Vemula Prabhakar and ors. Vs. Land Acquisition Officer and Revenue Divisional Officer, Peddapalli, Karimnagar Dist. and anr. - Court Judgment

Excerpt:
civil - execution - article 227 of constitution of india, sections 18, 23, 26 (2), 31 and 53 of land acquisition act, 1894 and order 21 of code of civil procedure, 1908 - petitions seeking writ of mandamus against state to pay compensation awarded in lieu of land acquisition - compensation award decided by civil court after reference made by land acquisition authorities - execution application to be filed in civil court - writ of mandamus cannot be issued to execute money decree as other effective remedy in civil court is available. - - 5. it is also trite that where the party has an effective alternative remedy and he does not avail the same, the high court may require a strong case to be made out for entertaining a writ petition for issuing a writ, (see champalal v. commission, [1954]25itr167(sc) ,it was held that the high court can refuse to grant any writ if it is satisfied that the aggrieved party can get proper relief elsewhere. a legal fiction as is well known is of wide amplitude. if remand is imperative, and if the claim for enhanced compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships. if there is either failure to pay compensation or if there is an abnormal delay in payment of compensation, there will be violation of fundamental right, which was hitherto available under article 31 of the indian constitution and constitutional guarantee, which is now available under article 300a of the constitution of india, and whenever such a violation is pointed out, a constitutional court like this, cannot be a silent spectator and has to step in to issue a writ to set the things right and to remedy the situation so that the constitutional obligation of the government is duly discharged. in execution proceedings for failure to discharge the decree, a power vests in the civil court to detain the judgment debtor in civil prison till the decree is discharged. it is certainly impossible to trace a person in a case like this to put him in civil prison. when this authorities failed to deposit the decretal amount, the court below passed orders for to attachment of moveable properties. it is now well settled principle that mere existence of an alternative remedy does not deter this court in exercise of its extraordinary jurisdiction to extend its protective umbrella to a citizen and see that his just claims are not defeated by technicalities.s.b. sinha, c.j.1. whether the high court, in exercise of its jurisdiction under article 226 of the constitution of india can issue a writ of or in the nature of mandamus directing the respondents to make payment in relation to the amount enhanced by the civil court in a reference made under section 18 of the land acquisition act, 1894 ('the act' for brevity) is the question which has been referred by a learned judge of this court noticing various decisions of the division bench of this court and an unreported judgment in writ petition no. 12763 of 1999 holding that such writ petitions are maintainable. a learned single judge in sur reddy and ors. v. special deputy collector (la), medak, 1997 (1) ald 31, held that existence of remedy by way of execution petition before a civil court is not a bar and the writ petition is maintainable. the referring judge was of the opinion that a question would arise as to whether by reason of non-payment of such enhanced compensation the right of the awardees under article 300a of the constitution has been taken away.2. all these writ petitions have been filed by the awardees in whose favour judgments have been passed by the civil court on a reference made by the collector under section 18 of the act either directly before this court or after filing execution petitions in the civil courts. the learned counsel appearing on behalf of the writ petitioners would submit: (1) having regard to the scheme of the provisions of the act, provisions of order 41 of the. code of civil procedure, 1908 ('the code' for short) are not directly applicable in respect of the award made by the court; (2) as the collector is under an obligation to make payment of such award in terms of section 31 of the act, no execution petition would be maintainable. they would further submit that in any event, execution of a decree is an ineffective remedy whereby no real benefit is accorded to the awardees. having regard to the provisions of article 300a of the constitution, this court can issue a writ of or in the nature of mandamus directing the collector to make payments. if no writ of mandamus is issued, a discrimination may result between those in whose favour an award has been passed under section 28a of the act and those who are the beneficiaries of the judgment under section 18 of the act. section 55 or order 21 rule 30, order 21, rule 37 of the code have not been proved to be effective remedy and thus the availability of alternative remedy which is merely a rule of convenience should not be applied in such a case. even in terms of second proviso appended to article 31a of the constitution, when the land of a farmer who holds lands within the ceiling limit is acquired, he is to be paid just compensation. as by reason of payment of compensation no favour is shown, the court should implement the same. reliance in this connection has been placed on a large number of decisions in whirlpool corpn v. registrar of trade marks, : air1999sc22 , b. govinda reddy v. r.d.o., 1997 (5) alt 561, b.g. reddy v. revenue divnl. officer-cum-l.a.o., 1997 (5) ald 748, ram chand v. union of india, : (1994)1scc44 , k. krishna reddy v. spl dy collector, : air1988sc2123 , billa linga reddy v r.d.o., : air1996ap3 , sur reddy v. the spl deputy collector (la), 1997 (1) aplj 68, k. muralidhar reddy v. the spl dy collector, 1993 (2) an. wr 39, d.g. mahajan v. state of maharashtha, : [1977]2scr790 and state of west bengal v. anil chandra choudhury, 2000 (1) lacc 58].3. the learned government pleader, on the other hand, would submit that the award made in terms of section 18 of the act being a decree, it can be executed only in an execution proceedings. the learned counsel would contend that even two division benches of this court in writ appeal no. 1506 of 1999, dated 3.11.1999 and writ petition no. 12763 of 1999 had taken the same view. the learned government pleader has also drawn our attention to ghan shyam das gupta v. anant kumar sinha, : air1991sc2251 , r.n. dey v. bhagyabati pramanik, : (2000)4scc400 , sur reddy (supra), net ram v. union of india, (2001) 1 lacc 77, dodla malliah v. state of andh. pra., : air1964ap216 , h.g. shivanandappa v. state of karnataka, 1990 lacc 622, chand ram v. state and ors. (del), 1993 lacc 413, man singh v. union of india, 3993 lacc 371.4. a writ of or in the nature of mandamus will be subject to exercise of sound judicial discretion. the general rule is that a writ of mandamus would ordinarily not be issued when there exists an adequate specific legal remedy whereby the petitioner can be afforded relief in respect of the same subject matter. mandamus is important public law remedy and does not generally supersede legal remedies. but alternative remedy must be efficacious to accomplish the same purpose wherefor mandamus is sought for and must be equally convenient, beneficial and effective. there cannot be any doubt that alternative remedy is not an absolute