Execution Case No. 75 of 2019 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CMP NO. 116 OF 2024 (An application under Article 227 of the Constitution of India) * * * * The National Highways Authority of India, New Delhi …. Petitioner -versus- Dillip Kumar Pati and others …. Opp. Parties Advocates appeared: For Petitioner : Mr. Umesh Chandra Mohanty, Advocate For Opp. Parties : Mr. Sourya Sundar Das, Senior Advocate being assisted by Mr. Arnab Mishra, Advocate (For Opp. Party No.1) Mr. Swayambhu Mishra, Additional Standing Counsel (For Opp. Party No.2) CORAM: JUSTICE K.R. MOHAPATRA ---------------------------------------- Heard and disposed of on 21.03.2024 --------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Order dated 24th November, 2023 (Annexure-1) passed by learned District Judge, Keonjhar in Execution Case No. 75 of 2019 is under challenge in this CMP, whereby an application filed by the Petitioner under Order 1 Rule 10(2) C.P.C. to be impleaded as a party to the execution case, has been rejected. CMP NO. 116 OF 2024 Page 1 of 15 // 2 // 3. The genesis of the case arises out of a land acquisition for expansion and widening of NH-6 from Singara to Binjabahal in the district of Keonjhar. A draft proposal was submitted under Section 6-A of the National Highways Act, 1956 (for short ‘the Act’) to the Project Director, National Highway Authority of India (NHAI), Project Implementation Unit, Sambalpur vide Letter No.7105 dated 6th October, 2015. Accordingly, notification under Section 3-A of the Act was published by the Central Government on 16th December, 2015 acquiring land for the aforesaid project including the land of the Opposite Party No.1. In due course, gazette notification under Section 3-D of the Act was made on 9th June, 2016 in respect of the said project. 4. The Tahasildar-cum-Competent Authority & Land Acquisition Officer, Keonjhar (CALA) determined the compensation at the rate of Rs.4,664/- per Sqm. in respect of the land of the Opposite Party No.1. Accordingly, a sum of Rs.6,96,09,267/- was paid to the Opposite Party No.1 after deduction of TDS. Receiving the amount on protest, the Opposite Party No.1 preferred Misc. (Arbitration) Case No.13 of 2017 before the Arbitrator-cum-Collector, Keonjhar under Section 3-G(5) of the Act. The Arbitrator disposed of the said Misc. (Arbitration) Case vide order dated 24th November, 2018 directing CALA for re-calculation of the compensation at the
Facts
rate of Rs.13,590/- per Sqm. CALA challenged the said order in ARBP No.6 of 2019 under Section 34 of the Arbitration and Conciliation Act, 1996 (for brevity ‘Arbitration Act’). ARBP No.6 of 2019 was dismissed vide order dated 24th March, 2020 on the ground of limitation. CALA as well as the Petitioner Page 2 of 15 CMP NO. 116 OF 2024 // 3 //
Legal Reasoning
assailed the said order before this Court in W.P.(C) No.37571 of 2020, which was dismissed vide order dated 23rd August, 2021 holding that period of limitation beyond 120 days in filing ARBP No. 6 of 2019 under Section 34 of the Arbitration Act could not have been condoned by learned District Judge, Keonjhar. Thus, this Court held that learned District Judge, Keonjhar has committed no error in not entertaining the ARBP No.6 of 2019 beyond the period of limitation. Said order was not challenged and attained its finality. 4.1 Since the awarded amount was not disbursed in favour of Opposite Party No.1, he filed Execution Case No.75 of 2019 before learned District Judge, Keonjhar. Vide order dated 18th May, 2023 passed in Execution Case No. 75 of 2019, learned District Judge, Keonjhar directed CALA-Opposite Party No.2 to remain present in Court for examination and produce documents. Said order was assailed by the Opposite Party No.2-CALA in CMP No. 686 of 2023. This Court discussing the rival contentions of the parties and the materials available on record dismissed the CMP vide order dated 27th June, 2023 holding as under: “8. Taking into consideration the entire scenario, this Court feels that the Petitioner-J.Dr will no way be aggrieved if the Competent Authority-cum-Special Land Acquisition Officer (NH-6) Project, Keonjhar is examined in Court under Order XXI Rule 41 C.P.C. On the other hand, it will expedite the process for realization of the awarded amount. Further, the prayer made in the petition under Order XXI Rule 41 CPC is squarely applicable to the present case more particularly when the Petitioner-J.Dr. although is required to deposit the entire awarded amount, is avoiding to deposit the same. In view of the conduct CMP NO. 116 OF 2024 Page 3 of 15 // 4 // of the Petitioner, it is required to find out the details of bank account and particulars of the movable properties of the Petitioner for satisfaction of the award. The Petitioner has left no stone unturned to avoid payment of the awarded amount. Ultimately, pursuant to the direction of the Hon’ble Supreme Court, as above, the Petitioner has no other option than to pay the awarded amount. 9. It further appears that the application under Order XXI Rule 41 (1) CPC (Annexure-9) was filed on 20th April, 2023 serving copy on learned counsel for the Petitioner. The same is apparent from the endorsement made on the petition under Annexure-9. Till 18th May, 2023, the Petitioner did not prefer to file any objection to the same. On the date it was posted for hearing, an application for adjournment was sought for to file objection to such petition. As such, learned District Judge has committed no error in rejecting the application and proceeded with the hearing of the petition under Annexure-9 on merit. 10. the impugned orders under Annexures-15 and 11. 11. Hence, the CMP being devoid of any merit stands dismissed.” In that view of the matter, I find no infirmity in 5. Beforehand the Opposite Party No.2-CALA had also assailed the executability of the decree/award by filing an application under Section 47 C.P.C. before the Executing Court (learned District Judge, Keonjhar). Said application was rejected. Assailing the same, the CALA moved this Court in W.P.(C) No.34958 of 2021. This Court vide order dated 23rd November, 2021 set aside the order passed by learned Executing Court holding that there cannot be any execution when the award carries mistake. Assailing the same, the Opposite Party No.1 moved the Hon’ble Supreme Court in SLP(C) No.919 of 2023, which was subsequently converted to Civil Appeal No.7412 of 2022. Hon’ble Supreme Court vide its order dated CMP NO. 116 OF 2024 Page 4 of 15 // 5 // 17th October, 2022 (Annexure-8) set aside the order of this Court observing “Thus, any reference in the award to the Arbitrator, Collector NH-215 project shall be ignored by the Executing Court treating the description thereof as Arbitrator NH-6 project only”. Thus, the Hon’ble Supreme Court directed that ‘the Executing Court shall proceed now in accordance with law and the order passed by the Executing Court on 2nd November, 2021 dismissing the application under Section 47 C.P.C. filed by CALA shall stand restored’. The Petitioner participated in the proceedings of Civil Appeal No.7412 of 2022 being impleaded as a party vide order dated 9th September, 2022 passed in the said case. 6. When the matter stood thus, the Petitioner filed an application under Order 1 Rule 10 (2) C.P.C. to be impleaded as a party to the execution case stating that it is a necessary party to protect the interest of the NHAI in the executing proceeding. Said application was rejected vide order dated 24th November, 2023 (Annexure-1). Assailing the same, this CMP has been filed. 7. Mr. Mohanty, learned counsel for the Petitioner by filing a voluminous memo of argument argued that the Tahasildar, who is the CALA, has played fraud with the NHAI in enhancing the award for which C.S. No.156 of 2023 is pending before learned Civil Judge (Senior Division), Keonjhar. The suit has been filed with a prayer to declare the award dated 24th November, 2018 passed by the Arbitrator is illegal and not binding on the NHAI. It is his submission that the Project Director plays a pivotal role starting from the approval of the Page 5 of 15 CMP NO. 116 OF 2024 // 6 // project till disbursal of the awarded amount. The Claimant- Opposite Party No.1 conveniently avoided to implead the Petitioner as a party to the Arbitration Proceeding. He drew attention of this Court to several provisions of the National Highways Act, 1956 as well as National Highways Rules, 1957 together with National Highways Authority of India Act, 1988 and tried to impress upon the Court that in every step, the Petitioner has a role be it for approval of the project or disbursal of the compensation amount. CALA is only exercising delegated power of the Petitioner, who hatched a conspiracy in connivance with the claimant in order to enhance the land acquisition compensation manifold, which is a huge loss to the Government exchequer. It is thus claimed that the Petitioner is a necessary party to the execution proceeding. In support of his submission, Mr. Mohanty, learned counsel relied upon the case of Baluram –v- Chellathangam, reported in AIR 2015 SC 1264, wherein it is held that a necessary party is the person, who ought to have been made a party and in whose absence, no effective decree can be passed at all by the Court. On a conjoint reading of the provisions of the National Highways Act, 1956, National Highways Rules, 1957 and National Highways Authority of India Act, 1988 together with National Highways (Manner of Depositing the