IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD DECEMBER 2009 / 2ND POUSHA 1931 RP.No. 1234 of 2009() --------------------- AGAINST THE ORDER Dated 16/11/2009 IN IA NO.2222/2009 IN I.A.NO.307/2009 IN RSA.169/2009 .................... REVIEW PETITIONER(S)/RESPONDENTS 1 TO 4/PETITIONERS/APPELLANTS: ---------------------- 1. ST. GEORGE TABORE CHURCH, PEECHANIKKADU, REP. BY THE REV. FR. T.V.ELDOSE S/O.T.V.VARGHESE, AGED 35, THILAPPILLY HOUSE, PEECHANIKADU, PULIYANAM P.O., ANGAMALY. 2. RAJU VARGHESE, S/O.VARKEY PILLAI, KAIPPARAMBATTU HOUSE, PEECHANIKADU, PULIYANAM P.O., ANGAMALY. 3. M.P.MATHIA, S/O.POULOSE, MEELAN HOUSE, PEECHANIKADU, PULIYANAM P.O., ANGAMALY. 4. ST.GEORGE TABORE CHURCH, REP. BY TRUSTEE, A.C.POULOSE, S/O.CHANKKO, ALUKKEL VEEDU, VATTAPARAMBU, ANGAMALY. BY ADV. SRI.B.G.BHASKAR SRI BIJU ABRAHAM RESPONDENT(S)/PETITIOENRS/RESPONDENTS 3 TO 6/RESPONDENTS 3 TO 6: --------------- 1. P.I.RAJU, AGED 50 YEARS, S/O.ISSAC, PYNADATHU HOUSE, PEECHANIKKAD, PULIYANAM P.O., ANGAMALY. 2. T.A.JOY, AGED 72 YEARS, S/O.T.J.POULOSE, THELAPPILLY HOUSE, PEECHANIKKAD, PULIYANAM P.O., ANGAMALY. 3. ST.GEORGE TABORE CHURCH, RPE. BY TRUSTEE, A.V.JACOB, S/O.A.C.VARGHESE, ALUKKAL VEEDU, VATTAPPARAMBU, ANGAMALY. 4. REV. FR. A.V.ITTOOP ALUKKAL, AGED 60 YEARS, S/O.VARGHESE, ALUKKAL HOUSE, KAVARAPARAMBU, NAYATHODU P.O., ANGAMALY. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in R.S.A. NO. 169 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 23rd day of December, 2009 O R D E R ----------- Appellants have filed R.P. No.1234 of 2009 seeking review of the order dated 16.11.2009 passed by this Court on I.A. 2222 of 2009 modifying the order of injunction passed by this Court on 27.4.2009 on I.A. No.307 of 2009. That order was passed on the request of respondents in the appeal that in respect of the School that is already in existence and functioning, they need to get CBSE affiliation for which it is necessary that a ground having an extent of 1.20 to 3 hectares is to be provided. It was pointed out that some of the trees standing in the 1.21 hectares now available on lease arrangement are to be cut and removed to facilitate construction of the ground. After hearing counsel on both sides I passed order on 16.11.2009 allowing the application on the terms and conditions stipulated therein. A Commissioner was also appointed to oversee cutting and removal of trees and to sell the timber. It is seeking review of the said order that the R.P. is filed. In the petition it is stated that present suit is one R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 2 :- against commission of waste and that the dispute concerning the right of the parties is not involved in this matter. It is also stated that trees which are directed to be cut and removed do not belong to the Church but to a separate entity, a Society registered under the Societies Registration Act over which appellants have no control. It is also stated that this court failed to give effect to the fact that the alleged act of appellants is a fraudulent device to get the properties from the appellants. 2. I.A. No.2970 of 2009 is filed by respondents seeking clarification of the order dated 16.11.2009 in that in the said order it was stated that the 1.21 hectares referred to in the order is situated within compound wall but the property in respect of which permission is sought for is not confined within the compound wall alone. Therefore clarification required is that notwithstanding existence of compound wall permission may be granted in respect of the 1.21 hectares covered by the lease deed. It is also prayed in the application that respondents may be permitted to level the existing property so that the ground can be constructed for the School as required under the relevant rules for getting CBSE affiliation. 3. I.A.No.2970 of 2009 is opposed by counsel for appellants. Learned counsel submits that properties are now R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 3 :- lying in different plots and the level difference is even upto 20 feet that levelling is not possible without affecting the existing structures, attempt of respondents is to remove the existing structures and hence levelling of the ground in the circumstances is not possible. In view of that objection, Advocate Commissioner was directed to inspect the properties and submit an interim report as to whether levelling of plots is possible without affecting the existing structures. Commissioner has submitted an interim report. 4. Learned counsel for appellants requested time to file objection to the interim report filed by the Commissioner. This is opposed by the respondents on the ground that attempt of the appellants is to some way prolong the matter so that the time limit for applying for CBSE affiliation runs out. Counsel submits that it is only after ground is constructed that application could be preferred for CBSE affiliation which is to be done in December, 2009 – January, 2010 and time is running out. 5. I have heard counsel for the appellants on their objection to the interim report. Learned counsel asserts that levelling of the different plots is not possible without affecting the structures. It is also submitted that in paragraph 9 of the interim report the Commissioner has reported that levelling would affect R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 4 :- the existing structures. Counsel for respondents would submit that it is not necessary to level plot 'D' in the sketch prepared