Writ Petition No.3401 of 2006

16th April, 2007

Petitioner Counsel: Shri A. V. PATIL,Shri. V. D. GUNALE
Respondent Counsel: Shri. U. K. PATIL

Cases Cited:
Sunder Vs. Union of India, 2001(4) ALL MR 550 (S.C.)=(2001)7 SCC 211 [Para 6,7,9,12,17]
Gurpreet Singh Vs. Union of India, (2006)9 SCC 457 [Para 13]
P. V. George Vs. State of Kerala, 2007 ALL SCR 1114 : 2007 AIR SCW 826 [Para 15]

JUDGMENT

NARESH H. PATIL, J.:- Heard counsel appearing for parties.

2. Rule, returnable forthwith. By consent of parties taken up for hearing.

3. The petitioner's land was subjected to acquisition. The respondent No.3/Special Land Acquisition Officer, Jalgaon passed an award in respect of land Block No.87/A/1, admeasuring 81 Ares, situated at village Bhilakhed, Deoli Bhoras, Tq. Chalisgaon, Dist. Jalgaon. On the petitioner's motion a Reference under Section 18 of the Land Acquisition Act, 1894 (for short "the Act of 1894") was made. The Reference Court delivered judgment and award on 4th April, 2000. The State preferred an appeal bearing No.365 of 2004 against the said award, which was admitted by this Court on 22nd March, 2003 along with the companion group-matters.

4. The petitioner states that execution petition bearing No.287 of 2001 was filed in the Civil Court (Senior Division), Jalgaon. By an order dated 30th November, 2002 the Joint Civil Judge (Senior Division), Jalgaon passed following order :

"Perused the copy of Writ petition No.4269/02 preferred by D.H. In view of direction of Hon'ble High Court. Bench at Aurangabad dt.2-11-02 the bank guarantee furnished by D.H. for sum of Rs.8,25,507/- (Eight Lacs Twenty Five Thousand Five Hundred Seven Only) of United Western Bank, Branch Bhadgaon, Dist. Jalgaon in L.A.R.No.480/99 and Reg.Dar.No.287/01 is hereby stands revoked, the Reg.Dar. stands disposed of in part satisfaction. Inform the Bank accordingly by letter."

5. The petitioner was a party in Land Acquisition Reference No.480 of 1999 which was heard and disposed of along with other connected companion References. The operative portion of the judgment and order of the Reference Court requires to be stated hereinbelow :

"(12). In the above references, the Opponent/Govt. shall pay solatium @ 30% and component @ 12% per annum, on the amount of value of lands and trees, from the date of Section 4 notification of the L.A.Act, till the date of declaration of the Award.

(13). In the above references, the Opponent/Govt. shall pay an interest, on the amounts of value of lands and trees, component and solatium awarded by this Court, at the rate of 9 per cent per annum, from the date of taking possession for the first year, and thereafter, at the rate of 15 per cent per annum, till the realisation of the entire amount."

6. The petitioner filed an application dated 18th August, 2005 claiming benefits of interest on the amount of solatium and component in view of the judgment delivered by the Apex Court in the case of Sunder Vs. Union of India, (2001)7 SCC 211 : [2001(4) ALL MR 550 (S.C.)].

7. The State filed reply to the said application in which it was contended that the judgment and decree passed in favour of petitioner was passed prior to the pronouncement of the judgment and order by the Apex Court in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra). Therefore, in accordance with the opinion expressed by Law and Judiciary Department, it is informed that in the cases wherein the judgments and awards were passed prior to the declaration of the law by the Apex Court, such cases should not be reopened.

8. The petitioner places reliance on a communication made by Law and Judiciary Department, Government of Maharashtra, dated 10th February, 2005 (page No.48 of Paper-Book) wherein it is clarified by the Deputy Secretary, Revenue and Forest Department of Government of Maharashtra, to a query raised in this regard. The Deputy Secretary, while answering such query, had expressed following opinion :

"In view of Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts of the Government. However, the cases decided and finalized as per law prior to the decision of the case Sunder Vs. Union of India of the Supreme Court, may not be reopened"

9. The learned counsel Shri. Patil appearing for the petitioner states that in view of the judgment delivered by the Apex Court in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra), the petitioners are entitled to receive interest on solatium and component and the view adopted by the State Government and the reply filed by the State goes contrary to this judgment delivered in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra). The counsel further submits that on a fresh application filed by petitioner before the executing Court, no orders are being passed by the concerned Court.

10. The learned Assistant Government Pleader Shri. U. K. Patil submits that First Appeal filed by State against the subject-judgment and decree passed by reference Court is admitted by this Court though the impugned judgment and decree is not stayed by the High Court as the State is yet to prefer such an application for staying the operation of the judgment and decree. The learned Assistant Government Pleader submits that the execution petition filed by petitioner is already disposed of and in view of pendency of the appeal filed by State, it would not be permissible now for the petitioner to claim benefits under the judgment delivered by the Apex Court in the case of Sunder even by resorting to filing of fresh application for claiming such benefits.

11. We have considered the submissions advanced by the counsel appearing for contesting parties. Perusal of clause 12 and 13 of the judgment and order of Reference Court makes it explicitly clear that the Civil Court awarded interest on the amount of value of lands and trees, component and solatium at the rate of 9 per cent per annum from the date of taking over possession for the first year and thereafter at the rate of 15 per cent per annum till realization of entire amount.

