Kotrabasappa A/f Kotrappa Hubballi vs The Karnataka Housing Board and The Land Acquisition Officer and Assistant Commissioner, Gadag Division

B.S. Patil, J.—The challenge in this writ petition is against the order dated 19.09.2007 passed by the District Judge, Gadag, in Misc. No. 8/2006. By the said order, the learned District Judge has rejected the petition filed by the petitioner herein u/s 152 of CPC seeking correction of a clerical and arithmetic mistake in the decree passed in M.A. No. 147/89.

Petitioner was the owner of land bearing R.S. No. 201 measuring 3 acres 17 guntas. The said land was acquired by the 2nd respondent. On an application filed u/s 18 of the Land Acquisition Act, 1894, (for short ''the Act'') the matter was referred for adjudication of the market value payable to the Civil Court, Gadag. By a judgment and award dated 02.02.1983 made in L.A.C. No. 13/1981, the Civil Court determined the market value at Rs. 7,000/- per acre and awarded interest as admissible u/s 28 of the Act. Aggrieved by the quantum of compensation awarded the petitioner-land owner preferred an appeal. The said appeal came to be ultimately decided by the III Additional District Judge, Dharwad, in M.A. No. 147/89 vide his judgment and award dated 15.10.1998 enhancing the market value to Rs. 30,000/-. The appellant was also held entitled to the ''statutory benefits of solatium and interest as provided u/s 23(2) and 28 of the Act''. However, in the decree drawn by the District Court in so far as the payment of interest is concerned, a mistake was made showing that 9% interest was allowed for the first year from the date of taking over possession and 15% interest was awarded for another year from 20.03.1982 to 02.02.1983. The respondent-Housing Board appears to have deposited the decreetal amount in the month of September 2002 and the same appears to have been received by the petitioner in the month of January 2003. The petitioner has noticed the clerical mistake in the decree drawn subsequently in the year 2006 and has filed a miscellaneous petition in Misc. Petition 8/2006 requesting for correction of the clerical error in the decree. The said request is rejected by the learned District Judge by the impugned order. Aggrieved by the same, the present writ petition is filed.

I have heard the learned Counsel for the parties and perused the materials on record. It is clear from the judgment rendered in M.A. No. 147/89 by the III District Judge, Dharwad, that the petitioner is held entitled for payment of interest in accordance with Section 28 of the Act. Section 28 of the Act states that the land owner who is held entitled for enhanced compensation shall be paid interest at 9% for the first year from the date of taking over possession until the enhanced amount is deposited and at the rate of 15% for subsequent years until the amount is so deposited. When this is the clear purport of Section 28 and the effect of the judgment passed by the III Additional District Judge, the decree drawn restricting the payment of interest at 15% from 1982 to 1983 is contrary to the provisions of Section 28 and the judgment rendered in M.A. No. 147/1989. The petitioner has stated in the petition that he was not aware of this mistake and having learnt about the same he took immediate steps for correction of the clerical mistake in the decree. The reason assigned by the Court below for rejecting the said request is that the petitioner ought to have made the application before the Court at Dharwad which passed the judgment in M.A. No. 147/1989 and that the petitioner ought to have raised objections to the draft decree in terms of Rule 101(2) of Chapter 14 of the Karnataka Civil Rules of Practice.

After the establishment of a new district of Gadag by carving the same out of the erstwhile Dharwad District a Court of District Jude is established in Gadag and all the cases which came within the jurisdiction of the District Judge, Gadag were transferred from the District Court, Dharwad. In this process, as the jurisdiction was vested with the District Court of Gadag at the time when the Miscellaneous Petition was filed, the petitioner has rightly chosen to prefer the Miscellaneous Petition before the District Judge, Gadag. The reason assigned by the court below stating that the application ought to have been made before the same court which passed the judgment and decree in M.A. No. 147/89 is therefore untenable. So far as Rule 101(2) of the Karnataka Civil Rules of Practice is concerned, it cannot limit the power of the Court vested u/s 152 or the right of the petitioner to seek correction as provided u/s 152 to effect necessary corrections in the decree, occurred on account of the clerical or arithmetic error.

In the instant case, while the judgment is clear and unambiguous, the mistake is committed while drawing up the decree as, instead of permitting interest at the rate of 15% payable for the period after the expiry of the first year from the date of taking over possession till the date of actual payment of the amount, the amount payable is restricted to only one year. This is contrary to the provisions of Section 28 and it can be clearly characterised as a clerical error. Therefore, there was absolutely no justification for the Court to reject the Miscellaneous Petition filed. When a mistake of this nature is pointed out which has resulted in failure of justice, the Court has to correct the same and remedy and redress the grievance made, as otherwise, it will result in perpetuating the illegality committed for which the petitioner was not at all responsible.

The only point that remains now to be considered is with regard to the delay of nearly 8 years in moving the court for correction of the clerical error in the decree. No doubt, the petitioner has stated that he was not aware of the same. But as rightly pointed out by the learned Counsel appearing for the respondent, the petitioner ought to have been diligent enough to come to know of this mistake at least when the amount was deposited in the month of September 2002. It is not in dispute that the petitioner has withdrawn the amount in the month of January 2003. Therefore, even though it has to be held that the clerical error deserves to be rectified, the petitioner cannot be allowed interest for the period beyond the date on which the amount was deposited.

Learned Counsel for the petitioner Sri. Basavaraj V. Sabarad submits that in fact calculation has been made and interest is paid in terms of Section 28. That will be a matter for the Executing Court to decide. What exactly is the amount already paid whether the petitioner is entitled for payment of any balance of amount, has to be decided in the Election Petition. But, for the purpose of the present case, suffice it to say that the petitioner is entitled for correction of the decree as sought by him and the order passed by the Court below which is impugned in this writ petition is not sustainable.

Hence, I pass the following:

ORDER

Writ Petition is allowed. The impugned order is set aside. The Miscellaneous No. 8/2006 filed by the petitioner u/s 152 CPC is allowed. The petitioner is held entitled for interest at the rate of 13% p.a. from 20.03.1982 till the date of deposit of the amount which is made in the month of September, 2002.

Learned Additional Government Advocate is permitted to file memo of appearance within six weeks.