Full Judgment Text
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
JUDGMENT
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
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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
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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
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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
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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
1
of Punjab and another Vs. Babu Singh and others ,
2
Union of India Vs. Swaran Singh & others and
Sarup Singh and another Vs. Union of India and
3
another .
15 . Mr. Manoj Swarup, learned counsel for the
respondents, in the first place distinguished the
2
decision of this Court in Swaran Singh 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
2
respondents submitted that Swaran Singh did not lay
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down good law. He cited the decision of this Court
in Balvant N. Viswamitra and others Vs. Yadav
4
Sadashiv Mule (Dead) through LRs. and others 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
5
India and others 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.
1
16. In Babu Singh a two Judge bench of this
Court was concerned with an appeal filed by the
State of Punjab and its functionary against the
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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
1
Court in Babu Singh 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.
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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.”
2
17. In Swaran Singh 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
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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 :
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“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.”
2
18. In Swaran Singh 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
2
interest at 6%” in para 7 in Swaran Singh is hardly
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2
a distinguishing feature. Swaran Singh 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
2
laid down in Swaran Singh .
2
20. Swaran Singh has been referred to by this
Court in para 26 (page 208) of comparatively recent
3
judgment in Sarup Singh and followed. In para 25
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3
(page 208 of the report) this Court in Sarup Singh
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
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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.
4
Viswamitra and National Agricultural Cooperative
5
Marketing Federation of India Ltd. 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
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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.
JUDGMENT
.........................J.
( R.M. LODHA )
NEW DELHI; ..........................J.
NOVEMBER 29, 2012 ( ANIL R. DAVE )
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