Telangana High Court
Smt. Asmath Ara Begum vs The Special Deputy Collector And 4 ... on 14 February, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr.JUSTICE G.RADHA RANI
CIVIL REVISION PETITION No.1355 of 2020
ORDER:
This Civil Revision Petition is filed by the petitioner - claimant
No.29 aggrieved by the order dated 07.10.2020 passed in E.P No.115 of
2008 in O.P No.267 of 1979 by the learned I Senior Civil Judge, City
Civil Court, Hyderabad.
2. The revision petitioner along with claimant Nos.28, 31, 32
and legal representative of D.Hr No.1, filed E.P No.115 of 2008 for
realization of E.P amount of Rs.1,05,24,515.59/- basing on the orders of
this Court in CCCA No.21 of 1995 and Cross objection No.23057 of
1998 dated 27.03.2006.
3. The contention of the petitioner - claimant in the E.P was
that the land to an extent of Acs.50.28 guntas and 46 Sq.yards i.e.,
245434 Sq.yards at Baghlingampally was acquired by A.P. Housing
Board through award, dated 31.12.1975 and possession of the land was
taken on 18.01.1976. The market value of the land was fixed @ Rs.30/-
per Sq.yard. Aggrieved by the same, the claimants filed O.P. No.267 of
1979 for enhancement and the same was decreed on 14.07.1994 by fixing
the market value of the land @ Rs.37.50 Ps. per Sq.yard. Aggrieved by
the said order, the Judgment Debtor (J.Dr.) had filed CCCA No.21 of
1995 before the High Court and the Decree Holders (D.Hrs.) filed Cross
Objection No.23057 of 1998 and the said appeal and Cross Objections
were disposed of on 27.03.2006 by fixing the market value @ Rs.50.00
per Sq.yard. As per the judgment and decree in CCCA No.21 of 1995, the
claimant was entitled for the E.P. amount. While stating so, the claimants
also stated that the claim of each claimant was decided by the Court in
O.P No.336 of 1979.
4. The J.Dr/LAO filed counter in the said E.P. admitting
acquisition of land and passing the award dated 31.12.1975, but
contended that since there were rival claims, the LAO referred the matter
under Section 30 of the Land Acquisition Act, 1894 for adjudication of
title and apportionment along with compensation amount and the said
O.P. was numbered as O.P No.336 of 1979. O.P No.336 of 1979 was
disposed of on 30.04.1994. The present claimants were arrayed as
claimant Nos.62 to 65, who were the defendant Nos.107 to 111 in C.S
No.14 of 1958. While adjudicating the dispute under Section 30 of the
Land Acquisition Act in O.P No.336 of 1979, the Court held that the
claimant Nos.62 to 65 and some others had not placed any evidence, as
such, their claim was closed. The above claimants were set ex-parte. No
apportionment of compensation was made to the said claimants. As such,
the present claimants were not entitled to claim any compensation. The
Court awarded amounts to claimant Nos.2 and 3, 50 to 55, 61, 101, 102,
103, 124, 151 to 155 only but not to the above claimants. The claimants
wrongly filed the E.P. showing the judgment in O.P No.267 of 1979 by
suppressing the judgment in O.P No.336 of 1979 and prayed to dismiss
the E.P.
5. On considering the rival contentions, the learned I-Senior
Civil Judge, City Civil Court, Hyderabad, observed that O.P No.336 of
1979, dated 30.04.1994 was a reference under Section 30 of Land
Acquisition Act for adjudication of title in respect of the same subject
matter of property as in O.P No.267 of 1979. O.P No.267 of 1979 was
referred for determination of market value and OP No.336 of 1979 was
referred for adjudication of title. The High Court enhanced the market
value in the Cross Objections filed by the claimants, but the title of the
claimants was not decided by the High Court. As the claimants had filed
Cross Objections only for enhancement, the High Court entertained their
petition to that extent only. Mere enhancement of the market value
would not confer any title to receive compensation, which was subject
matter of O.P No.336 of 1979. The amount was deposited with regard to
the rights of the claimants whose entitlement was declared in O.P No.336
of 1979. Since both the references were made with regard to the same
subject matter of property, both the orders have to be read together. In
view of the order of the Court in O.P No.336 of 1979, dated 30.04.1994,
the present claimants were not entitled for any compensation and as such,
dismissed the E.P. with costs.
