State of Kerala represented by the District Collector, Kollam v Vijayamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938** **LA.APP..NO. 281 OF 2016 () ---------------------------** **AGAINST THE JUDGMENT IN LAR NO.312/1998 OF ADDITIONAL SUB COURT,KOLLAM DATED 24-01-2007 -----------------------** **APPELLANT(S)/RESPONDENT IN L.A.R :** **--------------------------------** **STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOLLAM.** **BY GOVERNMENT PLEADER SMT. DIVYA C. BALAN** **RESPONDENT(S)/CLAIMANT IN L.A.R : --------------------------------** **VIJAYAMMA,JAYAVILASOM VEEDU, THAZHATH CHERRI, MEENADU VILLAGE, CHATHANNOOR, PIN:691572.** **THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **P.D. RAJAN, J. -----------------------L.A.A. No.281 of 2016 ---------------------------------Dated this the 11[th] day of January, 2017** ## **J U D G M E N T** This appeal is preferred by the District Collector, Kollam against the order in I.A. No.2279 of 2012 in L.A.R. No.312 of 1998 of the Principal Sub Judge, Kollam which was filed under Sec.152 of the Code of Civil Procedure (for short C.P.C.) to correct the clerical mistake in the decree. The claimants case in the lower court is that for the development of Kallada Irrigation Project, 01.05 ares of land in survey No.1287of Meenad village was acquired by District Collector, Kollam. On 28.07.1998 Land Acquisition Officer fixed the land value at the rate Rs.3,530/- per are and the land was taken in possession on 25.01.1997. Being dissatisfied by that, a reference under Sec.18 of the Land Acquisition Act, 1894 has been received in the lower court and the claimant contended that the market value of the land was Rs.10,000/- per cent hence he needed enhanced rate of compensation. The learned Judge fixed the land value at L.A.A. No.281 of 2016 2 the rate of Rs.3,532/- per are for the 01.05 ares of the acquired land. In addition to that Rs.82.9 by way of value of improvements, Rs.3790.63/- by way of value of structures and trees, Rs.388.83 by way of 12% statutory enhancement of land value and Rs.1137.27 by way of 30% solatium, Rs.341.16 and Rs.286.63 by way of statutory interest at the rate of 9% per annum and 15% per annum. The aggregate of the above is Rs.5,360/-. But while drafting the decree, there is an error, hence he filed I.A. No.2279/2012 before that Court to correct the clerical mistake which was dismissed by that Court. 2. Learned counsel appearing for the appellant contended that the claimant did not adduce any evidence seeking enhancement in the land value and the reference came to a conclusion that the land value awarded by the Acquisition Officer was upheld by court. But there was an error while drafting the decree which will give an impression that there was an enhancement in the land value. Hence he prays to correct the mistake in the decree. L.A.A. No.281 of 2016 3 ## 3. Sec.152 of the Code of Civil Procedure reads ## as follows: “Amendment of judgments, decrees or orders.Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.” ## 4. The correctional jurisdiction conferred under Sec.152 C.P.C. is confined only to correct clerical mistake or arithmetical mistake in judgment, decrees or orders or errors arising from any accidental slips or omission alone but not all errors or mistakes. An arithmetic mistake is a mistake of calculation. A clerical mistake is a mistake in writing or typing. An error arising out of an accidental slip is an error due to careless mistake or omission which is unconditional also. Such type of accidental slip or omission made by the Court can be corrected by the Court invoking Sec.152 of C.P.C. The cause of such slip or omission may be made by inadvertent either by the Judge or by the officer drafting it. Therefore, I am of the view that the power under Sec.152 is limited to rectification of L.A.A. No.281 of 2016 4 clerical and arithmetical mistake as stated above. Here, when decree was drafted by the court below, there is mistake which is to be rectified by invoking Sec.152 C.P.C. ## 5. The apex court in **Master Construction Co.** ## **(P) Ltd.** v. **State of Orissa and another [AIR 1966 SC 1047] held as follows:** The jurisdiction of the Commissioner under this rule is limited and is confined only to the correction of mistakes or omissions mentioned therein. An arithmetical mistake is a mistake of calculation, a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, that such an error shall be apparent on the fact of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law. The accidental slip or omission is an accidental slip or omission made by the Court. The obvious instance is a slip or omission to embody in the order something which the court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the judgment. But the slip or omission may be attributed to the Judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the judgment itself. The cause for such a slip or omission may be the Judge’s L.A.A. No.281 of 2016 5 inadvertence or the advocate’s mistake. But, however wide the said expressions are construed; they cannot countenance are-argument on merits on question of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance. ## Another decision in **Century Textiles Industries Ltd.** Vs. **Deepak Jain and Another [108 (2009) CLT 226 (231) SC]** the apex court held as follows: Moreover, it is evident from the order of the Executing Court that no plea regarding the applicability of Section 47 of the CPC was raised on behalf of the judgmentdebtor before that Court. We are unable to persuade ourselves to agree with the High Court that the only course available to the decree holder was to seek amendment of the decree under Section 152 of the CPC, as was canvassed before us by learned Counsel for the respondents. A bare reading of Section 152 CPC makes it clear that the power of the Court under the said provision is limited to rectification of clerical and arithmetical errors arising from any accidental slip or omission. There cannot be re-consideration of the merits of the matter and the sole object of the provision is based on the maxim actus curiae neminem gravabit i.e., an act of court shall prejudice no man. In our Judgment, the issue requiring adjudication by the Executing Court did not call for and was clearly beyond the scope of Section 152 CPC. ## In another decision **Jayalakshmi Coelho** v. **Oswald Joseph Coelho [AIR 2001 SC 1084]** the apex court ## L.A.A. No.281 of 2016 6 ## held as follows: As a matter of fact such inherent powers would generally be available to all Courts and authorities irrespective of the fact whether the provisions contained under Section 152, CPC may or may not strictly apply to any particular proceeding. In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake. But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise that is to say while passing the decree the Court must have in its mind that the order or the decree should be passed in a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip. The facts and circumstances may provide clue to the fact as to what was intended by the Court but unintentionally the same does mention in the order or the judgment or something which was intended to be there stands added to it. The power of rectification of clerical, arithmetical errors or accidental slip does not empower the Court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification. On a second thought Court may find that it may have L.A.A. No.281 of 2016 7 committed a mistake in passing an order in certain terms but every such mistake does not permit its rectification in exercise of Court’s inherent powers as contained under Section 152, CPC. It is to be confined to something initially intended but left out or added against such intention. Therefore the order in I.A. No.2279 of 2012 in L.A.R. No.312/1998 of the Principal Sub Judge, Kollam is hereby set aside. However, the above I.A. is remitted to the lower court for fresh consideration and the learned Judge shall dispose the matter as per law. Sd/- **P.D. RAJAN, JUDGE** NS / True Copy / P.A. To Judge