PERUMPALAM GRAMA PANCHAYATH Vs. PRAKASHAN K M

JUDGEMENT

(1.) This review petition filed by Perumbalam Grama Panchayat arises out of the judgment of this Court dated 31.01.2017 in W.P.(C). No.11961 of 2016. 2. The 1st and 2nd respondents herein filed W.P.(C).No.11961 of 2016 seeking a writ of mandamus commanding the 4th, 5th and 6th respondents herein, who are the officers of the Irrigation Department and the State Water Transport Department, to abolish the temporary boat jetty at Sasthangal in Perumbalam Island, which is outside the limits of ferry boat service operated by the State Water Transport Department, and restore the ferry boat service to its original route Poothotta - Kalathode - Vathikkad with its original timings. 3. Going by the averments in the writ petition, the writ petitioners are permanent residents of Perumbalam Island in Cherthala Taluk. Though Perumbalam Island is part of Alappuzha District, it is geographically closer to Poothotta, which is the southern boundary of Ernakulam District. The petitioners and other residents of Perumbalam Island are mainly depending on the ferry boat service operated by the State Water Transport Department to reach the mainland. The normal running time of ferry boat service in the route Poothotta - Kalathode - Vathikkad is 14 minutes. The said ferry boat service is also being operated as ambulance service in case of emergency. In the year 2014, the boat jetty at Kalathode was closed down by the Irrigation Department for renovation and a temporary boat jetty was constructed at Sasthangal, just 150 meters away from the boat jetty at Kalathode. The renovation of the boat jetty at Kalathode was completed by the end of December, 2015 and the Department restored ferry boat service to that jetty. However, ferry boat service to the temporary jetty at Sasthangal was not stopped and the addition of that jetty in the ferry route is causing much hardship and inconvenience to the daily commuters. According to the petitioner, as evident from Ext.P1 map, the jetty at Poothotta and that at Kalathode situate almost diametrically opposite spots. Since the temporary jetty at Sasthangal at the eastern side of the jetty at Kalathode, is at a distance of 150 meters, the ferry boat has to take a deviation towards south in order to reach the temporary jetty and then come back to the original route. Such deviation will take at least 8 to 10 minutes, which will take more time at low tide. Though the daily commuters, under the leadership of 'Janakeeya Samara Samithi', submitted Ext.P3 representation dated 30.12.2015 before the 5th respondent herein, namely, the Director, State Transport Department, no steps were taken to redress the grievance of the public. Based on Ext.P4 application dated 2.2.2016 made by one resident of Perumbalam Island under the Right to information Act, 2005, Ext.P4(a) reply dated 2.2.2016 was issued by the Pubic Information Officer in the Office of the 4th respondent herein, in which it has been stated that, ferry boats are being operated through the temporary jetty at Sasthangal based on the oral direction of the 6th respondent herein, namely, the Traffic Superintendent, State Water Transport Department. In such circumstances, 'Janakeeya Samara Samithi' submitted Ext.P5 representation dated 13.3.3016 before the 4th respondent herein, namely, the Executive Engineer, Irrigation Department, seeking interference to close down the temporary jetty at Sasthangal. Thereafter, the writ petitioners moved this Court in W.P.(C).No.11961 of 2016 seeking various reliefs. 4. Originally, Perumbalam Grama Panchayat was not made a party to the writ petition. On 4.6.2016 this Court suo motu impleaded the Grama Panchayat as Addl. 6th respondent in the writ petition and issued notice to the said respondent before admission. Despite service of notice with hearing date as 29.8.2016, the Grama Panchayat has not chosen to enter appearance before this Court. 5. The counter affidavit filed on behalf of the 5th respondent herein, namely, the Director, State Water Transport Department, Alappuzha practically admitted the averments made in the writ petition, wherein it has been stated that the temporary jetty at Sasthangal was constructed in order to construct a new Reinforced Cement Concrete jetty (for brevity, 'RCC jetty') at Kalathode. The construction of RCC jetty was completed in November, 2015 and thereafter ferry service has been restored to the original route. According to the 5th respondent, it is upto the Irrigation Department to dismantle the temporary jetty after the construction of RCC jetty. In the meanwhile, the Grama Panchayat passed a resolution on 17.6.2015 for retaining the temporary jetty