Himachal Pradesh High Court
Smt. Mohinder Thaper And Ors vs State Of Himachal Pradesh on 24 May, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Civil Revision No. 96 of 2009
Date of Decision: 24.5.2016.
.
______________________________ __________________________
[
Smt. Mohinder Thaper and Ors. .........Petitioners.
Versus
State of Himachal Pradesh ............Respondent.
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting1? Yes
For the petitioners: Mr. K.D. Sood, Senior Advocate, with
rt Mr. Rajnish K. Lall, Advocate.
For the respondent: Mr. Rupinder Singh Thakur, Additional
Advocate General.
________________________________________________________
Sandeep Sharma, J. (Oral).
Present civil revision petition is directed against the order dated 31.3.2009, rendered by the learned Additional District Judge (I), Kangra at Dharamshala, HP, dismissing the application of petitioners-applicants for review/modification of the order/award dated 26.11.1998 titled "Mahinder Thaper v. State of H.P.", or in the alternative for correction of award under Section 151 and 152 CPC .
2. The petitioners pleaded in the application that during execution of proceedings of award dated 26.11.1998, Whether reporters of the Local papers are allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -2-which were pending in the Court, it transpired that no solatium shall be payable on the amount of Sub Head (a) nor the .
interest shall be payable on the solatium indicated in Sub head (b) as per para 31 of the award. It is also averred that earlier application Civil Misc. Petition No. 7-P/2003 was moved in the Court of learned Additional District Judge, Kangra at of Dharamshala, HP, seeking review of the Award dated 26.11.1998 passed in Reference No. 7/87 and learned rt Additional District Judge, vide order dated 18.4.2000 allowed the review and passed following order:-
"Heard. The ld. Counsel for the respondent/petitioner has no objection for the review of award dated 26.11.1998 as regards the para 31 (b) of the award, where instead of the figure "30%" in the lump sum on the awarded amount is sought to be substituted in place of (sic) 12% per annum and the award is sought to be reviewed, necessary entry be made in the relevant para of original award accordingly. In view of the no objection, the prayer is allowed. It be tagged with the main case file."
3. It is also averred in the application that the subsequent application for correction filed by the petitioners was contested by the respondents on the ground that neither ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -3- review of the application nor application under Section 151 CPC is maintainable and moreover, they are time barred and .
no application for condonation of delay has been moved, as such, application was dismissed vide impugned order dated 31.3.2009.
4. Feeling aggrieved with the passing of impugned of order, petitioners preferred present petition seeking review/quashment of the said impugned order on the rt following grounds:-
"a.That it having been found that the order dated 26.11.1998 in reference No. 4 of 1987 Mohinder Thaper and others versus state of H.P. had been reviewed by an order dated 18.4.2000 and solatium allowed at 30 per cent but in paras 31 and 32 of the judgment, the mistake had not been rectified as a result, the petitioner was deprived of the additional compensation and solatium at the enhanced rate which is statutory payable to the petitioner under the Land Acquisition Act. Since there was an error apparent on the face of the record and the mistake was purely clerical and accidental the said application under Sections 151 and 152 CPC apart from under Section 114 CPC was maintainable and accidental and clerical slip could be rectified at any time. The provisions of Sections 151 and 152 CPC ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -4- have been misread and misconstrued and wrong inferences have been drawn from the facts proved on record which has vitiated the findings.
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b. That the petitioners have been deprived of the valuable land and once the mistake had been ordered to be corrected by an order dated 18.4.2000 and further giving effect to the order dated 18.4.2000 in the award dated 26.11.1998 had of to be given effect and this being a clerical and accidental mistake in paras 31 and 32 of the judgment ought to have been corrected by the rt court below suo motu in any case on the application being moved by the petitioner. There was no limitation for the said purpose. The provisions of the Land Acquisition Act being mandatory and the Hon'ble Apex Court having declared the law that the petitioners were entitled to enhance compensation, enhanced solatium and interest the same could not be deprived in the facts and circumstances the clerical mistake in the judgment and order on account of accidental slip and omission could be corrected at any time. The provisions of Sections 151, 152 and 153 CPC did not place any time limit for the same and once it is evident that there was error apparent on the face of the record and the mistake was evident, the same ought to have been allowed to be corrected. c. That the well settled principles for the grant of compensation under Sections 151, 152 and 153 CPC ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -5- have been ignored. It has been wrongly assumed that the application was barred by limitation and the same was not maintainable. No sufficient cause .
has been pleaded to seek condonation of delay.
