Allahabad High Court
State Of U.P. vs Ram Lal & Ors on 27 May, 2013
Author: Manoj Misra
Bench: Manoj Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment reserved on 16.05.2013 Judgment delivered on 27.05.2013 Case :- FIRST APPEAL No. - 297 of 2007 Appellant :- State Of U.P. Respondent :- Ram Lal & Ors Counsel for Appellant :- S.C. Counsel for Respondent :- N.C. Rajvanshi Hon'ble Manoj Misra, J.
1. I have heard learned Standing Counsel for the appellant and Sri P.C. Shukla holding brief of Sri N.C. Rajvanshi for the claimant-respondents and perused the record.
2. This appeal, under Section 96 of the Code of Civil Procedure read with Section 54 of the Land Acquisition Act (hereinafter referred to as the Act), has been filed against the judgment and order dated 16.04.1988 passed by the District Judge, Muzaffarnagar in Misc. Case No. 243 of 1986 whereby the application of the claimant-respondents to modify the award dated 15.02.1985 passed in L.A.R. No. 164 of 1978 has been allowed and the award dated 15.02.1985 has been modified by increasing the awarded solatium from 15% to 30 % and the interest payable under Section 28 of the Act from 6% p.a. to 9% p.a.
3. The undisputed facts are that land acquisition proceedings were initiated vide notification dated 05.05.1976, under Section 4(1) of the Act, followed by notification dated 06.05.1976, under Section 6(1) of the Act. Possession was taken on 29.06.1976 and 27.04.1977, followed by an award of the Special Land Acquisition Officer dated 30.03.1978. The claimant-respondent objected to the proposed compensation, consequently, a reference, under Section 18 of the Act, was made, which was registered as L.A.R. No. 164 of 1978. The reference Court, on 15.02.1985, passed an award thereby awarding Rs. 4,47,906/- as compensation along with 15% as solatium on the amount with proportionate cost and interest at the rate of 6% p.a. from the date of possession up to the date of payment or deposit in the Court. Later, on 22.09.1986, an application was filed by the claimant-respondent, purportedly, under Section 151 read with Sections 152 and 153 of the Code of Civil Procedure, for modification and amendment in the judgment and award dated 15.02.1985 on the ground that by virtue of the Amendment Act No. 64 of 1984, the claimant was entitled to solatium, under amended Section 23(2) of the Act, at the rate of 30% on the market value as also interest, under amended Section 28 of the Act, at the rate of 9%. The court below took the view that as the reference Court passed the award after the Act No. 68 of 1984 had come into force i.e. 24.09.1984, the claimant was entitled to the benefit of the amended provisions of Sections 23 and 28 of the Act and as, due to oversight, the benefit of the amended provisions was not provided to the claimant, the operative portion of the award required modification. Accordingly, the solatium was enhanced from 15% to 30% and the interest was enhanced from 6% p.a. to 9% p.a. As neither party could inform the Court, despite opportunity, whether any appeal was preferred against the award, accordingly, it is assumed that the award of the Reference Court attained finality.
4. The modification order dated 16.04.1988, has been challenged in this appeal on two grounds:
(a) that the award dated 15.02.1985 had become final, therefore, the same could not have been modified/altered in exercise of power under Sections 151, 152 and 153 CPC as such powers are exerciseable only when there is any clerical or arthmetical mistake arising from any accidental slip or ommission and it cannot be used to review/ modify a judgment or award, which has already become final; and
(b) that as the award of the Collector was passed on 30.03.1978 and that of reference Court on 15.02.1985, the benefit of the amended provisions of sub-section (2) of Section 23 and of Section 28 of the Act were not available, inasmuch as, by sub-section (2) of Section 30 of the Land Acquisition Amendment Act, 1984 (Act No. 68 of 1984), the benefit of the amended provisions were available only where the Collector's or Court's award was made after 30th day of April, 1982 and before the commencement of the Act No. 68 of 1984 i.e. 24.09.1984.
5. Per contra, the learned counsel for the claimant-respondent submitted that by several decisions of the Apex Court it has been settled that where proceedings are pending before the Reference Court on the date of commencement of the Act No. 68 of 1984, then the benefit of the amended provisions are available to the claimant and, therefore, the claimant-respondent is entitled to solatium at the rate of 30% and to interest at the rate of 9% as provided by amended section 23(2) and section 28 respectively. It was also submitted that since the Court, by mistake, did not take into consideration the amended provisions of the Act, at the time of passing of the award, it had full jurisdiction to correct/modify its award in exercise of power under Sections 151 and 152 of the Code of Civil Procedure.
