Research › Search › Judgment

Punjab High Court · body

2009 DIGILAW 2168 (PNJ)

Sonepat Improvement Trust v. Naresh Chand

2009-12-14

SURYA KANT

body2009
Judgment Surya Kant, J. 1. This Revision Petition has been directed by the Improvement Trust, Sonepat against the order dated 25.09.2002 passed by the Executing Court-cum-Civil Judge (Senior Division), Sonepat whereby an application under Order 21 Rule 29 read with Section 151 CPC moved by the petitioner to drop the execution proceedings on the plea that the subject-award already stands fully satis- fied, has been dismissed. 2. The short question that arises for considera- tion is as to whether or not the petitioner - Sonepat Improvement Trust [in short the peti- tioner-Trust] is entitled to contend that the principle of law enunciated by Hon-ble the Su- preme Court in Prem Nath Kapur v. National Fertilizers Limited, 19$6(2). SCC 71, which has been further explainea in a later decision in Gurpreet Singh v. Union of India (2006) 8 SCC457, as well as the decision taken by this Court in HUDA v. Davinder Kaur, 2001(3) PLR 867, are required to be followed by the Executing Court in a case where the acquisi- tion proceedings have already attained finality, though the awards are yet to be fully satisfied- 3. The case has a checkered history. The land of respondent No. 1 was acquired on 3.11.1970 by the petitioner-Trust for its Scheme No. 3. The Land Acquisition Collector awarded compensation @ Rs. 3/- per square yard vide award dated 5.10.1972 which was enhanced to Rs. 22/- by the Tribunal, Improvement Trust, Sonepat vide Award dated 15.6.1985 while deciding the landowner-s references. The first respondent still felt dissatisfied and approached this Court by way of Civil Writ Petition No. 1013 of 1986 which was allowed vide judgment dated 11.1.1988 to the extent that the market value of the acquired land was increased to Rs. 27/- per square yard. In addition, the respondent-landowner was held entitled to solatium @ 30%; additional amount @12% per annum from the date of notice under Section 36 of the Punjab Town Improvement Act till date of award by the Collector; interest @ 9% per annum from the date of taking of the possession for a period of one year and thereafter @ 15% per annum till the date of final payment. 4. The afore-stated judgment was upheld by a Division Bench of this Court in a Letters Patent Appeal and Special Leave Petition against the same was also dismissed by the Hon-ble Supreme Court on 12.10.1988. 5. 4. The afore-stated judgment was upheld by a Division Bench of this Court in a Letters Patent Appeal and Special Leave Petition against the same was also dismissed by the Hon-ble Supreme Court on 12.10.1988. 5. The Petitioner - Trust had acquired some other land also for development of Scheme No. 4. The acquisition or consequential proceedings for enhancement of compensation at the instance of the landowners of Scheme No. 4 were also taken side-by-side with the proceedings pertaining to Scheme No. 3. 6. After the awards in respect of Scheme Nos. 3 and 4 attained finality, the execution proceedings were initiated. In respect of Scheme No. 4, the then Senior Sub Judge, Sonepat-cum-Executing Court passed an order dated 4.8.1990 wherein the revised claims submitted by the Decree Holders for adjustment of the partial payments received from the Improvement Trust firstly towards costs, then towards interest and then towards solatium and market price, were upheld and approved. The aforementioned mode of adjustment put-forth by the landowners-cum-Decree Holders, was upheld by the Executing Court following two decisions of this Court in Trilochan Singh v. State of Haryana, 2002(3) R.C.R.(Criminal) 196-1990 PL J123 and Manohar Lal & Ors. v. State ofHaryana & Ors., 1986 R.R.R. 5 - 1986 PLJ 581. 7. Suffice it to say that the order dated 4.8.1990 passed by the Executing Court in the execution proceedings of Scheme No. 4 was upheld by this Court also. 8. Meanwhile came the decision by the Supreme Court in Prem Nath Kapur-s case [supra] wherein, after examining the legislative scheme behind the Land Acquisition Act, 1894, their Lordships ruled as follows -- "It is clear from the scheme of the Act and the express language used in Sections 23(1) & (2), 34 and 28 and now Section 23(1-A) of the Act that each component is a distinct and separate one. When compensation is determined under Section 23(1), its qualification, though made at different levels, the liability to pay interest thereon arises from the date on which the qualification was so made but, as stated earlier, it relates back to the date of taking possession of the land till the date of deposit of interest on such excess compensation into the court. Equally, when the appellate court under Section 54 further enhances the compensation, interest is payable on such excess amount determined under Section 23(1). Equally, when the appellate court under Section 54 further enhances the compensation, interest is payable on such excess amount determined under Section 23(1). Inother words, the liability to pay interest arises as and when the compensation is further enhanced and liability to pay interest would be co-terminus with the payment of the amount under Section 34 from the date of taking possession till date of payment or deposit or under Section 28 or Section 54 from the date of taking possession till the date of deposit of such excess amount into the court. The liability to pay interest is only on the excess amount of compensation determined under Section 23(1) and not on the amount already determined by the Land Acquisition Officer under Section 11 and paid to the party or deposited into the court or determined under Section 26 or Section 54 and deposited into the court or on solatium under Section 23 (2) and additional amount under Section 23(1-A). Even in general principles of law, Section 60 of the Contract Act provides that where the debtor has omitted to intimate and there are no other circumstances indicating as to which debt the payment is to be applied, the creditor may apply it at his discretion, to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being, as to the limitation of suits. Therefore, the debtor may indeed exercise that right and may specify his appropriation expressly or his intention may be implied as shown by other circumstances, indicating that his intention at the time of payment was to appropriate the amount deposited by him to a specific debt or account towards the debt. The right to make appropriation is indicated by necessary implication, by the award itself as the award or decree clearly mentions each of the items. When the deposit is made towards the specified amounts, the claimant/owner is not entitled to deduct from the amount of compensation towards costs, interest, additional amount under Section 23 (1 -A) with interest and then to claim the total balance amount with further interest". 9. When the deposit is made towards the specified amounts, the claimant/owner is not entitled to deduct from the amount of compensation towards costs, interest, additional amount under Section 23 (1 -A) with interest and then to claim the total balance amount with further interest". 9. The right to make appropriation as was being claimed by the Decree Holders in land acquisition cases was, thus, restricted and it was ruled that the amount of compensation deposited by the Judgment Debtor can not be adjusted firstly towards costs, then towards interest and then towards additional amount with interest and then to claim the balance amount with further interest by the Decree Holder- landowners. 10. Following the dictum in Prem Nath Kapur-s case [supra], this Court in HUDA v. Davinder Kaur-s case [supra] also held as follows -- "In view of the law laid down by Hon-ble Supreme Court in above referred to case, orders under revisions are not sustainable so far as these provide for making appropriation to be adjusted towards principal amount because case law relied upon by the Executing Court do not hold the field. Claimants have no right to appropriate the amount which is deposited strictly in accordance with the Award firstly towards compensation and then the other benefits accruing out of the compensation or to be paid". 11. The Constitution Bench in Gurpreet Singh-s case [supra] while approving the ratio decidendi in Prem Nath Kapur-s case [supra], has further explained the same in the following terms -- "Prem Nath Kapur (supra) also indicates that when an award-decree is passed specifying the amounts under different heads like the amount under Section 23(1), the amount under Section 23(2), the amount under Section 23(1A) and the interest under Section 28 and the judgment debtor makes a deposit of specified sums under these different heads, it will amount to the judgment debtor intimating the decree holder as to how the sum deposited is to be applied in discharge of the obligation of the judgment debtor. Once a decree holder receives the payment of the sums thus deposited, he would be accepting the appropriation made by the judgment debtor under the award decree on the scheme of the Land Acquisition Act. Once a decree holder receives the payment of the sums thus deposited, he would be accepting the appropriation made by the judgment debtor under the award decree on the scheme of the Land Acquisition Act. This part of the reasoning in Prem Nath Kapur (supra) is, of course, also based on the reasoning that there is some inconsistency in Order XXI Rule 1 of the Code and the scheme of the Act. Prem Nath Kapur (supra) also indicates that when the decree itself specifies the amount payable under different heads (the decree has to do so under Section 26 of the Act) and amounts are deposited towards those differnt heads, the appropriation would be on the basis of the direction under the decree which must be taken to be one for crediting the various sums paid under particular heads. On the scheme of the Act, especially the wording of Section 34 and Section 28 of the Act it is not possible to say that the said approach made in Prem Nath Kapur (supra) is erroneous or is unreasonable or is not a line of approach that is not warranted. Therefore, when the judgment debtor State makes a deposit along with the calculation appropriating distinct sum-s towards various heads of compensation as awarded by the reference court or by the appellate court in the appellate decree, and the amount is received by the decree holder, the decree holder must be taken to be not entitled to seek an appropriation as if the judgment debtor has not made any intimation and that he is entitled to appropriate at his volition. Considering the scheme of compensation under the Act in the context of the specific nature of the items specifically referred to in Section 23 of the Act, we are of the view that the approach adopted in Prem Math Kapur (supra) is justified. A reappropriation by seeking to reopen the satisfaction already rendered might result in interest being made payable even on that part of the principal amount that had already been deposited and received by the decree holder and that would be in the realm of unjust enrichment. A reappropriation by seeking to reopen the satisfaction already rendered might result in interest being made payable even on that part of the principal amount that had already been deposited and received by the decree holder and that would be in the realm of unjust enrichment. Thus, on the whole, we are satisfied that the essential ratio in the Prem Nath Kapur (supra) on appropriation being at different stages is justified though if at a particular stage there is a shortfall, the awardee decree holder would be entitled to appropriate the same on the general principle of appropriation, first towards interest, then towards costs and then towards the principal, unless, of course, the deposit is indicated to be towards specified heads by the judgment debtor while making the deposit intimating the decree-holder of his intention. We, thus, approve the ratio of Prem Nath Kapur (supra) on the aspect of appropriation". [Emphasis applied] 12 During the pendency of the execution proceedings in respect of Scheme No. 3, the petitioner-Trust/Judgment Debtor moved an application under Order 21 Rule 29 read with Section 151 CPC to cosign the execution proceedings being fully satisfied as according to the petitioner - Trust if the total payments already made by it to the landowners are re-calculated/re-adjusted as per the binding ratio of the decisions in Prem Nath Kapur & Gurpreet Singh-s cases [supra], in that event no further payment is liable to be made to respondent No.1-DH. 13. The petitioner-s application has been turned down by the Executing Court primarily on the ground that the mode of adjustment of the deposits made by the Judgment Debtor from time to time has already been laid down by the then Senior Sub Judge-cum-Executing Court vide order dated 4.8.1990 pertaining to Scheme No. 4 which has been upheld by this Court also. After holding so, the Executing Court proceeded to hold as follows -- "The Decree Holders are also entitled for the interest on the amount which has remained unpaid including the interest as accruing them from time to time till date, as has been held in various previous orders. Therefore, the calculations so submitted by the Jds and the averments made by them that they have made the fu 11 and final payment of the decreetal amount is certainly a wrong statement. The additional amount of Rs. Therefore, the calculations so submitted by the Jds and the averments made by them that they have made the fu 11 and final payment of the decreetal amount is certainly a wrong statement. The additional amount of Rs. 4-5554.41 Is required to be shown in the principal amount and then In the interest column and on that interest has to be calculated. So, in these circumstances, still amount of decree is outstanding against the Jds and Jds are thus directed to furnish the revised statement of accounts. Accordingly, in view of the aforesaid reasons, the application is dismissed". 14. I have heard learned counsel for the parties at some length and have gone through the decisions cited by both the sides including Paras No. 81 and 82 of the decision in Union of India v. Hari Krishan Khosla [dead] by Lrs, JT 1992(5) SC 574, relied upon by Mr. Sarin, learned Senior Counsel for the landowner to contend that the earlier orders passed by the Executing Court from Time to time including those pertaining to Scheme No. 4 having attained finality, would constitute res-judicata. 15. In my considered view the approach of the Executing Court in over-looking the binding decisions and insisting to follow its previous order dated 4.8.1990 which was based upon an erroneous interpretation of law, is unsustainable. Suffice it to observe that while passing the order dated 4.8.1990, the then Executing Court had followed two decisions of this Court in Trilok Chand and Manohar Lal-s cases [supra]. Those decisions no longer hold the field and are per incurium in the light of the later decisions of the Supreme Court in Prem Nath Kapur and Gupreet Singh-s cases [supra]. It is well settled that the principle of prospectivity of a decision, which is otherwise the law of the land, can be applied only in a case where the Supreme Court expressly directs that its judgment shall apply prospectively. In other words, the decision of the Supreme Court being the correct statement of law, it ought to have been so construed and followed previously also. In other words, the correct law to be followed by the Executing Court even on 4.8.1990 were the same as has been later on explained by the Supreme Court in Prem Nath Kapur-s case [supra]. In other words, the correct law to be followed by the Executing Court even on 4.8.1990 were the same as has been later on explained by the Supreme Court in Prem Nath Kapur-s case [supra]. The erroneous view taken by this Court was binding on the subordinate Courts including the then Executing Court, only till the Supreme Court decision came in Prem Nath Kapoor-s case [supra]. Thereafter, the Executing Court is obligated to follow the correct proposition of law. The principle of res-judicata applies inter-se parties only. Suffice it to say that the acquisition proceedings pertaining to Scheme No. 4 are not inter-se between the petitioner - Trust and the first respondent. 16. For the reasons afore-stated, the revision petition is allowed, the impugned order dated 25.9.2002 is set aside and the Executing Court is directed to decide the application filed by the petitioner Trust under Order 21 Rule 29 read with Section 151 CPC afresh and by following the correct proposition of law, as explained above.