Pratap Rao Krishnarao Phalke vs Krishi Upaj Mandi Samiti and Others

T.S. Doabia, J.

It is possible to record a finding that compensation determined by the Land Acquisition Collector (hereinafter referred to as the Collector) can be paid to the person who had lodged his claim u/s 9 of the Land Acquisition Act of 1894 (hereinafter referred to as Act) and compensation which is fixed by the Reference Court or by this Court under sections 18 and 54 of the Act can be claimed and paid to another person without seeking refund and laying any claim to the amount already paid to the person who had received the compensation from the Collector. This anomalous position is brought out in the present petition.

One Pratap Rao Phalke was treated as owner by the Collector and was also paid compensation. He did not take any step for enhancement. Instead, B. P. Singhal and his brother sought reference u/s 18 of the Act. The land for which compensation was paid to Pratap Rao Phalke was also included. There was enhancement in the market price. An appeal was filed u/s 54 of the Act. There was further enhancement by this Court. At the time of execution, Pratap Rao Phalke stepped in. He laid claim to the enhanced amount. S. P. Singhal contends that Pratap Rao Phalke having not filed a petition u/s 18 of the Act has lost all rights to the enhanced amount. He does not lay any claim to the amount which was paid to Pratap Rao Phalke by the Collector. It is this abandonment of claim qua original amount and laying claim to enhanced amount which is the issue in these two petitions. The brief facts which have led to the filing of these two Civil Revisions (Pratap Rao Phalke Krishi Upaj Mandi and 3 others) Civil Revision No. 69 of 1997 and (Bhagwati Prasad Singhal v. Pratap Rao Phalke and Ors.) Civil Revision No. 96 of 1997 be noticed as under :

The State of Madhya Pradesh issued a notification in terms of section 4 and thereafter u/s 6 of the Act. The land was acquired for the benefit of Krishi Upaj Mandi Samiti, Gwalior. There is no dispute so far as the validity of the acquisition proceedings are concerned. These proceedings were taken in the Sixties. Compensation payable to the various land owners was determined by the Collector. It is not in dispute that Pratap Rao Phalke was treated as owner of the land measuring 20 bighas and 8 biswas. He was paid compensation amounting to Rs. 8,533/-. This compensation was paid on 2-7-1965. The further fact is that some of the parties were unsatisfied regarding the amount of compensation assessed by the Collector.

References were sought u/s 18 of the Act. One such reference was sought by Shri B. P. Singhal petitioner of Civil Revision No. 96 of 1997. (The above petitioner also figures as respondent No. 2 in Civil Revision No. 69 of 1997). This reference was referred to the District Judge, Gwalior. It was registered. Before noticing the case number, one other factor may also be taken note of. This is that Pratap Rao Phalke was claiming ownership in the land identifiable by survey Nos. 5, 25, 27, 28, 29, 31 and 32. This land also became part of reference. This is apparent from Annexure P/2 (internal page No. 3). The case number so far as this land and some other land is concerned is 7 of 1967. In the reference, this land was being claimed as owned by Gyasibai mother of the petitioner. This is apparent from the statement contained at page 3. It is, however, stated that this Ghasibai had since died and whatever rights vested in her came to vest in Ram Swaroop Singhal.

The reference was decided.

There was enhancement in the compensation. This enhancement was made on 29th of September, 1977.

An appeal was referred by petitioner Bhagwati Prasad Singhal and his brother Ramswaroop Singhal in this Court. This came to be registered as First Appeal No. 24 of 1978. It was decided on 2nd of February, 1990. Further enhancement was made by this Court in the above appeal preferred u/s 54 of the Act. The Krishi Upaj Mandi Samiti feeling aggrieved went to the Supreme Court of India. The Supreme Court of India remanded the matter to this Court. After the remand, the matter was redecided on 20th of May, 1991. The matter attained finality so far as reference proceedings were concerned.