6. Aggrieved by the said dismissal of the E.P., claimant No.29
preferred this revision.
7. Heard Sri Mohammad Adnan, learned counsel representing
Sri Mohammad Osman Shaheed, learned counsel for the petitioner and
learned Government Pleader for Arbitration representing respondent -
J.Dr.
8. Learned counsel for the petitioner submitted that the order
passed by the executing court was against law. It was settled law that the
executing court could not go beyond the decree. The executing court
failed to take into consideration that even if the judgment and decree
sought to be executed were bad on facts or on law, it could not go beyond
the decree. The executing court failed to take into consideration that the
decree sought to be executed was the judgment and decree passed by the
High Court in CCCA No.21 of 1995. The executing court erred in
holding that the order passed by its predecessor in O.P No.336 of 1979
was binding on it, but not the judgment and decree passed by the High
Court. It also failed to take into consideration that the objection taken in
the E.P. was never taken before the High Court while arguing CCCA
No.21 of 1995. The respondent was estopped by its conduct to raise such
a plea at the stage of execution and relied upon the judgment of Hon'ble
Apex Court in Dr.G.H.Grant Vs. The State of Bihar1.
8.1. He relied upon the judgments of the Hon'ble Apex Court in
Sneh Lata Goel Vs. Pushplata and others 2 and Asma Lateef and
another Vs. Shabbir Ahmad and others 3 on the aspect that the Court
executing a decree could not go beyond the decree and could not entertain
any objection that the decree was incorrect in law or on facts and had to
take the decree as per its tenor.
8.2. He further relied upon the judgment of the Hon'ble Apex
Court in Balbir Singh & another etc. Vs. Baldev Singh (died) through
his L.Rs and others etc. 4 on the aspect that the decree passed by the trial
Court would stand merged with the decree passed by the appellate Court
and as it was the order of the appellate Court which was sought to be
executed, the executing Court could not rely upon the order of the trial
Court in O.P No.336 of 1979.
9. Learned Government Pleader for Arbitration, on the other
hand, contended that there was no error in the order passed by the learned
I-Senior Civil Judge, City Civil Court, Hyderabad. There were two O.Ps,
one filed by the claimants under Section 18 of Land Acquisition Act vide
O.P No.267 of 1979 for enhancement of compensation and another O.P
AIR 1966 SC 237
(2019) 3 SCC 594
2024 (1) ALD 234 (SC)
2025 INSC 81
No.336 of 1979 preferred by the LAO for adjudication of title and
apportionment along with compensation amount. The petitioner was also
cited as claimant No.65 in O.P No.336 of 1979. No evidence was
adduced by her in the said O.P. As such, no apportionment of
compensation was awarded to her. The amount deposited as per the
orders in CCCA No.21 of 1995 and Cross Objection No.23057 of 1998
was pertaining to the rights of the claimants whose entitlement was
declared in O.P No.336 of 1979. The market value of the subject property
was decided in O.P No.267 of 1979 but the title of the rival claimants was
adjudicated in O.P No.336 of 1979. The judgments relied by the learned
counsel for the petitioner were not applicable to the facts of the case and
prayed to dismiss the CRP.
10. Now the point for consideration in this CRP is:
Whether the executing court committed any error in
dismissing E.P No.115 of 2008?
