Major General Kapil Mehra And Ors. vs Union Of India And Anr.
2011 Latest Caselaw 176 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


+ CM 735/2011 (by the appellants under Sections 152 and 153
             read with Section 151 CPC) in LA.APP. 149/2007


                                                  Decided on: 13.10.2011

IN THE MATTER OF :

MAJOR GENERAL KAPIL MEHRA AND ORS.                   ..... Appellants
                        Through: Appellant No.1 in person.


                   versus


UNION OF INDIA AND ANR.                                    .....
Respondents
                               Through:    Mr. Sanjay Kumar Pathak,
                               Advocate   for respondent No.1/Union of
                               India.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may        Yes
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?       Yes

     3. Whether the judgment should be               Yes
        reported in the Digest?



HIMA KOHLI, J. (Oral)

1. This application is filed by the appellants under Sections 152 and

153 read with Section 151 of the Civil Procedure Code praying inter alia

that the court fee of `48 lacs affixed by them in the aforesaid appeal be

included in the costs awarded vide judgment dated 24.12.2010 and the

said judgment be suitably amended in that regard. The second relief

sought by the appellants is for grant of additional litigation expenses in

their favour. Lastly, the appellants have sought to claim interest under

Section 34 of the Land Acquisition Act (hereinafter referred to as „the

Act‟) for the enhanced compensation awarded by this court.

2. Notice was issued on the present application vide order dated

14.01.2011, whereafter reply has been filed by respondent No.1/Union of

India, wherein the prayers made in the present application have been

opposed.

3. Appellant No.1, who appears in person, submits that after passing

the judgment dated 24.12.2010 in the present appeal, the appellants

noticed two distinct omissions/errors on the face of the record, which

were with regard to the non-inclusion of court fee in the costs awarded in

the appeal and the absence of interest which was required to be granted

on the enhanced compensation under Section 34 of the Act. It is

submitted by appellant No.1 that court fee is an integral part of costs and

wherever costs are allowed, court fee has invariably to be included in it.

He submits that during the course of proceedings in the present appeal,

the appellants had filed an application under Section 149 of the CPC,

registered as CM 7434/2007, seeking extension of time for payment of

court fee, wherein a plea had been taken by them that the provision for

payment of ad valorem court fee is unjust and arbitrary and that Section

8 of the Court Fees Act, 1870 is discriminatory and violative of Article 14

of the Constitution of India. The said application was considered by the

Division Bench and a detailed order dated 20.10.2008 was passed turning

down the aforesaid plea, while granting a period of two months to the

appellants for making up the deficit in the court fee to be paid by them.

4. It is stated by appellant No.1 that pursuant to the aforesaid order,

the appellants had made a request that they may be permitted to pay the

court fee at a later stage, if and when the enhancement of compensation

would be allowed in the appeal. However, the said submission was not

accepted by the Division Bench and vide order dated 19.12.2008, the

time for payment of court fee was extended in view of the fact that the

court fee to be paid was to the tune of `48 lacs, calculated on the basis of

the amount of compensation claimed by the appellants in the appeal, i.e.,

@ `50,000/- per square yard, which would have been quite onerous on

them. The appellants were therefore permitted to pay 25% of the court

fee within four weeks from the date of passing of the order dated

19.12.2008 and the balance court fee was directed to be paid within six

months thereafter. It is submitted by appellant No.1 that the entire court

fee calculated on the basis of the amount of compensation claimed in the

appeal was ultimately deposited in this Court. Ultimately, vide judgment

dated 24.12.2010, the appellants were awarded compensation for the

acquired land @ `14,974/- per square yard, apart from solatium and

interest payable in terms of the judgment in the case of Sunder vs. UOI

reported as 93 (2001) DLT 569 (SC) alongwith costs quantified at

`20,000/-.

