VYSYA BANK LIMITED v. SPECIAL LAND ACQUISITION OFFICER, UPPER
1998-11-18
KUMAR RAJARATNAM
body1998
DigiLaw.ai
KUMAR RAJARATNAM, J. ( 1 ) IN all these civil revision petitions, the vysya bank limited, bagalkot branch (hereinafter referred to as the 'bank') are the petitioners. The bank had given certain loans to the claimants, who are respondents in the civil revision petitions. The claimants had mortgaged certain lands and buildings in mugalalli village, bagalkot taluk to the bank. Subsequently the lands belonging to the claimants that were mortgaged in favour of the bank were acquired by the state government for the purpose of upper krishna project. ( 2 ) IN the notification issued by the state government under Section 4 (1) of the Land Acquisition Act (hereinafter referred to as the 'act') the encumbrance in favour of the bank was shown. In all these cases, the land acquisition officer (hereinafter referred to as the l. . a. o. ') passed awards. The l. a. o. made an apportionment with regard to the principal amount owing to the bank and disbursed the amounts that was received as compensation due by them to the bank. In other words, the l. a. o. apportioned the principal amount owing to the bank in the case of each of the claimants and made payments to the bank insofar as the principal amounts was concerned. The claimants filed an application before the l. a. o. for enhancement of compensation and sought a reference to be made by the l. a. o. to the civil judge. The l. a. o. made a reference to the civil judge on the application made by the claimants. The learned civil judge disposed of the reference and enhanced the compensation at the instance of the claimants. This is one side of the case. ( 3 ) THE other side of the case is as follows: it was submitted by the bank that they too sought a reference under Section 18 of the Act, within the time prescribed under the act. It was further submitted that the l. a. o. on receiving the application by the bank did not choose to make a reference to the civil court. Therefore, the bank was obliged to approach the civil court requiring the civil court to make a reference. The civil court after hearing all the parties declined to direct the l. a. o. to make a reference.
Therefore, the bank was obliged to approach the civil court requiring the civil court to make a reference. The civil court after hearing all the parties declined to direct the l. a. o. to make a reference. What is challenged in all these civil revision petitions ia the orders of the learned civil judge in declining the request of the bank to direct the l. a. o. to make a reference. In all these civil revision petitions the 'impugned orders are the orders of the civil judge declining the prayer of the bank. ( 4 ) SINCE common questions of law arise for consideration in all these revision petitions a common order is passed. ( 5 ) I have perused the impugned orders passed by the learned civil judge and heard the learned counsel for the petitioner Mr. Aswathram, learned counsel for the claimants Mr. Kothavale and Mr. Gachchinamath and Mr. Chengappa, learned government Advocate for the l. a. o. ( 6 ) THE learned civil judge in the impugned orders held that the reference made at the instance of the claimants had already been disposed of and therefore held that the petitions under Section 18 (3) (b) of the act filed by the bank are not maintainable. ( 7 ) MR. Aswathram, learned counsel for the bank submitted that great injustice has been done to the bank for no fault of the bank. It was submitted that the bank as an interested person received only the principal amount of the loan advanced to the claimants out of the compensation and the interest on the principal amount was still outstanding. The bank realising that the entire amount including the interest was not paid to the bank by the l. a. o. sought a reference within 90 days as stipulated in Section 18. It was submitted that the l. a. o. declined to make a reference. The bank, therefore, within the period of limitation, approached the civil court. It was submitted that as far as the bank was concerned an application to the l. a. o. was made within time and since the l. a. o. declined to make a reference they approached the civil judge also within time. Therefore, it was submitted that the civil judge was in error in declining to direct the l. a. o. to make a reference. ( 8 ) IT was further submitted by Mr.
Therefore, it was submitted that the civil judge was in error in declining to direct the l. a. o. to make a reference. ( 8 ) IT was further submitted by Mr. Aswathram that the reference disposed of by the civil judge was done behind the back of the bank and therefore it is just and proper that the civil judge ought to have allowed the prayer of the bank. Mr. Aswathram submitted that the bank does not seek enhancement of compensation but only seeks apportionment of the compensation in favour of the bank. It was further submitted by Mr. Aswathram that some of the enhanced compensation are still lying with the civil court and therefore it would have been appropriate for the civil court to disburse the interest portion owing to the bank from the claimants. Mr. Aswathram relied on certain judgments of this court in Basappa Gurusangappa v Land Tribunal, Badami and others and Hikkalliah v K. S. Gopala Bhatta and others. ( 9 ) MR. Kothavale, learned counsel for the claimants strenuously submitted that no materials have been placed before the court to show that the application before the l. a. o. was in time. It was also submitted that the bank is not an interested person coming within the purview of Section 18 of the act. Finally it was submitted that there cannot be two references. Even if two references are possible, such a reference cannot be made after, the civil judge has already disposed of the matter. It was further submitted by the learned counsel for the claimants that all is not lost as far as the bank is concerned. It is still open to the bank if there are still some monies outstanding to the bank by way of interest to file a suit against the claimants. It was further submitted by Mr. Kothavale that the l. a. o. ought not to have disbursed the amounts alleged to have been owing to the bank in the first case without an enquiry. The claim that there was legal mortgage in favour of the bank was disputed. ( 10 ) MR. Gachchinamath, learned counsel for one of the claimants submitted that the civil judge cannot reopen the award and decree already passed. ( 11 ) THE learned government Advocate Mr.
The claim that there was legal mortgage in favour of the bank was disputed. ( 10 ) MR. Gachchinamath, learned counsel for one of the claimants submitted that the civil judge cannot reopen the award and decree already passed. ( 11 ) THE learned government Advocate Mr. Chengappa submitted that there cannot be two references one by the claimant and another by the bank. In any event it was submitted the civil judge cannot reopen the case and the decree and award of the court is final and binding. ( 12 ) EVEN if we assume that the application of the bank made to the l. a. o. was in time and equally we assume that the application to the civil judge was also in time, this court will have to determine whether the decree and award passed by the civil judge can be set aside by this court under Section 115 of the CPC. After all ultimately if this court were to set aside the impugned orders and require the civil judge to pass appropriate orders and the civil judge in turn directs the l. a. o. to make a reference, ultimately the civil judge will have to alter the decree and the award and re-determine the apportionment. Whether it would be permissible for the civil judge to change the character of the decree and re-determine the apportionment at the instance of the bank will have to be answered in these revision petitions. ( 13 ) IN these cases, the l. a. o. on the basis of the materials apportioned the amount that was due to the bank. The l. a. o. paid the amounts that were due to the bank only to the extent of the actual amount that was borrowed by the claimants. However, whether the claimants disputed the amount or not cannot be ascertained. The fact remains that cheques were sent to the bank in all these cases to the extent of the principal amount that was owing to the bank from the claimants. The claimants were not aggrieved by the action of the l. a. o. in disbursing the principal amount owing to the bank on the basis of a legal mortgage before this court. It is not necessary for this court to deal with the action of the l. a. o. on this issue since this is not the subject-matter before this court.
It is not necessary for this court to deal with the action of the l. a. o. on this issue since this is not the subject-matter before this court. ( 14 ) THE subject-matter before this court is whether a second reference is permissible under the Provisions of the act and even if it is permissible whether it is permissible after the award has been passed. It appears to me that once the award and decree has been passed by the civil judge it would not be open for the civil judge to reopen the decree and award. The Supreme Court in the case of Union of India v Swaran Singh and others, has emphatically pronounced that it is not permissible for the court to amend the decree while exercising powers under sections 151 and 152 of the CPC. The Supreme Court pronounced as follows. "5. These appeals by special leave arise from the judgment and order dated August 30,1994 made in civil revision nos. 2144 and 2145 of 1994 by the punjab and haryana high court. The admitted position is that notification under Section 4 (1) of the Land Acquisition Act, 1894 (1 of 1894) (for short the 'act') was published on June 10, 1977 acquiring a large track of land for extension of amritsar cantonment at village kala ghanpur. The collector made his award under Section 11 on August 28, 1978. On reference under Section 18, the additional district judge, amritsar by his award and decree dated December 24, 1981 enhanced the compensation which was confirmed by the single judge and on appeal by the division bench. The special leave petition filed in this court were dismissed confirming the enhanced compensation. 6. On July 28, 1987 application under sections 151 and 152 of the CPC were filed in the high court for award of enhanced solatium and interest under Section 29 (2) and proviso to Section 28 of the act as amended by act 68 of 1984. The high court allowed the applications. When execution applications were laid, the executing court dismissed the same on October 16, 1993, but on revision, as stated earlier, the high court allowed them and directed execution of the enhanced solatium and interest. Thus, these appeals by special leave. 7.
The high court allowed the applications. When execution applications were laid, the executing court dismissed the same on October 16, 1993, but on revision, as stated earlier, the high court allowed them and directed execution of the enhanced solatium and interest. Thus, these appeals by special leave. 7. It is settled law that after the reference court has granted an award and decree under Section 26 (1) 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 solatium at 15% and interest at 6%. The Amendment Act 68 of 1984 came into force as on September 24, 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 December 24, 1983, 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 and also in catena of decisions following thereafter in Union of India v Pratap Kaur (dead) through L. rs State of Maharashtra v Maharan Srawan Hatkar; State of Punjab v Bahu Singh; Union of India v Raghubir Singh (dead) by L. Rs and K. S. Paripoornan v State of Kerala, this court has held that Reference court or 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 are clearly 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. 9. THE appeals are accordingly allowed and all orders passed by the high court after the awards had become final are a nullity and do not bind the union of india. No costs". (emphasis supplied) what applies under sections 151 and 152 of the CPC equally applies for a court sitting on revision under Section 115 of the CPC. The principle is the same. In other words it would not be open to this court to require the civil judge to set aside the decree and judgment once passed to re-apportion the compensation exercising powers under revision. ( 15 ) TO allow the bank by a reference to reopen the decree and award would not be permissible in view of the law laid down by the Supreme Court. ( 16 ) I shall now refer to two judgments relied on by the learned counsel for the bank. (1) in basappa gurusangappa's, case, supra, the court was dealing with the rival contentions before the tribunal, for grant of occupancy rights in respect of the same land. This court at paragraph 11 held as follows. "11. When rival applications are made before the tribunal for grant of occupancy right in respect of the same land, it is in our opinion, the duty of the tribunal to consider together those rival applications and decide them by a common order. Otherwise, there cannot be a proper adjudication of the rival claims.
"11. When rival applications are made before the tribunal for grant of occupancy right in respect of the same land, it is in our opinion, the duty of the tribunal to consider together those rival applications and decide them by a common order. Otherwise, there cannot be a proper adjudication of the rival claims. Even if one of the rival applicants had filed his application earlier and the tribunal had granted him occupancy right in respect of that land and subsequently another applicant makes an" application within the time limit provided by Section 148-a in respect of the same land, the tribunal cannot decline to consider the subsequent application on the ground that it has already granted occupancy right in respect of that land to the earlier applicant. The tribunal is bound to consider every application filed within the time limit provided by the act and it is no answer to such application to say that the land is not available for grant of occupancy right therein. The only way in which the tribunal can be enabled to consider the later application is to set aside its earlier order and to direct it (the tribunal) to consider together both the rival applications and to decide thereon. It may look startling that an order of the tribunal which was valid when it was made and did not suffer from any infirmity, should be set aside, merely because another person makes a rival application in respect of the same land after the tribunal has granted occupancy right in. Respect of that land to the earlier applicant. But there is no other way in which the tribunal can discharge its obligation to consider all applications filed in time". ( 17 ) THIS judgment at first blush may be in favour of the bank. The order of this court was passed in writ petition under Article 226 of the constitution. The order of the tribunal for a grant of occupancy right cannot be treated as a decree of a civil court. If it was a decree, there would have been an appeal. It is not possible to equate the order of the tribunal to that of a decree. In these circumstances, this judgment will have no application to the facts of the present case. (2) the judgment in hikkalliah's case, supra, also has no application to the facts before us.
