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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NOS.771/2011, 1034/2011, 1076/2011,
1788/2011, 1793/2011, 1794/2011 & 1797/2011
---------------------------------
WRIT PETITION NO.771/2011
PETITIONER :- Madhavrao S/o Krishnarao Zade,
Aged 73 years, Occ.: Agriculturist,
ig R/o Champanwadi, Post, Tq. and Dist.
Yavatmal.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector, Yavatmal.
3. The Land Acquisition Officer, Waghadi
Project, Yavatmal, District Yavatmal,
Minor Irrigation Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1034/2011
PETITIONER :- Padmakar S/o Mahadev Kawale,
Aged 48 years, Occ.: Agriculturist,
R/o Saikheda (Bk.), Tahsil and District
Yavatmal.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
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2. The Collector, Yavatmal.
3. The Land Acquisition Officer, Waghadi
Project, Yavatmal, District Yavatmal,
Minor Irrigation Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1076/2011
PETITIONER :- Shri Madhukar Dattuji Kawle,
Aged 65 years, Occ.: Agriculturist,
R/o Saikhada (BK.), Post Yelabara,
Tq. and Dist. Yavatmal. appointed PoA
ig Mr.Ravindra Madhukar Kawle.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector, Yavatmal.
3. The Land Acquisition Officer, M.I.W.
No.1, (Waghadi Project), Yavatmal,
District Yavatmal, Minor Irrigation
Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1788/2011
PETITIONER :- Shri Ashok Vishwanath Zade,
Aged 52 years, Occ.: Agriculturist,
R/o Daheli, Post Yelabara,
Tq. and Dist. Yavatmal.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
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2. The Collector, Yavatmal.
3. The Land Acquisition Officer, M.I.W.
No.1, (Waghadi Project), Yavatmal,
District Yavatmal, Minor Irrigation
Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1793/2011
PETITIONER :- Babaji @ Balaji S/o Shamrao Nival,
Aged 75 years, Occ.: Agriculturist,
R/o & Post Yelabara,
ig Tq. and Dist. Yavatmal.
...VERSUS...
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector, Yavatmal.
3. The Land Acquisition Officer, Waghadi
Project, Yavatmal, District Yavatmal,
Minor Irrigation Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1794/2011
PETITIONER :- Shri Vinayak Kashinath Zade,
Aged 57 years, Occ.: Agriculturist,
R/o Daheli, Post Yelabara,
Tq. and Dist. Yavatmal. appointed
Power of Attorney
Mr.Manjit Vinayak Zade.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
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2. The Collector, Yavatmal.
3. The Land Acquisition Officer, M.I.W.
No.1, (Waghadi Project), Yavatmal,
District Yavatmal, Minor Irrigation
Work No.1 Yavatmal.
WITH
WRIT PETITION NO.1797/2011
PETITIONER :- Ramchandra S/o Bapurao Mangam,
Aged 57 years, Occ.: Agriculturist,
R/o Saikheda (Bk.), Tahsil and District
ig Yavatmal.
…VERSUS…
RESPONDENTS :- 1. The State of Maharashtra, through its
Secretary, Revenue and Forest Department,
Mantralaya, Mumbai.
2. The Collector, Yavatmal.
3. The Land Acquisition Officer, Waghadi
Project, Yavatmal, District Yavatmal,
Minor Irrigation Work No.1 Yavatmal.
—————————————————————————————————–
Shri S. R. Deshpande, learned counsel for the petitioners.
Shri A. D.Sonak, learned Asstt.Govt. Pleader with
Ms T. Khan, learned Asstt. Govt. Pleader for the respondents
—————————————————————————————————–
CORAM : R. M. SAVANT J.
DATED : 01.07.2011
O R A L J U D G M E N T
1) Rule with the consent of the parties made returnable forthwith and
heard.
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2) The above writ petitions involved identical facts and common
questions and are therefore heard and disposed of together.
3) The petitioners in the above petitions are aggrieved by the order
dated 10th November, 2010 passed by the learned 3rd Joint Civil Judge,
Senior Division, Yavatmal, by which the execution application filed by the
petitioners for execution of order of this Court dated 18th October, 2004
came to be rejected on the ground that the order of this Court passed in a
writ petition could not be executed by the trial Court and that the parties
can avail of appropriate remedy for the implementation of the order of
this Court passed in a writ petition.
