Kerala High Court
M.A. Joseph vs The State Of Kerala on 23 August, 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
SATURDAY, THE 23RD DAY OF AUGUST 2025 / 1ST BHADRA, 1947
RP NO. 1279 OF 2024
AGAINST THE JUDGMENT DATED 08.08.2024 IN RSA NO.614 OF 2022 OF
HIGH COURT OF KERALA
REVIEW PETITIONER/APPELLANT/APPELLANT/PLAINTIFF:
M.A. JOSEPH
AGED 90 YEARS
S/O ALEXANDER, MALIAKAKAL HOUSE, PALLURUTHY, KOCHI. 6,
PIN - 682006
BY ADVS.
SHRI.ABRAHAM K GEORGE
SMT.SINDHU SANTHALINGAM
SHRI.A.D.SHAJAN
RESPONDENTS/RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 THE STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 THE REVENUE DIVISIONAL OFFICER
FORT KOCHI, PIN - 682001
3 THE TAHSILDAR
KOCHI TALUK, FORT KOCHI., PIN - 682001
4 THE VILLAGE OFFICER
PALLURUTHY VILLAGE, PALLURUTHY, KOCHI., PIN - 682006
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5 CORPORATION OF KOCHI
KOCHI, REPRESENTED BY ITS SECRETARY., PIN - 682011
R1 TO R4 BY SRI. DENNY K. DEVASSY, SR. G.P.
R5 BY ADVS. SRI. V. V. SIDHARTHAN, SR.
SRI.SOBHAN GEORGE
SHRI.D.G.VIPIN
THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 23.08.2025, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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ORDER
1. This Review Petition is filed by the appellant in RSA No.614/2022 to
review the judgment dated 08.08.2024 by which the RSA was dismissed,
answering the substantial questions of law against the appellant. The
Review Petitioner has filed I.A. No.1/2025, producing Annexure AIV to
AXIII, seeking to accept the said documents under Order XLI Rule 27
CPC.
2. The Review Petition is opposed by the Respondent No.5/Corporation of
Kochi by filing a counter affidavit.
3. I heard the learned Senior Counsel for the Review Petitioner,
Sri. P. Santhalingam, instructed by Adv. Smt. Sindu Santhalingam, and the
learned Senior Counsel for Respondent No.5, Sri. V.V. Sidharthan,
instructed by Adv. Sri. D.G. Vipin.
4. The Review Petitioner, who was the plaintiff in a suit for declaration, is the
appellant in this appeal. Declaration of title was sought with respect to the
plaint B schedule property of 1 acre covered by Exts.B1 and B2
Relinquishment executed by the plaintiff in favour of the Defendant No.5
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on the ground that the relinquishment is invalid. Plaint B schedule property
was part of the plaint A schedule property, which is having an extent of
3 acres 78 cents belonged to the plaintiff per Exts.A1 and A2 title deeds. It
is the case of the plaintiff that the plaintiff executed Exts.B1 and B2 on the
assurance of the Defendant No.5 that they would fill up the remaining land
of 2.78 acres belonging to the plaintiff; that the Defendant No.5 filled up
only 60% of the land, and that too illegally and without any authority.
5. The Trial court dismissed the suit on the ground that the suit is time-barred;
that the relinquishment made by the plaintiff was unconditional and that in
view of the decision of this Court in Natarajan R. v. Village Officer,
Kanayannur Taluk and Others [2013 (2) KHC 26], when an
unconditional relinquishment is made even though the proceedings are not
complete, it operates as complete against the landowner. Though the
plaintiff filed an appeal before the First Appellate Court, the First Appellate
Court confirmed the judgment and decree of the Trial Court. This Court
dismissed the RSA, answering the substantial questions of law against the
appellant as per the impugned judgment.
