Punjab-Haryana High Court
M/S Guru Gobind Singh Refineries Ltd vs Karnail Singh And Others on 3 September, 2014
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
vinod kumar
2014.09.05 15:40
I attest to the accuracy and
integrity of this document
Chandigarh
CR No.4575 of 2014 (O&M) [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CR No.4575 of 2014 (O&M)
Date of decision: 03.09.2014
M/s Guru Gobind Singh Refineries Ltd. ...Petitioner
Versus
Karnail Singh and others ...Respondents
CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. M.L.Sarin, Senior Advocate, with
Mr. Tushar Sharma, Advocate, for the petitioner.
Mr. Sunil Chadha, Senior Advocate, with
Mr. Amit Aggarwal, Advocate, for the respondents.
*****
RAKESH KUMAR JAIN, J.
The revision petition is filed to challenge order dated 06.05.2014 passed by the Reference Court allowing the application of the land owners under Section 152 of the Code of Civil Procedure, 1908 (here- in-after referred to as the "CPC") correcting the alleged typographical mistake occurred in the award in which interest under Section 34 of the Land Acquisition Act, 1894 (here-in-after referred to as the "Act") was granted instead of Section 28 of the Act and, thus, para 56 of the judgment of the Reference Court was modified to read as under:-
"56. In addition to above said price of acquired land, the claimants are entitled to benefit of Section 23(1-A), 23(2) and Section 28 of the Land Acquisition Act." vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [2]
***** The brief background of the case is that the petitioner is operating a refinery at Bathinda, Punjab. On 27.08.1997, notification under Section 4 of the Act was issued for the purpose of acquiring various parcel of land in villages Phulokhari, Kanakwal, Ramsra and Raman, Tehsil Talwandi Sabo, District Bathinda for setting up of oil refinery and liquid fuel based power plant. The total land to be acquired was 1992-575 acres. The notification of the declaration under Section 6 of the Act was issued on 14.10.1997. The Land Acquisition Collector (here-in-after referred to as the "Collector") passed the award on 04.06.1999 for payment of compensation by dividing the acquired land into three categories, i.e. Nehri, Barani and Gair Mumkin and fixed the market value of the same @ `3.5 lacs per acre, `2.75 lacs per acre and `5 lacs per acre respectively. The Collector had also given the benefit of interest under Section 34 of the Act. It is averred in the petition that a sum of `84 Crores (approximately) has already been paid. The land owners filed objections under Section 18 of the Act before the Collector who forwarded it to the Reference Court which culminated into the award dated 29.11.2005 whereby the land classified as Nehri was clubbed with Barani and tube-well irrigated land and market value thereof was fixed @ `3.5 lacs per acre and for Gair Mumkin land, the Reference Court maintained the market value fixed by the Collector but carved out a new category, i.e. land abutting metalled road except gair mumkin from Raman to Kalianwala via Gyan upto a depth of 500 metres and fixed its market value at `3.75 lakhs per acre.
The land owners have challenged the award of the Reference vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [3] ***** Court under Section 54 of the Act by way of appeal which is pending in this Court after admission.
The petitioner also filed appeal in which stay was declined against which the petitioner filed the Special Leave Petition before the Supreme Court and vide order dated 12.05.2006, the petitioner was directed to deposit a sum of `7,50,00,000/- in the Trial Court without prejudice which would further be invested in a fixed deposit in a National Bank and granted interim stay subject to the aforesaid condition. The Supreme Court has further permitted the amount deposited by the petitioner to be withdrawn by the land owners on furnishing security. It is alleged that the said amount has not been withdrawn so far as the land owners failed to furnish the sufficient security.
On 22.10.2008, this Court decided appeals and cross appeals against the award dated 29.11.2005 expressing its reservation on the issue of clubbing of the land categorized as Nehri with Barani and Tube well irrigated land and remanded the matter to the Reference Court for further detailed examination and for recording a specific finding with regard to the area shown as Barani.