bar to the maintainability of a writ petition. having regard to the latest decision of the apex court, it may not be necessary to trace all the precedents. in whirlpool corporation (supra), the law has been laid down in the following terms.under article 226 of the constitution, the high court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. but the high court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the high court would not normally exercise its jurisdiction. but the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has-been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an act is challenged.5. it is also trite that where the party has an effective alternative remedy and he does not avail the same, the high court may require a strong case to be made out for entertaining a writ petition for issuing a writ, (see champalal v. i.t. commr., w.b., : [1970]76itr692(sc) ). in c.a. abraham v. i.t. oficer, air 1961 sc 601, having regard to the fact that a complete machinery for assessment of tax and penalty has been provided under income tax act, it was held that the jurisdiction of the high court under article 226 should not be permitted to be invoked. in k.s. rashid & son v. i.t.i. commission, : [1954]25itr167(sc) , it was held that the high court can refuse to grant any writ if it is satisfied that the aggrieved party can get proper relief elsewhere.6. we may notice the relevant provisions of the act section 11 refers to an enquiry and award by the collector. section 12 ordains the collector to issue notice to such of the persons interested as are not present personally or by their representatives when the award is made. under section 18 any person interested who has not accepted the award may require the collector to refer the matter for determination of the court. section 31 provides section 26 provides for the form of awards and sub-section (2) thereof reads: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 (5 of 1908).7. section 28 empowers the court to award interest on the amount granted in excess of the amount awarded by the collector by way of compensation. section 28a provides that the persons interested in all the other land covered by the same notification and who are also aggrieved by the award of the collector may require the collector to re-determine the amount of compensation payable to them on the basis of the amount of compensation awarded by the court. sections 31(1) and 53 of the act read thus:31. payment of compensation or deposit of same in court :--(1) on making an award under section 11, the collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them in a lump sum in a case where it does not exceed five hundred rupees and in all other cases in such number of equal annual instalments not exceeding five as may be determined by the collector.53. code of civil procedure to apply to proceedings before court:- save in so far as they may be inconsistent with anything contained in this act, the provisions of the code of civil procedure, 1908 (5 of 1908) shall apply to all proceedings before the court under this act.8. the contention of the learned counsel to the effect that provisions of order 21 of the code are not applicable in relation to an award cannot be accepted. sub-section (2) of section 26 creates a legal fiction by reason whereof, the award passed by the court would be deemed to be a decree. once an award is deemed to be a decree within the meaning of section 2(2) of the code all consequences arising therefrom shall flow from the code. a legal fiction as is well known is of wide amplitude. in east end dwellings co., ltd. v. finsbury borough council, 1951 (2) all. er 587, lord asquith j laid down the law in the following terms:if one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. one of these in this case is emancipation from the 1939 level of rents. the statute says that one must imagine a certain state of affairs. it does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.9. even otherwise, by reason of provisions contained in section 53 of the act whereby and whereunder the code has been made applicable in relation to the proceedings under the act an execution petition pro tanto in terms of order 21 is maintainable. the provisions contained in the code dealing with the execution of a decree are wider ones. the same cannot be said to be ineffective remedy. the submission to the effect that an award made by a civil court being a right of property under article 300a of the constitution, can be enforced through 'a writ of mandamus cannot be accepted. a decree passed in terms of section 18 is a money decree. if the aforementioned proposition is accepted, all money decrees passed against the government can be directed to be executed through a writ of or in the nature of mandamus.10. although some discrimination apparently arises between those awardees under section 18 of the act on the one hand and under section 28a on the other, the same being based on reasonable classification and having regard to the scheme and purport of the act, cannot be said to be violative of article 14. even if it to be held violative of article 14 of the constitution, section 31 has to be declared ultra vires but no direction can be issued by the court directing the collector to make payment arising out of the award made by the court under section 18 of the act which would amount to transgression into the domain of legislature.11. it is difficult to understand why the provisions of section 55 or order 21 rules 30 and 37 of the code do not provide for an effective remedy. the prevailing state of affairs as stated by the learned counsel may have a bearing in a particular case. but it cannot be held as of law that a writ of mandamus can be issued even where there exists an alternative remedy by way of filing of an execution petition. it may be true that by payment of compensation no favour is shown to the awardees but the amount of compensation must be realised also in accordance with law.12. the submission to the effect that in some cases, second proviso to article 31a is attracted is misplaced keeping in view the fact that by reason of the act, the market value of the property is paid by way of compensation. we may, however, note that although for technical purposes in the execution petition the deputy collector (land acquisition) is shown as a judgment debtor, keeping in view the scheme of the act the land is acquired by the state whether for its own purpose or for the purpose of a company. in a case where the land is acquired for the benefit of a company, the company has to deposit the amount and thus the state has no other alternative but to pay the said amount to the decree holders.13. although it is not necessary for this court to determine finally, we may notice the provisions of article 203 of the constitution which are in the following terms:procedure in legislature with respect to estimates :--(1) so much of the estimates as relates to expenditure charged upon the consolidated fund of a state shall not be submitted to the vote of the legislative assembly, but nothing in this clause shall be construed as preventing the discussion in the legislature of any of those estimates.(2) so much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the legislative assembly, and the legislative assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.(3) no demand for a grant shall be made except on the recommendation of the governor.14. the state thus is liable to pay the amount either from its consolidated fund or from any other fund and for the said purpose even coercive steps by way of attachment and sale of the government property can be taken recourse to and such property need not be confined only belonging to the office of the collector under the provisions of the act. if so read, it cannot be said that no effective remedy is provided for.15. assuming that a writ petition, would be maintainable, a writ of mandamus can only be issued. if there is a violation of such a writ, a contempt petition will also not be maintainable for execution of the decree. it is accepted at the bar that even in such a case, for the purpose of execution, the petitioner has to knock the doors of the civil court. it would not be thus correct to contend that the mandamus can issue as a rule. in this view of the matter, we are of the opinion that for execution of decree a writ of mandamus would not be ordinarily entertained by this court.16. let us now consider the decisions cited by the learned counsel for the petitioners.17. in k. krishna reddy (supra), the supreme court observed that the appellate court should be cautious in remanding the matter arising in an appeal under the act. in this connection, it was held:perhaps, not even one half of it. it is a common experience that the purchasing power of rupee is dwindling. with rising inflation, the delayed payment may lose all charms and utility of the compensation. in some cases, the delay may be detrimental to the interests of claimants. the indian agriculturists generally have no avocation. they totally depend upon land. if uprooted, they will find themselves nowhere. they are left high and dry. they have no savings to draw. they have nothing to fallback upon. they know no other work. they may even face starvation unless rehabilitated. in all such cases, it is of utmost importance that the award should be made without delay. the enhanced compensation must be determined without loss of time. the appellate power of remand, at any rate ought not to be exercised lightly. it shall not be resorted to unless the award is wholly unintelligible. it shall not be exercised unless there is total lack of evidence. if remand is imperative, and if the claim for enhanced compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships. the appellate court may direct some interim payment to claimants subject to adjustment in the eventual award.18. in b. linga reddy (supra) it was held:if the compensation is not paid after such acquisition and dispossession, pursuant to the said acquisition the fundamental right hitherto available under article 31 of the indian constitution or the constitutional guarantee, which is now provided under article 300a of the constitution will get violated. the right to acquire a person' property under the lane acquisition act is coupled with a duty to pay compensation and it is implied in the said duty that the said compensation payable should be paid as expeditiously as possible. if there is either failure to pay compensation or if there is an abnormal delay in payment of compensation, there will be violation of fundamental right, which was hitherto available under article 31 of the indian constitution and constitutional guarantee, which is now available under article 300a of the constitution of india, and whenever such a violation is pointed out, a constitutional court like this, cannot be a silent spectator and has to step in to issue a writ to set the things right and to remedy the situation so that the constitutional obligation of the government is duly discharged. no fetters can be placed on the powers of this court to invoke the extraordinary jurisdiction under article 226 of the constitution of india. the mere fact that remedy is available by way of execution petition under the provisions of code of civil procedure, shall not prevent a constitutional court if a situation of this nature arises to exercise the powers of writ jurisdiction. by the by, what is available in execution in a decree against the government? it is only rickety chairs and tables, which cannot satisfy even a fraction of the decree and in fact several such decrees will be pending so also attachments after attachments. that will not serve the real purpose and effectual justice is not done by following that technical procedure. courts are not sitting for doing technical justice in just following the procedure. steps have to be taken to do effectual justice. in execution proceedings for failure to discharge the decree, a power vests in the civil court to detain the judgment debtor in civil prison till the decree is discharged. but, in the instant case, against a governmental decree, who is to be put in prison? it cannot be an officer who is presently holding the post of a land acquisition officer. it is certainly impossible to trace a person in a case like this to put him in civil prison.19. in k. muralidhar reddy (supra) it was held:thus, it is evident from the ratio decidendi laid down by the supreme court that a high court under article 226, in given circumstances, can issue a writ of mandamus or a direction to compel performance in a proper and lawful manner of the discretion conferred upon the government or the public authority in order to prevent injustice resulting to the concerned parties. the entire history of the case would undoubtedly go to show that injustice has been done to the petitioners whose lands have been acquired way back in 1981. even after 12 years, the legitimate compensation if denied to the petitioners, can this not be termed as injustice' done to the petitioners? i have no doubt in my mind to hold that injustice is done to the petitioners on one pretext or the other. the mere pendency of appeals or alternative remedy in execution proceedings cannot be a ground for the respondents to excuse themselves in discharging their obligation which they are bound to discharge. therefore, in my considered view, this court is competent to direct the respondents to act upon and pay the compensation to the petitioners.20. in anil chandra choudhury (supra) wherein one of us (s.b. sinha, cj) was a member, the calcutta high court was considering a case where possession had been taken without faking recourse to the provisions of the act. it was in that situation the court observed:right to hold the property is a constitutional right as envisaged under article 300a of the constitution of india. no person can be deprived of his right to hold a property except in accordance with law. the fact remains that in terms of the judgment delivered by k.m. yusuf, j., the petitioner has been deprived of such a right and thus he is entitled to be compensated. the question that such an order of compensation can be passed to determine and pay to the petitioner by this court in exercise of its jurisdiction under article 226 of the constitution of india is no longer res integra as by reason of its acts of commission or omission the state must be held to be guilty of commission of constitutional tort in view of the fact that the petitioner has been deprived of his lawful right declared in his favour by a judgment of this court.21. in wit petition no.26368 of 1996 dated 27.2.2001 although a division bench of this court has held that a writ petition will be maintainable but, apparently, the questions which have been raised before us have not been raised therein. apart from