Chacko Thomas and others v. State of Kerala and Registrar, Mahatma Gandhi University

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **FRIDAY, THE 24TH DAY OF MAY 2013/3RD JYAISHTA 1935** **CRP.No. 217 of 2012 ()** **----------------------AGAINT THE ORDER IN EP. NO.82/98 IN LAR 23/1990 of PRL.SUB COURT,KOTTAYAM DATED 16-12-2011** **------** ## **REVISION PETITIONERS/PETITIONER/DECREE HOLDER:** **---------------------------------------------** ## **1. CHACKO THOMAS** - **SON OF THOMAS, PANAMTHANATH HOUSE, ATHIRAMPUZHA NOW RESIDING AT PANAMTHANATH, ANARUNCHAN KARA HOSDURG TALUK, KASARGODU DISTRICT.** ## **2. SEBASTIAN THOMAS,** - **SON OF THOMAS, PANAMTHANATH HOUSE, ATHIRAMPUZHA NOW RESIDING AT PANAMTHANATH, ANARUNCHAN KARA HOSDURG TALUK, KASARGODU DISTRICT.** ## **3. JOSEPH,** - **S/O.THOMAS, PANAMTHANATH HOUSE, ATHIRAMPUZHA NOW RESIDING AT PANAMTHANATH, ANARUNCHAN KARA HOSDURG TALUK, KASARGODU DISTRICT.** **BY ADV. SRI.JOHN JOSEPH VETTIKAD** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **-------------------------------** **1. STATE OF KERALA** - **REPRESENTED BY DISTRICT COLLECTOR, KOTTAYAM.** **2. THE REGISTRAR,** - **MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, ATHIRAMPUZHA.** **R1 BY SENIOR GOVERNMENT PLEADER SMT.LILLY LESLIE R2 BY ADVS. SRI.VARUGHESE M.EASO, SC,** **MAHATMA GANDHI UNIVERSITY SRI.VIVEK VARGHESE P.J., SC,** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24-05-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BP** ## **P.N.RAVINDRAN, J.** ## **---------------------------** ## **C.R.P. No.217 OF 2012** ## **-------------------------Dated this the 24[th] day of May, 2013** ## **O R D E R** In this civil revision petition filed under section 115 of the Code of Civil Procedure, the petitioners challenge the order dated 16.12.2011 passed by the Court of the Principal Subordinate Judge, Kottayam in E.P.No.82 of 1998 in L.A.R.No.23 of 1990. By that order, the court below closed the execution petition filed by the predecessor-in-interest of the petitioners, after recording full satisfaction of the decree in L.A.R.No.23 of 1990. The brief facts of the case are as follows: 2. A parcel of land belonging to the father of the petitioners was acquired pursuant to a notification dated 21.5.1985 issued under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act for short). An award was passed on 7.5.1988. After the land value awarded by the Land Acquisition Officer was paid, possession of the land was taken over on 2.11.1989. Aggrieved by the quantum of compensation awarded by the Land Acquisition Officer, the father of the petitioners sought a reference to the civil court. A reference was accordingly made to the Court of the Subordinate Judge of Kottayam, where it was taken on file and CRP No.217/2012 2 numbered as L.A.R.No.23 of 1990. By judgment delivered on 18.1.1996 the reference court enhanced the land value to Rs.2,450/per cent (Rs.6,052/- per are). The State of Kerala challenged the decree and judgment in L.A.R.No.23 of 1990 by filing L.A.A.No.847 of 1996 in this Court. The predecessor-in-interest of the petitioners filed a memorandum of cross-objections seeking further enhancement of land value. He passed away thereafter and thereupon, the petitioners herein were impleaded as additional respondents 2 to 4 in L.A.A.No.847 of 1996. By judgment delivered on 2.4.2003, a learned single Judge of this Court dismissed L.A.A.No.847 of 1996 filed by the State of Kerala. The memorandum of cross-objections was allowed, enhancing the land value to Rs.2,975/- per cent (Rs.7,348/- per are). This Court held that the petitioners herein are entitled to interest on the solatium also. The judgment of this Court in L.A.A.No.847 of ## 1996 is extracted below in full: “ _41.56 Ares of dry land comprised in Sy.Nos.789/2, 789/3, 790/8 and 793/1 of Athirampuzha village was acquired for the M.G.University as per the notification dated 21.5.1985 issued under Section 4(1) of the Land Acquisition Act. The Land Acquisition Officer awarded land value at the rate of Rs.3,705/per Are. The reference court enhanced the land value to Rs.2,450/- per cent. The State has preferred this appeal contending that the enhancement of land value is exorbitant. The claimants have preferred memorandum of cross objection contending that the enhancement of land value is insufficient._ _2. The evidence available before the lower court was Exts.A1 to A3, R1, R2 and the testimony of AW1. The lower court relied upon Ext.A3 judgment in LAR 135/89 passed by the same court on 1.10.93 to enhance the land value in this case. Though_ CRP No.217/2012 3 _the lower court found that the property involved in Ext.A3 judgment is comprised in Sy.No.790 of the same village and that property is close to the property acquired in this case, by finding that Ext.A3 property has got road frontage and the acquired property in this case does not have road frontage though it has got road access, deducted 30% from Rs.3500/- awarded in Ext.A3 to fix the