Dismissed

Muhammed @ Muttan @ Muhammedali v. the Vallapuzha Grama Panchayath

Kerala HC11 Dec 2009RP/1105/2009

Case brief

AI extract

What is this about?

Single judge disposed of a review petition filed by the 6th respondent of an earlier writ petition. The petitioner sought condonation of a 187-day delay and wanted the matter reheard on merits, alleging atrocities. The Court found no basis to condone the delay or entertain the petition as no error appeared on the record.

What did the court decide?

Intervention in the review petition and condonation of the delay in filing it were declined; proceedings dismissed.

Muhammed @ Muttan @ Muhammedali Vs the Vallapuzha… — Writ and Judicial Review | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931

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RP.No. 1105 of 2009(L)

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( AGAINST THE JUDGEMENT IN WPC.13557/2007 Dated 07/04/2009 )

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REVIEW PETITIONER/ RESPONDENT NO.6

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MUHAMMED @ MUKTAN @ MUHAMMEDALI, S/O.ABDULLA HAJI, PALAKURRISSI HOUSE, VALLAPUZHA, PALAKKAD DISTRICT.

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BY ADV. SRI.BABU S. NAIR

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RESPONDENTS/ PETITIONER & RESPONDENTS 1 TO 5

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VALLAPUZHA GRAMA PANCHAYATH, VALLAPUZHA,OTTAPALAM TALUK, PALAKKAD DISTRICT,REPRESENTED BY ITS SECRETARY.

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THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF REVENUE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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THE TAHSILDAR,OTTAPALAM.

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THE ADDITIONAL TALUK SURVEYOR, PATTAMBI.

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THE VILLAGE OFFICER, VALLAPUZHA VILLAGE,VALLAPUZHA, PALAKKAD DISTRICT.

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SREEDEVI AMMA,W/O.NARAYANAN, KARANKANDATH VEEDU,VALLAPUZHA, PALAKKAD DISTRICT.

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R1 BY ADV. MR. JACOB SEBASTIAN.

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R2 TO R5 BY GOVERNMENT PLEADER ADV. MR. R. LAKSHMI NARAYAN.

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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P.R. RAMACHANDRA MENON, J.

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REVIEW PETITION NO. 1105 OF 2009 IN

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W.P.(C)No. 13557 OF 2007

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......................................................................... Dated this the 11th December, 2009

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O R D E R

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The Review Petitioner who was the 6^th respondent in the Writ petition has approached this Court seeking to consider the matter afresh on merits, stating that the judgment in the Writ Petition happened to be passed on 07.04.2009 observing mainly that no counter affidavit had been filed by the respondents No.5 and 6 therein. The Review Petition is accompanied with a petition for condoning the delay of 187 days.

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Obviously, the Writ Petition was filed by the Ist respondent Panchayat with the prayer for issuance of a writ of mandamus commanding the respondent State to measure out the property described in Ext.P1 with the aid of the Addl.Taluk Surveyor to prepare a report as early as possible and also to

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REVIEW PETITION NO. 1105 OF 2009

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direct the respondent-State to take immediate action on Ext.P5. This Court had issued notice by 'Speed Post' to the respondents and pursuant to the said order, the respondents have entered appearance through learned Counsel. Despite the lapse of nearly three years, no counter affidavit had been filed by any of the respondents and it was in the said circumstance, that the position was taken note of by this Court, leading to the impugned judgment passed on 07.04.2009, whereby, it was ordered as follows:

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“ Despite service of notice, no counter affidavit has been filed by any of the respondents including the respondents No.5 and 6. In other words, the averments raised by the petitioner in the Writ Petition stand rather unrebutted. As such, the petitioner is entitled to have the reliefs prayed for, by making the interim order absolute, which hence is ordered accordingly. The petitioner will be entitled to get the fruits of such measurement enforced by approaching the concerned authorities/respondents and on such an event, the matter will be considered

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REVIEW PETITION NO. 1105 OF 2009

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and finalised by the concerned respondent taking all consequential steps in accordance with law, as expeditiously as possible.

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3. The case of the Review Petitioner is that, in spite of the

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direction given by this Court to have the property measured out, the concerned respondents did not pay any heed to the scope and extent of the above direction and committed various attrocious actions, under the cover of the said order, which plea is sought to be substantiated by producing different photographs as Annexures R5(g) series. The learned Counsel for the Review Petitioner also placed reliance on Ext. R5(a) and R5(b) interim orders passed by this Court in W.P.(C)No. 11551 of 2007 (filed by the Review Petitioner).The interim relief prayed for was, not to dispossess the family of the petitioner from the properties comprised in Sy.No.99/1 A and 94B/3A of the Vallappuzha village; wherein an interim order was granted by this Court originally on 03.04.2007 which was subsequently extended until further orders on 04.06.2007. The learned Counsel further

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REVIEW PETITION NO. 1105 OF 2009

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submits that it is without any regard to the interim order, as above, that attrocious action has been pursued by the petitioner in the Writ Petition. Obiviously, in Ext.R5(a) and R5(b) the present Writ Petitioner-Panchayath is not included in the party array and the reliefs prayed for are only against the revenue authorities.

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The factual position as to the pendency of the present Writ Petition(WP(C) 13557/07) for more than two years, the receipt of notice to the review petitioner, appearance made through a learned Counsel and non-filing of counter affidavit stands rather conceded from the part of the review petitioner. However, the case projected by him is that he was working abroad and hence could not proceed with the matter by giving necessary instructions to the counsel and that the matter requires to be re-considered on merits.

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As stated above, the Review Petition is accompanied with a petition to condone the delay. The only reason stated in the affidavit filed in support of the petition is that the petitioner

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REVIEW PETITION NO. 1105 OF 2009

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could not contest the matter as he was working abroad and that he came to know about the verdict only when his brother informed the position over telephone, when he came down to his native place immediately on 06.11.2009. It is not stated as to when the petitioner came to know about the judgment or as to when the brother had actually telephoned him in this regard. That apart, the fact remains that pursuant to the notice issued by this Court in the Writ Petition, the review petitioner had entered appearance through a learned counsel by filing necessary 'Vakalath' in this regard, though no counter affidavit was filed rebutting various allegations raised in the Writ Petition. That apart, the certified copy of the judgment produced along with the Review Petition shows that the copy application was filed only on 04.11.2009, i.e. nearly 'five' months after passing the impugned

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judgment. The delay occurred in this regard has not been explained in the affidavit filed in support of the petition to condone the delay.

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As stated hereinbefore, the impugned judgment is

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REVIEW PETITION NO. 1105 OF 2009

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sought to be set aside, praying for disposal of the matter afresh, stating that the review petitioner has got very valid contentions in respect of the averments made in the Writ Petition. What are the contentions of the review petitioner; what are the rights and liberties which were infringed at the hands of the respondentPanchayat ( who was the Writ Petitioner herein) or the departmental Revenue authorities, is not discernible from the proceedings filed even now, before this court. Admittedly, no counter affidavit was filed before the matter was finalised as per the impugned judgment. There is absolutely 'no error apparent on the face of the records' to sustain any review. The scope of invoking the power/jurisdiction under review has been wellexplained by the Apex Court, as per the decision reported in AIR (1995) SC 455 ( Smt. Meera Bhanja vs. Smt. Nirmala

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Kumari Choudhury ). It has been made clear by the Apex court that the scope of review is not liable to be misunderstood as a substitute for the appeal.

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In the above facts and circumstances, this Court does not

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REVIEW PETITION NO. 1105 OF 2009

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find any ground either to condone the delay or to entertain the Review Petition. Interference is declined. Both the proceedings are dismissed, however, without prejudice to the rights and liberties of the review petitioner to pursue other appropriate remedies, if any, under the relevant provisions of law.

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P.R. RAMACHANDRA MENON, JUDGE.

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Muhammed @ Muttan @ Muhammedali v. the Vallapuzha Grama Panchayath

Case brief

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Muhammed @ Muttan @ Muhammedali v. the Vallapuzha Grama Panchayath

Case brief

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