Kerala State Electricity Board Ltd. v. Prakash s/o Damodaran; Vinod s/o Damodaran; State of Kerala

_**OP(C).No. 210/2020**_ 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944** **OP(C) NO. 210 OF 2020** **AGAINST THE ORDER/JUDGMENT IN LAR 5/1996 OF SUB COURT / COMMERCIAL** **COURT, THODUPUZHA** ## **PETITIONER/S:** KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS SECRETARY, VYDHYUDHIBHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004. BY ADVS. C.JOSEPH ANTONY SHRI. JOHN MANJOORAN ## **RESPONDENT/S:** 1 PRAKASH S/O. DAMODARAN, PALACKATHOTTIL HOSUE, CHATTUPARA KARA, MANNAMKANDAM VILLAGE, IDUKKI DISTRICT-685 561. 2 VINOD S/O. DAMODARAN, PALACKATHOTTIL HOSUE, CHATTUPARA KARA, MANNAMKANDAM VILLAGE, IDUKKI DISTRICT-685 561. 3 STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, IDUKKI, KUYILIMALA P.O., PYNAVU, IDUKKI DISTRICT-685 603. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH ## **OTHER PRESENT:** GP S.UNNIKRISHNAN THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 29.11.2021, THE COURT ON 19.05.2022 DELIVERED THE FOLLOWING: _**OP(C).No. 210/2020**_ 2 **V.G.ARUN, J. ----------------------------------------------O.P(C).No. 210 of 2020 ----------------------------------------------Dated this the 19[th] day of May, 2022** ## **JUDGMENT** The Government acquired 4.65 acres of land belonging to respondents 1 and 2 for establishing a 110 KV Sub Station by the Kerala State Electricity Board Limited (KSEBL). Advance possession of the land was taken on 27.3.1993 and notification under Section 4(1) of the Land Acquisition Act, 1894 was published on 6.10.1993. The Land Acquisition Officer fixed the land value at Rs.4,935/- per cent. On reference to the Sub Court, the land value was increased by Rs.2065/- per cent and thus the land value stood at Rs.7,000/- per cent. In appeal to this Court, the land value was further enhanced to Rs.9,500/- per cent and the interest fixed at 9% per annum for one year from 27.3.1993 and thereafter, @ 15% per annum till deposit. This court also fouind the claimants to be entitled for solatium and interest as per the principles laid down in _**Sundar v. Union of India**_ [2001 (3) KLT 489 (SC)]. 2. The compensation amount having thus attained finality, the respondents filed execution proceedings before the Sub Court. In the execution proceedings, the petitioner deposited Rs.2,79,800/- towards full and final settlement of the decree amount and filed a memo, requesting the _**OP(C).No. 210/2020**_ 3 executing court to close the E.P, recording full satisfaction of the decree. The Revenue Divisional Officer also filed a statement claiming that the entire compensation amount was given to the decree holder by way of cheque. Thereafter, the execution petition was dismissed as not pressed. 3. On dismissal of their execution petition, respondents 1 and 2 filed execution petition (E.P.No.58 of 2013) before the Sub Court. Therein a Commission was appointed to calculate the decree amount. On 2.6.2014 the Commissioner submitted a report stating that an amount of Rs.70,96,100.48 was due to the decree holder as on 5.6.2014. In Exhibit P5 order, the learned Sub Judge held that an amount of Rs.23,90,336.04 was outstanding to be paid to the decree holder. The petitioner challenged Exhibit P5 order in O.P(C).No.1353 of 2015. When that matter came up for hearing, both sides agreed that the impugned order can be set aside with liberty to file a fresh statement of accounts. Accordingly, Exhibit P6 judgment was rendered, setting aside the impugned order and were granting liberty to both sides to file fresh statements of accounts. The Sub Judge was directed to pass appropriate orders after taking into consideration the statements filed by the parties. 4. Accordingly, statements were filed by the decree holders as well as the judgment debtors. Further, the petitioner filed detailed objection to the statement filed by respondents 1 and 2 contending that in the light of the principles laid down in _**Gurpreet Singh v. Union of India**_ [2006 8 SCC _**OP(C).No. 210/2020**_ 4 457], payments made by the judgment debtor at the award stage, reference stage and the appellate stage should be reckoned separately. After considering the statements and objections, Exhibit P12 order was issued by the Sub Court, directing the petitioner to pay Rs.62,92,541/- towards the balance decree amount. 