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Case Number

M.F.A No. 325 of 1989

Attorney(S)

For the Appellant: Govt. Pleader (Jose K.Kochupappu)

Judges

M.M Pareed Pillay
A.C.J
T.V Ramakrishnan
P. Shanmugam, JJ.

Acts

Assignment) Act, 1971, hereinafter called as the Act,
Order 47, Rule 1 of the Code of Civil Procedure
provisions of Order XLVII, Rule 1, C.P.C
provisions of O. XLVII, Rule 1, C.P.C
Section 8C(3) of Act 36 of 1986,
Amendment Act, 36 of 1986
Order XLVII, Rule 1, C.P.C
Order 47, Rule 1

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Smart Summary

Structured Summary of Opinion by Shanmugam, J.

Factual and Procedural Background

The appellants filed Original Application No. 851 of 1974 before the Forest Tribunal, Palghat, claiming that 7.22 acres of land in Nochipully, Palghat taluk and District should be excluded from vesting in the Government under the Private Forests (Vesting and Assignment) Act, 1971 ("the Act"). The Tribunal, by order dated 28 May 1977, upheld the appellants' claim and allowed the O.A. Subsequently the respondents (the Custodian/Government) filed a review petition (I.A. No. 370 of 1987) under Section 8B of the Act. The Tribunal allowed that review petition and set aside its earlier order, holding that the appellants were not entitled to the claimed relief. The appellants then challenged the Tribunal's review order by filing M.F.A. No. 325 of 1989 before the High Court.

Legal Issues Presented

Whether, and to what extent, the provisions of Order XLVII, Rule 1, C.P.C. apply to a review petition filed before the Forest Tribunal under Section 8B of the Private Forests (Vesting and Assignment) Act, 1971 or before the High Court under Section 8C of the Act.
Whether the Tribunal's power to review under Section 8B(3) is restricted to the same grounds that the Custodian must satisfy under Section 8B(1) before applying for review (i.e., whether the Tribunal must confine itself to those three specified grounds).

Arguments of the Parties

Appellants' Arguments (as advanced by Mr. P.N.K. Achan, Senior Counsel)

Section 8B(1) identifies three specific grounds upon which the Custodian may be satisfied to apply for review: (a) decision based on concessions made without authority in writing of the Custodian or Government; (b) decision made due to failure to produce relevant data or particulars; and (c) inability to appeal because of delay in obtaining certified copy.
The Tribunal can review its judgment only if one of those three conditions is satisfied; it cannot go beyond them to find other defects for review.
In the present case none of those three grounds are established in the review application; therefore Section 8B is not applicable to permit review.
The Tribunal improperly relied on data collected long after disposal of the O.A., effectively allowing the Government to supply data that it failed to produce earlier.
The Tribunal's findings that the disputed land was part of a private forest were not based on evidence, and the appellants were not given sufficient opportunity to establish their case.

Respondents' (Government/Custodian) Arguments (as advanced by Mr. Jose K. Kochupappu, Government Pleader)

The Government raised several grounds in its review memorandum; it characterized certain grounds as legal points (referred to as Nos. 3, 4 and 5 in the opinion) while relying on others to substantiate the Government's stance.
The review petition sought a review of the Tribunal's order, issuance of notice to the respondents and further opportunities for the revision petitioner to adduce oral and documentary evidence.
The original Tribunal order was passed without relevant and vital data which goes to the root of the matter; after considering documentary evidence, the Tribunal correctly allowed the review petition and negatived the appellants' claim.
The earlier order of the Tribunal contained errors apparent on the face of the record, justifying review.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
State Of Kerala v. Ahamadkutty Haji & Others (1987 (2) Ker LT 406)	Held (by a Division Bench) that at the stage of considering a review petition on merits, the grounds in Order XLVII, Rule 1, C.P.C. must be established and review cannot be allowed unless those grounds are made out.	The court in this opinion expressly states that the view taken in that decision — that provisions of Order XLVII, Rule 1, C.P.C. must apply to review petitions under the Act — is not the correct view for reasons explained in this judgment.
V.M. Abraham v. State of Kerala (1987 (1) Ker LT Sh. No. 57)	The decision sets out the background for Amendment Act 36 of 1986 (i.e., legislative history and reasons for S. 8B/S. 8C).	The court refers to this decision for the background of the amendment that introduced Section 8B, noting that the amendment responded to public-interest concerns about conduct in forest litigation.
Govindan Thirumulpad v. State of Kerala (1988 (1) Ker LT 865)	Upheld the provision enabling the Custodian/Government to seek review or appeal notwithstanding limitation, and found the conferment of such powers justified by the preamble and circumstances.	The court relies on this Division Bench decision to support the view that Section 8B/8C confers broad review powers and is not constrained by Order XLVII, Rule 1, C.P.C.
State of Kerala v. Thomas (1989 (1) Ker LT 201)	Addressed the contention that review must be exercised only under circumstances analogous to Order XLVII, Rule 1, C.P.C.; relied on earlier authority to hold that Order 47 Rule 1 is not exhaustive and that broader grounds may justify review.	The opinion cites this decision to reinforce that Order XLVII, Rule 1, C.P.C. does not exhaustively define grounds for review, and that Section 8C/S.8B confer wider powers to review where sufficient grounds exist.
MMB Catholicos v. M.P. Athanastus (AIR 1954 SC 526 : 1955 SCR 520)	Explains the traditional scope of the power of review under Order XLVII, Rule 1 — ordinarily not permitting appreciation of evidence afresh unless specific reasons are shown — and recognizes "other sufficient reasons" as a possible basis for review.	The court cites this Supreme Court authority (as applied in State of Kerala v. Thomas) to support the proposition that Order 47, Rule 1 is not exhaustive and that if sufficient grounds are made out, the court may review the entire evidence.

Court's Reasoning and Analysis

The court begins by construing Section 8B of the Act. It identifies two separate legal questions implicit in the statute: (a) the condition precedent for the Custodian to make an application for review under Section 8B(1), and (b) the scope of the Tribunal's power to review once an application is made pursuant to Section 8B(3).

The court notes that Section 8B(1) requires the Custodian to be satisfied as to at least one of three specific grounds (concessions without authority, failure to produce relevant data, or inability to file an appeal because of delay in obtaining certified copy) before making an application for review. It treats satisfaction of any one of those grounds as a condition precedent enabling the Custodian to apply for review.

However, the court carefully distinguishes that statutory prerequisite from the standard or scope that the Tribunal must apply when considering the review petition under Section 8B(3). The provision, the court observes, does not state that the Tribunal's power to review must be confined to the same three grounds for which the Custodian must be satisfied. If the Tribunal were so restricted, the court reasons, that would unduly limit the scope of the Tribunal's review power and render Section 8B narrower than the legislative purpose suggests.

The court then considers the legislative purpose and history: Section 8B was introduced by Amendment Act 36 of 1986, and the amendment arose from concerns (set out in earlier decisions) about mismanagement or misconduct in litigation over private forests. Given that background, the court holds that the Act intends to empower the Custodian/Government to seek review or appeal in situations where public interest is affected, notwithstanding rules of limitation or restrictive provisions in other laws.

Relying on prior Division Bench decisions (notably Govindan Thirumulpad and State of Kerala v. Thomas) and the Supreme Court authority in MMB Catholicos, the court reasons that Order XLVII, Rule 1, C.P.C. is not exhaustive of review jurisdiction. The court concludes that the review power under Section 8B(3) is not controlled by the grounds specified in Section 8B(1) and that Order XLVII, Rule 1, C.P.C. does not apply to review under the Act. The opinion expressly disagrees with the earlier Division Bench decision in State of Kerala v. Ahamadkutty Haji & Others to the extent it held that Order XLVII, Rule 1 must govern review under the Act.

The court enumerates examples of permissible grounds that a Tribunal may consider in review under the Act (language used by the court): discovery of vital evidence which, after due diligence, was not within knowledge; omission to note a point of law; an error apparent on the face of the record; erroneous assumption as to material fact; omission to try a material issue; or any other sufficient reason. Thus, the grounds are not exhaustive.

The court also notes that the High Court possesses inherent power to review in addition to the statutory power under Section 8C of the Act.

Applying these principles to the facts, the court reviews the Tribunal's factual findings. The Commissioner (Ext. C1) reported that the property was a fenced paramba with seven-year-old rubber trees (planted after the date of vesting), surrounded on three sides by shrub jungle and on all four sides by vested forest. The Tribunal concluded that the disputed property was part of a private forest, and further found that the applicant did not prove title or personal cultivation on the appointed day (thus not entitled to Section 3(3)), and on the facts also not entitled to Section 3(2). The court found that the appellant had been given sufficient opportunity during the review proceedings and that there was no infirmity in the Tribunal's factual findings or in its decision to review the earlier order.

Holding and Implications

Holding: Appeal dismissed.

Implications and immediate consequences:

The Tribunal's review judgment setting aside the earlier order (i.e., dismissal of O.A. and allowance of the review application) is upheld by the High Court; accordingly the appellants' successful claim in O.A. No. 851 of 1974 was set aside and the appeal against the Tribunal's review order fails.
The court holds as a legal principle that Section 8B(3) of the Private Forests (Vesting and Assignment) Act, 1971 confers a review power on the Tribunal that is not restricted to the three grounds enumerated in Section 8B(1) for the Custodian's satisfaction. Order XLVII, Rule 1, C.P.C. does not govern review petitions under the Act.
The decision affirms that grounds for review under the Act are not exhaustive and may include discovery of vital evidence, omission to consider a point of law, error apparent on the face of the record, erroneous assumptions of material fact, failure to try a material issue, or other sufficient reasons.
The High Court retains inherent power to review in addition to its statutory power under Section 8C of the Act.

The court ordered no costs. The judgment therefore resolves both the parties' dispute in this matter and clarifies that the statutory review regime created by Amendment Act 36 of 1986 is broader than, and not constrained by, Order XLVII, Rule 1, C.P.C.

Appeal dismissed.

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Pankajakshy Amma And Others v. Custodian Of Vested Forest & Conservator Of Forests, Vested Forests Circle, Kozhikode And Others

Shanmugam, J.:— The question that arises for consideration is whether and if so to what extent the provisions of Order XLVII, C.P.C would apply to review petition filed before the Forest Tribunal under Sec. 8B of the Private Forests (Vesting and Assignment) Act, 1971, hereinafter called as ‘the Act’, or before the High Court under Section 8C of the Act. The appellants herein filed an application O.A No. 851 of 1974, before the Forest Tribunal, Palghat, claiming exemption/exclusion for an extent of 7.22 acres of land situated in Nochipully, Palghat taluk and District, from vesting in the Government under the said Act. The Forest Tribunal passed an order dated 28th May, 1977 upholding the claim and allowed that application. The respondents herein filed a review petition, I.A No. 370 of 1987, under Section 8B of the Act. The Tribunal allowed the review petition and set aside the order passed in O.A No. 851 of 1974 holding that the appellants are not entitled to the claim made by them.

2. As against the order of the Tribunal the appellants filed M.F.A No. 325 of 1989 contending that the order of the Forest Tribunal allowing the application for review is contrary to law and against the evidence in the case. When the matter came up before the Division Bench one of the contentions raised on behalf of the appellants was based on the decision in State Of Kerala v. Ahamadkutty Haji & Others (1987 (2) Ker LT 406), wherein the Bench has taken the view that at the stage of consideration of the review petition on merits, the grounds mentioned in Order XLVII, Rule 1, C.P.C has to be established and if any one of those grounds is not established, review cannot be allowed. The referring Bench was of the opinion that the said decision requires reconsideration.

3. Mr. P.N.K Achan, Senior Counsel appearing for the appellants, submitted that Section 8B of the Act enables the Custodian to apply for review of the decisions before the Tribunal, if he is satisfied that such decision has to be reviewed on the following grounds:

a) that the decision was on the basis of concessions made before the Tribunal without the authority in writing of the Custodian or the Government;

b) the decision was made due to the failure to produce relevant data or other particulars;

c) an appeal against such decision could not be filed by reason of the delay in applying for and obtaining a certified copy.

The learned Counsel for the appellants proceeds to submit that the Tribunal can review the judgment only if these three conditions are satisfied, and Tribunal cannot go beyond these conditions and find out any other defect in the order for the purpose of reviewing its own judgment. Applying this principle the order impugned does not satisfy any of the conditions to review. According to the learned Counsel none of the grounds set out in the application has been made out to warrant the applicability of Section 8B of the Act. According to him the Tribunal is wrong in taking note of the data collected long after the date of the disposal of O.A and it will amount to supplying the data failed to be produced before the Custodian. According to the learned Counsel, the findings of the Tribunal that the disputed land is part of a private forest are not based on any evidence. Finally learned Counsel submitted that the applicants have not been given sufficient opportunity to establish their case.

4. Mr. Jose K. Kochupappu, Government Pleader appearing on behalf of the respondents, submitted that he has raised grounds Nos. 3, 4 and 5 as the legal points and the remaining grounds to substantiate the stand of the Government in his memorandum of review petition filed under Section 8B of the Act. In the prayer the Government has sought for the review of the order, issuance of notice to the respondent and to allow further opportunities to the revision petitioner to adduce evidence both oral and documentary. According to him the original order was passed without the relevant and vital data which goes into the root of the matter and therefore after going through the documentary evidence the Tribunal has rightly allowed the review petition and negatived the claim of the appellants. The learned Government Pleader submits that the earlier order of the Tribunal suffers from errors apparent on the face of record and therefore the order was justifiably reviewed.

5. We have heard the arguments of both sides and gone through the records of the case carefully. We are of the view that Section 8B 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 8B(3) of the Act, on receipt of an application under sub-section (1) of Section 8B the Tribunal shall review decision and pass such orders as it may think fit. On a plain reading of the Section that 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 8B of the Act if the power is treated as analogous to the power of review under Order XLVII, Rule 1, C.P.C Section 8B 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 incharge of litigation before the Forest Tribunals and before this Court as well as the conduct of some counsel who appeared for the State and the Custodian in some of the cases. The Legislature thought it fit to incorporate these provisions enabling the Custodian or the Government, as the case may be, to seek review of the decisions or prefer appeal before the High Court notwithstanding the fact that the period of limitation prescribed has expired, if the Government or the Custodian are satisfied about the existence of any one of the three grounds set out in Section 8B(1) of the Act. There is nothing in the provisions of the Act to indicate that the review petition has to be dealt with in accordance with the provisions of O. XLVII, Rule 1, C.P.C On the contrary the provisions under the Act make it clear that the power is to be invoked notwithstanding anything contained in this Act or in the Limitation Act or in any law by the time being in force. The said provision has been upheld by a Division Bench of this Court, in Govindan Thirumulpad v. State of Kerala (1988 (1) Ker LT 865), in which one of us was a party. According to the said decision, conferment of such drastic powers seems to us to be fully justified by the recitals contained in the preamble, which discloses a sordid state of affairs in the conduct of cases dealing with private forests. The Division Bench has also upheld competency of State Legislature to pass such an order. Before the said Division Bench one of the contentions was that the grounds mentioned for justifying the application for review by State or the Custodian amount to conferment of additional and under serving privileges on one of the litigants, in addition to and in supersession of provisions of O. XLVII, Rule 1, C.P.C While dealing with the said contention the Division Bench in paragraph 29 held as follows:

“The effect of Section 8C(3) of Act 36 of 1986, as we understand it, is not to impair the efficacy of a writ of mandamus already issued by this Court, but to enable the court to consider more comprehensively as to what should have been the judgment which this Court would have rendered, had all the relevant facts of relevant data and materials been properly brought before it and had there not been any suppression or misrepresentation of facts. That we believe is in substance, the effect of the provisions of the Code of Civil Procedure dealing with the power of review, viz. S. 114 and Order XLVII of the Code of Civil Procedure as well.”

6. In another Division Bench of this Court in State of Kerala v. Thomas (1989 (1) Ker LT 201) similar contention was raised to the effect that court has to exercise the power of review only if it is found that circumstances are therefore justifying the exercise of power of review under Order XLVII, Rule 1, C.P.C or other cognate circumstances. While dealing with this contention following the decision in MMB Catholicos v. M.P Athanastus, AIR 1954 SC 526 : (1955 SCR 520), the Court held that:

“…..The power of review is a well known concept. It ordinarily does not enable reconsideration of the propriety of the prior order or authorise appreciation of evidence afresh unless the specific reasons stated in Order 47, Rule 1 or “other sufficient reasons” are shown to exist. But if sufficient grounds are made out, it does not preclude this Court from reviewing the entire evidence. We are of the opinion that Order 47, Rule 1 of the Code of Civil Procedure is not and was not meant to be exhaustive. The Rule itself left room for the Court to interfere if other sufficient reason was made out. That elbow room seem to us to have been further enlarged. This seems to be the position in view of the specific provisions contained in S. 8C(5). That was the view taken by another Division Bench of this Court in the decision in R.P No. 166 of 1984 in M.F.A No. 358 of 1980.”

7. The above decisions strengthen our view that the power of review under S. 8B(3) of the Act is not restricted or controlled by Section 8B(1) of the Act, Order XLVII, Rule 1, C.P.C does not apply to the review of order passed Under the Act. The view of the Division Bench in State Of Kerala v. Ahamadkutty Haji & Others (1987 (2) Ker LT 406) holding that the provisions of Order XLVII, Rule 1, C.P.C must apply for review petition cannot therefore be the correct view for the reasons set out above. The Tribunal while dealing with the application for review is not restricted to the grounds mentioned under Section 8(1) of the Act. There may be grounds like discovery of a vital evidence which after due diligence was not within the knowledge, or omission to note the point of law, or an error apparent on the face of record, or erroneous assumption as to material fact or where the Tribunal has omitted to try a material issue or any other sufficient reason. Thus the grounds of review are not exhaustive and in the light of the amendment it cannot be restricted to specified grounds. However so far as the High Court is concerned it has inherent power to review besides power under Section 8C of the Act. Once review is allowed the Tribunal has to go into the issues afresh and consider the matter.

8. Coming to the facts of the case it is found that on the basis of the report of the Commissioner, Ext. C1, the property is a fenced paramba where rubber is planted aged 7 years indicating that they were planted land after the date of vesting. Commissioner has reported that to the east, south and north of the disputed property there is a shrub jungle. Commissioner has further stated that on the four sides of the disputed property it is vested forest. Based on that view the Tribunal found that the disputed property is part of a private forest. The Tribunal further found that the applicant is not entitled to the benefit of Section 3(3) of the Act since he has not proved his title and that he was not in personal cultivation of the property on the appointed day. On the facts and circumstances of the case the Tribunal has come to the conclusion that the applicant is not entitled to the benefit of Section 3(2) of the Act also. The appellant was given sufficient opportunity while considering the review petition. In the result the O.A was dismissed and the review application was allowed. We do not find any infirmity in the factual findings of the Tribunal nor we find any other in reviewing the order passed earlier.

In the circumstances of the case the appeal is dismissed. No order as to costs.