A.K. Nazar vs K.H. Abdul Majeed And Ors

The third respondent in the writ petition seeks review of the judgment. The parties and documents are referred to in this order, as they appear in the writ petition.

The petitioners obtained building permit B.A.No.755/2011 during 2012 from the first respondent Municipality for construction of a building in a land stated to be owned and possessed by them measuring 31.59 cents. The mother of the third respondent challenged the building permit before the Tribunal in Appeal No.225 of 2011 on the ground mainly that the petitioners do not have title to the land over which the building is proposed by them. The case set out by the mother of the third respondent in the appeal was that the building is proposed by the petitioners in a portion of her land also, which is situated on the southern side of the land of the petitioners. It was pointed out by the mother of the third respondent in the appeal that she had already filed a suit for recovery of possession of her land from the petitioners as O.S.No.293 of 2010 before the Sub Court, Ernakulam, and the said suit is pending. The Tribunal allowed Appeal No.225 of 2011 and directed the second respondent to reconsider the application for building permit submitted by the petitioners. The petitioners challenged the decision of the Tribunal before this Court in W.P.(C)No.21526 of 2013. Later, the mother of the third respondent filed a writ petition as W.P.(C)No.19911 of 2015 before this Court, alleging that the petitioners have fraudulently obtained transfer of registry in respect of lands which do not belong to them. In the meanwhile, the third respondent had instituted W.P.(C)No.19733 of 2014 seeking directions to the Director of Vigilance and Anti-Corruption Bureau to consider a complaint preferred by him concerning the alleged illegalities committed by the revenue officials in the matter of effecting mutation in respect of lands belonging to his mother in favour of the petitioners. The aforesaid writ petitions were disposed of by this Court as per Ext.P4 judgment. In Ext.P4 judgment, having regard to the facts and circumstances of the case, this Court took the view that it may not be appropriate to interdict the construction proposed by the petitioners till the final disposal of O.S.No.293 of 2010 and consequently, permitted the petitioners to file a fresh application for construction and directed the second respondent, the Secretary of the Municipality to consider and pass appropriate orders on that application. Though Ext.P4 judgment has been challenged by the third respondent in W.A.Nos.246 of 2018, 2427 of 2017 and 1934 of 2017, there was no interim order in the said matters. The petitioners, in the circumstances, preferred an application for renewal of building permit, B.A.No.755 of 2011, and the second respondent renewed the said building permit in the light of Ext.P4 judgment, as per Ext.P6 order subject to a few conditions, including the condition that there shall not be any construction in the disputed land and that if it is later found by the court that any construction has been carried out in the land owned by the mother of the third respondent, the same is liable to be removed. Ext.P6 renewed permit issued on 28.10.2017 was valid only till 04.12.2018. On 30.11.2018, the petitioners preferred an application for renewal of Ext.P6. By Ext.P13 order, the second respondent renewed Ext.P6 permit for the period upto 04.12.2021. The third respondent thereupon filed Ext.P18 appeal before the Tribunal challenging Ext.P13 order. Along with Ext.P18 appeal, third respondent preferred Ext.P19 application for appointment of an Advocate Commissioner for conducting a local inspection and Ext.P20 application seeking stay of the operation of Ext.P13 renewed building permit. The petitioners were issued Ext.P22 notice initially by the Tribunal in Ext.P18 appeal calling upon them to appear before the Tribunal on 17.11.2020. While so, the petitioners received Ext.P23 notice from the Advocate Commissioner appointed by the Tribunal in Ext.P19 application to conduct local inspection, informing them that he will be inspecting the site of the building on 02.11.2020. Immediately thereafter, the petitioners received another notice also from the Tribunal informing them that the hearing of the appeal stands advanced to 02.11.2020, the date on which, the Advocate Commissioner has informed them that he would be inspecting the site of the building. Ext.P24 is the notice issued in this regard. The petitioners have approached this court at that point of time with the writ petition, seeking among others, orders quashing Exts.P22 and P24 notices; restraining the Tribunal from considering Ext.P18 appeal and orders restraining the Tribunal from proceeding with Ext.P20 application.

This Court found that the petitioners are not entitled to any relief in respect of Exts.P22 and P24 notices and that this Court would not be justified in restraining the Tribunal from considering Ext.P18 appeal. However, as regards the prayer sought in respect of Ext.P19 application which was found to be wrongly mentioned in the prayer portion of the writ petition as Ext.P20 application, this Court found that the Tribunal was not justified in allowing the said application without notice to the petitioners. Consequently, the writ petition was disposed of setting aside the order passed on Ext.P19 application appointing the Advocate Commissioner and directing the Tribunal to consider Ext.P19 application afresh, after affording the petitioners an opportunity to raise objections. The third respondent seeks in this proceedings, review of that part of the judgment.