5. The petitioner challenged Exhibit P12 order in O.P.No.2743 of 2018 and by judgment dated 24.7.2019, the original petition was disposed of directing the court below to consider the statement and the objections filed by both sides afresh in the light of the law laid down by the Honourable Supreme Court in _**Gurpreet Singh**_ and _**Sundar.**_ In purported compliance of the direction, Exhibit P14 order was issued, finding shortfall in the amount legally due to the decree holders and finding the decree holders to be entitled to apply the general principles of appropriation, i.e., appropriation of amounts paid, first towards interest, then to costs and thereafter to principal. The decree holders and judgment debtors were directed to file fresh statements of accounts based on the said finding. Accordingly, respondents 1 and 2 filed Exhibit P15 calculation statement showing the balance amount as Rs.1,03,79,580/-. The petitioners also filed calculation statement showing that an excess amount of Rs.3,46,333/- had been paid to the decree holders. The Sub Court passed Exhibit P18 order, directing the petitioner to pay the sum of Rs.1,04,18,639.75, as claimed in the calculation statement filed by the decree holder and made part of the order. Aggrieved, this original _**OP(C).No. 210/2020**_ 5 petition is filed by the judgment debtor. 6. Senior Advocate Raju Joseph appearing for the KSEBL put forth elaborate arguments assailing the legality of Exhibit P18 order. The main ground of challenge is the complete absence of reasons in Exhibit P18. On merits, it is contended that the payment of Rs.5 lakhs made at the time of taking advance possession is not properly accounted by the judgment debtors. According to the Senior Counsel, the calculation statement, based on which Exhibit P18 order is passed, is prepared in total disregard to the dictum laid down in _**Gurpreet Singh’s case**_ . The same mistake was committed by the Court while passing Exhibit P14 order also. Hence, Exhibits P14 and P18 are liable to be set aside. It is submitted that, as per the dictum in _**Gurpreet Singh,**_ once the amount awarded by the Collector in terms of Section 11 read with Section 31 of the Land Acquisition Act is paid and notice given to the decree holder, no interest can thereafter be claimed on the amount deposited. It is contended that in the instant case, advance possession of the land was taken after paying an amount of Rs.5 lakhs and the entire balance amount of compensation was paid on the date of passing of the award itself. The claimant received that amount without objection and thereafter sought enhancement of compensation. In _**Gurpreet Singh**_ it is categorically held that on deposit by the Collector under Section 31 of the Act, the first stage comes to an end, subject to the right of the claimant to notice of the deposit and withdrawal or acceptance of the amount with or _**OP(C).No. 210/2020**_ 6 without protest. Contrary to that dictum, interest is reckoned continuously from the stage onwards. 7. It is contended that in Exhibit P14, the learned Sub Judge formulated and answered four questions. The conclusions arrived at are also contradictory to the findings in _**Gurpreet Singh**_ and _**Sundar**_ . 8. Advocate C.K.Vidyasagar, learned counsel for the respondents submitted that much water has flown after Exhibit P14 order and therefore, it is not open for the petitioner to assail the findings in Exhibit P14 at this belated point of time. Answering the contentions on merits, learned Counsel submitted that the payment of Rs.5 lakhs made at the time of taking advance possession has been correctly accounted, and the calculations were made in the manner prescribed in _**Gurpreet Singh**_ and _**Sundar.**_ On the other hand, the statement of accounts submitted by the petitioner is based on surmises and conjunctures. It is further contended that in Exhibit P14, the parties were called upon to file fresh statements following the procedure for appropriation prescribed in the order. Accordingly, the respondents had filed the calculation statement and being convinced of the authenticity of the statement, Exhibit P18 order was passed. As such, the impugned orders do not warrant interference in exercise of the power under Article 227 of the Constitution of India. 