JUDGMENT D. K. Seth, J.
1. In a proceeding under Section 18 of the Land Acquisition Act being L.A.R. Case No. 178 or 1986, an award was passed by the Court on 28th March, 1987, The petitioners claim to be the heirs of the deceased applicant in the said L.A.R. Case No. 178 of 1986. They have filed an application under Sections 114, 151, 152 and 153 of the Code of Civil Procedure, since been registered as Misc. Case No. 6 of 1990. In the said application, it was alleged that the award was given @ Rs. 8,000 per biswa. Whereas the Court in some other proceedings under Section 18 of the said Act, had given award, in respect of the lands acquired by the same notification from other than the predecessor-in-interest of petitioners, at a higher rate and, therefore, the rate of Rs. 8,000 per biswa should be corrected or reviewed or enhanced in consonance with the awards given by the same Court a reference under Section 18 of the Land Acquisition Act, since been relied on by the petitioners.
2. Mr. Triveni Shankar, learned counsel for the petitioners contends that the application was not an application for review. It was, in fact, an application under Section 151 of the Code of Civil Procedure, for which no period of limitation is provided. Even if it is stated to be a case falling within the meaning of Article 147 of the Limitation Act. In that event, the period of limitation would be three years, since no period of limitation has been provided in the schedule to the Limitation Act. On the other hand, he contends that the Court, exercises inherent power under Section 151 of the Code for which there cannot be any period of limitation, which can be exercised at any point of time and in such cases, Article 147 of the Limitation Act would not come in their way. Therefore, according to him, rejection of the application of the petitioners by the learned Court below by order dated 22nd July, 1999 passed by the learned Additional District Judge. VIIth Court, Varanast in Misc. Case No. 6 of 1990 on the ground of limitation, cannot be sustained. He then contends that the claim of the petitioners was refused on the ground that all the judgments relied upon by them were given after 28th March, 1987, namely, the date of decision in the said Land Acquisition Case of the predecessors-in-interest of the petitioners. From the impugned order, he points out that one of the decisions was given on 27th April, 1984. Though it appears that other four orders were passed after 28th March, 1987, but one order was passed earlier in the year 1984. Therefore, the said ground of rejection also cannot be sustained. On merits, according to him. In the other orders, the amount has been awarded at a higher rate in view of Section 28A of the Land Acquisition Act, 1894. The Court should have awarded equal amount of compensation since the land of the predecessors-in-interest of the petitioners were acquired by the said notification on the basis whereof said decisions were given. He had also relied on the decision in the case of Sri Ram Awasthy v. State of U. P. and another, 1999 (3) AWC 2197, of the Lucknow Bench. He contends that though the application was sought to be described as an application under Section 114 of the Code as well as under Sections 152 and 153 of the Code, but in affect and in substance, it was an application under Section 151 of the Code. Therefore, the said application could not be said to be barred by limitation and the same should have been allowed.
3. I have heard Mr. Triveni Shankar at length.
4. It is to be considered whether Section 151 of the Code could be invoked by the Court when the Court is not in seisin of the matter. In the present case, the land acquisition case was disposed of on 28th March. 1987 and the application was filed some times on 5th January, 1990. Thus, this application was sought to be made when the Court was not in seisin of the matter. Section 151 of the Code prescribes that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of Court.
5. In the present case, it does not seem that there was any abuse of the process of the Court. On the other hand, it is claimed that since in other cases higher amount was granted in view of Section 28A of the Land Acquisition Act, the same amount is to be granted. This in effect is a proposition related to law. If mistake, there be any, is a mistake in law or error in law. Error in law or mistake in law cannot be said to be an abuse of process of Court even assuming but not admitting that there was any error.
6. Now Section 151 of the Code can be applied in a proceeding when the same is pending before the Court itself and the Court is in seisin of the matter, with few exceptions, as settled in law, through various decisions of different High Courts and the Apex Court. It cannot be invoked when the matter is concluded and it is not in seisin of the matter unless it comes within the exceptions. Section 151 does not apply in a concluded proceedings, when there are remedies available to challenge the same through proceedings provided in the Code itself. Here, a decree was passed in the form of passing an award in the land acquisition proceedings. Thus, the proceedings stood conclude and as such. Section 151 of the Code could not be invoked since this case does not satisfy the ingredients that attracts the exceptions.
7. It is now well-settled that inherent power cannot be exercised when the Code itself provides for a particular situation or contingency or points out to the procedure to be adopted. It was so held in A. Venkateswara Rao. v. K. Subaiah, AIR 1978 AP 403 ; Bajrang Rai. v. Ismail, AIR 1978 Pat 339 (FB) and Sundar v. Mulakraj, AIR 1981 Del 45. Inherent power cannot be invoked to nullify an express statutory provision, as was held in Mahesh Chandra Gupta. v. State of M. P.. AIR 1991 MP 226 at 229).
