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2000 DIGILAW 25 (SC)

M. M. Thomas v. State Of Kerala

2000-01-06

D.P.MOHAPATRA, K.T.THOMAS

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JUDGMENT Thomas, J.-Two questions are mooted in this appeal filed by special leave. First is whether the power to review a decision rendered under Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short "the Act") could have been exercised in the absence of any of the conditions specified in Section 8C of the Act. The second question-which has sprouted as ancillary to the first question-is whether the High Court has (de hors the said provision) power to review its own decision rendered in appeal filed under the Act. If both questions are answered in the negative the appellant can succeed in getting the impugned order (of a Division Bench of the High Court of Kerala) annulled in his favour. Otherwise the impugned order will remain undisturbed. 2. The facts which led to the said order are the following: As per Section 3(1) of the Act, ownership and possession of all private forests in the State of Kerala stood transferred to and vested in the Government free from all encumbrances with effect from the "appointed day". The statute itself has fixed 10.5.1971 as the said appointed day. However, two exceptions were provided as per sub-sections (2) and (3) of Section 3 of the Act which are extracted below: "(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964 or any building or structure standing thereon or appurtenant thereto. (3) Nothing contained in sub-section 1 shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the said Act." 3. Forest Tribunals were constituted for adjudicating the disputes regarding applicability of the said exceptions. Appellant raised a claim in respect of 20 acres of land as not vested in the Government. As the claim was disputed appellant filed a petition before the Forest Tribunal for adjudication of the dispute. Forest Tribunals were constituted for adjudicating the disputes regarding applicability of the said exceptions. Appellant raised a claim in respect of 20 acres of land as not vested in the Government. As the claim was disputed appellant filed a petition before the Forest Tribunal for adjudication of the dispute. He mainly contended before the Forest Tribunal that the said area fell within sub-section (3) of Section 3 of the Act, but the Forest Tribunal repelled his claim and dismissed his petition. Thereupon he filed an appeal before the High Court of Kerala under Section 8A of the Act. 4. By judgment dated 13.1.1982 a Division Bench of the High Court concurred with the view of the Forest Tribunal that the appellant is not entitled to the exemption under sub-section (3) Section 3 of the Act. However, the Division Bench proceeded to High Court without the authority in writing of the Government or due to the failure to produce relevant data or other particulars before the High Court or that an appeal against such order could not be filed before the Supreme Court by reason of the delay in applying for and obtaining a certified copy of such order, may, during the period beginning with the commencement of the Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986 and ending on the 31st day of March 1987, make an application to the High Court for review of such order." 7. A Division Bench of the High Court of Kerala in State of Kerala v. Subramonian Namboodiri1 has taken the view that a remedy of review under the sub-section is not available merely because the State feels that the decision is wrong on the merits. "Section 8C(2) envisages a review only if the decision of this Court had been made on the basis of a concession made before it without the authority in writing of the Custodian or the Government, or due to the failure to produce relevant data or other particulars before the Tribunal or that an appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy of the decision." 8. However, a Full Bench of the same High Court in Pankajakshy Amma v. Custodian of Vested Forest2 has held that the grounds of review are not exhaustive and they cannot be restricted to specified grounds and so far as the High Court is concerned "it has inherent power to review besides power under Section 8C of the Act." 9. Learned counsel for the appellant endeavoured to show that the view adopted in the case of Subramonian Namboodiri (supra) is correct whereas the Full Bench view is erroneous. Before we decide the legal question we have to point out that the judgment of the High Court dated 13.1.1982 was obviously wrong since the contention based on Section 3(2) of the Act was upheld in that judgment. We say that the said judgment was obviously wrong on account of two reasons. First is that appellant did not make a claim for exemption under that sub-section at all. On the contrary his claim itself was based on sub-section (3). Second is that appellant gave evidence in the case exclusively for establishing his claim under sub-section (3). 10. It must be pointed out that any claim for exemption under Section 3(2) of the Act must necessarily be in respect of an area which was brought under cultivation by him before the appointed day i.e. 10.5.1971. In other words, if no cultivation was made by him on the land concerned before the said crucial date its owner cannot base a claim for exemption under sub-section (2). Appellant did not even mention in his claim petition that he had cultivated the said land before the said date nor did he mention in his evidence that the land was brought under cultivation even on a single day prior to 10.5.1971. Hence, there is no question of considering the exemption under sub-section (2). But the High Court went out of his claim and found that he is entitled to exemption under Section 3(2). Therefore the earlier judgment of the High Court dated 13.1.1982 was vitiated by error apparent on the face of the record. 11. It is true that the application for review did not mention that there was any concession made by the Government counsel. Hence there is force in the contention that review could not be made on that premise. Therefore the earlier judgment of the High Court dated 13.1.1982 was vitiated by error apparent on the face of the record. 11. It is true that the application for review did not mention that there was any concession made by the Government counsel. Hence there is force in the contention that review could not be made on that premise. So far as Forest Tribunal is concerned its power of review can be traced to Section 8C. Unless law has conferred power of review the inferior courts and tribunals cannot exercise any such power of review. So the Forest Tribunal can exercise power of review in conformity with Section 8C of the Act. shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior Courts of general jurisdiction must show what other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is unnecessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, and cannot be deprived of its ascendency by showing that some other court could have entertained the particular action." (Though the above reference is to English courts the principle would squarely apply to the superior courts in India also.) 15. Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar (supra) a two Judge Bench of this Court in M.V. Elisabeth & Ors. v. Harwan Investment & Trading Pvt. Ltd.4 has observed thus: "The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Court have unlimited jurisdiction. ........." 16. If such power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record. 17. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of record. 17. In the aforesaid view of the matter we are not disposed of interfere with the impugned order though we are not deciding the question whether the failure to putforth a contention would amount to concession being made by the State counsel as envisaged in Section 8C(2) of the Act. 18. In the result we dismiss this appeal. (C.R.) Appeal dismissed. ************ Parallel Citations of other Journals : M.M. Thomas v. State of Kerala, 2000(1) Supreme 1 : 2000 (1) JT 26 : (2000) 1 SCC 666 : AIR 2000 SC 540 00048