Remanded

Duba Kannaiah v. Duba Chalapathi

Telangana HC16 Dec 2010CRP/3446/2010

Case brief

AI extract

What is this about?

In multiple Civil Revision Petitions challenging orders of the First Additional District Judge regarding execution of land acquisition awards, the High Court set aside the lower court orders for not considering relevant sections and apex court precedents. The matter was remanded for fresh calculation of decretal amounts.

What did the court decide?

The impugned orders were set aside and the execution petitions remitted to the court below for fresh calculation of awards in light of relevant Sections and precedents.

Duba Kannaiah Vs Duba Chalapathi — Execution and Attachment | Telangana HC (2010)

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IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD

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TUESDAY THE EIGHTEENTH DAY OF OCTOBER TWO THOUSAND AND ELEVEN

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PRESENT THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CRP.NO. 4570 of 2010 CRP.NOs. 3445, 3446, 3489, 3491, 3492, 3513, 3996, 3997, 3998, 4039 AND 4040 OF 2011

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Between: CRP.NO. 4570 of 2010

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Vadla Bhumai .. Petitioner-D.Hr

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V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr

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Between: CRP.No. 3445 of 2011 Yember Pochaiah .. Petitioner-D.Hr

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V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr

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Between: CRP.No.3446 of 2011

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Vadla Bhumai … Petitioner-D.Hr

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V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr

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Between: CRP.No. 3489 of 2011 Neeradi Narsimlu .. Petitioner-D.Hr

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V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No.3491 of 2011 Nootikadi Rajanna … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No.3492 of 2011 K.Shantha Bai … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 3513 of 2011 Pippera Bakkanna … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 3996 of 2011 Neeradi Narsimlu … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 3997 of 2011 Noothikadi Rajanna … Petitioner-D.Hr

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V/s.

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The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 3998 of 2011 Yember Pochaiah … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 4039 of 2011 K.Shantha Bai … Petitioner-D.Hr V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr Between: CRP.No. 4040 of 2011 Pippera Bakkanna … Petitioner-D.Hr. V/s. The Land Acquisition Officer/ Special Deputy Collector, SRSP, Pochampad Nizamabad. … Respondent-J.Dr

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The Court made the following : (COMMON ORDER FOLLOWS)

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO

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CRP.NO. 4570 of 2010 CRP.NOs. 3445, 3446, 3489, 3491, 3492, 3513, 3996, 3997, 3998, 4039 AND 4040 OF 2011

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COMMON ORDER :

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CRP.No. 4570 of 2010 is filed against the order dated 02-6-2010 passed in EP.No.78 of 2004 in OP.No. 77 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3445 of 2011 is filed against the order dated 08-6-2010 passed in EP.No.80 of 2004 in OP.No. 89 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3446 of 2011 is filed against the order dated 08-07-2010 passed in EP.No.78 of 2004 in OP.No. 77 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3489 of 2011 is filed against the order dated 08-07-2010 passed in EP.No. 74 of 2004 in OP.No. 1609 of 1990 by the First Additional District Judge, Nizamabad.

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CRP.No. 3491of 2011 is filed against the order dated 08-07-2010 passed in EP.No. 77 of 2004 in OP.No. 174 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3491of 2011 is filed against the order dated 08-6-2010 passed in EP.No. 62 of 2004 in OP.No. 76 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3513 of 2011 is filed against the order dated 08-7-2010 passed in EP.No. 76 of 2004 in OP.No. 74 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3996 of 2011 is filed against the order dated 02-6-2010 passed in EP.No. 74 of 2004 in OP.No. 160 of 1990 by the First Additional District Judge, Nizamabad.

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CRP.No. 3997 of 2011 is filed against the order dated 02-6-2010 passed in EP.No. 77 of 2004 in OP.No. 1743 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 3998 of 2011 is filed against the order dated 02-6-2010 passed in EP.No. 80 of 2004 in OP.No. 89 of 1989 by the First Additional District Judge, Nizamabad.

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CRP.No. 4089 of 2011 is filed against the order dated 02-6-2010 passed in EP.No. 62 of 2004 in OP.No. 76 of 1989 by the First Additional District Judge, Nizamabad and

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CRP.No. 4040 of 2011 is filed against the order dated 02-6-2010 passed in EP.No. 76 of 2004 in OP.No. 74 of 1989 by the First Additional District Judge, Nizamabad.

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2. The issues involved in the above Civil Revision Petitions and the

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reliefs sought being one and the same between both the parties, all the Civil

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Revision Petitions are heard together and are being disposed of by this common order.

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3. The Revision Petitioners are the claimants-decree holders.

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Aggrieved by the award passed by the Land Acquisition Officer on 10-111998 awarding compensation, the Revision Petitioners filed petition under section 18 of the Land Acquisition Act. The learned First Additional District Judge, Nizamabad, partly allowed the O.Ps. and enhanced the compensation as mentioned in the orders passed by the learned First Additional District Judge, Nizamabad. Against the said orders, the Land Acquisition Officer preferred appeals in all the matters and the appeals were dismissed by this Court. As the Land Acquisition Officer did not pay the amounts, the Revision Petitioners-Decree-holders filed Execution Petitions for realization of the decretal amount and the District Court passed conditional orders dated 04-07-2007 directing the respondent-Judgment debtor to recalculate the entire amount payable to the Revision Petitionersclaimants-Decree holders by including the interest on the solatium following the guidelines issued by the High Court of Andhra Pradesh and the Judgment in CHIEF ENGINEER, ITDA, (TW DEPT), HYDERABAD AND ORS.

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V/s. PRESIDING OFFICER, INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, VISAKHAPATNAM AND ANR^[1] , and deposit the said amount within thirty days from the date of the order and also stated in the sdaid order that on

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failure to deposit the amount, the EP schedule properties involved in the cases shall be attached.

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4. It is submitted by the Revision Petitioners that inspite of the said conditional order passed by the District Judge, the Land Acquisition Officer neither filed calculation memo nor deposited any amount. Aggrieved by the directions of the First Additional District Judge, Nizamabad, the respondents filed these Civil Revision Petitions and in the said Civil Revision Petitions, this Court upon hearing the arguments of both sides and pursuing the calculation memo filed by the parties, directed deposit of onethird of the amount in dispute.

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5. It is the contention of the Revision Petitioners that subsequently the Land Acquisition Officer deposited some amounts which is not based on the calculation memo filed before this court and the said amounts are also not equivalent to the one-third of the disputed amount. Thus, the Land Acquisition Officer failed to comply with the order passed by this Court.

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6. The Revision Petitioners brought to the notice of this Court about the depositing of some amounts by the Land Acquisition Officer, which is not one-third of the disputed amount as directed by this Court. Then this Court heard both sides, set aside the order passed earlier and remanded the matter to the court below giving opportunity to both parties to file calculation memos within four weeks from the date of receipt of copy of the order and directed the court below to dispose of the matter within a period

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of one month from the date of filing the calculation memos by both the parties.

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7. It is said that the court below instead of examining the calculation memos filed by both parties in the light of section 23, 28 and 34 of the Land Acquisition Act and in utter disregard of the judgment of the Apex Court in

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SUNDER V/s. UNION OF INDIA^[2] , GURPREET SINGH V/s. UNION OF INDIA

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[3] , GENERAL MANAGER, OIL AND NATURAL GAS CORPORATION LTD., V/s.

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RAMESHBHAI JIVANBHAI PATEL AND ANR^[4] , LAND ACQUISITION OFFICER AND ASST. COMMISSIONER AND ANR. V/s. SHIVAPPA MALLAPPA JIGALUR

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AND ORS^[5] , upheld the contention of the judgment debtor-Land Acquisition Officer and passed an order to the effect that the total amounts under the EPs are satisfied and no amounts are due to the decree holders and

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accordingly closed the EPs.

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8. The Hon’ble Supreme Court in para Nos. 52 and 54 of its

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judgment in Gurpreet singh referred supra-3, held as follows:

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52. What is to happen when a part of the amount awarded by the Reference Court or by the appellate court is deposited pursuant to an interim order of the appellate court or of the further appellate court and the awardee is given the liberty to withdraw that amount? In such a case, the amount would be received by the decree holder on the strength of the interim order and the appropriate will be subject to the decision in the appeal or the further appeal and the direction, if any, contained therein. In such a case, if the appeal is disposed of in his favour, the decree holder would be entitled to appropriate the amount already received by him pursuant to the interim order first towards interest then towards costs and the balance towards principal as on date of the withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. But on the part appropriated towards the principal, the interest would cease from the date on which the amount is received by the

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awardee. Of course, if while passing the interim order, the court has indicated as to how the deposited amount is to be appropriated, that direction will prevail and the appropriation could only be done on the basis of that direction.

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53………………………

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54. One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in Courts all over the country, we permitted counsel to address us on that question. That question is whether in the light of the decision in Sunder (supra), 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 (supra) 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 (supra) 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 (September 19, 2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to

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avoid multiplicity of litigation on this question.

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9. Having gone through the submissions made by the counsel

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appearing for the Revision Petitioners, I am of the considered view that

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while calculating the amounts due under the awards, the learned executing court did not take into consideration the above referred judgments relied upon by the Revision Petitioners-decree holders and failed to consider Sections 23, 28 and 34 of the Land Acquisition Act. The orders dated 02-62010, 08-6-2010 and 08-07-2010 passed by the learned court below are

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therefore set aside and the matters are remitted back to the court below

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with a direction to restore the EPs. The learned First Additional District

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Judge, Nizamabad is directed to obtain calculation memo from both parties,

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arrive at a proper calculation to the award amount in all the matters with reference to sections 23, 28 and 34 of the Land Acquisition Act and in the light of the judgments of the Apex Court referred supra and dispose of the

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EPs within a period of two months from the date of receipt of records.

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10. With the above direction, the Civil Revision Petitions are

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disposed of. There shall be no order as to costs.

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________________________ JUSTICE R. KANTHA RAO

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18-10-2011 I s L

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THE HONOURABLE SRI JUSTICE R. KANTHA RAO