IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3483 of 2007 1. Phuljharia Devi, w/o Late Munka Rai. 2. Bhola Rai, S/o Late Munka Rai. Both resident of Mohalla-Paharpur, P.S.- Gardanibagh, Town and district-Patna. …………………………………….. Petitioners Versus 1. The State of Bihar through the Collector, Patna. 2. The Police Employees House Construction Society Ltd., through its Secretary, Anisabad, P.S.-Gardanibagh, District-Patna. 3. The Secretary, Police Employees House Construction Society Ltd. Anisabad, P.S.-Gardanibagh, District-Patna. ………………………….…………. Respondents For the Petitioner : Mr. Anurag Shukla, Advocate For the State : Mr. Lalit Kishore, A.A.G.-III. For the Society : Mr. K.K. Upadhyay, Advocate. P R E S E N T HON’BLE JUSTICE MIHIR KUMAR JHA ----------- 5. Mihir Kr. Jha, J. In this writ application the two petitioners claiming to be the land owners have prayed for the following relief: “A writ of Mandamus or any other appropriate writ or order or direction be issued commanding the respondent authorities to pay to the petitioner the balance of due compensation for their lands, which were acquired by the State of Bihar for the benefit of the respondent society, at the rate determined by this Hon‟ble Court and affirmed by the Hon‟ble Supreme Court.” It is the case of the petitioners, as projected with full sincerity by Mr. Anurag Kumar Shukla, learned counsel for the petitioners, that the piece of land belonging to the husband of petitioner no.1 was acquired 2 way back by the State of Bihar for the benefit of Police Employees House Construction Society (hereinafter referred to as „the Society‟) way back in the year 1977-78 under the provisions of Land Acquisition Act (hereinafter referred to as „the Act‟). The award under section 11 of the Act was prepared in the name of petitioner no.1 and the land holders including petitioner no.1 had thereafter sought reference under section 18 of the Act leading to institution of L.A.Case No. 73/1982. The award given by the Land Acquisition Judge in the aforesaid L.A.Case was also made subject matter of several first appeals and they were disposed of by a common judgment dated 3.2.1994 in F.A.No. 121/1985 whereby and whereunder the award given by the Land Acquisition Judge was modified fixing rate of compensation at the rate of Rs. 4400/- per katha besides payment of some additional statutory amount in terms of the Act. It is not in dispute that the State of Bihar had also taken the matter to the Apex Court by filing S.L.P.No. 14886-938 of 1995 (Civil Appeals No. 2889-2941 of 1997) and they were disposed of by a common order dated 12.4.1997 affirming the judgment of this Court dated 3.2.1994 in its entirety. It is the case of the petitioner no.1 that in terms of the judgment of this Court as 3 affirmed by the Apex Court she was entitled for payment of Rs. 4,45,161.16 paise (principal amount Rs. 1,17,069.81 paise and interest as on 3.4.2000 Rs. 3,28,091.35 paise), but on an impression created by the Society, respondent no.3, that the amount payable to them was only Rs. 3,57,450/- they had accepted a cheque of Rs. 3,57.450/-, whereafter the execution case pending before the Execution Court was withdrawn. The petitioners, therefore, have claimed that by fraudulent action of respondent no.3 society they were deprived of payment in terms of the judgment of this Court and were forced to accept the payment of lesser amount which led them looser of a sum of Rs. 87,711.16 paise. Thus, the whole case of the petitioners is that this Court should now direct the respondents to pay the petitioners the balance of compensation of Rs. 87,711.16 paise with interest as they were/ are still entitled for full payment of Rs. 4,45,161.16 paise, an amount payable under the order of this Court in terms of judgment in F.A. No. 121/1985. In this case two separate counter affidavits have been filed, one by respondent no.1 the State of Bihar and the other by the Society, respondent no.3. From the reading of the counter affidavit of the State it would 4 appear that a preliminary objection has been taken that since the petitioners had in terms of the agreement between them and respondent no.3 society accepted the payment through cheque dated 15.3.2001 for a sum of Rs. 3,57,450/- and had withdrawn the execution case No. 10/1996, they cannot be permitted to now raise this issue after a period of six years and that too by filing a writ petition. The State somehow has also tried to put up a picture that while it was taking steps for arranging the funds of the society for payment of compensation in terms of the award as modified by this Court and affirmed by the Apex Court, the petitioners by their own action having entered into the negotiation with the society respondent no.3 had accepted the payment and as such, there would be no liability for the State to make payment of compensation. Respondent no.3, on the other hand, in its counter affidavit has taken a plea that after the judgment of the Apex Court an agreement was arrived into between the petitioners and the respondent society and in terms of the agreement the payment of Rs. 3,57,450/- was made to the petitioners. It is the case of the respondent society that the petitioners having undertaken in the said 5 agreement that after receiving payment of Rs. 3,57,400/- they shall have no claim grievance against the judgment debtors i.e. Respondents and its being acted upon in letter and spirit cannot be permitted to raise much less re-open the issue for payment of compensation. The respective stands in the pleadings of the parties, therefore, lead to the first and foremost question as to whether this writ petition for payment of amount of award under the Act after disposal of execution case in the Court below is maintainable? Since the plea of alternative remedy was raised by the respondents by way of a Preliminary objection, this Court has to note the submission of Mr. Lalit Kishore, learned Addl. Advocate General No.III, who has submitted that the provisions of the Act being self contained, would stand as a bar to the remedy under Article 226 of the Constitution of India would for payment of compensation under the Act. In this respect he has relied on the provisions of section 53 of the Act which makes the Code of Civil Procedure applicable to the proceedings under the Act. Taking a clue from section 53 of the Act learned counsel has proceeded that once the award is made under section 18 of the Act and gets confirmed in appeal in terms of section 54 of the Act, the 6 remedy for the land holder to claim the amount of compensation under award is only by way of execution of the award which is a decree in terms of section 26(2) of the Act. It is, thus, the submission of the learned AAGIII that if there is any iota of evidence of fraud as pleaded by the petitioners for claiming payment of balance amount of award, the remedy for the petitioners would be under section 47 of the Code of Civil Procedure (C.P.C.) read with its Order 23. In nut shell the submission of the learned counsel is that the petitioners ought to have moved the same executing court and having elected a forum of the executing court they cannot be allowed to change it by now taking recourse to the remedy under Article 226. In this context reliance was placed by him on the judgment of the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti vs. Alleged Committee of Management Sri R.J.I. College, Ara, reported in (1996) 3 SCC 11 and the Division Bench judgment of this Court in the case of Sachidanand Roy & ors. vs. the State of Bihar & ors., reported in 1998(1) PLJR 889, as also in the case of Abijit Ganguly vs. Sri Md. Jalaluddin, reported in 1997(2) PLJR 1007. It was finally submitted by the learned AAGIII that in a given situation, the petitioners could have also availed the remedy 7 under section 48 C.P.C. and in any event there would be no limitation for impeaching the order of the executing court with regard to disposal of the execution case without payment of full amount of award. In this context he has placed reliance on a judgment of Privy Council in the case of Oudh Commercial Bank Ltd., Fyzabad vs. Thakurain Bind Basni Kuer & ors., reported in AIR 1939 P.C. 80. Rebutting the aforementioned submissions of the learned AAG III Mr. Shukla has submitted that the payment of award being part of a fundamental right guaranteed under Article 31 of the Constitution as was available in the year 1977-78 in view of acquisition of the land made in that period, there would be no waiver of fundamental right and to support himself he would place reliance on the judgment of the Apex Court in the case of Olga Tellis & ors. vs. Bombay Municipal Corporation & ors., reported in AIR 1986 S.C. 180. He has also placed reliance on paragraph 79 of the judgment of the Apex Court in the case of Minerva Mills Ltd. & ors. vs. Union of India & ors., reported in AIR 1980 S.C. 1789 and the judgment of the Apex Court in the case of M.P.State Agro Industries Development Corporation vs. Jahan Khan, reported in AIR 2007 S.C. 3153. He has also placed strong reliance on a judgment of 8 Full Bench of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna Bhavani vs. The Land Acquisition Officer, Peddapuram & ors., reported in AIR 2005 A.P. 365 as also another judgment of the Apex Court in the case of Kamleshwar Prasad vs. Pradumanju Agarwal, reported in 1997(2) PLJR 86 (S.C.). In the opinion of this Court the preliminary objection raised by the Respondents as pressed by the learned Addl. Advocate General No. III must be upheld that the present writ application seeking enforcement of an award under the Act is not maintainable. The reasons for the same are quite simple. As noted above, in the submission of the learned AAGIII there is a complete mechanism for payment of compensation after acquisition of land of the land holder by the State for public purposes or for a company. Such mechanism includes reference to a civil court on the quantum of compensation and making of an award by the civil court after considering the evidence of the parties which in terms of section 26(2) of the Act is a decree. Section 26 of the Act reads as follows: “26. Form of awards.-(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of 9 section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub- section, together with the grounds of awarding each of the said amounts. (2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clause (9) respectively, of the Code of Civil Procedure, 1908.” The moment such an award is deemed to be a decree and the Civil Procedure Code is made applicable to the proceedings of the Act in terms of section 53 thereof, there would be hardly any scope for the petitioners to contend that a person aggrieved against any portion of the award or its execution would be entitled to maintain a writ petition. There being statutory remedy available in terms of the Act through the aegis of the Civil Court, the petitioners cannot be heard to say that they may have still a remedy under Article 226 of the Constitution after the execution case has been dropped on payment of amount of award under execution. This is precisely what has been decided by the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti (supra) wherein the Apex Court noticing that the suit filed by the Samiti was pending before the Civil Court had held that a 10 writ petition against an order of interim injunction and rejection of prayer for impleadment of a party was not maintainable and the order of the High Court allowing the writ petition was unsustainable. The relevant portion of the aforesaid judgment which would be directly applicable to the facts of the present case reads as follows: “ … … Though the jurisdiction of the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial court against which the remedy of appeal or revision is available cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/ miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum”. 11 Here also position is somewhat the same. There is no dispute that the petitioners after finality of the award and the rate as determined by this Court and affirmed by the Apex Court had levied execution payment of amount in Execution Case No. 10/1996 and the executing court by an order dated 20.7.2001 had recorded that: ^^ fMdzhnkj dh vksj ls fnukad 2-2-2001 dks nkf[ky vkosnu i= lapkfyr dj fMdzhnkj ds fon~ vf/koDrk fuosnu djrs gSa fd muds iw.kZ fcdk, jkf”k dk Hkqxrku ejhmu la0&2 }kjk dj fn;k x;k gS rFkk fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ laca/k ugha jg x;k gsS A vr% mUgsa bl ckn dks okil ysus dh vuqefr nh tk; A lquk rFkk vfHkys[k dk vcyksdu fd;k A fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ cdk;k ugha jg x;k gS rFkk fMdzhnkj bl btjk; okn dks okil ysuk pkgrs gsaS A vr% fMdzhnkj dh izkFkZuk Lohd`r dh xbZ A ckn iw.kZ Hkqcrku esa fMdzhnkj }kjk okil fy, tkus ds dkj.k [kkfjt fd;k x;k A ** It has to be noted that this order is now being said to be a fraudulent order as the petitioners claiming to be illiterate person are said to be misled by the society. It would be, however, difficult to accept even this submission because the agreement between the society and petitioner no.1, on record in the counter affidavit of the society, not only takes note of the entire history of the land acquisition