11. Admittedly, two O.P's are filed against the same subject
matter of Acs.50.28 guntas and 46 Sq.yards i.e., 245434 Sq.yards situated
at Baghlingamaplly, which was acquired by A.P. Housing Board through
award dated 31.12.1975. O.P No.267 of 1979 was filed by the claimants
seeking enhancement of compensation which was fixed by the LAO at
Rs.30/- per Sq.yard. The said OP was decreed on 14.07.1994 fixing the
market value of the land @ Rs.37.50 Ps.per Sq.yards. Against the said
order in O.P No.267 of 1979, the LAO had filed the CCCA No.21 of
1995 and the claimants filed Cross Objection No.23507 of 1998. The said
CCCA and Cross objections were disposed of by this Court on
27.03.2006 enhancing the market value @ Rs.50.00 per Sq.yard. O.P
No.336 of 1979 was referred by the LAO under Section 30 of the Land
Acquisition Act, since there were rival claims by the claimants for
adjudication of title and apportionment of the compensation amount
between the rival claimants. O.P No.336 of 1979 was disposed of on
30.04.1994 and O.P No.267 of 1979 was disposed of on 14.07.1994.
12. The revision petitioner - claimant was aware of adjudication
of O.P No.336 of 1979 as the claimants themselves stated in E.P. that the
claim of each claimant was decided by the Court in O.P No.336 of 1979.
The present claimant had not adduced any evidence in O.P No.336 of
1979 and she was set ex-parte. Though, the market value of the property
was determined by the Court in O.P No.267 of 1979, which was
enhanced as per the orders of the High Court in CCCA No.21 of 1995
and Cross Objection No.23057 of 1998, the entitlement of each claimant
was decided only in O.P No.336 of 1979.
13. Learned counsel for the revision petitioner contended that
under Section 18 of Land Acquisition Act also, the Land Acquisition
Officer could determine the amount of compensation and the persons to
whom it was payable or the apportionment thereof among the persons
entrusted. As such, Section 18 is wide in nature and relied upon the
judgment of the Hon'ble Apex Court Dr.G.H.Grant Vs. The State of
Bihar.
14. On a perusal of the judgment of the Hon'ble Apex Court in
the case of Dr.G.H.Grant Vs. The State of Bihar (Supra-1) it was held
that:
"12..... By S. 18 the Collector is enjoined to refer to the District Court
for determination, objections as to the measurement of the land, the
amount of compensation, the persons to whom it is payable, or the
apportionment thereof among the persons interested. Part IV deals with
apportionment of compensation. If the persons interested agree in the
apportionment of the compensation, the particulars of such
apportionment shall be specified in the award (s. 29): if there be no such
agreement, the Collector may, if a dispute arises as to the apportionment
of the compensation or any part thereof or as to the persons to whom the
same or any part thereof is payable, refer such dispute under s. 30 for
decision by the Court.
13. There are two provisions ss. 18(1) and 30 which invest the Collector
with power to refer to the Court a dispute as to apportionment of
compensation or as to the persons to whom it is payable. By sub-s. (1)
of s. 18 the Collector is enjoined to refer a dispute as to apportionment,
or as to title to receive compensation, on the application within the time
prescribed' by sub-s. (2) of that section of a person interested who has
not accepted the award. Section 30 authorizes the Collector to refer to
the Court after compensation is settled under s. 11, any dispute arising
as to apportionment of the same or any part thereof or as to the persons
to whom the same or any part thereof is payable. A person shown in that
part of the award which relates to apportionment of compensation, who
is present either personally or through a representative, or on whom a
notice is served under sub-s. (2) of s. 12, must, if he does not accept the
award, apply to the Collector within the time prescribed under s.
18(2) to refer the matter to the Court. But a person who has not
appeared in the acquisition proceeding before the Collector may, if he is
not served with notice of the filing, raise a dispute as to apportionment
or as to the persons to whom it is payable, and apply to the Court for a
reference under s. 30, for determination of his right to compensation
which may have existed before the award, or which may have devolved
upon him since the award. Whereas under s. 18 an application made to
the Collector must be made within the period prescribed by sub-s.(2) cl.
