A. Rubeena v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** # **`THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN`** ``` & ``` ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 3[RD] DAY OF DECEMBER 2021/12TH AGRAHAYANA, ``` ``` 1943 ``` ``` RP NO. 740 OF 2018 ``` ``` AGAINST THE JUDGMENT DATED 19/11/2013 IN LA.App.NO.716 OF 2012 OF HIGH COURT OF KERALA ``` ## **`REVIEW PETITIONER/APPELLANT:`** ``` A. RUBEENA, W/O.VARGHESE, AGED 49 YEARS, MENACHERRY, VALLUVALLY KARA, KOONAMMAVU.P.O, PIN – 683 518. ``` ``` BY ADVS. S. SREEKUMAR (SR.) P. MARTIN JOSE P. PRIJITH THOMAS P.KURUVILLA ANEESH JAMES V.A. JOHNSON ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY SPECIAL TAHASILDAR (LA), N.H.NO.3 VYTTILA ERNAKULAM – 682 019 ``` ``` R BY SPECIAL GOVERNMENT PLEADER SMT.N.SUDHADEVI ``` ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 03.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` -2- RP NO. 740 OF 2018 ## **ORDER** ## Anil K. Narendran, J. The petitioner is the appellant in L.A.A.No.716 of 2012, which is one filed before this Court under Section 54 of the Land Acquisitions Act, 1894 against the judgment and decree dated 19.08.2009 in L.A.R.No.103 of 2007 on the file of the Principal Sub Court, North Paravur. The property owned by the petitioner having an extent of 06.86 Ares in Survey No.410/1B8 of Kottuvally Village in North Paravur Taluk was acquired for the purpose of widening NH-17 (now NH-66) from Varapuzha to Cheriyappilly. The land was acquired under Section 4(1) notification published on 23.08.2004 and possession of the land was taken on 23.01.2006. The Land Acquisition Officer included the property in question in Category No.3 and fixed the land value at the rate of Rs.87,576/- per Are. The total compensation awarded was Rs.9,01,176.07. 2. Dissatisfied with the compensation awarded by the Land Acquisition Officer, a reference under Section 18 of the Land Acquisition Act was sought for, which was numbered as L.A.R.No.103 of 2007 on the file of the Principal Sub Court, -3- RP NO. 740 OF 2018 North Paravur. The reference court re-fixed the market value of the acquired land as Rs.1,44,495/- per Are, thereby granting enhanced land value at the rate of Rs.56,919/- per Are. Dissatisfied with the enhanced land value granted by the reference court, the petitioner filed L.A.A.No.716 of 2012 before this Court, under Section 54 of the Act. 3. In paragraph 5 of the memorandum of appeal and also in ground No.6, the petitioner raised a contention that she is entitled for re-fixation of land value at Rs.1,62,000/per Are, relying on the judgment of this Court in L.A.A.No.1216 of 2010 arising out of acquisition covered by the very same Section 4(1) notification. The property in that appeal is also similarly situated, which was also categorised by the Land Acquisition Officer under Category No.3. After considering the rival contentions, this Court by judgment dated 19.11.2013 dismissed L.A.A.No.716 of 2012. Paragraph 3 of that judgment reads thus; “3. The only evidence to prove the land value was Ext.A1 certified copy of the judgment in L.A.R.No.132/07 passed by the very same court. That was in respect of a property for which, the land acquisition officer fixed land value at Rs.87,576/- per -4- RP NO. 740 OF 2018 are, which was enhanced to Rs.1,44,495/- per are. After considering the evidence adduced by the appellant, the Tribunal came to the conclusion that the properties are similar and similarly situated in the very same locality and both lands were acquired for the same purpose under the same notification. The present contention raised by the appellant is that the acquired property is better than the property involved in Ext.A1 judgment. But, there is no pleading in the appeal memorandum that the finding of the Tribunal that both properties are similar and similarly situated in the very same locality is wrong. On the other hand, for both properties, the land acquisition officer fixed the very same land value and categorised the same in the same category. In the above circumstances, we do not find any merit in the contentions of the appellant. Accordingly, the appeal is dismissed.” 4. Now, the petitioner is before this Court in this review petition, invoking the provisions under Order XLVII Rule 1 of the Code of Civil Procedure, 1908, contending that there is error apparent on the face of the judgment, since the specific contention raised by the petitioner with reference to the judgment of this Court in L.A.A.No.1216 of 2010 was not considered, at the time of dismissal of the appeal. 