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2017 Supreme(All) 2493
IN THE HIGH COURT OF ALLAHABAD
Anjani Kumar Mishra, J.
Kamlesh – Appellant
Vs.
U.P. Avas Vikas Parishad – Respondent
Civil Revision No. 319 of 2017
Decided On : 23-11-2017
For the Appellant :S.S. Sharma, Advocate
The executing Court does not have the authority to modify the order under execution based on a judgment of the Apex Court, as it is beyond the scope of an execution case.
Headnote:
Land Acquisition Act - Execution Proceedings - Court held that the revisionist, a co-owner, was not entitled to seek modification of the order under execution based on a judgment of the Apex Court, as it was beyond the scope of an execution case. The court also referred to Section 28-A of the Land Acquisition Act, which provides for re-determination of compensation, and concluded that the revisionists are entitled to be paid compensation at the same rate as their co-owners, but such an order cannot be passed by the executing Court.
Fact of the Case:
The land, in which the revisionist was a co-owner, was acquired under the Land Acquisition Act. The co-tenure holders sought a reference under Section 18 of the Act, and the compensation was enhanced to Rs. 200/- sq. meter. The U.P. Avas Vikas Parishad filed a First Appeal challenging the order, and it was held that the revisionists' co-owner was entitled to compensation at the rate of Rs. 150/- per sq. meter only. The execution case was disposed of, stating that the amount due to the co-tenure holders has already been paid and the decree stands satisfied.
Finding of the Court:
The court held that the revisionist was not entitled to seek modification of the order under execution based on a judgment of the Apex Court, as it was beyond the scope of an execution case. The court also referred to Section 28-A of the Land Acquisition Act and concluded that the revisionists are entitled to be paid compensation at the same rate as their co-owners, but such an order cannot be passed by the executing Court.
Issues: The main issue was whether the revisionist, as a co-owner, was entitled to seek modification of the order under execution based on a judgment of the Apex Court, and whether the executing Court had the authority to pass such an order.
Ratio Decidendi: The executing Court does not have the authority to modify the order under execution based on a judgment of the Apex Court, as it is beyond the scope of an execution case. Section 28-A of the Land Acquisition Act provides for re-determination of compensation, and the revisionists are entitled to be paid compensation at the same rate as their co-owners, but such an order cannot be passed by the executing Court.
Final Decision: The revision was dismissed by the court.
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. 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. - (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 wi
