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Judgment
S.M. Sidickk, J.—The revision petitioner is the petitioner/decree-holder, and the respondent is the Land Acquisition Officer/respondent
before the court below.
The revision petition is filed as against the fair and decretal order dated 27.8.1998 made in R.E.A.No. 86 of 1998 in L.A.O.P.No. 35 of 1993
on the file of Subordinate Judge''s Court at Tirupattur in Veilore District.
The revision petitioner/decree-holder has challenged the award passed by the respondent/Land Acquisition Officer u/s 18 of the Land
Acquisition Act for the enhanced compensation in L.A.O.P.No. 35 of 1993 on the file of Subordinate Judge''s Court at Tirupattur, Veilore
District. An award was passed by the Subordinate Judge''s Court at Tirupattur for the enhanced compensation. Aggrieved against said decision of
the Subordinate Judge''s Court at Tirupattur in L.A.O.P.No. 35 of 1993, the Respondent/Land Acquisition Officer has filed an appeal in A.S.No.
432 of 1997 which is still pending on the file of High Court of Madras. There was no stay of execution granted by the High Court in the appeal
preferred by the respondent/Land Acquisition Officer herein in A.S.No. 432 of 1997. So the revision petitioner/decree-holder filed the execution
petition in R.E.A.No. 186 of 1998 under Rules 163 and 165 of Civil Rules of Practice to withdraw the enhanced amount of Rs. 14,60,810 which
was deposited by the respondent/Land Acquisition Officer. The said application was resisted by the respondent/Land Acquisition Officer by filing
a counter statement. After considering the objections of the respondent/Land Acquisition Officer, the learned Subordinate Judge at Tirupattur has
passed the impugned order by stating in Tamil as follows:
Aggrieved against the said order, the present revision petition is filed by the revision petitioner/decree-holder.
It is relevant to note that the reference for the enhanced compensation was taken on file by the Subordinate Judge at Tirupattur as L.A.O.P. No.
35 of 1993. Thereafter, a judgment was delivered by the learned Subordinate Judge at Tirupattur in the said L.A.O.P.No. 35 of 1993 on
31.10.1995 for enhanced compensation. As against the said judgment dated 31.10.1995, the respondent/Land Acquisition Officer has preferred
an appeal only in the year 1997, which was taken on file as A.S.No. 432 of 1997 on the file of High Court, Madras. There was no stay granted by
the High Court, Madras for execution of the decree obtained by the revision petitioner/decree-holder in L.A.O.P.No. 35 of 1993 till date. These
are the admitted facts in this case.
Order 41, Rule 5(1) of C.P.C. states that an appeal shall not operate as a stay of proceedings under a decree or order appealed from except so
far as the appellate court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree.
Order 41, Rule 5(2) of C.P.C. states that where an application is made for stay of execution of an appellate decree, the court which passed the
decree may on sufficient cause being shown order the execution to be stayed. Therefore, the mere pendency of the appeal itself cannot be a
ground to dismiss the execution petition filed by the revision petitioner/decree-holder herein and in such circumstances the impugned order passed
by the learned Subordinate Judge at Tirupattur has to be set aside.
However the learned Counsel for the respondent/Land Acquisition Officer argued that recently the Land Acquisition Act of 1894 was amended
by the Amendment Act 16 of 1997 and Section 23-A was introduced for restriction on the withdrawal of the compensation amount in the land
acquisition proceedings, and so the execution petition filed by the revision petitioner/decree-holder is not maintainable under law.
The learned Counsel for the revision petitioner/decree-holder repudiated the above contention of the learned Counselor the respondent/Land
Acquisition Officer by stating that the amendment Act of 16 of 1997 in respect of the Land Acquisition Act of 1894 was published in the Tamil
Nadu Government Gazette dated 20.3.1997, and it received the assent of the President of India only on 14.3.1997, and it is not retrospective in
effect, and therefore, the said Section 23-A will have no application to the facts of the present case in as much as the decree was passed for
enhanced compensation by the Subordinate Judge at Tirupattur in L.A.O.P.No. 35 of 1993 as early as on 31.10.1995.
Section 23-A of the Land Acquisition Act, which was incorporated by the Amendment Act 16 of 1997 in Land Acquisition Act of 1894 states
that the amount of compensation awarded by any court under this Act shall be deposited in that court and the court shall not allow the person
interested to withdraw such amount till the final disposal of the matter in this regard in the highest forum. There is a proviso also to the newly
introduced Section 23-A which states that if the court considers that it is absolutely necessary to allow the person interested to withdraw the
compensation amount, the court may allow him to withdraw the only amount awarded by the Collector. At any rate this section newly introduced
by the Amendment Act 16 of 1987, which came into force only on 14.3.1997 is only prospective and not retrospective, and therefore this is not
applicable to the decree passed by the Subordinate Judge at Tirupattur in L.A.O.P.No. 35 of 1993 on 31.10.1995. This view gains support from
a decision of Madras High Court reported in Arumuga Muthariyar v. D.R.O., Thanjavur (1998)1 M.L.J. 428, where His Lordship Justice Nainar
Sundaram, J. held as follows:
Retrospective operation of the provisions of an Act should not be given so as to impair an existing right or obligation unless it appears by express
words or by plain implication that it was the intention of the legislature. In other words statutory provisions taking away substantive rights are
ordinarily prospective.
