Mariam Beevi v. Athirampuzha Grama Panchayath and 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. 283 of 2017 () IN WA.1537/2015 --------------------------------------AGAINST THE JUDGMENT IN WA 1537/2015 DATED 08-02-2017 REVIEW PETITIONER(S):APPELLANT -------------------------------------- MARIAM BEEVI AGED 42 YEARS, D/O. SYED MOHAMMED, ANUGRAHA HOUSE, ATHIRAMPUZHA VILLAGE, PADINJARUBHAGOM KARA, ATHIRAMPUZHA P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT. BY ADVS.SRI.P.B.KRISHNAN SRI.SIRAJ KAROLY SRI.R.PARAMESWARA IYER RESPONDENT(S):RESPONDENTS: ------------------------------------ 1. THE SECRETARY, ATHIRAMPUZHA GRAMA PANCHAYATH ATHIRAMPUZHA GRAMA PANCHAYATH OFFICE, ATHIRAMPUZHA P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT. PIN-686562 2. ATHIRAMPUZHA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, PANCHAYAT OFFICE, ATHIRAMPUZHA P.O., KOTTAYAM TALUK, KOTTAYAM DISTRICT. PIN-686562 ## 3. THE DISTRICT COLLECTOR KOTTAYAM, COLLECTORATE, KANJIKUZHY, KOTTAYAM.PIN-686002 4. THE DIRECTOR OF PANCHAYAT THIRUVANANTHAPURAM,PIN-695001 ## 5. THE SECRETARY LOCAL SELF ADMINISTRATION, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001 R3 TO 5 BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL R1,2 BY SRI.RAJESH THOMAS 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.283 OF 2017 in W.A.No.1537 OF 2015** ## **========================== 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 8.02.2017 in W.A.No.1537 of 2015. The petitioner herein filed the said Writ Appeal challenging the judgment of the learned Single Judge dated 10.4.2015 in W.P.(C).No.6384 of 2015, a Writ Petition filed by him seeking a writ of certiorari to call for the records leading to the inclusion of the private pathway leading to his property in the Asset Register of the second respondent Grama panchayat and to order the removal of the said private pathway from that register. The petitioner has also sought for various other reliefs including an order directing respondents 1 and 2 not to expend or disburse any public money for improvement of the pathway in question. 2. After considering the rival contentions, with reference to the pleadings and materials on record, the learned Single Judge dismissed the Writ Petition. Feeling aggrieved, the petitioner approached this Court in W.A.No.1537 of 2015. The said Writ Appeal R.P.283/2017 in W.A.1537/2015 2 was dismissed by the judgment dated 8.2.2017, holding that the reasoning of the learned Single Judge in the judgment dated 10.4.2015 in W.P.(C).No.6384 of 2015 is perfectly legal, which warrants no interference in the appeal. 3. Now, the petitioner is 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 8.2.2017 in W.A.No.1537 of 2015. 4. We heard the arguments of learned counsel for the petitioner/appellant, learned counsel for the second respondent Grama Panchayat and also learned Government Pleader appearing for respondents 3 to 5. 5. Going by the pleadings and materials on record, the petitioner owns a residential building within the limits of the second respondent Grama Panchayat, which shares the pathway with six others in the locality. Admittedly, the said pathway was formed when an area of 71 cents of land was plotted out by the owner of that property, providing a way meant for serving the need of the buildings constructed on either side of it. The petitioner acquired title over the land having an extent of 1.6 Ares in Re.Sy.No.492/2.1.2 of Athirampuzha Village in Kottayam District based on Ext.P8 sale deed. R.P.283/2017 in W.A.1537/2015 3 From the description of the property and its boundary shown in Ext.P8 document, it is evident that the northern boundary of the appellant's property is a ten feet pathway and property of one Azeez. Similar sale deeds were executed in respect of others who purchased part of the aforementioned 71 cents of land, originally owned by a single person. After constructing the residential building in the respective properties the petitioner and other land owners are using the said pathway for ingress and egress to their properties. The grievance of the petitioner, highlighted in the writ petition was that, without any legal authority the second respondent Grama Panchayat has included the pathway in its Asset Register and thereafter, spending public money, the Panchayat started laying interlocking blocks on that pathway. 6. On a specific query made by this Court during the course of hearing, the learned counsel for the petitioner/appellant submitted that other than the petitioner/appellant, the six others, who purchased part of the aforementioned 71 cents of land originally owned by a single person, who use the pathway in question for ingress and egress to their respective properties, have no grievance against the second respondent Grama Panchayat in relation to the pathway in question and they have not objected the Panchayat laying R.P.283/2017 in W.A.1537/2015 4 interlocking blocks on that pathway. 7. The specific stand taken by the respondent Grama Panchayat was that, the so called private pathway known as 'Garden Road' was included in the digitalised asset register in the year 2011, and it was the long standing demand of the people, as evident from Ext.R1(c) representation, either to tar or concrete the said road at the expense of the Panchayat. The petitioner's brother and also two others who are said to be the signatories to Ext.P4 representation are also signatories in Ext.R1(c) representation. By the time the petitioner filed the Writ Petition, the Grama Panchayat had completed 65% of the road work. 8. The learned Single Judge after considering the rival contentions with reference to Section 2(xxxv) of the Panchayat Raj Act, which define the term 'public road', came to the conclusion that a public road as defined under the said clause of Section 2 of the Act is quite expansive. Therefore, any street, road, square, port, alley, passage, cart-tract, foot-path or riding path, over which the public have a right of way, even if it is not a thoroughfare, is a public road. After referring to the provisions under Section 169 of the Panchayat Raj Act, which begins with a non obstante clause, the learned Single Judge concluded that the expression 'not being private property R.P.283/2017 in W.A.1537/2015 5 appertaining thereto' in sub-section (1) of Section 169 exempts only private property adjacent to any public road, but not the very road, which always has an element public utility attached to it; be it private or public. Further, the road need not be thoroughfare and that the expression 'Village roads, paths and lanes' used in clause (c) of subsection (1) of Section 169 does not specify whether they are private or public. 9. After referring to the observation made by Tom Bingham in his book 'the Rule of law' (page 75, Penguin, 2011), the learned Single Judge observed that, if the pathway is within the confines of a house, however, sprawling it may be, whatever lies therein may be private in character and private in use. Once it is meant to connect somebody else's, thus becoming part of a net work of roads or paths, however short or insignificant its extent and reach may be, it is to subserve the public purpose of providing access to and fro. The learned Single Judge has also held that once a property assumes the character of a road or pathway having the potential of being a public utility, it ceases to have any exclusivity. The learned Single Judge has also noted that, if a piece of land is to be plotted out, it is the mandate of the Statute that proper roads and other amenities are provided. Just because the whole of the property once was private, it R.P.283/2017 in W.A.1537/2015 6 could not be said that it would bear the same character forever. 10. This Court noticed that, it was after a detailed consideration of the rival contentions with reference to the pleadings and material on record, the learned Single Judge declined interference by dismissing the Writ Petition. Accordingly, the Writ Appeal was dismissed holding that, the reasoning of the learned Single Judge in the impugned judgment is perfectly legal, which warrants no interference in the appeal. 11. From Grounds A to F of the Review Petition it is evident that, now the petitioner is seeking a rehearing of the matter on merits, contending that the observation made by this Court in the judgment dated 8.2.2017 in W.A.No.1537 of 2015 is erroneous. Therefore, the present Review Petition can only be treated as 'an appeal in disguise'. 12. In **Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167]** the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. 13. In **Thungabhadra Industries Ltd v. Government of Andra Pradesh (AIR 1964 SC 1372)** the Apex Court held that, R.P.283/2017 in W.A.1537/2015 7 review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 14. 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') reiterated 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 **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. 15. In **Anantha Reddy N. v. Anshu Kathuria [(2013) 15** R.P.283/2017 in W.A.1537/2015 8 **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. 16. In **Usha Bharti v. State of U.P. [(2014) 7 SCC 663]** the Apex Court had occasion to consider the scope and limitations of the power of review under Order XLVII Rule 1 of the Code. After referring to the Three-Judge Bench decision in **S.Nagaraj v. State of Karnataka [(1993) Supp.4 SCC 595]** and the subsequent decisions in **Green View Tea and Industries v. Collector [(2004) 4 SCC 122]** , etc. the Apex Court held that, in exercise of the power of review, the Apex Court or High Court can reopen the case and rehear the entire matter. But, whilst exercising such power, the Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code as well as the rules framed by the High Courts and the Apex Court and that the limits within which the Courts can exercise the powers of review have been well settled in a catena of judgments. 17. Viewed in the light of the law laid down by the Apex Court R.P.283/2017 in W.A.1537/2015 9 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.1537 of 2015, the petitioner herein is not legally entitled to seek a review of the said judgment, under Order XLVII Rule 1 of 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/