Philip Mathai v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 ``` ``` OP(C) NO. 351 OF 2012 ``` ``` IN LAR 85/1986 OF PRINCIPAL SUB COURT / COMMERCIAL COURT, KOLLAM ``` ``` PETITIONER: ``` ``` PHILIP MATHAI AGED 74 YEARS ALUMMOOTTIL KIZAKKATHIL, VADAKKEMURI, PORUVAZHY NOW RESIDING AT 12-C, STAR PARADISE, CHERUPARAMBATHU ROAD, KADAVANTHARA, ERNAKULAM. ``` ``` BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR, KOLLAM 691 001. ``` ``` BY ADV GOVERNMENT PLEADER SYLAJA S.L. ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.351/2012 ``` ``` -:2:- ``` Dated this the 29[th] day of November, 2022 ## **J U D G M E N T** Aggrieved and displeased with Ext.P8 order passed in E.P.No.225/2007 in LAR No.85/1986 by the Court of the Principal Subordinate Judge, Kollam the decree holder has filed the original petition. The respondent/judgment debtor is the State of Kerala. 2. The facts leading to Ext.P8 order, in brief, are: - (i) The petitioner was the claimant in LAR No.85/1986 of the files of the above court. The reference was disposed of by the court below by Ext.P1 decree dated 08.04.1994. - (ii) The respondent challenged Ext P1 decree before this Court by filing L.A.A.No.344/1995. The petitioner filed his cross objection to the appeal, seeking for further enhancement of compensation. (iii)This Court disposed of the appeal and cross ``` O.P.(C)No.351/2012 ``` ## `-:3:-` ## objection by judgment dated 08.11.1998. - (iv) As the claim of the petitioner towards cost of construction was not considered by this Court, the petitioner filed R.P.No.354/2000. This Court by Ext.P2 decree disposed of the review petition. - (v)As the compensation award was not paid to the petitioner, he filed E.P.No.225/2007 before the Court below to realise an amount of Rs.12,38,283/-. - (vi)The petitioner has calculated the amount claimed in the execution petition as per the law laid down by the Honourable Supreme Court in **Gurpreet Singh v. Union of India** [2008 (1) KLJ 463]. - (vii)After the filing of Ext.P3 petition, a sum of Rs.64,502/- was deposited by the respondent on 13.11.2007 and Rs.8,41,503/- was deposited on 26.03.2010 towards payment of the decree debt. (viii)While making the above deposit an amount of ``` O.P.(C)No.351/2012 ``` ## `-:4:-` Rs.93,500/- was deducted towards income tax. Thus, the total amount deposited by the respondent was Rs.9,35,003/-. The said deposit is insufficient to discharge the amount in the execution petition. - (ix)The court below directed the petitioner to file balance statement. The counsel for the petitioner filed Ext.P4 balance statement. In Ext.P4 it was stated that an amount of Rs.64,502/- received on 13.11.2007 was omitted to be shown by a bonafide mistake. - (x)The court below on finding that the amount of Rs.64,502/- was not deducted held that there was an irregularity in calculation and accordingly closed the execution petition by Ext P7 order. - (xi)The petitioner filed O.P.(C)No.1155/2010 before this Court challenging Ext.P5 order. By Ext P6 judgment, this Court set aside Ext.P5 order and remanded the matter back to the execution court for fresh consideration. - (xii)Pursuant to Ext.P6 judgment, the petitioner ``` O.P.(C)No.351/2012 ``` ## `-:5:-` filed Ext.P7 statement before the court below. - (xiii)The court below, by the impugned Ext.P8 order, held that no amount is due to the petitioner from the respondent. - (xiv)Ext P8 is manifestly wrong, improper and irregular. Hence, the original petition. 3. The respondent has filed a counter affidavit, inter-alia, contending that, pursuant to the award passed by the reference court, the respondent filed LAA No.344/1995 before this Court and the petitioner filed a cross objection in the appeal. This Court, by interim order dated 18.10.1996, directed the State to deposit one half of the compensation amount within one month. Accordingly, the Land Acquisition Officer deducted an amount of Rs.1,52,451/- on 16.11.1996. Thereafter, this Court by judgment dated 08.01.1998 enhanced the value of land to Rs.4,800/- per cent, but deleted the interest on solatium. Consequentially, the Land Acquisition Officer deposited an amount of ``` O.P.