It was also brought to my notice by the learned Counsel for the revision petitioner/decree-holder that a writ petition is pending before the High
Court, Madras, questioning the constitutional validity of this Amendment Act 16 of 1997, and in those circumstances the revision
petitioner/decree-holder must be permitted to withdraw the enhanced compensation amount that is lying in the civil court deposit without giving any
benefit to any one of the parties in the land acquisition proceedings, and the beneficiary by this deposit is only the State Bank of India. Where the
deposited amount is lying idle, and the beneficiary is neither the landowner nor the Land Acquisition Officer because it is an idle deposit lying in the
civil court deposit in the State Bank of India. This contention is acceptable in view of the fact that the amount deposited will be lying idle till the
disposal of the appeal in A.S.No. 432 of 1997 by the High Court. In as much as the appeal in O.S.No. 432 of 1997 is pending on the file of High
Court, Madras, it cannot be predicted now as to whether the same enhanced compensation that is deposited into the lower court will be available
to the decree-holder in this case after the disposal of the appeal. In other words if the High Court allows the appeal in A.S.No. 432 of 1997 and
reduces the enhanced compensation, then the decree-holder will be entitled to a lesser sum than what was deposited before the lower court.
Therefore in the interest of justice and equity I am of the view that only 50% of the enhanced compensation amount can be Withdrawn by the
revision petitioner/decree-holder from the deposited amount into court, and out the 50% of the compensation amount deposited into the lower
court, 25% of the same can be withdrawn by the revision petitioner/decree-holder without furnishing any security, and another 25% of the
compensation amount deposited into the lower court can be withdrawn by furnishing sufficient security by the revision petitioner/decree-holder to
the satisfaction of the Subordinate Judge at Tirupattur in L.A.O.P.No. 35 of 1993.
With regard to the remaining 50% of the amount deposited into the lower court towards the enhanced compensation, the learned Counsel for
the revision petitioner/decree-holder made a submission that he must be permitted to withdraw the remaining 50% of the amount deposited into the
lower court, in the event of the writ petition pending before the High Court of Madras challenging the constitutional validity of the Amendment Act
16 of 1997 is allowed. Even if the writ petition pending before the High Court, Madras challenging the Constitutional validity of the Amendment
Act 16 of 1997 is allowed the risk of the enhanced compensation awarded by the trial court may be or may not be reduced in the appeal in
A.S.No. 432 of 1997 pending on the file of High Court of Madras. In other words we cannot at this stage speculate as to what will be the verdict
that will be rendered by the appellate court in A.S.No. 432 of 1997 on the file of the High Court, Madras, and we are not certain as to when the
appeal in A.S.No. 432 of 1997 will be taken up for final disposal. In such a situation the High Court, Madras itself has given instructions to the
lower courts for investing the compensation amount lying idle in civil court deposit in fixed deposit in any one of the nationalised banks. On this
aspect there are two circulars issued by the High Court of Madras to the lower courts and they are as follows.
In the first circular dated 11.3.1991 in R.O.C.No. 737/A/86 R.R. it is stated as follows:
Roc.No. 737/A/86.R.R.
Circular
Sub: Investment of amount deposited in compensation cases - Instructions - Issued.
Ref: (1) Suggestion made by the Thiru S.M. Sidickk Principal Sub-Judge, Coimbatore.
(2) High Court''s Official Memorandum Roc.No. 2100/90 F.1 dt.5.9.1960 communicating a copy of the conclusions of the conference of Judicial
Officers.
It has been represented at the conference of the District Judges, Chief Judicial Magistrate and Subordinate Judges held in the High Court on
12.7.1980 and 13.7.1980 that the amounts deposited in compensation cases remain unclaimed by the parties. They are lying idle in civil court
deposit for a number of years. These amounts are being carried over every year in the accounts maintained by the office resulting in unnecessary
scriptory and clerical work. They are also not lapsed to the Government. It has therefore been suggested that orders must be passed by the High
Court that the amount deposited in compensation cases which remain unclaimed for more than one year, should be invested suo-motu by the
courts in fixed deposit in any Nationalised Bank thereby reducing the scriptory and clerical work or in the alternative orders must be passed that
the amount deposited in compensation cases, which remain unclaimed for more than three years should be lapsed to the Government. The above
suggestions were considered by the High Court at the conference of the Judicial Officers. It was decided that the unclaimed land acquisition
compensation amounts may be deposited in the Nationalised Bank for a minimum period 63 months with option to encash the same before the
maturity period, if occasion arises. The Presiding Officers of the courts below are therefore required to implement the above decision as and when
necessity therefore arises.
