Kerala High Court
The Corporation Of Kochi vs Thomas John Kithu on 17 March, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 17TH DAY OF MARCH 2020 / 27TH PHALGUNA, 1941
WA.No.350 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 21720/2019(L) OF HIGH
COURT OF KERALA
APPELLANT/S:
THE CORPORATION OF KOCHI
REPRESENTED BY ITS SECRETARY, PARK AVENUE
ROAD, KOCHI - 682 001.
BY ADV. SRI.S.SUDHISH KUMAR
RESPONDENT/S:
1 THOMAS JOHN KITHU
KITHU HOUSE, KANDANAD P. O., VIA
THIRUVANKULAM, ERNAKULAM DIST., PIN - 682 305.
2 T. V. MUTHIKRISHNAN
AGED 74 YEARS
VISWANATHA IYER, 1/373, SREEVALSAM, SHIVANI
GARDEN, KUNNAMPURAM, KALPATHY P. O., PALAKKAD.
3 A. A. KURUVILLA
S/O. OUSEPH, ARAKKAL HOUSE, NAYARAMBALAM.
4 BEENA EUGINE
AGED 60 YEARS
W/O. LATE EUGINE, KOODARAPPILLY HOUSE, JUNIOR
JANATHA ROAD, LANE NO.8, H. NO.26, VYTTILLA.
5 T. E. THOMAS
GALEELI, PAINUMOOTTIL, ASOKA ROAD, KALOOR.
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6 MARYKUTTY JOSEPH
NANGACHIVEETTIL HOUSE, CHERUPUSHPAM LANE,
ELAMKULAM.
7 SUNDARA RAJAN
POONNANYKKANNOOR POLLACHI, TAMILNADU.
8 C. K. VIJAYAN
AGED 65 YEARS
S/O. LATE KUNJIKRISHNA MENON, VAYALIL, ANURAG,
VAYALI CROSS ROAD, THIRUVANKULAM, KOCHI - 682
305.
9 SHEEBA RAJU
POOTHAKUZHYU HOUSE, S. A. ROAD, KADAVANTHRA,
KOCHI - 20.
10 MOHAN ZACHRIAH MATHEW
MANAGING PARTNER, NEW BHARATH TYRES,
PANAMPILLY NAGAR.
11 STATE OF KERALA
REPRESENTED BY THE SPECIAL TAHSILDAR (LA),
KOCHI CORPORATION, VYTTILLA, KOCHI - 19.
R1-10 BY ADV. SRI.T.R.S.KUMAR(B/O)
R1-10 BY ADV. SRI.T.R.S.KUMAR
R1-10 BY ADV. SMT.DEEPA R MENON
R1-10 BY ADV. SRI.K.RAJAN (MUHAMMA)
R1-10 BY ADV. SRI.T.K.SHAJITH
R1-10 BY ADV. SMT.DEENA JOSEPH
R1-10 BY ADV. SRI.P.B.PRADEEP
R11 BY SRI.SURIN GEORGE IPE, SENIOR GOVERNMENT
PLEADER (B/O)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
17.03.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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"CR"
JUDGMENT
S. Manikumar, CJ.
Challenge in this appeal is to the correctness of the judgment dated 08.08.2019 in WP(C) No. 21720 of 2019, by which the writ court, while disposing of the writ petition, observed that if the public official acts with lethargy to delay the process of execution, the court can invoke public law remedy by directing authority to provide necessary funds, directed the 2nd respondent to provide necessary funds within a time limit to enable the Land Acquisition Officer to deposit the same before the civil court.
2. Judgment dated 08.08.2019 in WP(C) No.21720 of 2019 is reproduced hereunder:
"The petitioners are claimants in land acquisition proceedings. According to them, compensation amount was enhanced. The requisition was on behalf of the second respondent-Corporation of Kochi. It is also submitted that there is no appeal pending. However, the execution petitions filed by the petitioners are stated to be pending. The petitioners further submitted that since the second respondent failed to provide necessary funds, the Land Acquisition Officer did not deposit the enhanced compensation amount. 2. This Court in several judgements had taken the view that such compensation amount shall be deposited within three months. It may be true that the petitioners had filed execution petitions and thus, had already invoked one of the remedies before the civil court. But it is to be WA.No.350 OF 2020 ..4..
noted that public authority cannot act in an arbitrary manner to deny justice to ordinary citizens and to prevent them from enjoying the fruits of a decree of the civil court by citing lame excuses. That cannot Wpc 21720/2019 -:4:- be the moto of a welfare State. It is the responsibility of the Government or the public authority to disburse such amount to the citizen whose property has been acquired. Further, access to justice means serving justice in real terms to the citizens for enjoyment of a decree obtained through a civil court. If public official act with lethargy to delay the process of execution, the court can invoke public law remedy by directing authority to provide necessary funds. Accordingly, the second respondent is directed to provide necessary funds within three months, to enable the Land Acquisition Officer to deposit the same before the civil court. The writ petition is disposed with the above directions."
3. Assailing the correctness of the said judgment, Corporation of Kochi, represented by the Secretary, has raised the following grounds:
"B. Article 226 of the Constitution is not a tool to over ride the statutory remedy and therefore, the Learned Single Judge ought to have allowed the Writ Petition (Civil). C. The learned Single Judge ought to have considered the fact that, there is no circumstance warranting the application of Article 226 of the Constitution of India in the above case. D. The learned Single Judge ought to have considered the fact that, the issuance of Writ of Mandamus will nullify the execution proceedings and it is against the object of Article 226 of the Constitution of India.
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E. The learned Single Judge ought to have considered the fact that the decree is executable under Order XXI of the CPC and as the petitioners have already exhausted the said remedy prescribed by Law, there is no circumstance warranting the invocation of Article 226 of the Constitution of India.
F. The learned Single Judge ought to have considered the fact that at the maximum, this Honourable Court is justified in directing speedy disposal of the execution petition already filed by the petitioners before the execution court and the interference of this Honourable Court under Article 226 is not at all justified in any circumstances. G. The learned Single Judge went wrong in directing a public institution to deposit the award amount within a period of 3 months, since the availability of the fund for the said purpose depends on various factors and therefore at least ought to have heard the 1 st respondent before issuing a writ of mandamus."
4. Sri.S.Sudheesh Kumar, learned counsel for the Corporation of Kochi, appellant herein, made submissions on the above grounds.
5. Defending the impugned judgment, Sri.T.R.S.Kumar, learned counsel for the respondents 1 to 10 submitted that the Government have appropriated the property of the respondents in the year 2007. Land acquisition reference was made under Section 18 of the Land Acquisition Act, 1894 in 2006, which culminated in enhanced WA.No.350 OF 2020 ..6..
compensation, interest, solatium and such other benefits confirmed under the provisions of Land Acquisition Act, 1894. Though execution petitions were filed, no interim order has been passed. Contending inter alia that right to property is a human right, guaranteed under Article 300A of the Constitution of India and also protected under Article 21 of the Constitution of India, Sri.T.R.S. Kumar, learned counsel for respondents 1 to 10 submitted that, invoking public law remedy under Article 226 of the Constitution of India, is more efficacious than resorting to execution before the civil court under Order XXI of the Code of Civil Procedure. He further added that the respondents are all senior citizens and therefore, considering the time spent for litigation, remedy under Article 226 of the Constitution of India is appropriate and efficacious. On the above circumstances, learned counsel for the respondents prayed to sustain the impugned judgment and accordingly, dismiss the writ appeal.
6. As reference has been made to Articles 21 and 300A of the Constitution of India, they are extracted hereunder:
"21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law."
"300-A. Persons not to be deprived of property save WA.No.350 OF 2020 ..7..
by authority of law.- No person shall be deprived of his property save by authority of law."
7. In the case on hand, it is argued that public law remedy is the only efficacious remedy de hors the mechanism provided under Section 18 of the Land Acquisition Act, 1894, seeking for reference for enhanced compensation and Order XXI of the Code of Civil Procedure for realization of such enhancement, by filing an application for execution. Here, acquisition proceedings seemed to have been commenced in 2004. Not satisfied with the quantum of compensation, reference has been made by the party respondents herein as LAR Nos.
98/2007, 385/2006, 421/2006, 425/2006, 437/2006, 444/2006, 443/2006, 427/2006, 426/2006, 419/2006 and 79/2009. Said reference has culminated in Exts.P1 to P11 decrees, by which quantum of compensation has been enhanced with consequential benefits under the provisions of the Land Acquisition Act, 1894. Though several decrees in the land acquisition reference are enclosed along with the writ appeal, it would suffice to extract one of them, viz., Ext.P4, which is extracted hereunder:
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8. On the issue raised, it would be relevant to consider Section 26 of the Land Acquisition Act, 1894, which reads thus:
"26. Form of awards.- (1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub- section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908 (5 of 1908)."
9. A reading of Subsection (2) of Section 26 of the Land Acquisition Act, 1894 makes it clear that every award passed by the civil court (judge), shall be deemed to be a decree and the statement of grounds of every such award is a judgment within the meaning of Section 2(2) and Section 2(9), respectively, of the Code of Civil Procedure, 1908 (5 of 1908).
10. Section 2(2) of the Code of Civil Procedure reads thus:
"(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard WA.No.350 OF 2020 ..15..
to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
11. Section 2(9) of the Code of Civil Procedure reads thus:
"(9) "judgment" means the statement given by the Judge on the grounds of a decree or order;"
12. Rule 1 of Order XXI of the Code of Civil Procedure, 1908 deals with modes of paying money under decree in execution of decrees and orders, which is extracted hereunder:
"1. Modes of paying money under decree.- (1) All money, payable under a decree shall be paid as follows, namely:-
(a) by deposit into the Court whose duty it is to execute the decree, or sent to that Court by postal money order or through a bank; or
(b) out of Court, to the decree-holder by postal money order or through a bank or by any other mode wherein payment is evidenced in writing; or
(c) otherwise, as the Court which made the decree, directs;
(2) Where any payment is made under clause (a) or clause
(c) of sub-rule (1), the judgment-debtor shall give notice WA.No.350 OF 2020 ..16..
thereof to the decree-holder either through the Court or directly to him by registered post, acknowledgement due. (3) Where money is paid by postal money order or through a bank under clause (a) or clause (b) of sub-rule (1), the money order or payment through bank, as the case may be, shall accurately state the following particulars, namely:-
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or more than two defendants, as the case may be, the names of the first two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is towards the principal, interest or costs;
(d) the number of the execution case of the Court, where such case is pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if any, shall cease to run from the date of service of the notice referred to in sub-rule (2). (5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal money order or payment through a bank, interest shall cease to run from the date on which the money was tendered to him, or where he avoids acceptance of the postal money order or payment through bank, interest shall cease to run from the date on which the money would have WA.No.350 OF 2020 ..17..
been tendered to him in the ordinary course of business of the postal authorities or the bank, as the case may be."
13. Rule 10 of Order XXI deals with application for execution and it is extracted for ready reference:
"10. Application for execution.- Where the holder of a decree desires to execute it, he shall apply to the Court which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been sent under the provisions hereinbefore contained to another Court then to such Court or to the proper officer thereof."
14. Order XXI also deals with Application for attachment of movable properties, immovable properties and other provisions towards execution of decree. As stated supra, any award passed by the civil court (judge in writing) shall be deemed to be a decree and therefore, the same is executable by invoking the provisions of Order XXI of the Code of Civil Procedure, 1908. Reverting to the case on hand, it could be seen that the land acquisition reference was made in 2006 and the same has culminated to a judgment and decree, in the years 2009, 2010 and three of them, in the year 2018. But, it was only after a decade, the land owners have filed execution petitions in the year 2019, viz., EP Nos.101/2019, 137/2019, 50/2019, 95/2019, 94/2019, WA.No.350 OF 2020 ..18..
136/2019, 116/2019 and 93/2019, before the Sub Court, Ernakulam for realization of the decree amounts. As stated supra, though land acquisition reference has been made in 2006, three of them were decreed only in the year 2018. Thus, it could be seen that time is consumed in courts. Any how, when execution petitions have been filed before the Sub Court, Ernakulam for realization of compensation under the decrees, after a decade in LAR Nos.421/2006, 444/2006, 443/2006 and 419/2006 in the year 2019, simultaneously, party respondents/land owners have approached this Court, invoking Article 226 of the Constitution of India.
15. Thus, it is trite law that a decree passed by a civil court cannot be executed by issuance of a writ of mandamus. On the aspect as to whether that writ petitions can be filed for executing decrees, reference can be made to few decisions.
(i) In Suganmal Nandlal Bhandari v. State Of Madhya Pradesh, (AIR 1962 MP 10), a Hon'ble Division Bench of Madhya Pradesh High Court held as follows:-
"A writ of mandamus cannot be issued for the execution of a decree or an order. In this connection it would be sufficient to refer to a decision of the Calcutta High Court in Kesho Prasad Singh v. Board of Revenue, ILR 38 Cal 553. That was a case where the plaintiff had obtained a decree for recovery of WA.No.350 OF 2020 ..19..
possession of an estate against an infant under the Court of Wards. After the suit was decreed by the trial Court the defendant, viz. the Court of Wards, preferred an appeal to the High Court. Pending the appeal the plaintiff made an application to the Court of Wards for the release of the estate and handing over possession of the estate to him in accordance with the decree of the trial Court. When the Court of Wards declined to comply with the plaintiff's request, the plaintiff made an application to the Calcutta High Court under Section 45 of the Specific Relief Act and obtained a rule calling upon the Court of Wards to show cause why the estate should not be released and delivered to the plaintiff. In discharging the rule the learned Judges of the Calcutta High Court observed:
"It is an elementary principle that recourse ought not to be allowed to an extraordinary remedy of this description, when it is not really needed. In the case before us, the plaintiff is entitled to sue in ejectment; he has brought such a suit and has been successful; he is entitled to execute his decree, but has not yet taken any steps in that direction. It is well settled that a mandamus will never be granted to enforce the general law of the land which may be enforced by action; for instance, where the applicant has the ordinary legal remedy of an execution mandamus does not lie."
In Reg. v. Victoria Park Co., (1841) 1 QB 288 :
55 R 249 action was brought against the treasurer of a Company and judgment was entered up against the WA.No.350 OF 2020 ..20..
Company. The Company had no assets. A writ of mandamus was sought commanding the Company to pay a sum of money recovered from them in the action. The Court refused to issue a writ of mandamus. The Court observed:
'.....here the plaintiff seeks only the payment of the debt and costs: for this an execution by fi. fa. is a, perfect remedy in its nature; and, if we were to issue the writ because in this particular case there are no corporation chattels seizable, it would be difficult on principle to re-fuse to issue it in any case where the sheriff should return milla bona, whether the writ had issued against a corporation or an individual; for in principle there is no distinction between the two. We are compelled, therefore, to refuse the rule for a mandamus to the corporation, to pay."
(ii) In Ghan Shyam Das Gupta and Another v. Anant Kumar Sinha and Others reported in (1991) 4 SCC 379, the Hon'ble Supreme Court held thus:
8. The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. As was observed in State of Andhra Pradesh v. Chitra Venkata Rao (1976) ILLJ 21 SC the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting WA.No.350 OF 2020 ..21..
errors like an Appellate court. In Thansingh Nathmal and Ors. v. A. Mazid [1964] 6 SCR 654 a case dealing with liability to pay sales tax, the appellants without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires. The challenge was rejected. Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely speculative, was also raised. This ground also failed before the High Court and the writ petition was dismissed Approving the decision, this Court observed that if the appellants had perused the statutory remedy under the Act and the question had been referred to the High Court, the Court could have appropriately advised the Commissioner, but not having done so, the High Court could not be asked to assume the role of an appellate court over the decision of the Commissioner either on a question of fact or even of law. Again when a learned Single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehicles Act, it was observed by this Court in M. Naina Mohammed v. KA. Natarajan and Ors. [1976] 1 SCR 102, that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review. So far the question of executability of a decree is concerned, the WA.No.350 OF 2020 ..22..
Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified. The rules 97 to 106 of order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court."
(iii) In Vemula Prabhakar and others v. Land Acquisition Officer and Revenue Divisional Officer, Peddapalli, reported in 2001 SCC Online AP 958 - (2002) 1 ALD 200 (FB), the question raised before the Hon'ble Supreme WA.No.350 OF 2020 ..23..
Court was whether the High Court, in exercise of its jurisdiction, under Article 226 of the Constitution of India, can issue a writ of or in the nature of Mandamus, directing the respondents to make payment in relation to the amount enhanced by the civil court, in a reference made under Section 18 of the Land Acquisition Act, 1894 ('the Act' for brevity). Reliance was placed on a decision in Sur Reddy v. Special Deputy Collector(LA), Medak, reported in 1997 (1) ALD 31, wherein, it has been held that existence of remedy by way of execution petition before a civil court is not a bar and the writ petition is maintainable. While answering the said question, a Hon'ble Full Bench held thus:-
"1. Whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India can issue a writ of or in the nature of mandamus directing the respondents to make payment in relation to the amount enhanced by the civil court in a reference made under Section 18 of the Land Acquisition Act, 1894 ('the Act' for brevity) is the question which has been referred by a learned Judge of this Court noticing various decisions of the Division Bench of this Court and an unreported judgment in Writ Petition No. 12763 of 1999 holding that such writ petitions are maintainable. A learned Single Judge in SUR REDDY AND ORS. v. SPECIAL DEPUTY COLLECTOR (LA), MEDAK, 1997 (1) ALD 31, held that existence of remedy by way of execution petition before a civil court is not a bar and the writ petition is maintainable. The referring Judge was of the opinion that a question would arise as to whether by reason of non-payment of such enhanced compensation the right of the awardees under Article 300A of the Constitution WA.No.350 OF 2020 ..24..
has been taken away.
2. All these writ petitions have been filed by the awardees in whose favour judgments have been passed by the civil court on a reference made by the Collector under Section 18 of the Act either directly before this Court or after filing execution petitions in the civil Courts. The learned counsel appearing on behalf of the writ petitioners would submit: (1) having regard to the scheme of the provisions of the Act, provisions of Order 41 of the. Code of Civil Procedure, 1908 ('the Code' for short) are not directly applicable in respect of the award made by the court; (2) as the Collector is under an obligation to make payment of such award in terms of Section 31 of the Act, no execution petition would be maintainable. They would further submit that in any event, execution of a decree is an ineffective remedy whereby no real benefit is accorded to the awardees. Having regard to the provisions of Article 300A of the Constitution, this Court can issue a writ of or in the nature of mandamus directing the Collector to make payments. If no writ of mandamus is issued, a discrimination may result between those in whose favour an award has been passed under Section 28A of the Act and those who are the beneficiaries of the judgment under Section 18 of the Act. Section 55 or Order 21 Rule 30, Order 21, Rule 37 of the Code have not been proved to be effective remedy and thus the availability of alternative remedy which is merely a rule of convenience should not be applied in such a case. Even in terms of second proviso appended to WA.No.350 OF 2020 ..25..
Article 31A of the Constitution, when the land of a farmer who holds lands within the ceiling limit is acquired, he is to be paid just compensation. As by reason of payment of compensation no favour is shown, the Court should implement the same. Reliance in this connection has been placed on a large number of decisions in WHIRLPOOL CORPN v. REGISTRAR OF TRADE MARKS, AIR 1999 SC 22, B. GOVINDA REDDY v. R.D.O. 1997 (5) ALT 561, B.G. REDDY v. REVENUE DIVNL. OFFICER-CUM-L.A.O. 1997 (5) ALD 748, RAM CHAND v. UNION OF INDIA, (1994) 1 SCC 44 , K. KRISHNA REDDY v. SPL DY COLLECTOR, AIR 1988 SC 2123, BILLA LINGA REDDY v R.D.O., AIR 1996 AP 3, SUR REDDY v. THE SPL DEPUTY COLLECTOR (LA), 1997 (1) APLJ 68, K. MURALIDHAR REDDY v. THE SPL DY COLLECTOR, 1993 (2) AWR 39, D.G. MAHAJAN v. STATE OF MAHARASHTHA, [1977] 2 SCR 790 and STATE OF WEST BENGAL v. ANIL CHANDRA CHOUDHURY, 2000 (1) LACC 58. The learned Government Pleader, on the other hand, would submit that the award made in terms of Section 18 of the Act being a decree, it can be executed only in an execution proceedings. The learned counsel would contend that even two Division Benches of this Court in writ Appeal No. 1506 of 1999, dated 3.11.1999 and Writ Petition No. 12763 of 1999 had taken the same view. The learned Government Pleader has also drawn our attention to GHAN SHYAM DAS GUPTA v. ANANT KUMAR SINHA, AIR 1991 SC 2251, R.N. DEY v. BHAGYABATI PRAMANIK, (2000) 4 SCC 400, SUR REDDY (supra), NET RAM v. UNION OF INDIA (2001) 1 LACC 77, DODLA WA.No.350 OF 2020 ..26..
MALLIAH v. STATE OF ANDH. PRA., AIR 1964 AP 216, H.G. SHIVANANDAPPA v. STATE OF KARNATAKA 1990 LACC 622, CHAND RAM v. STATE AND ORS. (Del), 1993 LACC 413, MAN SINGH v. UNION OF INDIA 3993 LACC 371.
