Project Director, National ... vs Manohar Lal Jain And 3 Others
2018 Latest Caselaw 710 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 

 
A.F.R.
 

 
Court No. - 9
 

 
Case :- CIVIL REVISION DEFECTIVE No. - 39 of 2018
 

 
Revisionist :- Project Director, National Highway Authority Of India
 
Opposite Party :- Manohar Lal Jain And 3 Others
 
Counsel for Revisionist :- Devendra Kumar
 
Counsel for Opposite Party :- Sanjay Agarwal
 

 
Hon'ble Anjani Kumar Mishra,J.

Heard Shri W.H. Khan, learned Senior Advocate assisted by Shri Devendra Kumar for the revisionist and Shri Sanjay Agarwal for the contesting opposite party.

The revision is belated and is supported by an application for condonation of delay under Section 14 (1) of the Limitation Act.

Counsel for the opposite party states that he has no objection to the delay being condoned.

Upon hearing counsel for the parties and upon a perusal of the record, the cause shown for the delay is found to be sufficient. The delay in filing the revision is condoned.

I have also heard counsel for the parties on the merits of the revision, which is directed against the orders dated 27.01.2018 and 28.02.2018 passed by the Civil Judge (Sr. Division), Lalitpur, in Execution Case no. 4 of 2008, filed for executing the decree in Original Suit no. 29 of 1991.

The suit no. 29 of 1991 filed by the plaintiff opposite party was decreed vide judgment dated 30.11.2007. The defendants 1 and 2 in the suit were directed to compensate the plaintiff within two months of the judgment, regarding plot no. 6661/1 area 0.60 decimal and 6662 area 1.79 decimal total area 3395 Sq. meters at the rate of Rs. 220 per Sq. meter along with 30 % solatium and 12% interest per annum. It was also provided that in case the compensation was not paid within two months, the plaintiff would be entitled to possession over the land aforesaid, at the cost of the defendants.

From a perusal of the judgment sought to be executed, it emerges that the plots aforesaid were recorded as the bhumidhari plots of the plaintiff opposite party. The trial Court found that a road, National Highway No. 26 had been constructed thereon, without the land having been acquired and without paying any compensation to the plaintiff.

Although, it was the case of the defendants that the land had been duly acquired, no gazette notification regarding their acquisition was ever filed in the suit. Nor was any material filed on record to show that the plaintiff had consented to the construction of a road over his plots. Under these circumstances, the decree aforesaid was passed.

It is not disputed that the judgment and decree dated 30.11.2007 has attained finality not having been challenged any further. It is also not in dispute that the decree aforesaid is against the State of U.P. through Collector, Lalitpur and the Upkhand Adhikari, Rashtriya Marg, Upkhand Public Works Department, Lalitpur.

On the judgment and decree aforesaid being put to execution, it appears that an application was filed that the road, which had been constructed over the plots in dispute had been, during the pendency of the suit, transferred to the National Highway Authority of India. The National Highway Authority of India was therefore impleaded as a party in the execution case, vide order dated 27.01.2018. This is the first order impugned in this revision.

The other order impugned is dated 28.02.2018, whereunder the National Highway Authority of India has been directed to make alternative arrangements within 15 days, where after, a parwana would be issued for compliance of the decree.

The contention of counsel for the revisionist, National Highway Authority of India is that the decree had not been passed against it. The road had been constructed by the defendants in the suit. The National Highway Authority of India was not a party to the suit and, therefore, the decree is not executable against it.

The second contention is that the National Highway Authority of India has wrongly been impleaded in the execution case. Moreover, it has wrongly been saddled with the responsibility of making alternative arrangements/paying the decretal amount. The National Highway Authority of India has merely been handed over possession of the road and it is its duty to maintain the National Highway No. 26, which passes over the land in issue. The order impugned should therefore be set aside and the plaintiff opposite party should be directed to pursue its case against either the State of U.P. or the Public Works Department who were the defendants in the suit or if so advised, against the Union of India, which is now the owner of the Highway, a National Highway.

Counsel appearing for the opposite party has supported the impugned order. He has reiterated that a road was constructed over his bhumidhari land without it having been acquired and without his consent. He was never paid any compensation as regards this land. The revisionist, as also the State of U.P. or the Union of India as the case may be, are nothing more than encroachers over the land of plaintiff-respondent. The revision is therefore liable to be dismissed.

