State of Kerala v. K.V. Thomas, K.V. Isaac, K.V. Jacob, and K.V. Johny

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 1ST DAY OF FEBRUARY 2016 / 12TH MAGHA, 1937 **LA.App..No. 1223 of 2002** AGAINST THE JUDGMENT AND DECREE IN LAR 393/1997 OF THE COURT OF ADDITIONAL SUB JUDGE, NORTH PARAVUR DATED 20-01-2001 ## **APPELLANT** /RESPONDENT STATE OF KERALA BY GOVERNMENT PLEADER SRI.K.K.SAIDHALAVI ## **RESPONDENTS** /CLAIMANTS: 1. K.V.THOMAS, RESIDING AT KOORAN HOUSE AVANAMCODE. 2. K.V.ISSAC, RESIDING AT KOORAN HOUSE, AVANAMCODE 3. K.V.JACOB, RESIDING AT KOORAN HOUSE, - AVANAMCODE. 4. K.V.JOHNY, RESIDING AT KOORAN HOUSE, AVANAMCODE R1 TO 4 BY ADV. SRI.P.M.POULOSE THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2016, ALONG WITH L.A.A.NO.529 OF 2004, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------------------- L.A.A.Nos.1223 of 2002 & 529 of 2004 -------------------------------------------Dated 1[st] February, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from the common judgment and decree in LAR.No.393 of 1997 of the Additional Sub Court, North Paravur. The latter appeal was already admitted by this Court and the former appeal virtually comes up for admission. Therefore, they were heard jointly and are being disposed of by this common judgment. A total extent of 16.97 Ares of land comprised in Survey No.552 of Nedumbassery Village was acquired from the claimants in LAR.No.393 of 1997 with four separate residential buildings thereon for the purpose of construction of a runway for Kochi International Airport as per notification dated 24.12.1993. The Land Acquisition Officer fixed the land value as 7,413/- per Are. In his award the Land Acquisition₹ Officer assessed the value of the residential buildings situated thereon as ₹1,44,527/- and awarded a total compensation of 1,800/- for the₹ improvements thereon. As per the award in LAR No.393 of 1997 the reference court enhanced the land value fixed by the Land Acquisition Officer by 96% and the value of the buildings thereon by 30%, but L.A.A.Nos.1223/2002 & 529/2004 2 declined enhancement as regards the improvements. The former appeal has been preferred by the State, the acquisition authority contending that the land value as also the value of the buildings thereon, were enhanced exorbitantly by the reference court and seeking to slash the enhancement thus effected. The latter appeal has been preferred by one of the claimants in LAR.No.393 of 1997 seeking further enhancement as regards the value of the buildings in the acquired property contending that the value of the buildings thereon was not properly assessed. 2. We have heard Sri.Said Alavi, the learned Senor Government Pleader appearing for the appellant in L.A.A.No.1223 of 2002 and Sri.P.M.Paulson, the learned counsel appearing for the appellant in L.A.A.No.529 of 2004 as also Sri.M.N.Sugunapalan, the learned Senior Counsel appearing for the Kochi International Air Port Society, the 2[nd] respondent in L.A..A.No.529 of 2004. 3. From the arguments advanced by both sides it is evident that in the former appeal the acquisition authority is challenging the fixation of value of the buildings in the aforementioned acquired property as also the enhancement of the land value by the reference court on the ground that the enhancement by the reference court over and above the land value fixed by the Land Acquisition Officer is L.A.A.Nos.1223/2002 & 529/2004 3 exorbitant. At the same time, in the latter appeal, the contention is that the reference court fixed the value of the residential buildings thereon at a lower rate and virtually, the appellant therein seeks for enhancement of the value of the buildings which were there in the acquired property. In this context, it is to be noted that as per the common judgment the reference court virtually effected enhancement of the land value fixed by the Land Acquisition Officer by 96%. As regards the value of the buildings thereon, it was enhanced by 30%. As per the impugned award no enhancement was made in respect of the compensation awarded by the Land Acquisition Officer for the improvements. The learned Senior counsel appearing for Kochi International Airport Society took up a contention that these appeals merit no consideration in view of the indisputable fact that earlier as against the very same judgment and decree the requisitioning authority had approached this Court by filing L.A.A.No.476 of 2001. In that appeal the requisitioning authority mounted challenge against the enhancement made by the reference court for the land value. As noticed hereinbefore, the reference court enhanced the land value by 96% over and above the rate fixed by the Land Acquisition Officer. That appeal was considered along with a batch of appeals arising from land acquisition references in