Punjab State Electricity Board vs Kewal Singh

V.K. Bali, J.—By this common order, we propose to decide five connected Letters Patent Appeals bearing Nos.543 to 545, 1601 and 562 of 1991, as common questions of law and fact arise in all these appeals. Brief facts for deciding the limited question raised in these appeals have, however, been extracted from LPA No.562 of 1991.

Pursuant to notification u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the ''Act'') issued on December 7, 1977, land measuring 66 Kanals 17 Marlas situated in village Kahlwan, Tehsil & District Jalandhar, was acquired for construction of 132 KV Sub Station, Kartarpur at Village Kahlwan, by the Punjab State Electricity Board. Land Acquisition Collector assessed the market value of the land at the relevant time, i.e. on the date when notification u/s 4 of the Act was issued @ Rs.113/- per marla. Dissatisfied with the inadequate compensation assessed by the Land Acquisition Collector, claimants, who are respondents in the present appeals, maintained reference u/s 18 of the Act. Learned Additional District Judge enhanced the market value from the one assessed by the Land Acquisition Collector to Rs.264.70P Per marla. Aggrieved, PSEB filed FRA culminating into order of Learned Single Judge dated March 1, 1989 vide which, even though market value assessed by the Learned Additional District Judge was upheld, respondents herein were held entitled to grant of Statutory benefits of the amended provisions of the Act, i.e. Sections 23(1-A), 23(2) and 28.

Inasmuch as, in view of the PSEB, claimant-respondent was not entitled to the benefit of amended provisions of the Act, PSEB maintained an application u/s 151 read with Section 152 o the Code of Civil Procedure, which resulted in partial success. Vide orders dated February 21, 1991, Learned Single Judge disposed of the application aforesaid with the observations that claimants were not entitled to the statutory benefit of amended provisions contained in Section 23(1-A) of the Act as award was rendered by the Land Acquisition Collector on April, 26, 1978 i.e. prior to April 30, 1982. Learned Single Judge relied upon a decision of the Apex Court in Union of India and Others Vs. Filip Tiago De Gama of Vedem Vasco De Gama, for partly accepting the aforesaid application filed by the appellants. It is against this order of the Learned Single Judge that the present LPAs have been filed.

Mr.Toor, learned counsel for the appellants vehemently contends that inasmuch as the Land Acquisition Collector rendered his award on April 26, 1978 whereas leaned Additional District Judge decided reference u/s 18 of the Act on July 26, 1980, respondents were not entitled to the benefits of amended provisions of the Act as contained in Sections 23(1-A), 23(2) and 28 and, therefore, the civil miscellaneous, resulting into order dated February 21, 1991, ought to have been allowed in toto. For his aforestated contention, learned counsel relies upon a judgment of the Supreme Court in Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., . The proposition of law as canvassed by learned counsel for the appellants, could not be disputed during the course of arguments. In fact, in view of the settled law on the proposition, as advanced by learned counsel for the appellants, it had to be conceded by Mr.Nehra that the claimants were not entitled to any of the benefits accruing to the claimants under Sections 23(1-A), 23(2) and 28 of the Act. He, however, endeavours to maintain the order passed by the learned Single Judge on the sole ground that application u/s 151 read with Section 152 C.P.C. was wholly incompetent. Same, in submission of the learned counsel, was filed with a view to avoid delay that had been caused in the matter inasmuch as only an application for review could e filed and that too within a period of thirty days from the date when order in the RFA was passed. For his aforestated contention, learned counsel relies upon a judgment of the Apex Court in Bai Shakriben (dead) by Natwar Melsingh and Others Vs. Special Land Acquisition Officer and Another, .

Having heard learned counsel for the parties and examining the records of the case, we, however, find no merit in the contention of the learned counsel for the respondents regarding maintainability of application u/s 151 read with Section 152 C.P.C. before the learned Single Judge. Before we might proceed any further in the matter, we would like to mention that no such objection was raised before the Learned Single Judge nor an appeal has been filed on behalf of the claimants with regard to the part of relief, that has been granted to the appellants in the misc. application aforesaid. Even no cross-objection have been filed in the present appeals. Be that as it may, it is too well settled by now that the label of the application i.e. mention of a particular provision, under which a particular application might have been filed, is not decisive. If the court has power to pass a particular order, and for doing so, there is provision in the statute, the application can not be dismissed only on the ground that the same has not been filed under that particular provision. By virtue of provisions contained in Section 152 of the Code of Civil Procedure, the Court can, at any time, and on such terms as to costs or otherwise, as it may think fit, amend any defect or error in any proceeding in a suit and all necessary amendments shall be made for the purpose of determining the real question, or issue. Certainly, there was an error in the judgment rendered by Learned Single Judge whereby the claimants were held entitled to amended provisions of Sections 23(2) and 28 of the Act. The words ''at any time'' used in Section 153 do clearly suggest that to exercise power vested in the Court under the said provision, there is no limitation whatsoever. As mentioned above, insofar as right of claimants to get benefit of amended provisions of Sections 23(2) and 28 is concerned, it has been conceded that they were not entitled to the same.