I have considered the submissions made by counsel for the parties and perused the record.

It is not in dispute that a decree was passed in favour of the defendant opposite party for compensation being paid to him within a period of two months from the judgment, in his suit, failing which the plaintiff opposite party was entitled to possession over his land. It is no ones case that this judgment and decree was ever subjected to any challenge. It has, therefore, attained finality and is necessarily to be implemented.

It would also be relevant to note that the judgment and decree was passed in the year 2007. More than 11 years have elapsed, since. The execution of a final decree is being resisted by the National Highway Authority of India alleging that it has no role to play in the matter. It is merely maintaining a National Highway and that the decree may be executed either against the State of U.P. or the Union of India.

In the light of the submissions made, a pointed query was put to revisionist as to why the National Highway Authority of India had challenged the orders impugned, if it had no interest in the matter and was a wholly unconcerned party and as to why it insisted on maintaining a National Highway, despite a final decree operating in favour of the plaintiff-opposite party.

To these queries, counsel for the revisionist had no answer at all.

In my considered opinion, it was incumbent upon the State Authorities to have paid compensation to the plaintiff-opposite party, in case, they were interested in maintain the National Highway as it exists today and keep it operational. It is not open for the State Authorities to continue to keep the National Highway operational without compensating the plaintiff-opposite party. Even otherwise, by the order impugned dated 28.02.2018, the National Highway Authority of India has only been directed to make alternative arrangements. There is no specific direction for it to pay the compensation to which the plaintiff-opposite party has been held to be entitled.

In any case, the National Highway Authority of India has stepped into the shoes of the State of U.P., which had initially encroached upon the plaintiff opposite party's land without acquiring it and without paying any compensation, built a read thereon, as is the case of the revisionist itself.

Even the National Highway Authority of India is a statutory body and State within the meaning of Article 12 of the Constitution of India, as it is performing a public function. It, therefore, cannot be permitted to hide behind technicalities, to defeat a genuine claim of a land holder. A litigant having a final judgment and decree operating in his favour cannot be forced to run form piller to post to get a decree in his favour executed.

The National Highway Authority of India having been handed over possession for maintenance of a highway, wrongly and illegally constructed over the opposite party's land by the State Authorities, without acquiring the land or paying compensation for it, seems only interested in perpetuating such illegality by submitting that payment of compensation is not its liability.

The status of the National Highway Authority of India, cannot, in the facts and circumstances, be anything more than that of an unauthorized occupant.

The instant case is a classic example of the various State Authorities trying to shift the blame and liability to other State Authorities, while an individual, despite a valid and final decree in his favour, is sought to be denied the fruits of such decree. This cannot be permitted.

The contentions raised on behalf of the revisionist cannot be accepted, also because of the provisions contained in Section 12 (1) a of the National Highways Authority of India Act, which is extracted below:-

"12. Transfer of assets and liabilities of the Central Government to the Authority.-(1) On and from the date of publication of the notification under section 11,-

(a) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with, or for, the Central Government, immediately before such date for or in connection with the purposes of any national highway or any stretch thereof vested in, or entrusted to, the Authority under that section, shall be deemed to have been incurred, entered into and engaged to be done by, with, or for, the Authority;"

The provision extracted above is self explanatory, and therefore, the order dated 27.01.2018, impleading the revisionist in the execution case is perfectly justified and even if the liability to pay the decreetal amount is imposed upon the revisionist, the same would also not be illegal, in any manner.

Although, this Court does not find any specific direction in the orders impugned where under the National Highway Authority of India is required to pay the compensation to which the plaintiff opposite party is entitled, but even if, such is the situation, as is the contention of counsel for the revisionist, I do not see any illegality, therein.

In case the National Highway Authority of India is so keen to maintain the National Highway, it should pay the compensation and recover it from, whichever Government Body who is liable to pay the same.

In case it is not liable and, therefore, does not propose to make any payment, it is free to do so, but in that case it should not venture over the plots of the plaintiff opposite party, which have been encroached upon by the State Authorities, wrongly and illegally and without any right, whatsoever.

In the aforesaid facts and circumstances and since no equity lies in favour of the revisionist who, in the considered opinion of this Court, is trying to defeat a valid decree in favour of the plaintiff opposite party on technicalities, this revision is liable to be dismissed with special cost of Rs. 10,000/-.

The revision is therefore dismissed with costs, as aforesaid.

Order Date :- 21.5.2018

Mayank