(C)No.351/2012 ``` ``` -:6:- ``` Rs.7,39,971/- on 31.08.1998. There is no violation on the part of the respondents. The Land Acquisition Officer has deposited an amount of Rs.64,502/- as per the directions of this Court in R.P.No.364/2000. The petitioner filed E.P.No.225/2007 claiming balance amount as per the judgment in **Gurpreet Singh** (supra). The respondent has already deposited the amount as per the directions of this Court and the law laid down by the Honourable Supreme Court. The petitioner was not allotted Rs.29,691.65 towards the value of improvement and also was dis-entitled to solatium. Nonetheless, in the execution petition, the petitioner has claimed the above amounts also. The calculation of the petitioner is baseless and incorrect. The statement submitted by the respondent as Ext.R1(a) gives the correct calculation. The original petition is devoid of any merit and is to be dismissed. 4. Heard; Sri. Philip T. Varghese, the learned counsel appearing for the petitioner and the learned ``` O.P.(C)No.351/2012 ``` ``` -:7:- ``` Government Pleader appearing for the respondents. 5. The question is whether there is any illegality in Ext.P8 order. 6. Consequent to Ext P6 judgment passed by this Court, permitting both sides to file their statements, if any and if so advised, the petitioner filed Ext P7 balance statement before the court below. Admittedly, the respondent has not filed any statement. 7. The court below, after analysing the pleadings and materials on record, and after adverting to Ext P7 statement has passed the impugned order holding as follows: “4. As per the award in appeal in LAA 344/1995 land value has been enhanced to 287817# 60, 40% was awarded towards injurious affection which comes to Rs.71769=60, 40% was awarded for rendering land useless which comes to Rs. 20146-56, an amount of Rs.10,000/- was awarded as footbridge, an amount of Rs. 10,000/- was awarded as cost of construction of fencing. The above amounts are not in dispute. However as per order in the above appeal, it was ordered that an amount of Rs.29,691-65 awarded by the Land Acquisition Officer was ``` O.P.(C)No.351/2012 ``` ``` -:8:- ``` disallowed. The petitioner has duly deducted the above amount in the EP. However amount on two other heads awarded by the above officer has also to be deducted since it has been impliedly disallowed since the award of the above Officer and the award of the Reference Court has become merged in the award in appeal LAA 3441/95 of the Hon'ble High Court. Above aspect is clarified as follows: LA O has awarded amount for market value Rs. 14,499 = 20 value of improvements Rs.29,691 = 80 = Solatium % 15% Rs.6,628 65 ----------Total Rs.50,819 = 65 ====== 5. As per order in the above appeal value of improvements amounting to Rs.29,691-80 was disallowed and market value has been enhanced and solatium has been increased to 30%. As such the award of the LA O merges with the award in appeal and hence the whole amount awarded above by LA O is to be deduced. Otherwise petitioner would be claiming the above 15% solatium as well as the solatium of 3096 ordered in appeal making it 45% sqlaitum has been enhanced from the award of the LAO and a new market value place has taken its place as per order in appeal and petitioner is to claim the new enhanced market value as ordered in the appeal. Though it is mentioned in the order in appeal that value of improvements (amount of Rs.29691-80) is allowed, by merger of the award of LAO with the award in appeal the amount in respect of the other two heads gets merged and as such the amount mentioned under the other two heads also impliedly stands disallowed since petitioner is to claim the enhanced market value and the enhanced solatium as per the order in appeal. ``` O.P.