IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 4TH MAY 2010 / 14TH VAISAKHA 1932 RP.No. 856 of 2004(H) --------------------- WP(C) No. 34933 OF 2003 REVIEW PETITIONER(S): PETITIONER/PETITIONERS: --------------------------------------------- 1. BABU JOSEPH, NEDUMKUNNEL HOUSE, RAMAPURAM P.O. MEENACHIL, KOTTAYAM DIST. 2. MANOJ GEORGE, PUTHIYATH HOUSE, THIDANADU P.O. KONDOOR VILLAGE, MEENACHIL, KOTTAYAM DIST. 3. RUBY MATHEW, KUZHITHOTTU HOUSE, THIDANADU P.O. MEENACHIL, KOTTAYAM. 4. MANOJ C.THOMAS, CHOVVATTUKUNNEL HOUSE, MOONNILAVU P.O.ERATTUPETTA VIA, KOTTAYAM DIST. BY ADV. SRI.K.BABU THOMAS RESPONDENT(S): RESPONDENTS: --------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. THE SECRETARYTO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 3. THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM. 4. THE CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM. 5. THE DIVISIONAL FOREST OFFICER, MUNNAR,. DEVIKULAM, IDUKKI. 6. THE FOREST RANGE OFFICER, DEVIKULAM RANGE, IDUKKI. 7. THE REVENUE DIVISIONAL OFFICER, DEVIKULAM, IDUKKI DISTRICT. 8. THE TAHSILDAR, UDUBANCHOLA TALUK, IDUKKI DISTRICT. 9. THE DISTRICT SUPERINTENDENT OF SURVEYS/ ASSISTANT DIRECTOR OF SURVEY, THODUPUZHA. 10. CARDAMOM SETTLEMENT OFFICER, DEVIKULAM, IDUKKI DISTRICT. 11. THE DISTRICT COLLECTOR, IDUKKI AT PAINAVU. 12. THE UNION OF INDIA, REP. BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF ENVIORNMENT AND FORESTS,. PARYANVARAN BHAVAN, LODHI ESTATE. NEW DELHI. 13. UNION BANK OF INDIA, NEDUMKANDAM, BRANCH, PIN 685 531, IDUKKI DISTRICT REP. BY ITS MANAGER. GOVERNMENT PLEADER SRI.K.C.SANTHOSH KUMAR FORR1 TO R11 SRI.P.PARAMESWARAN NAIR, ASST. SGI FOR R12 SRI.A.V.THOMAS FOR R13 THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 26-11-2008 THE COURT ON 4-5-2010 PASSED THE FOLLOWING: PIUS C. KURIAKOSE & ANTONY DOMINIC, JJ. -------------------------------------------------------- RP. No. 856 of 2004 in WP(C) No. 34933 of 2003 ------------------------------------------------------ Dated this the 4th day of May, 2010 O R D E R Pius C. Kuriakose, J. The petitioners in the writ petition seek review of the judgment of this Court dated 17-3-2004 in the writ petition on various grounds. Respondents in the RP are the respondents in the writ petition. The petitioners filed the writ petition inter alia for quashing Ext.P31 Government Order to the extent it relates to 17.50 acres of cardamom plantation in old survey No. 175/4 covered by Exts.P2 to P23 and also for quashing Ext.P35 order passed by the District Collector, Idukky. By Ext.P31 order, the first respondent Government ordered cancellation of all the old 'Pattas' issued by the former Government of Travancore for cardamom cultivation in Mathikettan area with immediate effect by invoking the Government's powers under Rule 5 of the 1905 Rules and Rule 28 of the 1935 Rules pertaining to RP.856/04 - 2 - assignment of land for cardamom cultivation in public interest and to resume the land to the Government. By Ext.P35 which was passed by the District Collector pursuant to a direction issued by this Court in Writ Petition No. 21206 of 2003, the District Collector has found that the petitioners were unable to prove that they possess 17.50 acres of land (hereinafter referred to as the subject land) and also that the lands claimed are not covered by the original 'Patta'. Accordingly, the representation submitted by the petitioners was dismissed. This Court under the judgment sought to be reviewed noticed the interim order dated 25-7-2002 passed by another Division Bench of this Court in a public interest litigation OP. No. 10126 of 2002 which was in respect of alleged encroachment by people on an area popularly known as Mathikettan Forest Area taking the view that in situations like the present one where contentious issues relating to title and possession are to be RP.856/04 - 3 - decided after careful appraisal of the materials produced and that a writ petition under Article 226 is not the proper remedy for redressal even if the alleged encroachers are having genuine grievance. This court noticed that the first petitioner was already a party to the interim order passed by the Division Bench in the public interest litigation OP No. 10126 of 2002. The counsel for the petitioner also submitted that IA. No. 4255 of 2004 had been filed in OP. No.10126 of 2002 by the other petitioners seeking their impleadment as respondents 15 to 17 in that writ petition. In fact leave was sought by the counsel for the petitioner to withdraw from that IA with liberty to maintain the present writ petition. This Court however, did not become inclined to grant the leave. According to this Court, the contentious issues in this writ petition cannot be examined in a writ petition under Article 226. It was also noticed that the petitioners have already been dispossessed and the RP.856/04 - 4 - Government have resumed possession. It was in that view of the matter that the writ petition was disposed of without expressing any opinion regarding the merits of the petitioners claims over the property. 