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2016 DIGILAW 305 (KER)

STATE OF KERALA v. P. SETHUMANATHAN

2016-03-17

ANIL K.NARENDRAN, P.R.RAMACHANDRA MENON

body2016
ORDER : Ramachandra Menon, J. This petition has been filed by the State/acquisitioning authority seeking to review the judgment and decree dated 15.12.2010 in L.A.A. No. 535 of 2010, which was preferred by the respondent/claimant for enhancement of the compensation. Mistakes which unfortunately crept in the judgment and decree passed by the Reference Court continued to be acted upon, going un-noticed and since the verdict of the court below got merged with the verdict passed by this Court, it became essential to file this review petition. 2. Heard both the sides in detail. 3. Keeping the principle of 'actus curiae neminem gravabit' (an act of the court shall prejudice no man) in mind, the endeavour is to see whether any mistake has actually been resulted and if it does require to be rectified ?. 4. The case projected by the review petitioner/State is that an extent of 1.50 Ares of land was acquired from the respondent pursuant to Section 4 (1) notification published on 10.06.2004. The land acquisition officer fixed the market value of the land as Rs.2,71,107/- per Are, which was enhanced to Rs.4,33,771.20 per Are (Rs.1,75,545/- per cent) by the Reference Court. This was sought to be further enhanced as per the appeal preferred by the claimant before this Court. The appeal was disposed of, as per the judgment dated 15.10.2010 re-fixing the market value of the land as Rs.16,16,000/- per Are, placing reliance on the verdict already passed by this Court in L.A.A. No. 467 of 2008 for similar category of land, also ordering payment of all the statutory benefits flowing therefrom. In the decree portion, the proportionate cost payable by the State to the claimant was shown as Rs.2,17,536/-; but as per the memo of costs for the appellant/claimant (giving the split up figures) the total cost was shown only as Rs.1,70,421/-, observing that the 'Advocate's fee' was not certified and hence to be disallowed. 5. In the decree portion, the proportionate cost payable by the State to the claimant was shown as Rs.2,17,536/-; but as per the memo of costs for the appellant/claimant (giving the split up figures) the total cost was shown only as Rs.1,70,421/-, observing that the 'Advocate's fee' was not certified and hence to be disallowed. 5. Pursuant to finalization of the above proceedings, amounts were worked up and balance statement was prepared in the Execution Petition; whereupon it was found that, though in the first page of the verdict passed by the Reference Court and also at page No. 3 therein, the date of passing of the Award by the District Collector was correctly shown as 10.12.2004', when it came to the decretal portion at page No.11 (answered as point No.3), it was wrongly stated that the claimant will be entitled for 12% increase on the market value for the period from 10.06.2004, till 10.12.2006, instead of 10.12.2004. Further, although the date of taking possession was correctly shown as 13.01.2005 in the judgment, the date from which interest at the rate of 9% was to be paid for the initial period of one year was shown 11.12.2004, instead of 13.01.2005 - the actual date of taking possession. Since the appellant had shown the date of Award correctly in the memorandum of appeal, mistake in the judgment and decree passed by the Reference court was omitted to be noted at that stage. The matter attained finality on passing judgment and decree by this Court in the appeal as mentioned already. Later, the claimant approached this Court complaining delay in payment of the decretal amount, by way of W.P.(C) No. 8852 of 2015, which was disposed of as per the judgment dated 07.07.2015, directing the State to discharge the admitted liability and the parties were directed to file balance statement and to have the matter proceeded with/finalized, as stipulated therein. It was in the course of preparation of such balance statement, that the mistake came to light, which hence was sought to be corrected by filing an I.A. under Section 152 of CPC before the Reference Court. It was in the course of preparation of such balance statement, that the mistake came to light, which hence was sought to be corrected by filing an I.A. under Section 152 of CPC before the Reference Court. But the said I.A. was dismissed by the Reference Court as per order dated 24.11.2015 stating that the verdict passed by the Reference had already merged with appellate decree and as such, correction if at all any, could be made only by this Court (Annexure II order). Hence the Review Petition. 