The facts were evident from the record and clear case for condonation of delay was made out which fact had been ignored and which has vitiated the findings.
of d.That the court below has acted with serious illegality in construing the provisions of Section 114, 151, 152 and 153 CPC and after having found that rt there was an error apparent on the face of the record had acted illegally in not correcting the error apparent on the face of the record."
5. However, learned Additional District Judge, Kangra at Dharamshala, vide order dated 31.3.2009 dismissed the application holding therein that there is no ground either to review the award sought to be reviewed as well as correction of the award. Learned Court below also held that present petition moved by the petitioners is time barred and no explanation worth the name has been rendered in the application by filing an affidavit in support of petition and as such petition is liable to be dismissed.
::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -6-6. Pleadings available on record suggest that vide award dated 26.11.1998, learned court below has granted .
following reliefs:-
"31. Judged in view of my findings on points No. 1 and 1 (a) above, the reference petition partly succeeds and the same is hereby partly allowed. The market value of the acquired site is assessed at of Rs. 5,10,000/- and as such, the petitioners are entitled to the said amount of compensation in equal shares alongwith:-
rt a) Additional Compulsory acquisition charges at the rate of 12% p.a. on the market value assessed above from 4.8.1984 to 31.12.1986 as per the provisions of Section (23-1-A), of the amended Act No. 68 of 1984;
b) Compulsory acquisition charges @12% p.a. on the market value of the acquired site assessed above under section 23(2) of the Amended Act;
c) An interest under Section 28 of the Amended Act on enhanced amount of compensation at the rate of 9% p.a. w.e.f.
4.8.1984 to 31.12.1986 and at the rate of 15% p.a. w.e.f 1.1.1987 till the payment of such excessive amount into the Court.
32. It is clarified that the compulsory acquisition charges and interest under Section 28 of the Amended Act already paid to the petitioners shall ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -7- be adjusted while making payment under the above sub-heads (a) to (c). It is further clarified that in view of the law laid down by the Hon'ble Apex .
Court of the Country in 1996(2)SCC-71 Prem Nath Kapoor and another vs. National Fertilzer Corporation of India Ltd. and others, no solatium shall be payable on the amount detailed in sub head(a) above nor interest shall be payable on the of amount pertaining to sub- head(a) and further that no interest shall be payable on the solatium indicated in sub-head (b) above. The amount rt already paid including interest or solatium by the Acquiring Department/respondent shall be adjusted against the amount of award accordingly. The parties are left to bear their own costs."
7. Since petitioners were entitled to compulsory acquisition charges @ 30 % p.a. under Section 23(2) of the Amended Act, they moved an application under Section 114 CPC seeking review of the award under Section 18 of the Land Acquisition Act dated 26.11.1998. Record suggests that aforesaid application was not contested/objected by the respondents and court below was pleased to pass order dated 18.4.2000, detail whereof has already been given.
Perusal of the order dated 18.4.2000 suggests that since no objection was raised by the respondents for review of the ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -8- award dated 26.11.1998, as far as para 31(b) of the award is concerned, court below substituted the rate mentioned as 12 .
% p.a. with 30 %. With the aforesaid corrections carried out vide order supra, the petitioners became entitled to the compulsory acquisition charges @ 30% p.a. on the market value of acquired site assessed under Section 23(a) of the of Amended Act. However, it appears that during the pendency of the execution proceedings of the aforesaid award, it came rt to the notice of the present petitioners that respondent has deposited a sum of Rs. 4,92,981/- towards the awarded amount, which was objected by the present petitioners-
decree holders. Further order dated 15.6.2000 reveals that respondent-judgment debtor deposited amount of Rs. 69,000 however, execution petition was dismissed having been partly satisfied. At this stage, petitioners noticed that respondent has not deposited amount in terms of award dated 26.11.1998, which was further modified by the order dated 18.4.2000, wherein solatium was allowed @ 30 % p.a. It appears that though, vide order dated 18.4.2000, learned Court below had ordered for modification of order by substituting at the rate of ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP -9- 12% with 30 % but same correction was not carried out in the award, which was annexed with the execution petition .
