Collector, Land Acquisition PWD, Jammu vs Dharmarth Council

M.A. Shah, J.—This revision is directed against the order passed by the learned District Judge, Jammu, on Mar. 28, 1988, in execution

proceedings filed against the petitioner by the respondent to execute the award with respect to the land acquired under the Land Acquisition Act

by the petitioner/Collector. The proceedings were initiated basically before the Distt. Judge Jammu, on a reference made u/s 31 of the J. and K.

Land Acquisition Act, 1990 (1934 A.D.) (for short hereinafter called as the Act), for apportionment of compensation awarded under the Act.

Brief facts out of which the present revision arises arc that after the reference u/s 31 of the Act, for apportionment of compensation, was

disposed of on the basis of the compromise decree which was granted by the learned District Judge, Jammu, on October 10, 1984, was amended

by an order dated Mar. 20, 1985. On the basis of the said decree the respondent Dharmarth Council, decree-holder filed the execution

application before the learned District Judge for the recovery of amount of Rs. 28,73,719/-including therein an amount of interest of Rs.

5,32,533/- calculated at the rate of 4% per annum as required u/s 35 of the Act. On presentation of the execution petition it was not disputed that

the principal amount was paid by the petitioner whereas contest was made objecting on the calculation on payment of interest as claimed by the

decree-holder/respondent. The learned District Judge on hearing the respective parties agreed with the contention of the counsel for the

respondent and held that on account of the failure of the Collector to deposit the interest on the calculated awarded amount with the District Judge

as required under Sub-section (2) of Section 32 of the Act the interest calculated from the date of taking of possession of the acquired land by

JDA i.e. June 12, 1980 has rightly been claimed and therefore directed the present petitioner to pay the amount of interest claimed. The petitioner

being aggrieved against the said order filed this revision petition.

The revision is strongly opposed by the respondent whereas learned counsel for the petitioner very strenuously argued that in accordance with

the award dt. June 12, 1980 the payment having been made including the interest thereon by the petitioner there was nothing due towards the

interest which has not been considered by the learned District Judge and thus the order is illegal and without jurisdiction. My attention was drawn

by learned counsel for the petitioner to the fact that the compromise decree passed on Mar. 20, 1985, by learned District Judge did not in any

manner direct or contemplate payment of any interest to the Dharmarth Council. It is thus submitted that there being no direction in the decree

regarding the payment of interest the Executing Court cannot go beyond the decree and award something in execution proceeding which was not

the part of the proceedings while the decree was granted.

In order to appreciate the short point agitated by the learned counsel for the petitioner in the light of the rival arguments it is to be seen whether

the executing Court acted within its jurisdiction while granting the relief to the respondent for payment of interest as prayed in the execution

proceedings. The decree which was passed on the basis of compromise does not speak anything about the interest which fact is apparent from the

contents of the decree. However, the question agitated cannot be sufficiently answered unless a reference is made to the award given by the

Collector on the basis of which in fact the interest is claimed. From the record it transpires that the award was announced on June 12, 1981

whereas the interest is calculated in the execution petition from June 12, 1980, based on the award claiming that the possession of land in question

was handed over to the JDA through the Collector on June 12, 1980.

Reference was made u/s 31 of the Act to the District Court by the Collector on July 23, 1981. The record was also perused and it was found that

the detailed amount of statement recoverable by the Dharmarth Trust was also submitted before the learned District Judge by the respondent on

Feb. 11, 1988. In this statement it has been recorded that as per award dt. June 12, 1981, the compensation amount was determined along with

an interest at the rate 4% per annum with effect from June 12, 1980, as envisaged by Section 35 of the Act.