6. When the matter came up for consideration before this Court, the learned counsel for the respondent submitted that there was no mistake on the part of the said respondent in any manner and that the mistake, if at all any, was on the part of the Court and further that it is not liable to be acted upon at this stage. But as pointed out by the learned Senior Government Pleader, since the mistake (in showing the correct dates and figures in the verdict/decree) was on the part of Court, the principle of 'actus curiae neminem gravabit' is applicable to both the sides and the State also cannot be a loser, nor can there be any unlawful enrichment to the respondent/claimant in this regard. This Court finds considerable force in the said submission and holds that the matter requires to be corrected to appropriate extent, if there is any error apparent on the face of the records. 7. According to the learned senior Government Pleader, if necessary correction is made, no further amount would be payable in the execution petition. A copy of the statement prepared by the Special Tahasildar (Addl LA unit) Civil Station, Thiruvannathapuram was placed for perusal of this court; correctness of which was vehemently disputed by the learned counsel for the respondent. This made this Court to pass an order dated 13.01.2016 directing the respondent/claimant to file an affidavit as to the factual particulars with reference to the correct dates and figures. Pursuant to this, an affidavit dated 03.02.2016 was filed along with a calculation statement dated 21.01.2016, wherein the balance amount payable was shown as Rs.86,114/-. On 08.02.2016, it was submitted on behalf of the respondent that some mistakes were there in the statement, also adding that the actual date of Section 4(1) notification was 23.11.2013' and not 10.06.2004 and it was sought to be corrected. On 08.02.2016, it was submitted on behalf of the respondent that some mistakes were there in the statement, also adding that the actual date of Section 4(1) notification was 23.11.2013' and not 10.06.2004 and it was sought to be corrected. Time was sought for by the Government Pleader as well, to verify the position. Accordingly, a new calculation statement dated 09.02.2016 was filed by the respondent, wherein the total balance amount payable is shown as Rs.6,26,134.81/-. The mistakes contained in the above calculation statement were pointed out by the learned Government Pleader then and there, who filed a calculation statement along with memo dated 24.02.2016, as per which, the balance amount payable to the respondent/claimant was conceded as Rs.3,41,348.53. 8. After verifying the correctness of the said statement, the counsel for the respondent has filed a fresh calculation statement dated 03.03.2016, accepting the balance amount shown as Rs.3,41,348.53 as on 31.03.2016, however pointing out that a further sum of Rs.16,575/- is also payable towards additional market value from 24.10.2003 (the correct date of Section 4(1) notification appeared in the gazette being 23.10.2003) to 23.11.2003 (the date of the last Section 4(1) notification reckoned by the Government for computing 12% additional market value on the total market value of Rs.20,17,340/- i.e. for 25 days). Thus, the total figure is shown as Rs.3,57,923.53. In other words, the dispute has come down to a meagre extent of Rs.16,575/- as on 31.03.2016. 9. The learned Government Pleader submits that the additional market value @12% is payable in terms of Section 23 (1A) from the date of Section 4(1) notification, till the date of passing the Award. Since the date of Section 4(1) notification is to be reckoned as the last date of such notifications, as given in section 4(1) of the Act and further since the last notification was published on 23.11.2003, additional market value at the rate of 12% has been worked out on the total land value of Rs.20,17,339.50 from that date, till the date of passing the Award on 10.12.2004 and hence there is no mistake. 10. The learned counsel for the respondent submits that, for the purpose of fixation of market value of the land, the crucial date is the date of Section 4(1) notification published in the gazette as per the decision rendered by the Supreme Court in Kolkata Metropolitan Development Authority Vs. 10. The learned counsel for the respondent submits that, for the purpose of fixation of market value of the land, the crucial date is the date of Section 4(1) notification published in the gazette as per the decision rendered by the Supreme Court in Kolkata Metropolitan Development Authority Vs. Gobinda Chandra Makal and another [ (2011) 9 SCC 207 ) and since the date of publication in the gazette was actually on 24.10.2003, additional market value ought to have been calculated from that date and not from the date of the last notification (23.11.2003). This mistake in turn has resulted in deficit payment of Rs. 16,575/- which hence is sought to be added to the final figure shown in the statement filed by the learned Government Pleader. But according to the learned Government Pleader, the law declared by the Supreme Court in Kolkata Metropolitan Development Authority Vs. Gobinda Chandra Maal and another [ (2011) 9 SCC 207 ] is quite categoric as revealed from paragraphs 31 to 36, crux of which is that, there is much difference