Orissa High Court
Arjun Sethi vs L.A. Collector, Cuttack And Ors. on 29 September, 1997
Equivalent citations: AIR1998ORI34, AIR 1998 ORISSA 34, (1998) 85 CUT LT 742 (1999) 1 LACC 157, (1999) 1 LACC 157
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT
1. This Civil Revision is directed against the order dated 26-9-1994 passed by the Civil Judge (Senior Division), First Court, Cuttack, in Execution Case No. 36 of 1991.
2. The tacts giving rise to the present Civil Revision are as follows : The petitioner and preferred opposite parties had filed Execution Case No. 36 of 1991 for execution of the decree passed in First Appeal No. 153 of 1979. The land of the decree-holders had been acquired and thereafter the subordinate Judge passed an award on 19-4-1979. As per the provisions of the Land Acquisition Act, the Subordinate Judge had granted interest as well as solatium at the rate of 15 per cent. Against the aforesaid award passed by the subordinate Judge, the Land Acquisition Officer. Cuttack (Judgment-debtor) filed First appeal No. 153 of 1979 in the High Court, which was dismissed by order dated 14-12-1989. While disposing of the appeal, the High Court observed :--
"5. During pendency of this appeal, the Act has been amended by Act 68 of 1984 giving better statutory benefits to the claimants in the circumstances indicated by the amending Act. Accordingly, claimant is entitled to permissible statutory benefits under the Act as amended by Act 68 of 1984."
After disposal of the First Appeal, the decree-holders filed the execution case. A calculation sheet was filed along with the execution petition. Though the judgment-debtor did not file any objection, he deposited Rs. 1,42,609/-. Since there was some dispute relating to the actual calculation, the matter ultimately came to the High Court in Civil Revision No. 40 of 1993. The Court while disposing of the said revision, made the following observation :--
"5. It is submitted by the counsel for the parlies that the entire decretal dues have not been deposited by the judgment debtor. Theexecuting court shall direct payment of rest amount of compensation, if any, which is did no the petitioners and opposite parties who are legal representatives of decree-holder in First Appeal No. 153 of 1979."
On 20-7-1994, the executing court directed the decree-holders to submit fresh calculation sheet and accordingly, a fresh calculation sheet was filed deducting the amount already paid by the judgment-debtor. The judgment-debtor filed objection to the calculation sheet contending, inter alia, that the decree-holders are not entitled to any further amount in view of the decision of the Supreme Court reported in AIR 1989 SC 1933 (Union of India v. Raghubir Singh (dead) by L.Rs. etc.). In the calculation sheet, the decree-holders had claimed additional amount on three heads, namely additional compensation under Section 23 (1-A), solatium at the rate of 30 per cent as per Section 23 (2) of the amended Act and interest at the rate of 9 per cent for the first year and 15 per cent for the subsequent years, as envisaged under Sections 28 and 34 of the Amended Act. The aforesaid claim on the basis of the amended provisions having been negatived by the executing court on the basis of the decision of the Supreme Court reported in AIR 1989 SC 1933 (supra), one of the decree-holders has filed the present Civil Revision.
3. In the Civil Revision, the following contentions have been raised :--
(i) The High Court having directed that the claimant is entitled to the benefits under the ended Act, the executing court cannot go behind the said decree;
(ii) Even assuming that the claimant is not entitled to the benefits of Sections 23 (1-A) and 23 (2) as amended, the compensation amount having not been paid, at least the claimant, should be awarded interest at the rate of 9 per cent for the first year and 15 per cent thereafter as envisaged in Sections 28 and 34 of the Act.
Learned counsel appearing on behalf of the State has combated the aforesaid contentions raised by the petitioner.
4. In the present case, the notification of land acquisition and the award of the Collector were prior to 13-4-1982. Similarly, the award of the Civil Judge in reference under Section 18 of the Act was also prior to 13-4-1982. However, the appeal was disposed of by the High Court in 1989 after coming into force of Act 68 of 1984. In the above context, it is to be seen as to whether the benefits of the provisions contained in Section 23 (1-A) as inserted by Act 68 of 1984, and Section 11(2) as well as Section 28, as amended by the said Act, are available to the petitioner.
