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1982 DIGILAW 206 (KER)

DIVISIONAL FOREST OFFICER v. CHERIYAN

1982-08-24

K.K.NARENDRAN

body1982
Judgment :- 1. The short point that arises for consideration in this Civil Miscellaneous Petition is whether the High Court has the power to review or reconsider an interlocutory order passed in an original petition under Art.226 of the Constitution pending the original petition, even if the order was passed after hearing the party seeking the review. The further point is whether the insertion of the Explanation to S.141 of the Code of Civil Procedure, 1908 by the 1976 Amendment Act making the procedure provided in the Code not applicable to proceedings under Art.226 of the Constitution, will in any way affect the powers of the High Court in this regard. This petition for review has been filed by the Divisional Forest Officer, Palghat, the 2nd respondent in the O. P. 2. The short facts of the case, shorn of unnecessary details, are: The petitioner in the original petition, who is the counter-petitioner in the petition for review, got an assignment of 92 acres of land from one Parukutty Mannadissiar. He cut the trees from Sy No. 1580 included in the lands he got. As the forest authorities did not give him transit permits for the transport of timber he approached this Court with the original petition. One of the averments in the original petition is that wild fire will destroy the timber. Along with the original petition the petitioner filed CMP. No. 3307 of 1982 for direction to issue the transit permits. After hearing the Liaison Officer this Court gave a direction for the issue of transit permits. The petitioner again filed CMP. No. 4602 of 1982 for directions. In the affidavit filed along with the above CMP. it was averred that timber worth Rs. 40,000/- was already destroyed by fire. After hearing the Liaison Officer, a further direction was issued. As the permits were not issued, the petitioner again filed CMP. No. 5213 of 1982 for directions and this Court after hearing the Additional Advocate General issued fresh directions subject to certain conditions. It is a fact that at no stage the Liaison Officer or the Additional Advocate General raised any objections against the directions issued. As the transit passes were not issued, the petitioner filed an original petition (contempt) against the forest officers. It was then that the Divisional Forest Officer filed this petition for review. 3. It is a fact that at no stage the Liaison Officer or the Additional Advocate General raised any objections against the directions issued. As the transit passes were not issued, the petitioner filed an original petition (contempt) against the forest officers. It was then that the Divisional Forest Officer filed this petition for review. 3. The following further facts were also brought to light by the affidavits filed by the petitioner and the respondents in the original petition and the Civil Miscellaneous Petitions. The lands that the petitioner got assignment of from Mannadissiar are lands restored to her in pursuance of the judgment of this Court in M.F. A. 401 of 1978. The lands involved in the M.F.A. were only plantations. Some dense forest with gregarious growth of rosewood trees not included in the lands covered by the M.F.A. was wrongly banded over to Mannadissiar by the forest officers without the sanction of the Custodian of Vested Forests or the competent authority. It was from this land 5 to 6 Kilometres away from the lands covered by the M F.A. that the petitioner cut 423 rosewood trees and it is for the transport of the above timber that the petitioner wants transit permits On 22-5-1982 the State Government have issued G. O. Rt. No. 1345/82/AD directing the Custodian and the Conservator of Forests to take immediate action for taking back the 31.36 acres of Forest land. 4. Justice is the pursuit and the end of all law. A court exists for the administration of real justice. Within the limits of the power a Court has, the power to do justice and to undo injustice is very wide. The wide powers the High Court has under Art.226 of the Constitution are there to do justice and to prevent the miscarriage of justice. There is no indication in the Constitution that High Court cannot review an order and correct an error it committed to meet the ends of justice. The High Court is a Court of plenary jurisdiction. The power of review is an inherent power and it cannot be said that in the exercise of its extraordinary jurisdiction vested under Art.226, the High Court cannot have this power and interfere with an interlocutory order it has passed, and that too pending the proceedings. The High Court is a Court of record. The power of review is an inherent power and it cannot be said that in the exercise of its extraordinary jurisdiction vested under Art.226, the High Court cannot have this power and interfere with an interlocutory order it has passed, and that too pending the proceedings. The High Court is a Court of record. It cannot be said that a Court of record has no power to correct an error which has crept into its proceedings when brought to its notice. Otherwise, the result will be the perpetuation of the errors in the records. The inherent power of a Court is not a power conferred upon the Court by the Code of Civil Procedure, it is a power inherent in the Court because of its duty to do justice. S.151 of the Code of Civil Procedure only recognises this power and does not confer this power on a Court. So, simply because by the 1976 Amendment the proceedings under Art.226 of the Constitution have been taken out of the purview of the Code of Civil Procedure it cannot be said that the High Court has no inherent power and cannot review an order passed in a proceeding under Art.226. Over and above all these, the order in question is only an interlocutory order and by no stretch of imagination it can be said that the High Court cannot interfere with that order pending the original petition and that too after hearing all the parties concerned. If the order is one which could not have been passed in the facts and circumstances of the case, if the order results in the miscarriage of justice and if going by the papers already in Court no such order could be passed at least pending the original petition, it goes without saying that the High Court has the power under Art.226 of the Constitution to review that order and correct the error brought to its notice and that too when the order is yet to be implemented. The mere fact that the review petition has been filed under S.151 of the Code of Civil Procedure is not a reason to refuse to exercise the jurisdiction this Court has to correct the error. It is enough the error has been brought to the notice of the Court. The mere fact that the review petition has been filed under S.151 of the Code of Civil Procedure is not a reason to refuse to exercise the jurisdiction this Court has to correct the error. It is enough the error has been brought to the notice of the Court. At any rate, pending adjudication of the question whether the land from which the timber has been extracted has ceased to be the property of the State, this Court should not have issued directions to the forest authorities to issue transit permits for the transport of the timber. It is immaterial whether the order was passed after hearing the parties. An order like this passed pending proceedings can, for valid reasons, be set aside or modified at any time pending the proceedings. The only restrictions are that it must be with notice to the parties concerned, it roust be to meet the ends of justice and it should not result in the arbitrary exercise of the power vested in the Court As the interference the High Court makes is not by virtue of any power vested under the Code of Civil Procedure, the 1976 Amendment to the Code cannot stand in the way. 5. In the result, I set aside the directions sought to be reviewed and allow the petition for review. The petitions for directions will stand dismissed. No costs.