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Monday, November 9, 2015

whether in absence of an appeal or cross-objection from the claimants, is it permissible to grant additional benefits to the appellants as provided in Section 23(1-A) of the Amendment Act?

HON'BLE SRI JUSTICE RAMESH RANGANATHAN HON'BLE SRI JUSTICE S. RAVI KUMAR                

A SMP No.730 of 2015

29-07-2015

Girreddy Suryanarayana Reddy .Appellant.                              

The Land Acquisition Officer and Special Deputy Collector, Y.R.P., Unit-III,
Peddapuram, East Godavari District. .....Respondent.

Counsel for the Petitioner: Sri A.K. Kishore Reddy.

Counsel for Respondent: G.P for Appeals.

<Gist :

>Head Note:

? Cases referred:
1. (2010) 10 SCC 458
2. (2007) 13 SCC 421
3. (2006) 1 SCC 380
4. (1994) 4 SCC 368
5. (2003) 2 SCC 330
6. (2005) 11 SCC 197
7. (2003) 1 SCC 197
8. (2001) 7 SCC 211
9. (2006) 8 SCC 457
10. (1996) 4 SCC 533
11. (1996) 5 SCC 501
12. (2005) 7 SCC 748
13. (2004) 1 SCC 328
14. (2001) 4 SCC 181


HON'BLE SRI JUSTICE RAMESH RANGANATHAN          

HON'BLE SRI JUSTICE S. RAVI KUMAR      

ASMP No.730 of 2015  
in
A.S No.1884 of 2001

Date:29-07-2015

The Court made the following :


ORDER: (Per Honble Sri Justice S. Ravi Kumar)

         This petition is filed under Sections 152 & 153-A of CPC
seeking amendment of decree dated 08-12-2010 in A.S.No.1884/2001  
by awarding interest on solatium and additional market value and to
pass such other orders that are deem proper and necessary.

2.      Petitioner herein is appellant in A.S.No.1884/2001, which is
preferred challenging the Reference Court order in O.P.No.02/1993.
Land Acquisition Officer-cum-Special Deputy Collector, Yeleru
Reservoir Project, Unit-III, Peddapuram acquired an extent of
Acs.4-20 cents of agricultural land in Survey No.34/1 and Ac.1-70
cents of land in Survey No.36/1, situated at Bhavaram Village,
Jaggampeta Mandal, East Godavari District for the purpose of Yeleru
Reservoir Project.  The Land Acquisition Officer passed an Award on
25-10-1991 in Award No.1/1991 granting an amount of Rs.11,000/-
per acre and not satisfied with the award of the Land Acquisition
Officer, petitioner made a request to refer the matter to the Civil Court
and accordingly, it was referred to Senior Civil Judge, Peddapuram
under Section 18 of the Land Acquisition Act.  Senior Civil Judge,
Peddapuram, after due enquiry, enhanced market value of the land
from Rs.11,000/- per acre to Rs.40,000/- per acre and also awarded
Rs.51,330/- as solatium and a sum of Rs.1,51,416/- towards
additional market value by an order dated 31-08-2000 and held that
claimant is not entitled for any interest on the solatium and on the
additional market value.  Claimant having not satisfied with the
market value fixed by the reference Court, preferred appeal to this
Court for enhancement and this Court dismissed the appeal on
08-12-2010 by confirming the award of the reference Court.
According to claimant, as the land Acquisition Officer has not
deposited the award amount, after dismissal of the appeal, he filed a
writ and only as per directions in the writ, a sum of Rs.10,99,068/-
was deposited on 16-10-2014 to the credit of O.P.No.2/1993 and that
the claimant was supplied a copy of the details of the deposit and on
verification of the same, he noticed that interest on solatium and
additional market value was not deposited and he approached his
counsel and that he was informed that the reference Court has not
granted interest on solatium and additional market value, he was
advised that it was a mistake crept while adjudicating his appeal and
that he has to seek for amendment of decree dated 08-12-2010.
According to petitioner, this Court, while adjudicating appeal, has not
considered the interest aspect on solatium and additional market
value, it is a statutory benefit and he is entitled for the same as per
the provisions of Land Acquisition Act.  According to claimant, this
Court has not taken into consideration his statutory entitlement while
dismissing the appeal and that the decree has to be amended by
adding payment of interest on solatium and additional market value.