5. So far as applicability of Section 23 (1-A) is concerned, the majority view in the decision of the Supreme Court reported in AIR 1995 SC 1012 (K.S. Paripoornan v. Slate of Kerala), makes it clear that the provision of Sec-lion 23 (1-B) is applicable only to cases where the award of the Col lector has been made after 13-4-1982 and the said provision is not applicable to cases where the award of the Collector was made prior to 13-4-1982, although the award of the sub-Judge, or the judgment of the High Court or that of the Supreme Court had been passed after 13-4-1982, or even after 24th September, 1984, when the Amending Act 68/84 was enforced.
6. Coming to the question of applicability of Section 23 (2). the decision of the Constitution Bench of the Supreme Court reported in AIR 1989 SC 1933 (supra) is squarely applicable. Applying the ratio of the said decision, it is evident that since the award of the Collector as well as the award of the reference court had been made prior to 13-4-1982, the benefit of the enhanced solatium is not available to the petitioner. The question of payment of interest at the enhanced rate also appears to be concluded by the aforesaid decisions.
7. The learned counsel for the petitioner, however has placed reliance upon the decision of the Supreme Court reported in (1995) 3 SCC 74 : (1995 AIR SCW 1713) (S.A. Jain College Trust & Managing Society v. State of Haryana) and contended that since in the present case, the appeal in Ihe High Court was decided after 24-9-1984, when the Land Acquisition (Amendment) Act (Act 68 of 1984) came into force the claimants are entitled to an award of 30 percent solatium as contemplated under Section 23 (2) and enhanced rate of interest, as contemplated under Section 28(2) of the Act. In the aforesaid decision of the Supreme Courl. K. S. Paripoornan. J. observed :--
"..... The Land Acquisition (Amendment) Act. 1984 (Act No. 68 of 1984) became law on 24-9-1984. The appeal filed by the claimant was pending before the learned single Judge of the High Court on the day when the amendment Act came into force. The learned single Judge delivered Ihe judgment on 25-10-1985. So Ihe award of 30% solatium on the market value of the land acquired is justified. Similarly the award of interest an excess compensation fixed by the Court at the rate of 9% for the first year from the date of taking possession, and thereafter at 15% till the date of payment of the compensation for the land acquired, is equally justified....."
Though the aforesaid decision squarelly supports the contention of the petitioner, the same cannot be followed.
As already indicated, in the decision reported in AIR 1989 SC 1933, aConstitution Bench of the Supreme Court had held that the benefit of the amended provjsion under Section 23 (2) of the Land Acquisition Act, as amended by Act 68 of 1984, was not available in pending appeals against the decisions which had been rendered prior to 13-4-1982. i.e. the date of introduction of the Bill in the Parliament. Following the aforesaid decision, it has been held by a three Judge Bench in the decision reported in (1995) I SCC. 367 : (AIR 1995 SC 581) (K.S. Paripoornan (II) v. State of Kerala that the benefit of the amended Act was not applicable to cases where the civil Court had decided the reference prior to 13-4-1982. The aforesaid two decisions were again followed in the decision reported in (1995) 1 SCC 383 (State of Punjab v. Avtar Singh). Since the subsequent decision of the Supreme Court (1995) 3 SCC 74 : (1995 AIR SCW 17 L3)rendered by a Bench consisting of two Judges has not referred to any of the aforesaid three earlier decisions, the first two of which (reported in AIR 1989 SC 1933 and AIR 1995 SC 1012) were of larger Benches of the Supreme Court, the latter decision cannot be followed in preference to the earlier decisions of larger Bench or co-ordinate Bench.
