IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM WEDNESDAY,THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936
RP.No.839 OF 2014(V) IN WP(C). 28115/2006
AGAINST THE JUDGMENT IN WPC 28115/2006 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/RESPONDENTS 1 TO 5 IN W.P.(C):
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT (REVENUE), SECRETARIAT, THIRUVANANTHAPURAM.
2 THE COMMISSIONER OF LAND REVENUE,
PUBLIC OFFICE BUILDINGS, MUSEUM JUNCTION, THIRUVANANTHAPURAM-33.
3 THE DISTRICT COLLECTOR, COLLECTORATE, KOLLAM.
4 TAHSILDAR, PATHANAPURAM, PUNALUR.
5 THE VILLAGE OFFICER, THENMALA.
BY SP. GOVERNMENT PLEADER(REVENUE) SMT. SUSHEELA R. BHATT
RESPONDENTS/PETITIONER & RESPONDENTS 6 & 7 IN W.P.(C):
1 RIYA RESORTS AND PROPERTIES (P) LTD.
GULAB BUILDING, GROUND FLOOR, 237, P.D. MELLO ROAD, MUMBAI-400 001, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, K.JOY JOSEPH.
2 C.R.NAJEEB,
DISTRICT PANCHAYATH MEMBER, PATHANAPURAM.
3 HARRISONS MALAYALAM LTD.
REGD. OFFICE AT 24/1624, BRISTOW ROAD, WILLINGTON ISLAND, KOCHI-682 003.
R1 BY ADV. SRI.M.P.SREEKRISHNAN
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.12.2014, ALONG WITH RP.936/2014, RP.1053/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA,1936 RP.No.936 OF 2014 IN WP(C). 8716/2010
AGAINST THE JUDGMENT IN WPC 8716/2010 OF HIGH COURT OF KERALA
REVIEW PETITIONERS/RESPONDENTS:
1 TAHSILDAR,
TALUK OFFICE, PATHANAPURAM, PUNALUR.
2 VILLAGE OFFICER,
ARYANKAVU VILLAGE, KOLLAM DISTRICT.
3 STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM.
4 LAND REVENUE COMMISSIONER, COMMISSIONERATE OF LAND REVENUE, THIRUVANANTHAPURAM.
BY SP. GOVERNMENT PLEADER(REVENUE) SMT. SUSHEELA R. BHATT
RESPONDENTS/PETITIONER:
ANANDAVALLY AMMA, W/O RAVINDRAN NAIR,
RETIRED HEADMISTRES, THOTTATHIL HOUSE, MELILA, KIZHAKKEKKARA, MELILA P.O., KOLLAM.
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17.12.2014, ALONG WITH RP.839/2014(V), RP.1053/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
WEDNESDAY, THE 17TH DAY OF DECEMBER 2014/26TH AGRAHAYANA, 1936 RP.No.1053 OF 2014 IN WP(C). 28115/2006
AGAINST THE JUDGMENT IN WPC 28115/2006 DATED 05-10-2013 OF HIGH COURT OF KERALA
REVIEW PETITIONER/6TH RESPONDNET: C.R.NAJEEB
KIZHEKKEVEEDU, NADUKUNNU, PATHANAPURAM, KOLLAM.
BY ADVS. SRI.R.KRISHNA RAJ SRI.SAJU SRI.BIJITH S.KHAN
RESPONDENTS/PETITIONER/RESPONDENTS:
1 M/S.RIYA RESORTS AND PROPERTIES (P) LTD GULAB BUILDING, GROUND FLOOR 237, P.O.MELLO
ROAD, MUMBAI-400 001, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.JOY JOSEPH.
2 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT (REVENUE), KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
3 COMMISSIONER OF LAND AND REVENUE, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM.
4 DISTRICT COLLECTOR, KOLLAM.
5 TAHSILDAR, PATHANAPURAM, PUNALOOR.
6 VILLAGE OFFICER, THENMALA.
7 HARRISON MALAYALAM LTD.,
REGD. OFFICE AT 24/16241, BRISTOW ROAD, WILLINGTON ISLAND, KOCHI-682 003.
