Kerala High Court
Kallodi St. George Forane Church vs K.Mohandas on 11 April, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
RP NO. 445 OF 2024 1
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 11TH DAY OF APRIL 2024 / 22ND CHAITHRA, 1946
RP NO. 445 OF 2024
AGAINST THE ORDER/JUDGMENT DATED IN WP(C) NO.20705 OF 2015 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/S:
KALLODI ST. GEORGE FORANE CHURCH,
REPRESENTED BY THE VICAR, MANANTHAVADY P.O., WAYANAD
DISTRICT., PIN - 670645
BY ADVS.
M.SASINDRAN
SATHEESHAN ALAKKADAN
RESPONDENT/S:
1 K.MOHANDAS
AGED 46 YEARS
S/O. K.C.CHANDU, MANAVAYAL HOUSE, KARIKULAM.P.O.,
MANANTHAVADY WAYANAD DISTRICT., PIN - 670646
2 V.A.SURESH
AGED 43 YEARS
S/O. ACHAPPAN, VELLARIYIL HOUSE, VIMALANAGAR.P.O.,
MANANTHAVADY WAYANAD DISTRICT., PIN - 670645
3 K.SUBRHAMANNYAN
AGED 48 YEARS
S/O. KUNHI KANNAN (LATE), VENGACHOLLA,
RP NO. 445 OF 2024 2
MANIKUNNUMALA, THRIKKAIPATTA.P.O., MEPPADI, WAYANAD
DISTRICT., PIN - 673577
4 C.K.SANKARAN
AGED 62 YEARS
S/O. KALLAN (LATE), CHEMBOTTI, KAYAKUNNU.P.O.,
PANAMARAM WAYANAD DISTRICT., PIN - 670721
5 P.RAMACHANDRAN
AGED 75 YEARS
S/O. VELLAN (LATE) IRIYYACODE HOUSE, VARMAL KADAVU,
ANCHUKUNNU.P.O., MANANTHAVADY, WAYANAD DISTRICT.,
PIN - 670645
6 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, TRIVANDRUM., PIN - 695034
7 THE PRINCIPAL SECRETARY TO GOVERNMENT
DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA,
TRIVANDRUM, PIN - 695034
8 THE LAND REVENUE COMMISSIONER
THIRUVANANTHAPURAM., PIN - 695034
9 THE DISTRICT COLLECTOR
WAYANAD DISTRICT, PIN - 670645
OTHER PRESENT:
SRI.SAJITH KUMAR.V, SRI.ASWIN SETHUMADHAVAN, SR.GP
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON
11.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
RP NO. 445 OF 2024 3
'CR'
P.V.KUNHIKRISHNAN, J
---------------------------------------
Review Petition No.445 of 2024
in
W.P.(C.) No. 20705 of 2015
----------------------------------------
Dated this the 11th day of April, 2024
ORDER
This review petition is filed to review the judgment dated
19.02.2024 in W.P.(C.) No. 20705/2015 (K.Mohandas and
others v. State of Kerala and others [2024 (2) KHC 258]).
The review petitioner is the 5th respondent in the above writ
petition. This Court disposed of the writ petition with the
following directions :
1) Ext.P5 and consequential patta issued to the 5th
respondent are quashed.
2) The 1st respondent is directed to assess the market value
of the property covered by Ext.P5 within two months from the
date of receipt of a certified copy of this judgment and inform
the 5th respondent about the total value of the property
covered by Ext.P5 to find out whether they are ready to
purchase the property or part of any property on market value.
One month can be given to the 5th respondent to decide
whether to purchase the land or not. If the 5 th respondent is not
ready to do the same within one month from the date of
informing them about the market value, respondents 1 to 4 will
take necessary steps to evict the 5 th respondent from the
property covered by Ext.P5 as expeditiously as possible, at any
rate, within three months from the date of expiry of the time
given to the 5th respondent for purchase. The land recovered
shall be distributed to the eligible persons in accordance with
law. If the land is purchased by the 5th respondent on market
value, the entire amount received by the government should be
utilised for the welfare of the tribal community in Wayanad.
3) The 1st respondent will file an Action Taken Report before
the Registrar General of this Court within eight months from
today.
4) The registry will forward a copy of this judgment to
Respondent Nos. 1 to 4 forthwith."
