Mr. Derrick D'Sa Vs the Karnataka Housing Board

THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI AND SET ASIDE THE ORDER DATED 13.09.2019 PASSED BY THE COURT OF LEARNED II ADDITIONAL

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SENIOR CIVIL JUDGE AND CJM, MANGALURU IN EX.CASE NO.25/2011 PRODUCED AS PER ANNEXURE-K. ISSUE A WRIT IN THE NATURE OF MANDAMUS DIRECTING THE COURT OF LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU TO CONSIDER THE MEMO OF CALCULATIONS FILED BY THE PETITIONERS AS PER ANNEXURE-L AND THE WRITTEN ARGUMENTS MADE BY THE PETITIONERS AS PER ANNEXURES-J1 AND J2 & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 23.07.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV ORDER

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This writ petition is filed challenging the order dated 13.09.2019 passed by the II Additional Senior Civil Judge and CJM, Mangalore, in Ex.Case No.25/2011.

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Heard.

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Sri.S.Jayarama Bhatt S., learned counsel for the petitioners submits that the Execution Court committed a grave error in accepting the memo of calculation filed by the respondents-judgment debtors. It is submitted that the respondents have not made payment after passing of the award by the Land Acquisition Officer and only on 03.10.2002 Rs.50,00,000/- was paid, later on 19.09.2003 Rs.69,34,976/was paid and further on 30.07.2004 Rs.15,72,303/- was paid

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which was appropriated towards the interest. The memo of calculation was filed before the Execution Court, which has been extracted under the impugned order at page 8. However, the Trial Court rejected the said memo of calculation filed by the petitioners-decree holders by ignoring the law laid down by the Hon'ble Supreme Court in the case of SUNDER Vs. UNION OF INDIA¹ . It is further submitted that the Hon'ble Supreme Court has considered the entitlement of interest on the solatium amount and held that splitting of compensation into different components for the purpose of payment of interest under Section 34 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') is not contemplated. It is also submitted that the possession of the land was taken on 21.06.2002 and as per the enhanced compensation by this Court in MFA No.10128/2010 and connected matter, the market value for 6 acres 88 cents would be Rs.1,74,15,000/-, solatium at 30% would be Rs.52,24,500/-, additional market value as per Section 23(1)(A) of the Act from 22.04.1999 up to the date of award i.e. 21.06.2001 would be Rs.45,27,900/- and total decreetal amount would be Rs.2,71,67,400/-. However,

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1 (2001) 7 SCC 211

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the Trial Court ignoring the said facts incorrectly accepted the memo of calculation filed by the judgment debtors. It is contended that the judgment debtors, in their memo of calculation have splitted the component of market value and calculated the interest which is impermissible. Hence, he seeks to set aside the impugned order by remanding the matter back to the Execution Court to re-calculate the compensation and thereafter, direct the judgment debtors to pay the same.

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Per contra , Sri.Basavaraj V.Sabarad, learned Senior counsel for the respondent Nos.1 and 2 supports the impugned order of the Trial Court and submits that this Court on earlier three occasions remanded the matter back to the Execution Court at the instance of the respondents and directed the Execution Court to follow the ratio laid down by the Hon'ble Supreme Court in the case of GURPREET SINGH Vs. UNION OF INDIA² . It is submitted that after the remand, the Execution Court, considering the memo of calculation filed by the judgment debtors came to the conclusion that the same is in consonance with the ratio laid down by the Hon'ble Supreme

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2 (2006) 8 SCC 457

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Court in the case of GURPREET SINGH referred supra and directed the judgment debtors to pay Rs.53,25,550/- which has already been paid as this Court in a writ petition in W.P.No.23080/2017 directed the judgment debtors to deposit Rs.1,00,00,000/- and the same was deposited which is appropriated towards the amount required to be paid to the petitioners and the balance amount was withdrawn. It is further submitted that the decree holders cannot convert the writ proceedings into the Appellate Court proceedings and ask this Court to re-calculate as per their memo of calculation, which is impermissible. The jurisdiction of this Court under Article 227 of the Constitution of India is limited to ascertain the correctness or otherwise of the impugned order. It is also submitted that the Execution Court, on verification of the records, award of the Land Acquisition Officer, judgment of the Reference Court, order of this Court in appeal, considered both the memos of calculation by applying the rule of appropriation as held by the Hon'ble Supreme Court in the case of GURPREET SINGH , referred supra and directed the respondents-judgment debtors to deposit the due amount as per the memo of calculation filed by them. It is contended that

