Gujarat High Court
Kamabhai Chanabhai vs State Of Gujarat on 3 May, 2023
C/SCA/4080/2022 ORDER DATED: 03/05/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4080 of 2022
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KAMABHAI CHANABHAI & 6 other(s)
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. ZALAK B PIPALIA(6161) for the Petitioner(s) No. 1,2,3,4,5,6,7,7.1,7.2
MS KRUSHITA DAVE, AGP for the Respondents
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 03/05/2023
ORAL ORDER
1. The present petition is filed by the petitioners -
original claimants challenging the impugned common order dated 30.11.2019 passed below application Exh.36 filed by the petitioners and below application Exh.37 filed by the respondent - State Authorities in Land Acquisition Case No.814 of 1998 by the Additional Senior Civil Judge, Rajkot, by which, the trial Court has rejected the application Exh.36 and allowed the application Exh.37.
2. The brief facts of the case are as under :
2.1 The lands of the petitioners have been acquired by the State Authorities for the purpose of construction of Dam Site - Aji-2 Irrigation Scheme at Village : Gauridal - Rajkot, Page 1 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 after following due procedure and published the notifications under Section 4 and 6 of the Land Acquisition Act, respectively. The Land Acquisition Officer has awarded compensation of Rs.300/- per Are for the irrigated land to the concerned land owners and published the award under Section 11 of the Act for the same in LAQ Case No.145 of 1990 dated 29.06.1991.
2.2 Against the said award, there is a Reference proceeding being Land Reference Case No.814 of 1998 before the competent Civil Court concerned under Section 18 of the Act.
2.3 The Reference Court has, after hearing the parties, granted additional compensation of Rs.75/-, over and above Rs.300/- granted by the Authorities. Accordingly, the Reference Court has mentioned the amount of compensation Rs.300/- + Rs.75/- additional amount 'per square meter' and accordingly, judgment and award is passed. This is a typographical error by the Reference Court. It should be 'per Are' instead of 'per square meter'.
2.4 However, the calculation sheet is prepared by the Registry of the Reference Court on the basis of 'per Are' and not 'per square meter'.
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C/SCA/4080/2022 ORDER DATED: 03/05/2023 2.5 Therefore, the petitioners have filed an application at Exh.36 before the concerned Reference Court under
Sections 151 and 152 of the Code of Civil Procedure, 1908 inter alia praying to pay the amount of compensation on the basis of 'per square meters' and not 'per Are', as per the judgment and award passed of the Reference Court.
The State Authorities have also filed an application Exh.37 before the concerned Reference Court
under Sections 152 and 152 read with Section 154 of the Code of Civil Procedure, 1908 inter alia praying to correct the typographical error in the judgment and award passed by the Reference Court qua the words 'per Are' instead of 'per square meter'.
2.6 Considering the averments made by the parties, the Reference Court has decided both the applications i.e. applications at Exh.36 and Exh.37 vide common impugned order dated 30.11.2019 in Land Reference Case No.814 of 1998. The Reference Court has allowed the application of the State Authorities Exh.37 and rejected the application of the petitioners Exh.36.
2.7 It is this order impugned which is challenged by Page 3 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023
the petitioners before this Court, inter alia contending that the Reference Court has passed the judgment and award stating 'per square meter' and the Registry has calculated the amount stating 'per Are'.
3. Learned advocate Mr. Zalak Pipaliya for the petitioners has submitted that the trial Court has committed gross error in allowing the calculation of compensation made by the Registry of the Reference Court as the Registry has calculated the total amount of compensation Rs.375/- on the basis of 'per Are' and not 'per square meter', as stated in the judgment and decree passed by the Reference Court. He has submitted that the State Authorities should have filed the review application with appropriate averments and not by an application under Section 151 of the Code. He has submitted that if there is any arithmetical error in the judgment and decree, review of the judgment under Section 152 of the Code is not permissible. He has submitted that the trial Court has committed an error by entertaining the application Exh.37 of the State and rejecting the application filed by the petitioners Exh.36. He has submitted that this petition may be allowed.
4. Learned AGP Ms.Krushita Dave for the State has drawn my attention towards affidavit in reply filed by the Page 4 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 respondent authorities and has submitted that due to some typographical error in the judgment and decree by the Reference Court, the fact does not change. She has submitted that initially, the Land Acquisition Officer has awarded compensation of Rs.300/- per Are pertains to irrigated land in LAQ Case No.145 of 1990 and the Reference Court has awarded additional compensation of Rs.75/- vide its judgment and decree. Therefore, it should be on the basis of the Rs.300/- i.e. 'per Are' and not 'per square meter'. She has submitted that it is only a typographical error in the judgment and decree and nothing else. She has submitted that the petitioners should understanding the error of the Reference Court and should cooperate in the proceedings in its true spirit. She has submitted that the Reference Court has not committed any error in the impugned order. She has submitted that this petition may be dismissed. 5.1 I have heard rival submissions made by the learned advocates for the respective parties. I have perused the impugned order. I have considered the material on record. From record, it transpires that originally, the Land Acquisition Officer has awarded compensation on the basis of 'per Are' and not 'per square meter'. The Reference Court has enhanced the said compensation and awarded additional compensation of Rs.75/- to the claimants. Since the original Page 5 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 award passed by the Land Acquisition Officer is on the basis of the 'per Are' and not 'per square meters', any amount for addition compensation should be on the same basis i.e. 'per Are' and not 'per square meter'. Even in the application at Exh.18 filed by the petitioners, they have stated 'per Are' and not 'per square meters'. It seems that they were aware about this fact. Now since there is a typographical error in the judgment and decree passed by the Reference Court, it is not proper for the petitioners to raise such technical contention before this Court in such petition. This Court finds that this simply a typographical error and it should be corrected. This Court has also perused the judgment and decree passed by the Reference Court, wherein also the basis is 'per Are' and not 'per square meter'. Therefore, this Court finds that it is a typographical error which should be corrected and the trial Court has rightly corrected the same by the impugned order, which need not be interfered with by this Court.
5.2 The provisions of the Code of Civil Procedure, 1908 is the provisions for justice. The Court should not enter into such technicality, more particularly the issue involved in this petition. The application filed by the State Authorities Exh.37 is required to be considered as it is only for correction of typographical error in the judgment and decree Page 6 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 passed by the Reference Court, which the trial Court has rightly corrected. The said application is under Section 151 of the Code and the Court has ample powers under Section 151 of the Code to rectify such error. I find that there is no illegality or perversity in the impugned order passed by the trial Court.
5.3 Even otherwise, this Court has very limited jurisdiction to interfere in the impugned order passed by the trial Court as held by the Hon'ble Supreme Court of India in the case of M/s. Garment Craft versus Prakash Chand Goel reported in (2022) 4 SCC 181, more particularly in paras 15 to 17, which reads as under :
"15. Having heard the counsel for the parties, we are clearly of the view that the impugned order is contrary to law and cannot be sustained for several reasons, but primarily for deviation from the limited jurisdiction exercised by the High Court under Article 227 of the Constitution of India. The High Court exercising supervisory jurisdiction does not act as a court of first appeal to reappreciate, reweigh the evidence or facts upon which the determination under challenge is based. Supervisory jurisdiction is not to correct every error of fact or even a legal flaw when the final finding is justified or can be supported. The High Court is not to substitute its own decision on facts and conclusion, for that of the inferior court or tribunal. The jurisdiction exercised is in the nature of Page 7 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 correctional jurisdiction to set right grave dereliction of duty or flagrant abuse, 1 Celina Coelho Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar and Others, (2010) 1 SCC 217 violation of fundamental principles of law or justice. The power under Article 227 is exercised sparingly in appropriate cases, like when there is no evidence at all to justify, or the finding is so perverse that no reasonable person can possibly come to such a conclusion that the court or tribunal has come to. It is axiomatic that such discretionary relief must be exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this Court in Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97 has observed:-
"6. The scope and ambit of exercise of power and jurisdiction by a High Court under Article 227 of the Constitution of India is examined and explained in a number of decisions of this Court. The exercise of power under this article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do the duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of Page 8 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to."
17. The factum that the counsel for the appellant had applied for the certified copy would show that the counsel for the appellant was aware that the ex-parte decree had been passed on the account of failure to lead defence evidence. This would not, however, be a good ground and reason to set aside and substitute the opinion formed by the trial court that the appellant being incarcerated was unable to lead evidence and another chance should be given to the appellant to lead defence evidence. The discretion exercised by the trial court in granting relief, did not suffer from an error apparent on the face of the record or was not a finding so perverse that it was unsupported by evidence to justify it. There could be some justification for the respondent to argue that the appellant was possibly aware of the ex-parte decree and therefore the submission that the appellant came to know of the ex-parte decree only on release from jail on 6th May 2017 is incorrect, but this would not affect the factually correct explanation of the appellant that he Page 9 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023 C/SCA/4080/2022 ORDER DATED: 03/05/2023 was incarcerated and could not attend the civil suit proceedings from 6th October 2015 to 6th May 2017. If it was felt that the application for setting aside the exparte decree was filed belatedly, the court could have given an opportunity to the appellant to file an application for condonation of delay and costs could have been imposed. The facts as known, equally apply as grounds for condonation of delay. It is always important to take a holistic and overall view and not get influenced by aspects which can be explained. Thus, the reasoned decision of the trial court on elaborate consideration of the relevant facts did not warrant interference in exercise of the supervisory jurisdiction under Article 227 of the Constitution."
6. In view of above, this petition deserves to be dismissed and is dismissed. Notice is discharged. No order as to costs.
(SANDEEP N. BHATT,J) M.H. DAVE Page 10 of 10 Downloaded on : Fri May 05 20:51:45 IST 2023