{"id":163782,"date":"2006-03-17T00:00:00","date_gmt":"2006-03-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rishi-raj-chopra-and-anr-vs-unknown-on-17-march-2006"},"modified":"2015-12-10T11:18:55","modified_gmt":"2015-12-10T05:48:55","slug":"rishi-raj-chopra-and-anr-vs-unknown-on-17-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rishi-raj-chopra-and-anr-vs-unknown-on-17-march-2006","title":{"rendered":"Rishi Raj Chopra And Anr vs Unknown on 17 March, 2006"},"content":{"rendered":"
Jammu High Court<\/div>\n
Rishi Raj Chopra And Anr vs Unknown on 17 March, 2006<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n  HIGH COURT OF JAMMU AND KASHMIR AT JAMMU            \n Crev No.13 of 2004\n\n Rishi Raj Chopra and anr\n   Petitioners\n\n State & Ors\n   Respondents \n\n! Mr.U.K.Jalali, Sr.Advocate for petitioners.\n^ Mr.Anil Sethi, Advocate for the Respondents.\n\nCoram \nHon'ble Mr.Justice Permod Kohli\n\n Date : 17\/03\/2006\n\n: JUDGMENT :  \n<\/pre>\n
1.      Legality and propriety of the Order dated 15th December, 03 passed by
\nSecond
\nAdditional District Judge, Jammu in the execution petition filed by the
\npetitioners herein
\nhas been challenged in the present revision petition.\n<\/p>\n
2.      Briefly stated the facts as emerge from the record are that land measuring
\n5 kanals
\n10 marlas comprising Khasra No.657 situated at Nagrota, Jammu owned by the
\npetitioners was requisitioned by the Collector for defence purposes. This
\nrequisition ]was
\nmade in accordance with the provisions of Requisitioning and Acquisition of
\nImmovable
\nProperty Act, 1968 vide Government Order No.JK\/2682\/REQ dated 1st October, 1972.
\nThe property was taken over on 15th November, 76. Monthly rental was determined
\nat
\nRs.750\/-. Rental compensation was received by the petitioners up to 1996.
\nPetitioners
\nfiled a writ petition (OWP) No.62 of 95 seeking a direction for the de-
\nrequisition or in the
\nalternative for acquisition of the requisitioned property. This writ petition
\ncame to be
\ndecided by the writ court on 24th May, 1996 directing the respondents either to
\nde-\n<\/p>\n
requisition the property or acquire the same in accordance with law. An appeal
\nLPA(W)No.131\/97 also came to be dismissed and the respondents in the writ
\npetition
\nwere allowed time to implement the direction.\n<\/p>\n
3.      It appears that the property remained under requisition, as neither it was
\nde-\n<\/p>\n
requisitioned nor proceedings for acquisition thereof were initiated.
\nPetitioners herein
\nfiled a Civil Suit No.141\/2002 in the court of Second Additional District Judge,
\nJammu
\nclaiming rental compensation @ Rs.10,000\/- per month and claimed a sum of
\nRs.3.50
\nlacs for a period of 35 months. This suit came to be decreed vide judgment and
\ndecree
\ndated 3rd January,03 whereby a decree for an amount of Rs.3.50 lacs alongwith
\npendentilite and future interest @ 8% per annum came to be passed in favour of
\nthe
\npetitioners and against the defendants. It is relevant to mention that the suit
\nwas filed
\nagainst three defendants namely the State of J&K through Commissioner\/Secretary,
\nHome Department, J&K Government and Deputy Commissioner, Competent Authority
\nunder the Requisition and Acquisition of Immovable Property Act, 1968. This
\ndecree was
\nput to execution by the decree-holders\/petitioners in the court passing the
\ndecree. On
\nbeing put to notice, defendants\/judgment debtors appeared and objected the
\nexecution of
\nthe decree is in-executable against the defendants, the property being in
\npossession of the
\nArmy i.e. Union of India having not been impleaded as party in the suit. This
\nobjection
\nprevailed and the impugned judgment came to be passed.\n<\/p>\n
4.      I have heard learned counsel for the parties at length. With a view to
\ndetermine
\nthe liability under the decree, it is convenient to refer to certain provisions
\nof Requisition
\nand Acquisition of the Property Act, 1968. Relevant extracts are being noticed:-\n<\/p>\n
“(3) Power to requisition immovable property :- (1) Where the Government is of
\nthe
\nopinion that any property is needed or likely to be needed for any public
\npurpose, being a
\npurpose of the State, it may be an order notify that the property should be
\nrequisitioned    <\/p>\n
(2) Upon such declaration the competent authority <\/p>\n
(a)     shall call upon the owner or nay other person who may be in possession of
\nthe
\nproperty by notice in writing to show cause, within fifteen days of the date of
\nthe
\nservice of such notices on him, why the property should not be requisitioned ;
\nand\n<\/p>\n
(b)     may, by order, direct that neither the owner of the property nor any order
\nperson
\nshall without permission of the competent authority dispose of or structurally
\nalter, the property or let it out to a tenant until the expiry of such period,
\nnot
\nexceeding two months, as may be specified in the order.
\n(3) If, after considering the cause, if any, shown by any person interested in
\nthe property
\nor in possession thereof, the competent authority is satisfied that it is
\nnecessary or
\nexpedient so to do, it may be order in writing, requisition the property and
\nmay, make
\nsuch further orders as appear to it be necessary or expedient in connection with
\nthe
\nrequisitioning      <\/p>\n
(4) Power to take possession of requisitioned property  (1) Where any property
\nhas
\nbeen requisitioned under Section 3, the competent authority may, by notice in
\nwriting,
\norder the owner as well as any other person who may be in necessary of the
\nproperty to
\nsurrender or deliver possession thereof to the competent authority person duly
\nauthorized
\nby it in this behalf within thirty days of the service of the notice.\n<\/p>\n
(2) If any person refuses of fails to comply with an order made under sub-
\nsection (1), the
\ncompetent authority may take possession of the property and may, for that
\npurpose, use
\nsuch force as may be necessary.\n<\/p>\n
(5) Rights over requisitioned property  Where any premises are requisitioned
\nunder
\nsection 3 or section 21, the competent authority may order the landlord to
\nexecute repairs
\nas may be necessary and are usually made by landlords in that locality and as
\nmay be
\nspecified in the notice, within such reasonable time as may be mentioned therein
\nand if
\nthe landlord fails to execute any repairs in pursuance of such order, the
\ncompetent
\nauthority may cause the repairs specified in the order to be executed at the
\nexpense of the
\nlandlord and the cost thereof may, without prejudice to any other mode of
\nrecovery, be
\ndeducted from the compensation payable to the landlord.\n<\/p>\n
(6) Release from requisitioning  (1) Subject to the approval of the Government
\nthe
\ncompetent authority may at any time release from requisition any property
\nrequisitioned
\nunder this Act and shall, as far as possible, restore the property in as good a
\ncondition as
\nit was when possession was thereof was taken subject only to the changes caused
\nby
\nreasonable wear and tear and irresistible force..\n<\/p>\n
(9) Payment of compensation  The amount of compensation under an award shall,
\nsubject to any rules made under this Act, be paid or given by the competent
\nauthority to
\nthe person or persons entitled thereto in such manner and within such time as
\nmay be
\nspecified in the award.\n<\/p>\n
(24) Power to recover rent or damages in respect of requisitioned property as
\narrears of
\nland revenue- (1) Subject to any rules  that may be made in this behalf by the
\nGovernment, any sum due by way of rent in respect of any requisitioned property
\nwhich
\nis in arrear may be recovered by the competent authority from the person liable
\nto pay the
\nsame in the same manner as an arrear of land revenue.
\n(2) Where any person is in unauthorized occupation of any requisition property ,
\nthe
\ncompetent authority may, in the prescribed manner, assess such damages on
\naccount of
\nthe use and occupation of the said property as it thinks fit and may, by notice
\nserved by
\npost or in such other manner, as may be prescribed by rule made in this behalf,
\norder that
\nperson to pay the damages within such time as may be specified in the notice.
\n(3) If any person refused or fails to pay the damages within the time specified
\nin the
\nnotice under sub-section(2), the damages may be recovered in the same manner as
\nan
\narrear of land revenue.”\n<\/p>\n
5.      Section (3) of the Act empowers the Government to requisition the property
\nfor
\npublic purpose and after making a declaration for requisition; the competent
\nauthority can
\npass an order in writing for requisition of the property. Section (4) of the Act
\nempowers
\nthe competent authority to direct the delivery of possession and on failure of
\nthe owner to
\ntake over the possession of the property. Section (5) of the Act further
\nempowers the
\ncompetent authority to order the owner to execute necessary repairs after the
\nrequisition
\nof the property and on failure of the owner to effect such repairs; the
\ncompetent authority
\nis further entitled to make such repairs and deduct the cost of compensation
\npayable to
\nthe owner. Section (6) further makes it obligatory for the competent authority
\nto release
\nthe requisitioned property subject to approval of the Government. Section (9) of
\nthe Act
\nfurther imposes a liability upon the competent authority to pay the compensation
\nto the
\nperson entitled to under any award passed. Section 24 of the Act further
\nprovides the
\nrecovery of rent or damages in respect of requisitioned property as arrears of
\nland
\nrevenue. Under this Section, it is again the competent authority, which is
\nempowered to
\nrecover any amount from the person liable to pay even as arrears of land
\nrevenue.\n<\/p>\n
6.      Government has also framed rules namely the Relinquishing and Acquisition
\nof
\nImmovable Property Rules, 1969. Rule 9(2) requires the competent authority to
\npay
\ncompensation for the requisitioned property quarterly in respect to property
\nother than
\nagriculture land and either annually, on or release of the land in respect to
\nthe agriculture
\nland.\n<\/p>\n
7.      No doubt, the requisitioned property is being possessed and used by the
\narmy on
\nbehalf of the Union of India. However, under the Scheme of the Act and the
\nRules, it is
\nthe competent authority alone which is empowered to requisition the property,
\ntake over
\nthe possession, deal with the landlord for the purposes of its repairs etc. and
\nto pay the
\ncompensation as also to effect the recovery thereof from the person actually
\nliable to pay.\n<\/p>\n
Whenever a property is to be requisitioned, all proceedings are required to be
\ninitiated by
\nthe competent authority irrespective of the person or the department for whose
\nbenefit
\nand use the property is requisitioned. Under the Scheme of the Act, the privity
\nof contract
\nis between the owners of the property and the competent authority
\nnotwithstanding the
\nfact that the property is requisitioned for a third person and is to be used and
\noccupied by
\nsuch person.\n<\/p>\n
8.      The executing court has refused to execute the decree only on the ground
\nthat the
\nactual user is not a party to the decree and the competent authority being not
\nan actual
\nuser has no liability to satisfy the decree. Such a proposition may hold good,
\nwhere the
\nactual user has a direct relationship with the owner of the property and has
\neither
\ncontractual or legal liability under law or the contract between the parties;
\nmeaning
\nthereby that the liability accrues either on the basis of a contract between the
\ncontracting
\nparties or under some statutory provisions. In a case of requisitioning, the
\nactual user
\nalways remain behind the curtain and is not a party either to the requisition
\nproceedings
\nor for mutual obligations in respect to the requisitioned property except that
\nthe amount
\nof compensation comes from the chest of the actual user.\n<\/p>\n
9.      Liability either flows from the contract or from statutory provisions. In
\nthe present
\ncase, the contract is established through the enforcement of the statutory
\nprovisions
\ncontained in the Requisition and Acquisition of Immovable Property and Rules
\nframed
\nthere under. The owner of the property has no option, but to surrender to the
\ncompetent
\nauthority as and when any declaration for requisitioning is made by the
\ncompetent
\nauthority for taking over the property for public purpose. Since it is a
\ncompulsory
\nsurrender, the law has made the competent authority liable for compensation to
\nthe owner
\nof the property who is compelled to surrender the property.\n<\/p>\n
10.     I have noticed hereinabove, the relevant provisions of the Requisitioning
\nand
\nAcquisition of Immovable Property Act. The competent authority has been defined
\nunder
\nsection 2(b) of the Act and it is this authority who is to initiate all
\nproceedings right from
\nformulation of the opinion to take over the property for public purpose till
\ntaking over of
\nthe property. The payment of compensation even under an award or otherwise is
\nalso the
\nresponsibility of the competent authority. Section 24 of the Act clearly
\nempowers the
\ncompetent authority to recover the amount, which it is liable to pay to the
\nowner from the
\nuser of the property as arrears of land revenue. Rule 9(2) further provides a
\nmode for
\npayment of the compensation. From various provisions, referred to above, it is
\nprimarily
\na statutory duty of the competent authority to recover the compensation\/damages
\nfrom
\nthe user of the property and to pay it to the owner thereof.\n<\/p>\n
11.     The user of the property has not challenged the decree. Order of the
\nrequisitioning
\nof the property has remained intact despite the direction from the High Court
\neither to de-\n<\/p>\n
requisition or acquire the property in accordance with law. There is another
\nimportant
\nfact, which though noticed by the executing court but has not appreciated in
\nright
\nperspective. The competent authority has issued a draft assessment report No.LH-\n<\/p>\n
354\/96 <\/span><\/p>\n
dated 30th December, 02 and forwarded the same to the Defence Estates Officer
\nfor
\nobtaining the approval of the rate of land compensation for enhancement of
\ncompensation
\npayable to the landlords. It remained unattended by the user of the property
\nnamely the
\nDefence Estates Officer. This fact also clearly establish that it is the
\ncompetent authority
\nwhich is liable to pay the compensation to the land owners and also has its sole
\nresponsibility to recover from the user of the property either by mutual
\ncorrespondence or
\neven as arrears of land revenue. The competent authority, thus, cannot dispute
\nits
\nobligation to satisfy the decree validly passed against it.\n<\/p>\n
12.     Observations of the executing court that no notice under section 80 CPC
\nwas
\nissued to the Union of India and the decree becomes in-executable is totally
\nirrelevant in
\nthe context of the controversy. A decree can be said to be illegal or
\ninexecutable only if it
\nhas been passed contrary to any statutory provisions or by incompetent court. It
\nis settled
\nlaw that the executing court cannot go beyond the decree to declare it as
\nnullity or
\ninexecutable. The principle which empowers the executing court to deny execution
\nis
\nextensively laid-down by the Apex Court in (2004) 1 SCC 287 titled Rafique Bibi
\nVs.\n<\/p>\n
Sayed Waliuddin and others, with the following observations:-\n<\/p>\n
“6) What is “void” has to be clearly understood. A decree can be said to be
\nwithout
\njurisdiction, and hence a nullity, if the court passing the decree has usurped a
\njurisdiction
\nwhich it did not have; a mere wrong exercise of jurisdiction does not result in
\na nullity.\n<\/p>\n
The lack of jurisdiction in the court passing the decree must be patent on its
\nface in order
\nto enable the executing court cannot go behind the decree must prevail.\n<\/p>\n
7) Two things must clearly borne in mind. Firstly, “the court will invalidate an
\norder only
\nif the right remedy is sought by the right person in the right proceedings and
\ncircumstances. The order may be ‘a nullity’ and ‘void’ but these terms have no
\nabsolute
\nsense: their meaning is relative, depending upon the court’s willingness to
\ngrant relief  in
\nany particular situation. If this principle of illegal relativity is borne in
\nmind, the law can
\nbe made to operate justify and reasonably in cases where the doctrine of ultra
\nvires,
\nrigidly applied, would produce unacceptable results.” Administrative Law, Wade
\nand
\nForsyth, 8th Edn; 2000, p.308). Secondly, there is distinction between mere
\nadministrative
\norders and the decrees of courts, especially a superior court. “The order of a
\nsuperior
\ncourt such as the High Court injunction is punishable for contempt of court even
\nthough
\nit was granted in proceedings deemed to have been irrevocable abandoned owing to
\nthe
\nexpiry of a time-limit.” (ibid; p.312).\n<\/p>\n
8) A distinction exists between a decree passi by a court having no jurisdiction
\nand
\nconsequently being a nullity and not executable and a decree of the court which
\nis merely
\nillegal or not passed in accordance with the procedure laid down by law. A
\ndecree
\nsuffering from illegality or irregularity of  procedure, cannot be termed
\nexecutable by the
\nexecuting court; the remedy of a person aggrieved by such a decree is to have it
\nset aside
\nin a duly constituted legal proceedings or by a superior court failing which he
\nmust obey
\nthe command of the decree. A decree passed by a court of competent jurisdiction
\ncannot
\nbe denuded of its efficacy by any collateral attack or in incidental
\nproceedings.”\n<\/p>\n
13.     The Apex Court has clearly drawn a distinction between a decree, which is
\nnullity
\nand a decree which is illegal, or not passed in accordance with the procedure
\nlaid sown
\nby law. From the ratio of the aforesaid judgment, it is clearly established that
\nthe decree
\nsought to be executed in the instant case cannot be termed as nullity and thus,
\nto term
\nsuch a decree as inexecutable is beyond the competence and jurisdiction of the
\nExecuting
\nCourt, the same having been passed by a court of competent jurisdiction. The
\nfindings of
\nthe executing court are thus unsustainable in law.\n<\/p>\n
14.     In view of the above, I set aside the order impugned and declare the
\ndecree to be
\nexecutable. Executing Court is accordingly directed to execute the decree
\nforthwith.\n<\/p>\n
1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Rishi Raj Chopra And Anr vs Unknown on 17 March, 2006 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 : […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-163782","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nRishi Raj Chopra And Anr vs Unknown on 17 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/rishi-raj-chopra-and-anr-vs-unknown-on-17-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rishi Raj Chopra And Anr vs Unknown on 17 March, 2006 - 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