If it was a decree, there would have been an appeal. It is not possible to equate the order of the tribunal to that of a decree. In these circumstances, this judgment will have no application to the facts of the present case. (2) the judgment in hikkalliah's case, supra, also has no application to the facts before us. The reported judgment relates to the order passed by the land tribunal. ( 18 ) LEARNED counsel for the bank was not able to bring to the notice of this court any pronouncement of this court or of any other court to support the proposition that on a reference by the l. a. o. to the court, the court would be entitled to reopen the matter after passing an award and decree. ( 19 ) LEARNED counsel for the claimants also were not able to place before court any authority to support the proposition that there is scope for a second reference after the award is passed by the civil court. ( 20 ) THE learned counsel for the claimants relied on a judgment oi this court in Basalingappa Gowda and others v Nagamma and another. This pronouncement has no application to the facts of the case. This judgment deals with the proposition of law that a person cannot be impleaded before the civil judge for the first time. This court held that there is no general jurisdiction to bring on record additional parties as the court may do in the case of ordinary civil litigation. In the present case before us the l. a. o. has recognised the bank as an interested party, and has acted upon it by remitting the principal amount owing to the bank to the bank out of the compensation amount. Therefore, it cannot be said that the bank is not an interested person? ( 21 ) THE learned counsel also relied on a judgment of this court in M. L. Narasimhaiah and others v Vasthegouda and another. This judgment is also of no assistance to the claimants since the matter relates to the vendor of the land prior to acquisition wanting a share in the compensation on the basis of an agreement that the claim was under Section 30 of the act.
This judgment is also of no assistance to the claimants since the matter relates to the vendor of the land prior to acquisition wanting a share in the compensation on the basis of an agreement that the claim was under Section 30 of the act. ( 22 ) THE judgment in swaran singh's case, supra, is an authority for the proposition that once a decree has been passed it is not open to the same court to alter the decree except for clerical or arithmetical errore under sections 151 and 152. This pronouncement of law equally applier tc a second reference after the decree is passed by the civil court. ( 23 ) SECTION 26 of the act reads as follows:"form of awards. (1) every award under this part shall be in writing signed by the judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts. (2) every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, clause (2) and Section 2, clause (9), respectively, of the Code of Civil Procedure, 1908 (5 of 1908)". Section 26, sub-section (2) states that every award shall be deemed to be a decree within the meaning of Section 2, sub-section (9) of the Code of Civil Procedure. In other words every award on reference to the court is a judgment and a decree. The judgment and decree has become final. It cannot be altered either under sections 151 and 152 of the CPC or on the basis of a second reference after the judgment and decree is passed. Therefore, the learned civil judge was right in passing the impugned orders, ( 24 ) IT was strenuously submitted by the learned counsel for the bank that for no fault of the bank and for the fault of the l. a. o. the application of the bank was not referred to court. Coming to know that the l. a. o. had not made a reference the bank sought the assistance of the court under Section 18 of the act for directing the l. a. o. to make a reference.
Coming to know that the l. a. o. had not made a reference the bank sought the assistance of the court under Section 18 of the act for directing the l. a. o. to make a reference. The bank was not aware that the award was passed when it approached the civil court. In these circumstances, it was submitted that the interim orders granted by this court shall continue to be in force to enable the bank to take appropriate steps to recover the payment of interest from the claimants. There is considerable force in what the learned counsel for the bank submitted. However, it cannot be denied that the bird has flown out of the cage at the time when the bank sought a reference. ( 25 ) IN some of the revision petitions the interim orders have been granted by this court. In some of the other petitions, the claimants were required to give security to withdraw the amount. In some other cases, the interim order has lapsed. In view of the fact that the crps are being dismissed on the ground that the civil court has no authority to amend its own decree, it would be appropriate while dismissing the crps to pass the following:order the interim order passed in all the crps, if they are still in force, will enure to the benefit of the petitioners for a period of one month from the date of receipt of this order. The crps are dismissed with the above direction. No costs. --- *** --- .