1 6 r 56 1 4 1 6 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No2618 of 2004 Surjeet Singhandothers aeeePETITIONERS Versus UnionofIndia 1ESPONDENT CR Nol619 of 2004 0 0 JagarSinghandothers I C5 Versus I Union ofIndia 2ESPONDENT Z CORAM HONBLE MRJUSTICE SATISH KUMAR MITTAL 08 Present1 MrRS RandhawaAdvocate em for the Z Mr Ram ChanderAdvocate for the SATISH KUMAR MITTAL J 1 This order shall dispose of Civil Revision Nos2618 and 2619 of2004 Thesepetitions under Article 227 ofthe ConstitutionofIndia have been flled by the petitioners for setting aside the order dated 1722004 passedbythe AdditionalDistrictJudgeBathinda whereby theirexecution filed underOrder 21 Rule 11 read with Section 151 CPC havebeendismissedbeingbarredbylimitation 1 2 The brieffactsofthe case are that theUnion of India f b . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document r 57 CR No 2618of 2004 anr 2e bigchunkoflands in a compactblock including theland ofthe lll therevenue estates ofvillagesBhaguMehna BhuchoKhwd andBucho KalanundertheLand Act 1894 hereinaer refenedto asthe Act in the year 1979 for a publicpurpose e for the BathindaCantonmentThe SpecialLand Collector vide its 1 award dated 273982 awarded at different rates for dilTerentkindsof lands The land owners including the feeling 0 0 dissatisfiedwith the saidaward sought referencesunderSection18 ofthe I C5 Act whichwere ofbytheAdditionalDistrictJudgeBathindaand theamount of was enhancedAgainstthe said the Z land owners the filed RegularFirst Appealsin the C HighCourt The leamed SingleJudgeby a common 81rther enhancedthe amount of Still feelingdissatis6edwith the a5 judgmentld of the SingleJudgeof the HighCourt the lanlowners including the 61edLPA No 1251of 1987 A Letters Patent V Z Benchofthis Court dated3011989 8inherenhanced ll the amount of For the landwithinthe abadi and abutting the National Highwayon either side up to the depthof 500 metres the has beenawarded Rs00001 peracre for ChahiNehri land the has been awarded Rs00001m per acre for BeraniIand the has beenawarded Rs380001 per acre and for BanjarKadim the has been awarded Rs300001e per acre The claimantsllandowners were irther held entitledfor the statutory benefItas per the CentralAmendmentAct Act No68 of 19841 as well as the costs Againstthe orderdated 3011989 passed bythe LettersPatent Bench the petitioners filed SpecialLeave Petitionslll . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 58 5 CR No2618 of 2004ceanr 8 m the Courtwhich were dismissedin limineon 591995 3 Whenthe ofIndia did not makethepayment of theenhanced as per the dated 301 1989 passedby the LettersPatentBench the 111CNo2618 and 2619of2004 filed execution on 1332001 for recovery of an 1 C amountofRs23779726 eachfromthe The did not 0 file any replyto the said in spiteof several C granted on 2312003 thewarrant ofattachmentwas orderedto 9 beissuedon filingofprocess fee and list of propertywithin a week When the warrant was received back unexecuted fresh warrant was issued for Z 187003 on filingof process fee and list of propertyAt that stageon 2 r 1722004 theexecution filedbythe were dismissed I on limitationbypassing thefollowing orderl otj It came to my notice that decision of 30O1989 is being soughtto be executed for which execution was m7 Z filed on 14032001 ieee aftermore than 12years so execution beingbeyondlimitation standsdismissedbeing barredbylimitation File be Againstthe saidorder theserevisionpetitions havebeenfiled 4 Learnedcounsel for the petitioners argued that the Court has illegallyand dismissedthe execution of the in gross violation of various of the law by passinga whollynonpeaking order He submittedthatunder theAct it is of the to pay the enhancedamount of to the petitionerstherefore the claim of the petitioners cannot be defeatedOIl the groundof limitation and the Govemmentand its officials should not be permitted to take the pleaof 9 . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 59 2 CR No2618 of 2004 8 anr 4 to deprive thelegalclaimofthe landowners 5e Leamedcounsel lrtherargued thatin this case the Court has erred lIl law while takingthe startingpointof limitation as 3 3011989 whentheLettersPatent Benchhadpassed Leamed counselsubmittedthat the date i59995 on which the SLPs of the were dismissedshouldhavebeentakenasthe starting pointof limitationIfthe limitationis countedfrom thesaiddatethentheexecution 0 3 filed by the was well within limitation Leamed I C5 counselSlrtherargued that if the Court comesto the conclusionthat the I periodof limitationwill startrunning from the orderof the Letters Patent Z Bench dated 30 1989 then the time wastedin the matter beforethe CourtshouldbeexcludedbyvirtueofSection 14ofthe I Limitation Act 1963 111 the periodof limitation Therefore 08 dismissal of the execution was totallyillegal and to the of law V Z 6e On the otherhand leamedcounselfor the argued CL that the periodof limitationwill start runningom the dated301989 passedbythe LettersPatent BenchHe argued that the dateof dismissalof theSLP in liminewill not provide a new starting point of limitationto the becauseit is well settledthat thedoctrineof mergeris not in case of dismissalof SLP in Iimine by the Court He er arguedthatthe petitioners also cannot be given the bene6t of Section 14 of the LimitationAct 1963 for the periodtaken in the Court becausethe saidperiodcannot be taken as the periodspent in a before a wrong forum Hence to the leamed counsel the Court hasrightly . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 60 1 3 1 R No2618 of 2004 ce anr 5 1 dismissedthe execution on thepointof limitationas the same was61edbeyond the periodof limitation 7 After hearing the counselfor the parties and the vanous submissionsmadebythem I am of theopinionthatthe orderspassedbythe Court are illegal and contraryto the oflaw andthesame are liableto be 8e Under the Act the Governmentacquire the landsof the land 0 C owners in exerciseofthe power of eminentdomainofthe Statefor public I C5 purpose As longas publicpurposesubsiststhe exerciseofthe power ofthe I eminent domain cannot be The Court in Coffee Z B v Commissionerof CommercialTaxes AIR 1988 SC 1487 has observedthatthe eminentdomainis an essentialattribute of I everystate andauthoritiesare universalin supportof the definitionof the 08 1 emment domainas the power of the to takepropertyfor public use withoutthe owners consent upon making just Thus this 7 Z poweris exercisableonlyon of just under the schemeofthe Act After the notificationsissuedunder Sections4 and 60f the Act and notice underSection90f the Act to the interested 1 person the Land Collector shall determine the just ofthe acquired landandpay thesame to theinterestedperson or shall depositthe same 111the Court beforetakingpossession of the propertyIf such 1Snot paidbeforeor on taking he is also liable to pay interest to the person interestedat the rate Sxed underthe Act These provisionsclearlyindicate that the dutyto paYJust is to propertyunder the 1 Act Further 1 if a referenceis made to the civil Court againstthe awardpassedby the . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 61 v 94 CR N02618 of 2004 8 anr 6 Z40 Collectoron the ofthe landowners underSection18 ofthe Act the civil Court may enhancethe which may be 8irther enhancedin appealbeforethe HighCourt or the Court In my r opllllOll in such situationthecivil Court or theHighCourt or the Court as the case may be detenninethejust payable to the land owners while holdingthat the determinedby the C 0 Collectoror thelowerCourt was not in the case In case C of GurpreetSingh v Union of India200618 SCC 457 while C5 the power of the person interestedto the amount of I compensationand the dutyof the Collectorto pay the same it hasbeen Z l observedas underl 32 In the schemeof the Act it ls seen that the award of is at differentstagesThe first stageoccurs when I c6 the award 1S passed the award takes in all the amounts bySection2311ofthe Act Section23 1A Section23 andtheinterest bySection34 a Z ofthe Act The wholeofthat amount is paidor bythe Om Collector in terms of Section31 of theAct At this stageno shortfallin depositis Slnce the Collectorhasto payor depositthe amount awardedby him If a shortfall1S pointed out it may haveto be made up at that stageand the principleof may applythough it is difficult to a partialdeposit at that stageOn the depositby thecollectorunderSection31 of theAct the first stagecomes to an end subjectto the rightof the claimantto noticeof the depositand withdrawalor acceptanceof the amount with or withoutprotest 33 The Secondstageoccurs on a referenceunder Section180f the Act When the reference court awards enhanced it has to takenote of the enhanced 01Qunts under Section2361 9 Section231AI Section . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 62 9rb 1 R No618 of 2004 c anre 7 2329and lnterest on the enhancedamount as provided 111 Section28 of the Act and costs 111tenn of Section 27 The collectorhasthedutyto deposit theseamount pursuantto the deemeddecreethuspassedThis hasnothing to do with the earlierdeposit makeor to bemadeunderand aRerthe award If the deposit made falls shortof theenhancementdecreedthere can arisethequestion of at thatstagein relation to theamount enhancedon thereference 0 34 The Third stageoccurs when in appealthe HighCourt C enhancesthe as indicatedalreadyThe enhanced I would alsobearintereston theenhancedponion C5 ofthe when Section28 is appliedThe enhanced I amount thuscalculatedwill haveto be in additionto Z theamount awardedbythereferenceCourtifit had not already been C 35 TheFourthstagemay bewhenthe Courtenhances the and at that stagetoo the same rule would 08 applYe 9 It Can thus be seen that a liabilityhas been fastenedon the 7 Z Collectorto depositthe amount of theawardmadeby him as well as the enhanced awardedbytheReferenceCourt or theHighCourt or the Court In my opinlOn ln case of land it is the dutyof the State to pay to the person interestedthe just and due as enhancedbythe ReferenceCourt or theHighCourt or the Court If there is any failure to pay or thereis abnormaldelayin paymentof it affectsthe constitutional rightof the citizen Oandowners as providedunder Article 300eAof the Constitwion The Act givespower to the Stateto acquirethe Iand of the prlvateowners for publicpurpose with a to pay ln lieu thereof The said cannot be taken as 1 . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 63 P R No2618 of 2004 85anre 4 merelybecause have been initiated under the provisions of the Act and the landeownershave been by following the thereunderThe Govemmentis undera to pay to the personinterestedin the land In the dutyto pay it is impliedthat the said m shouldbe paidas as possible 1 10 It is also an establishedprinciple thattheStateshouldnot take 0 C 1 the pleaof limitationjustto defeatthe claim of thecitizen The I C5 Honble Courtin MadrasPort Trust v Hvmanshulntemationalby its ProprietorV Venkatadri Deadlbv LRs AIR 1979 SC 1144hasheld Z thatthepleaof limitationraisedbythe State or a public like Port C Trust is the one which theCourt always looks upon with disfavour It has been lrtherobservedas underl 08 it 1S unfortunatethat a public like the Port Trust should in alI morality and justicetake 7 up sucha pleato defeata justclaim of the citizen Z It is hightime that govemmentsand public authoritiesadoptthe practice of not relyingupon m7 technical pleasfor the purpose of claimsofcitizensand do what is fair and justto thecitizensOf course if a govemmentor a public takesup a technicalpleatheCourt hasto decideit andif the plea1S well founded it has to be upheldby the court but whatwe feel is thatsuch a pleashouldnot ordinarily be takenup by a govemmentor a public unlessof course the claim is not wellefoundedand byreason of delayin ftlingit theevidencefor thepurposeof resistingsuch a claim has becomeunavailableIt eeeo h beenobservedthat it must be grasped e n 1 I . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 64 k lf R N02618 of 2004 anr 9 that judiciaryis not on account of its powerto legalizeinjustice on technicalgrounds but becauseit is capable of injustice and 1S to do so 35 11 In theinstantcase theclaimofthe for the is not onlywelounded but the is undera 1 statutory to pay theenhanced to the as 0 as possibleTherefore in my opinionthe Stateshouldnot Ca I inslst the dismissalof the execution of the on the C5 ground of limitationand to escape from its statutory to pay the I to thelandeownerswhoselandhas beenacquired Z 12 In theinstantcase theland of the was acquired 111 C theyear 1979 The ReferenceCourt as well as theLeUersPatentBenchby I its dated 301 1989 enhancedthe It is 08 position thatthe enhanced hasnot beenpaidto the em thoughit was of the to pay the Z sameas as possible 0m 13 Now the anse if the Governmentdoesnot pay the or partof the as enhancedby the Reference Court or by the HighCourt or bythe Court and fails in its duty how the said amount Ca1l be recoveredby the landmownersfrom the GovemmentObviouslythe claimantsllandowners haveto file execution 4 application under Order 21 Rule 11 of the Code of Civil Procedureto enforcethedecreelawardpassedbytheReferenceCourt or the HighCourt 4 or theSupreme Court Under the LimitationAct 1963 no such application Cl be filed aRerthe expiryof 12 yearsofthe dateofthe decreelawardIn the instant case the execution were filed on 1332001 1 d m 6 n J . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 65 CR N02618 of 200485anr 10 Whetherthose were withinlimitation is thequestion which is to be answered The contentionsraisedby the leamed counsel for the thatthedatewhentheSLP hasbeendismissedshouldbe taken asthedateof starting pointof limitation cannot be becauseit 1S wellsettledthatthedoctrineofmerger is not in case ofdismissal ofSLP in liminebythe Court The pleaofthe leamedcounselfor the for exclusion of the time spentin the matter 0 0 beforethe Court under Section 14 of the Limitation Act also I C0 cannot be as in myopinionSection14 has no in the I case It cannot besaidthatfilingofa SLP beforethe Coun Z was initiating the beforea wrong forum with duediligence or C goodfaith Hence the periodspentby the in the matter before the Court cannot be excludedin the 06 periodoflimitation 14 On theotherhand leamedcounselfor the contends 7 Z thatin the presentcase the periodof limitationwill start running 8om the Om date dated3011989passed bytheLeuers PatentBench In my opinionthiscontentionalsocannot be in view of Section82 ofthe Code ofCivil Procedurewhich provides as underl 82e Execution of decree ll Where in a suit by or against theGovernmentor byor against a publicofficer in respectof any act to be donebyhim in his offlcial capacity a decreeis passedagainstthe Union of Indiaor a Stateor as thecase may be thepublicofficer such decree shall not be executedexceptin accordance with the provisions ofsubesection 29 Execution shall not be issued on any such decreeunlessit remains unsatisfiedfor tlperiod of 1 . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 66 R No2618 of 2004 anr e11 threemonths om thedateofsuch decree 3 The of subesections19and 62 shallapplyin relationto an orderor awardas theyapply in relationto a decreeifthe orderor awarde al is passed or madeagainst theUnion of India or a Stateor a publicofficerin respectofany suchact as aforesaidwhetherbya Court or 1 C byany other and 0 lo9 1S capableof beingexecuted under the C of this Code or of any otherlaw I for the time beingin force as if lt were a C5 decree 19 I This Section the elaborateprocedure which hasto be followed Z beforeexecutionof a decreeor awardagainst the Govemmentor a public C otYlcerAccording to the ofthis Section no decreelawardcan be I executed unless it remainsunsatisfiedfor the periodof three months 08 from the dateof such decreelawardThus if a speciftc timehas Vmo been givenin thedecreelawardthe executioncan bemadeaAertheexpiry Z ofthe saidtime but ifthere isno suchtime then the execution couldbe filed if thesaiddecreelawardremainsunsatisfiedfor theperiodof threemonthsThese implythatthelimitationperiodcannot start beforethe expiryof the said periodand no execution can be filed againsttheStateor its officersuntil and unlessthe saiddecreeremains unsatisfiedfor theperiodof threemonthswhich is beingcomputed before the dateofsuch decreeThus in my opinionno execution could be filed bythepetitioners within threemonthsofthe dateofdecreard 15 The OrissaHighCourt in Union ofIndia v Kisan Khandelwal AIR 1970 Orissa 137 while relyingupon the decisionof the Kerala High Court in StateofKerala vCesavan AIR 1966Kerala 104 has observedas . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document 67 CR No2618 of 2004 0 anr 12m underl In case of an executionof a decreeagainstthe Govemmentuntil there 1S with the of Section82 CPC the decreeis not lll an executablestageand as such the periodof limitationcan reallycommence after that stagehas 1 reachedUntil thenit can bestatedto beinchoateand Ct limitation cannot be pleadedUntil there 1S 0 with theprovision of Section82 CPC 0 the of limitationcannotarise in the case I C5 The underSection47 CPC on theground of limitationis thereforenot maintainable 91 I 16 In the instantcase if the starting pointof limitationis taken Z threemonthsafler the dateof decreelawardated3011989 passedbythe Letters Patent Bench then the execution filed by the I 08 on 133001 were within limitation In my opinionthe Courtwhile theexecution hasnot taken 3 intoconsiderationtheaforesaidposition of lavhile passing a totally none Z order Thereforethoseordersare whollyillegaland liable to be setaside 1 17 In view of the above discussion the revlslon are allowedandthe orderscled 1712004 passed bytheAdditional 1 District JudgeBathinda in both thepetitions are set aside The Courtis directedto decidetheexecution flled bythe on merits in accordancewith law within a periodof six months Oom the dateofreceipt ofcertified copy ofthis order t V 1 1 vkg JUDGE Il 0 Refer to Reporter . uma 2012.08.17 11: 44 Scanned True Copy of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:22 I attest to the accuracy and integrity of this document