as also the rate of enhancement of the award given by the civil court but also its modification by this Court and affirmance by the Apex Court in the preamble of the agreement 12 and under the relevant portion of the agreement it was clearly mentioned that irrespective of the claim of the decree holder she had settled the matter outside the court by arriving at the compromise by accepting payment of Rs. 3,57,450/-. The agreement dated 30th January, 2001 being somewhat significant and in fact having a direct bearing to the issue involved in this writ application needs to be quoted hereinbelow: “BEFORE NOTARY PATNA SADAR PATNA AGREEMENT This agreement made and entered into at Patna this 30th day of month of January 2001 between Smt. Fuljharia Devi, W/o Munaka Rai and Bhola Rai, S/o Munaka Rai of Paharpur, P.S. Gardanibagh, District Patna, hereinafter referred to as DECREE HOLDER in L.A. Execution Case No. 10 of 1996 (which expression shall, unless excluded by or repugnant to the context mean and include his heirs, administrators, assigns, legal representatives and/or successors-in- interest) of the … FIRST PARTY. AND POLICE EMPLOYEES CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD., Gandhi Vihar, Anisabad, Patna (Regd. No.20/ Patna, dated 23rd December, 1996) through its Secretary, Sri Krishnadeva Prasad Sinha resident of A-14 Gandhi Vihar, P.S. Gardanibagh, 13 District Patna hereinafter referred to as the INTERVENOR, JUDGMENT DEBTOR NO.2 in L.A. Execution Case No. 10 of 1996 (which expression shall, unless it be repugnant to the context or meaning thereof mean and include its administrators, legal representatives, assigns nor nominee or nominees or successors-in-interest of … SECOND PARTY. Whereas (A) The decree holder solemnly affirms and declares that an area of 46.795 acres, of land in village PAHARPUR, P.S. Phulwari, District Patna has been acquired by the State of Bihar for the Police Employees Co- operative House Construction Society Ltd., Patna (hereinafter referred to as the Society) for the construction of houses of Police Employees. (B) AND whereas total land meaning approximately 1.08 Acre i.e. 34.56 Kathas at Mauza Paharpur, Plot Nos. 366, 367, 373, 385, 386, 405, 407, 434, 435 P.S. Gardanibagh, District Patna is involved in this case. (C) AND whereas the Decree Holder Covenant that the aforesaid land was in his exclusive possession with absolute right, title and interest in the year. (D) AND whereas the collector under Land Acquisition Act categorized 35.420 acres of land as Class „Ka‟ Block and rest of 11.35 acres of land as class „Kha‟ Block. The compensation for class „Ka‟ land was 14 fixed at the rate of Rs. 66,434/- per acre equivalent to Rs. 2075/- per katha whereas the compensation for class „Kha‟ land was fixed at the rate of Rs. 64,000/- per acres, equivalent to Rs.2000/- per Kathas. (E) AND whereas the Decree Holder applied for Reference under section 18 of the Land Acquisition Act. (F) AND whereas by the impugned judgment and awards dated 15.1.1991 the learned special Land Acquisition Judge II, Patna has enhanced the compensation amount to Rs. 6,500/- per Katha. (G) AND whereas of the State of Bihar has filed F.A.No. 148 of 1985 against the judgment of enhancing the compensation of acquired land. The aforesaid appeal has partly been allowed by the Hon‟ble High Court vide order dated 3.2.1994 by which the Hon‟ble High Court reduced the compensation for the land acquired from 6,500/- per Katha to Rs. 4,400/- . (H) AND whereas the State of Bihar has filed S.L.P.No. 14886 to 14939 in the Hon‟ble Supreme Court of India against the payment of additional compensation under section 23(IH) of the Land Acquisition Act vide order dated 14.7.1995 and the Hon‟ble Supreme Court has allowed the aforesaid S.L.P. (I) AND whereas the Police Employees House Construction Society Ltd. was one of the party in the aforesaid 15 First Appeal and S.L.P. (J) AND whereas the Police Employees House Construction Society Ltd. filed a petition under Order 1 Rule 10 of C.P.C. in L.A.Ex.Case No. 10 of 96 and Hon‟ble L.A. Judge II, Patna has made necessary party on 25.1.2001. NOW THIS WITNESSETH AND IS HEREBY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:- 1. The Decree Holder and Police Employees House Construction Society Ltd. has compromised the case outside court and the parties have agreed to settle the dispute on payment of Rs. 3,57,450.00 through account payee cheque in the name of the Decree Holder irrespective of the claim of the Decree Holder. On payment of the said amount the Decree Holder will have no claim with the judgment Debtor No. 1 and 2 (The State of Bihar through Collector Patna and the Police Employees House Construction Society Ltd. 2. That the decree Holder will receive the consideration amount for the aforesaid L.A.Ex.Case No. 10 of 1996, and on such receipt the Decree Holder and his legal heirs shall have no further claims and they shall not further demand any interest in future. 