4) The facts in brief can be stated thus.
Petitioner Madhavrao in Writ Petition No.771/2011, which is the
lead matter, was the owner of Survey No.1/1, area admeasuring 1 hectare
87 ares situated at Wagada village, Taluka and District Yavatmal. The
lands of the petitioners in the companion writ petitions are also from the
same village. The petitioner in the above petition and the petitioners in
the companion writ petitions would be referred to hereinafter as the
petitioners. It appears from the record that on 11/08/1978 the Land
Acquisition Officer passed an Award and granted compensation at the rate
of Rs.3,000/- per hectare in respect of the lands of the said village.
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Aggrieved by the compensation offered by the Land Acquisition Officer by
the said Award, some of the land owners from the said village filed
reference applications under Section 18 of the Land Acquisition Act before
the Civil Court amongst which, reference was L.A.C. No.190/1988 filed by
one Shri Manik. The Reference Court by its judgment and order dated
17/04/1990 enhanced the compensation to Rs.18,000/- per hectare along
with the commensurate statutory benefits to which the land owners were
entitled. The petitioners herein became aware of the said judgment dated
17/04/1990 passed in the said Land Acquisition Case No.190/1988 and
the petitioners thereafter filed an application under Section 28(A) of the
said Act. The Special Land Acquisition Officer, Yavatmal on receipt of the
said application agreed to grant the enhanced compensation to the
petitioners as per the judgment of the Civil Court in the said Reference, by
the letter dated 21/11/1991, the Land Acquisition Officer agreed to pay
the enhanced compensation by 31/01/1992. On non receipt of the
enhanced compensation, the petitioners were constrained to file writ
petition being numbered as Writ Petition No.917/1992 in this Court. This
Court directed the respondents to make the payment of the enhanced
compensation dated 29th April, 1992. In spite of the said judgment dated
29/04/1992, passed in the said Writ Petition No.917/1992, no
compensation was paid, the petitioners in the above petitions, therefore,
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had filed contempt petition under Section 11 of the Contempt of Courts
Act. The said contempt petition was registered as Contempt Petition
No.173/1992. In the interregnum, the respondents herein filed a Review
Application for review of the said judgment dated 29/04/1992 passed in
Writ Petition No.917/1992. The said Review Application came to be
registered as Miscellaneous Civil Application No.259/1992. The said
Contempt Petition No.262/1992 and Miscellaneous Civil Application No.
259/1992 were heard together and disposed of by common order dated
14/10/1992 whilst the Review Application was dismissed, in so far as the
Contempt Petition was concerned, the respondents were directed to
release the amount of enhanced compensation as per the order dated
29/04/1992 from the date of the said order. In spite of the said direction
issued, the respondents did not comply with the said order passed in the
Contempt Petition. The petitioners, therefore, were once again
constrained to file another contempt petition, which was numbered as
Contempt Petition No.292/1992 and this Court by order dated
29/04/1993 was pleased to dispose of the said Contempt Petition by
saddling cost on the respondent No.2, Collector and issuing direction that
the said order to be complied within 15 days.
5) The matter did not rest there, the petitioners were again
constrained to file Writ Petition No.1695/1996 in which a civil application
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also came to be filed by them which was numbered as Civil Application
No.2448/2007 in the said Civil Application, an order came to be passed
on 10th April, 2007 directing the respondents to deposit the said amount
in the Court immediately. Thereafter the petitioners filed Writ Petition
No.3230/009 and this Court directed the respondents to release the said
amount within a period of six months. After the said order came to be
passed, Writ Petition No.1695/1996 had came up for hearing in this Court
and this Court by order dated 01/12/2008 directed the petitioners to
exhaust the remedy under Order 17 Rule 21 of the Civil Procedure Code
by filing execution proceedings before the Civil Court. Accordingly, the
petitioners had filed an execution proceeding which was registered as
L.A.C.Execution Case No.135/2009 before the Civil Judge, Senior
Division, Yavatmal. The said execution proceedings have been disposed of
by the learned Civil Judge, Senior Division, Yavatmal on the grounds
mentioned in the earlier part of this order, the petitioners aggrieved by
the said order dated 10/11/2010 have approached this Court once again
by way of the above petitions.
