Judgment:
P. Sathasivam, J.
1. Aggrieved by the common Judgment and decree of the learned Subordinate Judge, Padmanabhapuram dated 20-7-1995, made in L.A.O.P.Nos. 1/90 etc., the Sub Collector, Padmanabhapuram, Kanyakumari District has filed the above appeals.
2. Certain extent of lands in Aloor village, Kalkulam Taluk, Kanyakumari District were acquired by the Government. Notification under Section 4(1) of the Land Acquisition Act, 1894 (Central Act) (hereinafter referred to as 'the Act') was published on 11-6-1987. The Land Acquisition Officer, after enquiry, passed an award fixing market value at the rate of Rs.326.65 per Cent on 13-5-1989. Not satisfied with the amount fixed by the Land Acquisition Officer, at the instance of the land owners, the matters were referred to Sub Court, Padmanabhapuram, which resulted in L.A.O.P.Nos. 1/90 etc. On consideration of the materials placed, the learned Subordinate Judge enhanced the compensation by fixing the market value at the rate of Rs.812/- per cent for the acquired land and also awarded other statutory benefits. After disposal of the claim petitions, the claimants have preferred applications praying for amendment to the judgment and decree on the ground that though the award was passed on 7-9-1987 and possession taken on the same day, interest was granted only at the rate of 6 per cent. Like-wise, though solatium was granted at 30 per cent, no interest has been awarded by the Sub Court. By the impugned order dated 20-7-1995, the learned Subordinate Judge granted interest at 15 per cent for the enhanced compensation. The Sub Collector, Ramanathapuram/Land Acquisition Officer aggrieved by the award of interest at the rate of 15 per cent per annum from 7-9-1987, has filed the above appeals.
3. Heard learned Government Advocate for appellant as well as learned counsel for the respondents/claimants.
4. There is no argument relating to enhanced market value namely, Rs.812/- per Cent arrived by the Subordinate Judge. The only grievance of the appellant as projected by the learned Government Advocate is that the learned Subordinate Judge has committed an error in awarding interest for the enhanced amount at 15 per cent per annum from 7-9-87. According to him, Sub-section (1-A) of Section 23 of the Act, the claimants are entitled interest only at the rate of 12 per cent per annum and not 15 per cent as ordered by the Sub Court. On going through the said provision, we are unable to accept the contention of the learned Government Advocate. Sub-section (1-A) of Section 23 speaks about additional amount (that is) in addition to the market value of the land as determined by the Court. The claimants are entitled an amount at the rate of 12 per cent per annum on such market value for the period commencing on and from the date of publication of Notification under Section 4(1) to the date of the award of the Sub Collector or the date of taking possession of the land whichever is earlier. The relevant provision relating to payment of interest on excess compensation is found in Section 28. As per Section 28, if the Court enhances the compensation from the amount fixed by the Collector, the Court may direct that the Collector shall pay interest on such excess at the rate of 9 per cent per annum from the date on which he took possession of the land to the date of payment of such excess into Court. As per Proviso to Section 28, where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of 15 per cent per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry. Learned counsel appearing for the respondents/claimants has not seriously disputed regarding the entitlement of interest in terms of Section 28 of the Act. The judgement and decree of the learned Subordinate Judge has to be modified in so far as payment of interest in terms of Section 28 and not at the rate of 15 per cent per annum as fixed.
5. Learned counsel appearing for the respondents, by taking us through the impugned order of the learned Subordinate Judge, would contend that though the Sub Court has determined the market value of the acquired land, and solatium at the rate of 30 per cent granted additional compensation as per Section 23(1-A) and also interest as per Section 28, but no specific direction has been issued for payment of interest for the solatium. According to Mr. Arul learned counsel for the respondents, after the Constitution Bench judgment of the Supreme Court in Sunder v. Union of India, reported in : AIR2001SC3516 , the claimants are entitled interest on the solatium amount also. He also fairly stated that though the respondents/claimants have not filed cross-objection claiming interest for the solatium which was not granted by the Sub Court, even in the absence of cross-objection, in the light of their entitlement as declared by the Supreme Court and in view of Order 41, Rule 33 of Code of Civil Procedure, in the interest of justice, this Court has ample power to grant such relief.
