-·.

M.M. THOMAS A v.

STATE OF KERALA AND ANR.

JA."lUARY 6, 20CO

(K.T. THOMAS A."ID D.P. MOHAPATRA, JJ.[ B

Kera/a Private Forests (Vesting and Assignment) Act, 1971-Section 3(1 f-Plivate Forelts stood transferred and vested in State Government from "appointed day"-Appellant claimed exemption regarding 20 acres of land under Section 3(3)-Forest Tribunal dismissed claim-High Court in appeal C hejd, appellant not entitled to exemption under Section 3(3) but under Section 3(2)--High Court in review found that an affirmative decision exempting appellant under Section 3(2) was error apparent on face of record-On appeal Held, High Court rightly allowed review as earlier judgment was vitiated by error apparent on face of record.

Section 8C-f'ower of review by Forest Tribunal and High Court-Certain condition not fulfilled by State Government-Held, when there is an error apparent on the face of record High Court not only has power but a duty to correct it- Power not circumscribed by Section 8C(2).

Constitution of India-Article 215-Revie~S cope of jurisdiction-- Held, High Court competent to determine jurisdiction-High Court as a Court of Record has inherent power to correct records-When any apparent error noticed, it has not only power but a duty to correct i~Such power is plenary-Denial of such power will dwindle its superior status.

F The lands of the appellant stood transferred to and vested in the State as per Section 3(1) of the Kerala Private J"orests (Vesting and Assignment) Act, 1971, according to which all private forests in the State stood transferred to and vested in the Government free from all encumbrances from the "appointed day" fixed as 10.5.1971. Forest Tribunals had been constituted for adjudicating disputes regarding applicability of G exceptions to Section 3(1) of the Act. The appellant raised a claim in respect of 20 acres of land, which was disputed before that Tribunal. He contended that his case fell within the exception under Section 3(3) of the Act. His claim was dismissed, and he filed an appeal before the High Court under Section SA of the Act.

33 H

A The High Court was of the view that the appellant was not entitled to exemption under Section 3(3), but the appeal was allowed as the High Court was not satisfied with the manner in which exemption under Section 3(2) was considered by the Tribunal.

Section SC was subsequently incorporated in the Act, which con- B ferred powers on the Forest Tribunal as well as the High Court to review their orders under certain conditions. The Government moved the High Court to review its earlier judgment. The review was allowed as the High Court found that an affirmative decision entitling the appellant to exemption under Section 3(2) was an error apparent on face of the record. c Aggrieved the appellant appealed to this Court contending that power of the High Court to revil!W is circumscribed under Section 8C(2) and the existence of the conditions in the subsection is sine qua non for such exercise; that in the application filed for review no such conditions had been highlighted; and that the concession envisaged in Section 8C(2) D cannot be made out by implication as it should be express and direct.

Dismissing the appeal, this Court

HELD : 1.1. The earlier judgment of the High Court was obviously E wrong on account of two reasons and since the contention based on section 3(2) of the Act was upheld and it was rightly set aside by the High Court in Review. First is that the appellant did notmake a claim for exemption under that sub-section at all. On the contrary his claim itself was based on Section 3(3). Second is that appellant gave evidence in the case exclusively for establishing his claim under Section 3(3). [39-E-F] F 1.2. Any claim for exemption under Section 3(2) must necessarily be in respect of an area which was brought under cultivation by him before the appointed day i.e. 10.5.1971. If no cultivation was made by him on the land concerned before the said crucial date its owner cannot base a claim for G exemption. Appellant did not mention in his claim that he had cultivated the said land before the said date uor did he mention that the land Wits brought under cultivation even on a single day prior to 10.5.1971.[39-G-H]

1.3. The High Court went out of the claim and found that he was entitled to exemption under Section 3(2). The earlier judgment of the High H Court was vitiated by an error apparent on the face of the record. [ 40-B]

M.M. THOMASv. STATb:THUMAS, J.j 35

State of Kera/av. Subramoniam Namboodri, (1992) 2 KLT 300 and A Pankajakshy Amma v. Custodian of Vested Forest, (1995) 1 KLT 358, approved.

2.1. High Court as a court of record, as envisaged in Article 215 of

B the Constitution, has inherent powers to correct the records. A Court of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. It is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. If any apparent error is noticed in respect of any orders passed by it then the High Court C has not only power, but a duty to correct it. [40FG]

2.2. If such power of correcting its own record is denied to the High Court when it notices apparent errors, the consequence is that its superior status will dwindle down. It is only proper to think that the plenary powers

of the High Court would include the power of review relating to errors D apparent on the face of the record. [41-G]

Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [1966) 3 SCR 744; M. V. Elisabeth & Ors. v. Harwan Investment of Trading Pvt. Ltd., [1993) Supp. SCC 2 433, relied on.

Ha/sbury's Laws of England (4th Edn.) Vol. 10 Para 713, referred to.

3. The question whether failure to put forth a contention would amount to a concession being made by the State counsel as envisaged in Section 8C(2) is left open. [42-A] F

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9663 of 1994.

From the Judgment and Order dated 17.2.87 of the Kerala High G Court in R.F. No. 185/84 in M.F.A. No 449 of 1979.

P. Krishnamurthy, K.V. Vishwanathan, S.R. Setia, E.M.S. Anam and G. Prakash for the appearing parties.

The Judgment of the Court was delivered by H

36 SUPREME COURT RrPURTS

[2000) 1 S.C.R.

A THOMAS, J. Two questions are mooted in this appeal filed by special leave. First is whether the power to revit:w a decision rendered under Kc::rala Private Forests (Vesting and Assignment) Act, 1971 (for short ;•the Act") could have bet:n ext:rcised in the absence of any of the conditions specified in Section 8C of the Act. The second question - which has sprouted as anctllary to the first question - is whetht:r the High Court B has (de hors the said provision) power to review its own di::cision rendi::rcd

in appt.:al tiled under the Act. lf both question are answen::d in the negative the appellant can M.lcceed in getting the impugned order (of a Division Bench of the High Court of Kerala) annulh:d in his favour. Otherwise the impugnt:d order will remain undisturbed. c The facts which led to the said order an: 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 D day"'. The statute itself has fixed 10.5.1971 as the >aid appointed day.

However, two t.:xceptions were provided as per sub-sections (2) and (3) of Section 3 of the Act which are cxtracti.:d bdow :

"(2) '.'-lothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests hdd by an E 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) ;../othing contained in sub-section J shall apply in respect of so F much extent of private fon:sts 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 Ill of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling G area applicable to him under section 82 of the said Act.''

Forest Tribunals were constituted for adjudicating the disputes

regding applicahility of the said exceptions. Appellant raised a claim in respect of 20 acres of land as not vested in the Government. As th..: claim was disputed appellant filed a petition before the Forest Tribunal for H adjudication for the dispute. Ht: mainly contt:nded before the Forest

\ '-

M.M. THO~

v. STA TE [IBO MAS, J.J 37

Tribunal that the said area fell within sub-section (3) of Section 3 of the A Act, but the Forest Tribunal repelled his claim and dismissed his pt:tition.

Tht:rt:upon ht: filed an appeal bt:fore the High Court of Kerala under Section 8A of the Act.

By judgment dated 13.1.1982 a Division Bench of tht: High Court concurrt:d with the view of the Forest Tribunal that the appellant is not entitled to the exemption under sub-section (3) of Section 3 of the Act.

However, the Division Bench proceeded to consider whether appellant can have benefit of the exemption provided in Section 3(2) thereof. The Division Bench held thus :

;'We are not satisfied with the manner in which the claim of the appellant under Section 3(2) was considered by the Tribunal. The Tribunal should have found that there was sufficient evidence in the case to show that the appellant satisfo:d the definition of the word 'owner' so far as his claim under Section 3(2) was concerned.

The Tribunal should have therdore held that the appellant was entitled to the exemption in n:spect of 12 acres of land clainu:d under Section 3(2) of the Act. We hold that the Tribunal erred in declining the relief to the appellant at least to the extent of the property covered by Ext.P9 under Section 3(2) of the Act."

The Act was subsequently amended by incorporating Section SC therein as per which powers were conferred on the Forest Tribunal as well as the High Court to review the orders under certain conditions. The Government and the custodian of vested forests moved an application, in April 1984 before the High Court purporting to be under Section 8C(2) of the Act, for review of the earlier judgment of the High Court. On 17.2.1987 the Qivision Bench of the High Court n:viewed the earlier judgment and dismissed the appeal. Two premises were adopted by the High Court for such review. First was the following :

'The affirmative decision in favour of the applicant - appellant that G he was ent!tlcd to exemption under Section 3(2) of the Act 26 of 1971 did clearly amount to an error apparent on the face of the record justifying invocation of the power of review.

Second was that the counsel for the State failed to bring to the notice of the High Court before the judgment was passed on 13.1.1982 that the H

A appellant had not filed n:turn under the provisions of the Kerala Land Reforms Act (for determining the ceiling limit of the area of the land he!d by him) stating that the disputed land was private forest, and that such a failure on the part of the State's counsel would amount to concession made by such counsel as envisaged in Section 8C(2) of the Vesting Act.

B Shri K.V. Vishwanathan, learned counsel for the appellant contended that power of the High Court to review the judgment or order passed under the Act is circumscribed under Section 8C(2) and that existence of the conditions specified in the subsection is since qua non for such exercise. Learned counsel further submitted th<!t in the application C filed by the State for review of the earlier judgment no such conditions had been highlighted. Alternatively, learned counsel submittt:d that the concession envisaged in Section 8C(2) cannot be made out by implication as the concession should be express and direct.

Section SC consists of thn:e sub-M:ctions. The first sub-section deals with the power of Forest Tribunal to review its order. It is the second sub-section which deals with the powi:rs of the High Court to review.

Hence, that sub section alone is relevant for consideration in this case. For understanding the scope of Section 8C(2) we extract sub-section below :

"(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 dppeal under Section SA (including an order against which an appeal to the Supreme Court has not bet:n admitted by that Court) has been passed on the basis of concessions made bdore 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 dday in applying for and obtaining a certified copy of such order, may, during the period beginning with the cornrni::ncement of the Kaala Private Forests (Vesting and Assignment) Amt:ndment Act, 1986 and ending on the 31st day of March 1987, make an application to the

M.M. TIIOMAS v. STATE [THOMAS, J.J 39

High Court for review of such order."

A Division Bench of the High Court of Kerala in State of Kera/a v.

Subramanian Namboodiri, (1992) 2 Kerala Law Times 300 has taken the view that a remedy of review under the sub-section is not available merely because the State foels that the decisjon 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."

However, a Full Bench of the same High Court in Pankajakshy Amma v. Custodian of Vested Forest, _(1995) 1 Kerala Law Times 358, 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 D "it has inherent power to review besides power under S. SC of the Act"

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 juqgment 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).

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 G 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 H

A 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 t:ntitled to exemption under Section 3(2). Therefore tht: earlier judgment of tht: High Court dated 13- L-1982 was vitiated by error apparent on the face of the record.

It is true tb.at the application for review did not mention that there was any concession made by the Gowrnment counsd. Hence there is force in the contention that review could not bt: made on that premise. So far as Forest Tribunal is concerned its power of review can be trnccd to Section SC. Unless law has conferred power of review the inferior courts and tribunals cannot exercise any such power of review. So tht: Forest Tribunal can exercise power of review in conformity with Section SC of the Act.

In this case we are not concerned with the power of n:view of the D Forest Tribunal. It was the High Court which reviewed its own judgment and so the question is wht:ther the High Court has such power de hors Section 8C(2) of the Act. Power of n:view conferred on the Supn:me Court under Article 135 of the Constitution is not specifically made applicable to the High Courts. D0t:s it mean that the High Court has no power to correct its own orders, .oven if the High Court is satisfied that there is error E apparent on the face of the record?

High Court as a Court of Record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A Court F of Record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony. A Court of Record is undoubtedly a superior court which is itsdf competent to determine the scope of its jurisdiction. The High Court, as a Court of Record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders G passed by it the High Court has nut only power, but a duty to correct it.

The High Court\ power in that regard is plenary. In Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [ 1966) 3 SCR 744 =AIR

(1967) SC 1 a nine Judge Bench of this Court has recognised the aforesaid superior statue of the High Court as a court of plenary jurisdiction bdng H a Court of Record.

M.M. THOMAS v. STATh [THOMAS, J.j 41

In Halsbury's La% of England, 4th Edn. Vol.10, para 713 it is stated A thus:

"The chief distinctions between superior and inferior courts are found in connection with jurisdiction. Prima f acie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular mattt:r is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of gem; ral 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 rderence is to English Courts the principle would squarely apply to the superior courts in India also.)

Referring to the said passage and relying on the decision of this Court in Naresh Shridhar Mirajkar (supra) a two Judge Bench of this E Court in M. V Elisabeth and Ors. v. Harwan Investment & Trading Pvt. Ltd., [1993] Supple. 2 SCC 433 ~, AIR (1993) SC 1014 has observed thus :

"The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherc.; nt and plenary powers. Unless expressly or implit; dly barred, and subject to the F appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction."

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 G 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.

In the aforesaid view of the matter we are nut disposed to interfere with the impugned order though we are not deciding the qm:stiun whether H

A the failure to put forth a contention would amount to concession being made by the State counsel as envisaged in Section 8C(2) of the Act.

In the result we dismiss this appeal.

A.Q.

Appeal dismissed.