STATE OF HARYANA & ANR.versusKARTAR SINGH (D) THROUGH LRS.

                       [2012] 11 S.C.R. 162


A                 STATE OF HARYANA & Af'JR.
                                v.
               KARTAR SINGH (D) THROUGH LRS.
                 (Civil Appeal No. 5115 of 2005)

                      NOVEMBER 29, 2012
B
             [R ..M. LODHA AND ANIL R. DAVE, JJ.]

        Land Acquisition Act, 1894:

c       ss. 23(1-A), 23(2) and 28 as amended by Amendment
  Act, 1984- Benefits claimed by filing application ulss 151 and
   152 CPC after the compensation enhanced by reference
  court and grant of 15% solatium and 6% interest by its order
  dated 17.5.1980 had attained finality on dismissal of State's
0 appeal and SLP by High Court and Supreme Court
  respectively - Held: An award and decree having become
  final under the LA Act cannot be amended or altered seeking
  enhancement of the statutory benefits under the amended
  provisions brought in by the Amendment Act in the LA Act
E by filing petitions u/s 151 and s.152 of the CPC.

       Execution:

       Power of executing court - Held: A plea of nullity of a
   decree can always be set up befure the executing court - Any
F judgment and order which is a nullity never acquires finality
   and is thus open to challenge in execution proceedings.

        The compensation for the land of the respondent-
  land-owners acquired under the Land Acquisition Act,
  1894, was enhanced by the reference court by its order
G dated 17.5.1980. It awarded the solatium at the rate of
  15% on the enhanced amount of compensation and
  interest at the rate of 6% from the date of dispossession
  till the payment was made. The State Government's

H                              162
STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 163
              THROUGH LRS.
appeal before the High Court and Special Leave Petition A
before the Supreme Court were dismissed. After the Land
Acquisition Amendment Act, 1984 came into force w.e.f.
24.9.1984, the respondent made an application uls 151
and 152 of the Code of Civil Procedure, 1908 before the
High Court in the disposed of first appeal, for the benefits B
of the amended provisions in the Land Acquisition Act,
particularly, ss. 23(1A) and 23(2). The High Court allowed
the application by its order dated 28.4.1989. The
respondent then filed another execution petition for
execution of the award and decree dated 28.4.1989, c
which was resisted by the State Government. The
executing court overruled the objection and held that it
was not open to the executing court to go behind the
decree. The revision petition of the State Government
was dismissed by the High Court.                             D
    Disposing of the appeals, the Court

     HELD: 1.1. Legal position is no more res integra that
an award and decree having become final under the LA
Act cannot be amended or altered seeking enhancement           E
of the statutory benefits under the amended provisions
brought in by the Amendment Act in the LA Act by filing
petitions uls 151 and s.152 of the CPC. In view of this, the
award and decree passed by the High Court on 28.4.1989
has to be held to be without jurisdiction and nullity.         F
[Para 21] [172-E-F]

     Union of India Vs. Swaran Singh and Ors. 1996
(3) Suppl. SCR 205 (1996) 5 sec 501; Sarup Sing/:I and
Anr. Vs. Union of India and Anr. 2010 (15) SCR 131= (2011)     G
11 SCC 198 and State of Punjab and Anr. Vs. Babu Singh
and Ors. 1995 (2) SCR 374 =1995 Supp (2) SCC 406 -
relied on.
    1.2. A plea of nullity of a decree can always be set
up before the executing court. Any judgment and order          H
    164       SUPREME COURT REPORTS                [2012) 11 S.C.R.


A   which is a nullity never acquires finality and is thus open
    to challenge in the execution proceedings. [Para 21] [172-
    F-G]

        Ba/want N. Viswamitra and Ors. Vs. Yadav Sadashiv
B   Mule (Dead) through LRs and Ors. 2004 (3) Suppl. SCR 519
    =(2004) 8    sec706 - inapplicable.

      1.3. The order of the High Court dated 1.4.2003 and
  the order of the Additional District Judge, dated 6.4.1999
  are set aside. The execution petition filed by the
C respondents seeking execution of the award and decree
  dated 28.4.1989 stands dismissed. [Para 23] [173-8]

                           Case Law Reference:
      2010 (15) SCR 131                relied on        Para 15
D
      1995 (2) SCR 374                relied on         Para 14
      1996 (3) Suppl. SCR 205         relied on         Para 14
      2004 (3) Suppl. SCR 519         inapplicable      Para 15
E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    5115 of 2005.

        From the Judgment & Order dated 01.04.2003 of the High
    Court of Punjab and Haryana at Chandigarh in Civil Revision
F   No. 4158 of 1999.

                                  WITH
  C.A.No. 5096 of 2005.
  C.A. No. 5097-5098 of 2005.
G C.A. No. 5116 of 2005.
        Manjit Singh, AAG, Punit Dutt Tyagi, Anil Antil, Tarjit Singh,
    Kamal Mohan Gupta, Manoj Swarup and Neha Kedia for the
    appearing parties.

H         The Judgment of the Court was delivered by
STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 165
              THROUGH LRS.
    R.M. LODHA, J.                                                  A

Civil Appeal No. 5115 of 2005

      1. This Appeal, by special leave, has been filed under
Article 136 of the Constitution of India by the State of Haryana
and the Land Acquisition Collector, Urban Estate, Panchkula         8
against the judgment and order of the Punjab & Haryana High
Court dated April 1, 2003.

     2. The controversy arises in this way. On May 2, 1973, the
Government of Haryana issued notification under Section 4 of C
the Land Acquisition Act, 1894 (for short, 'LA Act') proposing
to acquire land for residential and commercial area as Sector
13 ahd Sector 13 Extension at Kamal, Haryana.

     3. Subsequent thereto, declaration was made under
Section 6 of the LA Act and then the award came to be passed        D
by the Land Acquisition Collector on November 23, 1973 fixing
the market value of the acquired land at the rate of Rs. 270/-
per Biswa. The respondents' land is part of the above
acquisition in the award.
                                                                    E
     4. The respondents were not satisfied with the market
value determined by the Land Acquisition Collector and sought
reference under Section 18 of the LA Act. The matter was
referred to the civil court for determination of compensation for
compulsory acquisition of the respondents' land.                    F

       5. The reference court on May 17, 1980 decided the
reference(s) and enhanced compensation at the rate of Rs. 22/
- per square yard. The reference court also awarded solatium
at the rate of 15% on the enhanced amount of compensation
and interest at the rate of 6% from the date of dispossession       G
till the payment was made as awarded.

    6. The respondents did not carry the matter further.
However, the State of Haryana was dissatisfied with the
determination of compensation by the reference court and,           H
    166       SUPREME COURT REPORTS                [2012] 11 S.C.R.


A accordingly, preferred first appeal before the Punjab and
  Haryana High Court.

        7. On January 16, 1981, the first appeal preferred by the
  State of Haryana was dismiss'l:!d by the single Judge of the High
B Court and the judgment and award by the reference court was
  upheld. It is pertinent to mention that during the pendency of the
  first appeal, the respondent No. 1 had laid execution of the
  award passed by the reference court by making an execution
  application in 1980.

C       8. The State of Haryana preferred special leave petition
    against the award and decree of the High Court but was
    unsuccessful. Special leave petition was dismissed by this
    Court on December 12, 1983.

0      9. Vide Land Acquisition (Amendment) Act, 1984 (for
  short, 'Amendment Act'), LA Act came to be amended with
  effect from September 24, 1984. By the Amendment Act,
  Section 23 of the LA Act was amended. There was amendment
  in Section 28 of the LA Act as well. Section 30 of the
E Amendment Act provided for transitional provisions.
         10. On April 28, 1989, the respondents made an
    application under Sections 151 and 152 of the Code of Civil
    Procedure (for short, 'CPC') before the High Court in the
    disposed of first appeal against which the special leave petition
F · preferred by the State of Haryana had already been dismissed.
    By this application the respondents prayed for the benefits of
    the amended provisions in LA Act particularly Sections 23(1-
    A) and 23(2) thereof.

G         11. The High Court allowed the application made by the
    respondents for grant of benefits of the amended provisions on
    April 28, 1989 and granted benefits of the amended provisions
    of Sections 23(1-A) and 23(2) of the LA Act to them.