constructed at Sasthangal and for its transformation into RCC jetty, so that it will be convenient to the travelling public in the Panchayat. On the basis of the said resolution, a request was made to include the said jetty as a stop in the ferry service route. Based on such request, a detailed inspection was carried out and it was found that the temporary jetty near Sasthangal Temple in the present situation is not conducive for the boats to approach the jetty, taking into account the safety aspects also. If the Irrigation Department makes it suitable for approaching of the ferry boats and on that account if fitness is certified, ferry boats could be operated subject to the orders to be issued thereafter, taking into consideration the request made by the Panchayat. So far the Irrigation Department has not taken any steps to retain the temporary jetty or to transform the same into RCC jetty. 6. After considering the materials on record, this Court found that in view of the construction of permanent jetty at Kalathode, the temporary jetty at Sasthangal is unnecessary, which may cause hardship and inconvenience to those who are travelling daily in the ferry boat service to reach the mainland. This Court has also noticed that, according to the 5th respondent the temporary jetty constructed at Sasthangal is not conducive for the boats to approach, taking into account the safety aspect also. Accordingly, the writ petition was disposed of by the judgment dated 31.1.2017 by which the 3rd and 4th respondents herein were directed to close down the temporary jetty at Sasthangal as early as possible, but not later than the outer limit of four months from the date of receipt of a copy of the judgment. 7. Now, the review petitioner/Grama Panchayat is before this Court seeking review of the judgment dated 31.1.2017 in W.P.(C). No.11961 of 2016, contending that there is error apparent on the face of the record warranting review of the said judgment. 8. We heard the learned standing counsel appearing for the review petitioner/Addl. 6th respondent/Grama Panchayat, the learned counsel for the 1st and 2nd respondents/writ petitioners and also the learned Government Pleader for respondents 3 to 7. 9. In Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi [(1980) 2 SCC 167] the Apex Court held that, if the view adopted by the court in the original judgment is a possible view, having regard to what the record states; it is difficult to hold that there is error apparent on the face of the record. In Thungabhadra Industries Ltd v. Government of Andra Pradesh [AIR 1964 SC 1372] the Apex Court held that, review is, by no means an appeal in disguise, whereby an erroneous decision is reheard and corrected, but lies only for correcting patent errors. 10. In Parsion Devi v. Sumitri Devi [(1997) 8 SCC 715] the Apex Court, in the context of the power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 reiterated that, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order XLVII Rule 1 of the Code. In exercise of the jurisdiction under Order XLVII Rule 1 of the Code, it is not permissible for an erroneous decision to be 'reheard and corrected'. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'. Later, in Lily Thomas v. Union of India [(2006) 3 SCC 224] the Apex Court reiterated that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 11. In view of the law laid down by the Apex Court in the decisions referred to supra, the review jurisdiction under Order XLVII Rule 1 of the Code is very limited and unless there is mistake apparent on the face of the record, the judgment does not call for review. Further, whilst exercising such power of review, the Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code and that the limits within which the Courts can exercise the power of review have been well settled in a catena of decisions. 12. The review petitioner/Grama Panchayat is seeking review of the judgment dated 31.1.2017 in W.P.(C).No.11961/2016 mainly on the ground that under the provisions of the Travancore Public Canals and Public Ferries Act, 1096, the Grama Panchayat has the authority to define the limits of ferry and also to grant permission for erecting a temporary jetty in a public canal and the above legal position was not adverted to by this Court while rendering the judgment sought to be reviewed. As such, there is error apparent on the face of the record, warranting review of the said judgment. 13. The review petitioner/Grama Panchayat would also contend that, the sister of the 1st respondent/1st writ petitioner and also the 2nd respondent/2nd writ petitioner who are running stationery shops in the boat jetty at Kalathode have approached this Court with malafide intention, by suppressing material facts, under the initiative of a bogus organisation, namely, Kalathode Janakeeya Samara Samithi. Further, the temporary jetty at Sasthangal has already been reconstructed as a strong iron jetty spending an amount of 1,50,000/-, which is well connected by road with other parts of the Grama Panchayat, which is more convenient and easily accessible for the residents in Ward Nos.5 to 9. 14. Admittedly, the writ petitioners are permanent residents of Perumbalam Island. As discernible from the pleadings in the writ petition, their grievance highlighted in the writ petition was that the temporary jetty at Sasthangal, which is at a distance of 150 meters from the jetty at Kalathode, is causing inconvenience to the daily commuters, since the ferry boat has to take a deviation towards south for a distance of 150 metres in order to reach the temporary jetty at Sasthangal and then come back to the original route. According to the writ petitioners, such deviation takes at least 8 to 10 minutes, which will be more at low tide. The said fact is virtually admitted by the review petitioner/Grama Panchayat in Ground B of the review petition, by contending that such deviation will not take more than 5 minutes. Therefore, merely for the reason that the sister of the 1st writ petitioner and also the 2nd writ petitioner are running stationery shops in the boat jetty at Kalathode, it cannot be contended that they have approached this Court with malafide intention. 15. The Travancore Public Canals and Public Ferries Act, 1096 (for brevity, 'the Travancore Act') is an enactment to provide for the establishment of public canals and public ferries, for the management thereof, and for the regulation of the traffic therein. The said enactment had undergone an amendment by the Kerala Decentralisation of Powers Act, 2000 (Act 16 of 2000), to give effect to certain decentralisation proposals made by the State Government. Chapter III of the Travancore Act deals with public ferries and tolls. Section 11 of the said Act, after its substitution by Act 16 of 2000, empowers the Municipality or the Panchayat to issue notification, to declare any ferry across a public canal to be subject to the provisions of the said Act from a date to be named in such notification; and may define the limits of such ferry, and may, in like manner, cancel or modify any such notification. From such date, it is unlawful for any person, not duly authorised to convey goods, animals or passenger by means of vessels across such canal within such limits while such notification is in force. 16. Section 12A of the Travancore Act, added by Act 16 of 2000, provides that all the existing ferries of the Government shall by virtue of this Section be transferred to the concerned Municipality or the Panchayat as the case may be. Section 14A of the Travancore Act, added by Act 16 of 2000 empower the Government to take action for the default committed by a Panchayat or a Municipality in performing the duty imposed by or under the said Act or in carrying out any orders lawfully issued by the Government. 17. Section 15 of the Travancore Act authorise any person duly empowered by the Government to board any vessel at any time and inspect the same and every part thereof and the machinery and all equipments on board thereof. Such authorised person is also empowered, in case of emergency, to remove from any public canal any obstruction contrivance for fishing or any over hanging tree or other thing which is an impediment to or likely to endanger navigation; or in other cases, serve notice upon the owner, if any, to remove any such thing within a reasonable time to be stated in the notice. Such an officer is also empowered to prohibit the construction of any contrivance for fishing or for any other purpose in a public canal, or any erection therein or on a tow path or other land appurtenant thereto. 18. Section 16 of the Travancore Act empowers the prescribed authority to grant permission for temporary occupation of a canal or canal bank or to erect temporary jet basins, etc. in a canal. As per Section 16, subject to the rules made by the Government, it shall be lawful for the prescribed authority to grant permission to any person or persons for the temporary occupation of a portion of a canal or canal bank for making any temporary erection thereon or for handling goods or passengers, subject to such conditions as he may prescribe for the safety or convenience of persons passing by or dwelling or working in the neighbourhood or of the interest of the Government, and may at his discretion withdraw such permission. Going by the second paragraph of Section 16, notwithstanding anything contained in the first paragraph of that Section, it shall be lawful for any Municipal or other local authority to exercise the powers mentioned in the first paragraph if the canal bank vests in such authority. 19. In the instant case, it is not in dispute that, the temporary jetty at Sasthangal was constructed in the year 2014 when the boat jetty at Kalathode was closed down by the Irrigation Department for renovation. Therefore, once the renovation of the boat jetty at Kalathode was completed by the end of December, 2015 and the Department has already restored ferry boat service to that jetty, the temporary jetty at Sasthangal should have been closed down. In the counter affidavit filed by the 5th respondent herein, namely, the Director, State Water Transport Department, Alappuzha, it has been stated that, on a detailed inspection it was found that the temporary jetty at Sasthangal was not conducive for the boats to approach, taking into account the safety aspects also. In the said counter affidavit it has also been stated that, if the Irrigation Department makes the temporary jetty at Sasthangal suitable for approaching of the ferry boats and on that account if fitness is certified, ferry boats could be operated subject to the orders to be issued thereafter, taking into consideration the request made by the Panchayat. The specific stand taken in the said counter affidavit was that, till that date the Irrigation Department has not taken steps to retain the temporary jetty or to transform the same into RCC jetty. 20. In the review petition, the Grama Panchayat has no case that, the statements made as above in the counter affidavit filed by the 5th respondent herein were factually incorrect. The review petitioner/Grama Panchayat has also no case that the so called reconstruction of the temporary jetty at Sasthangal was made or the decision to retain the said jetty was taken prior to the the judgment of this Court dated 31.1.2017 in W.P.(C).No.11961/2016. 21. On a specific query made by us during the course of hearing, the learned Standing Counsel for the review petitioner/Grama Panchayat has fairly submitted that, till date the Grama Panchayat has not issued any notification under Section 11 of the Travancore Act, notifying the jetty at Sasthangal. We also notice that, since the review petitioner/Grama Panchayat intends to make the temporary jetty at Sasthangal as a permanent one, the provisions under Section 16 of the Act has no application at all. 22. Rule 3 of the Kerala Panchayat Raj (Conduct of Cases and Payment of Fees to Legal Advisers) Rules, 2003, enables the Panchayat to engage a lawyer for the conduct of its cases before this Court. However, in spite of receipt of notice in the writ petition, the review petitioner/Grama Panchayat has chosen to remain absent. Going by sub-rule (3) of Rule 3 of the said Rules, only where the interests of the Government and the Panchayat are the same, the Panchayat may, with the permission of the Government, entrust the conduct of case on behalf of the Panchayat with the same advocate engaged for the Government. Therefore, the reasons stated in the review petition would not satisfactorily explain the non-appearance of the review petitioner/Grama Panchayat before this Court, in spite of the receipt of notice in the writ petition. 23. This Court, after considering the materials on record, found that in view of the construction of permanent jetty at Kalathode, the temporary jetty at Sasthangal is unnecessary, which may cause hardship and inconvenience to those who are travelling daily in the ferry boat service to reach the mainland. This Court has also noticed the stand taken by the 5th respondent herein that the temporary jetty at Sasthangal was not conducive for the boats to approach, taking into account the safety aspect also. Accordingly, the writ petition was disposed of by the judgment dated 31.1.2017 by directing the 3rd and 4th respondents herein to close down the temporary jetty at Sasthangal as early as possible, but not later than the outer limit of four months from the date of receipt of a copy of the judgment. 24. Viewed in the light of the law laid down by the Apex Court in the decisions referred to supra, none of the grounds raised in the Review Petition fall within the ambit and scope of Order XLVII Rule 1 of the Code. Since review jurisdiction does not permit rehearing of the matter on merits, in the absence of any mistake or error apparent on the face of the record pointed out in the judgment of this Court dated 31.01.2017 in W.P.(C).No.11961 of 2016, this review petition fails and the same is accordingly dismissed. No order as to costs.