that, the said decision does not lay down the correct law and that must be overruled.22. on the other hand, in writ petition no.26368 of 1996, dated 27.2.2001 it has been held:as a result of default committed by the respondents in depositing 12% additional market value awarded by this court in the aforementioned revision petitions, the petitioners-claimants initiated execution proceedings, which were allowed. when this authorities failed to deposit the decretal amount, the court below passed orders for to attachment of moveable properties. however, since the value of the seized articles was low compared to the decretal amount, execution proceedings became ineffective.23. in bhagyabati pramanik (supra) it has been observed:we may reiterate that the weapon of contempt is not to be used in abundance or misused. normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court......... but, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the high court, at the most they are entitled to recover the same by executing the said award wherein the state can or may contend that the award is a nullity.............further, the decree holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the court for non-satisfaction of the money decree. in land acquisition cases when a decree is passed the state is in the position of a judgment debtor and hence the court should not normally lend help to a party who refuses to take legally provided steps for executing the decree. at any rate, the court should be slow to haul up officers of the government for contempt for non-satisfaction of such money decree. 24. in sur reddy (supra) a learned single judge has held:it is now well settled principle that mere existence of an alternative remedy does not deter this court in exercise of its extraordinary jurisdiction to extend its protective umbrella to a citizen and see that his just claims are not defeated by technicalities....... i hold that the execution proceedings contemplated for execution of the decree of a civil court under c.p.c. is not a remedy provided in the land acquisition act, 1894. even, if it is considered to be available for the proceedings under the act by virtue of the deeming provision in section 53 of the act it is not an effective and efficacious remedy and the same is a time consuming process. it is doubtful whether it can serve as a remedy in furtherance of a just cause. hence, i hold that this court is having ample power in exercise of its plenary jurisdiction to compel the state authorities to act in accordance with law and obey the command of law as laid down in the provisions of the land acquisition act without subjecting the citizen to an endless litigation for receiving compensation for the land lost by him under compulsory acquisition.25. in maharashtra statefinancial corporation ltdv. jaycee drags andpharmaceuticals pvt ltd, : [1991]1scr480a , it has been held:on its plain language, in the absence of anything inconsistent in the act, the provisions of the code shall obviously be applicable for the enforcement of the liability of the surety directed to be enforced as aforesaid in the same manner as a decree is enforced in a suit instituted in this behalf. it is true, as has been emphasised by learned counsel for the respondents, that there is no provision corresponding to sub-section (8) of section 32 for the enforcement of the liability of a surety who has given only personal guarantee but, in our opinion, keeping in view the amendments introduced by act 43 of 1985, it is not very significant. to us it appears that in view of section 46-b of the act and for the reasons to be stated shortly even if section 46-b was not there, in the absence of any provision to the contrary in the act, that order also, which was passed in a case where relief contemplated by clause (a) of section 31(1) of the act was claimed, could have been enforced in the manner provided in the code. the purpose of yet inserting sections (8) in section 32 seems to be that it was not intended to apply the provisions of execution of a decree for attachment or sale of property as contained in the code in its entirety and to achieve this purpose the words 'as far as practicable' were used in that sub-section. to us it appears that in the absence of any provision such as sections (8) of section 32 applying the manner provided in the code for the execution of a decree against a surety only 'as far as practicable' the entire provision contained in this behalf in the code shall be applicable. this would be so in view of the use of the expression 'any other law for the time being applicable to an industrial concern.26. while considering a matter as regards payment of interest a full bench of the, delhi high court in net ram (supra) held that the act is a complete code and lays down detailed procedure for acquisition of land, payment of compensation, solatiam and additional market value. it was observed that interest has also to be paid in terms of the provisions of the said act and no direction can be issued by way of writ of mandamus.27. it is trite that the contempt petition will not be maintainable for enforcing a writ. in kapildeo prasad sah v. state of bihar, : air1999sc3215 , it has been held:in his famous passage, lord diplock in attorney general v times newspapers ltd, (1973) 3 all. er 54 (hl), said that there is also 'an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity'. jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.28. in view of the provisions contained in section 53 of the act, an execution petition pro tanto under order 21 of the code is maintainable even for executing a degree passed by a civil court in a reference under section 18 of the act. the mere absence of ingredients of coercion against the state and/or collector in executing the decree is no ground for bypassing such a civil remedy. it is admitted by the learned counsel for the petitioners that if a mandamus issued by this court is not obeyed, the only remedy is by way of contempt. in bhagyabati pramanik (supra) and kapildeo prasad sah (supra), the supreme court held that the contempt proceedings cannot be a substitute for execution proceedings. on the other hand, in an execution petition, as observed by us, a decree can be enforced either by attachment of property - movable or immovable, of the state and also in a given case even the state has a judgment/decree, it can raise defence for execution. therefore, the judgment of this court in b. linga reddy (supra) and other judgments taking the same view do not lay down correct law. we accordingly overrule them.29. in this view of the matter, we are of the opinion that it cannot be said that the remedy provided for under the code of civil procedure, 1908 is not adequate remedy so as to enable this court to entertain the writ petition. the writ petitions are disposed of with the aforesaid observations. however we hope and trust that keeping in view the fact that the state has exercised the power of eminent domain, it has a duty to pay the amount of compensation determined by the court to the awardees as expeditiously as possible. if requisite amounts are not deposited within a reasonable time the executing courts may take such coercive steps as are permissible in law in the light of the observations made hereinbefore to the effect that not only the properties belonging to the office of the collector can be attached but any property of the state can be attached.

