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2017 DIGILAW 1101 (JK)

Union of India v. Raj Kumar Raman Dev Singh

2017-12-30

SANJEEV KUMAR

body2017
JUDGMENT : Sanjeev Kumar, J. 1. This is a revision petition by Union of India directed against the order dated 07.01.2012 passed by the learned Principal District Judge, Jammu in execution petition titled Raj Kumar Raman Dev Singh and ors. v. Union of India whereby the learned Principal District Judge, Jammu has directed the attachment of head of Union of India through Defence Estate Officer, Northern Command, C/o 56 APO and has further directed State Bank of India having accounts maintained by the petitioner for depositing a sum of Rs. 53,18,488/- on or before 30.01.2012. 2. Before adverting to the grounds of challenge taken in this revision petition, it would be appropriate to take note of the facts leading up to the filing of the instant revision petition. The Union of India requisitioned and thereafter, acquired land measuring 180 kanals 11 marlas and building constructed thereupon in District Poonch. The Deputy Commissioner (District Collector), Poonch passed a final award under Section 11 of the State Land Acquisition Act. On 16.07.1996, the District Collector awarded compensation @ Rs. 46,000/- per kanal and Rs. 91,64,943/- as cost of building along with Solatium @ 15%. Additionally, a sum of Rs. 80,322/- was also awarded as cost of trees that had come under acquisition. The petitioner deposited the entire awarded amount except the cost of trees in the month of November, 1996 itself. The aforesaid amount, as contended, was immediately withdrawn by the respondents. 3. The respondents, however, were not satisfied with the amount awarded and therefore, sought reference to the learned District Judge, Poonch in terms of Section 18 of the State Land Acquisition Act. The Collector, accordingly, made the reference to the learned District Judge, Poonch. The reference was decided vide award dated 31.05.1999 and the learned District Judge enhanced the rate of compensation by providing that the compensation for land would be Rs. 1,10,000/- per kanal and for building, it would be Rs. 1,13,22,427/-. For the trees also, the compensation was enhanced from Rs. 80,322/- to Rs. 4,00,000/-. The amount was directed to be paid along with solatium @ 15%. Aggrieved, both the parties to the reference filed appeals before this Court and this Court vide its judgment dated 31.05.2002, dismissed the appeal filed by the petitioner and allowed the appeal filed by the respondents and the compensation for the building was further enhanced to Rs. 4,00,000/-. The amount was directed to be paid along with solatium @ 15%. Aggrieved, both the parties to the reference filed appeals before this Court and this Court vide its judgment dated 31.05.2002, dismissed the appeal filed by the petitioner and allowed the appeal filed by the respondents and the compensation for the building was further enhanced to Rs. 1,52,86,000/- and the compensation on account of trees was also marginally enhanced to Rs. 88,000/-. However, the compensation payable for the land as determined by the Principal District Judge was upheld. Somewhere in October, 2002, an execution petition was filed before this Court by the respondents seeking recovery of the balance amount of Rs. 3,500,2624/-. It was during the pendency of the aforesaid execution petition, the petitioner deposited an amount of Rs. 2,70,49,377/- through a cheque and the same was also released in favour of the respondents pending finalization of the execution petition. The execution petition was finally adjudicated and this Court vide its order dated 10.06.2004 ordered that the interest in terms of Land Acquisition Act on the awarded amount including solatium would be payable from the date of the award i.e., 16.07.1996. It was also observed that the aforesaid amount would become payable after giving credit of the amount of the award which had already been deposited by the Union of India. With regard to payment of rental compensation which had been received by the respondents up to 06.01.1997, this Court clarified that such amount paid after passing of the award as rental compensation by the petitioner would be appropriated towards interest component to be paid on the balance awarded amount as worked out and calculated by the decree holders in their application. Finally, it was directed that the amount payable i.e. awarded amount with interest would be deposited by the petitioner within a period of three months from the date of passing of the judgment, failing which, the respondents would be entitled to proceed against the petitioner for realization of the amount in accordance with law. The execution petition was thus, finally disposed of on 10.06.2004. 