Kochuthresia @ Leena v. District Collector, Ernakulam and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934** **RP.No. 905 of 2012 (U) IN WPC/29154/2005 -----------------------------------------** ## **AGAINST THE JUDGMENT IN WPC.29154/2005 DATED 03-02-2012.** **REVIEW PETITIONER(S)/RESPONDENTS 1 TO 3 IN WP(C):** **------------------------------------------------** **1. THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT,COLLECTORATE,ERNAKULAM.** **2. THE TAHSILDAR, KOCHI TALUK,TALUK OFFICE,FORT COCHIN.** **3. THE VILLAGE OFFICER, ELANKUNNAPUZHA VILLAGE,MALIPURAM.** **BY GOVERNMENT PLEADER SRI.SOYUZ.** **RESPONDENT(S)/PETITIONER IN WP(C): ----------------------------------** **KOCHUTHRESIA @ LEENA, W/O.ANTONY,VELLIYIL HOUSE,ELANKUNNAPUZHA VILLAGE KARTHEDOM,PIN, - 682 501.** **THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **RP.No. 905 of 2012 (U) IN WPC/29154/2005 -2-** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :-** **ANNEXURE 1 : A TRUE COPY OF THE APPLICATION DATED 27-6-96. ANNEXURE 2 : A TRUE COPY OF THE ORDER DATED 25-9-98. ANNEXURE 3 : A TRUE COPY OF THE CONSENT LETTER DATED 5-10-98. ANNEXURE 4 : A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER.** **RESPONDENTS ANNEXURES : NIL.** **//TRUE COPY//** **P.A TO JUDGE** **amk** ## **K.VINOD CHANDRAN, J** **--------------------------------------------------** **R.P.No.905 of 2012 in W.P.(C) No.29154 of 2005 --------------------------------------------------Dated this the 22[nd] day of November, 2012.** **O R D E R** The above review has been filed by the State. The brief facts which led to the writ petition is that, the petitioner who purchased 14.470 cents of land by Ext.P1 had been paying land tax for the entire property purchased by her till 1991. Subsequently, when the authorities refused to accept tax, the petitioner made an application for 'patta'. The Tahsildar found that the petitioner's predecessor in interest had obtained 'patta' only for 3.840 cents and the Revenue could not accept tax for the balance land coming to 10.630 cents. The petitioner then approached the Chief Minister's Public Grievance Redressal Cell pursuant to which Ext.P5 was issued by the District Collector. This Court relying on the statements in Ext.P5 as also the Form of Order of Assignment on Registry produced as Ext.P6, directed that 'patta' be issued to the petitioner in pursuance of Ext.P6 Order of Assignment on Registry as R.P.No.905 of 2012 in 2 W.P.(C) No.29154 of 2005 provided under Rule 9(2) of the Kerala Land Assignment Rules, 1964, hereinafter referred to as “ the Assignment Rules”. The said judgment was passed on 03-02-2012. The above review has been filed on 31-10-2012 with an application for condonation of delay of 210 days. Since a contempt was pending against the second respondent, the matters were posted together. 2. The contention of the State in the review is that the petitioner had originally, on 27-06-1996, made an application as per Annexure A1. On such application being received, by Annexure A2, it is contended that Ext.P6 was cancelled. Subsequently, the petitioner had come forward with Annexure A3 undertaking to pay the market value. It was later that Annexure A4 application dated 1-2-2001 was filed; on which the petitioner had approached the Grievance Redressal Cell as noticed above. The learned Special Government Pleader Revenue, Sri.Soyuz would contend before me that Ext.P6 stands cancelled by Annexure A2 and the petitioner has suppressed Annexure A3, by which she R.P.No.905 of 2012 in 3 W.P.(C) No.29154 of 2005 specifically undertook to pay the market value. The learned Special Government Pleader would also take me to the 'Note' under Rule 6 of the Assignment Rules. As per Note(1), the authority competent to assign land for beneficial enjoyment shall be the Revenue Divisional Officer and such assignment under Sub Rule 3 of Rule 6 can only be subject, to the payment of the market value of the land. 3. The said submission on behalf of the State is on a misconception that the petitioner is claiming beneficial enjoyment. “Beneficial enjoyment” has been defined in Rule 2(cd) of the Assignment Rules as "the enjoyment of land for purposes like providing approach road to the assignee's registered holding and protection of his watercourse, standing crops and buildings". The petitioner's claim is not based on getting assignment of 10.630 cents for the beneficial enjoyment of the 3.840 cents. The predecessor in interest of the petitioner had obtained assignment on Registry and the petitioner herself had been paying tax for the R.P.No.905 of 2012 in 4 W.P.(C) No.29154 of 2005 entire 14.470 cents. Ext.P6 is the order of assignment on Registry. That does not show the extent. For all we know the entire lands, i.e., 14.470 cents would have been assigned by Ext.P6. The petitioner is only the subsequent transferee. The State, of course, could have produced documents to show that the entire lands were not assigned since the assignment itself was done by the State. Nothing has been produced from the part of the State to show that the assignment was confined to 3.840 cents. 4. Looking at Rule 6, the extent of Government land that could be registered in favour of a family and as house site, in 1975, could not exceed 25 cents. The total lands in the possession of the petitioner is less than the said ceiling provided under the Rules. It is also very pertinent that the petitioner has produced Ext.P3 series which evidences payment of tax for the entire lands till the year 1991. The authorities refused to take tax for 10.630 cents on the reasoning that no 'patta' was issued for that portion. R.P.No.905 of 2012 in 5 W.P.(C) No.29154 of 2005 There is no explanation forth coming as to why 'patta' was issued only for 3.840 cents, and if so, how the tax for the entire lands were collected till the year 1991. 5. The other contention of the State is that Ext.P6 has been cancelled by Annexure A2. That was available in the records of the State even when the earlier counter affidavit was filed. There is no satisfactory explanation as to why the same was not put forward at the time of filing of the earlier counter affidavit. It is also pertinent that sub-rule 3 of rule 8 conferring the authority to cancel a Registry already granted, specifically provides that, no cancellation shall be done without giving the party or parties effected thereby a reasonable opportunity of being heard. Obviously, Annexure A2 was passed after receipt of Annexure A1, and it can be reasonably inferred that Annexure A1 led to the passing of Annexure A2. The application made by the petitioner has been specifically referred to in Annexure A2. There is nothing in Annexure A2 to show that the petitioner was heard, nor is there anything on record to show that R.P.No.905 of 2012 in 6 W.P.(C) No.29154 of 2005 even a notice was issued to the petitioner. It is also relevant that the proviso to sub-rule 3 of Rule 8 provides that no assignment of land can be cancelled, if the transferee occupants annual family income does not exceed Rs.10,000/-. The order Ext.P5 of the District Collector specifically refers to the report of the Village Officer that the family income of the petitioner is below the limit. In any event, it is to be noticed that it is after Annexures A3 and A4 that the District Collector has issued Ext.P5. Ext.P5 though speaks about beneficial enjoyment, it has already been found that the claim of the petitioner does not fall under 'beneficial enjoyment'. 6. The contentions raised by the learned Special Government Pleader have been noticed above for a fair adjudication, despite the fact that it is a review that is, before this Court, for consideration. The contours of the jurisdiction in review have been succinctly stated in _**(2008) 8 Supreme Court Cases 612, State of West Bengal and Others v. Kamal Sengupta and Another**_ . The R.P.No.905 of 2012 in 7 W.P.(C) No.29154 of 2005 ## Supreme Court specifically culled out the principles under Order 47 Rule 1 :- - (i) The power of the Tribunal to review its order/decision under Section 22(3)(f) of the Act is akin/analogous to the power of a civil court under Section 114 read with Order 47 Rule 1 CPC. - (ii) The Tribunal can review its decision on either of the grounds enumerated in Order 47 Rule 1 and not otherwise. - (iii) The expression “any other sufficient reason” appearing in Order 47 Rule 1 has to be interpreted in the light of other specified grounds. - (iv) An error which is not self-evident and which can be discovered by a long process of reasoning, cannot be treated as an error apparent on the fact of record justifying exercise of power under Section 22(3)(f). - (v) An erroneous order/decision cannot be corrected in the guise of exercise of power of review. - (vi) A decision/order cannot be reviewed under Section 22(3)(f) on the basis of subsequent decision/judgment of a coordination or larger Bench of the tribunal or of a superior court. 7. Going by the principles so culled out, it cannot be said that in the instant case there is any error which is apparent or self evident. The contentions noticed above would show that it would involve a long process of reasoning and interpretation of the R.P.No.905 of 2012 in 8 W.P.(C) No.29154 of 2005 various Rules, which by no stretch of imagination can be treated as an error apparent on the face of record. The State seems to project Annexures A2 and A3 as being new materials which were not produced, because the same could not be obtained even after the exercise of due diligence. Annexures A2 and A3 were available in the files of the second respondent. The second respondent has filed an earlier counter affidavit, it cannot be gainsaid that the documents now produced could not have been obtained, despite exercise of due diligence. Looking at the affidavit filed in support of the application for condonation of delay, the only reason stated by the deponent is that, he had taken charge on 1-9-2012 and had on verification of the files found out the cancellation of Ext.P6. If that reason is countenanced then the diligence of each incumbent in the office of an authority or lack of it should be a ground for review. The review is devoid of merit for the reasons stated above. 8. There is also a contention raised by the State that the R.P.No.905 of 2012 in 9 W.P.(C) No.29154 of 2005 Revenue Divisional Officer who has to order assignment is not a party in the above proceedings. That again is on the misconception that it is 'beneficial enjoyment' that the petitioner is seeking and assignment under Rule 6 for 'beneficial enjoyment' can only be done by the Revenue Divisional Officer. The Tahsildar is the competent officer under Section 4 of the Kerala Land Assignment Act, 1960 to grant assignment of lands and he is the respondent in the W.P.(C) and the contemnor in the contempt case. The review petition hence, stands rejected. **Sd/-** **K.VINOD CHANDRAN,** amk/23-11-12 **JUDGE.** **//True Copy// P.A to Judge**