Madhya Pradesh High Court
Decd.Nathu Thru.Lrs.Kalu vs The State Of Madhya Pradesh on 18 November, 2016
M.C.C. No.596/2016, M.C.C. No.600/2016, M.C.C. No.607/2016,
M.C.C. No.610/2016, M.C.C. No.613/2016, M.C.C. No.614/2016,
M.C.C. No.616/2016, M.C.C. No.617/2016, M.C.C. No.619/2016,
M.C.C. No.620/2016, M.C.C. No.623/2016
18.11.2016
Shri L. R. Bhatnagar, learned counsel for the applicant.
Shri Romesh Dave, learned Government Advocate for
the respondents.
Learned counsel for the applicant has submitted that in identical matter i.e., F. A. No.408/2008 decided on 26.04.2016, an application under Section 152 of the CPC for correction has been filed and the same has been allowed vide order dated 16.06.2016 passed in M.C.C. No.339/2016, which reads as under :-
This order shall also govern the disposal of the following petitions :-
MCC No.340/2016 (RekhaBai V/s. State of M.P.), MCC No.341/2016 (ShardaBai V/s. State of M.P.), MCC No.342/2016 (Vasudev V/s. State of M.P.), MCC No.343/2016 (Mangilal V/s. State of M.P.), MCC No.344/2016 (Ghanshyam V/s. State of M.P.), MCC No.345/2016 (Shreeram V/s. State of M.P.), MCC No.346/2016 (Gyanchand V/s. State of M.P.), MCC No. 347/2016 ( Kanak Singh V/s. State of M.P.), MCC No.348/2016 (Babulal V/s. State of M.P.), MCC No. 350/2016 (Jagdish V/s. State of M.P.), MCC No.351/2016 (Gangabai (Decd) through LRS Rajesh Patidar V/s. State of M.P.), MCC No.352/2016 (Moti Singh (Decd) Through LR Shobhag Singh V/s. State of M.P.), MCC No.353/2016 (Ram Krishna V/s. State of M.P.), MCC No.354/2016 (Babu (Decd) Through LRS Bhagwan V/s. State of M.P.),MCC No. 355/2016 (Rewa Bai V/s. State of M.P.), MCC No.356/2016 (Manjula Bai V/s. State of M.P.), MCC No.357/2016 (Hukumchand V/s. State of M.P.), MCC No.358/2016 (Nathibai V/s. State of M.P.), MCC No. 359/2016 (Gayatribai V/s. State of M.P.), MCC No. 360/2016 (Ashabai V/s. State of M.P.), MCC No.361/2016 (Ramlal V/s. State of M.P.), MCC No. 363/2016 (Radheshyam V/s. State of M.P.), MCC No. 364/2016 (Mahadev V/s. State of M.P.), MCC No.365/2016 (Radheshyam V/s. State of M.P.), MCC No. 367/2016 (Radheshyam V/s. State of M.P.), MCC No. 369/2016 (Apurva V/s. State of M.P.), MCC No. 370/2016 (Radheshyam V/s. State of M.P.), MCC No. 371/2016 (Suresh V/s. State of M.P.), MCC No. 372/2016 (Babulal (Deceased) Through LRS Shankarlal V/s. State of M.P.), MCC No.374/2016 (Hukumchand (Deceased) Through LRS Basantibai V/s State of M.P.), MCC No.375/2016 (Vijay Kumar V/s. State of M.P.), MCC No.376/2016 (Ayodhya Bai V/s. State of M.P.), MCC No. 377/2016 (Kamla Bai V/s. State of M.P.), MCC No. 378/2016 (Sardar Khan (Deceased) Rahim Khan Through LRS Mohd Rafiq V/s. State of M.P.), MCC No. 379/2016 (Aabid Husain V/s. State of M.P.), MCC No. 380/2016 (Badam Singh V/s. State of M.P.), MCC No.381/2016 (Babu Khan V/s. State of M.P.), MCC No. 383/2016 (Babu Khan V/s. State of M.P.), MCC No. 384/2016 (Samotibai V/s. State of M.P.), MCC No. 385/2016 (Madhulatabai V/s. State of M.P.), MCC No. 386/2016 (Chhanga V/s. State of M.P.), MCC No. 387/2016 (Hashir (Deceased) Through LRS Bashri V/s. State of M.P.), MCC No. 388/2016 (Mukhtar Mohammad V/s. State of M.P.), MCC No. 389/2016 (Mehboob Khan (Deceased) Through LRS Sattar Khan V/s. State of M.P.), MCC No. 390/2016 (Yaqoob Fkhan (Deceased) Through LRS Manauvar Bee V/s. State of M.P.), MCC No. 391/2016 (Ibrahim (Deceased) Through LRS Rafiq Khan V/s. State of M.P.), MCC No. 392/2016 (Saeed V/s. State of M.P.), MCC No.393/2016 (Isbul Bee V/s. State of M.P.), MCC No. 394/2016 (Kamlabai V/s. State of M.P.), MCC No. 395/2016 Kamrunisha V/s. State of M.P.), MCC No.396/2016 (Dadu (Deceased) Through LRS Chintabai V/s. State of M.P.), MCC No.397/2016 (Sabir Mohammad (Deceased) Salma Bee V/s. State of M.P.), MCC No. 398/2016 (Salim V/s. State of M.P.), MCC No. 399/2016 ( Sheher Bano V/s. State of M.P.), MCC No.400/2016 (Amtul V/s. State of M.P.), MCC No. 401/2016 (Nazeer (Deceased) Through LRS Mohamad V/s. State of M.P.), MCC No.402/2016 (Sangitabai V/s. State of M.P.), MCC No. 403/2016 (Babu Khan V/s. State of M.P.), MCC No. 404/2016 (Mustafa V/s. State of M.P.), MCC No. 406/2016 (Sunitabai V/s. State of M.P.), MCC No. 407/2016 (Gordhan (Deceased) Through LRS Dhiraj V/s. State of M.P.), MCC No. 408/2016 (Rafeeq V/s. State of M.P.), MCC No.409/2016 (Jagdishchandra V/s. State of M.P.), MCC No. 410/2016 (Mukhtyar Mohammad V/s. State of M.P.), MCC No. 411/2016 (Mohammad Shah V/s. State of M.P.), MCC No. 412/2016 (Aabid V/s. State of M.P.), MCC No. 413/2016 (Kaala V/s. State of M.P.), MCC No. 414/2016 (Lallu Khan (Deceased) Through LRS Shamshad Bee V/s. State of M.P.), MCC No. 415/2016 (Nyaz Mohammad V/s. State of M.P.), MCC No.416/2016 (Babu Khan V/s. State of M.P.), MCC No. 417/2016 (Sabir Khan (Deceased) Through LRS Sugra Bee V/s. State of M.P.), MCC No. 418/2016 (Ahmad Khan V/s. State of M.P.), MCC No. 419/2016 (Shakeela Bee V/s. State of M.P.), MCC No. 420/2016 (Aslam Mohammad V/s. State of M.P.), MCC No. 421/2016 ( Yaqoob Khan (Deceased) Through LRS Munavvar Bee V/s. State of M.P.), MCC No. 422/2016 (Jagdishchandra V/s. State of M.P.), MCC No. 423/2016 (Sardar V/s. State of M.P.), MCC No. 424/2016 (Nazeer (Deceased) Through LRS Wazeer V/s. State of M.P.), MCC No. 425/2016 (Rehmatbai (Deceased) Through LRS Jhummibai V/s. State of M.P.), MCC No. 426/2016 (Sabir Khan V/s. State of M.P.), MCC No. 427/2016 (Gulam V/s. State of M.P.), MCC No. 428/2016 (Deedar Khan V/s. State of M.P.), MCC No. 429/2016 (Sardar Khan V/s. State of M.P.), MCC No. 430/2016 Jagdishchandra (Deceased) Through LRS Rajkamal V/s. State of M.P.), MCC No.431/2016 (Antar Singh V/s. State of M.P.), MCC No.432/2016 (Keerat Singh V/s. State of M.P.), MCC No. 433/2016 (Rafiq Mohammad V/s. State of M.P.), MCC No. 434/2016 (Chhote Khan V/s. State of M.P.), MCC No. 435/2016 (Chhitu (Deceased) Through LRS Dayaram V/s. State of M.P.), MCC No. 436/2016 (Takhat Singh V/s. State of M.P.), MCC No. 437/2016 (Mazid Khan (Deceased) Through LRS Abdul Kadar V/s. State of M.P.), MCC No.438/2016 (Upendra Singh V/s. State of M.P.), MCC No.440/2016 (Girdhari V/s. State of M.P.), MCC No. 441/2016 (Lokendra V/s. State of M.P.), MCC No. 442/2016 (Ratan Singh V/s. State of M.P.), MCC No.443/2016 (Babu Khan V/s. State of M.P.), MCC No.444/2016 Vipin Kumar V/s. State of M.P.), MCC No. 445/2016 (Bhuri Bai V/s. State of M.P.), MCC No. 446/2016 Dhan Singh V/s. State of M.P.), MCC No. 447/2016 (Jagdishchandra (Deceased) Through LRS Rajkamal V/s. State of M.P.) and MCC No. 448/2016 (Rafiq Mohammad V/s. State of M.P.).
