Jharkhand High Court
M/S Bharat Coking Coal Limited vs The State Of Jharkhand on 19 November, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5808 of 2019
with
W.P. (C) No. 5818 of 2019
with
W.P. (C) No. 5822 of 2019
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M/s Bharat Coking Coal Limited Petitioner Vs.
1.The State of Jharkhand
2.Smt. Charu Devi
3.Naresh Kr. Mahato
4.Sukhdeo Mahato
5.Kamli Devi
6.Puspa Devi
7.Sanju Devi
8.Gokhul Mahato
9.Nakul Mahato
10.Pita Mahato
11.Fagu Mahto
12.Dhurub Lal Mahato
13.Kula Ram Mahato ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Amit Kumar Das, Advocate For the Respondents : Mr. Prashant Pallav, G.A. IV Mr. Parth Jalan, A.C to G.A. IV (In WPC No. 5808 of 2019) Ms. Shruti Sinha, A.C to A.G (In WPC No. 5818 of 2019) Mr. Dhananjay Kr. Pathak, G.A. III Ms. Sweta Rani, A.C to G.A. III (In WPC No. 5822 of 2019)
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th Order No. 3 : Dated 19 November, 2019 All these writ petitions have been taken up together with the consent of the parties as common issues are involved in all these writ petitions and are being disposed of by this common order.
2. These writ petitions have been filed under Article 227 of the Constitution of India whereby and whereunder order dated 28.06.2019 passed in Misc. Civil Petition No. 687 of 2018/Execution Case No. 68 of 2014 (In WPC No. 5808 of 2 2019); Misc. Civil Petition No. 689 of 2018/Execution Case No. 70 of 2014 (In WPC No. 5818 of 2019); and Misc. Civil Petition No. 693 of 2018/Execution Case No. 73 of 2014 (In WPC No. 5822 of 2019), by which, the objection filed by the petitioner under Section 47 of the Code of Civil Procedure (in short C.P.C) has been rejected.
3. Brief facts of the case of the petitioner, as per the pleadings made in the writ petition, is that in pursuance to the proceeding initiated under the Land Acquisition Act, 1894, (in short 'the Act, 1894') land in question has been acquired which was the subject matter of Land Acquisition Case Ref. Case No. 03/2011 (In WPC No. 5808 of 2019); Land Acquisition Case Ref. Case No. 05/2011 (In WPC No. 5818 of 2019) and Land Acquisition Case Ref. Case No. 09/2011 (In WPC No. 5822 of 2019). In the aforesaid L.A. Ref. Cases, judgment has been passed on 28.04.2014 and in pursuance thereto decree has been prepared on 02.05.2014 and signed on 05.05.2014. The land losers have filed execution case being Execution Case 68 of 2014, Execution Case 70 of 2014 and Execution Case 73 of 2014 respectively for execution of decree. However, M/s Bharat Coking Coal Limited, the beneficiary (the petitioner herein), has filed an objection under Section 47 of the CPC on the ground that due to coming into effect of the new Act, The Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Resettlement Act, 2013 (in short 'Act, 2013'), wherein a provision has been inserted as under Section 24 (2) thereof, which provides the conditions for 3 initiation of land acquisition proceeding, if initiated under the provisions of the Act, 1894.
4. According to the petitioner, the possession of the land has not been taken therefore, one of the conditions as provided under Section 24 (2) of the Act, 2013 is available, as such, the proceeding initiated either by way of land acquisition case or converted into reference case will vitiate and therefore the decree which is sought to be executed cannot be executed due to that reason. The Executing Court has rejected the aforesaid plea without appreciating the legal provision as contained under Section 24 (2) of the Act, 2013 and its impact. Therefore, the present writ petitions under the supervisory jurisdiction of this Court as conferred under Article 227 of the Constitution of India.
5. Mr. Parth Jalan, A.C to learned G.A. IV appearing in W.P. (C) No. 5808 of 2019, Ms. Shruti Sinha, A.C to learned A.G appearing in W.P. (C) No. 5818 of 2019 and Mr. Dhananjay Kr. Pathak, learned G.A. III appearing in W.P. (C) No. 5822 of 2019 representing the respondent-State of Jharkhand have jointly submitted by referring to Section 47 of the CPC that the scope to show interference in the execution case is very limited. They have further submitted by referring to provisions of 24 (2) of the Act, 2013 that ingredient contained therein is not available in view of the fact that land has been acquired by the State of Jharkhand in favour of the BCCL, the beneficiary and therefore the ingredient of Section 24 of the Act, 2013 as contended by learned counsel for the 4 petitioner is not available therefore, the trial Court considering the aforesaid aspect of the matter has rejected the petitions filed under Section 47 of the Code of Civil Procedure, as such, it cannot be said that there is any error apparent on the face of record warranting any interference by this Court under Article 227 of the Constitution of India.
