Jammu & Kashmir High Court
Rishi Raj Chopra And Anr vs Sayed Waliuddin And Others on 17 March, 2006
Author: Permod Kohli
Bench: Permod Kohli
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU Crev No.13 of 2004 Rishi Raj Chopra and anr Petitioners State & Ors Respondents ! Mr.U.K.Jalali, Sr.Advocate for petitioners. ^ Mr.Anil Sethi, Advocate for the Respondents. Coram Hon'ble Mr.Justice Permod Kohli Date : 17/03/2006 : JUDGMENT :
1. Legality and propriety of the Order dated 15th December, 03 passed by Second Additional District Judge, Jammu in the execution petition filed by the petitioners herein has been challenged in the present revision petition.
2. Briefly stated the facts as emerge from the record are that land measuring 5 kanals 10 marlas comprising Khasra No.657 situated at Nagrota, Jammu owned by the petitioners was requisitioned by the Collector for defence purposes. This requisition ]was made in accordance with the provisions of Requisitioning and Acquisition of Immovable Property Act, 1968 vide Government Order No.JK/2682/REQ dated 1st October, 1972. The property was taken over on 15th November, 76. Monthly rental was determined at Rs.750/-. Rental compensation was received by the petitioners up to 1996. Petitioners filed a writ petition (OWP) No.62 of 95 seeking a direction for the de- requisition or in the alternative for acquisition of the requisitioned property. This writ petition came to be decided by the writ court on 24th May, 1996 directing the respondents either to de-
requisition the property or acquire the same in accordance with law. An appeal LPA(W)No.131/97 also came to be dismissed and the respondents in the writ petition were allowed time to implement the direction.
3. It appears that the property remained under requisition, as neither it was de-
requisitioned nor proceedings for acquisition thereof were initiated. Petitioners herein filed a Civil Suit No.141/2002 in the court of Second Additional District Judge, Jammu claiming rental compensation @ Rs.10,000/- per month and claimed a sum of Rs.3.50 lacs for a period of 35 months. This suit came to be decreed vide judgment and decree dated 3rd January,03 whereby a decree for an amount of Rs.3.50 lacs alongwith pendentilite and future interest @ 8% per annum came to be passed in favour of the petitioners and against the defendants. It is relevant to mention that the suit was filed against three defendants namely the State of J&K through Commissioner/Secretary, Home Department, J&K Government and Deputy Commissioner, Competent Authority under the Requisition and Acquisition of Immovable Property Act, 1968. This decree was put to execution by the decree-holders/petitioners in the court passing the decree. On being put to notice, defendants/judgment debtors appeared and objected the execution of the decree is in-executable against the defendants, the property being in possession of the Army i.e. Union of India having not been impleaded as party in the suit. This objection prevailed and the impugned judgment came to be passed.
4. I have heard learned counsel for the parties at length. With a view to determine the liability under the decree, it is convenient to refer to certain provisions of Requisition and Acquisition of the Property Act, 1968. Relevant extracts are being noticed:-
"(3) Power to requisition immovable property :- (1) Where the Government is of the opinion that any property is needed or likely to be needed for any public purpose, being a purpose of the State, it may be an order notify that the property should be requisitioned (2) Upon such declaration the competent authority
(a) shall call upon the owner or nay other person who may be in possession of the property by notice in writing to show cause, within fifteen days of the date of the service of such notices on him, why the property should not be requisitioned ; and
(b) may, by order, direct that neither the owner of the property nor any order person shall without permission of the competent authority dispose of or structurally alter, the property or let it out to a tenant until the expiry of such period, not exceeding two months, as may be specified in the order. (3) If, after considering the cause, if any, shown by any person interested in the property or in possession thereof, the competent authority is satisfied that it is necessary or expedient so to do, it may be order in writing, requisition the property and may, make such further orders as appear to it be necessary or expedient in connection with the requisitioning (4) Power to take possession of requisitioned property (1) Where any property has been requisitioned under Section 3, the competent authority may, by notice in writing, order the owner as well as any other person who may be in necessary of the property to surrender or deliver possession thereof to the competent authority person duly authorized by it in this behalf within thirty days of the service of the notice.
