Kanwal Singh And Bihari vs Union Of India
1999 Latest Caselaw 1245 Del

ORDER

Dr. M.K. Sharma, J.

1. As the issues raised in these two petitions are inter-connected, I propose to dispose of both the petitions by this common order.

2. The land of the petitioner was acquired by the Government under the Land Acquisition Act and the award of the Collector was passed on 10.11.1981. The petitioner preferred a reference petition under Section 18 of the Land Acquisition Act on the ground that the amount of compensation awarded to the petitioner was on the lower side. The said reference peti- tion was registered as LAC No.198/1980.

3. The said reference petition was considered and decided by the refer- ence court namely the Additional District Judge on 31.3.1984. A copy of the judgment of the reference Court is placed on record which would indicate that the reference Court enhanced the market value of the land and fixed the same at Rs.3,800/-per bigha. The reference court held that the peti- tioner is entitled to enhancement @ Rs. 2,300/-per bigha and further enti- tled to solatium for compulsory acquisition @ 15% and further entitled to interest under section 4(3) of the Land Acquisition (A & V) Act on the enhancement value. It was also held that they would further be entitled to interest under Section 28 of the Land Acquisition Act on the enhanced compensation from the date of taking possession till the date of compensa- tion in the court.

4. The Land Acquisition Act came to be amended in 1984. By way of the aforesaid amendment Section 30 titled as transitory provision was added in the amended Act. Basing claim on the amended provision of the Act the petitioner filed an application under Section 30 of the amended Act read with Section 151,152 and 153 before the Additional District Judge on 8.12.1989 seeking modification in the judgment /decree dated 31.1.1984 claiming benefit of the amended Act particularly under the provisions of Section 23(1) (a), 23 and 28 of the amended Act. The aforesaid petition was considered by the trial court and by the order dated 11.9.1998 the said application was dismissed holding that the petitioner was not entitled to such modification in the light of various decisions of the Supreme Court which are referred to in the said decision. Being aggrieved by the said order the present petition under Article 227 of the Constitution of India has been filed by the petitioner.

5. Learned counsel appearing for the petitioner submitted during the course of arguments that in view of the settled position of law he is not pressing the appeal so far benefit under Section 23(1)(a) of the Act is concerned. He however, submitted that he is pressing the appeal so as to receive the benefit as provided for under the amended Act namely Section 23(2) and Section 28 of the Act. He submitted that the judgment /decree dated 11.11.1983 passed by the reference court did not attain finality till the benefits of the Amendment Act were incorporated therein. He also submitted that the case of the petitioner was fully covered by the amended provision of Section 30(2) of the amanded Act and in support of his contention he relied upon the decision in the case of K.S.Paripoornan Vs. State of Kerala; .

6. Learned counsel appearing for the respondent however, submitted that the plea raised by the petitioner is no longer res integra in view of several decisions of the Supreme Court. He relied upon the decisions in Union of India Vs. Rangila Ram; , Bai Shakriben Vs. Special Land Acquisition Officer; (1996) State of Maharashtra Vs. Maharau Srawan Hatkar, , Union of India Vs, Swaran Singh;

and State of Punjab Vs. Babu Singh; 1995 Supp. (2) SCC

406.

7. In Maharau Srawan Hatkar's case (supra) it was held by the Supreme Court that once a decree is made under Section 26(2) of the Land Acquisi- tion Act, the Civil Court is left to correct only either clerical or arith- metical mistakes as envisaged expressly under Section 13-A of the Act or under Section 152 of the Code of Civil Procedure. It was also held that through Section 151 CPC given inherent power to the court, it was intended only to prevent abuse of the process of the court or to meet the ends of justice . On the facts of the said case the Supreme Court held that the case in hand was not a case of the nature of either under Section 26(2) or Section 152 or 151 of the Code of Civil Procedure. In Union of India Vs. Swaran Singh; (supra) it was held by the Supreme Court that after award and decree of reference court became final before coming into force of the Amendment Act, Reference Court or High Court has no Jurisdiction to enter- tain independent application under Sections 151 & 152 of the Code of Civil Procedure and pass order granting enhanced solatium in terms of the Amend- ment Act. It was further held that where the High Court passed such order under Sections 151 or 152 CPC the same would be without jurisdiction and would be a nullity and can be challenged at any stage.

8. The trial court also relied upon the decisions of Maharau Srawan Kumar Hatkar (supra) while coming to the conclusion in the impugned order. In view of the aforesaid settled legal position of law the trial court could not have exercised the powers under Sections 151 & 152 of the Code of Civil Procedure which jurisdiction was sought to be invoked by the petitioner herein. The trial court rightly held that after the award and decree of the reference court became final before coming into force of the Amendment Act reference court could not have exercised jurisdiction and granted enhanced solatium and interest in terms of the Amendment Act.

9. In the light of the aforesaid settled position of law, I find no merit in these petitions and the same are dismissed.