Allahabad High Court
Indian Oil Corporation Ltd. vs Ram Swaroop Bajaj (Deceased) & Another on 28 November, 2014
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 23 Case :- WRIT - C No. - 63362 of 2014 Petitioner :- Indian Oil Corporation Ltd. Respondent :- Ram Swaroop Bajaj (Deceased) & Another Counsel for Petitioner :- Prakash Padia Counsel for Respondent :- M.M. Sahai Hon'ble Attau Rahman Masoodi,J.
Heard learned counsel for the petitioner and Sri M.M.Sahai learned counsel appearing for respondent no1.
A preliminary objection on the strength of Section 115 CPC against maintainability of writ petition filed under Article 226 of the Constitution of India has been raised by the learned counsel for respondent no.1.
Learned counsel for the petitioner concedes that as against the impugned orders, a revision would lie, however, it is pointed out that the impugned orders have been passed without affording opportunity at the first instance and for want of considering material objections raised by the petitioner therefore, the preliminary objection would not be a bar for entertaining the writ petition which is an extra ordinary remedy.
From the perusal of record it is seen that undisputedly the decree has become final with respect to the disputed plot No. 2063/2 and 2074/4. In the execution proceedings serious disputes cropped up from time to time with respect to the identification of disputed plots and the matter is also attracting attention of the Hon'ble apex court in SLP No. 29231 of 2013 wherein an order was passed on 8.10.2014 which is reproduced below:
"It is brought to our notice that after the passing of the impugned order by the High Court dated 23rd May, 2013, there was an inspection carried out by the District Magistrate, Kanpur Nagar to ascertain the fact as to whether the decree dated 16th January, 1992 has been complied with. The Report of the District Magistrate along with the covering letter was placed before us Nevertheless.
Mr. Banerji, learned senior counsel papering for the petitioners would contend that the facts referred to in the Report requires to be considered by the Execution Court and it is for the Execution Court to be satisfied that the decree has been fully implemented. Learned senior counsel, however, expressed grievance that the respondent under some pretext or other is avoiding the proceedings before the Execution Court. Mr. A.D.N. Rao, learned counsel for the respondent-corporation, however, would contend that there is no truth in the said stand of the petitioners.
We are not inclined to examine the correctness or otherwise of the contentions of the respective parties on that aspect. Having regard to the Report of the District Magistrate dated 31st March, 2014 and since proceedings are pending before the Execution Court for executing the decree dated 16th January, 1992, we direct the Execution Court to consider the Report of the District Magistrate and proceed with the Execution Petition and dispose of the same expeditiously, preferably within four weeks from the date of production of a copy of this order. If for any reason the respondent-corporation failed to appear on the date of hearing of the Execution Petition after the production of a copy of this order, the Execution Court shall be at liberty to proceed with the case to pass final orders within the time frame fixed under this order.
Call this Special Leave Petition after eight weeks."
The Apex Court direction to the execution court is specific to the effect that the report of District Magistrate may be considered in the execution proceedings which may be decided expeditiously. The order passed by the Apex Court was filed before the execution court and in pursuance thereof the execution court proceeded to pass an order on 15.10.2014 whereby the court Amin was directed to demolish the existing boundary walls raised by the Indian Oil Corporation as per the report of the District Magistrate dated 31.3.2014. The order passed by the execution court on 15.10.2014 was objected to by the petitioner mainly on the ground that the claim of decree holder remains unidentified and hasty orders passed by the execution court suffer from serious non-application of mind.
In order to substantiate the plea of opportunity, the order sheet of execution proceedings has been placed on record which shows that by order dated 31.7.2014 the next date in the case was fixed on 20.10.2014. By order dated 23.8.2014 the matter was again directed to be listed on the date fixed i.e. 20.10.2014 while taking on record the report of the District Magistrate filed alongwith an application. Subsequently an application came to be filed on 25.8.2014 for preponement of date, on the basis of which case was fixed on 20.9.2014, subject to the information being given to the counsel for judgment debtor.
The case was not taken up on 20.9.2014 due to non-availability of the Presiding Officer. The next date was fixed as 10.10.2014 and thereafter on 15.10.2014. There is no endorsement of knowledge on the order sheet in compliance of order dated 25.8.2014.
From the sequence of orders referred to above, it is evident that the judgment debtor did not have sufficient information of the case being fixed on 15.10.2014 for final order.
The judgment debtor filed objections before the court below on 30.10.2014 along with Paper No.392-Ga. Although these objections were drawn on 5.9.2014 but the same have been filed on 30.10.2014 after the execution court had passed the order on 15.10.2014.
The execution court proceeded to consider the objections filed by the petitioner, and after hearing the parties passed the impugned order dated 17.11.2014 whereby Paper No.393-Ga i.e. objections raised by the petitioner against the report of the District Magistrate were rejected and the order dated 15.10.2014 directing the court Amin to demolish the walls on the disputed plots was reiterated.