(2) If any person refuses of fails to comply with an order made under sub-
section (1), the competent authority may take possession of the property and may, for that purpose, use such force as may be necessary.
(5) Rights over requisitioned property Where any premises are requisitioned under section 3 or section 21, the competent authority may order the landlord to execute repairs as may be necessary and are usually made by landlords in that locality and as may be specified in the notice, within such reasonable time as may be mentioned therein and if the landlord fails to execute any repairs in pursuance of such order, the competent authority may cause the repairs specified in the order to be executed at the expense of the landlord and the cost thereof may, without prejudice to any other mode of recovery, be deducted from the compensation payable to the landlord.
(6) Release from requisitioning (1) Subject to the approval of the Government the competent authority may at any time release from requisition any property requisitioned under this Act and shall, as far as possible, restore the property in as good a condition as it was when possession was thereof was taken subject only to the changes caused by reasonable wear and tear and irresistible force..
(9) Payment of compensation The amount of compensation under an award shall, subject to any rules made under this Act, be paid or given by the competent authority to the person or persons entitled thereto in such manner and within such time as may be specified in the award.
(24) Power to recover rent or damages in respect of requisitioned property as arrears of land revenue- (1) Subject to any rules that may be made in this behalf by the Government, any sum due by way of rent in respect of any requisitioned property which is in arrear may be recovered by the competent authority from the person liable to pay the same in the same manner as an arrear of land revenue. (2) Where any person is in unauthorized occupation of any requisition property , the competent authority may, in the prescribed manner, assess such damages on account of the use and occupation of the said property as it thinks fit and may, by notice served by post or in such other manner, as may be prescribed by rule made in this behalf, order that person to pay the damages within such time as may be specified in the notice. (3) If any person refused or fails to pay the damages within the time specified in the notice under sub-section(2), the damages may be recovered in the same manner as an arrear of land revenue."
5. Section (3) of the Act empowers the Government to requisition the property for public purpose and after making a declaration for requisition; the competent authority can pass an order in writing for requisition of the property. Section (4) of the Act empowers the competent authority to direct the delivery of possession and on failure of the owner to take over the possession of the property. Section (5) of the Act further empowers the competent authority to order the owner to execute necessary repairs after the requisition of the property and on failure of the owner to effect such repairs; the competent authority is further entitled to make such repairs and deduct the cost of compensation payable to the owner. Section (6) further makes it obligatory for the competent authority to release the requisitioned property subject to approval of the Government. Section (9) of the Act further imposes a liability upon the competent authority to pay the compensation to the person entitled to under any award passed. Section 24 of the Act further provides the recovery of rent or damages in respect of requisitioned property as arrears of land revenue. Under this Section, it is again the competent authority, which is empowered to recover any amount from the person liable to pay even as arrears of land revenue.
6. Government has also framed rules namely the Relinquishing and Acquisition of Immovable Property Rules, 1969. Rule 9(2) requires the competent authority to pay compensation for the requisitioned property quarterly in respect to property other than agriculture land and either annually, on or release of the land in respect to the agriculture land.
7. No doubt, the requisitioned property is being possessed and used by the army on behalf of the Union of India. However, under the Scheme of the Act and the Rules, it is the competent authority alone which is empowered to requisition the property, take over the possession, deal with the landlord for the purposes of its repairs etc. and to pay the compensation as also to effect the recovery thereof from the person actually liable to pay.
Whenever a property is to be requisitioned, all proceedings are required to be initiated by the competent authority irrespective of the person or the department for whose benefit and use the property is requisitioned. Under the Scheme of the Act, the privity of contract is between the owners of the property and the competent authority notwithstanding the fact that the property is requisitioned for a third person and is to be used and occupied by such person.
8. The executing court has refused to execute the decree only on the ground that the actual user is not a party to the decree and the competent authority being not an actual user has no liability to satisfy the decree. Such a proposition may hold good, where the actual user has a direct relationship with the owner of the property and has either contractual or legal liability under law or the contract between the parties; meaning thereby that the liability accrues either on the basis of a contract between the contracting parties or under some statutory provisions. In a case of requisitioning, the actual user always remain behind the curtain and is not a party either to the requisition proceedings or for mutual obligations in respect to the requisitioned property except that the amount of compensation comes from the chest of the actual user.
9. Liability either flows from the contract or from statutory provisions. In the present case, the contract is established through the enforcement of the statutory provisions contained in the Requisition and Acquisition of Immovable Property and Rules framed there under. The owner of the property has no option, but to surrender to the competent authority as and when any declaration for requisitioning is made by the competent authority for taking over the property for public purpose. Since it is a compulsory surrender, the law has made the competent authority liable for compensation to the owner of the property who is compelled to surrender the property.
10. I have noticed hereinabove, the relevant provisions of the Requisitioning and Acquisition of Immovable Property Act. The competent authority has been defined under section 2(b) of the Act and it is this authority who is to initiate all proceedings right from formulation of the opinion to take over the property for public purpose till taking over of the property. The payment of compensation even under an award or otherwise is also the responsibility of the competent authority. Section 24 of the Act clearly empowers the competent authority to recover the amount, which it is liable to pay to the owner from the user of the property as arrears of land revenue. Rule 9(2) further provides a mode for payment of the compensation. From various provisions, referred to above, it is primarily a statutory duty of the competent authority to recover the compensation/damages from the user of the property and to pay it to the owner thereof.
11. The user of the property has not challenged the decree. Order of the requisitioning of the property has remained intact despite the direction from the High Court either to de-
requisition or acquire the property in accordance with law. There is another important fact, which though noticed by the executing court but has not appreciated in right perspective. The competent authority has issued a draft assessment report No.LH-
354/96dated 30th December, 02 and forwarded the same to the Defence Estates Officer for obtaining the approval of the rate of land compensation for enhancement of compensation payable to the landlords. It remained unattended by the user of the property namely the Defence Estates Officer. This fact also clearly establish that it is the competent authority which is liable to pay the compensation to the land owners and also has its sole responsibility to recover from the user of the property either by mutual correspondence or even as arrears of land revenue. The competent authority, thus, cannot dispute its obligation to satisfy the decree validly passed against it.
12. Observations of the executing court that no notice under section 80 CPC was issued to the Union of India and the decree becomes in-executable is totally irrelevant in the context of the controversy. A decree can be said to be illegal or inexecutable only if it has been passed contrary to any statutory provisions or by incompetent court. It is settled law that the executing court cannot go beyond the decree to declare it as nullity or inexecutable. The principle which empowers the executing court to deny execution is extensively laid-down by the Apex Court in (2004) 1 SCC 287 titled Rafique Bibi Vs. Sayed Waliuddin and others, with the following observations:-
"6) What is "void" has to be clearly understood. A decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity.
The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court cannot go behind the decree must prevail.
7) Two things must clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justify and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results." Administrative Law, Wade and Forsyth, 8th Edn; 2000, p.308). Secondly, there is distinction between mere administrative orders and the decrees of courts, especially a superior court. "The order of a superior court such as the High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocable abandoned owing to the expiry of a time-limit." (ibid; p.312).
8) A distinction exists between a decree passi by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed executable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."
13. The Apex Court has clearly drawn a distinction between a decree, which is nullity and a decree which is illegal, or not passed in accordance with the procedure laid sown by law. From the ratio of the aforesaid judgment, it is clearly established that the decree sought to be executed in the instant case cannot be termed as nullity and thus, to term such a decree as inexecutable is beyond the competence and jurisdiction of the Executing Court, the same having been passed by a court of competent jurisdiction. The findings of the executing court are thus unsustainable in law.
14. In view of the above, I set aside the order impugned and declare the decree to be executable. Executing Court is accordingly directed to execute the decree forthwith.
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