K.S. Joshy v. State of Kerala and Others (RP No.71/2021)

R.P. No.71/2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 4[TH] DAY OF NOVEMBER 2022 / 13TH KARTHIKA, 1944** **RP NO. 71 OF 2021** **AGAINST THE JUDGMENT IN WP(C) 13005/2018 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONER/PETITIONER IN W.P.(C) NO.13005/2018:** **K.S.JOSHY AGED 67 YEARS S/O. LATE SANKUNNY, RESIDING AT FLAT NO.2C, LOTUS APARTMENT, DURBAR HALL ROAD, KARITHALA DESOM, ERNAKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT, PIN CODE-682 016.** **BY ADV PEEYUS A.KOTTAM** ## **RESPONDENTS/RESPONDENTS IN W.P.(C):** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, ANNEXE, THIRUVANANTHAPURAM, PIN-695 001.** - **2 DISTRICT COLLECTOR ALAPPUZHA CIVIL STATION, PIN-688 564.** - **3 REVENUE DIVISIONAL OFFICER ALAPPUZHA DISTRICT, PIN-688 564.** ## **BY SRI.JOBY JOSEPH, SENIOR GOVERNMENT PLEADER** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** **04.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P. No.71/2021 2 ## **O R D E R** Dated this the 4[th] day of November,2022 This review petition is filed by the petitioner in W.P.© No.13005 of 2018, seeking to review the judgment dated 1.2.2019. Even though in the writ petition various contentions were raised in regard to the orders passed by the primary and the appellate authority under clause 6(2) of the Kerala Land Utilisation Order, 1967, with respect to the utilisation of the paddy field measuring 139.56 Ares for other purposes other than paddy cultivation and agricultural operations; when the Writ petition was taken up for the final hearing, it was submitted by learned counsel for the petitioner that it would suffice, if the petitioner is permitted to submit an application under section 27A of the Kerala Conservation of Paddy Land and Wetland Act, 2008, as amended by Act, 2018, for utilising the property for other purposes. A further direction was also sought to consider the said application dehors the findings contained in Exhibit P11 order passed by the Sub Collector dated 29.12.2017, under section 6(1) of the Kerala Land Utilisation Order, 1967. Accordingly, the writ petition was disposed of, leaving open the liberty of the petitioner to submit any suitable application before the Revenue Divisional Officer, Alappuzha – the 3[rd] respondent therein, within three weeks from the date of receipt of a copy of the judgment. Further, it was directed that if R.P. No.71/2021 3 any such application is filed, it shall be considered by the 3[rd] respondent in accordance with law and attain finality, at the earliest possible time, and at any rate, within three months from the date of receipt of a copy of the application, applying the parameters and stipulations contained under section 27A of the Act, 2008. Consequent to the directions so issued, the Revenue Divisional Officer has passed an order dated 25.3.2020, whereby the application was allowed, however on the conditions incorporated thereunder. Thereafter, instant review petition was filed on 8.12.2020, basically contending that the order passed by the Revenue Divisional Officer is against the statutory provisions and the dictum laid down by this Court in numerous decisions. Further it is contended that the 3[rd] respondent ought to have considered the application dated 29.6.2019 as a continuation of Exhibit P3 representation under the provisions of the Kerala Land Utilisation Order, 1967. 2. It is further contended that the petitioner had preferred an application dated 29.6.2020 under section 27A of the Act, 2008 as per the directions of this Court but at that point of time, the petitioner was under the bona fide belief that huge charges and other compliance measures as contemplated in Annexure 1 order, were not applicable. It is further submitted that the petitioner was under the bona fide belief that for expeditious consideration of change of utilisation of the land, an application under the amended provisions of the Act, 2008 would suffice. Still, at the same time, petitioner was unaware of the other statutory R.P. No.71/2021 4 compliances, which would put him in imperil. Other contentions are also raised. 3. The State has produced a communication issued by the Sub Collector, Alappuzha, to the office of the Advocate General, Ernakulam dated 1.4.2022. It is clear from the said order that Exhibit P11 order passed by the Revenue Divisional Officer under clause 6(1) of the Kerala Land Utilisation Order, 1967 dated 29.12.2017 was taken up in appeal before the Land Revenue Commissioner on 28.1.2018 and the Land Revenue Commissioner has dismissed the appeal as per an order dated 5.3.2018, which was produced as Exhibit P13 in the writ petition in question. Therefore, it can be seen that in the said backdrop alone, the petitioner submitted before this Court that he may be permitted to apply section 27A of the Act, 2008. Therefore, the contentions advanced in the review petition that the application was pending before the Revenue Divisional Officer under clause 6 of Kerala Land Utilisation Order, 1967, is incorrect. It is clear from the sequence of events that, since the attempt made by the petitioner for reclamation of the property and utilisation of the same for other purposes by invoking the provisions of the Kerala Land Utilisation order 1967 was successively defeated before the statutory authority and the appellate authority alone, the petitioner submitted when the writ petition was heard to consider a prospective application under section 27A of the Act, 2008. 4. I have heard Adv.Sri.P.Vishwanathan – learned Senior Counsel appeared for the review petitioner, assisted by Adv.Ajith Vishwanathan, learned Senior R.P. No.71/2021 5 Government Pleader Sri.Joby Joseph and perused the pleadings and material on record. 5. Learned Senior Counsel for the petitioner has invited my attention to a judgment of the Apex Court in **Moran Mar Basselios Catholicos and Another v. Most Rev. Mar Poulose Athanasius and Others** [AIR 1954 SC 526] to canvass the proposition that a misconception by the Court of a concession made by the Advocate or of the attitude taken up by the party is a ground analogous to an error on the face of the record and is a ground for review. 6. Learned Senior Counsel has also relied upon the judgment of the Apex Court in **M/s.Motilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. and others** [AIR 1979 SC 621] to submit that it is an elementary rule that waiver is a question of fact and it must be properly pleaded and proved and no plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. 7. So also the judgment of a learned Single Judge of this Court (Justice V.R.Krishna Iyer) in **Kannan v. Lakshmi** [1970 KHC 136] was pressed into service to canvas the proposition that the concession made by the Advocate regarding the customary law of parties is on a question of law and the parties are not bound by it, if it is found to be wrong. 8. So also judgment of a yet another learned Single Judge of this Court in **M.T.George v. Kerala State Electricity Board** [1986 KHC 279] was pressed R.P. No.71/2021 6 into service to advance the contention that there exists no presumption that everyone knows the law and though ignorance of law does not excuse from the consequence of their acts, the law should take notice that there may be doubtful point of law as to the true content or exact requirement of provision of law of which a person may be ignorant. 9. So also learned senior counsel has relied on a Division Bench judgment of Orissa High Court in **Gangadhar Das and Another v. Gadadhar Das and Others** [1986 KHC 2003], wherein it was laid down that when a judgment is founded on a misconception as to a concession made by an Advocate, the proper procedure is to apply by way of review to the very court in whose judgment the error is alleged to have crept in for a rectification of the mistake, if any, and it would not be proper for the appellate court to wipe out the effect of the so called concession on considering the evidence. 10. A Division Bench of the Himachal Pradesh High Court in **Purewal and Associates Ltd. and Another v. Punjab National Bank and Others** [1992 KHC 2209] is referred to wherein it was held in cases of writ jurisdiction under Article 226 of the Constitution of India, the review jurisdiction is admittedly analogous to that under Order XLVII CPC; and further held that a party can resile from a concession made as a result of a mistake of counsel and that admissions, concessions and withdrawals by counsel are binding upon the party unless he has been induced or misled by some circumstance to make a statement under a R.P. No.71/2021 7 mistake or it is based on a complete misappreciation of the law and in that background it was held that the review is to be allowed. 11. Learned Senior Counsel has also relied upon a Division Bench of this Court in **Employees' Provident Fund Organisation, TVM v. Kerala State Co-operative Employees Pension Board, Trivandrum and Others** [2016(5) KHC 414], wherein referring to the facts and circumstances therein held that there occurred misconception of statutory provisions governing the issue and therefore, there is the sufficient reason as contemplated under Order XLVII Rule 1 CPC to review the judgment. 12. On the other hand, learned Senior Government Pleader submitted that the submission made by the review petitioner that the application was pending before the Revenue Divisional Officer under clause 6 of the Kerala Land Utilisation Order, 1967, is not correct for the reason that the said order and Exhibit P13 appellate order, which affirmed Exhibit P11 order, was under challenge in the writ petition and therefore, the review sought for on the ground of ignorance of law and concession made by the Advocate during the pendency of an application before the Revenue Divisional Officer under clause 6 of the Kerala Land Utilisation Order, 1967, cannot be sustained under law. 13. It is further contended by the learned Senior Government Pleader that after the judgment in question was rendered, the petitioner has submitted an application before the Revenue Divisional Officer under section 27A of the Act, R.P. No.71/2021 8 2008 and the said authority has passed an order, which was not challenged. However, the petitioner has chosen to file a review petition ignoring the order passed, several months after the order was passed. That apart, it is also contended that since the directions contained in the judgment in the writ petition in question were complied with by the petitioner and the Revenue Divisional Officer, the decision is acted upon. Therefore, a review cannot be maintained after that. 14. I have evaluated the rival submissions. The facts and circumstances discussed above would make it clear that there was no application at all pending before the Revenue Divisional Officer under clause 6 of the Kerala Land Utilisation Order, 1967 because in the said application filed by the petitioner, Exhibit P11 order was passed by the Revenue Divisional Officer, exercising the power conferred under the Kerala Land Utilisation Order, 1967, which was affirmed by the Land Revenue Commissioner as per Exhibit P13 order dated 5.3.2018. Therefore, at the first blush it can be seen that the review sought for on the basis of a concession made by an Advocate to consider a prospective application to be filed under section 27A of the Act, 2008 while an application was pending before the authority under the provisions of the Kerala Land Utilisation Order, 1967, cannot be sustained at all. Moreover, there is no error apparent on the face of the record or any other legal infirmities justifying the petitioner to file a review petition since the judgment was rendered on the basis R.P. No.71/2021 9 of the submission made by the learned counsel for the petitioner that petitioner may be permitted to file an application under section 27A of Act, 2008. 15. Admittedly, based on the submissions so made and the liberty granted by this Court in the judgment, the petitioner has preferred an application before the Revenue Divisional Officer under section 27A of the Act, 2008, which was acted upon by the said authority and has passed an order in favour of the review petitioner. But the petitioner is aggrieved by the conditions prescribed thereunder including setting up of 10% of the property for a watershed and the conditions imposed for payment towards the conversion charges as prescribed under the Kerala Conservation of Paddy Land and Wetland Rules, 2008. 16. The question with respect to the maintainability of a review petition after the judgment is acted upon, is considered by a Bench of the Hon'ble Supreme Court in **State of Nagaland and Another v. Toulvi Kibami and Another** [(2003)8 SCC 671]and held that since the judgment of the Letters Patent Bench was acted upon and it stood exhausted, the review petition was futile and further held that under such circumstances, the review petition ought not have been entertained and decided on merits. The above judgment of the Apex Court was followed by a Division Bench of this Court (I am a party) in **Anwar Sadath v. Justine Pallivathukkal** [2021(5)KLT Online 1037] and held that a review is not maintainable under the law when the judgment is acted upon. Considering the issue as above, I am of the view that in the facts and circumstances and the law R.P. No.71/2021 10 involved in the case at hand, the judgments referred to by the learned Senior Counsel, may not have any bearing or application to review the Judgment in question. 17. Apart from the above, the sequence of facts and circumstances would clearly prove that the review petition filed by the petitioner is nothing but an afterthought in order to make an attempt to avoid payment of the charges levied for reclamation of the paddy field in contemplation of section 27A of the Act read with rule 12 of the Rules, 2008. Which means the order is in favour of the petitioner, but he is aggrieved by the conditions. Therefore in my considered opinion the review jurisdiction cannot be invoked to suit the convenience of a litigant, when an order secured in a judgement is partly affecting the party. 18. Therefore, I am of the undoubted opinion that the petitioner has not made out a case of an error apparent on the face of the record or any other legal infirmities justifying the entertainment of the review petition. Needless to say, the Review petition fails. Accordingly, it is dismissed. Sd/- **SHAJI P.CHALY** **JUDGE** smv R.P. No.71/2021 11 ## **APPENDIX OF RP 71/2021** |**PETITIONER'S**|**ANNEXURES**| |---|---| |**ANNEXURE 1**|**THE TRUE PHOTOSTAT COPY OF THE ORDER BEARING**| ||**NO.J-7135/19 DATED 25.3.2020 ISSUED BY THE**| ||**3RD RESPONDENT.**| |**ANNEXURE 2**|**THE TRUE PHOTOSTAT COPY OF THE ORDER BEARING**| ||**NO.J2659/2020 DATED 13.5.2020 ISSUED BY THE**| ||**3RD RESPONDENT.**| |**ANNEXURE 3**|**THE TRUE PHOTOSTAT COPY OF THE ORDER BEARING**| ||**NO.J2660/2020 DATED 13.5.2020 ISSUED BY THE**| ||**3RD RESPONDENT.**| |**ANNEXURE 4**|**THE TRUE PHOTOSTAT COPY OF THE JUDGMENT DATED**| ||**4.6.2020 PASSED BY THIS HON'BLE HIGH COURT IN**| ||**WPC NO.10918 OF 2020.**| |**ANNEXURE 5**|**THE TRUE PHOTOSTAT COPIES OF PROCEEDINGS**| ||**BEFORE THE SUB COLLECTOR, ALAPPUZHA IN**| ||**PROCEEDINGS NO.DDSJ-2659/2020, DATED**| ||**17.8.2020.**| |**ANNEXURE 6**|**THE TRUE PHOTOSTAT COY OF THE PROCEEDINGS**| ||**BEFORE THE SUB COLLECTOR, ALAPPUZHA IN**| ||**PROCEEDINGS NO.DDSJ-2660/2020, DATED**| ||**17.8.2020.**|