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2001 DIGILAW 254 (HP)

HARI NAND JASWAL v. STATE OF H. P.

2001-09-27

KAMLESH SHARMA, LOKESHWAR SINGH PANTA

body2001
JUDGMENT Lokeshwar Singh Panta, J.(Oral) :- This application has been filed by applicant-claimant Hari Nand Jaswal under Section 151 of the Code | of Civil Procedure for recalling the orders dated 8.10.1998 passed by this Court \ in Regular First Appeal (LA) No.80/88. 2. The facts, in brief, giving rise to the this application are that a track of the land of applicant situated in Grasmere Estate (Venvilla), Summerhill, Shimla was acquired by the respondents for the purpose of establishment of Himachal Pradesh University by Notification under Section 1 of the Land Acquisition Act issued on 19.3.1971. The Land Acquisition Collector passed award on 28.3.1972. On reference to the District Judge, the amount of compensation was enhanced by award dated 21.5.1983. The State of Himachal Pradesh and Collector, Land Acquisition, filed Regular First Appeal (LA) No.80/1983 in this Court challenging the award of the learned District Judge, Shimla. The said appeal along with RPA (LA) No. 79/1983 and Cross Objection No. 15 of 198 was decided by a Division Bench of this court by judgment and decree dated October 8, 1993 whereby the amount of compensation awarded by the learned District Judge in favour of the applicant- claimant was upheld. Solatium @ 15% and interest @ 6% was awarded by this Court on the enhanced amount of compensation to the applicant- claimant. 3. It appears that both the parties were satisfied with the judgment passed by this court on 8.10.1993 as we are told that no appeal was carried the said judgment to the Supreme Court. Himachal Pradesh University though its Registrar filed an application being CMP No. 120/2000 under Section 151 of the Code of Civil Procedure seeking to issue directions to the applicant-claimant to refund an amount of Rs.59,010.60 with interest @ 18% p.a. accrued there on which was received by the applicant-claimant in excess of the amount of his entitlement as per the judgment of this Court. During the tendency of the said application, the applicant-claimant has filed the present application on 27th July, 2000 under Section 151 CPC stating inter alia that the judgment passed by this Court in RFA (LA) No. 80/83 dated 9.10.1998 granting solatium @ 15% and interest @ 6% p.a. on the enhanced amount of compensation was contrary to law as contained in Section 23 (1-A) and Sub Section (2) of Section 23 of the Land Acquisition Act, 1891 which provide for grant of interest @ 12% p.a. on the market value of the land and for grant of solatium @ 30% on such market value. The award on reference petition filed by the applicant-claimant under Section 18 of the Land Acquisition Act (hereinafter for short Act) was passed by the learned District Judge on 21.5.1983 and the benefit of amended provisions of Section 23(1 -A) and 23(2) of the Act was required to be given by the District Judge in his award as well as aforesaid benefits were payable to the applicant by judgment passed by this Court in RFA (LA) No. 80/83. The claim of the applicant-claimant was that he should have been awarded solatium and interest as per law laid down by five Judge Bench of the Supreme Court in Union of India v. Raghubir Singh, AIR 1989 SC 1933 (Sic) in which it has been held that in the matter of acquisition of land in which the award is passed by the Land Acquisition Collector or the District Judge under Section 18 of the Act between 30.1.1982 to 21.9.1981, the benefit of amended Section 23(1 -A) and 23(2) are applicable and the persons whose land are subject matter are entitled to solatium and interest as per Land Acquisition (Amendment) Act, 1981 (Act No.68 of 1981), which came into force w.e.f September 21, 1981. The legal position as settled in Raghubir Singhs case (supra) was reiterated by the apex court in Prabh Singh Dhillon & Ors. v. Hoshiarpur Improvement Trust & Ors. 1996(1) SCC 309. The applicant has claimed that the judgment dated 8.10.1993 passed by this Court in RFA No.80/83 is contrary to law as laid down by the Supreme Court in these two judgments and the claimant is entitled to solatium @ 30% and interest @ 20% per annum. 1. Mr. v. Hoshiarpur Improvement Trust & Ors. 1996(1) SCC 309. The applicant has claimed that the judgment dated 8.10.1993 passed by this Court in RFA No.80/83 is contrary to law as laid down by the Supreme Court in these two judgments and the claimant is entitled to solatium @ 30% and interest @ 20% per annum. 