U.P.Avas Evam Vikas Parishad vs Satya Prakash and Others

D. K. Seth, J.—The respondents has made this application and prayed that the decree be allowed to be executed since the defendantappellant has not complied with the order dated 30.8.1991, directing the defendantappellant to deposit half of the decretal amount. According to the calculation of the respondents the decretal amount would come to about rupees 45 lacs and odd. Whereas the defendantappellant has deposited only rupees twenty lacs. According to the claimantrespondents the amount deposited is short by about rupees two lacs.

The defendantappellant on the other hand filed an application dated 5.2.1996 contending that according to its calculation the amount is about rupees 27 lacs and odd and half of the said amount would be around rupees 13 lacs and odd. Whereas he has deposited rupees 20 lacs, being in excess by rupees seven lacs.

In order to decide the question, a report was asked for from the learned District Judge, Meerut, who had reported by an order dated 2.9.1994 that the amount deposited may be called in later and spirit noncompliance of the orderdated 30.8.1991, In the application dated 5.2.1996 the defendantappellant had sought for rejection of the said report dated 2.9.1994.

A perusal of the report dated 2.9.1994 reveals that it had negatived both the contention of the respondents and still then had held without proper calculation that the deposit was not in compliance of the High Court''s order. The conclusion of the said report appears to be inconsistent with the finding made in the earlier part of the report. But at the same time it has not endeavoured to calculate the amount even primafacie so as to ascertain as to whether half of the amount has been deposited or not.

Therefore, the concluding part of the said report being inconsistent with the earlier part of the report, the said report can not be relied upon.

The main question for determination is as to whether there has been compliance of the order dated 30.8.1991. From the affidavit filed in support of the application dated 5.2.1996 by the appellant the calculation of the total compensation payable in terms of the decree has been given. The respondents have its calculation in AnnexureCA2 to the counteraffidavit, where in he has pointed out that the total amount payable is about rupees 45 lacs and odd. The same has also been reflected in the rejoinderaffidavit in para3 Sri Prakash Krishna, learned counsel appearing on behalf of claimantrespondents does not dispute the figure so mentioned in para3 of the rejoinder affidavit and admits that the same represent correct translation of AnnexureCA2 to the counter affidavit.

A comparison of the two calculations made by the appellant and the claimantrespondents indicate that the respondents have included the additional compensation for the purposes of calculation of solatium and then went on calculating the interest on the total amount of compensation, additional compensation and solatium and thus arrived at a figure of rupees 45 lacs and odd. Whereas the appellant has calculated the solatium only the market value excluding additional compensation and had thereupon computed interest accordingly.

Sri Prakash Krishna, learned counsel for the respondents contends relying on the decision in the case of New Okhla Industrial Development Authority v. Mohendra Singh, 1996 ALJ 1883 : 1996(2) JCLR 144 (All); that the present appeal having been preferred against the money decree it is incumbent upon the appellant to deposit the entire decretal amount. According to him in view of the said judgment it is incumbent upon the appellant to deposit whole of the decretal amount. Therefore, he makes further prayer that the appellant should deposit the balance amount as well. He further submits that the appellant may be directed to furnish security for the purposes of withdrawing the said amount.

The said judgment has laid down a principle, on which normally the stay of execution is to be granted or refused in terms of Order XLI Rule5 of the Code of Civil Procedure. In the ratio decided in the said case the discretion of the Court has been recognised. Therefore, it has never laid down by way of absolute proposition that in each and every case where appeal is preferred against money decree, the Court is bound to direct deposit of whole of the decretal amount and that appeal will not be maintainable unless such amount is deposited. Then again Order XLI Rule 1 subrule (3) provides that the appellate Court may allow the appellant to deposit decretal amount in appeal against the money decree or to furnish such security, as the Court may think fit. The said question was also referred to in the judgment cited by Sri Prakash Krishna, learned counsel for the respondents. In the said case reference was made to the case of Central Bank of India v. State of Gujarat AIR 1987 SC 2320, wherein it was held that the High Court can in its discretion either direct for payment of the amount to the decree holder subject to the terms safeguarding the interest of judgmentdebtor or direct the amount to be deposited or invested on term of interest so that on disposal of the First Appeal appropriate direction could be given. Thus it is abundantly clear that it is according to the discretion of the Court, having regard to the facts and circumstances of the case, suitable order ought to be passed. No absolute proposition or formula can be laid down. It depends on the facts and circumstances of each individual case.