Insofar as reliance of the counsel on the judgment of Supreme Court in Bal Shakriben''s case (supra) is concerned, we are of the view that the same is distinguishable on facts. The facts of that case reveal that award was announced by the Land Acquisition Collector on May 19, 1980. On reference u/s 18 of the Act, compensation assessed by the Land Acquisition Collector was enhanced vide a decree dated August 20, 1983. Thereafter, even though the State filed an appeal, the claimants remained satisfied with the judgment rendered by the Assistant Jude and the same, thus, insofar as claimants are concerned, assumed finality. The High Court vide orders dated August 22, 1984, however, dismissed the appeals. It is thereafter that the claimants filed an application under Order 47 Rule 1 and Section 151 C.P.C. for amendment of decree to award benefit of Sections 23(1-A), 23(2) and 28 of the Act. The Court amended the decree but in a revision preferred by the State, order amending the decree was set aside. It is against that order of High Court that appeal was carried before the Supreme Court. It was contended on behalf of the claimant/appellants that the reference court has jurisdiction under Order 47 Rue 1 read with Section 151 CPC to amend the decree, though the decree had become final. This contention of the learned counsel was repelled on the basis of judgment of the Supreme Court in State of Maharashtra Vs. Maharau Srawan Hatkar, . Therein, award of the reference court was announced on October 25, 1983, i.e. after the Amendment Act was introduced in the Parliament. Thereafter, the order became final after the amendment Act had come into force. Subsequently, an application was made for awarding enhanced solatium, interest and additional amount. It was held that "thus, it would be seen that a decree having been made u/s 26(2), the Civil Court is left to correct only either clerical or arithmetical mistakes as envisaged expressly u/s 13-A of the LAO Act or u/s 152 CPC. Further, since Section 23 is an express power under which the Civil Court has been conferred with the jurisdiction to determine compensation, and in addition to the market value certain percentage of the amount has to be awarded as envisaged under Sections 23(1-A), and 23(2) and interest component u/s 28, the invocation of Section 151 CPC by necessary implication stands excluded." The Supreme Court also relied upon its judgment in Urban Improvement Trust, Jodhpur Vs. Gokul Narain and another, as also a Constitution Bench judgment in Union of Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., and further held that "but having allowed the decree to become final, the question emerges whether it would be open to the executing Court or the reference court to go behind the decree which became final to amend the self-same decree by exercising the power under Order 47 Rule 1 and Section 151 C.P.C. We feel that the executing Court can not go behind the decree. It would have been appropriate for the claimants to have gone in appeal and have the matter corrected. The omission to award additional amounts u/s 23(1-A), enhanced interest u/s 28 and solatium u/s 23(2) are not clerical or arithmetical mistake crept in the award passed by the reference court; but amounts to non-award."

The facts of the case in hand, as have been mentioned above, would demonstrate that insofar as claimants are concerned, they did not file any appeal and, thus, in that manner, allowed the order passed by the learned Additional District Judge to become final. In State appeals, the came to be filed and were disposed of by the Learned Single Judge vide order dated March 1, 1989, as mentioned above, market value assessed by the reference court was maintained and yet there being no appeal, or even cross-objecotns, claimants were held entitled to the benefits of amended provisions of Section 23(1-A), 23(2) and 28. Judgment of Leaned Additional District Judge having become final, insofar as claimants were concerned, they could not be held entitled to anything in the appeals preferred by the State. It is, thus, a case of apparent mistake or error that had crept in order dated March 1, 1989 passed by the Learned Single Judge and, in our view, could be corrected at any stage for which there was ample power emanating from the provisions of Section 153 C.P.C.

In view of the discussion made above, all these appeals are allowed, order dated February 21, 1991, to the extent it holds the claimants entitled to the benefit of amended provisions of Sections 23(2) and (28) is set aside and it is upheld to the extent it denies the benefit of Section 23(1 -A) of the Act to the claimants. Resultantly, the original order rendered in the main RFA would be read to mean that the respondents here in are not entitled to the benefits of amended provisions of the Act contained in Section 23(1-A) 23(2) and 289. Parties are, however, left to bear their own costs.

Sd/Arun B. Saharya, C.J.