As against the said statement furnished by the respondent/decree-holder the petitioner by way of objections filed on Feb. 11, 1988, refused the

allegations made in the statement and submitted in para (4) of the objections that the entire amount of compensation has since been paid to the

decree-holder by the judgment-debtor and was not withheld. It is further contended that the payment thereof was withheld due to the dispute

between the Pujari and the decree-holder. Regarding apportionment, which period if liable to be deducted from the assessment of interest as the

compensation remained withheld on account of the proceedings taken for apportionment by the learned District Judge, it is also submitted that with

regard to the interest no liability can be imposed on the petitioner because of the dispute raised by the respondent himself and even the amount is

disputed.

On going through the contents of the compromise by which the reference u/s 31 stands finally disposed of on the basis of the compromise and

with modification in the decree the decree has been drawn up on Mar. 20, 1985. A careful perusal of this decree apparently shows that there is no

such term with regard to the payment of interest. The said compromise is recorded between the Pujaris on the one hand and the Dharmarth

Council on the other. The Collector, Land Acquisition, present petitioner, was not a party to that compromise and in fact that decree has been put

into execution by the respondent/decree-holder as is apparent from the para. (c) of the execution application which is as follows : --

c) The date of the 10 October, 1984

decree. Modified by decree

dated 20 March, 1985.

To this extent I find force advanced by the learned counsel for the petitioner that based on that decree there being clause for payment of interest

the respondent is not entitled to get interest on the basis of the said execution of the decree. What is said in this decree is nothing but an

arrangement made for the apportionment of the amount as well as the land between the Dharmarth Trust and S/Shri Bagmal, Mangat Ram,

Hansraj, Ram Rattan, Ram Dhann and Narpatti, out of the sum of Rs. five lacs in equal shares and in another paragraph division of five kanals of

land to be equally divided between Hansraj, Ram Rattan, Ramdhan and Narpatti and the modified portion of the decree shows about the payment

of Rs. five lacs to the claimants by the Dharmarth Trust etc. etc. Though it is not material to dwell upon the detailed aspects of the compromise,

suffice it to say that there cannot be any decree from the settled principles of law that the executing Court cannot go behind the decree. In that view

of the matter I find that in so far as the directions by learned District Judge on the payment of interest based on the said compromise decree travels

beyond the terms of the compromise and is not enforceable by way of execution against the Collector/petitioner for the claim of interest. It is,

however, different aspect that the learned District Judge can consider on proper assessment the amount which remained payable under the decree

if not paid by the Collector Land Acquisition, the petitioner herein to the decree-holder/respondent effectively be ordered by calculating the

amount which was payable by the Collector to the respondent/Dharmarth Council towards the compensation payable under the award.

I, therefore, find that the learned District Judge acted beyond jurisdiction in directing the payment of interest as claimed by the respondent on the

basis of the said compromise decree on the entire amount determined by the award dt June 12, 1981, on the basis of which reference u/s 31 was,

made to the District Judge.

It brings me to the second question which has been contended by the learned counsel for the respondents that the rate of interest as determined

by the Collector at the rate of 4% per annum, should have been increased in the light of the subsequent events and for the want of deposit by the

Collector before the learned District Judge as envisaged by Section 32, Sub-section (2) of the Act, as held by learned District Judge that a

consideration of the reference for the purposes of apportionment was not a hindrance to withhold the amount of compensation which should have

been deposited by the Collector in the Court when the reference u/s 31 was made.

Although as held hereinabove that the decree sought to be executed based on the disposal of a reference for apportionment passed with

modification on March 20, 1985, does not speak of interest but all the more what has been sought to be executed in fact and in substance by the

respondent is the award given by the Collector because the referring Court u/s 31 of the Act does not exercise the power of enhancing the

compensation or reducing the same, as is provided u/s 18 of the Act, but here only his powers are limited to the extent of apportionment of the

already awarded compensation between the disputing parties. It is thus nothing but the award given by the Collector, the execution of which shall

have the procedure in accordance with the provisions of Sub-section (2) of Section 26 of the Act, which provides as follows :--

26(2). Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of

Section 2, Clause (2) and Section 2, Clause (9) respectively of the Code of Civil Procedure.