(b), there is no such period prescribed under s. 30. Again under s. 18 the
Collector is bound to make a reference on a petition filed by a person
interested. The Collector under s. 30 is not enjoined to make a
reference: he may relegate the person raising a dispute as to
apportionment, or as to the person to whom compensation is payable, to
agitate the dispute in a suit and pay the compensation in the manner
declared by his award.
15. Thus there is a distinction between Section 18 and Section
30. Though under Section 18 of Land Acquisition Act also, the land
acquisition officer can decide the aspect of the amount of compensation
and the persons to whom it was payable and the apportionment thereof
among the persons interested the names of the claimants who agreed to
such apportionment would be specified in the award but if there was no
such agreement between them, the land acquisition officer would need to
refer the said dispute under Section 30 for decision of the Court. As the
land acquisition officer had referred the dispute to the Court under
Section 30 of the Land Acquisition Act and the Court had decided the
said dispute by its order dated 30.04.1994 and the same was not
challenged by the claimant, being aware of the same, she cannot take
recourse of the order in O.P No.267 of 1979 which merged with the order
in CCCA No.21 of 1995 and Cross Objection No.23057 of 1998. The
entitlement of the petitioner for compensation was not decided in CCCA
No.21 of 1995 except that the interested persons were entitled for an
enhanced compensation as declared in the award.
16. The Hon'ble Apex Court in the above judgment
Dr.G.H.Grant Vs. The State of Bihar (Supra-1) also held that:
"In our judgment the powers exercisable by the Collector
under s. 18(1) and under s. 30 are distinct and may be
invoked in contingencies which do not overlap."
17. But, if the powers exercisable under both the Sections would
overlap, as the persons who were entitled to receive compensation was
decided under Section 30 reference, the persons whose names were set
out in the award under Section 30 are only entitled to receive the
compensation.
18. The judgment of the Hon'ble Apex Court in Sneh Lata Goel
Vs. Pushplata and others (Supra-2) is pertaining to the objection with
regard to the territorial jurisdiction of the Court. As such, it was observed
by the Hon'ble Apex Court that it was an objection to territorial
jurisdiction which did not travel to the root of or to the inherent lack of
jurisdiction of a civil court to entertain the suit. An executing court
cannot go beyond the decree and must execute the decree as it stands and
by extracting its earlier judgment in Vasudev Dhanjibhai Modi v
Rajabhai Abdul Rehman [(1970) 1 SCC 670], wherein it was held that:
"6. A court executing a decree cannot go behind the decree: between the
parties or their representatives it must take the decree according to its
tenor, and cannot entertain any objection that the decree was incorrect in
law or on facts. Until it is set aside by an appropriate proceeding in
appeal or revision, a decree even if it be erroneous is still binding
between the parties."
19. However, the contention of the respondents in the present case
was not with regard to the judgment in CCCA No.21 of 1995 is not
correct on law or on facts but that it was pertaining to only enhancement
of compensation but not with regard to the entitlement of the claimant. As
such, the above judgment can be distinguished on the facts of the present
case.
20. In a similar manner, the Hon'ble Apex Court in Asma Lateef and
another Vs. Shabbir Ahmad and others (Supra-3) considered its earlier
judgments and held as follows:
27. In Vasudev Dhanjibhai Modi v. Rajabhai Abdul
Rehman reported in (1970) 1 SCC 670, this Court was
considering the scope of objection under section 47 of the
CPC in relation to the executability of a decree. Therein, it
was laid down that only such a decree could be the subject-
matter of objection which is a nullity and not a decree
which was erroneous either in law or on facts. Law was laid
down in the following terms:
"6. A court executing a decree cannot go behind
the decree between the parties or their
representatives it must take the decree according to
its tenor and cannot entertain any objection that the
decree was incorrect in law or on facts. Until it is
set aside by an appropriate proceeding in appeal or
revision, a decree even if it be erroneous is still
binding between the parties.
