State of Kerala represented by the Land Acquisition Officer, Ernakulam v Saramma Varghese Chettiyamkudiyil, Sheeja Saji, and Vinu Saji Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 6[TH] DAY OF SEPTEMBER 2021 / 15TH BHADRA, 1943** **RP NO. 857 OF 2019** **AGAINST THE JUDGMENT DATED 04.12.2017 IN OP(C) 3458/2017 OF HIGH** **COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER IN O.P(C):** **STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM.** **BY ADV Y.JAFAR KHAN(K/763/2007), SR. G.P** ## **RESPONDENTS/RESPONDENTS IN O.P(C):** **1 SARAMMA VARGHESE CHETTIYAMKUDIYIL, POTHANICAD P.O, MUVATTUPUZHA, (POWER OF ATTORNEY HOLDER OF SAJI VARGHESE, DECEASED CLAIMANT), (2ND PETITIONER IN LAR, SAJI VARGHESE, CHETTIYAMKUDIYIL, POTHANICAD P.O, MUVATTUPUZHA (DIED), (LEGAL HEIRS RESPONDENT 2 AND RESPONDENT 3), PIN-686 671.** - **2 SHEEJA SAJI, W/O. SAJI VARGHESE, CHETTIYAMKUDIYIL, PONTHANICAD P.O, MUVATTUPUZHA, PIN-686 671** - **3 VINU,** **SAJI VARGHESE, S/O SAJI VARGHESE, CHETTIYAMKUDIYIL, POTHANICAD P.O, MUVATTUPUZHA, PIN-686 671** **BY ADVS.** **SRI.R.RAJASEKHARAN PILLAI SRI.K.ABRAHAM LAL** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 06.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P No.857/2019 2 # **ALEXANDER THOMAS, J.** **========================================= Review Petition No.857 of 2019** [ _arising out of the judgment dated 04.12.2017 in O.P(C) No.3458/2017 of this Court_ ] **=========================================** Dated this the 06[th] day of September, 2021 ## **ORDER** The above review petition has been filed by the State of Kerala represented by the Land Acquisition Officer concerned (District Collector, Ernakulam), so as to challenge the impugned judgment dated 04.12.2017 rendered by this Court in O.P(C) No.3458/2017 filed by the State of Kerala. 2. Heard Sri.Y.Jafar Khan, learned Senior Government Pleader appearing for the review petitioner in the R.P/petitioner in the O.P(C) and Sri.R.Rajasekharan Pillai, learned counsel appearing for the respondents in the R.P/respondents in the O.P(C). 3. Ext.P-8 order dated 25.09.2017 was rendered by the Sub Court, Muvattupuzha (Land Acquisition Reference Court concerned), on the basis of the remit made by this Court as per Ext.P-7 judgment dated 30.01.2017 in O.P(C) No.2591/2016 filed by the State of Kerala before this Court under Article 227 of the Constitution of India. R.P No.857/2019 3 Ext.P-8 order dated 25.09.2017 rendered by the LAR Court in Execution Petition, E.P No.94/2013 in I.A No.1662/2012 in LAR No.313/1996, was challenged by the State of Kerala by filing the instant Original Petition (Civil), O.P(C) No.3458/2017. It is in the said O.P(C) No.3458/2017, that the impugned judgment has been rendered by this Court on 04.12.2017, which is sought to be challenged by the State of Kerala by filing the instant review petition. Only a brief reference to the highly necessary facts alone need be adverted to here, as the proceedings is in respect of a review petition arising out of a judgment of this Court rendered in exercise of the discretionary powers conferred under Article 227 of the Constitution of India. 4. Earlier, by Ext.P-4 order dated 09.04.2013 in I.A No.1662/ 2012 in LAR No.313/1996, the LAR Court had found that though the judgment debtor (State of Kerala) had filed a statement on 02.06.2011 showing that the respondent had deposited Rs.78,775/- on 07.02.2006, the said deposit of the amount was without notice to the claimant. Hence, the LAR Court has held that since there was no notice to the claimant about the deposit, the decree holders claimant could not withdraw the said amount and consequently that the amount became lapsed on 31.03.2009. Hence, the aforementioned I.A R.P No.857/2019 4 No.1662/2012 was filed by the decree holders to claim for interest lost on the amount of Rs.78,775/- with cost to the claimants. The LAR Court after hearing both sides categorically found in Ext.P-4 that the deposit of the above amount on 07.02.2006 was done by the judgment debtor without notice to the claimant and that the same would amount to flagrant violation of the mandatory provision contained in Order XXI Rule 1(2) of the CPC. Hence, the LAR Court by Ext.P-4 order dated 09.04.2013 had allowed the abovesaid plea in I.A No.1662/ 2012 for grant of the lost interest amount. 