Varghese George v. State of Kerala and Pathanamthitta Municipality and Others

1 OP(C) No.1860 of 2021 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 16[TH] DAY OF SEPTEMBER 2022 / 25TH BHADRA, 1944 ``` ## **`OP(C) NO. 1860 OF 2021`** ## **`AGAINST THE ORDER/JUDGMENT IN EP 81/1998 IN LAR 289/2019 OF SUB COURT`** ## **`PATHANAMTHITTA`** ## **`PETITIONER/S:`** ``` VARGHESE GEORGE,AGED 67 YEARS,MAMMUTTILAYAKUZHIYIL VEETTIL,CHITTOOR MURI, PATHANAMTHITTA. BY ADVS. JACOB P.ALEX JOSEPH P.ALEX MANU SANKAR P. ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA,REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, PATHANAMTHITTA, PIN-689645.` - `2 PATHANAMTHITTA MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, PATHANAMTHITTA, PIN-689645.` - `3 MOLLY JOSEPH, MAMMUTTILAYAKUZHIYIL VEETTIL, CHITTOOR MURI, PATHANAMTHITTA, PIN-689645.` - `4 AANI CHACKO,MAMMUTTILAYAKUZHIYIL VEETTIL, CHITTOOR MURI, PATHANAMTHITTA, PIN-689645.` - `5 MARY THOMAS,MAMMUTTILAYAKUZHIYIL VEETTIL, CHITTOOR MURI, PATHANAMTHITTA, PIN-689645.` - `6 SARA PRASAD,MAMMUTTILAYAKUZHIYIL VEETTIL, CHITTOOR MURI, PATHANAMTHITTA, PIN-689645.` ``` BY ADV SHRI.V.K.SUNIL, SC, PATHANAMTHITTA MUNICIPALITY-R2 BY ADV.SYLAJA, GOVERNMENT PLEADER -R1 ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1860 of 2021 ## **C.S DIAS,J.** ## **--------------------------OP(C) No.1860 of 2021** **----------------------------Dated this the 16[th] day of September, 2022.** ## **JUDGMENT** Aggrieved by Ext P5 order dated 19.2.2011 passed in EP No.81/1998 in LAR No289/1988 by the Court of the Subordinate Judge, Pathanamthitta (court below), the additional decree holder No.7 has filed the original petition. The respondents 1 and 2 in the original petition are the judgment debtors and the respondents 3 to 6 are the additional decree holders 3 to 6 in the execution petition. 2. The petitioner’s case, shorn of exhaustive pleadings, relevant for deciding the original petition is that: the property of late Varkey Goerge, the father of the petitioner and the respondents 3 to 6, was acquired by the respondents 1 and 2 for the purpose of construction of the Flood Bank cum Road at Pathanamthitta. The property was taken possession on 10.10.1986 and Award 3 OP(C) No.1860 of 2021 No.23/87-80 was passed on 20.7.1987. On the request of the petitioner’s father, a reference was made under Sec.18 of the Land Acquisition Act, 1894, as LAR No.289/1988 and Ext P1 decree was passed by the court below. The second respondent challenged Ext P1 decree before this Court by preferring LAA No.1113/1997. By Ext P2 decree, this Court modified Ext P1 decree and held that the petitioner’s father – the original claimant - was entitled to the land value at the rate of Rs.9,000/- per Are with proportionate statutory benefits. Consequent to the death of the original claimant, his wife and children, namely, Thankamma George, the petitioner and the respondents 3 to 6 filed EP No.81/1998 before the court below along with Ext P3 statement. The court below accepted Ext P3 as evidenced by Ext P4 order. However, later, the court below, by the impugned Ext P5 order held that the petitioner and the respondents 3 to 6 (hereinafter, jointly referred to as ‘decree holders’) are not entitled to interest on solatium from 1987, instead, 4 OP(C) No.1860 of 2021 they are only entitled for interest on solatium from 19.9.2001 onwards. Thereafter, the petitioner filed Ext P6 statement, based on which Ext P7 comparative statement has been prepared by the court below. As per Ext P7, the decree holders are entitled to a balance amount of Rs.3,43,773.81/-. Ext P8 B-Diary proceedings shows the dates on which the execution petition was posted. Ext P5 is not a final adjudication. The court below has passed Ext P5 order without considering the law laid down by the Hon’ble Supreme Court in **Sundar vs. Union of India** [(2001) 7 SCC 211] and **Gurpreet Singh vs. Union of India** [(2006) 8 SCC 457]. Ext P5 is liable to be set aside and the court below may be directed to dispose of the execution petition as per Ext P7 comparative statement. Hence, the original petition. 3. Heard; Sri.Jacob P.Alex, the learned counsel appearing for the petitioner, the learned Government Pleader appearing for the first respondent and Sri.V.K Sunil, the learned counsel appearing for the second 5 OP(C) No.1860 of 2021 respondent. In the light of the averment in paragraph No.1 of the original petition, notice to the respondents 3 to 6 was dispensed with. 4. Sri.Jacob P.Alex argued that Ext P5 order is erroneous because the court below has not appreciated the law laid down in **Sundar** and **Gurpreet Singh** in their proper perspective. The court below ought to have kept in mind that, in the case on hand, Exts P1 and P2 decrees were passed before **Gurpreet Singh** and the execution petition was filed before the two decisions and is still pending consideration. Therefore, the decree holders are entitled to interest on the solatium as laid down in **Sundar** . Hence, he urged this Court to direct the court below to dispose of the execution petition following the ratio decidendi in the above two cases. 5. The learned Government Pleader submitted that, actually, the respondents have paid in excess to the decree holders and, therefore, they are not entitled to 6 OP(C) No.1860 of 2021 any further amount. The Government is proposing to initiate steps to recover the excess amount paid. 6. Sri.V.K Sunil also opposed the original petition and contended that the decree holders are not entitled to the benefit of **Sundar** since the original award was passed as early as in 1996 and the decree holders have not challenged the decree. It was the second respondent who challenged Ext P1 decree before this Court, and the appeal was allowed as per Ext P2. Therefore, the decree holders cannot aspire to get interest on solatium as laid down in **Sundar** . Hence the original petition may be dismissed. 7. The point is whether there is any error or illegality in Ext P5 order. 8. Admittedly, the property of the original claimant/decree holder/predecessor-in-interest of the present decree holders was acquired for the purpose of the second respondent. In a reference made under the Land Acquisition Act, 1894, Ext P1 decree was passed. 7 OP(C) No.1860 of 2021 The second respondent challenged Ext P1 in appeal before this Court, which was allowed in part and Ext P2 decree was passed in the following manner: “1. That the decree of the court below be and is hereby modified, 2. That the claimant will be entitled to land value only at the rate of Rs.9000/- per Are with proportionate statutory benefits, 3. That the claimant will be entitled to section 23(1A) benefit only from the date of modification [2.9.1985] till date of taking possession [i.e., 10.10.1986], 4. That the claimant will also be entitled to interest @ 9% p.a under section 28 for one year form the date of taking possession and thereafter at 15% p.a till the date of deposit, 5. That save as aforesaid the decree of the court below be and is hereby confirmed, and 6. That the appeal be and is hereby allowed in part.” 8 OP(C) No.1860 of 2021 9. Subsequently, the original decree holder filed Ext P3 statement before the court below. The said statement was accepted by Ext P4, holding that the decree holder was entitled to an amount of Rs.4,53,435.50/- as on 28.9.2007. 10. Later, by the impugned Ext P5 order, the court below accepted the contention of the respondents 1 and 2 and held that the decree holder was entitled for interest on solatium only from 19.9.2001 onwards. 11. The petitioner then filed Ext P6 statement, which again was accepted by the court below and Ext P7 comparative statement was prepared holding that the decree holders are entitled to an amount of Rs.3,43, 773.81/- as on 7.6.2018 . 12. On an analysis of Exts P4, P5 and P7, it is found that the court below has held that the decree holders are entitled to different amounts at different points of time and has till date not brought the execution petition to a logical conclusion. 9 OP(C) No.1860 of 2021 13. In paragraph 54 of **Gurpreet Singh** , it is held that the benefit of **Sundar** can be granted only in cases where execution petitions are pending consideration and not in execution petitions which are already closed. 14. Undisputedly, in the present case, the execution petition is pending consideration since 27.2.1998. 15. Now, whether the petitioner is entitled to the benefit of **Sundar** in the light of **Gurpreet Singh** is a matter to be decided by the court below after reconsidering Exts P4, P5 and P7. Therefore, without expressing anything on merits, I am of the definite view that the court below is to be directed to decide and dispose of the execution petition considering the above facts and the law laid down by the Hon’ble Supreme Court in **Sundar** and **Gurpreet Singh** , especially keeping in mind that Ext P2 decree was passed after **Sundar** and the execution petition is still pending consideration. Thus, I am satisfied that the impugned 10 OP(C) No.1860 of 2021 order warrants interference by this Court under Article 227 of the Constitution of India. In the result, the original petition is disposed of in the following manner: - (i) Ext P5 order is set aside. (ii) The court below is directed to dispose of EP 81/1998 in LAR 289/1988, as per the observation made in the judgment and in accordance with law, as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a certified copy of the judgment. sd/- sks/16.9.2022 **C.S.DIAS, JUDGE** 11 OP(C) No.1860 of 2021 ## **`APPENDIX OF OP(C) 1860/2021`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE DECREE IN LAR NO.289 OF 1988 ON THE FILES OF SUB COURT, PATHANAMTHITTA ``` ``` Exhibit P2TRUE COPY OF THE DECREE DATED 28.07.2004 IN LAA NO.1113 OF 1997 OF THIS HON'BLE COURT. ``` ``` Exhibit P3TRUE COPY OF STATEMENT DATED 28-09-2007 FILED BY THE DECREE HOLDER IN E.P NO.81 OF 1998 IN LAR NO.289 OF 1988 Exhibit P4TRUE PRINT OUT OF THE ORDER DATED 17-02- 2009 IN E.P NO.81 OF 1998 OF THE SUB COURT, PATHANAMTHITTA FROM E-COURTS PORTAL Exhibit P5TRUE COPY OF THE ORDER DATED 19.02.2011 IN E.P NO.81/1998 IN LAR NO.289/1988 OF SUB COURT, PATHANAMTHITTA Exhibit P6TRUE COPY OF THE STATEMENT DATED 02.06.2017 FILED BY THE DECREE HOLDER IN E.P NO.81 OF 1998 IN LAR NO.289 OF 1988 Exhibit P7TRUE COPY OF THE COMPARATIVE STATEMENT AS ON 07-06-2018 IN E.P NO.81 OF 1998 IN LAR NO.289 OF 1988 Exhibit P8TRUE COPY OF THE B DIARY IN E.P NO.81 OF 1998 OF SUB COURT, PATHANAMTHITTA. ```