Kerala High Court

Santhosh Mathew vs K.John @Ashok on 12 April, 2024

Author: Murali Purushothaman

Bench: Murali Purushothaman

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
                      RP NO. 1198 OF 2023
AGAINST JUDGMENT DATED 11.10.2023 IN WP(C) NO.33354
REVIEW PETITIONER/THIRD PARTY:

            SANTHOSH MATHEW, AGED 50 YEARS
            ADVOCATE, S/O LATE RAJAN MATHEW, 17 AB,
            MATHER SERENE ORCHARD, VIDYA NAGAR,
            KADAVANTHRA, KOCHI., PIN - 682020
            BY ADVS.
            ARUN THOMAS
            B.G.HARINDRANATH
            KARTHIKA MARIA
            KURIAN ANTONY MATHEW


RESPONDENTS/PETITIONER & RESPONDENT :

    1       K.JOHN @ASHOK, AGED 68 YEARS
            S/O LATE K.J. JOSEPH, MAMUTTIL ESTATE,
            OOTTUPARA P.O., ARUVAPPULAM VILLAGE,
            KONNI TALUK, PATHANAMTHITTA,
            NOW RESIDING AT AT 9-B2 CONDOR DAFFODILS,
            KURAVANKONAM, KOWDIAR P.O,
            THIRUVANANTHAPURAM., PIN - 689691
    2       THE DISTRICT COLLECTOR
            COLLECTORATE, PATHANAMTHITTA,
            PATHANAMTHITTA DISTRICT., PIN - 689645
            BY ADV K.JOHN @ASHOK(Party-In-Person)



        THIS REVIEW PETITION HAVING BEEN FINALLLY HEARD ON
12.02.2024,    THE   COURT   ON   ON   12.04.2024   DELIVERED   THE
FOLLOWING:
 R.P.No.1198 of 2023               :2:




                                 ORDER

The review petition is filed seeking review of the

judgment dated 11.10.2023 passed by this Court in

W.P.(C) No.33354 of 2023. The review petitioner was

not a party to the writ petition. This Court, by order

dated 13.11.2023, granted leave to file this review

petition.

2. W.P.(C) No. 33354 of 2023 is filed by the 1 st

respondent in the review petition (hereinafter

referred to as the 'writ petitioner') who claims to own

agricultural land in Aruvappullam Village of Konni

Taluk, Pathanamthitta District, and permanently

resides in Thiruvananthapuram, leading a retired life.

In the writ petition, it is stated that the writ

petitioner's property is located near the Achankovil

river and the banks of the said river are unassigned

and maintained as river puramboke to ensure the free

flow of water during the monsoon season or when

excess water is released from the reservoirs of the

Sabarigiri Electricity Project by the KSEB. It is

contended that, taking advantage of the vast

puramboke land along the river banks, certain

persons encroached upon the puramboke land and

started plantation activities and obtained illegal

assignments of the property by influencing corrupt

officials. Even a slight increase in water levels in the

river is causing crop damage and flooding in the area,

as the free flow of water in the river has been

affected by the encroachment on the river

puramboke. It is also contended that certain other

properties vested in the Government have also been

converted by these persons as their property. The writ

petitioner submitted Ext. P1 representation before the

respondent, the District Collector, Pathanamthitta

requesting to take action against the illegal occupation

of the river puramboke, as well as the conversion of river

puramboke into private properties and against the

creation of forged deeds, including the Thandaper

Account in the concerned village office. He also

submitted Ext. P3 reminder to Ext. P1. However, no reply

was received from the respondent, nor has any action

been taken thereon. It is stated that it is due to the

influence of the persons holding the river puramboke

that the respondent has not taken any action. It is

contended that the illegal occupation of public property,

especially river puramboke, is a serious matter as it

adversely affects the interests of innocent persons

engaged in agricultural activities. Accordingly, the

following reliefs were sought in the writ petition:

"i) Call for the entire records relating to Ext. P1 and P3 from the respondent;

ii) Issue a writ of mandamus or any other writ or direction or order to the respondent to dispose Ext. P1 representation after affording an opportunity of hearing to the petitioner and affected parties as expeditiously as possible within the time frame as fixed by this Hon'ble Court."

