Mulamthuruthy Grama Panchayath v. Ombudsman for Local Self Government Institutions

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 24TH DAY OF JULY 2013/2ND SRAVANA, 1935 ## **R.P.No.1130 of 2009 IN W.A.No.847/2008** ------------------------------------------------------------------- AGAINST THE JUDGMENT IN W.A.No.847/2008, DATED 22-10-2009, OF HIGH COURT OF KERALA. --------------------- ## **REVIEW PETITIONER/** APPELLANT:- --------------------------------------------------- MULAMTHURUTHY GRAMA PANCHYATH, MULAMTHURUTHY, REP. BY ITS SECRETARY BY SENIOR ADVOCATE SRI.S.SREEKUMAR. ## **RESPONDENTS/** RESPONDENTS:- ------------------------------------------------- 1. THE OMBUDSMAN FOR LOCAL SELF GOVT. INSTITUTIONS, BARTON HILL BUNGALOW, KUNNUKUZHI. P.O., THIRUVANANTHAPURAM - 695 037. 2. DR.P.SUDHAKARAN NAIR, PUTHUPPALLY HOUSE, KARIKODE, MULAMTHURUTHY - 682 314. R2 BY ADVOCATE SRI.P.K.IBRAHIM. R BY SRI.T.N.HAREENDRAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 12/07/2013, THE COURT ON 24-07-2013 PASSED THE FOLLOWING:- R.P.No.1130/2009 IN W.A.No.847/2008 ## APPENDIX PETITIONER'S ANNEXURES:-----------------------------------------ANNEXURE-1 TRUE COPY OF THE JUDGMENT IN W.A.NO.1279/08 DATED 7.10.2008. ANNEXURE-2 TRUE COPY OF JUDGMENT IN W.A.NO.847/08 DATED 22.10.2009. ## RESPONDENT'S ANNEXURES:- --------------------------------------------ANNEXURES R2(a) SERIES - TRUE COPY OF THE RECEIPT ISSUED BY THE PANCHAYAT 22.4.2008 NUMBERING THE BUILDING AS UA VI/625A, 625B, 625C AND 625D. ANNEXURE R2(b) - TRUE COPY OF THE PROCEEDINGS OF THE SECRETARY, MULANTHURUTHI GRAMA PANCHAYATH DATED 26.12.2011. ANNEXURE R2(c) - TRUE COPY OF THE RESOLUTION OF THE MULANTHURUTHI GRAMA PANCHAYATH NO.3 DATED 25.8.2012. ANNEXURE R2(d) - TRUE COPY OF THE LEGAL NOTICE SENT ON 18.09.2012 ALONG WITH THE POSTAL ACKNOWLEDGMENT. vku/( true copy ) Manjula Chellur, C.J. & K.Vinod Chandran, J. ---------------------------------------------------------R.P.No.1130 of 2009 in W.A.No.847 of 2008 ----------------------------------------------------------Dated this, the 24[th] day of July, 2013 ## **ORDER** ## K.Vinod Chandran,J. An apparent conflict between two judgments of two Division Benches of this Court on the same set of facts is sought to be corrected in the above review. Without going into the detailed facts, for the purpose of the review, suffice it to say that the Mulamthuruthy Grama Panchayat, the review petitioner herein, was before the learned Single Judge challenging an order passed by the Ombudsman for Local Self Government Institutions, Kerala, Thiruvananthapuram. The 2[nd] respondent was the petitioner before the Ombudsman and the issue related to the numbering of a multi-storeyed building constructed by the contesting respondent. The Ombudsman directed the Panchayat to number the building based on certain findings on facts recorded with respect to existence of the first floor of the building. The multi-storeyed building, according to the Panchayat, was built without complying with the notice published under Section 220(b) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as “the Act”). The contesting respondent claimed that the 1[st] floor was in existence even RP.1130/2009 in **- 2 -** WA.847/2008 before the notification of the adjacent road under Section 220(b). The Panchayat produced the registers to show that the building which existed was a tiled structure, which was demolished and a new building constructed thereon. 2. The learned Single Judge considered two issues in the writ petition filed by the Grama Panchayat. One, which according to us was the legal issue, was with respect to the necessity of a notification in the Gazette under Section 220(b) of the Act. The second issue was the factual aspect as to whether the building of the contesting respondent was in existence even before the notice issued by the Panchayat under Section 220(b). In the judgment of the learned Single Judge the legal issue was answered against the Grama Panchayat and the factual issue was answered against the contesting respondent. Both the Panchayat and the contesting respondent filed separate appeals. 3. A Division Bench of this Court took up for consideration W.A.No.1279 of 2008 filed by the contesting respondent against the factual findings entered into by the learned Single Judge. The Court also noticed in the said judgment that an appeal on the legal issue of necessity of a notification, filed by the Panchayat was pending before this Court. However, the appeal of the contesting respondent was alone considered and it was found by the Division Bench that the learned Single Judge ought not to have entered into any finding as to the actual period from which the building existed. Hence, the judgment of the learned Single RP.1130/2009 in **- 3 -** WA.847/2008 Judge to that extent was set aside and the parties were given liberty to “approach the appropriate civil court or the competent authority under the provisions of the Act, for appropriate reliefs” ( _sic_ ). The judgment in the Writ Appeal of the contesting respondent was dated 7.10.2008, which is produced herewith as Annexure-1. 4. Subsequently, another Division Bench took up for consideration the appeal of the Panchayat, wherein the legal issue with respect to the requirement of a notification was urged. The Division Bench overruled the decision of the learned Single Judge and held that a decision taken by the Grama Panchayat under Section 220(b) of the Act is only to be published in terms of Rule 4 and there was no requirement for a notification published in the official gazette as required under Rule 3. This essentially answered the question raised in the appeal filed by the Panchayat. However, the Division Bench went on to find so in the last paragraph of its judgment: _“3. On facts we find that there is yet a serious dispute regarding the construction of the ground floor. On the basis of the documents produced by the second respondent, the Ombudsman for Local Self Government Institutions have come to a factual finding that there existed a ground floor prior to the coming into force of Section 220(b) and therefore, the proviso to Section 220 (b) would save the complainant in the matter of construction of the first and second floors. Exts.R2(a) to R2(f) produced by the second respondent would also_ RP.1130/2009 in **- 4 -** WA.847/2008 _reinforce the finding of the fact finding authority, namely the Ombudsman. Therefore, we set aside the judgment of the learned single Judge with regard to the factual finding regarding the date of construction of the disputed building. The writ appeal is however allowed with regard to the ratio on the interpretation of Rules 3 and 4 of the Kerala Panchayat Raj (Manner of Publication of Notification or Notice) Rules 1996 read with Section 220(b) of the Kerala Panchayat Raj Act, overruling the decision in_ _**Thomas Paul v. State of Kerala,** ILR 2006 (4) Kerala 690 (2006 KHC 1638)”._ Hence, the factual finding regarding the date from which the disputed building was in existence, made by the learned Single Judge was set aside and that of the Ombudsman upheld, holding it to be a finding on facts. 5. The learned Senior Counsel Sri.S.Sreekumar appearing for the review petitioner/Panchayat would contend that the Division Bench, which considered the Panchayat's appeal, was not competent to go into the findings on facts entered into by the learned single Judge against the contesting respondent, since that was not an issue which was raised in the appeal and also since the issue stood settled by the judgment of yet another Division Bench in W.A.No.1279 of 2008 filed by the contesting respondent. The findings of facts entered into by the learned Single Judge against the contesting respondent was in fact vacated by the earlier Division Bench and liberty was also reserved to the contesting respondent RP.1130/2009 in **- 5 -** WA.847/2008 to approach the appropriate civil forum or authorities under the provisions of the Act, for reliefs. The contesting respondent, hence, has been relegated to invoke his remedies before the civil Court or the authority under the Act and the contesting respondent having suffered such a judgment in his own appeal, cannot later turn back and urge the very same issue in the appeal of the Panchayat. It is pointed out by the learned Senior Counsel that though the earlier judgment was specifically pointed out to the later Division Bench, the same has not been noticed in the judgment as such, which, by itself, is an error apparent on the face of the record. It is also urged that the impugned judgment in so far as it considered an issue which was not raised in the appeal, to that extent committed a patent mistake. On these contentions, the learned Senior Counsel would urge for a review of the judgment, to that limited extent. 6. Sri.P.K.Ibrahim, learned counsel appearing for the contesting respondent would, however, strenuously urge before us the futility of an exercise again before the civil forum or the authorities under the Act. The learned counsel would specifically point out that the proceedings before the learned Single Judge was not one initiated by the contesting respondent invoking Article 226 of the Constitution of India and agitating disputed questions of fact. In fact the contesting respondent had initiated proceedings before the Ombudsman for Local Self Government Institutions against the denial of the Panchayat from numbering his building. The Ombudsman, who is competent to look into the facts on the RP.1130/2009 in **- 6 -** WA.847/2008 dispute raised by the contesting respondent, had found that the ground floor of the building had been constructed at an earlier point of time and hence the building was liable to be numbered. The contesting respondent having obtained a favourable order from a fact finding authority as contemplated under the Act, it was the Panchayat who had invoked Article 226 on a challenge against the said order of the fact finding authority. The learned Single Judge having found the findings on facts against the contesting respondent, he had filed an appeal. In the appeal, the findings of facts against the contesting respondent was specifically vacated and in such circumstance, the Division Bench ought to have upheld the findings entered into by the fact finding authority; i.e., the Ombudsman, rather than relegating the contesting respondent again to the fact finding authority. It is the contention of the contesting respondent that the said error committed by the earlier Division Bench was sought to be rectified by the later judgment. He seeks for dismissal of the review petition filed by the Panchayat and relies on the decision reported in _**State of W.B. v. Kamal**_ ## _**Sengupta**_ **[AIR 2009 SC (Supp) 476].** 7. First we notice the law on the subject of review, which has been succinctly stated in the above said decision. Though the Supreme Court was concerned with the power of review conferred on an Administrative Tribunal; as was held in the above case, even in the instant proceedings, the power conferred on this Court is akin to the civil Court wherein statutorily enumerated and judicially recognized limitations on the **- 7 -** RP.1130/2009 in WA.847/2008 power to review would squarely apply. The power to review has been culled out from the various judgments referred to in the said decision in paragraph 28: _“(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 of 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 face 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 coordinate or larger Bench of the Tribunal or of a superior Court._ _(vii) While considering an application for review, the Tribunal must confine its adjudication with reference to material which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent._ RP.1130/2009 in **- 8 -** WA.847/2008 _(viii) Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court/Tribunal earlier”._ Hence, the power we exercise under review is circumscribed in so far as an erroneous order or decision cannot be corrected in review unless the error is so self evident; which can be discovered without any reasoning. Here, there is absolutely no question of any discovery of new or important matter or evidence and the only ground is that the finding in the impugned judgment with respect to the facts situation was not a question raised in the appeal and would, hence, amount to a mistake or error apparent on the face of the record. It is also well settled that a decision which is erroneous in law cannot be corrected in a review; nor can a different view, on law or facts, be applied in exercise of the power of review. 8. With the above restrictions in mind, we once again look at the judgment. As was pointed out by the learned counsel appearing for the contesting respondent, the writ petition filed before the learned Single Judge was by the Panchayat against an order of the Ombudsman for Local Self Government Institutions, which had gone into the factual situation and entered a finding on facts. The specific grounds against the said order raised by the Panchayat in the writ petition was on the sustainability of RP.1130/2009 in **- 9 -** WA.847/2008 such factual findings as also the jurisdiction of the Ombudsman to enter into such findings. We notice that both the Division Benches had vacated the findings on facts entered into by the learned single Judge. The earlier Division Bench while allowing the appeal of the contesting respondent and vacating the findings of fact against the contesting respondent made by the learned Single Judge, relegated the party to the appropriate civil Court or authorities under the Act. The later Division Bench, however, though vacated the findings of facts entered into by the learned single Judge, affirmed the findings of the Ombudsman which, according to the Division Bench, was a fact finding authority. 9. Obviously the factual aspect was not an issue in the appeal, the judgment in which, is now sought to be reviewed. The Division Bench could not have entered any findings on the factual aspect, since the findings of the learned Single Judge was already vacated in an appeal filed by the contesting respondent. Though the Ombudsman's order was on record in the earlier appeal too, the Division Bench relegated the contesting respondent to the appropriate civil forum or the authorities under the Act. Learned counsel for the contesting respondent would fervently assert that in the light of the order of the Ombudsman; the order of relegation is futile and that was taken note of by the later Division Bench. We cannot accept that, since the later Division Bench was not sitting in appeal or review of the earlier judgment. The contesting respondent suffered the judgment in his appeal and took no attempt to RP.1130/2009 in **- 10 -** WA.847/2008 impugn the same in a Special Leave or at least attempt a review. We also notice that the specific ground of the Panchayat in the writ petition was that the Ombudsman had no jurisdiction at all and particularly not to go into the factual aspects complained of and ought not to have entertained the complaint itself. We can only understand the earlier Bench having vacated the factual findings of the learned Single Judge so as to not prejudice the contesting respondent in a properly instituted proceeding. We are also not convinced about the feeble premise; of a trust deed showing the address of the building; relied on by the Ombudsman to enter a finding that the building or its ground floor existed all along the disputed period. 10. In any event, we are faced with the judgment which entered into findings on facts; which was not an issue raised in the appeal. That issue was already considered by another Bench and the appellant, i.e., the contesting respondent, relegated to appropriate remedies. The findings of the learned Single Judge in a writ petition filed by the Panchayat, that too in favour of the Panchyat, cannot be vacated in an appeal filed by the Panchayat on a totally different aspect. Especially so when there is an authoritative decision of a co-ordinate Bench in a properly instituted appeal; by the aggrieved party. The findings so entered by the later Division Bench can only be a mistake apparent on the face of the record; which we are bound to correct in review. Judicial discipline also requires that a Bench of the same strength, on the same set of facts, inter-parties, cannot issue a diametrically opposite direction, that too on an RP.1130/2009 in **- 11 -** WA.847/2008 issue not raised in appeal. We hence vacate the findings in the judgment which upheld the order of the learned Ombudsman. Necessarily the contesting respondent can avail of remedies as per the earlier judgment. Review Petition is allowed in the above terms. No costs. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/- ( true copy )