Kamlesh And 7 Others vs U.P. Avas Vikas Parishad And 5 ...
2017 Latest Caselaw 7228 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 9
 
Case :- CIVIL REVISION No. - 319 of 2017
 
Revisionist :- Kamlesh And 7 Others
 
Opposite Party :- U.P. Avas Vikas Parishad And 5 Others
 
Counsel for Revisionist :- S.S. Sharma
 
Hon'ble Anjani Kumar Mishra,J.

Heard learned counsel for the revisionists.

This revision is directed against the judgement and order dated

16.08.2017 passed by the Additional District Judge, Court No.8

Moradabad, in Execution Case No.7/1992.

Briefly stated the facts of the case are that certain land in which,

the revisionist was a co-owner, was acquired under the

provisions of the Land Acquisition Act.

Aggrieved by the award of the Special Land Acquisition

Officer, the co-tenure holders sought a reference under Section

18 of the Act.

By the award of the reference Court, the compensation was

enhanced to Rs.200/- sq. meter. This order was put to execution.

In the execution proceedings, the revisionist was impleaded as a

opposite party on his application.

After such impleadment, the U.P. Avas Vikas Parishad preferred

a First Appeal before this Court challenging the order of the

reference Court. Even in the First Appeal, the revisionist

applied for his impleadment and was impleaded as a

respondent, therein.

Subsequently, the First Appeal filed by the U.P. Avas Evam

Vikas Parishad was allowed in part and it was held that the

respondent therein (revisionists' co-owner) was entitled to

compensation at the rate of Rs.150/- per sq. meter only.

The execution case that was instituted by Raghubir,

Raghunandan and Balbir, the revisionists' co-tenure holders, has

been disposed of saying that the amount due to them under the

order of the High Court has already been paid and the decree

stands satisfied.

It has also been observed that in case, any excess payment has

been paid to the decree holders, and the revisionist is entitled to

the same, it will be open for him to recovery the same by

appropriate proceedings.

Learned counsel for the revisionist has placed reliance upon the

decision of the Apex Court in A. Viswanatha Pillai and others

Vs. Special Tehsildar for Land Acquisition, AIR 1991 SC 1966,

which holds that in case a reference is sought by one co-owner,

the other co-owner would be entitled to the same benefit, even

where a reference was not sought by him. Precisely the same

argument has been raised to assail the order impugned.

It is necessary to observe that the judgment cited had been

passed in a Civil Appeal directed against the order passed by

the High Court in a First Appeal, which in turn was directed

against the judgment by the reference Court, in proceedings

under Section 18 of the Land Acquisition Act.

There is no quarrel as regards, the legal proposition laid down

by the Apex Court in the judgment cited. However, in my

considered opinion, this judgment cannot be applied to the

revision at hand, which arises out of execution proceedings.

The executing Court has to execute a decree or order in the

manner, it has been passed. Even if, the revisionist is entitled to

same payment in view of the judgment of the Apex Court, the

order in this regard has to be passed by the Court, which has

passed the judgment and decree and not by the executing Court.

This is so because any direction for payment by the executing

Court would amount to modifying the order under execution.

Such a modification is beyond scope of an execution case. For

this reason alone, I do not consider it necessary to interfere in

the impugned order.

In this connection, it would also be relevant to refer to Section

28-A of the Land Acquisition Act, 1894, which reads as follows

-

28A Re-determination of the amount of compensation on the basis of the

award of the Court. --

(1) Where in an award under this Part, the Court allows to the applicant

any amount of compensation in excess of the amount awarded by the

Collector under section 11, the persons interested in all the other land

covered by the same notification under section 4, sub-section (1) and who

are also aggrieved by the award of the Collector may, notwithstanding

that they had not made an application to the Collector under section 18,

by written application to the Collector within three months from the date

of the award of the Court require that the amount of compensation

payable to them may be re-determined on the basis of the amount of

compensation awarded by the Court: Provided that in computing the

period of three months within which an application to the Collector shall

be made under this sub-section, the day on which the award was

pronounced and the time requisite for obtaining a copy of the award shall

be excluded.

(2) .................."

This provision quoted, coupled with the decision of the Apex

Court cited, no doubt leads to only one conclusion that the

revisionists are entitled to be paid compensation at the same

rate to which, their co-owners were held to be entitled but such

an order, as already observed herein-above, cannot be passed by

the executing Court.

Besides, if the contention of the revisionist is accepted, it shall

render the aforequoted Section 28-A, redundant.

Accordingly and subject to the observations made above, this

revision is dismissed.

Order Date :- 23.11.2017

RKM