6. Having considered the submissions of the learned counsel for the parties as also on perusal of record, two points arise for determination in this appeal: -
(1) whether the claimant-respondent is entitled to the benefit of the amended provisions of Section 23(2) and Section 28 of the Act even though the award of the Collector was made much before the introduction of the Land Acquisition Act (Amendment) Bill, 1982, in the House of the People and the Reference Court's award was passed after the commencement of the Act No. 68 of 1984; and (2) whether the court below after passing of the award dated 15.02.1985 had become functus officio and had no jurisdiction to modify the award and increase the solatium from 15% to 30% and interest from 6% to 9% in exercise of power under Sections 151 and 152 of the Code of Civil Procedure.
POINT No.1
7. So far as the entitlement to the enhanced solatium, under the amended section 23(2) of the Act, as also the enhanced interest under the amended section 28 of the Act, is concerned, it is already settled by various decisions of the Apex Court that the benefit of the amended provisions would also be available where the reference was pending in the Reference Court at the time when the Act No. 68 of 1984 came into force, even though the award of the Collector might have been passed before 30.04.1982. The Apex Court had the occasion to interpret the provisions of Section 30(2) of the Act No. 68 of 1984 in the case of Union of India and others v. Filip Tiago De Gama of Vedem Vasco De Gama : (1990) 1 SCC 277, where, in paras 17 and 18 of the judgment, the Apex Court observed as follows:-
"17. Section 30(2) provides that amended provisions of Section 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the collector or Court between 30 April 1982 and 24 September 1984, or to an appellate order therefrom passed by the High Court or Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium inasmuch as to awards made subsequent to September 24, 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended Section 23(2). The case like the present one seems to have escaped attention by innocent lack of due care in the drafting. The result would be an obvious anomaly as will be indicated presently. If there is obvious anomaly in the application of law the Court could shape the law to remove the anomaly. If the strict grammatical interpretation gives rise to absurdity or inconsistency, the Court could discard such interpretation and adopt an interpretation which will give effect to the purpose of the legislature. That could be done, if necessary even by modification of the language used. [See: Mahadeolal Kanodia v. The Administrator General of West Bengal, [1960] 3 SCR 578]. The legislators do not always deal with specific controversies which the Court decide. They incorporate general purpose behind the statutory words and it is for the courts to decide specific cases. If a given case is well within the general purpose of the legislature but not within the literal meaning of the statute, then the court must strike the balance.
18. The criticism that the literal interpretation of Section 30(2), if adhered to would lead to unjust result seems to be justified. Take for example two acquisition proceedings of two adjacent pieces of land, required for the same public purpose. Let us say that they were initiated on the same day--a day sometime prior to 30 April 1982. In one of them the award of the Collector is made on 23 September 1984 and in the other on 25 September 1984. Under the terms of Section 30(2) the benefit of higher solatium is available to the first award and not to the second. Take another example: the proceedings of acquisition initiated, say, in the year 1960 in which award was made on 1 May 1982. Then the amended Section 23(2) shall apply and higher solatium is entitled. But in an acquisition initiated on 23 September 1984, and award made in the year 1989 the higher solatium is ruled out. This is the intrinsic illogicality if the award made after 24 September 1984, is not given higher solatium. Such a construction of Section 30(2) would be vulnerable to attack under Article 14 of the Constitution and it should be avoided. We, therefore, hold that benefit of higher solatium under section 23(2) should be available also to the present case. This would be the only reasonable view to be taken in the circumstances of the case and in the light of the purpose of Section 30(2). In this view of the matter, the higher solutium allowed by the High Court is kept undisturbed."
8. In the case of Panna Lal Ghosh and others v. Land Acquisition Collector and others : (2004) 1 SCC 467, in paras 12, 13 and 14, the apex court observed as follows:-
"12. In Union of India V. Filip Tiago De Gama the issue was whether the amendment would apply to an award made subsequent to 24.9.1984 even though the acquisition proceedings had commenced prior to the date. This Court looked at the intention behind the retrospective effect to the amending section. If the literal interpretation is taken, it was held, it will result in anamoly. In order to avoid it, regard must be had to the purpose of Section 30(2). Consequently, this Court awarded higher solatium even though Reference Court made the award in 1985.
13. Again in K.S. Paripooran case this Court widened the restricted interpretation given in Raghubir Singh case. It held that the enhanced solatium would apply even to a case pending at the time the Act came into force.
14. Following this train of thought, the benefit of enhanced solatium would extend to the present case. During the period between 30.4.1982 and 29.9.1984, the reference was pending in the Reference Court. The court's award was passed in 1985. Following the above interpretation, the appellants are thus entitled to enhanced solatium @ 30% and interest under Section 23(2) of the Act."
9. In the case of Communidade of Morombi-O-Pequeno v. State of Goa : (2004) 12 SCC 430, in para 9, the Apex Court observed as follows:-
"9. It was next submitted that the Reference Court was not right in awarding solatium under Section 23(2) and interest under Section 28 of the Land Acquisition Act, 1894. In support of this, reliance was placed upon the case of Union of India v. Raghuvir Singh and also upon Section 30(2) of the Land Acquisition (Amendment) Act, 1984. It was submitted that the notification was of 11-11-1977 and the award of the Collector had been passed on 23-3-1978. It was submitted that since this award was not between the period 30-041982 to 24-9-1984, retrospective effect could not have been given and these amounts could not have been awarded. We see no substance in this submission. The award of the Reference Court is dated 27-02-1990. When the Reference Court was considering this matter Sections 23(2) and 28 as amended were already on the statute-book. Therefore, the Reference Court was bound to take note of these provisions. In such a case no question arises of any retrospectivity. In Raghubir Singh case the notification had been issued on 13.11.1959, the award had been made on 30-3-1963 and the Reference Court award was of 10-6-1968. It was only the High Court's decision which was after the amendment i.e. on 6-12-1984. Therefore, question of retrospectivity had arisen in that case. In this case no such question arises."
10. In view of the law noticed above, it is clear that where the Reference Court passes its award after 24-9-1984 the amended provisions of sub-section (2) of section 23 and section 28, being already in the statute book, ought to be applied to provide benefit to the landloser, even though the Collector's award was passed before the introduction of the Amendment Bill in the House of the People. It is thus held that the claimant-respondent was entitled to the benefit of the amended provisions of Section 23(2) and Section 28 of the Act even though the award of the Collector was made much before the introduction of the Land Acquisition Act (Amendment) Bill, 1982, in the House of the People and the Reference Court's award was passed after the commencement of the Act No. 68 of 1984.
POINT No.2
11. Now the question that arises is whether the court below had the jurisdiction to provide the benefit of the amended provisions in purported exercise of its power under sections 151 and 152 CPC even though no appeal or review was filed, by either side, against the award of the Reference Court dated 15.02.1985. The record reveals that instead of filing an appeal or a review, within the period of limitation provided for the purpose, an application was filed, purportedly, under sections 151, 152 and 153 CPC, on 22.09.1986, for modification of the award. Although the provisions of Section 153 of the Code of Civil Procedure were also invoked but there is no doubt that the power under Section 153 is not exerciseable for modifing/ altering/ amending a judgment or an award that has attained finality. Therefore, the question which arises is whether the Court had jurisdiction to amend or modify its award, after it became final, and provide solatium and interest at a higher rate, by giving the benefit of the amended provisions, in exercise of its power under Sections 151 and 152 of the Code of Civil Procedure. This question has been a subject matter of adjudication in several decisions of the apex court and it no longer remains res integra.
12. In the case of State of Maharastra v. Maharau Srawan Hatkar : (1995) 3 SCC 316, the facts of the case were that under a Notification dated 13.08.1979, under Section 4 of the Land Acquisition Act, proceedings were initiated and an award was passed by the Land Acquisition Officer on 17.12.1981 and, on a reference under Section 18 of the Act, the Reference Court enhanced the compensation by its award dated 25.10.1983 against which no appeal was preferred. After Land Acquisition (Amendment) Act 68 of 1984 came into force, the claimant made an application to the Reference Court for awarding the enhanced solatium, additional compensation and interest payable under the Amendment Act. The Reference Court by its order dated 31.03.1986, allowed the application in exercise of its power under Sections 151 and 152 of the Code of Civil Procedure. Dissatisfied with the order passed by the Reference Court, the State preferred an appeal before the High Court which was summarily dismissed against which an appeal came before the Apex Court. The apex court, in paragraphs 3 to 9 of its judgment, observed as follows:-
"3. The only question that arises for consideration is whether the Civil Court has power and jurisdiction to award the benefits of the Amendment Act 68 of 1984. Shri Bhasme, the learned counsel for the State contended that the Civil Court gets jurisdiction to determine compensation under section 23(1) of the Act only on reference. On its making the award enhancing the compensation under sub-section (1) of section 23, it would be a decree under section 26(2). The Court thereafter has no power to amend the decree except in accordance with law. This is not either a clerical or arithmetical mistake for correction under section 152 of CPC or under section 13-A of the Act, but is an independent exercise of power. Unless the Court is empowered to do so by law, the civil court is devoid of Jurisdiction to give the benefits under the Amendment Act.
4. Shri G.K. Bansal, learned counsel, on the other hand, contended that since the CPC is made applicable to the proceedings of reference under Section 18, by operation of Section 53 of the Act, the civil court gets the inherent power under Section 151 CPC to grant the benefits and that, therefore, the court can pass fresh order giving the benefits under the Amendment Act.
5. We find no force in the contention of Shri Bansal. On receipt of reference under s. 18, the procedure prescribed under sectionss. 19 and 20 of the Act is required to be followed and the civil court determines the compensation in the manner indicated under sub-s.(1) of section 23 of the Act which envisages that in determining the amount of compensation to be awarded for the land acquired under the Act, the court shall take into consideration clauses first to sixthly mentioned thereunder while determining the compensation. Sub-section (1A) of section 23, which was brought by the Amendment Act, and sub-s.(2) of s.23 provide that:
"(1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land whichever is earlier.
(2) In addition to the market value of the land as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition"
Section 28 envisages that:
"28. Collector may be directed to pay interest on excess compensation ...If the sum which, in the, opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into court:
Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry."
6. It would thus be seen that the additional amounts envisaged under sub-sections (1A) and (2) of section 23 are not part of the component of the compensation awarded under sub-section (1) of section 23 of the Act. They are only in addition to the market value of the land. The payment of interest also is only consequential to the enhancement of the compensation. In a case' where the Court has not enhanced the compensation on reference, the Court is devoid of power to award any interest under section 28 or the spreading of payment of interest for one year from the date of taking possession at 9% and 15% thereafter till date of payment into the court as envisaged under the proviso.
7. Section 26 of the Act envisages that:
"(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub- section (1)of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of s.2, clause (2), and section 2, clause (9), respectively, of the Code of Civil Procedure, 1908 (5 of 1908)."
8. Thus, it would be seen that a decree having been made under section 26(2), the civil court is left to correct only either clerical or arithmetical mistakes as envisaged expressly under section 13-A of the Act or under section 152 CPC. Though section 151 CPC gives inherent power to the Court, it is intended only to prevent abuse of the process of the court or to meet the ends of justice. The present is not a case of such nature. Further, since section 23 is an express power under which the civil court has been conferred with the jurisdiction to determine compensation, and in addition to the market value certain percentage of the amount is directed to be awarded as envisaged under section 23(1A) and 23(2) and the interest component under section 28, the invocation of section 151 CPC by necessary implication stands excluded.
9. Thus, we hold that the civil court had inherent lack of jurisdiction and it was devoid of power to entertain the application to award additional benefits under the Amendment Act. The order thereby is clearly a void order. The High Court has not applied its mind to this crucial consideration but summarily dismissed the appeal."
13. The aforesaid judgment was followed by the Apex Court in the case of Bai Shakriben (dead) by Natwar Melsingh and others v. Special Land Acquisition Officer and another : (1996) 4 SCC 533, wherein in paragraph 6 of the report, it was observed as follows:-
"....................But having allowed the decree to become final, the question emerges whether it would be open to the executing Court or the reference court to go behind the decree which become final to amend the self-same decree by exercising the power under Order 47 rule 1 and Section 151 CPC. We feel that the executing Court cannot go behind the decree. It would have been appropriate for the claimants to have gone in appeal and have the matter corrected, but unfortunately they did claim of the appellate remedy and allowed the decree to become final. The omission to award additional amounts under section 23(1-A), enhanced interest under section 28 and solatium under Section 23(2) are not clerical or arithmetical mistake crept in the award passed by the reference Court but amounts to non-award. Under those circumstances, the reference Court was clearly in error in entertaining the application for amendment of the decree and is devoid of power and jurisdiction to award the amounts under Sections 23(2), 23(1-A) and 28 of the Act."
14. Likewise, in the case of Union of India v. Swaran Singh and others : (1996) 5 SCC 501, in para 8, it was observed as follows:-
"8. The question then is whether the High Court has power to entertain independent applications under Sections 151 and 152 and enhance solatium and interest as amended under Act 68 of 1984. This controversy is no longer res integra. In State of Punjab vs. Jagir Singh & Ors. [1995 Supp.(4) SCC 626] and also in catena of decisions following thereafter in Union of India & Ors. vs. Pratap Kaur (dead) through LRs. & Anr. [(1995) 3 SCC 263]; State of Maharashtra vs. Maharau Srawan Hatkar [JT 1995 (2) SC 583]; State of Punjab & Anr. vs. Babu Singh & Ors. [1995 Supp. (2) SCC 406]; Union of India s Anr. etc. vs. Raghubir Singh (Dead) by Lrs. etc. [(1989) 2 SCC 754]; and K.S. Paripoornan vs. State of Kerala & Ors. [(1994) 5 SCC 593], this Court has held that reference Court or High Court has no power or jurisdiction to entertain any applications under Sections 151 and 152 to correct any decree which has become final or to independently pass an award enhancing the solatium and interest as amended by Act 68 of 1984. Consequently, the award by the High Court granting enhanced solatium at 30% under Section 23 (2) and interest at the rate of 9% for one year from the date of taking possession and thereafter at the rate of 15 % till date of deposit under Section 28 as amended under Act 68 of 1984 are clearly without jurisdiction and, therefore, a nullity. The order being a nullity, it can be challenged at any stage. Rightly the question was raised in execution. The executing Court allowed the petition and dismissed the execution petition. The High Court, therefore, was clearly in error in allowing the revision and setting aside the order of the executing Court."
15. In Jaya Chandra Mahapatra v. Land Acquistion Officer, Rayagada (2005) 9 SCC 123, the apex court in similar fact situation, took a liberal view. In paragraph 8 of its judgment, the apex court observed that in law there is no bar in filing applications for review successively if the same is otherwise mantainable in law. It observed that it is one thing to say that the omission to award additional amount under Section 23(1-A), enhanced interest under Section 28 and solatium under Section 23(2) may not amount to clerical or arithmetical mistake in relation whereto an executing court will not be entitled to grant relief but it is another to say that the grant thereof would be impermissible in law even if the Reference Court on an appropriate application made in this behalf and upon application of its mind holds that the statutory benefits available to the claimant had not been granted to him and pass an order in that behalf by directing amendment of decree. In a case of former nature, an executing court may not have any jurisdiction to pass such an order on the ground that it cannot go behind the decree, but in law there does not exist any bar on a Reference Court to review its earlier order if there exists an error apparent on the face of the record in terms of Order 47 Rule 1 of the Code of Civil Procedure.
16. In the case of Jayalakshmi Coelho v. Oswald Joseph Coelho : (2001) 4 SCC 181, the Apex Court had occasion to deal with the power of a Court under Section 152 of the Code of Civil Procedure and it observed that in a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise, that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The court further held that the facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not find mention in the order or the judgment or something which was not intended to be there stands added to it. It was also held that the power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. It was held that on a second thought court may find that it may have committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court's inherent powers as contained under Section 152 C.P.C., which is to be confined to something initially intended but left out or added against such intention.
Similar view has been expressed in the case of Dwaraka Das v. State of M.P and another : (1999) 3 SCC 500, wherein in paragraph 6, it was observed as follows:-
"6. Section 152 C.P.C. provides for correction of clerical arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. The exercise of this power 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. The settled position of law is that after the passing of the judgment, decree or order, 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 correction contemplated are of correcting only accidental omission or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment, decree or order. The omission sought to be corrected 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, how erroneous that may be. It has been noticed that the courts below have been liberally construing and applying the provisions of Sections 151 and 152 of the CPC even after passing of effective order in the lis pending before them. No Court can under the cover of the aforesaid sections modify, alter or add to the terms of its original judgment, decree or order."
17. Reiterating the view expressed in Dwaraka Das case (supra), in the case of State of Punjab v. Darshan Singh (2004) 1 SCC 328, explaining the power of a Court under section 152 CPC, the apex court observed, in paragraph 12, as follows:
"12. Section 152 provides for correction of clerical or arithmetical mistakes in judgments, decrees or orders arising therein from any accidental slip or omission. The exercise of this power contemplates the correction of mistakes by the court of its ministerial actions and does not contemplate passing of effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very court or the tribunal cannot and, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. 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 concerned under the guise of invoking after the result of the judgment earlier rendered, in its entirety or any portion of it. 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...."
In a recent decision after examining the entire law on this point, including the law laid down in Dwaraka Das Case (supra), the Apex Court in the case of Sarup Singh and another v. Union of India and another: (2011) 11 SCC 198, in para 31, observed as follows:-
"31. In the light of the aforesaid settled position of law, when we examine the facts of the present cases it is patently obvious that the reference case and the matter of payment of compensation to the appellants became final and binding after the award was passed and the judgment was pronounced by the reference court and further by the High Court and thereafter, no appeal having been filed in this Court. Such a judgment and decree which has become final and binding could not have been reopened by the High Court on the basis of revision applications filed under Section 151 and 152 of C.P.C."
18. Taking a conspectus of the various decisions of the apex court noticed hereinabove, it is settled that the power under section 152 of CPC is to be exercised to correct arithmetical or clerical mistakes arising out of accidental slip or omission. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits some thing which was intended to be otherwise, that is to say, while passing the decree the court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. The Court's inherent powers as contained under Section 152 C.P.C., are confined to something initially intended but left out or added against such intention. After the passing of the judgment, decree or order, the same becomes final subject to any further avenues of remedies provided in respect of the same and the very court or the tribunal cannot and, on mere change of view, is not entitled to vary the terms of the judgments, decrees and orders earlier passed except by means of review, if statutorily provided specifically therefor and subject to the conditions or limitations provided therein. 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. Similarly, in view of the decisions noticed above, the power under Section 151 CPC is not available to modify / alter / review a judgment / decree/ award, which has attained finality.
19. Coming to the facts of the instant case, the Reference Court, presided over by 1st Additional District Judge, Muzaffarnagar, passed its award on 15.02.1985 providing solatium @ 15% and interest @ 6%. From a perusal of the Reference Court's award it cannot be inferred that the Reference Court had intended to award solatium at the rate of 30% and interest at the rate of 9% but due to arithmetical or clerical mistake in the judgment/ award, arising from any accidental slip or omission, lower rate was incorporated in the judgment/ award. The application, purportedly, under sections 151, 152 and 153 of the CPC, was filed, on 22.09.1986, with a prayer that the mistake in granting lower solatium and interest be rectified and corrected in the original judgment and decree with necessary consequences. This application came to be decided by a Court presided over by the District Judge, Muzaffarnagar, who had not passed the original award. The Court, without recording any finding that the Reference Court had intended to award solatium and interest at the higher rate but due to arithmetical or clerical mistake, arising from an accidental slip or omission, lower rate was provided, which required rectification, allowed the application and provided higher rate. Seen in light of the settled law, the court below had no jurisdiction to amend/ alter/ modify the award, which had otherwise become final, in exercise of its power under Sections 151 and 152 of the Code of Civil Procedure. Thus, the order of the court below is liable to be set aside.
20. The proper course for the claimant-respondent was either to appeal against the award or to have filed a review application under Order 47 Rule 1 of the Code of Civil Procedure read with section 53 of the Act, as observed by apex court in Jaya Chandra Mohapatra's case (supra). But, in the instant case, even if the application of the claimant-respondent, under Sections 151 and 152 CPC, is assumed to be a review application, the same having been filed beyond the period of 30 days from the date of the award of the Reference Court, was barred by the limitation provided under Article 124 of the Schedule of the Limitation Act and, as such, not entertainable, in absence of any application to condone the delay. Therefore, viewed from any angle, the court below had no jurisdiction to entertain the application and modify the award.
21. Although it would be a hard case for the claimant-respondent but, as it is said that hard case must not make bad law, this Court, for the reasons detailed above, has no other option than to allow the appeal. The appeal is, accordingly, allowed. The judgment and order dated 16.04.1988 passed by the District Judge, Muzaffarnagar in Misc. Case No. 243 of 1986 is hereby set aside. There shall be no order as to costs.
Order Date :-27.05.2013 Sunil Kr Tiwari