3.      Heard both sides.


4.      Advocate for petitioner submitted that 4 (1) notification was
issued on 16-10-1980 and possession of the land was taken on
01-04-1984 and the Award is passed on 25-10-1991.  He further
submitted that on reference, civil Court enhanced market value from
Rs.11,000/- to Rs.40,000/- per acre as per order dated 31-08-2000
and as per clause 6 of decree, claimant was not entitled for interest on
solatium and additional market value.  He submitted that both
Government and claimant preferred appeal challenging the order of
the reference Court and both the appeals are dismissed on
08-12-2010 and by that date, the Honble Supreme Court clarified
that claimant is entitled for interest on solatium and additional
market value and this aspect was not brought to the notice of this
Court at the time of hearing of the appeal, but still this being a
statutory benefit, petitioner is entitled for interest on the solatium and
additional market value and the decree has to be modified
accordingly.

5.      Learned Advocate for petitioner-claimant contended that a
decree can be amended under Section 152 CPC when there is a  
accidental slip or omission and the facts of this case would squarely
fall under the category of omission or accidental slip and that the
claimant is entitled for the relief claimed.  He submitted that even
without appeal, the claimant is entitled for the statutory benefits and
to support his arguments, he placed reliance on a decision of Honble
Supreme Court in PRAHLAD vs. STATE OF MAHARASHTRA  and        
has drawn our attention to the following Paras of the said decision:-
     The basic issue before the High Court was whether in absence
of an appeal or cross-objection from the claimants, is it permissible
to grant additional benefits to the appellants as provided in Section
23(1-A) of the Amendment Act?

       Keeping in mind the aforesaid declaration of law, this Court
holds that in the instant case the acquisition proceeding commenced
with notification under Section 4 which is dated
5-3-1983 and the award was passed on 1-3-1984. Therefore, the
landowners who were affected by the instant acquisition
proceedings were entitled to the benefit of the amending provision
under Section 23(1-A) in view of the ratio in Paripoornan.

     The provision of Order 41 Rule 33 CPC is clearly an enabling
provision, whereby the appellate court is empowered to pass any
decree or make any order which ought to have been passed or
made, and to pass or make such further or other decree or order as
the case may require. Therefore, the power is very wide and in this
enabling provision, the crucial words are that the appellate court is
empowered to pass any order which ought to have been made as  
the case may require. The expression order ought to have been
made would obviously mean an order which justice of the case
requires to be made. This is made clear from the expression used in
the said Rule by saying the court may pass such further or other
order as the case may require. This expression case would mean
the justice of the case. Of course, this power cannot be exercised
ignoring a legal interdict or a prohibition clamped by law.

6.      Learned Advocate further submitted that no party shall be
prejudiced by an act of Court, is the principle as held by Supreme
Court in NIYAMAT ALI MOLLA V. SONARGON HOUSING        
COOPERATIVE SOCIETY LTD.,  and U.P.SRTC vs. IMTIAZ      
HUSSAIN .

7.      Learned Advocate further submitted that omission or accidental
slip can be corrected at any time either by Court on its own or on the
application of any of the parties and to support his argument, he
relied on a decision of Honble Supreme Court in
B. SHIVANANDA vs. ANDHRA BANK LTD., . Learned counsel has      
drawn our attention to following Paras from this decision:-
    The appellant contended that no interest can be granted since
the judgment did not specify the liability relating to payment of
future interest. The trial court allowed the application of the
appellant and dismissed the application of the respondent-Bank.
On revision filed by the Bank, the High Court, by its order dated
23-9-1989 allowed the revision of the Bank and dismissed the
application of the appellant. Thus, this appeal by special leave.

