Abraham Isaac v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938** **OP(C).No. 2655 of 2016 (O) ---------------------------** ## **EP.NO.180/2005 OF SUB COURT, MAVELIKKARA** ## **....** **PETITIONER/2ND DECREE HOLDER:** **-----------------------------** **ABRAHAM ISSAC, S/O. ABRAHAM JOHN, THUNDUSHANKARATHIL, PALAMEL VILLAGE, MAVELIKARA-690 504.** ## **BY ADVS.SRI.RINNY STEPHEN CHAMAPARAMPIL SMT.ASHA ELIZABETH MATHEW** **RESPONDENTS/JUDGMENT DEBTOR & DECREE HOLDERS 3 TO 5:** **----------------------------------------------------** ## **1. THE STATE OF KERALA,** **REP. BY THE DISTRICT COLLECTOR, COLLECTORATE, ALAPPUZHA P.O. - 688 001.** **2. ABRAHAM SAMUEL,** - **S/O. ABRAHAM JOHN, THUNDUSHANKARATHIL, PALAMEL VILLAGE, MAVELIKARA-690 504.** **3. LEELAMMA JOHN,** - **W/O. ABRAHAM JOHN, THUNDUSHANKARATHIL, PALAMEL VILLAGE, MAVELIKARA-690 504.** **4. BEENA JOHN, D/O. ABRAHAM JOHN, THUNDUSHANKARATHIL, PALAMEL VILLAGE, MAVELIKARA-690 504.** **R1 BY GOVERNMENT PLEADER SRI.M.I.JOHNSON** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **OP(C).No. 2655 of 2016 (O) --------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 A TRUE COPY OF THE AWARD PASSED ON 27-03-1992 BY THE SUB COURT MAVELIKKARA IN LAR NO. 75/88.** **EXHIBIT P2 A TRUE COPY OF THE EXECUTION PETITION FILED AS E.P.NO. 180/2005 OF THE SUB COURT MAVELIKARA.** **EXHIBIT P3 A TRUE COPY OF BALANCE STATEMENT DATED 31-8-2013 FILED BY THE DECREE HOLDERS IN EP NO.18/2005.** **EXHIBIT P4 A TRUE COPY OF OBJECTION TO EXHIBIT P3 BALANCE STATEMENT FILED BY THE FIRST RESPONDENT IN EP NO. 180/2005.** **EXHIBIT P5 A TRUE COPY OF THE JUDGMENT DATED 27-8-2014 OF THIS HON'BLE COURT IN OPC 1292/2014.** - **EXHIBIT P6 A TRUE COPY OF THE ORDER DATED 25-3-2014 IN E.P.NO.18/2005 OF THE SUB COURT, MAVELIKARA.** **EXHIBIT P7 A TRUE COPY OF E.A.442/2014 IN E.P.NO. 180/2005 OF THE SUB COURT MAVELIKARA.** **EXHIBIT P8 A TRUE COPY OF THE ORDER DATED 31-3-2016 IN E.A.NO.442/2014 IN E.P.NO.180/2005 IN L.A.R. 75/1988 OF THE SUB COURT MAVELIKKARA.** **RESPONDENT(S)' EXHIBITS:** **------------------------** ## **NIL** ## **//TRUE COPY//** **P.S.TO JUDGE** **Msv/** ## **K.RAMAKRISHNAN, J.** ---------------------------------------------- ## **O.P.(C)No.2655 of 2016** ------------------------------------------------Dated this the 27[th ] day of October, 2016 ## **JUDGMENT** This petition has been filed by the petitioner, who is the 2[nd] decree holder challenging Exts.P6 and P8 orders passed by the court below under Article 227 of the Constitution of India. 2. The property belonging to the predecessor of the petitioner and respondents 2 to 4 was acquired for a public purpose and an award has been passed by the authorities under the provisions of the Land Acquisition Act. Dissatisfied with the quantum of compensation awarded, on the basis of an application filed by the petitioner and others, the matter was referred to Civil Court under Section 18 of the Land Acquisition Act for considering the question of enhanced compensation claimed by the claimants and after reference it was numbered as LAR 75/1988 before the Sub Court, Mavelikkara. The reference court, after appreciation of evidence, enhanced the compensation payable and directed the first respondent/State to pay the amount by Ext.P1 award. In the meantime, an amount of Rs.44,832/- was deposited by the State on 12.11.1996. Since no further amount was paid in satisfaction of Ext.P1 award. After the award was passed, the original claimant died and the 1[st] petitioner along with respondents 2 to 4 as legal heir of the original claimant filed 2 ## _**O.P.(C)No.2655 of 2016**_ Ext.P2 execution petition for realisation of the balance amount, after deducting the amount of Rs.44,832/- already deposited by the State. Since there was some dispute regarding the amount payable, the decree holder filed Ext.P3 calculation statement stating that an amount of Rs.2,67,494.50 was due as on 31.08.2013. 3. Learned Government Pleader on behalf of the State filed Ext.P4 calculation statement stating that, according to them, an amount of Rs.1,01,148.24 alone was due. Since the first respondent apprehended that the execution court will not properly appreciate the mode of appropriation of the amount already deposited and assess the actual amount payable, the present petitioner filed O.P.(C)1292/2014 before this court and this court by Ext.P5 judgment disposed of the same, directing the execution court to consider the amount payable taking into consideration the principle laid down in the decision reported in _**Mooney v. State of Kerala**_ (2014 (2) KLT 961) and after ascertaining the amount and after payment of that amount record full satisfaction of the decree. Thereafter, the first respondent State has deposited the amount as per their calculation statement and without considering the question as to whether the award has been fully satisfied or not, since there was no representation on the part of the _**O.P.(C)No.2655 of 2016**_ 3 decree holder on the date on which the case was posted to 25.03.2014, the court below recorded full satisfaction on the basis of the amount deposited by the State and closed the execution petition. The petitioner filed Ext.P7 application to review the order along with delay condonation application and that petition was dismissed by the court below as per Ext.P8 order. These orders are being challenged by the petitioner by filing this petition. Since respondents 2 to 4 are the legal representatives of the original claimant, namely Abraham John along with the petitioner, the execution petition was filed by them jointly, this court feels that notice to respondents 2 to 4 can be dispensed with. 4. Heard Sri. Renny Stephen Chamaparambil, counsel appearing for the petitioner and Sri.M.I.Johnson, senior Government Pleader appearing for the first respondent. 