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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO.     5115     of     2005   

STATE OF HARYANA & ANR.    ...Appellant(s)

   VERSUS

KARTAR SINGH (D) THROUGH LRS.    ...Respondent(s)

WITH

Civil     Appeal     No.     5116     of     2005   

Civil     Appeal     No.     5096     OF     2005   

Civil     Appeal     Nos.     5097-5098     of     2005   

J      U      D      G      M      E      N      T   

R.M.     LODHA,     J.   

Civil     Appeal     No.     5115     of     2005   

This Appeal, by special leave, has been filed  

under Article 136 of the Constitution of India by the  

State of Haryana and the Land Acquisition Collector,  

Urban Estate, Panchkula against the judgment and  

order of the Punjab & Haryana High Court dated

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April 1, 2003.

2. The controversy arises in this way.  On  

May 2, 1973, the Government of Haryana issued  

notification under Section 4 of the Land Acquisition  

Act, 1894 (for short, 'LA Act') proposing to acquire  

land  for  residential and commercial area as  

Sector 13 and Sector 13 Extension at Karnal,  

Haryana.

3. Subsequent thereto, declaration was made under  

Section 6 of the LA Act and then the award came to  

be passed by the Land Acquisition Collector on  

November 23, 1973 fixing the market value of the  

acquired land at the rate of Rs. 270/- per Biswa.  

The respondents' land is part of the above  

acquisition in the award.

4. The respondents were not satisfied with the  

market value determined by the Land Acquisition  

Collector and sought reference under Section 18 of  

the LA Act. The matter was referred to the civil  

court for determination of compensation for  

compulsory acquisition of the respondents' land.   

5. The reference court on May 17, 1980 decided

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the reference(s) and enhanced compensation at the  

rate of Rs. 22/- per square yard. The reference  

court also awarded solatium at the rate of 15% on  

the enhanced amount of compensation and interest at  

the rate of 6% from the date of dispossession till  

the payment was made as awarded.

6. The respondents did not carry the matter  

further. However, the State of Haryana was  

dissatisfied with the determination of compensation  

by the reference court and, accordingly, preferred  

first appeal before the Punjab and Haryana High  

Court.

7. On January 16, 1981, the first appeal  

preferred by the State of Haryana was dismissed by  

the single Judge of the High Court and the judgment  

and award by the reference court was upheld.  It is  

pertinent to mention that during the pendency of the  

first appeal, the respondent No. 1 had laid  

execution of the award passed by the reference court  

by making an execution application in 1980.

8. The State of Haryana preferred special leave  

petition against the award and decree of the High

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Court but was unsuccessful. Special leave petition  

was dismissed by this Court on December 12, 1983.

9. Vide Land Acquisition (Amendment) Act, 1984  

(for short, 'Amendment Act'), LA Act came to be  

amended with effect from September 24, 1984.  By the  

Amendment Act, Section 23 of the LA Act was amended.  

There was amendment in Section 28 of the LA Act as  

well.  Section 30 of the Amendment Act provided for  

transitional provisions.  

10. On April 28, 1989, the respondents made an  

application under Sections 151 and 152 of the Code  

of Civil Procedure (for short, 'CPC') before the  

High Court in the disposed of first appeal against  

which the special leave petition preferred by the  

State of Haryana had already been dismissed.  By  

this application the respondents prayed for the  

benefits of the amended provisions in LA Act  

particularly Sections 23(1-A) and 23(2) thereof.

11. The High Court allowed the application made by  

the respondents for grant of benefits of the amended  

provisions on April 28, 1989 and granted benefits of  

the amended provisions of Sections 23(1-A) and 23(2)

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of the LA Act to them.

12. The respondents then filed another execution  

petition for execution of the award and decree dated  

April 28, 1989.  On behalf of the appellants, an  

objection was raised that the award and decree  

passed by the High Court on April 28, 1989 was  

without jurisdiction and, therefore, not executable  

and enforceable.

