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2015 DIGILAW 335 (PNJ)

Vijay v. State of Punjab

2015-02-27

K.KANNAN

body2015
Order K. Kannan, J. All these batch of applications are brought at the instance of the applicants/beneficiaries of the land acquisition, who were, however, not party to the decision rendered by this court in RFA No. 1364 of 1994 and its connected cases and the cross-objections. In the manner of determining the compensation, it was held that the compensation payable would be Rs.265/- per square yard. In so doing, the transactions of leases created for 99-100 years were taken to constitute the exemplars and this compensation determined was applied for the lands in the proximity acquired through subsequent notifications. Against this judgment, special leave to appeal had been filed by the State of Punjab as well as by the applicants with leave to prefer appeal as person aggrieved by the award. It was sought to be stated, inter-alia, that in the manner of assessment of compensation, the court had committed a clerical error in taking the value per square yard to be Rs.550/- instead of Rs.55/-, making particular reference to exhibit P.3 which comprised of 500 square yards for lease of Rs.8250/-. The assessment made was Rs.165/- per square yard, whereas it should have been Rs.16.50. It was pointed out before the Supreme Court that the rate as per square yard was Rs.55/-, if the lease stipulated in document was taken and that this court had made a mistake in finding compensation payable at Rs.265/- per square yard. The Supreme Court by its order in the SLPs filed by the State as well as by the applicants/beneficiary dismissed with the following observations: "Permission to file special leave petitions is granted. Delay in filing the special leave petitions is condoned. Special leave petitions are dismissed." 2. The applicants before this court are seeking for review with the applications for condonation of delay contending that in the order passed, while referring to the manner of assessment of compensation, the court has brought about a tabulation in para 7 that sets out the exhibit numbers, dates, extent sq. yards and the lease and has worked out the stipulation of lease under P.3 and P.4 at Rs.165/- per square yard, leases for P.7 and P.8 have been stipulated for Rs.237.50/- per square yard and for P.9 and P.10 stipulation of lease has been taken at Rs.532.50 per square yard. yards and the lease and has worked out the stipulation of lease under P.3 and P.4 at Rs.165/- per square yard, leases for P.7 and P.8 have been stipulated for Rs.237.50/- per square yard and for P.9 and P.10 stipulation of lease has been taken at Rs.532.50 per square yard. In the very same para, it is also stated that the lease amounts have variation in the range between Rs.16.50 per square yard to Rs.53.24 per square yard. 3. Learned Senior Counsel would argue that the court, while it has correctly brought about the calculation in one portion of the judgment, has, in the same judgment, given a wrong calculation and that has permeated in the ultimate decision referring to the calculation made at 50% for the highest lease taken as Rs.532.50. The counsel would state that Rs.532.50 was a mistake and it was only Rs.55 and 50% of the same ought to have been Rs.27.50 per square yard and not Rs.265/- per square yard. It does not require great arithmetical skill to know what what is brought out in the judgment contains an obvious error in calculation. 2+2 does not become 10 by a court's judgment. It ought to be what is normally understood as only possible, namely 4. If I have committed a mistake in my order, making a reference to lease deed, setting out the lease amount for the total amount of the lease granted and was making a calculation for the lease per square yard, simple calculation shall be setting out the lease amount and dividing it by the total extent in square yards which was lease in order to find out the amount of lease per square yard. Such calculation ought to have resulted only in the calculation of 27.50 per quare yard and could have been 265/- per square yard as the judgment reads. I, therefore, find that the judgment does contain an error in calculation. 4. When these applications for correction are brought by review, the objections was taken by the landowners. There are two sets of objections: one, at the instance of the persons who were party in the SLP Nos. 8045-8047 of 2014 which were the first orders passed by the Supreme Court on 18.7.2014 dismissing the Special Leave Petitions. 4. When these applications for correction are brought by review, the objections was taken by the landowners. There are two sets of objections: one, at the instance of the persons who were party in the SLP Nos. 8045-8047 of 2014 which were the first orders passed by the Supreme Court on 18.7.2014 dismissing the Special Leave Petitions. Based on orders of dismissal it appears that claims for enhancement at the instance of the owners also appear to have been dismissed. Some appeals by the State seeking for reduction were also dismissed citing the judgment in SLP Nos. 8045-8047 of 2014. The parties in the other cases have also filed their objections. The applications for reviews are, therefore, filed with a further delay in other matters, which were not covered directly by this judgment in RFA No. 1364 of 1994, but in other cases which had also adopted the same valuation. The objections of the landowners in the other cases are, therefore, to the effect that their own attempts to secure enhancement of compensation against the judgments rendered by this court were dismissed summarily by making reference of the order of the Supreme Court dated 18.7.2014 and they have lost chance to secure further enhancement. There are no bonafides, according to the landowners, for the appellants to come with the review petition with further delay in approaching this court. The objections from the respondents, therefore, are two folds: one, the appellants had approached the Supreme Court and having