State Of Kerala v. Syamala Thamburatti

The Judgment of the Court was delivered by

George Vadakkel, J.:— This appeal is preferred under S. 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (hereinafter, the Act) from the decision of the Forest Tribunal, Palghat, under S. 8 thereof in O.A Nos. 503 to 506 of 1975 on its file. Besides providing for an appeal to this Court from such a decision, S. 8A also prescribes therefor a period of limitation of 60 days from the date of the decision. If the time requisite for obtaining the certified copy of the order produced along with this appeal is excluded, it is well within time; and otherwise it is out of time. The principal point that is mooted herein is this question of limitation, and the answer thereto depends on the applicability or otherwise of S. 12 of the Limitation Act, 1963, to this appeal.

2. It is not disputed that the Act is a ‘special or local law’ falling within S. 29(2) of the Limitation Act, 1963. Nor can there be now any controversy as regards the applicability of Ss. 4 to 24 of the Limitation Act, 1963, as provided for by S. 29(2) thereof and subject to the limitations mentioned in that section to an appeal preferred under a special or local law. That provision reads:—

“Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of S. 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.”

3. It will be noticed that S. 29(2) consists of two parts. The first part says that ‘where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of S. 3 shall apply as if such period were the period prescribed by the Schedule’. The second part says that ‘for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” One construction placed on the first limb of the section by some decisions was that it would be attracted only where for the identical appeal for which a period of limitation has been prescribed by the special or local law, a period has also been prescribed by the Schedule to the Limitation Act and there is difference between these two periods, the one prescribed by the special or local law and the other prescribed by the Schedule. On that basis the view taken in these cases was that where the Schedule has not prescribed a period of limitation for an appeal falling under the special or local law, there are no two different periods of limitation prescribed so far as such a case is concerned, one prescribed by the Schedule and another by the special or local law and that, therefore, the first part of S. 29 would not govern such a case, and consequently, the second part, which should, according to those decisions, be read in conjunction with the first part, could not be invoked for exclusion of time for determining the period of limitation. And looking at the Schedule, it will be seen that it deals only with appeals preferred under the Code of Civil Procedure and does not refer to any other appeal except those preferred under the Code of Criminal Procedure and one preferred from the decision of a High Court to that Court, with the result that the first and second parts of S. 29 would not govern cases where the right of appeal is conferred by a special or local law. However, this view is no more good law in view of the decisions of the Supreme Court in Kaushalya Rani v. Gopal Singh (AIR. 1964 SC. 260) and Vidyacharan Shukla v. Khubchand Baghel (AIR. 1964 SC. 1099 : (1964) 6 SCR. 129) where that Court approved the contrary view taken by Chagla C.J in Canara Bank Ltd. v. Warden Insurance Co. Ltd. (ILR. 1952 Bombay 1083) holding that even where there was no provision in the first schedule for an appeal in situation identical with that for which the special law provides, the test of ‘a prescription of a period of limitation different from the period prescribed by the First Schedule’ is satisfied. (See Vidyacharan Shukla v. Khubchand Baghel (ILR. (1964) 6 SCR. 129 at pp. 133-34 and 154-57). Mudholkar, J. with whom Raghubar Dayal, J. concurred disagreed with the majority decision on this point as above indicated (see p. 171) but he agreed with Subba Rao, J. who construed the second limp of S. 29(2) also as being wide enough to include a suit, appeal or application under a special or local law even if no period of limitation is prescribed in the First Schedule. The appeal considered in Vidyacharan Shukla's case was one preferred to the High Court under S. 116A of the Representation of the People Act, 1951, from an order of the Election Tribunal dismissing an election petition; and, the question of limitation of that appeal was considered by that Court with reference to Ss. 12 and 29(2) of the Indian Limitation Act, 1908. Ss. 12 and 29(2) of the Limitation Act, 1963 are substantially the same as those obtained in the prior Act, and therefore, the legal principles would be the same under the corresponding provisions of the present Limitation Act. In the light of the above discussion it has to be held, and we hold, that Ss. 4 to 24 (inclusive) of the Limitation Act, 1963, shall, to the extent to which these provisions have not been expressly excluded by a special or local law, apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application by such special or local law. There is no provision in the Act which expressly excludes any of the provisions, Ss. 4 to 24 of the Limitation Act, 1963, and so, the period of 60 days limitation prescribed in S. 8A has to be computed by applying Ss. 4 to 24 (inclusive) of the Limitation Act, 1963.

4. Referring to sub-sections (2) and (3) of S. 12 of the Limitation Act, 1963, and the Explanation thereto, and to sub-sections (2), (9) and (14) of S. 2 of the Code of Civil Procedure, 1908, which define the words ‘decree’, ‘judgment’ and ‘order’, it is argued that the exclusion contemplated under S. 12 of the Limitation Act, 1963, is possible only in cases where a ‘decree’ or ‘order’ founded on a ‘judgment’ as defined in the Code is by the Code required to be drawn up. According to the learned counsel for the respondents, the decision under S. 8 of the Act, though captioned an ‘order’, is neither a ‘decree’ nor an ‘order’ as envisaged in the expression, ‘copy of the decree or order appealed from or sought to be revised or reviewed’ in sub-sections (2) and (3) of S. 12 of the Limitation Act, 1963, in so far as according to him, the said decision is not a ‘decree’ or ‘order’ as defined in sub-sections (2) and (14) of S. 2 of the Code. The submission is that the decision is not that of a court, but that of Tribunal and therefore it is neither a ‘decree’ nor ‘order’ as defined in the Code. In that connection the learned counsel cited a large number of decisions in support of the position that a Tribunal like the Forest Tribunal is not a court. We do not think it necessary to examine those decisions or to decide the last mentioned point since in our view (as will be evident from what is stated hereinafter) the maid argument that S. 12 of the Limitation Act, 1963, will not, on its langauge, be attracted to a decision under S. 8 of the Act is without any merit and has to be repelled.

5. An identical argument was advanced before the Supreme Court in Vidyacharan Shukla's case. The Supreme Court therein” pointed out—

“……a decree is a formal expression of adjudication conclusively determining the rights of parties with regard to all or any of the controversies in a suit, whereas order is a formal expression of any decision of a civil court which is not a decree. Judgment is a statement given by the judge of his grounds in respect of a decree or order. Ordinarily judgment and order are engrossed in two separate documents. But the fact that both are engrossed in the same document does not deprive the statement of reasons and the formal expression of a decision of their character as judgment or order, as the case may be.” (I.L.R (1964) 6 S.C.R 129 at 160-61).

6. It was further stated therein that since under S. 90 of the Representation of the People Act, 1951, the Election Tribunal is directed to try election petitions as nearly as may be in accordance with the procedure applicable under the Code of Civil Procedure, it is the duty of that Tribunal to give a statement of reasons for its decision and proceeded to say—

“It is open to it to issue two documents one embodying the reasons for the decision and the other, the formal expression of its decision: the former will be its judgment and the latter, its order. It may issue both in the same document in which case the judgment as well as the order is embodied in the same document. If so it is manifest that an order made under Sl. 98 of the Act, if it contains also the reasons for it, is a composite document satisfying the definition of a judgment as well as that of an order and thereby attracting the relevant provisions of S. 12 of the Limitation Act. That apart, a different approach to the question raised lends to the same conclusion. S. 12(2) of the Limitation Act does not say that the order mentioned therein shall be only such order as defined in the Civil Procedure Code. If a statute provides for the making of an order and confers a right of appeal to an aggrieved party against that order within a prescribed time, sub-s. (2) of S. 12 of the Limitation Act says that the time requisite for obtaining a copy of such order shall be excluded. The Act empowers the Tribunal to make an order and gives a right of appeal against that order to the High Court. S. 12(2) of the Limitation Act is, therefore, directly attracted without any recourse to the definition of an order in the Code of Civil Procedure. In cither view, S. 12 of the Limitation Act applies, and, therefore, the time taken for obtaining a copy of the said order shall be excluded in computing the period of limitation.” (ILR. (1964) 6 SCR. 129 at 161-62).

7. S. 8 of the Act enables a person who claims that the land is not a private forest or that the private forest has not vested in the Government, to invoke the jurisdiction of the Tribunal by applying to it for a decision of that dispute. From a decision given by the Tribunal under S. 8 an appeal lies to this Court under S. 8A of the Act. Under rule II of the Kerala Private Forests (Tribunal) Rules, 1972, in all proceedings before the Tribunal, it is required to follow the procedure prescribed as regards applications in the Code of Civil Procedure, 1908, and the rules made thereunder as far as they can be made applicable except to the extent otherwise provided in the Act or the Kerala Private Forests (Tribunal) Rules, 1972. Though the Act contains no provision which states the manner in which the decision under S. 8 is to be rendered, since under rule 11 of the Kerala Private Forests (Tribunal) Rules, 1972, the procedure to be followed is that prescribed in the Code of Civil Procedure, 1908, as regards an application, and this decision is an appealable decision, the Tribunal has to give its reasons in support of that decision, either in a separate document or in the same document which contains its decision. That decision is not one determining the rights of parties with regard to any matter in controversy in a suit and therefore is not a decree falling within the definition of that term in S. 2(2) of the Code; it can, therefore, be characterised only as an order as defined in S. 2(14) of the Code, that is, the Tribunal's formal expression of a decision which is not a decree. The statement of reasons given by the Tribunal is a judgment.

8. In view of what is said above, the order under appeal is a composite document a judgment-cum-an-order—falling within the definitions of the words ‘judgment’ and ‘order’ in sub-sections (9) and (14) of S. 2 of the Code of Civil Procedure, 1908. The appellant is entitled to exclude the time requisite for obtaining a copy of the order (decision) of the Tribunal appealed from under S. 12(2) of the Limitation Act, 1963, and the time requisite for obtaining a copy of the judgment (statement of reasons given by the Tribunal) on which its order is founded under sub-section (3) thereof. In so far as the Tribunal's decision and the statement of reasons therefore are contained in the same document, the time required to obtain a copy of that document is to be excluded in computing the period of limitation of this appeal, and so determined, as stated in the beginning of this judgment, this appeal is within time. This disposes of the preliminary objection raised on behalf of the respondents that this appeal is out of time, and takes us to the merits of the appeal.

9. As already found the decision under S. 8 of the Act is an appeal-able order, the forum of appeal being this Court. This necessarily means that such an order should be a speaking order of the Tribunal. With reference to an order under S. 36 of the Central Excise and Salt Act, 1944, which confers revisional power on the Central Government in respect of any decision or order passed under that Act by any Central Excise Officer or the Central Board of Revenue, the Supreme Court in Travancore Rayons v. Union of India ((1969) 3 SCC 868 : AIR. 1971 SC. 862) said as follows:—

“The Central Government is by S. 36 invested with the judicial power of the State. Orders involving important disputes are brought before the Government. The orders made by the Central Government are subject to appeal to this Court under Art. 136 of the Constitution. It would be impossible for this Court, exercising jurisdiction under Art. 136, to decide the dispute without a speaking order of the authority, setting out the nature of the dispute, the arguments in support thereof raised by the aggrieved party and reasonably disclosing that the matter received due consideration by the authority competent to decide the dispute. Exercise of the right to appeal to this Court would be futile, if the authority chooses not to disclose the reasons in support of the decision reached by it.”

10. Besides, proceedings before the Tribunal are, as stated above, under rule II of the Kerala Private Forests (Tribunal) Rules, 1972, to be conducted in accordance with the provisions of the Code of Civil Procedure, 1908, as far as they can be made applicable. Under sub-rule (2) of rule 4 in Order XX of the Code judgments other than in Small Cause Suits shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. And it should be remembered that the appellate jurisdiction of this Court under S. 8A of the Act is not in any manner circumscribed, and therefore it has to function as a court of fact and of law. Tested in the light of the above principles, we are afraid that the order under appeal does not satisfy the same. The point raised for consideration is whether the petitioners are entitled to get exemption under S. 3(2) of the Act. That provision reads:—

“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.

Explanation:—For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.”

11. The Tribunal found on the evidence of Pw. 1 that the area is a natural forest having several trees of forest species, there are some 10 or 15 murukku trees aged 20 to 25 years and that there are no other trees like cashew, tamarind, jack etc. The Tribunal noticed that Pw. 1's evidence is to the effect that all but the murukku are of natural growth. And relying on the explanation to S. 3(2) of the Act as per which the word ‘cultivation’ in S. 3(2) is to be understood as including ‘cultiavtion of trees or plants of any species’ proceeded to say—

“Therefore, the existence of forest trees also can be treated as cultivated trees because it has been almost admitted by Rw. 1 that some murukku trees and pepper vines appear to have been planted. I hold, therefore, that the petitioners should be considered to have personally cultivated the disputed lands. It follows that the exemption claimed under S. 3(2) of the Act should be granted in favour of the petitioners. The petitions are therefore allowed.”

12. We are unable to sustain the finding as aforesaid. The reasoning is absolutely perverse in that the Tribunal says that forest trees of natural growth ‘can be treated as cultivated trees’. The learned counsel for the respondents prays that the respondents be given another opportunity to substantiate their claim. In the interests of justice we accede to the request so made. We set aside the order under appeal and remit back the case to the Tribunal for de novo trial and decision. This appeal is allowed as above. There will be no order as regards costs.

Allowed.

13. Leave has been asked for. No substantial question of general importance that needs to be decided by the Supreme Court arises in this case. Leaue refused

14. Leave refused.