STATE OF HARYANA Vs KARTAR SINGH (D) BY LRS.
Bench: R.M. LODHA,ANIL R. DAVE
Case number: C.A. No.-005115-005115 / 2005
Diary number: 27478 / 2003
Advocates: KAMAL MOHAN GUPTA Vs
MANOJ SWARUP
Page 1
Page 2
Page 3
Page 4
Page 5
Page 6
Page 7
Page 8
Page 9
Page 10
Page 11
Page 12
Page 13
Page 14
Page 15
Page 1
C.A. NO. 5115/2005 with connected matters
1
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
Page 2
C.A. NO. 5115/2005 with connected matters
2
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
Page 3
C.A. NO. 5115/2005 with connected matters
3
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
Page 4
C.A. NO. 5115/2005 with connected matters
4
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)
Page 5
C.A. NO. 5115/2005 with connected matters
5
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
Page 6
C.A. NO. 5115/2005 with connected matters
6
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
Page 7
C.A. NO. 5115/2005 with connected matters
7
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
Page 8
C.A. NO. 5115/2005 with connected matters
8
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
Page 9
C.A. NO. 5115/2005 with connected matters
9
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
Page 10
C.A. NO. 5115/2005 with connected matters
10
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
Page 11
C.A. NO. 5115/2005 with connected matters
11
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
Page 12
C.A. NO. 5115/2005 with connected matters
12
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
Page 13
C.A. NO. 5115/2005 with connected matters
13
(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
Page 14
C.A. NO. 5115/2005 with connected matters
14
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.
Page 15
C.A. NO. 5115/2005 with connected matters
15
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 )