In the meantime, it appears that Pratap Rao Phalke came to know about the pendency of the proceedings for enhancement. He filed an application before the executing court. The further facts which are required to be taken note of are that after decision was given by the District Judge, on a reference application preferred u/s 18 of the Act, the enhanced amount was given to them. These applications were preferred in 1978-79. The further fact is that after 1996 when this Court redecided this appeal on 30th of July, 1991, applications were again preferred seeking execution. This time, execution was preferred only by Shri B. P. Singhal the petitioner of C. R. No. 96 of 1997. In this, an objection was taken by the Krishi Upaj Mandi Samiti that the petitioner is not entitled to the payment of the entire compensation. These objections were rejected. The Krishi Upaj Mandi Samiti filed a revision in this Court. The number of this is 349 of 1995. This revision petition was decided by this Court on 20-4-1995. It be further seen that an intervention application was filed by Pratap Rao Phalke. He also claimed the amount. This was rejected. Following observations were made by this Court:

"One of the alleged claimants Pratap Rao Phalke wanted to become intervenor in this revision. He also claims to be one of the claimants. His reference was not considered by the Court of Additional District Judge. In this revision he cannot be permitted to intervene. If he so aggrieved by the award or any order passed by the executing Court he may seek his remedy there. His application for permitting him to intervene in this revision is rejected."

When the matter was taken up by the executing court, objections were preferred by Prataprao Phalke. Those objections stand dismissed. The Court has recorded a finding that as executing court it had no jurisdiction to go beyond the award and would pay the compensation as per the award. To repeat, the view expressed by the executing court was that it cannot go beyond the award. It is this view which is being challenged in this court by Prataprao Phalke in Civil Revision No. 96 of 1997. The second revision petition preferred merely points out that in spite of the fact that the petitioner has been following this litigation right from 1960, the amount has not been paid to him.

The only question which is required to be decided in this revision petition is as to whether Prataprao Phalke is entitled to claim compensation of the land and whether he could be non-suited because he did not seek reference u/s 18 of the Act.

Before going into this aspect of the matter, the facts may again be recapitulated.

(i) that there was acquisition proceedings initiated by the State of M. P. by issuing notification under sections 4 and 6 of the Act. This happened in the year 1960;

(ii) Prataprao Phalke was treated as a land owner of survey Nos. 5, 25, 27, 28, 29, 31.

He was paid compensation for this. Amount of compensation which was paid to him was Rs. 8,533/-. The area of the land was described as 20 bighas 2 biswas. This compensation was paid on 2nd of July, 1965;

(iii) that, Prataprao Phalke did not file any application u/s 18 of the Act seeking enhancement;

(iv) that an application for enhancement was preferred by Shri B. P. Singhal petitioner of-civil revision No. 69/97 and also by his brother Ramswaroop Singhal;

(v) in reference No. 7/67, the description of the land regarding which enhancement to be made was described as survey Nos. 5, 25, 27, 29, 31 and 32, 140, 30, 36, 35, 38, 39, 43 and 138, measuring 57 bighas 4 biswas;

(vi) that the above survey numbers do include the land regarding which compensation was given to Prataprao Phalke by the Collector;

(vii) Prataprao never filed any application either u/s 18 or an appeal u/s 54 of the Act. He stepped in only when a civil revision bearing No. 349 of 1995 was decided on 20-4-1995 was filed.

The further fact which has been pressed into service is that in the claim petition the stand taken was that Prataprao Phalke was not the owner and Shri B. P. Singhal, his brother and the mother are entitled to compensation. The requisite assertions have been made in para 16 of the reference application. The reference Court did not record any finding as to whether Prataprao Phalke was the owner of the land or not. All that was observed is that Prataprao Phalke was not entitled to any compensation, because, he had not applied for enhancement of compensation.

If above be the factual position, then it becomes apparent that something has been said against Prataprao who was not party to the litigation in the reference court i.e. District Judge, Gwalior. The issue to be examined is as to whether under these circumstances anything said against him can be taken as a final verdict. If an order is passed against a person who is not party to it, whether he is bound by the same. In other words the question which would be required to be gone into is as to whether a person who is not a party to a lis and something is said against his interest then the judgment, decree, order or award would be a nullity or not.

Before dealing with this aspect of the matter, it would be apt to serialise the contentions which have been raised by Shri B. P. Singhal petitioner of civil revision No. 96 of 1997. These are :

(i) that Prataprao Phalke never raised any objection in terms of section 9(2) of the Act. All that, according to him he stated was that he was entitled to market rate. As per the petitioner this is no claim as envisaged by section 9(2) of the Act;

(ii) that after the State took possession of the land Prataprao Phalke ceased to have any right, title or interest in the land. As per Shri B. S. Singhal all lands came to vest in the State Government free from all encumbrances and, therefore, nothing remained with Shri Prataprao Phalke to further agitate the matter;

(iii) that after the award is given and possession is taken it becomes conclusive regarding the matters visualised by sections 11 and 12 of the Act,

(iv) that Prataprao Phalke had accepted the award and therefore, he was not within his rights even to seek reference. With a view to elaborate this, reliance is also being placed on section 30(2) of the Act. It is sought to be contended that if award is accepted without protest then it attains finality u/s 30(2) of the Act;

(v) that if a right holder does not file any objection then he is not entitled to any amount which is more than what is awarded by the Collector. Reliance is placed on section 25(2) of the Act.