9. Having heard the learned counsel on both sides, I find substantial merit in the submission of the learned counsel for the respondent that, _**OP(C).No. 210/2020**_ 7 having suffered Exhibit P14 judgment and having failed to challenge that order, the petitioner is estopped from challenging Exhibit P14 along with Exhibit P18 consequential order. At the same time, there is merit in the contention of the learned Senior Counsel that Exhibit P18 is bad for complete absence of reasons. A perusal of the order shows that, other than blindly accepting the statement filed by the respondent, that too, without the respondents even arguing their case. As held in a series of decisions of the Apex Court including the decision in _**S.N.Mukherjee v. Union of India**_ [(1990) 4 SCC 594], except in cases where the requirement of hearing is dispensed with, expressly or by necessary implication, an authority exercising judicial or quasi judicial function is required to give reasons for its decisions. Exhibit P18 being bereft of any such reason, I am constrained to interfere with the order in exercise of the power under Article 227. As the Sub Court is best suited to decide the question regarding the amounts paid and the manner of appropriation, I refrain from indulging in such exercise. In the result, the original petition is allowed in part. Exhibit P18 order is set aside and the trial court directed to pass a reasoned order, after considering the statements and objections, if any filed by the parties. ## **Sd/-** ## **V.G.ARUN, JUDGE** _vgs_ _**OP(C).No. 210/2020**_ 8 ## **APPENDIX OF OP(C) 210/2020** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE COMMON JUDGMENT PASSED BY THIS| ||HONOURABLE COURT IN L.A.A. NO.704/2011 AND| ||L.A.A. NO.255/2003 DATED 6.11.2007.| |EXHIBIT P2|TRUE COPY OF THE MEMO FILED ON BEHALF OF THE| ||PETITIONER BEFORE THE SUB COURT, THODUPUZHA| ||DATED 29.11.2013.| |EXHIBIT P3|TRUE COPY OF THE AFFIDAVIT DATED BY THE REVENUE| ||DIVISIONAL OFFICER, DEVIKULAM.| |EXHIBIT P4|TRUE COPY OF THE E.P.NO.58 OF 2013 IN L.A.R| ||NO.5 OF 1996 FILED BY THE RESPONDENTS 1 AND 2| ||BEFORE THE SUB COURT, THODUPUZHA DATED| ||30.11.2013.| |EXHIBIT P5|TRUE COPY OF THE ORDER PASSED BY THE SUB COURT,| ||THODUPUZHA IN E.P.NO.58 OF 2013 IN L.A.R. NO.5| ||OF 1996 DATED 18.2.2015.| |EXHIBIT P6|TRUE COPY OF THE JUDGMENT IN OPC NO.1353 OF| ||2015 DATED 3.12.2015.| |EXHIBIT P7|TRUE COPY OF THE STATEMENT FILED BY RESPONDENTS| ||1 AND 2 IN EP NO.58 OF 2013 IN L.A.R. NO.5 OF| ||1996 BEFORE THE SUB COURT, THODUPUZHA DATED| ||18.2.2016.| |EXHIBIT P8|TRUE COPY OF THE STATEMENT FILED BEFORE TEH SUB| ||COURT, THODUPUZHA DATED 22.3.2016.| |EXHIBIT P9|TRUE COPY OF THE STATEMENT FILED BY RESPONDENTS| ||1 AND 2 IN E.P.NO.58 OF 2013 IN L.A.R.NO.5 OF| ||1996 BEFROE THE SUB COURT, THODUPUZHA DATED| ||31.10.2017.| |EXHIBIT P10|TRUE COPY OF THE STATEMENT FILED BY RESPONDENTS| ||1 AND 2 IN EP NO.58 OF 2013 IN L.A.R. NO.5 OF| ||1996 BEFORE THE SUB COURT, THODUPUZHA DATED| ||7.11.2017.| |EXHIBIT P11|TRUE COPY OF THE OBJECTION FILED BY THE| ||PETITIONER IN E.P.NO.58 OF 2013 IN L.A.R. NO.5| ||OF 1996 BEFORE THE SUB COURT, THODUPUZHA DATED| _**OP(C).No. 210/2020**_ 9 ||1.2.2018.| |---|---| |EXHIBIT P12|TRUE COPY OF THE ORDER OF THE LEARNED SUB JUDGE| ||IN EP NO.58 OF 2013 IN L.A.R. NO.5 OF 1996| ||BEFORE THE SUB COURT, THODUPUZHA DATED| ||13.7.2018.| |EXHIBIT P13|TRUE COPY OF THE JUDGMENT PASSED BY THIS| ||HONOURABLE COURT IN OPC NO.2743 OF 2018 DATED| ||24.7.2019.| |EXHIBIT P14|TRUE COPY OF THE ORDER PASSED BY THE SUB COURT,| ||THODUPUZHA IN EP NO.58/2013 IN LAR 5/1996 DATED| ||11.10.2019.| |EXHIBIT P15|TRUE COPY OF THE CALCULATION STATEMENT FILED BY| ||RESPONDENTS 1 AND 2 DATED 16.10.2019.| |EXHIBIT P16|TRUE COPY OF THE CALCULATION STATEMENT FLED BY| ||THE PETITIONER SHOWING EXCESS AMOUNT DATED| ||18.11.2016.| |EXHIBIT P17|TRUE COPY OF THE ARGUMENT NOTE SUBMITTED BY THE| ||PETITIONER DATED 26.11.2019.| |EXHIBIT P18|TRUE COPY OF THE ORDER IN E.P.NO.58 OF 2013 IN| ||L.A.R. NO.5 OF 1996 DATED 30.11.2019.|