IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 11TH MARCH 2009 / 20TH PHALGUNA 1930 RP.No. 159 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN LAA.398/1989 .................... REVIEW PETITIONER/RESPONDENT: ---------------------- FR.GEORGE CHALANGADY VICAR, ST. GROGRY'S CHURCH PUNNAPRA, NOW REPRESENTED BY THE PRESENT VICAR, FR. SEBASTIAN MANNAMTHURUTHI, AMBALAPUZHA TLUK, ALAPPUZHA DISTRICT. BY ADV. SRI.PHILIP MATHEW RESPONDENT(S)/APPELLANT/RESPONDENT NO.2: --------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA. 2. SRI. ANTONY, S/O. OUSEPH, MULANTHARATH, THAYANKARI, KOZHIMUKKU, ALAPPUZHA DIST. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: PIUS C. KURIAKOSE & C.K.ABDUL REHIM, JJ. ----------------------------------------------- CM.Appln. No. 318 of 2009 & RP. No. 159 OF 2009 in LAA. No. 398 of 1989 ----------------------------------------------- Dated this the 11th day of March, 2009 O R D E R Pius C. Kuriakose, J. The petitioners seek review of this court's judgment dated 10-9- 1994 to the extent the same decides that the petitioners who were respondents claimants in the appeal will not be entitled to get interest on solatium and to the extent that the petitioners have not been granted the additional amount payable under section 23(1-A) of the Act. It will be noticed immediately that the petitioners cannot have any legitimate claim for payment of the additional amount under section 23(1-A) since the land acquisition officer's award in this case was passed on 23-3-1982, much prior to the cut off date of 30-4-1982 as reiterated by the Constitution Bench of the Supreme Court in K.S.Paripoornan's case-II. The ground which is prominently raised and seriously urged before us is the ground raised on the judgment of the Constitution Bench in Sunder's case. It has been very clearly held by the Constitution Bench in Sunder v. Union of India (2001)7 SCC 211) that interest on solatium is available at the enhanced rates as per the amended Act for all proceedings pending before the reference court between 30-4-1982 and 24-9-1984 the date when the Amended Act RP.N0.159/09 & CM.Appln. No.318/09 -2- came into force. In the instant case, reference court passed award only on 30-7-1988 and if the decision of the Constitution Bench of the Supreme Court in Sunder's case is to be followed the review petitioners will certainly become entitled for interest on solatium. 2. The one question which immediately arises is whether the judgment of the Constitution Bench which was delivered years after the judgment of this court which is dated 10-9-1996 can be a ground for reviewing the judgment of this court. Ordinarily, we would have answered the above question in the negative. But we find that what the Constitution Bench has done is to declare the existing law in respect of eligibility for payment of interest on solatium as it always has been. In that view of the matter we hold that since law has been declared by the Constitution Bench in Sundar's case the review petitioners will become entitled for interest on the solatium which is payable to them under section 23(2) at the rates provided under section 28 till payment is made. 3. But we notice that I.A.4447/07 filed by the petitioners later converted as review petition was filed only on 22-2-2007 which is years after the Constitution Bench gave its verdict in Sunder v. Union of India. We noticed this aspect of the matter while considering C.M. Application No. 318 of 2009 which was filed by the petitioners seeking condonation of the delay caused in filing the review petition. We had RP.N0.159/09 & CM.Appln. No.318/09 -3- specifically ordered in the C.M. Application No. 318 of 2009 that in the event of the review petition being allowed and the appellant becoming entitled for relief, the period of delay condoned by that order will not be reckoned for the purpose of calculating the statutory interest to which the review petitioners becomes entitled. When the attention of Mr.Philip Mathew, learned counsel for the review petitioner was drawn to our order in C.M. Application No. 318 of 2009 Mr. Philip submitted that the entire compensation including interest which is payable on solatium by virtue of the judgment of the Constitution Bench was disbursed during the pendency of the appeal itself to the review petitioners. He submitted that nothing more will be due to the review petitioners by virtue of the judgment in review petition. But the review petitioners became obliged to file the review petition because the Government is claiming recovery of amounts paid towards interest on solatium on the allegation that such payment was unauthorised due to the judgment of this court in appeal. 4. As directed by us, Sri.Philip Mathew, learned counsel for the review petitioners has filed a statement showing the details of the amounts received by the review petitioners towards solatium and interest on solatium pursuant to the judgment of the reference court which was modified by the judgment of this court. That statement will show that the entire amount payable towards solatium and interest on RP.N0.159/09 & CM.Appln. No.318/09 -4- solatium was deposited by the State on 24-10-1989 (seven years prior to the judgment of this court in appeal) and disbursed to the review petitioners in January 1990 long before this court delivered judgment in the appeal which is now sought to be reviewed. The total amount paid to the review petitioners on account of interest on solatium is Rs.1,27,875/-. We accept the above statement as correct and hold that the amount disbursed to the review petitioners towards interest on solatium which becomes payable to the review petitioners under the judgment now sought to be reviewed is only Rs.1,27,875/-. We are informed that E.P. has been filed by the Government seeking recovery of larger amounts. We do not propose to say anything about the correctness of the amount claimed by the Government in the E.P. which is said to be pending. We will only observe that the Government will not be entitled to recover the sum of Rs.1,27,875/- which was paid to the review petitioners towards interest on solatium. We are certainly inclined to allow the review petition and thereby declare that the Government is not entitled to recover the sum of Rs.1,27,875/- already released to the petitioners towards interest on solatium. However, imbibing the spirit of the order which we had passed on C.M. Application No. 318 of 2009 we are inclined to recall that order and dispose of the C.M. Application as well as this review petition by passing the following common order. RP.N0.159/09 & CM.Appln. No.318/09 -5- The R.P. and C.M. Application will stand allowed as prayed for on condition that the review petitioners will be liable to pay to the Government a sum of Rs.42,625/- (being one-third of the amount paid towards interest on solatium) In other words, the Government will be entitled to recover from the review petitioners only the above amount of Rs.42,625/- on account of interest on solatium paid in excess. It is clarified once again that we have not decided the correctness of the amounts claimed back by the Government from the review petitioners on other counts. We are not inclined to grant the request of Sri.Philip Mathew for refund of full court fee based on section 68 of the Court Fees and Suits Valuation Act since it is not on the ground of error apparent or mistake that we have allowed the review petition. (PIUS C.KURIAKOSE, JUDGE) (C.K.ABDUL REHIM, JUDGE) KSV/-