Judgment:

S.B. Sinha, C.J.

1. Whether the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India can issue a writ of or in the nature of mandamus directing the respondents to make payment in relation to the amount enhanced by the civil court in a reference made under Section 18 of the Land Acquisition Act, 1894 ('the Act' for brevity) is the question which has been referred by a learned Judge of this Court noticing various decisions of the Division Bench of this Court and an unreported judgment in Writ Petition No. 12763 of 1999 holding that such writ petitions are maintainable. A learned Single Judge in SUR REDDY AND ORS. v. SPECIAL DEPUTY COLLECTOR (LA), MEDAK, 1997 (1) ALD 31, held that existence of remedy by way of execution petition before a civil court is not a bar and the writ petition is maintainable. The referring Judge was of the opinion that a question would arise as to whether by reason of non-payment of such enhanced compensation the right of the awardees under Article 300A of the Constitution has been taken away.

2. All these writ petitions have been filed by the awardees in whose favour judgments have been passed by the civil court on a reference made by the Collector under Section 18 of the Act either directly before this Court or after filing execution petitions in the civil Courts. The learned counsel appearing on behalf of the writ petitioners would submit: (1) having regard to the scheme of the provisions of the Act, provisions of Order 41 of the. Code of Civil Procedure, 1908 ('the Code' for short) are not directly applicable in respect of the award made by the court; (2) as the Collector is under an obligation to make payment of such award in terms of Section 31 of the Act, no execution petition would be maintainable. They would further submit that in any event, execution of a decree is an ineffective remedy whereby no real benefit is accorded to the awardees. Having regard to the provisions of Article 300A of the Constitution, this Court can issue a writ of or in the nature of mandamus directing the Collector to make payments. If no writ of mandamus is issued, a discrimination may result between those in whose favour an award has been passed under Section 28A of the Act and those who are the beneficiaries of the judgment under Section 18 of the Act. Section 55 or Order 21 Rule 30, Order 21, Rule 37 of the Code have not been proved to be effective remedy and thus the availability of alternative remedy which is merely a rule of convenience should not be applied in such a case. Even in terms of second proviso appended to Article 31A of the Constitution, when the land of a farmer who holds lands within the ceiling limit is acquired, he is to be paid just compensation. As by reason of payment of compensation no favour is shown, the Court should implement the same. Reliance in this connection has been placed on a large number of decisions in WHIRLPOOL CORPN v. REGISTRAR OF TRADE MARKS, : AIR1999SC22 , B. GOVINDA REDDY v. R.D.O., 1997 (5) ALT 561, B.G. REDDY v. REVENUE DIVNL. OFFICER-CUM-L.A.O., 1997 (5) ALD 748, RAM CHAND v. UNION OF INDIA, : (1994)1SCC44 , K. KRISHNA REDDY v. SPL DY COLLECTOR, : AIR1988SC2123 , BILLA LINGA REDDY v R.D.O., : AIR1996AP3 , SUR REDDY v. THE SPL DEPUTY COLLECTOR (LA), 1997 (1) APLJ 68, K. MURALIDHAR REDDY v. THE SPL DY COLLECTOR, 1993 (2) An. WR 39, D.G. MAHAJAN v. STATE OF MAHARASHTHA, : [1977]2SCR790 and STATE OF WEST BENGAL v. ANIL CHANDRA CHOUDHURY, 2000 (1) LACC 58].

3. The learned Government Pleader, on the other hand, would submit that the award made in terms of Section 18 of the Act being a decree, it can be executed only in an execution proceedings. The learned counsel would contend that even two Division Benches of this Court in writ Appeal No. 1506 of 1999, dated 3.11.1999 and Writ Petition No. 12763 of 1999 had taken the same view. The learned Government Pleader has also drawn our attention to GHAN SHYAM DAS GUPTA v. ANANT KUMAR SINHA, : AIR1991SC2251 , R.N. DEY v. BHAGYABATI PRAMANIK, : (2000)4SCC400 , SUR REDDY (supra), NET RAM v. UNION OF INDIA, (2001) 1 LACC 77, DODLA MALLIAH v. STATE OF ANDH. PRA., : AIR1964AP216 , H.G. SHIVANANDAPPA v. STATE OF KARNATAKA, 1990 LACC 622, CHAND RAM v. STATE AND ORS. (Del), 1993 LACC 413, MAN SINGH v. UNION OF INDIA, 3993 LACC 371.

4. A writ of or in the nature of mandamus will be subject to exercise of sound judicial discretion. The general rule is that a writ of mandamus would ordinarily not be issued when there exists an adequate specific legal remedy whereby the petitioner can be afforded relief in respect of the same subject matter. Mandamus is important public law remedy and does not generally supersede legal remedies. But alternative remedy must be efficacious to accomplish the same purpose wherefor mandamus is sought for and must be equally convenient, beneficial and effective. There cannot be any doubt that alternative remedy is not an absolute bar to the maintainability of a writ petition. Having regard to the latest decision of the apex court, it may not be necessary to trace all the precedents. In WHIRLPOOL CORPORATION (supra), the law has been laid down in the following terms.

Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has-been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

5. It is also trite that where the party has an effective alternative remedy and he does not avail the same, the High Court may require a strong case to be made out for entertaining a writ petition for issuing a writ, (see CHAMPALAL v. I.T. COMMR., W.B., : [1970]76ITR692(SC) ). In C.A. ABRAHAM v. I.T. OFICER, AIR 1961 SC 601, having regard to the fact that a complete machinery for assessment of tax and penalty has been provided under Income Tax Act, it was held that the jurisdiction of the High Court under Article 226 should not be permitted to be invoked. In K.S. RASHID & SON v. I.T.I. COMMISSION, : [1954]25ITR167(SC) , it was held that the High Court can refuse to grant any writ if it is satisfied that the aggrieved party can get proper relief elsewhere.