5. This review petition is filed along with -5- RP NO. 740 OF 2018 C.M.Appln.No.2 of 2018 seeking an order to condone the delay of 1328 days in filing the review petition. The said delay was condoned by the order of this Court dated 27.09.2018, on condition that the petitioner shall not be entitled for interest for the enhanced amount, if any granted, for the period of delay. The last two paragraphs of the said order read thus; “2. Omission on the part of the clerk who was attached to the office of the counsel concerned is the reason projected. The judgment impugned was delivered on 19.11.2013. It is seen from the affidavit filed in support of the application that the clerk attached to the office of the counsel namely one Vipin, was duly instructed and necessary arrangements were made to file review petition. The petitioner was under the impression that review petition was filed. Recently when the petitioner came to know that another appeal namely L.A.A.No.725 of 2012 relating to the same acquisition was disposed of, then the petitioner made enquiries with the counsel regarding the status of the review petition. It was learnt that the clerk who was earlier attached to the office had left the office and that the review petition was not filed as instructed. Thereupon another certified copy was applied for and the review petition is filed immediately thereafter. Thus there occurred the delay. We are satisfied about the explanation offered for the -6- RP NO. 740 OF 2018 condonation of delay. The delay is accordingly condoned. However, considering the inordinate delay involved we decline interest to the petitioner for the amount if any that may be enhanced in the review petition, for the period covered by the delay.” 6. Heard the learned counsel for the petitioner and also the learned Special Government Pleader for the respondent. 7. The issue that arises for consideration in this review petition is as to whether any interference is warranted on the judgment sought to be reviewed, in exercise of the review jurisdiction of this Court under Order XLVII Rule 1 of the Code. 8. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC** **715]** the Apex Court, in the context of the power of review under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order XLVII, Rule 1 of the -7- RP NO. 740 OF 2018 Code. In exercise of the jurisdiction under Order XLVII, Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. 9. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 10. During the course of arguments, the specific contention raised by the learned counsel for the petitioner is that an enhancement of land value with specific reference to the judgment of this Court in L.A.A.No.1216 of 2010 dated 04.01.2011 was sought for in paragraph 5 of the memorandum of appeal in L.A.A.No.716 of 2012 and also in Ground No.6. -8- RP NO. 740 OF 2018 11. On a specific query made by this Court, the learned Special Government Pleader would submit that as contended in the memorandum of appeal, the acquired land in L.A.A.No.1216 of 2010 also falls under Category No.3, which is a land similarly situated to the acquired land in the present review petition. The said land was also acquired under the very same Section 4(1) notification dated 23.08.2004. 12. Having considered the submissions made by the learned counsel on both sides, this Court finds that the petitioner has made out a case warranting interference in exercise of the review jurisdiction of this Court under Order XLVII Rule 1 of the Code. In such circumstances, this review petition is allowed and the judgment dated 19.11.2013 in L.A.A.No.716 of 2012 is modified to the extent of re-fixing the land value of the acquired land in L.A.R.No.103 of 2007 on the file of the Principal Sub Court, North Paravur as Rs.1,62,000/- per Are instead of Rs.1,44,495/- per Are. The petitioner/appellant/ claimant will be entitled for all consequential benefits including the statutory interest for the said amount, in view of the re- -9- RP NO. 740 OF 2018 fixation of land value as above, together with all statutory benefits admissible under Section 23(2), Section 23(1A) and Section 28 of the Land Acquisition Act, 1894. The petitioner/appellant/claimant shall not be entitled to interest on the enhanced compensation, for the period of delay of 1328 days in filing the review petition, which was condoned, subject to the condition stipulated in the order of this Court dated 27.09.2018 in C.M.Appln.No.2 of 2018. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** AV/4/12