# Defendant v. Sukhey

- **Citation:** (2012) 3 ILRA 1525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-06-27
- **Bench:** Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/defendant-v-sukhey-42349
- **Pages:** 6

## Headnote

Code of Civil Procedure-Section 151 and
152-read with Section 23 (1-A) of Land
Acquisition Act 1984-reference court
allowed
the
application-considering
amended provision by giving additional
amount-solatiam at rate of 9% per
annum-objection that reference court
can not review its earlier order-heldmisconceived-in view of Law developed
by
Apex
Court
even
if
correction
application
treated
review-Court
committed no illegality by allowing
application under Section 151 and 152
C.P.C.

Held: Para-28

I am unable to accept the contentions
raised by the learned counsel for the
State even if these applications are
treated as review applications even then
court has not committed any illegality in
allowing
these
applications
in
Jay
Chandra Mahapatra Vs. Land Acquisition
Officer, Raigarh reported in (2005 (9)
SCC 123). The Apex Court has clearly
held that the review by the reference
court amending the decree by allowing
the
enhance
solatium
is
clearly
maintenable thus, if the arguments of
the appellant is taken correct even then
1526 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the Court has committed no illegality in
allowing such applications.
Case Law discussed:
1989
All
India
Land
Acquisition
and
Compensation Cases page 46; 1989 L.A.C.C.
Page 250; A.I.R. 1982 page 184; 1988
L.A.C.C. Page 204; A.I.R. 1985 Supreme Court
Cases page 1576; 2005 (9) SCC 123

## Text

3 All] State of U.P. V. Sukhey
1525
also cross-examined some of the witnesses.
The copies of the statement of such
witnesses have not been placed on record
by the respondents. There is also no
reference in the enquiry report as to how
many witnesses were examined during the
course of enquiry and the petitioner was
given opportunity to cross examine them.
The Inquiry Report reveals that the subcommittee considered only the reply
submitted by the petitioner to the charge
sheet and considered other documents
made available to the committee and found
the petitioner guilty of irregularities. Subcommittee thus found it sufficient to
consider only the reply of the petitioner
submitted against the charge sheet served
upon him while the law as well as
principles of natural justice require that
such employee against whom serious
charges have been levelled should be given
proper and reasonable opportunity to
defend himself in any enquiry against him.

24. In view of this, we are of the
view that the Inquiry Report submitted by
the sub-committee is also vitiated and is
also liable to be quashed.

25. In the result, the writ petition
partly succeeds. The order passed by the
Chancellor dated 6.1.2012 as contained in
Annexure No.1 to the writ petition, the
resolution of the Executive Council dated
28.6.2009 as contained in Annexure No.2
to the writ petition and the Inquiry Report
dated 27.6.2009 as contained in Annexure
No.23 to the writ petition are quashed.
However, it will be open to the authorities
to conduct fresh enquiry against the
petitioner in accordance with law.

26. In the circumstances of the case,
there will be no order as to cost.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.11.2012

BEFORE
THE HON'BLE DINESH GUPTA, J.

First Appeal Defective No. - 494 Of 1991

State of U.P.

...Defendant
Versus
Sukhey

 ...Plaintiff

Counsel for the Petitioner:
S.C.
Sri A.P. Singh

Counsel for the Respondents:
Sri Anil Sharma

Code of Civil Procedure-Section 151 and
152-read with Section 23 (1-A) of Land
Acquisition Act 1984-reference court
allowed
the
application-considering
amended provision by giving additional
amount-solatiam at rate of 9% per
annum-objection that reference court
can not review its earlier order-heldmisconceived-in view of Law developed
by
Apex
Court
even
if
correction
application
treated
review-Court
committed no illegality by allowing
application under Section 151 and 152
C.P.C.

Held: Para-28

I am unable to accept the contentions
raised by the learned counsel for the
State even if these applications are
treated as review applications even then
court has not committed any illegality in
allowing
these
applications
in
Jay
Chandra Mahapatra Vs. Land Acquisition
Officer, Raigarh reported in (2005 (9)
SCC 123). The Apex Court has clearly
held that the review by the reference
court amending the decree by allowing
the
enhance
solatium
is
clearly
maintenable thus, if the arguments of
the appellant is taken correct even then
1526 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
the Court has committed no illegality in
allowing such applications.
Case Law discussed:
1989
All
India
Land
Acquisition
and
Compensation Cases page 46; 1989 L.A.C.C.
Page 250; A.I.R. 1982 page 184; 1988
L.A.C.C. Page 204; A.I.R. 1985 Supreme Court
Cases page 1576; 2005 (9) SCC 123

(Delivered by Hon'ble Dinesh Gupta, J.)