4. Before I proceed further, it would be relevant to notice that the calculation with respect to the amount which was still payable to the respondents as made by the respondents has been extensively reproduced by this Court in order dated 10.06.2004 (supra). 5. The execution petition was thus, finally disposed of on 10.06.2004. 4. Before I proceed further, it would be relevant to notice that the calculation with respect to the amount which was still payable to the respondents as made by the respondents has been extensively reproduced by this Court in order dated 10.06.2004 (supra). 5. From the perusal of the calculation sheet which is reproduced in the judgment, it transpires that respondents claimed a sum of Rs. 67,05,701/- payable by the petitioner/judgment debtor. The petitioner, however, did not accept the order passed by the Single Bench of this Court in the execution petition dated 10.06.2004 (supra) and accordingly, challenged the same in LPAC No. 52/2005 in which the Division Bench of this Court while issuing notice in the appeal as well in application for interim relief provided that the operation of the impugned judgment would remain stayed subject to the petitioner's depositing awarded amount with the Registrar Judicial of this Court within three weeks. For facility of reference, the interim order dated 05.12.2007, passed in LPAC No. 52/2005 is reproduced here under:- "Issue notice. Notice in CMP also. Ms. Sindhu Sharma waives notice on behalf of the respondents. List for consideration in due course. In the meanwhile, operation of the impugned judgment shall remain stayed, subject to the appellant's depositing the awarded amount with the Registrar Judicial of this Court within three weeks. On deposit the same be kept in a fixed deposit initially for three months. 6. As is apparent from the records of the LPAC No. 52/2005, the petitioner deposited a sum of Rs. 65,74,760/- in compliance to the directions passed by the Division Bench on 05.12.2007, reproduced hereinabove. It may, however, be pertinent at this stage to refer to the grounds of challenge taken in the appeal by the petitioner. The order of Single Bench passed in the execution proceedings, aforementioned dated 10.06.2004 was challenged by the petitioner inter-alia on the ground that the execution proceedings should have been filed before the Court of first instance i.e., reference Court of District Judge, Poonch and the same could not have been entertained by the Single Bench of this Court. The order of Single Bench passed in the execution proceedings, aforementioned dated 10.06.2004 was challenged by the petitioner inter-alia on the ground that the execution proceedings should have been filed before the Court of first instance i.e., reference Court of District Judge, Poonch and the same could not have been entertained by the Single Bench of this Court. The order was further assailed on the grounds that the Single Bench had erred in granting interest on enhanced compensation from the date of award i.e 10.07.1996 instead of the date of taking over the formal possession by the petitioner in terms of Section 16 of the State Land Acquisition Act and finally, the order passed by the Single Bench as Executing Court was called in question on the ground that the learned Single Bench being Executing Court could not have gone beyond the award and could not have substituted his opinion and grant the interest which had not been granted by the Court on the awarded amount. All these pleas and the grounds of challenge taken by the petitioner were, however, not adjudicated upon by the Division Bench for the reason that the Division Bench found that during the pendency of the appeal, the entire money due had been paid and therefore, it would be an idle formality to go into the question whether the Court ought not to have had allowed itself to be used as the Executing Court. The relevant extract of the judgment passed by the Division Bench dated 10.11.2009, whereby LPAC No. 52/2005 was finally disposed of may be reproduced here under:- "In this appeal, it is contended that execution should not have had been permitted through this Court. In the meantime, the entire dues, however, have been paid. ------------------------------------ ------------------------------------ That being the situation and having regard to the fact that the entire money due has been paid, it would be an idle formality to go into the question whether this Court ought not to have had allowed itself to be used as executing Court. The appeal is, accordingly, disposed of." 7. ------------------------------------ ------------------------------------ That being the situation and having regard to the fact that the entire money due has been paid, it would be an idle formality to go into the question whether this Court ought not to have had allowed itself