The Corporation of Chennai vs Kantha Srinivasan

Introductory:

This is a strange, rather a unique review petition filed by Chennai City Municipal Corporation after succeeding in the writ petition filed by an encroacher, challenging the eviction order passed by the Corporation directing removal of a temple located in public property adjacent to the main entrance of the High Court Building.

Brief Facts:

The first respondent herein constructed a temple in the land owned by Chennai Corporation just opposite to the High Court. The Chennai Corporation issued a notice dated 28 November 2010 directing the first respondent to remove the temple within a period of fifteen days. The writ petition preferred by the first respondent challenging the order was dismissed by this Court by order dated 16 December 2013 in W.P.No. 28941 of 2010. The first respondent failed to challenge the said order and as such it has become final. Unfortunately, Chennai Corporation, who is the authority to enforce its earlier order of demolition has come up with this review petition for reasons best known to them only.

We have heard Mr. R. Arunmozhi, learned Standing Counsel for Chennai Corporation.

Discussion:

This matter has got a chequered history. The fourth respondent filed a writ petition in W.P.No. 20192 of 2008 to remove the encroachment made by the first respondent. This Court directed Chennai Corporation to take action in accordance with law. The first respondent thereafter filed a review petition seeking review of the order in W.P.No. 20192 of 2008. This Court allowed the review petition and issued a direction to the Corporation to afford an opportunity of hearing to the first respondent and pass appropriate orders on merits. The first respondent thereafter filed a writ petition in W.P.No. 17722 of 2010 to restrain Chennai Corporation from interfering with the activities of the temple. The said writ petition was disposed of by this Court.

The Corporation in the meantime issued a notice to the first respondent dated 28 November, 2010 directing removal of the temple within a period of fifteen days. The said notice was challenged in W.P.No. 28941 of 2010. This Court considered the submissions made on behalf of the first respondent, fourth respondent and Chennai Corporation and dismissed the writ petition on merits. The first respondent instead of executing its own order dated 28 November, 2010 has come up with this review petition presumably to help the encroacher to retain the illegal structure constructed in a public place.

The review petition is filed primarily on the ground that the Corporation has formulated a comprehensive policy regarding removal, relocation and regularization of unauthorised constructions of religious structures and it was notified by the Government in G.O.Ms.No. 437, Revenue Department dated 13 September 2010. According to Chennai Corporation, eviction of religious structures should be carried out in accordance with the policy formulated by the Government. The said policy which was notified in G.O.Ms.No. 437, Revenue Department dated 13 September 2010 contained the measures to be taken for eviction of encroachers. It is a matter of record that only after formulating the said policy, the Corporation issued the notice dated 28 November 2010 directing the first respondent to remove the structure within a period of fifteen days, which was unsuccessfully challenged in W.P.No. 28941 of 2010.

The review petitioners took action against the first respondent in accordance with the provisions of Chennai City Municipal Corporation Act and in the light of the policy formulated by the Government for eviction. The petitioners have no case that the first respondent is not an encroacher. The order passed by the Chennai Corporation and the earlier proceedings very clearly shows that the first respondent constructed the temple in question by encroaching the Government property. The road opposite to the High Court is reduced to a great extent on account of the temple constructed by the first respondent.

There is no error apparent on the face of record so as to review our earlier order. The petitioner in an application for review should demonstrate that review is necessary on account of discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him or there is a mistake or error apparent on the face of record or any other sufficient reason.

The policy in the subject case was there even when the Corporation issued notice on 28 November 2010. Therefore it cannot be said that review is necessary on account of discovery of new and important matter. There is absolutely no mistake or error apparent on the face of record to review the order. Similarly there is no other sufficient reason to review our earlier order.

The Chennai Corporation appears to have taken up the responsibility of filing the review petition so as to enable the first respondent to retain the private temple constructed in public property. We strongly deprecate the conduct of the City Municipal Corporation in coming with this review petition to delay the demolition of illegal structure in spite of passing an order to the said effect by this Court as early as on 16 December 2013.

The Corporation is expected to protect public property. The public should be permitted to use the road. The roads are not meant for construction of temple, mosque or church. We have, in our order in W.P.No. 28941 of 2010 made it clear that the Corporation was fully correct in directing removal of the temple building, as it would deny the public, usage of the road. The petitioners instead of protecting the interest of the Corporation is now indulging in acts like filing review petition without there being any adverse order against them.

The Supreme Court in Kamlesh Verma Vs. Mayawati and Others, indicated the principles regarding review thus:

"20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki (1992) 16 Law Weekly 37 and approved by this Court in Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". The same principles have been reiterated in Union of India (UOI) Vs. Sandur Manganese and Iron Ores Ltd. and Others, .

2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

(iii) Review proceedings cannot be equated with the original hearing of the case.

(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

(vi) The mere possibility of two views on the subject cannot be a ground for review.

(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.

(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."

The petitioners now wanted this Court to rehear the matter in spite of the fact that they have succeeded in the writ petition. Public money is wasted by filing the review petition. In any case, there are no grounds made out by the petitioners to review our order dated 16 December 2013 in W.P.No. 28941 of 2010.

In the upshot, we dismiss the review petition. Consequently, the connected MP is closed. No costs.