State Of U.P. vs Sukhey
2012 Latest Caselaw 5431 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Reserved
 
Case :- FIRST APPEAL DEFECTIVE No. - 494 of 1991
 

 
Petitioner :- State Of U.P.
 
Respondent :- Sukhey
 
Petitioner Counsel :- S.C.
 
Respondent Counsel :- Anil Sharma
 
Hon'ble Dinesh Gupta,J.

This appeal is preferred against the order dated 6.9.1990 passed by Sri M.A. Khan, Ist Additional District Judge, Bijnor in Land Acquisition Reference No. 28 of 1982 between Sri Sukhey Vs. State of U.P.

Brief facts giving rise of this appeal are that:-

The applicant moved application under Section 151 and 152 C.P.C. for amendment of the judgement and award given by Reference Court in various references made by the Reference Court under Section 18 of the Land Acquisition Act. In so far as they directed for the payment of solatium and interest in accordance with the relevant provisions of the Land Acquisition Act prior to the amendment by Land Acquisition (Amendment) Act, 1984. Since the common question of law and fact is involved that the court decided this case alongwith other miscellaneous cases by common judgement in the miscellaneous case. By these applications the applicant seeks amendment in the decree and prayed that applicant's solatium, interest and additional amount under Section 23 (I-A) permissible under the Land Acquisition (Amendment) Act, 1984.

The applicant submitted that as the award given by the Reference Court was made after 30.4.1982 and the applicants are entitled to all the benefits as permissible under the Amendment Act. It is further prayed that the applicants should be entitled to solatium at the rate of 30% on the market value under the Amendment Act, 1984 and further interest at the rate of 9% per annum for a period of one year from the date of taking over possession and thereafter at the rate of 15% per annum on the enhance compensation till the payment of additional amount under Section 23(I-A) at the rate of 12% per annum.

The State counsel filed reply and it is submitted that the applications are barred by time and these applications should be treated as review petition; that the grant of interest is discretionary with the court and there is no justification for enhancing the same, no request has been made for condoning the delay and the Central Act 68 of 1984 will not be applicable to the present proceedings.

After considering the relevant provisions of law and case law cited by the parties, the Reference Court allowed the applications under Sections 151 and 152 C.P.C.

Feeling aggrieved, the State preferred this appeal alongwith delay condonation application as there was delay of 78 days in filing the appeal.

Heard learned counsel for the appellant on the delay condonation application as well as on the merit of the appeal.

Learned counsel for the appellant submitted that the delay in filing the appeal is bonafide and it has been explained properly by filing a proper affidavit of the concerned person/ official and thus, the delay in filing the appeal be condoned.

On the merit of the appeal, learned counsel for the appellant submitted that the court has committed gross illegality in allowing the applications of the claimants only on the misinterpretation of the provisions of the Act ignoring the fact that the claimants are not entitled to any benefit given by the Amendment Act 58 of 1984.

That the court below has also committed gross illegality in awarding the enhancing rate of interim and additional amount as provided in sub section (1-A) and sub section (3) of section 23 inasmuch as the claimants are not entitled to any benefit which has been given by the Amendment Act.

That the court below has also erred in law in accepting the application filed under section 151 and 152 C.P.C. As a matter of fact, the application filed by the claimants can be treated as review petition and as such no enhancement should be done in the present case.

That the court below has also failed to take into consideration that the applications filed by the claimants were highly barred by time as the Amendment Act has been imposed from 24.9.1984 while this petition is filed in 1989.

Learned counsel for the appellant submitted that the appeal should be allowed and the order passed by the Reference Court is liable to be quashed.

I am unable to accept the contentions raised by learned counsel for the appellant, first of all, so far as the delay condonation application is concerned, appellant has failed to explain day to day delay and cause shown by the appellant for delay is also not explained properly.

So far as the merit of the order is concerned, before considering the entitlement of the owners under the proviso to Section 28 of the Act, it will be proper to reproduce Section 28 of the Land Acquisition Act as amended and it reads as under:-

"If the sum, which in the opinion of the Court, the Collector ought to have awarded as compensation, is excess of the sum which the Collector did award as compensation, the aware of the Court may direct that the Collector shall pay interest on such excess at the rate of 9% 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 15% per annum shall be payable from the date of expiry of the said period of one year or the amount of such excess or part thereof which has not been paid into the court before the date of such expiry."

A bare perusal of the aforesaid provisions, makes it clear that 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 court may direct that the Collector shall pay interest on such excess at the rate of 9% per annum on the date on which he took possession of the land to the date of the payment of such excess into court. The aforesaid section further provided whether the excess for any part of the period which paid into the court after the date of expiry of the period of one year from the date on which possession is taken. The court may also direct interest at the rate of 15% per annum from the date of expiry of period of said one year on the excess amount.

Further bare perusal of section 23(I) of the Act shows that it deals with the matter to be considered for determining the compensation payable for the land acquired under the Act and for determining such compensation court has to inter-alia first determine the market value of the land on the date of the publication of notification under section 4 sub section (1) of the Act.

