1 HIGH COURT OF UTTARAKHAND AT NAINITAL (Court’s order whether the case is nor not approved for reporting.) (Chapter VIII Rule 32(2) (b) Description of the Case Civil Revision No. 59/02 Smt. Sarasati Bhandari Vs. State of Uttaranchal and others (Approved for Reporting) Not approved for reporting Date of decision 25.11.2004 Initials of Judge 2 IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL CIVIL REVISION NO. 59 OF 2002 Smt. Saraswati Bhandari, W/o Sri Sultan Singh Bhandari, R/o Village Balbhadrapur, Kotdwar, Distt. Pauri Garhwal. ………Revisionist. Versus 1. State of Uttaranchal, through Collector, Pauri Garhwal. 2. Bharat Electronics Ltd., Kotdwar, Distt. Pauri Garhwal, through General Manager. ………Respondents. 25.11.2004 Hon’ble Rajesh Tandon, J. By the present revision, the revisionist has prayed for setting aside the order dated 17.05.2002 passed by the Executing Court refusing to grant amendment. Briefly stated, in proceedings under the Land Acquisition Act award was made on 28.10.1987, thereafter, on a reference under Section 18 of the Land Acquisition Act, the District Judge has enhanced the compensation to the following effect on 10.08.1990:- The following order was passed in the aforesaid reference:- “The award under this reference is ordered to be modified and the amounts of compensation are enhanced and the petitioner is entitled to the difference of amounts i.e. the enhanced additional compensation, additional solatium, additional interest etc. only on the difference calculated from 3 the enhanced amount in the following manner and the reference is decided accordingly:- (i) The petitioner is entitled to get enhanced compensation of Rs. 24,375/- per Bigha (interest of Rs. 12,000/- per Bigha determined by the Land Acquisition Officer). (ii) Besides that the petitioner is further entitled to additional solatium only on the excess amount of compensation granted by this Court @ Rs. 30% (thirty per cent) as provided in section 23(2) of the Land Acquisition Act, in consideration of the compulsory nature of acquisition. (iii) In addition the petitioner shall further get additional amount of compensation the difference of the amount thus increased by this Court), calculated @ Rs. 12% (rupees twelve per cent) per annum, from 17.03.1986 (i.e. from the date of notification under Section 4 of the U.P. Land Acquisition Act), till 29.5.1986 (i.e. the date of taking possession) as provided under section 23 (1-A) of the Land Acquisition Act. (IV) In addition the petitioner shall further get additional interest @ 9% (nine percent) per annum from 30.05.1986 to 29.05.1987, on the total of aforesaid three items i.e. on the difference calculated from the excess amount so awarded by this court and @ Rs. 15% per annum from 30.05.1987 till the date of its deposit by Collector Pauri in court. The award be prepared and payments be made to petitioner immediately according to aforesaid modified terms, conditions and orders in this reference.” In the execution application following averments have been made by the petitioner:- 4 ß;g fd mijksDr izfrdj] C;kt vkfn e/n izkFkhZuh }kjk fnukad ‡-„-ŠŠ dks ekuuh; U;k;ky; ls ƒŠ]…0]ƒŠ„]ˆ0 :i;s dh jkf”k vUMj izksVsUV izkIr dh x;h rFkk ekuuh; U;k;ky; }kjk mijksDr fjQjsal esa ikfjr fu.kZ; fnukad ƒ0-Š- ‹0 ds ckn izfrdj] C;kt vkfn dh en esa fnukad 2-ƒ„-‹ƒ dks ƒ‹] Š‰]‹0…- ˆ‰ :i;s $ ‡]0†]‡‡0]„‡ :i;s dqy „†]‹„]†‡…-‹„ :i; s dh jkf'k IkzkIr dh x;hA bl izdkj fnukad 2-ƒ„-‹ƒ rd mijksDr dqy izfrdj „†]…‰]‡00@& :i;s $ Lkksysf”k;e $ vfrfjDr izfrdj $ C;kt vkfn dh en esa fnukad ‡-„-ŠŠ rd …Š]†0]ˆ…†-ˆ0 :Ik;s dh jkf”k izkIr djus ds ckn fnukad „-ƒ„-‹ƒ dks …ƒ]ˆ0]‡†0-ˆ0 :i;s dh jkf”k;ka cdk;k gksrh FkhAß In reply