1. Mr. Devinder Ghosh, learned counsel appearing on behalf of the University raised a Preliminary objection about the maintainability of the application of the applicant under Section 151 C.P.C. as the judgment dated 8.10.1993 has attained finality and the same cannot be recalled or reviewed by this Court in these proceedings. 5. Per contra, Mr. Y.P. Sood, learned counsel for the applicant-claimant submits that non grant of solatium @ 30% and interest @ 12% to the applicant-claimant by this Court is an error apparent on the face of the record and thereby mis-carriage of justice is done to him, and the judgment has to be recalled and the mistake can be rectified by this Court by exercising the inherent jurisdiction under Section 151 or powers under Section 152 CPC. Mr. Sood relied upon a judgment of the Supreme Court in Jayalakshmi Coelho v. Oswald Joseph Coelho, AIR 2001 SC 1081 in which the Supreme Court while dealing with the powers of the Courts under Section 152 CPC to rectify the decree said as under: In terms of S.I 52 C.P.C., any error occurred in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under S. 152, C.P.C. may or may not strictly apply to any particular proceeding. In a matter when it is clear that something which the court intended to do but the same was accidentally slipeed or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. In a matter when it is clear that something which the court intended to do but the same was accidentally slipeed or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the Court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the Court but unintentionally the same does mention in the order or the judgment or something which was intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed. It is to be confined to something initially intended but left out or added against such intention." 6. On a, careful reading and examination of the above said judgment, we are of the view that the ratio of this judgment will not help or improve the claim of the applicant-claimant made in this application. In the judgment dated 8.10.1993 passed by this Court in RPA (LA) No.80/83 it was not clear that something which the Court intended to do but the same was incidentally slipped or any mistake crept in due to clerical or arithmetical mistake and the mistake has to be rectified in these proceedings. The factum and legal position of the present case is squarely and entirely covered by the judgments of the Supreme Court in State of Maharashtra v. Maharau Srawan Hat/car, 1995(3) SCC 316, Bai Shakriben (Dead) By Natwar Melsingh & ors. v. Special Land Acquisition Officer & Anr. 1996(1) SCC 533 and Union of India v. Swaran Singh & Ors. AIR 1997 SC 162. 7. In State of Maharashtra v. Mahara Srawan Hat/cars case (supra) it has been held in paragraph 8 thus: (SCC p.320). v. Special Land Acquisition Officer & Anr. 1996(1) SCC 533 and Union of India v. Swaran Singh & Ors. AIR 1997 SC 162. 7. In State of Maharashtra v. Mahara Srawan Hat/cars case (supra) it has been held in paragraph 8 thus: (SCC p.320). "Thus, it would be seen that a decree having been made under Section 26 (2), the civil court is left to correct only either clerical or arithmetical mistakes as envisaged expressly under Section 13-A of the Act or under Section 152 C.P.C. Though Section 151 CPC gives inherent power to the Court, it is intended only to prevent abuse of the process of the court or to meet the ends of justice. The present is not a case of such nature. Further, since Section 23 is an express power under which the civil court has been conferred with the jurisdiction to determine compensation, and in addition to the market value certain percentage of the amount is directed to be awarded as envisaged under Sections 23 (1-A) and 23(2) and the interest component under Section 28, the invocation of Section 151 CPC by necessary implication stands excluded." 8. The ratio of the decision in State of Maharashtra v. Maharau Sarawan Hatkar has been followed by the Supreme Court in Bai Shakribens case (supra). In the said case their Lordships held in paragraph 6 thus: (SCC p.535) "6. A Constitution Bench of this court in Union of India v. Raghubir Singh came to consider the effect of sub-section (2) of Section 30 of the transitory provision on which strong reliance was placed by Shri Dave. In paragraphs 33 and 31, the Constitution Bench had held that if the proceedings are pending in appeal, the Amendment Act has no application and it would be applicable only to the proceedings if they are pending before the Collector or Reference Court between 30.1.1982 to 21.9.1981. It would thus, be seen that if the proceedings are pending between these dates, indisputably the appropriate course (sic