6. The learned Senior Counsel for the Review Petitioner contended that the
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Respondent No.5 obtained Exts.B1 & B2 relinquishment of land by
committing fraud on the Review Petitioner. The transaction between the
Review Petitioner and the Respondent No.5 is hit by Section 23 of the
Indian Contract Act, 1872. The Review Petitioner agreed to relinquish the
plaint B schedule property of 1 acre since the Respondent No.5 assured the
reclamation and filling up the remaining 2.78 acres of land. The purpose of
the relinquishment of 1 acre is for constructing the Perumpadappu Bus
Terminal as revealed from Ext.B1. The land included in Ext.B1 is
admittedly a wetland. Going by the provisions of the Kerala Conservation
of Paddy Land and Wetland Act, 2008, the reclamation of wetland is clearly
prohibited. The Respondent No.5 did not have the necessary permission to
reclaim the said land. The Review Petitioner was defrauded by the
Respondent No.5 misrepresenting that the property could be legally
reclaimed and filled up by the Respondent No.5. It is clear from the
Vigilance Enquiry Report produced along with I.A. No.1/2025 that the
Respondent No.5 did not have any right or authority to reclaim or fill up
the aforesaid property of the Review Petitioner. The respondents have
suppressed the material documents with respect to the same from the notice
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of this Court and thus committed fraud on this Court. Fraud vitiates
everything. If this Court had knowledge about the fraudulent nature of
Exts.B1 and B2, this Court would not have passed the impugned judgment
dismissing the appeal, rejecting the contention of the Review Petitioner.
The Revenue Divisional Officer has no right or authority to accept the
wetland by way of relinquishment. The learned Senior Counsel relied on
the decision of the Hon’ble Supreme Court in A.R. Antulay v. R.S. Nayak
[AIR 1988 SC 1531] in which it is held that even the Supreme Court, by
its direction, could not confer the jurisdiction on the High Court to try any
case when it did not possess such jurisdiction; that no man could suffer
because of the mistake of the court; that rules and procedures are the hand-
maids of justice and not the mistress of justice; that when it is brought to
the notice of the Supreme Court that a man is denied his rights under the
Constitution and the laws, even if there are technicalities, the Supreme
Court should not feel shackled and decline to rectify that injustice or
otherwise injustice noticed will remain forever a blot on justice. The
learned Senior Counsel contended that the Respondent No.5 has been
claiming valuable property belonging to the Review Petitioner on the basis
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of an illegal and fraudulent relinquishment. The learned Senior Counsel
relied on the decisions of the Hon’ble Supreme Court in A.V. Papayya
Sastry and Others v. Government of A.P. and Others. [(2007) 4 SCC
221] and in Vishnu Vardhan @ Vishnu Pradhan v. State of Uttar
Pradesh [2025 0 Supreme (SC) 1103] in support of his contentions. In
A.V. Papayya Sastry (supra), it is held that a judgment or decree obtained
by playing fraud is a nullity and non est in the eyes of law; that such a
judgment or decree – by the first court or by the highest court – has to be
treated as nullity by every court, whether superior or inferior, and that it
can be challenged in any court, even in collateral proceedings. The Hon’ble
Supreme Court followed the principle – fraud and justice never dwell
together. In Vishnu Vardhan (supra), the Hon’ble Supreme Court
followed the principle laid down by Chief Justice Edward Coke of England
that fraud avoids all judicial acts, ecclesiastical or temporal. Learned Senior
Counsel concluded his arguments by praying to allow the Review Petition,
setting aside the impugned judgment.
7. On the other hand, learned Senior Counsel for the Respondent No.5
contended that there is no error apparent on the face of the court to review
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the impugned judgment. No fraud is involved in the matter. Neither the
proceedings of this Court nor the relinquishment proceedings are vitiated
by fraud. The Review Petitioner executed Exts.B1 and B2 relinquishment
form and declaration fully understanding its legal consequences. The
respondents have not played any kind of fraud to obtain Exts.B1 and B2
from the Review Petitioner. The Review Petitioner himself had admitted in
his deposition that he executed Exts.B1 and B2 with full consent. It is
admitted in his evidence that 70% of the remaining 2.78 acres of land was
filled up by the respondents and thus the Review Petitioner had derived
benefit out of the transaction. This court rightly relied on the Division
Bench judgment of this Court in Natarajan R. (supra), in which it is held
that when an unconditional relinquishment is made, even though the
proceedings are not complete, it operates as complete against the
landowner. The Review Petitioner has not made any ground to receive
additional evidence in I.A. No.1/2025. The learned Senior Counsel relied
on the decisions of the Hon’ble Supreme Court in M/s Northern India
Caterers (India) Ltd. v. LT. Governor of Delhi [(1980) 2 SCC 167], Sow
Chandra Kante and Others v. Sheikh Habib [(1975) 1 SCC 674] and
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Lily Thomas and Others v. Union of India and Others [(2000) 6 SCC
224] to substantiate the limited scope of Review.
8. I have considered the rival contentions.
9. The Review Petitioner is alleging that the proceeding of this Court in RSA
No.614/2022 is vitiated by fraud and hence the impugned judgment, which
is the product of fraud, is liable to be set aside. The contention is that
material documents with respect to the relinquishment of land as per
Exts.B1 and B2 are suppressed by the respondents. If those materials were
produced by the Respondent No.5, this Court would not have passed the
impugned judgment dismissing the second appeal. The Respondent No.5
fraudulently misrepresented the Review Petitioner and obtained Exts.B1
and B2 form for relinquishment of land, making the Review Petitioner to
believe that they have the authority to fill up and reclaim the land.
A wetland cannot be used for the purpose of the construction of a bus
terminal in view of the provisions contained in the Kerala Conservation of
Paddy Land and Wetland Act, 2008. I am unable to accept the aforesaid
contentions of the learned Senior Counsel for the appellant. In RSA
No.614/2022, this Court had only considered the legality of the judgments
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and decrees passed by the Trial Court and the First Appellate Court with
reference to the substantial questions of law formulated in the appeal.
Exts.B1 and B2 are dated 12.03.2008. The said relinquishment was made
before the introduction of the Kerala Conservation of Paddy Land and
Wetland Act, 2008, on 12.08.2008. It is clear from Ext.X1(a) dated
01.03.2008 that Respondent No.5 accepted the offer of the Review
Petitioner to give one acre of land in favour of Respondent No.5. It is also
decided to deposit the sand removed from the backwater in the remaining
property of the Review Petitioner. The Review Petitioner, in his evidence,
admitted that 70% of the property was filled up by the respondents. The
aforesaid facts would reveal that there could not be any fraudulent
misrepresentation to the Review Petitioner, as the Kerala Conservation of
Paddy Land and Wetland Act was not in force when Exts.B1 and B2 were
issued by the Review Petitioner to Respondent No.5. The Review
Petitioner with all his consent, executed Exts.B1 and B2 in favour of the
Respondent No.5. The Review Petitioner changed his mind at a later point
of time when Vigilance enquiry was initiated with respect to the filling of
the land, alleging that it is unauthorised and thereby preventing further
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filling up of the property. The Review Petitioner wanted to withdraw from
the relinquishment. Hence, the Review Petitioner filed the suit for
declaration that the Review Petitioner is the absolute owner of the plaint B
schedule property, which is covered by Ext.B1 and B2 relinquishment. The
suit was dismissed, holding that it is barred by limitation and that the
relinquishment is complete as against the Review Petitioner in view of the
Division Bench judgment of this Court in Natarajan R. (supra). The First
Appellate Court dismissed the appeal filed by the Review Petitioner,
confirming the judgment and decree passed by the Trial Court. This Court
in the impugned judgment found that the relinquishment as against the
Review Petitioner is complete, relying on the aforesaid Division Bench
judgment in Natarajan R. (supra). This court also found that the
declaration sought for is barred by limitation. This court answered the
substantial questions of law in favour of the respondents. This Court
considered the legal effect of Exts.B1 and B2 relinquishment letters and
entered a finding thereon. There was no argument that the proceedings of
this Court are vitiated by fraud. This Court considered the legality of the
judgments and decrees passed by the Trial Court and the First Appellate
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Court in light of the materials available before this Court, and hence, there
is no question of any fraud in the proceedings of this Court. The Review
Petitioner has not made out any case of fraud, even in this Review Petition.
Hence, the impugned judgment is not liable to be reviewed on the ground
of fraud. There is no error apparent on the face of the records. Accordingly,
this Review Petition is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/
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APPENDIX OF RP 1279/2024
PETITIONER ANNEXURES
Annexure AI CERTIFIED COPY OF THE ORDER DTD. 21/8/2023 IN RSA
614/2022 OF THE HON’BLE HIGH COURT OF KERALA
Annexure AII A TRUE COPY OF THE LETTER DTD. 6/5/2014 ISSUED BY
THE DIRECTOR, VIGILANCE AND ANTI-CORRUPTION BUREAU
TO THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT
Annexure AIII A TRUE COPY OF THE COMMUNICATION DTD. 9/6/2014 SEND
BY THE ADDITIONAL CHIEF SECRETARY TO THE PRINCIPAL
SECRETARY