Madras High Court
M.C.S.Kandasamy Servai vs The Revenue Divisional Officer on 2 February, 2021
CRP(PD)(MD).No.898 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.10.2021
Delivered on : 27.10.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
C.R.P. (PD)(MD).No.898 of 2021
M.C.S.Kandasamy Servai : Petitioner/Petitioner/Claimant
Vs.
The Revenue Divisional Officer,
District Collector Office,
Tiruchirappalli. :Respondent/Respondent/Referring Officer
PRAYER: Civil Revision Petitions filed under Article 227 of Constitution of
India, to set aside the judgment and decree dated 02.02.2021 passed in
I.A.SR.No.363 of 05.01.2021 in L.A.O.P.No.12 of 2005 on the file of the II
Additional Subordinate Court, Tiruchirappalli.
For Petitioner : Mr.Shangar Murali
For Respondent : Mr.A.Baskaran,
Additional Government Pleader.
ORDER
The Civil Revision Petition is directed against the order passed in
I.A.SR.No.363 of 05.01.2021 in L.A.O.P.No.12 of 2005, dated 02.02.2021, on
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CRP(PD)(MD).No.898 of 2021
the file of the IInd Additional Subordinate Court, Tiruchirappalli, dismissing
the petition filed under Sections 151, 152 and 153 of Code of Civil Procedure.
2.The revision petitioner is the petitioner/claimant. The facts not in
dispute are :
(i) An extent of 59.026 square feet of land situated in Sengulam,
Tiruchirappalli was acquired for construction of Railway over Bridge, vide
notification, dated 30.07.2002.
(ii) The respondent acquired an extent of 479 square feet land belonging
to the petitioner. The respondent has passed an award by fixing the
compensation at Rs.303/- per sq.feet. Not satisfying with the quantum of
compensation, the petitioner has raised objections. Hence, the same were
referred to the Court under Section 18 of the Land Acquisition Act.
3.The learned Subordinate Judge, Tiruchirappalli, had taken up the
batch of 16 Land Acquisition Original Petitions. After full pledged trial, the
learned Subordinate Judge has passed common order, dated 23.12.2016, fixing
the compensation at the rate of Rs.685/- per sq.feet instead of Rs.303/- per
sq.feet. The revision petitioner is the claimant in LAOP.No.12 of 2005 and as
per the common order, dated 23.12.2016, decree was granted in his favour,
fixing the compensation at Rs.685/- per sq.feet instead of Rs.303/- per sq.feet.
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CRP(PD)(MD).No.898 of 2021
4. Admittedly, there is no appeal either by the claimants including the
revision petitioner or by the respondent. After 4 years from the date of
common order passed in batch of LAOPs, the revision petitioner has filed an
application in I.A.SR.No.363 of 05.01.2021, under Sections 151, 152 and 153
CPC, for amending the decree and judgment in accordance with Section
23(1-A), 23(2) and 28 of Land Acquisition Act, 1894.
5.The petitioner's case is that while drafting the decree, dated
23.12.2016, the following statutory amounts were omitted to be incorporated
in the decree;
(i) The statutory additional market value of the land at 12% from the
date of publication i.e., on 30.07.2002 to date of award i.e. upto 27.01.2004
has to be awarded under Section 23(1-A) of the Land Acquisition Act.
(ii) In addition to the market value of the land, 30% solatium on such
market value has to be awarded, under Section 23(2) of the said Act.
(iii) Under Section 28 of the said Act, interest on the market value from
the date of taking possession on 30.05.2003 till the date of award on
27.01.2004 has to be awarded at 9 % per annum besides interest at 9% from
28.01.2004 to 23.12.2016 till the date of decree.
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CRP(PD)(MD).No.898 of 2021
(iv) In case, if the Government fails to pay decree amount, even after
year (24.12.2016 to 23.12.2017), interest at 15% per annum must be paid after
such date till realization.
6. It is further case of the petitioner that they came to know about the
defects only when the execution petition was returned and that therefore, the
petitioner was constrained to file the above application to amend the decree
and judgment suitably, otherwise the petitioner will be put to huge monetary
loss, due to forcible acquisition of his property by the Government.