13. The executing court, vide its order dated  

April 6, 1999, overruled the objection taken by the  

appellants and held that it was not open to the  

executing court to go behind the decree. The present  

appellants challenged the order of the executing  

court by filing a revision petition before the High  

Court.  The revision petition has been dismissed by  

the impugned order.

14. Mr. Manjit Singh, learned Additional Advocate  

General, appeared for the appellants and submitted  

that the decree passed by the High Court on  

April 28, 1989 giving the benefits of amended  

Sections 23(1-A) and 23(2) of the LA Act to the

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respondents was a nullity and without jurisdiction.  

He relied upon the decisions of this Court in State  

of Punjab and another  Vs.  Babu Singh and others1,  

Union of India  Vs.  Swaran Singh &  others2   and  

Sarup Singh and another  Vs.  Union of India and  

another3.   

15. Mr. Manoj Swarup, learned counsel for the  

respondents, in the first place distinguished the  

decision of this Court in  Swaran Singh2  by making  

reference to the observations made by this Court in  

para 7 which reads, “Admittedly, as on that date the  

claimants were entitled to solatium at 15% and  

interest at 6%”.  Secondly, learned counsel for the  

respondents submitted that Swaran Singh2 did not lay  

down good law.  He cited the decision of this Court  

in Balvant N. Viswamitra and others   Vs.  Yadav  

Sadashiv Mule (Dead) through LRs. and others4   to  

draw a distinction between a 'void decree' and an  

'illegal, incorrect and irregular decree'.  Learned  

counsel submitted that the judgment and decree  

1   1995 Supp (2) SCC 406 2   (1996) 5 SCC 501 3   (2011) 11 SCC 198 4   (2004) 8 SCC 706

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passed by the High Court on April 28, 1989 could at  

best be termed as an 'illegal, incorrect and  

irregular decree' but surely it is not a 'void  

decree'.  He also referred to the decision of this  

Court in National Agricultural Cooperative Marketing  

Federation of India Ltd. and another  Vs.  Union of  

India and others5 to butress his point that the  

decree dated April 28, 1989 having attained finality  

as its correctness, legality and validity was never  

challenged and, therefore, could not have been set  

up in the execution proceedings.     

16. In  Babu Singh1 a two Judge bench of this  

Court was concerned with an appeal filed by the  

State of Punjab and its functionary against the  

judgment and order of the High Court whereby the  

High Court allowed the applications made by the  

expropriated owners under Sections 151 and 152, CPC  

to amend the decree by awarding the benefits of  

enhanced solatium and additional amount available  

under Section 23(1-A) and Section 23(2) and  

Section 28 of the LA Act as amended by the Amendment  

Act.  This Court held that the High Court was  

5   (2003) 5 SCC 23

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clearly without jurisdiction in entertaining the  

applications under Sections 151 and 152, CPC to  

award additional benefits under the amended  

provisions of the LA Act.  The discussion of this  

Court in Babu Singh1 reads as follows :

“4.  It is to be seen that the High  Court acquires jurisdiction under Section  54 against the enhanced compensation  awarded by the  reference court under  Section 18, under Section 23(1) with  Section 26 of the Act. The Court gets the  jurisdiction only while enhancing  or  declining to enhance the compensation to  award higher compensation. While enhancing  the compensation "in addition" to the  compensation under Section 23(1), the  benefits enumerated under Section 23(1-A)  and Section 23(2) as also interest on the  enhanced compensation on the amount which  in the opinion of the Court "the Collector  ought to have awarded in excess of the sum  which the Collector did award", can be  ordered. Thus, it would be clear that  civil court or High Court gets  jurisdiction when it determines higher  compensation under Section 23(1) and not  independently of the proceedings.