pending before the Court below. Accordingly, petitioners moved an application before the executing Court under Section 114 CPC read with Section 151 and 152 CPC praying therein that paras 31 and 32 of the award dated 26.11.1998 of may be reviewed in terms of order dated 18.4.2000, wherein Court below was pleased to review the award dated rt 26.11.1998 holding the petitioners entitled for compulsory acquisition charges @30% instead of 12 %. Paras 4 to 7 of the application are reproduced herein below:-
"4. That the para 31 of the Award originally indicated the following relief:-
(a) Addl. Compulsory acquisition charges at the rate of 12% p.a. on the market value assessed above from 4.8.1984 to 31.12.1986 as per the provisions of Section 23 (1-A) of the amended Act No. 68 of 1984;
(b) Compulsory acquisition charges at the rate of 12 % p.a. on the market value of the acquired site assessed above under Section 23 (2) of the Amended Act;
(c) An interest under Sec. 28 of the Amended Act on the enhanced amount of ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP
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compensation at the rate of 9% p.a. w.e.f. 4.8.1984 to 31.12.1986 and at the rate of 15% p.a. w.e.f. 1.1.1987 till the payment of such .
excessive amount in the court.
5.That sub-head (a) copped up wrongly by accidental slip or by oversight and the same was allowed to be reviewed by this Hon'ble Court to 30% solatium vide order dated 18.4.2000, but para 32 of of the Award remained so due to oversight and came to be highlighted only on 2.1.03 as started above.
6. That the error that the amount of solatium etc. will rt bear no interest is against the legal proposition of law as held by the Apex Court and the applicants have been insisting for the same, hence they never got their execution finally decided. But in view of the error/accidental slip in the award, which is altogether illegal, the execution proceedings pending have been held up.
7. That the error is against the legal proposition and appears to be accidental and needs to be reviewed."
8. Perusal of the averments contained in the application clearly suggests that while allowing review petition filed by the petitioners, learned court below vide order dated 18.4.2000, modified the award to the extent (supra) but para 32 of the award remained un-amended, which was also required to be modified in view of the modification carried out ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP
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by the court below in Sub-head (b) of para-31 of the award.
Necessary correction/modification was also required in sub .
head (c) of the Para 31 of the award because once petitioner was held entitled to the compulsory acquisition charges @30% p.a. on the market value assessed under Section 23(2) of the Amended Act, they were also to be held entitled for interest of under Section 28 of the amended Act on the enhanced amount of compensation @9% p.a. but in the instant case, rt where the court below while allowing the review petition, modified sub-clause (b) of para 31 of the award by holding petitioners entitled for compulsory acquisition charges @30 % p.a. instead of 12 % but due to oversight/necessary corrections consequent upon the correction carried out in sub clause(b) of para 31 was not carried. Once para 31 of the award was ordered to be corrected by the learned court below by passing order dated 18.4.2000, it was incumbent upon the court to order for necessary correction in para 32 of the award so that actual effect could be given to the order dated 18.4.2000, whereby petitioners were held entitled to compulsory acquisition charges @30% p.a. Once, the ::: Downloaded on - 15/04/2017 20:26:04 :::HCHP
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petitioners were held entitled to compulsory acquisition charges@30%, they cannot be deprived of interest as .
envisaged under Section 28 of the amended Act on the enhanced amount of compensation, which was required to be recalculated by the authorities in terms of necessary correction ordered to be carried out in the sub clause (b) of of para 31 by the Court vide order dated 18.4.2000 but in the present case, perusal of the impugned order suggests that rt factum with regard to delay in filing the review petition weighed heavily with the court below while dismissing review petition filed under Section 114 CPC seeking review/modification of order dated 26.1.1998. Admittedly in the present case, present petition has been filed after lapse of more than 4 years and no application for condonation of delay was filed along with application. But as has been mentioned above that factum with regard to non-correction of sub clause (c) para 31 of the award came to the notice of the respondent only on 18.4.2000/15.6.2000 when the execution petition filed by the petitioners was dismissed having been satisfied . Perusal of the order dated 15.6.2000 suggests ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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that the petitioners had claimed more amount than the amount deposited by the respondents pursuant to the award .
in question. But in the present case, the correction/ modification which was sought by the applicant was necessary fall out of the correction allowed to be carried out by the court below on 18.4.2000 in Sub-clause (a) of para 31, of whereby the petitioners were held entitled to compulsory acquisition charges @30% p.a., instead of 12 %. Once rt petitioners were held entitled for compulsory acquisition charges @ 30% p.a., Sub-clause (c) of para 31 of award was also required to be modified/corrected so that fresh calculations could be made on the basis of the 30 % rate for compulsory acquisition charges as per their entitlement vide order dated 18.4.2000.
