State of Kerala v Sunny George and The Managing Director, K.S.I.D.C, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** **TUESDAY, THE 29TH DAY OF OCTOBER 2013/7TH KARTHIKA, 1935** ## **CRP.No. 441 of 2013 ()** **----------------------(E.P.NO.87/2009 IN LAR.NO.84/2002 OF SUB COURT, CHERTHALA)** **---------------------** ## **REVISION PETITIONER/JUDGMENT DEBTOR IN E.P:** **-----------------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY SPECIAL TAHSILDAR (L.A), IGC, CHERTHALA.** ## **BY GOVERNMENT PLEADER SRI.V.K.RAFEEK** ## **RESPONDENT(S)/DECREE HOLDER/2ND JUDGMENT DEBTOR :** **----------------------------------------------------------------------------------------------** ## **1. SUNNY GEORGE,S/O. GEORGEKUTTY, KALLARACKAL KADAVIL, PALLIPURAM.** ## **2. THE MANAGING DIRECTOR,** ## **K.S.I.D.C, THIRUVANANTHAPURAM.** **R1 BY ADV. SRI.BENOY K.KADAVAN R2 BY ADV. SRI.JOBY CYRIAC** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29-10-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **CRP.NO.441/2013** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX 1 COPY OF THE BALANCE STATEMENT FILED BY THE DECREE HOLDER.** **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **P.N.RAVINDRAN, J. ----------------------------------------C.R.P.No.441 of 2013 ----------------------------------------Dated this the 29[th] day of October, 2013** ## **O R D E R** The State of Kerala has filed this Civil Revision Petition challenging the order passed by the Court of the Subordinate Judge of Cherthala on 20.2.2013 in E.P.No.87 of 2009 in L.A.R.No.84 of 2002. The brief facts of the case are as follows: 2. A parcel of land belonging to the first respondent was acquired for the purpose of the second respondent pursuant to a notification dated 24.1.1997 issued under section 4(1) of the Land Acquisition Act, 1894, herein after referred to as “the Act” or short. An award was passed on 28.10.1998 and possession of the acquired land was taken over on 16.9.2000. The Land Acquisition Officer awarded land value at the rate of 14.586/- per Are for 38.01 Ares₹ of land. The first respondent received the land value awarded under protest and sought a reference to the civil court. A reference was accordingly made to the Court of the Subordinate Judge of Cherthala, where it was taken on file and numbered as L.A.R.No.84 of 2002. The reference court enhanced the land value by 16,289/-₹ per Are. In other words, the land value was enhanced from ₹14,586/- per Are as awarded by the Land Acquisition Officer, to C.R.P.No.441 of 2013 ..2.. ₹30,875/- per Are. 3. The reference court had, besides enhancing the land value, also awarded 30% solatium, payment under section 23(1-A) of the Act and interest on solatium. Aggrieved by the enhancement of land value awarded by the reference court, the State of Kerala filed LA.A.No.419 of 2004 in this Court. In that appeal, the State of Kerala filed I.A.No.2163 of 2004 seeking stay of execution of the decree passed by the reference court. On that application this Court passed an interim order on 7.7.2004 directing the State of Kerala to deposit 50% of the amount awarded by the reference court. The State of Kerala thereupon deposited the sum of ₹9,21,973/- in the reference court on 4.9.2004 and the said amount was withdrawn by the claimant on 13.1.2005. L.A.A.No.419 of 2004 was heard and disposed of by judgment delivered on 12.7.2005. By that judgment, this Court set aside the judgment and decree passed by the reference court and remanded L.A.R.No.84 of 2002 to the reference court for fresh trial and disposal. 4. L.A.R.No.84 of 2002 was thereafter tried and disposed of along with two other cases by judgment delivered on 24.9.2007. By that judgment, the reference court enhanced the land value by ₹15,394/- per Are, thereby raising the land value to 29,980/- per₹ C.R.P.No.441 of 2013 ..3.. Are. The reference court also held that the claimant is entitled to 30% solatium, payment under section 23(1-A) of the Act from the date of taking possession and interest on the land value/solatium/payment under section 23(1-A) of the Act at 9% per annum for a period of one year from the date of taking possession and at the rate of 15% per annum till realisation. The claimant thereupon filed E.P.No.87 of 2009 in the Court of the Subordinate Judge of Cherthala. While the said execution petition was pending, the State of Kerala deposited the sum of ₹13,56,086.83 on 28.5.2012. The said amount was also withdrawn by the claimant on 11.7.2012. The State of Kerala also filed a statement of accounts to the effect that no further amount is payable. The claimant on the other hand filed a statement of accounts contending that a further sum of 4,35,094/- is due as on the date of deposit, viz. 28.5.2012.₹ The execution court considered the rival contentions and held that the claimant is entitled to receive a further sum of 4,35,094/-. The₹ execution court accordingly directed deposit of the said amount by 10.6.2013. The said order, which was passed on 20.2.2013, is under challenge in this Civil Revision Petition. 