IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 CRP.No. 196 of 2009() --------------------- AGAINST THE ORDER DATED 15/10/2008 IN EP 152/96 IN LAR.427/1988 of I ADDL.SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): --------------------- M/S PERIYAR AND PAREEKANNI RUBBERS LTD., PALAI, REPRESENTED BY ITS DIRECTOR, MR. THOMAS MATHEW. BY ADV. SRI.JOSEPH KODIANTHARA SRI.MATHEWS K.UTHUPPACHAN SRI.TERRY V.JAMES RESPONDENT(S): --------------- STATE OF KERALA, (SPECIAL TAHSILDAR LA) PVJ PROJECT, PERUMBAVOOR. GOVERNMENT PLEADER ADV.SRI.M.R.SABU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/04/2010, ALONG WITH CRP NO. 199 OF 2009 CRP NO. 205 OF 2009 CRP NO. 208 OF 2009 CRP NO. 201 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J ------------------------------------- C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 -------------------------------- Dated this the 7th day of April 2010 ORDER The revision petitioner in all these revisions are the same, a Public Limited Company, which is the decree holder in five decrees passed in land acquisition references and executed before the Sub Court, Ernakulam. Though separate orders have been passed by the execution court in execution of the decrees as common questions of law are involved all these revisions, after being heard together, they are disposed under this common order. The disputes involved in these revision lie within the narrow compass. In the acquisition of land from the revision petitioner company the land acquisition authorities adopted two methods of valuation for fixing the value of the land. In respect of the dry land covered by the acquisition the land value was taken as the basis of the assessment and in respect of the rubber plantation covered by the acquisition capitalization of the rubber trees fixing value of such trees was adopted to fix the market value of the land. Accordingly awards were passed in respect of the land covered in each of the cases. Enhanced compensation was awarded by the reference court after taking evidence of both sides. There was an appeal from one of the decrees passed, ie, in L.A.R No.463 of 1988 before this C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers court. In that appeal enhanced compensation awarded by the reference court from that decree was reduced. The limited question that arose in execution was with respect to the solatium payable on the compensation awarded for the acquired land. The execution court was of the view that under the terms of the decree solatium was payable only on the enhanced value of compensation provided by the court in respect of the land separately valued, and not in respect of the land comprising the trees though enhanced compensation of a higher value than what was fixed by the land acquisition authorities was awarded with respect of the land comprising the trees as well by the reference court. In that view of the matter the execution court in all these cases has held that the claimant/decree holder company is entitled to claim solatium only in respect of the enhanced compensation provided for the land alone which has been separately fixed, but, not in respect of the trees (land comprising such trees) which was separately fixed under the reference court in its decree. The learned Govt. Pleader fairly conceded that the execution court was not correct in holding that solatium was payable only for the enhanced compensation provided for the land alone but not in respect of the enhanced compensation provided for the land comprising the trees, where the value of the C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers trees had been fixed for the purpose of valuation of the land. It is submitted that the land acquisition authorities have fixed the value of the land comprising the trees on the basis of the capitalisation method with reference to the value of the trees. Statement prepared by the land acquisition officer has also been brought to my notice showing that the claimant was awarded compensation in respect of the land for the entire area, but, adopting two different methods, one for the dry land and the other for the rubber plantation with reference to the value of the trees. So it goes without saying that the claimant/decree holder in the present case is entitled to get solatium for the enhanced compensation awarded for the market value of the entire land as adjudged by the court, but, and in one case ie, L.A.R 463 of 1988 as modified in appeal by this court. The impugned order passed by the execution court in such circumstances is liable to be set aside and the case to be remitted for examining afresh the actual amount due on solatium on the enhanced compensation to the claimant company. 2. In the quantification made by the court below under the impugned order, it is submitted, interest has been calculated only on the enhanced compensation awarded for the bare land, but not the land covered by the trees and so much so a C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers reascertainment of the actual amount due with interest has to be made afresh. In the given facts of the case another question may also arise for consideration with respect to the entitlement of the claimant/decree holder on the interest due on the sum as solatium. Whether the claimant was entitled to interest on solatium was not considered when adjudication of the enhanced compensation was made in four among five of the references covered by the proceedings. In L.A.R No.463 of 1988 though the reference court did not consider that question, it is submitted, in appeal this court has held the claimant is not entitled to interest on solatium. So much so, the claimant cannot claim interest on solatium in that case L.A.R No.463 of 1988)as there is a conclusive and final decision holding that on the compensation awarded under that decree he is not entitled to claim interest on solatium. With respect to his entitlement for interest on solatium on the enhanced value in the other decrees covered by L.A.R No.427/1988, 434/1988, 456/1988 and 458/1988 it is necessary to examine such claim with reference to the law laid down by the apex court in “Gurpreet Singh v Union of India” (2008(1) KLJ (SC) 463). In the above decision, the apex court, considering the entitlement of a decree holder/claimant to claim interest on solatium in execution of the decree granting enhanced C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers compensation by the reference court has held thus: 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 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 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 (19.09.2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decree holder”. (emphasis supplied) The apex court has clarified the position as above making it clear that it was done under the plenary powers enjoyed by that court under Article 141 and 142 of the Constitution of India indicating that all courts in all pending execution proceedings have to consider and apply the principle evolved as the law applicable to be followed. So much so, in the present case the claimant/decree holder as indicated earlier is entitled to claim C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers interest on solatium, ie, in all cases except L.A.R No.463/1988 in which the claim of interest on solatium was considered and negatived in appeal by this court. But such interest on solatium in the above cases is allowable only from 19.09.2001, the date of judgment in Sunder's case. Another question may also have to be adverted before closing of the proceedings as it may otherwise give rise to complications if not referred to, in the computing of the amount due to the decree holder giving credit to interest on solatium. In cases of this nature in execution proceedings care has to be taken that the interest on solatium from the date of pronouncement of Sunder's case(19.09.2001) has to be calculated under separate head and it cannot be taken together with the other claims as clarified by the appellate court that reappropriation or fresh appropriation is not to be made with respect to such claim. So much so, in arriving at the actual amount due to the judgment debtor after following the appropriation method as directed in Gurpreet Singh's case and finding out the actual sum due to the decree holder it is necessary to calculate the interest on solatium from 19.09.2001 on the solatium fixed separately and then only it has to be added to the amount arrived at. The clarification made by the apex court with respect to the sum payable towards interest on C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers solatium from the date of pronouncement on 19.09.2001 will not entail reappropriation or fresh appropriation by the decree holder with reference to the part payments/deposits has to be taken into account by the court in ascertaining the amount due to the decree holder. The execution court is directed to examine the claims raised in the execution petition taking note of the observations as above. 3. The learned Govt. Pleader submitted that in the decree passed in this cases an apparent mistake has crept in which require to be rectified by moving a review petition as provided by law. Value of the rubber tree was fixed in all these cases by the reference court at Rs.1,802/- per tree and on that basis a decree was passed awarding enhanced compensation with respect to the trees in favour of the claimant. However in the operative portion of the decree, it is submitted by the learned Govt. Pleader, the amount already paid towards the trees which varied in each case with respect to the age and yield of the trees were not at all taken into account and so much so it has given rise to a duplication of the claim compelling the State to pay the amount which had been awarded under the award towards the trees again on the basis of the valuation made by the reference court. It is further submitted that the mistake can be easily C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers rectified by making suitable modification in the decree providing for reduction of the amount quantified towards the value of the trees, whatever be its value with reference to age and yield, which had already been paid under the award to the claimant. The learned counsel appearing for the claimant fairly conceded that there is some force in the submission made by the learned Government Pleader. But it is pointed out that if proceedings are taken for decree correction to effect the rectifications as suggested by the Govt. Pleader it would further delay and hamper the release of the compensation amount to the claimant which is stated to be under deposit of the court. The learned counsel therefore submitted that the claimant would file a statement giving credit to whatever amount that has been paid towards the rubber trees in the award by the land acquisition authorities and in the execution after giving adjustment to that amount the balance compensation alone will be applied for. Orders being passed by the court on such statement satisfaction of the decrees can also be made by the claimant, is the submission of the learned counsel for the claimant/ revision petitioner. Submission made as above is recorded. In case a statement is filed by the claimant/decree holder in the lines indicated by the learned counsel giving credit to the amount C.R.P Nos.196, 199, 201, 205 AND 208 OF 2009 Page numbers already received towards the valuation of the trees fixed by the land acquisition authorities in the enhanced compensation for such trees fixed by the reference court the execution court can proceed with the execution without awaiting for orders on proceeding for rectification of the decree, and pass appropriate orders on quantification of the amount and its release, recording satisfaction of the decrees in the case. Subject to the above directions/observations, the revisions are disposed of. Parties are directed to appear before the court below on 24/05/2010. Sd/- S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv