DEPUTY CHIEF ENGINEER SOUTHERN RAILWAY Vs. JOLLY MATTAPPILLIL

JUDGEMENT

(1.) Challenge in the Original Petition is against Ext.P3 order passed by the learned Sub Judge, Ernakulam. An application moved under Section 152 of the Code of Civil Procedure seeking correction of the judgment/decree passed in L.A.R No. 35/2010 by the requisitioning authority, for whose beneficial interest the land under reference was acquired, was turned down by the learned Sub Judge vide the aforesaid order. Propriety, correctness and legality of that order is assailed in this petition invoking the visitorial jurisdiction vested with this court under Article 227 of the Constitution of India. Short facts necessary for disposal of this petition can be summed up thus: 0.28 Ares of land belonging to the 1st respondent situated in Nadama village was acquired under the provisions of the Land Acquisition Act for the construction of a railway over bridge, to meet the interest of the Southern Railway. On the claim made for enhanced compensation by the 1st respondent, the owner of the land, reference was made to the civil court for determining the compensation payable. In that proceeding, the requisitioning authority got impleaded as the additional 2nd respondent. Over and above the challenge raised regarding the market value fixed for assessing the compensation over the acquired land, the claimant/1st respondent also set up a claim for injurious affectation for the rest of the land remaining with him after acquisition, contending that putting up of the railway over bridge in the acquired land has prevented his direct road access from the remaining property. The reference court on the materials placed arrived at the conclusion that over and above the enhanced compensation allowably for the land acquired, in respect of 6 cents of land remaining with the owner he is entitled to have compensation towards injurious affectation. Land value for enhanced compensation was reckoned on the basis of value fixed per Are. The diminution of land value with respect to 6 cents after being fixed at 5%, the court held that towards such injury the claimant is entitled to have 5% of the land value. The court thereupon passed an award of compensation towards injurious affectation over the 6 cents of land on the basis of the land value fixed per are i.e., at the rate of '. 52,055/-. In calculating the injurious affectation for 6 cents of land, which was determined as 5% per cent, the land value fixed per Are as such was applied, and thereby excess sum was directed to be paid towards compensation for injurious affectation, is the case of the requisitioning authority. Sum fixed towards compensation for injurious affectation on the above basis is a patent mistake and that has to be corrected invoking Section 152 of the Code of Civil Procedure, was its case moving an application for such correction. That application was resisted by the 1st respondent/claimant contending that the intention of the court in awarding compensation towards injurious affectation with reference to the land value fixed per Are was that it is not the centage value, but, the value fixed for Are that has to be taken since the entire 6 cents of land has been practically rendered useless by the construction of the over bridge. The learned Sub Judge, after going through the materials and also considering the submissions made by the counsel on both sides was of the view that the judgment rendered by his predecessor awarding compensation for injurious affectation with reference to the land value fixed for Are towards the 6 cents does not suffer from any mistake warranting correction under Section 152 of the Code of Civil Procedure. In that view of the matter, the application moved by the requisitioning authority was turned down.

(2.) The learned counsel for the 1st respondent/claimant has raised a preliminary objection challenging the competency of the petitioner to file this petition to question Ext.P3 order passed by the learned Sub Judge. Petitioner was not a party before the reference court and also in the application moved under Section 152 of the Code of Civil Procedure for correction of the judgment/decree, is the submission of the counsel. I do not find any merit in the challenge so raised. The requisitioning authority in this case is the Railways. Before the reference court, it was represented by one of its officers, the Executive Engineer. That officer had moved an application for correction also, later, under Section 152 of the Code of Civil Procedure. Railways being a Central Government undertaking and further an organization which can have its functions carried out only through human agencies can be represented only by one or other of its officers in legal proceedings. Previously, in the reference court it was represented by an Executive Engineer is not a ground to hold that another official of the railways, that too of superior level, is incompetent to represent and prosecute its case in further proceedings of the case. The Original Petition has been filed by a Deputy Chief Engineer of the railways, and he has done so only in the representative capacity as a competent officer of the railways to do so. Coming to the merits of Ext.P3 order challenged in the petition at the outset it has to be pointed out that any act of the court shall not cause any prejudice or injury to any of the parties to the proceedings. If at all a mistake or error had been committed by the court and that is patently evident, while delivering a judgment or drafting a decree or order, and, such mistake or error falls within the ambit and scope of Section 152 of the Code of Civil Procedure, when it is pointed out it has to be rectified. The basis of the provision under Section 152 of the Code of Civil Procedure is founded on the maxim 'actus curiae neminem gravabit', i.e., an act of court shall prejudice no man. There is a delay of ten days in moving the aforesaid application under Section 152 of the Code of Civil Procedure has been highlighted by the learned counsel for the respondent/claimant contending that what is sought for is only a review and it should have been moved within 30 days from the date of judgment. What has been sought for is not a review but only a correction under Section 152 of the Code of Civil Procedure, for which no time limit is prescribed. No doubt that if there is culpable laches or deliberate default on the part of the party and the application for correction is applied beyond just and reasonable time that of course is a circumstance that has to be looked into by the court in examining the merit of the application to consider the entitlement of the applicant for the relief under the Section.

(3.) Now, the question to be considered is whether there is any arithmetical mistake or error in the order passed by the learned Sub Judge warranting correction under Section 152 of the Code of Civil Procedure. The assertion made that the intention of the judge by awarding land value with reference to the value fixed for Are for the 6 cents of land towards the injurious affectation determined at 5% of such land, has necessarily to be examined looking into the judgment rendered in the reference. What has been categorically and unequivocally held by the learned Sub Judge is that the 6 cents of land remaining with the land owner has suffered 5% injurious affectation. When that be so, whatever be the mode of calculation taken by the learned Sub Judge, the compensation for injurious affectation could have been granted only for 5% of the centage value for the entire 6 cents. No compensation can be awarded in excess thereof on the basis of the land value fixed at the rate per Are. Where the court has found that 5% injurious affectation with respect to 6 cents of land has been suffered by the claimant 1st respondent, he could be granted only compensation thereof calculating it with reference to the value of cent and the percentage of the affectation determined. He cannot be granted any excess compensation for the 5% affectation per cent for the 6 cents fixing the value per cent as that of the land value fixed per Are, which had been applied for providing enhanced compensation for the land acquired. Calculation made by the court to fix the compensation for 5% injurious affectation of land for the 6 cents, at the rate of land value fixed per Are, but not at the rate of land value to be fixed and reckoned per cent on the value fixed per Are, was only an error or mistake and it cannot be contended that it was intentionally done. The wrong calculation made in fixing compensation erroneously does not at all represent the intention of the judge, but clearly it was an accidental mistake. Setting aside Ext.P3 order, the court below is directed to examine the application moved by the petitioner for correction of the judgment/decree taking note of the observations made above and pass appropriate orders in accordance with law within a period of six weeks from the date of production/receipt of a copy of this judgment. The Original Petition is disposed of.