2. In the review petition, it is stated that the judgment
was pronounced based on the materials placed before this
Court as per which the question of assignment of Government
land and its property alone was considered. It is submitted that
Annexure AI and Annexure AII produced along with the review
petition would show that the premises on which the parties
pleaded and the decision making process proceeded were
erroneous and that the actual facts pertaining to the property
was not brought to the notice of this Court. It is submitted that
Annexures AI and AII would show that the property held by the
review petitioner earlier belonged to one Bran Ali and
subsequently, he granted the property to the review petitioner
by way of oral lease. Annexures AI and AII would show that
since 1928, the ownership of the property was in the name of
Bran Ali and subsequently, after reorganisation, in the Basic
Land Tax Register, the ownership of the property has been
shown in the name of the review petitioner. It is submitted that
the said fact would establish that there was no right with the
Government to claim market value of the property. According
to the review petitioner, the properties have been held by them
since 1931 and even if in the capacity of the tenant, the review
petitioner is entitled for Fixity of Tenure as contemplated
under Section 13 of the Kerala Land Reforms Act. Hence, this
review petition.
3. Heard Adv.M.Sasindran, who appeared for the
review petitioner and the learned Government Pleader. I also
heard the learned counsel appearing for the writ petitioner.
4. The short point raised by the review petitioner is that
Annexures AI and AII were not within the knowledge of the
review petitioner and hence, the review petitioner was not able
to produce the same before this Court. Hence, this judgment is
to be reviewed in the light of Order 47 Rule 1 of CPC. The
counsel also relied on the judgment of this Court in Poabs
Enterprises Private Ltd. v. State of Kerala [2023 KHC
9167] and also the judgment of the Apex Court in Lilly
Thomas and ors v. Union of India and Ors. [2000 (6) SCC
224].
5. This Court considered the contentions of the review
petitioner. First of all, a review petition filed in a proceeding
under Article 226 of the Constitution of India is not guided by
the provisions of Order 47 Rule 1 of CPC. This point is
considered by this Court in Cheriya koya v. UT
Administration of Lakshadweep [2023 (4) KHC 311]. The
relevant portion of the above judgment is extracted
hereunder :
"21. "It is true that the above judgment was reconsidered in
Pookunju A. V. State of Kerala and others [2012 (4) KLT 509]. In
Pookunju's case this Court observed that, Art.124 of the
Limitation Act is applicable if a review petition is filed in the
writ petition. But this court has not overruled the dictum laid
down in Aswathy Elsa Mathew's case (supra) to the effect that,
the power of review in the writ petition under Art.226 and
Art.227 of the Constitution of India could be traced independent
of the provisions of the Code of Civil Procedure. I am in
respectful agreement with the above observation in Aswathy
Elsa Mathew's case (supra). Therefore, the power of this court
to review a judgment, writ, direction or order issued in the
jurisdiction under Art.226 and Art.227 of the Constitution of
India would not stand regulated by the provisions relating to
review in the Civil Procedure Code. A perusal of the judgment
relied by the review petitioner to support his contentions would
show that, those decisions are rendered by this court in a
review petition filed under O.47 R.1 of the Civil Procedure
Code. The impugned orders in those cases are all orders passed
by the Civil Court invoking the powers under the Civil
Procedure Code. A perusal of the facts in Kizhakkekara Thomas
case (supra), it is clear that the impugned order in that case
was an order passed by the subordinate judge. Therefore the
dictum laid down by this court in Kizhakkekara Thomas case is
not applicable while considering a review petition filed in a
judgment delivered in a writ petition filed under Art.226 and
Art.227 of the Constitution of India. The powers of this court
under Art.226 and Art.227 of the Constitution are wide. The
same is not regulated by the provisions of the Civil Procedure
Code, but of course, the principle of review can be adopted.
Moreover, an application for review of judgment or order issued
by the High Court in writ petition would be governed by
Limitation Act as held in Pookunju's case (supra)"
6. In light of the above, the provisions of Civil
Procedure Code is not strictly applicable, but of course, the
principle of review can be adopted by this Court.
7. The counsel for the review petitioner submitted that
Annexures AI and AII produced in the review petition are
material evidence which could not be produced by him at the
time when the judgment was delivered, even after the exercise
of due diligence. Hence, the review petition is to be allowed. I
cannot agree with the above submission. This Court perused
the counter filed by the review petitioner in the writ petition.
The stand taken in the memorandum of the review petition is
contradictory to the stand taken by the review petitioner in the
counter filed in the writ petition. A party to the proceedings
cannot take contradictory defences in the same proceedings. In
Suzuki Parasrampuria Suitings Private Limited v. Official
Liquidator of Mahendra Petrochemicals Limited (in
Liquidation) [(2018) 10 SCC 707], the Apex Court considered
this point. The relevant portion of the above judgment is
extracted hereunder:
"12. A litigant can take different stands at different times
but cannot take contradictory stands in the same case. A
party cannot be permitted to approbate and reprobate on the
same facts and take inconsistent shifting stands".
8. Moreover, even if, Annexures AI and AII are relevant,
those documents cannot be admitted in a review petition filed
by the review petitioner. In Srinivasan S. and others v.
State of Tamil Nadu and others [2019 KHC 4531], a
Division Bench of Madras High Court considered a similar
point.
20. "The Applicants, in the guise of slum dwellers, cannot
claim ownership of the property and the slum, by any stretch of
imagination, does not belong to these Applicants. Though it is
the case of the Applicants that they have been residing in the
property for more than four decades, the details, such as from
where they acquired the property, who is the original owner of
the property? etc. along with documents, like allotment order,
sale deeds, etc., have not been produced before this Court at the
time of hearing the Writ Petition. Even if all those documents
are produced now, all these aspects cannot be considered and
perused in an Application filed for review, as the Court cannot
rehear the matter afresh / de novo." [Underline supplied]
9. A litigant in a writ petition filed under Article 226 of
the Constitution of India cannot take an inconsistent stand. The
writ petition was filed by the respondent Nos. 1 to 5 in the
review petition in the year 2015 challenging Ext.P5 order. By
Ext.P5, the property mentioned in it is assigned to the review
petitioner on payment of Rs.100/- per acre. The review
petitioner has not challenged that order stating that he has got
title in the property. But, he conceded to that order and is in
possession of the same based on the above order.
Subsequently, the review petitioner accepted Ext. P5 order and
is in possession of the property. Now, when this Court set aside
Ext.P5, the review petitioner is coming before this Court with a
stand that the order passed by the Government as evident by
Ext.P5 assigning the property to the review petitioner is illegal
because the review petitioner has got title to the property
based on Annexures AI and AII. Such a stand is not taken by
the review petitioner at any stage of the case. A perusal of the
counter filed by the review petitioner in the writ petition would
show that they relied on Ext.R5(a) produced in the counter
affidavit which is dated 10.03.1952 in which the disputed land
is alienated in favour of the church fixing a remuneration. The
stand of the review petitioner is that the review petitioner was
not able to pay the amount because of financial stringencies.
Now, after about 70 years, the review petitioner is taking a
stand that they have got title to the property. Such a belated
contention cannot be accepted by this Court. "Vigilantibus non
dormientibus jura subveniunt" is a maxim which says that the
law assists those who are vigilant, not those who sleep over
their rights. The review petitioner is taking a stand from 1952
onwards that the property in dispute is in their possession, but
the ownership is with the Government. After about 70 years,
when this Court passed the impugned judgment in this review
petition, the review petitioner is taking a stand that the review
petitioner has got title to the property. This is nothing but an
inconsistent plea by the review petitioner. This court cannot
digest the case of the review petitioner that, they were not
aware of Annexures AI and AII, till the disposal of the writ
petition. Such a stand cannot be accepted and it is to be
rejected.
10. The counsel for the review petitioner takes me
through the decision of this Court in Poabs Enterprises
Private Ltd's case (supra) and the decision in Lilly Thomas's
case (supra) to contend that this Court has jurisdiction to
entertain this review petition. But on the facts and
circumstances of this case, I am of the considered opinion that
there is nothing to review the judgment. Moreover, there is no
error apparent on the face of the order. This is a review
petition which ought to have been dismissed with heavy cost
for taking an inconsistent stand in a writ petition and wasting
the precious time of the court. Since this review petition is
dismissed in limine, I refrain from doing so.
Therefore, this review petition is dismissed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
PETITIONER ANNEXURES
Annexure AI A TRUE COPY OF THE SETTLEMENT REGISTER
RELATING TO THE PROPERTY HELD BY
MR.BRANALI IN EDACHINA DESOM EDAVAKA AMSOM
OF WAYANAD TALUK IN MALABAR DISTRICT
Annexure AII A TRUE COPY OF THE BASIC LAND TAX REGISTER
DATED 12-03-2024