7.The learned II Additional Sub Judge, without taking the petition on
file, after hearing the arguments of the petitioner's side, has passed the
impugned order on 02.02.2021, dismissing the petition. Aggrieved by the said
dismissal order, the claimant has come forward with the present revision.
8.The learned Additional Government Pleader would submit that the
petitioner ought to have filed an appeal challenging the order passed in LAOP
and the amendment petition is legally not maintainable.
9.At the out set, it is necessary to refer the relevant provisions of the
Land Acquisition Act, 1894, as amended by Act by Act 68 of 1984.
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CRP(PD)(MD).No.898 of 2021
i) Section 23(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 an from the date
of the publication of the notification under Section 4, sub-section
(i), 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.
Explanation : In computing the period referred to in this sub-
section, any period or periods during which the proceedings for the
acquisition of the land were held up on account of any stay or
injunction by the order of any Court shall be excluded.
23 (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.
28. Collector may be directed to pay interest on excess
compensation. - If 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 or 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.”
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CRP(PD)(MD).No.898 of 2021
10. The very object of introducing Section 23(1-A) is to mitigate the
hardship caused to the land owner, who has been deprived of the enjoyment of
the land by taking possession from him and using it for public purpose,
because of considerable delay in making the award and offering payment
thereof to obviate such hardship, the said provision was introduced and the
land owner is entitled to interest at 12% per annum on the market value
determined for a period commencing on and from the date of publication of
the notification under Section 4(1) of the Act, upto the date of the award of the
Collector or the date of taking possession of the land whichever is earlier.
11.Sub Section 1-A inserted to Section 23 mandates the Court to award
an amount at the rate of 12% per annum on the market value from the date of
4(1) notification to the date of award or taking possession, which ever is
earlier. The amendment Act 1984 has also amended sub Section (2) by
increasing the amount of solatium to 30% on the enhanced amount. As rightly
pointed out by the learned counsel for the revision petitioner, the wordings of
Section 28 would reveal the intention of the legislature to assure the payment
of interest to the person whose land was acquired. Considering the above, it is
very much clear that the amendment Act contemplated under Section 23(1-A),
23(2) and Section 28 of the Land Acquisition Act are statutory payments and
the Court is duty bound to award the same.
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CRP(PD)(MD).No.898 of 2021
12. In the case hand, the learned Judge had not at all dealt with those
aspects and no orders were passed granting or refusing the said payments. As
rightly contended by the learned counsel for the revision petitioner, the
learned Judge has not at all dealt with those aspects and the order was silent
about the said statutory payments. As already pointed out, the learned trial
Judge has passed common orders and the decrees, fixing compensation at the
rate of Rs.685/- instead of Rs.303/- per sq.feet and except the above findings,
there is nothing in the common orders or in the decrees.
13.As rightly argued by the learned counsel for the revision petitioner,
the learned Judge has omitted to incorporate those statutory payments by
inadvertently. The learned Subordinate Judge, who decided the present
applications filed under Sections 151, 152 and 153 CPC, has specifically
observed that the claimant is certainly entitled to get the benefits under
Section 23(1-A), 23(2) and interest under Section 28 of the said Act, but by
holding that after passing of the award the Court has become functus officio,
dismissed the petition.
14. Section 152 of the Code of Civil Procedure provides for correction
of clerical or arithmetical mistakes in judgments, decrees or orders or errors
arising from any accidental slip or omission being corrected at any time by the
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CRP(PD)(MD).No.898 of 2021
Court either on its own motion or on the application of any of the parties.
Since Section 152 permits the Court to make amendments to the judgments or
decrees or orders passed already, the question of that Court becoming functus
officio does not arise at all.
15. Moreover, it is pertinent to note that the principle behind the
provision of Section 152 CPC, is a maxim “actus curiae neminem gravabit”
i.e., nobody shall be prejudiced by an Act of Court. At this juncture, it is
necessary to refer the following decisions :
(i) Niyamat Ali Moola Vs. Sonargon Housing Cooperative Society
Ltd, and others reported in 2007(13) SCC 421.
