Mini K.V. v. Land Acquisition Officer, Spl. Tahsildar (LA), NH-II, Aluva; The Executive Engineer, Kerala Public Works Department, Roads Division, Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** **RP.No.597 OF 2020 IN WP(C). 2756/2017** **AGAINST THE ORDER/JUDGMENT IN WP(C) 2756/2017(T) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER** **MINI K.V. AGED 65 YEARS W/O.DR.VARGHESE MANGALATH, POTTAYIL LANE, THRISSUR-680 004.** **BY ADVS. SRI.DINESH R.SHENOY SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY SHRI.SILESH S. PRABHU** ## **RESPONDENTS/RESPONDENTS:** **1 THE LAND ACQUISITION OFFICER, SPL.TAHSILDAR(LA), N.H.II, ALUVA-683 101. 2 THE EXECUTIVE ENGINEER, KERALA PUBLIC WORDS DEPARTMENT, ROADS DIVISION, ERNAKULAM, PIN-682 030.** ## **SRI.SURIN GEORGE IPE,SENIOR GOVERNMENT PLEADER** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 **RP.No.597 OF 2020 IN WP(C). 2756/2017** **CR** ## **ORDER** ## **Dated this the 17th day of December 2020** ## This review petition is filed by the writ petitioner seeking to review the judgment dated 10.04.2017, which reads thus:- “ _Petitioner is the owner of 0.0101 hectors of land comprised in Block No.XI, survey No.413/147 of Angamali Village. The property was acquired by initiating proceedings under the Land Acquisition Act, 1894. According to the petitioner, 80% of the amount has been paid to the petitioner after passing Ext.P1 draft award. However, there is no final award passed, consequent to which petitioner is entitled to get benefit of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 especially by virtue of Section 24(1)(a) of the said Act. It is thus seeking appropriate directions for payment of the balance amount under the provisions of the new Act, 2013, this writ petition is filed._ _2. Heard learned counsel for the petitioner and learned Senior Government Pleader and perused the documents on record and pleadings put forth by the petitioner._ 3 ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** _3. Learned counsel for the petitioner reiterated the contentions raised in the writ petition. Learned Government Pleader on instructions submitted that the balance amount can be deposited within three months, and a final award will be passed within six months from the date of receipt of a copy of this judgment and the same is recorded. Accordingly, there will be a direction to the respondents to deposit the balance amount as undertaken and pass final award in the case of the petitioner, also bearing in mind that the Land Acquisition Act,2013 has come into force with effect from 01.01.2014._ _Writ petition is disposed of accordingly.”_ 2. The paramount contention advanced in the review petition is that, consequent to the directions contained in the judgment, an award was passed on 16.06.2020 and communicated to the petitioner on 2206 2020, which is _per se_ illegal, as the earlier proceedings for acquisition under the Land Acquisition Act, 1894 (hereinafter referred to as the Act, 1894) has lapsed by operation of Section 11A of the said Act. However, at the outset, it is made clear that, consequent to the judgment rendered by this Court, the direction was complied with and therefore, the judgment was acted upon. In that view of the matter, 4 ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** _prima facie,_ a review is not maintainable, especially in view of the judgment of the Apex Court in **State of Nagaland and Another v. Toulvi Kibami and another [2003 (8) SCC 671],** by which the law was laid down that if the judgment was acted upon, no review is maintainable. 3. That apart, going through the reliefs that were sought for in the writ petition and the pleadings and legal grounds raised therein, review petitioner wanted only directions to the respondent to pass final award in LAC No.1/11 in accordance with the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter referred to as the Act, 2013) and a further mandamus directing the respondent to calculate the compensation under the provisions of Act, 2013 and pass final award. It was taking into account the vital pleadings put forth and the reliefs sought for, the writ petition was allowed and appropriate directions were issued. But surprisingly, the grounds raised in the review petition to review the judgment is quite contrary to the pleadings and the reliefs sought for by the petitioner in the writ petition and in all respects, such grounds are raised after the award was passed as an afterthought, and 5 ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** therefore totally alien and strange in a petition for review of a judgment. That said, an application for review would lie only when the order suffers from an error apparent on the face of the record and permitting the same to continue would lead to failure of justice. It is also a settled legal position that a review petition need to be entertained only if such ground was raised in the writ petition and the court had omitted to consider it. Merely because the petitioner could not point out all the aspects of the case in the writ petition, it cannot be a ground to bring in new facts and seek for review of the judgment. It is also a settled legal position that new questions cannot be raised in a review petition. 4 It was, in fact, taking into account Section 24 of the Act, 2013 dealing with lapsed land acquisition proceedings under the Act, 1894 the reliefs were granted. The provisions read thus: “24. **Land acquisition process under Act No. 1 of 1894 shall be deemed to have lapsed in certain cases.