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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.