Indian Oil Corporation Kanpur vs Ram Swaroop Bajaj (Deceased) ...
2013 Latest Caselaw 2611 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 38
 

 
Case :- WRIT - C No. - 1619 of 2010
 

 
Petitioner :- Indian Oil Corporation Kanpur
 
Respondent :- Ram Swaroop Bajaj (Deceased) Thru. Km. Aparna Bajaj & Ors.
 
Petitioner Counsel :- Prakash Padia
 
Respondent Counsel :- M.M. Sahai,M.Mohan,Ravi Shankar Prasad,S.C.,Sachindra Upadhyay,Zafar Nyer
 

 
Hon'ble Arun Tandon,J.

Heard Sri Prakash Padia, learned counsel for the petitioner-Corporation and Sri M.M. Sahai, learned counsel for the contesting respondent.

Facts of the present writ petition present a very sad state of affairs qua compliance of the judgment and decree of the Courts of law as well as waste of public money at the hands of the officer, who are handling the public corporation in collusion with interested person.

Facts in short as on record leading to the present writ petition are as follows:

Original suit no. 679 of 1984 was filed by one Ram Swaroop Bajaj against Indian Oil Corporation, Local Branch Office Panki, Kalpi Road, Kanpur (hereinafter referred to as the 'IOC') with the allegation that the Indian Oil Corporation has wrongly included the land of the plaintiff within the boundary wall of its Plant situate at Panki, Kanpur. A permanent injunction was prayed for demolition of the boundary wall constructed over the land of the plaintiff described as A,B,C,D in the plaint map with a further injunction restraining the agents and employees of the IOC from interfering with the possession/use of the Plot Nos. 2063/2 and 2074/4 or raising any construction thereon.

The suit was decreed by the IIIrd Additional Civil Judge, Kanpur Nagar vide judgement and decree dated 16th January, 1992. Relevant portion of the judgement passed in the said suit reads as follows:

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Against the judgement and decree passed by the trial court, First Appeal no. 180 of 1992 was filed by the petitioner before the District Judge, Kanpur. The first appeal was partly allowed by the IX Additional District Jduge, Kanpur vide judgement dated 29th January, 1996. Against the order of the firs appellate court, Second Appeal (Defective) No. 57 of 1996 was filed before the High Court, which was dismissed 6th May, 1996. Order of the High Court was subjected to challenge before the Apex Court by means of Special Leave Petition (Civil) No. 12714 of 1996. This petition is stated to have been dismissed on 26th November, 1996.

The judgement and decree of the trial court was put to execution, which is numbered as Execution Case No. 33 of 1998 and is pending before the Special Chief Judicial Magistrate/ Additional Civil Judge, Court No. 16, Kanpur.

By means of the order dated 27th July, 2009 impugned in the present writ petition, the Executing Court has directed that since in terms of the judgement and decree dated 16th January, 1992, the boundary wall has not been demolished in its entirety, the defendants must pay a sum of Rs.1,26,13,834.27/- for the period upto 3rd September, 2005 as damages with interest within a period of one month failing which the accounts of the Indian Oil corporation maintained at State Bank of India shall be ceased and thereafter that the plant as well as movable and other immovable properties of the corporation shall be attached and sold in auction.

Against the order of the Executing Court dated 27th July, 2009, revision no.139 of 2009 has been filed by the IOC, which has been dismissed by the Additional District Judge, Court No. 10, Kanpur Nagar vide judgement dated 2nd December, 2009. It is against these orders of the courts below that the present writ petition has been filed.

It is the case of the petitioner IOC that the entire boundary wall as per the plaint allegations has been demolished. Same was the stand taken before the Executing Court. The Executing Court instead of determining such issue finally has prolonged the said proceedings by granting an interim compensation @ of Rs. 25,000/- per month to the judgement debtor.

In case the boundary wall has not been demolished by the IOC in its entirety, as alleged by the decree holder, in my opinion it would have been appropriate for the Executing Court to have got the entire disputed boundary wall demolished by resorting to the provisions of the Code of Civil Procedure, if required, with the help of the police. The execution case should have been brought to its logical end, instead of providing interim compensation. One of the methods in the facts of the case for satisfying the decree could be by directing that the decree holder may himself get the remaining wall demolished and the cost of such demolition being paid by the IOC.

In my opinion the issue as to whether the stand taken by the judgement debtor to the effect that the disputed boundary wall has not been demolished in its entirety should have been determined finally. There was no occasion of the trial court to direct payment of compensation on the basis of report of the Court Commissioner which suggests that the wall has not been demolished in its entirety. The trial court should have got the decree executed and the standing wall should have been demolished. It appears that plaintiff, defendants and the executing court are not acting fairly. It is public money, which is involved and the IOC is a public corporation.

As on date, IOC has paid a sum of Rs. 63 lacs as compensation for not demolishing the boundary wall and a further liability of Rs. Rs.1,26,13,834.27/- has been created under the order impugned.

The cost of the entire land involved would be much less than the money is claimed or directed to be paid as compensation for boundary wall being not demolished as per the satisfaction of the decree holder. Such practice of not deciding the execution case finally cannot be approved of.

Public money is being lendered only with the help of the judgement and decree of the Court, which only requires demolition of boundary walls and payment of compensation as interim measure. More than 17 years have elapsed from the date of judgement of Apex Court but neither the Executing Court nor the officer of the corporation have taken any effective measures to satisfy the decree finally.

In the totality of the circumstances as on record, it would be appropriate to direct that the execution case no. 33 of 1998 shall proceed on day to day basis. No adjournment shall be granted except in exceptional circumstances to either of the parties. Proceedings shall be concluded finally within three months from the date a certified copy of this order is filed before the executing court. If executing court finds that some part of the boundary wall has yet not been demolished by the corporation, it shall take all appropriate steps to get the same demolished with the help of the police instead of prolonging the proceedings. No further payment shall be made till the matter is finally decided.

Managing Director of IOC is directed to get an enquiry conducted against the local officers of Kanpur Nagar and to see as to how such huge sum of money of the public corporation has been paid as compensation only for not demolishing the boundary wall. The IOC must make an appropriate application before the Executing Court, if the boundary wall had been been demolished earlier for the money paid as compensation during the pendency of the proceedings being returned.

With the aforesaid directions/observations, the present writ petition is disposed.

(Arun Tandon, J.)

Order Date :- 23.5.2013

Sushil/-

Case :- WRIT - C No. - 1619 of 2010

Petitioner :- Indian Oil Corporation Kanpur

Respondent :- Ram Swaroop Bajaj (Deceased) Thru. Km. Aparna Bajaj & Ors.

Petitioner Counsel :- Prakash Padia

Respondent Counsel :- M.M. Sahai,M.Mohan,Ravi Shankar Prasad,S.C.,Sachindra Upadhyay,Zafar Nyer

Hon'ble Arun Tandon,J.

Disposed of.

For order see order of date passed on the separate sheets.

(Arun Tandon, J.)

Order Date :- 23.5.2013

Sushil/-