ORAL JUDGMENT

1) Rule with the consent of the parties made returnable forthwith and heard.

2) The above writ petitions involved identical facts and common questions and are therefore heard and disposed of together.

3) The petitioners in the above petitions are aggrieved by the order dated 10th November, 2010 passed by the learned 3rd Joint Civil Judge, Senior Division, Yavatmal, by which the execution application filed by the petitioners for execution of order of this Court dated 18th October, 2004 came to be rejected on the ground that the order of this Court passed in a writ petition could not be executed by the trial Court and that the parties can avail of appropriate remedy for the implementation of the order of this Court passed in a writ petition.

4) The facts in brief can be stated thus.

Petitioner Madhavrao in Writ Petition No.771/2011, which is the lead matter, was the owner of Survey No.1/1, area admeasuring 1 hectare 87 ares situated at Wagada village, Taluka and District Yavatmal. The lands of the petitioners in the companion writ petitions are also from the same village. The petitioner in the above petition and the petitioners in the companion writ petitions would be referred to hereinafter as the petitioners. It appears from the record that on 11/08/1978 the Land Acquisition Officer passed an Award and granted compensation at the rate of Rs.3,000/per hectare in respect of the lands of the said village. Aggrieved by the compensation offered by the Land Acquisition Officer by the said Award, some of the land owners from the said village filed reference applications under Section 18 of the Land Acquisition Act before the Civil Court amongst which, reference was L.A.C. No.190/1988 filed by one Shri Manik. The Reference Court by its judgment and order dated 17/04/1990 enhanced the compensation to Rs.18,000/per hectare along with the commensurate statutory benefits to which the land owners were entitled. The petitioners herein became aware of the said judgment dated 17/04/1990 passed in the said Land Acquisition Case No.190/1988 and the petitioners thereafter filed an application under Section 28(A) of the said Act. The Special Land Acquisition Officer, Yavatmal on receipt of the said application agreed to grant the enhanced compensation to the petitioners as per the judgment of the Civil Court in the said Reference, by the letter dated 21/11/1991, the Land Acquisition Officer agreed to pay the enhanced compensation by 31/01/1992. On non receipt of the enhanced compensation, the petitioners were constrained to file writ petition being numbered as Writ Petition No.917/1992 in this Court. This Court directed the respondents to make the payment of the enhanced compensation dated 29th April, 1992. In spite of the said judgment dated 29/04/1992, passed in the said Writ Petition No.917/1992, no compensation was paid, the petitioners in the above petitions, therefore, had filed contempt petition under Section 11 of the Contempt of Courts Act. The said contempt petition was registered as Contempt Petition No.173/1992. In the interregnum, the respondents herein filed a Review Application for review of the said judgment dated 29/04/1992 passed in Writ Petition No.917/1992. The said Review Application came to be registered as Miscellaneous Civil Application No.259/1992. The said Contempt Petition No.262/1992 and Miscellaneous Civil Application No. 259/1992 were heard together and disposed of by common order dated 14/10/1992 whilst the Review Application was dismissed, in so far as the Contempt Petition was concerned, the respondents were directed to release the amount of enhanced compensation as per the order dated 29/04/1992 from the date of the said order. In spite of the said direction issued, the respondents did not comply with the said order passed in the Contempt Petition. The petitioners, therefore, were once again constrained to file another contempt petition, which was numbered as Contempt Petition No.292/1992 and this Court by order dated 29/04/1993 was pleased to dispose of the said Contempt Petition by saddling cost on the respondent No.2, Collector and issuing direction that the said order to be complied within 15 days.

5) The matter did not rest there, the petitioners were again constrained to file Writ Petition No.1695/1996 in which a civil application also came to be filed by them which was numbered as Civil Application No.2448/2007 in the said Civil Application, an order came to be passed on 10th April, 2007 directing the respondents to deposit the said amount in the Court immediately. Thereafter the petitioners filed Writ Petition No.3230/009 and this Court directed the respondents to release the said amount within a period of six months. After the said order came to be passed, Writ Petition No.1695/1996 had came up for hearing in this Court and this Court by order dated 01/12/2008 directed the petitioners to exhaust the remedy under Order 17 Rule 21 of the Civil Procedure Code by filing execution proceedings before the Civil Court. Accordingly, the petitioners had filed an execution proceeding which was registered as L.A.C.Execution Case No.135/2009 before the Civil Judge, Senior Division, Yavatmal. The said execution proceedings have been disposed of by the learned Civil Judge, Senior Division, Yavatmal on the grounds mentioned in the earlier part of this order, the petitioners aggrieved by the said order dated 10/11/2010 have approached this Court once again by way of the above petitions.

6) As can be seen from the conspectus of facts as narrated above, the payment of compensation to the petitioners has had a chequered history and the petitioners had to approach this Court on numerous occasions by filing writ petitions and contempt petitions but as yet according to the petitioners, they have not been paid the compensation that they are entitled to in law.

7) In response to the above petitions, the respondent No.3 has filed an affidavit in reply. The sum and substance of the affidavit is that the petitioners have already been paid the compensation that they are entitled to and, therefore, there is no cause for them to file for execution of the order dated 01/12/2008 passed by this Court. The said affidavit inter alia discloses the amounts that have been paid to the petitioners in each of the above petitions. The said statement in the affidavit to the effect that all the petitioners having been paid the compensation in full that they were entitled to in law, is controverted by the learned counsel appearing for the petitioners. It is the case of the petitioners that they would be in a position to demonstrate that though certain payments have been made, they have not received the compensation in full, that they are entitled to in law.

8) Now coming to the impugned order that has been passed by the trial Court. The petitioners undoubtedly had applied for execution of the order dated 18/10/2004 passed in the execution application Exhibit No.1 filed by the petitioners in Writ Petition No.771/2011 similar applications were filed by the other petitioners in the companion writ petitions wherein the impugned orders bear different dates. The impugned order in Writ Petition No.771/2011 passed by the trial Court ex facie discloses that the trial Court has refused to exercise jurisdiction, in view of the fact that the order passed by this Court in a writ petition cannot be executed by it. In the said context, it would be apposite to refer to Rule 23 of Chapter 17 of the Bombay High Court Appellate Side Rules, 1960, which is reproduced herein under

23. Execution of order or decree on Original Side. Any order or decree in a Civil Application under Article 226 of the Constitution passed on the Appellate Side and the nonsatisfaction of which has been reported to the State Government under the preceding rule may be transmitted to the Original Side of this Court for execution and, if so transmitted, shall be executed in accordance with the procedure prescribed for execution of decrees and orders passed in the exercise of the Ordinary Original Civil jurisdiction of this Court.

[Explanation An order or decree in a Civil Application under Article 226 of the Constitution of India, decided at the Benches at Nagpur, Aurangabad and Panaji will be transmitted to the Court of competent civil jurisdiction for execution.]

9) In the teeth of the said Rule, in my view, the ground on which the trial Court has rejected the execution application filed by the petitioners cannot be sustained as can be gathered from a reading of the explanation to the said Rule, that an order or decree passed in a proceeding under Article 226 of the Constitution of India, decided at the Benches of this Court at Nagpur, Aurangabad and Panaji would have to be transmitted to the Court of competent civil jurisdiction for execution. Hence, the order dated 18/10/2004 can be executable by the Court of the Civil Judge, Senior Division, who has passed the original Award on the basis which of the applications under Section 28A were filed by the petitioners. The petitioners would therefore have to file applications in this Court, which would thereafter be transmitted to the appropriate Civil Court of competent jurisdiction, which would undoubtedly be the concerned Civil Judge, Senior Division. This aspect would cover the tenability of the execution application qua and order passed in a writ petition.

10) In so far as the stand of the respondents is concerned, viz. that the petitioners had been paid in full compensation as per entitlement in law, it would be for the respondents to urge the same before the concerned Court, which takes up the matter for execution, as also put forward such defences against the execution as they may be advised and it would be for the concerned court trying the execution applications to deal with the execution applications on their own merits and in accordance with law.

11) In that view of the matter, the above petitions would have to be allowed and the impugned order dated 10/11/2010 would have to be set aside and is accordingly set aside with liberty to the petitioners to file appropriate applications for execution, which can be transmitted to the Court of competent civil jurisdiction for execution in terms of Rule 23 of the The Bombay High Court Appellate Side Rules, 1960. In the event, the question of limitation arises, the fact that the petitioners were prosecuting the execution applications filed before the trial Court in which the impugned orders came to be passed up to the date of the instant order would be considered by the trial Court whilst considering the application for condonation of delay. In the event, the execution applications are filed, the petitioners to give prior notice to the respondents.

12) Rule is accordingly made absolute in each of the above petitions in the aforesaid terms. The parties to bear their respective costs.