So far as the dispute with regard to calculation of solatium on the amount of market value including additional compensation provided under Section 23(l)(a) of the Land Acquisition Act (the Act in short) is concerned the contention of the learned counsel for the respondents does not appear to be sound for the simple reason that both the additional compensation provided in sub section (1A) and solatium provided in sub section (2) refers to the market value as provided in sub section (1) of Section 23. The calculation of market value has been indicated in sub section (1). By reason of the scheme of Section 23 the market value, additional compensation and solatium are three different ingredients, which cannot be confused with one or the other. The additional compensation is payable on the market value to be calculated under sub section (1) while solatium is payable on such market value, having reference to the market value, referred to in subsection (1). Even if reference is connected with subsection (1A) even then sub section (1A) also envisages market value as referred to in sub section (1). Sub section (1A) has not given different meaning or sense of the expression ''market value''. Therefore by reason of dear expression used in Section 23 having regard to its scheme, by no stretch of imagination, it can be said for the purposes of calculation of solatium the market value includes additional compensation provided under sub section (1A). The expression market value used in Section 23 cannot have different meaning in its different subsections. In order to interpret the provision in the Statute a consistent meaning is to be given reconciling all the provisions with each other. The expression used in the section and the scheme appears to be unambiguous and does not conceive of any scope of doubt in order to arrive at a different meaning.

Sri Singhal, learned counsel for the defendantappellant on the other hand relied on the decision in the case of Yadavroop Pathade v. State of Maharashtra, 1996 (1) Land Acquisition Laws 518; wherein it has been held:

"(2). Section 28 gives power to the Court to award interest when the Court enhance the compensation in excess of amount awarded by the Collector at the rate specified therein, namely, preceding the Amendment Act 68 of 1994, at 6% per annum under the Central Act or at the rates as per the appropriate Act amended by the local amendments to the Act. After the Amendment Act coming into force w.e.f. 24th September, 1984 the claimants would be entitled to interest at 9% per annum for one year from the date of taking possession and on expiry thereof, at 15% per annum till the date of the deposit into the Court.

(3). Section 23(1) envisages that in determination of compensation to be awarded for the land acquired under the Act the Court shall take into consideration the respective criteria laid in clause (1) to (6) applicable to the given facts of the case. Therefore, the Court is empowered under Section 23(1) to determine compensation to be awarded to the claimant.

(4). Section 23(2) provides that ''in addition'' to the market value of the land as above provided, the Court shall in every case award a sum at 15% preceding the Amendment Act and after the Amendment Act 30% p.a. on such market value in consideration of the compulsory nature of the acquisition. The Legislature, therefore, made a distinction between compensation under Section 23(1) and the additional amount on such market value as solatium in consideration of compulsory nature of acquisition. In other words Section 28 does not comprehend payment of interest on solatium when it expressly mentions payment of interest on compensation under Section 28 referable to Section 23(1) of the Act. Thus the High Court was right in not awarding interest on solatium. Similar view was taken by this Court after Periyar''s case (supra) by a three Judges bench in Prem Nath Kapur and another etc. v. National Fertilizers Corporation of India Ltd..

It is true that in Periyar''s case this Court had held that interest on solatium is part of the component under Section 23(1). Unfortunately, neither the provisions were considered nor the distinction of the above provisions had been brought to the notice of this Court at that time. Therefore, mistaken view was taken to hold that interest on solatium is part of the component of compensation under Section 23( 1) of the Act. It is needless to mention that under Section 28 the claimants will be entitled to the interest on enhanced compensation from the date of the award of the Court under Section 26 and on appeal under Section 54 on the respective compensation, if enhanced, till date of deposit in the Court. Therefore, the State is required to deposit the balance of interest on the enhanced compensation till date of deposit into the Court."

Sri Singhal relies on the decision in the case of Prem Nath Kapur and another v. National Fertilizers Corporation of India, 1996(2) SCC 71; wherein it has been held:

"(15). Equally, the contention that the claimant is entitled to interest on solatium is also not warranted by express provisions under Section 23(2) i.e., in addition to market'' value, solatium was required to be paid. Section 34 or Section 23 as the case may be, fastens liability to pay interest only on amount of compensation or such excess amount of compensation or part thereof determined under Section 23(1). In other words by virtue of the language of Section 23(2) viz., ''in addition to the market value'', as provided in Section 23(1), solatium becomes payable. Compensation under Section 23(1) by necessary implication, excludes the liability te pay interest on solatium Equally the question of payment of solatium on additional amount was also considered by this Court in P. Ram Reddy v. Land Acquisition Officer where it was held that no solatium is payable on additional amount payable under Section 23(1A). So too, no interest is payable on additional amount under Section 23(1A) on other components except on compensation or excess compensation or part thereof determined under Section 23(1) over and above the award under Section 11 by Civil Court under Section 26 or on appeal under Section 54 respectively.

The ratio in Meghraj case is equally inapplicable to the appropriation of debt under the Act. It is seen that by operation of Section 53 of the Act. Order 21, Rule 1 being inconsistent with the express provisions contained in Sections 34 and 28 stands excluded. The ratio therein therefore is applicable only to a debtor and creditor in an ordinary civil suit governed by the provisions of the Civil Procedure Code. Order XXI, Rule 1 being inconsistent with the express provisions contained in Sections 34 and 28 of the Act it cannot stand extended to the cases covered by the Act. It is unfortunate that these provisions were not brought to the attention of this Court when it decided Mathunni Mathai case which make all the difference. With due respect to our learned brethren who decided that case, we are therefore constrained to observe that Mathunni Mathai case cannot be taken to have laid down the correct law."

Sri Singhal has also relied on the decision in the case of State of Punjab v. Mohinder Singh Randhawa and another, AIR 1992 SC 473; where it has been held:

"4. On the other two aspects raised counsel for the respondents has fairly told us that the direction of the High Court cannot be sustained Section 23(1A) provides:

"In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value..."

Subsection (2) of Section 23 mandates:

"In addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value in consideration of the compulsory nature of the acquisition."

Reading the two provisions together it follows that the amount referred to in Section 23(1A) is not a part of the market value and therefore, calculation of solatium would not take into account that amount.

Thus, it appears that by no stretch of imagination solatium can be calculated on the basis of additional compensation and interest are also to be calculated on the basis of principle laid down in the said decision which supports the contention of Mr. Singhal, particularly, calculation given in para 8 of the affidavit supporting his application dated 521996.

Be that as it may this is not the stage where calculation has to be made. The said point can be agitated at the time of execution of decree. The finding recorded above, would be tentative in the present case for both the parties and will remain open to be agitated at the time of execution, if it is available to either of the parties. In the facts and circumstances of the case, it appears that there has been substantial compliance of the order dated 3081991. Therefore, the application of the claimantrespondents contending that stay should be vacated cannot be acceded to.

In the facts and circumstances of the case, it appears that the amount is payable to the respondents by the appellant, which is a part of the State. It cannot be said that the amount at the hands of the defendantappellant is insecured, so far as the respondents are concerned. It can not be said that in case the appeal fails the respondents cannot recover the amount from the defendant appellant. The responsibility of payment of the appellant is also supported by the State. The provision of Order XLI Rule 1(3) of the Code of Civil Procedure was incorporated to secure and safeguard the interest of the decree holder, having regard to safeguarding the interest of judgmentdebtor as well, as has been laid down in the case of Central Bank of India (supra). Having regard to the facts and circumstances of the present case it cannot be said that the money payable by the appellant is insecured so far as the respondent is concerned.

In that view of the matter I am not inclined to allow the prayer of the claimantrespondents to direct the deposit of the entire decretal amount.

The learned counsel for the respondent insists that in case the entire amount is not directed to be deposited in that event appellant should furnish adequate security as provided in Order XLI Rule 1(3) of the Code of Civil Procedure. Sri Singhal, learned counsel opposes the said prayer and contends that by reason of Order 27, Rule 8A the appellant is not required to furnish security in terms of Order XLI, Rule 5 of the Code.

Order XLI, Rule 1(3) requires the appellant to deposit decretal amount or furnish security in respect thereof as the Court may direct, according to its discretion. Such direction or deposit is not dependent on the question of grant of stay. The same is general proposition. Such order can be passed even when no prayer for stay is asked for or even when stay is being refused. Whereas Order XLI Rule 5 is dependent on the question of stay. But, however, the Court may impose a condition of compliance of Rule 1(3) of Order XLI when considering the question of grant of stay or granting such stay. Order XLI Rule 5(5) makes the situation clear where it provides that in case the appellant fails to make deposit or furnish security, if ordered by the Court, the execution of the decree shall not be stayed. Subrule (5) of Rule 5 stands substituted by means of Allahabad Amendment vide Notification, dated 3101993 as published on 111994 providing.

"(5) Notwithstanding anything contained in the foregoing sub rules where the appeal is against a decree for payment of money, the Appellate Court shall not make an order staying the execution of the decree, unless the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Appellate Court may think fit."

[Notification No. 552/VIld134, dated 3101993 published in U.P. Gazette Part II, dated 111994.]"

According to the said provision the appellant is not entitled to any order of stay unless he deposits the disputed amount or furnishes security in respect thereof as the Court may direct. Therefore, independent of Rule 1 (3) by reason of Allahabad Amendment the Court may direct deposit or furnishing of security in terms of Order XLI Rule 5(5) of the Rules.

The Order XXVII covering the suit by or against the Government or public officer in their official capacity in Rule 8A provides as under:

"8A. No security to be required from Government or a public officer in certain cases:

No such security as is mentioned in Rules 5 and 6 of Order XLI shall be required from the

Government or where the Government has undertaken the defence of the suit from any public officer sued in respect of an act alleged to be done by him in his official capacity."

Order XXVII Rule 8A above exempts the Government from furnishing any security as mentioned in Rule 5 and 6 of the Order XLI. Even without Allahabad Amendment for the purposes of consideration of grant of stay, the State Government may not be required to furnish security. But the said provision does not provide that the State Government would not be required to deposit decretal amount. So far as the deposit of the decretal amount is concerned, there being no exemption the Government stands on the same footing as ordinary litigant while preferring appeal. In such event it is discretion of the Court. The Court may direct the deposit for whole or part of the decretal amount or the disputed amount in its discretion. Similarly, while exercising such discretion the Court is free even not to direct deposit of any of the amount or part thereof. But, no way, such discretion is judicious one, having regard to the facts and circumstances of the case. There cannot be any straight jacket formula. It depends on facts and circumstances of each case, in which the Court would exercise its discretion and in what manner and how.

Thus it appears that the Government is not required to furnish security in view of the exemption provided in Order XXVII Rule 8A The learned counsel for the respondent contends that the appellant is not a Government. The appellant is a body corporate. Accordingly it is a different entity and juristic person having different identity from the Government. Therefore according to him Rule 8A Order XXVII of the Code is not attracted in the present case. Sri Singhal, learned counsel for the appellant on the other hand contends that the appellant is a part of the Government. According to him the land acquisition was undertaken by the Government. The said action is under question in the present appeal. The appellant has undertaken in defending the government cause. Therefore, according to him Rule 8A applies with full force.

The government by reason of present administrative set up encompasses and covers wide field. In implementation of different government policy the Government had extended itself into different implementing agencies. In its wisdom the Government had thought fit to undertake exercise for implementation of some of its policy through different bodies. There is no doubt about the fact as obtained in the present case where the appellant is an agency of government itself dealing with implementation of the policy which is controlled and monitored by the Government itself and the entire funds are also provided by the Government. This fact has not been disputed by the learned counsel for the respondent. Admittedly pursuant to the government policy land is acquired by the Government and is being handed over to the appellant for implementation of the government policy with regard to housing. The proceeding which has been challenged is a land acquisition proceeding. The appellant can not independently acquire land. The land is acquired by the Government. It is an acquisition proceeding undertaken by the Government which is under challenge. There is adidem of identity of interest. The land is acquired by the Government, compensation is payable by the Government, may be fund provided to the appellant would be utilised for such payment. Such a situation does not make the appellant a different entity from that of the Government. It is interest of the government that is being defended. The use of the expression in Rule 8A "where the government has undertaken defence" indicates that it is the interest of the Government which is the guiding factor for determining the applicability of Rule 8A. In the present case even if the fund is payable by the appellant, it is a Government who would be making payment. The appellant has been given right by reason of Section 50(2) of the Land Acquisition Act permitting the beneficiary for whom the land is acquired to appear and adduce evidence for the purposes of determining the amount of compensation either before the Collector or before the Court though it may not. Such beneficiary even if precluded from demand reference having given right to contest the reference may prefer appeal since the appeal as provided in Section 54 is made subject to Code of Civil Procedure while proceeding undertaken by the Court in reference under Section 18 is proceeding under the Code of Civil Procedure by reason of Section 53. Section 96 of the Code provides the appeal as of right. The right of appeal is a right given to the parties in the proceeding or whoever may be aggrieved by the decree.

In the case of Nayvely Lignite Corporation Limited v. Special Tehsildar, Land Acquisition, Leyvely and others, AIR 1996 SC1004; it has been held that appeal against the order under reference under Section 18 is for all purposes and appeal within the meaning of Section 96 of the Code. Similar view was expressed in the case of New Okhla Industrial Development Authority v. Rambal, AIR 1991 SC 68; wherein it has been observed that whosoever may be entitled to file appeal under Section 96 of the Code of Civil Procedure against the judgment and decree has a right under Sec4ion 54 also to file appeal against the Award. Under Section 96 of the Code of Civil Procedure any person who is aggrieved by a judgment and decree can prefer an appeal even if he is not is party. By leave of the court of an appeal will lie at the instance of the Corporation for whose benefit proceeding has taken place under the Land Acquisition Act. In the case of Neyvely Lignite Corporation Limited (supra) it was further held that even if the beneficiary is not made a party it is entitled to seek leave of the Court to file an appeal against the decree of the civil court under Section 26 or of judgment and decree under Section 54 or is entitled to file a writ petition under Article 226 of the Constitution and assail the legality and correctness of the order impugned. By reason of the said ratio it is the State who has to prefer an appeal but by leave of the Court, the beneficiary is also given a right to appeal and thus the beneficiary does not defend its own cause independently but that of the government.

In the present case it is the right of the Government which is being seconded by the beneficiary namely the appellant by reason of the right reserved under Section 15(2). Therefore, the appeal in a proceeding under Land Acquisition Act, preferred by the beneficiary is in effect an appeal by the Government, since it is the liability of the government to make payment though the fund may be provided by the beneficiary but still then the same is payable through the Government. It is the government who would be responsible on failure to pay and the award would be executable against the Government though equally against the beneficiary. Because of the Special Scheme of the Land Acquisition Act interest of the Government and the beneficiary cannot be separated. There being adidem of identity of interest, by no stretch of imagination, the present case cannot be said to exclude application under Rule 8A of the Rules.

Thus it is in view of Rule 8A, Order XXVII of the Code the Government is exempted from being required to furnish security. The contention of the learned counsel for the respondent cannot be acceded to. I am, therefore, not inclined to direct furnishing of security by the appellant.

In view of compliance of the interim order, as observed earlier, I am not inclined to pass any further order except that the interim order is confirmed and shall continue till the disposal of appeal.

The application filed by both the parties are thus disposed of.