by the Advocate Commissioner, what is required is only levelling of plots A, B and C in the sense that levelling is required towards southern portion of plot B and western portion of plot A so that plots A, B and C will be in the same level and that would facilitate construction of the ground. It is also submitted by learned counsel that level difference at that portion is only 1 ½ to 2 feet so that structures will not be affected. According to learned counsel only an old bath room consisting of three rooms and a smoke house with one room and verandha situated on the southern portion of plot B alone is required to be demolished. Learned counsel submits that the School is prepared to construct a new bath room and smoke house at a convenient place as suggested by the Church at the expenses of the School. I have heard Advocate Commissioner also. Advocate Commissioner has explained that though in paragraph 9 of the report he stated that levelling would affect the structures, if the levelling is done towards the southern portion of plot B, only the bathroom and smoke house situated at that portion of plot B alone would be affected which fact is stated in paragraph 9 of the report itself. Another objection raised by learned counsel for appellants is that R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 5 :- towards eastern portion of plot B there is a water tank which is used by the public and that levelling of the ground would affect that water tank also. In response it is submitted by learned counsel for respondents that the said water tank will not be touched or affected by the levelling of the ground. Yet another objection raised is that the order passed by this Court on 16.11.2009 would result in removal of a large number of teak and coconut trees standing in plot A. According to the respondents teak trees are of 4 to 5 years old. Advocate Commissioner has not reported the age of the trees in the interim report but states the age of the teak trees in the same way when asked about that. 6. So far as the request for review of the order is concerned, the order was passed after hearing both sides. I made it clear in the order that CBSE affiliation if obtained by the School will not in any way affect the right of the parties and it will be for the benefit of all persons concerned. I also made it clear that the order will not absolve respondents from obtaining permission of the lessor and such other authorities. The correctness of the order cannot be challenged by a review. I do not find reason to review the order dated 16.11.2009. But I make it clear that CBSE affiliation if obtained will be subject to the rights of the parties to be decided in appropriate proceedings R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 6 :- which, in my view would safeguard the interest of the parties. 7. As regards the clarification sought as per I.A. No.2970 of 2009 while passing order on 16.11.2009 it was stated that the 1.21 hectares in respect of which permission is granted is situated within the compound wall which counsel for respondents submit is not correct and that the 1.21 hectares would extent beyond the compound wall also. I have already granted permission in respect of 1.21 hectares. Hence it is clarified that the permission granted as per order dated 16.11.2009 is in respect of the 1.21 hectares. 8. So far as the request for levelling of the ground is concerned, permissions is granted subject to the consent of the lessor and any other authority as provided under law, in the following lines: (i) Permission is granted to level the southern portion of plot B and western portion of plot A in the sketch produced by the Advocate Commissioner along with the interim report dated 23.12.2009 so that plots A, B and C come in the same level. This shall be done without affecting any of the structures except R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 7 :- removal of the bath room and smoke house situated in the southern portion of plot B but subject to the further condition that it will be at the risk and cost of respondents and further that if the Church demanded construction of a new bath room and smoke house respondents shall construct a bath room and smoke house of the same dimension at their expenses. It is made clear that removal of the bathroom and smoke house will also be subject to the rights of the parties to be decided in appropriate proceedings. (ii) It is made clear that permission granted hereby will not in any way entitle the respondents to level any plot other than plots A to C or to affect any structures other than mentioned in clause (i) above. (iii) Levelling of plots A to C as above stated which I am told by learned counsel for respondents will not exceed a height of 1 ½ – 2 feet shall be done under the supervision of the Advocate Commissioner. R.P. No.1234 of 2009 and I.A. No.2970 of 2009 in RSA No.169/2009 -: 8 :- (iv) After the work is over it will be open to the Advocate Commissioner to seek additional batta. (v) Advocate Commissioner shall submit his final report after the work is over. 9. It is further made clear that permission granted by this Court as per this order as well as the order dated 16.11.2009 will not absolve the respondents from obtaining permission from the lessor or any other authority, as provided under law in force if such a course is found necessary. Resultantly, R.P.No.1234 of 2009 is dismissed. I.A.No.2970 of 2009 is disposed of as above. THOMAS P.JOSEPH, JUDGE. vsv