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1993 DIGILAW 337 (KER)

Mathai v. Anna

1993-07-21

P.A.MOHAMMED

body1993
JUDGMENT P.A. Mohammed, J. 1. The petitioner in this writ petition claims to be a 'cultivating tenant' in respect of five acres of land. He filed an application O. A. No 240/71 before the Land Tribunal for assignment of jenmom rights under S.72B of the Kerala Land Reforms Act (for short 'the Act'). That application was dismissed on the ground that respondents 1 and 2 had already obtained purchase certificate in respect of the very same land. As against the said order of the Land Tribunal, the petitioner filed an appeal before the third respondent under S.102 of the Act. That appeal happened to be dismissed on the ground of a submission made by the petitioner's counsel to the effect that appeal was not pressed. Ext. P1 is the copy of the judgment. Since the submission made before the Appellate Authority was due to an inadvertent mistake on the part of the counsel, the petitioner prepared a review petition and attempted to file it before the Appellate Authority. Ext. P2 is the copy of the said review petition. However that petition was not entertained by the office and it was returned without assigning any reason. It was in that situation the present writ petition was filed. (The original of the review petition along with the Vakalath of the advocate was separately produced in this original petition). 2. Heard learned counsel appearing for the petitioner as well as the Government Pleader on behalf of the respondents 3 and 4. Though the notice was taken out to respondents 1 and 2, there was no appearance on behalf of them. 3. The main contention advanced on behalf of the petitioner is that the Appellate Authority has ample power to review its own order or correct an inadvertent mistaken submission. Argument is that manifest injustice would be caused to the petitioner in case Ext. P1 judgment is not allowed to be corrected as prayed for. He further pleads that the provisions of the Act do not authorise the Appellate Authority to review its own order and therefore the remedy under Art.226 and 227 alone is available. 4. The Supreme Court in Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji ( AIR 1970 SC 1273 ) while dealing with power of review observed: "It is well settled that the power to review is not an inherent power. 4. The Supreme Court in Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji ( AIR 1970 SC 1273 ) while dealing with power of review observed: "It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication.'. However, this decision was distinguished by the Supreme Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal (AIR 1981 SC 696) as below: "We are unable to appreciate the contention that merely because the ex parte award was based on the statement of the manager of the appellant, the order setting aside the ex parte award, in fact, amounts to review. The decision in Narshi Thakershi v. Pradyumansinghji AIR 1970 SC 1273 is distinguishable. It is an authority for the proposition that the power of review is not an inherent power, it must be conferred either specifically or by necessary implication. Sub-s.(1) and (3) of S.11 of the Act themselves make a distinction between procedure and powers of the Tribunal under the Act, while the procedure is left to be devised by the Tribunal to suit carrying out its functions under the Act, the powers of civil court conferred upon it are clearly defined. The question whether a party must be heard before it is proceeded against is one of procedure and not of power in the sense in which the words are used in S.11. The answer to the question is, therefore, to be found in sub-s.(1) of S.11 and not in sub-s.(3) of S.11. Furthermore, different considerations arise on review. The expression 'review' is used in two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a statute specifically provides for it, obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debi ojustitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal." 5. M. P. Menon, J. while dealing with power of the Rent Control Court to restore an application dismissed for default, in Cheru Ouseph v. Kunjipathumma ( 1981 KLT 495 ) held: "...... in respect of procedural matters, all powers which are not specifically denied by the statute or the statutory rules, should be vouchsafed to a Tribunal so that it may effectively exercise its judicial function." With respect I agree with the above view expressed by the learned judge in so far as the power of the Tribunals in procedural matters. 6. Balakrishna Menon, J. in Chandrasekharan v. Jennat ( 1981 KLT 912 ) while considering the power of the Land Tribunal to review its order passed under S.101 on merits, has very vividly observed : "The review sought for is on the merits of the case. What is sought for is not a review in the nature of correction of a procedural mistake. Such power of review to correct a procedural mistake is inherent in every Tribunal. But a power of review of the nature sought for in the present proceedings on the merits of the case should be one conferred by the statute under which the Tribunal is constituted. There is no such power of review conferred on the Land Tribunal by the Kerala Land Reforms Act or the rules made thereunder." 7. What emerges from the above discussion is that the Land Tribunal has power to review its own order if there is an apparent mistake in the procedural matter. The position is not different in the case of the appellate authority constituted under S.99A of the Act. There is no express provision either in the Act or in the Rules forbidding review of its order by the Land Tribunal or appellate authority. However, the review of decisions entered on merits cannot be entertained in as much as it involves substantive process. The order involved in the procedural matter can be reviewed if such order resulted in manifest injustice. 8. The question then remains to be considered is whether Ext. P1 judgment of the appellate authority can be reviewed for the reasons disclosed in this case. The appeal preferred by the petitioner was dismissed not on merits; but purely on the basis of a submission made by the petitioner's counsel himself to the effect that the appeal was not pressed. The question then remains to be considered is whether Ext. P1 judgment of the appellate authority can be reviewed for the reasons disclosed in this case. The appeal preferred by the petitioner was dismissed not on merits; but purely on the basis of a submission made by the petitioner's counsel himself to the effect that the appeal was not pressed. The submission of the counsel was found to be an inadvertent mistake. This is a procedural mistake because it is something connected with pleading and proof, which are the normal elements of judicial procedure. Pleadings are necessary for the resoluteness of the dispute and the proof is the process by which the materials are supplied. Therefore it can safely be said that the mistaken submission made by the petitioner's counsel in the process of supplying materials to the appellate authority in the present case is a mistake in the procedural matter. That being so, the mistake can be rectified by reviewing Ext. P1 judgment by invoking the inherent power of the Appellate Authority. 9. Next is what is the order to be passed in this case. I am conscious of the fact that there was no order by the Appellate Authority on Ext. P2 petition for review in as much as it was not entertained by the office. In that situation, the proper order would be to direct the Appellate Authority to entertain Ext. P2 review petition and take a final decision expeditiously in view of what is expressed above. 10. Finally I direct the office to return the original of the review petition presented to this court along with the writ petition for producing the same before the Appellate Authority. The Original Petition is disposed of as above. No order as to costs.