Allowed

Dr.Antony v. State of Kerala

Kerala HC1 Feb 2008CRP/2584/2002

Case brief

AI extract

What is this about?

This revision petition challenged an order regarding appropriation of deposited compensation and interest on solatium. The High Court set aside the impugned order, directing the executing court to apply Supreme Court principles on appropriation priority and grant interest on solatium in pending executions.

What did the court decide?

The impugned order set aside. Executing court directed to consider appropriation afresh and pay interest on solatium.

Dr.Antony Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE K.T.SANKARAN

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FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929

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CRP.No. 2584 of 2002

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AGAINST THE ORDER DATED 03/08/2002 INC.A.NOS.315 OF 2002 AND 73 OF 2001 IN EP.482/95 IN LAR.31/83 OF II ADDL.SUB COURT,THRISSUR

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REVN. PETITIONER: D CLAIMANT & RESPONDENT:

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DR.ANTONY, ALAPPAT HOUSE, ARANATTUKARA, AYYANTHOLE, THRISSUR.

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BY ADV. SRI.N.P.SAMUEL SRI.UMAKANTH.M SMT.M.GAYATHRI DEVI

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RESPONDENTS: RESPONDENT& PETITIONER:

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KERALA STATE, REPRESENTED BY THE DISTRICT COLLECTOR, THRISSUR.

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THE TAHSILDAR (LA), KERALA STATE HOUSING BOARD, THRISSUR.

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BY GOVERNMENT PLEADER SRI.S.DILEEP

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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K.T.SANKARAN, J.

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C.R.P. NO. 2584 OF 2002

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Dated this the 1^st February, 2008

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O R D E R

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The Revision arises out of the order dated 3^rd day of August, 2002 in C.A.No.315 of 2001 and C.A.No.73 of 2002 in E.P.No.482 of 1995 in L.A.R.No.31 of 1983, on the file of the Sub Court, Thrissur. The Revision is filed by the decree holder/claimant challenging the order of the executing court.

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By the order impugned, the court below held that the deposit made by the State should be first appropriated towards enhanced compensation and not to interest. The court below also held that the revision petitioner/claimant is not entitled to interest on solatium. The decree holder filed an application for cheque as C.A.No.315 of 2001 for a sum of Rs.2,72,748/-, while the State filed C.A.No.73 of 2002 for an amount of Rs.5,06,932/- on the ground that excess amount was deposited by the State. These applications were considered by the court below and it was held that C.A.No.73 of 2002 filed by the State is to be allowed and that C.A.No.315 of 2001 filed by the revision petitioner/claimant is to be dismissed.

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C.R.P. NO.2584 OF 2002

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The question whether the amount in deposit is to be appropriated first towards the amount of compensation or towards interest was considered by the Supreme Court in Gurpreet Singh v. Union of India ((2006) 8 SCC 457). In paragraph 28 of the judgment it was held thus:

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“28. Going by this principle and for the moment keeping out the scheme of the Land Acquisition Act, it appears to us that on payment or deposit of the amount awarded by the Collector in terms of Section 11 read with Section 31 of the Act, the claimant cannot thereafter claim any interest on that part of the compensation paid to him or deposited for the payment to him once notice of deposit is given to him. Thereafter, when the Reference Court enhances the compensation with consequential enhancement in solatium and interest under Section 23(1-A) of the Act and further awards interest on the enhanced compensation in terms of Section 28 of the Act, the claimant/decree-holder can seek an appropriation of the amounts deposited pursuant to that award-decree, only towards the enhanced amount so awarded by the Reference Court. While making the appropriation, he can apply the amount deposited, first towards the satisfaction of his claim towards interest on the enhanced amount, the costs, if any, awarded and the balance towards the land value, solatium and the payment under Section 23(1-A) of the Act and if there is a shortfall, claim that part of the compensation with interest thereon as provided in Section 28 of the Act and as covered by the award-decree. Once the sum enhanced by the Reference Court, along with the interest is deposited by the State, there will be no occasion for the claimant/awardee to seek a reopening of the amount awarded by the Collector, substituted by the amount awarded by the Reference Court and seek to have a reappropriation of the amount towards what is due. Same would be the position in a case where the amount awarded by the Reference Court, including the interest is deposited, but the amount is further enhanced in appeal by the High Court. Again, the same principle would apply. The principle would continue to apply when the

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C.R.P. NO.2584 OF 2002

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Supreme Court awards further enhancement in a further appeal to that Court. But if after the award by the Reference Court, the amount is not deposited by the State, interest would run on the compensation in terms of Section 28 of the Act on that amount as provided in Section 28. The same would be the position regarding the enhancement given in appeal by the High Court and in the enhancement given in appeal by the Supreme Court. The mandate of Section 34 and Section 28 that interest would run from the date the Collector takes possession till the particular amount is deposited as provided in those sections, ensures that the claimant is recompensed adequately. Section 28 ensures such recompense at each stage of enhancement of compensation.”

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In the light of the principles laid down by the Supreme Court, it is necessary to consider the question afresh, as the date of deposit, date of disposal of the Land Acquisition Appeal and all other relevant facts are to be considered by the executing court while applying the principles laid down by the Supreme Court.

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As regards the claim for interest on solatium, learned counsel for the petitioner Sri.Samuel submits that the decree itself stated that the claimant would be entitled to the benefits of Act 68 of 1984. Counsel submitted that subsequently the Honourable Supreme Court took the view that interest on solatium is not payable. Subsequently, the Supreme Court took the view in Sunder v. Union of India (2001 (3) KLT 489 (SC)) that interest on solatium is also liable to be paid. In view of the decision in Sunder v. Union of India , the petitioner is entitled to get interest on

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C.R.P. NO.2584 OF 2002

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solatium. The court below rejected the contention of the petitioner on the ground that the decision in Sunder v. Union of India has no retrospective effect and that in order to get the benefit of the said decision, a proceeding must be pending before Court. The court below held that L.A.R.No.31 of 1983 was disposed of in 1988 and the Execution Petition was also dismissed on 29.1.2000, holding that more amount than the amount due was deposited by the judgment debtor. The Supreme Court in Gurpreet Singh's case has held at paragraph 54 of the judgment thus:

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“54. One other question also was sought to be raised and answered by this Bench though not referred to it. Considering that the question arises in various cases pending in courts all over the country, we permitted the counsel to address us on that question. That question is whether in the light of the decision in Sunder v. Union of India, the awardee/decree- holder would be entitled to claim interest on solatium in execution though it is not specifically granted by the decree. It is well settled that an execution court cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary implication by the judgment or decree of the Reference Court or of the appellate court, the execution court will have necessarily to reject the claim for interest on solatium based on Sunder on the ground that the execution court cannot go behind the decree. But if the award of the Reference Court or that of the appellate court does not specifically refer to the question of interest on solatium or in cases where claim had not been made and rejected either expressly or impliedly by the Reference Court or the appellate court, and merely interest on compensation is awarded, then it would be open to the execution court to apply the ratio of Sunder and say that the compensation awarded includes solatium and in such an event interest on the amount could be directed to be

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C.R.P. NO.2584 OF 2002

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deposited in execution. Otherwise, not. We also clarify that such interest on solatium can be claimed only in pending executions and not in closed executions and the execution court will be entitled to permit its recovery from the date of the judgment in Sunder (19-9-2001) and not for any prior period. We also clarify that this will not entail any reappropriation or fresh appropriation by the decree-holder. This we have indicated by way of clarification also in exercise of our power under Articles 141 and 142 of the Constitution of India with a view to avoid multiplicity of litigation on this question.”

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In view of the decision of the Supreme Court in Gurpreet Singh's case ,

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the revision petitioner would be entitled to get interest on solatium.

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For the aforesaid reasons, the order impugned is set aside. The executing court shall consider afresh the question as to whether appropriation of the amount deposited should be made first towards interest or principal, after hearing the parties. The executing court shall dispose of the cheque applications in such a manner that the revision petitioner is paid interest on solatium.

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The Civil Revision Petition is allowed as above. No order as to costs.

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(K.T.SANKARAN) Judge

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ahz/

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K.T.SANKARAN, J.

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C.R.P.NO. 2584 OF 2002

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O R D E R

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1^st February, 2008 -------------------------------------------

Dr.Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr.Antony v. State of Kerala

Case brief

What is this about?

What did the court decide?

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