6) As can be seen from the conspectus of facts as narrated above, the
payment of compensation to the petitioners has had a chequered history
and the petitioners had to approach this Court on numerous occasions by
filing writ petitions and contempt petitions but as yet according to the
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petitioners, they have not been paid the compensation that they are
entitled to in law.
7) In response to the above petitions, the respondent No.3 has filed an
affidavit in reply. The sum and substance of the affidavit is that the
petitioners have already been paid the compensation that they are entitled
to and, therefore, there is no cause for them to file for execution of the
order dated 01/12/2008 passed by this Court. The said affidavit inter
alia discloses the amounts that have been paid to the petitioners in each
of the above petitions. The said statement in the affidavit to the effect
that all the petitioners having been paid the compensation in full that they
were entitled to in law, is controverted by the learned counsel appearing
for the petitioners. It is the case of the petitioners that they would be in a
position to demonstrate that though certain payments have been made,
they have not received the compensation in full, that they are entitled to
in law.
8) Now coming to the impugned order that has been passed by the
trial Court. The petitioners undoubtedly had applied for execution of the
order dated 18/10/2004 passed in the execution application Exhibit No.1
filed by the petitioners in Writ Petition No.771/2011 similar applications
were filed by the other petitioners in the companion writ petitions
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wherein the impugned orders bear different dates. The impugned order
in Writ Petition No.771/2011 passed by the trial Court ex facie discloses
that the trial Court has refused to exercise jurisdiction, in view of the fact
that the order passed by this Court in a writ petition cannot be executed
by it. In the said context, it would be apposite to refer to Rule 23 of
Chapter 17 of the Bombay High Court Appellate Side Rules, 1960, which
is reproduced herein under –
“23. Execution of order or decree on Original Side. – Any
order or decree in a Civil Application under Article 226 of the
Constitution passed on the Appellate Side and thenon-satisfaction of which has been reported to the State
Government under the preceding rule may be transmitted to the
Original Side of this Court for execution and, if so transmitted,shall be executed in accordance with the procedure prescribed
for execution of decrees and orders passed in the exercise of the
Ordinary Original Civil jurisdiction of this Court.
[Explanation – An order or decree in a Civil Application
under Article 226 of the Constitution of India, decided at the
Benches at Nagpur, Aurangabad and Panaji will be transmitted
to the Court of competent civil jurisdiction for execution.]”
9) In the teeth of the said Rule, in my view, the ground on which the
trial Court has rejected the execution application filed by the petitioners
cannot be sustained as can be gathered from a reading of the explanation
to the said Rule, that an order or decree passed in a proceeding under
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Article 226 of the Constitution of India, decided at the Benches of this
Court at Nagpur, Aurangabad and Panaji would have to be transmitted to
the Court of competent civil jurisdiction for execution. Hence, the order
dated 18/10/2004 can be executable by the Court of the Civil Judge,
Senior Division, who has passed the original Award on the basis which of
the applications under Section 28A were filed by the petitioners. The
petitioners would therefore have to file applications in this Court, which
would thereafter be transmitted to the appropriate Civil Court of
competent jurisdiction, which would undoubtedly be the concerned Civil
Judge, Senior Division. This aspect would cover the tenability of the
execution application qua and order passed in a writ petition.
10) In so far as the stand of the respondents is concerned, viz. that the
petitioners had been paid in full compensation as per entitlement in law, it
would be for the respondents to urge the same before the concerned
Court, which takes up the matter for execution, as also put forward such
defences against the execution as they may be advised and it would be for
the concerned court trying the execution applications to deal with the
execution applications on their own merits and in accordance with law.
11) In that view of the matter, the above petitions would have to be
allowed and the impugned order dated 10/11/2010 would have to be set
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aside and is accordingly set aside with liberty to the petitioners to file
appropriate applications for execution, which can be transmitted to the
Court of competent civil jurisdiction for execution in terms of Rule 23 of
the The Bombay High Court Appellate Side Rules, 1960. In the event, the
question of limitation arises, the fact that the petitioners were prosecuting
the execution applications filed before the trial Court in which the
impugned orders came to be passed up to the date of the instant order
would be considered by the trial Court whilst considering the application
for condonation of delay. In the event, the execution applications are
filed, the petitioners to give prior notice to the respondents.
12) Rule is accordingly made absolute in each of the above petitions in
the aforesaid terms. The parties to bear their respective costs.
JUDGE
KHUNTE
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