Aggrieved against that order dated 22.10.2008, the petitioner filed appeal before the Supreme Court and some of the land owners also filed appeal like the petitioner and the Supreme Court, vide judgment dated 20.10.2010, upheld the order of the High Court dated 22.10.2008. The Supreme Court further directed the Reference Court to decide all the issues afresh after giving opportunity to the parties to adduce additional evidence vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [4] ***** on all the issues and to dispose of the matter within six months.
Pursuant to the order dated 20.10.2010, the Reference Court, after trial, disposed of 131 reference applications vide its award dated 29.09.2012 and fixed the market value of the Gair Mumkin land @ `5 lacs per acre, Nehri @ `4.25 lacs per acre and Barani @ `3.5 lacs per acre. The Reference Court further fixed the market value of the land on both sides of the road from Raman to Kalianwali through villages Phulokhari and Kanakwal up to the depth of 60 karams @ `5 lacs per acre. The Reference Court, while disposing of the appeal, held in para 56 of the judgment that "in addition to the above said price of acquired land, the claimants are entitled to benefit of Section 23(1-A), 23(2) and Section 34 of the Land Acquisition Act". There was no reference of Section 28 of the Act in the award for grant of any interest.
The petitioner has challenged the said award in which interim stay has been granted directing the petitioner to deposit 50% of the enhanced compensation. The land owners have also filed appeals for enhancement of compensation. The appeals of both the sides are pending in this Court. It is also alleged that this Court further permitted the land owners to withdraw 50% of the amount to be deposited by the petitioner without any security, while the remaining 50% against the security to the satisfaction of the Reference Court. The petitioner allegedly filed the compliance affidavit in this regard that the enhanced compensation, without any interest under Section 28 or 34 of the Act which comes to `20 Crores (approximately), 50% of which is `10 lacs (approximately), has already vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [5] ***** been deposited in terms of the order of this Court which has increased to `12.5 crores (approximately).
On 11.03.2013, the petitioner filed an application for modification of the stay order dated 20.12.2012 passed by this Court on the ground that the said order permitting the land owners to withdraw 25% of the amount without any security is without any basis and contrary to the order of the Supreme Court wherein the land owners have been allowed to withdraw the amounts only upon furnishing appropriate security as the said amount of `7.5 crores (now `12.61 crores) was deposited by the petitioner as per the directions of the Supreme Court and this Court should not have gone beyond the order passed by the Supreme Court for the release of the amount without security.
After the application for modification was filed, this Court issued notice on the application of the petitioner. However, the said application was dismissed on 21.05.2013 and the stay was also vacated which was granted on 20.12.2012 and 11.01.2013 owing to the fact that on 08.05.2013, this Court had already dismissed one appeal and has confirmed the award of the Reference Court. Subsequently, the petitioner filed an application for recalling of the order dated 21.05.2013, in which notice was issued and vide its order dated 20.08.2013, the orders dated 20.12.2012 and 11.01.2013 were restored and the appeals were admitted.
During the pendency of the appeals before this Court, the respondent-land owners filed an application under Section 152 of the CPC read with Section 151 of the CPC before the Reference Court for seeking vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [6] ***** amendment/modification of the award dated 29.09.2012, which has been allowed by the impugned order.
Learned counsel for the petitioner has argued that the respondent-land owners have prayed in the grounds of Regular First Appeal filed against the award of the Reference Court dated 29.09.2012 that the interest given under Section 34 of the Act by the Reference Court is technically wrong as the said interest is provided at the stage of Collector and it should have been interest under Section 28 of the Act. The prayer is made for modification of the award in this regard. He has also pointed out that in the application filed under Section 152 of the CPC, the respondents have not alleged that the interest awarded under Section 34 of the Act is technically incorrect, but have made a prayer that both Sections 28 and 34 of the CPC be incorporated in the award. It is argued that the learned Court below had no jurisdiction to incorporate Section 28 of the Act in the award specially when the appeal against the main order of Reference Court is still pending in this Court and had no jurisdiction to read Section 34 by replacing it with Section 28 of the Act. In support of his submission, he has relied upon the following judgments:-
i) Bai Shakriben (dead) by Natwar Melsingh and others v. Special Land Acquisition Officer and another, (1996) 4 Supreme Court Cases 533;
ii) Dwaraka Das v. State of M.P. and another, (1999) 3 Supreme Court Cases 500;vinod kumar
2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [7]
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iii) Jayalakshmi Coelho v. Oswald Joseph Coelho, (2001) 4 Supreme Court Cases 181;
iv) State of Punjab v. Darshan Singh, (2004) 1 Supreme
Court Cases 328; and
v) Deputy Director Land Acquisition v. Malla
Atchinaidu and others, 2006(12) SCC 87.