Amount by the Central Government, Making Requisite Funds Available to the Competent Authority for Acquisition of Land) Rules, 2019, it is apparent that the Petitioner being the “Executing Agency” of the Project is a necessary party to the land acquisition proceeding. Section 3- G(5) of the Act also indicates that the Petitioner is a necessary Page 6 of 15 CMP NO. 116 OF 2024 // 7 // party to the Arbitration Proceeding. He also placed reliance on Delhi Development Authority –v- Bholanath Sharma and others, reported in AIR 2011 SC 428, wherein it is held that in the land acquisition proceeding, the requisitioning authority is a necessary party and in its absence, the land acquisition proceeding becomes a nullity. He further submits that Section 3- H of the Act provides deposit and payment of amount of compensation. The provision in clear terms envisages that the amount of compensation determined under Section 3-G of the Act shall be deposited by the Central Government in such manner as may be laid down by the Rules made in this behalf by that Government with the Competent Authority before taking possession of the land. Thus, before taking over possession of the land acquired, the Project Director, NHAI-Petitioner has to make a requisition to the Central Government to deposit the said amount with CALA. It has a similar role when the award is enhanced in the arbitration proceeding. Thus, the Petitioner is a necessary party to the proceedings and in its absence, the entire award is a nullity. Learned Executing Court held that JDr- CALA (Opposite Party No.2) is an agent and representative of the intervenor-Petitioner. Further, at no stage, the Petitioner made any attempt to be impleaded as a party in the arbitration proceedings although it was all throughout aware of the proceedings. Although it had participated in the proceedings before this Court as well as the Hon’ble Supreme Court, but no attempt was made to be impleaded as a party in the execution proceeding. CMP NO. 116 OF 2024 Page 7 of 15 // 8 // 8. The observation and finding recorded by the Executing Court are erroneous in view of the specific provisions of the Act and Rules mentioned herein above. The Petitioner being the Executing Agency, is a necessary party to the arbitration proceedings including the execution case. As such, learned Executing Court has committed grave error in rejecting the petition filed by the Petitioner to be impleaded as a party to the execution case. Hence, he prays for setting aside the order under Annexure-1 and to direct learned Executing Court to implead the Petitioner as a party to the proceeding. 9. Mr. Das, learned Senior Advocate appearing for the Claimant-Opposite Party No.1 vehemently objects to the same. At the outset, he brought notice of this Court to few lines of the case of Gafur Khan & others –v- Government of Orissa and another, reported in (56) 1983 CLT 85, wherein it is held as under: “Where execution of a decree would be rendered infructuous or would become ultimately inexecutable by opposition of a person not a party to the suit, such person is a necessary party.” 10. Sections 3-A to 3-J of the Act make provisions for acquisition of the land for National Highway and payment of compensation. Provisions of Sections 3-A to 3-J of the Act make it clear that the CALA is the authority to determine and disburse the compensation. Nowhere the role of the Project Director, NHAI-Petitioner has been described in the aforesaid provisions. The Petitioner may be a requisitioning authority and may be responsible for depositing the amount of compensation, CMP NO. 116 OF 2024 Page 8 of 15 // 9 // but it has no role to play either for determination of compensation by CALA and Arbitrator or in the subsequent proceedings as well as for its disbursal. CALA is empowered to perform the following acts as per the aforesaid provisions of the Act: i. ii. iii. iv. v. to cause the notification; to adjudicate the objection, if any; to report to the Central Government after adjudication of the objection; to determine the amount of compensation; To see that the amount so determined is deposited with the Competent Authority; By notice in wiring, to direct the owner to surrender or deliver the possession to it; To the Commissioner of Police or the District Collector for compliance with regard to taking possession; viii. To pay the compensation amount on behalf of the person(s) take measures by taking help of vii. vi. to refer the Central Government entitled; To determine the person(s) who, in its opinion, are entitled to receive the amount where several person(s) claim interest over the property; To to regard the dispute with apportionment to the decision of the Principal Civil Court having jurisdiction and; If in