TMI Blog2010 (8) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a written statement before the Forest Settlement Officer under section 6 of the Act in (claim case No.2/1955) claiming title to the disputed lands, which formed part of the proposed reserve forest. The Forest Settlement Officer by common order dated 14.11.1969 rejected his claim inter alia holding that the notified areas were lands at the disposal of the government and the government was entitled to constitute the same as a reserve forest. Feeling aggrieved the appellant s predecessor filed an appeal against the order of the Forest Settlement Officer under section 11 of the Act. The appeal was allowed by the first Additional District Judge, Ernakulam by common judgment dated 23.6.1980 holding that the Royal Neet of 1928 ME to which the appellant traced back his title was a genuine document and the notification issued by the Government in respect of the proposed reserve forest was without jurisdiction. 3. The State Government filed an appeal against the said appellate judgment before the High Court under section 12A of the Act. (MSA No.1/1981). The High Court allowed the second appeal and reversed the judgment of the District Judge. The order of the High Court was challenged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law; and that where the High Court is satisfied that the second appeal involves any substantial questions of law, it should formulate the said questions of law. Questions for considerations 6. On the contentions raised, the questions that therefore arise for our consideration in this appeal are : (i) Whether an appeal under section 12A of the Kerala Forest Act, 1961 against an appellate order under section 11 of the said Act, would lie only if it involves a substantial question of law? (ii) If so, whether the Memorandum of appeal shall have to state the substantial question of law involved in the appeal and whether the High Court is bound to formulate the substantial question/s of law, while admitting the appeal or before posting the appeal for hearing. The relevant legal provisions 7. The answers to the questions raised depend upon the scheme of chapter II of the Act relating to Reserved forests. The relevant portions of Sections 4, 5, 6, 8, 9, 11, 12A and 83 of the Act are extracted below : 4. Notification by Government.- Whenever it is proposed to constitute any land a Reserved Forest, the Government shall publish a notification in the Gazette- x x x [c] ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Civil Procedure for appealable cases. (2) He shall, at the same time, consider and record any objection which the Forest Officer, if any, appointed under section 4 to attend at the inquiry on behalf of the Government, may make to any such claim. (3) He may also inquire into and record the existence of any rights referred to in section 4 and not claimed in answer to the notice issued under section 6, so far as they are ascertainable from the records of the Government and the evidence of any person likely to be acquainted with the same. 9. Powers of Forest Settlement Officer.- For the purpose of such inquiry, the Forest Settlement Officer may exercise the following powers, namely:- (a) the power to enter by himself or to authorize any officer to enter upon and land, and to survey, demarcate and make a map of the same; and (b) the powers of a Civil Court in the trial of suits. 11. Appeals from the Orders of Settlement Officer.- (1) Where a claim is rejected wholly or in part, the claimant may, within ninety days from the date of the order prefer an appeal to the District Court in respect of such rejection only. The time taken for obtaining copies of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from any inferior court or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior court or tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to rehear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below. An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial. (emphasis supplied) 11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [1962 Supp. (1) SCR 933], this court held : A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. (emphasis supplied) 12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [1969 (2) SCC 74], this court re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of illustration, refer to the following : Section 260A of Income Tax Act, 1961. Appeal to High Court. 260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner; (b) [omitted] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be dee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te unless those restrictions are imposed by express enactment or necessary intendment. It was further contended that as no restriction was imposed upon the power of second appeal under section 28 of the Rent Act, the High Court was competent and indeed bound to entertain all objections to the correctness of the judgment including those relating to questions of fact. This court negatived the said contention. This court held that a second appeal under section 28 of the Saurashtra Act can be entertained by a High Court within the limits prescribed by section 100 of the Code of Civil Procedure and it is not open to the parties to demand re-appraisal of the evidence by the High Court. This Court held that the scheme of Saurashtra Act did not confer any special jurisdiction upon the courts described therein, but it only intended to provide for a second appeal in terms of section 100 of the Code. This Court held that the Saurashtra Act merely declared that a second appeal will lie to the High Court against decrees or orders passed by the courts exercising jurisdiction under section 27, but thereby the essential character of a second appeal under the Code was not altered and the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f section 100 of the Code, into such provision, then, it will not be permissible to read the limitations of section 100 of the Code into the special provision. 17. We may now examine the scope of section 12A of the Act with reference to the above principles. For convenience we have juxtapositioned section 100 of the Code with section 12A of the Act, to ascertain the scope of section 12A of the Act. Section 12A of the Act. Appeal to the High Court .- Section 100 of the Code Second appeal . - (1) The Government or any person objecting to any order of the District Court in an appeal under section 11 may, within a period of ninety days from the date of that order, appeal against such order to the High Court: Provided that High Court may admit an appeal preferred after the expiration of the period of ninety days aforesaid if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture Appellant(s)/Counsel for Appellant The facts stated above are true to the best of my knowledge and belief. Signature Appellant(s)/Counsel for Appellant 18. The following differences in the two provisions demonstrate that section 12A of the Act is intended to be self contained in so far as appeals under the Act to the High Court, deliberately deviating from the provisions of section 100 of the Code : (i) Sub-sections (1), (3) and (4) of section 100 of the Code provide specifically that the second appeal would lie only where substantial questions of law are involved. On the other hand, sub-section (1) of section 12A provides for an appeal against the order of the appellate authority under section 11 of the Act would lie, without specifying any limitation or restriction. (ii) Section 100 of the Code begins with the words Save as otherwise expressly provided by any other law . This means that a second appeal can be to a court or Tribunal other than the High Court, or that second appeal need not be restricted to substantial questions of law, if so provided by other law. Section 12A of the Act is one such provision of other law, expressly providing otherwise. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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