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2001 DIGILAW 442 (CAL)

Rama Kanta Das v. State of West Bengal

2001-07-23

Dilip Kumar Seth

body2001
JUDGMENT Dilip Kumar Seth, J. An award in a Land Acquisition proceeding was challenged under section 18 of the Land Acquisition Act. The award was published on 10th February, 1995. The reference being L.R.A. Case No. 81 of 1996(V) was disposed of by the learned Addl. Spl. L.A. Judge, 4th Court, Alipore, on 26th March, 2001. The decree was drawn up on 3rd April, 2001. The petitioners have come up with this application seeking a direction upon the Collector to pay the amount in terms of the decree. It is alleged that one of the petitioners is suffering and needs immediate medical attention which, according to the petitioners learned Counsel, is a serious affair of which relevant documents have been annexed to show that he requires immediate medical attention for which some amount is necessary which the petitioners needs immediately. Therefore, according to him, despite the decree being executable under section 26 sub-section (2), yet the petitioner could not wait for the execution in the exigency of the circumstances. Therefore, this court could pass appropriate order in order to help out the petitioner, otherwise, by the time the decree is executed, the needy petitioner will remain without any medical attention. 2. Mr. Dasgupta, learned Counsel for the respondents, on the other hand, contends that a decree passed by the L.A. Judge is executable under section 26(2) of the said Act. The petitioner is also entitled to ask for an interim order in execution. He further contends that the original award has since been paid to the petitioner. The writ court cannot be allowed to be resorted to for the purpose of seeking execution of a decree passed by the learned Special L.A. Judge. There being adequate alternative remedy, this writ court should not exercise its jurisdiction to take upon itself the responsibility of executing the decree. According to him, a decree under section 26 has the same force as a decree under the Code of Civil Procedure and is so executable. Therefore, this petition should be dismissed. According to him, the petitioner has come within four months from the date of the decree or for seeking an interim relief in the execution. Therefore, the petitioner, does not appear to be diligent. No relief could, therefore, be granted in this petition. 3. Therefore, this petition should be dismissed. According to him, the petitioner has come within four months from the date of the decree or for seeking an interim relief in the execution. Therefore, the petitioner, does not appear to be diligent. No relief could, therefore, be granted in this petition. 3. After having heard the learned Counsel for the parties, it appears that a decree or a reference under section 18 of the Land Acquisition Act by the L.A. Judge is a decree within the meaning of the Code of Civil Procedure and as such, executable in view of section 26(2) of the Land Acquisition Act. Therefore, the writ court should not take upon itself the responsibility of executing such a decree, when there are adequate remedy open to the petitioners. The petitioner appears to have come closely on the hilt of a decree which was passed on 26th March, 2001 without attempting to levy execution or even praying for any interim relief in execution. It is true that he should have made an attempt before coming to this court and in case there was a reason to believe that he would not get speedy or immediate relief, he could not approach this court but the fact remains that the petitioners have disclosed that one of the petitioners requires immediate medical attention. Though the writ court should not entertain such writ petition, but if occasion so demands, the writ court cannot be a silent on-looker and may also pass appropriate order. This jurisdiction cannot be taken away even by reason of existence of alternative remedy which is not an absolute bar. 4. Section 26 sub-section (2) of the Land Acquisition Act makes an award a deemed decree within the meaning of section 2 clause (2) of the Code of Civil Procedure. Thus, as such decree the award is capable of execution in the same manner as a decree in the same process as provided in the Code. Under the Code a decree or award against the Government is executable in terms of section 82. Thus, as such decree the award is capable of execution in the same manner as a decree in the same process as provided in the Code. Under the Code a decree or award against the Government is executable in terms of section 82. Before the 1976 Act section 82 required specification of time in the decree by the Court for its satisfaction and if such decree remained unsatisfied on the expiry of the time specified, the court was required to send report to the Government who was to act on the said report within 3 months and if the decree or award remains unsatisfied then the court was free to issue the execution. The 1976 amendment had eliminated two things viz. (1) the requirement of specification of time, within which the decree is to be executed, in the decree by the court or the award by the officer, as the case may be, and (2) the intermediate report to the Government by the Court about the decree remaining unsatisfied. Now section 82 as it stands postulate that a decree or award against the Government shall be executed in accordance with sub-section (2) of the section 82 and not otherwise. Sub-section (2) provides that no decree shall be executed unless it remains unsatisfied for a period of 3 months from the date of the decree. 5. By reason of sub-section (3) of section 82 the award as a deemed decree is capable of execution under the Code of Civil Procedure. Mr. Dasgupta had contended that writ jurisdiction cannot be invoked for execution of such award. Admittedly, as a deemed decree the award is capable of execution. Here, in this case it is a decree passed by the court on a reference under section 18 and is equally executable. Therefore, the question is whether in exercise of writ jurisdiction this court can direct payment without execution of the decree. Order 21 prescribes the mode of execution. It is a common knowledge that it is a long drawn process. However, still then it is a complete and adequate remedy available for execution of the award or the decree. Existence of alternative remedy may not be an absolute bar for exercising writ jurisdiction. But normally courts shall be very slow to exercise writ jurisdiction were adequate alternative remedy is available. However, still then it is a complete and adequate remedy available for execution of the award or the decree. Existence of alternative remedy may not be an absolute bar for exercising writ jurisdiction. But normally courts shall be very slow to exercise writ jurisdiction were adequate alternative remedy is available. But at the discretion of the court writ jurisdiction can be exercised, if the circumstances so warrant, even to grant relief in a case where alternative remedy available is adequate. That the award or the decree could be executed under the Code is not open to dispute. But, however, when the court feels that there are grounds where the court should activate itself and pass appropriate order in appropriate cases. But it depends on the facts and circumstance of each case and such discretion can be exercised in cases which are virtually exceptional and that too for protecting some immediate emergent situation. It can not undertake the responsibility of executing the award/decree nor it can act as an executing court. 6. Having regard to the facts and circumstances of the case, this writ petition is disposed of by directing the petitioners to approach the Executing Court and seek execution of the decree through the ordinary process provided therein. If such execution is levied, in that event, the Executing Court shall make all endeavour to get the decree executed within a period of six months from the date of levying execution. In case the petitioner apply for interim relief, same may be attended to by the Executing Court by passing appropriate order within fifteen days from the date of making such application. 7. At the same time, it may be borne in mind that in case the State has preferred the appeal in that event, if interim order was sought for, Court might have directed deposit of 50% out of which 50% could be permitted to be withdrawn by the claimant-petitioner. Having preferred no appeal such a situation is not available to the petitioner. Be that as it may, common experience shows that it takes a little longer time. To get anything within short time is a very difficult proposition. 8. Without creating any precedent, having regard to the special facts and circumstances of this case, the respondents are hereby directed to release a sum of Rs. Be that as it may, common experience shows that it takes a little longer time. To get anything within short time is a very difficult proposition. 8. Without creating any precedent, having regard to the special facts and circumstances of this case, the respondents are hereby directed to release a sum of Rs. 5 lakhs (Rupees Five Lakhs) within a period of fifteen days from the date of production of the certified copy of this order, in order to meet urgent medical attention necessary for one of the petitioners. This amount shall be paid without prejudice to the rights and contentions of the parties and subject to the result of the execution proceeding. 9. With the aforesaid observations, this writ application is disposed of. There will be no order as to costs. Urgent xerox certified copy of this order, if applied, be supplied within 7 days. Writ application disposed of with observations.