It is thus manifest that the award is executable like the decree of a Civil Court and the District Court in the instant case is competent to proceed

with the execution keeping in view the decree passed on the basis of the compromise with modification on March 20, 1985. In this view of the

matter the learned District Judge is required to find out, to order for the payment of interest as directed in the award announced on June 12, 1981,

and which in terms of Section 35 of the Act can he only 4% per annum from the time of so taking possession until it shall he so paid or deposited.

The last words of Section 35 of the Act are, therefore, wide enough to cover interest on the amount of compensation determined and not paid or

deposited to the claimants irrespective of the proceedings which were taken for apportionment because the proceedings for apportionment will not

arrest the making of deposit by the Collector with the District Court to which the reference is made. In view of this specific proivion in the Act, the

contention of the learned counsel for the respondent is not well founded that the respondent is entitled to more interest than the one prescribed u/s

35 of the Act at the rate of 4% per annum.

Adverting to the last contention that the learned District Judge should not have allowed the interest during the period when the proceedings

remained pending before the District Court for determining the apportionment of compensation u/s 31 of the Act. Though a plea is advanced in the

objections that the amount of compensation determined has been paid by the judgment-debtor but no specific dates of the payments have been

shown so as to find out how much amount has been paid and when the same is paid so as to calculate the interest up to the date of payment.

However, mere making of the reference ""for the purpose of apportionment will not stay the liability of the Collector imposed upon him to make the

deposit of the amount of compensation in the Court while making the reference as required under Sub-section (2) of Section 32 of the Act. This

provision is not directory but a mandatory one. The Collector is required to make the deposit even if there be any dispute as to the title to receive

the compensation or as to the apportionment of it The amount of compensation if deposited or received by the claimant or paid under protest, will,

no doubt, arrest the running of interest over it from the moment the amount is either deposited with the Court or paid to the claimant. But at the

same time till that deposit is made or payment is done as envisaged by Section 35-of the Act, the interest shall start to run from the date of taking

possession and not from the dale when the order or decree is passed by the District Judge on apportionment on reference u/s 31 of the Act. In this

respect the reasonings given by the learned District Judge that the Collector having failed to make the deposit with the Court of the awarded

amount of compensation in my opinion, are unassailable. The respondents are also held by him, entitled to realise interest at the rate of 4% per

annum from the date of possession which was undisputedly taken on June 12, 1980, as is mentioned in the award. The only infirmity which I find in

the order impugned is to the effect that the learned District Judge has not effectively calculated the amount for which the apportionment was

required to be made and the extent of the amount either paid or deposited by the Collector at the time of making the reference to the claimants. In

case on calculation and statements as may be made by the parties, the learned District Judge finds that some of the amount awarded in the award

by the Collector, Land Acquisition was already paid and received by the claimants they shall not be entitled to any interest from the date payment

was made to them and the interest will, therefore, be proportionately reduced to that extent.

On totality of the circumstances, 1 find no hesitation in holding that though the learned District Judge is empowered to execute the decree in

terms of the award as envisaged u/s 26(2) of the Act and can direct for the payment of interest but on the parity of reasons given hereinabove

unless a finding is given as to the extent of amount remained unpaid, the interest shall have to be calculated on that money and not for the whole

awarded money in a blanket manner as done in the impugned order.

The revision petition, therefore, succeeds partly. The order directing the payment of interest of Rs. 5,32,533/- passed by the learned District

Judge, Jammu is set aside. The case is remanded back to the learned District Judge for fresh consideration in the light of the observations made

hereinabove and after determination of the actual amount on the compensation not paid, the interest shall be calculated accordingly after hearing the

respective parties, and then pass a fresh order according to law.

This also disposes of CMP No. 300/88. Parties under the circumstances are left to bear their own costs. They are directed through their

counsel to appear before the learned District Judge, Jammu, on Mar. 7, 1989.