to be used as executing Court. The appeal is, accordingly, disposed of." 7. From a bare perusal of the order dated 10.11.2009 passed in LPAC No. 52/2005, it is abundantly clear that the Division Bench of this Court did not go into the question of maintainability of the execution petition before the Single Bench primarily for the reason that it found that the controversy had been set at rest as the entire money due had been paid. The expression "entire due money has been paid" is quite categoric and unambiguous and would clearly suggest that the Division Bench took note of the fact that the entire money due under the judgment of learned Single Judge and also as per the award as modified/upheld by the Division Bench had been paid to the respondents. It is only because of this reason only, the appeal preferred by the petitioner was not decided on merits. It is not disputed before this Court that the respondents did not challenge this order before the Hon'ble Supreme Court or filed any review petition seeking the review there of. However, one review petition was filed by appellants which was highly belated and was accordingly dismissed by the Division Bench vide order dated 24.10.2017. While dismissing the aforesaid review petition, the Division Bench also observed that since there was no determination of any rights of the parties as such even on merits review was not maintainable. That being so, the order dated 10.11.2009 has attained finality and therefore, would be binding on the parties to the lis. It may be stated that the judicial process which has now been firmly established in this country is that any order, whether without jurisdiction illegal or patently void is required to be set aside in a manner known to law and only when such event happens, can effect of the order be effaced. It may be stated that the judicial process which has now been firmly established in this country is that any order, whether without jurisdiction illegal or patently void is required to be set aside in a manner known to law and only when such event happens, can effect of the order be effaced. Unless an order is set aside in a legally recognized manner, it continues to have a legal force and sanction and it would not be a valid ground to dishonor the decision only on the assertion that it is erroneous and suffers from an error of law or fact apparent on face of record. The Hon'ble Supreme Court in the case of State of Kerala v. M.K. Kunhi Kannan ( AIR 1996 SC 906 ) affirmed the law on the subject and held that whether an order is valid or void cannot be determined by the parties and for setting aside such an order, even if void, the party has to approach the appropriate forum. The position of law is reiterated in the subsequent judgments rendered by the Supreme Court in the case of Tayabbhai M. Bagsarwala and another v. Hind Rubber Industries Pvt. Ltd., ( AIR 1997 SC 1240 ), M. Meenakshi and others v. Metadim Agarwal; [ (2006) 7 SCC 470 ] and Sneh Gupta v. Devi Swaroop and others; [ (2009) 6 SCC 194 ]. 8. In view of the settled legal position, the parties to lis which has been determined by a judgment and has attained finality, are bound by it and cannot come out of it on the ground that what was held in such judgment was erroneous or contrary to the facts on record. 9. Faced with the aforesaid position, the learned counsel for the respondents urged that the observation made by the Division Bench in its order dated 10.11.2009 to the effect that entire money due had been paid is only an obiter dicta and therefore, not binding on the parties particularly the respondents. 9. Faced with the aforesaid position, the learned counsel for the respondents urged that the observation made by the Division Bench in its order dated 10.11.2009 to the effect that entire money due had been paid is only an obiter dicta and therefore, not binding on the parties particularly the respondents. He, therefore, submits that the issue as to whether the whole of the awarded amount has been paid to the respondents and that the award has been fully satisfied had not been determined by the Division Bench and therefore, the respondents were well within their rights to file the second execution proceedings before the learned Principal District Judge, Jammu for recovery of the balance amount payable to the respondents in terms of the judgment passed by learned Single Judge of this Court in the first execution proceedings. 10. On the strength of these submissions, the learned counsel for the respondents supports the judgment impugned passed by the learned Principal District Judge, Jammu and assailed in the revision petition by the petitioner. 