Dismissed

Dr. M Sreekumar v. the Corporation of Thiruvananthapuram

Kerala HC23 Nov 2016RP/1000/2016

Case brief

AI extract

What is this about?

The Division Bench dismissed a review petition filed with gross delay. The court held that new title deeds produced could not be used for a rehearing of the underlying dispute, especially when the petitioner had previously failed to raise a title claim for over ten years and dismissed the review on merits.

What did the court decide?

Review petition rejected; no new title claim allowed; basis for civil suit if any remains unaffected by the prerogative writ.

Dr. M Sreekumar Vs the Corporation of Thiruvananthapuram — Property and Title | Kerala HC (2016)

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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 K.VINOD CHANDRAN

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WEDNESDAY, THE 23RD DAY OF NOVEMBER 2016/2ND AGRAHAYANA, 1938

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RP.No. 1000 of 2016 (P)

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WP(C) 25977/2006, DATED 02-06-2016

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REVIEW PETITIONER(S)/PETITIONER:

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DR. M SREEKUMAR, MADHAVAM, T.C.NO.2/1127(1), THIRUVANANTHAPURAM.

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BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS

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RESPONDENT(S)/RESPONDENTS:

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1. THE CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY-695013.

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2. THE SECRETARY, CORPORATION OF THIRUVANANTHAPURAM, THIRUVANANTHAPURAM-695013.

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3. SRI.THINKAL GOVIND KUMAR, T.C.2/1119(1), DEVI, P.R.R.A.112, MURINJAPALAM, THIRUVANANTHAPURAM-695004.

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4. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM-695011.

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R1 & 2 BY SRI.P.K.MANOJKUMAR,SC R3 BY SRI.MURALI PURUSHOTHAMAN R4 BY SENIOR GOVERNMENT PLEADER SRI.K.J.MANURAJ

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THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 23-11-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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RP.No. 1000 of 2016 (P)

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APPENDIX

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PETITIONERS' ANNEXURES ----------------------

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ANNEXURE I: COPY OF THE GIFT DEED DATED 26/7/1973 ANNEXURE II: COPY OF THE SALE DEED DATED 12/3/92 NO.1089/1992 OF SRO PATTOM

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ANNEXURE III: COPY OF THE WILL DATED 28/4/1976.

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ANNEXURE IV: COPY OF THE SETTLEMENT DEED DATED 11/6/1982.

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RESPONDENTS ANNEXURES

NIL.

/ TRUE COPY /

P.S. TO JUDGE

K. VINOD CHANDRAN, J.

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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Dated: 23^rd November, 2016

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O R D E R

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The review petitioner is aggrieved with the findings in paragraph 5 and apprehends that this would stand against the petitioner taking up a civil remedy as against the tile of the property; in which the pit is dug.

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The petitioner cannot have such a contention, at this stage, after ten years; in which period the writ petition was pending before this Court. The complaint raised was with respect to a pit dug by the respondent in the pathway leading to the respondent's house to avoid water-logging in the pathway. The petitioner had moved the Corporation, time and again, against the pit dug in the pathway fearing water logging in his land

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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which is said to be lying at a lower level than the pathway. The divergent findings by the Council and the Tribunal; as to the rival contentions, were set aside by this Court. The Council's findings were based on a SubCommittee report and the Tribunal was found to have reached the conclusions it did; without any expert opinion as to the possible damage, if any, that could be occasioned to the petitioner's property by reason of the pit dug. It was, hence, the Executive Engineer of the Corporation was directed to carry out inspection. In doing so, this Court had also observed that the right to the pathway raised by the petitioner remained unsubstantiated before the Tribunal. It is this finding, the petitioner assails in the review petition, that too with a delay of 124 days.

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In the review petition there are a number of documents produced by the petitioner, presumably to prove the title of the petitioner over the pathway.

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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Admittedly, none of these documents were produced before the Tribunal. It was hence the Tribunal negatived the plea raised by the petitioner and this Court found no reason to interfere with such findings entered into by the Tribunal. The petitioner, in the review, claims that he would approach the civil court and the findings of this Court would then interfere with the free exercise of his remedy before the Civil Court.

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At the outset, it has to be noticed that this Court was concerned with the order passed by a Tribunal, challenged before this Court under Article 226 of the Constitution of India. In addition to the constraints of a judicial review; in the review petition, this Court's jurisdiction is further restricted insofar as looking at only errors apparent on the face of record. There is not even a ground so raised in the review petition.

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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The attempt made in the review is to produce certain title deeds and establish the title of the

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petitioner over the pathway, thus attempting a rehearing of the writ petition itself on the basis of the documents which were not even produced before the Tribunal. The petitioner's contention is also restricted to the finding of this Court that the petitioner failed to establish before the Tribunal that he had title over the pathway and in such circumstances, there was no reason to interfere with the findings of the Tribunal; negativing such claim raised by the petitioner. If at all, a dispute of title on the pathway, wherein the pit was dug, was available before the Civil Court, the petitioner ought to have taken it; even when the matter was pending with respect to the complaint as to the damage occasioned to the petitioner's property; by reason of the water collection in the pit dug by the respondent.

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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The petitioner elected to approach the local authority with a complaint and never raised a title dispute on the pathway in the appropriate forum. The right of the respondents and others to use the pathway was also never resisted. The writ petition itself was pending in this Court for ten years. The complaint itself arose in 2004. Hence, for the past twelve years the petitioner has not thought it fit to raise a dispute on the title of the pathway in which the pit is dug and it has been accepted by all parties that the pathway is not included in the petitioner's property and leads to the respondent's property. In such circumstance, the 'hostile animus' with respect to the pathway is very clear and this Court is not inclined to review the judgment for reviving claims long given up.

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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The petitioner contends that the petitioner is aggrieved with the observation of this Court, that the petitioner has failed to establish the assertion made before the Tribunal, by producing any material to show title or at least interest in pathway. This is an admitted fact and is further fortified by the production of various documents in the review petition, which were never produced before the Tribunal. The grounds raised are also not possible of adjudication in a review, the contours of which were clearly demarcated by the decision of the Hon'ble Supreme Court in State of West Bengal v. Kemal Sen Gupta - 2008 (8) SCC 612 .

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It is also to be noticed that there are not sufficient grounds pleaded in the affidavit accompanying the delay condonation application to condone the delay of 124 days. The ground raised is that, after receipt of the certified copy of the judgment,

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Review Petition No. 1000 of 2016 in W.P.(C) No. 25977 of 2006

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on consultation with the Advocate, the petitioner had taken time to get certified copies of the title deeds now produced before this Court in the review petition. The same is not a ground to condone the delay; in filing a review, wherein definitely certified copies are not required. It only shows that though the petitioner now alleges that there was always a dispute on title of the pathway, the petitioner was not diligent enough to establish it before the appropriate forum or even before the Tribunal; where the proceedings are alleged to be summary in nature.

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The ground raised is not at all satisfactory to condone the gross delay and the review petition would stand rejected in limine on merits and also for reason of the rejection of the delay condonation application.

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Sd/K.VINOD CHANDRAN, JUDGE

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jjj 23/11/16

Dr. M Sreekumar v. the Corporation of Thiruvananthapuram

Case brief

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Dr. M Sreekumar v. the Corporation of Thiruvananthapuram

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