9. Admittedly, in the present case, application has been filed by the petitioners after a considerable delay and no application for condonation of delay was also filed. But in the instant case, as has been narrated above, application at hand could not be rejected by the court below by taking hyper technical view, especially, in view of the fact that ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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modification/review of sub clause (b) of para 31 of the award have been already allowed by the court below while passing .
order dated 18.4.2000. But it appears that necessary corrections after passing of the order dated 18.4.2000 were not carried out and hence, no affect could be given to the corrections carried out in sub-para (b) of para 31 of the of award, meaning thereby, order dated 18.4.2000 would be rendered meaningless. If any effect at all was to be given to rt the order passed by the court below vide order dated 18.4.2000, clause (c) of the para 31 & para 32 of the award were required to be amended accordingly.
10. In view of the aforesaid discussion, this Court is of the view that by way of application petitioners had only prayed for the amendment/modification of clause (c) of para 31 and Para 32 as a natural consequences of amendment, ordered to be carried out in sub-clause (b) of para 31 of the award vide order dated 18.4.2000 and as such, application could not be dismissed by the Court on the ground of delay.
This court is of the view that while passing order dated 31.1.2009 dismissing the application filed by the petitioners ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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seeking modification of sub-clause (c) of para 31 of the award in question, learned court below has adopted very hyper .
technical view and has wrongly dismissed the application on the premise of limitation. As has been discussed above, the correction, which was sought by way of the application was natural consequence of the correction allowed by the court of below vide order dated 18.4.2000. Corrections in sub-
clause(c) of para 31 and para 32 of the award are necessary rt for giving effect to the amendment/modification allowed by the court below, whereby the petitioners have been held entitled to compulsory acquisition charges @12% p.a.
11. It is pertinent to notice that order dated 18.4.2000 was passed by the court below after recording no objection certification of the respondent-State and same has attained finality. Once sub-clause (b) of para-31 has been ordered to be modified by the court below, para 32 of the award would be deemed to have been modified accordingly in consonance of sub-para (b) of the para 31 of the award.
12. As has been observed above that court below has adopted very hyper technical approach while dismissing the ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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application for correction moved by the petitioners on the ground of limitation. Court below failed to take note of the .
fact that aforesaid application was filed under Section 114 CPC read with 152, 153 and 153 (a) which clearly indicates that application was moved for correction of some error in the order/judgment which crept due to oversight or accident slip.
of
13. In this regard, our own high Court in Devi Roop v.
Smt. Devku and Ors., 2006 (2) Shimla Law Cases 158, has held rt that "it would a great blot on the system of administration of justice if Courts are held powerless to do justice by correcting their own errors and defects only on the ground of limitation."
"17. In Raghunathsingh Nandlal Dangi and another v. Mandir Shri Deo Radhaballabhji and others, AIR 1937 Nagpur 173, incorrect description of the plaintiff in a plaint was ordered to be corrected after decision of the suit in appeal. It would indeed be a great blot on the system of administration of justice if Courts are held powerless to do justice by correcting their own errors and defects only on the ground of limitation. The contention is, therefore, rejected."
14. The Hon'ble Apex Court in case titled Srihari (dead) through LR Ch. Niveditha Reddy v. Syed Maqdoom ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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Shah and ors., 2015 (1) SCC 607, also held in para12 and 13 as under:
"12. On behalf of defendant No.12 Srihari (appellant .
before us), it is argued that the impugned order passed by the High Court is beyond the scope of Section 152 (read with Section 151 and Section 153) of the Code. In support of his argument he relied in the case of State of Punjab vs. Darshan Singh AIR of 2003 SC 4179: (2004) 1 SCC 328 and Bijay Kumar Saraogi vs. State of Jharkhand (2005) 7 SCC 748. Before further discussion, we think just and proper to rt quote the relevant provision of law under which impugned order appears to have been passed by the High Court. Section 152 of Code of Civil Procedure, 1908 reads as under:
"152.Amendment of judgments, decrees or orders. - Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties."
