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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 31[ST] DAY OF JANUARY 2024 / 11TH MAGHA, 1945 OP(C) NO. 1634 OF 2023** **AGAINST THE ORDER IN LAR 7/2003 OF ADDITIONAL SUB COURT, IRINJALAKUDA** ## **PETITIONERS/PETITIONERS/LEGAL HEIRS OF ORIGINAL CLAIMANT:** - 1 SATHEESH,AGED 63 YEARS,S/O LATE SANKARA MENON, PENSIONER, "PRAYAG", SRM ROAD, ERNAKULAM VILLAGE, ERNAKULAM NORTH PO: - REPRESENTED BY POA 3RD PETITIONER, PIN - 682018 - 2 SREEKUMAR,AGED 61 YEARS,S/O LATE SANKARA MENON, AGED 61, COMPANY EMPLOYEE, "PRAYAG", SRM ROAD, ERNAKULAM VILLAGE, ERNAKULAM NORTH PO: - REPRESENTED BY POA 3RD PETITIONER, PIN - 682018 - 3 SUJATHA C,AGED 59 YEARS,D/O LATE SANKARA MENON, PENSIONER, "PRAYAG", SRM ROAD, ERNAKULAM VILLAGE, ERNAKULAM NORTH PO:, PIN - 682018 BY ADV K.G.BALASUBRAMANIAN ## **RESPONDENTS/RESPONDENTS/RESPONDENTS 1,2, SUPPLEMENTAL** ## **RESPONDENTS 3,4:** - 1 GOVERNMENT OF KERALA REPRESENTED BY DISTRICT COLLECTOR, AYYANTHOLE PO: THRISSUR DISTRICT, PIN - 680101 - 2 SPECIAL DEPUTY COLLECTOR - LA (KSEB) PATTOM PO: THIRUVANANTHAPURAM DISTRICT, PIN - 695004 - 3 SECRETARY, KERALA STATE ELECTRICITY BOARD, PATTOM PO: , THIRUVANANTHAPURAM DISTRICT, PIN - 695004 - 4 EXECUTIVE ENGINEER,TRANSMISSION DIVISION, NADAVARAMBU PO, IRINJALAKUDA, THRISSUR DISTRICT, PIN - 680661 BY ADV B.PRAMOD FOR R3 & R4 GOVT. PLEADER SRI.S.UNNIKRISHNAN FOR R1 & R2 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.JAYACHANDRAN, J. ======================= O.P(C) No.1634 of 2023 ======================== Dated this the 31[st] day of January, 2024** ## **JUDGMENT** **The petitioners herein are the legal heirs of the original claimant in L.A.R. No.7 of 2003 of the Additional Sub Court, Irinjalakuda. They are aggrieved by Ext.P7 order, whereby an application under Section 152 of the Code, seeking a correction in clause (d) to the relief portion of Ext.P1 Award, was rejected.** **2. Heard Sri.K.G.Balasubramanian, learned** **counsel for the petitioners; Sri.S.Unnikrishnan, learned Government Pleader, on behalf of respondents 1 and 2; and Sri.B.Pramod, learned Standing Counsel for respondents 3 and 4.** **3. Learned counsel for the petitioners submits that, vide Ext.P1 award, (after remand) the land value was enhanced and fixed, as per** **O.P(C)No.1634 of 2023** -: 2 :- **clause (a) of the operative portion of Ext.P1 Award. As per clause (b), solatium was granted under Section 23(2) and as per clause (c), 12 percent of the market value in terms of Section 23(1-A) of the Land Acquisition Act, 1894 ('the Act', for short) was also granted. By virtue of the disputed clause (d), interest at the rate of 9% per annum was granted for the amounts covered under clauses (b) to (c) alone, which according to the learned counsel, is a mistake. Interest is actually due in respect of the enhanced land value fixed by clause (a) as well under Section 28 of the Act, wherefore, reference to clauses (b) and (c) in clause (d) of Ext.P1 Award is nothing, but a mistake. Learned counsel would submit that, if interest was sought to be confined to the amounts covered by clauses (b) and (c) alone, then, the relief under clause (d) would have been couched as** _**‘(b) and (c)'**_ **, instead of** _**(b) to (c)**_ **. On merits, learned counsel would submit that there cannot be** **O.P(C)No.1634 of 2023** -: 3 :- **any quarrel as regards the entitlement of the petitioners to get interest on the enhanced land value covered by clause (a) as well, as statutorily provided for under Section 28 of the Act. The learned Sub Judge erred in assimilating the true scope of Section 152 of the Code and also in arriving at a conclusion that interest, in fact, has not been granted to the amount covered by clause (a). As regards delay, learned counsel would submit that appeals were carried by both parties against Ext P1 Award, which, along with other ancillary proceedings, were pending before this Court. The same were finally disposed of belatedly, which explains the delay. Learned counsel would rely on the judgment of the Hon’ble Supreme Court in** _**Chhanga Singh and Another v. Union of India and Another [2012 (5) SCC 763]**_ **and** _**Manipur Tea Co. Pvt. Ltd. v. Collector of Hailakandi [(1997) 9 SCC 673]**_ **to buttress his arguments.** **O.P(C)No.1634 of 2023** -: 4 :- **4. On behalf of respondents 1 and 2, the above submissions were opposed by the learned Government Pleader. According to the learned Government Pleader, the application, if allowed, would amount to modification of the Award, which is not contemplated under Section 152 of the Code.