(vi) That, the matters which are being agitated now cannot be agitated in view of the decision of this court in the appeals referred to above and in view of the decisions given by this Court in Civil Revision No. 349 of 1997;

(vii) that Prataprao Phalke is not a party in the execution proceedings and he has no right to file any objection;

(viii) that the executing court cannot go beyond the award given by the reference court and by this court under sections 18 and 54 of the Act respectively;

(ix) that the award given by the reference Court had attained finality. This is because an appeal was preferred by the Mandi Samiti in the Supreme Court of India. That decision is reported as Krishi Upaj Mandi Samiti Vs. Ashok Singhal and others, . According to the petitioner, in these circumstances, the award given by the reference court had attained finality;

(x) that, the State of M. P. had preferred two appeals against the award given by the reference court. Those appeals were also dismissed. The number of those appeals are 1/78 and 2/78 decided on 30-7-1991;

(xi) the decision given in C. R. No. 349/95 operates as res judicata against Prataprao Phalke;

With a view to advance the arguments raised by the petitioner reliance is being placed on the following decisions :

(i) Shyamacharan Raghubar Prasad Vs. Sheojee Bhai Jairam Chattri and Another, , is a decision which has been relied on with a view to advance the argument that where a decree is in conformity with the direction of the High Court, then no notice is required to be given before passing the decree.

(ii) Moolchand and Others Vs. Maganlal, , is being relied upon with a view to advance the arguments that decree given on the basis of unregistered award cannot be questioned as a nullity in execution proceedings;

(iii) Collector Vs. Amin Chand, , is a decision for the proposition that person not applying for reference even though brought before the Court cannot ventilate their grievances against the award. It was further observed that in case of co-owners having distinct and specified share in property each one of them must ask for reference.

(iv) V. Ramaswami Ayyangar and Others Vs. T.N.V. Kailasa Thevar, , is being relied on to advance the argument that the duty of an executing Court is to give effect to the terms of the decree. It has no power to go beyond its terms.

(v) Land Acquisition Officer Vs. Shivbai and others, , is being relied upon with a view to contend that the claimants who received compensation under protest and who made the application u/s 18(1) alone are entitled to seek reference. In the above case, a notification was issued in August, 1965. The amount of compensation was received under protest on 25th of November, 1965. Possession was taken on 22nd of November, 1965. In the above case, it was observed that all the parties arrayed therein cannot claim higher compensation by process of reference.

(vi) Bheru Singh Vs. Ramgopal, , has been relied on with a view to contend that if a decree is obtained, the executing court may refuse to execute. But, if the alleged illegality is in earlier litigation, he cannot question the legality of the decree at the stage of execution.

(vii) Krishi Upaj Mandi Samiti Vs. Ashok Singhal and others, , has been relied upon with a view to contend that the award given by the Additional District Judge became final in view of the decision given by the Supreme Court in the aforementioned case. It be seen that it dealt with one aspect of the matter. The only question which was decided was whether the Krishi Upaj Mandi for whose benefit acquisition is made is a person interested or not.

(viii) State of West Bengal Vs. Kesson Chand Kocher and Others, , is a case where award was made in favour of landlord and tenant. Landlord filed an application for reference disputing the amount of compensation and also claiming entire amount for himself to the exclusion of the tenant. The compensation was enhanced. It was observed that since the tenant did not file any application challenging Collector''s order, he was not entitled to any part of enhanced amount which was allowed by the Tribunal.

(ix) Reliance is also being placed on M.C.C. (MM) 137 of 1995 decided on 1st of September, 1995. In that, Krishi Upaj Mandi Samiti, Gwalior filed a review petition in which is was sought to be contended that the claimants are entitled to compensation for land measuring 23 bighas 4 biswas and not 57 bighas and 5 biswas. This M. M. was dismissed as barred by limitation.