6. We may notice the relevant provisions of the Act Section 11 refers to an enquiry and award by the Collector. Section 12 ordains the Collector to issue notice to such of the persons interested as are not present personally or by their representatives when the award is made. Under section 18 any person interested who has not accepted the award may require the Collector to refer the matter for determination of the Court. Section 31 provides Section 26 provides for the form of awards and Sub-section (2) thereof reads:

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 (5 of 1908).

7. Section 28 empowers the Court to award interest on the amount granted in excess of the amount awarded by the Collector by way of compensation. Section 28A provides that the persons interested in all the other land covered by the same notification and who are also aggrieved by the award of the Collector may require the Collector to re-determine the amount of compensation payable to them on the basis of the amount of compensation awarded by the Court. Sections 31(1) and 53 of the Act read thus:

31. Payment of compensation or deposit of same in court :--(1) On making an award under Section 11, the Collector shall tender payment of the compensation awarded by him to the persons interested entitled thereto according to the award, and shall pay it to them in a lump sum in a case where it does not exceed five hundred rupees and in all other cases in such number of equal annual instalments not exceeding five as may be determined by the Collector.

53. Code of Civil Procedure to apply to proceedings before Court:- Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall apply to all proceedings before the Court under this Act.

8. The contention of the learned counsel to the effect that provisions of Order 21 of the Code are not applicable in relation to an award cannot be accepted. Sub-section (2) of Section 26 creates a legal fiction by reason whereof, the award passed by the Court would be deemed to be a decree. Once an award is deemed to be a decree within the meaning of Section 2(2) of the Code all consequences arising therefrom shall flow from the Code. A legal fiction as is well known is of wide amplitude. In EAST END DWELLINGS CO., LTD. v. FINSBURY BOROUGH COUNCIL, 1951 (2) All. ER 587, Lord Asquith J laid down the law in the following terms:

If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corollaries of that state of affairs.

9. Even otherwise, by reason of provisions contained in Section 53 of the Act whereby and whereunder the Code has been made applicable in relation to the proceedings under the Act an execution petition pro tanto in terms of Order 21 is maintainable. The provisions contained in the Code dealing with the execution of a decree are wider ones. The same cannot be said to be ineffective remedy. The submission to the effect that an award made by a civil court being a right of property under Article 300A of the Constitution, can be enforced through 'a writ of mandamus cannot be accepted. A decree passed in terms of Section 18 is a money decree. If the aforementioned proposition is accepted, all money decrees passed against the Government can be directed to be executed through a writ of or in the nature of mandamus.

10. Although some discrimination apparently arises between those awardees under Section 18 of the Act on the one hand and under Section 28A on the other, the same being based on reasonable classification and having regard to the scheme and purport of the Act, cannot be said to be violative of Article 14. Even if it to be held violative of Article 14 of the Constitution, Section 31 has to be declared ultra vires but no direction can be issued by the court directing the Collector to make payment arising out of the award made by the Court under Section 18 of the Act which would amount to transgression into the domain of Legislature.

11. It is difficult to understand why the provisions of Section 55 or Order 21 Rules 30 and 37 of the Code do not provide for an effective remedy. The prevailing state of affairs as stated by the learned counsel may have a bearing in a particular case. But it cannot be held as of law that a writ of mandamus can be issued even where there exists an alternative remedy by way of filing of an execution petition. It may be true that by payment of compensation no favour is shown to the awardees but the amount of compensation must be realised also in accordance with law.

12. The submission to the effect that in some cases, second proviso to Article 31A is attracted is misplaced keeping in view the fact that by reason of the Act, the market value of the property is paid by way of compensation. We may, however, note that although for technical purposes in the execution petition the Deputy Collector (Land Acquisition) is shown as a judgment debtor, keeping in view the scheme of the Act the land is acquired by the State whether for its own purpose or for the purpose of a company. In a case where the land is acquired for the benefit of a company, the company has to deposit the amount and thus the State has no other alternative but to pay the said amount to the decree holders.

13. Although it is not necessary for this Court to determine finally, we may notice the provisions of Article 203 of the Constitution which are in the following terms:

Procedure in Legislature with respect to estimates :--(1) So much of the estimates as relates to expenditure charged upon the consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be construed as preventing the discussion in the Legislature of any of those estimates.

(2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.

(3) No demand for a grant shall be made except on the recommendation of the Governor.

14. The State thus is liable to pay the amount either from its consolidated fund or from any other fund and for the said purpose even coercive steps by way of attachment and sale of the Government property can be taken recourse to and such property need not be confined only belonging to the office of the Collector under the provisions of the Act. If so read, it cannot be said that no effective remedy is provided for.

15. Assuming that a writ petition, would be maintainable, a writ of mandamus can only be issued. If there is a violation of such a writ, a contempt petition will also not be maintainable for execution of the decree. It is accepted at the Bar that even in such a case, for the purpose of execution, the petitioner has to knock the doors of the civil court. It would not be thus correct to contend that the mandamus can issue as a rule. In this view of the matter, we are of the opinion that for execution of decree a writ of mandamus would not be ordinarily entertained by this Court.

16. Let us now consider the decisions cited by the learned counsel for the petitioners.

17. In K. KRISHNA REDDY (supra), the Supreme Court observed that the appellate Court should be cautious in remanding the matter arising in an appeal under the Act. In this connection, it was held:

Perhaps, not even one half of it. It is a common experience that the purchasing power of rupee is dwindling. With rising inflation, the delayed payment may lose all charms and utility of the compensation. In some cases, the delay may be detrimental to the interests of claimants. The Indian agriculturists generally have no avocation. They totally depend upon land. If uprooted, they will find themselves nowhere. They are left high and dry. They have no savings to draw. They have nothing to fallback upon. They know no other work. They may even face starvation unless rehabilitated. In all such cases, it is of utmost importance that the award should be made without delay. The enhanced compensation must be determined without loss of time. The appellate power of remand, at any rate ought not to be exercised lightly. It shall not be resorted to unless the award is wholly unintelligible. It shall not be exercised unless there is total lack of evidence. If remand is imperative, and if the claim for enhanced compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships. The appellate court may direct some interim payment to claimants subject to adjustment in the eventual award.

18. In B. LINGA REDDY (supra) it was held:

If the compensation is not paid after such acquisition and dispossession, pursuant to the said acquisition the fundamental right hitherto available under Article 31 of the Indian Constitution or the constitutional guarantee, which is now provided under Article 300A of the Constitution will get violated. The right to acquire a person' property under the Lane Acquisition Act is coupled with a duty to pay compensation and it is implied in the said duty that the said compensation payable should be paid as expeditiously as possible. If there is either failure to pay compensation or if there is an abnormal delay in payment of compensation, there will be violation of fundamental right, which was hitherto available under Article 31 of the Indian Constitution and constitutional guarantee, which is now available under Article 300A of the Constitution of India, and whenever such a violation is pointed out, a Constitutional Court like this, cannot be a silent spectator and has to step in to issue a writ to set the things right and to remedy the situation so that the Constitutional obligation of the Government is duly discharged. No fetters can be placed on the powers of this court to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India. The mere fact that remedy is available by way of execution petition under the provisions of Code of Civil Procedure, shall not prevent a Constitutional Court if a situation of this nature arises to exercise the powers of writ jurisdiction. By the by, what is available in execution in a decree against the Government? It is only rickety chairs and tables, which cannot satisfy even a fraction of the decree and in fact several such decrees will be pending so also attachments after attachments. That will not serve the real purpose and effectual justice is not done by following that technical procedure. Courts are not sitting for doing technical justice in just following the procedure. Steps have to be taken to do effectual justice. In execution proceedings for failure to discharge the decree, a power vests in the Civil Court to detain the judgment debtor in civil prison till the decree is discharged. But, in the instant case, against a Governmental decree, who is to be put in prison? It cannot be an officer who is presently holding the post of a Land Acquisition Officer. It is certainly impossible to trace a person in a case like this to put him in civil prison.

19. In K. MURALIDHAR REDDY (supra) it was held:

Thus, it is evident from the ratio decidendi laid down by the Supreme Court that a High Court under Article 226, in given circumstances, can issue a writ of mandamus or a direction to compel performance in a proper and lawful manner of the discretion conferred upon the Government or the public authority in order to prevent injustice resulting to the concerned parties. The entire history of the case would undoubtedly go to show that injustice has been done to the petitioners whose lands have been acquired way back in 1981. Even after 12 years, the legitimate compensation if denied to the petitioners, can this not be termed as Injustice' done to the petitioners? I have no doubt in my mind to hold that injustice is done to the petitioners on one pretext or the other. The mere pendency of appeals or alternative remedy in execution proceedings cannot be a ground for the respondents to excuse themselves in discharging their obligation which they are bound to discharge. Therefore, in my considered view, this Court is competent to direct the respondents to act upon and pay the compensation to the petitioners.

20. In ANIL CHANDRA CHOUDHURY (supra) wherein one of us (S.B. Sinha, CJ) was a member, the Calcutta High Court was considering a case where possession had been taken without faking recourse to the provisions of the Act. It was in that situation the Court observed:

Right to hold the property is a constitutional right as envisaged under Article 300A of the Constitution of India. No person can be deprived of his right to hold a property except in accordance with law. The fact remains that in terms of the judgment delivered by K.M. Yusuf, J., the petitioner has been deprived of such a right and thus he is entitled to be compensated. The question that such an order of compensation can be passed to determine and pay to the petitioner by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India is no longer res integra as by reason of its acts of commission or omission the State must be held to be guilty of commission of constitutional tort in view of the fact that the petitioner has been deprived of his lawful right declared in his favour by a judgment of this Court.

21. In wit petition No.26368 of 1996 dated 27.2.2001 although a Division Bench of this Court has held that a writ petition will be maintainable but, apparently, the questions which have been raised before us have not been raised therein. Apart from that, the said decision does not lay down the correct law and that must be overruled.

22. On the other hand, in writ petition No.26368 of 1996, dated 27.2.2001 it has been held:

As a result of default committed by the respondents in depositing 12% additional market value awarded by this court in the aforementioned revision petitions, the petitioners-claimants initiated execution proceedings, which were allowed. When this authorities failed to deposit the decretal amount, the court below passed orders for to attachment of moveable properties. However, since the value of the seized articles was low compared to the decretal amount, execution proceedings became ineffective.

23. In BHAGYABATI PRAMANIK (supra) it has been observed:

We may reiterate that the weapon of contempt is not to be used in abundance or misused. Normally, it cannot be used for execution of the decree or implementation of an order for which alternative remedy in law is provided for. Discretion given to the court is to be exercised for maintenance of the court's dignity and majesty of law. Further, an aggrieved party has no right to insist that the court should exercise such jurisdiction as contempt is between a contemner and the court......... But, at the same time, it is to be noticed that under the coercion of contempt proceeding, appellants cannot be directed to pay the compensation amount which they are disputing by asserting that claimants were not the owners of the property in question and that decree was obtained by suppressing the material fact and by fraud. Even presuming that the claimants are entitled to recover the amount of compensation as awarded by the trial court as no stay order is granted by the High Court, at the most they are entitled to recover the same by executing the said award wherein the State can or may contend that the award is a nullity.............Further, the decree holder, who does not take steps to execute the decree in accordance with the procedure prescribed by law, should not be encouraged to invoke contempt jurisdiction of the court for non-satisfaction of the money decree. In land acquisition cases when a decree is passed the State is in the position of a judgment debtor and hence the court should not normally lend help to a party who refuses to take legally provided steps for executing the decree. At any rate, the court should be slow to haul up officers of the Government for contempt for non-satisfaction of such money decree.