respect of acquisition of certain other L.A.A.Nos.1223/2002 & 529/2004 4 properties covered under the same notification. Evidently, as per the common judgment dated 25.6.2003 in L.A.A.No.46 of 2001 and connected cases including L.A.A.No.476 of 2001 this Court modified the award passed by the reference court in LAR.No.393 of 1997, as well. This Court found that the Land Acquisition Officer fixed the land value at the rate of 7,413/- per Are and the claimants in all those cases sought₹ for enhancement of the amount thus fixed by the Land Acquisition Officer relying on Ext.A1 judgment in LAR.No.294 of 1996 whereby and whereunder the reference court enhanced the land value by 96% over and above the land value fixed by the Land Acquisition Officer. Virtually, that contention was upheld by the reference court and that is why the impugned award was passed. In L.A.A.No.46 of 2001 and connected cases including L.A.A.No.476 of 2001 the requisitioning authority produced Ext.R5, referred as such in that appeal, and took up a contention that under Ext.R5 only 30% enhancement was granted. It was also contended thereunder that the property covered by Ext.R5 was also acquired for the same purpose by the same notification. At the same time, this Court took note of the fact that against the judgment in LAR.No.294 of 1996, which was referred as Ext.A1 judgment in LAR.No.393 of 1997, an appeal was preferred as L.A.A.No.865 of 2000. In L.A.A.No.865 of 2000, after consideration this L.A.A.Nos.1223/2002 & 529/2004 5 Court found that the claimants therein were entitled only to 45% enhancement from the land value adopted by the Land Acquisition Officer. In other words, in L.A.A.No.865 of 2000 the enhancement of 96% over and above the value fixed by the Land Acquisition Officer was interfered with by this Court and it was restricted to 45%. Taking note of the said aspect this Court while disposing of L.A.A.No.46 of 2001 and connected cases including L.A.A.No.476 of 2001 found that the same reasoning has to be adopted in those cases and the appellants therein are entitled only to 45% increase in the land value over and above the value fixed by the Land Acquisition Officer. Consequently, the awards passed by the reference court in the respective land acquisition references were modified. In other words, in L.A.A.No.476 of 2001 the award passed by the Additional Sub Court, North Paravur in LAR.No.393 of 1997 was also modified and the enhancement of land value by 96% by the reference court was interfered with and it was found that the claimants therein are entitled only to 45% increase to the land value fixed by the Land Acquisition Officer. 4. The learned counsel further contended that such modification was made to the award in LAR.No.393 of 1997 of Additional Sub Court, North Paravur with notice to both the appellants herein. It is to be noted that the learned Senior Government Pleader who appears for L.A.A.Nos.1223/2002 & 529/2004 6 the appellant in L.A.A.No.1223 of 2002 and the learned counsel appearing for the appellant in L.A.A.No.529 of 2004 did not dispute the said position. In fact, that position is indisputable as it is borne out from the judgment dated 25.6.2003 in L.A.A.No.46 of 2001 and connected cases including L.A.A.No.476 of 2001. The learned counsel submitted that pursuant to the judgment dated 25.6.2003 a decree was passed in L.A.A.No.476 of 2001 arising from LAR.No.393 of 1997 on the files of the Additional Sub Court, North Paravur. In the light of the said contentions, we have called for the records in L.A.A.No.476 of 2001 and perused the decree passed thereon. Evidently, the decree drawn on 25.6.2003 in L.A.A.No.476 of 2001 would reveal that the decree of the reference court that is, Additional Sub Court, North Paravur in L.A.R.No.393 OF 1997 was confirmed with modification as hereunder:- - “1) That the decree of the court below be and is hereby modified; - 2) That the claimants will be entitled to only 45% increase in the land value than that was awarded by the Land Acquisition Officer; - 3) That the claimants, will also be entitled to interest on the entire enhanced compensation including solatium; - 4) That save as aforesaid the decree of the court below be and is hereby confirmed; And - 5) That the appeal be and is hereby allowed in part.” L.A.A.Nos.1223/2002 & 529/2004 7 The position thus obtained to the effect that the decree passed by the Court of Additional Sub Judge, North Paravur in LAR.No.393 of 1997 was modified by this Court pursuant to the judgment in L.A.A.No.476 of 2001 as aforesaid, cannot be disputed and in fact, it was not disputed. It was in the light of this indisputable and undisputed facts that the learned Senior Counsel appearing for the 2[nd] respondent in the latter appeal contended that the captioned appeals deserve