BY SP. GOVERNMENT PLEADER(REVENUE) SMT. SUSHEELA R. BHATT
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 17.12.2014, ALONG WITH RP.839/2014(V), RP.936/2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
C.K.ABDUL REHIM, J ======================== R.P. No. 839 OF 2014 & 1053 OF 2014 IN W.P.(C) No.28115 OF 2006 & R.P. No.936 OF 2014 IN W.P.(C) No.8716 OF 2010 ============================== Dated this the 17th day of December, 2014 C O M M O N O R D E R Review Petition No.839/2014 is filed by the State of Kerala and its officials against the judgment in W.P. (C).No.28115/2006. Review Petition No.1053/2014 is filed by the 6th respondent in the said writ petition, against the very same judgment. Review Petition No.936/2014 is filed by the State of Kerala and its officials against the judgment in W.P.(C) No.8716/2010. Since both the writ petitions were disposed of through a common judgment, all the Review Petitions were heard together and disposed of through this common order.
2. In RP No.839/2014, review of the judgment is sought on the ground that this court had omitted to consider the fact that, actions were already taken by the Special Officer to resume the Government lands illegally possessed by M/s Harrisons Malayalam Limited and its assignees, including the writ petitioners. It is contended that, as per the judgment of this court in W.P.(C) No.1425/2012 and 213/2013, Government had appointed a Special Officer & Collector, by virtue of an order dated 25.4.2013. It is pointed out that, the above document was produced by Government in the counter affidavit filed to I.A. No.7303/2013 in W.P.(C) No.28115/2006. But this court had omitted to take note of the said document. On that basis, it is contended that, the observations contained in the judgment that, “the Special Government Pleader was not in a position to point out any proceedings under the Land Conservancy Act was initiated, despite liberty granted by this court,” was erroneous apparently on the face of the records. According to the Government Pleader, if this court had taken note of the fact regarding appointment of the Special Officer, such an observation would not have made and the reasoning mentioned in the judgment for granting the relief, therefore remains erroneous.
3. On a perusal of the Government order referred to above, which was produced along with counter affidavit in I.A. No.7303/2013, it is evident that the Government through the said order had appointed a Special Officer, in exercise of the powers conferred by virtue of Section 15 of the Kerala Land Conservancy Act 1957, for the purpose of exercising all the powers conferred on the Collector under the said Act. In this regard, it is pertinent to note the observations contained in the judgment. In paragraph 18 of the judgment this court observed that, despite various litigations attempted challenging the title of the 7th the respondent company and also challenging the transfers made by them, the Government could not initiate any statutory proceedings under any of the relevant laws for recovery of the land or to get it established that the Government possess title over the property. It is further observed that, unless the Government could establish with concrete evidence based on title that the property in question vests in the Government, they cannot refuse or reject the request for mutation, on the basis that the Government have got a claim that the 7th respondent company or it is transferee's were not holding title over the properties. Further this court observed that, it is not justifiable on the part of the competent authorities to keep the request for mutation indefinitely pending, on the basis that an enquiry was order by the Government by constituting a 'High Level Committee'. In this context only, this court observed that, the Special Government Pleader is not in a position to point out any proceedings initiated under the land Conservancy Act.
4. Ext. R1(d) produced along with counter affidavit in I.A. No.7303/13, is only a proceedings designating an authority to act under provisions of the Land Conservancy Act. Even if such a proceedings would have been taken note of by this court at the time of rendering the judgment, it makes no difference, because at that time it cannot be said that a proceedings under the Land Conservancy Act was initiated against the property, with respect to which the mutation was sought for. However, while considering as to whether Ext.R1(d) was a document which was omitted notice of this court while rendering the judgment; and while considering as to whether there would have been any change in the reasoning mentioned in the judgment for granting relief, if such document would have been taken into consideration, this court is of the opinion that those are matters which need to be decided based on subsequent developments also.
5. Learned Special Government Pleader appearing on behalf of the Review Petitioners, pointed out that, the judgment in question was pronounced on 5.10.2013 and even before pronouncement of the judgment the Special Officer had issued Annexure 8 proceedings, dated 27.9.2013, directing all the concerned officials not to permit felling of trees or not to issue Possession Certificates or not to permit transfer of the lands in question or not to permit induction of strangers with out written permission of the Special Officer etc., with respect to lands in possession of M/s. Harissons Malayalam Limited, which spread over in 8 Districts in the State of Kerala and with respect to the land in possession of their assignees. It is a fact that the said proceedings was not brought to notice of this court before the date of pronouncement of the judgment. However, question remains as to whether it is a sufficient material, which if would have brought to notice of this court, could in any manner had tilted the decision taken. There also, what is relevant is that the subsequent events which had taken place culminated in Annexure X proceedings issued by the Special Officer on 1.12.2012, which is the final decision taken by the Special Officer with respect to the land occupied by M/s Harisons Malayalam Ltd., pursuant to the judgments of this court inW.P.(C) 1425/2012 and 213/2013. The operative portion of the said proceedings Annexure X is extracted below:
“Since I am the competent authority in the state administration and authorized under section 15 of the KLC Act, 1957 to initiate against any of the properties in the occupation of M/S HML or any of its transferees or persons in occupation; I am satisfied that M/s HML its assesses and other persons are illegally occupying the Government land under the various provisions of the KLC Act. On the basis of all the above mentioned reasons, all the estates or land shown in the schedules given above on which the objector company, its assignees and other intruders have claimed ownership or right or possession or both of which is or are hereby declared as the property of the Government of Kerala under the various provisions of the KLC Act and Rules. And , the right, title, interest or the possession of all the lands comprised in various survey numbers, situate in the villages and Taluks referred to in the schedules here under shall stand transferred to and vest in Government of Kerala free from all encumberance and, the right, title and interest, in the leasehold land, freehold land, granted land of the lessees, grantees and other persons, intermediaries, including rights of mortgagees and holders of encumbrance, in respect of such land, shall stand extinguished. The schedule attached to these proceedings shall be treated as part of these proceedings for all purposes.”
6. In view of the proceedings mentioned above, the learned Special Government Pleader appearing on behalf of the Government (Review Petitioners) contended that, the directions contained in the judgment need to be reviewed, because the Government have issued orders evicting the petitioners from the land in question and for the recovery of possession of the land, by virtue of the proceedings issued under the Kerala Land Conservancy Act. According to the Special Government Pleader, since it is established and declared that the land in question are properties of the Government of Kerala and since the title, interest and possession of the said land stands transferred to and vested in the Government, the mutation sought for cannot be effected. Hence the review is sought for with respect to the directions contained in the judgment.
7. Primarily it is to be noticed that, this court in the judgment which is sought to be reviewed had clarified that, the legal precedents remaining settled with respect to the 'Transfer of Registry Rules' is clear that, mutation if any effected in favour of any person will not affect the title or rights over any property. Hence, even if the directions contained in the judgment is complied with, that by itself will not confer any title upon the persons in favour of whom such mutation is allowed, if the title of the property vests with the Government or if it is duly transferred to the Government under any means recognized under law. Hence it is clear that, any proceedings now issue under the Land Conservancy Act will not in any manner be affected or hindered by the mutation effected as per the Transfer of Registry Rules, on the basis of the directions contained in the judgment sought to be reviewed.
8. Learned Senior Counsel appearing on behalf of the 1st respondent (writ petitioner in W.P.(C) No.28115/2006) contended that, the subsequent events which had taken place, which culminated in Annexure X proceedings, cannot be put forth as a ground to review the judgment. In this regard he had placed reliance on a decision of the Hon’ble Supreme Court in M/s A.C.Estates v M/s Serajuddin and Co. and another (1966 SC 935). It is held therein that, the ambit and scope of order XL of CPC will not permit exercise of power of review on the ground of discovery of any new and important matter, unless such matter should be something which existed at the date of the order and there cannot be a review of an order on the ground of happening of some subsequent events. Another decision of the Hon’ble Supreme Court in Smt. Meera Bhanja v Smt. Nirmalakumar Chaudhary (AIR 1999 SC 455) is pointed out in support of the above proposition. It is held therein that, an error apparent on the face of the record must be such an error which must strike one on the mere looking at the record, and would not require any long drawn process of reasoning on the points where there may conceivably be two opinions. He had also pointed out the decision in Parsion Devi and Others v Sumitri Devi and Others (1997) 8 SCC 715). It is held therein that, an error which is not self evident and has to be detected by a process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the court to exercise its power of review under order XL Rule 1 CPC. It is not permissible for an erroneous decision to be reheard and corrected. There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the later only can be corrected by exercise of review jurisdiction.
9. Per contra, learned Special Government Pleader contended that, in order to achieve the ultimate justice or in order to prevent miscarriage of justice, the court is always empowered to exercise the power of review, considering any material which was not within the notice of the court at the time when the judgment was rendered. According to her, in such context, even the materials which arose out of any subsequent events are factors which needs to be considered by the court for deciding whether the judgment need to be reviewed or not. It is contended that, the 3rd reasoning contained in order XL Rule 1, ‘that for any other sufficient reason’, will take in its ambit and scope of any material whether existed at the time of the judgment or came into existence subsequently, in order to prevent miscarriage of justice. The Special Government Pleader had placed reliance on a decision of the Hon’ble Apex court in Board of Control for Cricket, India and Other v Netaji Cricket Club and Others AIR 2005 SC 592). It is held therein that an application for review under the order XL Rule 1 would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record, but also if the same is necessitated on account of some mistake or for any other sufficient reason. What would constitutes sufficient reason would depend upon the facts and circumstances of the case. The word ‘sufficient reason’ is vide enough to include a misconception of fact or law by a court or even by an Advocate. According to the apex court, the impact of subsequent happenings, if has a direct bearing on the issue involved, there comes the element of discretion which the court enjoys in exercise of its extraordinary jurisdiction. Further, reliance was placed on the decision in Rajender Singh v Lt. Governor Andaman & Nicobar Islands (AIR 2006 SC 75). There it is observed that, the law is well settled that the power of judicial review of its own order by the High Court inheres in every court of plenary jurisdiction to prevent miscarriage of justice. It is also pointed out that a Full Bench of this court in the decision in Pankajakshi Amma and Others v Custodian of Vested Forests (AIR 1995 Kerala 225) had observed that, order XL Rule 1 of the CPC is not and was not meant to be exhaustive. The Rule itself left room for the court to interfere if there are other sufficient reasons made out.
10. While evaluating the rival contentions on the legal aspect, this court is of the considered opinion that 'Annexure-X' order passed by the Special Officer, having the effect of taking over the land from the possession of M/s Harrisons Malayalam Limited, would definitely be a material which would affect the judgment which is sought to be reviewed, in the sense that, if the Government have declared that the land in question vests or stood transferred to the Government, then there is no necessity to effect mutation into the name of the writ petitioners. Definitely, such a development would have been pointed out as a valid reason for seeking review with respect to the positive directions contained in the judgment, directing to effect mutation. Such subsequent development ought to have been taken into consideration as a valid ground in order to achieve justice or to prevent miscarriage of justice, considering the same as a valid and sufficient reason coming within the purview of the 3rd limb of Rule 1 of order XL. But in the case at hand, the learned Senior Counsel appearing on behalf of 1st respondent had pointed out that, the land in question belonging to the petitioners in the writ petition are not covered by the Annexure-X proceedings issued by the Special Officer. It is pointed out that, property belonging to 1st respondent is comprised in Survey Nos.1/1, 1/2, 1/3, 2/4, 2/5, 2/6, 2/7 , 2/8, 2/9, 2/10 and 2/11 of the Pathanapuram Village (new Thenmala Village) in Pathanapuram Taluk, Thiruvananthapuram District (now under Kollam Disrict.) Attention of this court is drawn to the schedule appended to Annexure-X (produced along with I.A. No.385/2014). Admittedly, the property comprised in the above mentioned survey numbers are not covered in the schedules contained therein. In this respect, learned Senior Counsel had drawn attention of this court to the operative portion of 'Annexure-X' order. It provides that, on the basis of the reasons mentioned therein, all the lands included in the Schedule given are declared as property of the Government of Kerala, under provisions of Kerala Land Conservancy Act and the Rules made thereunder, and the rights, title and interest of the lands referred to in the Schedule hereunder stands transferred and vested in the Government free from all encumbrances. Therefore it is contended that there is no declaration made by the Special Officer with respect to vesting of title or transfer of title, with respect to the lands of the writ petitioners, in favour of the Government, by virtue of the said proceedings. On the other hand, learned Special Government Pleader pointed out that, the Schedule of properties mentioned in the proceedings, contains the land which were transferred by the 7th respondent company in favour of the writ petitioners.
Hence it is to be construed that the land in question also vests or stood transferred to the Government. Learned Senior Counsel for the 1st respondent contended that, no such declaration with respect to vesting or transfer of title or interest or possession can be made under the Provisions of the Kerala Land Conservancy Act, because there is no provision enabling the Authorised Officer to make any such declaration. However, question regarding validity of the proceedings does not germane for consideration before this court in this review petition. Hence this court is not expressing any opinion with respect to sustainability of the said proceedings. It is evident and clear from the operative portion of 'Annexure-X' proceedings that, the declaration with respect to vesting or transfer of the rights, title and interest with respect to the properties included in the Schedule alone can be derived. Since the writ petitioner's land is not included in the Schedule appended to 'Annexure-X' proceedings, this court is not in a position to hold that, the subsequent issuance of such a proceedings will negative the directions contained in the judgment, or in other words, the said proceedings will not prevent its compliance in any manner. Hence, this court is of the opinion that there exists no sufficient reason to review the judgment by holding that it will result in any miscarriage of justice. In this regard, I am once again reminded of the observations contained in the judgment to the effect that, the transfer of registry, if effected, will not confer any title over the property. In other words, it will not improve the title of any persons, which is having any inherent defect. Therefore this court is of the opinion that the directions contained in the judgment will not stand in the way of the Government initiating any appropriate action under the Kerala Land Conservancy Act or under any law, to the extent permissible under law.
11. R.P.No.1053/2014 filed by the 6th respondent in W.P.(C) No.28115/06 is also more or less on the very same grounds. Even though this court had expressed doubt regarding locus standi of the review petitioner, he being not a party directly affected by virtue of the directions contained in the judgment, the question regarding maintainability of the review petition need not be adjudicated, based on the decision rendered as above. For the very same reason this court arrives at a conclusion that this review petition also does not deserve merit. Similarly R.P.
No.936/2014 in W.P.(C) No.8716/2010 is also liable to be dismissed for the very same reasoning.
Under the above mentioned circumstances, all these review petitions are hereby dismissed.
SKV
Sd/- C.K. ABDUL REHIM, JUDGE.
APPENDIX OF RP 839/2014
PETITIONERS' EXHIBITS:
ANNEXURE I TRUE COPY OF THE G.O.(MS) NO.299/2013/RD DATED 16.7.2013.
ANNEXURE II TRUE COPY OF THE FORM 'B' NOTICE
NO.GLR(LR)/4/2013(1) DATED 18.1.2014.
ANNEXURE III TRUE COPY OF THE FORM 'B' NOTICE U/S.
12 OF THE KLC ACT DATED 28.3.2014 ISSUED BY THE SPECIAL OFFICER.
ANNEXURE IV TRUE COPY OF THE VIGILANCE REPORT
NO.V.E. 1/13/SIU-II DATED 25.9.2013.
ANNEXURE V TRUE COPY OF THE FIR IN CRIME NO.VC9/2013/SIU-II, THIRUVANANTHAPURAM
ANNEXURE VI TRUE COPY OF THE ORDER DATED 13.11.2013 IN B.A.NO.7614/2013.
ANNEXURE VII TRUE COPY OF THE LETTER NO.T-1/36/KC
20/2013(AZ)/36 DATED 2.1.2014 ISSUED BY THE DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA, MINISTRY OF FINANCE, COCHIN ZONE.
ANNEXURE VIII TRUE COPY OF THE LETTER NO.GLR-
HML(LR)2/2013 DATED 27.9.2013.
ANNEXURE IX TRUE COPY OF THE LETTER NO.GLR-
HML(LR)2/2013 DATED 31.3.2014.
ANNEXURE X A TRUE COPY OF THE FINAL ORDER NO.GLR(LR)-4/2013 DATED 1.12.2014.
ANNEXURE XI TRUE COPY OF THE NOTICE DATED 1.12.2014
UNDER 'FORM-C' ISSUED BY THE SPECIAL OFFICER.
ANNEXURE XII A TRUE COPY OF THE JUDGMENT DATED
25.10.2014 IN CRL.M.C.NO.6447/2013.
ANNEXURE XIII A TRUE COPY OF THE JUDGMENT DATED
3.12.2014 IN WP(C) NO.30955/2013.
APPENDIX OF RP 936/2014
PETITIONERS' EXHIBITS:
ANNEXURE I TRUE COPY OF THE G.O.(MS) NO. 299/2013/RD DATED 16-07-2013.
ANNEXURE II TRUE COPY OF THE FORM 'B' NOTICE
NO.GLR(LR)/4/2013(1) DATED 18-01-2014
ANNEXURE III TRUE COPY OF THE FORM 'B' NOTICE U/S.12
OF THE KLC ACT DATED 28-03-2014 ISSUED BY THE SPECIAL OFFICER
ANNEXURE IV TRUE COPY OF THE VIGILANCE REPORT NO.
V.E. 1/13/SIU-II DATED 25.09.2013.
ANNEXURE V TRUE COPY OF THE FIR IN CRIME NO.
VC9/2013/SIU-II, THIRUVANANTHAPURAM.
ANNEXURE VI TRUE COPY OF THE ORDER DATED 13-11-2013
IN B.A. NO. 7614/2013
ANNEXURE VII TRUE COPY OF THE LETTER NO.T-1/36/KC
20/2013 (AZ) 36 DATED 02-01-2014 ISSUED BY THE DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA, MINISTRY OF FINANCE, COCHIN ZONE.
ANNEXURE VIII TRUE COPY OF THE LETTER NO. GLR-
HML(LR)2/2013 DATED 27-09-2013
ANNEXURE IX TRUE COPY OF THE LETTER NO. GLR-
HML(LR)2/2013 DATED 31-03-2014.
ANNEXURE X A TRUE COPY OF THE FINAL ORDER NO.GLR(LR)-4/2013 DATED 01.12.2014.
ANNEXURE XI TRUE COPY OF THE NOTICE DATED
01.12.2014 UNDER 'FORM-C' ISSUED BY THE SPECIAL OFFICER.
APPENDIX OF RP 1053/2014
PETITIONER'S EXHIBITS:
ANNEXURE A1 COPY OF THE VIGILANCE ENQUIRY REPORT. ANNEXURE A2 COPY OF THE RELEVANT PAGES OF LAND
CONSERVANCY PROCEEDINGS.