G. Muneswaran vs Chief Commissioner of Land Administration and Others

V.V.S. Rao, J.—Petitioner seeks invalidation of the order of August 2001 passed by the third respondent whereby and whereunder in purported exercise of power u/s 13-A of the Land Acquisition Act, 1894 (the Act, for brevity), he deducted money awarded for Well and pipeline separately from total compensation, which was awarded earlier.

Petitioner is owner of land admeasuring about Acs.0.17 1/2 in survey No. 764/3 and Acs.0.05 in survey No. 764/15 situated at Vadderappale village of Puthalapattu Mandal in Chittoor District. The said land and other lands of the village were acquired for public prupose, namely, construction of barrage across Ponnai river near Kalvakunta village. Third respondent passed award No. 8/2001-2002, dated 7-7-2001, awarding a sum of Rs. 1,52,778/- which includes land value and value for structures/well. The details - as tabulated in Land Acquisition Officer''s award; are as follows:

------------------------------------------------------------------------------------------- Survey Extent Land Structures Well Tree 30% of Total No. acquired value solatium ------------------------------------------------------------------------------------------- 764/3 0.15 1/2 7,750 � 1,39,453 � 2,325 1,49,528 0.02 ------------------------------------------------------------------------------------------- 764/1 0.05 2,500 � � � 750 3,250 ------------------------------------------------------------------------------------------- Total 0.20 1/2 10,250 � 1,39,453 � 3,075 1,52,778 0.02 -------------------------------------------------------------------------------------------

A month thereafter, third respondent passed impugned order having regard to a circular issued by the Chief Commissioner of Land Administration in CCLA Ref. No. G1/1161/99, dated 16-7-1999. It was clarified therein that when market value of the land is determined and compensation awarded, separate amounts for well need not be awarded. Petitioner mainly contends that third respondent has no such power to review the award and that Section 13-A of the Act does not permit revision of award.

Third respondent filed counter affidavit justifying impugned order. It is the case in the counter that according to circular issued by Chief Commissioner, irrigation Wells in agricultural lands cannot have separate value as held by this Court in Land Acquisition Officer (Special Deputy Collector) Vs. J. Shadraik and Others, . Out of total sum of Rs. 1,52,778/- awarded to petitioner, a sum of Rs. 1,39,450/- was awarded towards cost of well, and therefore, impugned order was passed.

Learned Counsel for petitioner submits that the award of monety for the Wells/pipelines by third respondent does not amount to clerical or arithmetical mistakes in the award and that third respondent cannot exercise power u/s 13-A of the Act. He nextly contends that Land Acquisition Officer (LAO) does not have power to review the award, and therefore, impugned order is without power of jurisdiction. He placed reliance on the decisions in Bihar Finance Service H.C. Coop. Soc. Ltd. Vs. Gautam Goswami and Others, , Chandra Gupta v. Spl. L.A. Officer 2001 (Supp. Al A C C 307, Dhanraj and Another Vs. State of Rajasthan and Others, and Kuruvilla Thomas, Maliakel, Kanjirappally and Others Vs. State Bank of Travancore, . Learned Counsel also placed reliance on an unreported judgment of this Court in Nakkana Pentaiah v. Special Deputy Collector (Land Acquisition) W.P. No. 20853 of 1994, dated 20-6-1999. Per contra, learned Assistant Government Pleader for Revenue (L.A.) relies on Abdul Sattar and another Vs. District Collector, Nizamabad and another, and submits that grant of separate compensation for the wells is not permitted under law, and therefore, the case falls u/s 13-A of the Act, under which LAO can rectify arithmetical or clerical mistakes.

Section 13-A of the Act reads as under:

13-A. Correction of clerical errors, etc-

(1) The Collector may, at any time but not later than six months from the date of the award, or where he has been required u/s 18 to make a reference to the Court, before the making of such reference, by order, correct any clerical or arithmetical mistakes in the award or errors arising therein either on his own motion or on the application of any person interested or a local authority:

Provided that no correction, which is likely to affect prejudicially any person, shall be made unless such person has been given a reasonable opportunity of making a representation in the matter.

(2) The Collector shall give immediate notice of any correction made in the award to all the persons interested.

(3) Where any excess amount is proved to have been paid to any person as a result of the correction made under Sub-section (1), the excess amount so paid shall be liable to be refunded and in the case of any default or refusal to pay, the same may be recovered as an arrear of land revenue.

The above provision was inserted by Land Acquisition (Amendment) Act 68 of 1984. Before the above amended provision was inserted, Courts appear to have taken the view that if there is an omission on the part of LAO for awarding interest, such mistake can be rectified as per Section 152 of Code of Civil Procedure, 1908 (CPC) and that there is no period of limitation for correcting such errors see Jayakrishna Mangaraj Mohapatra Vs. State of Orissa and Another, and Nand Ram and Others Vs. State of Punjab, . These two cases however were in the context of the competent Court determining the reference u/s 18 of the Act or in the context of appeal before High Court. Learned Counsel for Government has not brought to notice of this Court any precedent, which recognizes power of LAO to review award. There cannot be any dispute that under the scheme of the Act, power to review an award passed by LAO is conspicuous by its absence and when once an award is passed, LAO would became functus officio. Presumably to confer limited power to rectify clerical or arithmetical errors in the award, Parliament enacted Section 13-A of the Act.

