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2019 DIGILAW 1993 (HP)

Rekha v. State Of H P & Another

2019-12-20

JYOTSNA REWAL DUA

body2019
JUDGMENT Jyotsna Rewal Dua, J. - An application moved by the petitioner under Section 152 of Code of Civil Procedure, seeking rectification of an alleged omission in the award passed by the learned Additional District Judge- (I), Shimla, in a land reference case, has been dismissed vide order dated 22.08.2019. Hence, instant petition has been preferred under Article 227 of the Constitution of India. 2. Facts 2(i) An award was passed on 10.11.2017, in LAC Petition No. 2-S/4 of 2017/16, under Section 18 of Land Acquisition Act, whereunder, petitioner was held entitled for enhancement of compensation of land @ Rs.10,196/- per square meter and Rs.4,69,124/- on account of 23 apple trees. The petitioner was also held entitled for following statutory benefits in para 37 of the award:- "a) she shall be entitled to solatium at the rate of 30% per annum on the enhanced market value of the land assessed herein above; b) she shall also be entitled to additional compensation @ 12% per annum under section 23(1A) of the Act from the date of notification under Section 4 of the Act, till the date of award made by the Collector i.e. 20.08.2011 and c) she shall be entitled to interest on market value assessed under section 23(1) of the Act, solatium the additional acquisition charges worked out under Section 23 (1A) of the Act @ 9% per annum from 20.08.2011 to 19.8.2012 i.e. for the period of one year and @ 15% per annum from 19.8.2012 till the amount of payment/deposit of the amount of compensation as assessed above in the court." The aforesaid award has been challenged by the State in this Court in RFA No.380/2018, wherein execution of award has been stayed, subject to deposit of entire awarded amount. 2(ii) An application under Section 152 of Code of Civil Procedure was moved by the petitioner before the learned Additional District Judge (1) Shimla to the effect that in para-37(c) of the award, interest @ 9% per annum has been granted from 20.08.2011 to 19.8.2012, whereas, it should have been granted from the date of issuance of notification under Section 4 of Land Acquisition Act i.e. from 25.07.2008 to 24.7.2009. And thereafter 15% interest per annum has been granted w.e.f. 19.8.2012, whereas, it should have been granted from 24.7.2009. And thereafter 15% interest per annum has been granted w.e.f. 19.8.2012, whereas, it should have been granted from 24.7.2009. The case of the petitioner is that:- there is an error in the award in respect of period from which the statutory interest has been allowed. As the provisions of Section 28 of the Land Acquisition Act 1894, 9% interest per annum has to be awarded w.e.f. date of taking over of the possession of the land; as per the settled law, possession for the purpose of acquisition has to be determined from the date of issuance of notification under Section 4 of the Land Acquisition Act; the 15% interest per annum is payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry. 2(iii) This application moved by the petitioner under Section 152 CPC has been dismissed by the learned Additional District Judge on 22.8.2019. Aggrieved, instant petition has been preferred. 3. (I) Any party to a judgment, decree or order, as the case may be, has a right to apply at any time under Section 152 of the Code of Civil Procedure to the concerned Court for rectification of any arithmetical or clerical error in the judgment, decree or the order, as the case may be. An application can be maintained under Section 152 CPC, provided the judgment/order/decree contains clerical or arithmetical error. 3(ii) Hon''ble Apex Court in titled Bai Shakriben (Dead) by Natwar Melsingh Vs. Special Land Acquisition Officer, (1996) 4 SCC 533 has clearly indicated that omission to award additional amount under Section 23(1-A), enhanced interest under Section 28 and solatium under Section 23(2) are not clerical or arithmetical mistakes and the Court has no power or jurisdiction to award the amounts under Section 152 CPC. The relevant part is reproduced hereinafter:- "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. The relevant part is reproduced hereinafter:- "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." 3(iii) In titled Union of India Vs. Swaran Singh, (1996) 5 SCC 501 Hon''ble Apex Court reiterating its earlier decisions held that that the Reference Court or the 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 1984. 3(iv) In titled Bijay Kumar Saraogi Vs. State of Jharkhand, (2005) 7 SCC 748 it was held that Section 152 CPC cannot be invoked for claiming a substantial relief, which was not granted under the decree, which has attained finality. 4. Learned Senior counsel for the petitioner contended that present is a case where there is an omission, an error in the relief clause of the award, which becomes evident when one goes through the entire award as a whole, in particular paragraph-35 thereof. In para35 of the award, learned Additional District Judge has held that the petitioner was entitled to interest from the date of issuance of notification under Section 4(1) of the Land Acquisition Act. The interest from the date of issuance of Section 4 notification has been allowed in relief Clause No.37 (b), however, the same has not found its way in relief clause No. 37(c) pertaining to grant of statutory benefit under Sections 28 and 34 of the Act, which is an accidental slip and needs to be corrected under Section 152 CPC. 4(ii) Section 28 of the Land Acquisition Act, pertaining to grant of interest on excess compensation, having bearing on relief clause No.37(c) is extracted hereinafter:- "28. Collector may be directed to pay interest on excess compensation. 4(ii) Section 28 of the Land Acquisition Act, pertaining to grant of interest on excess compensation, having bearing on relief clause No.37(c) is extracted hereinafter:- "28. Collector may be directed to pay interest on excess compensation. If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of (nine per centum) per annum from the date on which he took possession of the land to the date of payment of such excess into Court. Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry." As per the above section, on excess compensation, interest @ 9% per annum is payable from the date of taking possession of land to the date of payment of such excess into Court. Court may also direct in cases where excess is paid after expiry of one year from the date on which the possession is taken then interest @ 15% per annum shall be payable from the expiry of the period of one year till the date of deposit. A Full Bench decision of this Court in titled Narotam Ram Vs. Land Acquisition Collector, (2003) AIR H.P. 55 held that interest under Section 28 of the Land Acquisition Act is to be paid from the date the possession is taken over under the Act, which in no case can be before the issuance of notification under Section 4 of the Act. 4(iii) In the award in question, learned Reference Court in paragraph 35, held the petitioner entitled to interest from the date of issuance of notification under Section 4(1) of Land Acquisition Act i.e. w.e.f. 25.7.2008. 4(iii) In the award in question, learned Reference Court in paragraph 35, held the petitioner entitled to interest from the date of issuance of notification under Section 4(1) of Land Acquisition Act i.e. w.e.f. 25.7.2008. The date of taking over the possession of land was thus taken as 25.7.2008, which was the date of issuance of Section 4(1) notification. Apart from enhancing the compensation, learned Reference Court also granted statutory benefits including interest @ 9% per annum and 15% per annum. Intention of the Reference Court to award interest under Section 28 of the Act @ 9% per annum for a period of one year from the date of taking over the possession and thereafter @15% till the deposit of the amount is clear. Paragraph 35 of the award is manifestation of the intention of the learned Reference Court in treating the date of issuance of Section 4 notification as the date of taking over the possession. However, this intention has not been completely translated in the relief clause. As a result of some mistake 9% interest has been awarded w.e.f. 20.08.2011 to 19.8.2012 instead of 25.7.2008 (date of issuance of section 4 notification) to 24.7.2009. Accordingly interest @ 15% was to be awarded w.e.f. 24.7.2009 till the date of deposit. Hon''ble Apex Court in titled Jayalakshmi Coelho V/S Oswald Joseph Coelho, (2001) 4 SCC 181 held that application under Section 152 CPC will be maintainable where intention reflected in the judgment has not resulted in the relief clause. Following para being relevant is reproduced hereinafter:- "14. 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 Section 152, CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped 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 where it is clear that something which the Court intended to do but the same was accidentally slipped 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. There should not be reconsideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought Court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court''s inherent powers as contained under Section 152, CPC. It is to be confined to something initially intended but left out or added against such intention. In titled State of Punjab Vs. Darshan Singh, (2004) 1 SCC 328 relevant segment held as under:- "13. The basis of the provision under S. 152 of the Code is founded on the maxim "actus curiae neminem gravabit" i.e. an act of Court shall prejudice no man. The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law," said Cresswell, J. in Freeman v. Tranah (12 CB 406) . The maxim "is founded upon justice and good sense, and affords a safe and certain guide for the administration of the law," said Cresswell, J. in Freeman v. Tranah (12 CB 406) . An unintentional mistake of the Court which may prejudice the cause of any party must and alone could be rectified. In Master Construction Co. (P) Ltd. v. State of Orissa, (1966) AIR SC 1047) it was observed that the arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing whereas an error arising out of or occurring from accidental slip or omission is an error due to careless mistake on the part of the Court liable to be corrected. To illustrate this point it was said that in a case where the order contains something which is not mentioned in the decree, it would be a case of unintentional omission or mistake as the mistake or omission is attributable to the Court which may say something or omit to say something which it did not intend to say or omit. No new arguments or rearguments on merits can be entertained to facilitate such rectification of mistakes. The provision cannot be invoked to modify, alter or add to the terms of the original order or decree so as to, in effect, pass an effective judicial order after the judgment in the case." 5. In the instant case, there is an accidental slip in the relief clause, which is writ large on the face of the award. The intention of the learned Reference Court is to grant statutory benefits under Section 28 of Land Acquisition Act. These statutory benefits have also actually been granted in the award. However, the date from which these statutory benefits have been granted is not in consonance with the intention clearly reflected in paragraph-35 of the award. The date of taking over the possession of the land was taken as 25.7.2008, which is the date of issuance of Section 4 notification and interest was allowed from this date whereas in the relief clause No.37(c), a variation has occurred. In view of the aforesaid reasons, there is merit in the petition. Accordingly, the same is allowed. Impugned order passed on 22.8.2019 by the learned Additional District Judge (1), Shimla, is quashed and set aside. In view of the aforesaid reasons, there is merit in the petition. Accordingly, the same is allowed. Impugned order passed on 22.8.2019 by the learned Additional District Judge (1), Shimla, is quashed and set aside. Application moved by the petitioner under Section 152 of Code of Civil Procedure is allowed. Learned Reference Court is directed to rectify paragraph 37(c) of the award by allowing 9% interest per annum w.e.f. 25.7.2008 to 24.7.2009 and 15% interest per annum from 24.7.2009 to the date of deposit. All pending application(s) shall also stand(s) disposed of.