Sub Section (2) provides that in additions to the market value of the land, the court shall in each case award a sum of 30% on such market value, likewise the newly inserted sub section (1-A) of Section 23 provides for payment of additional amount calculated at the rate of 12% per annum on such market value for the period of commencing on and from the date of publication of notice of section 24 in various decisions it has been held that whether the award has been made by the Collector or the District Judge after 30.4.1984, the land owners are entitled to the benefit of the provisions of Land Acquisition (Amendment) Act, 1984.

It is important to mention here that the appellant has not challenged that the claimants are not entitled to enhance the amount of solatium and the rate of interest as provided by the Amendment Act, only objections raised by the appellant are to follow.

Firstly, the applications under section 151 or 152 C.P.C. were not maintainable and the Court cannot enhance the amount under these provisions and according to the contentions of the appellant, section 151 and 152 are meant for clerical or arithmetical correction in the judgment and the enhancement of the solatium and the rate of interest does not come within the purview of of mathematical or factual error.

The Reference Court has referred a decision of Punjab and Haryana High Court in Kehar Singh Vs. Union of India (1989 All India Land Acquisition and Compensation Cases page 46), according to this case law, the claimants will be entitled to the benefit of the Act after the cut of date 30.4.1982 and further such cases are squarely fall within the ambit of section 152 C.P.C. which lays down that the clerical or arithmetical mistakes in the judgment and order or errors arising therein from any accidental slip or omission, may at any time, be corrected by the court either or its own motion or on the application of any of the parties. It has further been held in this case that the application under section 152 C.P.C. is maintainable.

The Reference Court also referred a decision of the Delhi High Court in Bharat Singh Vs. Union of India (1989 L.A.C.C. Page 250) which also covers the same controversies. Reference Court further referred the case of Nand Ram and others Vs. State of Punjab (A.I.R. 1982 page 184) which has held that interest under section 28 is an integral part of the compensation which is to be awarded by the court. Omission in the judgment to award interest on compensation constitutes an accidental slip within the meaning of section 152 C.P.C. and can be rectified at any time.

Reference Court has also referred the case of Matu Ram and others Vs. Union Territory of Chandigarh (1988 L.A.C.C. Page 204) and held as follows:-

The court has to, inter alia first determine the market value of the land at the date of publication of the notification under section 4, sub section (1) of the Act. The Act further provides that in addition to the market value of the land, the court shall in each case shall award a sum of 30% on such market value, in consideration of the compulsory nature of the acquisition. Likewise the newly inserted sub section (1-A) or section 23 provides for payment of additional amount calculated at the rate of 12% per annum on such market value for the period of commencing on and from from the date of publication of the notification under sub section 4. As a matter of fact, what requires adjudication under section 23 is the determination of the market value of acquired property and the obligation to award additional amount mentioned in sub section (1-A) and sub section (2) of section 23 follow as of course after making arithmetical calculations.

Thus, it is very clear that if by way of accidental slip a clerical error appeared in the judgment when the Reference Court omitted to mention in the order that the applicants are also entitled to the benefit of sub section (1-A) is inserted in section 23 of the Land Acquisition Act. Such case in the opinion of the Hon'ble High Court falls within the ambit of section 152 C.P.C.

Further in the case of Bag Singh and others Vs. Union Territory of Chandigarh (A.I.R. 1985 Supreme Court page 1576). It has been held by the Hon'ble Supreme court that the amended provisions of section 23(2) and 28 are applicable to all the proceedings relating to the compensation pending at the date of commencement of amending Act or filed subsequent to that date whether before the Collector or before court or High Court or Supreme Court. It has also been held in this case that even if an award is made by the Collector or the Court before 30.4.1982, and an appeal against such award is pending before the Hon'ble High Court or Supreme Court on 30.4.1982. The provisions of amended section 23 and 28 would be applicable. Thus, Supreme Court made out cut of date 30.4.1982.

Lastly, learned counsel for the appellant raised grounds that the applications under section 151 and 152 C.P.C. moved by the claimants are not maintenable and they can only be treated as review application and the Reference Court has no power to review its own order so far as it relates to the payment of compensation and other legal statutory benefit is concerned, only grounds available to the applicant to file an appeal against the award and prayed for the relief which they have been taken in the applications under section 151 and 152 C.P.C.

I am unable to accept the contentions raised by the learned counsel for the State even if these applications are treated as review applications even then court has not committed any illegality in allowing these applications in Jay Chandra Mahapatra Vs. Land Acquisition Officer, Raigarh reported in (2005 (9) SCC 123). The Apex Court has clearly held that the review by the reference court amending the decree by allowing the enhance solatium is clearly maintenable thus, if the arguments of the appellant is taken correct even then the Court has committed no illegality in allowing such applications.

Admittedly, judgment in reference court was passed after 30.4.1982 and failure the reference court to award the benefit of the amended section of the Land Acquisition Act can be rectified by the court by reviewing its own judgment thus, the court has not committed any illegality in allowing the applications under section 151 and 152 C.P.C. Awarding the benefit of the amendment.

The application u/s 5 Limitation Act is rejected.

So far as the merit of the appeal is concerned, appeal lacks merit, hence, the appeal is dismissed.

Accordingly, the appeal is dismissed as barred by time as well as on merit.

Order Date :- 2.11.2012

Dhirendra