in meaning between the words "the date of notification" as mentioned under Section 4(1) and the similar expression when it comes to Section 23 of the Act and that the additional market value can be calculated only from the date of last notification. Paragraphs 31 to 34 and 36 of the above verdict, which are relevant read as follows : "31. The notification under Section 4(1) of the Act is dated 13-9-2000. It was published in the Gazette dated 13-9-2000. Thereafter it was published in two newspapers. Lastly, the Collector caused public notice of the substance of such notification to be given at convenient places in the locality on 16-11-2000. The Reference Court and the High Court have proceeded on the basis that the relevant date for determining the market value is 16-11-2000. They have also relied upon the expert valuer's report which assessed the market value as on 16-11-2000. We have noticed above that the expert valuer determined the market value with reference to a sale deed dated 10-3-2000, by adding 8% as the increase in prices for the period of eight months between 10-3- 2000 and 16-11-2000 (at the rate of 1% per month). The question is whether the relevant date for determination of compensation is 13-9-2000 or 16-11-2000. 32. The question is whether the relevant date for determination of compensation is 13-9-2000 or 16-11-2000. 32. Sub-section (1) of Section 23 provides that the compensation to be awarded shall be determined by the Reference Court, based upon the market value of the acquired land at the time of publication of the notification under Section 4 sub-section (1). The first respondent contends that the "date of publication of notification under Section 4(1)" is statutorily defined in Section 4(1) (that is, the last of the dates, out of the dates of publication of the notification in the Official Gazette, publication of the notification in two daily newspapers circulating in that locality of which at least one shall be in regional language, and public notice of the substance of such notification being given at convenient places in the locality), and therefore the said words refer to 16-11- 2000 as the date of publication of notification under Section 4(1) of the LA Act. 33. Section 6 was amended in 1984 providing that no declaration under Section 6 in respect of any land covered by a notification under Section 4(1) shall be made after the expiry of one year from the date of publication of the notification under Section 4(1). In that context, to avoid any confusion as to what would be the date of publication of the notification under Section 4(1), Section 4(1) was also amended to clarify the position and it was provided that "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the declaration". But the words "publication of the notification under Section 4(1)" occurring in the first clause of Section 23(1) have different meaning and connotation from the use of the said words in Sections 4 (1) and 6 of the LA Act. Prior to the 1984 amendment of Section 4, the words "publication of notification under Section 4(1)" in Section 23(1) referred to the date of publication of the notification in the Official Gazette. Even after the amendment of Section 4(1), the said words in Section 23(1) continue to have the same earlier meaning. We may briefly indicate the reasons for our said conclusion. 34. Even after the amendment of Section 4(1), the said words in Section 23(1) continue to have the same earlier meaning. We may briefly indicate the reasons for our said conclusion. 34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of "publication of the notification" in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results. The owners of the lands which are the subject-matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself. 35. xxxxxx 36. The same words used in different parts of a statute should normally bear the same meaning. But depending upon the context, the same words used in different places of a statute may also have different meaning. (See Justice G.P. Singh's Principles of Statutory Interpretation, 12th Edn., pp. 356-58.) The use of the words "publication of the notification" in Sections 4(1) and 6 on the one hand and in Section 23(1) on the other, in the LA Act, is a classic example where the same words have different meanings in different provisions of the same enactment. The words "publication of the notification under Section 4 sub-section (1)", are used in Section 23(1) for fixing the relevant date for determination of market value. The words "publication of the notification under Section 4 sub-section (1)", are used in Section 23(1) for fixing the relevant date for determination of market value. The words "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification" in Section 4(1) and the words "one year from the date of the publication of the notification" in the first proviso to Section 6 refer to the special deeming definition of the said words for determining the period of one year for issuing the declaration under Section 6, which is counted from the date of "publication of the notification". Therefore the context in which the words are used in Sections 4(1) and 6, and the context in which the same words are used in Section 23(1) are completely different. In Section 23(1), the words "the date of the publication of the notification under Section 4(1)" would refer to the date of publication of the notification in the Gazette. Therefore, "13-9-2000" will be the relevant date for the purpose of determination of compensation and not 16-11-2000." 