** –(1) Notwithstanding anything contained in this Act, in any case of land acquisition proceedings initiated under the Land Acquisition Act, 1894,— (a) where no award under section 11 of the said Land Acquisition Act has been made, then, all provisions of this Act relating **RP.No.597 OF 2020 IN WP(C). 2756/2017** to the determination of compensation shall apply; or (b) where an award under said section 11 has been made, then such proceedings shall continue under the provisions of the said Land Acquisition Act, as if the said Act has not been repealed. (2) Notwithstanding anything contained in sub-section (1), in case of land acquisition proceedings initiated under the Land Acquisition Act, 1894 (1 of 1894), where an award under the said section 11 has been made five years or more prior to the commencement of this Act but the physical possession of the land has not been taken or the compensation has not been paid the said proceedings shall be deemed to have lapsed and the appropriate Government, if it so chooses, shall initiate the proceedings of such land acquisition afresh in accordance with the provisions of this Act: Provided that where an award has been made and compensation in respect of a majority of land holdings has not been deposited in the account of the beneficiaries, then, all beneficiaries specified in the notification for acquisition under section 4 of the said Land Acquisition Act, shall be entitled tocompensation in accordance with the provisions of this Act.” 5. Therefore, it is clear that the case put forth by the petitioner would squarely fall under Section 24(1)(a) of Act, 2013 and the issue raised in the writ petition was absolutely covered also by a conjoint reading of the provisions contained thereunder. In the fact scenario, ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** the heading of the provision has a very vital significance, because it is to deal with lapsed land acquisition proceedings, Section 24 was incorporated in Act, 2013 and therefore, it has to serve its purpose. 6. The learned counsel for the review petitioner submitted that, by virtue of the provisions of Section 11A of Act, 1894, having not passed the award within two years from the date of declaration under Section 6 of Act 1894, the proceedings have lapsed. In my considered opinion, it is not correct in view of the peremptory stipulations contained under Section 24(1) of Act, 2013, which clearly specifies that in case of any land acquisition proceedings initiated under the Act, 1894 and where no award under Section 11 of the said Act has been made, then, all provisions of Act, 2013 relating to the determination of compensation shall apply; however, as per sub-clause (b) thereto, where an award under Section 11 has been made, then such proceedings shall continue under the provisions of Act, 1894, as if the said Act has not been repealed. 7. Thus, on a conjoint reading of clauses (a) and (b) of Section 24 (1) of Act, 2013, it is evident that, irrespective of the provisions of Act, 1894, in order to protect the interest of the property owners alone, 8 ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** the provisions are incorporated under Section 24 of Act, 2013. Moreover, petitioner has admittedly accepted 80% of the land value amounting to Rs.8,86,871 as early as on 17-07-2012 and the land was taken possession on 21-07-2012 ie., to say before the Act, 2013 came into force on 01-01-2014. The land was notified in the year 2010 by the PWD for widening a National Highway and the petitioner had no objection in taking possession of the property on receipt of the compensation specified above. It is also significant to note that the review petitioner again filed a writ petition W.P.(C). 10477/2019 seeking to pass award, since the direction in the earlier judgment was not complied with, in which also certain directions were issued taking note of the progress in the matter of granting compensation. 8. That apart, C.O.(C) 321/2020 was filed on 07-02-2020, since the directions in the said judgment was not complied with. Anyhow, now the petitioner has secured a review of the judgment in W.P. (C)10477/2019 in R.P No. 605/2020. It is after all these exercises absolutely on new facts the present review petition is filed . 9. Learned counsel has also taken me through the provisions Section 17 of Act, 1894, dealing with urgent acquisition of land in order ## **RP.No.597 OF 2020 IN WP(C). 2756/2017** to contend that, in those circumstances alone the land will vest with the Government absolutely and free of encumbrances and the question of lapsing the acquisition would not arise. I do not propose to accept the said argument, in view of the discussions made above . Needless to say, the review petitioner has not made out any case of error apparent on the face of the record or other legal infirmities, thus, making the circumstances justifiable to review the judgment in question. Review petition fails, accordingly it is dismissed. **Sd/-** **SHAJI P.CHALY** **JUDGE** **hmh** 10 **RP.No.597 OF 2020 IN WP(C). 2756/2017** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 TRUE PHOTOCOPY OF JUDGMENT DATED 19.8.2019 WPC NO.10477/2019 ANNEXURE-A2 TRUE PHOTOCOPY OF LETTER DATED 17.6.2020 ISSUED BY THE FIRST RESPONDENT, TOGETHER WITH THE COPY OF THE AWARD DATED 16.6.2020, WITH THE NOTES TO AWARD** **RESPONDENTS'/SXHIBITS: NIL**