Abraham Mathew & Leelamma v State of Kerala represented by the District Collector, Pathanamthitta & The Managing Director, KINFRA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 27TH JUNE 2011 / 6TH ASHADHA 1933 RP.No. 241 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN LAA.1289/2009 .................... REVIEW PETITIONER(S): APPELLANTS/CLAIMANTS 1 & 2 ------------------------------------------------ 1. ABRAHAM MATHEW, S/O.MATHAI, AALUNILKKUNATHIL, PUTHENPEEDIKA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. 2. LEELAMMA, W/O.ABRAHAM MATHEW, AALUNILKKUNATHIL, PUTHENPEEDIKA MURI, OMALLOOR VILLAGE, PATHANAMTHITTA DISTRICT. - BY ADV. SMT.SREEDEVI KYLASANATH SMT.SHALEENA RAJAN SRI.T.K.KOSHY RESPONDENT(S)/RESPONDENTS/RESPONDENTS: -------------------------------------------------------------------- 1. THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, PATHANAMTHITTA. 2. THE MANAGING DIRECTOR, KINFRA, THIRUVANANTHAPURAM. R1 BY SR. GOVT. PLEADER SRI. V.T.K. MOHANAN R2 BY SR. ADV. SRI.G.S.REGHUNATH THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 27/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **PIUS C. KURIAKOSE & K.SURENDRA MOHAN, JJ.** ----------------------------------------------RP. No. 241 of 2011 in LAA. No. 1289 of 2009 ----------------------------------------------Dated this the 27th day of June, 2011 ## **O R D E R** ## **Pius C.Kuriakose, J.** The appellants claimants seek review of our judgment dated 26-11-2009 on various grounds. The property of the claimants situated in Enadimangalam Village in Adoor Taluk was acquired at the instance of KINFRA for the purpose of construction of a Food Processing Park pursuant to Section 4(1) Notification dated 19-12-2003. The L.A. Officer awarded land value at the rate of Rs.4600/- per Are. The reference court on evaluating the evidence adduced before that court re-fixed the land value at Rs.10,000/- per Are. Even though there was a claim for enhancement of value of improvements the reference court did not grant any enhancement towards value of improvements. On hearing the counsel for the appellants we noticed our own judgment in LAA. No. 1341 of 2007 and connected cases. Under that RP. 241 of 2011 -2- judgment pertaining to acquisition of identical land for the same purpose pursuant to the same notification we had refixed the value of the lands at Rs.11,000/- per Are. Even though the market value of the land was re-fixed at Rs.11,000/- per Are relying on the Supreme Court Judgments referred to in that judgment we made a deduction of 10% in cases involving large extents. As the present case was involving acquisition of large extent of 1.47 hectares we became obliged to re-fix the land value in the present case at Rs.9900/- per Are. However, as the appeal was preferred by the claimants, we did not interfere with the rate of Rs.10,000/- per Are fixed by the reference court. Thereafter, we proceeded to award a lump sum of Rs.31,000/- towards additional value of improvements. 2. One of the grounds on which review of our judgment is sought for is that the reference court in a subsequent judgment dated 23-2-10 which is subsequent to our judgment dated 26-11-2009 had re-fixed the value of land RP. 241 of 2011 -3- at Rs.35,000/- per Are. Yet another ground on which review is sought for is that this Court was not justified in making a deduction of 10% of the market value of Rs.11,000/- per Are fixed under the common judgment in LAA. No. 1341 of 2007 Dr.K.P.Kailasanatha Pillay, learned Sr. Counsel for the review petitioner addressed us on the various grounds raised in the memorandum of review and he gave more thrust in his submissions to the two grounds indicated above. Apart from that, he submitted that our judgment be recalled and reference case be remanded to the reference court giving opportunity to both sides to adduce further evidence. According to the learned senior counsel the subsequent judgment of the reference court fixing the market value of identical lands at Rs.35,000/- per Are is likely to become final as the same is based on acceptable legal evidence adduced by the parties. The learned senior counsel submitted that deduction of 10% from the market value of Rs.11,000/- per Are ordered in this RP. 241 of 2011 -4- case is not justified. Even if this court thought that there was warrant for making some deduction, the percentage of deduction could have been lower. Senior counsel submitted that no prejudice will be occasioned to either party by remanding the matter back to the reference court as both sides will be permitted to adduce evidence. 3. The submission of the learned senior counsel was opposed by Sri. G.S.Reghunath, learned counsel for the requisitioning authority. Mr. Reghunath was supported in his submissions by Sri.V.T.K. Mohanan, senior Govt. Pleader. According to Mr. Reghunath, a subsequent judgment by a reference court can never be justification for review of this court's judgment. Mr. Reghunath submitted that against the subsequent judgments the requisitioning authority had already preferred appeals which are yet to be numbered. According Mr. Reghunath, the optimism expressed by the learned senior counsel regarding the finality to be attained by the subsequent judgment is RP. 241 of 2011 -5- without basis. Mr. Reghunath would justify the cut of 10% made by us stating that the same is done on the basis of binding judgments of the Supreme Court. he opposed the request for remand and submitted that request for remand was not made at all when the appeal was argued. 4. We have very anxiously considered the submissions addressed at the Bar. Having regard to the contours of this Court's jurisdiction for reviewing its own judgments and orders which are delineated under Order 47 Rule 1 of the CPC as explained by many binding judicial precedents we don't find any warrant for review. In the appeal we were concerned with the sustainability of the reference court judgment which was impugned before us on the basis of the evidence which was available on record. We made a reappraisal of the evidence and also noticed our own judgment in LAA. 1341 of 2007 and connected cases which was a detailed judgment passed after hearing the counsel inextenso. Incidentally, LAA. 1341/07 and connected cases RP. 241 of 2011 -6- were argued before us by the very same counsel who argued the present appeal also. We re-fixed the market value at Rs.11,000/- per Are as we were convinced that evidence would not justify fixing a higher market value. The counsel for the present review petitioners appears to be more aggrieved regarding the deduction of 10% made. But as rightly argued by Sri.Reghunath it was relying on the judgments of the Supreme Court in LAO & Sub Collector, Gadwal v. Sreelatha Bhoopal, AIR 1997 SC 2552, Gafar & Ors. v. Moradabad Development Authority & anr. 2007 (7) SCC 614, and State of J & K v. Mohammed Mateen Wani, AIR 1998 SC 2470 that we become obliged to make the deduction of 10% as it was a very large extent which was under acquisition in these cases. If the deduction had been effected the market value of land would have been reduced to Rs.9,900/- per Are. However, we retained the enhancement granted by the reference court which was Rs.10,000/- per Are. RP. 241 of 2011 -7- 5. We are unable to accede to the request of the learned senior counsel for remanding the LAR to the reference court as no such prayer was made before us at the time when the appeal was argued. 6. RP will fail and will stand dismissed. However, we make it clear that this order dismissing the RP will not stand in the way of the petitioners pursuing other remedies available to them. We feel that the remedy of the petitioners, even if their grievance is genuine, lies not in the form of a review before this court. ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(K.SURENDRA MOHAN, JUDGE)** ksv/-