3. The writ petition came up for admission on

11.10.2023 and this Court disposed of it on the same

day directing the respondent District Collector to

take up Ext. P1 representation for consideration and

pass appropriate orders in accordance with law, after

affording an opportunity of hearing to the petitioner

and the persons named in Ext. P1 as expeditiously as

possible, at any rate within a period of four months

from the date of receipt of a copy of the judgment.

4. The review petitioner states that, pursuant to

the said judgment, the Deputy Collector (LR),

Pathanamthitta, issued Annexure-4 notice to the

petitioner, his wife, her mother and other members of

her family for a hearing on 16.11.2023. Further that,

there are civil litigations between the members of the

families of the review petitioner and the writ

petitioner and the writ petitioner is not having title

over the properties mentioned in Ext. P1

representation based on judgments of civil Court, and

Regular Second Appeals are pending before this

Court. It is contended that the writ petition was filed

disguising as a simple writ petition seeking direction

for consideration of a representation. However, in

fact, it was to circumvent R.S.A. Nos. 451 and 452 of

2023 pending before this Court and to harass the

review petitioner and his family that the writ petition

was filed without making him and others named in

Ext. P1 representation in the party array. It is stated

that the writ petitioner has approached this Court

suppressing material facts and misleading the Court,

obtained the judgment. Accordingly, it is prayed that

the judgment dated 11.10.2023 be reviewed and

recalled and the writ petition be dismissed with

exemplary costs.

5. A counter affidavit has been filed by the writ

petitioner in the review petition contending, inter

alia, that the review petition is not maintainable as

there is no averment of error apparent on the face of

records. It is stated that the prayers in R.S.A. Nos.

451 and 452 of 2023 filed by him are different from

the reliefs sought for in Ext. P1 representation and

the plaint schedule property in the suit which led to

R.S.A. No. 452 of 2023 has no relation to the

properties referred to in Ext. P1. In the counter

affidavit, the writ petitioner has narrated the details

of civil cases and has produced copies of deeds,

information obtained under the Right to Information

Act, 2005, plaints, written statements, orders of Civil

Courts, certificates, etc., to negate the averments in

the review petition. It is stated that the intention

behind filing the review petition is to escape from the

criminal activities committed by him and that there is

no error apparent on the face of the judgment under

review as this Court only directed the respondent in

the writ petition to pass orders on Ext. P1

representation after hearing the parties concerned.

The review petitioner, who is the 12 th respondent in

Ext. P1 representation, can raise his objections

before the District Collector and the pendency of the

second appeal has nothing to do with the disposal of

Ext. P1 by the District Collector.

6. The review petitioner has filed a reply to the

counter affidavit of the writ petitioner contending

that averments and allegations therein are baseless,

malicious and defamatory. He has also produced

Annexure-7 copy of the common judgment dated

15.12.2023 dismissing R.S.A. Nos. 451 and 452 of

2023 for non prosecution.

7. An additional counter affidavit is also placed

on record by the writ petitioner refuting the

averments in the reply affidavit and reiterating his

contentions in the counter affidavit.

8. The writ petitioner has filed I.A No.4/2024 in

the review petition under Section 340 of the Code of

Criminal Procedure, 1973 for initiating action against

the review petitioner for filing false affidavit in

support of stay petition in the review petition.

9. Heard Sri. B.G. Harindranath, the learned

counsel for the petitioner and Sr. John @ Ashok, the

writ petitioner, who appeared in person. Apart from

advancing lengthy arguments relying on the

documents in the counter affidavit, Sri. John has also

submitted an argument note.

10. Sri. Harindranath contends that the

impugned judgment was passed without compliance

with the principle of audi alteram partem. It is further

contended that although the writ petition appears to

be innocuous, it cannot be so perceived, as there is

hidden intention behind the seemingly harmless

prayer of the writ petitioner. The contents of Ext. P1

representation are not reflected in the writ petition

and there are suppression of material facts and he

has approched this Court with unclean hands and

that the writ petitioner's attempt is to circumvent the

orders of the Civil Court. Refering to various

averments in the counter affidavit and the documents

produced, it is contended by the learned counsel for

the review petitioner that the intention of the writ

petitioner is to malign and defame the review

petitioner. It is submitted that there are errors

apparant on the face of records and the judgment is

to be reviewed and recalled and the writ petition is

liable to be dismissed with exemplary costs.