4. A writ of or in the nature of mandamus will be subject to exercise of sound judicial discretion. The general rule is that a writ of mandamus would ordinarily not be issued when there exists an adequate specific legal remedy whereby the petitioner can be afforded relief in respect of the same subject matter. Mandamus is important public law remedy and does not generally supersede legal remedies. But alternative remedy must be efficacious to accomplish the same purpose wherefore mandamus is sought for and must be equally convenient, beneficial and effective. There cannot be any doubt that alternative remedy is not an absolute bar to the maintainability of a writ petition. Having regard to the latest decision of the apex court, it may not be necessary to trace all the precedents. In WHIRLPOOL CORPORATION (supra), the law has been laid down in the following terms.
Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three WA.No.350 OF 2020 ..27..
contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has-been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.
5. It is also trite that where the party has an effective alternative remedy and he does not avail the same, the High Court may require a strong case to be made out for entertaining a writ petition for issuing a writ, (see CHAMPALAL v. I.T. COMMR., W.B., [1970] 76 ITR 692(SC)]. In C.A. ABRAHAM v. I.T. OFFICER AIR 1961 SC 601, having regard to the fact that a complete machinery for assessment of tax and penalty has been provided under Income Tax Act, it was held that the jurisdiction of the High Court under Article 226 should not be permitted to be invoked. In K.S. RASHID & SON v. I.T.I. COMMISSION, [1954] 25 ITR 167(SC) , it was held that the High Court can refuse to grant any writ if it is satisfied that the aggrieved party can get proper relief elsewhere.
8. The contention of the learned counsel to the effect that provisions of Order 21 of the Code are not applicable in relation to an award cannot be accepted. Sub-section (2) of Section 26 creates a legal fiction by reason whereof, the award passed by the Court would be deemed to be a decree. Once an award is deemed to be a decree within the meaning of Section 2(2) of the Code all consequences arising therefrom shall flow from the Code. A legal fiction as is well known is of WA.No.350 OF 2020 ..28..
wide amplitude. In EAST END DWELLINGS CO., LTD. v. FINSBURY BOROUGH COUNCIL 1951 (2) All. ER 587, Lord Asquith J laid down the law in the following terms:
If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
9. Even otherwise, by reason of provisions contained in Section 53 of the Act whereby and whereunder the Code has been made applicable in relation to the proceedings under the Act an execution petition pro tanto in terms of Order 21 is maintainable. The provisions contained in the Code dealing with the execution of a decree are wider ones. The same cannot be said to be ineffective remedy. The submission to the effect that an award made by a civil court being a right of property under Article 300A of the Constitution, can be enforced through "a writ of mandamus cannot be accepted. A decree passed in terms of Section 18 is a money decree. If the aforementioned proposition is accepted, all money decrees passed against the Government can be directed to be executed through a writ of or in the nature of mandamus.
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11. It is difficult to understand why the provisions of Section 55 or Order 21 Rules 30 and 37 of the Code do not provide for an effective remedy. The prevailing state of affairs as stated by the learned counsel may have a bearing in a particular case. But it cannot be held as of law that a writ of mandamus can be issued even where there exists an alternative remedy by way of filing of an execution petition. It may be true that by payment of compensation no favour is shown to the awardees but the amount of compensation must be realised also in accordance with law.
28. In view of the provisions contained in Section 53 of the Act, an execution petition pro tanto under Order 21 of the Code is maintainable even for executing a degree passed by a Civil Court in a reference under Section 18 of the Act. The mere absence of ingredients of coercion against the State and/or collector in executing the decree is no ground for bypassing such a civil remedy. It is admitted by the learned counsel for the petitioners that if a mandamus issued by this Court is not obeyed, the only remedy is by way of contempt. In BHAGYABATI PRAMANIK (supra) and KAPILDEO PRASAD SAH (supra), the Supreme Court held that the contempt proceedings cannot be a substitute for execution proceedings. On the other hand, in an execution petition, as observed by us, a decree can be enforced either by attachment of property - movable or immovable, of the State and also in a given case even the State has a judgment/decree, WA.No.350 OF 2020 ..30..
it can raise defence for execution. Therefore, the judgment of this Court in B. LINGA REDDY (supra) and other judgments taking the same view do not lay down correct law. We accordingly overrule them.
29. In this view of the matter, we are of the opinion that it cannot be said that the remedy provided for under the Code of Civil Procedure, 1908 is not adequate remedy so as to enable this Court to entertain the writ petition. The writ petitions are disposed of with the aforesaid observations. However we hope and trust that keeping in view the fact that the State has exercised the power of eminent domain, it has a duty to pay the amount of compensation determined by the Court to the awardees as expeditiously as possible. If requisite amounts are not deposited within a reasonable time the executing Courts may take such coercive steps as are permissible in law in the light of the observations made hereinbefore to the effect that not only the properties belonging to the office of the Collector can be attached but any property of the State can be attached."
(iv) In Shalini Shyam Shetty and another v. Rajendra Shankar Patil, reported in 2011 (1) CTC 854, the Hon'ble Supreme Court has held as follows:-
"78.However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of WA.No.350 OF 2020 ..31..
dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases High Courts, in a routine manner, entertain petition under Article 227 over such disputes and such petitions are treated as writ petitions.
79.We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown, that a private individual is acting in collusion with a statutory authority."
16. True that, there are decisions to the effect that compensation amount should be paid as expeditiously as possible. Writ court, having taken note of the fact that execution petitions have been filed before the civil court for realization of money due under decree, by observing that public authority cannot act in an arbitrary manner to deny justice to ordinary citizens and to prevent them from enjoying the fruits of a decree of the civil court by citing lame excuses and further, that if public official acts with lethargy to delay the process of execution, the court can invoke public law remedy by directing authority to provide necessary funds, directed the Corporation of Kochi, appellant herein, to provide necessary funds within three months so as to enable WA.No.350 OF 2020 ..32..
the Land Acquisition Officer to deposit the same before the civil court.
As stated supra, in some cases land acquisition reference has reached finality in 2009 or 2010 and in some cases, in the year 2018. However, in cases where land acquisition reference reached finality in the years 2009 and 2010, land owners have filed execution petition before the civil court only in the year 2019. From the narration of facts, it could be seen that there was no lethargy on the part of any public official to deposit the amount in courts warranting invocation of public law remedy under Article 226 of the Constitution of India.
17. There is no quarrel on the preposition that public law remedy under Article 226 of the Constitution of India can be invoked, seeking adequate compensation to the aggrieved, on account of invasion to human rights, such as causing grave injury, death in custody, death due to negligent action on the part of the authorities, but the same principle cannot be made applicable to every case, where there is a mechanism provided for realization of money under a decree.
18. In the case on hand, recourse to Order XXI of the Code of Civil Procedure has already been taken by the party respondents.
Material on record discloses that when execution petitions have been filed in the year 2019 before the Sub Court, Ernakulam for realization of WA.No.350 OF 2020 ..33..
compensation under the decrees in the land acquisition reference cases, simultaneously, land owners have approached this Court, invoking Article 226 of the Constitution of India, contending inter alia that remedy under Order XXI of the Code of Civil Procedure is not efficacious. Order XXI of the Code of Civil Procedure, enables the decree holder to seek for attachment of both movable and immovable properties of the judgment debtor, and therefore, said provisions cannot be said to be efficacious. No materials have been placed before this Court to indicate as to whether the respondents/land owners have resorted to attachment of the properties of the Corporation of Kochi, requisitioning body. Remedy under Article 226 of the Constitution of India is an extraordinary remedy to invoke, only if resort to other mechanism provided under law is not efficacious. Having chosen to take recourse to the provisions of the Code of Civil Procedure, in particular, Order XXI, it is not open to the landlords/respondents to invoke the remedy under Article 226 of the Constitution of India. As observed in the foregoing paragraphs, there is no lethargy on the part of the public official warranting invocation of the public law remedy under Article 226 of the Constitution of India.
19. In the light of the above discussion, we are of the view that WA.No.350 OF 2020 ..34..
Corporation of Kochi, represented by its Secretary - appellant herein has made out a case for interference with judgment dated 08.08.2019 in WP(C) No. 21720 of 2019.
20. Accordingly, instant writ appeal is allowed and judgment dated 08.08.2019 in WP(C) No. 21720 of 2019 is set aside. However, it is made clear that it is open for the respondents/landlords to seek for appropriate interim orders in the execution petitions, pending on the file of the learned Sub Judge, Ernakulam, if they so desire.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE Bka/19.03.2020