Union of India v. Jai Ram & Ors.

Mr. Anil Rathee, Advocate for the petitioner. Mr. Bijender Kaushik, Advocate for the respondents. Rakesh Kumar Garg, J. CM No.12235-CII of 2007 Application is allowed subject to all just exceptions. CR No.3225 of 2007 As per the averments made in this petition, land of the respondents was acquired by the petitioner-Authorities under the provisions of the Defence of India Act, 1962 and The Requisitioning and Acquisition of Immovable Property Act, 1952. The compensation was assessed and paid by the Military Land Acquisition Officer vide order dated 10.12.1973. Aggrieved against the above mentioned award, land owners sought reference of the dispute for arbitration. The Additional District Judge, Ambala was appointed as an Arbitrator who vide award dated

24.11.1981 enhanced the compensation for the land acquired. Besides this, 15% solatium and interest @ 6% per annum from the date of acquisition till the date of payment was also awarded. Against the aforesaid award of the Arbitrator, the petitioner-Union of India filed appeal CR No.3225 of 2007(O&M) 2 challenging the award of the Arbitrator which, according to them, was contrary to the provisions of the Act. The claimants also filed appeals for enhancement of compensation. FAOs filed by the Union of India were dismissed by this Court vide judgments dated 18.11.1983 and 29.11.1983. However, FAOs filed by the land owners were allowed and the compensation of the acquired land was enhanced. Against the above said judgments dated 18.11.1983 and 29.11.1983, LPAs were filed by the petitioner which were also dismissed vide judgment dated 18.9.1984. During the pendency of the appeals, the claimants were paid the amount of compensation including solatium at the rate of 15% and interest at the rate of 6% per annum. The claimant filed Civil Misc. No.1939-CII of 1985 before this Court for modification of its earlier order passed in FAO No.97 of 1982 and claimed therein that he was entitled to solatium at the rate of 30% and interest at the rate of 9% in the first year after acquisition and 15% per annum thereafter. The above mentioned application was allowed vide order dated 22.11.1985 as per the orders passed in CM No.1007-CII of 1985 in FAO No.57 of 1982 wherein learned counsel for the parties have agreed that in view of the judgment of this Court passed in CM No.2678- CII of 1985 in FAO No.656 of 1984 decided on 21.9.1985, this application has to be allowed in the same terms. It is pertinent to mention at this stage that order dated

21.9.1985 on the basis of which the present respondents were granted benefit vide order dated 22.11.1985 was challenged by the petitioner in SLP No.13803 of 1993. The aforesaid SLP was allowed by the Hon'ble Apex Court vide judgment dated 25.1.996 and it was held that the respondent-claimants were not entitled to the payment of solatium and interest as the property was acquired under the Requisitioning and CR No.3225 of 2007(O&M) 3 Acquisition of Immovable Property Act, 1952 and the award of the Arbitrator and judgment of the High court was modified to the aforesaid extent. Admittedly, the petitioner-Union of India has not challenged the order dated 22.11.1985 passed by this Court in CM No.1939-CII of 1985 in FAO No.97 of 1982 and in CM No.1007-CII of 1985 in FAO No.57 of 1982 whereby the respondents were granted solatium at the rate of 30% instead of 15% on the entire compensation payable to them and the claimants were also held entitled to interest as per the amended provisions of Land Acquisition Act, 1984. The land owners/respondents filed execution for recovery of balance amount of compensation including the solatium and interest as granted to them vide order dated 22.11.1985. The aforesaid execution petition was contested by the petitioner submitting that in view of the judgment of the Hon'ble Supreme Court in Union of India vs. Hari Kishan Khosla 1993 Suppl. (2) SCC 149, the land owners were not entitled to solatium and interest. The Executing Court after hearing both the sides rejected the objections filed by the petitioner observing that the petitioner has not challenged the order dated 22.11.1985 passed by this Court in CM No.1939-CII of 1985 in FAO No.97 of 1982. Challenging the aforesaid order in this petition, learned counsel for the petitioner has vehemently argued that the land owners/claimants are not entitled to solatium and interest on the compensation as their land was acquired under the Defence of India Act, 1962 and Requisitioning and Acquisition of Immovable Property Act, 1952. It was further argued that the order dated 22.11.1985 is based upon an order passed in CM No.2678-CII of 1985 in FAO No.656 of 1984 and that CR No.3225 of 2007(O&M) 4 order has already been set aside by the Hon'ble Supreme Court vide order dated 25.1.1996 holding therein that the controversy raised in the aforesaid appeal was covered by the judgment in the Hari Kishan Khosla's case (supra) and the land owners were not entitled to payment of solatium and interest as the property was acquired under the Requisitioning and Acquisition of Immovable Property Act and the award of the Arbitrator and judgment of the High Court was modified to that extent and therefore, in view of the aforesaid settled proposition of law, in fact the land owners were liable to refund back the amount of solatium and interest paid to them @ 15% and 6% respectively. In support of his case, learned counsel for the appellant has relied upon a judgment of Hon'ble Supreme Court in the case of Union of India vs. Munshi Ram (2006) 4 SCC 538 to contend that those who secured certain benefit by reason of others getting such benefit, cannot be allowed to retain the same benefit when the benefit given to others were reduced by orders of Court. On the other hand, learned counsel for the respondents has supported the impugned order and has submitted that the order dated

22.11.1985 was not challenged by the petitioner and therefore, attained finality and has lost its right to contest the claim of the respondent for payment of solatium and interest as per order dated 22.11.1985. I have heard learned counsel for the parties and perused the impugned order and the other documents on record. There is no dispute with the proposition of law as enunciated by the Hon'ble Supreme Court in Hari Kishan Khosla's case (supra). It is also not in dispute that the order dated 21.9.1985 passed in FAO No. 656 of 1984 has been set aside by the Hon'ble Supreme Court vide its judgment dated 25.1.1996. However, it may be noticed that the order dated

22.11.1985 was passed between the parties in their presence and the CR No.3225 of 2007(O&M) 5 same was allowed to become final. It is well settled that the Executing Court cannot go behind the decree and is to execute the decree as it is. The judgments cited by the learned counsel for the petitioner is not applicable to the facts and circumstances as even in the aforesaid case, the benefit under Section 28-A which was secured by the claimants on the basis of an order in which later on, the said benefit was reduced, was not allowed to be retained by the Hon'ble Supreme Court of India when the matter was brought before it challenging the orders of the Courts below. Thus, the aforesaid judgment is not applicable in the present matter as the order dated 22.11.1985 which is sought to be executed by the impugned order has become final between the parties. No merits. Dismissed. February 24, 2010 (RAKESH KUMAR GARG) JUDGE