5. The principal contention raised in the instant civil revision petition is that 50% of the sum of 9,21,973/-, which was deposited₹ on 4.9.2004 pursuant to the interim order passed by this Court on C.R.P.No.441 of 2013 ..4.. I.A.No.2163 of 2004 in L.A.A.No.419 of 2004, was deposited towards land value, solatium, additional land value and interest, that the said deposit should have been treated as notice to the respondent as regards the method of appropriation to be adopted and therefore, the execution court erred in holding that the respondents in the execution petition are liable to deposit a further sum of 4,35,094/-.₹ 6. I heard Sri.V.K.Rafeek, learned Senior Government Pleader appearing for the State of Kerala, Sri.Benoy K.Kadavan, learned counsel appearing for the first respondent land owner and Sri.Joby Cyriac, learned counsel appearing for the second respondent, the requisitioning authority. Sri.V.K.Rafeek, learned Senior Government Pleader appearing for the State of Kerala, contended referring to Annexure I statement filed along with I.A.No.1951 of 2013 in the instant civil revision petition that out of the sum of 9,21,973/-,₹ which was deposited on 4.9.2004, the sum of 3,09,573/- was₹ towards land value, the sum of 2,90,713/- was towards solatium₹ and payment under section 23(1-A) of the Act and the sum of ₹3,21,687/- was towards interest, that the said amount has to be appropriated in the aforesaid manner, that a further sum of ₹13,56,086.83 was deposited on 28.5.2012 along with a balance statement, wherein the aforesaid method of appropriation had been C.R.P.No.441 of 2013 ..5.. shown, that a copy thereof was also served on the land owner and therefore, it should have been treated as notice as regards the method of appropriation. The learned Government Pleader contended that as the State of Kerala had made the deposit along with a calculation statement appropriating distinct sums towards various heads of compensation as awarded by the reference court and the amount was received by the decree holder, he is not entitled to seek appropriation as if the judgment debtor had not intimated the decree holder as to how the money deposited is to be applied. Sri.Joby Cyriac, learned counsel appearing for the second respondent, reiterating the contentions raised by the learned Government Pleader submitted that ordinarily every deposit by the State is accompanied by a statement indicating how the sum deposited is to be applied in discharge of its obligation, that in the instant case also such a statement would have been filed and therefore, the court below erred in directing further amounts to be deposited. 7. Per contra, Sri.Benoy K. Kadavan, learned counsel appearing for the first respondent contended that though the sum of 9,21,973/- was deposited on 4.9.2004, it was not accompanied₹ by a statement, that it was only in the statement which was filed on 28.5.2012 that the State claimed that the sum of 9,21,973/-₹ C.R.P.No.441 of 2013 ..6.. should be appropriated partly towards land value, partly towards interest and partly towards solatium and other payments and that in the light of the principles laid down by the Apex Court in _**Gurpreet Singh v. Union of India**_ , (2006) 8 SCC 457, the stand taken by the State of Kerala cannot be accepted.Sri.Binoy K.Kadavan, learned counsel appearing for the first respondent contended that though the sum of 9,21,973/- was deposited by the State of Kerala on₹ 4.9.2004 pursuant to the interim order passed by this Court on 7.7.2004 on I.A.No.2163 of 2004, a calculation statement appropriating distinct sums towards various heads of compensation awarded by the reference court had not been filed and the judgment debtor had not intimated the decree holder as how the money deposited is to be applied in discharge of its obligation. The learned counsel for the first respondent contended with reference to the averments in paragraph (1) of the civil revision petition and ground (a) thereof that it was only in Annexure-1 statement produced along with I.A.No.1951 of 2013 in the instant civil revision petition, which was filed in the execution court only on 25.5.2012, that the State indicated as to how the sum of 9,21,973/- deposited by it on₹ 4.9.2004 should be appropriated and therefore, the principles laid down by the Apex Court in paragraph 61 of **Gurpreet Singh** v. **Union of India** ( _supra_ ) can have no application. Learned counsel C.R.P.No.441 of 2013 ..7.. for the first respondent also contended referring to paragraph 52 of the decision in **Gurpreet Singh** v. **Union of India** ( _supra_ ) that this Court had not, in the interim order passed by it on 7.7.2004 on I.A.2163 of 2004 in L.A.A.No.419 of 2011 directed that the amount deposited should be appropriated in a particular manner, that this Court had only directed deposit of 50% of the decreed amount, that in the light of the principles laid down by the Apex Court in paragraph 54 of **Gurpreet Singh** v **. Union of India** ( _supra_ ), upon 50% of the amount being deposited by the State of Kerala pursuant to the interim order of this Court in L.A.A.No.419 of 2004, in the absence of any stipulation in the interim order regarding the manner and method of appropriation, it was open to the decree holder to appropriate the amount deposited pursuant to the interim order firstly towards interest, then towards costs and the balance, if any, towards principal as on the date of withdrawal of the amount and claim interest on the balance amount of enhanced compensation by levying execution. The learned counsel for the first respondent contended that as the State of Kerala had not while depositing the sum of 9,21,973/- filed a statement with notice to the decree₹ holder indicating as to how the sum deposited by it is to be applied in discharge of its obligations under the decree passed by the reference court, no exception can be taken to the finding entered by C.R.P.No.441 of 2013 ..8.. the execution court in the impugned order that the balance had not been rightly struck by the State in Annexure-1 statement and that the sum of 4,35,094 is still due from the State of Kerala towards₹ land value and other heads. 