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Judgment
F.M. Reis, J.—Heard Shri A. F. Diniz, Learned Counsel appearing for the petitioner. None for the respondents. The petitioner was heard yesterday and the matter was kept part heard for today so as to enable the respondents to appear and advance submissions but however none appeared for the respondents today as well.
The above petition challenges the order dated 29.07.2006 passed in Execution Application No. 5/2005 in Land Acquisition Case No. 209/96 by the learned Additional District Judge at Panaji, whereby the value of the trees which were existing in the acquired land was deducted whilst fixing the amount of compensation payable to the petitioner in accordance with the judgment and award passed in the reference proceedings.
Shri A. F. Diniz, Learned Counsel appearing for the petitioner has assailed the impugned order and pointed out that as per the judgment and award passed by this Court in First Appeal No. 125 of 2004 dated 31.03.2005, the compensation with regard to the land acquired was fixed without any deduction of the value of the trees existing in the acquired land. The Learned Counsel further pointed out that it is well settled that the Executing Court cannot go behind the decree and considering the facts of this case, the learned Judge was not at all justified to direct that the value of the trees existing therein is to be deducted whilst paying the amount of compensation to the petitioner. The Learned Counsel further pointed out that this Court at the time of hearing of this petition for admission on 21.12.2006 had recorded that the respondents were intending to file a review petition of the judgment and award passed in the said First Appeal No. 125 of 2004 so as to seek the deduction of the value of the trees from the compensation which was awarded to the acquired land. The Learned Counsel thereafter pointed out that the respondents have filed a Civil Application ( Review ) No. 17 of 2007 in First Appeal No. 125 of 2004 wherein by order dated 04.08.2007, the respondents were given two weeks'' time to enable them to file a separate application for condonation of delay and it was further recorded therein that if no such application is filed within the said period of two weeks, Civil Application ( Review ) No. 17 of 2007 would stand dismissed without further orders of the Court. The Learned Counsel further pointed out that an application for condonation of delay was filed by the respondents which came to be withdrawn by the respondents on 16.08.2007 which is found to be recorded in the order dated 15.07.2008 passed by this Court in Civil Application ( Review ) No. 17 of 2007. The Learned Counsel as such submitted that the respondents have failed to avail of the opportunity given by this Court to file a review application and as such the question of refusing the compensation to the petitioner in accordance with judgment passed by this Court in the said First Appeal No. 125 of 2004 would not arise. The Learned Counsel further pointed out that at the time of passing order dated 21.12.2006, the respondents were directed by this Court to deposit the whole amount due and payable under the award without deducting the value of the trees awarded by the Land Acquisition Officer within a specific time and accordingly, the respondents have deposited the said amount. The Learned Counsel for the petitioner does not dispute the correctness and/or the calculations of the said amount deposited by the respondents before the Executing Court.
Having heard the Learned Counsel for the petitioner and on perusal of records, I find that in the judgment passed by this Court in First Appeal No. 125 of 2004 there was no deduction on account of value of the trees existing in the acquired land to be effected whilst fixing the compensation for the land acquired. Considering that it is well settled that the Executing Court cannot go behind the decree, the Executing Court was not justified to deduct the value of the trees whilst calculating the compensation payable for the land acquired. The judgment of this Court relied upon by the Executing Court reported in (2005) 30 AIC 806 (Bom) is not applicable to the facts of the present case. In the said case, the judgment and award passed in the reference proceedings clearly stipulated that the value of the trees is to be deducted whilst fixing the compensation for the land acquired. This is not the case in the present proceedings and as such the question of deducting the value of the trees for the purpose of calculating the compensation payable to the petitioner does not arise at all. Hence, considering the above, I find that the Executing Court was not justified to pass the impugned order and deduct the value of the trees whilst fixing the compensation payable for the land acquired. The impugned order dated 29.07.2006 to that extent deserves to be quashed and set aside.
In view of the above, I pass the following order :
ORDER
(i) The petitioner is entitled to the compensation at the rate fixed in the judgment passed in First Appeal No. 125 of 2004 without any deduction on account of the value of the trees as directed in the impugned order at para 8 dated 29.07.2006.
Rule is made absolute in above terms with no order as to costs.
The petition stands disposed of accordingly.