A perusal of Section 13-A of the Act would show that LAO before making reference u/s 18 of the Act to Civil Court or within six months from the date of award, may correct any clerical or arithmetical mistake or error arising therein. Such power can be exercised, suo motu or on an application by any person, after giving a reasonable opportunity to the person who is likely to be prejudicially affected. If any excess amount is proved to have been paid to any person as a result of correction made u/s 13-A(1) of the Act, such person would be obliged to refund or lese it can be recovered as an arrears of land revenue. The Act is silent as to the meaning and scope of, "any clerical or arithmetical errors in the award".

Interpreting Section 152 of CPC, which empowers Civil Court to correct clerical or arithmetical errors in the judgment, Supreme Court in Dwaraka Das Vs. State of Madhya Pradesh and Another, elucidated following legal position.

The settled position of law is that after the passing of the judgment, decree or order, the court or the tribunal becomes functus officio and thus being not entitled to vary the terms of the judgments, decrees and orders earlier passed. The corrections contemplated are of correcting only accidental omissions or mistakes and not all omissions and mistakes which might have been committed by the court while passing the judgment, decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the Section cannot be pressed into service to correct an omission which is intentional, however erroneous that may be.

(emphasis supplied)

In Jayalakshmi Coelho Vs. Oswald Joseph Coelho, , Supreme Court clarified that any mistake in drafting the decree though such a point is discussed and decided in the judgmentis unintentional omission or mistake, which cannot be attributed to the Court and therefore, can be corrected u/s 152 of CPC. On a review of the decision of Gauhati, Madras and Oudh High Courts, apex court laid down as below.

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 u/s 152 CPC. It is to be confined to something initially intended but left out or added against such intention.

In Abdul Sattar (7 supra), Hon''ble Sri Justice B. Sudershan Reddy (as His Lordship then was) considered scope of Section 13-A of the Act. The facts therein are as follows. The land was acquired for formation of a road and LAO awarded Rs. 10,500/- per acre with usual statutory benefits and interest thereon. The matter referred to Civil Court u/s 18 of the Act was pending. The amounts were not paid, and therefore, writ petition was filed for depositing compensation amount. The said writ petition was disposed of directing the authorities to deposit the amount. In the mean while, LAO reviewed the award with regard to payment of interest and interest on solatium. Assailing the same, writ petition was filed inter alia contending that no power inheres in LAO to review the award. This Court after referring Santosh Kumar and Others Vs. Central Warehousing Corporation and Another, held that LAO has no authority to review award. The Court then relied on Division Bench Judgment of Rajasthan High Court in Bhera Ram Vs. State of Rajasthan, and Dhanraj (4 supra), and reiterated that the Act does not authorize LAO to review his order except correcting clerical or arithmetical mistakes u/s 13-A of the Act. However, the Court declined to grant any relief to petitioners therein, as it would amount to giving effect to an illegal award granting interest on solatium. The relevant observations are as below.

In I.D.L. Chemicals Ltd., Balanagar, Hyderabad Vs. K. Viswanadham and Another, a Full Bench of this Court in unequivocal terms declared that the claimants are not entitled to interest u/s 28 of the Act on solatium payable under Sub-section (2) of Section 23 and the additional amount payable under Sub-section (1-A) of Section 23. There is no dispute whatsoever in this case that the Land Acquisition Officer could not have awarded interest on solatium. The decision of the Supreme Court in Civil Appeal Nos. 11398 and 11399 dated 29-11-1995 reported in Prem Nath Kapur and Another Vs. National Fertilizers Corpn. of India Ltd. and Others, clearly lays down the law in this regard and the Land Acquisition Officer could not have ignored the law declared by the Supreme Court. The award to that extent passed by the Land Acquisition Officer on 6-6-1996 suffers from incurable infirmity.

It is obvious that any interference by this Court setting aside the order of review would amount to resurrecting that part in the award which is evidently an illegal one. It is settled law that no writ could be issued quashing an illegal order to give effect to or reviving another illegal order see Godde Venkateswara Rao Vs. Government of Andhra Pradesh and Others, , Jagan Singh Vs. State Transport Appellate Tribunal, Rajasthan and Another, and Kalasagaram (Regd.) Secunderabad Cultural Assn. v. Municipal Admn. and Labour Development Department 1998 (2) An.W.R. 734. The order of review by the Land Acquisition Officer, though without jurisdiction, has not resulted in failure of justice. The Court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasion and new subdeties invented to evade law see Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills and another, .

(emphasis supplied)

There is no dispute that grant of separate amounts to the Well situated in the land acquired is not permissible under the provisions of the Act see O. Janardhan Reddy and others Vs. Spl. Dy. Collector, L.A. Unit-IV, LMD, Karimnagar, A.P. and others, . Therefore, the award No. 8.2001-2002, dated 7-7-2001, granting separate amount for the well situated in the land of petitioner is itself illegal. On the holding that third respondent does not have power of review the award, if the order is set aside, the effect would be resurrecting an award passed earlier-insofar as petitioner is concerned, which is ex faci illegal and contravenes the law declared by Supreme Court, which is binding on all authorities. Therefore, though this court has no manner of doubt to hold that LAO has no power to review the award except to a limited extent of correcting arithmetical and clerical errors, this Court is not inclined to accept writ petition, as it would amount to rendering an illegal award legal. The jurisdiction under Article 226 of Constitution of India is intended to ensure rule of law and not resurrect illegal orders.

The writ petition, for the above reasons, is dismissed without any order as to costs.