8. I have considered the submissions made at the Bar by learned counsel appearing on either side. I have also gone through the pleadings and the materials on record. Though in the first instance by judgment delivered on 5.3.2004, the reference court enhanced the land value to 30,875/- per Are (an enhancement of₹ ₹16,289/- per Are) and it also awarded all other statutory benefits, the State of Kerala did not deposit any amount towards the said liability till it deposited the sum of ₹9,21,973/- on 4.9.2004 pursuant to the interim order passed by this Court on 7.7.2004 on I.A.No.2163 of 2004 in L.A.A.No.419 of 2004. Though the learned Government Pleader appearing for the State of Kerala as well as the learned counsel appearing for the second respondent contended that a statement intimating the decree holder as to how the sum deposited should be applied in discharge of the State's obligations under the decree was filed, there is no material to substantiate the said contention. As a matter of fact it is evident from paragraph 1 of the statement of facts in the instant civil revision petition, as also Annexure-1 balance statement filed along with I.A.No.1951 of 2013, C.R.P.No.441 of 2013 ..9.. that it was only in the said balance statement which bears the date 25.5.2012, that the State indicated in what manner the sum of ₹9,21,973/- deposited by it on 4.9.2004 should be applied. The Apex Court has in paragraph 51 of **Gurpreet Singh** v. **Union of India** ( _supra_ ) held that when the judgment debtor makes a deposit along with a calculation statement appropriating distinct sums towards various heads of compensation as awarded by the reference court or the appellate court and the amount is received by the decree holder, it must be taken that the decree holder is not entitled to seek an appropriation as if the judgment debtor has not made an intimation. Though the learned counsel for the second respondent, requisitioning authority, made available to me a statement of accounts prepared by the Special Tahsildar, Land Acquisition, Cherthala on 4.9.2004 that statement only indicates how the sum of 9,21,973/- was arrived at. The statement would₹ only show that the enhanced compensation awarded is 18,43,946/-₹ and that 50% of it is 9,21,973/-. To arrive at that figure the₹ Special Tahsildar had also calculated interest on the enhanced land value at 9% for a period of one year from 16.9.2000 and at 15% for the period from 16.9.2001 to 4.9.2004. He had also calculated the compensation payable under section 23 (1-A) of the Act for the period from 24.1.1997 to 15.9.2000 and for the period from C.R.P.No.441 of 2013 ..10.. 28.10.1998 to 15.9.2000. The Special Tahsildar had not in that statement intimated the decree holder as to how the sum of ₹9,21,973/- should be appropriated in discharge of the obligations of the State. 9. The case now set out by the State of Kerala that the decree holder was intimated that out of the said sum of 9,21,973/- the₹ sum of 3,09,573/- is to be appropriated towards land value, the₹ sum of 2,90,713/- is to be appropriated towards solatium and₹ payment under section 23 (IA) of the Act and the sum of ₹3,21,687/- is to be appropriated towards interest, is not borne out by that statement. In the absence of any such statement it was open to the decree holder to appropriate the amount deposited on 4.9.2004 firstly towards interest, then towards costs and the balance towards principal as on the date of withdrawal of the amount namely 13.1.2005. It was only in the statement dated 25.5.2004 that the State indicated as to how and in what manner the sum of 9,21,973/- should appropriated. As the State had not₹ indicated how and in what manner the said sum is to be appropriated when it made the deposit on 4.9.2004, the decree holder had the option to appropriate it in the manner done by him. If that be so, there is no dispute that the finding entered by the court below that the State is liable to pay a further sum of C.R.P.No.441 of 2013 **==> picture [26 x 9] intentionally omitted <==** ₹4,35,094/- is correct. It is only if this Court were to accept the State's contention regarding the manner of appropriation of the amount deposited by it on 4.9.2004, that the impugned order would merit interference. No exception can therefore be taken to the finding entered by the execution court that a further sum of ₹4,35,940/- is payable by the State of Kerala under the award passed by the reference court in L.A.R.No.84 of 2002. I accordingly hold that there is no merit in the instant civil revision petition. The civil revision petition fails and is dismissed. No costs. Sd/- **P.N.RAVINDRAN, JUDGE.** rkc.