land value at Rs.2,450/- per cent in this case._ _3. The Govt. Pleader submitted that the lower court is not justified in awarding land value at Rs.2,450/- per cent for the acquired property which does not have road frontage while land value of Rs.3,500/- per cent is awarded to the property comprised in Ext.A3 which has got road frontage._ _4. On the other hand, the counsel for the respondents submitted that in spite of the fact that Aw1 has deposed that there is a road having width of 8 ft. from the Panchayat road to the property acquired in this case, which is only about 50 metres away from the Panchayat road, the lower court discarded that evidence which is not even controverted by the State by adducing contra evidence. According to him, the land value as in Ext.A3 should have been granted to the respondents claimants and the lower court is not justified in reducing the land value awarded as per Ext.A3._ _5. It has to be noted that while the property comprised in Ext.A3 has got road frontage, the property acquired in this case does not have road frontage. Even according to the respondents - claimants, the acquired property has got only road access to the Panchayat road by a mud road. Therefore, it cannot be contended that the acquired property is of same importance and potentiality with the property comprised in Ext.A3. But considering the fact that the acquired property has got road access through the mud road to a small extent, the lower court is not justified in finding that the acquired property has no road access and thereby reducing the compensation by 30% from what is awarded as per Ext.A3. I find a reduction of 15% out of the land value awarded in Ext.A3 judgment would have been just and proper in this case. Therefore, Rs.525/- will be the proper reduction in land value in this case._ _6. Hence the appeal preferred by the State is dismissed and the memorandum of cross objection filed by the respondents is allowed by modifying the judgment passed by the lower court and enhancing the land value to Rs.2,975/- per cent._ _It is submitted by the counsel for the respondents that the lower court has not awarded interest on solatium. It is now well settled that solatium forms part of the total compensation awarded for acquisition of land and the same carries interest and the respondents are entitled to interest on solatium also.”_ 3. After the reference court enhanced the land value, the CRP No.217/2012 4 predecessor-in-interest of the petitioners filed E.P.No.82 of 1998 in L.A.R.No.23 of 1990. It was while the aforesaid petition was pending that this Court enhanced the land value further. While L.A.A.No.847 of 1996 was pending in this Court, the first respondent deposited the sum of Rs.1,68,812/- in the execution court on 16.7.2002. Later, on 22.2.2005, the sum of Rs.3,86,295/- was deposited. After the deposits were made, the petitioners filed a statement dated 14.12.2011 wherein after giving credit to the remittances made, they claimed that the sum of Rs.1,83,588/- is due from the judgment debtor. The judgment debtor filed a statement of accounts dated 9.11.2012 contending that no further amount is payable. The execution court after hearing both sides held that the statement filed by the petitioners cannot be accepted as it is not in consonance with the decree in L.A.R.No.23 of 1990 and the decision of the Apex Court in **Gurupreet Singh v. Union of India** (2006 (8) SCC 457). E.P.No.82 of 1998 was accordingly closed, recording full satisfaction of the decree. Hence this civil revision petition. 5. I heard Sri.John Joseph Vettikad, learned counsel appearing for the petitioners, Smt.Lilly Leslie, learned Government Pleader appearing for the State of Kerala and Sri.Varughese M.Easo, learned standing counsel appearing for the Mahatma Gandhi University. I have CRP No.217/2012 5 also gone through the pleadings and the materials on record. Sri.John Joseph Vettikad, learned counsel appearing for the petitioners contended that this Court had while dismissing L.A.A.No.847 of 1996 filed by the State of Kerala, allowed the memorandum of crossobjections, further enhanced the land value and also held that the claimants will be entitled to interest on the solatium and therefore, the execution court erred in holding that the petitioners are entitled to interest on solatium only with effect from 19.9.2001, the date on which the decision of the Apex Court in **Sunder v. Union of India** (2001 (7) SCC 211) was rendered. The learned counsel for the petitioners contended relying on the decision of the Apex Court in **Sunder v. Union of India** (2001 (7) SCC 211) that on the terms of the decree passed by this Court in the memorandum of crossobjections in L.A.A.No.847 of 1996, the petitioners are entitled to interest on solatium as well and therefore, the impugned order is liable to be set aside. The learned counsel for the petitioners also contended that the manner and method of appropriation is not in accordance with the principles laid down by the Apex Court in **Gurupreet Singh v. Union of India** (2006 (8) SCC 457), that the petitioners are not liable to pay income tax and therefore, the judgment debtor could not have deducted the sum of Rs.34,977/- towards income tax liability. Per CRP No.217/2012 6 contra, the learned Government Pleader appearing for the State of Kerala and the learned standing counsel appearing for the Mahatma Gandhi University contended that the petitioners are entitled to interest on solatium only from the date of the decision of the Apex Court in **Sunder v. Union of India** (2001 (7) SCC 211), that the method of appropriation is also in order and therefore, the order passed by the execution court does not warrant interference. 6. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. The Land Acquisition Officer awarded land value at the rate of Rs.3,705/- per are for 41.56 ares of dry land situate in Sy.Nos.789/2, 789/3, 790/8 and 793/1 of Athirampuzha Village. The reference court enhanced the land value to Rs.2,450/per cent (Rs.6,052/- per are). The decision of the reference court was rendered on 18.1.1996, prior to the decision of the Apex Court in **Sunder v. Union of India** (2001 (7) SCC 211) wherein a constitution bench of the Apex Court held that land owners are entitled to interest under section 34 of the Land Acquisition Act, 1894 on the solatium component as well. Aggrieved by the enhancement of land value by the reference court, the State of Kerala filed L.A.A.No.847 of 1996 in this Court. The predecessor-in-interest of the petitioners filed a CRP No.217/2012 7 memorandum of cross-objections seeking further enhancement of land value and also interest on solatium. The appeal filed by the State of Kerala was dismissed, the memorandum of cross-objections was allowed and the land value was enhanced to Rs.2,975/- per cent (Rs.7,348/- per are). This Court also held that the claimants will be entitled to interest on the solatium meaning thereby the petitioners will be entitled to interest on the solatium calculated on the enhanced land value applying section 23(2) of the Act. It is evident from the decree and judgment in L.A.A.No.847 of 1996 and the memorandum of cross objections therein that the petitioners herein/the claimants, are entitled to interest on the solatium, which was specifically awarded by this Court. In such circumstances, I am of the opinion that the execution court erred in holding that the petitioners are entitled to interest on the solatium only from 19.9.2001, the date on which the decision of the Apex Court in **Sunder v. Union of India** (2001 (7) SCC 211) was rendered. It is evident from the decision of the Apex Court in **Gurupreet Singh v. Union of India** (2006 (8) SCC 457), especially paragraph 54 thereof, that it is only in cases where the reference court or the appellate court does not specifically award interest on solatium or in cases where the claim had been made and rejected either expressly or impliedly by the reference court or the CRP No.217/2012 8 appellate court, that a claim for interest on solatium cannot be entertained. It was held that in cases where interest on compensation alone is awarded, the entitlement of the claimants to claim interest on solatium is confined to the period commencing from 19.9.2001, the date on which **Sunder v. Union of India** (2001 (7) SCC 211) was decided. In the instant case, the appellate court namely this Court had modified the judgment and decree of the reference court by allowing the memorandum of cross-objections filed by the predecessor-ininterest of the petitioners and enhanced the land value and also held that the claimants will be entitled to interest on solatium. Solatium has necessarily to be computed on the basis of the enhanced land value awarded by this Court. The petitioners are therefore entitled in law to interest on the enhanced land value awarded by the reference court/this court under section 23(1)(a) of the Act and on solatium under section 23(2) of the Act, from the date on which possession of the land was taken over, at the rate stipulated in section 34 of the Act. The order passed by the execution court cannot therefore be sustained. I accordingly allow this civil revision petition, set aside the order dated 16.12.2011 passed by the Court of the Principal Subordinate Judge of Kottayam in E.P.No.82 of 1998 in L.A.R.No.23 of CRP No.217/2012 9 1990, restore the execution petition to file and direct the execution court to dispose of the execution petition afresh in the light of the observations and findings herein. Having regard to the fact that the execution petition was filed in the year 1998 and nearly 10 years have passed after this Court disposed of L.A.A.No.847 of 1996, I direct the execution court to pass revised orders expeditiously and in any event within four months from the date on which the petitioners produce a certified copy of this judgment. **P.N.RAVINDRAN,** **(JUDGE)** vps CRP No.217/2012 10 CRP No.217/2012 11