TARUN PATHAK Vs. STATE OF UP

JUDGEMENT

(1.) The present writ petition has been filed by the petitioners seeking relief of mandamus directing respondent No. 2 District Magistrate, Banda to pay Rs. 1,04,75,989.70 alongwith complete compound interest to the petitioners in terms and conditions of Hon'ble Court's order dated 28.5.1999.

(2.) In short, the contention of the petitioners is that a proposal was made for construction of canal for irrigation purpose of the concerned village on behalf of State Government. The land in dispute was recorded in the name of petitioner No. 1 and his deceased brother. Both of them filed Writ Petition No. 40385 of 1996 which was finally disposed of on 16.12.1996. Annexure-4 is the order dated 16.12.1996 whereby Division Bench of this Court has held that in case the land of the petitioners was compulsorily taken and 80% of the compensation amount has been deposited, in that event the said amount should be handed over to the petitioners in terms of the State itself expeditiously preferably within 30 days. Thereafter, the Special Land Acquisition Officer, Banda wrote a letter on 24.12.1996 to respondent No. 3 that if any canal has been constructed without acquiring the land, it is the duty of the Executive Engineer to pay the cost of the land to the person concerned. Respondent No. 3 on 27.3.1996 informed that proposal for acquiring the land has been sent to Special Land Acquisition Officer, Banda and a sum of Rs. 16,48,517 was paid to him for the distribution of compensation to the persons whose land were acquired. On 20.2.1997 respondent No. 3 has sent a cheque to the petitioner. Again in 1998 the petitioners filed Writ Petition No. 17124 of 1998 before this Court. On 28th May, 1999, the aforesaid writ petition was allowed which is Annexure-8 to the writ petition whereby it was directed to the respondents to prepare an award at the rate of Rs. 30,000 per acre measuring 0.31 acre and to pay the said amount to the petitioners with compound interest @ 18% alongwith solatium and damages and the amount so calculated be paid to the petitioners within three months from the date of the order. On 4.1.2001 the State Government preferred a S.L.P. which was dismissed by the Hon'ble Apex Court. The petitioners filed a contempt petition in which order was passed on 25.2.2003 and it was held by the Hon'ble Court that the punishment in the Contempt of Court cannot be made unless there is wilful disobedience of the order of the Court. Operative portion of the order has also been extracted above. It shows that there was no order of payment of interest on solatium, therefore the opposite parties cannot be punished for non-payment of interest on solatium. It is stated that Rs. 4,37,910 has been paid to the petitioners which is not sufficient. The correct amount which has been calculated as Rs. 1,04,75,989.70 is to be paid to the petitioners as per contention of the petitioners. As per calculation chart it has been stated in para 28 of the affidavit that the arrears are of about 29 years in three heads:

(3.) A counter-affidavit has been filed on behalf of respondents in which they have denied the contentions as raised in the writ petition by way of affidavits annexed with the writ petition. It is contended that the petitioners being dissatisfied with the calculated amount paid by the respondents, preferred a contempt petition stating that interest on solatium and damages have not been paid. The contempt application has been rejected vide order dated 28.2.2003. From the perusal of the order passed in contempt petition it is apparently clear that the petitioners are not entitled for any interest on solatium or damages. It is also contended by way of counter-affidavit that in contempt petition the Court has held that : "It is therefore a matter of decision as to whether the petitioners are entitled to damages, and if so, what amount. No such amount has been settled in the judgment. The petitioners may get the amount of damages adjudicated by the proper Court. Simply for the reason that word "damages" has also been mentioned in the operative portion of the judgment, the opposite parties can not be punished for non-payment of damages as the same are not ascertainable."