UNION OF INDIA Vs. MOHAMMAD SULTAN MALIK

JUDGEMENT

(1.) Heard. Union of India, through Defence Estates Officer, Srinagar, the indenting department, acquired 9 Kanals and 17 Marias of land under Survey No. 134 situated at Sonawar, Srinagar through State Acquisition Collector Respondent No. 1. After the Collector made the award, reference under Section 18 of the Land Acquisition Act was made to District Judge Srinagar way back in March, 1991. The reference Court enhanced the compensation and passed a decree in terms of Award in February 1998. The claimant, Respondent No.1, filed an Execution Petition in the Court for realisation of awarded decretal compensation for the land.The decree has been partly satisfied by making part payment. However, for the remaining unpaid amount of Rs. 15,51,975/- the executing Court of 4th Additional District Judge, Srinagar after giving opportunity to respondents to comply with the decree and make the payments, finally attached the amount from the Accounts Head of the office of Defence Estates Officer, Shivpora Srinagar. The Defence Estates Officer later on issued two cheques and the Nazir of the Court is under orders to take and present cheques before the Bank and to deposit the amount in the Court for disbursement to the claimant to satisfy the decree in the said execution proceedings. As a step in aid of execution for ensuring satisfaction of the decree, a non-bailable warrant was also issued against respondent No. 2 (Defence Estates Officer) for producing the said officer before the Court on 12-6-1999. These orders of attachment and deposit of the amount in Court, the issuance of bailable arrest warrant against respondent to the award/ execution proceedings and arraying Defence Estates Officer as party to the Execution proceedings are challenged in the writ petition on the ground that the attached amount could not have been siphoned off from the funds of Defence Estates Officer to satisfy the decree. Besides, there was no decree against the writ petitioner and decree was against only the Collector Land Acquisition. Only the amount for rental and other expenses for management purpose could have been taken to satisfy the decree and not the salary amqunt in the accounts of the petitioner. The executing Court ought not to have ordered execution when the CIA is pending against the very judgment and award of 4th Additional District Judge, Srinagar before High Court.

(2.) In reply, acquisition of land, initiation of acquisition proceedings by the Collector Land Acquisition, Srinagar, at the instance of Defence Estates Officer, Kashmir, Circle Srinagar, award of Collector and final award on reference under Section 18 of the Land Acquisition Act by the District Judge, Srinagar are not in dispute. It is also admitted that an Appeal against the judgment and decree in terms of award is pending before High Court. The respondents, however, contest the stand of the petitioner that a writ petition could lie either under Article 226 or 227 of the Constitution of India. It is contended that on merits of the fact situation and circumstances of the case, the matter cannot be examined by this Court under writ jurisdiction, as same is not substitute of appeal or revision. The matter is already pending in appeal before the proper forum, therefore, going to factual and other aspects of the award and judgment in writ jurisdiction, when the statutory appeal is pending, is not justified.

(3.) It is further contended that the entire acquisition proceedings right from the year 1978 have been initiated through the Defence Estates Officer, Kashmir Circle, Srinagar as the officer of indenting department of Ministry of Defence of the Union of India. The Defence Estates Officer has been party to the reference proceedings under Section 18 of the Land Acquisition Act. He has filed objections before the District Court and he has appeared in the proceedings. The writ petitioner Defence Estates Officer at no point took any objection before any forum that it is not a party representing Union of India to the proceedings. In the main judgment and the decree of the District Judge, the Defence Estates Officer is a party. In the judgment and decree reference ig made to the Defence Estates Officer as a party (Annexure-L). The issuance of warrant against the Defence Estates Officer and attaching the decretal amount in the proceedings of execution of the decree are the prescribed modes for satisfying a decree. The cheques were produced in court. Satisfaction of the decree is evaded on one pretex or the other. There is no stay in Appeal. So long the operation of the judgment and decree or execution proceedings are not stayed, the Court below in putting the decree in execution, has not acted in a course not approved by law.