5. The counsel for the petitioner submitted that, the court below has not considered the amount payable on the basis of the directions given in Ext.P5 judgment and simply accepted the amount calculated by the State and closed the execution petition. When this was sought to be reviewed, that was also dismissed by the court below, which is not correct. _**O.P.(C)No.2655 of 2016**_ 4 6. On the other hand, the learned Government Pleader submitted that, the mode of appreciation will have to be considered by the court below and he had no objection in allowing the petition and directing the execution court to consider the amount payable, after giving opportunity to both the parties to substantiate their claim in accordance with law. 7. It is an admitted fact that an award has been passed enhancing compensation for the land acquired belonging to one Abraham John, the predecessor of the petitioner and respondents 2 to 4 as per Ext.P1 award in LAR 75/1988. It is also not in dispute that an amount of Rs.44,832/- was deposited by the State on 7.11.1986 and that amount was appropriated by the claimants as well. In the meantime original claimant died and since the State did not pay the balance amount, his legal heirs, namely the petitioner and respondents 2 to 4 filed Ext.P2 execution petition as EP 180/20105 before Sub Court, Mavelikkara for realisation of the balance amount. They filed Ext.P3 calculation statement calculating the amount payable as on 31.08.2013 as Rs.2,67,494/-. The State filed Ext.P4 calculation statement and according to them the amount due is only 1,01,148.24. Since the decree holder apprehended that the court below is likely to _**O.P.(C)No.2655 of 2016**_ 5 accept Ext.P4 without conducting any proper enquiry regarding the mode of appropriation of the amount already deposited, they approached this court by filing O.P(C).1292/2014 and this court by Ext.P5 judgment dated 27.8.2014, directed the court below to consider the question of appropriation of the amount already deposited as provided in _**Mooney v. State of Kerala**_ (2014 (2) KLT 961). But it is seen from Ext.P6 impugned order that, there is nothing mentioned in the order as to whether the court below had applied its mind and came to a conclusion as to whether the amount mentioned in Ext.P4 is the amount due and no speaking order has been passed as to how the court below was satisfied regarding the manner of appropriation made and how the calculation statement by the State is proper or not and how the calculation statement given by the petitioner is not correct. When this was sought to be reviewed by filing Ext.P7 application after condoning the delay as EA 442/2014, the court below dismissed the application by Ext.P8 order, stating that the EP was not dismissed for default, but it was closed as the decree was satisfied. It may be mentioned here that there is some dispute regarding the manner in which the appropriation was made and the calculation done. The impugned Ext.P6 order do not reflect as to whether the principle laid _**O.P.(C)No.2655 of 2016**_ 6 down in the decision reported in _**Mooney v. State of Kerala**_ (2014 (2) KLT 961) has been considered or not and only after consideration of the same, came to the conclusion that the amount calculated by the State is correct and then recorded satisfaction, which was directed to be done as per Ext.P5 judgment. So under such circumstances, this court feels that the order passed by the court below namely, Exts.P6 and P8 have to be set aside and the matter has to be remitted to the court below for fresh disposal in accordance with law. So the petition is allowed and Ext.P6 order passed by the court below recording satisfaction of the matter and Ext.P8 order dismissing the application for review are set aside and remitted to the court below for fresh disposal in accordance with law. Both the decree holder and State are permitted to file their fresh calculation statements and on the basis of the calculation statements and after hearing both sides, court below is directed to consider the amount payable, whether the amount already deposited by the State will satisfy the award amount after applying the principle laid down in the decision reported in _**Mooney v. State of Kerala**_ (2014 (2) KLT 961) and then pass appropriate orders. If the court is satisfied that the amount deposited by the State is sufficient to satisfy the award, then record satisfaction 7 ## _**O.P.(C)No.2655 of 2016**_ or otherwise assess the balance amount if any payable and then give opportunity to the State to deposit the amount so found to be payable. If it is found to be due, then on deposit of that amount, the court is satisfied that, that will satisfy the award and then close the execution petition as satisfied as directed in Ext.P5 judgment namely O.P.(C) 1292/2014 dated 27.08.2014. With the above direction and observation, the petition is disposed of. Registry is directed to communicate this judgment to the court below at the earliest. _Sd/-_ ## **(K. Ramakrishnan, Judge)** //True Copy// P.A. to Judge ss