11. Sri. John would contend that there are no

errors apparent on the face of records to review the

judgment. It is submitted that the review petitioner

who is the 12th respondent in Ext. P1 representation

is not a party to the suits or the Regular Second

Appeals and would get opportunity of hearing before

the District Collector while considering Ext. P1

representation as per the direction in the judgment.

It is contended that the relief claimed in Ext. P1

representation is entirely different from the prayers

in the suits and it is the review petitioner who has

suppressed material facts. Sri. John also prays for

initiating proceedings against the review petitioner

for filing false affidavit before this Court. Arguments

were also advanced as to the merits of the civil

disputes. Sri. John, accordingly, prays for dismissal of

the review petition with costs.

12. The prayer in the writ petition is for direction

to the sole respondent, the District Collector to

dispose of Ext. P1 representation after affording an

opportunity of hearing to the petitioner and affected

parties within a time frame. In Ext. P1

representation, the review petitioner, his wife and her

relatives have been arrayed as respondents and

various allegations are raised against them and

various reliefs including cancellation of assignment,

mutation, thandaper accounts and initiation of

criminal proceedings are sought. It is contended by

the review petitioner that some of the properties

mentioned in Ext. P1 representation are the subject

matter of civil suits which culminated in R.S.A. Nos.

451 and 452 of 2023 and these facts could not be

brought to the notice of this Court as the review

petitioner and the persons arrayed as respondents in

Ext. P1 representation were not made parties to the

writ petition.

13. The writ petition has been filed and

presented as a routine one for an expeditious disposal

of a representation before a statutory authority.

Admittedly, there are civil disputes between the writ

petitioner and those arrayed as respondents in Ext.

P1 representation and some of the properties

mentioned in Ext. P1 representation are stated to be

the subject matter of R.S.A. Nos. 451 and 452 of

2023. Therefore, the contention of the review

petitioner that the statements in the writ petition

require to be subjected to a greater scrutiny has to be

accepted. There is an error apparent on the face of

record which necessitates a review of the judgment.

Accordingly, the review petition is allowed. The

judgment dated 11.10.2023 in W.P.(C) No.33354 of

2023 is recalled. Post the writ petition as per roster,

for fresh consideration.

As regards I.A. No. 4 of 2024, I find that there

are no convincing materials and no grounds are made

out for initiating prosecution against the review

petitioner under Section 340 Cr.P.C. The said

interlocutory application is, accordingly, closed.

Sd/-

MURALI PURUSHOTHAMAN JUDGE SB

APPENDIX

PETITIONER ANNEXURES Annexure 1 A TRUE COPY OF THE ORDER OF STATUS QUO DATED 12-07-2023 I.A. NO. 1/2023 IN R.S.A 452/2023 OBTAINED BY THE 1ST RESPONDENT Annexure 2 A TRUE COPY OF THE "INJUNCTION" ORDER DATED 12-07-2023 IN IA NO.1/2023 IN RSA NO.452/2023 PURPORTEDLY ISSUED ON 18-08- 2023 BY THE ASSISTANT REGISTRAR OF THIS HON'BLE COURT.

Annexure 3 A TRUE COPY OF THE CLARIFICATION ORDER DATED 08-09-2023 OF THIS HON'BLE COURT IN R.S.A. 452/2023.

Annexure 4 A TRUE COPY OF THE NOTICE NUMBERED AS DCPTA/4830/2023-C12 DATED 30-10-2023 FROM THE OFFICE OF THE DEPUTY COLLECTOR (L.R.) PATHANAMTHITTA.

ANNEXURE 5 A TRUE COPY OF THE COMMON JUDGEMENT IN O.S. 34/2016 AND O.S. 93/2013 BEFORE THE HON'BLE SUBORDINATE COURT, PATHANAMTHITTA. ANNEXURE 6 A TRUE COPY OF THE COMMON JUDGEMENT DATED 30-03-2023 IN BOTH A.S. 15/2021 AND A.S. 16/2021 BEFORE THE HON'BLE DISTRICT COURT, PATHANAMTHITTA ANNEXURE 7 A TRUE COPY OF THE COMMON JUDGEMENT OF THIS HON'BLE COURT IN R.S.A 452/2023 AND R.S.A 451/2023 DATED 15-12-2023.

