R.P.No.1220/19 & Cont.Case(C).No.1422/2019-S

R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **RP.No.1220 OF 2019 IN WP(C). 32652/2014** **AGAINST THE ORDER/JUDGMENT IN WP(C) 32652/2014(F) OF HIGH COURT OF KERALA** ## **REVIEW PETITIONERS:** **1 THAHSILDAR TIRUR - 676 101. 2 ADDITIONAL THAHSILDAR TALUK LAND BOARD, TIRUR - 676 101. 3 VILLAGE OFFICER IRUMLIYAM, MALAPPURAM DISTRICT - 676505. BY GOVERNMENT PLEADER** ## **RESPONDENT:** **POTTAKALATHIL RAMAKRISHNAN S/O. LATE PANANGATTU VASUDEVA MENON, LAKSHMI NILAYAM, CHERPLASSERY P.O., OTTAPALAM TALUK, PALAKKAD.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.02.2020, ALONG WITH Con.Case(C).1422/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY, THE 17TH DAY OF FEBRUARY 2020 / 28TH MAGHA, 1941** ## **Con.Case(C).No.1422 OF 2019 IN WP(C). 32652/2014** **AGAINST THE ORDER/JUDGMENT IN WP(C) 32652/2014(F) OF HIGH COURT OF KERALA** ## **PETITIONER:** **POTTAKALATHIL RAMAKRISHNAN AGED 59 YEARS** **S/O. LATE PANANGATTU VASUDEVA MENON, LAKSHMI NILAYAM, CHERPLASSERY P.O., OTTAPALAM TALUK, PALAKKAD.** **BY ADV. SRI.V.B.RAMANUNNI** ## **RESPONDENTS:** **1 MURALEEDHARAN AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,TAHSILDAR,TIRUR,MALAPPURAM-676101** **2 P.RADHAKRISHNAN AGE AND AFTHER'S NAME NOT KNOWN TO THE PETITIONER,ADDITIONAL TAHSILDAR,TIRUR,MALAPPURAM676001 3 NAZEER VILLAGE OFFICVER,AGE AND FATHER'S NAME NOT KNOWN TO THE PETITIONER,IRUMBLIYAM VILLAGE,MALAPPURAM-679572** ## **R1-3 BY GOVERNMENT PLEADER** **SRI.SUNIL KUMAR KURIAKOSE ,GP** **THIS CONTEMPT OF COURT CASE (CIVIL) HAVING COME UP FOR ADMISSION ON 17.02.2020, ALONG WITH RP.1220/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 3 ## **ORDER/JUDGMENT** **[ R.P.No.1220 of 2019** ## **AND** ## **Con.Case(C).1422/2019 ]** **Dated this the 17[th] day of February 2020** ## **R.P.No.1220/2019** The respondents in the Review petition filed the Writ Petition alleging that the review petitioners were not accepting basic tax in respect of 11.51 acres of land in Re-Sy.No.1 of Irimbiliyam village covered by Ext.P1. The writ petitioner claimed that he along with his mother had obtained 13.51 acres of land in Re- Sy.No. 1 of Irimbiliyam village as per the family partition deed of 1969. It was also stated that the property having 11.51 acres of land in Re-Sy.No. 1, that is except an extent of 2 acres of land, out of the properties covered by the partition deed, is in the continued possession of the petitioner and his mother. The petitioner's complaint was that even though the petitioner's mother had been approaching the review R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 4 petitioners from 1997 onwards, the tax could not be paid. 2. The respondents had filed a counter affidavit in the writ petition stating that the land tax can be collected only on the basis of sufficient documents for the actual possession. It was also stated that the entire extent of land is not in the actual possession of the writ petitioner. The Writ Petition was disposed of directing the respondents to accept the land tax observing that mere acceptance of tax will not confer any right to claim title over the property. 3. After the writ petitioner filed a Contempt Case, the respondents in the Writ Petition filed this Review Petition along with Annexures-A to I documents. Annexures E to G documents would show that petitioner's mother had already entered into various transactions alienating several parcels of the properties covered by the partition deed. By Annexure-E document executed in 1972 an extent of 88¾ cents is alienated. It is also seen that she was a party to the documents Nos. 1290/2007 and 1291/2007 having an extent of 01.2141 hectares and 1.2780 hectares for which tax was paid by R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 5 third parties as per Annexure F. Purchase certificates were issued to 3[rd] parties in respect of 3 acres of properties and another extent of 3.1 acres (covered by Annexure-G and H) apparently after notice to the writ petitioner's mother. The petitioner had not disclosed any of these facts in the writ petition despite the fact that all these transactions would have been within the knowledge of his mother. 4. The learned Counsel for the Writ Petitioner objected to the Review Petition on various grounds. Relying on the judgment of the Patna High Court in _**Mahanth Ram Kinkar Das v. State of Bihar**_ [2017 (2) KLT SN 4 (C.No.5) Pat. (F.B.)] and Full bench judgment of this Court in _**Thressia v. Xavier**_ [1976 KLT 209 (F.B)], it was argued that provisions of CPC are not applicable to the proceedings under Article 226 and this court has no jurisdiction to review a judgment rendered under Article 226 of the Constitution of India in the absence of a separate provision for the same. It is alternatively argued that if at all a Review Petition is to be entertained there should be sufficient reason for the same as provided in the provisions contained in R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 6 the CPC; there is no error apparent on the face of the judgment and there is no case for the review petitioners that they could produce any documents which they could not produce when the Writ Petition was pending. It is further argued that there is inordinate delay in filing the Review Petition and it is beyond the time permitted under the Limitation Act. It is also contended that the review petitioners are not aggrieved parties so as to file a review petition and that the attempt of the review petitioners is to favour 3[rd] parties and there is no impediment for accepting the Land Tax Act. It is also pointed out that the petitioner's mother continued to be a land holder as defined under Section 3 of the Land Tax Act, 1961. 