Arbitration, the Arbitrator awards more than determined by the Competent Authority, the excess amount is to be deposited with the Competent Authority, who then, on behalf of the Central Government shall pay the amount to the person(s) entitled to it. ix. x. xi. He, therefore, submits that when by the mandate of the Act, CALA has been conferred with the power to act in the aforesaid manner, the Project Director, NHAI has no role to play either for determination or disbursement of the compensation to the claimants. Thus, it is a non-entity so far as compliance of CMP NO. 116 OF 2024 Page 9 of 15 // 10 // provisions of the Act in acquisition for NHAI, determination and payment of compensation are concerned in view of Sections 3-A to 3-J of the Act. He further submits that the order passed by learned District Judge, Keonjhar in a petition under Section 34 of the Arbitration Act in ARBP No.6 of 2019 was unsuccessfully challenged by the Petitioner itself along with Opposite Party No.2 before this Court in W.P.(C) No.37571 of 2020. Further, while disposing of CMP No. 686 of 2023, this Court holding that provision under Order XXI Rule 41 C.P.C. is squarely applicable to this case for examination of Opposite Party No.2- CALA (JDr), categorically observed that the Petitioner therein (CALA) had left no stone unturned to avoid payment of the awarded amount. Ultimately pursuant to the direction of the Hon’ble Supreme Court, CALA has no other option than to pay the awarded amount. 11. As such, the CALA having failed in all its attempts to frustrate the award passed by the Arbitrator, the Petitioner, namely, Project Director, NHAI projected itself to be a necessary party to the proceedings and filed an application in the execution case to be impleaded as such to further delay the payment of compensation. 12. Mr. Das, learned Senior Advocate relied upon the case of Dalip Singh –v- State of Uttar Pradesh and others, reported in (2010) 2 SCC 114, wherein it is held at paragraph-2 as under: “2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, Page 10 of 15 CMP NO. 116 OF 2024 // 11 // evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.” And, submits that the Petitioner is one amongst the same. He also relied upon the case of Rahul S. Shah –v- Jinendra Kumar Gandhi and others, reported in (2021) 6 SCC 418 and the case
Decision
of Pradeep Mehra –v- Harijivan J. Jethwa in Civil Appeal No.6375 of 2023 (disposed of vide judgment dated 30th October, 2023) in which it is held that such type of litigants should be dealt with in strong hands and should be nipped at the bud. He, therefore, prays for dismissal of the CMP. 13. Heard learned counsel for the parties at length. Perused the materials along with the case law placed before me. 14. Claim made by Opposite Party No.1 for acquisition of his land has a checkered career. This case is a bright example where sufferings of the Claimant-Opposite Party No.1 started after an award is passed in his favour under Section 3-G(5) of the Act. It can be unhesitatingly recorded that the Petitioner, namely, Project Director, NHAI, had knowledge of the arbitration proceeding initiated as well as the award passed therein under Section 3-G (5) of the Act. The Opposite Party No.2-CALA assailed the award by filing a petition under Section 34 of the Arbitration Act. Learned District Judge, Keonjhar dismissed the said petition filed under Section 34 of the Arbitration Act holding that it is barred by limitation. The Petitioner along with Opposite Party No.2-CALA assailed the said order in W.P.(C) No.37571 of 2020, wherein the Hon’ble Division Bench of this Court holding that learned District Judge, Page 11 of 15 CMP NO. 116 OF 2024 // 12 // Keonjhar had no jurisdiction to condone the delay in filing the petition under Section 34 of the Arbitration Act beyond 120 days, dismissed the same. Said order passed by this Court in W.P.(C) No.37571 of 2020 was never challenged. During adjudication of W.P.(C) No.37571 of 2020, the Petitioner had never raised any objection or contention to be a party to the execution case, although Execution Case No.75 of 2019 initiated before learned District Judge, Keonjhar for execution of the award passed by the Collector, Keonjhar-cum-Arbitrator in Misc. (Arbitration) Case No. 13 of 2017 was pending for adjudication. 