State Of Kerala vs Bindhu
2021 Latest Caselaw 20422 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
           THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                     &
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
        FRIDAY, THE 1ST DAY OF OCTOBER 2021 / 9TH ASWINA, 1943
                         WA NO. 758 OF 2018
 AGAINST THE JUDGMENT IN WPC 18853/2010 OF HIGH COURT OF KERALA,
                                 ERNAKULAM
APPELLANTS/RESPONDENTS 1 TO 4 IN WP(C):

    1       STATE OF KERALA
            TO BE REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

    2       DISTRICT COLLECTOR, ERNAKULAM.

    3       REVENUE DIVISIONAL OFFICER, MUVATTUPUZHA.

    4       TAHSILDAR,
            KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.

            BY SR. GOVERNMENT PLEADER SRI.K.P.HARISH


RESPONDENT/PETITIONER IN WPC:

            BINDHU
            W/O. LATE JOSE, PALLASSERY,
            VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK,
            ERNAKULAM DISTRICT, PIN-683 542.

            BY ADVS.
            SRI.ABDUL JAWAD K.
            SMT.A.GRANCY JOSE


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.No.758 of 2018
                                 2


                                                            "C.R."
                           JUDGMENT

Dated this the 1st day of October, 2021

Shaji P. Chaly, J.

The appeal is filed by the State and its officials, who were

respondents 1 to 4 in W.P.(C)No.18853 of 2010, challenging the

judgment of the learned single Judge dated 7.11.2017 whereby,

the learned single Judge quashed Exhibits P7 and P8 orders

passed by the Additional Tahsildar dated 3.5.2010 and 3.5.2010

respectively. The subject issue relates to illegal quarrying

conducted by the husband of the writ petitioner/first respondent

ad-measuring 13125 cubic metres. In fact orders were passed by

the Additional Tahsildar quantifying the value of the rubbles

removed converting the cubic metre into metric tonnes and

thereupon a mistake has occurred in the calculation. It was

accordingly that the clerical error was identified and Exhibit P7

order was passed and the demand was raised as per Exhibit P8

amounting to Rs.5,25,000/- towards royalty and Rs,85,000/-

towards price of the rubbles and thereupon directed the writ

petitioner to remit the balance amount of Rs.5,09,906.00 after W.A.No.758 of 2018

adjusting an amount of Rs.97,225/- paid by the writ petitioner in

accordance with the mistaken calculation.

2. The legality of the impugned orders were challenged by

the writ petitioner stating that there was no power vested with

the statutory authority to review the earlier order passed and

therefore, the orders are bad, arbitrary and illegal and liable to be

interfered with by the writ court. The writ court, after taking into

account the said aspects following the judgment of the Apex

Court in Kalabharati Advertising v. Hemant Vimalnath

Narichania [2010 (3) KLT 986 (SC)], held that a quasi judicial

authority or judicial authority cannot review its own order without

any power conferred under a statute.

3. The legality and correctness of the said judgment is

challenged by the Government basically contending that the

petitioner's husband who was the offender in a land conservancy

case has extracted 13125 cubic metres of rock from the

Government poramboke land and therefore, he or his legal heir is

liable to pay the compensation. It is also pointed out that the

quantity of rock extracted as shown in Exhibit P1 order is 13125

cubic metres. However, when converting the unit of volume of W.A.No.758 of 2018

rock from cubic metre to metric tonnes a clerical mistake crept in

and instead of 32812.50 metric tonnes, it was shown as 5215

metric tonnes in Exhibit P1 order. Therefore, the sum and

substance of the contention advanced by the appellants is that

mere correction of a clerical error will not amount to review and

there was no review of the quantity of the rock illegally extracted

by the husband of the writ petitioner but however with the

findings in respect to quantity of the rock illegally extracted the

quantity when converted to metric tonnes from cubic metre was

mistakenly shown as 5250 and therefore, there was no material

alteration of the finding with respect to the quantity extracted.

The basic contention, therefore, advanced by the appellants is that

there was no review of the order as such but a clerical mistake in

the matter of conversion was corrected by the Tahsildar, which is

permissible under law. Therefore, the submission advanced by the

learned Senior Government Pleader is that the judgment of the

Apex Court in Kalabharati Advertising v. Hemant Vimalnath

Narichania (supra) in regard to the finding rendered that a review

cannot be done without the power conferred on an authority, may

not apply at all in this case. It was also pointed out that if the error W.A.No.758 of 2018

was not corrected by the Tahsildar, on his own motion, there

would have been substantial damages caused to the State

exchequer consequent to the calculation mistake made by the

officer concerned.

4. We have heard, learned Senior Government Pleader

Sri.K.P.Harish for the appellants, and Sri.K.Abdul Jawad and

Smt.Grancy Jose appearing for the writ petitioner/respondent and

perused the pleadings and the material on record.

5. The issue raised in the appeal lies in a very narrow

compass. The question is whether the correction made by the

Additional Tahsildar consequent to the clerical mistake occurred in

conversion from cubic metres to metric tonnes a review under

law. It is true in Kalabharati Advertising v. Hemant Vimalnath

Narichania (supra) the Hon'ble Apex Court had considered the

question with respect to a power exercised by an authority for

reviewing its own order and held that unless there is a power

conferred under statute an authority cannot review its own order.

No doubt, under the Land Conservancy Act, there is no power

conferred on an authority to review its own order. But going

through the facts and circumstances, we find that the authority W.A.No.758 of 2018

has not reviewed its order. The order passed by the authority was

that the husband of the writ petitioner trespassed into a

Government property and conducted illegal quarrying and thus

removed 13125 cubic metres of rock from the property in

question. The said finding in our considered view has not been

altered at all consequent to the correction of the clerical mistake

occurred while converting the measurement from cubic metre to

metric tons.

6. Fact remains, 13125 cubic meters was converted to metric

tonnes and thereupon the authority mistakenly converted it as

5250 metric tonnes instead of 32812.50 metric tonnes. So basically

the findings rendered by the statutory authority in respect of the

illegal extraction of the rock made by petitioner's husband

trespassing into the property in question, has not been altered or

reviewed by the statutory authority. But when a mistake due to a

clerical omission was found while doing the conversion from cubic

metre to metric tonne substantially affecting the public interest in

terms of money, the conversion was done correctly and thus, the

clerical error was rectified. We are unable to agree that the

correction made is a review. In our view, arithmetical or clerical W.A.No.758 of 2018

mistakes can always be corrected by the judicial, quasi judicial and

administrative authorities, which can never be treated as a review

in the eye of law, causing any manner of prejudice to the person in

question. This is basically for the reason that there is no material

alteration to the fundamental findings at all. We are also of the

opinion that one does not have to grope in the dark to find a

source of law in synonymous situations because section 152 of the

Code of Civil Procedure takes care of such corrections, which

specifies that clerical or arithmetical mistakes in Judgments,

decrees or orders or errors arising therein from any accidental slip

or omission may at any time be corrected by the court either on its

own motion or on the application of any of the parties. We do not

think the situation in the case at hand is in any manner different

from the said enabling provision. Therefore we have no hesitation

to hold that the Judgment of the learned single Judge requires

interference. Resultantly appellants are entitled to succeed in the

appeal.

Therefore, the writ appeal is allowed and the judgment of

the learned single Judge in W.P.(C)No.18853 of 2010 dated

7.11.2017 is set aside and hold that Exhibits P7 and P8 orders W.A.No.758 of 2018

passed by the Additional Tahsildar dated 3.5.2010 and 3.5.2010

respectively, are in accordance with law and no manner of

interference was required to the same in the writ petition.

Consequently, the writ petition would stand dismissed.

Pending interlocutory applications, if any, shall stand closed.

Sd/-

S.Manikumar Chief Justice

Sd/-

Shaji P.Chaly Judge vpv

TRUE COPY

P.A. TO JUDGE