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the petitioners-decree holders are claiming interest on the amounts which was already paid by the judgment debtors on different occasions, which is impermissible. Hence, no interference is called for. It is further contended that this Court, on an earlier occasion while remanding, directed the Execution Court to consider the decision of the Hon'ble Supreme Court in the case of GURPREET SINGH , referred supra . Hence, the question of considering the observations made by the Hon'ble Supreme Court in the case of SUNDER referred supra would not arise. Hence, he seeks to dismiss the writ petition with exemplary costs.

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I have heard the arguments of the learned counsel for the petitioners, learned counsel for the respondent Nos.1 and 2 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

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The pleading and material on record indicate that the petitioners are the owners of land measuring 5 acres 12 cents in Sy.No.168/5 and measuring 1 acre 76 cents in Sy.No.169/1 situated at Padavu Village, Gurupura Hobli,

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Mangalore Taluk, D.K. District. The said land was acquired for the benefit of the respondent No.1-Karnataka Housing Board vide preliminary notification dated 06.03.1999 and final notification dated 01.06.2000. The Land Acquisition Officer passed the award by determining the market value of the land in question at Rs.11,12,205/- per acre along with solatium, additional market value and the statutory interest. The Reference Court after deducting the development charges, enhanced the market value at Rs.16,87,500/- per acre. The petitioners as well as the respondents filed appeal before this Court. The appeal in M.F.A.No.25/2011 filed by the respondents came to be dismissed and the appeal of the petitioners in M.F.A.No.10128/2010 was allowed by redetermining the market value at Rs.25,31,250/- per acre.

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The petitioners filed an execution petition in

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Ex.P.No.25/2011. The Execution Court passed orders dated 23.07.2016 and 28.09.2016 which was challenged by the respondents in W.P.No.59183/2016 c/w W.P.No.60633/2016 and this Court, vide order dated 13.01.2017 allowed the said writ petition and the impugned orders were set aside. The

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records also indicate that the Execution Court passed an order dated 22.04.2017 which was also assailed by the respondents in W.P.No.23080/2017 which came to be allowed on 16.08.2018 by setting aside the impugned order and directed the Execution Court to pass fresh order strictly in accordance with the Constitution Bench decision of the Hon'ble Supreme Court in the case of GURPREET SINGH , referred supra . This Court also recorded that the amount deposited by the respondents pursuant to the interim order shall remain with this Court and separate order may be passed later on, after the fresh orders are passed by the Execution Court. The respondents once again knocked the doors of this Court in W.P.No.54265/2018 by challenging the order dated 16.11.2018 passed in Ex.Case No.25/2011. This Court again vide order dated 11.06.2019 allowed the writ petition by setting aside the impugned order and issued a direction to follow the decision of GURPREET SINGH case, referred supra . After remand by this Court, the Execution Court once again passed the impugned order.

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The petitioners-decree holders have filed a memo of calculation dated 25.07.2019 which has been extracted by the Execution Court in the impugned order at page 8. The balance amount payable as on 23.07.2016 as calculated by the office of the Execution Court is shown as Rs.1,52,52,536/- and after deduction of Court cost and adding of interest on balance payable, the decree holders claimed that they are entitled to an amount of Rs.2,20,41,571/-. The Trial Court, taking note of the said memo of calculation has rightly recorded the finding that the balance amount shown by the decree holders in their memo of calculation as per the office of the Execution Court is already set aside by this Court in the aforereferred writ petition. Learned counsel for the petitioners` has filed a memo of calculation in this petition at Annexure-L. The decreetal amount per acre shown in the memo of calculation as Rs.25,31,250/- and the total decreetal amount shown as Rs.1,74,15,000/- which is prima facie wrong. The decreetal amount shown is the enhancement amount in the appeal filed by the petitioners and the said amount cannot be termed as decreetal amount for the purpose of calculation as it is without

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deducting the payments made by the respondents-judgment debtors.