13. From the language of Section 152 of the Code, as quoted above, and also from the interpretation of the section given in the case of State of Punjab vs. Darshan Singh, the section is meant for correcting the clerical or arithmetical mistakes in the judgments, decrees or orders or errors arising therein ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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from any accidental slip or omission. It is true that the powers under Section 152 of the Code are neither to be equated with the power of review nor .
can be said to be akin to review or even said to clothe the Court under guise of invoking after the result of the judgment earlier rendered. The corrections contemplated under the section are of correcting only accidental omissions or mistakes and of not all omissions and mistakes. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. In Bijay rt Kumar Saraogi (supra) also it has been reiterated that Section 152 of the Code can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in judgments or accidental omissions."
15. Moreover, it has been held in Patel Joitaram Kalidas and others v. Spl. Land Acquisition Officer and Another, 2007 (2) SCC 341, that "interest on the additional amount and solatium are automatic and do not involve any judicial discretion and court are bound to grant interest irrespective of whether claim has been made or not".
"17. Having regard to the submissions urged on behalf of the respondents we could have remitted the matter to the High Court to give an opportunity to the claimants to make a claim of interest before ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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the High Court. That however, would only be a formality because having regard to the law laid down in Sunder, the High Court is bound to award .
the interest on the additional amount payable under Section 23(1-A) and solatium payable under Section 23 (2) of the Act. Moreover, grant of interest on these amounts is consequential and automatic and involves only arithmetical calculation and not of application of judicial mind or exercise of judicial discretion. It is no doubt true that the appellants ought to have made such a claim before the High rt Court, even in the appeals preferred by the State. But in fairness to the appellants it must be conceded that during the pendency of the appeals before the High Court the law as laid down in Prem Nath Kapoor held the field and, therefore, it would have been futile for them to claim interest. The claimants could have filed such an application before the High Court if the judgment in Sunder was pronounced when the appeals were pending before the High Court. Unfortunately, they could not do so because the judgment in Sunder and the impugned judgment in the appeals preferred by the State before the High Court were pronounced on the same day. Having regard to these facts, peculiar to this case, we are persuaded to allow the appeals preferred by the appellants as a special case in the interest of justice. Accordingly, we hold that the appellants are entitled to interest on the ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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amounts payable to them under Section 23 (1-A) and Section 23 (2) of the Land Acquisition Act. We direct the Collector to calculate the interest .
payable and pay the same to the appellants without further delay. These appeals are accordingly allowed. No order as to costs."
16. The Hon'ble Apex Court also in Panna Lal Ghosh and others v. Land Acquisition Collector and Ors., AIR 2004 of (Vol.91) SC 1179 (1-1248) held that once solatium is to be paid @30 % in under Section 23(2) of the Act, an interest @9% p.a. is rt also payable under the Act, which reads as under:-
17. In the light of the above, the compensation @ 36,000/- per acre as awarded is to be paid @30% under Section 23(2) of the Act and an interest @9% per annum is also payable under Section 28 of the Act. The award made by the Reference Court is affirmed by the High Court shall stand modified accordingly and the appeal is allowed to that extent. No orders as to costs. Ordered accordingly."
17. In the present case also, once vide order dated 18.4.2000, sub-clause (b) of para 31 of the award was modified and petitioners were held entitled to the compulsory acquisition charges @30% instead of 12 %, sub-clause (c) of para 31 was also required to be modified accordingly with ::: Downloaded on - 15/04/2017 20:26:05 :::HCHP
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para 32 of the award so that effect could be given to amendment/modification allowed by the Court vide order .
dated 18.4.2000. In the present case, when calculations were to be made on the basis of 30 percent compulsory acquisition charges, its necessary fall out would have been that petitioners would have got interest under Section 28 of the of amended Act on the enhanced amount of compensation which was required to be re-calculated in terms of amended rt carried out in sub-clause (b) of para 31.
18. In view of the aforesaid observations and discussions, order dated 31.8.2009 passed by the learned Additional District Judge (I), is quashed and set-aside and application bearing No. CMP No. 7-P/2003 filed by the petitioner is allowed and the award dated 26.11.1998 is ordered to be modified accordingly, as prayed for, in the application filed by the petitioners. The petition is disposed of accordingly, so also the pending applications, if any.
24th May, 2016 (Sandeep Sharma),
manjit Judge.
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