Madras High Court
M.Baskar ... Review vs The District Collector on 27 July, 2018
Author: M.Venugopal
Bench: M.Venugopal, S.Vaidyanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 27.07.2018
CORAM:
THE HONOURABLE Mr.JUSTICE M.VENUGOPAL
AND
THE HONOURABLE Mr.JUSTICE S.VAIDYANATHAN
Review Application No.134 of 2018
M.Baskar ... Review Petitioner
vs.
1. The District Collector,
Kancheepuram District
2. The Commissioner,
Municipal Administration Department,
Ezhilagam, Chennai
3. The Executive Officer,
Thiruneermalai Town Panchayat
Chennai 600 044
4. P.Banumathi ... Respondents
Review Petition filed under Order 47 and Rule 1 r/w Section 114 of C.P.C praying to Review the Order dated 12.03.2018 made in W.P.No.28599 of 2017.
For Petitioner : Mr.R.Karthikeyan
For Respondents : Mr.A.N.Thambidurai for R1 to R3
Special Government Pleader
O R D E R
(Order of the Court was made by M.VENUGOPAL,J.) Heard the Learned Counsel for the Review Petitioner and the Learned Counsel for the Respondents 1 to 3. To avoid an avoidable delay, notice to the 4th Respondent is dispensed with by this Court.
2. According to the Learned Counsel for the Petitioner, the 3rd Respondent had acted in vengeance and deliberately mislead this Court by swearing to a false affidavit that 'Jayaram Nagar' is situated at Lakshmipuram, Chrompet, Chennai 600 044 and further that, the entire layout is a prohibited area, as per Archaeological Department, as the same comes within the Pachamalli Hills. Per contra, Sail Layout neither falls within the protected or regulated area, as per AMASR Act.
3. The Learned Counsel for the Petitioner contends that the Survey No.360/4C is situated at No.23, Jayaram Nagar, Lakshmipuram, mani, Chennai 44 will not come under Archaeological Survey of India and it is not a centrally protected site / monument and the same was confirmed by Archaeological Survey of India vide, as per RTI Reply dated 19.03.2018.
4. The Learned Counsel for the Petitioner proceeds to point out that the Petitioner is in possession of all the requisite documents to establish that he is the absolute owner of the land. Also that, even though it is an unapproved lay out as mentioned by the 3rd Respondent, but, it is a patta land and now that the Petitioner has applied for Regularisation of Plot and building under the 'Scheme of the Government of Tamilnadu'.
5. The Learned Counsel for the Petitioner takes a plea that this Court ought to have impleaded the Archaeological Survey of India, as an interested party to the Writ Petition, with a view to assist the Court.
6. Lastly, it is the submission of the Learned Counsel for the Petitioner that the Petitioner has an absolute title over the property in issue and only based on the false affidavit of the 3rd Respondent, the Petitioner is termed as an 'Encroacher'. Added further, based on the affidavit of the 3rd Respondent, this Court was pleased to pass orders in the Writ Petition directing the 3rd Respondent to take action to demolish the building as the same falls in prohibited area. In view of the fact that the Survey No.360/4C situated at No.23, Jayaram Nagar, Lakshmipuram, Chrompet, Chennai- 44 will not come under Archaeological Survey of India, the order passed by this Court dated 12.03.2018 in the main Writ Petition No.28599 of 2017 in directing the 3rd Respondent / the Executive Engineer, Thiruneermalai Town Panchayat, Chennai to take serious steps as regards removal of unauthorised structures put up not only by the Petitioner and the 4th Respondent but all other unauthorised structures, within a period of three months from the date of receipt of a copy of this Order etc., suffers from a grave and patent error on the face of it, therefore, the Order dated 12.03.2018 passed in main W.P.No.28599 of 2017 needs to be reviewed by this Court.
7. It is to be noted that there is a clear difference between an 'Erroneous Decision' and an 'Error Apparent on the Face of Record'. An erroneous decision can be corrected by Superior Forum and an Error Apparent on the Face of Record can be corrected by a exercise of 'Review Jurisdiction'. An application for 'Review' is not an 'Appeal' in disguise. It is to be remembered that an 'Error Apparent on the Face of Record' cannot be either precisely or exhaustively be defined. However, it is for a Court of Law to determine this aspect on judicial plane, of course, based on facts of a given case. A Review Proceedings cannot be equated with that of the original hearing of the case and that the Writ Petition cannot be reheard on the ground that 'Law' was not properly considered and applied.
8. A Review Court cannot sit in Appeal over its own order or rehearing of the matter is an impermissible one. 'Review' is an exception to the General Rule that once the Judgment is signed or pronounced, it should not be permitted to be altered, as per decision of Hon'ble Supreme Court reported in [2009] 14 Supreme Court Cases Page 663 at Special Page 669 between Inderchand Jain (Dead) through Lrs. V. Motilal (Dead) through Lrs. Furthermore, the Petitioner cannot develop a case, which was not projected in the Original Writ Petition. Even debatable and legal issues are not covered by the term 'Sufficient Reason' and as such, no 'Review' will lie.
9. Moreover, 'Review' erases the previous order / Judgment operates as Law from the inception, as per decision of Hon'ble Supreme Court reported in [2003] 7 Supreme Court Cases at Page 517 and at Special Pages, 520 and 521 between M.A.Murthy V. State of Karnataka and Others. Apart from that, just because an earlier decision is an erroneous one, that is not an ambit for Review', as per decision reported in (2007) 6 MLJ at Page 47 between Rajeswari and Another V. Sri Bhuvaneswari Cycle Mart rep. By its Managing Partner D.Ramasamy. In Law, 'Review' literally and even judicially means 'Re-examination' or 'Re-consideration' of the subject matter in issue. The scope of interference in 'Appeal' is much wider than in 'Review'.
10. It must be borne in mind that if arguments raised before the Court were considered and decided in the Order / Judgment, if the Petitioner, has any grouse / grievance against an Order / Judgment, then, an 'Appeal' can be preferred. However, if the provisions of Law were not considered, in a certain manner, in which the Petitioner desires to agitate / raise, then, that is not a ground for Reviewing the Order / Judgment. Continuing further, if the view taken by the Concerned Court is a possible view, considering the facts evident from the materials projected, it cannot be said to be an 'Error Apparent on the Face of Record' and in this regard, no 'Review' can be made. Also that, a Court of Law cannot enter into a process of taking evidence to establish something, which is not on record with a view to create records for the purpose.
11. In the present case, the Petitioner relies on the reply dated 19.03.2018 of the Deputy Superintending Archaeological Engineer, Central Public Information Officer, ASI, Chennai Circle, Government of India, ASI, Chennai Circle for his letter dated 16.03.2018. The aforesaid letter dated 19.03.2018 of the ASI, Chennai Circle is long after filing of the Writ Petition No.28599 of 2017 by the Petitioner in September, 2017. As a matter of fact, the Counter of the 3rd Respondent for himself and on behalf of the Respondents 1 and 2 in the Writ Petition was filed during March, 2018. The RTI reply dated 19.03.2018 of Central Public Information Officer of ASI, Chennai Circle is a new plea / ground, which cannot be entertained by this Court, for the simple reason that the Petitioner cannot improve or develop a case, which was not in the original Writ Petition. A Review cannot be claimed or asked for merely, for a fresh hearing of arguments or corrections of an erroneous view taken, as per decision Ajith Kumar Rath V. State of Orissa reported in [2000] 2 LRI 163. To put it precisely, this Court on hearing a Review Petition, does not act as a Superior Court hearing an Appeal. In short, this Court on going through the Impugned Order dated 12.03.2018 in W.P.No.28599 of 2017 is of the considered opinion that there are no 'Mistakes' or 'Errors Apparent on the face of Record'.
12. Be it noted, that this Court in its order in main W.P.No.28599 of 2017 dated 12.03.2018 at Paragraph Nos. 12 to 17 had observed as follows:
12.In short, the plea taken on behalf of Respondents 1 to 3 is that the Petitioner himself is an unauthorized occupant and does not have any permission to put up superstructure and however, he had not produced any 'No Objection Certificate' from the Archaelogical Department, Government of India. According to the Respondents 1 to 3, the Petitioner has not approached this Court with clean hands and he himself is liable for eviction from the unauthorized constructions.