5. Being aggrieved by Ext.P-4 order dated 09.04.2013, the State of Kerala through the LAO concerned, had filed the supra mentioned O.P(C) No.2591/2016 before this Court. This Court as per Ext.P-7 judgment dated 30.01.2017 had finally disposed of O.P(C)No.2591/2016, finding that since it is admitted that no notice was served on the decree holders, it is settled law that cessation of interest takes place only from the date of notice of the service of deposit, in view of the decisions of the Apex Court in cases as in _**Mathunni Mathai** v._ _**Hindusthan Organic Chemicals Ltd.**_ [1993 (2) KLT 984]. Hence, this Court in Ext.P-7 judgment dated 30.01.2017 held that the only question to be determined is as to R.P No.857/2019 5 whether the judgment debtor had deposited the amount calculating interest subsequent to the deposit of the amount. The judgment debtor had contented before this Court that they had in fact paid interest covering the subsequent period also and Ext.P-5 referred to in Ext.P-7 judgment is stated to be their calculation statement. Hence, this Court while disposing of O.P(C) No.2591/2016, as per Ext.P-7 judgment dated 30.01.2017, has ordered that the court below shall re-consider the matter after adverting to the calculation statement made by the State as per Ext.P-5 therein and pass appropriate orders after hearing both sides. 6. Later, the LAR Court has passed the present impugned order at Ext.P-8 dated 25.09.2017. Therein it has been found as earlier that the amount of Rs.78,775/- was actually deposited by the judgment debtor only on 07.02.2006 and that too without interest and without notice to the decree holders and that hence, the decree holders could not withdraw the amount in time and that the amount became lapsed on 31.03.2009 [ _see internal page No.2 of Ext.P-8 order_ ]. It is on this ground, that the decree holders has filed I.A No.1662/2012 before the LAR Court claiming interest for the abovesaid period and the said I.A was allowed. The LAR Court again reiterated that in view of the dictum laid down by R.P No.857/2019 6 the Apex Court in decisions as in **Mathunni Mathai's case** supra [1993 (2) KLT 984], the claimant is entitled to get interest since no notice was issued to the claimant about the deposit. The LAR Court also found that it is the admitted fact that no notice was served on the decree holders regarding the deposit and hence, the decree holders is entitled to get interest, since notice was not issued to the decree holders/claimant. The LAR Court also found in page.2 of Ext.P-8 order that as per the record, the amount was brought over before the LAR Court only on 23.11.2011 and that the decree holders is entitled to get interest for the period from 08.02.2006 to 02.06.2011. On querying as to the sanctity of the date 02.06.2011 mentioned above, this Court is apprised by the learned Senior Government Pleader that it appears that the decree holders had got knowledge on 03.06.2011 about the further deposit of the amount concerned and that it is reliably learnt that the decree holders had subsequently withdrawn the amounts concerned. However, the LAR Court has further observed in page.2 of Ext.P-8 order that the judgment debtor has failed to prove that they have paid the interest and that they have also failed to prove that they have deposited the amount for the subsequent periods also. The relevant operative portion of Ext.P-8 order dated 25.09.2017 R.P No.857/2019 7 ## issued by the LAR Court, reads as follows : “ _............ Claimant is entitled to get interest if no notice issued to claimant about deposit. It is admitted fact that no notice was served on the decree holders regarding deposit. The DH is entitled to get interest if notice not issued to DH claimant. As per the record amount was brought before this court only on 23/11/11. So DH is entitled to get interest from 8/2/06 to 2/6/11. JD also failed to prove that he has paid the said interest. On the other hand JD failed to prove that they deposited the amount for the subsequent period also. Balance statement filed by JD is also silent about the interest of the said period. Whereas balance statement is only stated about the interest due to till deposit. In the above said IA 1662/12 also respondent note (sic) challenged the calculation of the interest sated (sic) by the petitioner. Whereas case of the respondent is the petitioner is not entitled to get interest subsequent the deposit.”