court) or LAO is required to apply the provisions as amended under Act 68 of 1981. But having allowed the decree to be final, the question emerges whether it would be open to the executing court or the Reference Court to go behind the decree which becomes final to amend the self-same decree by exercising the power under Order 47 Rule 1 and Section 151 CPC. But having allowed the decree to be final, the question emerges whether it would be open to the executing court or the Reference Court to go behind the decree which becomes final to amend the self-same decree by exercising the power under Order 47 Rule 1 and Section 151 CPC. We feel that the executing court cannot go behind the decree. It would have been appropriate for the claimants to have gone in appeal and have the matter corrected, but unfortunately they did claim of the appellate remedy and allowed the decree to become final. The omission to award additional amounts under Section 23 (1-A), enhanced interest under Section 28 and solatium under Section 23(2) are not clerical or arithmetical mistake crept in the award passed by the Reference Court but amounts to non-award. Under those circumstances, the Reference Court was clearly in error in entertaining the application for amendment of the decree and is devoid of power and jurisdiction to award the amounts under Sections 23 (2), 23(1-A) and 28 of the Act". 9. In Union of India v. Swaran Singhs case (supra) the Supreme Court again reiterated the settled position of law on the question involved in the present proceedings in paragraphs 7 and 8 thus: (AIR p. 163) "7. It is settled law that after the reference Court has granted a award and decree under S.26 (l) of the Act which is an award and judgment under S.26 (2) of the Act or on appeal under S.51, the only remedy available to a party is to file an application for correction of clerical or arithmetical mistakes in the decree. The award of solatium and interest would be granted on enhancement of compensation when the Court finds that the compensation was not correct. It is a part of the judgment or award. Admittedly, as on that date the claimants were entitled to solatium at 15% and interest at 6%. The amendment Act 68 of 1981 came into force as on September 21, 1981. It is settled law that if the proceedings are pending before the reference Court as on that date, the claimants would be entitled to the enhanced solatium and interest. In view of the fact that the reference Court itself has answered the reference and enhanced the compensation as on December 21, 1981, the decree as on that date was correctly drawn and became final. 8. In view of the fact that the reference Court itself has answered the reference and enhanced the compensation as on December 21, 1981, the decree as on that date was correctly drawn and became final. 8. The question then is; whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1981. This controversy is no longer res integral. In State of Punjab v. Jagir Singh, 1995 Supp (1) SCC 626; (1995 AIR SCW J126) and also in catena of decisions following thereafter in Union of India v. Pratap Kaur (dead) through LRs., 1995 (3) SCC 263; State of Maharasthra v. Maharau Srawan Hatkar 1995 (2) JT (SC) 583: (1995 AIR SCW 1791); State of Punjab v. Babu Singh, 1995 Supp (2) SCC 106: (1995 AIR SCW 1691); Union of India v. Raghubir Singh (Dead) by Lrs. 1989 (2) SCC 751: (AIR 1989 SC 1988) and K.S. Paripoornan v. State of Kerala, 1991 (5) SCC 593: 1995 AIR SCW 1001) this Court has held that reference Court or High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1981. Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23(2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15% till date of deposit under Section 28 as amended under Act 68 of 1981 are clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing Court." 10. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing Court." 10. In the light of the above said decisions of the Supreme Court, we are of the considered view that the application made by the applicant- claimant under Section 151 CPC for recalling the judgment of this Court dated 8.10.1993 passed in RFA (LA) No. 80 of 1983 is not maintainable as the said judgment has attained finality and, therefore, this application is dismissed as not maintainable. 11. The observations made by the then Chief Justice in his order dated 3.1.1987 passed in CMP No.3321/1986 will be of no consequences to the applicant-claimant to decide about the maintainability of this application and, therefore, no relief can be granted to the applicant- claimant based upon the observations made in the said order. Costs on the parties. -