6. Having heard learned counsel for the parties and on appreciation of the rival submissions, some of the admitted fact, which is required to be seen is that the State Government being the acquisitioning authority under the Act, 1894 has taken a decision to acquire the land for the beneficiary-BCCL i.e. the petitioner herein. In pursuance to the aforesaid decision a notification under Section 4 of the Act, 1894 has been issued for knowing the people in general about proposal for acquisition. The land has been acquired in pursuance to land acquisition proceeding, being L.A. Case No. 14/04-05 which ultimately culminated into preparation of award. The land losers, being aggrieved with the quantum of award has filed an application under Section 18 of the Act, 1894, which has been referred before the competent Court of civil jurisdiction and the same has been instituted as Land Acquisition Case Ref. Case No. 03/2011, Land Acquisition Case Ref. Case No. 05/2011 and Land Acquisition Case Ref. Case No. 09/2011 respectively and have been decided vide judgment dated 28th April, 2014, based upon which decree was prepared on 02.05.2014 and signed on 05.05.2014. 5
7. The land losers, the private respondents herein have filed execution case being Execution Case 68 of 2014 Execution Case 70 of 2014 Execution Case 73 of 2014 respectively, which are the subject matter of the present writ petitions.
8. The petitioner-BCCL has been issued notice and pursuant thereto they entered appearance and show cause has been submitted by the BCCL and they further filed a petition under Section 47 of the CPC making an objection about entire execution proceeding on the ground of ingredient of new Act of 2013 wherein provision has been carved out under Section 24 (2) of the Act, 2013.
9. Upon Section 24 (2) of the Act, 2013, learned counsel for the petitioner has given much emphasis, making objection about the proceeding of the execution, therefore, Section 24 (2) of the Act, 2013 is required to be referred herein, which reads as under:
"24.Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases. -
(1)xxx xxx xxx (2)Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1984 (1 of 1894), wherein an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been pid in the said proceedings shall be deemed to have lapsed and the appropriate Government if it so chooses, shall initiate the proceedings 6 of such land acquisition afresh in accordance with the provisions of this Act:
Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled to compensation in accordance with the provisions of this Act.
10. It is evident from Section 24 (1) of the Act 2013 that it provides a provision about continuation of the land acquisition proceeding in pursuance to the Act, 2013 if any land acquisition proceeding initiated after the Act, 2013. However, there is a repeal and saving clause under Section 11 of the Act, 2013 and apart from that a separate special provision has been inserted in the Act 24 of the Act, 2013 dealing with the situation if the award has been passed five years or more prior from the date of passing of the award and if the amount of compensation has not been paid or the land has not been taken, a fresh proceeding would be initiated under the provisions of the Act, 2013.
11. It requires to refer herein that the provision of Section 24 (2) of the Act, 2013 is under scrutiny of the Constitution Bench of the Hon'ble Supreme Court, wherein besides other issues, issues have been framed to the effect that "what is the true meaning of the word 'paid' " and "whether the words 'or' used in Section 24(2) is to be read as conjunctive or disjunctive?"
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12. This Court after going across the materials available on record is of the view that the cases at hand are not such a nature to wait for the outcome of the case, which is pending before the Hon'ble Apex Court as because herein the land acquisition proceeding has been initiated which ultimately has been culminated into land reference case on an application filed by the land losers under the provisions of Section 18 of the Act, 1894 and thereafter the execution cases have been filed. However, award has been passed in the year 2004-05 and the compensation has not been paid but the acquisition has been done as has been admitted by the State, the acquisitioning authority, as such Section 24(2) of the Act, 2013 is not applicable in the facts and circumstances of the present case.
13. This Court in order to examine the legality and propriety of the aforesaid order, deem it fit and proper to refer Section 47 of the Code of Civil Procedure which reads as:
"47. Questions to be determined by the Court executing decree.- (1) All question arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
(3) here a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.
14. It is evident from provision of Section 47 of the Code of Civil Procedure that the executing court has been 8 allowed to exercise power for not executing the award, if any cause is being shown for not executing the decree passed by the competent court of civil jurisdiction to the effect that if the decree would be said to be nullity.
15. The question of interference under Section 47 of the Code of Civil Procedure fell for consideration before the Hon'ble Apex Court in catena of judgment.
16. Reference in this regard may be made in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. as reported in (1970) 1 SCC 670 in essence enunciated that only a decree which is nullity can be subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts.
17. In the case of Brakewel Automotive Components (India) (P) Ltd. vs. P.R. SelvamAlagappanreported in (2017) 5 SCC 371 wherein their Lordships of the Hon'ble Apex Court while dealing with Section 47 of the CPC have laid down the proposition at paragraph 21 and 22 which is referred hereinabove:
"21.As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.9
22.Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7)
"6.A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
7.When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."
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18. It is thus evident from the judgment referred hereinabove that the purview of scrutiny under Section 47 of the Code qua a decree is limited but objections to its executability on the ground of essential infirmity or voidness and plethoric. The Court executing a decree cannot go behind the decree until it is set aside in an appropriate proceeding in appeal or revision, a decree even if it be decree or erroneous is still binding upon the parties. However, a decree is nullity when it is passed without bringing the legal representatives on the record of a person who was dead at the date of decree or against a ruling prince without a certificate is sought to be executed. An objection in that behalf may be raised in a proceeding for execution. Again when the decree is made by a court which has no inherent jurisdiction to make it, objection to its validity may be in an execution proceeding if an objection appears on the face of record where the objection is as to whether the jurisdiction of the Court to pass a decree does not appear on the face of record and requires examination of the questions raised and decided at the trial for which could have been but having been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.
19. The Hon'ble Apex Court in another case of Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. reported in (2001) 6 SCC 534 laid down therein that the exercise of power under Section 47 of the Code is microscopic and lies in 11 a very narrow inspection hole. Thus it is plain that the executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree in executable after its passing.
20. Recently also the Hon'ble Apex Court in the case of Sneh Lata Goel vs. Pushplata and Ors. reported in (2019) 3 SCC 594 wherein also reliance has been placed upon the judgment of the Hon'ble Apex Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. reported in (1970) 1 SCC 670 by discussing the scope of Section 47. The Hon'ble Apex Court has been pleased to hold that the court executing a decree cannot go behind the decree between the parties or their representatives, it must take the decree according to its tenor and cannot entertain any petition that the decree was not correct in law or on facts until it set aside by appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties, reference of paragraph 23 thereof needs to be made which reads as under:
"23.The objection which was raised in execution in the present case did not relate to the subject-matter of the suit. It was an objection to territorial jurisdiction which does not travel to the root of or to the inherent lack of jurisdiction of a civil court to entertain the suit. An 12 executing court cannot go behind the decree and must execute the decree as it stands. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors., the petitioner filed a suit in the Court of Small Causes, Ahmedabad for ejecting the defendant tenant. The suit was eventually decreed in his favour by this Court. During execution proceedings, the defendant tenant raised an objection that the Court of Small Causes had no jurisdiction to entertain the suit and its decree was a nullity. The court executing the decree and the Court of Small Causes rejected the contention. The High Court reversed the order of the Court of Small Causes and dismissed the petition for execution. On appeal to this Court, a three-Judge Bench of this Court, reversed the judgment of the High Court and held thus: (SCC pp.672-73, paras 6 & 8) "6.A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.
8. ..... if the decree is on the fact of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under Section 11 of the Suits Valuation Act, objection to the jurisdiction of the court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the court which had passed the decree had no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding."
21. Simultaneously, the scope of Article 227 is also required to be seen.
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22. Dealing with the scope of Article 227 of the Constitution of India, Hon'ble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to hold therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Hon'ble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193, wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the court's discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Court's power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner.
The power of superintendence is not to be exercised unless there has been;
(a)An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or
(b)gross abuse of jurisdiction; or
(c).an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals.
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23. Further, in the aforesaid judgment the Hon'ble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to.
24. The Hon'ble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts.
25. Further, the judgment rendered by the Hon'ble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice.
26. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these 15 two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made.
27. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
28. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.
29. In the backdrop of these settled legal position and taking into consideration the scope of Section 47 of the Code of 16 Civil Procedure, it can safely be concluded that the higher forum has very microscopic jurisdiction to make interference in exercise of power conferred under Article 227 of the Constitution of India and supervisory jurisdiction as has been held in the judgment, referred herein above.
30. It is not in dispute that the award has been passed and the possession has also been taken as would appear from the impugned order since the same has been admitted by the State Government, the acquisitioning authority.
31. It is also settled position of law if any decree is there that is to be complied with without any deviation, as would appear from the impugned orders that the executing Court by dealing with the scope of Section 47 of the CPC has declined to take a positive decision on a petition filed under Section 47 CPC and rightly done so as because decree is there and the decree by way of a judgment passed in the land reference case based upon which the decree has been prepared by the Court of civil jurisdiction therefore the decree has to be complied with.
32. So far as the applicability of Section 24(2) of the Act, 2013 is concerned, the same has held to be not applicable in view of the fact that the State Government has admitted the possession having been taken over.
33. The petitioner-BCCL is beneficiary and if beneficiary who has taken a stand that the possession of the land has not been taken this Court is of the view that it is in between the beneficiary and the acquisitioning authority, here 17 the State Government and for that land loser will not be held liable and the dispute will not come in the way of the land loser, which has been initiated by way of instant execution proceeding.
34. In the backdrop of aforesaid fact and in entirety of the matter, this Court is of the view that orders impugned require no interference by this Court under Article 227 of the Constitution of India.
35. Accordingly, the writ petitions fail and are dismissed.
(Sujit Narayan Prasad, J.) Alankar/-