no consideration on merits. The learned Senior Counsel relied on the provisions under Order 41, Rule 22 of the Code of Civil Procedure and Rule 190 of the Civil Rules of Practice to drive home the said contention. The learned counsel appearing for the appellant in L.A.A.No.529 of 2004 contended that the challenge in L.A.A.No.476 of 2001 against the judgment and decree in L.A.R.No.393 of 1997 was only regarding the enhancement made by the reference court on the land value. In the said circumstances, the learned counsel contended that since in L.A.A.No.529 of 2004 the challenge is made against the judgment and decree in L.A.R.No.393 of 1997 not on the same question but, insufficiency in the enhancement with respect to the value of the buildings in the acquired property, the judgment and decree in L.A.A.No.476 of 2001 cannot be a legal impediment for considering LA.A.No.529 of 2004 on merits. Virtually, the State also adopted the L.A.A.Nos.1223/2002 & 529/2004 8 same line of argument but, the sustainability of the rival contentions have to be looked into in the light of the provisions under Order 41, Rule 22 of the Code of Civil Procedure and Rule 190 of the Civil Rules of Practice. ## 5. Order 41 Rule 22 (1) and its explanation read thus:- “ **22. Upon hearing respondent may object to decree as if he had preferred separate appeal** .- (1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any crossappeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing he appeal, or within such further time as the Appellate Court may see fit to allow. _**Explanation**_ .- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file cross-objection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.” In the contextual situation, it is also worthwhile to extract Rule 190 of the Civil Rules of Practice. It reads thus:- “ **190. Several appeals against the same decree.** - If more than one appeal is preferred against the same decree, all the appeals shall be heard together and one decree only shall be drawn up which shall be headed with the cause-titles of the several appeals.” L.A.A.Nos.1223/2002 & 529/2004 9 In the light of the provisions under Order 41, Rule 22 of the Code of Civil Procedure there can be little doubt with respect to the position that when in respect of a particular judgment and decree an appeal has been preferred the respondent on receipt of notice could, not only take up his contention to resist the challenge made in that appeal but also could file a cross objection in relation of any other finding in the same judgment, if he is aggrieved by any such findings. We have already taken note of the fact that L.A.A.No.476 of 2001 filed by the 2[nd] respondent in the latter appeal, the requisitioning authority in respect of the land in question filed that appeal confining the challenge only with respect to the enhancement relating the land value. We have already found the fact that the said appeal was heard and finally decided only with notice to both the appellants herein. When that be so, in the light of the provisions under Order 41, Rule 22, if the appellants herein had any grievance with respect to any other findings in the same judgment against which that appeal was preferred, they could have and they should have preferred cross objections. Now, the question to be considered is, if they do not file cross objections can they now, be permitted to maintain this appeal raising challenge against any of the findings in the same judgment or with respect to the same finding in that judgment ? L.A.A.Nos.1223/2002 & 529/2004 10 6. In L.A.A.No.529 of 2004 a challenge was also made against the judgment and decree of the reference court to the extent it declined enhancement to the value of improvements. In L.A.A.No.1223 of 2002 the findings with reference to the entitlement to get enhancement for the land value as also for the value of the buildings are put under challenge. We have already found that on receipt of notice in L.A.ANo.476 of 2001 the appellants herein entered appearance and contested that matter. However, they did not file any cross objection against any other finding. Thus, it is evident that though under law they had an opportunity and virtually, they could have filed cross objections as a matter of right, they did not do so. The learned Government Pleader appearing for the appellant in the former appeal and the learned counsel appearing for the appellant in the latter appeal attempted to get over the situation by contending that by the time L.A.A.No.476 of 2001 was finally decided L.A.A.No.1223 of 2002 was filed with a petition to condone the delay and the learned counsel for the appellant in L.A.A.No.529 of 2004 contended that as against the judgment and decree in L.A.R.No.393 of 1997 C.M.C.No.430 of 2001 (indigent) was filed