7. When a decree which is a nullity, for instance,
where it is passed without bringing the legal
representative on the record of a person who was
dead at the date of the decree, or against a ruling
prince without a certificate, is sought to be
executed an objection in that behalf may be raised
in a proceeding for execution. Again, when the
decree is made by a court which has no inherent
jurisdiction to make objection as to its validity may
be raised in an execution proceeding if the
objection appears on the face of the record: where
the objection as to the jurisdiction of the Court to
pass the decree does not appear on the face of the
record and requires examination of the questions
raised and decided at the trial or which could have
been but have not been raised, the executing Court
will have no jurisdiction to entertain an objection
as to the validity of the decree even on the ground
of absence of jurisdiction...."
28. In Dhurandhar Prasad Singh v. Jai Prakash
University13, this Court further expounded the powers of a
court under section 47, CPC in the following words:
"24. The exercise of powers under Section 47 of
the Code is microscopic and lies in a very narrow
inspection hole. Thus it is plain that executing
court can allow objection under Section 47 of the
Code to the executability of the decree if it is found
that the same is void ab initio and a nullity, apart
from the ground that the decree is not capable of
execution under law either because the same was
passed in ignorance of such a provision of law or
the law was promulgated making a decree
inexecutable after its passing...."
29. The legality of the order of the High Court, together
with the order of the Executing Court that the former went
on to uphold, has to be tested having regard to the settled
position of law as noticed above and bearing in mind that
the powers of an executing court, though narrower than an
appellate or revisional court, can be exercised to dismiss an
execution application if the decree put to execution is
unmistakably found to suffer from an inherent lack of
jurisdiction of the court that made the same rendering it a
nullity in the eye of law.
21. The contention of the learned Government Pleader for
Arbitration is not that the trial Court or the High Court was not having
jurisdiction over the subject matter. If the claimant was able to show that
her entitlement to the award was also decided by the trial Court as well as
the appellate Court in the above judgment, the E.P is executable on this
count. However, as she failed to show that her entitlement was also
decided in the said appeal but as the same was reported to be decided in
O.P No.336 of 1979, she could not seek to execute the judgment in CCCA
No.21 of 1995 and Cross Objection No.23057 of 1998 for realization of
the EP amount deposited for the claimants whose rights were decided as
per O.P No.336 of 1979. There is no quarrel with regard to the
proposition of law laid down in Balbir Singh & another etc. Vs. Baldev
Singh (died) through his LRs and others etc (Supra 4) which describes
the doctrine of merger and held that:
28. The doctrine of merger is founded on the rationale that
there cannot be more than one operative decree at a given
point of time. The doctrine of merger applies irrespective
of whether the appellate court has affirmed, modified or
reversed the decree of the trial court. The doctrine has
been discussed and explained succinctly by this Court
in Surinder Pal Soni v. Sohan Lal (Dead) through Legal
Representatives, (2020) 15 SCC 771.
22. The judgment of the trial Court in O.P No.267 of 1979
merges with the judgment of the High Court in CCCA No.21 of 1995 and
Cross Objection No.23057 of 1998. But, as the judgment in O.P No.336
of 1979 is not merged with CCCA No.21 of 1995, the petitioner could not
claim that her entitlement was also decided by the High Court in CCCA
No.21 of 1995 and Cross Objection No.23057 of 1998 dated 27.03.2006.
23. This Court does not find any illegality or irregularity in the
order of the Executing Court in dismissing the E.P filed by the claimant.
24. In the result, this Civil Revision Petition is dismissed
confirming the order dated 07.10.2020 passed in E.P No.115 of 2008 in
O.P No.267 of 1979 by the learned I Senior Civil Judge, City Civil Court,
Hyderabad. No order as to costs.
Miscellaneous petitions, if any pending shall stand closed.
_____________________
Dr. G.RADHA RANI, J
Dt.: 14.02.2025
dsv