_ 7. This Court in the impugned judgment rendered on 04.12.2017, has dismissed O.P(C) No.3458/2017 filed by the State of Kerala to challenge Ext.P-8 order. The operative portion of the reasonings of this Court is contained in paras 5 & 6 of the present impugned judgment dated 04.12.2017 in the above O.P, which read as follows : _“ 5. The court below has reiterated the admitted facts that no notice was served on the decree holders regarding the deposit. Therefore, the decree holders is entitled to get interest, if notice is not issued to the decree holders (claimant). As per the records, the amount was deposited before the court below only on 23.11.2011 and that the decree holders is entitled to get interest from 08.02.2006 onwards and that the judgment debtor (State) has failed to prove that they have paid the said interest to the decree holders (claimant). The judgment debtor failed to prove that they have deposited the amount to the subsequent period also. The Statement showing the balance amount, filed by the State, is silent about the payment of interest for the said period and the Statement only shows about the interest due_ R.P No.857/2019 8 _till the date of deposit. It is on this basis the court below has come to the considered conclusion that the decree holders is entitled to get the amount as claimed in the execution petition and the State was directed to pay the said amount with a finding that the calculation statement filed by the decree holders (claimant) is correct in respect of the period of interest due from the date of deposit till the amount came before the court in the Execution Petition._ _6. The aspect that no notice was served on the decree holders (claimant) has become a conclusive and final in the light of Ext.P4 judgment passed by this Court. It is also settled that the cessation of interest takes place only from the date of service of notice of the deposit as mentioned herein above. No factual details are given by the State to explain as to how the above said facts findings made by the court below that as per records the amount was deposited before the court below only on 23.11.2011, is wrong. Therefore, there is no point in entertaining this Original Petition.”_ 8. This Court has heard both sides _in extenso_ . At the outset, it has to be noted that Ext.P-3 order initially rendered by the LAR Court recording the stand of the judgment debtor about deposit of the amount and thus closing the Execution Petition, has been rendered as early as on 23.11.2011. It is thereafter, that Ext.P-4 order has been rendered by the LAR Court in I.A No.1662/2012 on 09.04.2013. The challenge as against Ext.P-4 order at the instance of the State of Kerala, has resulted in Ext.P-7 judgment rendered by this Court as early as on 30.01.2017 in O.P(C) No.2591/2016. It is thereafter, that the LAR Court has passed the present impugned Ext.P-8 order as early as on 25.09.2017, which has resulted in the present impugned judgment of this Court in O.P(C) No.3458/2017 rendered as early as on 04.12.2017. R.P No.857/2019 9 The present review petition has been filed before this Court on 16.08.2019 along with an application to condone the long delay of 572 days. The delay was condoned ultimately on 11.02.2020 with the condition that cost amount of Rs.4,000/- should be paid. Althroughout, this Court has not granted any stay in the present review petition. This Court was apprised that a close relative of the respondents herein was overseeing the conduct of the present litigation and that the said close relative has died during the pendency of this case and that now the respondents herein find it very difficult to co-ordinate steps in the litigative proceedings, which according to them has been unnecessarily prolonged at the instance of the State of Kerala. Be that as it may, based on the pleadings and materials on record, this Court has to necessarily hold that the findings and directions issued by this Court in the previous round of litigation at Ext.P-7 judgment dated 30.01.2017 in O.P(C) No.2591/2016 have become final and conclusive _inter-partes_ . It is the admitted case of the State of Kerala that Ext.P-7 judgment has not been challenged by them either by way of review or before the appellate superior court concerned. Therefore, the matter already finalized and concluded in terms of Ext.P-7 judgment cannot be re-agitated by them. The main finding made by the LAR Court in R.P No.857/2019 10 Ext.P-8 judgment which is in pursuance of Ext.P-7 judgment of this Court, is that the decree holders is entitled to get interest for the period from 08.02.2006 to 02.06.2011. The said finding cannot be assailed successfully by the State of Kerala, in view of the abovesaid factual position referred to hereinabove. It appears that the submissions of the State of Kerala imply as if, the due amounts were paid by them to the decree holders even prior to Ext.P-4 order dated 09.04.2013. This Court is not in a position to appreciate any such contentions for the simple reason that it is none other than the State of Kerala, who had chosen to challenge Ext.P-4 order before this Court, which resulted in Ext.P-7 judgment. This Court has to proceed on the premise that the directions and findings made by this Court in Ext.P-7 judgment dated 30.01.2017 have become final and conclusive _inter-partes_ . If that be so, there is no illegality or unreasonableness in the finding made by the LAR Court in Ext.P-8 order that the decree holders are entitled for interest for the period from 08.02.2006 to 02.06.2011, inasmuch as, the earlier deposit of the amount made on 07.02.2006 was without notice to the claimants and the said amount got lapsed on 31.03.2009. It appears that the implication of the submission of the State of Kerala is to the effect that the decree holderss became aware of the further R.P No.857/2019 11 deposit of the amount on 03.06.2011. Presumably on this, the LAR Court has made the specific finding in Ext.P-8 order that the entitlement of interest is for the period from 08.02.2006 (initial deposit of the amount without notice) to 02.06.2011. The abovesaid finding made by the LAR Court is legally correct and so no grounds for review are made out. Yet another submission has been made by the learned Senior Government Pleader on behalf of the State of Kerala, which implies as if, the abovesaid amount for interest for the period from 08.02.2006 to 02.06.2011, covered by Ext.P-8 order has already been paid by them and received by the decree holders. This Court need not get into the correctness or otherwise of such factual submission, which should have been made by the State of Kerala at the time when the present original petition was finally disposed of by this Court on 04.12.2017. However, it is made clear that if, as a matter of fact, the State has any such a contention that the amount covered by Ext.P-8 was for the period from 08.02.2006 to 02.06.2011, and the same has in fact been paid by them, etc., it is for them to convince the LAR Court about the said factual aspect and it is for the LAR Court to examine that factual issue as to whether the amount covered by Ext.P-8 order for the period from 08.02.2006 to 02.06.2011 has been already R.P No.857/2019 12 deposited by the State. To effectuate the said purpose, both sides have been given liberty to file statements regarding calculation and also about the details regarding the deposit of the amount covered for the period from 08.02.2006 to 02.06.2011 and it is for the LAR Court to hear both sides, without any further delay and to ascertain from the records as to whether the abovesaid factual submissions now canvassed by the learned Senior Government Pleader on behalf of the State of Kerala are factually correct. This Court is so ordering for the simple reason that all what has been decided by the LAR Court in Ext.P-8 order [which has been confirmed by the present impugned judgment in the O.P(C)], is that the decree holders are entitled for interest for the period from 08.02.2006 to 02.06.2011, etc. 9. The Registry will forward a copy of this order to the Sub Court, Muvattupuzha, which is the LAR Court concerned in relation to E.P No.94/2013 in I.A No.1662/2012 in LAR No.313/1996. No further directions and orders are called for in this Review Petition. With these observations and directions, the above Review Petition will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** vgd R.P No.857/2019 13 ## **APPENDIX OF RP 857/2019** ## **PETITIONER'S ANNEXURES** **ANNEXURE I TRUE COPY OF THE JUDGMENT IN PREM NATH KAPUR & ANOTHER VS. NATIONAL FERTILISERS CORPORATION OF INDIA LTD & OTHERS 1996 KHC 1460.** **ANNEXURE II TRUE COPY OF THE JUDGMENT IN GURPREET SINGH VS. UNION OF INDIA 2006 KHC 1608** **ANNEXURE III TRUE COPY OF THE JUDGMENT IN OP NO. 3429/2017**