11. Although, what has been said by the Division Bench in its judgment dated 10.11.2009 with regard to the satisfaction of the award which otherwise is required to be executed as a decree in law cannot, by any stretch of reasoning, be said to be an obiter dicta, yet the question as to what constitute obiter dicta in a judgment needs to be gone into as the same has been raised very vehemently by the learned counsel appearing for the respondents. The legal precedents on the point as to what constitute obiter dicta as opposed the ratio decidendi of a judgment are legion. The Hon'ble Supreme Court had occasioned to examine the concept of obiter dicta and the binding nature of statements/observations made by judges in the case of Arun Kumar Aggarwal v. State of Madhya Pradesh and others; [(AIR) 2011 SC 3056]. 12. The Hon'ble Supreme Court had occasioned to examine the concept of obiter dicta and the binding nature of statements/observations made by judges in the case of Arun Kumar Aggarwal v. State of Madhya Pradesh and others; [(AIR) 2011 SC 3056]. 12. The Hon'ble Supreme Court after referring to the case law on the subject as also the definition of the term "obiter dicta" given in different dictionaries and with reference to the discussion of the expression "obiter dicta" in the American jurisprudence 2d, Volume 20 concluded in Paragraph (31) of the judgment as under:- "In view of above, it is well settled that obiter dictum is a mere observation or remark made by the Court by way of aside while deciding the actual issue before it. The mere casual statement or observation which is not relevant, pertinent or essential to decide the issue in hand does not form the part of the judgment of the Court and have no authoritative value. The expression of the personal view or opinion of the Judge is just a casual remark made whilst deviating from answering the actual issues pending before the Court. These casual remarks are considered or treated as beyond the ambit of the authoritative or operative part of the judgment." 13. From the perusal of the aforesaid judgment, it is clear that obiter dictum is an observation or remark made by the Court by way of aside while deciding the actual issue before it and it is only the ratio decidendi which has the precedential value. 14. In the backdrop of legal position settled by the Supreme Court with regard to the concept of obiter dicta, if the order of Division Bench dated 10.11.2009 is examined, it would be apparent that what was observed by the Division Bench with regard to the satisfaction of the award was not an observation made by the way, which was not necessary to decide the questions necessary for determining the appeal. It is only such expression in an opinion which is not necessary to support the decision arrived at by the Court is obiter dictum. 15. It is only such expression in an opinion which is not necessary to support the decision arrived at by the Court is obiter dictum. 15. As stated above, the Division Bench in LPAC No. 52/2005 was hearing an appeal against the order passed by the Single Bench in execution proceedings and therefore, besides other questions raised by the petitioner in the appeal, the Division Bench could have well taken note of the fact that the award had been fully satisfied and therefore, execution proceedings had terminated. It is, in this context, the learned Division Bench took note of the fact that the awarded amount due to the respondents had been paid and therefore, there was nothing left in the execution proceedings to be determined. It is in the backdrop of this factual position, the Division Bench did not venture to adjudicate and decide the other questions raised in the appeal by the petitioner. What is observed by the Division Bench at two places (reproduced above) is actually a finding of fact recorded by the Division Bench which, if not assailed further successfully, would be binding on the parties. Otherwise also the expressions obiter dictum or obiter dicta, ratio decidendi and stare decisis are the expressions relatable to the precedential value of the judgment and, therefore, cannot be pressed into service to avoid findings of fact recorded therein. 16. For all these reasons and in view of the settled legal position, what is held by the Division Bench in its order dated 10.11.2009 passed in LPAC No. 52/2005 would bind both the parties. 17. That being the position, no execution application would lie once the award is found to have been fully satisfied. So long as the judgment of the Division Bench dated 10.11.2009 (supra) stands, none of the parties can be permitted to come out of it or avoid it on any ground whatsoever except in the manner known to law. 18. Consequently, the revision petition is allowed. The order impugned as also the execution proceedings pending before the Principal District Judge, Jammu are quashed. In the peculiar facts and circumstances of this case, there shall be no order as to cost.