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-
354/96
dated 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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