5. It is the submission of appellant No.1 that aggrieved by the

aforesaid judgment dated 24.12.2010, respondent No.2/DDA preferred a

petition for special leave to appeal before the Supreme Court, registered

as CC No.7995/2011 entitled DDA vs. Kapil Mehra & Ors., which was

dismissed on merits vide order dated 12.05.2011 while awarding costs

quantified at `1 lac. It is further submitted by appellant No.1 that as the

appellants and the Union of India have not challenged the judgment dated

24.12.2010 passed in the present appeal, hence it has attained finality

and further, the enhanced compensation awarded in the judgment has

been released in their favour. However, as far as costs to be paid are

concerned, it is stated that while awarding of costs at `20,000/-, this

Court omitted to include the component of court fee amounting to `48

lacs paid and affixed on the memo of appeal, which omission is sought to

be rectified by the present application. In support of the submission that

litigation costs would include court fee and expenses incurred by a

successful party, reliance is placed on the decision of the Supreme Court

in the case of Salem Advocate Bar Association (II) vs. UOI reported as

(2005) 6 SCC 344.

6. The second limb of arguments addressed by appellant No.1 relates

to the grant of interest under Section 34 of the Act on the enhanced

compensation for the period with effect from the date of issuance of the

notification under Section 4 of the Act to the date on which such

enhanced compensation was deposited by the respondent No.1/UOI.

Appellant No.1 states that payment of interest under Section 34 of the Act

is mandatory in law and the same has inadvertently not been awarded by

this Court while pronouncing the judgment dated 24.12.2010. In support

of the aforesaid submission, reliance is placed on the decision of the

Supreme Court in the case of CIT vs. Ghanshyam (HUF) reported as

(2009) 8 SCC 412.

7. Counsel appearing for respondent No.1/Union of India today

submits that the stand of respondent No.1/Union of India has been

elaborately urged by Mr. Sanjay Poddar, Senior Advocate, on the last date

of hearing, when he appeared for respondent No.1/Union of India. He

states that the the present application is not maintainable under Section

152 and 153 read with Section 151 of the CPC as no clerical or

typographical error or an inadvertent mistake has been pointed out by the

appellants in the judgment dated 24.12.2010 for corrections to be made

by this court, and hence, the application is liable to be dismissed in view

of the judgment of the Supreme Court in the case of Dwaraka Das vs.

State of Madhya Pradesh & Anr. reported as 1999 (3) SCC 500. It is

further stated that subsequent to the judgment dated 24.12.2010, this

Court has become functus officio and at this stage, it cannot vary the

terms of the judgment. As far as award of court fee as costs is concerned,

it is the stand of respondent No.1/Union of India that in awarding costs of

`20,000/- under the judgment, the Court had quantified the costs as

such, and any omission to grant more costs has to be treated as a

deliberate omission, for which correction under Section 152 and 153 read

with Section 151 cannot be sought by the appellants. In support of this

submission, reference is made to the judgment in the case of Rajesh

Arora vs. UOI reported as 2006(206) ELT 1139. It is further stated on

behalf of respondent No.1/Union of India that additional costs of `1 lacs

have been imposed by the Supreme Court in the special leave to appeal

preferred by respondent No.2/DDA against the judgment dated

24.12.2010 and that this factor should also be taken into consideration by

this Court while considering the claim of additional costs in this

application.

8. As regards the claim of interest under Section 34 of the Act, it is

submitted on behalf of the respondent/UOI that the said claim cannot be

a subject matter of an application preferred under Sections 152 and 153

read with Section 151 of the CPC and assuming without admitting that

such an interest ought to have been awarded in favour of the appellants,

their remedy would have been to file a review petition or an appeal

against the judgment dated 24.12.2010 and not the present innocuous

application seeking correction. In support of this submission, reliance has

been placed on the judgment in the case of ITDC vs. Ballwant Singh

Virdee reported as 2011(3) R.A.J. 675 (Del.).