5. This is the view taken by this  Court in State of Punjab v. Satinder Bir  Singh (sic.), disposed of on 22-2-1995.The  same ratio applies to the facts in this  case, since as on the date when the  judgment and decree was made by the High  Court, the law was that the High Court  should award solatium at 15% and interest  at 6%. Payment of additional amount as  contemplated under Section 23(1-A) cannot  be made since the notification under

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Section 4(1) was dated 11-12-1974 and even  the award of the District Court was dated  23-2-1978. Under these circumstances, the  LA Amendment Act 68 of 1984 has no  application and there is no error in the  award or the decree as initially granted.  The High Court was clearly without  jurisdiction in entertaining the  applications under Sections 151 and 152 to  award the additional benefits under the  Amendment Act 68 of 1984 or to amend the  decrees already disposed of.”

17. In Swaran Singh2  the correctness of the decree  

passed by the High Court giving the expropriated  

owners benefits of amended provisions of solatium  

and interest under Section 23(2) and proviso to  

Section 28 of the LA Act as amended by the Amendment  

Act was in issue.  That was a case where  

notification under Section 4(1)  of the LA Act was  

published on June 10, 1977 proposing to acquire the  

land for extension of Amritsar Cantonment at Village  

Kala Ghanpur. The award was made by the Collector  

under Section 11 on August 28, 1978.  On reference  

under Section 18, the reference court enhanced the  

compensation by its award and decree dated December  

24, 1981.  The award and decree passed by the  

reference court was confirmed by the single Judge as

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well as by the Division Bench of the High Court and  

special leave petitions from the judgment of the  

High Court were dismissed.  On July 28, 1987, after  

the amendments were made in LA Act by the Amendment  

Act, the owners made applications under Sections 151  

and 152, CPC for award of enhanced solatium and  

interest. The High Court allowed the applications.  

When execution applications were laid, the executing  

court dismissed them, but on revision the High Court  

allowed them and directed execution of enhanced  

solatium and interest. It is from this order that  

the appeals, by special leave, were preferred by the  

Union of India before this Court.  This Court in  

para 7 and 8 (pages 502-503) held as under :

“7. It is settled law that after the  Reference Court has granted an award and  decree under Section 26(1) of the Act  which is an award and judgment under  Section 26(2) of the Act or on appeal  under Section 54, the only remedy  available to a party is to file an  application for correction of clerical or  arithmetical mistakes in the decree. The  award of solatium and interest would be  granted on enhancement of compensation  when the court finds that the compensation  was not correct. It is a part of the  judgment or award. Admittedly, as on that  date the claimants were entitled to

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solatium at 15% and interest at 6%. The  Amendment Act 68 of 1984 came into force  as on 24-9-1984. It is settled law that if  the proceedings are pending before the  Reference Court as on that date, the  claimants would be entitled to the  enhanced solatium and interest. In view of  the fact that the Reference Court itself  has answered the reference and enhanced  the compensation as on 24-12-1081, the  decree as on that date was correctly drawn  and became final.

8. The question then is whether the High  Court has power to entertain independent  applications under Sections 151 and 152  and enhance solatium and interest as  amended under Act 68 of 1984. This  controversy is no longer res integra. In  State of Punjab V. Jagir Singh [1995 Supp. (4) SCC 626] and also in catena of  decisions following thereafter in Union of  India V. Pratap Kaur [(1995) 3 SCC 263];  State of Maharashtra V. Maharau Srawan  Hatkar [(1995) 3 SCC 316 : JT 1995 (2) SC  583]; State of Punjab V. Babu Singh [1995  Supp. (2) SCC 406]; Union of India V.  Raghubir Singh [(1989) 2 SCC 754]; and  K.S. Paripoornan V. State of Kerala  [(1994) 5 SCC 593] this Court has held  that the Reference Court or the High Court  has no power or jurisdiction to entertain  any applications under Sections 151 and  152 to correct any decree which has become  final or to independently pass an award  enhancing the solatium and interest as  amended by Act 68 of 1984. Consequently,  the award by the High Court granting  enhanced solatium at 30% under Section 23  (2) and interest at the rate of 9% for one year from the date of taking possession  and thereafter at the rate of 15% till  date of deposit under Section 28 as  amended under Act 68 of 1984 is clearly

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without jurisdiction and, therefore, a  nullity. The order being a nullity, it can  be challenged at any stage. Rightly the  question was raised in execution. The  executing Court allowed the petition and  dismissed the execution petition. The High  Court, therefore, was clearly in error in  allowing the revision and setting aside  the order of the executing Court.”

18. In Swaran Singh2   it has been clearly held that  

the High Court has no power to entertain an  

independent application under Section 151 and  

Section 152 of the CPC and enhance solatium and  

interest as amended under the Amendment Act.  

19. The sentence “Admittedly, as on that date the  

claimants were entitled to solatium at 15% and  

interest at 6%” in para 7 in  Swaran Singh2 is hardly  

a distinguishing feature.   Swaran Singh2  is on all  

fours and is squarely applicable to the present fact  

situation. We have no reason, much less a  

justifiable reason, to doubt the correctness of law  

laid down in Swaran Singh2.

20. Swaran Singh2 has been referred to by this  

Court in para 26 (page 208) of comparatively recent  

judgment in Sarup Singh3 and followed.  In para 25

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(page 208 of the report) this Court in Sarup Singh3  

held as under :

“25. In the present cases the judgment  and order passed by the High Court before  Amendment Act of 68 of 1984 became final  and binding as no appeal was brought to  this Court thereafter. However,  consequent to the amendment in the Land  Acquisition Act, the appellants had filed  civil miscellaneous applications for the  grant of 30% solatium and 9% interest for  first year and 15% interest thereafter.  This Court has also held in a catena of  decisions that a decree once passed and  which has become final and binding cannot  be sought to be amended by filing  petition under Sections 151 and 152,  CPC.”

21. Legal position is no more res integra that an  

award and decree having become final under the LA  

Act cannot be amended or altered seeking enhancement  

of the statutory benefits under the amended  

provisions brought in by the Amendment  Act in the  

LA Act by filing petitions under Section 151 and  

Section 152 of the CPC. In view of this, the award  

and decree passed by the High Court on April 28,  

1989 has to be held to be without jurisdiction and

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nullity. It goes without saying that a plea of  

nullity of a decree can always be set up before the  

executing court. Any judgment and order which is a  

nullity never acquires finality and is thus open to  

challenge in the executing proceedings.

22. The decisions of this Court in Balvant N.  

Viswamitra4 and National Agricultural Cooperative  

Marketing Federation of India Ltd.5 relied upon by  

the learned counsel for the respondents have no  

relevance to the controversy in hand.  The  

propositions of law laid down therein are beyond  

question but these propositions have no application  

to the facts of the present case.

23. Civil Appeal is, accordingly, allowed.  The  

order of the High Court dated April 1, 2003 and the  

order of the Additional District Judge, Karnal dated  

April 6, 1999 are liable to be set aside and are set  

aside. The execution petition filed by the  

respondents seeking execution of the award and  

decree dated April 28, 1989 stands dismissed. The  

parties shall bear their own costs.

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Civil     Appeal     No.     5116     of     2005   

24. In view of judgment passed in Civil Appeal  

5115/2005 above, this Civil Appeal is also allowed in  

the same terms. The parties shall bear their own  

costs.

Civil Appeal No. 5096 of 2005 and Civil Appeal Nos.  5097-5098     of     2005   

25. In view of the judgment passed in  Civil  

Appeal 5115 of 2005 and Civil Appeal No. 5116 of 2005  

today, these Civil Appeals do not survive and stand  

disposed of as such.

.........................J. ( R.M. LODHA )

NEW DELHI; ..........................J. NOVEMBER 29, 2012 ( ANIL R. DAVE )