High Court of KeralaDivision Bench2023-07-07Review petition dismissed

RP No.849 of 2021 in WA No.78 of 2021

Case / Petition Number:RP No.849/21

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: S. V. Bhatti, Chief Justice
Bechu Kurian Thomas, J.
Judgment Date: 2023-07-07
Court Decision / Holding: There is no error apparent on the face of the record in the judgment under review; the review petition is dismissed.
Final Disposition: Review petition dismissed

Parties to the Case

Appellants / Petitioners

The State of Nagaland represented by the Chief Secretary to the Government of Nagaland, Kohima
The Additional Chief Secretary & Finance Commissioner, Government of Nagaland, Kohima
The Director, Nagaland State Lotteries, Kohima

Respondents

State of Kerala represented by its Chief Secretary to the Government of Kerala
Principal Secretary to the Government Taxes (H) Department, Government Secretariat, Thiruvananthapuram
Director of State Lotteries Directorate, Thiruvananthapuram
Future Graming & Hotel Services (P) Ltd. (formerly Future Gaming Solutions India (P) Ltd.), through its Director Sri G. Natarajan

Legal Representation & Advocates

Counsels for Petitioners

• Adv. P. S. Sree Prasad

Counsels for Respondents

• Sri. C. E. Unnikrishnan, Spl. Govt. Pleader

Case Synopsis & Summary

This is a Kerala High Court review petition challenging a writ appeal related to amendments to the Kerala Paper Lotteries (Regulation) Amendment Rules, 2018. The writ petition had challenged these amendments as ultra vires, and the learned single Judge had declared the amendments ultra vires, set aside Ext.P12 and Ext.P17, and restrained the State of Kerala from interfering with Nagaland’s lottery marketing. In WA No.78/2021, the High Court allowed the writ appeal, upholding most amendments except for a portion of Rule 4(4) deemed ultra vires and directed severance. The review petition filed by Nagaland state authorities and associated parties contends that the core reasoning of the WA judgment rests on the binding effect of the Supreme Court/High Court decision in Tashi Delek Gaming Solutions Pvt. Ltd. v. State of Kerala, which they argue has lost its binding nature. The court reiterates the limited grounds for review under Order 47 Rule 1 CPC: discovery of new matters, or an error apparent on the face of the record, or other sufficient reasons, and emphasizes that review is not an ordinary appeal. Citing Parsion Devi to define error as self-evident, and Meera Bhanja and S. Madhusudhan Reddy to stress limits on review, the court ultimately finds no error apparent on the face of the record and dismisses the petition.

Provisions of Law Cited

Order 47 Rule 1 CPC

Legal Doctrines & Maxims

Error apparent on the face of the record (doctrine)
Review petitions are not routine proceedings; not an appeal in disguise
A review cannot be treated as an appeal in disguise
Self-evident error standard per Parsion Devi
Erroneous judgments can be corrected only by superior courts

Submissions & Arguments

Contentions of Appellants / Petitioners

The review petitioners contend that the core finding in the WA judgment relies on the binding effect of the decision in Tashi Delek Gaming Solutions Pvt. Ltd. v. State of Kerala and Others (AIR 2004 Ker. 248). They submit that reliance on that decision is an error apparent on the face of the record because the decision’s binding nature could have changed over time. They emphasize that review under Order 47 Rule 1 CPC is not a routine remedy and is available only for discovery of new matters or evident errors, not for re-arguing the case. They invoke established precedents, notably Parsion Devi to define what constitutes an error, and Meera Bhanja and S. Madhusudhan Reddy to illustrate that review cannot function as a disguised appeal. They argue that the WA judgment’s conclusions should be open to correction if the base reasoning is flawed.