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The Hon'ble Supreme Court in the case of GURPREET SINGH , referred supra at paragraphs 28 and 36 held as under:

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"28. Going by this principle and for the moment keeping out the scheme of the Land Acquisition Act, it appears to us that on payment or deposit of the amount awarded by the Collector in terms of Section 11 read with Section 31 of the Act, the claimant cannot thereafter claim any interest on that part of the compensation paid to him or deposited for the payment to him once notice of deposit is given to him. Thereafter, when the Reference Court enhances the compensation with consequential enhancement in solatium and interest under Section 23(1-A) of the Act and further awards interest on the enhanced compensation in terms of Section 28 of the Act, the claimant/decree-holder can seek an appropriation of the amounts deposited pursuant to that award-decree, only towards the enhanced amount so awarded by the Reference Court. While making the appropriation, he can apply the amount deposited, first towards the satisfaction of his claim towards interest on the enhanced amount, the costs, if any, awarded and the balance towards the land value, solatium and the payment under Section 23 (1-A) of the Act and if there is a shortfall, claim that part of the compensation with interest thereon as provided in

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Section 28 of the Act and as covered by the awarddecree. Once the sum enhanced by the Reference Court, along with the interest is deposited by the State, there will be no occasion for the claimant/awardee to seek a reopening of the amount awarded by the Collector, substituted by the amount awarded by the Reference Court and seek to have a reappropriation of the amount towards what is due. Same would be the position in a case where the amount awarded by the Reference Court, including the interest is deposited, but the amount is further enhanced in appeal by the High Court. Again, the same principle would apply. The principle would continue to apply when the Supreme Court awards further enhancement in a further appeal to that Court. But if after the award by the Reference Court, the amount is not deposited by the State, interest would run on the compensation in terms of Section 28 of the Act on that amount as provided in Section 28. The same would be the position regarding the enhancement given in appeal by the High Court and in the enhancement given in appeal by the Supreme Court. The mandate of Section 34 and Section 28 that interest would run from the date the Collector takes possession till the particular amount is deposited as provided in those sections, ensures that the claimant is recompensed adequately. Section 28 ensures such recompense at each stage of enhancement of compensation.

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36. Can a claimant or decree-holder who has received the entire amount awarded by the Reference Court or

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who had notice of the deposit of the entire amount so awarded, claim interest on the amount he has already received merely because the appellate court has enhanced the compensation and has made payable additional compensation? We have already referred to Order 21 and Order 24 of the Code to point out that such a blanket reopening of the transaction is not warranted even in respect of a money decree. Section 28 of the Act indicates that the award of interest is confined to the excess compensation awarded and it is to be paid from the date of dispossession. This is in consonance with the position that a fresh reappropriation is not contemplated or warranted by the scheme of the Act. But if there is any shortfall at any stage, the claimant or decree-holder can seek to apply the rule of appropriation in respect of that amount, first towards interest and costs and then towards the principal, unless the decree otherwise directs."

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The aforesaid decision of the Hon'ble Supreme Court clearly explains the method of calculating the compensation amount and interest and in the cases involving the determination of compensation, initially by the Land Acquisition Officer, then by the Reference Court, the High Court and the Hon'ble Supreme Court. It has explained the principle of rule of appropriation. If the said principle laid down by the Hon'ble Supreme Court, as referred above, is kept in mind

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while considering the memo of calculation filed by the respondents-judgment debtors, I am of the considered view that the same is in consonance with the law laid down by the Hon'ble Supreme Court. For easy reference, the memo of calculation filed by the judgment debtors is extracted hereinbelow:

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"Memo of Calculations dated 01.08.2019 filed by judgment debtor No.2

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A. First stage of Settlement of Compensation in terms of the Award passed by the Land Acquisition Officer:-

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1) As per the Award dated 21.06.2001, the market value of the land was fixed at Rs.11,12,205/- per acre and total compensation was awarded as detailed hereunder,

