counsel Shri Almeida pointed out that Section 28 contemplates payment of such excess in the Court whereas Section 34 contemplates that the amount can be paid or deposited. Therefore, the contention of the learned Counsel is that as far as Section 28 is concerned, the interest has to be only paid in Court and otherwise there is liability on the part of the State to pay interest. In that behalf, Shri Almeida also brought to my notice the - 15 - provision of Section 53 of the Land Acquisition Act, which reads as under:- "53. Code of Civil Procedure to apply to proceedings before Court.- Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act." 15. According to the learned Counsel, the provision of Order XXI, Rule 1 of the Code of Civil Procedure cannot come in the way of the contention of the Respondents inasmuch as the said provision is inconsistent with the provisions of Land Acquisition Act, 1894, that is to say, the learned Counsel contended that the bar with regard to grant of interest as provided under Order XXI, Rule 1 proviso will not apply in the instant case and their liability is purely covered under Section 28 of the Land Acquisition Act. The learned Counsel strongly contended that the learned District Judge had not committed any error apparent on the face of the record and had rightly awarded the interest. 16. Shri Almeida referred to a Judgment of the Hon’ble Apex Court in Sunder v. Union of Sunder v. Union of Sunder v. Union of - 16 - India India India [2001(7) Supreme 37] [2001(7) Supreme 37] [2001(7) Supreme 37] and placed strong reliance on Paragraphs 13, 14 and 15 which read as under:- "13. Question of payment of interest would arise only when the compensation is not paid or deposited on or before the date of taking possession of the land. It is inequitable that the person who is deprived of the possession of the land, on account of acquisition proceedings is not given the amount which law demands to be paid to him, any delay thereafter would only be to his detriment. There must be a provision to buffet such iniquity. It is for the purpose of affording relief to the person who is entitled to such compensation when the payment of his money is delayed that the provision is made in section 34 of the Act. That section is extracted below: "34. Payment of Interest.- Payment of Interest.- Payment of Interest.- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited. Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum - 17 - shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry." 14. When the court is of opinion that Collector should have awarded a larger sum as compensation the court has to direct the Collector to pay interest on such excess amount. The rate of interest is on a par with the rate indicated in Section 34. This is so provided in Section 28 of the Act which is extracted below: "If the sum which, in the opinion of the court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into court. Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on - 18 - the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.’ 15. Thus interest has to accrue as per Section 34 and Section 28 of the Act on the compensation awarded, whether it is as per the award initially passed by the Collector or by the Court later. What is meant by "the compensation" awarded ? Both sides cited different definitions for the word "compensation" as contained in different lexicographys. In "Words and Phrases" (Permanent Edn.) different connotations of the word "compensation" have been delineated. One of them relates to the law of eminent domain, where compensation means recompense in value, a quid pro quo, and must be in money. Another is relating to the property taken for public use. Then