    Section 152 CPC, clearly gives power to the court to amend
clerical or arithmetical mistakes in the judgment and decree or order
or any errors arising therein from any accidental slip or omission.
The same may, at any time, be corrected by the court either of its
own motion or on the application of any of the parties to the suit.
Therefore, it is not necessary that the aggrieved party should
necessarily file an appeal or review for effecting correction of the
judgment or decree or order. But in this case, as seen, that the claim
for future interest at 16 1/2% was made in the suit itself which
admittedly, is the contracted rate of interest. Therefore, the Bank is
entitled to claim interest in terms of the contract at 16 1/2% from the
date of lending till the date of filing of the suit. However, the court
has discretion under Section 34 CPC to award interest. Admittedly,
the loan was taken for construction of theatre. In other words, the
loan was for a commercial transaction. In the facts and
circumstances of this case, we consider it just and proper that the
appellant should pay simple interest at the rate of 16 1/2% per
annum on the principal amount claimed in this suit from the date of
the decree till the date of realisation.

8.      Learned counsel further submitted that to put an end to
litigation, the Court can even permit to correct defect in the Court
record and to support the same, he relied on a decision of Honble
Supreme Court in PRATIBHA SINGH vs. SHANTI DEVI PRASAD        
and has drawn our attention to Para No.17, which reads as follows:-
        When the suit as to immovable property has been decreed
and the property is not definitely identified, the defect in the court
record caused by overlooking of provisions contained in Order 7
Rule 3 and Order 20 Rule 3 CPC is capable of being cured. After all
a successful plaintiff should not be deprived of the fruits of decree.
Resort can be had to Section 152 or Section 47 CPC depending on
the facts and circumstances of each case  which of the two
provisions would be more appropriate, just and convenient to
invoke. Being an inadvertent error, not affecting the merits of the
case, it may be corrected under Section 152 CPC by the court which
passed the decree by supplying the omission. Alternatively, the
exact description of decretal property may be ascertained by the
executing court as a question relating to execution, discharge or
satisfaction of decree within the meaning of Section 47 CPC.
A decree of a competent court should not, as far as practicable, be
allowed to be defeated on account of an accidental slip or omission.
In the facts and circumstances of the present case, we think it
would be more appropriate to invoke Section 47 CPC.

9.      Learned Advocate further contended that failure to grant
statutory benefit of interest on solatium and additional market value
can be corrected under Section 152 C.P.C.  To support his argument,
he relied on a decision of Honble Supreme Court in STATE OF
RAJASTHAN vs. NAV BHARAT CONSTRUCITON CO.,          

10.     Learned counsel further submitted that an inadvertent error
emanating from non-adherence to rules of procedure prolongs the life
of litigation and gives rise to avoidable complexities and that the same
can be corrected by Section 152 CPC and to support this, he relied on
a decision of Honble Supreme Court in LAKSHMI RAM BHUYAN vs.    
HARI PRASAD BHUYAN .    

11.     In answer to the submissions of the Advocate for petitioner,
learned Government Pleader would submit that the application under
Section 152 CPC is not maintainable and there is no clerical error or
arithmetic mistake or accidental slip or omission and the remedy of
the claimant is only to seek a review or prefer appeal, but not under
Section 152 CPC.  He further submitted that all the decisions referred
to by the Advocate for petitioner have no application for the simple
reason that the reference Court specifically refused interest on
solatium and additional market value and the same is confirmed by
this Court in the appeal and the relief claimed by the claimant in this
application would amount to grant a relief which was specifically
denied.  He submitted that the application is misconceived and liable
to be dismissed.

12.     Now the point that would arise for our consideration in this
application is whether there is any accidental slip or omission to be
corrected by exercising the powers under Section 152 CPC?

13.     Point:-Facts are not in dispute.  The petitioner herein preferred
A.S.No.1884/2001 challenging the reference Court order and that
appeal was dismissed on merits confirming the order of the reference
Court. It is also not in dispute that reference Court specifically
refused interest both on solatium and additional market value.  Entire
argument of the learned counsel for the petitioner is that the
petitioner is entitled for interest on solatium and additional market
value as per the decisions of Honble Supreme Court in SUNDER vs.
UNION OF INDIA  and GURPREET SINGH vs. UNION OF INDIA .      
According to him, though these two decisions were not brought to the
notice of this Court at the time of disposal of A.S.No.1884/2001 as it
is a statutory benefit, the Court is expected to grant the same and as
it was not granted, it would amount to accidental slip or omission on
the part of the Court and the same can be corrected under the
provisions of Section 152 CPC.  It may be relevant to read Section 152
CPC which reads as follows:-

        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.

14.     From a perusal of the above provision, it provides for correction
of clerical or arithmetical mistakes in judgments, decrees or orders or
errors arising therein from any accidental slip or omission.  Normally,
after passing the judgment, decree or order, the Court becomes
functus officio and not entitled to modify the terms of the judgment,
decree or order, but Section 152 is an exception to the above general
rule for correcting accidental slip or omissions or clerical mistakes or
arithmetical mistakes.  Section 152 CPC cannot be pressed into
service to correct an omission which was intentional though it may
appear erroneous.  As seen from the record, the applicant herein
challenged the reference Court order with regard to quantum and he
no where challenged, finding refusing interest on solatium and
additional market value.  The purport of all the decisions relied on by
the applicant is any inadvertent error not effecting merits of the case
can be corrected under Section 152 CPC by the Court, which passed
the decree or order.  Any omission sought to be corrected which goes
into the merits of the case is beyond the scope of Section 152 CPC.
Keeping this in mind we now examine the case law with reference to
power under Section 152 CPC.

15.     In PRAHLAD vs. STATE OF MAHARASHTRA1, the issue before      
Supreme Court was not in respect of application of Section 152 CPC.
In that case Supreme Court dealt with the power of Court under
Order 41 Rule 33 C.P.C; In NIYAMAT ALI MOLLA V. SONARGON      
HOUSING COOPERATIVE SOCIETY LTD.,2 and U.P.SRTC vs.        
IMTIAZ HUSSAIN3, Supreme Court held under Section 152 CPC it is  
not permissible to go in to disputed questions and omissions sought
to be corrected which goes in to the merits of the case, is beyond the
scope of Section 152 C.P.C; In B. SHIVANANDA vs. ANDHRA BANK      
LTD.,4 future interest was not granted.  Both parties filed applications
for amendment.  Bankers application for grant of future interest was
allowed. While confirming grant of interest, Supreme Court observed
that it should be confined to that case only in view of peculiar facts of
that case; In PRATIBHA SINGH vs. SHANTI DEVI PRASAD5,      
Supreme Court held that inadvertent error not effecting merits of the
case may be corrected under Section 152 C.P.C. by the Court which
passed decree; In STATE OF RAJASTHAN vs. NAV BHARAT        
CONSTRUCITON CO.,6 dismissal of petition under Section 152 CPC  
was confirmed.  In that case petition was filed for enhancement of rate
of interest by the contractor invoking Sections 152 C.P.C.
That petition was dismissed and Supreme Court upheld the same;
In LAKSHMI RAM BHUYAN vs. HARI PRASAD BHUYAN7, Supreme            
Court held only intention expressed in the judgment must formulate
into relief.  In that case as that aspect was missed party, was
permitted to invoke Section 152 C.P.C.

16.     Honble Supreme Court in BAI SHAKRIBEN (DEAD) BY NATWAR        
MELSINGH vs. SPECIAL LAND ACQUISITION OFFICER  held as        
follows:-
    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.

17.     In UNION OF INDIA vs. SWARAN SINGH , Honble Supreme    
Court held as under:-
    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 v. Jagir
Singh ((1995 Supp (4) SCC 626) and also in a catena of decisions
following thereafter in Union of India v. Pratap Kaur ((1995) 3 SCC
263); State of Maharashtra v. Maharau Srawan Hatkar ((1995) 3
SCC 316); State of Punjab v. Babu Singh ((1995 Supp (2) SCC 406);
Union of India v. Raghubir Singh ((1989) 2 SCC 754 and
K.S. Paripoornan v. State of Kerala ((1994) 5 SCC 593), this Court
has held that the Reference Court or the 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.

18.     In BIJAY KUMAR SARAOGI vs. STATE OF JHARKHAND ,        
Honble Supreme Court held that Section 152 CPC cannot be invoked
for claiming a substantial relief which was not granted under the
decree, or as a pretext to get the order which has attained finality,
reviewed.

19.     In STATE OF PUNJAB vs. DARSHAN SINGH , Honble      
Supreme Court while dealing with the powers of the Court under
Sections 151 & 152 of Code of Civil Procedure held no court can,
under the cover of the aforesaid sections, modify, alter or add to the
terms of its original judgment, decree or order.


20.     In BAI SHAKRIBEN (DEAD) BY NATWAR MELSINGH vs.        
SPECIAL LAND ACQUISITION OFFICER10, Honble Supreme Court        
clearly indicated that 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 mistakes and the
Court has no power or jurisdiction to award those amounts under
Section 152 of CPC.
       
21.      In STATE OF PUNJAB vs. DARSHAN SINGH13, Honble      
Supreme Court noticed that the courts below have been liberally
construing and applying the provisions under Sections 151  & 152
CPC even after passing effective orders in the lis pending before them
and cautioned that the Court cannot modify, alter or add any terms to
its original judgment, decree or order by exercising powers under
Sections 151 & 152 CPC.
       
       
22.     In JAYLAKSHMI COELHO vs. OSWALD JOSEPH COELHO ,          
Honble Supreme Court held that 152 CPC should not be for
reconsideration of merits of the matter and it observed as follows:-  
    As a matter of fact such inherent powers would generally be
available to all courts and authorities irrespective of the fact
whether the provisions contained under Section 152 CPC may or
may not strictly apply to any particular proceeding. 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
something 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 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. 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
reconsideration 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. On a second
thought the 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 the courts inherent powers as
contained under Section 152 CPC. It is to be confined to something
initially intended but left out or added against such intention.

23.     In this case, reference Court specifically refused interest on
solatium and additional market value and the same is confirmed by
this Court in the appeal, therefore, it cannot be treated as an
accidental slip or omission.  With regard to benefit extended by the
Honble Supreme Court in GURPREET SINGH vs. UNION OF INDIA9      
and SUNDER vs. UNION OF INDIA8, as rightly pointed out by learned
Government Pleader the remedy of applicant is not under Section 152
CPC and his remedy is otherwise.

24.     The cumulative effect of all the above referred decisions is that
Section 152 CPC has to be applied only when the intention of the
Court is not translated into a decree or order, due to accidental slip or
omission, but not to reconsider the matter and grant a relief which
the Court has not granted originally.  The relief claimed by applicant
in this petition would amount to adding certain clauses to the
judgment in A.S.No.1884/2001.  Therefore, considering the facts of
the case with reference to the legal position indicated above, we are of
the considered view that there is no accidental slip or omission in the
judgment dated 18-12-2010 to be corrected under Section 152 CPC.
Accordingly, point is answered against the petitioner.

25.     For the reasons stated above, we are of the view that application
is devoid of merits and liable to be dismissed.  In the result, petition is
dismissed.  No costs.
____________________________________    
JUSTICE RAMESH RANGANATHAN        
___________________________    
JUSTICE S. RAVI KUMAR    
Date:29-07-2015

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