9. It is further stated that even otherwise, in the present case the

provision of Section 34 of the Act has no application for the reason that

while awarding enhanced compensation to the appellants, interest under

Section 28 of the Act has already been granted and that the provisions of

Section 34 and Section 28 of the Act apply at different stages and in

different fields and there is no overlap in that regard. It is submitted that

Section 34, which falls under Part-V of the Act envisages payment of

interest @ 9% by the Collector on the amount awarded when such

compensation is not paid or deposited on or before taking possession of

the land and the proviso to the provision mandates payment of interest @

15% p.a. if such compensation is not paid or deposited within a period of

one year from the date on which possession of the land is taken. But the

said provision cannot be invoked by the appellants to claim interest on

the enhanced compensation for the reason that Section 28 comes into

play in such circumstances and it adequately provides for such a situation.

In support of the said submission, reliance has been placed by the

counsel for respondent No.1/Union of India on the judgment of the

Division Bench in the case of Shri Daulat Ram & Anr. vs. UOI reported as

2005 (120) DLT 353.

10. This Court has heard the parties and carefully considered their

respective submissions.

11. It is a settled law that the scope of exercise of powers of the High

Court under Sections 152 and 153 of the CPC is fairly limited. In the case

of Rajesh Arora (supra), a coordinate bench of this court had held as

follows: -

"8. Section 152 of the CPC stipulates that 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. This section is based on two principles, namely, (a) that the act of the Court should not cause prejudice to any party; and (b) that the courts have a duty to see that their records are true and present the correct state of affairs. The provision talks of clerical or arithmetical mistakes or errors arising from any accidental slip or omission. An arithmetical mistake is a mistake in calculation while a clerical mistake is of writing or typing. Error from an accidental slip slop or omission is an error due to careless or omission made unintentionally or unknowingly also. While interpreting this provision, the courts have held that a matter requiring elaborate arguments or evidence on questions of fact or law for its discovery cannot be categorized as an error arising out of accidental slip or omission in order to bring it within the scope of Section 152. Where the court considered a legal provision and came to a wrong conclusion consciously thinking that conclusion to be correct and passed a wrong decree, it is evidently not an error arising from any accidental slip or omission but a mistake consciously

committed and therefore cannot be corrected under Section 152 of the CPC. "

12. It is the argument of the respondent/UOI that the only remedy

available to the appellants in the present case was either to file an appeal

or a review application. As per Section 114 read with Order XLI Rule 1

CPC, review of a judgment or decree lies inter alia where a mistake or an

error apparent on the face of the record can be shown or where some

new and important evidence has been uncovered. From a bare reading of

the aforesaid provisions, it is clear that a review would lie where a party is

able to show that the court has failed to consider a plea made by it or

record a finding on the same or where the court has omitted to consider a

relevant piece of evidence or new evidence has arisen subsequently which

was not before the court at the time of hearing, inspite of due diligence

on the part of such a party. It is evident that the court‟s power of review

envisages an enquiry into the merits of the case, which the court has

omitted to take notice of in the first instance. The said power of review is

quite distinct from the inherent powers of the court under Section 152

and 153 read with Section 151 to correct an accidental arithmetic or

clerical mistake or error. It is relevant to note that both the powers are

mutually exclusive, and cannot tread into each other‟s realm. Any other

interpretation would amount to overstepping the parameters laid down in

the provisions. It is settled law that in the garb of correction of mistakes

arising out of accidental slips or typographical errors, the judgment itself

cannot be altered or modified by a Court in exercise of its inherent power

[Ref: Ram Chandra Singh v. Savitri Devi reported as (2004) 12 SCC

713]. In the case of Jayalakshmi Coelho v. Oswald Joseph Coelho

reported as (2001) 4 SCC 181, the Supreme Court has taken the

following view:-

"14. ... 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 court's 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."(emphasis added)

13. Furthermore, where the correction sought by a party touches upon

the merits of the matter, invocation of the inherent powers of this court

under Section 151 of CPC simpliciter would also not be of any assistance

to the party, as the court‟s power to do so is squarely defined under the

provisions of a review under Section 114 read with Order XLI Rule 1 CPC.

