Sudhakaran v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 24[TH] DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943 REVIEW PETITION NO.1127 OF 2019** **AGAINST THE JUDGMENT DATED 07.11.2017 IN L.A.A.NO.194 OF** **2013 IN L.A.R.NO.106 OF 2009 OF THIS COURT** ## **REVIEW PETITIONER/RESPONDENT:** ## **SUDHAKARAN** **AGED 56 YEARS, S/O GOVINDAN NAIR, ARACKAMOOTHATTU (H), NAYATHODE, ANGAMALY-683572.** **BY ADVS.** **SRI.V.S.CHANDRASEKHARAN SRI.M.V.DAS SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/APPELLANTS:** - **1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKLULAM-682030.** - **2 THE DEPUTY CHIEF ENGINEER (CONSTRUCTION) SOUTHERN RAILWAY, ERNAKULAM-682031.** **BY ADV SRI.A.DINESH RAO, SC, RAILWAYS** **THIS REVIEW PETITION HAVING COME UP FOR FINAL HEARING ON 14.02.2022, THE COURT ON 24.02.2022 DELIVERED THE FOLLOWING:** 2 Review Petition No.1127 of 2019 in LAA No.194 of 2013 ## **O R D E R** ## Ajithkumar, J. 1.74 Ares of land comprised in Sy.No.252/28 of Angamaly Village owned by the petitioner was acquired for the construction of Angamaly-Sabari Railway Line. Notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 14.11.2006. The Land Acquisition Officer passed an award on 19.05.2009 fixing land value as Rs.2,17,706/- per Are. Possession of the property was taken over on 12.06.2009. On the protest of the petitioner, the Collector made reference under Section 18 of the Act, upon which L.A.R.No.106 of 2009 on the file of the Additional Sub Court, North Paravur, has arisen. The reference court enhanced the land value as Rs.4,56,000/- per Are. The State appealed against. In the appeal, L.A.A.No.194 of 2013, this Court re-fixed the land value as Rs.3,88,531/- per Are. 2. Forty one land acquisition appeals, including L.A.A.No.194 of 2013, were decided by this Court as per Ext.A1 judgment. This Court after hearing both sides held in 3 Review Petition No.1127 of 2019 in LAA No.194 of 2013 ## regard to the fixation of land value in paragraph No.43 of Ext.A1 judgment, as follows: 43. We are of the view that the same method can be adopted after giving a reasonable deduction to the value shown in document No.1448/2004, which is Rs.5,20,000/per Are. The dissimilarities of the acquired land with reference to the exemplar land has been reiterated by the Court below. There is no material to take a different view. Other documents relied upon are rightly rejected by the court below for valid reasons. However, taking into consideration all the relevant facts, we are of the view that a uniform deduction of 35% can be made to the value shown in document No.1448/2004. If 35% is deducted, the land value would come to Rs.3,38,000/- per Are. Taking into account a reasonable increase, at 10% per year, on a cumulative basis, for two years it would come to Rs.4,08,980/-. If this value is taken as the value for category No.I, taking into account the formula adopted by the LAO, the value for the following categories will be as under: |as under:|| |---|---| |Category|Valueper Are(Rs.)| |I|4,08,980/-| |II|3,88,531/-| |III|3,69,104/-| |IV|3,50,650/-| |V|3,33,117/-| 4 Review Petition No.1127 of 2019 in LAA No.194 of 2013 3. The property of the petitioner is in category No.II. Therefore, the value of his land was re-fixed by this Court as Rs.3,88,531/- whereby the value fixed as Rs.4,56,000/- by the reference court was reduced. Feeling aggrieved by Ext.A1 judgment, the petitioner preferred S.L.P.(C) No.25107 of 2018 before the Apex Court. However, the petitioner has chosen to withdraw the said S.L.P. and consequently the same was dismissed by the Apex Court on 03.08.2018 as withdrawn. On the said background, the petitioner has filed this review petition under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908. 4. In **Kunhayammed and others v. State of Kerala and another [(2000) 6 SCC 359]** the Apex Court held that in a case, where a special leave petition is dismissed by a non-speaking order, it would not be just to deprive the aggrieved person of the statutory right of seeking relief of review before the High Court. Therefore, the fact that the special leave petition filed by the petitioner was dismissed as per Ext.A2 order by the Apex Court, being an order of 5 Review Petition No.1127 of 2019 in LAA No.194 of 2013 dismissal as withdrawn, it is not an imprimatur to the right of seeking a relief of review before this Court. Therefore, this review petition is maintainable, despite Ext.A2 order. 