2. The petitioners filed special leave petition (civil) along with CC 9541 of 2004 against the judgment of this Court and it appears that when the SLP came up for consideration before the Honourable Supreme Court permission was sought for to move this Court for review on the question of maintainability of the suit in the civil court. The Supreme Court by its order in the SLP dismissed the SLP giving opportunity to the petitioners to move this Court seeking to file a review application on the question of maintainability of the suit in the civil court. 3. In this review petition under Section 114 read with Rule 1 of Order 47 of the Code of Civil Procedure the petitioners have raised various grounds touching the merits RP.856/04 - 5 - of their claims over the property in question and also touching the legality of the action of the Government in dispossessing the petitioners from the properties in question without paying adequate compensation to them in view of second proviso to Article 31-A of the Constitution. Even though Sri.Babu Thomas.K. learned counsel for the review petitioner endeavoured to address arguments on all the grounds raised in the memorandum of review, we are of the view that since leave has been granted by the Honourable Supreme Court to seek a review only on the question of maintainability of a regular suit before the civil court it will be enough that we consider the review petition in the context of maintainability of the prospective suit before the civil court. We will however, immediately notice that the other grounds do not appeal to this court's jurisdiction for review under Order 47 Rule 1 since it is settled that a review is by no means an appeal in disguise RP.856/04 - 6 - whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. We do not find any errors or mistake apparent on the face of the judgment under review or any other reason as envisaged by Order 47 Rule 1 justifying invocation of the jurisdiction for review within its well delineated contours. The argument of Mr.Babu Thomas K. was that the prospective suit will not be maintainable in view of Section 5 of the Kerala Forest Act, 1961. Section 5 of the Kerala Forest Act is quoted below for convenience: “5. Suits barred:- Except as hereinafter provided, no Civil Court shall between the dates of publication of the notification under Section 4, and of the notification to be issued under Section 19, entertain any suit against the Government to establish any right in or over any land, or to the forest produce of any land, included in the notification published under section 4.” Jurisdiction of the civil court under Section 9 of the Code of Civil Procedure is a very wide and all pervading one in that all suits of a civil nature except the suits of which RP.856/04 - 7 - cognizance is either expressly or impliedly barred can be entertained by the civil court. It is trite that lack of jurisdiction is not to be lightly inferred. It is the definite case of the petitioners who are the prospective plaintiffs that the subject property is not liable to be included in the relevant notification under Section 4 in view of the various documents relied on by them, such as Exts.P3 registered sale deed No. 138/1117 M.E. of SRO Devicolam, Ext.P4 proceedings dated 24-3-1117 M.E. for transfer of Registry, Ext.P5 sale deed No. 78/1121 M.E. of SRO Devicolam executed by the above transferor Sri.Damodaran in favour of Sri.C.Kesavan in respect of the subject properties and Ext.P6 to P19 subsequent sale deeds by which the properties changed hands. It was taking into account similar claims or other apparently strong claims raised by alleged encroachers of other properties covered by the public interest litigation case (OP. 10126/02) that the RP.856/04 - 8 - Division Bench relegated the parties therein including the first petitioner to a civil court. We are informed that a few civil suits were actually filed on the basis of the Division Bench's order dated 25-7-2002. The learned Senior Govt. Pleader appearing for respondents 1 to 11 Sri.P.I.Davis submitted that the Government did not raise any contention regarding the maintainability of those suits in view of the fact that the suits are filed on the basis of a direction given by the Division Bench. He made a submission before us also that the Government will not challenge the maintainability of suit if any filed by the petitioners pursuant to the judgment of this Court in the context of Section 5 of the Forest Act. The Government will only be resisting the claims of the petitioners on their merits. We record the above submission of the learned Government Pleader and dismiss the R.P. We feel that in order that the claims of the petitioners which are seriously in disputes are properly RP.856/04 - 9 - enquired into and adjudicated, adduction of evidence both oral and documentary is absolutely necessary. No prejudice is going to be occasioned to the petitioners by relegating them to the civil court since admittedly the petitioners are already dispossessed. RP is dismissed without any order as to cost clarifying however, that the time during which this RP was pending before this Court and a further period of one month from today will be excluded from the reckoning under section 14 of the Limitation Act for determining the question of limitation which may crop up in the suit. PIUS C.KURIAKOSE, JUDGE ANTONY DOMINIC, JUDGE ksv/-