The petitioner while assailing the impugned orders before this Court has argued that the objection raised against the report of the District Magistrate is to the effect that the Corporation is partly in possession of plot no.2063 and 2074 which was purchased by them from the Nagar Palika and after demolition of requisite portion of existing walls towards satisfaction of the decree, the remaining portion of walls is standing beyond the extent of decree holder's claim and this position is evident from the report of District Magistrate.
A perusal of the report submitted by the District Magistrate shows that total area of plot no.2063 is 0.953 hectares whereas plot no.2074 is 0.809 hectares which are situated adjacently. Out of the total area as mentioned above, plot no.2063 to the extent of 0.041 hectares and plot no.2074/1 to the extent of 0.369 hectares is recorded in the name of Nagar Palika whereas plot no.2063/2 measuring 0.912 hectares and plot no.2074/4 measuring 0.440 hectares is recorded in the name of decree holder.
The report submitted by the District Magistrate records that there are only two recorded tenure holders of the disputed land viz Nagar Palika and the decree holder. The report submitted by the District Magistrate further reveals that during measurement, plot no.2063 to the extent 0.041 hectares and plot no.2074 to the extent of 0.369 hectares was found in the possession of judgment debtor. The report also states that the boundary walls raised by the Indian Oil Corporation exist on both the plots i.e. 2063 as well as 2074 measuring 40.12 feet and 122.59 feet respectively. Whereas the remaining land having standing trees is vacant with an access road passing through plot no.2063.
From the above report, identification of respective shares belonging to Nagar Palika and decree holder is not clearly made out except to the extent of area.
Learned counsel for the petitioner submits that the land belonging to Nagar Palika has been purchased by the Indian Oil Corporation and the existing walls stand on that part of the land, whereas the disputed portion of walls has already been demolished towards the satisfaction of decree as can be gathered from the map drawn by the revenue authorities forming part of the report.
On the contrary the contention of learned counsel for the decree holder is to the effect that the existing walls stand on the portion of land in excess of the land belonging to Nagar Palika which was never purchased by the petitioner corporation.
Having regard to the objections raised before the execution court and on a close scrutiny of the impugned orders it is seen that the execution court has not considered a very material and relevant aspect of the matter which relates to the identity of decree holder's claim, rather a direction for demolition of the walls has straight away been issued in the execution proceedings. Identification of a claim in respect of disputed property is a condition-precedent for passing an order either for demolition of walls or taking over possession and for this purpose the execution court ought not to have ignored the extent of decree holder's claim. For this purpose, the decree is liable to be construed in the background of judgment and even pleadings. The purpose of demolition of walls directed in the decree is to attach a meaning to the demarcation of decree holder's claim and nothing beyond.
It is true that the execution court cannot go beyond decree but in the peculiar situation of present case, the court below has certainly failed to discharge its duty to identify the disputed property in terms of the judgment passed in favour of the decree holder. The order passed by the Apex Court is bound to be complied with in its letter and spirit. The report submitted by the District Magistrate is bound to be scrutinized for the purpose of execution of decree in its true context.
The execution court is bound to undertake measurement of the vacant land so as to separate proportionate area which being recorded in the name of decree holder was decreed in terms of the judgment. The prayer for satisfaction of decree beyond the claim of decree holder would not lie simply for the compliance of terms of decree as the situation appears to be in the present case.
The execution court is directed to consider this relevant aspect of the matter and on the basis of demarcation with the aid of revenue authorities may proceed to satisfy the decree strictly in accordance with law.
Denial of opportunity and non-consideration of material objection raised by the petitioner in the context of the report of District Magistrate and compliance of apex court order clearly calls for interference as this court apart from writ jurisdiction under Article 226 of the Constitution of India is also vested with the supervisory jurisdiction under Article 227 of the Constitution of India, therefore, the preliminary objection raised by the respondent as to the maintainability of this petition is hereby rejected and the impugned orders dated 15.10.2014 and 17.11.2014 are quashed.
The execution court is directed to carry out the directions issued by the Apex Court in the light of observations made herein above and the necessary orders be passed expeditiously and preferably within a period of four weeks from the date a certified copy of the order is filed.
It is clarified that on measurement of vacant land as per District Magistrate's report, if it is found that the existing walls are standing within the area recorded in the name of decree holder, the decree be satisfied by demolishing the walls to the extent as required. The court may also order for assistance of necessary police force.
Gainless to say that the parties have contested the suit without impleading Nagar Palika and at this stage, the court refrains from recording any comment.
The writ petition is accordingly disposed of.
Dt.28.11.2014 mna (Attau Rahman Masoodi,J)