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2002 DIGILAW 749 (PAT)

Braj Nandan Singh v. State of Bihar

2002-07-15

S.N.JHA, TARKESHWAR PRASAD SINGH

body2002
JUDGMENT S.N. JHA, J. :- This writ petition has come on reference by a learned Single Judge of this Court. The dispute relates 'to payment of compensation under the Land Acquisition Act. When the case came up before the learned Single Judge he took the view that in exercise of power under Article 226 of, the Constitution the High Court should not do the work of the Civil Court by executing decrees. Regard being had to an order of the Division Bench, dated 27.7.2001, in LPA No, 505/2001 wherein the Court had issued direction to pay the amount of compensation, under the award the learned Judge referred the case to the Division Bench. He noted that earlier order of Division Bench dated 28.6.2001., in LPA No. 581/2001 had not been brought to the notice of the Bench. 2. The short fact of the case are that 74.155 acres of land of Mauza Raipura under Fatuha Police Station, District-Patna was acquired by the State of Bihar for the Indian Railway in case No. 20/1989-90 Not satisfied with the Collector's award passed therein petitioners and others filed objections which gave rise to L.A. case Nos. 1 to 91 of 1993 and 1 to 101 of 1994 in .the Court of Special Land Acquisition Judge III, Patna. The cases were disposed of on 26.11.94. As against the award of the Collector allowing compensation @ 2403/- per katha the Land Acquisition Judge allowed the compensation @ Rs.11,000/- per katha. On this amount additional compensation was also given @ 12 percent per annum under Section 23(1A) of the Land Acquisition Act. They were also allowed solatium @ 30 percent under Section 23(2) of the Act and interest on the excess amount @ 9 percent per annum for the first year and @ 15 percent per annum thereafter till the date of payment. Formal award was prepared in the light of the said judgment on 30.3.95. The case of the petitioners is that they are running from pillar to post for payment of the compensation amount but nothing has been done in the matter. There being "no other efficacious and speedy alternative remedy" available to them they have approached this Court in the present writ petition seeking direction for payment. 3. The case of the petitioners is that they are running from pillar to post for payment of the compensation amount but nothing has been done in the matter. There being "no other efficacious and speedy alternative remedy" available to them they have approached this Court in the present writ petition seeking direction for payment. 3. Shri Devendra Kumar Sinha, learned counsel for the petitioners placed reliance on two orders of the Division Bench dated 27.7.2001 in LPA No. 505/2001 (Harendra Prasad Sharma & anr. Vs. State of Bihar) and dated 2.8.2001 in LPA No. 702/2001 (Jamil Ahmad Vs. State of Bihar). In the former case the Court observed that the "State having acquired the land cannot take technical plea for pursuing the remedy before the Civil Courts for payment of compensation amount with interest. The officers of the State cannot act arbitrarily and according to their caprica and whims. Once the land has been taken by the State Government, it is bound to pay compensation for the same." in LPA No. 702/2001 the Court observed that "In a democratic set up the State should act in a fair manner and not as a king having absolute power to do whatever he likes in any manner. Once the land of the tenant has been acquired, the tenant is entitled in law to get compensation." 4. Besides the above orders reliance was also placed on orders of the learned Single Judge in CWJC Nos. 125/2001 and 7472/2001. From perusal of the order it appears that the petitioners were disposed of on the undertaking/assurance of the authorities to make payment. Therefore, not much reliance can be placed on those orders. 5. The only question for consideration is whether the Court should entertain the writ petition seeking direction for payment of compensation awarded in acquisition proceedings without exhausting the alternative remedy provided under the concerned Act. Though in the order of reference there is mention of pending execution proceeding, there is no averment in the writ petition that the petitioners have filed any execution case. The grievance of the petitioners that "they have been running from pillar to post" thus is not understandable. Unless the decree-holder puts the decree to execution the judgment-debtor is not supposed to pay the money on his own when he was challenged the correctness of the judgment and the decree in the appellate court. The grievance of the petitioners that "they have been running from pillar to post" thus is not understandable. Unless the decree-holder puts the decree to execution the judgment-debtor is not supposed to pay the money on his own when he was challenged the correctness of the judgment and the decree in the appellate court. It is not in dispute that in the instant cases, the State of Bihar has preferred First Appeal Nos. 399/95 and 413/ 95 against the judgment and award in L.A. Case Nos. 11/93 and 25/93 respectively which are the cases concerning, the present petitioners vide paragraph 5 of the writ petition. The appeals are pending. 