8. Unfazed by the aforesaid analysis, the learned counsel for the petitioner, however. strenuously contended that in the present case, the principles of law as enunciated by subsequent Constitution Bench decisions of the Supreme Court reported in AIR 1989 SC 1933 and AIR 1995 SC 1012 should not be made applicable. He has submitted that by applying the principles of prospective overruling as enunciated in the decision of Ihe Supreme Court reported in AIR 1967 SC 1643 (L.C. Golak Nath v. Stale of Punjab) and further explained in the decision reported in AIR 1994 SC 1074 (Managing Director, ECTL, Hyderabad v. B. Karunakar). it should be held that those decisions should be made applicable to cases decided after those decisions were rendered and the present case should be governed by the principle of law decided in the decision reported in AIR 1985 SC 576. which was holding the field when the First Appeal was decided. Ordinarily, a decision of the Supreme Court enunciating a principle of law is applicable to all cases because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from the inception. However, the doctrine of prospective overruling, a feature of American Jurisprudence, is an exception to this normal principle of law which doctrine was imported and applied for the first time in India in the case reported in AIR 1967 SC 1643. However, as evident from the said decisions, it is for the Supreme Court toindicate as to whetherits decision will have prospective effect by applying the doctrine of prospective overruling. Unless it is so indicated by the Supreme Court in the particular decision, it is not open to other Courts including High Courts to hold that the decision of the Supreme Court in a particular case will be prospective in its application by applying the doctrine of prospective overruling. In the present case, it has been nowhere laid down in the two decisions of the Supreme Court reported in AIR 1989 SC 1933 and AIR 1995 SC 1012 that the interpretation as enunciated in the said decisions would be of prospective application. Therefore, the contention of the counsel for the petitioner that the subsequent interpretation as enunciated by the Supreme Court should not be made applicable to the present case, cannot be accepted.
9. The learned counsel for the petitioner has also contended that since the High Court in the decision in First Appeal decided that the claimants in the land acquisition case were entitled to the enhanced benefits of the Amending Act, the said decision operates, as res judicate and the executing court cannot go behind the decree. He has placed reliance upon the decision of the Supreme Court reported in AIR 1992 SC 173 (State of Punjab v. Mohinder Singh Randhawa) in support of such contention. Law is well settled that an executing Court cannot go behind the decree except when the decree is a nullity or is without jurisdiction. The question is whether in the present case, the High Court had in clear terms directed for payment of the benefits available under the Amending Act. The judgment of the High Court indicated :--
".....Accordingly, the claimant is entitled to permissible statutory benefit under the Act as amended by Act 68 of 1984."
The expression "permissible statutory benefit" means statutory benefit as permitted under the Amending Act. The High Court had nowhere indicated that the claimants in fact, were entitled to the benefits. It had merely indicated that the claimants are entitled to "permissible stalutofy benefit". Since in view of the law declared by the Supreme Court, such benefits are impermissible in the facts and circumstances of the present case, it cannot be said that the petitioner is entitled to the benefits of the Amending Act. The question would have been different if the High Court in categorical terms would have given a direction for payment of benefits under Section 23 (1-A), 23(2) or 28, as the case may be, as had been done in the aforesaid decision of the Supreme Court. The further contention of the Counsel for the petitioner is that since at that time the decision of the Supreme Court reported in AIR 1985 SC 576 was holding the field, it must be taken that the High Court had, indeed, given such a direction. Since the High Court has not referred to the aforesaid decision of the Supreme Court, it cannot be assumed that the High Court was, indeed, passing a direction entitling the claimants to gel the benefits as declarred by the Supreme Court in the said decision.
10. Since such question is crapping up very often specially before the executing court, it is better to summarize the principles relating to applicability of the beneffits under the amended Act, as culled out from the decisions of the Supreme Court reported in AIR 1989 SC 1933, AIR 1995 SC 1012 : (1995) 1 SCC 367 : (AIR 1995 SC 581); (1995) 1 SCC 383 and AIR 1992 SC 473, in the following manner :--
(i) If the award of the Collector is after 13-4-1982, the claimant is entitled to all the benefits of the amended Act;
(ii) If the award of the Collector is before 13-4-1982, but the award of the Civil Court in reference under Section 18 of the Act is after 13-4-1982, the claimant is entitled to the benefits under Section 23(2) and Section 28, as amended by the Amending Act, but is not entitled to the benefit under Section 23(1-A) of the Act;
(iii) If the award of the Collector as well as that of the Civil Court under Section 10 of the Act in prior to 13-4-1982, the claimant is not entitled to the benefits of the amended Act in the appeals against such awards, and
(iv) II there is specific direction by the Civil Court in reference under Section 18, or in appeal regarding payment of any benefits under the amended Act and suuh direction had not been reversed or modified by any competent appellate forum, the executing court is bound to give effect to such direction notwithstanding the fact that the claimant was not entitled to such benefits.
11. For the reasons indicated in the foregoing paragraphs, I do not find any merit in the contentions raised by the petitioner. Though I dismiss the revision. I must place on record my appreciation for the able and fair manner in which the case has been argued by Mr. I. C. Dash, the learned counsel for the petitioner. No costs.