When the aforementioned order had been dictated on 16th of September, 1997, Shri B. P. Singhal, petitioner of civil revision No. 96 of 1997 pointed out that one Shri Ashok Singhal remains unserved. The hearing of this petition was adjourned. The matter was taken up on 17th of September, 1997. Dasti process was directed to be taken. Special process was also directed to be taken. This process was taken. The hearing of this petition was adjourned to 29th of September, 1997. No one has put in appearance on behalf of Ashok Singhal.

In the order passed on 17th of September, 1997. Shri Singhal was given opportunity to file written submissions also. The written submissions have been filed today. These basically reiterate what was said when oral arguments were addressed. Thus, the toal picture which has been presented is as under.

Notification u/s 4 of the Act was issued on 15th of July, 1960. The total land was 57 bighas 5 biswas. This land was acquired for the benefit of Krishi Upaj Mandi Samiti, Gwalior. The Land Acquisition Collector, assessed the compensation. Compensation for part of land said to be owned by Pratap Rao Phalke amounting to Rs. 8,533/- was paid to him (Shri Pratap Rao Phalke). He accepted this amount. He did not seek any reference u/s 18 of the Act. Reference was sought by Shri B. P. Singhal on his behalf and on behalf of his brother. In the reference, it was mentioned that some land was owned by Smt. Gyasobai also. Shrimati Gyasobai had died in the year 1964. The reference included the land qua which compensation was given to Prataprao Phalke. The reference Court enhanced the compensation. Shri B. P. Singhal and his co-claimant filed an appeal u/s 54 of the Act. This appeal was registered as First Appeal No. 24 of 1978. Compensation was enhanced. The Krishi Upaj Mandi Samiti took the matter to the Supreme Court. The main argument which was raised by Krishi Upaj Mandi Samiti was that it was also a person interested and it was within its rights to challenge the quantum of compensation. That plea of the Krishi Upaj Mandi Samiti was accepted by the Supreme Court of India. This decision is reported as Krishi Upaj Mandi Samiti Vs. Ashok Singhal and others, . The matter accordingly, came to the High Court. The High Court gave decision after the judgment was given by the Supreme Court. This happened on 20th of May, 1991. Compensation stood enhanced. When execution was filed by Shri Singhal, Krishi Upaj Mandi Samiti took an objection that Shri Singhal is not entitled to compensation vis-a- vis that much land regarding which compensation was initially paid to Shri Phalke. This was rejected. A Civil Revision was filed. This bears number C. R. No. 349 of 1995. Precise objection was taken. This plea of Krishi Upaj Mandi Samiti was rejected on 20th of April, 1995. The relevant portion so far as it affects the rights of Shri Prataprao Phalke has already been referred to above. Thereafter, Krishi Upaj Mandi Samiti also filed a miscellaneous application seeking review of the judgment given by the High Court. That miscellaneous application came to be dismissed on 11th of September, 1995 with costs.

After the aforementioned exercise was over, Shri Pratap Rao Phalke moved the executing court. He took shelter behind the observations made by this Court in Civil Revision No. 349 of 1995. The Executing Court however, refused to look into the objections filed by Shri Phalke. This was on the ground that it has no jurisdiction to go behind the award which was given by the reference court and by this Court under sections 18 and 54 of the Act, respectively. It is in these circumstances, the revision petition has been preferred by Shri Phalke. This bears civil revision No. 96 of 1997.

The arguments which have been raised by Shri Singhal have already been noticed above. In addition reference is now being made to some other judgments. One such judgment is of the Punjab and Haryana High Court reported as State of Punjab v. Smt. Harcharan Kaur, AIR 1975 P&H 66. Shri B. P. Singhal, petitioner, has also placed reliance on the decision reported as Smt. Ambey Devi Vs. State of Bihar and another, and L.N. Venkatesan Vs. State of Tamil Nadu and others, . These judgments are being relied upon for the same proposition which has been noticed above that is a person who does not file any reference is not entitled to any compensation.

In a nutshell, the argument raised by Shri Singhal that as Shri Phalke had not sought any reference u/s 18, therefore, he is not within his rights to claim any compensation. It is alleged that all rights, title and interest which vested in the erstwhile owner came to an end and the land came to vest in the State free from all encumbrances. It is basically this argument, which is further sought to be supported by raising an argument that the award given had attained finality and it should be given effect to as it is.

