IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 WP(C).No. 18463 of 2008(W) -------------------------- AGAINST THE ORDER IN IA 1015/2002 IN LAR.32/1988 of SUB COURT, MANJERI .................... PETITIONER: ------------ K.V. KUNJIMOHAMMED, AGED 62 YEARS, S/O MUHAMMED, PULICKAL AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.BIJU ABRAHAM SRI.B.G.BHASKAR RESPONDENTS: ---------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, MALAPPURAM. 2. K.V. SHAIKUTTY, S/O MOHAMMED, PULICKAL AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. 3. K.V. AVARANKUTTY, S/O MOHAMMED, PULICKAL AMSOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY GOVERNMENT PLEADER SMT.R.BINDU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)18463/08 APPENDIX PETITIONERS’ EXHIBITS:- EXT.P1:- TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. 251/02 IN LAR 32/88 DT. 25.6.2002 ON THE FILES OF SUB COURT, MANJERI. EXT.P2:- TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN I.A. 251/02 IN LAR 32/88 ON THE FILES OF SUB COURT, MANJERY. EXT.P3:- TRUE COPY OF THE ORDER DATED 16.2.2005 IN CRP 1699/02 OF THIS COURT. EXT.P4:- TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF I.A. 1015/02 IN LAR 32/88 ON THE FILE OF SUB COURT, MANJERI. EXT.P5:- TRUE COPY OF THE ORDER IN IA 1015/02 IN LAR 32/88 ON THE FILE OF SUB COURT, MANJERI DT. 25.2.08 EXT.P6:- TRUE COPY OF THE COPY APPLICATION NO.313/08 DT. 1.3.2008 IN IA 1015/02 IN LAR 32/88 ON THE FILE OF SUB COURT, MANJERI, WITH THE OFFICE ENDORSEMENT DATED 28.5.08 EXT.P7:- TRUE COPE OF THE ORDER DATED 4.3.2008 IN IA 1015/02 IN LAR 32/88 ON THE FILES OF SUB COURT, MANJERI. RESPONDENT’S EXHIBITS:- OKB/- //TRUE COPY// P.A. TO JUDGE M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 18463 OF 2008 ------------------------------------------ Dated this the 5th day of August, 2008 JUDGMENT Petitioner is the claimant/decree holder in LAR 32 of 1988 on the file of Sub Court, Manjeri. The State deposited Rs.56,18,233/- on 9.2.1996 before Sub Court, Manjeri as the compensation awarded in the LAR. Subsequent to the disposal of LAA.41 of 1996 the appeal filed against the Award passed by the Sub Court on 18.6.1999, State filed I.A.251 of 2002 an application for withdrawing Rs.12,62,257/- contending that it was excess amount deposited. Petitioner filed an objection to the application. On 18.7.2002 Sub Court allowed I.A.251 of 2002. Petitioner challenged that order in CRP.1699 of 2002. It is thereafter, when the revision was pending, petitioner filed cheque application to withdraw the amount in Court deposit, before the Sub Court on 19.11.2003. The cheque application was allowed on 28.11.2003. CRP.389 of 2004, C.R.P.411 and 594 of 2003 were filed by the State challenging the order allowing the cheque application. CRP.1699 and CRP.389 of WP(C)18463/08 2 2004 were heard together and disposed under Ext.P3 order. This Court found that learned Sub Judge allowed I.A. 251 of 2002 without considering the question whether parties are entitled to the amount. Therefore the order was set aside and I.A. 251 of 2002 was remanded to the Land Acquisition Court for fresh disposal after considering the question whether the State deposited any excess amount and if any excess amount was withdrawn by the petitioner, whether Court can ask for refund of the same. Thereafter, as per Ext.P5 order dated 25.2.2008, learned Sub Judge directed petitioner to re-deposit Rs.22,48,595/- holding that it was an excess payment. This petition is filed under Article 227 Constitution of India challenging Ext.P5 order. 2. Learned counsel appearing for petitioner and learned Government Pleader were heard. 3. Petitioner produced Ext.P6 copy application whereunder the copy application for the order passed on 8.1.2008, referred to in Ext.P5 order, was returned with an endorsement “there was no separate order on 8.1.2008”. In the light of the endorsement in Ext.P6 copy application, a report was called for from Sub Court, Manjeri. Along with the report WP(C)18463/08 3 learned Sub Judge forwarded a copy of the order dated 8.1.2008, which shows that an order was passed on 8.1.2008 to the effect that, the amount due under the decree, as modified in appeal, is Rs.35,58,199/- + income tax of Rs.1,88,561/- and claimant had received Rs.22,48,500/-, in excess of entitlement. On the request of the claimant petition was adjourned to 23.1.2008. 4. Learned counsel appearing for petitioner pointed out that under Ext.P3 order this Court directed learned Sub Judge to re-consider I.A.251 of 2002 and before considering the question and passing an order in I.A. 251 of 2002, learned Sub Judge should not have passed Ext.P5 order and therefore Ext.P5 order is to be quashed. Learned Government Pleader pointed out that under Ext.P3 order this Court directed Sub Court to consider whether claimant is entitled to interest on solatium and also whether income tax is payable and as the claimant is not entitled to the interest on solatium, as it was denied by this Court in L.A.A.41 of 1996, nothing remains to be considered. It was also argued that income tax is also payable. 5. When under Ext.P3 order this Court directed learned Sub Judge to re-consider I.A.251 of 2002, learned Sub Judge was not justified in passing Ext.P5 order directing re-deposit of WP(C)18463/08 4 Rs.22,48,595/-. Learned Sub Judge should have decided I.A. 251 of 2002 and then only passed an order directing re-deposit, if any. In such circumstances Ext.P5 order is quashed. Learned Sub Judge is directed to pass appropriate order in accordance with law in I.A.251 of 2002 and I.A.1015 of 2002 simultaneously. As Ext.P7 order is passed consequent to Ext.P5 order, Ext.P7 order is also quashed. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-