5. The petitioner would contend that in Civil Appeal No.18904 of 2017, captioned **P.P.Joy v. State of Kerala and others** , which arose on L.A.A.No.101 of 2012 of this Court and connected cases, the Apex Court as per order dated 15.11.2017 has enhanced the land value by modifying the findings of this Court. It is his contention that following the said decision of the Apex Court, another Division Bench of this Court in L.A.A.No.572 of 2013 enhanced the land value. Ext.A5 is a copy of that judgment. As such, the petitioner is entitled to get enhanced land value at par with the increase allowed by the Apex Court. A few more grounds were raised in the review petition. However, all such grounds are with respect to the merits of the case on the basis of principle laid down by the Apex Court in the matter of fixation of land value in various decisions by following the comparison method. 6. The land involved in L.A.A.No.101 of 2012 was in 6 Review Petition No.1127 of 2019 in LAA No.194 of 2013 category No.7. Ext.A3 is the judgment in that case. This Court, after considering the matter in detail, fixed the land value at Rs.2,65,000/- per Are and by doing so, the land value fixed by the Reference Court as Rs.3,71,800/- per Are was reduced to Rs.2,65,000/-. The said decision was challenged in Civil Appeal No.18902-18903 of 2017 and as per Ext.A4 judgment, the Apex Court held as follows: 'The only question agitated is about the adequacy of the compensation awarded by the High Court. The land was acquired by issuance of the Notification issued under Section 4 of the Land Acquisition Act, 1894 on 14.11.2006. The Land Acquisition Officer awarded compensation at the rate of Rs.1,00,076/- per Are. Whereas the reference court awarded Rs.3,71,800/- per Are. The High Court awarded compensation at the rate of Rs.2,65,000/- per Are. The High Court has given severance charges of 50% except in the case where it was confined to Rs.25,000/- per Are. The only question agitated in the Appeals is that the High Court has made the deduction of 60% amount. In our opinion, 60% deduction was excessive deduction. 50% deduction ought to have been made. Cost of land vide Exhibit A-1 dated 23.3.2004 was Rs.5,20,000/- per Are; 50% of that amount would come to Rs.2,60,000/- 7 Review Petition No.1127 of 2019 in LAA No.194 of 2013 per Are and the appreciation at the rate of 15% per annum was given in the instant case, we give it for two years on flat basis, the amount would come to Rs.3,38,000/- per Are that we award, alongwith other statutory benefits. Only the aforesaid modification is made in the impugned order passed by the High Court and the severance charges remain static as determined by the High Court not to be given on compensation enhanced by us as severance awarded by the High Court on overall amount determined by it does not call for further enhancement.' 7. The Apex Court held that the deduction of 60% made by this Court from the land value in Ext.A1, the basic document, was erroneous and proper deduction should have been 50%. It was in that view of the matter, the decision of this Court was modified and land value was enhanced to Rs.3,38,000/- from Rs.2,65,000/-. 8. From a reading of paragraph No.43 in Ext.A1 judgment it can be seen that this Court after considering the comparability of lands under acquisition and the exemplar land adopted the principle of giving appropriate deduction and fix the land value. Value shown in document No.1448/2004, 8 Review Petition No.1127 of 2019 in LAA No.194 of 2013 which was held to be the basis document, is Rs.5,20,000/- per Are. This Court adopted the criteria that 35% shall be the appropriate deduction. Accordingly, value of category-I land was fixed as Rs.4,08,980/-, of course, after adding a reasonable increase, at the rate of 10% per year, to make good the time gap between the basic document, namely, document No.1448 of 2004 and the date of acquisition. 9. The property of the petitioner was included in category-II by the Land Acquisition Officer. Various categories included in the same notification were given proportionate value on the basis of the gradation made by the Land Acquisition Officer, which has been found appropriate by this Court. In such a manner the value of the petitioner's land was fixed at Rs.3,88,531/-. The petitioner has no case that there occurred any error in adopting the gradation as made by the Land Acquisition Officer. The grievance is that while the Apex Court in Ext. P4, judgment enhanced the land value and this Court in Ext.P5 case adopted such hike as the criteria and given enhancement, denying such hike to him, is illegal. 9 Review Petition No.1127 of 2019 in LAA No.194 of 2013 10. When the Apex Court as per Ext.A4 judgment fixed the value of the acquired land by reducing 50% from the valuation in the basic document, this Court fixed the value of the petitioner's land after deducting 35% only from the value of the exemplar land. Viewed the matter in the light of the aforesaid facts, it cannot be said that there occurred any error in fixing the value of the petitioner's land by this Court. 11. It is true that land value fixed by this Court in Ext.A3 judgment was enhanced by the Apex Court in the appeal. The judgment in the appeal is Ext.P4. The land involved in the Ext.A3 case is a totally different category. We have mentioned above, the reason for the Apex court modifying the decision of this Court in Ext.A3 judgment; that this Court reduced 60% from the value of the land in the basic document and the Supreme Court held that deduction of 50% is appropriate. The said decision of the Apex Court has no bearing in this case, inasmuch as the land value here was fixed by reducing only 35% from the valuation of the land in the basic document. We do not, therefore, find any ground to 10 Review Petition No.1127 of 2019 in LAA No.194 of 2013 hold that there is any apparent error in the finding recorded by this Court in Ext. P1 regarding the land value. 12. As pointed out above, all other grounds advanced in the review petition pertain to the merits of the petitioner’s case. It is contended that the method of fixation of land value adopted in Ext.P1 is wrong in the light of various decisions of the Apex Court, which are made mention of in the review petition. Those are the grounds for an appeal and not with respect to any mistake or error apparent on the face of the record or other similar reasons. 13. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court after referring to **Thungabhadra Industries Ltd. v. Govt. of A.P. [AIR 1964 SC 1372], Meera Bhanja v. Nirmala Kumari Choudhury [(1995) 1 SCC 170]** and **Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389]** held thus: 'Under Order XLVII Rule 1 of the Civil Procedure Code 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 11 Review Petition No.1127 of 2019 in LAA No.194 of 2013 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 47 Rule 1 CPC. In exercise of the jurisdiction under Order XLVII 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise".' 14. This principle was reiterated in **Sasi (D) Through** ## **LRs. v. Aravindakshan Nair and others [(2017) 4 SCC** **692]** and followed by this Court in **Babu M. and others v. Union of India and others [2017 (3) KLJ NOC 13].** 15. Viewed in the light of the law laid down by the Apex Court and this Court in the decisions referred to above, none of the grounds raised in the review petition falls within the scope and ambit of Order XLVII Rule 1 of the Code. A review petition has only a limited scope and, cannot be allowed to be 'an appeal in disguise'. The petitioner failed to make out a case warranting interference, based on the additional documents produced along with this review petition also. 12 Review Petition No.1127 of 2019 in LAA No.194 of 2013 16. Hence, holding that there is no mistake or error apparent on the face of the record in the judgment of this Court dated 07.11.2017 in L.A.A.No.194 of 2013, we dismiss the review petition. No order as to costs. Sd/- ## **ANIL K. NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr 13 Review Petition No.1127 of 2019 in LAA No.194 of 2013 ## **APPENDIX** ## **PETITIONER ANNEXURE** |**ANNEXURE A1**|**TRUE COPY OF THE JUDGMENT IN LAA**| |---|---| ||**NO.194 OF 2013**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER DATED**| ||**03.08.2018 OF THE HON'BLE SUPREME**| ||**COURT IN SLP (C) NO.25107 OF 2018**| |**ANNEXURE A3**|**TRUE COPY OF THE JUDGMENT IN LAA**| ||**NO.101 OF 2012 DATED 04.03.2015**| |**ANNEXURE A4**|**TRUE COPY OF THE JUDGMENT OF HON'BLE**| ||**SUPREME COURT IN CIVIAL APPEAL**| ||**NOS.18902-18903 OF 2017**| |**ANNEXURE A5**|**TRUE COPY OF THE JUDGMENT OF THIS**| ||**COURT IN LAA NO.572 OF 2013.**|