Subsequent binding decisions do not automatically justify a review of judgment, and mere conflict or divergence of opinion cannot amount to an error apparent on the face of the record.

1. On 111969, judgment was delivered by one of us in O.P. No. 390 of 1967 allowing the petition and directing refund to the 'petitioner of a sum of Rs. 30,5000/- collected from him as licence-fee for the years 1952 to 1957 under the Travancore Tobacco Act 1 of 1087 M. E. The levy and collection of Tobacco tax under the Act had been declared illegal by the Supreme Court in Abdulkhader's case (1962 KLJ. 625) on the ground that the rules of 1950 and 1951 which authorised the levy and collection and which contained the charging provisions, had no independent existence after the implied repeal of the Tobacco Act by the Central Excise and Salt Act, 1944. Thereupon, the Kerala State Legislature passed the Validation Act 9 of 1964 (called Luxury Tax Act, for short) validating the levy and collection of the tax, as a tax on luxuries. The Validation Act was challenged in this Court. It was sustained by a learned judge, in the first instance. On appeal, a Division Bench by judgment in Writ Appeal No. 5070 of 1965 etc. dated 3101966, held that it violated the provisions of Art.301 of the Constitution. On further appeal by the State to the Supreme Court, the decision of the Division Bench was set aside and the matter was remanded back to this Court, for fresh investigation before pronouncing whether the levy actually offends Art.301 or not. (vide the judgment of the Supreme Court dated 30-7-1969 reported in State of Kerala v. A. B. Abdulkhader & Others (1969 KLT. 649). After remand, a Division Bench of this Court sustained the validity of the Act by judgment rendered on 15101970 reported in Abdulkhadir v. State of Kerala (1971 KLJ. 4)

2. This application for review of judgment was filed on 18 81971. It is based on the ground that the judgment of one of us, dated 111969, was on account of the invalidation of Act 9 of 1954 by the Division Bench ruling of this Court in Writ Appeal No. 5070 of 1965 etc. dated 3-10-1966; and as the same had been set aside on appeal by the Supreme Court, and the legislation itself had been sustained by the later Division Bench ruling dated 15101970, the State is entitled to have the judgment reviewed. An application filed to excuse delay in preferring the petition for review has been allowed. The questions that therefore survive are: whether the State is entitled to have the judgment reviewed; and if so, whether there are adequate grounds to allow the application.

3. The learned Government Pleader placed his case for review both under the provisions of 0.47, R.1 of the CPC. and under the inherent powers of the Court. The provisions of 0.47, were invoked on the ground that S. A. L. Narayan Row v. Ishwarlal Bhagwandas (AIR 1965 SC. 1818 = 57 ITR,149) had ruled that proceedings relating to fax under Art.226 are 'civil proceedings', for the purposes of Art.133 of the Constitution, and this would attract 0.47. That the said provision would be attracted was expressly ruled in Chenchanna Naidu v. Praja Seta Transports Ltd. (AIR. 1953 Mad. 39) which was referred to and followed is Dilip Nath Sen v. Certificate Officer and Others (AIR 1962 Cal. 346)' and again in Income-tax Officer, Masulipatnam v. K. Srinivasa Rao (AIR. 1969 And. P. 441). The Calcutta decision refers to a judgment of Chagla C. J. in S. P. Awate v. C. P. Fernandez (AIR. 1959 Bomb. 466). But the Bombay decision assumed that the Court bad power to review its order passed on an application under Art.226, and stated that the same could be only on the ground of an error apparent on the face of the record, which means that the error should be so clear and manifest that no court would allow it to remain on the record, and not one to be demonstrated by a process of ratiocination. Our attention was called to the decision of a learned judge of this Court (Raman Nayar J. as he then was) in Pathrose v. Kuttan alias Sankaran Nair (1969 KLT-15). There, the learned judge held that a subsequent binding authority taking a different view of the law, is a good gr