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2013 Supreme(Kar) 150
KARNATAKA HIGH COURT, CIRCUIT BENCH AT GULBARGA
N. Kumar, J.
Sri M.V. Subba Rao and Another - Petitioners
Versus
Land Acquisition Officer/Lingasagur, District Raichur and Another - Respondents
Writ Petition No. 753 of 2008 (LA-RES)
Decided On : 28.2.2013
Sri Y. Varadaraj and A.M. Nagaral, for Petitioners;
Sri Shivakumar Tengli, Additional Government Advocate, for Respondents.
A decree passed by a Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
Headnote:
INTEREST - LAND ACQUISITION - SECTION 4(1) NOTIFICATION - SECTION 28, SECTION 34 - The court discussed the provisions of Section 28 and Section 34 of the Land Acquisition Act, 1894, and their application to the case. The court highlighted the issue of interest payment from the date of taking possession till the date of Section 4(1) notification and the interpretation of the statutory provisions by the Apex Court. The court concluded that the award of interest for the period anterior to the Section 4(1) notification was without jurisdiction and unenforceable.
Fact of the Case:
The writ petition was filed by the Decree Holder challenging the order passed by the Executing Court, which upheld the objection of the Judgment Debtor that the Decree Holder is not entitled to payment of interest prior to the issue of notification under Section 4(1) of the Land Acquisition Act, 1894. The petitioners were the owners of land notified for acquisition for the construction of Ayacut Road. The reference Court awarded interest at 9% from the date of taking possession, i.e., 06.11.1960, till the date of payment as per Section 28 of the Land Acquisition Act. The Execution Petition was dismissed, and a fresh memo of calculation reflecting the balance amount payable by the respondents was filed. The respondents objected to the interest payment based on a judgment of the Hon'ble Supreme Court of India.
Finding of the Court:
The court found that the award of interest for the period anterior to the Section 4(1) notification was without jurisdiction and unenforceable. The court upheld the objection of the Judgment Debtor and closed the Execution Petition, reserving liberty to the Judgment Debtor to take steps to recover the excess amount paid.
Issues: The main issue was whether the order granting interest from the date of taking possession till the date of Section 4(1) notification is one without jurisdiction or a mere illegality.
Ratio Decidendi: The court held that the Land Acquisition Act does not provide for interest payment for the period anterior to the Section 4(1) notification. The court emphasized that possession can only be taken under the Act after the issuance of the notification under Section 4(1), and any possession taken prior to the notification is not referable to the Act. Therefore, the court concluded that the reference Court had no jurisdiction to award interest for the said period, and such an award was void, non est, and unenforceable.
Final Decision: The court dismissed the writ petition and directed a comprehensive inquiry by an independent agency, the Lokayukta of the State of Karnataka, to investigate and take appropriate action if it is found that officials colluded with claimants and siphoned off public money.
N. Kumar, J : This writ petition is filed by the Decree Holder challenging the order passed by the Executing Court upholding the objection of the Judgment Debtor that the Decree Holder is not entitled to payment of interest prior to the issue of notification under Section 4(1) of the Land Acquisition Act, 1894, which is hereinafter referred to as ''the Act".
2. The petitioners were the owners of land bearing Sy.No.12(A) and 12(AA) measuring 2 acres 12 guntas of Singapore Village in Sindhanoor Taluk, Raichur District. The said land was notified for acquisition for the construction of Ayacut Road from RG Road to Kakkargol Village. A preliminary notification came to be issued on 26.04.1993. Award came to be passed on 15.02.1995 by the Land Acquisition Officer, fixing the market value of the acquired land at Rs. 15,000-00 per acre. The petitioners protested and sought for reference under Section 18(1) of the Act. The matter was referred to the Civil Court. It was numbered as LAC 60/03 on the file of the Additional Civil Judge, Sr. Dvn., Raichur. The reference was allowed. After enquiry, the market value was enhanced to Rs. 73,000-00 per acre. The Reference Court also granted all statutory benefits and also held that the claimants are entitled to interest at 9% for the period of one year from the date of taking possession, i.e., 06.11.1960 and thereafter 15% till the date of payment as per Section 28 of the Land Acquisition Act. Thereafter the petitioners filed Execution Petition in E.P.No. 16/2005 for execution of the award dated 06.09.2004 in LAC No.60/2003. It was renumbered as E.P.No.409/06 before the Civil Judge, Sr. Division, Lingasugur. It is also on record that Government decided not to file any appeal against LAC 60/2003. Accordingly the Government withdrew the sanction for filing the appeal against the order, as per the Government order dated 01.03.2007, which is produced at Annexure-D. The Execution Petition came to be dismissed for default. One more Execution Petition came to be filed in E.P.No.9/2007. Along with the Execution Petition, Decree Holder have filed a calculation memo claiming a sum of Rs. 68,61,092-00. In the Execution case, a warrant came to be issued. Thereafter, a sum of Rs. 46,63,205-00 came to be deposited, after deducting income tax at source in a sum of Rs. 5,88,152-00, i.e., totally a sum of Rs. 52,51,357-00. They undertook to pay the balance amount of Rs. 14,93,934-00 within a short period. Subsequently, the petitioners filed a fresh memo of calculation reflecting the balance amount payable by the respondents as Rs. 17,01,097-00 as on 18.08.2007. At that stage, the respondents filed objection in the Execution Petition contending that in the light of the latest judgment of the Hon'ble Supreme Court of India, the petitioners are not entitled to interest for the period anterior to notification under Section 4(1) of the Act, on the ground that possession of land was taken earlier to the notification. The matter was heard. It was contended on behalf of the Decree Holder that decree had attained finality and the Executing Court cannot go behind the decree and therefore the objection filed by the Judgment Debtor is untenable and that it requires to be rejected. However, the Executing Court considering the rival contentions, took note of the judgment of the Apex Court in R.L. Jain's case, and came to the conclusion that the Decree Holder is not entitled to interest from the date of taking possession, i.e., 06.11.1960 up to 26.04.1993, the date of Section 4(1) notification. It closed the Execution Petition on the ground that the decree is fully satisfied, reserving liberty to the Judgment Debtor to take steps to recover the excess amount paid. Aggrieved by the said order of the Executing Court, the present writ petition is filed.
3. The learned Counsel appearing for the petitioners assailing the impugned order contends that, it is settled law that once a decree has attained finality, the Execution Court
