Plakkattu Granites (P) Limited v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 14TH DAY OF AUGUST 2020 / 23RD SRAVANA, 1942 ## RP.No.326 OF 2019 IN WP(C). 25012/2013 AGAINST THE JUDGMENT DATED 22.02.2019 IN WP(C) 25012/2013(B) OF HIGH COURT OF KERALA ## REVIEW PETITIONER/PETITIONER: PLAKKATTU GRANITES (P) LIMITED PAYYANAMON P.O, KONNI, REPRESENTED BY ITS MANAGING DIRECTOR, JACOB THOMAS, BY ADVS. SRI.PAUL JACOB (P) SRI.ENOCH DAVID SIMON JOEL SRI.RONY JOSE SRI.P.RAVINDRAN (SR.) ## RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY SECRETARY, DEPARTMENT OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE DIRECTOR, MINING AND GEOLOGY, DIRECTORATE OF MINING AND GEOLOGY, PATTOM P.O,THIRUVANANTHAPURM-695 004. 3 GEOLOGIST, MINING AND GEOLOGY DEPARTMENT, PATTOM P.O, THIRUVANANTHAPURAM-695 004. ## SRI.M.H.HANILKUMAR, GOVERNMENT PLEADER THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 10-08-2020, THE COURT ON 14-08-2020 PASSED THE FOLLOWING: R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 2 : ## **ORDER** The petitioner in the writ petition, a company incorporated under the Companies Act, has filed the above review petition seeking to review the judgment dated 22.02.2019 in W.P.(C) No. 25012 of 2013 disposed of along with W.P.(C) No. 8872 of 2018 filed by the very same review petitioner, basically holding that the orders passed by the statutory authorities under the provisions of the Kerala Minor Mineral Concession Rules were in accordance with law. The connected writ petition specified above was challenging a consequential action initiated by the respondents under the provisions of the Kerala Revenue Recovery Act, 1968 to recover an amount of Rs.5,68,33,000/- found to be due on the basis of the orders passed by the statutory authorities as specified above. 2. The review petition is filed on three grounds: (1) that the validity of Ext.P8 order dated 15.02.2002 passed by the Secretary to Government, Industries Department was upheld by this court on the belief that Ext.P8 was issued as a measure of correction and not a review, (2) that the finding that Ext.P9 was only a notice and that the petitioner ought to have filed an objection rather than filing an appeal is an error apparent on the face of the record, since Ext.P9 was an R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 3 : order which is quite clear and evident from the recitals contained thereunder, even though it is referred to as a notice therein, and (3) this Court has omitted to consider the vitiating factors relating to Ext.P11 order dated 05.09.2013 passed by the State Government without considering any of the arguments advanced by the petitioner and therefore, this Court has failed to appreciate the fact that, it is an order without reason and therefore violative of the principles of natural justice. 3. Apart from the same, yet another contention advanced at the time of argument is that the issue raised in the writ petition was not considered by this Court taking into account Rule 51 of the Kerala Minor Mineral Concession Rules, which specifies that a proceedings before the authority has to be finalised after providing an opportunity of hearing to the aggrieved person. 4. I have heard learned Senior Advocate Sri. P Ravindran appeared for the review petitioner assisted by Sri. Enoch David Simon Joel and learned Special Government Pleader, Sri. M.H. Hanilkumar, and perused the pleadings and documents on record. 5. Learned Senior counsel advanced arguments based on the grounds discussed above. So far as the issue with respect to Ext.P8 R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 4 : order passed by the Secretary to Government, Industries Department cancelling the Government Order bearing No. G.O. (Rt.) No. 645/2002/ ID dated 29.07.2002 and directing the Director of Mining and Geology to take further action as per the Government Order dated 14.01.2002 bearing No. G.O.(P) No. 10/2003/ID dated 14.01.2003 is concerned, a clear finding was rendered by this Court taking into account the facts and circumstances contained in the writ petition. It was clearly found that there is no illegality in Ext.P8 order for the reason also that in the judgment in O.P. No. 4734 of 2002 dated 17.09.2008 though the learned Government Pleader sought permission to review the order passed by the Government modifying the order passed by the Government fixing liability on the petitioner on account of the illegal quarrying operation, the same was not considered, and further that, during the pendency of the original petition, the Government was not at liberty to modify the order giving a go-bye to the earlier order passed by the Geologist, since it was not in accordance with law and a strange proceedings. Therefore, it can be seen that the issue was considered by this Court on the basis of the challenge made by the review petitioner and has provided reasons for upholding Ext.P8 order. Therefore, I do not think there is any error R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 5 : apparent on the face of the record or any other legal infirmity justifying interference in a review petition in respect of the said point. So also, clear findings with respect to Ext.P9 notice and the reasons for treating it as a notice rather than an order were also assigned. That apart, findings were rendered in respect of the validity of Ext.P11 order dated 05.09.2013 passed by the State Government and has found to be a valid one. So also, the issue was considered taking into account Section 51 of the Kerala Minor Mineral Concession Rules, 1967 dealing with the power enjoyed by the statutory authorities to review its own orders subject to the provisions contained therein. The findings accordingly were rendered in paragraphs 20 to 24, which read thus: 20. Anyhow, that order was challenged before this Court and it was during the pendency of that original petition, Ext.P6 order is admittedly passed by the State Government dated 29.07.2002, whereby Ext.P2 order was modified in the following manner: “In the circumstances stated above the order of the Geologist, Pathanamthitta (Order No.559/D.O.PTA/M/1999 dated 19.02.2000) is set aside”, and it is further stated that, “the G.O. Read above stands modified to the above extent”. The Government Order referred to therein is Ext.P2 order passed by the State Government dated 25.08.2000. As per the modification, the direction issued to the Director of Mining and Geology was taken away, which thus means, Ext.P2 order was made conclusive, without granting any R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 6 : power to any authority to proceed against the alleged unauthorized quarrying activity of the petitioner. 21. On a reading of Rule 51 of the Rules, 1967, it is clear that the review power can be exercised by the appropriate statutory authorities, only if no appeal is pending against the respective orders. True, the original petition that was pending before this Court which finally culminated in Ext.P7 judgment cannot be termed as an appeal. But, definitely, that is a challenge made against Ext.P5 order passed by the statutory authority, which thus means, the legality and veracity of Ext.P5 order was under serious challenge before this Court in an original petition under Article 226 of the Constitution of India. So much so, once a writ petition is admitted to the files of this Court, the issues raised therein have all the characteristics to be adjudicated in accordance with law. 22. In my considered view, when the original petition was so pending, the State Government who is the 1[st] appellate authority, from the order of the Director of Mining and Geology, was not vested with powers to modify any order. So also, it cannot be said that Ext.P6 order is a review of Ext.P2 order passed by the State Government in its absolute terms. The Government itself clearly stated in Ext.P6 that it is a modification. Therefore, in my considered opinion, the action taken by the State Government, modifying Ext.P2 order while the order in question was under challenge before this Court was a strange proceeding, and it cannot be termed as a legalistic approach made by the State Government to the issue in question, which has got immense financial implications. So also, when the R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 7 : Government found that the District Geologist did not have power, it conferred the power to the Director of Mining and Geology for consideration of the subject matter and take action in accordance with Rule 58 of the Rules, 1967, since the State Government had the duty and obligation to decipher the truth with respect to the alleged illegal quarrying carried out by the petitioner. Moreover, State, as the custodian of the public property/public money, had the onerous responsibility and obligation to do so. Accordingly, the procedure adopted in Ext.P2 was the one in accordance with law. Therefore, the modification done strangely and abruptly as per Ext.P6 is detrimental to the interest of the State and the public exchequer, and that too, without assigning reason. 23. True, in Ext.P8 modification order, the reasons for re-opening is not stated. According to learned Senior Counsel appearing for the petitioner, a second review is not possible unless and until fraud or such other malpractices are unearthed, and further that, in Ext.P8 order, such conduct either on the part of the petitioner, or any other statutory authority is reflected. However, in my considered view, there is nothing wrong in the State Government reviewing Ext.P6 order, which was found to be an irregular and perverse proceeding in view of the peculiar nature of the modification made. 24. So also, I find that, while hearing was conducted in O.P.No.4734 of 2002, learned Government Pleader sought permission to review Ext.P6 order, which was produced as Ext.R3(6) along with the counter affidavit of the State Government. Learned Single Judge has recorded that “I am not expressing any opinion on the R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 8 : same”, which in my considered view, cannot be considered as a rejection of the request made by the Government Pleader before the learned Single Judge. Moreover, it was not a subject matter of consideration in the original petition. What was under challenge was Ext.P5 order passed, and therefore, the contention advanced to the effect that consequent to the expression of opinion made by the learned Single Judge, on the request made by the Government Pleader, the issue relating to Ext.P6 modified order passed by the Government has become final also cannot be sustained under law, especially due to the reason that there was no adjudication of the issue or rather an issue at all to raise any question of estoppel against the Government. To put it otherwise, the issue was actually left open by the Court, without expressing any opinion. That apart, when the constitutional court was considering the issue, propriety and fairness demand to seek leave of the court to take any such decision, failing which, it amounts to interference with the fair administration of justice by a superior court of law. So much so, a judicial act can be said to have attained finality only if it was performed in a judicial way, i.e., by assigning proper reasons, so as not to be blurred, and depend upon any inferences.” ## 6. On a reading of the aforementioned findings in the judgment, it is clear that it was taking into account the attendant factual and legal circumstances that the judgment was rendered by this Court. Therefore, taking into account the totality of circumstances, I do not think, the petitioner has made out any case of error apparent on the face of the record or any other legal infirmities justifying interference R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 9 : of this Court with the judgment, in a review petition. 7. It is well settled in the matter of review, that a mistake or error on the face of the record means mistake or error which is _prima facie_ visible and does not require any detailed examination, and further that erroneous view of law is not a ground for review. That said, the grounds raised by the review petitioner are all having the characteristics of the grounds in an appeal and therefore, virtually seeks re-appreciation of the findings in the judgment under review, which is not an act expected under law Added to this, as I have pointed out earlier, W.P.(C) No. 8872 of 2018 was disposed of with the judgment under review, filed on the basis of a consequential action to recover the amounts mentioned above from the review petitioner, wherein I have granted liberty to the review petitioner to file objection to the recovery proceedings initiated by the respondents, evident from Exts. R4(c) and R4(d) within three weeks from the date of receipt of a copy of the judgment, which was directed to be considered by the statutory authority in accordance with law at the earliest, and at any rate, within three months thereafter. In fact, pursuant to the directions so issued, the issue was adjudicated by the statutory authority under the Kerala Revenue Recovery Act, 1968 and has found R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 10 : that the quantification done was correct and the review petitioner is liable to be proceeded with to recover the amount. The said order passed by the statutory authority, challenged by the petitioner is under consideration in W.P.(C) No. 30510 of 2019, and has secured a stay of further proceedings on the ground that this Review Petition is pending before this Court. (In the order, it is incorrectly shown as RP No. 328 of 2019). Therefore, it can be seen that the directions contained in the judgment was acted upon by the statutory authority consequent to the directions issued by this Court and apparently the review petitioner has participated in the same. Therefore, I am also of the view that, since the directions contained in the common judgment rendered by this Court was acted upon, a review is not maintainable under law. The said issue was considered by the Apex Court in State _**of Nagaland and Ors. v. Toulvi Kibami and Ors.**_ [(2003) 8 SCC 671]and held that when a judgment is acted upon a review petition cannot be sustained under law. Paragraph 2 of the said judgment is relevant to the context, which reads thus: “2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 11 : exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.” Taking into account the legal and factual circumstances as above, I am of the view that the review petition is not sustainable in facts and law, and accordingly it is dismissed. sd/- **SHAJI P. CHALY, JUDGE.** _Rv_ R.P. No. 326/2019 in W.P.(C) No. 25012/2013 : 12 : ## **APPENDIX** ## PETITIONER'S EXHIBITS: ANNEXURE A1: TRUE COPY OF THE ORDER DATED 14.01.2003 OF G.O.(P) NO. 10/2003/ID. ## RESPONDENT'S EXHIBITS: NIL /True Copy/ PS to Judge. rv