1. This appeal is preferred against
the order dated 6.9.1990 passed by Sri
M.A. Khan, Ist Additional District Judge,
Bijnor in Land Acquisition Reference No.
28 of 1982 between Sri Sukhey Vs. State
of U.P.

2. Brief facts giving rise of this
appeal are that:-

3. The applicant moved application
under Section 151 and 152 C.P.C. for
amendment of the judgement and award
given by Reference Court in various
references made by the Reference Court
under Section 18 of the Land Acquisition
Act. In so far as they directed for the
payment of solatium and interest in
accordance with the relevant provisions of
the Land Acquisition Act prior to the
amendment
by
Land
Acquisition
(Amendment) Act, 1984. Since the
common question of law and fact is
involved that the court decided this case
alongwith other miscellaneous cases by
common judgement in the miscellaneous
case. By these applications the applicant
seeks amendment in the decree and
prayed that applicant's solatium, interest
and additional amount under Section 23
(I-A)
permissible
under
the
Land
Acquisition (Amendment) Act, 1984.

4. The applicant submitted that as
the award given by the Reference Court
was made after 30.4.1982 and the
applicants are entitled to all the benefits
as permissible under the Amendment Act.
It is further prayed that the applicants
should be entitled to solatium at the rate
of 30% on the market value under the
Amendment Act, 1984 and further interest
at the rate of 9% per annum for a period
of one year from the date of taking over
possession and thereafter at the rate of
15%
per
annum
on
the
enhance
compensation
till
the
payment
of
additional amount under Section 23(I-A)
at the rate of 12% per annum.

5. The State counsel filed reply and
it is submitted that the applications are
barred by time and these applications
should be treated as review petition; that
the grant of interest is discretionary with
the court and there is no justification for
enhancing the same, no request has been
made for condoning the delay and the
Central Act 68 of 1984 will not be
applicable to the present proceedings.

6. After considering the relevant
provisions of law and case law cited by
the parties, the Reference Court allowed
the applications under Sections 151 and
152 C.P.C.

7. Feeling aggrieved, the State
preferred this appeal alongwith delay
condonation application as there was
delay of 78 days in filing the appeal.

8. Heard learned counsel for the
appellant on the delay condonation
application as well as on the merit of the
appeal.

9. Learned counsel for the appellant
submitted that the delay in filing the
appeal is bonafide and it has been
3 All] State of U.P. V. Sukhey
1527
explained properly by filing a proper
affidavit of the concerned person/ official
and thus, the delay in filing the appeal be
condoned.

10. On the merit of the appeal,
learned
counsel
for
the
appellant
submitted that the court has committed
gross
illegality
in
allowing
the
applications of the claimants only on the
misinterpretation of the provisions of the
Act ignoring the fact that the claimants
are not entitled to any benefit given by the
Amendment Act 58 of 1984.

11. That the court below has also
committed gross illegality in awarding the
enhancing rate of interim and additional
amount as provided in sub section (1-A)
and sub section (3) of section 23
inasmuch as the claimants are not entitled
to any benefit which has been given by
the Amendment Act.

12. That the court below has also
erred in law in accepting the application
filed under section 151 and 152 C.P.C. As
a matter of fact, the application filed by
the claimants can be treated as review
petition and as such no enhancement
should be done in the present case.

13. That the court below has also
failed to take into consideration that the
applications filed by the claimants were
highly barred by time as the Amendment
Act has been imposed from 24.9.1984
while this petition is filed in 1989.

14. Learned counsel for the
appellant submitted that the appeal should
be allowed and the order passed by the
Reference Court is liable to be quashed.

15. I am unable to accept the
contentions raised by learned counsel for
the appellant, first of all, so far as the
delay
condonation
application
is
concerned, appellant has failed to explain
day to day delay and cause shown by the
appellant for delay is also not explained
properly.

16. So far as the merit of the order is
concerned,
before
considering
the
entitlement of the owners under the
proviso to Section 28 of the Act, it will be
proper to reproduce Section 28 of the
Land Acquisition Act as amended and it
reads as under:-

"If the sum, which in the opinion of
the Court, the Collector ought to have
awarded as compensation, is excess of the
sum which the Collector did award as
compensation, the aware of the Court
may direct that the Collector shall pay
interest on such excess at the rate of 9%
per annum from the date on which he took
possession of the land to the date of
payment of such excess into Court.

Provided that the award of the Court
may also direct that where such excess or
any part thereof is paid into court after
the date of expiry of a period of one year
from the date on which possession is
taken interest at the rate of 15% per
annum shall be payable from the date of
expiry of the said period of one year or
the amount of such excess or part thereof
which has not been paid into the court
before the date of such expiry."

17. A bare perusal of the aforesaid
provisions, makes it clear that the sum
which in the opinion of the court, the
Collector ought to have awarded as
compensation is in excess of the sum
1528 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
which the Collector did award as
compensation, the court may direct that
the Collector shall pay interest on such
excess at the rate of 9% per annum on the
date on which he took possession of the
land to the date of the payment of such
excess into court. The aforesaid section
further provided whether the excess for
any part of the period which paid into the
court after the date of expiry of the period
of one year from the date on which
possession is taken. The court may also
direct interest at the rate of 15% per
annum from the date of expiry of period
of said one year on the excess amount.

18. Further bare perusal of section
23(I) of the Act shows that it deals with
the
matter
to
be
considered
for
determining the compensation payable for
the land acquired under the Act and for
determining such compensation court has
to inter-alia first determine the market
value of the land on the date of the
publication of notification under section 4
sub section (1) of the Act.

19. Sub Section (2) provides that in
additions to the market value of the land,
the court shall in each case award a sum
of 30% on such market value, likewise the
newly inserted sub section (1-A) of
Section 23 provides for payment of
additional amount calculated at the rate of
12% per annum on such market value for
the period of commencing on and from
the date of publication of notice of section
24 in various decisions it has been held
that whether the award has been made by
the Collector or the District Judge after
30.4.1984, the land owners are entitled to
the benefit of the provisions of Land
Acquisition (Amendment) Act, 1984.

20. It is important to mention here
that the appellant has not challenged that
the claimants are not entitled to enhance
the amount of solatium and the rate of
interest as provided by the Amendment
Act, only objections raised by the
appellant are to follow.

21. Firstly, the applications under
section 151 or 152 C.P.C. were not
maintainable
and
the
Court
cannot
enhance
the
amount
under
these
provisions
and
according
to
the
contentions of the appellant, section 151
and 152 are meant for clerical or
arithmetical correction in the judgment
and the enhancement of the solatium and
the rate of interest does not come within
the purview of of mathematical or factual
error.

22. The Reference Court has
referred a decision of Punjab and Haryana
High Court in Kehar Singh Vs. Union of
India (1989 All India Land Acquisition
and Compensation Cases page 46),
according to this case law, the claimants
will be entitled to the benefit of the Act
after the cut of date 30.4.1982 and further
such cases are squarely fall within the
ambit of section 152 C.P.C. which lays
down that the clerical or arithmetical
mistakes in the judgment and order or
errors arising therein from any accidental
slip or omission, may at any time, be
corrected by the court either or its own
motion or on the application of any of the
parties. It has further been held in this
case that the application under section 152
C.P.C. is maintainable.

23. The Reference Court also
referred a decision of the Delhi High
Court in Bharat Singh Vs. Union of
India (1989 L.A.C.C. Page 250) which
3 All] State of U.P. V. Sukhey
1529
also covers the same controversies.
Reference Court further referred the case
of Nand Ram and others Vs. State of
Punjab (A.I.R. 1982 page 184) which has
held that interest under section 28 is an
integral part of the compensation which is
to be awarded by the court. Omission in
the judgment to award interest on
compensation constitutes an accidental
slip within the meaning of section 152
C.P.C. and can be rectified at any time.

24. Reference Court has also
referred the case of Matu Ram and others
Vs. Union Territory of Chandigarh
(1988 L.A.C.C. Page 204) and held as
follows:-

The court has to, inter alia first
determine the market value of the land at
the date of publication of the notification
under section 4, sub section (1) of the Act.
The Act further provides that in addition
to the market value of the land, the court
shall in each case shall award a sum of
30%
on
such
market
value,
in
consideration of the compulsory nature of
the acquisition. Likewise the newly
inserted sub section (1-A) or section 23
provides for payment of additional
amount calculated at the rate of 12% per
annum on such market value for the
period of commencing on and from from
the date of publication of the notification
under sub section 4. As a matter of fact,
what requires adjudication under section
23 is the determination of the market
value of acquired property and the
obligation to award additional amount
mentioned in sub section (1-A) and sub
section (2) of section 23 follow as of
course
after
making
arithmetical
calculations.

25. Thus, it is very clear that if by
way of accidental slip a clerical error
appeared in the judgment when the
Reference Court omitted to mention in the
order that the applicants are also entitled
to the benefit of sub section (1-A) is
inserted in section 23 of the Land
Acquisition Act. Such case in the opinion
of the Hon'ble High Court falls within the
ambit of section 152 C.P.C.

26. Further in the case of Bag Singh
and others Vs. Union Territory of
Chandigarh (A.I.R. 1985 Supreme Court
page 1576). It has been held by the
Hon'ble Supreme court that the amended
provisions of section 23(2) and 28 are
applicable to all the proceedings relating
to the compensation pending at the date of
commencement of amending Act or filed
subsequent to that date whether before the
Collector or before court or High Court or
Supreme Court. It has also been held in
this case that even if an award is made by
the Collector or the Court before
30.4.1982, and an appeal against such
award is pending before the Hon'ble High
Court or Supreme Court on 30.4.1982.
The provisions of amended section 23 and
28 would be applicable. Thus, Supreme
Court made out cut of date 30.4.1982.

27. Lastly, learned counsel for the
appellant
raised
grounds
that
the
applications under section 151 and 152
C.P.C. moved by the claimants are not
maintenable and they can only be treated
as review application and the Reference
Court has no power to review its own
order so far as it relates to the payment of
compensation and other legal statutory
benefit
is
concerned, only
grounds
available to the applicant to file an appeal
against the award and prayed for the relief
which they have been taken in the
1530 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
applications under section 151 and 152
C.P.C.

28. I am unable to accept the
contentions raised by the learned counsel
for the State even if these applications are
treated as review applications even then
court has not committed any illegality in
allowing
these
applications
in
Jay
Chandra
Mahapatra
Vs.
Land
Acquisition Officer, Raigarh reported in
(2005 (9) SCC 123). The Apex Court has
clearly held that the review by the
reference court amending the decree by
allowing the enhance solatium is clearly
maintenable thus, if the arguments of the
appellant is taken correct even then the
Court has committed no illegality in
allowing such applications.

29.

Admittedly,
judgment
in
reference
court
was
passed
after
30.4.1982 and failure the reference court
to award the benefit of the amended
section of the Land Acquisition Act can
be rectified by the court by reviewing its
own judgment thus, the court has not
committed any illegality in allowing the
applications under section 151 and 152
C.P.C. Awarding the benefit of the
amendment.

30. The application u/s 5 Limitation
Act is rejected.

31. So far as the merit of the appeal
is concerned, appeal lacks merit, hence,
the appeal is dismissed.

32. Accordingly, the appeal is
dismissed as barred by time as well as on
merit.
---------

REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.11.2012

BEFORE
THE HON'BLE VIRENDRA VIKRAM SINGH, J.

Criminal Revision No. 679 of 2010

M/S V.K. Traders

 ...Revisionist
Versus
State Of U.P. & Another

 ...Opposite Parties

Counsel for the Petitioner:
Sri Suddharth

Counsel for the Respondents:
A.G.A.

Criminal
Revision-Magistrate
on
complaint
by
Food
Inspector-take
cognizance
and
summoned
the
revisionist-without application of judicial
mind by putting rubber stamp-strictly
prohibited under section 18 of General
Rules (Civil) as well as circular dated
07.02.2001-although
by
taking
cognizance no detail order requiredCourt explained the procedure on taking
cognizance upon investigation report as
well as on complaint-but putting rubber
stamp-shocking state of affairs-order
quashed
-direction
for
fresh
consideration issued.

Held: Para-34

Before parting with the case, the Court
shall like to record that section 18 of the
General Rules (Civil), 1857 provides for
the prohibition of the Rubber Stamp in
judicial orders and the use of Rubber
Stamp for passing any order has been
forbidden by the circular letter of the
High Court, Allahabad no. 6 of 2001
dated
7th
February,
2001.
By
this
circular letter it was impressed upon the
Judicial Officers of the Subordinate
Courts that for passing any judicial
order, the Rubber Stamp shall not be