Contentions of Respondents

The respondents contend that the WA judgment's conclusions rested on multiple, well-supported grounds and that there is no error apparent on the face of the record. They rely on the reasoning that the amended Rules were largely upheld with severance of a ultra vires portion, and that the decision relied upon (including All Kerala Online Lottery Dealers Association) supports the State's regulatory power and the legislative competence to enact rules in this domain. They argue that review cannot be entertained to substitute or reassess the entire judgment and that the petition fails to demonstrate an evident and self-evident error warranting intervention. They emphasize that the principles of judicial restraint and the appellate process should guide review petitions and that the court should not perceive grounds to disturb the WA judgment absent a clear, self-evident flaw.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Tashi Delek Gaming Solutions Pvt. Ltd., Mumbai and Others v. State of Kerala and Others	AIR 2004 Ker. 248	Mentioned Only	Cited as a supporting reason in the judgment under review; not treated as binding overruled, but acknowledged as part of the reasoning.
All Kerala Online Lottery Dealers Association v. State of Kerala and Others	(2016) 2 SCC 161	Mentioned Only	Cited to illustrate the host state's power to legislate and regulatory conclusions; not treated as bindingly controlling the issue.
Parsion Devi and Others v. Sumitri Devi and Others	(1997) 8 SCC 715	Positive	Used to define 'error apparent on the face of the record' and to set the standard for review.
Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.)	(1995) 1 SCC 170	Positive	Cited in context of limiting review and preventing it from becoming an appeal in disguise.
S. Madhusudhan Reddy v. V. Narayana Reddy and Others	(2022) SCC OnLine SC 1034	Positive	Cited as authority illustrating limits on review.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.V.N.BHATTI** **&** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **FRIDAY, THE 7[TH] DAY OF JULY 2023 / 16TH ASHADHA, 1945** **RP NO. 849 OF 2021** **AGAINST THE JUDGMENT IN WA 78/2021 OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS/RESPONDENTS 2, 3 & 4:** - **1 THE STATE OF NAGALAND REP. BY THE CHIEF SECRETARY TO THE GOVERNMENT OF NAGALAND, KOHIMA - 797 001.** - **2 THE ADDITIONAL CHIEF SECRETARY & FINANCE COMMISSIONER GOVERNMENT OF NAGALAND, KOHIMA - 797 001.** - **3 THE DIRECTOR NAGALAND STATE LOTTERIES, KOHIMA - 797 001.** **BY ADV P.S.SREE PRASAD** ## **RESPONDENTS/APPELLANTS & RESPONDENT NO.1:** - **1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO THE GOVT OF KERALA, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.** - **2 THE PRINCIPAL SECRETARY TO THE GOVT OF KERALA TAXES (H) DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM - 695 001.** - **3 DIRECTOR OF STATE LOTTERIES DIRECTORATE OF STATE LOTTERIES, THIRUVANANTHAPURAM - 695 033.** - **4 FUTURE GRAMING & HOTEL SERVICES (P) LTD. (FORMERLY FUTURE GAMING SOLUTIONS INDIA (P) LTD., HAVING ITS REGISTERED OFFICE AT DOOR NO.54,** R.P. No.849/21 ## **-:2:-** **G.N.MILLS POST, METTUPALAYAM ROAD, COIMBATORE - 641 029 AND PLACE OF BUSINESS AT DOOR NO.15/651, KUNNATHUR MEDU, PALAKKAD - 678 013 THROUGH ITS' DIRECTOR SRI.G.NATARAJAN.** **SRI.C.E UNNIKRISHNAN, SPL. GOVT. PLEADER** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07.07.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P. No.849/21 ## **-:3:-** ## **S.V.BHATTI, C.J. & BECHU KURIAN THOMAS, J.** ## **-------------------------------------------R.P. No.849 of 2021 IN W.A. No.78 of 2021** **--------------------------------------------** Dated this the 7[th] day of July, 2023 ## **O R D E R** ## _**Bechu Kurian Thomas, J.**_ The review petitioners were respondents 3, 4 and 5 in W.P. No.34025 of 2019 before the learned single Judge. They seek review of the judgment dated 17.05.2021 in W.A. No.78 of 2021. The writ appeal was preferred by the respondents. 2. The fourth respondent herein was the writ petitioner. The challenge in the writ petition was against the constitutional validity of certain amendments brought into the provisions of the Kerala Paper Lotteries (Regulation) Amendment Rules, 2018. By judgment dated 22.12.2020 the learned single Judge allowed the writ petition and declared that the amended rules were ultra vires and unenforceable and also set aside Ext.P12 and Ext.P17 produced in the writ petition apart from restraining the State of Kerala from interfering with the marketing and sale of lottery tickets of the State of Nagaland. R.P. No.849/21 ## **-:4:-** 3. An appeal was preferred by the State of Kerala as W.A. No.78 of 2021. Review petitioners were respondents 2, 3 and 4 in the writ appeal. By judgment dated 17.5.2021, this Court allowed the writ appeal and upheld the amended Rules except a portion of rule 4(4) of the Kerala Paper Lotteries (Regulation) Amendment Rules, 2018, which was held to be ultra vires and directed to be severed. It is understood that a Special Leave Petition has been preferred before the Supreme Court by the appellant as well as these review petitioners. The SLP is still pending and in the meantime, this review petition has been preferred. 4. The contention raised by the review petitioners is that the fulcrum of the judgment relates to the binding effect of the decision in **Tashi Delek Gaming Solutions Pvt. Ltd., Mumbai and Others v. State of Kerala and Others** (AIR 2004 Ker. 248). According to the review petitioners, reliance upon the said decision is an error apparent on the face of the record, since the said decision had lost its binding nature. 5. We have considered the contentions raised by the review petitioners as well as the respondents. The present review petition alleges an error apparent on the face of the record. **-:5:-** R.P. No.849/21 6. It is a settled proposition of law that a review petition is maintainable only on (i) discovery of new and important matters or evidence which, after exercise of due diligence were not within the knowledge of the applicant or could not be produced by him when the decree was passed or the order made, (ii) on account of some mistake or error apparent on the face of the record, or (iii) for any other sufficient reason. A review is not a routine procedure. In relation to an error apparent on the face of the record, it has been held that unless the court is satisfied that a material error has occurred which is manifest on the face of the order, undermining the soundness of the judgment will result in miscarriage of justice, court seldom review a judgment, unless the error is apparent on the face of the record. 7. In the decision in **Parsion Devi and Others v. Sumitri Devi and Others** [(1997) 8 SCC 715] it has been held by the Supreme Court that an error apparent on the face of the record is one that has to be self evident and not one that has to be detected by a process of reasoning and detailed analysis. 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 R.P. No.849/21 ## **-:6:-** to exercise ts power of review under Order 47 rule 1 CPC. Further, review petition cannot be allowed to be an appeal in disguise. Reference can profitably be made to the decisions in **Meera Bhanja (Smt.) v. Nirmala Kumari Choudhury (Smt.)** [(1995) 1 SCC 170] as well as **S. Madhusudhan Reddy v. V. Narayana Reddy and Others** [(2022) SCC OnLine SC 1034]. 8. It is elementary that an erroneous decision can be corrected only by superior courts. The review jurisdiction is confined only to errors apparent on the face of record or on detection of new and important piece of evidence. 9. With the aforesaid proposition of law in mind when the contentions of the review petitioners are analysed, it is evident that the judgment is sought to be reviewed on the basis that the conclusion arrived at by this Court is erroneous on account of the reliance on the decision in **Tashi Delek Gaming Solutions Pvt. Ltd., Mumbai and Others v. State of Kerala and Others** (AIR 2004 Ker. 248). According to the review petitioners, the said judgment had no binding effect. The fallacy of the said contention is evident from a reading of paragraph 44 of the judgment under review. The said decision was not the only reason for this Court to come to the R.P. No.849/21 ## **-:7:-** conclusion that it had arrived at. The said decision was only a supporting reason for the conclusions arrived at. Various other reasons were specified by this Court while setting aside the order of the learned single Judge and upholding the amended Rules. 10. The decision of the Supreme Court in **All Kerala Online Lottery Dealers Association v. State of Kerala and Others** [(2016) 2 SCC 161] was also relied upon. In the said decision, the Supreme Court had held that the power to legislate has been delegated by the Parliament to the respective States also. The conclusion that the Host State also has the power to enact Rules was therefore based on various reasons. 11. The remaining contentions pleaded in the review petition are also pointing towards the erroneous reasoning in the judgment under review. As observed by us earlier in this judgment, an erroneous judgment can be corrected only by a superior court and not in a review petition. 12. In this context it is relevant to mention that, review petitioners had not claimed any relief in the writ petition. They were the respondents in the writ petition and the respondents in the writ appeal. The writ petitioner has already challenged the judgment **-:8:-** R.P. No.849/21 before the Supreme Court, which is pending consideration. It was submitted across the Bar that review petitioners have also joined as petitioners in the Special Leave Petition. In the light of the above discussion, we are of the considered view that there is no error apparent on the face of the record in the judgment under review. Hence, there is no merit in this review petition and it is dismissed. **Sd/-** **S.V..BHATTI CHIEF JUSTICE** **Sd/BECHU KURIAN THOMAS JUDGE** vps