IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 16TH MARCH 2009 / 25TH PHALGUNA 1930 WP(C).No. 28077 of 2004(P) ----------------------------------- PETITIONERS: --------------------- 1. BEATRICE D'SILVA, T.C.28/149, THENGAPPURA, PETTAH, THIRUVANANTHAPURAM. 2. ISABEL GOMEZ, ALIAS ISABAL FERNANDEZ, 47, SINGHA PWALK, FRANTAT ESTATE, SINGAPORE 15, REPRESENTED BY HER POWER OF ATTORNEY MR. MARIA JERALD CLIFFORD D'SILVA, T.C.13/171 & 172, GLADVI DALE, PETTAH, THIRUVANANTHAPURAM. 3. TERESA GOMEZ ALIAS THERESA REBERIO CHANKKARA VILA VEEDU, MAVARATHALAKONAM, ULLOOR, THIRUVANANTHAPURAM REPRESENTED BY HER POWER OF ATTORNEY MRS. BEATRICE D'SILVA THE ABOVE SAID FIRST PETITIONER. 4. JANET D'CRUZ L.N.PALE, T.C.35/1135, PETTAH, THIRUVANANTHAPURAM REPRESENTED BY HER POWER OF ATTORNEY MRS. BEATRICE D'SILVA, THE ABOVE SAID FIRST PETITIONER. BY ADVOCATES MR.J.HARIKUMAR MR.HARIKUMAR.S. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. CONSTANCE PAREIRA, SUNNYSIDE, PANAVILA, KESAVADASAPURAM, THIRUVANANTHAPURAM. 3. IRIS. M. PAREIRA, 15 MORETONE CLOSE, SINGAPORE-19. 4. RITA, E-6, JODILURG GARDEN, SINGAPORE-15. 5. ROSE T. PILE, OF DO. 6. MARGARET J. PERIRA, 15 MORETON CLOSE, SINGAPORE-19. 7. ERID GOMEZ, 101 A PRAYALAM, DANDER HIL, MALACCA. WP(C).No. 28077 of 2004(P) -2- 8. JANET GOMAZ, CHAKKARAVILA VEEDU, MAVARATHALAKONAM, ULLOOR. 9. BEATRICE D'SILVA, T.C.28/149, THENGAPURA ROAD, PETTAH, THIRUVANANTHAPURAM. 10. S.S. JACOB, NEDIYAVILAKOM PURAYIDAM, KUNNUKUZHY. 11. LALIVA D'CRUIZ, THEKKUMURI BUNGLOW, EAST INDIA. 12. MARY J. GOMEZ, C/O. S. BHAGAVATHY LEKSHMI AMMAL, ADVOCATE, VANCHIYOOR, THIRUVANANTHAPURAM. 13. JANNET TREEZ, DAVID DALE, NALANNCHIRA, ULLOOR, THIRUVANANTHAPURAM. 14. P.I. PEREIRA, SUNNY SIDE, U.P.8/84, NALANCHIRA, ULLOOR, THIRUVANANTHAPURAM. 15. MARY J. GOMEZ, KNOWN AS MARY LOPEZ C/O. S. BHAGAVATHY LEKSHMI AMMAL, ADVOCATE, VANCHIYOOR, THIRUVANANTHAPURAM. 16. JOHN GEORGE, THOTTATHI VEEDU, THEKKELUSSERY MURI, THIRUVALLA. 17. SPECIAL TAHSILDAR, LAND TRIBUNAL, THIRUVANANTHAPURAM. 18. L.G. MOHAN, S/O. P. GOMEZ, THUSHARA, SREEKARIYAM MURI, PANGAPPARA VILLAGE. 19. SOSAMMA, ABRAHAM, MAVELIL HOUSE, NALANCHIRA, THIRUVANANTHAPURAM. 20. JOTHY RACHEL MATHEW, OF DO. DO. 21. SUJA SUSAN MATHEW, OF DO. DO. 22. ANITHA MATHEW, OF DO. DO. 23. VIBHU THOMAS MATHEW, OF DO. DO. 24. SHARIN MATHEW OF DO. DO. BY GOVERNMENT PLEADER MR. T.K. VIPINDAS ADVOCATES MR.K.P.DANDAPANI, SENIOR ADVOCATE FOR R23 MR.MILLU DANDAPANI FOR R19 TO 22 & 24 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28077 of 2004(P) APPENDIX PETITIONERS' EXHIBITS: EXT.P1 - TRUE COPY OF THE POWER OF ATTORNEY BY THE SECOND PETITIONER IN FAVOUR OF MARIA JERALD CLIFFORD D'SILVA DT.10.7.1990. EXT.P2 - TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 3RD PETITIONER INFAVOUR OF THE 1ST PETITIONER DATED 18.10.1995. EXT.P3 - TRUE COPY OF THE POWER OF ATTORNEY EXECUTED BY THE 4TH PETITIONER IN FAVOUR OF THE 1ST PETITIONER DATED 15.01.1996. EXT.P4 - TRUE COPY OF THE JUDGMENT IN LAR NO. 76 OF 1983 AND 79 OF 1983 DATED 23.5.1992 ON THE FILE OF THE 2ND ADDIL. SUB COURT, TRIVANDRUM. EXT.P5 - TRUE COPY OF THE DECREETAL PORTION IN LAR NO. 79/83 DATED 23.5.1992. EXT.P6 - TRUE COPY OF THE DECREETAL PORTION IN LAR NO.79/83 DATED 23.5.1992. EXT.P7 - TRUE COPY OF THE JUDGMENT IN LAA NO. 522 OF 1994 AND 683 OF 1995 OF THIS HON'BLE COURT DATED 26.2.2003. EXT.P8 - TRUE COPY OF THE IA NO. 2697 OF 2001 DATED 28.07.2001 BEFORE THE 2ND ADDL. SUB COURT, TRIVANDRUM. EXT.P9 - TRUE COPY OF THE ORDER ON I.A. NO. 2697 OF 2001 DATED 19.6.2004 ON THE FILE OF THE SECOND ADDITIONAL SUB COURT, THIRUVANANTHAPURAM. // TRUE COPY // PA TO JUDGE rhs HARUN-UL-RASHID, J - - - - - - - - - - - - - - - - - - - - - - - W.P(C)No. 28077 of 2004 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of March, 2009 J U D G M E N T The claimants 8, 15, 17 and 7 in LAR No. 79 of 1983 on the file of the Second Additional Sub Court, Thiruvananthapuram are the petitioners herein. The very same petitioners are the claimants 1, 7, 11 and 16 in LAR No. 76 of 1983 on the file of the same court. LAR No. 76 of 1983 relates to apportionment of the compensation amount claimants No.21, 23, Kunhipachi and 1,7,11 and 16 and connected LAR No. 79 of 1983 relates to enhancement of compensation. There are altogether 24 claimants and one Kunhipachi in the apportionment case. The apportionment of the compensation was ordered only in favour of claimant Nos.21, 23, Kunhipachi and 1, 7, 11 and 16. That means, the apportionment was ordered in favour of 7 persons, though 24 claimants altogether claimed apportionment of compensation. 2. In LAR No. 79 altogether, from the original 18 claimants subsequently additional 19, 20 are added. The claimants Nos. 8,15,17 and 7 are the same persons who are the claimants Nos. W.P(C)No. 28077 of 2004 -2- 1, 7, 11 and 16 in LAR No. 76 of 1983. Though from the 20 claimants in LAR No. 79 of 1983, the enhancement was awarded only in favour of 7 claimants. These 7 claimants are claimant Nos. 21, 23, Kunhipachi and 8, 15, 17 &7 (1, 7, 11 and 16 in L.A.R. No. 76 of 1983). So it is very clear that the very same 7 claimants including 4 petitioners are granted a decree for apportionment and enhancement of compensation. So the compensation has to be distributed between the aforesaid 7 persons in the manner in which it was decreed in LAR No. 76 of 1983. 3. But without noticing the array of parties in the respective cases some mistakes crept in, while decreeing LAR No.79 of 1983. In fact the claimants who are entitled to enhanced compensation in LAR No. 79 of 1983 are claimants 1,7,11 and 16 corresponding to 8, 15, 17 and 7 in LAR No. 79 of 1983, plus claimants 21, 23 and Kunhipachi. Since the parties are wrongly described the decree and judgment in LAR No. 79 of 1983 needs correction. Instead of granting decree in favour of 8, 15, 17 and 7 the court below granted decree in favour of 1, 7, 11 and 16 following the same party array in LAR No. 76 of 1983. W.P(C)No. 28077 of 2004 -3- Though this mistake was brought to the notice of the court by the petitioner in the I.A.2697 of 2001, the court below did not appreciate the mistake that crept in the judgment and decree due to wrong understanding. The I.A. was dismissed holding that the judgment and decree cannot be corrected as requested by the petitioners. In the preceding paragraphs, I have narrated factual position in both cases and how the mistake has crept in LAR No. 79 of 1983. Therefore, since the party array in LAR No. 79 of 1983 was wrongly shown, the claimants who were awarded enhanced compensation cannot claim compensation until and unless the decree and judgment is amended by correcting the array of parties. In the circumstances, Ext.P9 order so far as I.A.No. 2697 of 2001 is quashed. The very same parties arrayed in LAR No.76/83 namely, 1,7,11 and 16 are claimant Nos. 8, 15, 17 and 7 in LAR No. 79 of 1983. The decree passed in LAR No. 79 of 1983 is in favour of claimant Nos. 8, 15, 17 and 7 instead of 1,7,11 and 16. So the decree and judgment shall be corrected in the manner shown above. More over this Court in Ext.P7 judgment also pointed out that there is a clerical error in LAR No. 79 of 83 with regard to the name of the W.P(C)No. 28077 of 2004 -4- claimants. This Court also held that the appellants are entitled to get the decree corrected from the lower court. 4. The legal heirs of the 1st claimant in LAR No. 79 of 83 submitted that they were granted compensation by the reference court. The award was passed in favour of the claimants including claimant No.1. By the correction made by this Court the position has entirely changed and they are not entitled to any compensation under the decree. According to the legal heirs of the 1st claimant, in fact they are also entitled to enhanced compensation for the properties acquired from them; but by wrong decree passed by the court below no additional compensation was granted in favour of the 1st claimant. It is also submitted that the correction was made only at this distance of time and therefore, they are not able to file any appeal and that there was no necessity for filing any appeal since the decree stands in favour of the 1st claimant till this date. 5. In the facts and circumstances of this case, I feel that the legal heirs of the 1st claimant and other similarly situated claimants are entitled to file an appeal against the original decree and judgment, if they choose to do so. The legal heirs of W.P(C)No. 28077 of 2004 -5- the 1st claimant and other aggrieved claimants are at liberty to prefer an appeal against the corrected judgment and decree passed by the court below. The Second Additional Sub Court, Thiruvananthapuram is directed to correct the judgment and decree in terms of the findings stated above. Appropriate corrections shall be made within a period of three months. The writ petition is allowed. HARUN-UL-RASHID JUDGE rhs