Review petition against dismissal of a writ petition challenging a Corporation notice directing demolition of unauthorised construction in a building let to the petitioner. The court restated the limited scope of review and held there was no error apparent on the face of the record, dismissing the review petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
RP.No.206 OF 2020 IN WP(C).28080/2019
AGAINST THE JUDGMENT IN WP(C) 28080/2019(H) OF HIGH COURT OF KERALA DATED 19.12.2019
REVIEW PETITIONER/PETITIONER:
A.M.FAISAL AGED 54 YEARS S/O. THANGALAKATH MITHAL ABDULLA, ASMA MANZIL, PANOOR .P.O., POOTHOLE DESOM, THALASSERY TALUK, KANNUR DISTRICT-670 692
BY ADV. SRI.P.K.ANIL
RESPONDENTS/RESPONDENTS:
1 TRICHUR CORPORATION REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKAD MAIDAN, TRICHUR-680 001
2 THE SECRETARY, TRICHUR CORPORATION, MUNICIPAL OFFICE ROAD, KURUPPAM, THEKKINKAD MAIDAN, TRICHUR-680 001
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3 PROF. (DR) SAYEED HUSSAIN SHAH S/O PROF.SAYED MOHYIDHEEN SHAH, SHAHABAD, KOORKANCHERRY P.O., TRICHUR-680 027
SRI. SANTHOSH PODUVAL, SC FOR R1 AND R2, SRI. BABU KARUKAPADATH, FOR R3
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 24.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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“C.R”
ORDER
Dated this the 24th day of March, 2021
S. Manikumar, CJ.
Seeking review of the judgment in W.P(C). No.28080 of 2019 dated 19.12.2019, instant review petition is filed.
Review petitioner is the petitioner in W.P.(C). No. 28080 of 2019, which was dismissed by judgment dated 19.12.2019. Review petitioner is the tenant of a premises. He has approached this Court challenging Exhibit-P9 notice dated 04.10.2019 issued by Thrissur Corporation, respondent No.1, calling upon the owner of the building to demolish the unauthorized construction, within a period of 14 days, failing which, it was indicated that demolition will be done by the department at the cost of landlord and prosecution steps will be taken for non-compliance of the directions. Respondent No.3 is the owner of the building. According to the review petitioner, he is running a hotel by name “Doublex”, in the building, along with his brother. A Rent Control Petition has been filed by the landlord, claiming arrears of rent, and that he has also filed a suit, O.S. No.6143/2006, before the Munsiff's Court, Thrissur, to restrain the review petitioner from making any construction in the rented building.
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“5. The only question to be considered is whether Ext.P9 suffers from any infirmity and whether the petitioner is entitled for a writ of mandamus or be issued with a D & O licence. As far as the claim for D & O licence is concerned, the issue had become final in the light of the judgment dated 2/11/2018 in WP(C) No.12446/2018 and the further direction of the Corporation as per order dated 3/3/2019. Though writ petition was filed challenging the same, the same came to be dismissed by order dated 24/9/2019 in WP(C) No. 13230/2019. Therefore, no such direction can be issued.
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order dated 15/3/2018 observed that the Municipality should implement the said order of demolition of the unauthorised structure unless order is varied or modified by a competent authority. Petitioner had sufficient time to challenge the order dated 15/3/2018. But he did not do so and Ext.P9 order is only a continuation of the earlier order passed for demolition of the structure. Under such circumstance, when there is no illegality in the order passed by the Thrissur Corporation, we do not find any reason to interfere with the impugned order. The petitioner submits that he is entitled to seek regularization of the construction. Learned counsel for the appellant however sought time for filing an application for regularisation. According to him, though the petitioner is a tenant, he can also seek for regularising the unauthorised construction. From the facts of the case, we do not think it that the tenant is entitled to seek such a relief. Even otherwise, no such claim had been made in the writ petition. No tenant is entitled to pull down the building of the landlord and make his own construction unless it is permitted by the landlord. In the case on hand, the landlord has not given any such permission nor any document has been submitted to indicate that any such permission was granted. That apart, reconstruction or modification to an existing building requires a valid permit. No such document is seen produced. Under such circumstances, Corporation was justified in directing demolition of the structure. We do not find any reason to interfere with Ext.P9 order. Petitioner is not entitled for any reliefs.
Writ petition is dismissed.”
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“B) This Hon'ble Court, while dismissing the above writ petition, has not given liberty to the petitioner to avail his statutory remedy under the Act and the petitioner is at liberty to file appeal against Ext.P9 order. Now, the judgment of this Court is standing in the way of the petitioner, in filing his statutory appeal, and if it is not corrected or reviewed to the extent that the petitioner is given liberty to avail his statutory remedies available under the Act, great prejudice will be caused to him.”
“1. Application for review of judgment.- (1) Any person considering himself aggrieved-
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and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
Explanation.-The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.”
as under:
“114. Review.- Subject as aforesaid, any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Court, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
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(i)The Hon'ble Supreme Court in Lily Thomas v. Union of India , reported in (2000) 6 SCC 224, while considering the scope of review and the limitations imposed on its exercise under Article 137 of the Constitution of India, held as follows:
"52. The dictionary meaning of the word "review" is the act of looking, offer, something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi & Ors. v. Pradyunmansinghji Arjunsinghji [AIR (1970) SC 1273], held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj & Ors. v. State of Karnataka & Anr. [1993 Supp. (4) SCC 595] held as under:
"19. Review literally and even judicially means reexamination or re-consideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of
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justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Law Choudhury v. Sukhraj Rai [AIR 1941 FC 1] the Court observed that even though no rules had been framed permitting the highest Court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh (1836) 1 Moo PC 117 that an order made by the Court was final and could not be altered:
'...nevertheless, if by misprision in embodying the judgments, by errors have been introduced, these Courts possess, by Common Law, the same power which the Courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.?
Basis for exercise of the power was stated in the same decision as under:
'It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a Court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.'
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Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitutionmakers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order XLVII Rule 1 of the Civil Procedure Code. The expression, for any other sufficient reason in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of Court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."
The mere fact that two views on the same subject are possible is no ground to review the earlier judgment passed by a Bench of the same strength.
"It is well settled that a party is not entitled to seek a review of a judgment delivered by this Court merely for the purpose of a rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that
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principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933 at p.948. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing. G.L. Gupta v. D.N. Mehta, (1971) 3 SCR 748 at p.760. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice. O.N.Mohindroo v. Dist. Judge, Delhi, (1971) 2 SCR 11 at p.27. Power to review its judgments has been conferred on the Supreme Court by Art.137 of the Constitution, and that power is subject to the provisions of any law made by Parliament or the rules made under Art.145. In a civil proceeding, an application for review is entertained only on a ground mentioned in O. XLVII, Rule 1 of the Code of Civil Procedure and in a criminal proceeding on the ground of an error apparent on the face of the record. (Order XL, R.1, Supreme Court Rules, 1966). But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case, and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. Chandra Kanta v. Sheikh Habib [(1975) 3 SCR 935]."
"Application for review of judgment.- (1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which, no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of
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due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."
Under Order 40 Rule 1 of the Supreme Court Rules no review lies except on the ground of error apparent on the face of the record in criminal cases.”
(ii) In Aribam Tuleshwar Sharma v. Aibam Pishak Sharma, reported in AIR 1979 SC 1047, the Hon'ble Supreme Court held as under:
".....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 miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate powers which may enable an appellate court to correct all manner of errors committed by the subordinate court."
(iii) In RAJINDERSINGH v. Lt. GOVERNOR , reported in (2005) 13 SCC 289, at paragraph Nos.15 and 16, the Hon'ble Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to
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prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases.
(iv) In Union of India v. Kamal Sengupta reported in (2008) 8 SCC 612, the Hon'ble Supreme Court, at paragraphs 14 and 15, held as under:
"14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justiciae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.
(v) A Hon'ble Division Bench of this Court, in Infant Jesus Teacher Training v. M. Manikandan (Rev. Appn. No.38 of
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2010 in W.A. No.1145 of 2009, dated 31.08.2010), referring to various decisions of the Hon'ble Apex Court, as well as this Court, has considered the scope of review and held as follows in paragraphs 14, 31 and 32 of the order:
“14. Considering the scope of review jurisdiction and holding "mistake or error apparent on the face of the record must be self evident and does not require a process of reasoning, in Parsion Devi v. Sumitri Devi, [(1997) 8 SCC 715], the Supreme Court held as under: "7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47 Rule 1 CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (AIR 1964 SC 1372), this Court opined as under:
“What, however, we are now concerned with is whether the statement in the order of September 1959 that the case did not involve any substantial question of law is an error apparent on the face of the record. The fact that on the earlier occasion the Court held on an identical state of facts that a substantial question of law arose would not per se be conclusive, for the earlier order itself might be erroneous. Similarly, even if the statement was wrong, it would not follow that it was an error apparent on the face of the record, for there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error.?
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Choudhury , [(1995) 1 SCC 170], the Supreme Court held as under:
"8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389], speaking through Chinnappa Reddy, J., has made the following pertinent observations: (SCC p. 390, para 3) ? It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909), there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court.
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entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale (AIR 1960 SC 137), wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
“An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from selfevident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ."
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mere glance of the judgement. The said position of law is reiterated in the decisions reported in (1997) 8 SCC 715, DELHI ADMINISTRATION V. GURDIP SINGH UBAN AND OTHERS [2001(1) MLJ 45 (SC)], KERALA STATE ELECTRICITY BAORD V. HITECH ELECTROTHERMICS HYDROPOWER LTD. AND OTHERS [(2005) 6 SCC 651], HARIDAS DAS V. USHA RANI BANK [(2006) 4 SCC 78] and STATE OF WEST BENGAL AND OTHERS V. KAMAL SENGUPTA [(2008) 8 SCC 612].”
(vi) In Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors. , reported in (2010) 9 SCC 437, the Hon'ble Supreme Court had considered the power of review in the absence of any statutory provisions and, at paragraphs 12, 13 and 14, held thus:
“12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed is ultra-vires, illegal and without jurisdiction. [vide: Patel Chunibhai Dajibha v. Narayanrao Khanderao Jambekar and Anr. (AIR 1965 SC 1457) and Harbhajan Singh v. Karam Singh and Ors. (AIR 1966 SC 641)].
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(vii) In Kamlesh Verma v. Mayawati and Ors. , reported in (2013)
8 SCC 320, the Hon'ble Apex Court observed as under:
“15. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII Rule 1 of Code of Civil Procedure. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction.
Summary of the Principles:
(A) When the review will be maintainable:
(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the Petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record;
(iii) Any other sufficient reason.
The words "any other sufficient reason" has been interpreted in Chhajju Ram v. Neki [AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius and Ors. [(1955) 1 SCR 520], to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India v. Sandur Manganese and Iron Ores Ltd. and Ors. [JT 2013 (8) SC 275].
(B) When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
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(ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”
the light of the statutory provisions and decisions quoted above on the powers of review, we are of the view that there is no need to advert to
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the submission, i.e., giving liberty to the review petitioner to avail the statutory remedy under the Kerala Municipalities Act, 1994.
Giving due consideration to the submissions, provisions stated above, and the decisions, we are of the view that there is absolutely no ground to review the judgment dated 19.12.2019 in W.P.(C). No.28080 of 2019. Accordingly, this review petition is dismissed.
Sd/-
S. Manikumar
Chief Justice
Sd/-
Shaji P. Chaly, Judge
sou & krj
2 issues framed by the court
Whether the judgment dismissing the writ petition against a Corporation demolition notice discloses any mistake or error apparent on the face of the record warranting review?
Whether the review petitioner should be granted liberty to avail the statutory remedy under the Kerala Municipalities Act, 1994?
Colour shows how this judgement treated each authority
Lily Thomas v. Union of IndiaReferred¶62
(2000) 6 SCC 224 · Who else cites this
Aribam Tuleshwar Sharma v. Aibam Pishak SharmaReferred¶88
AIR 1979 SC 1047 · Who else cites this
Rajindersingh v. Lt. GovernorReferred¶90
(2005) 13 SCC 289 · Who else cites this
Union of India v. Kamal SenguptaReferred¶94
(2008) 8 SCC 612 · Who else cites this
Infant Jesus Teacher Training v. M. ManikandanReferred¶100
Rev. Appn. No.38 of 2010 in W.A. No.1145 of 2009, dated 31.08.2010
Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors.Referred¶117
(2010) 9 SCC 437 · Who else cites this
Kamlesh Verma v. Mayawati and Ors.Referred¶123
(2013) 8 SCC 320 · Who else cites this
4 provisions across 3 enactments
A.M. Faisal
Trichur Corporation
The Secretary, Trichur Corporation
Prof. (Dr) Sayeed Hussain Shah
S. Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
