Kerala High Court
The State Of Kerala vs Rajamma on 17 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942
RP.No.710 OF 2019 IN WP(C). 8901/2016
AGAINST THE ORDER/JUDGMENT IN WP(C) 8901/2016(K) OF HIGH COURT OF
KERALA
REVIEW PETITIONER/S:
1 THE STATE OF KERALA
REPRESENTED BY THE SECRETARY, LAND REVENUE,
GOVERNMENT OF KERALA, THIRUVANANTHAPURAM,PIN-695 001
2 THE DIRECTOR,
SURVEY LAND RECORDS, VAZHUTHACAUD,
THIRUVANANTHAPURAM,PIN-695 001
3 THE JOINT DIRECTOR OF SURVEY,
GOVERNMENT OF KERALA, VANCHIYOOR, THIRUVANANTHAPURAM,
PIN-695 001
4 KERALA FOREST WILDLIFE DEPARTMENT,
REPRESENTED BY THE PRINCIPAL CHIEF CONSERVATOR OF
FOREST, GOVERNMENT OF KERALA, FOREST HEADQUARTERS,
VAZHUTHACAUD, THIRUVANANTHAPURAM,PIN-695 001
5 DIVISIONAL FOREST OFFICER,
RANNI DIVISION,DIVISIONAL FOREST OFFICE, RANNI P.O.,
PATHANAMTHITTA, PIN-689 672
6 DIVISIONAL FOREST OFFICER,
KONNI DIVISION, DIVISIONAL FOREST OFFICE, KONNI P.O.,
PATHANAMTHITTA ,PIN-689 691
BY GOVERNMENT PLEADER SPL.GP(FORESTS) SANDESH RAJA K.
RESPONDENT/S:
RAJAMMA
W/O. MADHAVAN PILLAI, RESIDING AT RAHUL BHAVAN,
PULITHITTA KOYIKAL, THULAMPARAMBU, THEKKUMMURI,
HARIPAD REPRESENTED BY POWER OF ATTORNEY HOLDER (1)
DAVOOD, S/O. KOYAKKUTTI, RESIDING AT PAPPAN
KULANGARAVEEDU,KADTHUMURI, THAZHAVA VILLAGE,
KARUNAGAPPALLY TALUK, KOLLAM DISTRICT AND (2)
JETTO,S/O. MR. P.C.FRANCIS, RESIDING AT POOKODAN
RP.710/2019 2
HOUSE, VENDOR, ALAGAPPA NAGAR POST, THRISSUR
DISTRICT
R1 BY ADV. SRI.MILLU DANDAPANI
OTHER PRESENT:
SPL.GP(FORESTS) SANDESH RAJA K.
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON
17.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
RP.710/2019 3
V.G.ARUN, J.
-----------------------------------------------
R.P.No.710 of 2019
in
W.P(C).No.8901 of 2019
-----------------------------------------------
Dated this the 17th day of March, 2021
ORDER
This review petition is filed by the respondents in the writ
petition. As per the judgment sought to be reviewed, the challenge
against Exhibit P12 order, refusing the writ petitioner's demand to
survey his property comprised in old Survey No.283/1A of Perumpetty
Village, was upheld and the 3rd respondent was directed to consider
Exhibit P1 representation with reference to the findings in the
judgment in M.S.A.No.1 of 1981 and to pass orders thereon. The review
petition is filed primarily on the ground that, subsequent to the
judgment in the writ petition, the Honourable Supreme Court has, by
order dated 3.7.2019 in SLP.No.2291 of 2019, ordered status quo with
respect to the findings in MSA.No.1 of 1981. According to the review
petitioners, the said order renders the direction in the judgment otiose
and hence the judgment is liable to be reviewed.
2. Heard Sri.Sandesh Raja, learned Special Government Pleader
(Forests) for the review petitioner and Sri.Millu Dandapani, learned
counsel for the respondent/writ petitioner.
3. Sri.Sandesh Raja drew attention to paragraphs 15 and 16 of
the judgment in the writ petition and the direction therein to contend
that the judgment is rendered, based entirely on the judgment in
MSA.No.1 of 1981 and the Supreme Court having ordered status quo in
the Civil Appeal filed against the judgment in MSA.No.1 of 1981, the
review petition is liable to be allowed.
4. Sri. Millu Dandapani refuted the contention and submitted that
the judgment is not based on the findings in MSA.No.1 of 1981 alone,
but also based on other relevant factors. Alternatively, it is contended
that, even if reliance has been placed on the decision in MSA.No.1 of
1981, the review, based on a subsequent order of the Apex Court
cannot be entertained. According to the learned counsel, the order of
status quo cannot be termed as a new and important factor which was
not within the knowledge of the review petitioners. Reliance is placed
on the decision of the Apex Court in State of West Bengal and
Others v. Kamal Sengupta and Another [(2008) 8 SCC 612] to
contend that, even if the decision on a question of law was rendered
based on the findings in a judgment, which finding is subsequently
reversed or modified by a superior court, that cannot be a ground for
review.
5. The contention of the review petitioner that the judgment
sought to be reviewed was rendered, based on the judgment in
MSA.No.1 of 1981, stands substantiated by paragraphs 15 and 16
extracted hereunder;
"15. The question as to whether the property covered by
Neettu Nos.942 and 948 falls under Ext.P9 notification stands
concluded by the judgment of this Court in M.S.A.No.1 of 1981.
Therefore, it is no longer open for any person to contend that the
property, over which he or she had acquired title on the strength of
Neettu Nos.942 and 948, does not form part of Ext.P9 notification.
The question as to whether the notified lands are lands at the
disposal of the Government has also been considered and answered
holding that they are not lands at the disposal of the Government,
in terms of Section 2(g) of the Kerala Forest Act.
16. Even though the petitioner was not a party to M.S.A.No.1
of 1981, the judgment rendered by a Division Bench of this Court in
the said case will definitely have an impact on the request made by
the petitioner to conduct survey of her land. The impact of the
findings in the judgment in M.S.A.No.1 of 1981 not having been
available for consideration while issuing Ext.P12, it is only
appropriate that the third respondent re-considers the request
made under Ext.P1, in the light of the findings in M.S.A.No.1 of
1981.
In that view of the matter, Ext.P12 is quashed. The third
respondent is directed to consider Ext.P1 representation, with
reference to the findings in the judgment in M.S.A.No.1 of 1981 and
pass appropriate orders thereon, after affording an opportunity of
hearing to the petitioner and the official respondents. Final orders
on Ext.P1 representation shall be rendered within a period of three
months from the date of receipt of a copy of this judgment."
6. The next question is whether the subsequent order of status
quo passed in the appeal filed against the judgment in MSA.No.1 of
1981 is relevant factor necessitating review of the judgment in the writ
petition.
7. In State of West Bengal (supra) the Supreme Court
elaborately considered the power of review vested with Tribunals and
found such power to be akin to the power under Order XLVII Rule 1 of
CPC. The Apex Court also dealt with the divergence of opinion among
the High Courts on the question whether, a subsequent contra
judgment by the same or superior court on a point of law can be
treated as an error apparent on the face of the record for the purpose
of review of an earlier judgment. After elaborate consideration of the
precedents, the court culled out the following principles;
"35. The principles which can be culled out from the
abovenoted judgments are:
(i) The power of the Tribunal to review its order/decision
under Section 22(3)(f) of the Act is akin/analogous to the
power of a civil court under Section 114 read with Order 47
Rule 1 CPC.
(ii) The Tribunal can review its decision on either of the
grounds enumerated in Order 47 Rule 1 and not otherwise.
(iii) The expression "any other sufficient reason"
appearing in Order 47 Rule 1 has to be interpreted in the
light of other specified grounds.
(iv) An error which is not self-evident and which can be
discovered by a long process of reasoning, cannot be
treated as an error apparent on the face of record
justifying exercise of power under Section 22(3)(f).
(v) An erroneous order/decision cannot be corrected in
the guise of exercise of power of review.
(vi) A decision/order cannot be reviewed under Section
22(3)(f) on the basis of subsequent decision/judgment of a
coordinate or larger Bench of the tribunal or of a superior
court.
(vii) While considering an application for review, the
tribunal must confine its adjudication with reference to
material which was available at the time of initial decision.
The happening of some subsequent event or development
cannot be taken note of for declaring the initial
order/decision as vitiated by an error apparent.
(viii) Mere discovery of new or important matter or
evidence is not sufficient ground for review. The party
seeking review has also to show that such matter or
evidence was not within its knowledge and even after the
exercise of due diligence, the same could not be produced
before the court/tribunal earlier."
8. It is no doubt true that the happening of a subsequent event or
development cannot be taken note of for declaring the initial
order/decision as vitiated by an error apparent, but here the position is
different. The judgment has been rendered, based entirely on the
decision in MSA.No.1 of 1981. The consequence of the judgment in
MSA.No.1 of 1981 being reversed, is to render the findings and the
directions superfluous. It is to be noted that Order XLVII Rule 1 of CPC
provides for review of judgments under the following circumstances;
"1. Application for review of judgment
xx xx
.... from the discovery of new and important matter or
evidence which, after the exercise of due diligence, was not
within his knowledge or could not be produced by him at th 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,....."
9. The words "for any other sufficient reason" in Order XLVII Order
1 has been held to mean "a reason sufficient on grounds, least
analogous to those specified in the rule" (see Moran Mar Basselios
Catholicos v. Mar Poulose Athanasius [AIR 1954 SC 526]). In my
considered opinion, the order of status quo in the Civil Appeal filed
against MSA.No.1 of 1981 would fall within the ambit of "any other
sufficient reason". Being so, I find merit in the review petition.
In the result, the review petition is allowed and consequently, the
judgment dated 25.1.2019 in W.P(C).No.8901 of 2016 is recalled.
Post the writ petition for hearing.
Sd/-
V.G.ARUN, JUDGE
vgs
