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2009 DIGILAW 1815 (PNJ)

Surjeet Singh And Others v. Union Of India

2009-10-23

SATISH KUMAR MITTAL

body2009
Judgment Satish Kumar Mittal, J. 1. This order shall dispose of Civil Revision Nos. 2618 and 2619 of 2004. These petitions under Article 227 of the Constitution of India have been filed by the petitioners for setting aside the order dated 17.2.2004 passed by the Additional District Judge, Bathinda, whereby their execution applications filed under Order 21 Rule 11 (2) read with Section 151 CPC, have been dismissed being barred by limitation. 2. The brief facts of the case are that the Union of India acquired big chunk of lands in a compact block, including the land of the petitioners, in the revenue estates of villages Bhagu, Mehna, Bhucho Khurd and Bucho Kalan under the Land Acquisition Act, 1894 (hereinafter referred to as the Act) in the year 1979 for a public purpose, i.e., for establishing the Bathinda Cantonment. The Special Land Acquisition Collector vide its award dated 27.5.1982, awarded compensation at different rates for different kinds of lands. The land owners, including the petitioners, feeling dissatisfied with the said award, sought references under Section 18 of the Act, which were disposed of by the Additional District Judge, Bathinda, and the amount of compensation was enhanced. Against the said judgment, the land , owners, including the petitioners, filed Regular First Appeals in the High Court. The learned Single Judge by a common judgment further enhanced the amount of compensation. Still feeling dissatisfied with the judgment/award of the Single Judge of the High Court, the land-owners, including the petitioners, filed L.P.A No. 1251 of 1987. A Letters Patent Bench of this Court vide judgment/award dated 30.1.1989 further enhanced the amount of compensation. For the land within the abadi and abutting the National Highway on either side up to the depth of 500 metres, the compensation has been awarded @ Rs.90,000/- per acre, for Chahi Nehri land, the compensation has been awarded @ Rs. 50,000/- peracre, for Berani land, the compensation has been awarded @ Rs. 38,000/- per acre and for Banjar Kadim, the compensation has been awarded @ Rs. 30,000/- per acre. The claimants/land owners were further held entitled for the statutory benefit as per the Central Amendment Act (Act No. 68 of 1984) as well as the proportionate costs. Against the order dated 30.1.1989 passed by the Letters Patent Bench, the petitioners filed Special Leave Petitions in the Supreme Court which were dismissed in limine on 5.9.1995. 3. 30,000/- per acre. The claimants/land owners were further held entitled for the statutory benefit as per the Central Amendment Act (Act No. 68 of 1984) as well as the proportionate costs. Against the order dated 30.1.1989 passed by the Letters Patent Bench, the petitioners filed Special Leave Petitions in the Supreme Court which were dismissed in limine on 5.9.1995. 3. When the respondent-Union of India did not make the payment of the enhanced compensation as per the judgment/award dated 30.1.1989 passed by the Letters Patent Bench, the petitioners in C.R. No. 2618 and 2619 of 2004 filed execution applications on 13.3.2001 for recovery of an amount of Rs. 2,37,797.26/- each from the respondent. The respondent did not file any reply to the said applications in spite of several opportunities granted. Thereupon, on 23.1.2003, the warrant of attachment was ordered to be issued on filing of process fee and list of property within a week. When the warrant was received back unexecuted, fresh warrant was issued for 18.7.2003 on filing of process fee and list of property. At that stage, on 17.2.2004, the execution applications filed by the petitioners were dismissed on limitation by passing the following order :- "It came to my notice that decision of 30.01.1989 is being sought to be executed for which execution appl ication was filed on 14.03.2001 i.e. after more than 12 years so execution application being beyond limitation stands dismissed being barred by limitation. File be consigned." Against the said order, these revision petitions have been filed. 4 Learned counsel for the petitioners argued that the Executing Court has illegally and arbitrarily dismissed the execution applications of the petitioners in gross violation of various provisions of the law by passing a wholly non-speaking order. He submitted that under the Act, it is statutory obligation of the respondent to pay the enhanced amount of compensation to the petitioners, therefore, the legitimate claim of the petitioners cannot be defeated on the ground of limitation, and the Government and its officials should not be permitted to take the plea of limitation just to deprive the legal claim of the land owners. 5. Learned counsel further argued that in this case the Executing Court has erred in law while taking the starting point of limitation as 30.1.1989 when the Letters Patent Bench had passed the judgment. 5. Learned counsel further argued that in this case the Executing Court has erred in law while taking the starting point of limitation as 30.1.1989 when the Letters Patent Bench had passed the judgment. Learned counsel submitted that the date, i.e., 5.9.1995, on which the SLPs of the petitioners were dismissed, should have been taken as the starting point of limitation. If the limitation is counted from the said date, then the execution application filed by the petitioners was well within limitation. Learned counsel further argued that if the Court comes to the conclusion that the period of limitation will start running from the order of the Letters Patent Bench dated 30.1.1989, then the time wasted in prosecuting the matter before the Supreme Court should be excluded by virtue of Section 14 of the Limitation Act, 1963 in calculating the period of limitation. Therefore, dismissal of the execution application was totally illegal, arbitrary and contrary to the provisions of law. 6. On the other hand, learned counsel for the respondent argued that the period of limitation will start running from the judgment/award dated 30.1.1989 passed by the Letters Patent Bench. He argued that the date of dismissal of the SLP in limine will not provide a new starting point of limitation to the petitioners because it is well settled that the doctrine of merger is not applicable in case of dismissal of SLP in limine by the Supreme Court. He further argued that the petitioners also cannot be given the benefit of Section 14 of the Limitation Act, 1963 for excluding the period taken in the Supreme Court because the said period cannot be taken as the period spent in instituting a proceeding before a wrong forum. Hence, according to the learned counsel, the Executing Court has rightly dismissed the execution application on the point of limitation as the same was filed beyond the prescribed period of limitation. 7. After hearing the counsel for the parties and considering the various submissions made by them, I am of the opinion that the impugned orders passed by the Executing Court are illegal, arbitrary and contrary to the provisions of law, and the same are liable to be quashed. 8. Under the Act, the Government acquire the lands of the land owners in exercise of the power ofeminent domain of the State for public purpose. 8. Under the Act, the Government acquire the lands of the land owners in exercise of the power ofeminent domain of the State for public purpose. As long as public purpose subsists the exercise of the power of the eminent domain cannot be questioned. The Supreme Court in Coffee Board v. Commissioner of Commercial Taxes, AIR 1988 SC1487 has observed that the eminent domain is an essential attribute of sovereignty of every state and authorities are universal in support of the definition of the eminent domain as the power of the sovereign to take property for public use without the owners consent upon making just compensation. Thus this power is exercisable only on payment of just compensation under the scheme of the Act. After the requisite notifications issued under Sections 4 and 6 of the Act and notice under Section 9 of the Act to the interested person, the Land Acquisition Collector shall determine the just compensation of the acquired land and pay the same to the interested person or shall deposit the same in the Court before taking possession of the property. If such compensation is not paid before or on taking possession, he is also liable to pay interest to the person interested at the rate fixed under the Act. These provisions clearly indicate that the duty to pay just compensation is pre-requisite to acquiring property under the Act. Further, if a reference is made to the civil Court against the award passed by the Collector on the application of the land owners under Section 18 of the Act, the civil Court may enhance the compensation, which may be further enhanced in appeal before the High Court or the Supreme Court. In my opinion, in such situation the civil Court or the High Court or the Supreme Court, as the case may be, determine the just compensation payable to the land owners while holding that the compensation determined by the Collector or the lower Court was not adequate in the particular case. In case of Gurpreet Singh v. Union of India, 2006 (2) SCT209: (2006) 8 SCC 457, while discussing the power of the person interested to appropriate the amount of compensation and the duty of the Collector to pay the same, it has been observed as under :.- "32. In the scheme of the Act, it is seen that the award of compensation is at different stages. In the scheme of the Act, it is seen that the award of compensation is at different stages. The first stage occurs when the award is passed. Obviously, the award takes in all the amounts contemplated by Section 23(1) of the Act, Section 23 (1A), Section 23(2) and the interest contemplated by Section 34 of the Act. The whole of that amount is paid or deposited by the Collector in terms of Section 31 of the Act. At this stage, no shortfall in deposit is contemplated, since the Collector has to pay or deposit the amount awarded by him. If a shortfall is pointed out, it may have to be made up at that stage and the principle of appropriation may apply, though it is difficult to contemplate a partial deposit at that stage. On the deposit by the collector under Section 31 of the Act, the first stage comes to an end subject to the right of the claimant to notice of the deposit and withdrawal or acceptance of the amount with or without protest. 33. The Second stage occurs on a reference under Section 18 of the Act. When the reference court awards enhanced compensation, it has necessarily to take note of the enhanced amounts payable under Section 23(1), Section 23(1 A), Section 23(2) and interest on the enhanced amount as provided in Section 28 of the Act and costs in term of Section 27. The collector has the duty to deposit these amount pursuant to the deemed decree thus passed. This has nothing to do with the earlier deposit make or to be made under and after the award. If the deposit made, falls short of the enhancement decreed, there can arise the question of appropriation at that stage, in relation to the amount enhanced on the reference. 34. The Third stage occurs, when in appeal, the High Court enhances the compensation as indicated already. The enhanced compensation would also bear interest on the enhanced portion of the compensation, when Section 28 is applied. The enhanced amount thus calculated will have to be deposited in addition to the amount awarded by the reference Court if it had not already been deposited. 35. The Fourth stage may be when the Supreme Court enhances the compensation and at that stage too, the same rule would apply." 9. The enhanced amount thus calculated will have to be deposited in addition to the amount awarded by the reference Court if it had not already been deposited. 35. The Fourth stage may be when the Supreme Court enhances the compensation and at that stage too, the same rule would apply." 9. It can, thus, be seen that a liability has been fastened on the Collector to deposit the amount of the award made by him as well as the enhanced compensation awarded by the Reference Court or the High Court or the Supreme Court. In my opinion, in case of land acquisition, it is the duty of the State to pay to the person interested the just and due compensation as enhanced by the Reference Court or the High Court or the Supreme Court. If there is any failure to pay compensation or there is abnormal delay in payment of compensation, it affects the constitutional right of the citizen (land owners) as provided under Article 300-A of the Constitution. The Act gives power to the State to acquire the land of the private owners for public purpose with a corresponding obligation to pay compensation in lieu thereof. The said obligation cannot be taken as discharged merely because proceedings have been initiated under the provisions of the Act and the landowners have been dispossessed by following the prescribed procedure there under. The Government is under a statutory obligation to pay compensation to the person interested in the acquired land. In the duty to pay compensation, it is implied that the said compensation should be paid as expeditiously as possible. 