Radheshyam S/O. Zumbarlal ... vs M.I.D.C., Amravati And Another
2018 Latest Caselaw 939 Bom

 Judgment                                            1                                wp2095.16.odt




                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 

                          NAGPUR BENCH, NAGPUR.


                             WRIT PETITION NO. 2095 OF 2016


 Radheshyam S/o. Zumbarlal Chandak,
 Aged about 68 years, Occ.: Business,
 R/o. Prabhat Chowk, Amravati. 

                                                                         ....  PETITIONER.
                                      //  VERSUS //


 1. M.I.D.C., Amravati,
    Tq. & Dist. Amravati. 

 2. State of Maharashtra,
    through Collector (Land Acquisition 
    Officer, Amravati)
                                                        .... RESPONDENTS
                                                                             .
  ___________________________________________________________________
 Shri R.G.Kavimandan, Adv. H/f. Shri S.S.Alaspurkar, Advocate for Petitioner.
 Shri M.M.Agnihotri, Advocate for Respondent No.1.  
 Shri A.M.Balpande, A.G.P. for Respondent No.2.  
 ___________________________________________________________________


                              CORAM : Z.A.HAQ, J.

DATED : JANUARY 24, 2018.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

Judgment 2 wp2095.16.odt

3. In reference proceedings at the behest of the petitioner

(claimant) an award was passed by the reference Court on 2 nd July, 2008,

however, this award was silent on the entitlement of the claimant for interest

on the amount receivable by the claimant for the period for which the

reference was pending. The claimant filed an application under Section 152

read with Section 151 of the Code of Civil Procedure praying that the award

be corrected and the respondents be directed to pay interest as per the

provisions of Section 28 of the Land Acquisition Act, 1894. This application

is dismissed by the impugned order. The learned trial Judge reeled under

the impression that he cannot modify the award passed on 2 nd July, 2008 as

it is not permissible for the executing Court to go beyond the judgment and

decree / award. The learned trial Judge relied on the judgment given by the

Hon'ble Supreme Court in the case of Bai Shakirben (dead) by Natwar

Melsingh and Others vs. Special Land Acquisition Officer and Another, reported

in AIR 1996 SC 3323.

4. After examining the matter, I find that the learned trial Judge

has committed an error by rejecting the application filed by the petitioner

under Section 152 read with Section 151 of the Code of Civil Procedure.

While dealing with this application, the learned trial Judge was not acting as

Executing Court, but was dealing with the application as the original Court.

Only because the execution proceedings were pending before him and

application was filed before him, it cannot be said that the application was

Judgment 3 wp2095.16.odt

filed before the executing Court. The learned trial Judge has misapplied the

above referred judgment. The petitioner/ claimant cannot be denied the

claim for interest as per Section 28 of the Land Acquisition Act, 1894 and in

my view, the learned trial Judge was under obligation to modify the award

passed by him on 2nd July, 2008.

5. Hence, the following order :

           i)     The impugned order is set aside.



           ii)    The application filed by the petitioner under Section 152 read

with Section 151 of the Code of Civil Procedure is allowed.

iii) The award passed by the reference Court on 2 nd July, 2008

stands modified to that extent.

Rule is made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..