THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.2197 of 2005 Between:
1. S.N. Reddy and others.
PETITIONERS AND
1. Government of Andhra Pradesh, rep. by its Secretary, Irrigation and Command Area Development Department, Secretariat, Hyderabad, and others.
RESPONDENTS ORDER:
This writ petition is filed under Article 226 of the Constitution of India seeking the following reliefs – “….to issue a writ, order or direction more in the nature of Mandamus directing the respondents (i) to work out the correct land value and solatium of the acquired lands of the petitioners and then work out the interest at 9% and 15% on the total value of these two sums as per the Judgement of the Hon’ble Sub Judge, Gadwal in O.P.Nos.2240 of 1984 and batch, dated 29.06.1990 and finally deduct the land value, solatium and interest paid by him from the total of these three sums and pay the balance (2) to work out interest on the correct market value of the acquired lands including solatium and pay the same and (3) to work out interest up to the date of deposit in the court and (4) adopt 27.05.1976 as the date of taking possession of the acquired lands for the purpose of compensation or alternatively adopt 3.11.1978 with all consequential benefits by holding the action of the respondents in not correctly calculating the market value of the acquired lands and also solatium and interest in terms of the judgment of the Hon’ble Sub Judge, Gadwal is as illegal, arbitrary, unjust and violative of Article 14 and 21 of the Constitution.”
2. Heard Sri M. Narender Reddy, learned counsel for the petitioners, learned Government Pleader for Land Acquisition for respondent and perused the material available on record.
3. The facts, in nutshell which are essential for resolving the issue in the present writ petition are as infra.
The petitioners are the owners of the lands, admeasuring Ac.0.17 guntas with a well in Sy.No.237 and Ac.2.28 guntas and Ac.4.00 guntas in Sy.Nos.2/1-A & 2/1-B of Chandur Village, Manavapad Mandal, Mahabubnagar District, and the Government acquired the said lands for the purpose of construction of Srisailam Hydro – Electric Project vide Notification dated 29.08.1974 and the Land Acquisition Officer, Wanaparthy, the 3rd respondent herein, passed Award Nos.19 & 22/94, dated 3.11.1978.
4. The petitioners received the compensation under protest and sought reference under Section 18 of the Land Acquisition Act, 1894 (hereinafter called ‘the Act’) and the same was numbered as O.P.Nos.2238 & 2241 of 1984 on the file of the Court of the Subordinate Judge, Gadwal, Mahabubnagar District. The learned Subordinate Judge answered the said reference by virtue of judgment dated 29.06.1990. The reference Court fixed the compensation at the rate of Rs.7000/- per acre and Rs.75,000/- for well and the said Award became final as no appeal was filed. Thereafter, the petitioners filed W.P.No.19686 of 1997, seeking a direction to the Land Acquisition Officer to deposit the decretal amount and this Court by way of an order dated 20.08.1997, disposed of the said writ petition, directing to deposit the entire amount of compensation due to the petitioners/claimants in O.P.Nos.2240, 2241, 2242, 2243, 2238 & 2239 of 1984 on the file of the Subordinate Judge, Gadwal, within a period of five months from the date of receipt of a copy of the order. As per the petitioners, the respondents received the said order in the last week of September, 1997 and the Land Acquisition Officer deposited Rs.1,69,630/- in the Court of the Subordinate Judge, Gadwal on 14.07.1998 contending that the Land Acquisition Officer made the said deposit only in part satisfaction, and alleging the following irregularities on the part of the Land Acquisition Officer, the present writ petition has been filed.
a) Wrongly determined the market value of the acquired land for purposes of calculation of interest.
b) Eliminated the solatium from the purview of the interest.
c) The decretal interest amount was not deposited upto the date of deposit in the Court.
d) Deducted income tax at 11.2% of the total interest and credited it to the Departmental Account of the I.T. Department.
e) Fixed the compensation on the basis of imaginary date and calculated the interest payable thereon as there is no record of the date of taking possession of the acquired lands.
5. In the counter affidavit filed on behalf of respondents 2 and 3, it is stated that as against the reference answered by the Court of Subordinate Judge, the State preferred appeals before this Court under Section 54 of the Act and the same were dismissed, confirming the order of reference answered by the Subordinate Court, vide orders dated 12.07.1996 in A.S.No.1900 of 1996 and batch and dated 6.08.1996 in A.S.No.719 of 1991 and batch. It is further stated in the counter that pursuant to the same, after obtaining administrative sanction, the Land Acquisition Officer vide proceedings No.B1/813/99 dated 8.07.1998 issued cheque No. SLM 062372, dated 14.07.1998 for Rs.2,01,400/- and deposited in O.P.Nos.2242, 2243, 2238 of 1984 towards decretal amount with interest and Rs.16,153/- was deducted towards income tax and remitted with the Income Tax Department. The main thrust and insistence of the petitioners in the present writ petition is on interest on solatium and the deduction of income tax.
6. The first contention of the learned counsel for the petitioners is that in view of the law laid down by the Hon’ble Apex
[1]
Court in the case of Sunder v. Union of India , the petitioners are entitled for interest on solatium also. The second contention advanced by the learned counsel for the petitioners is that the respondent- authorities grossly erred in deducting the amount towards income tax.
7. With regard to the first contention advanced by the learned counsel for the petitioners on the aspect of payment of interest on solatium, the learned Government Pleader places reliance on the judgment of the Hon’ble Apex Court in the case of Gurpreet Singh v.
[2]
Union of India , wherein at paragraph No.54 the Hon’ble Apex Court held as under.
“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 the counsel to address us on that question. That question is whether in the light of the decision in Sunder, 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 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 execution court to apply the ratio of Sunder 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 (19-09-2001) and not for any prior period. We also clarify that this will not entail any re-appropriation 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 avoid multiplicity of litigation on this question.
8. As per the above referred judgment of the Hon'ble Apex Court, the claims shall be entertained only in pending executions and the entitlement also accrues only from the date of Sunder’s case and not from any prior date. In view of the above referred judgment cited on behalf of the respondent-Government, the claim of the petitioners herein is unsustainable and untenable. Another significant aspect is that the proceedings with regard to the acquisition, in the instant case, came to an end as long back as in the year 1998 by way of payment of a cheque. It is also appropriate to mention at this juncture that in the instant case, as per the material available on record, no execution petitions were filed by the petitioners herein.
9. Another judgment, which is relevant and needs to be referred at this juncture, is the judgment of this Court in the case of Bhimidipati Annpoorna Bhavani v. Land Acquisition Officer, Yeluru Reservoir Project, Pedapuram, East Godavari District, A.P.,
[3]
and ors. wherein at paragraph No.26 a larger bench of this Court held as under.
“The above discussion would lead us to hold that the power, which the High Court exercises under Article 226 of the Constitution, is a discretionary power. Though the power is discretionary and no limits can be placed upon such discretion, it has been held judicially that power must be exercised along recognised lines and not arbitrarily. There are no limits to such power and has to be exercised judiciously. However, while exercising this power Courts have imposed certain limits in exercise of those powers, which are known as self-imposed limitations. One of the self-imposed restrictions is that High Court generally refrains from entertaining a writ petition when there is adequate and efficacious alternate remedy available to a party, and, when such alternate remedy available is a statutory remedy, such statutory remedy has been duly exhausted. Availability of such alternate and efficacious or statutory remedy itself is not a bar in entertaining a writ petition in the given facts and circumstances. We need not multiply the circumstances in which such discretionary power may be exercised by the court in such matters despite availability of such alternate, adequate and efficacious remedy. But the limits as noticed in B. Govinda Reddy’s case supra by a learned ingle Judge of this court, are sufficient that in cases arising out of the Act where the amount of compensation, finally determined has not been paid, a person must first resort to the alternate efficacious remedy of taking out execution and when despite taking out execution proceedings, if there is any delay caused on the part of authorities, resort can be had to filing of a writ petition in this Court and, this Court, while exercising its discretionary jurisdiction, in appropriate cases, may issue directions for immediate deposit of the amount of compensation by the Sate Government or the authorities on whose behalf the land has been acquired.
10. Coming to the aspect of deduction of income tax, the same is no longer res integra. In fact, a Division Bench of this court dealt with the said issue in W.P.No.6425 of 2012 and by virtue of an order dated 09.03.2012, nagetived the said contention. Therefore, this court finds no valid reasons to show indulgence to the petitioner for granting the relief. This Court also finds that there are no merits in the writ petition.
11. In view of the principles laid down by the Hon'ble Apex Court and this Court in the above referred judgments, the order dated 31.08.2012 passed by this court in W.P.No.2174 of 2005 sought to be relied upon by the learned counsel for the petitioner would not render any assistance to the petitioners.
12. Accordingly the writ petition is dismissed. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
25th June, 2014 Js.
[1] (2001) 7 SCC 211
[2] (2006) 8 SCC 457
[3] 2005 (3) ALD 233 (L.B.)