but, the same was renumbered as LAA only in the year 2004. Evidently, the attempt is to canvass the position that prior to the passing of the judgment and decree in L.A.A.No.476 of 2001 the L.A.A.Nos.1223/2002 & 529/2004 11 appellant in L.A.A.No.529 of 2004 filed C.M.C.No.430 of 2001 which was later converted as L.A.A.No.529 of 2004 and in the case of L.A.A.No.1223 of 2002, the appeal was filed with a petition to condone the delay and in such circumstances, the passing of the judgment and decree in L.A.A.No.476 of 2001 cannot create any legal impediment in considering these appeals on merits. It is in that context that the provisions under Rule 190 of the Civil Rules of Practice assumes relevance. Going by the same, if more than one appeals are preferred against the same decree all the appeals shall be heard together and one decree only shall be drawn up of course, it shall be headed with cause titles of several appeals. Thus, it is evident that if more than one appeal is preferred against the same decree those appeals shall be heard together. Taking into account the fact that in L.A.A.No.476 of 2001 the appellants herein were served with notices and the appellant in L.A.A.No.529 of 2004 entered appearance and resisted the appeal they cannot be heard to contend that they had no opportunity to file cross objection against the findings in L.A.R.No.393 of 1997 in respect of which they sought to raise their grievances in these appeals. At any rate, at least they could have brought to the notice of the court regarding the pendency of matters filed by them against the very same decree that is, decree in L.A.R.No.393 of 1997. The appellants in L.A.A.Nos.1223/2002 & 529/2004 12 L.A.A.No.529 of 2004 and L.A.A.No.1223 of 2002 cannot feign ignorance about the matters filed by them. As regards the appellant in L.A.A.No.529 of 2004 at the time of consideration of L.A.A.No.476 of 2001 the appeal filed by him was pending before this Court as C.M.C.No.430 of 2001. At that point of time, the appeal preferred by the State, the acquisition authority, with delay petition was pending before this Court. However, both appellants did not bring to the notice of this Court regarding the pendency of the appeals preferred by them as against the very same judgment and decree which was under consideration in L.A.A.No.476 of 2001. In the said circumstances, be it purposeful or not the appellants have to suffer for their lapses or laches. A party cannot be permitted to take advantage of his own lapses or laches. We have already found that as per the judgment and decree dated 25.6.2003 in LAA.No.476 of 2001 this Court modified the same to the extent specifically mentioned thereunder and the judgment and decree passed by the reference court in LAR.No.393 of 1997 was confirmed in all other aspects. When that be the position, how can this Court again entertain these appeals ? If this Court passes a judgment which may go in conflict with the judgment and decree passed by this Court that will go against the provisions under Rule 190 of the Civil Rules of Practice. That apart, when once this Court confirmed the L.A.A.Nos.1223/2002 & 529/2004 13 judgment and decree in LAR No.393 of 1997 there will not be any question of setting the same at naught by interfering in another proceedings arising from the judgment and decree in LAR No.393 of 1997. As noticed hereinbefore, the appellants herein cannot be heard to contend that they never had an opportunity to raise their objections or bring their grievances or challenge against any of the findings in the judgment and decree in LAR No.393 of 1997. Obviously, they had such an opportunity when they received the notice and entered appearance and resisted the contentions in LAA.No.476 of 2001. If they had not availed opportunity and raised their objections against any of the findings which they could have done as a matter of right, by virtue of the provisions under Order 41 Rule 22 the appellants have to suffer for their lapses or laches. In the contextual situation, it is also apposite to refer to the decision of the Hon'ble Apex Court in **Union of India** v. **S.P.Sharma ((2014) 6 SCC 351).** In that case, the Hon'ble Apex Court considered the doctrine of _stare decisis_ as also principle of _res judicata_ . It was also observed that sanctity attached to finality of judgments of Supreme Court is having cardinal importance and therefore, reopening of concluded judgments of the court tantamounts not merely to an abuse of the process of the court but would have farreaching adverse effect on the administration of justice. Further it was L.A.A.Nos.1223/2002 & 529/2004 14 held that it would also nullify the doctrine of stare decisis, a wellestablished valuable principle of precedent which cannot be departed from unless there are compelling circumstances to do so and that certainty in law is having vital importance in the matter of rule of justice. Considering the applicability of the principle of _res judicata_ , it was further held that the result which had attained finality could not be opened to challenge in collateral proceedings or in subsequent fresh litigation. It was also held that in such proceedings or in a later round of litigation the principles of _constructive res judicata_ would also apply. The sum and substance of the decision is to the effect that going by the doctrine of finality an earlier judgment could not be disturbed through a collateral challenge or a subsequent fresh litigation. We are of the view that the dictum laid down by the Hon'ble Apex Court would apply to the facts and circumstances of this case especially, taking note of the fact that the appellants herein are also attempted to mount challenge against the very same judgment and decree viz., the judgment and decree in LAR No.393 of 1997 which was under challenge in L.A.A.No.476 of 2001 and contested the matter. True that, the learned counsel for the appellant in L.A.A.No.529 of 2004 attempted to make a distinction by contending that the challenge in L.A.A.No.476 of 2001 and the challenge in L.A.A.No.529 of 2004 are on different issues L.A.A.Nos.1223/2002 & 529/2004 15 arising from LAR.No.393 of 1997. We have already taken note of the fact that the judgment and decree in LAR.No.393 of 1997 virtually considered three aspects. Evidently, the appellant in LA.A.No.529 of 2004 and his siblings who are the other claimants therein sought for enhancement of the value of the land as also the value in relation to the buildings thereon and also the improvements made thereon, fixed by the Land Acquisition Officer. The reference court enhanced the land value fixed by the Land Acquisition Officer by 96% and the value of the buildings thereon by 30% but, declined to interfere with the compensation awarded in respect of the improvements made thereon. In LAA.No.476/2001 the requisitioning authority challenged only the enhancement in relation to the land value. When it is an indisputable position that in that appeal both the appellants herein received notices and they have entered appearance and contested the matter even if they are having any grievances or they wanted to make challenge against any of the findings in LAR.No.393 of 1997 either against the fixation of value of the buildings or disinclination to interfere with the awarding of compensation in relation to the improvements made thereon or any other grievance with respect to the fixation of the land value they could have raised such objections by filing cross objections regarding any such findings, availing the right under Order 41, Rule 22 L.A.A.Nos.1223/2002 & 529/2004 16 of the Code of Civil Procedure. Evidently, they had not done so in the said proceedings. They did not file any cross objection in L.A.A.No.476 of 2001. As noticed hereinbefore, despite the filing of the appeal against the same in the manner as aforesaid they did not even bring to the notice of the court regarding the pendency of such appeals. In the said circumstances, we have no hesitation to say that we are bound to apply the dictum laid down by the Hon'ble Apex Court in **S.P.Sharma's** case (supra) in the facts and circumstances of the case. Evidently, the attempt on the part of the appellants is to bring a challenge against the judgment and decree passed by this Court in L.A.A.No.476 of 2001 in this proceedings as if they had no opportunity to raise challenge which they have now raised against the same judgment and decree in the earlier occasion when L.A.A.No.476 of 2001 was taken up for consideration. At any rate, we have no hesitation to hold that when the judgment and decree in LAR.No.393 of 1997 was modified by this Court only with respect to the fixation of land value and confirmed in all other respects, in this proceedings the same cannot be set at naught in the light of the doctrine of _res judicata_ apart from the provisions under Order 41, Rule 22 of the CPC and also Rule 190 of the Civil Rules of Practice. L.A.A.No.1223 of 2002 is to be dismissed _in limine_ on another ground as well. The appellant, the State, which was also a party in L.A.A.Nos.1223/2002 & 529/2004 17 L.A.A.No.476 of 2001 now, filed the appeal against L.A.R.No.393 of 1997 without bringing the requisitioning authority in the array of parties. In the said circumstances, this appeal is also bad for nonjoinder of necessary parties. The position is more grave taking into account the fact that the requisitioning authority was the appellant in L.A.A.No.476 of 2001. In the result, we find no merit in these appeals and these appeals are therefore, dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS