Kerala High Court
Ibrahim And Ors. vs Custodian Of Vested Forests And ... on 2 August, 2000
Equivalent citations: AIR 2001 KERALA 23, (2000) 2 KER LJ 794 (2000) 3 KER LT 812, (2000) 3 KER LT 812
Author: Koshy
Bench: J.B. Koshy, M. Ramachandran
JUDGMENT Koshy, J.
1. In all these appeals filed under Section 8-A of the Kerala Private Forests (Vesting & Assignment) Act, 1971 (hereinafter referred to as 'The Act') the common question of law to be considered is regarding the powers of the Forest Tribunal in reviewing its earlier order under Section 8-B of the above Act. Section 8-B of the Act reads as follows :
"8-B. Power of Custodian to apply for review of decisions of Tribunal :-- (1) Notwithstanding anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force, or in anyjudgment, decree or order of any Court or other authority, the Custodian may, if he is satisfied that any decision of the Tribunal under Section 8 requires to be reviewed on the ground that such decision has been made on the basis of concessions made before the Tribunal 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 such decision, make an application to the Tribunal 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 for review of such decision.
(2) An application under Sub-section (1) shall be in the prescribed form and shall be verified in the prescribed manner.
(3) On receipt of an application under Sub-section (1), the Tribunal shall, notwithstanding anything contained in this Act or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any law for the time being in force, or in any judgment decree or order of any Court or other authority review decision and pass such orders as it may think fit."
Three conditions mentioned under Section 8-B of the Act for reviewing its earlier decision are:
(1) The earlier order has been made on the basis of concessions made before the Tribunal without the authority in writing of the Custodian or the Government.
(2) Due to the failure to produce the relevant data or other particulars before the Tribunal.
(3) An appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy of such decision.
The first question to be considered in these cases is whether in the absence of these specific grounds, on any other grounds can the Tribunal entertain a review application? Of course if review application is maintainable and review is admitted, the entire matter is before the Tribunal and the Tribunal is free to look into all the aspects of the matter. On the basis of the Full Bench decision of this Court reported in Pankajakshy Amma v. Custodian of Vested Forest, (1995) 1 Ker LT 358 : (AIR 1995 Kerala 225) it was argued that the Tribunal's power to entertain a review petition under Section 8-B is very wide and the entire aspects can be looked into by the Tribunal to decide whether review petition is maintainable.
2. Before dealing with the question of law in detail we may look into the facts of M.F.A.No. 669/89. O.A.No. 165/1976 was filed before the Forest Tribunal, Palghat regarding 9.43 acres of land by one M. K. Ramakrishnan. The above O.A. was allowed on 12-10-79. Subsequently the above land was sold to the appellant herein. The decision in the above O.A. dated 12-10-79 was reviewed under Section 8-B on 12-6-1989 after about 10 years. The review application was filed in a printed form mentioning all the grounds in Section 8-B. But it was not stated what are the specific grounds for review. It is also not stated that such and such data were not made available to the Tribunal so as to attract ground No. 2. The Tribunal framed two issues which are as follows :
"(1) Whether the review application is maintainable under Section 8B of the Act.
(2) Whether the order under review is liable to be reviewed."
Therefore Tribunal followed the procedure in first finding out whether Section 8-B is applicable. The other question of merit will come only if the application is maintainable. With regard to Point No. 1 Tribunal held as follows :
"The order under review was pronounced on 12-10-1979 and I find from the records that the Government Pleader has applied for certified copy of the order on 20-10-1979. It is not known why the Government did not prefer an appeal against the order of my learned predecessor. Therefore, the review application is not maintainable on this ground. But the Government has placed additional evidence before this Tribunal in the shape of two Commissioners' reports which arc marked as Exts. C-l and C-2. My learned predecessor has not entered a definite finding in his order as to whether the disputed properties are private forest or not. This is a serious omission and therefore the Commissioner's reports regarding the nature of the property is very relevant. This evidence was not adduced at the first instance. In view of the additional (page-4) evidence. I find that the Review Application is maintainable under Section 8-B of the Act."
Therefore it can be seen that the Tribunal found that application is maintainable because the Government has placed additional evidence before the Tribunal (ground No. 2) by Commissioners' Reports which were marked as Exts. C-l and C-2 and in view of the additional evidence review application is maintainable under Section 8-B of the Act. Admittedly the Commissioner submitted the report after filing the stereo typed application for review. A commissioner can be appointed at the discretion of the Tribunal in a pending proceeding. 'Here before deciding the question a review petition was maintainable, a commissioner was appointed and he filed a report on 30-12-87. Since it was favourable to the appellant again at the request of the Government, another Commissioner was appointed and he filed a second report Ext. C-2 dated 31-5-88 and the review order is made on the basis of the second Commissioner's Report. The question to be considered is whether on the basis of this second Commissioners' Report a review can be said to be maintainable under Section 8-B of the Act. Apparently Tribunal was of the view that the application is maintainable due to the failure to produce relevant data or other particulars before the Tribunal at the time of original application. At the time of filing the review application Commissioner's report was not available. Commissioner was appointed only after filing the review application. Therefore, original order was not passed due to the failure to produce relevant data or other particulars. In fact in the review application it is not mentioned about any of the datas or particulars which the custodian or Government failed to produce before the Tribunal. Therefore, on the terms of Section 8-B the review was not maintainable. If the review was not maintainable, the Tribunal has no jurisdiction to go into the merits of the case and redecide the matter. Admittedly the earlier order was passed not by concession by the Custodian or the Advocate or by the Government. The original order was passed on merit and on the basis of the evidence adduced before the Tribunal. Tribunal itself found that certified copy was obtained in time and Government did not file appeal.
3. Only for the failure to produce relevant data or other particulars before the Tribunal, the Tribunal reopened the matter by reviewing the earlier order under Section 8-B of the Act. The contention of the learned Government Pleader is that the power under Section 8-B is very wide. Other grounds also can be taken for review. In the Full Bench decision reported in (1995) 1 Ker LT 358 : (AIR 1995 Kerala 225) (FB) (supra) it was argued that, the Tribunal while dealing with the review is not restricted to the grounds mentioned under the section, other grounds like discovery of vital evidence or an error apparent on the face of the record etc. can be looked into. From a close look of the Full Bench decision also it can be seen that for maintainability of the application one of the three grounds mentioned in Section 8-B should be there. In paragraph 5 the Full Bench observed as follows :
"We have heard the arguments of both sides and gone through the records of the case carefully. We are of the view that Section 8-B gives power to the Custodian to apply for review if he satisfies that the decision of the Tribunal has been made on the basis of the concessions or due to the failure to produce the relevant data or that an appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy. Under Section 8-B(3) of the Act, on receipt of an application under sub-section (1) of Section 8-B the Tribunal shall review decision and pass such orders as it may think fit. On a plain reading of the Section the satisfaction of any one of the three grounds has to be established as a condition precedent for the Custodian to make an application for review. But the provision does not say that the same or similar grounds must be in existence for the purpose of the Tribunal to satisfy itself before reviewing the order. To restrict the power of the review only to such of those three grounds for which the Custodian has to be satisfied will be restricting the scope of the review of the Tribunal. Similarly it would be a further restriction of the power to review under Section 8-B of the Act if the power is treated as analogous to the power of review under Order XLVII, Rule 1, C.P.C. Section 8-B of the Act has been brought into existence by Amendment Act 36 of 1986 for a definite purpose. The background of such an amendment has been set out in the decision in V.M. Abraham v. State of Kerala, (1987) 1 Ker LT (Sh. No.) 57. Public interest was put in jeopardy by the conduct of certain officers in charge of litigation before the Forest Tribunals and before this Court as well as the conduct of some counsel who appeared for the State and Custodian in some of the cases."
Therefore, when one of the grounds is made out, the Full Bench held, that review application is maintainable and hence the Tribunal can look into all other circumstances as the provision is very wide and after review the entire matter can be redecided by the Tribunal. The Full Bench also found that Order 47, Rule 1 of the Code of Civil Procedure is not applicable to the Tribunal. However, considering the matter in detail and for getting jurisdiction for review one of the three grounds mentioned in Sub-section (1) to Section 8-B has to be satisfied and that has been actually reiterated by the Full Bench. This proposition of law is clear from the decision of the Supreme Court in Bagwathi Tea Estates Ltd. v. Government of India (1995) 1 Ker LT 612 : (AIR 1996 SC 209) where identical provisions in Section 8-C(3) was considered by the Supreme Court. Since the wordings are similar we quote paragraphs 17 & 18 of the Judgment of the Supreme Court in full.
"17. A reading of Section 8-C(3) shows that the High Court can review its order on any of the following three grounds :
(1) that such judgment or order has been passed due to suppression or misrepresentation of facts;
(2) that such judgment or order has been passed due to the failure to produce relevant data or other particulars; or (3) that an appeal against such judgment or order could not be, filed by reason of the delay in applying for or obtaining a certified copy of such judgment or order.
18. The review petition filed by the State was based upon the second ground, viz., failure of the State to produce relevant data or other particulars, a fact specifically noted in the very first paragraph of the impugned order. The contention urged on behalf of the Government Pleader before the learned Judge was that it was not brought to the notice of the High Court that prior to the execution of Exh. A-5 in 1963, the sanction of the District Collector as required under Section 3 of the Madras Preservation of Private Forests Act had not been obtained. The learned Judge took note of the fact that this contention was urged before the Division Bench when it heard the appeal and had rejected it. Even so the learned Judge observed, after noticing Section 3 of the Madras Act, that according to the said provision any alienation without the previous sanction of the District Collector is null and void and that the said circumstance raises several questions for consideration, viz., whether the agreement of lease amounts to alienation within the meaning of Section 3 of the Madras Act and if so whether it was entered into with the previous sanction of the Collector and further whether such alienation without such previous permission can constitute a foundation for excluding the land from the purview of the Kerala Act and certain other questions. What is of relevance is that the learned Judge did not say or find that the order of the High Court was made, or vitiated, due to the failure to produce relevant data or other particulars. Indeed, no such data or particulars were placed before the Court by the State in the review petition. On the same material which was on record in the appeal, the impugned order has been made. We are of the opinion that the words "due to failure to produce relevant data or other particulars" mean what they say. It must be a failure to produce relevant data or particulars; it cannot mean a mere change of opinion on the same material or on the same evidence. We are, therefore, of the opinion that the ground on which the review petition was filed was not made out and hence the order dated August 3, 1983 could not have been reviewed and set aside. It is true that under the impugned order the learned Judge has merely restored the appeal is yet to be heard, but, in our opinion, the very setting aside of the order dated August 3, 1983 was not called for until and unless one or the other ground specified by statute is made out."
The above shows that such data or particulars omitted to be produced should be placed by the State along with the review application when such application is filed on the ground that there was failure to produce data or other particulars. But here no data or particulars were mentioned. Like review under Section 8-C, or 8-B also it is clear that only if all conditions prescribed under Section 8-B(1) are satisfied, it can be reviewed by the Forest Tribunal. Forest Tribunal is not a Court of record and it is a statutory tribunal and it has got powers only as vested by the statute. It is a creature of the statute.
4. The Full Bench while deciding Pankajakshy Amma's case (AIR 1995 Kerala 225) (supra) referred to the decision of a Division Bench of this Court reported in State of Kerala v. Thomas, (1989) 1 Ker LT 201 where this Court held that High Court has got general power to review and it is not restricted by the provisions of the Kerala Private Forests (Vesting & Assignment) Act, 1971. The above decision was confirmed by the Supreme Court in M. M. Thomas v. State of Kerala, (2000) 1 SCC 666 : (AIR 2000 SC 540) where the Supreme Court has held that High Court being a Court of record has got power to review the matter notwithstanding the restrictions imposed in Section 8-C of the Act. At the same time it was also held that Forest Tribunal can exercise power of review only in conformity with Section 8-C of the Act. Paragraph 12 of the judgment is as follows :
"12. It is true that the application for review die 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 the Forest Tribunal is concerned its power of review can be traced to Section 8-C. Unless the 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 8-C of the Act."
5. A Division Bench of this Court in M.F.A. No. 654/88 considered the Full Bench decision and reiterated that application for review can be made only if one of the three grounds exists and if one of the three grounds exists, the power of review of the Tribunal is not limited to the grounds and it can be reviewed for other reasons also. Further it was held that based on the subsequent Commissioner's report it is not decided that the preliminary order has been passed due to failure to produce relevant data. Another Division Bench in W.A.No. 212/89 also held the similar view. It was further observed in the above judgment as follows :
"There was no additional material or evidence containing any data or particulars produced by the State and its officers to show that the earlier decision of the Tribunal was erroneous. On the other hand, the decision of the Tribunal shows that it is the result of a mere change of opinion on the same material or on (sic) mean what they say; that it must be a failure to produce relevant data or particulars; it cannot mean a mere change of opinion on the same material or on the same evidence. The said observations squarely apply to the facts of the present case. Accordingly, we are of the opinion that the ground on which the review petition was filed was not made out and hence the Forest Tribunal was not justified in reviewing its order dated 3rd October, 1979 and in dismissing the original application."
In that case also based upon subsequent Commissioner's report the review application was allowed. After considering the decisions it was held again as follows :
"If that is the legal position, the only question to be considered in the instant case is as to whether it can be said that the earlier decision of the Tribunal was rendered due to the failure on the part of the respondents to produce relevant data or other particulars. As already stated, after the decision of the Tribunal impugned in the review petition the only additional material available is the commission report and the plan obtained during the pendency of the review petition. No other data or particulars were placed before the Tribunal by the State in the review petition.
The Tribunal while ordering the review petition has not stated, nor has it found that its earlier order was vitiated due to failure to produce relevant data or other particulars. It is pertinent to note here that the commission report and plan were obtained only on 18-6-1988 in respect of a factual situation obtained as on 10-5-1971 i.e. long after 17 years."
6. In view of the Supreme Court decision quoted above as well as the Division Bench decisions, we are of the view that only if one of the conditions mentioned in Section 8-B(1) of the Act is present, the Tribunal can review the order and mere Commission report obtained subsequently cannot be taken as a ground stating that there was failure to produce relevant data or particulars in the earlier proceedings. Further, in the pleadings also it is only the grounds mentioned in Section are mentioned, the data or particulars were not mentioned. For entertaining a review petition under Section 8-B of the Act, it is a condition precedent for the Tribunal to satisfy itself whether any of the conditions prescribed under Section 8-B is present. The importance of proper pleadings be it at original stage, at the stage of appeal or at the time of review can never be left scored. The party adversely affected has a right to know what he has to meet and he cannot be taken by surprise. The interpretation given by the Division Bench also confirms this aspect.
7. As far as relief portion is concerned, we classify the cases into three groups. In the first group like M.F.A.No. 669/89 only on the subsequent Commissioner's report the review petition was admitted and no ground under Section 8-B of the Act was made out. Only after finding that the review application is maintainable further proceedings like issuance of Commissioner's report, taking evidence etc. can be done by the Tribunal. Here on the basis of the Commissioner's Report submitted after filing the review petition the Tribunal found that review is maintainable which is apparently wrong. Identical is the situation in M.F.A.No. 933/88, 108/89, 227/89, 516/89 & 664/89. All these appeals are allowed and impugned review orders are set aside.
8. As far as group No. 2 is concerned, we may look into the facts of M.F.A.No. 1021/ 88. With regard to Point No. 1 the Tribunal also found as follows :
"The common order was pronounced on 20-7-1977 and I do not find any copy (of) application filed by the Government Pleader. Moreover, additional evidence has been adduced in the shape of Commissioner's report marked as Ext. C1. I therefore, find that the review applications are maintainable under Section 8-B of the Act."
Additional evidence relied on is the Commissioner's report and we have already held that, that is not a ground for reviewing the order. With regard to the first condition it is stated that the Tribunal was not able to see any copy of the application filed by the Government Pleader even though common order was passed as early as on 20-7-77. But in the review application such a ground was not taken. Therefore, that point was not argued and there is no finding that no application was made. In any event, such an issue is not raised in pleadings. That is not a ground relied on by the Government for attracting Section 8-B of the Act. Therefore, impugned orders are liable to be set aside. Aspects are similar in M.F.A. Nos. 1021/88, 1024/88, 1034/88, 1035/88 & 228/89. Hence we allow these appeals also and impugned review orders are set aside.
9. With regard to other cases grouped as group No. 3 it can be seen that in the review application itself there is a specific ground that there was delay in obtaining certified copy of the judgment and Tribunal also found that certified copy of the judgment was not obtained in time. It was argued by the appellant that there is no finding that there was delay in filing the application which resulted Government in failure to file an appeal. We are of the opinion that such a hyper technical contention cannot be taken. Finding is that certified copy was not obtained in time automatically because no copy (of) application was seen filed in time. That is clear finding of the Tribunal in these cases and such ground was taken in the review application. Therefore, in such cases review application is maintainable and thereafter Tribunal is competent to look into the matter. But on going through Tribunal's order we see that only Commissioner's report after review is considered. Once it is found that review application is maintainable and matter is remanded, the entire matter should be considered by the Tribunal as the entire matter is open before the Tribunal. But the evidence produced by the appellant is not seen considered in the order.
Similar is the case in M.F.A.Nos. 983/98, 995/88, 106/89, 117/89, 138/89, 215/89 and 601/89. Review orders in these cases are set aside and we remand the matter. Therefore, fresh decision should be taken by the Tribunal according to law in these cases. All parties will be free to adduce further evidence also.
All the M.F. As are disposed of accordingly.