Skip to content


Divisional Forest Officer Vs. T.U. Cheriyan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.M.P. Nos. 8399 and 3307 of 1982 in O.P. No. 1091 of 1982
Judge
Reported inAIR1982Ker363
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Sections 151; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantDivisional Forest Officer
RespondentT.U. Cheriyan
Appellant AdvocateAdv. General
Respondent Advocate K.P. Radhakrishna Menon,; K.K. Ravindranath,; K. Karthik
Excerpt:
- - an order like this passed pending proceedings can, for valid reasons, be set aside or modified at any time pending the proceedings......powers of the high court in this regard. this petition for review has beenfiled by the divisional forest officer, palghat, the 2nd respondent in the o. p.2. the short facts of the case, shorn of unnecessary details, are: the petitioner in the original petition, who is the counter-petitioner in the petition for review, got an assignment of 92 acres of land from one pamkkulty mannadissiar. he cut the trees from sy. no. 1580 included in the lands ha got. as the forest authorities did not give him transit permits for the transport of timber he approached this court with the original petition. one of the averments in the original petition is that wild fire will destroy the timber. along with the original petition the petitioner filed c. m. p. no. 3307 of 1982 for direction to issue the.....
Judgment:
ORDER

K.K. Narendran, J.

1. The short point that arises for consideration in this Civil Miscellaneous Petition is whether the High Court has the power to review or reconsider an interlocutory order passed in an original petition under Article 226 of the Constitution pending the original petition, even if the order was passed after hearing the party seeking the review. The further point is whether the insertion of the Explanation to Section 141 of the Civil P. C., 1908 by the 1976 Amendment Act making the procedure provided in the Code not applicable to proceedings under Article 226 of the Constitution, will in any way affect the powers of the High Court in this regard. This petition for review has beenfiled by the Divisional Forest Officer, Palghat, the 2nd respondent in the O. P.

2. The short facts of the case, shorn of unnecessary details, are: The petitioner in the original petition, who is the counter-petitioner in the petition for review, got an assignment of 92 acres of land from one Pamkkulty Mannadissiar. He cut the trees from Sy. No. 1580 included in the lands ha got. As the forest authorities did not give him transit permits for the transport of timber he approached this Court with the original petition. One of the averments in the original petition is that wild fire will destroy the timber. Along with the original petition the petitioner filed C. M. P. No. 3307 of 1982 for direction to issue the trans-sit permits. After hearing the Liaison Officer this Court gave a direction for the issue of transit permits. The petitioner again filed C. M. P. No. 4602 of 1982 for directions. In the affidavit filed along with the above C. M. P. it was averred that timber worth Rs. 40,000/- was already destroyed by fire. After hearing the Liaison Officer. a further direction was issued. As the permits were not issued, the petitioner again filed C. M. P. No. 5213 of 1982 for directions and this Court after hearing the Additional Advocate General issued fresh directions subject to certain conditions. It is a fact that at no stage the Liaison Officer or the Additional Advocate General raised any objections against the directions issued. As the transit passes were not issued, the petitioner filed an original petition (contempt) against the forest officers. It was then that the Divisional Forest Officer filed this petition for review.

3. The following further facts were also brought to light by the affidavits filed by the petitioner and the respondents in the original petition and the Civil Miscellaneous Petitions. The lands that the petitioner got assignment of from Mannadissiar are lands restored to her in pursuance of the judgment of this Court in M. F. A. 401 of 1978. The lands involved in the M. F. A. were only plantations. Some dense forest with gregarious growth of rosewood trees not included in the lands covered by the M. F. A. was wrongly handed over to Mannadissiar by the forest officers without the sanction of the Custodian of Vested Forests or the competent authority. It was from this land 5 to 6 Kilometres away, from the lands covered by the M. F. A. that the petitioner cut 423 rosewood trees and it is for the transport of the above timber that the petitioner wantstransit permits. On 22-5-1982 the State Government have issued G. O. Rt. No. 134582/AD directing the Custodian and the Conservator of Forests to take immediate action for taking back the 31.36 acres of forest land.

4. Justice is the pursuit and the end of all law. A Court exists for the administration of real justice. Within the limits of the power a Court has, the power to do justice and to undo injustice is very wide. The wide powers the High Court has under Article 226 of the Constitution are there to do justice and to prevent the miscarriage of justice. There is no indication in the Constitution that High Court cannot review an order and correct an error it committed to meet the ends of justice. The High Court is a Court of plenary jurisdiction. The power of review is an inherent power and it cannot be said that in the exercise of its extraordinary jurisdiction vested under Article 226, the High Court cannot have this power and interfere with an interlocutory order it has passed, and that too pending the proceedings. The High Court is a Court of record. It cannot be said that a Court of record has no power to correct an error which has crept info its proceedings when brought to its notice. Otherwise, the result will be the perpetuation of the errors in the records. The inherent power of ;i Court is not a power conferred upon the Court by the Civil P. C. it is a power inherent in the Court because of its duty to do justice. Section 151 of the Code of Civil Procedure only recognises this power and does not confer this power on a Court. So, simply because by the 1976 amendment the proceedings under Article 226 of the Constitution have been taken out of the purview of the Civil P. C., it cannot be said that the High Court has no inherent power and cannot review an order passed in a, proceeding under Article 226. Over and above all these, the order in question is only an interlocutory order and by no stretch of imagination it can be said that the High Court cannot interfere with that order pending the original petition and that too after hearing all the parties concerned. If the order is one which could not have been passed in the facts and circumstances of the case, if the order results in the miscarriage of justice and if going by the papers already in Court no such order could be passed at least pending the original petition, it goes without saying that the High Court has the power under Article 226 of the Constitution to review that order and correct the error brought to its notice and that toowhen the order is yet to be implemented. The mere fact that the review petition has been filed under Section 151 of the Civil P. C. is not a reason to refuse to exercise the jurisdiction this Court has to correct the error. It is enough that the error has been brought to the notice of the Court. At any rate, pending adjudication of the question whether the land from which the timber has been extracted has ceased to be the property of the State, this Court should not have issued directions to the forest authorities to issue transit permits for the transport of the timber. It is immaterial whether the order was passed after hearing the parties. An order like this passed pending proceedings can, for valid reasons, be set aside or modified at any time pending the proceedings. The only restrictions are that it must he with notice to the parties concerned, it must be to meet the ends of justice and it should not result in the arbitrary exercise of the power vested in the Court. As the interference the High Court makes is not by virtue of any power vested under the Civil P. C.J the 1976 amendment to the Code cannot stand in the way.

5. In the result. I set aside the directions sought to be reviewed and allow the petition for review. The petitions for directions will stand dismissed. No costs.

The three directions issued by this Court and referred to in the order are given in the Appendix

APPENDIX

1. C. M. P. No. 3307 of 1982 in O. P. No. 1091 of 1982

'Heard the petitioner's counsel and the Liaison Officer. The first counter-petitioner is to consider the petitioner's representation dated 18-1-1982 and pass orders on the same, say, within a week of receipt of this order. As far as the timber covered by Ext. P-2 judgment, transit permits have to be issued in terms of that judgment if the same is not set aside or modified.

Hand over the order.'

2. C. M. P. No. 4602 of 1982 in O. P. No. 1091 of 1982.

'Heard the petitioner's counsel and the Liaison Officer. It has been brought to my notice that it is the 2nd counter-petitioner, Divisional Forest Officer who has got the power to issue the passes in question. In viewof this there will be a direction to the 2nd counter-petitioner (D. F. O.) to comply with the direction given by this Court on 16-2-1982 in C. M. P. No. 3307/82 regarding the disposal of the petition dated I8-I-I982 and the issue of the necessary passes.

Serve order on the 2nd counter-petitioner, the Divisional Forest Officer, Palghat, by special messenger at petitioner's cost. It is for the counter-petitioner to take necessary action immediately.

3. C. M. P. No. 5213 of 1982 in C. M. P. No. 4602 of 1982 in C. M. P. No. 3307 of 1982 in O. P. No. 1091 of 1982,

'Heard the petitioner's counsel and the Additional Advocate General In the facts and circumstances of this case, there will be a direction to the 2nd counter-petitioner Divisional Officer, Special Range, Palghat to give the petitioner the necessary transit permits for the timber cut and stacked in the property handed over to the respondent in the M. F. A. on condition that she will not hereafter make any claim against the State for land or teak that was on her land which was distributed to landless people. This will not preclude the respondent in the M. F. A. from getting the balance extent of land due to her as per the judgment in M. F. A. 401 of 1978 and referred to in the counter-affidavit filed, in the original petition. The transit permits are to be issued as expeditiously as possible and at any rate within a week. This order is subject to the condition that the respondent in the M. F. A. will file an affidavit before the D. F. O. stating that she will not raise any claim for the 10 acres of teak plantation and certain other lands directed to be handed back to her by the High Court and which is found to have been assigned away by Govt. or otherwise not available now.

Hand over the, order to the counsel for the petitioner and issue carbon copy of this order to the Additional Advocate General.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //