Full Judgment Text
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CASE NO.:
Appeal (civil) 7518-7519 of 2004
PETITIONER:
Jaya Chandra Mohapatra
RESPONDENT:
Land Acquisition Officer, Rayagada
DATE OF JUDGMENT: 22/11/2004
BENCH:
N. Santosh Hegde & S.B. Sinha
JUDGMENT:
J U D G M E N T
[@ S.L.P. (Civil) Nos. 17869-17870 of 2003]
S.B. SINHA, J :
Leave granted.
State of Orissa issued a notification purported to be under Section 4(1)
of the Land Acquisition Act, 1894 (for short ’the Act’) on or about
10.12.1980 pursuant whereto or in furtherance whereof inter alia the lands
belonging to the Appellant herein were acquired. An award in respect of the
said acquisition was passed on 13.09.1981 and possession of the land was
taken by the State on 15.09.1981. Being aggrieved by and dissatisfied with
the quantum of compensation specified in the Award, the Appellant herein
filed an application for enhancement thereof in terms of Section 26 of the
Act which was referred to Civil Court by the Collector on 5.12.1989.
Although the amount of compensation as regard the value of the land was
enhanced by an order dated 27.11.1990 by the Reference Court but the other
statutory benefits in respect thereof as contemplated under Sections 23(1A),
23(2) and 28 of the Act were not granted. An appeal against the said order
by the State was dismissed by the High Court. The Appellant filed an
application for enhancement of payment of solatium @ 30% being MJC No.
43/89 which was allowed by an order dated 21.12.1990.
The Appellant filed an application for amendment for grant of benefit
under Section 28 of the Act which was allowed by the Reference Court in
terms of an order dated 30th July, 1993. On the same day, the Appellant
herein filed another application purported to be under Section 151 read with
Section 152 of the Code of Civil Procedure as also Order 47 Rule 1 thereof
for review of the judgment and decree as also for necessary clarification
therein as regard non-awarding of benefits under Sections 23(1A) and 23(2)
of the Act. The said application was opposed by the Respondent herein.
The Civil Judge (Sr. Division), Gunupur by reason of a judgment and order
dated 8.10.1996 upon consideration of the contentions raised by the parties
in details as also the relevant provisions of the Act held:
"I have already discussed above that vide order
dated 30.7.93 in MJC No. 14/91 though, in para 3
last sentence it was mentioned that the above
decrees were set aside but that is a mistake caused
inadvertently because, in para 4 it is clearly
mentioned that the above judgment and decree
were corrected and in the ordering petition also the
word correction has been mentioned by deleting a
portion of previous award and in that place
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substituting some other words as mentioned in the
order and the judgment and the decree dated
27.11.90. In view of the different provisions of
Land Acquisition act, mentioned above and relying
on the above mentioned decisions, this Court is of
the opinion that the petitioner is entitled to an
amount of 12% interest p.a. from the date of
notification u/s 4(1) of the Act till the date of
dispossession. As per the provisions of Sec.
23(1)(A). He is also entitled to solatium @ 30%
on the market value of the land in accordance with
Sec. 23(2) of the Act and the interest at the
enhanced rate, in view of the Sec. 2 of the act as
amended by Act. 68 of 1984, as per the decision of
our own High Court reported in Vol. 81(1996)
CLT page 408 (supra). Hence it is necessary to
correct the decree accordingly, exercising power
under Sec. 152 CPC and invoking the inherent
power under Section 151 CPC the order/ decree is
corrected as follows:
The rate of solatium as mentioned in the
decree should be corrected as 30% instead of 15%.
The portion inserted in the order/ decree as per
order dated 30.7.93 be corrected as follows:
The collector is directed to pay interest on
such excess amount at the rate of 9% p.a. from the
date on which he took possession of the land to the
date of payment of such excess and the petitioner
is also entitled to interest @ 15% p.a. from the date
of expiry of the said period of one year as per Sec.
28 of the Act, 1984 as amended by Sec. 68 of the
Act, 1984."
Indisputably, the correctness or otherwise of the said order was not
questioned by the Respondent. It, therefore, attained finality. The said
amended decree was put in execution by the Appellant which was registered
as E.P. 7/1996. An objection in the said proceeding was filed by the
Respondent herein purported to be under Section 47 of the Code of Civil
Procedure. By an order dated 28.08.1999, the said objection was allowed by
the Executing Court holding that as the decree had once been amended the
same became final and as such the Reference Court had no jurisdiction to
amend the decree further. Aggrieved by and dissatisfied therewith the
Appellant herein filed a Civil Revision Application before the High Court
which by reason of the impugned judgment and order dated 17.6.2003 has
been dismissed holding that the Civil Court had no jurisdiction to pass an
order amending the decree as regard grant of benefits under Sections 23(A),
23(2) and 28 of the Act.