** **5. The learned Standing Counsel appearing for respondents 3 and 4 seriously attacked the contentions raised by the learned counsel appearing for the petitioners. Learned counsel would invite the attention of this Court to the points for determination culled out in paragraph no.15 of Ext.P1 award; and thereafter, to the findings of the Court in paragraph nos.17 to 34, to point out that no interest on the enhanced land value was contemplated in Ext.P1 Award. Relying on Section 23 of the Land Acquisition Act, 1894, learned counsel would submit that the interest is not a matter of right for the claimant, and if the court has exercised its discretion to confine** **O.P(C)No.1634 of 2023** -: 5 :- **interest to the amounts covered by clauses (b) and (c), the claimant/petitioners cannot, as of right, claim interest on the enhanced land value as well. At any rate, an application under Section 152 is not the remedy according to the learned counsel, which only takes care of arithmetical and clerical errors. In the given facts, the non grant of interest to the amount covered by clause (a) is not an arithmetical or clerical mistake, by any yardstick. Learned counsel would rely on the judgment of the Hon’ble Supreme Court in Bai Shakriben (Dead) by** _**Natwar Melsingh and Ors. Vs. Special Land Acquisition Officer and Others [AIR 1996 SC 3323]**_ **in support of the above proposition.** **6. Having heard the learned counsel appearing for the respective parties, this Court finds substantial merit in the submissions made by the learned counsel appearing for the petitioners.** **7. To ascertain whether the learned Sub Judge had intended payment of interest to the** **O.P(C)No.1634 of 2023** -: 6 :- **enhanced land value as well, this Court may refer to the purpose of granting interest, over and in addition to the land value fixed, the solatium under Section 23(2) and 12% interest on the market value under Section 23(1-A) of the Land Acquisition Act. Section 23 of the Act speaks about various components, which constitute the compensation while acquiring a land; rather the matters to be considered in determining the compensation. One important thing to be borne in mind is that, the amount so determined in terms of Section 23 is actually due to the claimant as on the effective date of acquisition. However, in practice, the amount could be determined after reference belatedly and payment will also be delayed accordingly. It is to compensate for the delay caused in effecting the payment that interest is being granted till actual date of payment. Section 28 of the Act expressly** **O.P(C)No.1634 of 2023** -: 7 :- **stipulates grant of interest on the excess/enhanced amount at the rate of 9% per annum.** **8. Clause (d) of Ext.P1 Award pertains to grant of such interest. If interest is liable to be granted on the solatium, as also on the amount covered by Section 23(1-A) of the Land Acquisition Act, it does not stand to reason, as to why the claimant is not entitled to interest on the enhanced land value as well, which is the major component of the compensation package, especially when it is a statutory mandate.** **9. This Court also finds force in the petitioners’ contention that what was intended in clause (d) was '** _**(a) to (c)'**_ **; and not '** _**(b) to (c)'**_ **, as stated in clause (d) to the relief portion of Ext.P1. The same is obviously a mistake. As contended by the petitioner, if the intention was to confine the grant of interest to the amounts covered by clauses (b) and (c), the relief would have been couched as ‘(b) and (c)'; and not ‘(b)** **O.P(C)No.1634 of 2023** -: 8 :- **to (c)', which is an added reason to conclude that the same is nothing but a mistake.** **10. Before parting with the judgment, this Court will deal with the precedents relied upon by the counsel appearing for the petitioner, as well as the respondents. The petitioners relied upon two judgments, the first of which is** _**Chhanga singh**_ **(supra), wherein the question was whether interest on solatium can be granted in execution, though not specifically granted in the Award. Relying on the judgment in** _**Gurpreet Singh v. Union of India [2006(8) SCC 457]**_ **,the Hon'ble Supreme Court held in** _**Chhanga Singh**_ **(supra) that, payment of interest on solatium can be granted. The next judgment is** _**Manipur Tea**_ **(supra), which is an authority for the proposition that grant of interest is not a matter of discretion. Instead, it is the claimants' right under Section 28 of the Land Acquisition Act. The Hon'ble Supreme Court held that the term 'may' as employed in Section 28 of the Land** **O.P(C)No.1634 of 2023** -: 9 :- **Acquisition Act is liable to be read as 'shall'.** **11. Coming to the judgment in** _**Bai Shakriben**_ **(supra) relied on by the petitioner, this Court is of the opinion that the same is distinguishable on facts. That was a case wherein an Award was passed, against which the State carried an appeal, but the defendants did not. The High Court dismissed the State's appeal. Subsequently, the claimants filed applications under Order XLVII, Rule 1, read with Section 151 of the Code of Civil Procedure, for amendment of the Award, so as to incorporate the benefits under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act, which claim was made pursuant to amendment of the Act. The reference court amended the decree, as sought for. However, the High Court, in revision, set aside the order. The question before the Hon'ble Supreme Court in the Special Leave Petition was whether the reference court has jurisdiction under Order XLVII, Rule 1, read with Section 151 of the** **O.P(C)No.1634 of 2023** -: 10 :- **Code of Civil Procedure, to amend the decree, after the decree has become final. The question was answered in the negative. Another judgment of the Supreme Court in** _**State of Maharashtra v. Maharav Srawan Hatkar [1995(2)SCR 224]**_ **was relied on, to hold that, a decree, once made under Section 26(2), a civil court can correct only either clerical or arithmetical mistakes, as envisaged under Section 13A of the Land Acquisition Act or under Section 152 of the Code of Civil Procedure. It was also held that, since grant of amounts in terms of Section 23(1-A), 23(2) and the interest component under Section 28 of the Land Acquisition Act is specifically provided, the invocation of Section 151 of the Code of Civil Procedure stands excluded by necessary implication. In such circumstance, it was held that the executing court cannot travel beyond the Award and grant amended benefits. The case dealt with in** _**Bai Shakriben**_ **(supra) is** **O.P(C)No.1634 of 2023** -: 11 :- **clearly distinguishable from the instant case. Here, correction of the Award is sought for under Section 152, which going by the judgment in** _**Bai Shakriben**_ **(supra), itself, is a permissible course. 12. The surviving issue is whether the petitioners be deprived of interest on the enhanced land value for the period from the date of Ext P1 Award till the date of Ext P4 correction petition for reason of the delay in seeking correction. But for the fact that grant of interest is statutorily mandated under Section 28 of the Act, the interest could have been deprived for the above period. At the cost of repetition, this Court will recall that the word 'may' as employed in Section 28 is liable to be read as 'shall' as held in** _**Manipur Tea**_ **(supra), wherefore no discretion whatsoever was left with the reference court in the matter of grant of interest. Therefore, the petitioners cannot be** **O.P(C)No.1634 of 2023** -: 12 :- **found fault with in not seeking such relief at the appropriate time. For the same reason, they cannot be deprived of the interest during the period afore referred.** **13. In the circumstances, this Original Petition is allowed and the petitioners will be entitled to interest at the rate of 9% per annum, also on the amount covered by Clause(a) in the operative portion of Ext P1 Award. In other words, the petitioners are entitled to interest at the rate of 9% per annum, on the enhanced land value as well.** **14. It follows from the above discussion that Ext P4 application for correction ought to have been allowed. It is so done, with the result, Clauses '(b) to (c)' in the second line of relief no. (d) will stand corrected as '(a) to (c)'.** **The Original Petition is disposed of, as above.** **Sd/C. JAYACHANDRAN, JUDGE** NS/VDV ## **APPENDIX OF OP(C) 1634/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF JUDGEMENT/AWARD DATED| ||30.1.2010 IN LAR 7/2003 IN THE COURT OF| ||THE ADDITIONAL SUBORDINATE JUDGE,| ||IRINJALAKUDA| |Exhibit P2|TRUE COPY OF DECREE DATED 30.1.2010 IN| ||LAR 7/2003 IN THE COURT OF THE ADDITIONAL| ||SUBORDINATE JUDGE, IRINJALAKUDA| |Exhibit P3|TRUE COPY OF EP 187/2016 DATED 1.10.2016| ||IN LAR 7/2003 IN THE COURT OF THE| ||PRINCIPAL SUBORDINATE JUDGE, IRINJALAKUDA| |Exhibit P4|TRUE COPY OF IA 1/2021 DATED 8.1.2021IN| ||LAR 7/2003 IN THE COURT OF THE ADDITIONAL| ||SUBORDINATE JUDGE, IRINJALAKUDA| |Exhibit P5|TRUE COPY OF ORDER DATED 8.11.2021 IN CRP| ||342/2020 IN THIS HON'BLE COURT| |Exhibit P6|TRUE COPY OF COUNTER DATED 30.9.2021| ||SUBMITTED BY THE 4TH RESPONDENT IN LAR| ||7/2003 IN THE COURT OF THE ADDITIONAL| ||SUBORDINATE JUDGE, IRINJALAKUDA| |Exhibit P7|TRUE COPY OF ORDER DATED 15.3.2023 ON IA| ||1/2021 IN LAR 7/2003 IN THE COURT OF THE| ||ADDITIONAL SUBORDINATE JUDGE,| ||IRINJALAKUDA|