It is also settled law that inherent powers of the court cannot be invoked

with reference to a matter which is covered by a specific provision in the

Code [Ref: Vinod Seth v. Devinder Bajaj reported as (2010) 8 SCC 1]. In

the present case, the claim of the appellants that there is an omission on

the part of this court to grant interest under Section 34 of the Act would

entail an enquiry into the merits of the case so as to decide the

entitlement of the appellants to such an interest. The remedy of a review

is, thus, available to the appellants for a consideration of this issue and

for the amendment of the judgment dated 24.12.2010 in that regard,

which remedy has admittedly not been exhausted by them.

14. In light of the aforesaid observations, on the question of entitlement

of interest under Section 34 of the Act, this court is inclined to agree with

the submission made by the counsel for the respondent/UOI that the

same is beyond the scope of the provisions of Section 152 and 153 of the

CPC and the said omission can neither be treated as a clerical or

arithmetical error in the judgment, nor an error committed on account of

any accidental slip or omission for it to be corrected by invocation of

Section 152 and 153 CPC. As this Court is of the opinion that the relief of

interest under Section 34 of the Act is beyond the scope of the aforesaid

provisions, it does not propose to go into the merits of the arguments

urged by both sides as to the entitlement of the appellants to claim

interest under Section 34 of the Act. In case the appellants are aggrieved

by the impugned judgment for non-grant of interest under Section 34 of

the Act, they have their remedies in law and it is for them to avail of the

same if so inclined/advised.

15. As regards the second prayer of the appellants for inclusion of court

fee of `48 lacs affixed in the appeal in the costs granted in their favour in

the judgment dated 24.12.2010, it is relevant to see as to whether such

an omission was unintentional and not deliberate, for correction to be

permitted under Sections 152 and 153 of the CPC. In the case of

Jayalakshmi Coelho (supra), in respect of the aforesaid provisions, the

following has been opined by the Supreme Court:-

"14. .....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...."

16. Since, the judgment dated 24.12.2010 was pronounced by this

court, the facts and circumstances need not be gone into. As the author

of this judgment, this Court has no hesitation in noting that at the time

when the judgment dated 24.12.2010 was rendered, the fact that the

appellants had affixed a hefty court fee of such a large magnitude on the

memo of appeal was inadvertently not taken note of. Hence, it cannot be

said that there was a deliberate intent of this court to award costs

quantified at `20,000/-, while allowing the appeal. The said omission is

now being corrected by granting proportionate costs in favour of the

appellants, over and above the sum of `20,000/-, as awarded in the

judgment dated 24.12.2010. However, the claim of the appellants for

inclusion of the entire court fee of `48 lacs affixed on the memo of appeal

is declined as the respondent No.1/Union of India cannot be saddled with

the entire court fees, which has been deposited by the appellants merely

because it was their assessment that they would be entitled to grant of

enhanced compensation for the acquired land @ `50,000/- per square

yard, as claimed by them.

17. Furthermore, the submission of the counsel for respondent

No.1/Union of India that additional costs of `1 lac have been imposed by

the Supreme Court on respondent No.2/DDA, and that the same would

deem to have merged with the costs awarded by this court of `20,000/-,

cannot be a ground for this Court to refuse to exercise its powers to

correct the omission/oversight while awarding costs in the judgment

dated 24.12.2010. The fate of the proceedings arising out of the present

appeal cannot be linked with the fate of the appeal preferred by

respondent No.2/DDA before the Supreme Court against the judgment

dated 24.12.2010.

18. In view of the aforesaid observations, the present application is

partly allowed to the extent noted above.

19. The application is disposed of.

                                                   (HIMA KOHLI)
OCTOBER 13, 2011                                    JUDGE
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