failed in their attempt cannot file applications for review before this court. The provision of Order 47 Rule 1 CPC allow for review application to be entertained, only if no appeal is filed against the judgment which is sought to be reviewed. A SLP, which is in the nature of appeal ought to be taken, therefore, as constituting a bar for the applicants to resort to this court after they have failed in their attempt to have the mistake found in the judgment corrected by judicial intervention in the Supreme Court. A SLP, which is in the nature of appeal ought to be taken, therefore, as constituting a bar for the applicants to resort to this court after they have failed in their attempt to have the mistake found in the judgment corrected by judicial intervention in the Supreme Court. The second objection is that there is a substantial prejudice cause to the landowners by the fact that their own attempt to secure the enhancement failed only because the Supreme Court did not find it worthwhile intervening for an award that this Court had passed granting compensation @ 262.50 per square yard and a reduction which is sought for now will literally make it impossible for any of the landowners to seek for re-assessment of compensation, an opportunity that had been lost by the fact that there own appeals were dismissed before the Supreme Court. 5. The respective counsel on both sides refer to the decisions of the Supreme Court relating to extent of intervention that could be possible when an SLP is disposed of not on merit but summarily dismissed. The Senior Counsel appearing for the petitioners would refer to the judgment of the Supreme Court in Kunhayammed and others v. State of Kerala and another (2000) 6 Supreme Court Cases 359. The Supreme Court was considering the issue of merger of judgment of a higher forum to a judgment passed by an inferior court and explained that doctrine of merger was not universal or unlimited in its application. A three member Bench of the Supreme Court held that its applicability has to be determined keeping in view the nature of jurisdiction exercised by the superior forum, the contents and the subject matter of challenge. The court held that effect of dismissal at the SLP by a non speaking/speaking order and dismissal of non speaking after grant of speak leave were different. The Supreme Court explained the effect of dismissal in the context of language of Order 47 Rule 1A CPC of how review was possible when there was no appeal preferred, thus:- "The Review can be filed even after SLP is dismissed is clear from the language of Order 47 Rule 1 (a). Thus the words no appeal has been preferred in Order 47Rule 1(a) would also mean a situation where special leave is not granted. Thus the words no appeal has been preferred in Order 47Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the superior court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Courts order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted." 6. The Supreme Court also distinguished the effect of an SLP to be admitted and later is summarily dismissed in the following fashion:- "The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist." 7. This judgment of the Supreme Court has been considered in several other judgment reiterating the same principle. They are Khoday Distilleries Ltd. And Ors. This judgment of the Supreme Court has been considered in several other judgment reiterating the same principle. They are Khoday Distilleries Ltd. And Ors. V. Mahadeshwara S.S.K. Ltd., 2012 (10) JT 559 , Bakshi Dev Raj (2) and another v. Sudheer Kumar, (2011) 8 Supreme Court Cases 679, Gangadhara Palo v. Revenue Divisional Officer and another (2011) 4 Supreme Court Cases 602, Meghmala and others v. G. Narasimha Reddy and others (2010) 8 Supreme Court Cases 383 and Palani Roman Catholic Mission v. S. Bagirathi Ammal (2009) 16 Supreme Court Cases 657. 8. The Senior Counsel appearing on behalf of the respondents would refer to the judgment of the Supreme Court in Ram Janam Singh v. State of Uttar Pradesh in 1994(2) S.C.T 68 : 1994 (2) SCC 622 that dealt with the mode of how a person who is not made a party to have his redressal made. The Supreme Court merely explained that the petitioner who is not party has the locus standi to challenge the judgment either by way of filing a review petition before the High Court or by filing an SLP before the Supreme Court. The counsel would try to draw an inference from this judgment that if an SLP has been filed, the attempt to file a review petition cannot be sustained. 9. I have observed already that there is no dispute that the judgment contained an error in calculation of a simple arithmetical division in allowing for quotient to secure additional digit of when it should have been viz instead of Rs.16.50, I have stated it 160.50. In the ultimate analysis, therefore, when the amount of 532.50 was taken after rounding off, 50% of the same would be Rs.265/-, the correct calculation must have been Rs.55/- per square yard and 50% of the same must have bee Rs.27/-. That such a mistake exists is accepted by all the counsel. I also observe that the matter of mathematical calculation can never be an issue of reasoning that is incapable of being corrected at any time. If reasoning exists at all in all this, such reasoning exists as regards of application of a simple mathematical principle of how division or multiplication is to be made. There can be no subjectivity in such an exercise at all. The answer ought to be same to a baby or to a scholar. If reasoning exists at all in all this, such reasoning exists as regards of application of a simple mathematical principle of how division or multiplication is to be made. There can be no subjectivity in such an exercise at all. The answer ought to be same to a baby or to a scholar. I have evidently committed a mistake of what a baby would not have possibly done. It would require to be corrected without any fetter and if there is any fetter, I need to find out the manner of coming out of it. I do not even see if