State of Kerala represented by Special Tahsildar LA.No.1, KIIDC (KINFRA) Palakkad District v. C.A. Babu S/o Dr C.K Kareem and The Managing Director Kerala Industrial Infrastructure Development Corporation (KIIDC)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937** **RP.No. 792 of 2014 () IN LA.App..518/2011 ------------------------------------------AGAINST THE JUDGMENT IN LA.App. 518/2011 of HIGH COURT OF KERALA DATED 27-02-2012 LAR NO.10/02 OF ADDL. SUB COURT, PALAKKAD** **REVIEW PETITIONER(S)/IST RESPONDENT IN LAA:** **-------------------------------------------** **STATE OF KERALA REPRESENTED BY SPECIAL TASHSILDAR LA.NO.1, KIIDC (KINFRA), PALAKKAD DISTRICT, PIN 678 001.** ## **BY SR. GOVERNMENT PLEADER SRI.L.ALOYSIUS THOMAS** **RESPONDENT(S)/APPELLANT AND 2ND RESPONDENT:** **-------------------------------------------** **1. C.A.BABU S/O.DR.C.K.KAREEM, THOTTATHIL HOUSE, CONVENT ROAD CHANGAMPUZHA NAGAR POST 682 033, ERNAKULAM DISTRICT.** **2. THE MANAGING DIRECTOR KERALA INDUSTRIAL INFRASTRUCTURE DEVELOPMENT CORPORATION, VELLAYAMBALAM THIRUVANANTHAPURAM DISTRICT, PIN 695 003.** **R1 BY ADV. SRI.O.RAMACHANDRAN NAMBIAR R1 BY ADV. SRI.GEEN T.MATHEW R2 BY ADV. SRI.G.S.REGHUNATH** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 27-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bka/-** **RP.No. 792 of 2014 ()** ## **----------------------** ## **APPENDIX** ## **PETITIONER'(S) EXHIBITS:** - **ANNEXURE 1 COPY OF THE JUDGMENT IN LAR NO.2/02 DATED 28.08.2002 PASSED BY THE SUB COURT, PALAKKAD.** - **ANNEXURE 2 COPY OF THE JUDGMENT IN LAR NO.3/02 DATED 28.08.2002 PASSED BY THE SUB COURT, PALAKKAD.** - **ANNEXURE 3 COPY OF THE JUDGMENT IN LAR NO.7/02 DATED 23.09.2010 PASSED BY THE SUB COURT, PALAKKAD** ## **RESPONDENT'(S) EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **bka/-** ## **P.R. RAMACHANDRA MENON, & ANIL K. NARENDRAN, JJ.** -------------------------------------------------- R.P. No. 792 of 2014 in L.A.A. No. 518 of 2011 -------------------------------------------------Dated this the 27[th] day of January, 2016 ## **O R D E R** ## P.R. Ramachandra Menon, J. This review petition has been filed at the instance of the State, who was the 1[st] respondent in LAA No.518/2011 preferred by the claimant, arising from the judgment and decree dated 12.04.2011 in LAR No.10/2002 of the Additional Sub Court, Palakkad. 2. The crux of the contention put forth is that the 1[st] respondent is not entitled to have the compensation for the entire extent of land and that the rights and liberties are there for some others as well, who are the co-owners of the property, to the extent as already fixed by the reference court in the verdict passed in LAR Nos.2/2002, 3/2002 and 7/2002, copies of which have been produced as Annexures 1 to 3 along with the memorandum of this R.P. No. 792/2014 ..2.. ## review petition. 3. The sequence of events reveals that a total extent of 6.78 hectares (1674.66 cents) of land was sought to be acquired at the instance of KINFRA for the purpose of formation of an integrated township at Kanjikode, Palakkad District, which led to various proceedings. The compensation awarded by the Land Acquisition Officer in the concerned cases was projected as a subject matter of dispute in LAR Nos.2/2002, 3/2002 and 7/2002. According to the review petitioner, they were entitled to have share to an extent of 84.13% in LAR No.2/2002, 95.89% in LAR No.7/2002 and 83.18% in LAR No.7/2002 of the total amount deposited, as worked out by the review petitioner. This being the position, the 1[st] respondent, who was the appellant in LAA No.518/2011 (arising out of LAR No.10/2002), could have been granted benefit only to a lesser extent and not the entire extent. Hence, the grievance. 4. The fact remains that though the concerned parties had raised a claim in LAR Nos.2/2002, 3/2002 and R.P. No. 792/2014 **==> picture [20 x 8] intentionally omitted <==** 7/2002, no such case was projected by them in respect of LAR No.10/2002 and further, they had never sought for enhancement of compensation awarded by the LA Officer. As a matter of fact, enhancement of compensation was sought for, seeking a reference under Section 18 of the Land Acquisition Act only by the 1[st] respondent herein, thus, leading to LAR No.10/2002. In so far as the property involved in this case is concerned, the reference court enhanced the amount and awarded the benefits including all statutory benefits owing therefrom, which, however, was not palatable to the 1[st] respondent, who sought to prefer LAA No.518/2011. The said matter was considered along with the other connected cases and a verdict was passed by another Division Bench of this Court on 27.02.2012, whereby enhancement of the award to an extent of 2,484/- per cent was given as the market value of the land with all statutory benefits. Much later, the said verdict is sought to be reviewed by the State, contending that the 1[st] respondent was not actually entitled to have the enhancement for the entire extent of land based on the R.P. No. 792/2014 **==> picture [20 x 8] intentionally omitted <==** apportionment order of the reference court in LAR Nos.2/2002, 3/2002 and 7/2002, wherein Annexures 1-3 verdicts have been passed. 5. Heard the learned Government Pleader appearing on behalf of the review petitioner; Mr.O.Ramachandran Nambiar, the learned counsel appearing on behalf of the 1[st] respondent/appellant/ claimant; and Mr.G.S.Reghunath, the learned senior counsel appearing on behalf of KINFRA. 6. The learned counsel on behalf of the 1[st] respondent submits that the review petition itself is not maintainable by virtue of the bar under Sub-rule (2) of Order XLVII, providing for the power of review. It is pointed out that, it was very much open to the review petitioner/State to have projected their case, when the matter was pending consideration before the appellate court and having not chosen to do so, the review petition is not maintainable either on facts or on law. Reliance is also sought to be placed on the verdict passed by a learned Single Judge of this Court in **Karthy** v. **Parukutty** R.P. No. 792/2014 **==> picture [20 x 8] intentionally omitted <==** [1999 (3) KLT 850]. The scope of review is sought to be explained with reference to the judgments rendered by the apex court in **Haryana State Industrial Development Corporation Ltd.** v. **Mawasi & Others** [2012 (7) SCC 200] and **State of West Bengal & Others** v. **Kamal Sengupta & Another** [2008 (8) SCC 612]. 7. With regard to the question of maintainability, as put forth by the learned counsel for the 1[st] respondent, we find that the bar under Sub-rule (2) is with reference to the pendency of the proceedings preferred at the instance of the party on the opposite side. For convenience of reference, Sub-rules (1) & (2) of Order XLVII Rule 1 with the explanation thereunder are extracted below; - “1. Application for review of judgment - - (1) Any person considering himself aggrieved - - (a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; - (b)by a decree or order from which no appeal is allowed, or - (c)by a decision on a reference from a Court exercising small cause jurisdiction, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his R.P. No. 792/2014 ..6.. knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review. Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.” On a meticulous reading of the above provisions, it is clear that, by virtue of the mandate of the rule, the reason that a party has already preferred an appeal being aggrieved by the judgment/decree passed by a court, will not be a bar on the way of the other side in filing a review petition, if the same is sustainable in law. The provision also makes it clear that under specific circumstances, i.e., when the ground of appeal is common to the applicant and the appellant, or when being a respondent, the party, who seeks review, can present before the appellate court, such R.P. No. 792/2014 ..7.. review is not maintainable. The reference made in the above provision to the judgment is to the judgment passed by the court below, from which, appeal is preferred by the party on the other side. The said stage is already over and the appellate court has passed the final verdict on 27.02.2012 by virtue of which, the verdict already passed by the reference court got merged with the former. 8. Then, the remaining question is only whether there is any ground to invoke the power of review in terms of Sub-rule (1) of Order XLVII Rule 1. The point now mooted before this Court is that the 1[st] respondent is not actually entitled to have the entire compensation for the total extent of land acquired in view of the apportionment already ordered by the reference court in LAR Nos.2/2002, 3/2002 and 7/2002 as mentioned above. Admittedly, such a case was never mooted either before the reference court or even before the appellate court. The case now projected by the review petitioner appears to be a new one, which does not have any leg to stand, having not raised before the reference court or the appellate court. R.P. No. 792/2014 **==> picture [20 x 8] intentionally omitted <==** Even if it is assumed that the 1[st] respondent is not having any right to receive the entire extent of compensation, there is no dispute with regard to the fact that the entire extent was acquired by the State at the instance of the 2[nd] respondent/KINFRA and that compensation is payable for the entire extent. Admittedly, the beneficiaries to Annexures 1-3, who were said as co-owners, have not raised any claim in respect of the land in question in so far as LAR No.10/2002 is concerned. The question is whether the case, as now projected by the State, can be entertained at this stage (supported by the 2[nd] respondent/requisitioning authority) for the reason that no claim was mooted by the other co-owners in terms of Annexures 1-3. So as to invoke the power of review in terms of Sub-rule (1) of Order XLVII Rule 1, there has to be sufficient material/ground calling for interference, with reference to the errors apparent on the face of the record or that despite due diligence taken by the review petitioner, the matter could not be brought to the notice of this Court or the reference court at the appropriate time. R.P. No. 792/2014 ..9.. It is seen that the State was a party to the proceedings before the reference court when the verdict was passed in LAR No.10/2002, more so since, they were very much represented in Annexures 1-3 verdicts. The scope of review has been explained by the Apex Court on an occasion, holding that no rowing enquiry is contemplated or no new fact finding adjudication mechanism is involved or warranted in the process of exercising the power of review. The position of law stands made clear by the Apex Court in **Meera Bhanja** v. **Nirmala Kumari Choudhury** [AIR 1995 SC 455], which was followed by the Apex Court in subsequent decisions as well, including **Haryana State Industrial Development Corporation Ltd.** 's case (cited supra). 9. In the above circumstances, we find that the grounds now raised by the review petitioner/State, referring to the alleged ineligibility to receive the entire extent of compensation in view of Annexures 1-3 was never an issue either before the reference court or before the appellate court, though it might have been a matter, R.P. No. 792/2014 **==> picture [26 x 8] intentionally omitted <==** which was forming part of the records of the acquisitioning or requisitioning authority. It is seen that due diligence was never taken by the acquisitioning or requisitioning authority at the relevant time and it is too late on the day to consider the said point invoking the limited jurisdiction of this Court in exercising the power of review. This Court finds that the idea and understanding of the review petitioner is totally wrong and misconceived. No interference is warranted. The review petition fails and it is dismissed accordingly. Sd/- **P.R. RAMACHANDRA MENON JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** bka/- //True copy// PA to Judge