10. It is also an established principle that the State should not take the plea of limitation just to defeat the legitimate claim of the citizen. The Honble Supreme Court in Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.Rs., AIR 1979 SC 1144 has held that the plea of limitation raised by the State or a public authority like Port Trust is the one which the Court always looks upon with disfavour. It has been further observed as under :- "It is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It has been further observed as under :- "It is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. It has further been observed that it must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 11. In the instant case, the claim of the petitioners for enhancing the compensation is not only wellrounded, but the respondent-State is under a statutory obligation to pay the enhanced compensation to the petitioners as expeditiously as possible. Therefore, in my opinion, the State should not insist the dismissal of the execution application of the petitioners on the ground of limitation and to escape from its statutory obligation to pay the compensation to the land-owners whose land has been acquired. 12. In the instant case, the land of the petitioners was acquired in the year 1979. The Reference Court as well as the Letters Patent Bench by its judgment/award dated 30.1.1989, enhanced the compensation. It is undisputed position that the enhanced compensation has not been paid to the petitioners though it was statutory obligation of the respondent to pay the same as expeditiously as possible. 13. Now the question arises, if the Government does not pay the compensation or part of the compensation as enhanced by the Reference Court or by the High Court or by the Supreme Court, and fails in its duty, how the said amount can be recovered by the land-owners from the Government. 13. Now the question arises, if the Government does not pay the compensation or part of the compensation as enhanced by the Reference Court or by the High Court or by the Supreme Court, and fails in its duty, how the said amount can be recovered by the land-owners from the Government. Obviously, the claimants/land owners have to file execution application under Order 21 Rule 11(2) of the Code of Civil Procedure to enforce the decree/award passed by the Reference Court or the High Court or the Supreme Court. Under the Limitation Act, 1963 , no such application can be filed after the expiry of 12 years of the date of the decree/award. In the instant case, the execution applications were filed on 13.3.2001. Whether those applications were within limitation, is the question which is to be answered. The contentions raised by the learned counsel for the petitioners that the date when the SLP has been dismissed, should be taken as the date of starting point of limitation, cannot be accepted because it is well settled that the doctrine of merger is not applicable in case of dismissal of SLP in limine by the Supreme Court. The plea of the learned counsel for the petitioners for exclusion of the time spent in prosecuting the matter before the Supreme Court under Section 14 of the Limitation Act also cannot be accepted as in my opinion Section 14 has ho application in the present case. It cannot be said that filing of a SLP before the Supreme Court was initiating the proceedings before a wrong forum with due diligence or good faith. Hence the period spent by the petitioners in prosecuting the matter before the Supreme Court cannot be excluded in calculating the period of limitation. 14. On the other hand, learned counsel for the respondent contends that in the present case the period of limitation will start running from the date of judgment/award dated 30.1.1989 passed by the Letters Patent Bench. In my opinion, this contention also cannot be accepted in view of Section 82 of the Code of Civil Procedure, which provides as under :- "82. Execution of decree. In my opinion, this contention also cannot be accepted in view of Section 82 of the Code of Civil Procedure, which provides as under :- "82. Execution of decree. - (1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done by him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub- section (2). (2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of under :- "In case of an execution of a decree against the Government until there is compliance with the provisions of Section 82 C.P.C. the decree is not in an executable stage and as such the period of limitation can really commence after that stage has reached. Until then it can be stated to be inchoate and limitation cannot be pleaded. Until there is compliance with the provision of Section 82 C.P.C, the question of limitation cannot arise in the case. The objection under Section 47 C.P.C. on the ground of limitation is, therefore, not maintainable." 15 In the instant case, if the starting point of limitation is taken three months after the date of decree/award dated 30.1.1989 passed by the Letters Patent Bench, then the execution applications, filed by the petitioners on 13.3.2001, were within limitation. In my opinion, the Executing Court while dismissing the execution applications has not taken into consideration the aforesaid position of law while passing a totally nonspeaking order. Therefore, those orders are wholly illegal and liable to be set aside. 16. In view of the above discussion, the revisi6n petitions are allowed and the impugned orders dated 17.2.2004 passed by the Additional District Judge, Bathinda in both the petitions, are set aside. The Executing Court is directed to decide the execution applications filed by the petitioners on merits, in accordance with law, within a period of six months from the date of receipt of certified copy of this order. Petitions allowed.