11. From the above, it is clear that the Land Acquisition Act itself is a glaring instance, where the same words appearing in different provisions of the same Statute may be having different meaning, depending upon the context. When the market value is to be fixed, it has to be with reference to the date of the 'earliest notification' (which in the case dealt with by the Supreme Court was the date of gazette notification), lest, there should be any attempt of 'manufacturing evidence' by creating some documents showing higher market value in view of the proposed/forthcoming acquisition and developments. The amendment brought about under Section 4(1), incorporating to reckon the date of the last notification as the date of Section 4(1) notification, was pursuant to the amendment to Section 6 brought about in the very same year (1984), prescribing the time limit as 'one year' from the date of notification, to be a valid declaration under Section 6. In other words, the last notification is relevant for working out the period of limitation with reference to the declaration under Section 6 and not for fixation of land value; which has necessarily to be with reference to the first notification. 12. In other words, the last notification is relevant for working out the period of limitation with reference to the declaration under Section 6 and not for fixation of land value; which has necessarily to be with reference to the first notification. 12. Now comes the question whether 12% additional market value has to be calculated with reference to the first Section 4(1) notification or the last of such notifications. The declaration of law by the Supreme Court in the decision cited supra, that it shall be the 'date of notification in the gazette' is in the factual context that it happened to be the first notification (as the notification in the news papers and the public notice in the locality came to be issued only much later). In the instant case, it is stated that the gazette notification was the first one, having issued on 23.10.2003, as put forth by the learned counsel for the respondent, which is not seriously disputed by the learned Government Pleader, but for contending that the date of calculation for additional market value shall be the date of the last notification. Going by the principles laid down by the Supreme Court in the aforesaid decision, since the market value of the land is to be fixed (under Section 23), with reference to the date of 'gazette notification' (i.e. first notification and not the last one), the delay in passing the Award envisages enhancement of the market value by 12%, which in turn has to be calculated from the day next to the date of notification reckoned for fixing the market value, lest the delay, if any, in completing the proceedings shall cause any loss to the claimant; nor should any undue benefit came to the hands of the Acquisitioning/Requisitioning Authority. Since the market value in the instant case has been reckoned as on the date of the first notification i.e 23.10.2003 (which is stated as the 'gazette notification'), the respondent claimant is entitled to get 12% additional market value from the very next date i.e. 24.10.2003 to the date of passing the Award on 10.12.2004. Calculation made by the State as contained in the statement filed along with the memo dated 26.02.2016 is only for the period from 23.11.2003 to 10.12.2004 and as such there is an omission to count/reckon 25 days' which requires to be corrected. Calculation made by the State as contained in the statement filed along with the memo dated 26.02.2016 is only for the period from 23.11.2003 to 10.12.2004 and as such there is an omission to count/reckon 25 days' which requires to be corrected. This being the position, the amount shown Rs.16,575/- as additional 12% of the market value of Rs.20,17,340/- for the period from 24.10.2003 to 23.11.2003 in the revised calculation statement dated 03.03.2016 submitted by the learned counsel for the respondent appears to be correct and sustainable. It is accepted and ordered accordingly. In the above circumstances, the balance amount payable in respect of the acquisition of properties of the respondent, as on 31.03.2016 is declared as Rs.3,57,923.53. The due amount with subsequent interest, if any, shall be deposited by the review petitioner within one month from the date of receipt of a copy of this order. The Review Petition stands disposed of.