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i. The market value of 6.88 acre : 76,51,970-00 ii. Solatium at 30% (S.23(2) : 22,95,591-00 iii. Addl. Market value at 12% on market value)

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From 22-4-1999 (date of 4(1) notice to 21-6-2011) (date of Award for 26 Months under S.23-1A) : 19,87,415-00

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Total : : 1,19,34,976-00

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2)

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i. Interest on Rs.1,19,34,976/- at 9% p.a. for 1 year from 21-06-2001 - date of Award to 20-06-2002. : 10,74,148-00

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ii. Interest on Rs. 1,19,34,976/- at 15% p.a. from 21-06-2002 to 3-10-2002 (105 days) : 5,15,003-00

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3)	Total compensation & Interest	: 1,35,24,127-00
4)	Less-Amount paid on 3-10-2002	: 50,00,000-00
5)	Balance due as on 3-10-2002	: 85,24,127-00
6)	Interest on Rs.85,24,127/- at 15% p from 04-10-2002 to 19-09-2003 (350 days)	.a. : 12,26,073-00
7)	Total Compensation & Interest	: 97,50,200-00
8)	Less-Amount paid on 19-9-2003	: 69,34,976-00
9)	Balance due as on 19-9-2003	: 28,15,224-00
10)	Interest on Rs.28,15,224/- at 15% p from 20-09-2003 to 30-7-2004 (314 days)	.a. : 3,63,280-00
11)	Total Compensation & Interest	: 31,78,504-00
12)	Less-Amount paid on 30-07-2004	: 15,72,303-00
13)	Balance due as on 30-4-2004	: 16,06,201-00
14)	Interest on Rs.16,06,201/- at 15% from 31-07-2004 to 16-11-2015 - 4123 days	p.a. : 27,21,521-00
15)	Thus dues of 1^ststage as on 16-11 a) Compensation amount due	-2015 :16,06,201-00
	b) Interest due	: 27,21,521-00
	*TOTAL*	*: 43,27,722-00*

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B. Second stage of Settlement of Compensation in terms of the Decree passed by the Reference Court:-

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1) As per the Decree passed by the III Addl. Civil Judge (Senior Division) in LAC 7/2004 dated 26.08.2010, the market value of the land was fixed at Rs. 16,87,500/- per acre and the enhanced market value comes to Rs. 5,75,295:00 per acre. The total additional compensation amount payable is detailed hereunder,

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i. Enhanced market value of 6.88 acres

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(5,75,295/-x 6.88 acres) : 39,58,030-00

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ii. Solatium at 30% (S.23(2) : 11,87,409-00 iii. Addl. Market value at 12% on the Enhanced Value from 22-4-1999 (date of 4(1) notice) To 21-6-2001 (date of Award for 26 months Under S.23-1A : 10,29,088-00 TOTAL : 61,74,527-00 iv. Interest on Rs.61,74,527:00/- at 9% p.a. for one year from 21-6-2001 date of award by LAO : 5,55,708-00 v. Interest on Rs.61,74,527:00/- at 15% p.a. from 21-6-2002 to 12-4-2011-for 8 years 09 months 21 days (8.82 years) : 81,68,900-00 Total interest due as on : 87,24,608-00 Less-Amount deposited on : 76,50,000-00 (12-4-2011) vi. Interest due : 10,74,608-00 vii. Interest on Rs.61,74,527:00/at 15% p.a. from 13-04-2011 to 16-11-2015 for 4 years 218 days - i.e. 4.60 years : 42,60,424-00 viii. TOTAL INTEREST : 53,35,032-00 2) Total balance amount of 2nd stage as on 16-11-2015 a) Compensation amount due: 61,74,527-00 b) Interest due : 53,35,03200 TOTAL : 1,15,09,559-00/

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C. Third stage of Settlement of Compensation in terms of the Final Judgment passed by the High Court:-

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1) As per the judgment of the High Court in MFA 10128/2010 dated 12-11-2014 the Hon'ble High Court

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fixed the market value of the land at Rs.25,31,250/- per acre and the enhanced market value (excluding the value fixed by the referring Court) comes to Rs.8,43,750:00 per acre.

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The total additional compensation amount payable is detailed hereunder: i. Enhanced market value of 6.88 acres (Rs.8,43,750/-x 6.88 acres) : 58,05,000-00 ii. Solatium at 30% (S.23(2) : 17,41,500-00 iii. Addl. Market value at 12% on the enhanced Value from 22-4-1999 (date of 4(1) notice) To 21-6-01 (date of Award for 26 months (S.23-1A : 15,09,300-00 TOTAL : 90,55,800-00 iv. Interest on the said amount at 9% р.а. for one year from 21-6-2001 date of award by LAO : 8,15,022-00 v. Interest on the said amount at 15% p.a. from 21-6-2002 to 16-11-2015 -for 13 years 4 months 26 days(13.42 years): 1,82,29,326-00 : 1,90,44,348-00 2) Total balance amount of 3^rd stage as on 16-11-2015 a) Compensation amount due : 90,55,80000 b) Interest due : 1,90,44,348-00 TOTAL : 2,81,00,148-00/-

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D. Total compensation amount with interest remaining unsettled as on 16-11-2015 of all stages as detailed in 'A', 'B' & 'C' above

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1) Compensation due Interest due

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A. 16,06,201-00 + 27,21,521-00: 43,27,722-00

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B. 61,74,527-00 + 53,35,032-00: 1,15,09,559-00 C. 90,55,800-00 +1,90,44,348-00 :2,81,00,148-00

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1,68,36,528-00 2,71,00,901-00 4,39,37,429-00

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2) Less - Amount deposited on

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16-11-2015 : - 4,06,81,325.00 towards interest 2,71,00,901-00 towards compensation1,35,80,424-00

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4,06,81,325-00

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3) Compensation due on 16-11-2015:32,56,104-00

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4) Interest on Rs.32,56,104-00 at 15% p.a. from 17-11-2015 to 03-08-2019 for 3

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years 8 months 17 days (3.72 years):18,16,906-00

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5) Cost decreed by the court :2,52,540-00

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6) Total due :53,25,550-00

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Total compensation (including interest and cost) due is Rs.53,25,550-00."

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The aforesaid memo of calculation makes it very clear that the judgment debtors have considered the market value of the land as per the award and added solatium, additional market value at 12% along with interest at 9% and 15% for the respective period and deducted the payments made to the petitioners-decree holders on different dates. Further, after enhancing the compensation by the Reference

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Court, the judgment debtors had followed same procedure in adding the market value, solatium, additional market value and interest at 9% and 15% for the respective period. Again after enhancement of the compensation by this Court in MFA No.10128/2010 and connected matter followed the same procedure and after calculating all the stages, after adding the cost of the decree at each stage, comes to the conclusion that there is total due of Rs.53,25,550/-. In my considered view, the calculation arrived by the respondents-judgment debtors is strictly in consonance with the rule of appropriation as held by the Hon'ble Supreme Court in the case of GURPREET SINGH referred supra . The contention of the petitioners that the Execution Court failed to take note of the decision of the Hon'ble Supreme Court in the case of SUNDER referred supra has no merit. This Court, in the earlier round of litigation while remanding the matter had specifically directed the Execution Court to consider the law laid down by the Hon'ble Supreme Court in the case of GURPREET SINGH , referred supra and on such direction the Executing Court passed an appropriate order. The decision of the Hon'ble Supreme Court in the case of SUNDER referred supra is on the point whether the interest is

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required to be paid on the solatium or not on the rule of appropriation. It is trite law that this Court under Article 227 of the Constitution of India cannot be asked to sit as an Appellate Court and scrutiny each of the errors of the Execution Court as the scope of power of this Court is limited. In the case on hand, I do not find any error or perversity in the finding recorded by the Execution Court under the impugned order and also in accepting the memo of calculation filed by the judgment debtors calling for interference in this petition.

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For the aforementioned reasons, I proceed to pass the following:

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ORDER

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The writ petition is devoid of merit and the same is accordingly rejected.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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RV

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List No.: 1 Sl No.: 2

Mr. Derrick D'Sa v. the Karnataka Housing Board

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Mr. Derrick D'Sa v. the Karnataka Housing Board

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