to the execution application following statement has been given by the State:- “(7) fd U;k;ky; mn~?kks’k.kk ls vokMZ dh jkf”k :0 ƒ„]000@& izfr ch?kk dh ,ot esas :0 „†]…‰‡@& mn~?kksf’kr dh xbZ gS vkSj blh ij vU; ns;dksa esa c<+ksRrjh gqbZ] tks fuEu gS%& (v) Hkwfe dk izfrdj :0 „†]…‰]‡00@&(ƒˆ ,dM+ ds fy,) (c) …0% lksysf”k;e :0 ‰]…ƒ]„‡0@& (l) ƒ†% vfrfjDr :0 …ƒ]„‡… ¾ †„ ;ksx@&…„]00]00…¾ †„- (n) ‹% :0 „]ŠŠ]000 ¾ …ƒ (…0-‡-Šˆ ls „‹-‡- Š‰ rd) (;)ƒ‡% C;kt :0 …]…0]ŠŠ„¾‡† (…0-‡-Š‰ ls ‡-„-ŠŠ rd) ----------------------------------------------------------- dqy ;ksx :0 …Š]ƒŠ]0Šˆ¾„‰ dk fMØhnkj dks Hkqxrku bl izdkj fd;k x;kA (v) ftyk U;k;ky; ds ek/;e ls :0 ƒŠ]…0]ƒŠ„ ¾ˆ0 fnukad ‡-„-ŠŠ dks 5 (c) jsQjsUl mn~?kksf’kr fnukad :0 ƒ‹] Š‰]‹0… ¾ ˆ‰ ƒ0- Š-‹0 dks fd;s tkus ls iujhf{kr /kujkf”k dk vUrj &&&&&&&&&&&&&&&&&&& ;ksx%& :0 …Š]ƒŠ]0Šˆ¾„‰ (9) fd fMØhnkj dk dFku fd Hkqxrku dh xbZ jkf”k :0 …Š]ƒŠ]0Šˆ¾„‰ ds vfrfjDr Hkh :0 …ƒ]ˆ0]‡†0¾ˆ0 dh jkf”k cdk;k en;wu dh vksj gS] xyr gS vkSj mijksDr foospu ls btjk; erkyok is”rj iw.kZ Hkqxrku fd;s tkus ls btjk; [kkfjt fd;s tkus ;ksX; gSA** During the execution proceedings, the revisionist has prayed for amendment to the following effect:- ßvr% izkFkZuk gS fd U;k;fgr eas btjk; n[kkZLr esa fuEufyf[kr la”kks/ku djus dh btktr iznku djus dh d`ik dh tk;&& (I) ;g fd btjk; n[kkZLr esas ist la[;k 2 ds iSjk la[;k 4 dh pkSFkh ykbu ls ‡]0†]‡‡0]„‡@& :i;s dqy „†]‹„]†‡…-‹„@& :i;s dks o blh iSjs dh NBh ykbu esa fnukad „&ƒ„&‹ƒ rd dks dkVus dh btktr iznku djus dh d`ik dh tk; rFkk blh iSjs esa NBh ykbu esa gh ^dqy izfrdj* ds chp **ƒˆ (lksyg) ,dM+ Hkwfe ds** dks fy[kus dh btktr iznku djus dh d`ik dh tk;A (II) ;g fd btjk; n[kkZLr ds ist la[;k 2 ds iSjk la[;k † dh lkroh ykbu esa **…Š]†0]ˆ…†-ˆ0** dks dkVdj mlds LFkku ij **o** dks dkVdj **rFkk** fy[kus dh o blh iSjs dh vkf[kjh ykbu esa **…ƒ]ˆ0]‡†0-ˆ0** dks dkVdj mlds LFkku ij **C;kt lfgr …ƒ]ˆˆ]Š0„** fy[kus dh btktr iznku djus dh d`ik dh tk;A (III) ;g fd btjk; izkFkZuki= ds ist la[;k … ds iSjk la[;k ‡ esas fy[ks x;s ** ƒ]ˆŠ]‰‡0** ds igys vad **…** fy[kus dh btktr iznku djus dh d`ik dh tk;aA (IV) ;g fd btjk; izkFkZuki= ds ist la[;k † ds iSjk la[;k ‰ o Š esa Øe”k% **$‡]0†]‡‡0]„‡@& :i;s dqy „†]‹„]†‡…-‹„** dks o **‡]0†]‡‡0]„‡@& :i;s dqy „†]‹„]†‡…-‹„@& :i;s** dks dkVus dh btktr iznku djus dh d`ik dh tk;A 6 (V) ;g fd btjk; n[kkZLr ds ist la[;k † ds iSjk la[;k Š o ‹ esa nks txg fy[kh la[;k **ˆ]‰†]…†‰@&** dks dkVdj nksuksa txg ** ƒƒ]‰Š]Š‹Š-†0@& :i;s** fy[kus dh btktr iznku djus dh d`ik dh tk; rFkk iSjk la[;k ‹ esa gh la[;k ^^Š]„‡]Š††@& :i;s** o **ƒ‡]00ƒ‹ƒ@&** dks dkVdj Øe”k% ** ƒ†]†…]‰†ˆ-‰0** o **„ˆ]„„]ˆ†‡-90** fy[kus dh btktr iznku djus dh d`ik dh tk; o iSjk la[;k ‹ ds ckn okys iSjs esa Øe”k% **ƒ‡]00ƒ‹ƒ@& (iUnzg yk[k ,d lkS bD;kuos :Ik;s nl iSls)” fy[kus dh o la[;k **ˆ]‰†]…†‰@&** dks dkVdj **ƒƒ]‰Š] Š‹Š-†0** fy[kus dh o la[;k **„‰‰@& :i;s** dks dkVdj mldh txg **†Š†]†‰@& :i;s** fy[kus dh btktr iznku djus dh d`ik dh tk;A (VI) ;g fd btjk; izkFkZuki= ds ist la[;k 4 ds izkFkZuk okys iSjs dh nwljh ykbu esa ****ƒ‡]00ƒ‹ƒ@& (iUnzg yk[k ,d lkS bD;kuos :Ik;s)” dks dkVdj mlds LFkku ij **„ˆ]„„]ˆ†‡-90@& :i;s (NCchl yk[k ckbl lkS gtkj N% lkS iSarkfyal :i;s nl iSls)” fy[kus dh btktr iznku djus dh d`ik dh tk;A** In the Counter Affidavit filed in reply to the amendment application, the respondent no.2 in paragraph 14, 15, 15 and 17 has alleged as under:- “14. That it is apparent from the application of the revisionist that revisionist has projected the huge claim on the following basis as per the Chart below: Cost (Claimed) 100*24375 = Rs. 24,37,500 30% Solatium (claimed on total cost on difference between the amount determined by district Judge and the amount initially disbursed by SLAO) Rs. 7,31,250 Total