It is submitted by him that while invoking the provisions of Section 152 of the CPC, the Court can correct the arithmetical, technical, clerical or accidental slip or omission or commission, but insofar as the replacement of Section 34 by Section 28 of the Act is concerned, the power does not vest with the Reference Court.
On the other hand, learned counsel for the respondents has argued that the jurisdiction of the Court is invoked under Section 152 of the Act when there is a careless mistake on the part of the Court as the basic principle 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. He further submitted that an unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified by the said Court on an application filed under Section 152 of the CPC.
Counsel for the respondents has further argued that the statutory interest provided under Section 28 of the Act is an integral part of the award and in this regard, he has relied upon the following judgments:-
i) Jayakrishna Manharaj Mohapatra v. State of Orissa vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [8] ***** and another, AIR 1976 Orissa 203(1);
ii) Nand Ram and others v. State of Punjab, AIR 1982 Punjab and Haryana 184;
iii) Maya Devi and others v. The Union Territory of Chandigarh, 1988 PLJ 189;
iv) Kehar Singh and another v. Union of India, 1989(1)
R.R.R. 209; and
v) Samarendra Nath Sinha and another v. Krishna
Kumar Nag, AIR 1967 Supreme Court 1440.
He has also referred a Single Bench judgment of this Court in the case of Bhagwan Dass v. Surjit Singh and others, CR No.1836 of 2013, decided on 30.06.2014 against which the SLP filed and is dismissed by the Supreme Court on 25.08.2014.
Counsel for the respondents has also argued that the Reference Court had no jurisdiction to award interest under Section 34 of the Act as it comes within the jurisdiction of the Collector only and since the mistake committed by the Reference Court in awarding interest under Section 34 and not under Section 28 of the Act has rightly been corrected by the Reference Court on an application moved under Section 152 of the CPC, therefore, the order under challenge deserves to be maintained.
I have heard learned counsel for the parties and perused the available record with their able assistance.
Before I advert to the issue involved and referred to the judgment relied upon by both the parties, it would be relevant to refer the vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [9] ***** provisions of the CPC and the Act involved in this case are reproduced here- as-under for ready reference:-
Section 152 of the CPC "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."
Sections 28 and 34 of the Act
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 vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 10 ] ***** 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."
34. Payment of interest.-- When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited:
Provided that if such compensation or any part thereof is not paid or deposited within 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 compensation or part thereof which has not been paid or deposited before the date of such expiry."
