SHIVARUDRAPPA FAKIRAPPA Vs. EXECUTIVE ENGINEER

JUDGEMENT

(1.) AS common questions of fact and law arise for consideration in these appeals, they were heard together and are being disposed of by this common order.

(2.) THE appellants in W. A. No. 1433/07 are the respondents 2 (a) to (d) in W. P. No. 86577 2007. The appellants in W. A. 1434/07 are the respondents 2 (a), (b), and 3 (a) to (f) in W. P. No. 8517/2007. The common respondent No. 1 in these appeals is the petitioner in the writ petitions. The appellants are aggrieved by the orders passed by the learned Single Judge allowing the petitions and quashing the impugned orders passed by the executing Court and remanding the matter to the executing court for fresh consideration.

(3.) THE undisputed facts are as under: certain lands owned by the appellants situated in Lakkammanahalli, Dharwad, were acquired as per the provisions of Land Acquisition Act for the benefit of Karnataka housing Board. The Land Acquisition Officer by his award dated 8/5/1989 determined the market value of the acquired lands at Rs. 25,000/-per acre. On reference under Section 18 of the Act the Reference Court determined the market value of the acquired lands at Rs. 13,800/- per gunta, and further held that the claimants are entitled for solatium at 30% on the market value, additional market value at 12% P. A. on the market value from the date of preliminary notification up to the date of award less the amount paid under the award, and that the claimants are entitled for interest on the enhanced compensation at 9%. p. a. from the date of dispossession for a period of one year and at 15% p. a. thereafter up to the date of payment. Against the said judgement and award of the Reference Court, respondent no. 1 filed appeals before this Court in m. F. A. 3939 and 3940/1998. The appeals were dismissed on 8/3/2006 and the award of the reference Court was affirmed. Against the dismissal of the appeals, respondent has filed special Leave Petitions before the Hon'ble supreme Court and they are pending. However there is no order of stay. In the meanwhile the appellants in W. A. 1433/07 filed ex. P. No. 133/2006 in the Court of Civil Judge (Sr. Dn.), Dharwad claiming Rs. 90,00,580/-and the appellants in W. A. 1434/07 filed ex. P. No. 135/2006 on the file of the same court claiming Rs. 37,42,358/- as the amounts payable as per the awards of the Reference court. The execution petitions were accompanied with memo of calculations. As per the memo of calculations, the claimants calculated interest on the total market value of the land at the rate determined by the Reference Court, additional market value and also solatium, from the date of award by the Land Acquisition officer, as according to them the date of dispossession has not been stated either in the award of Land Acquisition Officer or in the award of reference Court. In both the execution petitions the decree holders sought attachment and sale of moveable properties of judgement debtors and also arrest and detention of judgement debtors in civil prison. Initially cause notice of execution petitions were issued to the judgement debtors and upon service of cause notice only 2nd judgement debtor namely respondent No. 1 herein appeared before the Court. However, as objections were not filed, the executing Court directed issue of Attachment Warrants in both the petitions on 27/11/2006. Subsequently when the attachment warrants were sought to be recalled by judgement debtor No,2, a conditional order came to be passed on 4/12/2006. Pursuant to the said order, judgement debtor no. 2, deposited by way of cheques rs. 60,07,691/- in Ex. P. 133/06 and rs. 24,66,174/- in Ex. P. 135/06, on 12/12/06 and on such deposit, the attachment warrants were recalled. The amounts so deposited by judgement debtor No. 2 were paid to the decree holders by means of cheques. Thereafter on 22/2/2007 office of the executing Court prepared calculation memo showing that the judgement debtors are still due Rs. 53,38,472/-in Ex. P. No. 133/06 and Rs. 21,84,229/- in ex. P. No. 135/06. Similar memo of calculations were also filed on behalf of Decree holders in both the cases on the same day. By holding that the memo of calculations filed by the decree holders are correct, the executing court on 9/3/2007 ordered issue of attachment warrants against judgement debtor No. 2. On 17-4-2007 on behalf of judgement debtors memo of calculations were filed and attachment warrants issued were sought to be recalled. In the said memo of calculations judgement debtors contended that the claimants are entitled for interest on solatium only from 20-10-2001 (the date of judgement in Sunder v. Union of India by Hon'ble Supreme Court)up to the date of payment. They also contended that interest on the market value determined is payable only from 4-2-1993 being the date of taking possession of acquired lands and not from the date of award as claimed in the execution petitions. They also showed deductions towards Income Tax and interest thereon. According to the judgement debtors only Rs. 2,91,009/- in Ex. P. 133/06 and rs. 1,72,525/- in Ex. P. 135/06 is due to Decree holders. After hearing both sides the executing Court by detailed order dated 17-4-2007 rejected all the contentions of Judgement debtors and directed issue of warrant for recovery of the balance amount as per the calculations of decree holders. Thereafter the respondent No. 1 herein who is the judgement debtor No. 2 filed the writ petitions noted above seeking to quash the order dated 17-4-2007 passed by the executing Court and for other consequential reliefs and also for a direction to accept the memo of calculations filed by him in the case and also to direct the appellants herein to redeposit the amount received by them pursuant to the order dated 4-12-2006, urging various legal contentions. Upon service of notice of petitions the appellants appeared and opposed the petitions. The learned single Judge by the orders which are questioned in these appeals allowed the petitions and quashed the order dated 17-4-2007 and remanded the matter to the executing court for fresh consideration. The learned single Judge held that the petitioner therein is not entitled to deduct any amount towards income Tax. It was further held that in the light of the Constitution bench decision of the apex Court in Gurpreet Singh v. Union of India (2oo6) 8 SCC 457 2006 AIR SCW 5813 the interest on solatium is payable only from the date on which the Apex Court rendered judgement in Sunder v. Union of India i. e. 19-9-2001 and not from the date of award as ordered by the executing Court. It is further held that as the date of taking possession of acquired land is indicated in the notification issued under Section 16 (2) of the Act as 4-2-1993, the interest on the total market value is payable only from the date of dispossession i. e. , 4-2-1993 and not from the date of award.