6. Though prior to the Constitution Bench judgment of the Supreme Court in Sunder v. Union of India, the Courts have held that interest is not payable for solatium of 30 per cent, however, after the pronouncement of the Supreme Court in the said decision [Sunder v. Union of India], the claimants are entitled interest on the aggregate amount including solatium. There is no dispute about the law laid down by the Supreme Court. This has been reiterated by us in Tube Investments of India Ltd., v. The Special Tahsildar : (2004)3MLJ367 . It is clear that after the above decision of the Supreme Court, interest is payable not only to the actual market value of the land, but also for the additional amount as well as solatium. It is true that the learned Subordinate Judge has not granted interest for the solatium of 30 per cent.
7. Now we shall consider whether the respondents/claimants are entitled interest for solatium of 30 per cent in the absence of filing cross-objection in the present appeals filed by the Land Acquisition Officer. In Ravinder Kumar Sharma v. State of Assam, reported in : AIR1999SC3571 , the Supreme Court has held, (para 22)
'22.We hold that the respondent-defendant in an appeal can, without filing cross-objection attack an adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the decree to the extent the lower Court had dismissed the suit against the defendants-respondents. The filing of cross-objection, after the 1976 Amendment is purely optional and not mandatory. In other words, the law as stated in Venkata Rao's case AIR 1943 Mad 698 by the Madras Full Bench and Chandre Prabhuji's case : [1974]1SCR442 by this Court is merely clarified by the 1976 Amendment and there is no change in the law after the Amendment.'
8. In Thanthai Periyar Transport Corporation v. Sundari Ammal, reported in : (1999)3MLJ147 , a learned Judge of this Court (Madras High Court), while considering Order 41, Rule 33, held that even in the absence of cross-objection in appropriate cases, in order to render substantial justice, by resorting to Order 41, Rule 33 of the Code, relief can be granted.
9. In Annai Sathya Transport Corporation Ltd., v. Janardhanam, reported in : 2000(2)CTC272 which relates to award of compensation in motor claims case, wherein the Tribunal awarded interest from the date of judgment only, and the Transport Corporation alone filed appeal questioning the award and the claimants did not file any appeal or even cross-objection, the Division Bench, after holding that the Court has discretionary power by virtue of Order 41, Rule 33 to grant relief even where no appeal or cross objection is filed, by invoking such power, granted interest on award amount from the date of petition.
10. It is also relevant to note that Section 53 of the Land Acquisition Act, 1894 makes it clear that the provisions of Code of Civil Procedure, 1908 are applicable to all proceedings initiated under the said Act (Land Acquisition Act). In view of the same, it is not in dispute that Order 41, Rule 33 C.P.C. is applicable to the land acquisition proceedings. Inasmuch as the appeal is also continuation of the original proceedings, the said provisions are applicable to the appeals also and in view of the law laid down by the Apex Court as well as this Court in Sunder v. Union of India, interest is payable for the solatium amount, and in order to render substantial justice, we accept the request of the counsel for respondents/claimants and hold that the solatium amount also carries interest at the same rate as applicable to the enhanced compensation and additional amount.
11. In the light of what is stated above
(i) we modify the judgment and decree to the effect that in so far as the excess of the sum awarded by the Court there shall be interest on such excess at the rate of 9 per cent per annum from the date on which the Sub Collector took possession of the land to the date of payment of such excess into Court. We also clarify that where any interest or any part thereof was paid into Court, after the expiry of the period of one year from the date on which possession was taken, interest is payable at the rate of 15 per cent per annum from the date of expiry of the said period of one year on the amount of excess or part thereof which has not been paid into Court before the date of such expiry. To this extent, the impugned decree of the Sub Court is modified.
ii) The claimants are entitled interest for the solatium amount at the same rate as payable to the excess compensation and additional amount determined by the Sub Court. All the appeals are disposed of on the above terms. No costs.