2. Since a common question of law is involved in these miscellaneous civil cases, therefore, they are heard together and decided by this common order. For the sake of convenience, the facts are borrowed from MCC No.339/2016.
3. This is an application under Section 152 of Code of Civil Procedure, 1908 for correction in the judgment dated 26.4.2016, passed in F.A. No.408/2008 (Bhagwan & Anr. V/s. State of M.P. & Anr.) and other connected first appeals. The land of petitioners - claimants (landowners) have been acquired for public purpose for rehabilitation of displaced persons, which came under submerges due to increase of height of Sardar - Sarovar Dam of Tehsil Dharampuri in District Dhar.
4. The notification under Section 4 (1) of Land Acquisition Act, 1894 (hereinafter referred as 'the Act') was published on 19.12.2003 and thereafter Section 6 notification was published on 6.2.2004. On 6.2.2005, the land acquisition officer assessed the market value in respect of unirrigated and irrigated land. The petitioners - landowners filed applications under Section 18 of the Act for enhancement of the compensation. The reference Court enhanced the market value of unirrigated land and irrigated land and deducted the amount towards development etc. The learned reference Court also granted benefit of Section 23 and 28 of the Act, ie., 12% interest from the date of notification to the date of award passed by the LAO, solatium on enhanced amount @ of 30% and awarded interest on the excess amount awarded under the amended provision of Section 28 of the Act. The reference Court held that the claimant is entitled to 9% for one year from the date of notification under Section 4(1) and thereafter, at the rate of 15% P.A., till the date of deposit of the compensation amount.
5. In first appeal (s) also they (claimants) claimed the benefit of sub - Section (1) (A) and sub - Section (2) of Section 23 of the Act and interest under Section 23 as well 28 read with Section 34 of the Act, but during the course of the arguments, they confined their arguments to in respect of further enhancement of the compensation and deduction of the amount for development etc. By judgment dated 26.4.2016, the first appeals of the landowners were allowed, but no observation or finding has been recorded nor relief relating to award of solatium, statutory interest under Sections 23, 28 r/w 34 have been granted to them.
6. It is submitted that interest, solatium as per Sections 23, 28 and 34 can be awarded by this court in any proceedings even in an application under Section 152 of C.P.C. and the claimants need not to file review application.
He submits that Section 28 is applicable only in respect of excess amount, which is determined by this court after the amount was enhanced by the reference court under Section 18 of the Act. He further submits that total amount of compensation awarded would include not only the total sum arrived at as per sub-Section (1) (A), but also sub-Section 2 of Section 23 of the Act, so the person (s) entitled to get interest on the compensation / award on the aggregate amount included on solatium.
7. It is also submitted that Section 152 of Code of Civil Procedure, 1908, empowers the court to correct any clerical or arithmetical mistake in judgment, decree or orders an errors arising therein by any accidental slip or omission either 'Suo motu' or on application on application of any party.
8. In the case of B. Shivananda V/s. Andhra Bank Ltd., & Anr. reported as 1994 (4) SCC 368, the Apex Court has held that clerical error in the judgment or decree can be corrected by the Court at any time either on its own motion or an application by any party. It is not necessary by the aggrieved party to prefer any appeal or review. He submitted that due to accidental slip or omission, the interest and solatium could not be awarded and the same could be corrected under Section 152 of Code of Civil Procedure, 1908. He submitted that in the first appeal, prayer was made to grant such interest and solatium and, therefore, the application be allowed.
9. Per contra, Shri Patwa, learned counsel for the respondents opposed the prayer, but very fairly admitted that the claim was made by the landowners in their first appeal and the reference Court also awarded interest and solatium as per Section 23, 28 and 34 of the Act.
