G AGAMAIAH Vs. MILITARY ESTATE OFFICER

JUDGEMENT

(1.) The revision petition arises an interesting question of execution of writ of mandamus issued by this Court under Article 226 of the Constitution of India. The petitioners obtained a writ of mandamas in W.P. 1204/71 on April 16, 1973 directing the respondents to put the petitioners back in possession of the lands bearing Survey Nos. 128/9 to 128/16, 331/3 and 331/4 situated in Qutbullapur Village in Ranga Reddy District; alternatively to take steps to aquire the lands forthwith. The alternative relief has lost its efficacy since the respondents have not chosen to acquire the lands nor delivered possession of the said lands to the petitioners. Therefore, the petitioners obtained an order from this court transmitting the decree for execution. Pursuant thereto the petitioner filed E.P. No. 50 of 1985 for execution. The Court below holding that Rule 23 of the writ proceeding Rules 1977, for short, "the Rules" framed by this court under Article 225 only postulates execution of costs and not delivery of possession. Accordingly, it dismissed the execution petition necessitating to tile this revision.

(2.) Sri K. Nagaraja Rao learned standing counsel for the respondents has contended while supporting the order of the Court below, that under the Rules there is no express provision made for execution by way of delivery of possession. Therefore, the only remedy available to the party is to proceed for contempt. Under the contempt proceedings for disobedience of the mandamus it cannot be enforced after two years. In support thereof, he relied on the passage from Wade and Phillips "Consticutional Law", Seventh Edition, at page 338 ; De Smith's Judicial Review of Administration Action". Fourth Edition page 26. It is further stated that the Supreme Court and the Gujarat High Court have expressly made rales for execution of their orders and since the Rules are silent it cannot be executed.

(3.) The question, therefore, is whether a writ of mandamus is an executable order and if so under what relevant provision of law.