there is any obstacle, after the judgment of the Supreme Court in Kunhayammed's case (supra). The judgment of the Supreme Court in Ram Janam Singh's case (supra) was allowing for two alternatives of either to move an application for review or to prefer an appeal. The three member Bench of the Supreme Court says, if there is appeal before the Supreme Court, it will not still be taken as barring an application for review if the SLP itself was not on merit. The situation contemplated in Ram Janam Singh is subsumed in the reasoning contained in Kunhayammed's case. I find no conflict. On other hand, the judgment of the Supreme Court in Ram Janam Singh must be read in the context of what Kunhayammed's case provides and should make possible the correction to be made. It is wholly irrelevant that there was subsequent judgment passed by the Supreme Court merely referring to the dismissal already made in the SLP. In none of those cases has there been any consideration of the case on merits. 10. It can again be no argument that the clerical mistake was pointed out in the ground of appeal and the Supreme Court did not find it worthwhile to interfere with the same. All of what I will apply to myself for the imperatives for correction in the judgment was not the issue which the Supreme Court took note of. The Supreme Court cannot be said to have committed any error in approving wrong calculation. It made no approval. It decided not to interfere and if Kunhayammed is any answer, it ought not be taken as even a consideration of an error in calculation. The Supreme Court cannot be said to have committed any error in approving wrong calculation. It made no approval. It decided not to interfere and if Kunhayammed is any answer, it ought not be taken as even a consideration of an error in calculation. That correction could always be made by the court that committed the mistake and I would not, therefore, be fettered by the fact that this was taken as ground in the SLP. After all, the Supreme Court did not say that wrong calculation made by the High Court was correct or the High Court was not making wrong calculation. It will be contradiction in terms and will defy logic. Such argument cannot be countenanced at all. 11. It is also no argument, as passionately made by the counsel for the landowners that their own appeals for enhancement was got dismissed summarily and they will lose a chance to correct the judgments of dismissals. If the calculation made by this court is wrong, all the judgments are required to be corrected to conform to the correct calculation. That correction of what I will make now will be taken as a judgment, which will be still open for the parties to canvass for its correctness in a higher forum. The landowners will come by no special handicap or disadvantage. Their dismissal must be taken of the dismissal of the appeal that contained reference to an assessment of compensation of a particular amount. If that amount is modified as incorrect in subsequent judicial dispensation by this court, it will always give the landowners a fresh cause of action to agitate the correctness of the reasoning adopted for assessing the compensation at the rate now fixed. It will never be possible for any party to urge that the calculation made wrongly is correct calculation. Such absurd position thankfully is not urged before me. 12. There is also a strong argument made that there are no bonafides in the applicants to resort to an action for review, after such a delay when after they had originally filed a petition in RFA No. 3469 of 1994 and any further delay in other appeals was not justified. Such absurd position thankfully is not urged before me. 12. There is also a strong argument made that there are no bonafides in the applicants to resort to an action for review, after such a delay when after they had originally filed a petition in RFA No. 3469 of 1994 and any further delay in other appeals was not justified. If they have resorted to an action for review and a fetter of law of limitation could loom large, even then the courts are never without power to condone the delay, if there is manifest injustice in the original dispensation. The law of limitation is a law of procedure as well. If, however, mistake is sought to be correct as clerical, even the trappings of limitation will not apply for what is sought to be corrected is one by exercise of power under Sections 152 and 153 CPC. They impose no such restriction. Even if the applications are filed under Order 47 Rule 1CPC, I will treat these applications under Sections 152 and 153 CPC, for what is incorrect is merely a clerical error and I have gone into no issue of reasoning found in the judgment nor allowed the counsel to make an argument on any merit on reasoning contained in the judgment other than the mistake that is pointed out before me. I have again, therefore, brought this correction only for arithmetical error and I have not subjected the order already passed to any appraisal on issue of reasoning. I, therefore, also reject the plea that there is any bar of limitation or there is want of bonafides in the applicants to come with the appellations for review. 13. The amount of lease which has been brought out in the tabulation merely represents 25% of the annual value of lease as constituting the premium. The amount mentioned in the last column is premium paid. The annual value must therefore, be taken as four times of the said amount and 55/- rupees of what I have held as what should have been correct, must reflect 25% of the lease, being the premium and the annual lease will be four times of the same, which shall be (55 x 4=) L220/- and applying 50% cut, it should be Rs.110/- per square yard. This shall substitute the amount which I have already assessed as compensation payable per square yard. 14. This shall substitute the amount which I have already assessed as compensation payable per square yard. 14. The applications for review are allowed on the above terms. The applications for condoning the delay are also allowed.