The Special Land Acquisition Officer, Malaprabha Project, Saundatti vs Channabasappa Tippanna Navalgund

Hari Nath Tilhari, J.-This revision petition under Section 115 of the Code of Civil Procedure arises from the judgment and order dated 10-11-1995 delivered by the Additional Civil Judge, Bailhongal, in the matter of land acquisition case on a petition moved under Sections 151 and 152 of the CPC for amendment of the decree.

The claim of the respondent was that he was entitled to higher solatium arising out of Section 23(1-A) of the Land Acquisition Act, as amended in the year 1984. The land acquisition proceedings were started by publication of notification in the year 1990. The award was delivered by the Land Acquisition Officer on 10-6-1992 and by the Reference Court on 26-8-1994. It appears that while passing the award or giving the award, the Reference Court or the Civil Judge concerned failed to take notice of and to consider Section 23(1-A) of the Land Acquisition Act and failed to award additional amount at the rate of 12% on the market value under Section 23(1-A). The Additional Civil Judge, Bailhongal, opined that it was a case of error apparent and mistake on the part of the Court itself as the Court had failed to take into consideration Section 23(1-A). The Trial Court referred the decision of the Supreme Court in the case of Special Tahsildar (Land Acquisition), P.W.D. Schemes, Vijayawada v M.A. Jabbar, AIR 1995 SC 762, wherein their Lordships of the Supreme Court had held that under Section 23(1-A), the claimant would be entitled to additional amount of enhanced market value at the rate of 12% per annum from the date of notification under Section 4(1) till the date of award. Relying on this case and taking note of this decision, the learned Civil Judge opined that the petition under Section 151 of the CPC has to be allowed and award is to be amended. Feeling aggrieved from that order, the State has come up in revision under Section 115 of the CPC.

The learned Government Counsel Sri M.V. Shamanna contended that in view of Section 26 of the Land Acquisition Act, the award and decree could not be amended and therefore, the Court below acted in excess of jurisdiction in passing the order amending the award particularly when there was no clerical mistake.

These contentions of the learned Counsel for the revision petitioner have been hotly contested by Sri Gadag, learned Counsel appearing for the respondent.

@BODY-LSP = Sri Gadag contended that even if amendment is perspective, here the land proceedings had started in the year 1990 with the publication of notification i.e., at the time when acquisition proceedings were started, Section 23(1-A) was operative. He further contended that the Reference Court ignored Section 23(1-A) when passing the award, as has also been observed by the lower Appellate Court. The learned Counsel contended that this mistake had crept in the judgment and award of the Reference Court and it is a well-settled principle of law that no man should be made to suffer because of the mistake of the Court and further the provisions of Section 151 have been meant for the purpose as well and the provisions of Order 47 may also apply because this is a case of error apparent on the face of record. Therefore, the Court was justified in passing the order. The learned Counsel for the respondent made reference to the earlier decision of this Court in the case of The Assistant Commissioner v Shamrao Dattatreya Patil, ILR 1999 Kar. 2589. He also made a reference to another decision of this Court in the case of B.S. Ramaswamy v Land Acquisition Officer, Sagar, 1999(2) Kar. L.J. 239.

I have applied my mind to the contentions raised by the learned Counsels for the parties.

The learned Government Counsel could not dispute the proposition that Section 23(1-A) would have applied to the petitioner''s case and at the time of assessment of compensation by the Reference Court, the Court ought to have taken into consideration that proposition. He could not deny that entitlement of the petitioner to get benefit of Section 23(1-A). That being the position, if the learned Reference Court at the time of giving the award failed to take notice of this material provision, it means it committed an error, not only an error, but error of law apparent on the face of record in passing the order. It is a well-settled principle of law, as laid down in very many cases, that no man should be made to suffer because of the mistake of the Court. In this connection, reference may be made to the decision of the Privy Council in the case of Jaiberham and Others v Kedar Nath Marwari and Others, AIR 1922 PC 269. Section 151 of the Code of Civil Procedure, it has been held by this Court in the two above decisions namely, in the case of Sham Rao Dattatreya Patil, supra and in the case of B.S. Ramaswamy, supra, shall apply with reference to proceedings before the Reference Court in view of Section 53 of the Land Acquisition Act itself. There is nothing in Section 26 which may be said to provide that no decree or judgment shall be varied even if it suffers from an error apparent. Section 26 of the Land Acquisition Act only provides for the form of awards and it does not apply to the question before this case.

In this view of the matter, in view of the principles of law laid down in the above mentioned two cases, in my opinion, the Trial Court has full jurisdiction to pass the order impugned under Section 151 of the CPC read with Section 53 of the Land Acquisition Act. The revision petition, as such in my opinion, is devoid of any merits as the order impugned does not suffer from any jurisdictional error. So revision under Section 115 is dismissed.