Heard the learned counsel for the third respondent and the learned counsel for the petitioners.

The learned counsel for the third respondent contended that no relief whatsoever should have been granted by this court to the petitioners in as much as they have not sought any relief in respect of Ext.P19 application. It was also contended by the learned counsel that at any rate, this Court was not justified in setting aside the order appointing the Advocate Commissioner in as much as the same was not produced by the petitioners in the writ petition. The learned counsel has relied on the decision of the Apex Court in Chandigarh Administration v. Laxman Roller Flour Mills Pvt. Ltd., (1998) 8 SCC 326, in support of the said proposition. The learned counsel also contended that the observation of this Court in the judgment sought to be reviewed that it is doubtful as to whether the Tribunal is empowered to appoint an Advocate Commissioner for local inspection would cause serious prejudice to the third respondent in as much as the Tribunal, notwithstanding the remand, would be compelled to dismiss Ext.P19 application as not maintainable. It was also contended by the learned counsel that the finding rendered by this court that there is only a bald statement in the affidavit filed in support of the application for appointment of the Advocate Commissioner is erroneous in as much as the illegalities of the construction undertaken by the petitioners have been specifically mentioned by the third respondent in the memorandum of appeal preferred before the Tribunal.

I have considered the contentions put forward by the learned counsel for the review petitioner.

Prayer (iii) of the writ petition reads thus:

"Issue a writ, order or direction in the nature of prohibition or any other appropriate writ, order or direction against the 4th respondent in proceeding with Ext.P20."

Ext.P20 in the writ petition is the application preferred by the third respondent for stay of operation of the impugned building permit. Ext.P21 is the order passed on Ext.P20 application. No grounds whatsoever is raised in the writ petition concerning the maintainability of Ext.P20 application or the sustainability of Ext.P21 order passed by the Tribunal on Ext.P20 application. On the other hand, grounds E, F and G in the writ petition are grounds concerning the maintainability of Ext.P19 application. It was therefore evident that prayer (iii) in the writ petition is in respect of Ext.P19 application, and is erroneously shown as Ext.P20 in the prayer portion of the writ petition. As it was found that the petitioners are, in fact, seeking relief in respect of Ext.P19 application and that the said application was mentioned in the prayer portion of the writ petition as Ext.P20 by mistake, this court granted relief to the petitioners in respect of the said application. I do not think that the aforesaid is an error warranting correction in any jurisdiction much less in review jurisdiction. When the materials on record indicate beyond doubt that there is a mistake in the prayer portion of the writ petition, according to me, this court is bound to ignore the said mistake and grant relief to the petitioners which they are entitled to.

True, the petitioners have not produced the order passed by the Tribunal in Ext.P19 application. As revealed from the judgment sought to be reviewed, the point considered was only as to whether the Tribunal was justified in appointing an Advocate Commissioner ex parte in Ext.P19 application. On an evaluation of the materials on record, it was felt by this court that the Tribunal was not justified in appointing an Advocate Commissioner ex parte in Ext.P19 application and Ext.P19 application was therefore remitted for reconsideration. Insofar as there is no dispute to the fact that the order on Ext.P19 application was an ex parte one, according to me, non production of the said ex parte order was not fatal at all. In Chandigarh Administration, it was held by the Apex Court that the High Court would not be justified in issuing any order in excess of the relief prayed for in the writ petition. The said judgment has no application to the facts of the present case as it was found by this court on facts that the petitioners have in fact claimed relief in respect of Ext.P19 application.

As noted, this Court did not consider the maintainability of Ext.P19 application or the sustainability of the relief claimed by the third respondent in the said application. This court only considered the question as to whether the Tribunal was justified in appointing an Advocate Commissioner ex parte in the said application. Of course, while considering the said question, this Court entertained a doubt as to the maintainability of such an application also. The apprehension of the third respondent that since this court made an observation in the judgment about the said doubt, the Tribunal will only dismiss the application is without any basis. The apprehension of the third respondent that since it was found by this court that there is only a bald statement in the affidavit filed in support of the application for appointment of the Advocate Commissioner, the Tribunal would dismiss the application is also without any basis. Insofar as the maintainability of Ext.P19 application and sustainability of the relief claimed therein have not been considered by this court, the Tribunal is free to take any decision on the said issues pursuant to the judgment sought to be reviewed.

The review petition, in the circumstances, is dismissed with the aforesaid observations.