Kartar Singh and others vs State of Haryana

G.C. Mital, J.

F.A.O. No. 363 of 1980 was disposed of on 16.12.1983 in the same terms as F.A.O No. 186 of 1980 was disposed of. The material observations in F.A.O. No. 186 of 1980 are as follows :

``For the reasons recorded above, all these appeals are allowed with costs and it is ordered that the claimants would be entitled to market price at the rate of Rs. 17/ per square yard. However, the enhancement of market price would not exceed the amount on which courtfee has been paid by each set of appellants in their appeals. Besides the above, the claimants would be entitled to 15 per cent solatium on the total market price payable to them. On the total enhanced compensation to be calculated in the aforesaid manner, the claimants would be entitled to interest at the rate of 6 per cent per annum with effect from 25th March, 1971, till payment thereof.''''

The claimants in F.A.O. No. 363 of 1980 had paid courtfee of Rs. 5.25 and since no time was granted to them by this court for paying the deficient courtfee while fixing the market price at the rate of Rs. 17/ per sq. yd., the claimants could not and did not make good the courtfee. In fact when they took out execution, they came to know that they were getting compensation not at the rate of Rs. 17/ per sq. yd., but on the basis of the courtfee of Rs. 5.25 which they had affixed in the appeal. Since one of the claimants had died during the execution proceedings, therefore, C.M. No. 5635CII of 1985 was filed for bringing on record the legal representatives of the deceased claimant. They also filed C.M. No. 5636CII of 1985 under section 151 read with section 149 of the Code of Civil Procedure for giving time for making good the courtfee so that they could get benefit of compensation at the rate of Rs. 17/ per sq. yd.

Coming to the first application, since one of the claimants had died during the execution proceedings, therefore, his legal representative was well within his right to file an application for being brought on record as his legal heir. Accordingly, C.M. No. 5635CII of 1985 is allowed.

As regards the other application (C.M. No. 5636CII of 1985), the learned counsel for the claimants has relied upon the latest decision of the highest Court in Bhag Singh v. Union Territory of Chandigarh, 1985 AIR 1576 : 1986 RRR 606 Supreme Court. Pointed reference is made to observations at several places in para 3 of the judgment. According to the dictum laid down in that paragraph, it is urged that it was the duty of the Court to give time to the claimants to make up the deficient courtfee and if by oversight or mistake no time was given, the claimants cannot be penalised. It is further urged that for filing such an application to have the Court''s mistake corrected, no limitation arises. The learned counsel for the State has vehemently opposed the application and has urged that the decision referred to above does not apply to the facts of the present case because there against the Single Bench judgment of this Court, the matter was taken up to the Supreme Court, i.e. proceeding were still pending whereas in the present case, the proceedings concluded way back on 16.12.1983 and the claimants did not impugned that decision before the Supreme Court, therefore, the claimants cannot draw any assistance from the aforesaid decision.

After hearing the learned counsel for the parties, I am of the view that the arguments raised on behalf of the claimants are well founded. Certain observations made in Bhag Singh''s case (supra) deserve to be kept in view which are reproduced below :

``............the claimants .........were entitled to enhanced compensation and the case of the appellants stood on the same footing, the appellants should have been given an opportunity of paying up the deficit courtfee so that, like other claimants, they could also get enhanced compensation at the same rate as the others ...........there is no reason why the appellant should have been denied the benefit of payment of the market value so determined. To deny this benefit to the appellants would be tantamount to permitting the State Government to acquire the land of the appellants on payment of less that than true market value.............

The State Government must do what is fair and just to the citizen and should not take up a technical plea to defeat the legitimate and just claim of the citizen. We are, therefore, of the view that, in the present case, the Division Bench as well as the learned Single Judge should have allowed the appellants to pay up the deficit courtfee........''''

The aforesaid dictum clearly goes to show that it was the bounden duty of the Court to give time to the claimants to make good the courtfee in case the market price was fixed at the rate which was higher than on which the court fee had already been paid. This was not done in this case. Therefore, it was clearly either by an oversight or by mistake of the Court for which the claimants cannot be penalised. It is well settled that to correct the Court''s own mistake, there is no limitation. Hence, the second application (C.M. No. 5636CII of 1985) is also allowed and the claimants are allowed two months'' time to make good the courtfee.

Application accepted.