As per Scheme of the Act, when the land is required for any public purpose, notification is issued under Section 4(1) of the Act proposing the acquisition by affording opportunity to the land owners to be affected to oppose the notification by filing objections under Section 5-A of the Act. Once the objections are filed, the Collector, after affording opportunity to the objector, decides as to whether he should proceed with the acquisition of the area concerned regarding which the objections has vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 11 ] ***** been filed or not. If he comes to the conclusion that the land should not be acquired, he would recommend accordingly and if otherwise, the recommendation of the Collector would be of acquisition and, ultimately, by way of notification under Section 6 of the Act, the Government declares the acquisition. Thereafter, the affected land owners is provided an opportunity under Section 9-A of the Act to file objection, if any, for determination of the amount of compensation on the basis of some prima facie evidence. After the objection is filed or not filed, the Collector announce his award under Section 11 of the Act. The statute further provides opportunity to the land owners to file another objection to the determination of the compensation by the Collector through an application under Section 18, which the Collector himself cannot decide as it has to be decided on the basis of evidence to be led by the claimants. The objection is to be referred by the Collector to the principal Court where both the parties are granted opportunities to lead their evidence and then the award under Section 23 of the Act is passed by the Reference Court. At the time of passing of the award, the Reference Court would also grant statutory benefits under Sections 23(1A), 23(2) and 28 of the Act. Insofar as Section 34 of the Act is concerned, it forms part of Chapter V of the Act regarding the payments. Section 31 of the Act provides that in case the compensation is taken, the Collector shall deposit the payment of the amount of the claimants and if it is not deposited within the statutory period, the beneficiary of the acquisition would pay interest through the Collector to the claimants in terms of Section 34 of the Act.vinod kumar
2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh
CR No.4575 of 2014 (O&M) [ 12 ]
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Insofar as the present case is concerned, the Reference Court had awarded interest under Section 34 of the Act instead of Section 28 of the Act which led to the filing of application under Section 152 of the Act.
Since the counsel for the petitioner has vehemently argued that the Reference Court hag no jurisdiction to pass such kind of order, his submission has to be tested on the basis of the judgments he has referred during the course of hearing.
In Bai Shakriben's case (supra), the notification under Section 4(1) of the Act was issued on 02.01.1975 and the Collector gave his award on 19.05.1980. The Reference Court enhanced the compensation vide order dated 20.08.1983 and the High Court dismissed the appeals on 22.08.1984. Thereafter, the land owners filed applications under Order 47 Rule 1 and Section 151 of the CPC for amendment of the decree to award benefits of Sections 23(1-A), 23(2) and 28 of the Act, as amended by Central Act 68 of 1984. Although the Reference Court granted the amendment, the High Court set aside that order in appeal and the SLPs were filed before the Supreme Court.
It was argued before the Supreme Court on behalf of the claimants that the Reference Court had the jurisdiction under Order 47 Rule 1 of the CPC to amend the decree though it became final. The counsel, appearing on behalf of the claimants in that case, referred to the judgment of the Supreme Court in the case of Union of India v. Raghubir Singh, (1989) 2 SCC 754, but it was found by the Court that the Amendment Act has no application and it would be applicable only to the proceedings if they vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 13 ] ***** are pending before the Collector or Reference Court between 30.04.1982 to 24.09.1984. However, it was held that the decree had become final and the question would be as to whether the Executing Court or the Reference Court could go beyond the decree behind the decree which becomes final to amend the self-same decree by exercising the power under Order 47 Rule 1 and Section 151 CPC. It was observed that the Executing Court cannot go behind the decree and it would have been appropriate for the claimants to have gone in appeal and have the matter corrected. The 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 mistake crept in the award passed by the Reference Court but amounts to non-award and in 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(1-A), 23(2) and 28 of the Act.
Counsel for the petitioner has placed heavy reliance upon the aforesaid judgment during the course of arguments and contended that the amendment cannot be brought in and if the relief under Section 28 of the Act is not granted by the Reference Court, then it amounts to non-award for which the claimants can only have the recourse of appeal which they have already availed, therefore, the order passed by the Reference Court is patently illegal.
Countering this argument, learned counsel for the respondents has submitted that the aforesaid judgment does not deal with a situation like vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 14 ] ***** the one in hand as no application under Section 152 was filed by the claimants therein as it was just an application filed under Order 47 Rules 1 of the CPC to amend the decree. The reason given by the Supreme Court for not entertaining the application for review was that the decree had already become final and the Reference Court had no jurisdiction to go behind the decree and an omission in award of the additional amounts could be only made by way of appeal, whereas in the present case, it is submitted that the appeals are still pending in this Court and the award/decree has not become final. No application under Section 47 Rule 1 of the CPC has been filed by the respondents-claimants, rather the application under Section 152 of the CPC has been filed because there is an apparent careless mistake on the part of the Reference Court for granting interest under Section 34 of the Act instead of Section 28 of the Act.