Mr. Janaranjan Das, learned counsel appearing on behalf of the
Appellant would submit that having regard to the fact that an application for
amending the decree was allowed by an order dated 8.10.1996 which
attained finality, the Executing Court and consequently the High Court
committed a serious error in passing the impugned judgment.
Mrs. Kirti Renu Mishra, learned counsel appearing on behalf of the
Respondent, on the other hand, supported the impugned judgment
contending that the question raised at the bar stands settled by a decision of
this Court in Bai Shakriben (Dead) by Natwar Melsingh and Others Vs.
Special Land Acquisition Officer and Another [(1996) 4 SCC 533].
By reason of the Land Acquisition Act, 1894 the benefits specified
therein became available to the owners of the land if the proceedings in
relation to grant of or enhancement of compensation were pending before
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the Collector or Reference Court between 30.4.1982 to 24.9.1984. It is not
in dispute that a proceeding was pending during the aforementioned period.
In law, there is no bar in filing applications for review successively if
the same are otherwise maintainable in law. The Civil Court herein
admittedly had not granted to the Appellant the benefit of solatium at the
rate of 30% of the amount of enhanced compensation as also the additional
amount and interest as contemplated under the Amending Act of 1984. To
the said benefits, the Appellant was entitled to in terms of Section 23(1A),
Section 23(2) as also Section 28 of the Act. It is one thing to say that the
omission to award additional amount under Section 23(1A), enhanced
interest under Section 28 and solatium under Section 23(2) may not amount
to clerical or arithmetical mistake in relation whereto an executing court will
not be entitled to grant relief but it is another thing to say that the grant
thereof would be impressible in law even if the Reference Court on an
appropriate application made in this behalf and upon application of its mind
holds that the statutory benefits available to the claimant had not been
granted to him and pass an order in that behalf by directing amendment of
decree. In a case of former nature, an executing court may not have any
jurisdiction to pass such an order on the ground that it cannot go behind the
decree, but in law there does not exist any bar on a Reference Court to
review its earlier order if there exists an error apparent on the face of the
record in terms of Order 47, Rule 1 of the Code of Civil Procedure. Such a
jurisdiction cannot be denied to the Reference Court. The Act 68 of 1984 is
a beneficial statute and, thus, the benefits arising thereunder cannot
ordinarily be denied to a claimant except on strong and cogent reasons.
In Bai Shakriben (supra), the award was passed on 19.5.1980 and the
Refernece Court passed an order and decree under Section 26 of the Act on
20.8.1983. The State carried the matter in appeal but the claimants did not.
The Court in the aforementioned situation held that the Executing
Court had no jurisdiction to amend the decree on the ground that it could not
go behind the decree. Unfortunately, in the said case the distinction between
an order of amendment of the decree passed by the court which passed the
decree and the executing court had not been canvassed.
In Savitri Cairae Vs. U.P. Avas Evam Vikas Parishad and Another
[(2003) 6 SCC 255] a question arose before a three-judge Bench of this
Court as to whether the benefits of 1984 Amending Act were available to the
claimants in relation to the acquisitions made under U.P. Avas Evam Vikas
Parishad Adhiniyam, 1965. This Court, while holding that such benefits are
available, granted such reliefs holding:
"26\005Once the High Court had held that the
amending Act of 1984 was applicable for the grant
of compensation, it appears that some clerical error
crept into the judgment of the High Court in not
awarding additional compensation. In fact, in
accordance with the conclusion at which we have
arrived, the claimants are also entitled to the
additional compensation under Section 23(1-A) of
the Land Acquisition Act. Further, the claimants
are also entitled to interest at the rate of 9 per cent
for the first year and 15 per cent for the subsequent
years\005"
Furthermore, in this case the aforementioned order dated 8.10.1996
has attained finality by reason whereof the original decree stood amended.
The Executing Court in view of the decision in Bai Shakriben (supra) itself
could not have gone behind the decree. The Executing Court, thus,
proceeded to pass the impugned judgment on a wrong premise. The
Executing Court keeping in view its limited jurisdiction could not have gone
into the question as to whether the Reference Court was correct in passing
the order dated 8.10.1996 amending the decree or not. The Executing Court
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did not have any jurisdiction to go into the said question. A decree passed
by a competent court of law can be suitably amended. A decree, so
amended on an application filed by the claimant for review thereof, becomes
final. If the State was aggrieved by and dissatisfied therewith, it could have
taken the matter by filing an appropriate application before the High Court.
But keeping in view of the fact that the said order was allowed to attain
finality, the court could not have permitted the State to reagitate the said
question before the Executing Court by filing an application under Section
47 of the Code of Civil Procedure or otherwise. In a case of this nature, the
principle of estoppel by records shall come into play.
For the reasons aforementioned, the impugned judgments cannot be
sustained which are set aside accordingly. The Executing Court is hereby
directed to proceed in terms of the amended decree. The appeal is allowed
with the aforementioned directions. No order as to costs.