15. Further, the petition under Section 47 C.P.C. filed by the Opposite Party No.2-CALA being rejected travelled up to Hon’ble Supreme Court in SLP(C) No.919 of 2022, which was subsequently converted to Civil Appeal No. 7412 of 2022. The Petitioner by filing an application had participated in the hearing of Civil Appeal No.7412 of 2022. Hon’ble Supreme Court upheld the order of the Executing Court rejecting the petition under Section 47 C.P.C. and directed that the Collector, Keonjhar-cum-Arbitrator (NH-215) Project shall be treated as Arbitrator of NH-6 Project only. By restoring the order passed by the Executing Court dated 7th November, 2021, whereby an application under Section 47 C.P.C. was rejected, it further directed that the Executing Court shall proceed with the execution case in accordance with law. During adjudication of Civil Appeal No.7412 of 2022, the Petitioner also did not raise any objection/contention to be impleaded as a party to the execution case and rightly so. CMP NO. 116 OF 2024 Page 12 of 15 // 13 // 16. Sections 3-A to 3-J of the Act deal with procedure for acquisition of the land as well as determination and payment of compensation etc. A close reading of the aforesaid provisions of the Act does not spell out a single word with regard to the role of the Petitioner, namely, Project Director, NHAI. 17. Mr. Mohanty, learned counsel for the Petitioner vehemently argued and brought notice of this Court to several provisions of National Highways Act, 1988 and National Highways (Manner of Depositing the Amount by the Central Government, Making Requisite Funds Available to the Competent Authority for Acquisition of Land) Rules, 2019 to persuade the Court about the role of Project Director, NHAI in making requisition to the Central Government to deposit the compensation amount with CALA for payment to the Claimants. But, said provisions do not speak of the role of the Petitioner- Project Director, NHAI in the land acquisition proceedings. In view of the clear provisions under Sections 3-A to 3-J of the Act, which deal with acquisition of the land for National Highways, do not speak of participation of the Project Director, NHAI in the land acquisition proceedings under Sections 3-A to 3-J of the Act. As rightly held by learned District Judge, Keonjhar, the Petitioner having scope did not raise any contention to be impleaded as a party to the execution case, when the matter was pending before this Court in W.P.(C) No. 37571 of 2020 or before the Hon’ble Supreme Court during pendency of Civil Appeal No.7412 of 2022. The Executing Court cannot go behind the decree and interpret the correctness of the award put to execution, save and except the executability of the decree. In the Page 13 of 15 CMP NO. 116 OF 2024 // 14 // instant case, an objection with regard to executability of the decree was raised and it has attained its finality before the Hon’ble Supreme Court holding that the decree is executable. . 18. On perusal of the order passed by the Hon’ble Supreme Court in Civil Appeal No.7412 of 2022, it does not appear that the Petitioner had raised any objection/contention to be impleaded as a party to the execution case. The Petitioner also participated in the hearing of Civil Appeal No.7412 of 2022 before the Hon’ble Supreme Court being impeaded as party therein. Thus, it has the scope of raising the contention to be impleaded as a party to the execution proceeding. As such, learned District Judge, Keonjhar has committed no error in rejecting the petition under Order 1 Rule 10(2) C.P.C. filed by the Petitioner. 19. The case law relied upon by the Petitioner on the issue of right of the Executing Agency to be impleaded as a party to the land acquisition proceedings are of no assistance to it as those case laws do not deal with the scope and ambit of Sections 3-A to 3-J of the Act. Further, in the case of Gafur Khan and others (supra), this Court in unambiguous terms held that where an execution proceedings will be rendered infructuous or the decree becomes inexecutable by opposition of a person not made a party to the suit, such a person is a necessary party. In the instant case, the award passed by the Arbitrator has got a seal of approval. Hon’ble Supreme Court while examining the executability of the award also upheld the order passed by the Executing Court holding the award to be executable. Thus, the claim of the Petitioner to be impeaded as a party to the Page 14 of 15 CMP NO. 116 OF 2024 // 15 // Execution Case is not sustainable as rightly held in the impugned order. 20. In view of the above, this Court unhesitatingly holds that the CMP is devoid of any merit and is accordingly dismissed. 21. Since the execution proceeding is of the year, 2019, learned District Judge, Keonjhar should make its best endeavour to see that it is disposed of at an early date. Non-cooperation of any party in the execution proceeding shall entail learned District Judge, Keonjhar to take coercive action against it in accordance with law. (K.R. Mohapatra) Judge Orissa High Court, Cuttack Dated the 21st March, 2024/bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Mar-2024 19:51:41 CMP NO. 116 OF 2024 Page 15 of 15