Punjab-Haryana High Court
Jog Raj And Anr. vs Banarsi Dass And Anr. on 13 January, 1978
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 189, 1978 REV LR 389, ILR (1978) 2 PUNJHAR 8, (1978) 80 PUN LR 258
JUDGMENT
1. This judgment will dispose of E. F. A. Nos. 64, 86 to 92 and 101 of 1975 and 145 of 1976. The facts in the judgment are being given from E. F. A. No. 64 of 1975.
2. Briefly the facts of the case are that Ram Chander, since deceased (now represented by Jog Raj and Prithvi Raj, his sons) was the owner of the land in dispute which was on perpetual lease with Banarsi Dass, respondent No. 1. The land was acquired under the Land Acquisition Act (hereinafter referred to as the Act). Banarsi Dass, tenant, claimed apportionment of the amount of compensation. The Collector, in spite of the claim of the tenant, paid the amount of compensation assessed by him to the landlord. The landlord, dissatisfied with the amount of compensation, filed an application under S. 18 of the Act, for referring the matter to the Court. The tenant also filed a similar application for enhancement of the compensation and apportionment of the amount.
3. The Collector referred both the applications to the District Judge, Gurgaon, for deciding the matter. The District Judge, vide order dated Jan. 21, 1974, enhanced the amount of compensation and simultaneously held that the landlord was entitled to capitalised value at 20 times of the rental value and the tenant was entitled to the remaining compensation. The Collector, in accordance with the order of the District Judge, deposited the enhanced amount of compensation in his Court. The landlord filed an application for payment of the amount of compensation to him. The tenant also filed an application to the effect to the effect that out of the amount deposited, the total amount payable to him be deducted and paid to him.
4. The question that arise for determination is as to how the amount deposited with the Collector under the award of the Court is to be distributed. The counsel for the appellants has vehemently urged that 20 times of the lease money is to be paid to the appellants out of the amount deposited and the balance to the tenant. He further submits that the amount already paid to the landlord by the Collector should not be adjusted while paying his share out of the enhanced amount. On the other hand, Mr. Jain, learned counsel for the tenant, has submitted that the landlord was not entitled to the whole amount paid by the Collector to him. According to him, the payment out of the enhanced amount should be made to the landlord in accordance with the award of the Court by making adjustment of the payment made to him by the Collector.
5. I have given a deep thought to the arguments of the learned counsel. There is no specific provision in the Act in order to decide this matter. The counsel have placed reliance on S. 31 of the Act which reads as follows:--
"31(1). On making an award under S. 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them unless prevented by some one or more of the contingencies mentioned in the next sub--section.
(2) If they shall not consent to receive it, or if there be no person competent to alienate the land, or if there be any dispute as to the title to receive the compensation or as to the apportionment of it, the Collector shall deposit the amount of the compensation in the Court to which a reference under S. 18 would be submitted.
Provided that any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount :
Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under S. 18:
Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto. (3) ... ...
(4) ... ..."
6. From a reading of sub--s. (2) it is evident that if there is any dispute as to the title to receive payment of the compensation or its appointment, it is the duty of the Collector to deposit the amount of compensation in the Court to which reference has to be made under S. 18. In the present case, in spite of the dispute regarding apportionment of the amount of compensation between the landlord and the tenant, the Collector paid the amount to the landlord. Proviso (3) to sub--s. (2) says that the person who receives the compensation, is liable to pay the same to the person lawfully entitled thereto. The question arises as to how the person who is lawfully entitled to the compensation, has to recover it from that person who has received the same from the Collector. It is not given in the Act as to how such a person has to recover the amount from the person who unlawfully received it. No machinery has been provided therein to make such recoveries. It is an established principle of law that an act of a Tribunal which causes injury to a party, should not be allowed to stand. If any injury is done by its act the Tribunal has an inherent right to remedy the same. In this view I am fortified by the observations of the Privy Council in Rodger v. Comptoir D'Escompte De Paris (1871) 3 PC 465, wherein Lord Cairns observed at page 475, thus :--
"Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."
Section 31(2) came up for interpretation before a Division Bench of the Madhya Pradesh High Court, in Hitkarini Sabha v. Jabalpur Corporation, AIR 1958 Madh Pra 339 presided over by M. Hidayatullah, C. J., (as my Lord then was). The facts of that case were that land was acquired by the Collector and two claimants for the compensation money appeared before him. The Collector, assessed the compensation and apportioned between them. On the date the award was announced, both the parties, namely, the Corporation of the City of Jabalpur and Hitkarini Sabha, were present through their representatives and vouchers for payment to the Sabha and Corporation were drawn up to be handed over to them. The representatives of the Corporation did not accept the payment, but that of the Sabha accepted it and withdrew the money. Later, the Corporation accepted its share under S. 18 to the Court. When the reference reached the Judge, he felt that his jurisdiction was ousted by payment of the compensation money to the Sabha. He accordingly directed the Sabha to deposit the amount in his Court before a particular date. The Sabha went up in revision before the High Court. The Bench after taking into consideration the provisions of S. 31(2), observed as follows:--
"A Collector acts against the express provisions of S. 31(2) in making the payment of compensation money when there is a dispute as to who should receive the same. Such payment, however, does not oust the jurisdiction of the Court to hear the reference. The Collector, being in error in making the payment, the Courts must rectify the matter to bring the action of the Collector in line with the statutory requirements by ordering that the money be forthwith brought into court as an interim measure."