(C)No.351/2012 ``` ``` -:9:- ``` 6. The petitioner has calculated the balance amount due to him without deducting the above three amounts and as such the whole calculation of interest on the compensation became wrong, The uculation statement produced by the respondent is correct. If the amount of interest is calculated after deducting the amounts mentioned above, Le Rs.50,819465, no amount becomes due to the petitioner In the result I find that no amount is due to the petitioner and that the EP. has been fully satisfied Accordingly this Execution petition is closed as satisfied. No costs. 8. The learned counsel appearing for the petitioner submits that the petitioner is entitled to the benefit of the law laid down in **Gurpreet Singh** (supra), and that the amount awarded by the Land Acquisition Officer cannot be deducted, instead has to be adjusted on the date the payment was made. Therefore, according to him, the impugned order is unsustainable. 9. The learned Government Pleader, on the other hand, based on the counter affidavit filed by the respondent along with the calculation statement marked as Ext R1(a) has contended that no amount is ``` O.P.(C)No.351/2012 ``` ``` -:10:- ``` payable to the petitioner. She submitted that the court below has rightly closed the execution petition recording full satisfaction. 10. On an appreciation of the rival contentions and the pleadings on record, I am of the definite view that even this Court had afforded an though opportunity to both parties to file their calculation statements before the court below, only the petitioner has made use of the opportunity. Therefore, it was not proper for the court below to have passed the impugned order without any contra calculation statement filed by the respondent. It is only now, in the original petition, the respondent has filed Ext R1(a). The amount claimed and the plea of discharge are disputed questions which need to be adjudicated by the court below, by permitting the parties to let in cogent evidence and calculation statements. 11. In the above legal and factual background, I ``` O.P.(C)No.351/2012 ``` ## `-:11:-` am of the firm view that Ext P8 order is to be set aside and the matter is to be re-considered by giving both sides full opportunity to establish their respective stands. In the result, in exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I dispose of the original petition as follows: - (i) Ext P8 order is set aside. - (ii) The parties are directed to appear before the court below on 19.12.2022. - (iii) The respondent may file their written objection to the execution petition, within one month from the date of appearance. - (iv) The petitioner and the respondent would be at liberty to file their respective calculation statements with respect to the amount payable in the execution petition. - (v) As the execution petition is of the year 2007, the Court of the Principal Subordinate Judge, ``` O.P.(C)No.351/2012 ``` ``` -:12:- ``` Kollam, is directed to consider and dispose of E.P.No.227/2007, in accordance with law, as expeditiously as possible. Sd/- ## **C.S.DIAS,JUDGE** rkc/DST/29.11.22 //True copy/ P.A.To Judge ``` O.P.(C)No.351/2012 ``` ``` -:13:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS EXHIBIT P1 ``` ``` TRUE COPY OF THE DECREE OF THE SUB COURT, KOLLAM IN LAR NO. 85/1986 DATED 8.4.1994. ``` - `EXHIBIT P2 TRUE COPY OF THE DECREE OF THIS HON'BLE COURT IN LAA NO. 344/1995 AND CROSS OBJECTION AS AMENDED BY R.P. NO. 354/2000 DATED 7.11.2000.` - `EXHIBIT P3 TRUE COPY OF E.P. NO. 225/2007 IN LAR NO. 85/1986 F THE SUB COURT, KOLLAM DATED 13.9.2007.` - `EXHIBIT P4 TRUE COPY OF BALANCE STATEMENT FILED BY THE PETITIONER IN THE SUB COURT, KOLLAM IN E.P. NO. 225/2007 IN AR NO. 85/1986 DATED NIL.` - `EXHIBIT P5 TRUE COPY OF THE ORDER OF THE PRINCIPAL SUB COURT, KOLLAM IN E.P. NO. 225/2007 IN LAR NO. 85/1986 DATED 6.9.2010.` - `EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P. (C) NO. 1155/2010 DATED 14.12.2010.` - `EXHIBIT P7 TRUE COPY OF THE CALCULATION STATEMENT FILED BY THE PETITIONER IN THE SUB COURT, KOLLAM IN LAR NO. 85/1986 IN P. NO. 225/1007 DATED 11.2.2011.` - `EXHIBIT P8 TRUE COPY OF THE ORDER OF THE PRINCIPAL SUB COURT, KOLLAM IN E.P. NO. 225/2007 IN LAR NO. 85/1986 DATED 28.7.2011.` ``` RESPONDENT EXHIBITS ``` ``` EXHIBIT R1 ATRUE COPY OF THE STATEMENT FILED BY THE RESPONDENT IN THE EXECUTION COURT. ```