          12. The respondents then filed another execution petition
H
STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 167
       THROUGH LRS. [R.M. LODHA, J.]
for execution of the award and decree dated April 28, 1989.          A
On behalf of the appellants, an objection was raised that the
award and decree passed by the High Court on April 28, 1989
was without jurisdiction and, therefore, not executable and
enforceable.
                                                                     B
     13. The executing court, vide its order dated April 6, 1999,
overruled the objection taken by the appellants and held that it
was not open to the executing court to go behind the decree.
The present appellants challenged the order of the executing
court by filing a revision petition before the High Court. The
revision petition has been dismissed by the impugned order.          C

    14. Mr. Manjit Singh, learned Additional Advocate General,
appeared for the appellants and submitted that the decree
passed by the High Court on April 28, 1989 giving the benefits
of amended Sections 23(1-A) and 23(2) of the LA Act to the D
respondents was a nullity and without jurisdiction. He relied
upon the decisions of this Court in State of Punjab and another ·
Vs. Babu Singh and Others1, Union of India Vs. Swaran Singh
& Others2 and Sarup Singh and Another Vs. Union of India
and Another.                                                      E

      15. Mr. Manoj Swarup, learned counsel for the
respondents, in the first place distinguished the decision of this
Court in Swaran Singh 2 by making reference to the
observations made by this Court in para 7 which reads,
"Admittedly, as on that date the claimants were entitled to          F
solatium at 15% and interest at 6%". Secondly, learned counsel
for the respondents submitted that Swaran Singh2 did not lay
down good law. He cited the decision of this Court in Balvant
N. Viswamitra and others Vs. Yadav Sadashiv Mule (Dead)
through LRs. and others" to draw a distinction between a 'void       G

 1.   1995 Supp (2) sec 406.
 2.   (1996) 5 sec 501.
 3.   (2011) 11 sec 198.
 4.   (2004J a sec 706.                                              H
    168      SUPREME COURT REPORTS                  (2012] 11 S.C.R.


A decree' and an 'illegal, incorrect and irregular decree'. Learned
  counsel submitted that the judgment and decree passed by the
  High Court on April 28, 1989 could at best be termed as an
  'illegal, incorrect and irregular decree' but surely it is not a 'void
  decree'. He also referred to the decision of this Court in
B National Agricultural Cooperative Marketing Federation of
  India Ltd. and another Vs. Union of India and Others5 to
  butress his point that the decree dated April 28, 1989 having
  attained finality as its correctness, legality and validity was never
  challenged and, therefore, could not have been set up in the
C execution proceedings.

        16. In Babu Singh 1 a two Judge bench of this Court was
  concerned with an appeal filed by the State of Punjab and its
  functionary against the judgment and order of the High Court
  whereby the High Court allowed the applications made by the
D expropriated owners under Sections 151 and 152, CPC to
  amend the decree by awarding the benefits of enhanced
  solatium and additional amount available under Section 23{1-
  A) and Section 23{2) and Section 28 of the LA Act as
  amended by the Amendment Act. This Court held that the High
E Court was clearly without jurisdiction in entertaining the
  applications under Sections 151 and 152, CPC to award
  additional benefits under the amended provisions of the LA Act.
  The discussion of this Court in Babu Singh 1 reads as follows:

        "4. It is to be seen that the High Court acquires jurisdiction
F
        under Section 54 against the enhanced compensation
        awarded by the reference court under Section 18, under
        Section 23(1) with Section 26 of the Act. The Court gets
        the jurisdiction only while enhancing or declining to
        enhance the compensation to award higher compensation.
G
        While enhancing the compensation "in addition" to the
        compensation under Section 23(1 ), the benefits
        enumerated under Section 23(1-A) and Section 23(2) as
        also interest on the enhanced compensation on the amount
H s.   (2003) s sec 23.
STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 169
       THROUGH LRS. [R.M. LODHA, J.]

   which in the opinion of the Court "the Collector ought to      A
   have awarded in excess of the sum which the Collector did
   award", can be ordered. Thus, it would be clear that civil
   court or High Court gets jurisdiction when it determines
   higher compensation under Section 23(1) and not
   independently of the proceedings.                              B