I am respectfully in agreement with the above observations.
7. Mr. G. C. Mittal, in support of his contention, referred to Hemanta Kumar Banerjee v. Satish Chandra Banerjee, AIR 1941 Cal 635, wherein it was observed that last proviso to S. 31(2) contemplates civil suit. It does not create right to get refund but merely recognises right existing independently of the section. He also referred to Shri Deo Sansthan Chinchwad v. Chintaman Dharnidhar Deo. AIR 1962 Bom 214, wherein similar observations were made. There cannot be any dispute that a suit is maintainable for recovery under proviso to S. 31(2). But it is not the only remedy. I am of the view that both the remedies for recovery of such amounts are open and it is for the party concerned to choose either of them.
8. In the present case, it is mot disputed that out of the compensation money deposited in the Court, the total share of the tenant can be paid to him. No useful purpose will be served directing him to institute a suit for recovery of the part of his share money which was paid to the landlord by the Collector. After taking into consideration all the facts and circumstances of the case, I am of the opinion that the view expressed by the learned District Judge is correct and does not require any interference. I consequently affirm the same. The facts of all the appeals, expect those of E. F. A. No. 145 of 1976, are similar. Consequently E. F. A. Nos. 64, 86 to 92 and 101 of 1975, are liable to be dismissed.
E. F. A No. 145 of 1976.
9. Onkar Dutt was the owner of the land and tulsi, Bishan Dutt and Sat Parkash were his perpetual lessees. The land was acquired under the Land Acquisition Act. The Land Acquisition Collector gave his award on Jan. 20, 1968, and paid the amount of compensation to the landlord. On a petition under S. 18 of the Act, a reference was made to the Court of the Additional District Judge who modified the award by his judgment dated Jan. 21, 1974. According to the judgment, the landlord was entitled to receive 20 times of the rental value of the land and the remaining compensation was to be paid to the tenants.
10. The tenants filed an application before the Additional District Judge praying that the total amount to which they had become entitled by the judgment of the Additional District Judge dated Jan. 21, 1974, be paid to them by adjustment against the compensation payable to the landlord by the said judgment. The application was contested by the landlord but it was allowed by the District Judge vide order dated Dec. 18, 1974. Subsequently, the landlord filed an application for review of the above said order, which was dismissed by him on March 17, 1975.
11. The tenants filed an application for execution of the award of the Addl. District Judge dated Jan. 21, 1974. The landlord filed an objection petition inter alia stating that the executing Court cannot go behind the judgment dated Jan. 21, 1974, and the tenants may file a separate suit for the recovery of excess amount alleged to have been illegally paid to them. In view of the aforesaid objections, it was prayed by him that the execution application be dismissed. The objection petition was contested by the tenants who stated that the objections had already been decided by the Additional District Judge and these cannot be reopened. They further stated that the Additional District Judge had the right to take into consideration the payments made by the Collector to the landlord while making the payment to him out of the enhanced amount. The learned Additional District Judge dismissed the objections. The landlord has come up in appeal against that order.
12. It is evident from the narration of the facts above that the Additional District Judge had decided the same matter vide his order dated Jan. 21, 1974. When the tenants filed an application for execution, the landlord again raised the same objections. It is established principle of law that principle of res judicata is applicable to the execution proceedings. In the present case, it cannot be disputed that the objections filed by the landlord were the same as had been adjudicated earlier. In the circumstances, the earlier judgment of the Additional District Judge operates as res judicata and he cannot be allowed to raise the same objections again. The appeal is liable to be dismissed on this account alone.
13. On the merits, I have also examined the matter, I have already held above that two courses were open to the tenants--firstly they could file an application before the Additional District Judge for making payment to the landlord out of the enhanced amount after taking into consideration the amount already paid by the Collector and to pay the balance to them and secondly to file a suit for recovery of their share out of the amount paid by the Collector to the landlord. They adopted the first course to which they were entitled to. For the aforesaid reasons, I do not find any fault with the judgment of the Additional District Judge and confirm the same.
14. For the reasons recorded above, the appeals fail and the same are dismissed with costs. Counsel fee Rs. 75/-in each case.
15. Appeals dismissed.