C.V. Palakshan vs Special Land Acquisition Officer

B.S. Patil, J.—This revision petition is filed challenging the order dated 30.09.2013 passed by the Executing Court in E.P. No. 2/2011.

Petitioner is the owner of the lands acquired. He has filed the execution petition for recovery of the enhanced compensation awarded by this Court in M.F.A. No. 1048/2001 on 07.04.2005. The matter had earlier come up before this Court in C.R.P. No. 487/2012 c/w C.R.P. No. 486/2012. This Court by order dated 05.03.2013 remanded the matter recording a finding that the Executing Court had made certain mistakes in calculating the compensation that the landlord and the tenants together were entitled to receive. The observations made in paragraph 6 of the order passed by this Court may be usefully extracted as under:

"6. Accordingly, Revision Petitions are allowed. The order dated 25.08.2012 passed in Ex. Case Nos. 2/2011 and 3/2011 is set aside. The matters are remitted back to the Court of Civil Judge (Senior Division), Madikeri, to recalculate the compensation payable together to the landlord and tenant in aforesaid two execution petitions. While doing so, executing court is also directed to quantify the share of landlord to an extent of 22% out of total compensation arrived at and 78% to the share of tenants in both execution proceedings. It is made clear that executing court shall complete this exercise within four months from the date of receipt of a copy of this order."

After remand, the Executing Court has now passed the impugned order holding that the land value fixed by the High Court in M.F.A. No. 1048/2001 at the rate of Rs. 14,250/- per acre for 17 acres would come to Rs. 2,42,250-00; the compensation awarded by the Land Acquisition Officer at the rate of Rs. 6,400/- per acre, for 17 acres amounting to Rs. 1,08,800/- has to be deducted out of the same, and the amount to be paid by the Special Land Acquisition Officer at the enhanced market value would come to Rs. 1,33,450-00. Solatium at 30% has been added to the market value of Rs. 1,33,450/- (in a sum of Rs. 40,035/-). Additional market value at the rate of 12% under Section 23(1-A) of the Land Acquisition Act on the land value of Rs. 2,42,250/- from the date of preliminary notification issued on 27.06.1971 till the date of award passed on 11.11.1981 for 10 years 137 days, amounting to Rs. 3,01,611-00 has been added. The total amount is worked out to Rs. 4,75,096-00. The decree holder -landlord is held entitled to 22% of the same i.e., Rs. 7,60,813.68 with costs of Rs. 2,000/- and the remaining 78% i.e., Rs. 26,97,430.32 is ordered to be paid to the tenants in terms of the direction issued by this Court in M.F.A. No. 4998 and 4999/2000. The judgment debtor has been directed to deposit the same within one month from the date of the order.

Aggrieved by the aforesaid order, party in person -C.V. Palakshan contends that the calculation made by the Court below is wrong. Interest on the market value at 9% for the first year from the date of taking possession and at 15% for the subsequent years till the amount was paid/deposited has not been calculated while computing the total amount of compensation payable. He further submits that on the amount of solatium payable and as also on the additional amount payable under Section 23(1-A), interest is required to be computed and the same has not been done. It is his next contention that apportionment made directing payment of 78% of compensation to the tenants is illegal as there was no landlord and tenant relationship between the petitioner and the so-called tenants particularly because when C.R.P. No. 487/2012 c/w C.R.P. No. 486/2012 was decided by this Court on 13.03.1992, the tenants-petitioners therein had died and the entire proceedings stood abated but without noticing the same, this Court had passed an order on 13.03.1992 granting occupancy rights in favour of the tenants, and therefore, the said order being null and void could not have been taken note of by this Court while disposing M.F.A. No. 4998/2000 c/w 4999/2000 apportioning the compensation between the landlord and the tenant.

Mr. Abdulla, learned Counsel appearing for the respondent submits that at no point of time such contention regarding death of the tenants during the pendency of C.R.P. No. 487/2012 c/w C.R.P. No. 486/2012 has been taken, and therefore, this Court cannot allow such a contention being raised at this stage. He further points out that the order in M.F.A. No. 4998/2000 c/w 4999/2000 was passed on a joint memo submitted by the landlord and the tenant agreeing to apportion the compensation in the manner referred to above, and therefore, it is impermissible for the petitioner herein to rake up the issue once again. To the query of the Court that how the claimants are entitled for additional amount under Section 23(1-A) of the Land Acquisition Act, he fairly submits keeping in mind the ratio laid down by the Supreme Court in the case of K.S. Paripoornan Vs. State of Kerala and Others, AIR 1995 SC 1012 : (1994) 6 JT 182 : (1994) 4 SCALE 192 : (1994) 5 SCC 593 : (1994) 3 SCR 405 Supp that as the award passed by the Land Acquisition Officer in the instant case being prior to 30.04.1992, benefit of additional amount payable under Section 23(1-A) is not applicable to the case on hand, but he hastens to add that petitioner and the tenants are entitled for interest payable with effect from the date of preliminary notification as possession had been taken on the date of preliminary notification prior to the passing of the award in terms of Section 28 of the Act. He also supports the contention of the petitioner that the landlord and tenant are entitled for interest on the solatium payable.

Learned Additional Government Advocate supports the contentions of Mr. Abdulla with regard to the application of Section 23(1-A).

Having heard the party-in-person and the learned Counsel for the respondents, it is clear that petitioner cannot raise the question of entitlement of the tenant for grant of compensation payable to the acquired land because the order passed in C.R.P. No. 487/2012 c/w C.R.P. No. 486/2012 on 13.03.1992 granting occupancy rights in favour of the tenants, has attained finality. It is only thereafter that the reference made to the Civil Court have been allowed enhancing the market value of the compensation payable. Further, when the Miscellaneous First Appeals were pending before this Court in M.F.A. Nos. 4998/2000 c/w 4999/2000 filed by the landlord, a joint memo came to be filed by the landlord and tenants agreeing to apportion the compensation in the ratio of 22% and 78% and based on this joint memo, this Court has disposed of the miscellaneous first appeals recording the compromise. Indeed, based on this order only, while remitting the matter for fresh consideration, this Court in the Civil Revision Petition has put at rest this question and has issued a direction to apportion the compensation in terms agreed to between the parties. The said order passed in C.R.P. No. 487/2012 c/w C.R.P. No. 486/2012 has also attained finality. Therefore, petitioner cannot be permitted to raise the question yet again regarding the entitlement of the tenants.

In so far as payment of additional amount under Section 23(1-A) is concerned, as held by the Apex Court in Paripoornan''s case referred to supra, where acquisition proceedings have been initiated prior to the date of commencement of the Amending Act, payment of additional amount under Section 23(1-A) would be restricted to matters referred to in clauses (a) and (b) of sub-section (1) of Section 30 of the Amending Act. The Apex Court has made it clear that in terms of the said provision, additional amount under Section 23(1-A) would not be payable where the land acquisition proceedings had been culminated in the award passed by the Land Acquisition Officer prior to 30.04.1982. Therefore, the order passed by the Executing Court awarding 12% additional amount from the date of preliminary notification till the date of award is erroneous. However, the claimants are entitled for payment of interest with effect from the date of preliminary notification i.e., with effect from 27.06.1971 because admittedly, possession of the land has been taken either on the date of preliminary notification or prior thereto. This is so in view of the judgment rendered by this Court in the case of THE SPECIAL LAND ACQUISITION OFFICER v. FAKIRAPPA MUGUBASAPPA and OTHERS - ILR 2004 KAR 2371, after considering the judgments of the Apex Court. In addition, it has to be observed that even on the solatium amount payable at 30% on the market value, petitioner and the tenants are entitled for interest payable with effect from 27.06.1971.

Subject to the above clarifications, this revision petition is disposed of, directing the Executing Court to calculate the amount in the light of the observations and directions issued herein above and ensure that the amount is deposited and disbursed to the parties, as expeditiously as possible, at any rate with in a period of one month.