10. When we read the judgment passed in the first appeal as a whole, it gives the impression that the amount of compensation awarded by the reference court has been enhanced by us while allowing the first appeal (s) in part to the extent as indicated therein, meaning thereby that, they are also entitled for interest and solatium as awarded by the reference Court under Section 23 (1) (A), 23 (2) and 28 read with Section 34 of the Act, but the judgment is silent about granting solatium, additional amount/ interest on the amount enhanced in F.A.No.398 of 2008 as well as other connected matters. The said mistake can be corrected by invoking the provisions of Section 152 of the Code of Civil Procedure, 1908. Due to omission and accidental slip, the same could not be awarded while passing the order dated 26.4.2016. Under the law claimants are entitled for enhancement amount of compensation together with statutory benefits and interest.
11. As per law laid down by the Apex Court in the case of Major General Kapil Mehra & Ors. V/s. Union of India & Anr. reported as 2015 (2) SCC 262 award of interest under Section 34 is mandatory. The claim for interest under Section 28 of the Act proceeds on the basis that due compensation not having been paid, the claimant should be allowed interest on the enhanced compensation amount. The award of interest under Section 28 is discretionary power vested in the court and it has to be exercised in judicious manner and not arbitrarily. The use of word 'may' in Section 28 does not confer any arbitrary discretion on the court to disallow the interest for no valid or proper reasons. Normally, the court award interest, if it enhances the compensation in excess of the amount awarded by the Collector, unless there are exceptional circumstances. Thus, we allow the prayer for grant of interest on the enhanced compensation under Section 23 and 34 of the Act by allowing the application under Section 152 of Code of Civil Procedure, 1908. In respect of award of interest under Section 28, we grant liberty to the claimants / appellants / landowners to file an application for review and thus, disallow the claim under Section 28 of the Act by holding that the same does not come within the purview of accidental slip or omission.
12. For these reasons, we allow MCC Nos.340/2016, 341/2016, 342/2016, 343/2016, 344/2016, 345/2016, 346/2016, 347/2016, 348/2016, 350/2016, 351/2016, 352/2016, 353/2016, 354/2016, 355/2016, 356/2016, 357/2016, 358/2016, 359/2016, 360/2016, 361/2016, 363/2016, 364/2016, 365/2016, 367/2016, 369/2016, 370/2016, 371/2016, 372/2016, 374/2016, 375/2016, 376/2016, 377/2016, 378/2016, 379/2016, 380/2016, 381/2016, 383/2016, 384/2016, 385/2016, 386/2016, 387/2016, 388/2016, 389/2016, 390/2016, 391/2016, 392/2016, 393/2016, 394/2016, 395/2016, 396/2015, 397/2016, 398/2016, 399/2016, 400/2016, 401/2016, 402/2016, 403/2016, 404/2016, 406/2016, 407/2016, 408/2016, 409/2016, 410/2016, 411/2016, 412/2016, 413/2016, 414/2016, 415/2016, 416/2016, 417/2016, 418/2016, 419/2016, 420/2016, 421/2016, 422/2016, 423/2016, 424/2016, 425/2016, 426/2016, 427/2016, 428/2016, 429/2016, 430/2016, 431/2016, 432/2016, 433/2016, 434/2016, 435/2016, 436/2016, 437/2016, 438/2016, 440/2016, 441/2016, 442/2016, 443/2016, 444/2016, 445/2016, 446/2016, 447/2016 and 448/2016 in part as indicated herein-above, without any order as to costs. A copy of this order be kept in all other connected matters.
The aforesaid order will apply mutatis mutandis in the present cases also.
Also heard on IA Nos.6571/2016, 6575/2016, 6585/2016, 6595/2016, 6602/2016, 6603/2016, 6606/2016, 6607/2016, 6609/2016, 6610/2016 and 6614/2016, which are applications for dispensing with filing of certified copy of the judgment.
On due consideration, aforesaid IAs are allowed and stands disposed of.
With the aforesaid, M.C.C. No.596/2016, M.C.C. No.600/2016, M.C.C. No.607/2016, M.C.C. No.610/2016, M.C.C. No.613/2016, M.C.C. No.614/2016, M.C.C. No.616/2016, M.C.C. No.617/2016, M.C.C. No.619/2016, M.C.C. No.620/2016 & M.C.C. No.623/2016 are disposed of.
(P. K. Jaiswal) (Vivek Rusia)
Judge Judge
pp