Even though the arguments which have been raised by Shri Singhal have been sub-divided into several sub-categories, basically the following points require to be gone into in this petition. These are :

(i) Whether the rights of Pratap Rao Phalke which were found to be good by the Land Acquisition Collector before section 18 proceedings can be ignored;

(ii) Whether any notice was given to Shri Phalke when the above aspect of the matter was directly or indirectly considered by the reference court;

(iii) Whether there exists absolute bar curtailing the powers of the executing court to not to go behind the decree or the award,

(iv) Whether Prataprao Phalke has any remedy available to him now?

It be seen that before reference Shri Prataprao Phalke was paid compensation vis-a-vis the survey numbers which are noticed in paragraph 3 of this order. He did not file any application seeking enhancement. The very khasra numbers regarding which compensation was paid to Shri Phalke was being claimed by Shri B. P. Singhal and his brother. If this be the situation, then any verdict in favour of Shri Singhal or his brother vis-a-vis the aforementioned survey numbers would amount to obliterating and overlooking the ownership of Shri Phalke in the aforementioned survey numbers. If this was to be done, then it was necessary to array him as a party in section 18 proceedings. If this was to be done then at least a notice should have been given to him. It was not the case that the amount was wrongly paid or any effort has been made by the Land Acquisition Collector to recover the amount of Rs. 8,533/- from Shri Phalke on the ground that he was not entitled to the same. He was infact, recorded as an owner in the revenue papers. It was precisely for this reason, his entitlement to compensation was determined. As indicated above no notice was given to him and therefore, any proceedings taken against him without notice should not bind him.

Shri Singhal has, however, pointed out that in the reference u/s 18 of the Act, there is an allegation in one of the paragraphs that is paragraph No. 16 vis-a-vis Shri Pratap Rao Phalke. Some reference in the paragraphs would not lead to the conclusion that a notice was given to Shri Prataprao Phalke. If this be the situation, then an order which has been passed without affording opportunity to a person and whose property rights were sought to be extinguished and overlooked would, in my opinion, be a nullity.

The position of law in this regard be noticed as under :

Generally speaking there are two types of judgments/orders, namely, judgments in rem and judgments in personam. The former binds the whole world whereas the latter binds only the parties. The judgments/orders in rem are the ones passed by the authorities or the courts exercising the jurisdiction such as insolvency, admiralty and matrimonial.

The jurisdiction exercised by the authorities under the Land Acquisition Act is not of such a nature that the orders passed under it would bind the public at large. Obviously they are the judgments/orders in personam. The fundamental principle as to their nature is that they only bind the parties to it. So far as the person who is not a party, the order in the eye of law is ineffective and non est and as such he is under no obligation to take proceedings to get it set aside. Strictly speaking the term ''void'' or ''voidable'' when used qua a judgment or an order would be relevant when a person is a party in the judgment or the order because it is only such a person who can take proceedings to get it declared void or set aside as the case may be. On the other hand a person who is not a party would have no right to get the order set aside or get it declared void as the order would be binding on the persons who are party. His remedy would be only to get a declaration that the order was ineffective and non est so far as he is concerned.

Somewhat similar question arose in State of Punjab v. Amar Singh AIR 1974 SC 904. What happened there was that there was a big landowner. On the prescribed date persons claiming themselves to be tenants of the area other than the reserved area of the landowner filed an application u/s 18 of the Punjab Security of Land Tenements Act, 1953 for its purchase and the same was allowed by the Assistant Collector the competent authority. On the basis of the sale certificate the said tenants claimed themselves to be the owners of the area purchased by them before the Collector during the proceedings concerning the determination of the surplus area of the landowner. One of the pleas raised on behalf of the State was that it being not a party to the proceedings u/s 18 of the Punjab Act, was not bound by the order of the prescribed authority allowing the purchase to the tenants of the area which but for that purchase formed part of the surplus area of the landowner. It be noticed that under the provisions of section 18(2) of the Punjab Act, when an application is made in writing to the Assistant Collector, by a tenant for purchasing the area of a big landowner, he is required to issue notice to the landowner and to all other persons interested in the said land. If the area sought to be purchased by the tenant does not form part of his permissible area or he had been settled thereon after the appointed date, such area would form part of the surplus area and the State would be obviously an interested party entitled to notice under the said section before the purchase application is allowed. The Supreme Court in Amar Singh''s case (supra) held that the State, which was seriously prejudiced by the order but was not a party to it, would not be bound by that order. It was observed :

"An order like Annexure ''a'' ordinarily binds the parties only and here the State which is the appellant is seriously prejudiced by that order but is not a party to it. Therefore, it cannot bind the State proprio vigore.

The position in this case is similar. Shri Phalke being not a party to the reference proceedings would not be bound by the same.

It is also settled law that the question as to whether a decree is a nullity or not is a matter regarding which executing court can express its opinion. The general proposition is that executing court is bound by the decree, but if the decree is a nullity, then nothing debars the executing court to go into that question. It is also settled position of law that if a decree is a nullity then, it can proceed to determine the objections taken by the objector. The position of law in this regard may again be noticed :

In Lala Ram Swarup and Others Vs. Shikar Chand and Another, it was held :

"Likewise, in the absence of such a statutory provision, if it is held that the proceedings before the appropriate authorities contemplated by section 3 are in the nature of quasi judicial proceedings and they must be tried in accordance with the principles of natural justice, and it is shown that in a given case, an order has been passed without notice to the party affected by such order it would be open to the said party to contend that an order passed in violation of the principles of natural justice is a nullity and its existence should be ignored by the Civil Court. Such a plea cannot, in our opinion, be excluded by reason of the provisions contained in section 3(4) and section 16 of the Act."

In Sayed Mahbub Hussain Shah v. Anjuman Imdad Qarza AIR 1942 Lah. 129, it was held that where a person is not served with a notice of the proceedings, the award passed therein against him is a nullity and not capable of execution.

It be seen that if the determination by a Tribunal depends upon following the principles of natural justice the decision given by it would be treated as a nullity in case it failed to follow these principles. An aggrieved party would in that case be not under an obligation to have the decision set aside in appeal. It would be open to it to challenge its validity at the stage of execution and even in collateral proceedings, as held by their Lordships of the Supreme Court in Kiran Singh and Others Vs. Chaman Paswan and Others, . The Courts, when they talk of "error of jurisdiction", they do not deal with absolutes but with the opinions of human beings. Laws are framed for the common man and they should be so interpreted as to muster the faith and respect of the common man in the laws of the land. I have no doubt in my mind that the denial of right to the litigant to question the validity of an order given in contravention of the principles of natural justice, in collateral proceedings like execution would be viewed with serious apprehensions even by a" man in the street.

In the Bombay Gas Co. Ltd. Vs. Gopal Bhiva and Others, , this principle was extended even to the proceedings u/s 33 of the Industrial Disputes Act. It was observed that there is no doubt that if a decree put in execution is shown to be a nullity, the executing Court can refuse to execute it. The same principle would apply to proceedings taken u/s 33C(2) and the jurisdiction of the Labour Court before which the said proceedings are commenced. Industrial Tribunals which deal with industrial disputes referred to them u/s 10(1)(d) of the Act are in a sense, Tribunals with limited jurisdiction. They are entitled to deal with the disputes referred to them, but they cannot travel outside the terms of reference and deal with matters not included in the reference, subject of course, to incidental matters which fall within their jurisdiction.

Another instance, where the determination by a Tribunal was held to be a nullity, is provided by a decision of the Supreme Court in Kaushalya Devi and Others Vs. Shri K.L. Bansal, , which case arose out of the Delhi and Ajmer Rent Control Act. Section 13 of the said Act enjoined upon the Court to satisfy itself about the existence of the grounds of eviction. The parties entered into a compromise in terms of which a decree was passed in favour of the plaintiff by the Court without satisfying itself about the existence of the grounds of eviction. The Court held :

"In Bahadur Singh''s case, Civil Appeal Nos. 2468 of 1966, Dt. 16-10-1968 (reported in (1969) 1 SCWR 51, this Court held that the decree passed on the basis of an award was in contravention of section 13(1) of the Act because the Court had passed the decree in terms of the award without satisfying itself that the grounds of eviction existed. Bachawat, J., speaking for the Court, observed that on the plain wording of section 13(1) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution. This Court, accordingly, declared inter alia, that the decree in so far as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed."

A decision rendered by a Tribunal in disregard of its statutory duty was regarded as a nullity.