24. In SUR REDDY (supra) a learned single Judge has held:

It is now well settled principle that mere existence of an alternative remedy does not deter this Court in exercise of its extraordinary jurisdiction to extend its protective umbrella to a citizen and see that his just claims are not defeated by technicalities....... I hold that the execution proceedings contemplated for execution of the decree of a Civil Court under C.P.C. is not a remedy provided in the Land Acquisition Act, 1894. Even, if it is considered to be available for the proceedings under the Act by virtue of the deeming provision in Section 53 of the Act it is not an effective and efficacious remedy and the same is a time consuming process. It is doubtful whether it can serve as a remedy in furtherance of a just cause. Hence, I hold that this Court is having ample power in exercise of its plenary jurisdiction to compel the State authorities to act in accordance with law and obey the command of law as laid down in the provisions of the Land Acquisition Act without subjecting the citizen to an endless litigation for receiving compensation for the land lost by him under compulsory acquisition.

25. In MAHARASHTRA STATEFINANCIAL CORPORATION LTDv. JAYCEE DRAGS ANDPHARMACEUTICALS PVT LTD, : [1991]1SCR480a , it has been held:

On its plain language, in the absence of anything inconsistent in the Act, the provisions of the Code shall obviously be applicable for the enforcement of the liability of the surety directed to be enforced as aforesaid in the same manner as a decree is enforced in a suit instituted in this behalf. It is true, as has been emphasised by learned counsel for the respondents, that there is no provision corresponding to Sub-section (8) of Section 32 for the enforcement of the liability of a surety who has given only personal guarantee but, in our opinion, keeping in view the amendments introduced by Act 43 of 1985, it is not very significant. To us it appears that in view of Section 46-B of the Act and for the reasons to be stated shortly even if Section 46-B was not there, in the absence of any provision to the contrary in the Act, that order also, which was passed in a case where relief contemplated by Clause (a) of Section 31(1) of the Act was claimed, could have been enforced in the manner provided in the Code. The purpose of yet inserting Sections (8) in Section 32 seems to be that it was not intended to apply the provisions of execution of a decree for attachment or sale of property as contained in the Code in its entirety and to achieve this purpose the words 'as far as practicable' were used in that sub-section. To us it appears that in the absence of any provision such as Sections (8) of Section 32 applying the manner provided in the Code for the execution of a decree against a surety only 'as far as practicable' the entire provision contained in this behalf in the Code shall be applicable. This would be so in view of the use of the expression 'any other law for the time being applicable to an industrial concern.

26. While considering a matter as regards payment of interest a Full Bench of the, Delhi High Court in NET RAM (supra) held that the Act is a complete code and lays down detailed procedure for acquisition of land, payment of compensation, solatiam and additional market value. It was observed that interest has also to be paid in terms of the provisions of the said Act and no direction can be issued by way of writ of mandamus.

27. It is trite that the contempt petition will not be maintainable for enforcing a writ. In KAPILDEO PRASAD SAH v. STATE OF BIHAR, : AIR1999SC3215 , it has been held:

In his famous passage, Lord Diplock in Attorney General v Times Newspapers Ltd, (1973) 3 All. ER 54 (HL), said that there is also 'an element of public policy in punishing civil contempt, since administration of justice would be undermined if the order of any court of law could be disregarded with impunity'. Jurisdiction to punish for contempt exists to provide ultimate sanction against the person who refuses to comply with the order of the court or disregards the order continuously. Initiation of contempt proceedings is not a substitute for execution proceedings though at times that purpose may also be achieved.

28. In view of the provisions contained in Section 53 of the Act, an execution petition pro tanto under Order 21 of the Code is maintainable even for executing a degree passed by a Civil Court in a reference under Section 18 of the Act. The mere absence of ingredients of coercion against the State and/or collector in executing the decree is no ground for bypassing such a civil remedy. It is admitted by the learned counsel for the petitioners that if a mandamus issued by this Court is not obeyed, the only remedy is by way of contempt. In BHAGYABATI PRAMANIK (supra) and KAPILDEO PRASAD SAH (supra), the Supreme Court held that the contempt proceedings cannot be a substitute for execution proceedings. On the other hand, in an execution petition, as observed by us, a decree can be enforced either by attachment of property - movable or immovable, of the State and also in a given case even the State has a judgment/decree, it can raise defence for execution. Therefore, the judgment of this Court in B. LINGA REDDY (supra) and other judgments taking the same view do not lay down correct law. We accordingly overrule them.

29. In this view of the matter, we are of the opinion that it cannot be said that the remedy provided for under the Code of Civil Procedure, 1908 is not adequate remedy so as to enable this Court to entertain the writ petition. The writ petitions are disposed of with the aforesaid observations. However we hope and trust that keeping in view the fact that the State has exercised the power of eminent domain, it has a duty to pay the amount of compensation determined by the Court to the awardees as expeditiously as possible. If requisite amounts are not deposited within a reasonable time the executing Courts may take such coercive steps as are permissible in law in the light of the observations made hereinbefore to the effect that not only the properties belonging to the office of the Collector can be attached but any property of the State can be attached.