8. A Court having jurisdiction over the subject-matter can decide rightly or wrongly. An erroneous decree passed with Jurisdiction is binding on the parties unless it is rectified in appeal or through other remedies available in law. Inherent powers can be exercised only when no other remedy is available within the existing provisions of law. It could only be for securing the ends of Justice or preventing abuse of the process of Court.
9. Prejudice caused due to acts of Court can always be remedied through inherent power. But when, as held in Velayudhan Nair. v. Kerala Ksheman Yuvek. AIR 1988 Ker 223, the prejudice is as a result of something done by the Court consciously in exercise of Judicial discretion and other remedies are open to the parties, inherent power cannot be invoked. Where statute requires certain things to be done in certain manner, it must be done in such manner or not at all. Is a celebrated principle in law, laid down in Taylor v. Taylor, (1875 76) 1 Ch D 426, followed in Chittiam Vittil Ammad v. Taluk land Board, AIR 1979 SC 1573 ; A. R. Antulay. v. R. S. Nayak, AIR 1984 SC 718. In Padam Sen v. Stale of U. P., AIR 1961 SC 218), it was held that inherent power cannot be exercised to override the substantive rights of the parties. In Dwarkadas v. Raghubir Prasad Chowdhury, 1987 (1) Cal. LJ 479, was held that bar of limitation cannot be sealed by invoking Inherent power. This Court in Kailash v. Ram Prakash, (1978) 2 Rew CJ 569 (All), had held that under inherent power Court cannot review its decision, there being remedy available under Section 114, read with Order 47. Rule (1) of the Code. Inherent power can be exercised where there is no conflict with express provision provided in the Code.
10. When a suit is dismissed in default or decreed ex parte, the Code provides remedy in Order IX, Rule 4. Order IX, Rule 9. Order IX. Rule 11. By reason of Section 141 of the Code, Order IX is applicable in a proceeding under Order IX as well. Similar remedy in respect of an appeal is provided in Order XLI, Rule 19. Order XLI, Rule 21. But when a suit, proceedings or appeal is decreed. It is subject to appeal by reason of Sections 96, 100, read with Order XLI and Order XLII. Some orders have been made appealable by reason of Section 104, read with Order XLIII. In some cases, some orders are deemed decrees by reason of definition of decree in Section 2(2) that includes rejection of a plaint under Order VII. Rule 11 or a determination under Section 144 as well as by reason of Order XXI. Rule 103. Apart from remedies by way of appeal, in cases, where no appeal is available, revision is provided in Section 115. Over and above where no appeal is provided or where appeal is provided but no appeal is preferred review can be asked for under Section 114, read with Order XLVII. Rule 1.
11. Thus where such remedies are available, inherent power cannot be invoked simply because such remedies have become time barred. A party if does not avail of these remedies, though available, cannot be allowed to invoke Section 151, even if such remedy becomes barred by limitation. A party, who is not diligent and who had wasted his chances in not availing the remedies available, is precluded from invoking Inherent power of the Court.
12. In the present case, the decree was appealable under Section 54 of the Land Acquisition Act. No appeal was preferred. The award in the reference under Section 18 of the Land Acquisition Act was a conscious decision of the Court in exercise of Judicial discretion and the same was open to appeal under Section 54 of the said Act. It was not a mistaken Judgment. It may be a wrong judgment. But it cannot be said that it was a wrong done by the Court, which the Court has to cure.
13. Section 151 cannot be invoked to take away a right accrued to the other side by operation of law. After the expiry of the period of limitation to prefer the appeal, a right had accrued to the other side : such right cannot be taken away by invoking inherent power.
14. However, there is an exception to the rule in case of applicability of Inherent power insplte of existence of specific remedy by way of appeal. But those are cases where the remedy by way of appeal is an illusory remedy. But the appeal in this case, under Section 54 of the Land Acquisition Act was not an illusory remedy. Therefore. Section 151 cannot be attracted.
15. If Section 151 could not be invoked, in that event, it was open to the petitioners to seek a review under Section 114, read with Order XLVII of the Code. But for review, the period of limitation is one month. Even then it could have been moved with an application under Section 5 of the Limitation Act explaining the delay, if there be any, preventing the party from moving the said application within the period of limitation.
16. At the same time, an application could have been moved under Sections 152 and 153 of the Code for which no period of limitation having been prescribed but could be brought within the purview of Article 137 of the Limitation Act and in the present case, the application was filed definitely within three years from the date of award. Thus, in respect of the application so far it related to Sections 152 and 153 of the Code, the same could not have been said to be barred by time.