Rs. 31,68,750 12% interest form 31.386 to 29.5.86 (claimed on total cost 3168750*12/100/59/365=Rs. 61465 not on difference between the amount determined by district Judge and the amount initially disbursed by SALO) 9% interest from 30.5.86 to 3168750*9/100*365/365=Rs. 285187 7 29.5.87 (claimed on total cost not on difference between the amount determined by district Judge and the amount initially disbursed by SLAO) 15% interest on Rs. 3168750+Rs. 61435 from 30.05.87 to 5.2.88 date of receipt of 1st instalment (Claimed on total cost not on difference between the amount deterimed by district Judge and the amount initially disbursed by SLAO and on interest also for the period from 31.3.86 to 29.5.86) 3230215*15/248/365=Rs. 329216 Total as on 5.0.88 Rs. 3844618 Balance amount after receipt Rs. 1830182.6 on 5.5.88 Rs. 2014435.40 15% interest from 6.2.88 to 2.12.91 2014435.40*15/100* 1392/365 = Rs.1152367.42 Total payment due on 02.12.1991 Rs. 3166802.82 Payment received by her on 02.12.91 (as admitted in paragraph no.4 of the execution Rs. 1987903.67+504550.25+ Rs. 2492453.92 application) Balance Payment Rs. 674348.90 15% interest on balance Rs. 825846.47 8 payment from 03.12.91 to 03.02.2000 Amount under demand Rs. 1500195.37 (Rs. 1500191.00) 15. That the objection of the State Government also appears to have given a mis-interpretation of the relief of the Award dated 20.09.1990 of the District Judge and thus the Objections of the State Government are also misdirected. A copy of the objections of the State Government has been filed and annexed as Annexure-2 of the affidavit of the Revisionist. 16. That in paragraph no. 4 of the application for execution, the revisionist herself has admitted to have received an amount of Rs. 5,04,550.25 from the State Government. It is stated that the State Government has also not denied such payment in its objections. 17. That the Revisionist moved an amendment application in the original execution application and sought to withdraw the admission of withdrawal of an amount of Rs. 5,04,550.25 from the State Government and all the order calculations are consequential of withdrawal of such admission of the Revisionist. 18. That the learned District Judge has correctly and legally addressed the issue and while recording that the amendment being in the nature of withdrawal of an admission by the revisionist, in the impugned order dated 17.5.2002 has correctly rejected the application of the revisionist.” Counsel for the respondent has submitted that the admission cannot be withdrawn by way of amendment. It has been held in 1998 A.I.R. SC Page 1, in which the Judgment of Apex Court in the case of M/s Modi Spinning and Weaving Mills Co. Ltd. v. M/s Ladha Ram & Company, AIR 1977 SC 680 has been followed. 9 Relying upon the judgment of M/s Modi Spinning and Weaving Mills Co. Ltd and another Vs. Ladha Ram & Co, 1977(1) SCR 728. It has been held as under:- “In that case Ray, C.J,. speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff completely from the admissions made by the defendants in the written statement cannot be allowed. If such amendments are allowed in the written statement cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievable prejudiced by being denied the opportunity extracting the admission from the defendants.” In Jagdish Singh v. Nathhu Singh, AIR 1992 SC 1604, the Hon’ble Supreme Court held that the Court may allow to certain extent even the conversation of the nature of the suit, provided it does not give rise to entirely a new cause of action. An amendment sought in a plaint filed for specific performance may be allowed to be done without abandoning the said relief but amendment seeking for damages for breach of contract may be permitted. Relying upon the judgment of in the case of Smt. Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126; M/s Ganesh Tradng Co. v. Maoji Ram, AIR 1978 SC 484; Estrella 10 Rubber v. Dass Estate Pvt. Ltd., (2001) 8 SCC 97; Siddalingamma and Anr. V. Mamdha Shenoy, (2001) 8 SCC 561: 2002 SCFBRC 17; Jayanti Roy v. Dass Estate Pvt. Ltd., AIR 2002 SC 2394; 2002 SCFBRC 533; Sampat Kumar v. Ayyakannu & Ar., (2002) 7 SCC 559; Nagappa v. Gurudayal Singh v. Ors., (2003) 2 SCC 274; Hanuwant Singh Rawat v. M/s Rajputana Automobiles, Ajmer (1993) 1 WLC 625; M/s Modi Spinning and Weaving Mills Co. Ltd. (supra); Heeralal v. Kalyanmal & Ors., (1998) 1 SCC 278, the Division Bench of the Allahabad High Court has held that the amendment is not permissible if the very basic structure of the plaint if changed or the amendment itself is not bona fide and in case the facts were in the knowledge of the party at the time of presenting the pleadings, unless satisfactory explanation is furnished for not introducing those pleadings at the initial stage, the amendment should not be allowed. It was also submitted that the amendment should also not be permitted where it withdraws the admission of the party or the amendment sought is not necessary to determine the real controversy involved in the case.” It is settled law that the executing Court cannot be behind the decree. In the case of Food Corporation of India v. S.N. Nagarkar reported in AIR SCW 2002(1) page 466, it has been held as under:- “The execution application giving rise to the instant appeal was filed for implementing the order dated 6th May, 1994 and in such proceeding, it was not open to the appellant either to content that the judgment and order dated 6th May, 1994 was erroneous or that it required modification. The 11 judgment and order aforesaid having attained finality, has to be implemented without questioning its correctness.” The award having been modified by the reference court, it will be open to the executing court to pay the compensation in accordance with the order of reference dated 10.08.1990. It is also settled that only by way of amendment no relief is conferred or taken to have been granted. The court has to adjudicate on the basis of the decree passed and to execute the same in accordance with the terms of the decree or award. In the present case, since the award is already on the record, by way of amendment no benefit can be granted in excess of the award. The executing court is directed to ascertain the exact amount for which the Decree holder is entitled. In the present case, the executing court has rejected the amendment without verifying the true nature of the amount claimed by the Decree holder and the amount awarded under the reference. While disposing of the execution application, the executing court is directed to give effect to the award passed in reference and if it has brought to the notice of the executing court that the Decree holder has not properly given the figure in his execution application, he may direct the Decree holder to amend accordingly. It is well established that the technicalities of law should not come in the dispensation of justice. The Apex Court has held in (2001) 8 SCC 151, M.S. Grewal vs. Deep Chand Sood as under: “Law Courts will lose their efficacy if they cannot possibly respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of such technically 12 since technicality cannot and ought not to outweigh the course of justice.” Consequently, in view of the above, the Revision is dismissed at this stage. No as to costs. 25.11.2004 (RAJESH TANDON, J.) P.S.R.