Usha and others v. State of Kerala and Goshree Island Development Authority (GIDA)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 24TH DAY OF JANUARY 2012/4TH MAGHA 1933 ## **CRP.No. 529 of 2008** AGAINST THE ORDER DATED 27.7.2007 IN I.A.NO.1122 OF 2006 IN L.A.R.NO.7 OF 2003 ON THE FILE OF THE COURT OF THE SUBORDINATE JUDGE OF KOCHI. ## **REVISION PETITIONERS:** 1. USHA,W/O BALASUBRAMANIAN, AZHINATTU WARD-3, NAYARAMBALAM. 2. DEVADAS, S/O BALAKRISHNAN, PUYAPPILLIL, PUTHUVYPEEU VILLAGE, AZHIKKAL P.O. 3. PRADEEPAN, S/O CHAKRAPANI, VENNARAPARAMBIL, PUTHUVYPEEU VILLAGE AZHIKKAL P.O. 4. VILASINI, W/O DAMODHARAN,NUROOLLIL, PUTHUVYPEEU VILLAGE, AZHIKKA P.O. 5. XAVIER, S/O JOHN, PALLIPARAMBIL, PUTHUVYPEEU VILLAGE, AZHIKKAL P.O. 6. MANMADHAN, S/O PARAMU, - AZHIKKADAVIL, PUTHUVYPEEU VILLAGE, AZHIKKAL P.O. 7. DINESAN, S/O PARAMU, AZHIKKADAVIL, PUTHUVYPEEU VILLAGE, AZHIKKAL PO. 8. LATHA @ SNEHALATHA, W/O LAKSHMANAN, PALIYAM PARAMBIL, MURIKKUMPADAM, PUTHUVYPEEU VILLAGE, AZHIKKAL P.O. 9. UNNIKRISHNAN, S/O CHAKRAPANI, VENNARAPARAMBIL, PUTHUVYPEEU VILLAGE, AZHIKKAL P.O. - BY ADVS.SRI.V.JOHN MANI SRI.MAHESH V RAMAKRISHNAN ## **RESPONDENTS: RESPONDENTS** : 1. STATE OF KERALA, REPRESENTED BY SPL THAHASILDAR (LR), GCDA, KOCHI -20 2. GOSHREE ISLAND DEVELOPMENT AUTHORITY (GIDA), REPRESENTED BY ITS SECRETARY DISTRICT COLLECTOR, ERNAKULAM. R1 BY GOVERNMENT PLEADER SMT.SAREENA GEORGE R2 BY SRI.VARGHESE K.PAUL THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - ANNEXURE 1 CERTIFIED COPY OF THE COMMON JUDGMENT DATED 11.11.2005 IN L.A.R.NOS.7, 1, 2, 8, 11, 12, 14, 21 & 27 OF 2003. - ANNEXURE 2 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN LAR.NO.7/2003. - ANNEXURE 3 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.1 OF 2003. - ANNEXURE 4 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.2 OF 2003. - ANNEXURE 5 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.8 OF 2003. - ANNEXURE 6 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.11 OF 2003. - ANNEXURE 7 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.12 OF 2003. - ANNEXURE 8 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.14 OF 2003. - ANNEXURE 9 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.21 OF 2003. - ANNEXURE 10 CERTIFIED COPY OF THE DECREE DATED 11.11.2005 IN L.A.R.NO.27 OF 2003. - ANNEXURE 11 CERTIFIED COPY OF I.A.NO.1122 OF 2006 DATED 3.8.2006 ## **RESPONDENTS' EXHIBITS** : NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------C.R..P. NO. 529 OF 2008 B -----------------------------------------------------Dated this the 24[th] day of January 2012** ## **O R D E R** The petitioners are aggrieved by the order dated 27.7.2007 in I.A.No.1122 of 2006 in L.A.R.No.7 of 2003 on the file of the Court of the Subordinate Judge of Kochi, by which, the court below partly allowed the application and rejected some of the contentions put forward by the petitioners. 2. The court below disposed of L.A.R.Nos.1, 2, 7, 8, 11, 12, 14, 21 and 27 of 2003 by a common judgment dated 11.11.2003. The petitioners in the present application are the claimants in these Land Acquisition References. The Land Acquisition References were allowed and enhancement of compensation was awarded. 3. The Reference Court allowed interest under Section 28 of the Land Acquisition Act. However, it was stated that if the amount was not paid within one year from the date of the judgment (instead of one year from the date of taking possession of the land), interest C.R.P. NO.529 OF 2008 :: 2 :: will be payable at 15% per annum. This finding was rendered by the Reference Court in all the Land Acquisition References. The petitioners filed I.A.No.1122 of 2006 to correct this patent mistake. 4. In L.A.R.No.11 of 2003, no solatium was granted to the claimant therein. In I.A.No.1122 of 2006 it was contended by the claimant that this was an omission. It was pointed out that in all the other Land Acquisition References disposed of by the common judgment, 30% solatium was granted to the respective claimants. 