ANNEXURE 8 A TRUE COPY OF THE PHOTOGRAPHS SHOWING THAT LATE SHRI. JOSEPH GEORGE DONATED THE TWO CENTS OF LAND FOR THE ANGANWADI RESPONDENT ANNEXURES ANNEXURE R1(A) TRUE COPY OF THE PLAINT IN O.S NO. 34/2016 OF SUB COURT, PATHANMTHITTA (ORIGINALLY FILED BEFORE OS. NO. 84/2003 OF HON.

MUNSIFF COURT PTA DATED 13-02 -2003) ANNEXURE R1(B) READABLE COPY OF THE UDAMPADI DEED 4925/1951 OF SRO CHENGANNUR DATED 11-10-

ANNEXURE R1(C) TRUE READABLE COPY OF SALE DEED NO.

1908/1941 BEFORE THIS HON. COURT ANNEXURE R1(D) TRUE COPY OF THE SETTLEMENT DEED NO.

1613/1114 (1939) OF SRO PATHANAMTHITTA ANNEXURE R1(E) TRUE COPY BASIC LAND TAX RECEIPT OF THE PLAINT SCHEDULED PROPERTY IN O.S NO. 34/2016 DATED 06-01-2021 HAVING TA NO.1456, SURVEY NO. 540/5-3 OF ARUVAPULAM VILLAGE ANNEXURE R1(F) TRUE COPY BASIC LAND TAX RECEIPT OF THE PLAINT SCHEDULED PROPERTY IN OS NO. 34/2016 DATED 02-04-2022, FOR THE YEAR 2022-2023, HAVING TA NO.1456, SURVEY NO. 540/5-3 OF ARUVAPULAM VILLAGE ANNEXURE R1(G) TRUE COPY POSSESSION CERTIFICATE OF THE PLAINT SCHEDULED PROPERTY IN OS NO. 34/2016 DATED 01-02-2022 HAVING TA NO.1456, SURVEY NO. 540/5-3 OF ARUVAPULAM VILLAGE ANNEXURE R1(H) TRUE COPY POSSESSION CERTIFICATE OF THE PLAINT SCHEDULED PROPERTY IN OS NO. 34/2016 DATED 04-04-2022 HAVING TA NO.1456, SURVEY NO. 540/5-3 OF ARUVAPULAM VILLAGE ANNEXURE R1(I) TRUE COPY OF CLARIFICATION CERTIFICATE NO.

933/08 DATED 07-06-2008 FROM VILLAGE OFFICER STATING THE PROPERTY HAVING SURVEY NO.540-1-5 IS THE SAME PROPERTY SHOWN AS SURVEY NO. 540-5-3 OF ARUVAPULAM VILLAGE EXHIBIT R1(J) TRUE COPY OF THE REQUEST FOR INFORMATION DATED 1.2.2014 ANNEXURE R1(K) TRUE COPY REPLY LETTER RECEIVED FROM THE INFORMATION OFFICER, ARUVAPULAM VILLAGE NO. 04/14, DATED 18-02-2014 ANNEXURE R1(L) TRUE COPY OF THE LETTER TO THE INFORMATION OFFICER OF ARUVAPULAM PANCHAYAT DATED 18- 12- 2014 ANNEXURE R1(M) TRUE COPY REPLY LETTER OF THE STATE PUBLIC INFORMATION OFFICER, AST. ENGINEER, PWD, KONNY, NO KS10/2008 DATED 23-01-2015 ANNEXURE R1(N) TRUE COPY OF THE LETTER DATED 16-04-2021 WRITTEN TO THE INFORMATION OFFICER, FINANCE DEPT, FINANCE NODAL SECTION, GOVT.

SECRETARIAT, TRIVANDRUM TO KNOW THE DETAILS OF TRANCHE XV11 PROJECT NAME - MURINJAKAL - ATHIRUNKAL - KULATHUMON - KALLELI -

ELIYARACKAL ROAD EXTENSION FROM ATHIRUNKAL

- NJAVEL CHECK POST ANNEXURE R1(O) TRUE COPY OF THE REPLY FROM THE DEPUTY SECRETARY AND STATE PUBLIC INFORMATION OFFICER NO.1, FINANCE DEPT. TRIVANDRUM, DATED 29-04-2021 ANNEXURE R1(P) TRUE COPY OF THE DETAILED LOAN SANCTIONED REPORT IN RESPECT OF THE ABOVE PROJECT AS ITEM NO. 26 DATED 28-12-2011 FROM THE HON. GOVERNOR, STATE OF KERALA, THROUGH PRINCIPAL SECRETARY, FINANCE DEPT., SECRETARIAT, GOVT. OF KERALA, REF. RIDF-1 (RIDF XV11 KERALA) ANNEXURE R1(Q) TRUE COPY OF THE ADVOCATE COMMISSION REPORT IN IA NO. 474/2014 IN OS NO. 93/2013 DATED 12-03-2015 ANNEXURE R1(R) TRUE COPY OF THE ORDER IN I.A NO. 467/2017 IN OS NO. 34/2016 DATED 18-09-2017 ANNEXURE R1(S) TRUE COPY OF THE ORDER IN IA 647/2017 IN CMA NO 51/2017 OF DISTRICT COURT, PATHANAMTHITTA WHICH WAS DISMISSED ON 11- 04-2018 ANNEXURE R1(T) TRUE COPY OF THE NOT PRESS MEMO DATED 07.06.2018 ANNEXURE R1(U) TRUE COPY OF THE JOINT WRITTEN STATEMENT OF THE DEFENDNAS 1 AND 2 DATED 17.11.2003 ANNEXURE R1(V) TRUE COPY OF THE LETTER WRITTEN TO THE INFORMATION OFFICER, ARUVAPULAM DATED 13- 02-2017 ANNEXURE R1(W) TRUE COPY OF THE REPLY RECEIVED FROM THE INFORMATION OFFICER ARUVAPULAM DATED 16-03-

ANNEXURE R1(X) TRUE COPY OF THE LETTER WRITTEN TO THE INFORMATION OFFICER, ARUVAPULAM DATED 26- 03-2019 ANNEXURE R1(Y) TRUE COPY OF THE REPLY LETTER, FROM THE INFORMATION OFFICER ARUVAPULAM DATED 09

ANNEXURE R1(Z) TRUE COPY OF THE TA NO 8786 OF ARUVAPULAM VILLAGE OF D11 DATED 02.08.2012 ANNEXURE TRUE COPY OF THE LAND TAX RECEIPT OF LAND R1(ZA) TAX RECEIPT OF ACHAMMA JOSEPH IN TA NO.

1917 OF KONNY VILLAGE DATED 18.10.1977 ANNEXURE TRUE COPY OF THE PARTITION DEED NO.2162 OF R1(ZB) 1978 OF SRO KONNY DATED 14-08-1978 ANNEXURE TRUE COPY OF SALE DEED NO 1522 OF 2021 OF R1(ZC) KONNY SRO ANNEXURE TRUE COPY OF THE TA NO.1937 AS PER PV R1(ZD) NO.153/2004 DATED 17-06-2004 ANNEXURE TRUE COPY OF THE TA NO. 1937 OF ARUVAPULAM R1(ZE) VILLAGE OF 1ST DEFENDANT IN THE SUIT DATED 02.08.2017 ANNEXURE TRUE COPY OF THE TA NO. 1938 OF ARUVAPULAM R1(ZF) VILLAGE OF 2ND DEFENDANT IN THE SUIT DATED 02.08.2017 ANNEXURE POSSESSION CERTIFICATE OF 1ST DEFENDANT IN

HAVING SURVEY NO. 540-1-1-218, TA NO. 1937, HAVING AN EXTENT OF 14.77 ARE ( 36.50 CENTS) DATED 20.02.2003 ANNEXURE TRUE COPY OF POSSESSION CERTIFICATE OF 2ND R1(ZH) DEFENDANT IN THE SUIT DATED 20-02-2003 NO.

356/2003 HAVING SURVEY NO. 540-1-1-218, TA NO. 1938, HAVING AN EXTENT OF 06.27 ARE ( 15.50 CENTS) DATED 20.02.2003 ANNEXURE TRUE COPY OF THE LETTER DATED 17-09-2020 R1(ZI) WRITTEN TO THE INFORMATION OFFICER, ARUVAPULAM GRAMMA PANCHAYAT BY MARIAMMA GEORGE DW1 ANNEXURE TRUE COPY OF THE REPLY LETTER FROM THE R1(ZJ) STATE INFORMATION OFFICER, GRAMMA PANCHAYAT, NO. 817/2020/A3 DATED 10-03-2020 ANNEXURE TRUE COPY OF INFORMATION SOUGHT UNDER THE R1(ZK) RTI ACT TO THE INFORMATION OFFICER ARUVAPULAM VILLAGE DATED 22-01-2013 ANNEXURE TRUE COPY OF THE REPLY LETTER FROM THE

R1(ZL) INFORMATION OFFICER, ARUVAPULAM VILLAGE NO.

05/13 DATED 20-02-2013 ANNEXURE TRUE COPY OF THE SURVEY PLAN DATED R1(ZM) 24.03.2003 HAVING A FABRICATED SY NO 540/1- 1-298 ANNEXURE TRUE COPY OF THE ORDER CRLMP NO.84/2007 OF R1(ZN) THE HON'BLE SUPREME COURT OF INDIA DATED 15-01-2007 ANNEXURE TRUE COPY OF THE NEWS ITEM DATED 23.08.2014 R1(ZO) PUBLISHED IN MALAYALA MANORAMA DAILY ANNEXURE TRUE COPY OF THE NEWS ITEM DATED 18.06.2009 R1(ZP) PUBLISHED IN MALAYALA MANORAMA DAILY ANNEXURE TRUE COPY OF THE LETTER DATED 8.06.2000 R1(ZQ) ANNEXURE TRUE COPY OF THE COUNTER AFFIDAVIT DATED R1(ZR) 3.4.2017 ANNEXURE TRUE COPY OF THE LETTER FROM THE PUBLIC R1(ZS) INFORMATION OFFICER, HON'BLE HIGH COURT OF KERALA REF. NO.P10-233/2019 DATED 07-05-

ANNEXURE TRUE COPY OF THE LETTER FROM THE PUBLIC R1(ZT) INFORMATION OFFICER, HON'BLE HIGH COURT OF KERALA REF. NO.P10-322/2019 DATED 02-07-

ANNEXURE TRUE COPY OF THE LETTER FROM THE PUBLIC R1(ZU) INFORMATION OFFICER, HON'BLE HIGH COURT OF KERALA REF. NO.P10-294/2021 DATED 13-09-

ANNEXURE TRUE COPY OF THE LETTER WRITTEN TO THE R1(ZV) HON'BLE CHIEF JUSTICE OF KERALA DATED 10-

                      10-2023
ANNEXURE              TRUE COPY OF THE ORDER DATED 17/11/2023IN
R1(ZV)                R.S.A NO.451 OF 2023
ANNEXURE              TRUE COPY OF DISCHARGE SUMMARY OF RAJAGIRI
R1(ZW)                HOSPITAL, ERNAKULAM DATED 20.09.2023 TO

25.09.2023 OF ADV.LATHISH SEBASTIAN ANNEXURE TRUE COPY OF MEDICAL CERTIFICATE FROM SREE R1(ZX) CHITHIRA THIRUNAL MEDICAL SECIENCES AND

TECHNOLOGY, TRIVANDRUM DATED 28/05/2014 ANNEXURE TRUE COPY OF THE TREATMENT FOR SOME FUNGAL R1(ZY) INFECTION - UROLOGICAL ISSUE, BALANTIS

-STEROID CREAM AND ANTI-FUNGAL TREATMENT FOLLOWED BY CIRCUMSISION ON 30.09.2023 AND TREATMENT PRESCRIPTION DATED 30.09.2023 FROM DR.SUNIL MENON, YOGYARAJ MEDICAL CENTRE, TRIVANDRUM ANNEXURE TRUE COPY OF DISCHARGE SUMMARY DATED R1(ZZ) 25.12.2023 TO 27/12/2023 FOR SURGERY AT SUT HOSPITAL, PATTOM, TRIVANDRUM ANNEXURE TRUE COPY OF THE AWARD LETTER DATED R1(ZZA) 29/04/2013 ANNEXURE TRUE COPY OF PAPER CUTTING OF MALAYALA R1(ZZB) MANORAMA DATED 25/09/2013