Jiji Sajeev Muttichukkaran & Sajeev George Mutttichukkaran v. Secretary Cherpu Grama Panchayath & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN THURSDAY, THE 23RD DAY OF MARCH 2017/2ND CHAITHRA, 1939 RP.No. 287 of 2017 () IN WA.2338/2016 --------------------------------------- AGAINST THE JUDGMENT IN WA 2338/2016 DATED 08-02-2017 REVIEW PETITIONER(S)/APPELLANTS: ------------------------------- 1. JIJI SAJEEV MUTTICHUKKARAN HOUSE, P.O. CHERPU, THRISSUR REPRESENTED BY 2ND PETITIONER/HUSBAND 2. ADVOCATE SAJEEV GEORGE MUTTICHUKKARAN HOUSE, P.O. CHERPU, THRISSUR DIST, PIN-680561, BY ADVOCATE SAJEEV GEORGE (PARTY IN PERSON) BY SMT.JIJI SAJEEV (PARTY-IN-PERSON) ADV. SRI.SAJEEV GEORGE (PARTY-IN-PERSON) RESPONDENT(S)/RESPONDENTS: -------------------------- 1. SECRETARY CHERPU GRAMA PANCHAYATH, P.O. CHERPU, PIN-680561 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION THIRUVANANTHAPURAM-695001 3. CHIEF TOWN PLANNER SWARAJ BHAVAN, NANDANCODE, KOWDIAR PO., THIRUVANANTHAPURAM-695004 4. DISTRICT TOWN PLANNER AYYANTHOLE P.O., THRISSUR DIST, PIN-680003 R1 BY SRI.RAJIT R2 TO 4 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. ========================== R.P. No.287 of 2017 in W.A.No.2338 of 2016 ========================== Dated this the 23[rd ] day of March, 2017** ## **ORDER** ## **Anil K. Narendran, J.** This Review Petition arises out of the judgment of this Court dated 8.2.2017 in W.A.No.2338 of 2016. The petitioner herein filed the said Writ Appeal challenging the judgment of the learned Single Judge dated 2.9.2016 in W.P.(C).No.21629 of 2016. Cherppu Grama Panchayat, the 1[st] respondent herein, filed the said Writ Petition seeking a writ of certiorari to quash Ext.P11 order dated 10.12.2015 of the Tribunal for Local Self Government Institutions in Appeal No.403 of 2015 and Ext.P12 order of the said Tribunal dated 17.2.2016 in I.A.No.60 of 2016 in that appeal, and for other consequential reliefs. 2. After considering the rival contentions with reference to the pleadings and materials on record, the learned Single Judge allowed the Writ Petition in part thereby interfering with Ext.P11 order of the Tribunal to the extent of the Tribunal directing the request of the petitioners herein (respondents 4 and 5 in the Writ Petition) to be allowed on production of documents; which can only **R.P.287/17 in W.A.2338/16** 2 be done after such satisfaction as required under the respective statutes. The learned Single Judge held that the petitioners herein will be entitled to cure the defects and submit a proper application; which shall be considered by the Secretary of the Grama Panchayat within a period of two months from the date of submission of such application, with approval from the Town Planner. 3. Challenging the judgment of the learned Single Judge, the petitioners herein filed W.A.No.2338 of 2016 before this Court. After detailed consideration of the rival contentions with reference to the pleadings and materials on record, this Court dismissed the Writ Appeal by judgment dated 8.2.2017 holding that the reasoning of the learned Single Judge in the impugned judgment is perfectly legal, which warrants no interference in the appeal. This Court ordered that, it is for the petitioners herein to submit a proper application in terms of the judgment of the learned Single Judge within a period of one month from the date of the judgment; which was directed to be considered by the Secretary of the respondent Grama Panchayat within a period of two months thereafter, with the approval from the Town Planner. 4. Now, the petitioners are before this Court in this Review Petition, contending that there is error apparent on the face of the record, warranting review of the judgment of this Court dated **R.P.287/17 in W.A.2338/16** 3 8.2.2017 in W.A.No.2338 of 2016. 5. We heard the arguments of the 2[nd] petitioner/2[nd] appellant who appeared in person, learned Standing Counsel for Cherppu Grama Panchayat representing the 1[st] respondent and the learned Government Pleader representing respondents 2 to 4. 6. The issue relates to grant of licence to run a petroleum retail outlet by the 1[st] petitioner for which the Indian Oil Corporation has granted a Letter of Indent and the Additional District Magistrate, Thrissur has granted a No Objection Certificate, in exercise of his powers under Rule 114 of the Petroleum Rules, 2002. As noticed by this Court in Para.15 of the judgment in Writ Appeal, a reading of Ext.P9 order passed by the Tribunal for Local Self Government Institutions in Appeal No.79 of 2014 would make it explicitly clear that the specific contention raised the petitioners herein as to nonapplicability of sub-rule (9) of Rule 61 of the Kerala Panchayat Building Rules, in view of the No Objection Certificate issued by the Additional District Magistrate in exercise of his powers under Rule 144 of the Petroleum Rules, was specifically repelled by the Tribunal while dismissing that appeal. In the absence of any challenge made against Ext.P9 order, the said finding of the Tribunal has attained finality. 7. When the Grama Panchayat issued a communication dated 23.3.2015 to the petitioners herein, in terms of the direction **R.P.287/17 in W.A.2338/16** 4 contained in Ext.P9 order of the Tribunal, to resubmit the application after curing the defects, they challenged the said communication before the Tribunal by filing Appeal No.403 of 2015. By Ext.P11 order the Tribunal allowed Appeal No.403 of 2015 and modified notice dated 23.3.2015 issued by the Grama Panchayat to the extent indicated therein. The Tribunal directed the petitioners herein to produce documents showing the eligibility of the licensee and the location plan as required in the notice dated 23.3.2015 and on receipt of the same the Secretary of the Grama Panchayat was directed to issue an order allowing the request of the appellants. As noticed by this Court in Para.16 of the judgment in Writ Appeal, a reading of Ext.P11 order would show that, though the petitioners herein raised contentions regarding non-applicability of sub-rule (9) of Rule 61 of Kerala Panchayat Building Rules, the Tribunal has not entertained the said contention in view of the findings in Ext.P9 order on that issue, which has attained finality. 8. In order to set aside Ext.P11 ex parte order of the Tribunal, the Grama Panchayat filed I.A.No.60 of 2016, which ended in dismissal by Ext.P12 order dated 17.2.2016. Subsequent to Ext.P12 order, the 1[st] petitioner herein submitted Ext.P13 application before the Grama Panchayat for issuance of D&O licence, which according to the Grama Panchayat was made without curing any **R.P.287/17 in W.A.2338/16** 5 defects already noticed, including the change of occupancy as pointed out in Ext.P1 notice. 9. Before this Court, relying on the judgment in Mary Ulahannan v. Union of India (2011 (3) KLT 570) it was contended that in view of the provisions under the Petroleum Rules, 2002 framed by the Central Government under List I of the Seventh Schedule to the Constitution; Entry 53, Entry 33 of List III, the power of the State legislature to legislate on the very same subject is taken away and as such no restriction on construction of a petroleum retail outlet can be imposed under Rule 61 of the Kerala Panchayat Building Rules. The said contention was repelled by this Court in Paras.22 to 24 of the judgment in Writ Appeal, which read thus; “22. In Mary Ulahannan's case (supra) this Court was dealing with the competency of the State Government in issuing a circular stipulating certain norms fixing the minimum viability limits, etc. for opening a new petroleum retail outlet in the State. Such restrictions imposed by the State Government were interfered with by this Court on the ground of no such power being vested in the executive Government in the State. 23. The principle laid down in the said decision has no application to the factual matrix of the case on hand, inasmuch as, the State Legislature having sourced power; from Entry 5 of List II of the Seventh Schedule to the Constitution, has framed the Kerala Panchayat Raj Act, 1994 and the Kerala Panchayat Building Rules, 2011. The said Act and the Rules regulate the constructions carried on within the jurisdiction of a Local Self **R.P.287/17 in W.A.2338/16** 6 Government Institutions and regulate its user as defined under various categories from 'residential' to 'hazardous occupancy'. The said provisions also regulate carrying on trade and business within such defined areas, all of which come under the broad category of Local Self Government which the State has exclusive power to legislate upon under List II of the Seventh Schedule to the Constitution. 24. Therefore as rightly held by the learned Single Judge the location approval under the Petroleum Rules does not by itself render the authorities under the Local Self Government Institution helpless insofar as the various approvals and sanctions required under the Panchayat Raj Act and the Building Rules made thereunder are concerned. At any rate, the appellants are estopped from raising such a contention as to non-applicability of Rule 61 of the Kerala Panchayat Building Rules, in view of the specific finding of the Tribunal in Ext.P9 order in Appeal No.79 of 2014, which has attained finality.” 10. Therefore, the application submitted by the 1[st] petitioner herein for D&O licence for the petroleum retail outlet cannot be processed without fulfilling the statutory mandate of sub-rule (9) of Rule 61 of the Kerala Panchayat Building Rules. Neither the No Objection Certificate issued by the Additional District Magistrate in exercise of his powers under Rule 144 of the Petroleum Rules, 2002 nor a licence issued or renewed under Rule 145/148 of the said Rules do not by itself render the authorities under the Local Self Government Institution helpless insofar as the various approvals and sanctions required under the Panchayat Raj Act and the Building **R.P.287/17 in W.A.2338/16** 7 Rules made thereunder are concerned. In that view of the matter, this Court by judgment dated 8.2.2017 dismissed W.A.No.2338 of 2016 holding that, the reasoning of the learned Single Judge in the impugned judgment is perfectly legal, which warrants no interference in the Writ Appeal. 11. From Grounds A to C of the Review Petition it is evident that, now the petitioners are seeking a rehearing of the matter on merits, contending that the reasoning of this Court in the judgment dated 8.2.2017 in W.A.No.2338 of 2016 is erroneous. Therefore, the present Review Petition can only be treated as 'an appeal in disguise'. 12. In **Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715]** the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (for brevity 'the Code') held that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. 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 review under Order XLVII Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Later, in **R.P.287/17 in W.A.2338/16** 8 ## **Lily Thomas v. Union of India [(2006) 3 SCC 224]** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 13. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15 SCC 534]** the Apex Court held that, the review jurisdiction is extremely limited and unless there is mistake apparent on the face of the record, the order/judgment does not call for review. The mistake apparent on record means that the mistake is self-evident, needs no search and stares at its face. Surely, review jurisdiction is not an appeal in disguise. The review does not permit rehearing of the matter on merits. 14. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in the Review Petition fall within the ambit and scope of Order XLVII Rule 1 of the Code. Since review cannot be treated like an appeal in disguise, and it does not permit rehearing of the matter on merits, in the absence of any mistake or error apparent on the face of the record pointed out in the judgment of this Court dated 8.2.2017 in W.A.No.2338 of 2016, the petitioners herein are not legally entitled to seek a review of the said judgment, under Order XLVII Rule 1 of 9 ## **R.P.287/17 in W.A.2338/16** the Code. In the result, this review petition fails and the same is accordingly dismissed. **Sd/C.T. RAVIKUMAR (JUDGE) Sd/-** **ANIL K. NARENDRAN (JUDGE)** spc/