17. Now it is to be seen whether the application under Section 114 of the Code could be maintained on the basis of the claim as made out in the application itself, even overlooking the period of limitation. It appears that the petitioners had claimed, in fact, review of the award dated 28th March. 1987 on the ground that in subsequent cases in respect of the land acquired under the same notification, higher amount was awarded by the Court under Section 13 of the Land Acquisition Act and as such in view of Section 28A of the Land Acquisition Act, equal compensation should be awarded in respect of the petitioner's case. Thus, the question is not of error apparent on the face of the record related to fact. Section 114, read with order XLVII of the Code allows review in respect of an order. But such review is confined only in respect of error on facts apparent on the face of the record. The decision, however, erroneous in law, cannot be subjected to review.
18. In the present case. It is alleged that under Section 28A of the Land Acquisition Act, the Court should have granted equal amount of compensation in the award itself, which is clearly an error of law since the Court had overlooked Section 28A of the Land Acquisition Act. Thus, the ingredients for seeking review cannot be satisfied and as such, there is no scope for reviewing the said order under Section 114, read with Order XLVII of the Code as has been sought by means of such application even overlooking the period of limitation, in absence of application under Section 5 of the Limitation Act in the present case.
19. So far as Sections 152 and 153 of the Code are concerned, it appears that in Section 152 clerical or arithmetical mistakes in Judgments or decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties. The expression 'at any time' precludes application of the Limitation Act, even Article 137. Such application can be made even beyond three years in view of the expression 'at any time'. If it is a mistake in judgment. It can be corrected at any point of time without application of the Limitation Act in view of the expression used in the Section itself. Thus, the application under Section 152 of the Code cannot be said to be barred by Limitation.
20. Section 152 envisages correction of clerical or arithmetical error or errors arising from accidental slips and omissions. If the Judgment represents the intention of the Judge when it was made, the same cannot be a mistake and then not an accidental one. In Kuruvilla v. State Bank of Travancore, AIR 1989 Ker 68 ; Chhala Banchhor v. Rajan Banchhor, AIR 1085 NOC (Oti) : 1984 (1) Ori LR 650, it was held that for determining as to whether an error is accidental, the lest is to see whether the order as it stands represents the intention of the Judge when it was made.
21. In the case of Gouri Bewa. v. Ari Pradhan. AIR 1987 On 212, it was held that when the error is not a clerical or mathematical one but a legal error, recourse to Section 152 is not permissible, in Vilayudhan Nair (supra), the Kerala High Court took the view that correction permissible under Section 152 can be made suo motu or on an application thereunder. Punjab High Court had held in Bawa Singh, v. Babu Singh, AIR 1979 Punj 47, that it does not involve question of limitation.
22. In the light of the above observation, it is to be seen as to whether the application can be treated to be an application within the meaning of Section 152 of the Code or not. In fact, the petitioners had claimed equal amount of compensation to be awarded as has been awarded in other subsequent cases. It is not contended that Rs. 8,000 per biswa was a clerical or arithmetical error or the errors arising thereout where due to accidental slip or omission. It was a decision given consciously. It was the intention of the Court when made. On the other hand, it was alleged that it was a wrong decision overlooking Section 28A of the Land Acquisition Act. Thus, it cannot be said to be a correction within the meaning of Section 152 of the Code. Therefore application of Section 152 would not be attracted.
23. So far as Section 153 is concerned, it empowers the Court at any time to amend any defect or error in proceeding in a suit. All such necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding. Thus the application of Section 153 is confined to a pending proceeding empowering the Court to amend any defect or error in a proceeding in a suit in order to enable the Court to determine the real question or issue involved, and this 'at any time' during the pendency of a suit cannot be governed by any provision of the Limitation Act and is open to the decision of the Court itself. Then again this is related to the defect or error in a proceeding. After the decision is given and the award is passed, the proceeding having come to an end, if there be any defect in the proceeding, the same cannot be correct under Section 153 of the Code because the issues involved have already been decided and determined.
24. Then again the grant of award @ Rs. 8,000 per biswa was not a defect or error in the proceeding. On the other hand, it may be said to be a wrong decision depending on the interpretation of law particularly provisions contained in Section 28A of the Land Acquisition Act and as such, Section 153 of the Code also cannot be attracted.
25. Then again. Section 28A of the Land Acquisition Act empowers re-determination of the compensation by the Collector under Section 11 of the Land Acquisition Act on the basis of award given by the Court on a reference under Section 18 of the Land Acquisition Act in respect of the land covered by the same notification through which the land was acquired. Section 28A is not a power conferred on the Court. It is a power conferred on the Collector. Thus, Section 28A cannot be applied for the purpose of equality in the award before the Court in a proceeding under Section 18 of the Land Acquisition Act. The Court has assessed the award independent of the assessment made by the Collector on the basis of the market value as might be determined by it. The market value may very from place to place depending on the situation of the respective plots on the basis of the materials that might be produced before the Court. Even if same plot or land is acquired, the lands which were abutting the road side or in a better position, the same may fetch higher market value while a land on the farther from the road and interior in position may fetch a lesser amount of market value. These are the factors which may be weighed by the Court while deciding a reference under Section 18 of the Land Acquisition Act. Then again Section 28A is a provision by which certain restrictions have been imposed with regard to the calculation. The Court cannot be subjected to a restriction. There cannot be any imposition of restriction on a Court in exercise of its judicial function and as such the Legislature in its wisdom had specifically clarified in unequivocal terms in the framing of Section 28A to be applicable to the Collector excluding the Court as is apparent from the expression used in the said Section.
26. In order to appreciate the intention of the Legislature expressed in Section 28A of the Land Acquisition Act, it would be beneficial to quote the same hereinafter, namely :
"28A. Re-determination of the amount of compensation on the basis of the award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, subsection (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court :
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded.
(2) The Collector shall, on receipt of an application under subsection (1), conduct an enquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard and make an award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under subsection (2) may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court and the provisions of Sections 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18."
27. A bare perusal of the said section shows that it had dealt with its application to the Collector depending on an award given under Section 18 in respect of the land, which is acquired by the same notification provided a written application is made before the Collector within three months from the date of the award of the Court in a proceeding under Section 18. Thus, Section 28A can be invoked through an application to be made within a period of three months from the date of such award under Section 18 before the Collector. When a specific provision has been made, the same cannot be deviated from. It does not provide that Section 28A would be applicable in respect of award given under Section 18 by a Court and any such application could be made before the Court. Even though the application was sought to be dressed up on the ground of Sections 114, 151, 152 and 153 of the Code in the form and substance and in effect, it was an application within the meaning of Section 28A of the Land Acquisition Act, which cannot be maintained before the Court. Such application could have been made provided the award of compensation by the Collector was not challenged under Section 18 of the said Act before the Court. Once the award is challenged through Section 18 before a Court, application of Section 28A is precluded. Inasmuch as a compensation re-determined under Section 28A by the Collector is similarly subject to the provision of Sections 18 to 28 of the Land Acquisition Act, In which a reference can again be had. Thus, even on merit. Section 28A cannot be attracted and as such the application cannot be maintained before the Court.
28. The scheme of the Section shows that Section 28A is available to those who had not applied for reference under Section 18. The re-determination made under Section 28A is again made subject to reference in the same manner as under Section 18 attracting application of Sections 18 to 28 provided the person has not accepted the award under sub-section (2) of Section 28A. Thus, once there is reference under Section 18 and once such reference is concluded and the award is accepted Section 28A cannot be attracted. It is preposterous to obtain reference twice to the Court. The provision of sub-section (3) makes it clear that Section 28A is open to those who did not seek reference under Section 18 and that too, before the Collector. When specific expression has been used by empowering the Collector excluding the Court and making the award subject to reference to Court under Section 18. Section 28A cannot be attracted in a proceeding in a reference under Section 18 before the Court.
29. In Banta Singh v. Union of India, it was held that Section 28A envisages re-determination of compensation by the Collector. It does not direct appellate court to modify or vary decree after it has become final. In D. K. Mahajan v. Union of India, (1987) 7 Reports 234) (P & H), it was held that the relief under Section 28A will not be available to a person who had claimed reference to arbitration. The Apex Court in Memo Ram. v. State of Haryana. 1986 (4) SCC 151, had laid down that Section is intended and meant for the inarticulate and poor people who by reason of their poverty and ignorance have failed to take advantage of the right of reference to the civil court under Section 18 of 1894 Act. There is no provision in the Act apart from Section 28A for reopening of an award which has become final and conclusive. For availing of the remedy of re-determination of the amount of compensation under this provision, the conditions laid down therein are to be fulfilled.
30. The decision in the case of Sri Ram Awasthy (supra) cited by the learned counsel for the petitioners also does not apply in the facts and circumstances of the case. In the said decision, the question was decided on the basis of Section 28A of the Land Acquisition Act where the award was given by the authority within the Act itself and it was not related to a reference under Section 18 of the said Act, or in other words in a proceeding under Section 18 of the said Act. The attention of the Court was drawn that Section 28A of the Act was not followed while awarding the compensation, which was challenged in the reference itself and as such this Court had held that the Court in a reference under Section 18 ought to have excluded the application of Section 28A of the said Act and thus the question involved or the ratio laid down in the said decision cannot be attracted in the facts and circumstances of the case in view of the distinguishing feature distinguishing this case from the facts involved in the said case.
31. For all these reasons, I am not inclined to interfere with the order impugned.
32. The petition therefore, fails and is, accordingly dismissed. No. cost.