“19. Code of Civil Procedure recognises the inherent power
of the court. It is not only confined to the amendment of the
judgment or decree as envisaged under Section 152 of the code but
also inherent power in general. The courts also have duty to see
that the records are true and present the correct state of affair.
There cannot, however, be any doubt whatsoever that the court
cannot exercise the said jurisdiction so as to review its judgment. It
cannot also exercise its jurisdiction when no mistake or slip
occurred in the decree or order. This provision, in our opinion,
should, however, not be construed in a pedantic manner. A decree
may, therefore, be corrected by the Court both in exercise of its
power under Section 152 as also under Section 151 of the Code of
Civil Procedure. Such a power of the court is well recognized.”
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CRP(PD)(MD).No.898 of 2021
(ii) M/S. U.P.S.R.T.C vs Imtiaz Hussain reported in 2006
1 SCC 380, has held that the basis of the provision under Section
152 of the Code is founded on the maxim 'actus curiae neminem
gravabit' i.e. an act of Court shall prejudice no man and as such an
unintentional mistake of the Court which may prejudice the cause
of any party must be rectified.
(iii) Master Construction Co. (P) Ltd. v. State of Orissa reported in
AIR 1966 SC 1047, the Hon'ble Apex Court has explained the
words “accidental slip or omission as an error due to a careless
mistake or omission unintentionally made” and it is further
observed that “there is another qualification namely, such an
error,shall be apparent on the face of the record, that is to say, it is
not an error which depends for its discovery, elaborate arguments
on questions of fact or law.”
16. As rightly contended by the learned counsel for the revision
petitioner, even if the Court is of the view that Section 152 cannot be applied,
then under inherent powers available under Section 151 CPC, the judgments
and decrees can be amended as the trial Court has failed to incorporate the
statutory amounts which are mandatorily payable. As already pointed out,
since the learned trial Judge has failed to incorporate the statutory amounts,
the omissions made by the trial Court cannot be allowed to prejudice the
claimant, whose land was taken by the Government.
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CRP(PD)(MD).No.898 of 2021
17. Considering the above, the dismissal of the petition filed under
Sections 151, 152 and 153 CPC on the ground that the Court has become
functus officio is not good in law and the claimant is certainly entitled to get
the amount contemplated under Section 23(1-A), 23(2) and 28 of the Land
Acquisition Act. Consequently, this Court decides that the above petition is
liable to be allowed.
18.The learned counsel for the revision petitioner has filed a memo
dated 01.10.2021, mentioning the dates, events and calculations. He would
submit that the revision petitioner undertakes to waive the interest for the
period of 4 years 9 days as he has filed the petition in I.A.SR.No.363 of 2021,
after the expiry of 4 years 9 days from the order dated 23.12.2016 passed in
L.A.O.P.No.12 of 2005. Moreover, the revision petitioner has also specifically
mentioned the same in the memo dated 01.10.2021 and the same is recorded.
19.The learned Additional Government Pleader would submit that if this
Court is inclined to allow the petition, then the trial Court may be directed to
make the calculations of the amounts as per the order of this Court.
20. In the result, the Civil Revision Petition is allowed and the
impugned order in I.A.SR.No.363 of 05.01.2021 in L.A.O.P.No.12 of 2005 on
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CRP(PD)(MD).No.898 of 2021
the file of the II Additional Subordinate Court, Tiruchirappalli is set aside and
the learned Subordinate Judge, Tiruchirappalli, is directed to calculate the
amounts contemplated under Sections 23(1) -A, 23(2) and 28 of the Land
Acquisition Act, within a period of six weeks from the date of receipt of copy
of this order. No costs.
27.10.2021
das
To
1.The II Additional Subordinate Judge,
Tiruchirappalli.
2.The Section Officer, (VR Section)
Madurai Bench of Madras High Court,
Madurai.
Note:
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but,
ensuring that the copy of the order that is
presented is the correct copy, shall be the
responsibility of the advocate/litigant
concerned.
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CRP(PD)(MD).No.898 of 2021
K.MURALI SHANKAR,J.
das
Pre-delivery order made in
C.R.P. (PD)(MD).No.898 of 2021
27.10.2021
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