13. Insofar as the 4th Respondent is concerned, she is the neighbour to the Petitioner and she is also liable for eviction, as she has also put up unauthorized structure in the disputed area. According to the Sale Deed of the 4th Respondent, it does not disclose that Jayaram Nagar leads and joins with the Sakthi Nagar Road. As such, the Sale Deeds of both the Petitioner and the 4th Respondent does not disclose that Jayaram Nagar Road leads to Sakthi Nagar and there was no evidence for the approval of the layout, no handing over of land for Road by way of Gift Deed to the Town Panchayat and finally, the 'No Objection Certificate' from the Archaelogical Department, Government of India has not been produced to put up any constructions within 200 metres from the bottom of the 'Pachaimalai Hill', which has been preserved as a Monument in that area.
14. The Learned Special Government Pleader appearing for Respondents 1 to 3 draws the attention of this Court that there was a representation from the public residing at Lakshmipuram and that the Burial Ground was renovated and a compound wall was also put up only after getting approval from the Panchayat Council in the year 2013. To prevent traffic problem in that area and in the interest of public, a Road length of 30 Metres and 4 Meter breadth was laid down and it leads to Burial Ground. Only after obtaining approval from the elected members of the Town Panchayat in the year 2013, the above said work was carried out and the said information was provided to the Petitioner in his RTI Application.
15. In regard to the land in S.No.360/4C, it is a Patta land of the unapproved land of a larger extent. Likewise, the Patta mentioned in the Sale Deed of the 4th Respondent in Patta No.536 in Survey No.360/4D is related to the larger extent of land in Jayaram Nagar area. Till date, no separate Patta has been issued by the Revenue Department to any of the residents living in and around Jayaram Nagar and Sakthi Nagar. All the Revenue Records reveal that none has got Patta in that area, as the same was banned, as the Archaelogical Department Monument 'Pachaimalai Hill' is situated nearby.
16. The Petitioner and the 4th Respondent have put up unauthorized structures and they have not produced any Patta/No Objection Certificate from the Archaelogical Department, Government of India for putting up any construction within 200 metres from the bottom of the 'Pachaimalai Hill', which is kept as Monument. The Sale Deed of the Petitioner shows that the 4th Respondent did not support their claim. The RTI Reply shows that they have only put up a Road of an extent of 4 Metres breadth and 30 Metres length and it does not give any legal right to put up unauthorized structure. Moreover, the 3rd Respondent is taking severe steps to remove unauthorized structures put up not only by the Petitioner and the 4th Respondent, but also by several other persons.
17. Considering the fact that the Petitioner as well as the 4th Respondent have put up unauthorized constructions and in the absence of any legal right to and in their favour by virtue of their Sale Deeds and when he had purchased the lands from an unapproved layout in the absence of any document to prove their just, valid and legal claim in respect of their title, this Court, unhesitatingly comes to an irresistable conclusion that the 3rd Respondent, in law, is to take necessary action/steps in removing the unauthorized structures put up not only by the Petitioner and the 4th Respondent, but also by several other persons. M.VENUGOPAL, J.
and S.VAIDYANATHAN, J.
and resultantly directed the 3rd Respondent / the Executive Officer, Thiruneermalai Town Panchayat, Chennai, to take serious steps in regard to the removal of unauthorised structures put up not only by the Petitioner and also 4th Respondent, but all other unauthorised structures, within a period of three months from the date of receipt of a copy of this order etc., and disposed of the Writ Petition, which is free from any legal infirmities. Accordingly, the present Review Petition is devoid of merits.
In fine, the Review Petition is dismissed. No costs.
(M.V.J.) (S.V.N.J.)
27.07.2018
Index :Yes / No
Internet :Yes / No
Speaking / Non speaking order
ssd
To
1. The District Collector,
Kancheepuram District
2. The Commissioner,
Municipal Administration Department,
Ezhilagam, Chennai
3. The Executive Officer,
Thiruneermalai Town Panchayat
Chennai 600 044
Review Application No.134 of 2018