5. On the other hand, the learned Government Pleader Sri. Sunil Kuriakose vehemently argued that the petitioner has approached this Court with dishonest intention after fully knowing that several of the items of the properties are in the hands of others including those alienated by the petitioner's mother executing sale deeds which can be seen from Annexure G, H etc., R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 7 which are only some of the documents. Therefore, it is argued that it is a fit case where the writ petitioner is liable to be proceeded against under Section 209 of the IPC and that commission of fraud cannot be permitted. 6. The judgment of the Patna High Court relied on by the learned Counsel for the writ petitioner was with respect to the question whether an unconditional withdrawal of the writ petition would amount to a bar in entertaining a second writ petition on the same cause of action. The Full Bench held that though provisions in Order XXIII of CPC or the provisions in CPC are not per se applicable to writ proceedings, the principles of the CPC which advance the public policy which is equitable and just can be extended to writ proceedings. The judgment of the Full Bench of this Court in _**Thressia**_ 's _(_ supra) case was with respect to the right of a person to institute proceedings under Article 226 of Constitution of India as a pauper. This Court held that only those provisions which deal with matters of procedure are made applicable in the proceedings under Article 226 of the Constitution of R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 8 India and Section 141 of CPC. It is relevant to note the following observations of the Full Bench of this Court in that judgment itself in para 1: _“ Apart from the provisions of O.XLVII of the CPC. as held by the Supreme Court in Shivdeo Singh and others v. State of Punjab and others AIR 1963 SC 1909 power of review inheres in every court of plenary jurisdiction to prevent miscarriage of justice and to correct grave and palpable errors committed by it and there is nothing in Art.226 of the Constitution to preclude courts from exercising that power._ 7. When this court rendered the judgment in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India, it is not necessary for the High Court which is court of record under Article 215 of the Constitution of India to go in search of another provision to recall its judgment, as contended by the learned Counsel for the petitioner. When a similar contention was raised before the Supreme Court that the High Court has no power to review its own order under Article 226, the Apex Court in _**Shivdev**_ _**Singh's case**_ ( _supra_ ) held that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 9 miscarriage of justice or to correct grave and palpable errors committed by it. The very same proposition was held in _**M.M. Thomas v. State of Kerala**_ : (200)1 SCC 666. 8. It is also relevant to note that in the judgment in _**Municipal Corpn. of Greater Mumbai v.**_ _**Pratibha Industries Ltd.**_ : (2019) 3 SCC 203, the Apex Court held as follows: **“10.** Insofar as the High Courts’ jurisdiction to recall its own order is concerned, the High Courts are courts of record, set up under Article 215 of the Constitution of India. Article 215 of the Constitution of India reads as under: “ **215.** _**High Courts to be courts of record**_ .—Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.” It is clear that these constitutional courts, being courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior courts of record. This has been recognised in several of our judgments.” 9. The petitioner filed the Writ Petition under Article 226 of the Constitution of India. From the materials produced by the review petitioner, I am of the view that the writ petitioner, has not approached this Court with clean hands. It is seen that material facts were suppressed in the Writ Petition. Therefore, I deem it appropriate to review and recall the judgment. Therefore the judgment dated 12.10.2018 in R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 10 W.P.(C) No. 32652/2014 is recalled and Review Petition is accordingly allowed and writ petition is restored on file. ## **Contempt Case (Civil)No.1422 of 2019** In view of the orders passed in the Review Petition recalling the judgment in W.P(c).No.32652 of 2014, the Contempt Case is dismissed. **==> picture [105 x 10] intentionally omitted <==** **P.V.ASHA, JUDGE** AJ R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 11 ## **APPENDIX OF RP 1220/2019** |**PETITIONER'S/S**|**EXHIBITS:**| |---|---| |**ANNEXURE A**|**A TRUE COPY OF THE RECEIPT**| ||**NO.KL10040503227/2018 DATED 14.9.2018.**| |**ANNEXURE B**|**A TRUE COPY OF THE RECEIPT**| ||**NO.KL10040501867/2018 DATED 10.7.2018.**| |**ANNEXURE C**|**A TRUE COPY OF THE RECEIPT**| ||**NO.KL10040501045/2018 DATED 30.5.2018.**| |**ANNEXURE D**|**A TRUE COPY OF THE RECEIPT**| ||**NO.KL10040501055/2018 DATED 30.5.2018.**| |**ANNEXURE E**|**A TRUE COPY OF THE SALE DEED NO.2569/2004.**| |**ANNEXURE F**|**A TRUE COPY OF THE RECEIPT NO.M8307177,**| ||**DATED 25.6.2015.**| |**ANNEXURE G**|**A TRUE COPY OF THE CERTIFICATE NO.459/1993.**| |**ANNEXURE H**|**A TRUE COPY OF THE CERTIFICATE NO.467/1993.**| |**ANNEXURE I**|**A TRUE COPY OF THE COMMUNICATION DATED**| ||**19.7.2019.**| R.P.No.1220/19 & Cont.Case(c).No.1422/2019-S 12 ## **APPENDIX OF Con.Case(C) 1422/2019** **PETITIONER'S/S EXHIBITS: ANNEXURE A1** **PHOTOSTAT COPY OF JUDGMENT DATED 12.10.2018 IN WRIT PETITION C NO. 32652/OF 2014.**