(Sd) Registrar
11.3.1981.
In the second circular dated 7.3.1984 in Roc.No. 5572/A/83 F-1 it was stated by the Registrar of the Madras High Court in the following
words:
Roc.No. 5572-A/83 F-1. Dt.7th February, 1984.
Circular
Sub: Investments-Investments of suitors'' monies of funds in the Nationalised Banks by the Civil Courts-instructions-issued.
A clarification has been sought for from the High Court as to the propriety of suitors'' amounts invested by one of the Subordinate Courts in fixed
deposit with a Nationalised Bank and in this regard, the following instructions are issued by the High Court.
(2) If the concerned parties to the suit or proceedings desire that the suitors'' amount in Court deposit be invested in any one of the Nationalised
Banks (which is also one of the approved form of securities even under the Guardian and Wards Act) or the State Bank, then such investments
should be made accordingly. In other cases the suitors'' amounts may be invested for short periods in any Nationalised Bank (as such Banks are
also carrying on all Banking business activities transacted by the State Bank of India) by the Court ensuring that the amounts could be withdrawn at
short notice and also recording the reasons for such investment.
(3) The receipt of this circular is required to be acknowledged at an early date.
(sd) S. Janarthanam
Registrar.
In the light of the circulars of the High Court of Madras and in view of the pendency of the appeal in A.S.No. 432 of 1997 in this matter, it is
desirable that the remaining 50% of the enhanced compensation should be invested in any one of the Nationalised Bank for a period of 5 years
with liberty to encash the same before the maturity period whenever required by the Court of Law. The interest that will accrue on such fixed
deposits will ensure to the benefit of the decree holder and he can withdraw the same after the disposal of the appeal in A.S.No. 432 of 1997.
Considering the above facts and circumstances of the case, I am to hold that the only 50% of the enhanced compensation amount deposited
into the lower court by the respondent/Land Acquisition Officer in this case can be withdrawn by the revision petitioner/decree-holder from the
deposit amount into the court, and out of the 50% of the compensation amount deposited into the lower court, 25% of the same can be withdrawn
by the revision petitioner/decree-holder without furnishing any security, and another 25% of the compensation amount deposited into the lower
court can be withdrawn by the revision petitioner/decree-holder by furnishing sufficient security to the satisfaction of the Subordinate Judge at
Tirupattur in L.A.O.P.No. 35 of 1993, and the learned Subordinate Judge at Tirupattur is directed to invest the remaining 50% of the enhanced
compensation amount deposited in fixed deposit for a period of five years in any one of the Nationalised Banks with liberty to the court to
withdraw the same before the maturity period whenever required by any court of law, and the interest that will accrue on such fixed deposit will
ensure to the benefit of the decree-holder, and the decree-holder is entitled to withdraw the interest that will accrue on such fixed deposit after the
disposal of the appeal in A.S.No. 432 of 1997 on the file of High Court, Madras, and the revision petition has to be allowed accordingly, and I
answer this point accordingly.
In the result the revision petition is allowed without costs. The fair and decretal order dated 27.8.1998 made in R.E.A.No. 86 of 1998 in
L.A.O.P.No. 35 of 1993 on the file of the Subordinate Judge''s Court at Tirupattur, Vellore District are set aside. It is ordered that only 50% of
the enhanced compensation amount deposited into the lower court by the respondent/Land Acquisition Officer, can be withdrawn by the revision
petitioner/decree-holder from the deposited amount into the lower court, and out of the 50% of the compensation amount, deposited into the
lower court, 25% of the same can be withdrawn by the revision petitioner/decree-holder without furnishing any security, and another 25% of the
enhanced compensation amount deposited into the lower court can be withdrawn by the revision petitioner/decree-holder by the furnishing
sufficient security to the satisfaction of the Subordinate Judge at Tirupattur in L.A.O.P.No. 35 of 1993.
It is further ordered that the remaining 50% of the enhanced compensation amount deposited into the lower court by the respondent/Land
Acquisition Officer is directed to be invested by the lower court in fixed deposit in any one of the Nationalised Banks for a period of 5 years with
liberty to encash the same before the maturity period whenever required by any court of law, and the interest that will accrue on such fixed
deposits will ensure to the benefit of the revision petitioner/decree-holder, and the revision petitioner/decree-holder is entitled to withdraw the
interest that will accrue on such deposit along with the remaining 50% of the enhanced compensation amount that will be fixed by the appellate
court after the disposal of the appeal in A.S.No. 432 of 1997 pending on the file of High Court, Madras.