6. Adverting to jurisdiction of this court to entertain writ petition notwithstanding the availability of the alternative remedy, it is well settled that the existence of alternative remedy is no bar to exercise of jurisdiction under Articles 226 or 227 of the Constitution of India. But it is equally settled that the exercise of such jurisdiction is discretionary in nature and one of the grounds on which the Court may refuse to grant relief is existence of alternative remedy, equally efficacious and adequate, unless there are grounds to entertain the petition and grant relief. The existence of adequate or alternative remedy-whether statutory or otherwise-has been held to be no bar to grant of relief under Articles 226/227 of the Constitution where there has been infringement of the fundamental right or violation of the Constitution, or where the alternative remedy is itself unconstitution or ultra vires or the rule under which the impugned order has been made is ultra vires, or where the order is nullity such as passed in violation or principles of natural justice, or where the defect goes to the root of jurisdiction, or where the alternative remedy is too dilatory or difficult to get relief. These are some of the case in which notwithstanding the existence of alternative remedy the writ court can entertain petition under Articles 226/227 of the Constitution. The question is whether the instant case falls under any of these. 7. There are umpteen cases on the point where upon consideration of the facts and circumstances the High Court either entertained the writ petition notwithstanding the existence of alternative remedy or refused to do so on the ground that such remedy had not been availed of. The question is whether the instant case falls under any of these. 7. There are umpteen cases on the point where upon consideration of the facts and circumstances the High Court either entertained the writ petition notwithstanding the existence of alternative remedy or refused to do so on the ground that such remedy had not been availed of. Then there are cases in which the exercise or non-exercise of jurisdiction by the High Court was disapproved by the Supreme Court depending on facts and circumstances. In this order I do not propose to cite those cases. Any good commentary on constitution of India would be replete with case law. In the facts and circumstances in which the dispute in the instant writ petition has arisen, I would like to refer to the case of Ghanshyam Das Gupta Vs. Anant Kumar Sinha, AIR 1991 SC 2251 . The Apex Court while considering the question of executability of decree observed that the principle as to when the High Court should exercise its special jurisdiction under Article 226 and when it should 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. 8. So far as the orders passed in LPAs. referred to above, are concerned, it is true that the Division Bench issued direction upon the State Government/Collector to pay the amount of compensation. In LPA no. 581 of 2001, however, the Division Bench took a different view. While upholding the order of the learned Single Judge the Bench observed that the appellant may execute the decree in the appropriate Court. In many cases, the High Court entertains writ petitions even though alternative remedy has not been availed of but it does not mean that the order should be treated as binding precedent. As observed above, the courts have either entertained or refused to entertain the writ petition in the context of available alternative remedy-depending on facts and circumstances of the case. No hard and fast rule can be laid down for the purpose. As observed above, the courts have either entertained or refused to entertain the writ petition in the context of available alternative remedy-depending on facts and circumstances of the case. No hard and fast rule can be laid down for the purpose. In the instant case, though grievance has been made by the petitioners "of running from pillar to post", there is no averment as to what the petitioners have precisely done to get the compensation. Simply on the ground that the payment has not been made for six or seven years, the Court would find it difficult to entertain the writ petition and direct the State Government to pay compensation when the State Government has preferred appeals which are pending. The remedy of the petitioners to gel the money realised through execution proceeding cannot be said to be ineffective or inexpedient. The money decrees are generally not stayed and if the petitioners had recourse to execution proceeding and pressed the matter, in the normal course they would have perhaps by now got the compensation as there was little possibility of the proceedings being stayed n the pending appeals. 9. In the above premises, the Court would decline to entertain the writ petition and dismiss it in limine. 10. It goes without saying that this order will not affect the merit of the execution case in any manner.