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Judgment
N.A. Britto, J.—The present application is for review under Order 47, C.P.C. Heard learned Counsel on behalf of the Appellants/Applicants and learned Government Advocate on behalf of the Respondents.
Shri G. Shirodkar, learned Government Advocate submits that the application for review is nothing but an attempt for re-hearing of the appeal on merits, disposed off by this Court by Judgment dated 11-2-2008, which cannot be allowed.
By Judgment under review, a Division Bench of this Court [to which one of us(Britto, J.) was a party] had dismissed the appeal, and had maintained compensation at the rate of Rs. 143/-per sq. meter as awarded by the learned Reference Court.
It is well settled that power of review can be exercised for correction of mistake and not to substitute a view with another. The Bench had heard the matter, appreciated the evidence on record and had rendered the said Judgment. Whether on appreciation, another view is possible, cannot be a ground for review.
Shri A. F. Diniz, learned Counsel on behalf of the Applicants in support of the application, has placed reliance on a decision of the Apex Court in Green View Tea and Industries Vs. Collector, Golaghat, Assam and Another, wherein the Apex Court referring to its earlier decision in the case of S. Nagarao v. State of Karnataka( 1993 (4) SCC 595) has observed that it is the duty of the Court to rectify, revise and recall its orders as and when it is brought to its notice that certain of its orders were passed on a wrong or mistaken assumption of facts and that implementation of those orders would have serious consequences. The Apex Court has further observed that an act of the Court should prejudice none. In our view, the said observations have no application to the facts of this case, at all. That was a case where certain material on record had escaped the notice of the Court whilst considering the award of compensation and that, in the view of the Apex Court, was a case for review.
Firstly, learned Counsel submits that escalation charges ought to have been given to the Applicants, considering that the sale deed-Exh.19 was prior in point of time to the date of acquisition. This is a submission which was made, reproduced in para 6 of the Judgment but was not accepted by the Court for reasons stated in the remaining part of the Judgment particularly in para 10 wherein it was observed that considering the disadvantage the acquired land had in comparison to the land of sale deed-Exh.19 including that the acquired land was within the set back area of the National Highway on which no construction could have been carried out, and taking overall view of the matter the deduction made, and on the basis of that the compensation fixed to the acquired land at the rate of Rs. 143/-per sq. meter could not be faulted. Allowing the escalation on the basis of the said sale deed, and taking a higher deduction could only be an exercise in futility. A submission which was made, considered, and rejected is no error apparent on the face of record.
Secondly, learned Counsel submits that the Respondents'' Engineer could not have been considered as an expert by this Court. In our view, that could be a wrong view, if at all, but the same cannot be corrected in review jurisdiction.
Learned Counsel then submits that the fact that the Applicants'' land was abutting the highway could not be considered as a disadvantage, and in this context learned Counsel has placed reliance on a decision of the Apex Court in the case of State of Goa and another v. Gopal Baburao Gaudo and others(2009 DGLS 1160) wherein the Apex Court stated as follows:-
A long strip of land measuring more than two-third of an acre lying alongside and adjoining the Highway cannot be treated as a land without value or without any potential for development, merely on the ground that the law relating to Highways prohibited construction on either side of the Highway, upto a depth of 40 meters from the centre of the Highway. All that was required to create or realize potential of such land was to annex or merge the said strip of land with the land to its rear. In that event, the strip of land will become the ''access'' to the rear-side land from the main road and will also become the frontage of the aggregate land, thereby enhancing the potential and value of the rear-side land, as also creating a potential for its own use. The contention that a land adjoining the Highway should be treated as having no development potential(and therefore as land without much value except as ordinary agricultural land), while considering the lands to its rear which are farther away from the road, or other adjoining lands of the same extent, but having more depth(so as to extend beyond the 40 meters margin) as having potential for development, is illogical and cannot be accepted.
This decision was not cited at the time of the hearing of the appeal. That apart, admittedly, the acquired land was abutting on either side of the highway and there was no evidence given by the Applicants as to the width of each strip. On the contrary, there was evidence in this case given by the said Respondent''s Engineer who was associated with the acquisition and who had opined that the acquired land was falling within the building set backs from the center line of the existing highway, and, therefore no construction activity was possible in the said acquisition, and it was observed by this Court that the Applicants were unable to make any dent in his cross examination except for bare suggestions that construction could be done in the acquired land, suggestions which he had denied. We have decided the appeal based on his evidence as well. We have not stated, unlike the case of State of Goa and another v. Gopal Baburao Gaudo and others(supra) that the Applicants land was without any value but accepted the opinion given, and this can be no error apparent.
Yet another submission made is that the cross appeal has remained without being decided. It is submitted that the cross appeal is pending before the learned Single Judge. Learned Counsel on behalf of the parties ought to have ensured that the said cross appeal was brought before the Division Bench of this Court before the appeal was heard. The said cross appeal is bound to be decided on its own merits. That can''t be a ground for review. With the above observations, the review application is rejected. The review application is only an attempt to re-open the appeal at large. We find there is no merit in this review application, and consequently proceed to dismiss the same, with costs.