    5. This is the view taken by this Court in State of Punjab
    v. Satinder Bir Singh (sic.), disposed of on 22-2-1995.The
    same ratio applies to the facts in this case, since as on
    the date when the judgment and decree was made by the C
    High Court, the law was that the High Court should award
    solatium at 15% and interest at 6%. Payment of additional
    amount as contemplated under Section 23(1-A) cannot be
    made since the notification under Section 4( 1) was dated
    11-12-1974 and even the award of the District Court was
    dated. 23-2-1978. Under these circumstances, the LA D
    Amendment Act 68 of 1984 has no application and there·
    is no error in the award or the decree as initially granted.
     The High Court was clearly without jurisdiction in
     entertaining the applications under Sections 151 and 152
     to award the additio.nal benefits under the Amendment Act E
     68 of 1984 or to amend the decrees already disposed of."

      17. In Swaran Singh2 the correctness of the decree passed
by the High Court giving the expropriated owners benefits of
amended provisions of solatium and interest under Section         F
23(2) and proviso to Section 28 of the LA Act as amended by
the Amendment Act was in issue. That was a case where
notification under Section 4(1) of the LA Act was published on
June 10, 1977 proposing to acquire the land for extension of
Amritsar Cantonment at Village Kala Ghanpur. The award was        G
made by the Collector under Section 11 on August 28, 1978.
On reference under Section 18, the reference court enhanced
the compensation by its award and decree dated December
24, 1981. The award and decree passed by the reference court
was confirmed by the single Judge as well as by the Division      H
    170      SUPREME COURT REPORTS                [2012) 11 S.C.R.


A Bench of the High Court and special leave petitions from the
  judgment of the High Court were dismissed. On July 28, 1987,
  after the amendments were made in LA Act by the Amend men!
  Act, the owners made applications under Sections 151 and
  152, CPC for award of enhanced solatium and interest. The
B High Court allowed the applications. When execution
  applications were laid, the executing court dismissed them, but
  on revision the High Court allowed them and directed execution
  of enhanced solatium and interest. It is from this order that the
  appeals, by special leave, were preferred by the Union of India
c before this Court. This Court in para 7 and 8 (pages 502-503)
  held as under :

        "7. It is settled law that after the Reference Court has
        granted an award and decree under Section 26(1) of the
        Act which is an award and judgment under Section 26(2)
D       of the Act or on appeal under Section 54, the only remedy
        available to a party is to file an application for correction
        of clerical or arithmetical mistakes in the decree. The
        award of solatium and interest would be granted on
        enhancement of compensation when the court finds that
E       the compensation was not correct. It is a part of the
        judgment or award. Admittedly, as on that date the
        claimants were entitled to solatium at 15% and interest at
        6%. The Amendment Act 68 of 1984 came into force as
        on 24-9-1984. It is settled law that if the p(oceedings are
F       pending before the Reference Court as on that date, the
        claimants would be entitled to the enhanced solatium and
        interest. In view of the fact that the Reference Court itself
        has answered the reference and enhanced the
        compensation as on 24-12-1081, the decree as on that
G       date was correctly drawn and became final.

        8.    The question then is whether the High Court has
        power to entertain independent applications u;ider
        Sections 151 and 152 and enhance solatium and interest
        as amended under Act 68 of 1984. This controversy is no
H
 STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 171
        THROUGH LRS. [R.M. LODHA, J.]
     longer res integra. In State of Punjab V. Jagir Singh [1995 A
     Supp.(4) SCC 626] and also in catena of decisions
     following thereafter in Union of India V. Pratap Kaur
     [(1995) 3 SCC 263]; State of Mahara~htra V. Maharau
     Srawan Hatkar[(1995) 3 SCC 316: JT 1995 (2) SC 583];
     State of Punjab V. Babu Singh [1995 Supp. (2) SCC 406]; B
     Union of India V. Raghubir Singh [(1989) 2 SCC 754];
     and K.S. Paripooman V. State of Kera/a [(1994) 5 SCC
      593] this Court has held that the Reference Court or the
      High Court has no power or jurisdiction to entertain any
      applications under Sections 151 and 152 to correct any c
      decree which has become final or to independently pass
      an award enhancing the solatium and interest as amended
      by Act 68 of 1984. Consequently, the award by the High
      Court granting enhanced solatium at 30% under Section
      23 (2) and interest at the rate of 9% for one year from the 0
      date of taking possession and thereafter at the rate of 15%
      till date of deposit under Section 28 as amended under
      Act 68 of 1984 is clearly without jurisdiction and, therefore,
      a nullity. The order being a nullity, it can be challenged at
      any stage. Rightly the question was raised in execution. E
      The executing Court allowed the petition and dismissed
      the execution petition. The High Court, therefore, was
      clearly in er;or in allowing the revision and setting aside
      the order of the executing Court."

      18. In Swaran Singh 2 it has been clearly held that the High   F
 Court has no power to entertain an independent application
 under Section 151 and Section 152 of the CPC and enhance
 solatium and interest as amended under the Amendment Act.

       19. The sentence "Admittedly, as on that date the G
  claimants were entitled to solatium at 15% and interest at 6%"
. in para 7 in Swaran Singh2 is hardly a distinguishing feature.
  Swaran Singh 2 is on all fours and is squarely applicable to the
  present fact situation. We have no reason, much less a
                                                                     H.
    172       SUPREME COURT REPORTS               [2012] 11 S.C.R.


A justifiable reason, to doubt the correctness of law laid down in
    Swaran Singh2 .

      20. Swaran Singh 2 has been referred to by this Court in
  para 26 (page 208) of comparatively recent judgment in Sarup
        3
8 Singh and followed. In para 25 (page 208 of the report) this
  Court in Sarup Singh 3 held as under :

          "25. In the present cases the judgment and order passed
          by the High Court before Amendment Act of 68 of 1984
          became final and binding as no appeal was brought to this
c         Court thereafter. However, consequent to the amendment
          in the Land Acquisition Act, the appellants had filed civil
          miscellaneous applications for the grant of 30% solatium
          and 9% interest for first year and 15% interest thereafter.
          This Court has also held in a catena of decisions that a
D         decree once passed and which has become final and
          binding cannot be sought to be amended by filing petition
          under Sections 151 and 152, CPC."

       21. Legal position is no more res integra that an award
E and decree having become final under the LA Act cannot be
  amended or altered seeking enhancement of the statutory
  benefits under the amended provisions brought in by the
  Amendment Act in the LA Act by filing petitions under Section
  151 and Section 152 of the CPC. In view of this, the award and
F decree passed by the High Court on April 28, 1989 has to be
  held to be without jurisdiction and nullity. It goes without saying
  that a plea of nullity of a decree can always be set up before
  the executing court. Any judgment and order which is a nullity
  never acquires finality and is thus open to challenge in the
G executing proceedings.
          22. The decisions of this Court in Balvant N. Viswamitra 4
  and National Agricultural Cooperative Marketing Federation
  of India Ltd. 5 relied upon by the learned counsel for the
  respondents have no relevance to the controversy in hand. The
H propositions of law laid down therein are beyond question but
STATE OF HARYANA & ANR. v. KARTAR SINGH (D) 173
       THROUGH LRS. [R.M .. LODHA, J.]
these propositions have no application to the facts of the present   A
case.
     23. Civil Appeal is, accordingly, allowed. The order cif the
High Court dated April 1, 2003 and the order of the Additional
District Judge, Kamal dated April 6, 1999 are liable to be set       8
aside and are set aside. The execution· petition filed by the
respondents seeking execution of the award and decree dated
April 28, 1989 stands dismissed. The parties shall bear their
own costs.

Civil Appeal No. 5116 of 2005                                        c
     24. In view of judgment passed in Civil Appeal 5115/2005
above, this Civil Appeal is also allowed in the same terms. The
parties shall bear their own costs.

Civil Appeal No. 5096 of 2005 and Civil Appeal Nos. 5097-            D
5098 of 2005
     25. In view of the judgment passed in Civil Appeal 5115
of 2005.and Civil Appeal No. 5116 of 2005 today, these Civil
Appeals do not survive and stand disposed of as such.                E

R.P.                                      Appeals disposed of.