In Dwaraka Das's case (supra), the tender was invited by the State and allotted the work for construction of a hostel for 100 boys at Polytechnic Ujjain after an agreement was executed between the parties on 26.12.1960. The entire work was required to be completed within 29 months with further condition that 1/4th of the work was to be completed within 5 months, half the work to be completed within 10 months and ¾ work was to be completed within 15 months. The work order was issued to the appellant on 26.12.1960 who started construction on 28.12.1960. The Superintending Engineer is alleged to have obstructed the progress of the work with the result that the work could not be completed within the time schedule and the contract executed between the parties was rescinded by the vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 15 ] ***** respondents on 19.06.1961 on the ground that the appellant had not completed even 10 per cent of the work despite lapse of more than 9 months. Appellant Dwaraka Dass, however, contended that the termination of the contract was in breach thereof and claimed `20,000/- as damages for breach of contract besides claiming other amounts payable by the respondent to him. Suit for the recovery of `32,000/- filed by the appellant was decreed with a direction that the appellant would also be entitled to future interest @ 6 per cent per annum.
After the decree of the Trial Court, the appellant filed an application under Section 152 of the CPC praying for awarding of interest from the date of the suit till the date of the decree by correcting the judgment and decree on the ground that on-awarding of interest pendente lite was an accidental omission. The trial Court allowed this application and directed the correction of the judgment and decree by awarding interest pendente lite. The state filed the appeal against the judgment and decree of the trial Court and also a revision against the order passed under Section 152 Cr.P.C. The High Court partly allowed the appeal by holding the respondent-State liable to pay only a sum of `4783.33/- to the plaintiff with interest @ 6% per annum and the revision was allowed and the order of the trial Court granting interest pendente lite was set aside. This led to the filing of the appeal before the Supreme Court by Dwaraka Dass.
This judgment has been cited by learned counsel for the petitioner in order to highlight as to what orders can be passed on an application filed under Section 152 of the CPC. While referring to para 6 of vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 16 ] ***** this judgment, he has admitted that Section 152 of the CPC provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders of errors arising therein from any accidental slip or omission. This exercise contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing effective judicial orders after the judgment, decree or order. This proposition settled is that the after the passing of the judgment, decree or order, the Court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order and the omission sought to be correct which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. In that case, it was observed that the trial Court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of the appellant insofar as pendente lite interest was concerned. Thus, the omission in not granting the pendente lite interest could not be held to be accidental omission or mistake as was wrongly done by the trial Court.
In this regard, learned counsel for the respondent has submitted vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 17 ] ***** that this judgment is also not applicable because there was an intentional act on the part of the Court for not granting interest pendente lite, i.e. from the date of the suit till the decree and is not the careless mistake on the part of the Court.
In Jayalakshmi Coelho's case (supra), there was a matrimonial dispute between the parties which ultimately culminated into the dissolution of their marriage on the basis of an agreement. A decree by mutual consent was passed, but lateron the application for modification has been filed. In this background, an application filed under Section 152 of the CPC was dismissed.
While referring to para 13 of the said judgment, counsel for the petitioner has submitted about the principles culled out by this Court to be followed while deciding the application filed under Section 152 of the CPC in which it has been held that the provisions is founded on the maxim that an act of the Court shall prejudice no man.
Counsel for the respondents has submitted that there is no dispute about this proposition, rather the application is filed by them on this basis.
In State of Punjab's case (supra), again the power to be exercised under Section 152 of the CPC is referred to in para 12 and 13 of the judgment which is helpful for me as a guidance and the parties to the lis, therefore, it does not require any further elaboration.
Lastly, in Deputy Director Land Acquisition's case (supra), the Land Acquisition Officer gave an award on 03.02.1983 granting vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 18 ] ***** compensation of `11,500/- and also valued certain Palmyrah trees @ `2,000/- (`10/- for big Palmyrah tree, `5/- for small Palmyrah tree and `50/- for cashew trees). There were 176 Palmyrah trees and 7 cashew trees. The possession of the said land was taken on 24.03.1983. On 27.04.1991, the Court passed an order whereby the compensation amount was enhanced to `55,000/- per acre and the compensation with regard to palmyrah trees was enhanced to `100/- for a big tree and `50/- for a small tree and `200/- for a cashew tree. On 29.07.1991, however, the respondents filed I.A. No.70/91 in O.P. No.21/87 contending that there were 10,000 big palmyrah trees and 4,500 small palmyrah trees and that the order of the Sub Judge contained a typographical error. The application was thus filed under Section 152 of the CPC in this regard which was allowed by the Court below and upheld by the High Court. It was argued before the Supreme Court that the High Court ought to have noticed that there was no evidence either before the Sub- Judge or before the High court to the effect that there existed 10,000 big palmyrah trees and 4,500 small palmyrah trees on the acquired land and the High Court should have also noticed that the judgment and decree of the learned Sub Judge was passed after an elaborate enquiry and after considering all the evidence on record and yet the learned Sub Judge found no reason to record a finding that there existed such large number of trees on the acquired land.
In this background, it was held that the Single Bench of the High Court had erred in law in upholding the plea of the claimants that their grievance is amenable for correction under Section 152 of the CPC and that vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 19 ] ***** the learned Single Judge was not right in entertaining the respondent's revision under Section 115 of the CPC more so, when the matter was seized by the Division Bench and thus preempting an adjudication by the latter.
On the strength of this judgment, counsel for the petitioner has argued that once the appeal is pending before this Court, the application under Section 152 of the CPC should not have been entertained and allowed by the Reference Court.
In reply, counsel for the respondents has argued that the facts of the said case are altogether different from the case in hand because in the said case, when the Collector passed the award he had found that there were 176 palmyrah trees and took the possession on 24.03.1983 with the trees, but before the Reference Court, a miscellaneous application was filed by the claimants that there were 10,000 big palmyrah trees, 4,500 small palmyrah trees and 25 cashew trees. Thus, it is submitted that the observation made in that case that the application under Section 152 of the CPC is not applicable is because of the reason that it is a question of fact which is to be decided by the Appellate Court where the appeal was pending.
Insofar as the judgments relied upon by learned counsel for the respondents are concerned, in Jayakrishna Manharaj Mohapatra's case (supra), the Orissa High Court has held that application under Section 152 of the CPC is applicable where a correction is required for an accidental slip or omission. It was held that the statutory interest is an integral part of the decree to be passed by the Court even if the application was filed after 6 years' delay. This judgment is followed by this Court in Nand Ram's case vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 20 ] ***** (supra) wherein the delay was of 8 years in filing of the application for correction.
Further in Maya Devi's case (supra), the Division Bench of this Court, while relying upon the judgment in Nand Ram's case (supra), has observed that if there is a clerical mistake, the application under Section 152 of the CPC is applicable and statutory interest, being an integral part of the compensation to be paid to the land owners, has to be awarded.
Similarly, in Kehar Singh's case (supra), the judgment delivered by this Court in Maya Devi's case (supra) was followed.
Counsel for the respondents has also relied upon a decision of this Court in CR No.1836 of 2013 titled as "Bhagwan Dass v. Surjit Singh and others" in which the application filed under Section 152 of the CPC was allowed on the principle that the act of the Court shall prejudice no man and the Court has a duty to see that its record is correct and represent a correct state of affairs. The order passed by this Court in this case was upheld by the Supreme Court as the SLP filed against that order was dismissed on 25.08.2014.
The last judgment cited by learned counsel for the respondents in Samarendra Nath Sinha's case (supra) is on the ground that the application filed under Section 152 of the CPC can still be filed if the appeal against the judgment is pending.
I have heard learned counsel for the parties and examined the record with their able assistance.
The issue involved in this case is as to whether the Reference vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 21 ] ***** Court has erred in allowing the application filed under Section 152 of the CPC by replacing Section 28 with Section 34 of the Act. The another issue is as to whether the application filed under Section 152 of the CPC could have been entertained during the pendency of the appeal.
