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2017 DIGILAW 2712 (ALL)

Kamlesh v. U. P. Avas Vikas Parishad

2017-11-23

ANJANI KUMAR MISHRA

body2017
JUDGMENT : Anjani Kumar Mishra, J. Heard learned counsel for the revisionists. 2. This revision is directed against the judgment and order dated 16.08.2017 passed by the Additional District Judge, Court No. 8 Moradabad, in Execution Case No. 7/1992. 3. 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. 4. Aggrieved by the award of the Special Land Acquisition Officer, the co-tenure holders sought a reference under Section 18 of the Act. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. Learned counsel for the revisionist has placed reliance upon the decision of the Apex Court in A. Viswanatha Pillai and others v. 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. 11. Precisely the same argument has been raised to assail the order impugned. 11. 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. 12. 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. 13. 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. 14. 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. For this reason alone, I do not consider it necessary to interfere in the impugned order. 14. 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) .................." 15. 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. 16. Besides, if the contention of the revisionist is accepted, it shall render the afore-quoted Section 28-A, redundant. 17. Accordingly and subject to the observations made above, this revision is dismissed.