5. In L.A.R.No.2 of 2003, instead of granting solatium at 30%, by mistake, it was mentioned as 3%. This mistake was also sought to be corrected in I.A.No.1122 of 2006. 6. When I.A.No.1122 of 2006 came up for hearing, it would appear that the prayer to correct the date from which the interest under the proviso to Section 28 is to be calculated,was not pressed. The learned counsel for the petitioners submitted that this contention was pursued and the statement in the order that it was not pressed is :: 3 :: ## C.R.P. NO.529 OF 2008 not correct. Normally, when a relief is not pressed, the party would not be entitled to raise the contention that he did not press that relief, in the appellate or revisional court, and he would have to file a Review Petition before the same court. But in the present case, I do not think that the petitioners should be directed to move the court below, since the mistake sought to be corrected is a patent mistake. When it was pointed out that a mistake was committed, the Court was bound to correct it. Interest under the proviso to Section 28 of the Land Acquisition Act is to be computed not from the date of the order of the Reference Court but from the date of the expiry of one year mentioned in Section 28(1). To that extent, the judgment and decree passed by the court below are liable to be corrected. 7. The court below held that the claim for solatium at 30% in L.A.R.No.11 of 2003 cannot be granted by allowing an application under Section 152 of the Code of Civil Procedure. The court below held that if the solatium is not granted by the court, that is not a clerical or arithmetical mistake. C.R.P. NO.529 OF 2008 :: 4 :: 8. The learned counsel for the petitioners relied on the decisions in **Gurpreet Singh** v. **Union of India** ((2006) 8 SCC 457) and **Collector, Land Acquisition** v. **Jaswant Singh** (2008 (4) KLT 142 (SC)) in support of the contention that it is a statutory right of the claimant to get solatium at 30% and interest on solatium and it can be claimed at any time before the execution proceedings are over. In paragraph 54 of the decision in _**Gurpreet Singh's**_ case, it was held as follows: “54. One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder, the awardee/decree-holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly C.R.P. NO.529 OF 2008 :: 5 :: or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (19.9.2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decreeholder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question.” C.R.P. NO.529 OF 2008 :: 6 :: 9. Learned counsel for the petitioners relied on the decisions in **Maniklal Mitra and others** v. **State of West Bengal** (1996 AIHC 5632 (Calcutta)); **Jayakrishna Mangaraj Mahapatra** v. **State of Orissa and another** (AIR 1976 Orissa 203) and **Varghese** v. **Indian Bank** (1998 (2) KLT 601) in support of the contention that the omission to grant solatium can be corrected by taking resort to Section 152 of the Code of Civil Procedure. 10. Section 152 of the Code of Civil Procedure provides that 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. The court below erroneously thought that an application under Section 152 can be entertained only if there is a clerical mistake. In all the Land Acquisition References except in L.A.R.No.11 of 2003, solatium was granted at 30%. However, it was omitted to be incorporated in the judgment and decree in L.A.R.No.11 of 2003. The judgment is a common :: 7 :: ## C.R.P. NO.529 OF 2008 judgment in all the nine cases. Thus it is clear that denial of solatium to the claimant in L.A.R.No.11 of 2003 was not after arriving at a conclusion that he is not entitled to solatium but only by an accidental slip or omission. This is liable to be corrected under Section 152 of the Code of Civil Procedure. The court below was not justified in dismissing the application on hyper-technical grounds. For the aforesaid reasons, the Civil Revision Petition is allowed. The order passed by the court below, in so far as it is against the contentions of the petitioners, is set aside. I.A.No.1122 of 2006 shall stand allowed. **(K.T.SANKARAN) Judge** ahz/