Jaya Chandra Mohapatra Vs.
Land Acquisition Officer, Rayagada  Insc 706 (22 November 2004)
N. Santosh Hegde & S.B.
Sinha [@ S.L.P. (Civil) Nos. 17869-17870 Of 2003] S.B. Sinha, J :
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 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 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 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.
[(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:
"26Once 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" 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 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.