3. The Decree Holder agree and undertake that he shall file withdrawal petition in the court of Sub Judge II, Patna after receiving 16 an amount of Rs. 3,57,450.00 from Police Employees House Construction Society Ltd. 4. That the Decree Holder agree and undertake that after receiving the said amount i.e. Rs. 3,57,450.00 shall also have no grievance from the Judgment Debtors. 5. The Police Employees House Construction Society Ltd. also agree that the matter has already been compromised outside the court and he has agreed to pay through account payee cheque a sum of Rs. 3,57,450.00 to the Decree Holder. SCHEDULE I DESCRIPTION OF LAND UNDER THIS AGREEMENT. Khata No. Plot No. Area 153 367 0.14 200 373 0.10 202 386 0.22 254 405 0.09 407 0.08 200 434 0.10 435 0.05 175 366 0.07 202 385 0.23 1.08 i.e.34.36 Kathas In witness whereas the parties hereto have set and subscribed their respective hands on the day month and year aforesaid. Above written in presence of the witness. Sd/- Illegible Signature of Decree Holder 17 Witnesses Sd/- Illegible Signature of J.D.No.2 Police Employees House Construction Society Ltd. Through its Secretary.” (underlining for emphasis) This Court has purposely quoted the entire agreement in extenso and underlined relevant portion to emphasis that whatever was stated before the executing court on 20.7.2001 by filing an application on 2.2.2001 was a natural fall out of the aforementioned agreement dated 30.1.2001. In presence of the aforementioned agreement followed by the order of the executing court dated 20.7.2001, it would be thus very difficult for this Court to accept the story of either fraud or misrepresentation which has been made the only basis by the petitioners to file this writ application. To this Court it appears that the petitioners have subsequently become wiser after six years receiving full and final payment only for filing of this writ petition for claiming additional amount which they had voluntarily given up in terms of the compromise petition. It has to be noted that the signature thereon of both the petitioners and the thumb impression with attestation of petitioner no.1 with attestation of petitioner no.2 in presence 18 of two witnesses and the signature and thumb impression on all the pages of the agreement on a stamp paper purchased on 21.12.2000 for the purpose of writing an agreement can hardly even leave a scope for introduction of story of fraud. In that view of the matter, it appears to this Court that the petitioners are shy in approaching or taking resort to the remedy under section 47 C.P.C. which lays down as follows : “47. Questions to be determined by the court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or there, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.” Thus if in terms of Section 47 C.P.C. the petitioners had any grievance even after alleged discovery of fraud on account of the proceedings of general body of committee dated 25.2.2001 (Annexure 1 to the writ application), they had to approach the said executing court which had passed the order on 20.7.2001 dismissing the execution case on recording the satisfaction of the decree. This Court must hasten to add that even the proceedings of the general body does not improve the case of the 19 petitioners as even there the issue of compromise with the landholders including the petitioners has been clearly mentioned as would appear from the following relevant text thereof: ^^ Hkw&vtZu lEcaf/kr 53 eqdnes loksZPp U;k;ky; ls fu’ikfnr gks pqds gSa vkSj mlesa vf/kdka”k esa lc&tt ¼2½]iVuk ds U;k;ky; esa fMdzh dh jkf”k dh olwyh ds fy;s Hkw&Lokfe;ksa }kjk btjk;okn nkf[ky fd;s x;s gSa A iwoZ dh dk;Zdkfj.kh lfefr;ksa us bl Js.kh ds 22 eqdneksa esa t;?kks’k dh jkf”k vius Lrj ls fglkc dj Hkw&vtZu dk;kZy; esa tek dj nh gS A buesa 19 eqdneksa esa t;?kks’k jkf”k dk Hkqxrku fMdzh /kkfj;ksa dks ugha gqvk gS vkSj 3 eqdneksa esa xyr O;fDr;ksa }kjk