Before I proceed further, it would be relevant to delineate the ingredients of Section 152 of the CPC. This provision is provided to correct the judgments, decrees or orders if there is a clerical or arithmetical errors arising therein from any accidental slip or omission. The Supreme Court, in State of Punjab's case (supra), has held that the foundation of Section 152 of the CPC is 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 and an unintentional mistake of the court which may prejudice the cause of any party must and alone could be rectified. 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.
With the help of the aforesaid clarification, it has to be find out whether it is a careless mistake on the part of the Court which has been corrected by it on the application filed under Section 152 of the CPC. No doubt that the Reference Court has awarded statutory benefits under Section 23(1-A) and 23(2) of the Act, but it had also awarded interest under Section 34 of the Act to the land owners. As a matter of fact, the Reference Court vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 22 ] ***** had no jurisdiction to award interest under Section 34 of the Act and as per Scheme of the Act, it could be awarded only by the Collector. The interest which could be awarded by the Reference Court is under Section 28 of the Act. Therefore, it appears to be a careless mistake on the part of the Reference Court which has been corrected by it on the application filed by the respondents by granting benefit under Section 28 of the Act.
Insofar as the judgments relied upon by learned counsel for the petitioner are concerned, in Bai Shakriben's case (supra), the application was filed under Order 47 Rule 1 read with Section 151 of he CPC. The decree had become final, therefore, it was held by the Court that omission to award additional amounts under Sections 23(1-A), 23(2) and 28 of the Act is not merely a clerical or arithmetical mistake, but it amounts to non-award by the Reference Court. This judgment is not applicable to the facts and circumstances of the present case because the appeal is still pending before this Court and being the first appeal, the Court has to re-appreciate the facts as well.
The second judgment in Dwaraka Das's case (supra) is also not applicable because in that case, application filed under Section 152 of the CPC was filed for awarding interest from the date of the suit till the date of the decree. It has been held that it was a conscious act on the part of the tribunal and once the decree has been passed, the tribunal becomes functus officio and it could not be an act of accidental slip of omission.
The third judgment in Jayalakshmi Coelho's case (supra) is cited only in order to highlight as to what kind of mistakes could be vinod kumar 2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh CR No.4575 of 2014 (O&M) [ 23 ] ***** corrected in the application filed under Section 152 of the CPC.
In the fourth judgment in State of Punjab's case (supra) also, the parameters have been laid down for exercising powers under Section 152 of the CPC.
The last judgment in Deputy Director Land Acquisition's case (supra) is also not applicable to the facts and circumstances of the present case because in that case after the award was announced by the Reference Court, an application was filed before the Reference Court by the land owners disputing the facts of existence of number of trees on the acquired land. The Court held that this kind of correction cannot be carried out under Section 152 of the CPC as it is a matter of evidence and also held that it could be decided in appeal which is pending.
Accordingly, I do not find any judgment relied upon by learned counsel for the petitioner to be applicable to the facts and circumstances of this case. However, the judgments relied upon by learned counsel for the respondents are squarely covering the issue involved, as in all the cases, namely, Jayakrishna Manharaj Mohapatra's (supra), Nand Ram's case (supra), Maya Devi's case (supra), Kehar Singh's case (supra), Samarendra Nath Sinha's case (supra) and Bhagwan Dass's case (supra), the consistent stand of this Court is that the statutory interest provided under Section 28 of the Act is an integral part of the decree to be passed by the Court while determining compensation under the Act and has to be awarded, which can always be corrected on an application filed under Section 152 of the CPC.
vinod kumar2014.09.05 15:40 I attest to the accuracy and integrity of this document Chandigarh
CR No.4575 of 2014 (O&M) [ 24 ]
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Thus, in view of the aforesaid discussion, I do not find any error committed by the learned Court below while passing the impugned order and hence, the present revision petition is hereby dismissed.
September 03, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE