State Of Kerala v. Ahamadkutty Haji & Others

John Mathew, J.:— This review petition was filed on 5-1-1984 by the State of Kerala and the Conservator of Forests and Custodian of Vested Forests, Government of Kerala, who were the respondents in M.F.A No. 149 of 1980, under Order 47 Rule 1 of the Code of Civil Procedure read with S. 8C(2) of the Kerala Private Forests (Vesting and Assignment) Ordinance No. 39 of 1983. A Division Bench of this Court disposed of M.F.A 149 of 1980 by judgment dated 4-3-1982. Subsequently tne above said Ordinance was promulgated by the Governor of Kerala amending the Kerala Private Forests (Vesting and Assignment) Act, 1971. By that Ordinance new Ss. 8B, 8C and 8D were inserted after S. 8A of the Vesting Act. Since a Bill to replace the said Ordinance by an Act of the legislature could not be introduced and passed by the Legislative Assembly of Kerala, fresh ordinances were being promulgated from time to time. Finally the Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986 (hereinafter referred to as the Amendment Act) was passed. Under S. 1(2) of that Act the said Amendment Act shall be deemed to have come into force on the 19th of November, 1983, when Ordinance No. 39 of 1983 was published in the Gazette. Under S. 8B of the Amendment Act, the Custodian is given the power to apply for review of decisions of Forest Tribunals. Under S. 8C the Government is empowered to file appeal or application for review in certain cases. S. 8D provides for stay of decisions and orders liable to be reviewed or appealed against. Under S. 3 of the Amendment Act, any application for review filed under S. 8B or 8C before the expiry of six months from the commencement of the Amendment Act shall be deemed to have, been validly filed. S. 8C (2) of the Amendment Act is the provision of law applicable to this petition. It is as follows:

“8C. Power of Government to file appeal or application for review in certain cases:

(1) Omitted.

(2) 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 any judgment, decree or order of any court or other authority, the Government, if they are satisfied that any order of the High Court in an appeal under S. 8A (including an order against which an appeal to the Supreme Court has not been admitted by that Court) has been passed on the basis of concessions made before the 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 begining 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.

(3) Omitted

(4) Omitted

(5) On receipt of an appeal under sub-section (1), or an application under sub-section (2), or sub-section (3), the High Court may, 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 any judgment, decree or order of any court or other authority, after giving a reasonable opportunity to the parties to be heard either in person or by representative, pass such orders thereon as it may think fit.”

2. In the review petition, which is in the prescribed form, apart from giving the required details, the petitioners have given the grounds for review in paragraph 10. One of the main grounds relied on by the petitioner is that the Additional Advocate General submitted at the time of hearing of the appeal that the order of the Forest Tribunal could be confirmed with two safeguards specified in paragraph 3 of the judgment and that amounts to a concession without authority from the petitioners. The petitioners also have raised the contention that the applicant before the Tribunal has not proved bis right, title and interest and possession of the land on the appointed day, namely 10-5-1971. According to them that contention was not brought to the notice of the Tribunal or this Court at the time of argument. Subsequently petitioners filed CMP. 4866 of 1984 for amending the review petition to bring the review petition in accordance with the statutory provisions. We allowed that petition when the review petition was heard. The petitioners filed an affidavit dated 8-12-1986 producing 11 documents. The applicant/before the Tribunal filed a counter affidavit dated 17-10-1986 and also an additional counter affidavit dated 9-6-1987. The point to be decided is whether the judgment of this Court in M.F.A 149 of 1980 is liable to be reviewed.

3. Before considering this point we may examine the scope of S. 8C of the Amendment Act. One of the Ordinances which preceded the Amendment Act, namely Ordinance 17 of 1984 was challenged before this Court as violative of Art. 14 of the Constitution. Our learned brother, Sukumaran, J., in Bhagavathi Tea Estates v. State of Kerala (1979-85 KUC. 753) while overruling that contention observed as follows, after extracting the statement of objects and reasons of the bill:

“The passage disclose the alarming scale of the failures in various spheres of the implementation of that legislation. If in the above circumstances, the State felt that it had to save itself from its servants and even from its agents and advisers, the attempt of the Government cannot be viewed as in any way unwholesome or unjust. If despite the availability of massive evidence, none, or substantial portion of it, had not been duly or properly adduced before the Tribunal, or if important aspects had not been highlighted before the deciding agencies, the result would indubitably be a deflection of the course of justice Even this court bad pointed out such lapses of the governmental agencies, on very many occasions: Enacting a law, in such circumstances, to check fraudulent deprivation of the State's rights and interests cannot be termed as arbitrary or unjust, on the contrary, it is a necessary piece of legislation.”

4. The preamble to the Amendment Act also refers to the unauthorised concessions made before the Tribunal and the High Court. S. 8B confers powers on the Custodian to apply for review of decisions of Forest Tribunals and S. 8C empowers the Government to file appeal or application for review in certain cases. Sub-section (2) of S. 8C, with which we are now concerned, envisages two stages. At the first stage the Government must be satisfied that (a) any order of the High Court under S. 8A has been passed (I) on the basis of concessions made before the High Court without the authority in writing of the Government or (2) due to failure to produce relevant data or other particulars before the High Court or (b) 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. At the second stage the Government may file an application to the High Court for review of such order. Such right is granted only up to 31-3-1987. One of the controversies to be settled is whether the three grounds mentioned in S. 8C can be relied on by the Government as grounds for review or whether only for the satisfaction of the Government in order to file a review petition. On a plain reading of the Section we are of opinion that either of the three grounds mentioned in S. 8C (2) should exist in order that the Government may file a petition for review. It is not provided in the Amendment Act that if any of these three grounds exists that itself will be a ground for review. The word ‘review’ is well understood in legal cricles. The primary iotention of a review is the reconsideration of the subject matter by the same Judge under certain conditions. It is a restricted power which authorises the court or Tribunal which passed the judgment to look through the judgment not in order to substitute a fresh or second judgment, but in order to correct it or improve it because some material which it ought to have considered, escaped its consideration or failed to be placed before it. By this the court cannot decide the case over again, even if the court feels that what was done formerly was faulty or even incorrect. It is well settled that generally there is no right of review in proceedings under special enactments as such a right is a substantive right and not a mere matter of procedure (See P.N Thakershi v. Pradyumansighji., (1971) 3 SCC 844 : AIR. 1970 SC 1273). The period of limitation for an application for review of judgment by a court other than the Supreme Court is 30 days from the date of the decree or order, under Article 124 of the Limitation Act. S: 8C(2) provides that review petitions may be filed under that Section from the date of commencement of the Amendment Act till 31st March, 1987. But that Section does not refer to the grounds which can be urged in support of the petition for review. Therefore the provisions of Code of Civil Procedure must apply for a review, petition under the Amendment Act also. Those grounds are (1) discovery of new and important matter of evidence which after the exercise of due diligence was not within the petitioner's knowledge or could not be produced by him at the time when the decree or order was passed, (2) on account of some mistake or error apparent on the face of the record, and (3) for any other sufficient reason which means reason analogus to those specified in the first two grounds (See Chhaju v. Neki (AIR 1922 PC. 112) and Shatrunjit v. Md. A. Azim Khan ((1971) 2 SCC 200 : AIR. 1971 SC. 1474).

5. Before the Amendment Act there was no provision in the Kerala Private Forests (Vesting and Assignment) Act. (Act 26 of 1971) for review, although there was a provision for appeal under S. 8A of that Act. So also under sub-section (5) of S. 8A, every order passed in appeal under that Section was made final. Under S. 12 of that Act the Tribunal and Custodian was conferred with powers of a civil court while trying a suit under certain provisions of the Code of Civil Procedure. It is now settled that the courts have inherent power to review its orders even if there is no specific power conferred on it (See Shivdev Singh & Others v. State Of Punjab & Others, AIR. 1963 SC. 1909). It may be noticed that even before the Amendment Act, the review petitioners filed R.P No. 67 of 1983 in September, 1983 under Order 47 Rule 1 CPC along with a petition to condone delay. The delay petition was dismissed as not pressed, after the promulgation of Ordinance preceding the Amendment Act, so that a fresh review petition under the Ordinance may be filed. Accordingly the Review Petition was also dismissed. The present review petition is also filed under Order 47 Rule 1 CPC. read with S. 8C (2) of the Ordinance which preceded the Amendment Act. As stated above, there is no indication in the Amendment Act that the powerto review conferred by S. 8C is different from or wider than the power of review conferred by the Code of Civil Procedure. The Court cannot under cover of this power of review arrogate to itself the power to decide the case over again even in case it is shown that the assessment of evidence was faulty or the judgment was rendered on an erroneous view of evidence or of law.

6. In paragraph 2 above we have referred to the grounds urged in the review petition. The review petitioners main submission is that the order sought to be reviewed was passed on concession of the learned Additional Advocate General, who was appearing for the petitioners in the appeal. That is one of the three grounds mentioned in S. 8C (2) which can be relied on by the State in order to take a decision to file a review petition. It is not mentioned that the order two grounds namely failure to produce relevant data or other particulars in the High Court or that an appeal could not be filed before the Supreme Court by reason of delay in applying for certified copy of the order, were available in this case. The contention of the learned counsel for the respondent is that the review petition itself is filed without proper reasons for the satifaction envisaged under S. 8C. According to learned counsel the observation in the judgment of this court that the learned Additional Advocate General stated that the order of the Forest Tribunal could be confirmed with two safeguards should be read in the background and the circumstances under which that statement was made. According to learned counsel the respondent herein filed a petition before the Forest Tribunal ro call for the file containing a report of the Revenue Inspector regarding bis inspection of the property on the 14th and 15th of February, 1973. That inspection was made pursuant to the respondent's application for cardamom registration in respect of this area. The Forest Tribunal did not pass any order on that petition. When the appeal was filed the respondent filed CMP. 2813 of 1982 in this Court praying for production of those records. That petition was allowed and the report dated 15-2-1973 of the Revenue Inspector was produced. The court accepted the additional evidence and marked the report as Ext. R. 1 and the sketch produced along with it as Ext. R. 2. According to learned counsel, even without these records, the Forest Tribunal before whom considerable evidence was adduced, came to the conclusion that the area was a cardamom plantation and will not vest in the State. The additional documents produced only confirmed this finding. Even so the Additional Advocate General insisted that two conditions must be imposed by this Court while disposing of the appeal. Those conditions were: (I) an undertaking by the respondent that be does not own or possess any other cardamom plantation in the Sy. No. concerned and (2) demarcate the area owned and possessed by the respondent by an inspection by the Custodian of Vested Forests. This Court accepted the suggestion of the learned Additional Advocate General and disposed of the appeal.

7. A brief reference to the evidence adduced before the Forest Tribunal and the manner in which the Forest Tribunal disposed of the Original Application may not be out of place. The Original Application was filed for a declaration under S. 8 of Act 26 of 1971 that an extent of 400 acres of unsurveyed land in Pillapperuvanna village did not vest in the Government under the provisions of the said Act. In the application the petitioner averred that there was no dispute regarding 100 acres out of this 400 acres. The respondent namely this review petitioner's did not deny the averment regarding the 100 acres. However, the respondents contended that the petitioners had neither title nor possession. They also denied the contention that the entire are3 was planted with cardamom prior to the appointed day namely, 10-5-1971. The petitioner produced Exts. P8 to P12 to prove bis title. After considering these documents the contention of the respondents that the petitioner bad no title or possession was rejected by the Tribunal. Regarding the contention that the entire area was planted with cardamom, the petitioner produced Exts. P5 and P6 to show that application for registration of the entire extent as a cardamom estate was pending with the Tahsildar, who was the authorised officer for granting registration. The petitioner also produced Exts. P1 to P4 in support of his case. The Tribunal deputed a Commissioner to inspect the property. Ext. C1 report filed by the Commissioner along with the other documentary evidence as well as the oral evidence of Pw. 1 and Rws. 1 to 3 were considered by the Forest Tribunal and the Tribunal came to the conclusion that the entire extent was planted with cardamom prior to 10-5-1971.

8. The order of the Tribunal was passed on an appreciation of the evidence in this case. During the pendency of the appeal against this order before this Court the respondent herein filed C.M.P 2818 of 1980 to direct the review petitioners to produce a document. The Additional Advocate General produced the report and plan prepared by the Revenue Inspector, which were admitted by this Court as additional evidence and marked as Exts. R. 1 and R2. In Ext. R1. report submitted by the Revenue Inspector on 15-2-1973 to the Tahsildar, Quilandy, it was mentioned that be inspected the area applied for registration of cardamom plantation on 14-2-1973 and 15-2-1973. It is mentioned that he verified the area of 400 acres as per the sketch (Ext. R.2). He reported as follows:

“I have verified the area of 400 acres as per the sketch enclosed and found about 100 acres planted with cardamom aged about 5 years old, and the remaining 300 acres is an old plantation with cardamom aged about 10 to 15 years, old and also found yielding in the area. Further I have seen that the entire plantation is covered by wild growth of jungle bushes and plants. Some of the cardamom plants are dried up here and there in the old plantation of 300 acres. On enquiry the applicant said that the reason for drying up some plants is due to Kottee Disease which is common in all the cardamom plantations and further be said that he could not clear the jungle growth and improve the garden due to the frequent interference and obstructions by the forest department.

There is a House for staying purpose bearing C.P 1/405 of Chokkittapara Panchayat and there are also two more sheds in the area for workers. There is cardamom nursery near the Karinganny Thodu with an area of about SO cents. There is drying yard also near the house. East of the area is Nadukani Niyuves, South is Mekkalladi Puzha and the west and north is Karinganny Thodu

The applicant is in absolute physical possession and enjoyment of the area and none else.

I am of opinion that the entire 400 acres is planted with cardamom prior to 1970”

9. According to learned counsel for the respondent, when the appeal was being argued, this Court was convinced that the appeal is only to be dismissed, and that the judgment of the Forest Tribunal was fully justified. It was at that stage that the learned Additional Advocate General who was appearing for the review petitioners submitted that two conditions may be imposed to safeguard the interest of the State. The only ground mentioned in the review petition is that the judgment of this Court was made on an unauthorised concession by the learned Additional Advocate General. Accordrng to learned counsel, even without Exts. R. 1 and R. 2 the judgment of the Forest Tribunal was only to be confirmed. Learned counsel pointed out that this Court by judgment dated 21-6-1972 in Gwolior Rayon Silk Mfg. Co. Ltd. v. State (1972 KLT. 628) held that Act 26 of 1971 was ultra vires of the Constitution. It was only by judgment dated 18-9-1973 in State of Kerala v. Gwaliar Rayon Co. (1973 KLT. 896) that the Supreme Court reversed that judgment. Ext. R.1 report was prepared on 15-2-1973 between these two dates, when the Act was not in force. Tt was also pointed out that Ext. R-1 bears the seal of the Taluk Office, Quilandy dated 16th February, 1973. Under the circumstances it was submitted that there cannot be any doubt regarding the genuineness of that document. According to learned counsel, the present attempt of the learned Government Pleader to prove that Ext. R-I report is not correct in view of certain other reports in the file, ought not to be considered in this review petition. This is more so because the file showed to this Court by the learned Government Pleader, namely C-4/7098/79 of the Taluk Office, Quilandy itself contains a representation of the petitioner, at page 129, that those inspections were made without proper notice to the petitioner and if notice had been given before inspection, he could have correctly identified property and produced the receipt for payment of about Rs. 8,000/- as tax for this property. He also mentioned that his estate was in Pillaperuvaona Amsom.

10. Even in this review petition the petitioners have no case that there was failure to produce relevant data or other particulars either io the Tribunal or in this Court. There is also no averment that any new and important matter or evidence was discovered after the passing of the judgment in this appeal. The entire records were available before this court when the appeal was disposed of on the 4th March, 1982 by Khalid, J., as he then was, and Balagangadharan Nair, J. Under the circumstances, we cannot accept the contention of the learned Government Pleader that the appeal was disposed of without a proper examination of the evidence and only on the concession of the learned Additional Advocate General. There was no evidence before this court that the area in question was a forest on the appointed day. The contention that the true facts were not brought to the notice of the Forest Tribunal or this court, cannot be accepted.

11. In Chengan Souri Nayakam,… v. A.N Menon,…Counter-Petitioner. (1968 KLT. 1 (FB.)) this Court had occasion to consider the authority of Advocates to enter into compromise god to confess judgment. Mathew, J., as be then was, speaking for the Bench referred to Shenandan Prasad v. Hakim Abdul (AIR. 1935 P.C 119) and Jiwibai v. Ramkuwar (AIR 1947 Nagpur 17 FB.) where it was held that counsel in India has an inherent implied authority to compromise the case in which he is engaged. The learned Judge also held as follows:

“That counsel is not a mere agent of the client would be made clear if we look at the nature of his duties and relationship with the public and the court. Counsel has a tripartite relationship, one with the public, another with the court, and the third with his client. That is a unique feature. Other professions or callings may include one or two of these relationships but no other has the triple duty.”

12. We cannot hold that the right and the powers of an Advocate General appointed under Article 165 of the Constitution are in any way lesser than that of an ordinary Advocate. This Court in Padmanabhan v. State of Kerala (1977 KLT. 916) has held that Additional Advocate General can discharge all the constitutional and legal functions of the Advocate General in view of the delegation of the functions of the Advocate General to the Additional Advocate General by the Government. Even in case the judgment is rested on a concession made by the Advocate General, normally that may not be a legal ground for reviewing the judgment, unless the Advocate General himself states that be made the statement on a misconception of the facts or the law. Learned counsel for the respondent pointed out that Sri. T.C.N Menon, who was the Additional Advocate General who was appearing for the State in this appeal, was alive when the review petition was filed, but he was not made a party to the application and no notice of the allegation was given to him. He was denied any opportunity to justify bis action, since the allegations will amount to improper conduct by the Additional Advocate General. It was further pointed out that the review petition, although it was filed in 1984, was not brought up for orders until Sri. T.C.N Menon expired on 10th February, 1986.

13. On going through the judgment of this Court dated 4th March, 1982, we are not satisfied that the judgment was rendered on any concession made before this court. This Court considered the admissibility of the documents marked as Exts. R. 1 and R. 2 as additional evidence, and decided to admit them. In the counter affidavit as well as in the additional counter affidavit filed by the respondent, it is averred that the judgment was passed after hearing the appeal. Unless there is any positive evidence to the contra, we have to accept that averment as true. Under the circumstances, we are not satisfied that there was any ground for filing this review petition. Even if it is taken for argument's sake that the review petition is maintainable, the petitioners have not established any valid ground to sustain their prayer to review the judgment of this Court.

14. Under the circumstances, the Review Petition is dismissed. However, there will be no order as to costs.

M.MDismissed.