The laws of procedure are proverbially said to be the handmaids of justice. A Court of law should, as far as possible simplify the rules of procedure so that the parties arrayed before it can be administered speedy and effective justice instead of being forced to knock at the doors of the Court again and again. Even if the objection regarding the violation of the statutory rules based on the rules of natural justice were to be held to be unentertainable in the execution proceedings the executing Court could have invoked the provisions of section 47 of the CPC by converting the proceedings into a suit. See : Sayed Mahbub Hussain Shah''s case AIR 1942 Lah. 129.

Therefore, I am of the opinion that in the present case, Shri Prataprao Phalke was well within its rights to contend before the executing Court that the judgment was a nullity as some order has been passed to which he was not a party and by which order his property rights have been extinguished. Obliterating of all his property rights without affording opportunity of hearing was a serious matter and this aspect of the matter should have been gone into by the executing Court. Failure to do so would render the order passed by it liable to be quashed. The executing court would as such decide the following issues :-

(i) Whether Shri Prataprao Phalke was a party to the proceedings or any notice of the proceedings which were taken u/s 18 of the Act was given to him?

(ii) If a notice was not given then obviously the award would not bind Shri Phalke?

The above is one aspect of the matter. The other aspect of the matter is that if Shri Phalke is found to be the owner then Shri Singhal would not be entitled to claim any enhancement regarding the land qua which his ownership is not established. Therefore, this question is also to be gone into by the executing court.

The argument that after the award is given the ownership rights come to an end therefore, Shri Phalke cannot seek any enhancement is again an argument which cannot be accepted. The effect of the statutory provisions which lay down that rights, title and interest which vested in the erstwhile owner would come to an end and the land would come to vest in the State free from all encumbrances is limited. This docs not take away the rights of a person to claim enhanced compensation. The only effect of the aforementioned situation is that the land is free from all encumbrances but is subject to the rights of enhancement which the Act confers itself.

The question as to whether Shri Prataprao Phalke is not entitled to enhanced amount because, he had not sought any reference, may also be examined.

The position of law as it existed before amendment of the Land Acquisition Act that is Act No. 68 of 1984 was to the effect that a claimant not filing any objection is not entitled to any enhancement. The Parliament in its wisdom has added section 28A to the Act. This section gives a right to a person to seek enhanced compensation even if he has not gone to the reference Court. He can bring to the notice of the authority who is to pay enhanced compensation vis-a-vis other co- owners that he should be treated similarly. Therefore, Shri Phalke would have right to claim compensation. The judgments which have been cited by Shri Singhal are with regard to law as it existed before amendment in 1984 and therefore, they have merely been noticed and not being commented upon. As to whether, Prataprao Phalke is able to bring his case within the forecorners of section 28A is of course to be decided by the authorities, where they are so approached.

Another argument which has now been raised is that Land Acquisition Act, 1894 is a special provision and therefore, a claimant has not been given a right to intervene in the proceedings and therefore, he is not entitled to interfere in execution proceedings. I am of the opinion that Shri Phalke is not a stranger to the litigation. His claim was found to be correct by the initial authority. He was allowed compensation of Rs. 8,533/-. This was paid to him as he was taken to be the owner. No proceeding has been initiated to recover this amount or seek the declaration or direction that he was not entitled to the amount received by him. He being not a stranger and being a person interested would be at liberty to resort to his remedies and is well within his rights to enforce his rights u/s 28A of the Act.

As a matter of fact, the argument which has been advanced would lead to unjust results. The person who is found to be owner of the land in question would be deprived of the compensation and a person who is not found to be owner by the Land Acquisition Collector would be awarded compensation. Thus, the following issues are also required to be gone into :

(i) Whether Shri Phalke is entitled to the amount in question;

(ii) Whether Shri B. P. Singhal is entitled to claim this amount by treating this property as his own.

It is worthwhile at the sake of repetition to mention here that no claim has been made by him or by State that the amount which has been paid to Shri Phalke was wrongly paid.

The petitioner would be at liberty to move to the Reference Court also and to bring all these things in the notice of the Reference Court i.e. Dist. Judge, Gwalior that is he being not a party to the reference proceedings nothing said against him should be taken final. He may seek such relief as may be deemed proper. Civil Revision No. 69 of 1997 is, is accordingly allowed. Civil Revision No. 96 of 1997 is obviously rendered infructuous and disposed of as such. There would be no order as to costs.