12. The question raised by the State in the trial Court is as to whether the judgment and decree which was passed in this case prior to the declaration of law by the Apex Court in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra) would govern the case of petitioner and benefits could accrue to the petitioner. According to the State, the judgment delivered in the case of Sunder (cited supra) would apply prospectively and the subject-judgment and award passed in the case of petitioner was prior to the pronouncement of the judgment in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra). Therefore, petitioner was not entitled to claim interest on the solatium and component.

13. The controversy raised before us could be resolved by giving a reference to the case of Gurpreet Singh Vs. Union of India, (2006)9 SCC 457. The Apex Court considered the issue as to whether the awardee/decree-holder would be entitled to claim interest on solatium though it is not specifically awarded by the Court and in cases wherein interest is granted. It would be necessary for us to reproduce the conclusion reached by the Apex Court in paragraph 54 of the judgment, which reads thus :

". One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder, the awardee/decree-holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. It, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of judgment in Sunder (19-9-2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question."

4. The Apex Court has indicated the position in law by way of clarification in exercise of powers under Articles 141 and 142 of the Constitution of India."

15. We may refer to the case of P. V. George Vs. State of Kerala, (2007 AIR SCW 826 : 2007 ALL SCR 1114). The Apex Court observed in paragraphs 21 and 22 as under:

"21. The ratio laid down by this Court, as noticed hereinafter, categorically shows the effect of a decision which had not been directed to have a prospective operation. The legal position in clear and unequivocal term was stated by a Division Bench of this Court in M. A. Murthy Vs. State of Karnataka & Others [(2003)7 SCC 517] in the following terms:

"Learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in L. C. Golak Nath and Ors. Vs. State of Punjab and Anr. In Managing Director, ECIL, Hyderabad and Ors., Vs. B. Karunakar and Ors., the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while supersending the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta Vs. State of U.P. and Baburam Vs. C. Jacob). It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma's case No.II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitioners is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.

22. The effect of declaration of law, the rule of stare decisis and the consequences flowing from a departure from an earlier decision has been considered in great details by the House of Lords in National Westminister Bank Plc. Vs. Spectrum Plus Limited and others [(2005) UKHL 41] : [2005(3) WLR 58]. opining :

"8. People generally conduct their affairs on the basis of what they understand the law to be. This retrospective effect of a change in the law of this nature can have disruptive and seemingly unfair consequences. Prospective overruling, sometimes described as non-retroactive overruling, is a judicial tool fashioned to mitigate these adverse consequences. It is a shorthand description for court rulings on points of law which to greater or lesser extent, are designed not to have the normal retrospective effect of judicial decisions.

9. Prospective overruling takes several different forms. In its simplest form prospective overruling involves a court giving a ruling of the character sought by the bank in the present case. Overruling of this simple or pure type has the effect that the court ruling has an exclusively prospective effect. The ruling applies only to transactions or happenings occurring after the date of the court decision. All transactions entered into, or event occurring, before that date continue to be governed by the law as it was conceived to be before the court gave its ruling.

10. Other forms of prospective overruling are more limited and selective in their departure from the normal effect of Court decisions. The ruling in its operation may be prospective and, additionally, retrospective in its effect as between the parties to the case in which the ruling is given. Or the ruling may be prospective and, additionally, retrospective as between the parties in the case in which the ruling was given and also as between the parties in any other cases already pending before the Courts. There are other variations on the same theme.

11. Recently Advocate General Jacobs suggested an even more radical form of prospective overruling. He suggested that the retrospective and prospective effect of a ruling of the European Court of Justice might be subject to a temporal limitation that the ruling should not take effect until a future date, namely, when the State had a reasonable opportunity to introduce new legislation : Banco Popolare di Cremona Vs. Agenzia Entrate Ufficio Cremona (Case C-475/03. 17 March, 2005). Paras 72-88.

[See also Lord Rodger of Earsferry - A Time for Everything under the Law : Some Reflections on Retrospectivity [(2005)121 LQR 77]."

16. It is held by the Apex Court that it is for the Supreme Court to indicate as to whether the decision in question will operate prospectively. In other words , there shall be no prospective application, unless it is so indicated in the particular decision.

17. In the case of petitioner, the execution petition is disposed of in part satisfaction. We do not wish to enter into the question as to what remained to be satisfied in execution of the decree. We are dealing with the limited issue as to whether the law explained and declared in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra) is applicable to cases wherein judgment and decree is passed even prior to the pronouncement of judgment by Apex Court in the case of Sunder [2001(4) ALL MR 550 (S.C.)] (cited supra). In view of the clarification made by Apex Court in the case of Gurpreet Singh Vs. Union of India. We find that there is no ambiguity now for the trial Court to pass necessary orders in accordance with law and on the merits of each case.

18. We direct the executing court to pass necessary orders on its own merits and in accordance with law on the application filed by the petitioner.

19. The State is granted six weeks time to file Civil Application for seeking interim relief in First Appeal No.365 of 2004 and till the expiry of six weeks, the petitioner shall not press his application dated 18th August, 2005 pending before the executing court.

20. Rule made absolute in view of the directions and observations made by us as above.

Petition allowed.