* Author
[2024] 5 S.C.R. 81 : 2024 INSC 310
The State of Telangana & Ors.
v.
Mohd. Abdul Qasim (Died) Per LRs.
(Civil Appeal No. 5001 of 2024)
18 April 2024
[M. M. Sundresh* and S. V. N. Bhatti, JJ.]
Issue for Consideration
High Court whether justified in passing the impugned order in
review petition in favour of the plaintiff-respondent despite him not
proving his title over the suit property (forest land), setting aside
the concurrent judgments rendered by courts below which inter
alia found that the suit land was a part of the reserved forest and
the plaintiff had failed to show his title to the suit property.
Headnotes
Andhra Pradesh Forest Act, 1967 – s.15 – Andhra Pradesh
(Telangana Area) Land Revenue Act, 1317 F. – s.87 – Code of
Civil Procedure 1908 – s.114; Or. XLVII, r.1 – Proceedings of
the revenue department dtd. 17.11.1960 whereunder a revision
of survey and settlement took place – Respondent No.1
herein-Plaintiff filed application u/s.87, A.P. Land Revenue
Act, 1317 F. seeking rectification of survey error stating
that he owned the suit land, allowed – Land being forest
land was declared as reserved forest by way of notification
published u/s.15 of the A.P. Forest Act on 11.11.1971 – Trial
court while granting title to the plaintiff declined the relief
of injunction – High Court in appeal dismissed the suit –
Review filed by the plaintiff – Contrary stands as regards
the suit land being forest land were taken by State whereby
Defendant No.1-District Collector (representing the Revenue
Department), who had filed a common written statement along
with the Defendant No.2-Forest Officer taking a stand that
the suit property was a forest land which became part of a
reserved forest area, constituted a committee and it was held
that the suit property was to be excluded in favour of the
plaintiff – Said decision was taken by the District Collector
after the judgment of the First Appellate Court – High Court
passed the impugned order in review petition in favour of
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the plaintiff despite him not proving his title over the suit
property – Sustainability:
Held: Officials of the State expected to protect and preserve the
forests in discharge of their public duties clearly abdicated their
role – High Court placed reliance upon evidence produced after
the decree, at the instance of a party which succeeded along with
the contesting defendant, particularly in the light of the finding
that the land was forest land which had become part of reserved
forest – Evidence relied upon was inadmissible on the face of it
and, therefore, void from its inception, rendered by an authority
which had absolutely no jurisdiction at all – There was a distinct
lack of jurisdiction – Land belonged to the Forest Department
and therefore, Defendant No.1 District Collector (representing the
Revenue Department) had absolutely no role in dealing with it in
any manner – A subsequent event per se cannot form the basis
of a review – Sub-clause (c) of Or.XLVII r.1 specifies that the
important matter or evidence produced must have been available
at the time when the decree was passed – This is a matter of rule
– Further, proceeding under the A.P. Land Revenue Act, 1317 F
had no relevancy or connection with a proceeding under the A.P.
Forest Act concluded on 11.11.1971 – Thereafter, without any
jurisdiction, an order was passed u/s.87, A.P. Land Revenue Act,
1317 F – High Court had earlier given a clear finding that even at
the time of declaration under the A.P. Land Revenue Act, 1317 F,
these lands were not shown as private lands by the defendant –
High Court which is expected to act within the statutory limitation
went beyond and graciously gifted the forest land to a private
person who could not prove his title – While disposing of the first
appeal, the High Court exercised its power u/Or.XLI, r.22, CPC
for partly reversing the trial court decree – Even otherwise, there
were concurrent findings in so far as dismissal of the suit for
injunction was concerned – High Court showed utmost interest
and benevolence in allowing the review by setting aside the well
merited judgment in the appeal – Impugned judgment set aside,
judgment rendered in appeal restored. [Paras 51, 54-56, 59]
Andhra Pradesh Forest Act, 1967 – ss.15, 16 – Andhra
Pradesh (Telangana Area) Land Revenue Act, 1317 F. – s.87
– Notification was published u/s.15 declaring the land being
forest land, as reserved forest – Suit filed for declaration of
title and permanent injunction – Maintainability:
[2024] 5 S.C.R. 83
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Held: Completion of the process as prescribed u/s.15 results
in changing the character of land, including a forest land into a
reserved forest – Thereafter, there shall be no question of raising
any dispute on its character – Suit filed was not maintainable as
the plaintiff had not challenged the proceedings u/s.15 which had
become final and conclusive in view of the express declaration
provided in s.16 – Rather, the plaintiff filed application for
denotification before the Government which was rejected – Neither
the State Government, which rejected the said application, nor
the Forest Settlement Officer were made as party defendants in
the suit, with the State arrayed as respondent represented by the
Principal Secretary, Forest Department, at a later stage in the
appeal – Though, the Forest Officer of the Forest Department
may be an interested party, the authority who otherwise could
answer was the Forest Settlement Officer – He was the one who
concluded the proceedings – In any case, the said exercise was
irrelevant as the Plaintiff could not prove his title nor does there
lie any relevance to the action taken under the A.P. Land Revenue
Act, 1317 F – Furthermore, there was no specific challenge to the
concluded proceedings under the A. P. Forest Act – Plaintiff merely
asked for declaration of title and permanent injunction restraining
the Defendants from interfering with possession. [Paras 13, 57]
Andhra Pradesh Forest Act, 1967 – Object – Discussed.
Code of Civil Procedure 1908 – s.114; Order XLVII Rule 1 –
“after the exercise of due diligence”; “on account of some
mistake or error apparent on the face of the record” – Review
– Scope – Code of Civil Procedure, 1859 – ss.376, 378 – Code
of Civil Procedure, 1877 – s.623:
Held: The words “due diligence”, though one of fact, places onus
heavily on the one who seeks a review – It has to be seen from
the point of view of a reasonable and prudent man – Though
an element of flexibility is given to any evidence or matter on its
discovery, it has to be one which was not available to the court
earlier – It could not have been produced despite due diligence,
meaning thereby that it should have been available and, therefore,
in existence at least at the time of passing the decree – Mistake
or error apparent on the face of record would debar the court
from acting as an appellate court in disguise, by indulging in
a re-hearing – A decision, however erroneous, can never be a
factor for review, but can only be corrected in appeal – Such a
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mistake or error should be self-evident on the face of record – The
material produced, at this stage, should be of such pristine quality
which, if taken into consideration, would have the logical effect of
reversing the judgment – A subsequent event per se cannot form
the basis of a review – Sub-clause (c) of Order XLVII Rule 1 of the
CPC 1908, clearly specifies that the important matter or evidence
produced must have been available at the time when the decree
was passed – This is a matter of rule – On a very rare occasion,
an exception can be carved out – While exercising the said power,
the court has to first check the evidentiary value of such discovery,
including the circumstances under which it emanated, particularly
when it inherently lacks jurisdiction or the evidence cannot be
made admissible in law and therefore, is not relevant – In such a
circumstance, there is no question of proceeding further in deciding
the review application. [Paras 19-23]
Constitution of India – Articles 14, 19, 21, 48A and 51A – Forest
– Constitutional Perspective:
Held: Article 48A imposes a clear mandate upon the State
as a Directive Principle of State Policy, while Article 51A(g)
correspondingly casts a duty upon a citizen to protect and
improve the natural environment including forests, lakes, rivers
and wildlife and to have compassion for fellow living creatures
– These two provisions qua a forest ought to be understood in
light of Articles 14, 19 and 21 of the Constitution of India, as they
represent the collective conscience of the Constitution – If the
continued existence and protection of forests is in the interest
of humanity, various species and nature, then there can be no
other interpretation than to read the constitutional ethos into these
provisions. [Para 25]
Environment (Protection) Act, 1986 – Environment – Need
for forests – Change in approach from Anthropocentric to
Ecocentric – Natural rights theory – Economic Considerations
– “Green Accounting” – Discussed.
Judicial Deprecation – Costs – Collusive affidavits filed –
Despite a categorical finding of the suit property being a forest
land, contrary stands taken by instrumentality of the State, but
finally rectified by way of an affidavit before Supreme Court
– However, in view of such different stands, the impugned
order was passed in favour of the respondents despite him
not proving his title over the suit property (forest land):
[2024] 5 S.C.R. 85
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Held: Officials of the State expected to protect and preserve the
forests in discharge of their public duties clearly abdicated their
role – Cost of Rs. 5,00,000/- imposed – Appellant-State free to
enquire into the lapses committed by the officers in filing collusive
affidavits before the competent court, and recover the same from
the officers responsible for facilitating and filing incorrect affidavits.
[Paras 54, 59]
Environment – Protection and preservation – Approach to be
adopted by the courts – Constitution of India – Articles 48A,
51A, 21, 14 and 19:
Held: This Court has repeatedly reiterated the approach required
to be adopted by the courts where the onus is on the violator
to prove that there is no environmental degradation – There is
a constitutional duty enjoined upon every court to protect and
preserve the environment – Courts will have to apply the principle
of parens patriae in light of the constitutional mandate enshrined
in Articles 48A, 51A, 21, 14 and 19 of the Constitution of India –
Therefore, the burden of proof lies on a developer or industrialist
and also on the State in a given case to prove that there is no
such degradation. [Para 38]
Case Law Cited
Northern India Caterers (India) Ltd. v. Lt. Governor of
Delhi [1980] 2 SCR 650 : (1980) 2 SCC 167; Aribam
Tuleshwar Sharma v. Aribam Pishak Sharma and others
(1979) 4 SCC 389; Parsion Devi v. Sumitri Devi [1997]
Supp. 4 SCR 470 : (1997) 8 SCC 715; Chhajju Ram v.
Neki (1922) SCC OnLine PC 11; State of W.B. v. Kamal
Sengupta [2008] 10 SCR 4 : (2008) 8 SCC 612; Shri
Ram Sahu v. Vinod Kumar Rawat [2020] 11 SCR 865 :
(2021) 13 SCC 1; Kerala SEB v. Hitech Electrothermics
& Hydropower Ltd. [2005] Supp. 2 SCR 517 : (2005)
6 SCC 651; Sachidanand Pandey v. State of W.B.
[1987] 2 SCR 223 : (1987) 2 SCC 295; M.C. Mehta v.
Kamal Nath [2000] Supp. 1 SCR 389 : (2000) 6 SCC
213; Pradeep Krishen v. Union of India [1996] Supp.
2 SCR 697 : (1996) 8 SCC 599; Municipal Corpn. of
Greater Mumbai v. Ankita Sinha [2021] 10 SCR 1 :
(2022) 13 SCC 401; T.N. Godavarman Thirumulpad v.
Union of India [2012] 3 SCR 460 : (2012) 3 SCC 277;
86 [2024] 5 S.C.R.
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T.N. Godavarman Thirumulpad (87) v. Union of India
[2006] 3 SCR 1046 : (2006) 1 SCC 1; A.P. Pollution
Control Board v. Prof. M.V. Nayudu [1999] 1 SCR 235 :
(1999) 2 SCC 718; Intellectuals Forum v. State of A.P.
[2006] 2 SCR 419 : (2006) 3 SCC 549; Narinder Singh
and Ors. v. Divesh Bhutani and Ors. [2022] 15 SCR
1066 : 2022 SCC OnLine SC 899; Amarnath Shrine,
In re [2012] 13 SCR 1093 : (2013) 3 SCC 247; H.P.
Bus-Stand Management & Development Authority v.
Central Empowered Committee [2021] 1 SCR 344 :
(2021) 4 SCC 309 – referred to.
Books and Periodicals Cited
Paper titled “New Transitions from Human Rights to the
Environment to the Rights of Nature” by Dr. Susana Borras
published in Transnational Environmental Law, Volume 5,
Issue 1, April 2016; Christopher D. Stone: Should Trees Have
Standing? – Toward Legal Rights For Natural Objects, Southern
California Law Review, 45 (1972) (pp. 464, 473, 474, 476);
Professor Wahlen in her paper titled “Opportunities for making
the invisible visible: Towards an improved understanding of the
economic contributions of NTFPs”, published in the Journal of
Forest Policy and Economics, Volume 84, November 2017; report
of the Ministry of Environment and Forests, Government of India
titled “India’s Forest and Tree Cover: Contribution as a Carbon
Sink” (August 2009); Report on Currency and Finance; Towards
a Greener Cleaner India”, published by the Reserve Bank of
India, (2022-2023), (pp. 45, 47); “Top Soil and Civilization” by
Tom Dale and Vernon Gill Carter, published by the University of
Oklahoma Press, (1955) – referred to.
List of Acts
Andhra Pradesh Forest Act, 1967; Andhra Pradesh (Telangana
Area) Land Revenue Act, 1317 F.; Code of Civil Procedure, 1908;
Environment (Protection) Act, 1986; Constitution of India.
List of Keywords
Forest land; Reserved forest; Forest Officer; Forest Department;
Forests; Review petition; Subsequent event; Due diligence; Mistake
or error apparent on the face of the record; Costs; Collusive
affidavits.
[2024] 5 S.C.R. 87
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5001 of 2024
From the Judgment and Order dated 19.03.2021 of the High Court
for the state of Telangana at Hyderabad in IA No. 3 of 2019
Appearances for Parties
Ms. Aishwarya Bhati, Neeraj Kishan Kaul, L. Narasimha Reddy,
Sr. Advs., Sravan Kumar Karanam, Ms. Manisha Chava, Annirudh
Singh, Ms. Pranali Tayade, Ms. Shireesh Tyagi, Mrs. Medha Singh,
P. Santhosh Kumar, Dharmesh Dk Jaiswal, Ms. Ira Mahajan, Manoj
C. Mishra, Advs. for the appearing parties.
Judgment / Order of the Supreme Court
Judgment
M. M. Sundresh, J.
1. Leave granted.
2. The statement made by the Tribal Chief Seattle, way back in the year
1854, in his letter to the offer of George Washington, the former First
President of the United States of America, to buy their land, is a pearl
of wisdom not understood by the ignorant, educated modern mind.
“Every part of the earth is sacred to my people. Every
shining pine needle, every sandy shore, every mist in the
dark woods, every meadow, every humming insect. All are
holy in the memory and experience of my people.
xxx xxx xxx
This we know: the earth does not belong to man; man
belongs to the earth. All things are connected like the blood
that unites us all. Man did not weave the web of life; he
is merely a strand in it. Whatever he does to the web, he
does to himself.”
3. A well merited judgment, passed in A.S. No. 145 of 1994 by the High
Court of Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh, decided on a conscious consideration of
the issues raised before it, confirming the one rendered by the Trial
Court, was reviewed like an Appellate Court, based upon the materials
that emanated after its filing, at the instance of a party defendant in
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whose favour a decree was granted and that too by acting without
the requisite jurisdiction, is under challenge in this appeal.
4. We are dealing with a case where an instrumentality of the State,
despite a categorical finding of the suit property being a forest land,
took different stands, but finally rectified by way of an affidavit before
this Court. This act of taking different stands resulted in facilitating the
impugned order being passed in favour of the respondents, setting
aside the concurrent judgments rendered by two courts below, on
appreciation of fact and law.
5. Heard Learned Additional Solicitor General Ms. Aishwarya Bhati for
Appellants and Learned Senior Counsel Mr. Neeraj Kishan Kaul,
Mr. L Narsimha Reddy for Respondents, perused the entire record,
including the affidavits filed.
THE ANDHRA PRADESH FOREST ACT, 1967
6. The Andhra Pradesh Forest Act, 1967 (hereinafter referred to as
“the A.P. Forest Act”) has been enacted with a laudable objective of
conserving, protecting and extending the forest cover, with a sound
mechanism to deal with all the disputes arising thereunder while
declaring land as reserved forest.
“As this Act is only a Consolidating Act, it is necessary that
the objects and reasons of the Madras Act are incorporated
so that the objects and reasons for this Act can as well be
known. The Objects and Reasons of the Madras Act were
published in Fort St. George Gazette Extraordinary, dated
06th July 1882 at page 17 as follows:
Statement of Objects and Reasons: This Act is designed
to supply the want which had long been felt of legislative
enactment to enable Government to carry out effectually the
conservancy of forests of the Presidency, and to systematic
and regulate the action of the Forest Department.
The first necessity is to provide for the constitution
of the more important forests as State Reserves,
and either to clear them under arrangement for due
compensation of private rights which mitigate against
forest conservancy, or to ascertain and define such
rights so that future extension of them and fresh
encroachments shall be impossible. To this end, the
[2024] 5 S.C.R. 89
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Act enables Government to empower officers to be
called Forest Settlement officers to enquire into and
to commit on record all private rights in areas to be
elected for constitution as reserved forests. From the
decisions of the officers appeal will lie, in the case
of claims involving proprietary rights, to the District
Courts, in the case of rights of way, and of rights to
pasture to forest produce, or to the use of water to
the Collector or other Revenue Officer of not less
than such standing. When the enquiry is completed
and all claims disposed of and settled, the forest will
be declared by the Government to be reserved, and
thereafter no fresh rights can accrue therein. The Bill
also contains such provisions as are necessary for the
protection of forests declared reserved…”
(emphasis supplied)
Section 2 of the A.P. Forest Act
“2. Definitions:- In this Act, unless the context otherwise
requiresxxx xxx xxx
(f) ‘forest officer’ means any person appointed by the
Government or by any officer empowered by the
government in this behalf,-
[(i) to be the Principal Chief Conservator of Forests, Special
Principal Chief Conservator of Forests, Additional Principal
Chief Conservator of Forests, Chief Conservator of Forests,
Conservator, Deputy Conservator, Assistant Conservator,
Divisional Forest Officer, Sub-Divisional Forest Officer,
Ranger, Deputy Ranger, Forester or Forest Section Officer,
Forest Guard or Forest Beat Officer, Assistant Beat Officer,
Thanadar, Checking Officer or Plantation Watcher or any
other person or authority as may be notified;]
(ii) to perform any function of a forest officer under this Act
or any rule or order made thereunder;
but does not include a Forest Settlement Officer appointed
under Clause (c) of sub-section (1) of Section 4;”
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Section 4 of the A.P. Forest Act
“4. Notification by Government:- (1) Whenever it is
proposed to constitute any land as a reserved forest,
the Government shall publish a notification in the Andhra
Pradesh Gazette and in the District Gazette concerned
in any;
(a) specifying, as nearly as possible, the situation and
limits of such land;
(b) declaring that it is proposed to constitute such land
as reserved forest;
(c) appointing a Forest Settlement Officer to consider the
objections, if any, against the declaration under Clause
(b) and to enquire into and determine the existence,
nature and extent of any rights claimed by, or alleged
to exist in favour of, any person in or over any land
comprised within such limits, or to any forest produce
of such land, and to deal with the same as provided
in this Chapter.
Explanation:- (1) For the purpose of Clause (a), it shall
be sufficient to describe the limits of the land by any wellknown or readily intelligible boundaries, such as roads,
rivers, bridges and the like.
(2) A person appointed to be a Forest Settlement Officer
under Clause (c) of sub-section (1) shall be an officer of
the Revenue Department not below the rank of a Revenue
Divisional Officer.
(3) Any forest officer may represent the Forest Department
at the inquiry conducted under this Chapter.”
Section 7 of the A.P. Forest Act
“7. Bar of accrual of fresh rights and prohibition of
clearings:- (1) During the interval between the publication of
a notification in the Andhra Pradesh Gazette under Section
4 and the date fixed by the notification under Section 15-
(a) no right shall be acquired by any person in or
over the land included in the notification under
[2024] 5 S.C.R. 91
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Sec. 4 except by succession or under a grant or
contract in writing made or entered into by or on
behalf of the Government or any person in whom
such right was vested before the publication of
the notification under Section 4;
(b) no new house shall be built or plantation formed,
no fresh clearing for cultivation or for any other
purpose shall be made, on such land and no
tress shall be cut from such land for the purpose
of trade or manufacture;
Provided that nothing shall prohibit the doing
of any act specified in this clause with the
permission in writing of the Forest Settlement
Officer; and
(c) no person shall set fire or kindle or leave burning
any fire in such manner as to endanger or
damage such land or forest produce.
(2) No patta in such land shall be granted by or on behalf
of the Government.”
Section 8 of the A.P. Forest Act
“8. Inquiry by Forest Settlement Officer:- (1) The Forest
Settlement Officer shall consider every objection and inquire
into every claim made under Section 6, after recording in
writing the statements made or evidence given in pursuance
of the proclamation published or notice served under that
section. He shall record any representation which the forest
officer, if any, representing the Forest Department under
sub-section (3) of Section 4, may make in respect of any
such objection or claim.
(2) The evidence under sub-section (1) shall be recorded
in the manner provided by the Code of Civil Procedure,
1908 in appealable cases.”
Section 9 of the A.P. Forest Act
“9. Powers of Forest Settlement Officer:- For the purpose
of an inquiry under Section 8, the Forest Settlement Officer
may exercise the following powers, namely:
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(a) power to enter by himself or to authorise any officer
to enter upon any land and to survey, demarcate and
make a map of the land; and
(b) the powers conferred on a Civil Court by the Code of
Civil Procedure, 1908, for summoning and enforcing
the attendance of any person and examining him on
oath and requiring the production of any document
or other article.”
Section 10 of the A.P. Forest Act
“10. Claims to certain rights:- (1) Where the claims relate
to a right in or over any land other than the following rights:-
(a) a right of way;
(b) a right to water-course, or to use of water;
(c) a right of pasture; or
(d) a right to forest produce;
the Forest Settlement Officer shall, after considering
the particulars of such claim, and the objections of the
forest officer, if any, pass, an order, admitting or rejecting
the same wholly or in part after recording the reasons
therefor.
(2)(a) If any claim is admitted wholly or in part under subsection (1), the Forest Settlement Officer may:-
(i) accept the voluntary surrender of the right
by the claimant or determine the amount
of compensation payable for the surrender
of the right of the claimant, as the case
may be; or
(ii) direct the exclusion of the land from the
limits of the proposed forest: or
(iii) acquire such land in the manner provided by
the Land Acquisition Act, 1894 (hereinafter
in this sub-section referred to as the said
Act).
(b) For the purpose of acquiring such land:-
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The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
(i) the acquisition shall be deemed to be
for a public purpose; and the notification
under Section 4 shall be deemed to be a
notification under sub-section (1) of Section
4 of the said Act;
(ii) the Forest Settlement Officer shall be
deemed to be a Collector under the said
Act, and the claimant shall be deemed to be
a person interested and appearing before
him in pursuance of a notice given under
Section 9 of the said Act;
(iii) the provisions of Sections 5-A, 6,7 and 8
of the said Act shall not be applicable; and
(iv) the Forest Settlement Officer with the
consent of the claimant, or the Court as
defined in the said Act-with the consent of
the claimant and of the Government may,
instead of money compensation, award
compensation by the grant of any other
land in exchange, by the grant of any right
in or over land or partly by the grant of any
land of any right therein and partly by the
payment of money.”
Section 13 of the A.P. Forest Act
“13. Appeals from the orders of Forest Settlement
Officer:- (1) Where a claim is rejected wholly or in part,
the claimant may, within ninety days from the date of the
order under sub-section (1) of Section 10 and within sixty
days from the date of the order under sub-section (1) of
Section 11, prefer an appeal to the District Court having
jurisdiction in respect of such rejection only.
(2) Where a claim is admitted under Section 10 or Section
11 in the first instance wholly or in part and where such
claim does not relate to the acquisition of any land under
the Land Acquisition Act, 1894, a like appeal, subject to
the same period of limitation and subject to the same
conditions, may be preferred to the District Court having
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jurisdiction on behalf of the Government by the forest officer
or other person, generally or specially empowered by the
Government in this behalf.
(3) Every order passed on appeal under this section shall
be final.
(4) Where the District Court, on appeal, decides that the
claim or such part thereof as has been rejected should
be admitted, the Forest Settlement Officer shall proceed
to deal with it in like manner as if it has been in the first
instance admitted by himself.”
Section 15 of the A.P. Forest Act
“15. Notification declaring Forest reserved:- (1) Upon
the occurrence of the following events namely:-
(a) the period fixed under Section 6 for
preferring of an objection or a claim had
elapsed, and every objection or claim made
under that section was disposed of by the
Forest Settlement Officer; and
(b) in any such claim was made, the period
limited by Section 13 for preferring an
appeal from the order passed on such claim
had elapsed, and every appeal presented
within such period was disposed of by the
appellate authority; and
(c) all proceedings mentioned in Section 10
were taken and all lands, if any, to be
included in the proposed forest, which
the Forest Settlement Officer had, under
Section 10, elected to acquire under the
Land Acquisition Act, 1894, had become
vested in the Government under Section
16 of that Act;
the Government may publish a notification specifying
definitely according to the boundary marks erected or
otherwise, the limits of the forest which it is intended to
reserve and declaring the same to be reserved from a
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The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
date to be fixed by such notification and from the date so
fixed, such forest shall be deemed to be a reserved forest.
(2) Copies of the notification shall also be published in the
District Gazette, if any, and in the manner provided for the
proclamation under Section 6.”
Section 16 of the A.P. Forest Act
“16. Extinction of rights not claimed:- Rights in respect
of which no claim was preferred under Section 6 within the
period fixed under that section shall stand extinguished on
the publication of the notification under Section 15 unless,
before the publication of such notification the person
claiming them has convinced the Forest Settlement Officer
that he had sufficient cause for not preferring such claim
within that period in which case the Forest Settlement
Officer shall proceed to dispose of the claim in the manner
herein before provided.”
7. Section 2 of the A.P. Forest Act, defines a “Forest Officer”, to mean a
vast category of officers. Such a forest officer is appointed to perform
any function of a forest officer under the A.P. Forest Act, or any rule
or order made thereunder. Clause (f) of Section 2 clarifies that such
Forest Officer does not include a Forest Settlement Officer appointed
under Clause (c) of sub-section (1) of Section 4, thus, making a
distinction between a Forest Officer and a Forest Settlement Officer.
8. Under Section 4(2) of the A.P. Forest Act, a Forest Settlement Officer
shall be an officer of the Revenue Department not below the rank of
a Revenue Divisional Officer. Wide powers have been conferred upon
the State Government to declare any land as a reserved forest, subject
to due compliance of the other provisions. This has to be done by a
notification published in Andhra Pradesh Gazette and District Gazette
under Section 4(1), by declaring its intention through a proposal.
9. The legislature consciously did not confer any role on an officer working
under the forest department, by specifically naming an officer of the
revenue department with his designation for determining qualification,
as Forest Settlement Officer. Such an officer has to exercise quasijudicial power.
10. After the commencement of proceedings under Section 4 of the
A.P. Forest Act, even the Government is restrained from issuing any
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patta to any individual, for the reason that all disputes would have
to be adjudicated under the Act, be it one of title under Section 10
or any other limited right as prescribed under Section 11 of the A.P.
Forest Act. Under Sections 8 and 9 of the A.P. Forest Act, the Forest
Settlement Officer has been conferred with powers of the civil court,
as available under the Code of Civil Procedure, 1908 (hereinafter
referred to as “the CPC 1908”), for the aforesaid purpose. While
exercising power, the Forest Settlement Officer may even admit the
claim wholly or in part under Section 10(2) by excluding any extent
of land which is in dispute.
11. As per Section 13 of the A.P. Forest Act, an appeal lies before the
District Court having territorial jurisdiction, which is to be filed within
a period of 90 days from the date of the order passed under Section
10 by the Forest Settlement Officer. Thus, anyone who claims a right
of ownership under Section 10 or any other limited right as illustrated
under Section 11, has to seek an adjudication of his claim before
the Forest Settlement Officer. If aggrieved, the remedy lies before
the jurisdictional District Court, subject to the limitation as prescribed
under Section 13.
12. After completion of the said exercise, the State Government
would declare the proposed land as a reserved forest by issuing
a notification under Section 15 of the A.P. Forest Act. Thereafter,
the vesting of the land takes place by way of a deeming fiction
i.e., giving the land the status of a reserved forest. Any right not
claimed with respect to the land, shall stand extinguished after the
publication under Section 15 as declared expressly under Section
16, by way of a reinforcement.
13. From the abovementioned provisions and their interpretation, it is very
clear that the completion of the process as prescribed under Section
15 of the A.P. Forest Act would result in changing the character of
land, including a forest land into a reserved forest. Thereafter, there
shall be no question of raising any dispute on its character. The
period of limitation mentioned under Section 13 of the A.P. Forest
Act cannot be breached, though one might raise an objection with
respect to its commencement.
SCOPE OF REVIEW
14. We shall start our discussion with the statement of law rendered by
Justice V.R. Krishna Iyer.
[2024] 5 S.C.R. 97
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi,
(1980) 2 SCC 167,
“14. A plea for review, unless the first judicial view is
manifestly distorted, is like asking for the moon. A forensic
defeat cannot be avenged by an invitation to have a second
look, hopeful of discovery of flaws and reversal of result…”
15. The legislature, in its wisdom, has chosen to restrict the scope of
review from time to time. To indicate this legislative shift, Section 376
and 378 of the Code of Civil Procedure 1859 (hereinafter referred
to as “the CPC 1859”), Section 623 of the Code of Civil Procedure
1877 (hereinafter referred to as “the CPC 1877”), Section 114 and
Order XLVII Rule 1 of the CPC 1908 are reproduced herein below,
Section 376 of the CPC 1859
“376 - Review of Judgement on discovery of new
evidence: Any person considering himself aggrieved by
a decree of a Court of original jurisdiction, from which no
appeal shall have been preferred to a Superior Court - or by
a decree of a District Court in appeal from which no special
appeal shall have been admitted by the Sudder Court -
or by a decree of the Sudder Court from which either no
appeal may have been preferred to Her Majesty in Council,
or an appeal having been preferred no proceedings in the
suit have been transmitted to Her Majesty in Council - and
who from the discovery of new matter or evidence
which was not within his knowledge, or could not be
adduced by him at the time when such decree was
passed, or from any other good and sufficient reason,
may be desirous of obtaining a review of the judgement
passed against him – may apply for a review of judgement
by the Court which passed the decree.”
(emphasis supplied)
Section 378 of the CPC 1859
“378 - The order of the Court for granting or refusing
the review is final: If the Court shall be of opinion that
there are not any sufficient grounds for a review, it shall
reject the application, but if it shall be of opinion that
the review desired is necessary to correct an evident
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error or omission or is otherwise requisite for the
ends of justice, the Court shall grant the review, and its
order in either case, whether for rejecting the application
or granting the review, shall be final. Provided that no
review of judgement shall be granted without previous
notice to the opposite party to enable him to appear and
be heard in support of the decree of which a review is
solicited.”
(emphasis supplied)
16. Section 376 of the CPC 1859 provided a larger playing field to the
court while dealing with an application to review. However, under
Section 378 of the CPC 1859, a finality was sought to be given to
the order of the court.
Section 623 of the CPC 1877
“623. Application for review of judgement: Any person
considering himself aggrieved
(a) by a decree or order from which an appeal is hereby
allowed, but from which no appeal has been preferred;
(b) by a decree or order from which no appeal is
hereby allowed; or
(c) by a judgement on a reference from a Court of
Small Causes,
And who from the discovery of new and important
matter or evidence which, after the exercise of due
diligence, was not within his knowledge or could not
be produced by him at the time when the decree was
passed or order made, or on account of some mistake
or error apparent on the face of the record, or for any
other sufficient reason, desires to obtain a review of the
decree passed or order made against him,
may apply for a review of judgement to the Court which
passed the decree or made the order, or to the Court, if
any, to which the business of the former Court has been
transferred.
A party who is not appealing from a decree may apply for
a review of judgement notwithstanding the pendency of
[2024] 5 S.C.R. 99
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
an appeal by some other party, except when the ground
of such appeal is common to the applicant and the
appellant, or when, being a respondent, he can present
to the appellate Court the case on which he applies for
the review.”
(emphasis supplied)
17. Thus, taking note of the existence of a larger power to review, the
legislature brought forth a change by adding the words “after the
exercise of due diligence”. Additionally, the words “on account of
some mistake or error apparent on the face of the record” were
also added. This conscious inclusion clearly restricts the power
of review.
Section 114 of the CPC 1908
“114. Review.—Subject as aforesaid, any person
considering himself aggrieved,—
(a) by a decree or order from which an appeal is allowed
by this Code, but from which no appeal has been
preferred,
(b) by a decree or order from which no appeal is allowed
by this Code, or
(c) by a decision on a reference from a Court of Small
Causes, may apply for a review of judgment to the
Court which passed the decree or made the order,
and the Court may make such order thereon as it
thinks fit.”
Order XLVII Rule 1 of the CPC 1908
“1. Application for review of judgment.—(1) Any person
considering himself aggrieved—
(a) by a decree or order from which an appeal
is allowed, but from which no appeal has
been preferred,
(b) by a decree or order from which no appeal
is allowed, or
(c) by a decision on a reference from a Court
of Small Causes,
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and who, from the discovery of new and important
matter or evidence which, after the exercise of due
diligence was not within his knowledge or could not
be produced by him at the time when the decree was
passed or order made, or on account of some mistake
or error apparent on the face of the record, or for any
other sufficient reason, desires to obtain a review of the
decree passed or order made against him, may apply for a
review of judgment of the Court which passed the decree
or made the order.
(2) A party who is not appealing from a decree or order
may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where
the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present
to the Appellate Court the case on which he applies for
the review.
[Explanation.—The fact that the decision on a question
of law on which the judgment of the Court is based has
been reversed or modified by the subsequent decision of
a Superior Court in any other case, shall not be a ground
for the review of such judgment.]”
(emphasis supplied)
18. Section 114 read with Order XLVII Rule 1 of the CPC 1908 is verbatim
similar to Section 623 of the CPC 1877, except for the Explanation to
Order XLVII Rule 1 which was added by way of an Amendment in the
year 1976. Section 114 of the CPC 1908 speaks of the circumstances,
instances and situations under which a review can be filed. The words
“as it thinks fit” cannot be interpreted to mean anything beyond what
is conferred under Order XLVII Rule 1. In other words, Section 114
has to be read along with Order XLVII Rule 1. While they are to be
read together, Section 114 is more procedural, whereas Order XLVII
Rule 1 is substantially substantive.
19. The words “due diligence”, though one of fact, places onus heavily
on the one who seeks a review. It has to be seen from the point
of view of a reasonable and prudent man. Though an element of
flexibility is given to any evidence or matter on its discovery, it has
to be one which was not available to the court earlier. It could not
[2024] 5 S.C.R. 101
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
have been produced despite due diligence, meaning thereby that it
should have been available and, therefore, in existence at least at
the time of passing the decree.
20. Mistake or error apparent on the face of record would debar the
court from acting as an appellate court in disguise, by indulging in
a re-hearing. A decision, however erroneous, can never be a factor
for review, but can only be corrected in appeal. Such a mistake or
error should be self-evident on the face of record. The error should
be grave enough to be identified on a mere cursory look, and an
omission so glaring that it requires interference in the form of a review.
Being a creature of the statute, there is absolutely no room for a fresh
hearing. The court has got no role to involve itself in the process of
adjudication for a second time. Instead, it has to merely examine the
existence of an apparent mistake or error. Even when two views are
possible, the court shall not indulge itself by going into the merits.
21. The material produced, at this stage, should be of such pristine
quality which, if taken into consideration, would have the logical
effect of reversing the judgment. Order XLVII Rule 1 of the CPC,
1908 indicates that power of review can be exercised by courts, in
three different situations, but these occasions ought to be read in an
analogous manner. In other words, they should be read in a manner
to mean that a restrictive power has been conferred upon the court.
As stated, the words “for any other sufficient reason” ought to be read
in conjunction with the earlier two categories reiterating the scope.
Being a judicial discretion, it has to be exercised with circumspection
and on rare occasions. It is a power to be exercised by way of an
exception, subject to the rigours of the provision.
22. A subsequent event per se cannot form the basis of a review. Subclause (c) of Order XLVII Rule 1 of the CPC 1908, clearly specifies
that the important matter or evidence produced must have been
available at the time when the decree was passed. This is a matter
of rule. On a very rare occasion, an exception can be carved out.
Such an exception can only be exercised when the said matter or
evidence is of unimpeachable quality. It is not only a new matter or
evidence that should be taken into consideration, but it should also
be an important one.
23. While exercising the said power, the court has to first check the
evidentiary value of such discovery, including the circumstances under
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which it emanated, particularly when it inherently lacks jurisdiction or
the evidence cannot be made admissible in law and therefore, is not
relevant. In such a circumstance, there is no question of proceeding
further in deciding the review application.
PRECEDENTS
24. Now, we shall place on record decisions rendered by this Court on
the above principle of law discussed by us,
Power of Review is not to be confused with Powers of Appellate
Court in Appeal Jurisdiction.
● Aribam Tuleshwar Sharma v. Aribam Pishak Sharma and
others, (1979) 4 SCC 389
“3. The Judicial Commissioner gave two reasons for
reviewing his predecessor’s order. The first was that his
predecessor had overlooked two important documents
Exs. A/1 and A/3 which showed that the respondents were
in possession of the sites even in the year 1948-49 and
that the grants must have been made even by then. The
second was that there was a patent illegality in permitting
the appellant to question, in a single writ petition, settlement
made in favour of different respondents. We are afraid that
neither of the reasons mentioned by the learned Judicial
Commissioner constitutes a ground for review. It is true as
observed by this Court in Shivdeo Singh v. State of Punjab
[AIR 1963 SC 1909] there is nothing in Article 226 of the
Constitution to preclude a High Court from exercising the
power of review which inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct
grave and palpable errors committed by it. But, there are
definitive limits to the exercise of the power of review.
The power of review may be exercised on the discovery
of new and important matter or evidence which, after
the exercise of due diligence was not within the
knowledge of the person seeking the review or could
not be produced by him at the time when the order
was made; it may be exercised where some mistake
or error apparent on the face of the record is found;
it may also be exercised on any analogous ground.
But, it may not be exercised on the ground that the
[2024] 5 S.C.R. 103
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
decision was erroneous on merits. That would be the
province of a court of appeal. A power of review is
not to be confused with appellate powers which may
enable an appellate Court to correct all manner of
errors committed by the subordinate Court.”
(emphasis supplied)
Error Apparent on the Face of Record
● Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi,
(1980) 2 SCC 167
“8. It is well-settled that a party is not entitled to seek
a review of a judgment delivered by this Court merely
for the purpose of a rehearing and a fresh decision
of the case. The normal principle is that a judgment
pronounced by the Court is final, and departure from
that principle is justified only when circumstances of a
substantial and compelling character make it necessary
to do so: Sajjan Singh v. State of Rajasthan [AIR 1965
SC 845 : (1965) 1 SCR 933, 948 : (1965) 1 SCJ 377] .
For instance, if the attention of the Court is not drawn to a
material statutory provision during the original hearing, the
Court will review its judgment: G.L. Gupta v. D.N. Mehta
[(1971) 3 SCC 189 : 1971 SCC (Cri) 279 : (1971) 3 SCR
748, 750] . The Court may also reopen its judgment if a
manifest wrong has been done and it is necessary to pass
an order to do full and effective justice: O.N. Mohindroo
v. Distt. Judge, Delhi [(1971) 3 SCC 5 : (1971) 2 SCR 11,
27] . Power to review its judgments has been conferred on
the Supreme Court by Article 137 of the Constitution, and
that power is subject to the provisions of any law made by
Parliament or the rules made under Article 145. In a civil
proceeding, an application for review is entertained only
on a ground mentioned in Order 47 Rule 1 of the Code of
Civil Procedure, and in a criminal proceeding on the ground
of an error apparent on the face of the record (Order XL
Rule 1, Supreme Court Rules, 1966). But whatever the
nature of the proceeding, it is beyond dispute that a
review proceeding cannot be equated with the original
hearing of the case, and the finality of the judgment
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delivered by the Court will not be reconsidered except
“where a glaring omission or patent mistake or like
grave error has crept in earlier by judicial fallibility”:
Sow Chandra Kante v. Sheikh Habib [(1975) 1 SCC 674 :
1975 SCC (Tax) 200 : (1975) 3 SCR 933] .
9. Now, besides the fact that most of the legal material
so assiduously collected and placed before us by the
learned Additional Solicitor - General, who has now been
entrusted to appear for the respondent, was never brought
to our attention when the appeals were heard, we may
also examine whether the judgment suffers from an error
apparent on the face of the record. Such an error exists
if of two or more views canvassed on the point it is
possible to hold that the controversy can be said to
admit of only one of them. If the view adopted by
the Court in the original judgment is a possible view
having regard to what the record states, it is difficult
to hold that there is an error apparent on the face of
the record.”
(emphasis supplied)
● Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715
“9. Under Order 47 Rule 1 CPC a judgment may be
open to review inter alia if there is a mistake or an
error apparent on the face of the record. An error
which is not self-evident and has to be detected by a
process of reasoning, can hardly be said to be an error
apparent on the face of the record justifying the court
to exercise its power of review under Order 47 Rule 1
CPC. In exercise of the jurisdiction under Order 47 Rule
1 CPC it is not permissible for an erroneous decision to
be “reheard and corrected”. A review petition, it must
be remembered has a limited purpose and cannot be
allowed to be “an appeal in disguise”.
10. Considered in the light of this settled position we find
that Sharma, J. clearly overstepped the jurisdiction vested
in the Court under Order 47 Rule 1 CPC. The observations
of Sharma, J. that “accordingly, the order in question is
reviewed and it is held that the decree in question was of
[2024] 5 S.C.R. 105
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
composite nature wherein both mandatory and prohibitory
injunctions were provided” and as such the case was
covered by Article 182 and not Article 181 cannot be said
to fall within the scope of Order 47 Rule 1 CPC. There
is a clear distinction between an erroneous decision
and an error apparent on the face of the record. While
the first can be corrected by the higher forum, the
latter only can be corrected by exercise of the review
jurisdiction. While passing the impugned order, Sharma,
J. found the order in Civil Revision dated 25-4-1989 as
an erroneous decision, though without saying so in so
many words. Indeed, while passing the impugned order
Sharma, J. did record that there was a mistake or an
error apparent on the face of the record which was not of
such a nature, “which had to be detected by a long-drawn
process of reasons” and proceeded to set at naught the
order of Gupta, J. However, mechanical use of statutorily
sanctified phrases cannot detract from the real import of
the order passed in exercise of the review jurisdiction.
Recourse to review petition in the facts and circumstances
of the case was not permissible. The aggrieved judgmentdebtors could have approached the higher forum through
appropriate proceedings to assail the order of Gupta, J.
and get it set aside but it was not open to them to seek a
“review” of the order of Gupta, J. on the grounds detailed
in the review petition. In this view of the matter, we are of
the opinion that the impugned order of Sharma, J. cannot
be sustained and we accordingly accept this appeal and
set aside the impugned order dated 6-3-1997.”
(emphasis supplied)
Meaning of the Words ‘for any other sufficient reason’ in Order
XLVII Rule 1 of the CPC 1908
● Chhajju Ram v. Neki, 1922 SCC OnLine PC 11
“…It will be observed that the question with which
their Lordships have to deal is one concerned not
with appeal to a Court of Appeal, but with review by
the Court which had already disposed of the case. In
England it is only under strictly limited circumstances
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that an application for such a review can be entertained.
In India, however, provision has for long past been
made by legislation for review in addition to appeal.
But as the right is the creation of Indian statue law,
it is necessary to see what such statutory law really
allows. The law applicable to the present case is laid
down by O. 47, R. 1, of the Code of Civil Procedure,
1908. This Rule is enacted in the following terms:—
“Any person considering himself aggrieved, (a) by a
decree or order from which an appeal is allowed, but from
which no appeal has, been preferred (b) by a decree or
order from which no appeal is hereby allowed, or (c) by
a decision on a reference from a Court of Small Causes,
and who, from the discovery of new and important matter
or evidence which, after the exercise of due diligence, was
not within his knowledge or could not be produced by him
at the time when the decree was passed or order made,
or on account of some mistake or error apparent on the
face of the record, or for any other sufficient reason,
desires to obtain a review of the decree passed or order
made against him, may apply for a review of judgment to
the Court which passed the decree or made the order.”
xxx xxx xxx
If their Lordships felt themselves at liberty to construe
the language of O. 47 of the Code of Civil Procedure,
1908 without reference to its history and to the decisions
upon it, their task would not appear to be a difficult
one. For it is obvious that the Code contemplates
procedure by way of review by the Court which has
already given judgment as being different from that by
way of appeal to a Court of Appeal. The three cases
in which alone mere review is permitted are those of
new material overlooked by excusable misfortune,
mistake or error apparent on the face of the record, or
“any other sufficient reason.” The first two alternatives
do not apply in the present case, and the expression
“sufficient,” if this were all, would naturally be read
as meaning sufficiency of a kind analogous to the two
already specified, that is to say, to excusable failure
[2024] 5 S.C.R. 107
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
to bring to the notice of the Court new and important
matters, or error on the face of the record. But before
adopting this restricted construction of the expression
“sufficient,” it is necessary to have in mind, in the first
place, that the provision as to review was not introduced
into the Code for the first time in 1908, but appears there
as a modification of previous provision made in earlier
legislation : and, in the second place, that the extent of
the power of a Court in India to review its own decree
under successive forms of legislative provision has been
the subject of a good deal of judicial interpretation, not,
however, in all cases harmonious. That the power given by
the Indian Code is different from the very restricted power
which exists in England appears plain from the decision in
Charles Bright and Co. v. Seller [[1904] 1 K.B. 6.] , where
the Court of Appeal discussed the history of the procedure
in England and explained its limits.
xxx xxx xxx
Their Lordships have examined numerous authorities,
and they have found much conflict of judicial opinion
on the point referred to. There is plainly no such
preponderance of view in either direction as to render
it clear that there is any settled course of decision
which they are under obligation to follow. Some of the
decisions in the earlier cases may have been influenced
by the wider form of expression then in force, and these
decisions may have had weight with the learned Judges
who, in cases turning on the subsequent Code, had
regarded the intention of the legislature as remaining
unaltered. But their Lordships are unable to assume
that the language used in the Codes of 1877 and 1908
is intended to leave open the questions which were
raised on the language used in the earlier legislation.
They think that R. 1 of O. 47 must be read as in itself
definitive of the limits within which review is to-day
permitted, and that reference to practice under former
and different statutes is misleading. So construing it
they interpret the words “any other sufficient reason”
as meaning a reason sufficient on grounds at least
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analogous to those specified immediately previously.
Such an interpretation excludes from the power of review
conferred the course taken by the second and third Division
Bench, composed of Wilberforce, J., and Scott Smith, J.,
and by Wilberforce, J., and LeRossignol, J., respectively.
The result is that the judgments given by these two Division
Benches ought to be set aside, and that of the Bench of
the Chief Court composed of Scott Smith, J., and Leslie
Jones, J., restored, so that the suit will stand dismissed.
The respondent-plaintiffs must pay the costs here and in
the Courts below.”
(emphasis supplied)
Discovery of New Matter or Evidence
● State of W.B. v. Kamal Sengupta, (2008) 8 SCC 612
“21. At this stage it is apposite to observe that where a
review is sought on the ground of discovery of new matter
or evidence, such matter or evidence must be relevant and
must be of such a character that if the same had been
produced, it might have altered the judgment. In other words,
mere discovery of new or important matter or evidence is
not sufficient ground for review ex debito justitiae. Not only
this, the party seeking review has also to show that such
additional matter or evidence was not within its knowledge
and even after the exercise of due diligence, the same
could not be produced before the court earlier.
22. The term “mistake or error apparent” by its very
connotation signifies an error which is evident per se
from the record of the case and does not require detailed
examination, scrutiny and elucidation either of the facts
or the legal position. If an error is not self-evident and
detection thereof requires long debate and process of
reasoning, it cannot be treated as an error apparent on
the face of the record for the purpose of Order 47 Rule 1
CPC or Section 22(3)(f) of the Act. To put it differently an
order or decision or judgment cannot be corrected merely
because it is erroneous in law or on the ground that a
different view could have been taken by the court/tribunal
on a point of fact or law. In any case, while exercising the
[2024] 5 S.C.R. 109
The State of Telangana & Ors. v. Mohd. Abdul Qasim (Died) Per LRs.
power of review, the court/tribunal concerned cannot sit in
appeal over its judgment/decision.”
An Order can be reviewed only on the prescribed grounds
mentioned in Order XLVII Rule 1 of the CPC 1908
● Shri Ram Sahu v. Vinod Kumar Rawat, (2021) 13 SCC 1
“10. To appreciate the scope of review, it would be proper
for this Court to discuss the object and ambit of Section
114CPC as the same is a substantive provision for review
when a person considering himself aggrieved either by a
decree or by an order of court from which appeal is allowed
but no appeal is preferred or where there is no provision
for appeal against an order and decree, may apply for
review of the decree or order as the case may be in the
court, which may order or pass the decree. From the bare
reading of Section 114CPC, it appears that the said
substantive power of review under Section 114CPC has
not laid down any condition as the condition precedent
in exercise of power of review nor the said section
imposed any prohibition on the court for exercising its
power to review its decision. However, an order can be
reviewed by a court only on the prescribed grounds
mentioned in Order 47 Rule 1CPC, which has been
elaborately discussed hereinabove. An application
for review is more restricted than that of an appeal
and the court of review has limited jurisdiction as to
the definite limit mentioned in Order 47 Rule 1CPC
itself. The powers of review cannot be exercised as an
inherent power nor can an appellate power be exercised
in the guise of power of review.”
(emphasis supplied)
Evidence cannot be Reappreciated in Review
● Kerala SEB v. Hitech Electrothermics & Hydropower Ltd.,
(2005) 6 SCC 651
“10. This Court has referred to several documents on
record and also considered the documentary evidence
brought on record. This Court on a consideration of the
evidence on record concluded that the respondent had
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been denied power supply by the Board in appropriate
time which prevented the respondent from starting the
commercial production by 31-12-1996. This is a finding of
fact recorded by this Court on the basis of the appreciation
of evidence produced before the Court. In a review
petition it is not open to this Court to reappreciate
the evidence and reach a different conclusion, even
if that is possible. Learned counsel for the Board at best
sought to impress us that the correspondence exchanged
between the parties did not support the conclusion reached
by this Court. We are afraid such a submission cannot
be permitted to be advanced in a review petition. The
appreciation of evidence on record is fully within the
domain of the appellate court. If on appreciation of
the evidence produced, the court records a finding
of fact and reaches a conclusion, that conclusion
cannot be assailed in a review petition unless it is
shown that there is an error apparent on the face of
the record or for some reason akin thereto. It has not
been contended before us that there is any error apparent
on the face of the record. To permit the review petitioner
to argue on a question of appreciation of evidence
would amount to converting a review petition into an
appeal in disguise.”
(emphasis supplied)
UNDERSTANDING OF THE FOREST: A CONSTITUTIONAL
PERSPECTIVE
25. Article 48A of the Constitution of India, 1950 imposes a clear
mandate upon the State as a Directive Principle of State Policy,
while Article 51A(g) correspondingly casts a duty upon a citizen
to protect and improve the natural environment including forests,
lakes, rivers and wildlife and to have compassion for fellow living
creatures. These two provisions qua a forest ought to be understood
in light of Articles 14, 19 and 21 of the Constitution of India, 1950.
We say so, as they represent the collective conscience of the
Constitution. If the continued existence and protection of forests is
in the interest of humanity, various species and nature, then there
can be no other interpretation than to read the constitutional ethos
into these provisions.
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26. Part III and Part IV of the Constitution are like two wheels of a
chariot, complementing each other in their commitment to a social
change and development. They form the core of nation building and
a progressive society.
PRECEDENTS
Relevance of Directive Principles of State Policy
● Sachidanand Pandey v. State of W.B., (1987) 2 SCC 295
“4. In India, as elsewhere in the world, uncontrolled growth
and the consequent environmental deterioration are fast
assuming menacing proportions and all Indian cities are
afflicted with this problem. The once Imperial City of Calcutta
is no exception. The question raised in the present case is
whether the Government of West Bengal has shown such
lack of awareness of the problem of environment in making
an allotment of land for the construction of a Five Star Hotel
at the expense of the zoological garden that it warrants
interference by this Court? Obviously, if the government is
alive to the various considerations requiring thought and
deliberation and has arrived at a conscious decision after
taking them into account, it may not be for this Court to
interfere in the absence of mala fides. On the other hand, if
relevant considerations are not borne in mind and irrelevant
considerations influence the decision, the court may
interfere in order to prevent a likelihood of prejudice to the
public. Whenever a problem of ecology is brought before
the court, the court is bound to bear in mind Article
48-A of the Constitution, the Directive Principle which
enjoins that “the State shall endeavour to protect and
improve the environment and to safeguard the forests
and wild life of the country”, and Article 51-A(g) which
proclaims it to be the fundamental duty of every citizen
of India “to protect and improve the natural environment
including forests, lakes, rivers and wild life, and to
have compassion for living creatures”. When the court
is called upon to give effect to the Directive Principle
and the fundamental duty, the court is not to shrug its
shoulders and say that priorities are a matter of policy
and so it is a matter for the policy-making authority.
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The least that the court may do is to examine whether
appropriate considerations are borne in mind and
irrelevancies excluded. In appropriate cases, the court
may go further, but how much further must depend on
the circumstances of the case. The court may always
give necessary directions. However the court will not
attempt to nicely balance relevant considerations. When
the question involves the nice balancing of relevant
considerations, the court may feel justified in resigning
itself to acceptance of the decision of the concerned
authority. We may now proceed to examine the facts of
the present case.”
(emphasis supplied)
Article 48A and 51A To Be Considered in Light of Article 21
of the Constitution of India, 1950
● M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213
“8. Apart from the above statutes and the rules made
thereunder, Article 48-A of the Constitution provides that
the State shall endeavour to protect and improve the
environment and to safeguard the forests and wildlife of
the country. One of the fundamental duties of every citizen
as set out in Article 51-A(g) is to protect and improve
the natural environment, including forests, lakes, rivers
and wildlife and to have compassion for living creatures.
These two articles have to be considered in the light
of Article 21 of the Constitution which provides that no
person shall be deprived of his life and liberty except
in accordance with the procedure established by law.
Any disturbance of the basic environment elements,
namely air, water and soil, which are necessary for
“life”, would be hazardous to “life” within the meaning
of Article 21 of the Constitution.
9. In the matter of enforcement of rights under Article
21 of the Constitution, this Court, besides enforcing
the provisions of the Acts referred to above, has also
given effect to fundamental rights under Articles 14
and 21 of the Constitution and has held that if those
rights are violated by disturbing the environment, it
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can award damages not only for the restoration of
the ecological balance, but also for the victims who
have suffered due to that disturbance. In order to
protect “life”, in order to protect “environment” and
in order to protect “air, water and soil” from pollution,
this Court, through its various judgments has given
effect to the rights available, to the citizens and
persons alike, under Article 21 of the Constitution.
The judgment for removal of hazardous and obnoxious
industries from the residential areas, the directions for
closure of certain hazardous industries, the directions for
closure of slaughterhouse and its relocation, the various
directions issued for the protection of the Ridge area
in Delhi, the directions for setting up effluent treatment
plants to the industries located in Delhi, the directions to
tanneries etc., are all judgments which seek to protect
the environment.”
(emphasis supplied)
Article 48A And 51A Must guide the Interpretation of Laws
● Pradeep Krishen v. Union of India, (1996) 8 SCC 599
“15. Now as pointed out earlier, since Parliament had no
power to make laws for the States except as provided by
Articles 249 and 250 of the Constitution, the States were
required to pass resolutions under Article 252(1) to enable
Parliament to enact the law. After as many as 11 States
passed resolutions to that effect, the Act came to be enacted
to provide for the protection of wild animals and birds and
for matters connected therewith or ancillary or incidental
thereto. Even Articles 48-A and 51-A(g) inserted in the
Constitution by the 42nd Amendment oblige the State
and the citizen, respectively, to protect and improve
the natural environment and to safeguard the forest
and wildlife of the country. The statutory as well as the
constitutional message is therefore loud and clear and
it is this message which we must constantly keep in
focus while dealing with issues and matters concerning
the environment and the forest area as well as wildlife
within those forests. This objective must guide us in
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interpreting the laws dealing with these matters and
our interpretation must, unless the expression or the
context conveys otherwise, subserve and advance
the aforementioned constitutional objectives. With this
approach in mind we may now proceed to deal with the
contentions urged by parties.”
(emphasis supplied)
ENVIRONMENT
Section 2 of the Environment (Protection) Act, 1986
“2. Definitions.—In this Act, unless the context otherwise
requires,—
(a) ‘environment’ includes water, air and land and the
inter-relationship which exists among and between water,
air and land, and human beings, other living creatures,
plants, micro-organism and property;”
27. The word “environment” shall not be understood from a narrow
perspective. Albert Einstein once observed “environment is everything
that is not me”. In our considered view, the environment would
include both animate and inanimate. One cannot segregate these
two segments, which are broadly differentiated only for the ease of
human understanding.
WHY WE NEED FORESTS ?
“Man is the most insane species. He worships an
invisible God and destroys a visible Nature, unaware
that this Nature he’s destroying is this God he’s
worshiping.”
Hubert Reeves.
Canadian astrophysicist
28. Human beings indulge themselves in selective amnesia when it comes
to fathom the significance of forests. It is the forests which give life to
the Earth by replacing carbon dioxide with oxygen, thereby providing
a hospitable environment for the steady growth of diverse life forms.
It’s the spirit of the forest that moves the Earth. History shall not be
understood from the jaundiced eyes of humans but through the prism
of the environment, the forest in particular.
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29. Forests not only provide for and facilitate the sustenance of life, but
they also continue to protect and foster it. They continue to tackle
the ever-increasing carbon dioxide emissions produced by humans
in the name of development, while striving to sustain all species.
Despite the unblemished, selfless and motherly service rendered by
forests, man in his folly continues with their destruction, unmindful
of the fact that he is inadvertently destroying himself.
30. Consequent to the advent of agriculture, man has destroyed a
significant portion of forests at his own peril. Forests serve the Earth
in a myriad of ways ranging from regulating carbon emissions, aiding
in soil conservation and regulating the water cycle. Water being a
life source, its availability for all life forms is heavily dependent upon
the aquifers created by forests. Forests also play a pivotal role in
controlling pollution, which significantly affects the underprivileged,
violating their right to equality under Article 14 of the Constitution of
India, 1950. It is the vulnerable sections of the society who would be
most affected by the depletion of forests, considering the fact that the
more affluent sections of society have better access to resources as
compared to them. Therefore, the protection of forests is in the interest
of mankind, even assuming that the other factors can be ignored.
Municipal Corpn. of Greater Mumbai v. Ankita Sinha, (2022) 13
SCC 401
“XI. Environmental Justice and Environmental Equity
75. The conceptual frameworks of environmental justice
and equity should merit consideration vis-à-vis NGT’s
domain and how its functioning and decisions can have
wide implications in socio-economic dimensions of people
at large. The concept of environmental justice is a
trifecta of distributive justice, procedural justice
and justice as recognition. [ Schlosberg D., Defining
Environmental Justice : Theories, Movements, and
Nature (Oxford University Press 2009).] Environmental
equity as a developing concept has focused on the
disproportionate implications of environmental harms
on the economically or socially marginalised groups.
The concerns of human rights and environmental
degradation overlap under this umbrella term, to
highlight the human element, apart from economic
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and environmental ramifications. Environmental equity
thus stands to ensure a balanced distribution of
environmental risks as well as protections, including
application of sustainable development principles.
76. Voicing concerns about the disproportionate harm for
the poor segments, Lois J. Schiffer [then Assistant Attorney
General, Environment and Natural Resources Division
(“ENRD”), US Department of Justice] and Timothy J.
Dowling (then Attorney at ENRD) in their Reflections on the
Role of the Courts in Environmental Law, wrote the following
evocative passage on the concept of environmental justice:
“Environmental justice, which focuses on
whether minorities and low-income people bear a
disproportionate burden of exposure to environmental
harms and any resulting health effects. In the past ten
to fifteen years, this issue has crystallized a grassroots movement that combines civil rights issues
with environmental issues, with a goal of achieving
“environmental justice” or “environmental equity”,
which is understood to mean the fair distribution of
environmental risks and protection from environmental
harms.” [Schiffer, L.J. & Dowling, T.J. (1997),
“Reflections on the Role of the Courts in Environmental
Law”, 27(2) Environmental Law 327-342.]
77. There is also a need to focus on the interconnection
between principles of procedural justice and distributive
justice. The concern is to create a system which is
affirmative enough to balance the disproportionate wielding
of power between polluters and affected people:
“Environmental justice starts with distributive justice, or
more accurately, distributive injustice. The rich and powerful
derive the most benefit while suffering the least harm
from environmentally harmful activities; conversely, the
poor and minorities derive the least benefit but suffer the
most harm. Further, those who benefit cause harm to the
places where people “live, work, play, and go to school”,
whereas the people who reside there do little or nothing
to harm their community.” [ Jeff Todd, “A ‘Sense of Equity’
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in Environmental Justice Litigation”, 44 Harv Envtl L Rev
169, 193 (2020).]
78. When substantive justice is elusive for a large segment,
disengaging with substantive rights at the very altar, for a
perceived procedural lacuna, would surely bring in a process,
which furthers inequality, both economic and social. An
“equal footing” conception may not therefore be feasible to
adequately address the asymmetrical relationship between
the polluters and those affected by their actions. Instead,
a recognition of the historical experience of marginalised
classes of persons while accessing and effectively using
the legal system, will allow for necessary appreciation of
social realities and balancing the arm of justice.
xxx xxx xxx
80. In the backdrop of the above weighty concerns,
this Court should advert to what Schiffer and Dowling
have stated on the “Blindfold of Lady Justice”, which
symbolises “the ideal of administering equal justice to
everyone who comes to our courts, regardless of race,
creed, or economic class”. [Schiffer, L.J. & Dowling,
T.J. (1997), “Reflections on the Role of the Courts in
Environmental Law”, 27(2) Environmental Law 327-342.]
The relevance of this concept is particularly apposite
when we consider the inability of most marginalised
communities, to access the legal machinery.”
(emphasis supplied)
NEED FOR A CHANGE: FROM ANTHROPOCENTRIC TO
ECOCENTRIC
31. There is a crying need for a change in our approach. Man being an
enlightened species, is expected to act as a trustee of the Earth. It is his
duty to ensure the preservation of the ecosystem and to continuously
endeavour towards the protection of air, water and land. It is not his
right to destroy the habitat of other species but his duty to protect them
from further peril. A right to enjoy cannot be restricted to any specific
group, and so also to human beings. The time has come for mankind
to live sustainably and respect the rights of rivers, lakes, beaches,
estuaries, ridges, trees, mountains, seas and air. It is imperative to
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do so as there is always a constant threat to forests due to the everincreasing population. Man is bound by nature’s law. Therefore, the
need of the hour is to transform from an anthropocentric approach
to ecocentric approach which will encompass a wider perspective in
the interest of the environment. Dr. Susana Borras in her paper titled
“New Transitions from Human Rights to the Environment to the Rights
of Nature” published in Transnational Environmental Law, Volume
5, Issue 1, April 2016 has reflected on the rights of nature (p. 114),
“A new approach is emerging, however: the recognition of
the rights of nature, which implies a holistic approach to
all life and all ecosystems. In recent years, a series of
normative precedents have surfaced, which recognize
that nature has certain rights as a legal subject and
holder of rights. These precedents potentially contribute
not merely a greater sensitivity to the environment, but
a thorough reorientation about how to protect the Earth
as the centre of life.
From this perspective, known as ‘biocentrism’,
nature is not an object of protection but a subject
with fundamental rights, such as the rights to exist,
to survive, and to persist and regenerate vital cycles.
The implication of this recognition is that human beings
have the legal authority and responsibility to enforce
these rights on behalf of nature in that rights of nature
become an essential element for the sustainability and
the survivability of human societies. This concept is based
on the recognition that humans, as but one part of life on
earth, must live within their ecological limits rather than see
themselves as the purpose of environmental protection,
as the ‘anthropocentric’ approach proposes. Humans are
trustees of the Earth rather than being mere stewards.
The idea is based on the proposition that ecosystems
of air, water, land, and atmosphere are a public trust
and should be preserved and protected as habitat for
all natural beings and natural communities.”
(emphasis supplied)
● T.N. Godavarman Thirumulpad v. Union of India, (2012) 3
SCC 277
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“17. Environmental justice could be achieved only if we drift
away from the principle of anthropocentric to ecocentric.
Many of our principles like sustainable development,
polluter-pays principle, intergenerational equity have their
roots in anthropocentric principles. Anthropocentrism is
always human interest focussed and that non-human has
only instrumental value to humans. In other words, humans
take precedence and human responsibilities to non-human
based benefits to humans. Ecocentrism is nature-centred
where humans are part of nature and non-humans have
intrinsic value. In other words, human interest does not take
automatic precedence and humans have obligations to nonhumans independently of human interest. Ecocentrism is
therefore life-centred, nature-centred where nature includes
both humans and non-humans. The National Wildlife Action
Plan 2002-2012 and the Centrally Sponsored Integrated
Development of Wildlife Habitats Scheme, 2009 are centred
on the principle of ecocentrism.”
The concept of natural rights theory is being evolved, which
encapsulates recognizing and acknowledging the rights of nature.
As stated, such a right is meant for the benefit of nature, inclusive
of all species, both present and future. The concept of trusteeship
and inter-generational equity ought to be understood from this
perspective, as any deviation would cause not only degradation of
the environment but also serious inequality between different species
as well as amongst them. The idea is to recognize the importance
of forests qua the society as their significance has to be seen in the
light of their effect on the Earth.
Christopher D. Stone: Should Trees Have Standing? – Toward
Legal Rights For Natural Objects, Southern California Law Review,
45 (1972) (pp. 464, 473, 474, 476),
“It is not inevitable, nor is it wise, that natural objects should
have no rights to seek redress on their own behalf. It is
no answer to say that streams and forests cannot have
standing because streams and forests cannot speak.
Corporations cannot speak either; nor can states, estates,
infants, incompetents, municipalities or universities…
…If the environment is not to get lost in the shuffle, we
would do well, I think, to adopt the guardianship approach
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as an additional safeguard, conceptualizing major natural
objects as holders of their own rights, raisable by the courtappointed guardian.
…There is also a good case to be made for taking into
account harm to the environment-in its own right. As
indicated above, the traditional way of deciding whether
to issue injunctions in lawsuits affecting the environment,
at least where communal property is involved, has been
to strike some sort of balance regarding the economic
hardships on human beings….
…Why should the environment be of importance only
indirectly, as lost profits to someone else? Why not throw
into the balance the cost to the environment?
…the lost environmental “values” of which we are now
speaking are by definition over and above those that the
market is prepared to bid for: they are priceless.
One possible measure of damages, suggested earlier,
would be the cost of making the environment whole, just
as, when a man is injured in an automobile accident,
we impose upon the responsible party the injured man’s
medical expenses…”
32. Similarly, the concept of sustainable development is to be understood
from an ecocentric approach. First and foremost, it is the environment
that needs to be sustained, while the anthropogenic development
must follow later. T.N. Godavarman Thirumulpad (87) v. Union of
India, (2006) 1 SCC 1
“38. Forest sustainability is an integral part of forest
management and policy that also has a unique
dominating feature and calls for forest owners and
society to make a long-term (50 years or longer)
commitment to manage forests for future generations.
One of the viewpoints for sustaining forest is a naturally
functioning forest ecosystem. This viewpoint takes the
man and nature relationship to the point of endorsing,
to the extent possible, the notion of letting the forest
develop and process without significant human
intervention. A strong adoption of the naturalistic
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value system that whatever nature does is better than
what humans do, this is almost the “nature dominates
man” perspective. Parks and natural reserve creations;
non-intervention in insect, disease and fire process; and
reduction of human activities are typical policy situations.
This viewpoint has been endorsed by the 1988 Forest
Policy of the Government of India.”
(emphasis supplied)
ECONOMIC CONSIDERATIONS
33. Wealth of a country has to be seen not only from the perspective
of mere revenue, augmented through its industries and business
activities. Rather, it has to be seen by giving due importance to its
natural wealth which actually contributes much more than the other
factors. As discussed, forests play a pivotal role in reducing carbon
emissions in the atmosphere created by human activities. A substantial
value needs to be attached to the contribution of forests.
34. Professor Wahlen in her paper titled “Opportunities for making the
invisible visible: Towards an improved understanding of the economic
contributions of NTFPs”, published in the Journal of Forest Policy
and Economics, Volume 84, November 2017, has considered the
implications on forest governance management and policy arguing
that Sustainable Development Goals (SDGs) offer an opportunity to
increase attention on the non-cash contributions of forests and turn
this invisible contribution into a visible one. These “invisible services”
rendered by forests ought to be given due credit. Depletion and
disappearance of forests would ultimately lead to a massive extinction
of organisms. Appreciation of this fact shall come from the point of
view of a species rather than through the prism of a State or a nation.
Regulation of temperature and prevention of water depletion is the
primary role of forests. Destroying forests would lead to the depletion
and destruction of our life source. It would lead to extreme droughts,
rainfall would become scarce and even if it pours, there would not be
any means for its natural storage. The concept of forests acting as a
major sink of carbon dioxide has to be appreciated and encouraged.
Destruction of forests also affects pollination and would ultimately
impact the food chain.
35. A difference of one and half degree Celsius in temperature saves
the global economy tens of trillions of dollars. We must realise
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that carbon emissions not only come from industrial activities but
also agriculture. Such functions are to be valued for assessing
forest wealth. The concept of carbon credit in carbon market is
indeed a reality. With the need for imposing restrictions towards
carbon emissions, the concept of carbon markets has come into
being. Emissions of carbon dioxide worldwide, need to be seen
holistically, as emissions from each nation ultimately disperses into
the atmosphere. Thus, a country with excess forest cover would
be in a position to sell its excess carbon credit to the one in deficit.
This in turn underlines the significance of forests in contributing to
the financial wealth of a country. From the economic perspective
we wish to quote the report of the Ministry of Environment and
Forests, Government of India titled “India’s Forest and Tree Cover:
Contribution as a Carbon Sink” (August 2009), as an aid to assess
the valuation of forests in the Indian context,
“Over the last two decades, progressive national forestry
legislations and policies in India aimed at conservation
and sustainable management of forests have reversed
deforestation and have transformed India’s forests into
a significant net sink of CO2
. From 1995 to 2005, the
carbon stocks stored in our forests and trees have
increased from 6,245 million tonnes (mt) to 6,662 mt,
registering an annual increment of 38 mt of carbon or
138 mt of CO2 equivalent.
Mitigation Service by India’s Forest and Tree Cover
India’s forests serve as a major sink of CO2 . Our
estimates show that the annual CO2
removals by India’s
forest and tree cover is enough to neutralize 11.25 % of
India’s total GHG emissions (CO2
equivalent) at 1994
levels, the most recent year for which comparable data
is available for developing countries based on their
respective National Communications (NATCOMs) to
the United Nations Framework Convention on Climate
Change (UNFCCC) . This is equivalent to offsetting 100%
emissions from all energy in residential and transport
sectors; or 40% of total emissions from the agriculture
sector. Clearly, India’s forest and tree cover is serving
as a major mode of carbon mitigation for India and
the world.
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Value of Mitigation
Putting a conservative value of US$ 5 per tonne of CO2
locked in our forests, this huge sink of about 24,000
mt of CO2
is worth US$ 120b, or Rs 6,00,000 crores.
Incremental carbon under scenario three will add a
value of around US$ 1.2b, or Rs 6,000 crores every year
to India’s treasury of forest sink, assuming a value of
US$ 7 per tonne.”
(emphasis supplied)
A recent report of the Reserve Bank of India presents a very disturbing
scenario. The report clearly suggests the enormous potential impact
of climate change on the society, leading to serious job losses in
every sector. Therefore, the adverse effect will be on the future of
the nation as a whole, as against an identifiable group.
“Report on Currency and Finance; Towards a Greener Cleaner India”,
published by the Reserve Bank of India, (2022-2023), (pp. 45, 47),
“4. Macroeconomic Impact of Climate Change in India
xxx xxx xxx
II.32 India, along with countries such as Brazil and Mexico,
face high risk of reduction in economic growth, if global
warming raises temperature by 2 degree Celsius as
against 1.5 degree Celsius (IPCC, 2018). Climate change
manifested through rising temperature and changing
patterns of monsoon rainfall in India could cost the
economy 2.8 per cent of its GDP and depress the living
standards of nearly half of its population by 2050 (Mani
et al., 2018). India could lose anywhere around 3 per
cent to 10 per cent of its GDP annually by 2100 due to
climate change (Kompas et al., 2018; Picciariello et al.,
2021) in the absence of adequate mitigation policies.
Furthermore, Indian agriculture (along with construction
activity) as well as industry are particularly vulnerable
to labour productivity losses caused by heat related
stress (Somnathan et al., 2021). India could account for
34 million of the projected 80 million global job losses
from heat stress associated productivity decline by 2030
(World Bank, 2022). Further, up to 4.5 per cent of India’s
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GDP could be at risk by 2030 owing to lost labour hours
from extreme heat and humidity conditions. Moreover,
heatwaves could also last 25 times longer, i.e., rise in
severity, by 2036-2065 if current rate of carbon emissions
is not contained (CMCC, 2021). These estimates, thus,
underscore the importance of timely adoption and faster
implementation of climate mitigation policies to reduce the
adverse impact on the Indian economy.”
(emphasis supplied)
One way of dealing with this situation is preserving the existing forests,
while making an endeavour to enhance its cover. An understanding
from the economic and social perspective would be the best approach.
36. The concept of “Green Accounting” in evaluating a nation’s wealth,
including its natural assets, would extend enormous benefits which
are both tangible and intangible. There are numerous resources that
are being tapped from the forests. Therefore, what is required is a
comprehensive approach.
37. We shall conclude our discussion with a quote from the book “Top
Soil and Civilization” by Tom Dale and Vernon Gill Carter, published
by the University of Oklahoma Press, (1955)
“Man, whether civilised or savage, is a child of nature — he
is not the master of nature. He must conform his actions
to certain natural laws if he is to maintain his dominance
over his environment. When he tries to circumvent the
laws of nature, he usually destroys the natural environment
that sustains him. And when his environment deteriorates
rapidly, his civilisation declines...”
APPROACH OF THE COURT
38. This Court has repeatedly reiterated the approach required to be
adopted by the courts where the onus is on the violator to prove that
there is no environmental degradation. There is a constitutional duty
enjoined upon every court to protect and preserve the environment.
Courts will have to apply the principle of parens patriae in light of the
constitutional mandate enshrined in Articles 48A, 51A, 21, 14 and
19 of the Constitution of India, 1950. Therefore, the burden of proof
lies on a developer or industrialist and also on the State in a given
case to prove that there is no such degradation.
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39. Not being an adversarial litigation, the court shall utilise all possible
resources, including scientific inventions, in its endeavour to preserve
the environment. While adopting an ecocentric approach, the concept
of inter-related existence has to be kept in mind. A narrow or pedantic
approach should be avoided. While considering the economic
benefits, the invisible value and benefits provided by the forests shall
also be factored into. There has to be an inclusive approach, which
should be society centric, meaning thereby that all species should
co-exist with minimum collateral damage. The effort is to minimise
the damage to the environment, even in a case where the need for
human development is indispensable. While having a pragmatic and
practical approach, courts will have to weigh in the relevant factors
and thus, perform a balancing act.
PRECEDENTS
Uncertainty of Science and Burden of Proof
● A.P. Pollution Control Board v. Prof. M.V. Nayudu, (1999)
2 SCC 718
“36. We shall next elaborate the new concept of burden
of proof referred to in the Vellore case [(1996) 5 SCC
647] at p. 658. In that case, Kuldip Singh, J. stated as
follows: (SCC p. 658, para 11)
“(iii) The ‘onus of proof’ is on the actor or the developer/
industrialist to show that his action is environmentally
benign.”
37. It is to be noticed that while the inadequacies of
science have led to the “precautionary principle”, the
said “precautionary principle” in its turn, has led to the
special principle of burden of proof in environmental
cases where burden as to the absence of injurious
effect of the actions proposed, — is placed on those
who want to change the status quo [Wynne, Uncertainty
and Environmental Learning, 2 Global Envtl. Change 111
(1992) at p. 123]. This is often termed as a reversal of the
burden of proof, because otherwise in environmental
cases, those opposing the change would be compelled
to shoulder the evidentiary burden, a procedure which
is not fair. Therefore, it is necessary that the party
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attempting to preserve the status quo by maintaining
a less polluted state should not carry the burden of
proof and the party who wants to alter it, must bear this
burden. [See James M. Olson: “Shifting the Burden of
Proof”, 20 Envtl. Law, p. 891 at p. 898 (1990).] [Quoted
in Vol. 22 (1998), Harv. Env. Law Review, p. 509 at pp.
519, 550.]
xxx xxx xxx
39. It is also explained that if the environmental risks being
run by regulatory inaction are in some way “uncertain but nonnegligible”, then regulatory action is justified. This will lead to
the question as to what is the “non-negligible risk”. In such
a situation, the burden of proof is to be placed on those
attempting to alter the status quo. They are to discharge
this burden by showing the absence of a “reasonable
ecological or medical concern”. That is the required
standard of proof. The result would be that if insufficient
evidence is presented by them to alleviate concern
about the level of uncertainty, then the presumption
should operate in favour of environmental protection.
Such a presumption has been applied in Ashburton
Acclimatisation Society v. Federated Farmers of New
Zealand [(1988) 1 NZLR 78] . The required standard now
is that the risk of harm to the environment or to human
health is to be decided in public interest, according to
a “reasonable persons” test. [See Charmian Barton:
Precautionary Principle in Australia (Vol. 22) (1998) Harv.
Env. L. Rev., p. 509 at p. 549.]”
(emphasis supplied)
Approach of the Court: High Degree of Judicial Scrutiny on Any
Action of Government
● Intellectuals Forum v. State of A.P., (2006) 3 SCC 549
“Public trust doctrine
76. The Supreme Court of California, in National Audubon
Society v. Superior Court of Alpine Country [33 Cali 419]
also known as Mono Lake case [33 Cali 419] summed up
the substance of the doctrine. The Court said:
[2024] 5 S.C.R. 127
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“Thus the public trust is more than an affirmation
of State power to use public property for public
purposes. It is an affirmation of the duty of the
State to protect the people’s common heritage
of streams, lakes, marshlands and tidelands,
surrendering the right only in those rare cases
when the abandonment of the right is consistent
with the purposes of the trust.”
This is an articulation of the doctrine from the angle of the
affirmative duties of the State with regard to public trust.
Formulated from a negatory angle, the doctrine does not
exactly prohibit the alienation of the property held as a
public trust. However, when the State holds a resource
that is freely available for the use of the public, it
provides for a high degree of judicial scrutiny on any
action of the Government, no matter how consistent
with the existing legislations, that attempts to restrict
such free use. To properly scrutinise such actions of
the Government, the courts must make a distinction
between the Government’s general obligation to act for
the public benefit, and the special, more demanding
obligation which it may have as a trustee of certain
public resources [Joseph L. Sax “The Public Trust
Doctrine in Natural Resource Law: Effective Judicial
Intervention”, Michigan Law Review, Vol. 68, No. 3 (Jan.
1970) pp. 471-566]. According to Prof. Sax, whose article
on this subject is considered to be an authority, three types
of restrictions on governmental authority are often thought
to be imposed by the public trust doctrine [ibid]:
1. the property subject to the trust must not only be
used for a public purpose, but it must be held
available for use by the general public;
2. the property may not be sold, even for fair cash
equivalent;
3. the property must be maintained for particular
types of use (i) either traditional uses, or (ii)
some uses particular to that form of resources.”
(emphasis supplied)
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● Narinder Singh and Ors. v. Divesh Bhutani and Ors., 2022
SCC OnLine SC 899
“THE APPROACH OF THE COURT IN INTERPRETING
THE LAWS RELATING TO FORESTS AND THE
ENVIRONMENT
25. While interpreting the laws relating to forests, the Courts
will be guided by the following considerations:
i. Under Clause (a) Article 48A forming a part of
Chapter IV containing the Directive Principles
of State Policy, it is the obligation of the State
to protect and improve the environment and to
safeguard the forests;
ii. Under Clause (g) of Article 51A of the Constitution,
it is a fundamental duty of every citizen to protect
and preserve the natural environment, including
forests, rivers, lakes and wildlife etc.;
iii. Article 21 of the Constitution confers a fundamental
right on the individuals to live in a pollution-free
environment. Forests are, in a sense, lungs
which generate oxygen for the survival of human
beings. The forests play a very important role in
our ecosystem to prevent pollution. The presence
of forests is necessary for enabling the citizens
to enjoy their right to live in a pollution-free
environment;
iv. It is well settled that the Public Trust Doctrine is a
part of our jurisprudence. Under the said doctrine,
the State is a trustee of natural resources, such
as sea shores, running waters, forests etc. The
public at large is the beneficiary of these natural
resources. The State being a trustee of natural
resources is under a legal duty to protect the
natural resources. The public trust doctrine is a
tool for exerting long-established public rights
over short-term public rights and private gains;
v. Precautionary principle has been accepted as a part
of the law of the land. A conjoint reading of Articles
21, 48A and 51-A(g) of the Constitution of India will
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show that the State is under a mandate to protect
and improve the environment and safeguard the
forests. The precautionary principle requires the
Government to anticipate, prevent and remedy or
eradicate the causes of environmental degradation
including to act sternly against the violators;
vi. While interpreting and applying the laws relating
to the environment, the principle of sustainable
development must be borne in mind. In the case
of Rajeev Suri v. Delhi Development Authority and
Ors. [(2022) 11 SCC 1], a Bench of this Court to
which one of us is a party (A.M. Khanwilkar, J.) has
very succinctly dealt with the concept of sustainable
development. Paragraphs 507 and 508 of the said
decision reads thus:
“507. The principle of sustainable
development and precautionary principle
need to be understood in a proper context.
The expression “sustainable development”
incorporates a wide meaning within its
fold. It contemplates that development
ought to be sustainable with the idea
of preservation of natural environment
for present and future generations. It
would not be without significance to note
that sustainable development is indeed
a principle of development - it posits
controlled development. The primary
requirement underlying this principle is
to ensure that every development work
is sustainable; and this requirement of
sustainability demands that the first attempt
of every agency enforcing environmental
Rule of law in the country ought to be to
alleviate environmental concerns by proper
mitigating measures. The future generations
have an equal stake in the environment
and development. They are as much
entitled to a developed society as they are
130 [2024] 5 S.C.R.
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to an environmentally secure society. By
Declaration on the Right to Development,
1986, the United Nations has given express
recognition to a right to development. Article
1 of the Declaration defines this right as:
“1. The right to development is an
inalienable human right by virtue
of which every human person
and all peoples are entitled to
participate in, contribute to, and
enjoy economic, social, cultural
and political development, in
which all human rights and
fundamental freedoms can be
fully realized.”
508. The right to development, thus, is
intrinsically connected to the preservance
of a dignified life. It is not limited to the
idea of infrastructural development, rather,
it entails human development as the basis
of all development. The jurisprudence in
environmental matters must acknowledge
that there is immense interdependence
between right to development and right
to natural environment. In International
Law and Sustainable Development, Arjun
Sengupta in the chapter “Implementing the
Right to Development” notes thus:
“… Two rights are interdependent
if the level of enjoyment of one
is dependent on the level of
enjoyment of the other…”
vii. Even ‘environmental rule of law’ has a role to play.
This Court in the case of Citizens for Green Doon
v. Union of India and Ors. 2021 SCC OnLine SC
1243 has dealt with another important issue of lack
of consistent and uniform standards for analysing
the impact of development projects. This Court
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observed that the principle of sustainable
development may create differing and arbitrary
metrics depending on the nature of individual
projects. Therefore, this Court advocated and
accepted the need to apply and adopt the standard
of ‘environmental Rule of law’. Paragraph 40 of the
said decision reads thus:
“40. A cogent remedy to this problem is to
adopt the standard of the ‘environmental
Rule of law’ to test governance decisions
under which developmental projects are
approved. In its 2015 Issue Brief titled
“Environmental Rule of Law : Critical to
Sustainable Development”, the United
Nations Environment Programme has
recommended the adoption of such an
approach in the following terms:
“ E n v i r o n m e n t a l r u l e o f
law integrates the critical
environmental needs with the
essential elements of the rule
of law, and provides the basis
for reforming environmental
governance. It prioritizes
environmental sustainability by
connecting it with fundamental
rights and obligations. It
implicitly reflects universal moral
values and ethical norms of
behaviour, and it provides a
foundation for environmental
rights and obligations. Without
environmental rule of law and
the enforcement of legal rights
and obligations, environmental
governance may be arbitrary,
that is, discretionary, subjective,
and unpredictable.”
(emphasis supplied)
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Forest Constitute A National Asset
● Amarnath Shrine, In re, (2013) 3 SCC 247
“19. Where it is the bounden duty of the State to protect the
above rights of the citizen in discharge of its constitutional
obligation in the larger public interest, there the law also
casts a duty upon the State to ensure due protection to
the forests and environment of the country. Forests in
India are an important part of the environment. They
constitute a national asset. We may, at this stage, refer
to the concept of inter-generational equity, which has
been treated to be an integral part of Article 21 of the
Constitution of India. The courts have applied this
doctrine of sustainable development and precautionary
principle to the cases where development is necessary,
but certainly not at the cost of environment. The
courts are expected to drive a balance between the
two. In other words, the onerous duty lies upon the
State to ensure protection of environment and forests
on the one hand as well as to undertake necessary
development with due regard to the fundamental rights
and values.”
(emphasis supplied)
Environmental Rule of Law
● H.P. Bus-Stand Management & Development Authority v.
Central Empowered Committee, (2021) 4 SCC 309
“I.1. Environmental rule of law
xxx xxx xxx
“49. The environmental rule of law, at a certain level, is a
facet of the concept of the rule of law. But it includes specific
features that are unique to environmental governance,
features which are sui generis. The environmental rule
of law seeks to create essential tools — conceptual,
procedural and institutional to bring structure to the
discourse on environmental protection. It does so to
enhance our understanding of environmental challenges
— of how they have been shaped by humanity’s interface
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with nature in the past, how they continue to be affected
by its engagement with nature in the present and the
prospects for the future, if we were not to radically alter
the course of destruction which humanity’s actions have
charted. The environmental rule of law seeks to facilitate a
multi-disciplinary analysis of the nature and consequences
of carbon footprints and in doing so it brings a shared
understanding between science, regulatory decisions
and policy perspectives in the field of environmental
protection. It recognises that the “law” element in the
environmental rule of law does not make the concept
peculiarly the preserve of lawyers and Judges. On the
contrary, it seeks to draw within the fold all stakeholders
in formulating strategies to deal with current challenges
posed by environmental degradation, climate change
and the destruction of habitats. The environmental rule
of law seeks a unified understanding of these concepts.
There are significant linkages between concepts such as
sustainable development, the polluter pays principle and
the trust doctrine. The universe of nature is indivisible
and integrated. The state of the environment in one part
of the earth affects and is fundamentally affected by what
occurs in another part. Every element of the environment
shares a symbiotic relationship with the others. It is this
inseparable bond and connect which the environmental
rule of law seeks to explore and understand in order to
find solutions to the pressing problems which threaten
the existence of humanity. The environmental rule of law
is founded on the need to understand the consequences
of our actions going beyond local, State and national
boundaries. The rise in the oceans threatens not just
maritime communities. The rise in temperatures, dilution
of glaciers and growing desertification have consequences
which go beyond the communities and creatures whose
habitats are threatened. They affect the future survival
of the entire eco-system. The environmental rule of law
attempts to weave an understanding of the connections
in the natural environment which make the issue of
survival a unified challenge which confronts human
societies everywhere. It seeks to build on experiential
134 [2024] 5 S.C.R.
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learnings of the past to formulate principles which must
become the building pillars of environmental regulation
in the present and future. The environmental rule of law
recognises the overlap between and seeks to amalgamate
scientific learning, legal principle and policy intervention.
Significantly, it brings attention to the rules, processes and
norms followed by institutions which provide regulatory
governance on the environment. In doing so, it fosters
a regime of open, accountable and transparent decision
making on concerns of the environment. It fosters the
importance of participatory governance — of the value
in giving a voice to those who are most affected by
environmental policies and public projects. The structural
design of the environmental rule of law composes of
substantive, procedural and institutional elements. The
tools of analysis go beyond legal concepts. The result
of the framework is more than just the sum total of its
parts. Together, the elements which it embodies aspire
to safeguard the bounties of nature against existential
threats. For it is founded on the universal recognition
that the future of human existence depends on how we
conserve, protect and regenerate the environment today.
xxx xxx xxx
54. In an article in Georgetown Environmental Law Review
(2020), Arnold Kreilhuber and Angela Kariuki explain the
manner in which the environmental rule of law seeks to
resolve this imbroglio [ Arnold Kreilhuber and Angela Kariuki,
“Environmental Rule of Law in the Context of Sustainable
Development”, 32 Georgetown Environmental Law Review
591 (2020).] :
“One of the main distinctions between environmental
rule of law and other areas of law is the need to make
decisions to protect human health and the environment
in the face of uncertainty and data gaps. Instead of
being paralyzed into inaction, careful documentation
of the state of knowledge and uncertainties allows
the regulated community, stakeholders, and other
institutions to more fully understand why certain
decisions were made.”
[2024] 5 S.C.R. 135
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The point, therefore, is simply this — the environmental
rule of law calls on us, as Judges, to marshal the
knowledge emerging from the record, limited though
it may sometimes be, to respond in a stern and
decisive fashion to violations of environmental law.
We cannot be stupefied into inaction by not having
access to complete details about the manner in which
an environmental law violation has occurred or its full
implications. Instead, the framework, acknowledging
the imperfect world that we inhabit, provides a
roadmap to deal with environmental law violations,
an absence of clear evidence of consequences
notwithstanding.”
(emphasis supplied)
Role of Courts
● H.P. Bus-Stand Management & Development Authority
(Supra)
“I.2. Role of courts in ensuring environmental protection
56. In a recent decision of this Court in BDA v. Sudhakar
Hegde [(2020) 15 SCC 63] , this Court, speaking through
one of us (D.Y. Chandrachud, J.) held : (SCC pp. 112-13,
paras 94-95)
“94. The adversarial system is, by its nature, rights
based. In the quest for justice, it is not uncommon
to postulate a winning side and a losing side.
In matters of the environment and development
however, there is no trade-off between the two.
The protection of the environment is an inherent
component of development and growth. …
Professor Corker draws attention to the idea
that the environmental protection goes beyond
lawsuits. Where the State and statutory bodies
fail in their duty to comply with the regulatory
framework for the protection of the environment,
the courts, acting on actions brought by publicspirited individuals are called to invalidate such
actions. …
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95. The protection of the environment is
premised not only on the active role of courts,
but also on robust institutional frameworks
within which every stakeholder complies with
its duty to ensure sustainable development.
A framework of environmental governance
committed to the rule of law requires a regime
which has effective, accountable and transparent
institutions. Equally important is responsive,
inclusive, participatory and representative
decision-making. Environmental governance
is founded on the rule of law and emerges
from the values of our Constitution. Where the
health of the environment is key to preserving
the right to life as a constitutionally recognised
value under Article 21 of the Constitution,
proper structures for environmental decisionmaking find expression in the guarantee against
arbitrary action and the affirmative duty of fair
treatment under Article 14 of the Constitution.
Sustainable development is premised not merely
on the redressal of the failure of democratic
institutions in the protection of the environment,
but ensuring that such failures do not take
place.”
xxx xxx xxx
58. The UNEP Report (supra) also goes on to note [ UNEP,
“Environmental Rule of Law First Global Report” (January
2019), p. 213.] :
“Courts and tribunals must be able to grant meaningful
legal remedies in order to resolve disputes and enforce
environmental laws. As shown in Figure 5.12, legal
remedies are the actions, such as fines, jail time, and
injunctions, that courts and tribunals are empowered
to order. For environmental laws to have their desired
effect and for there to be adequate incentives for
compliance with environmental laws, the remedies
must both redress the past environmental harm and
deter future harm.”
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59. In its Global Judicial Handbook on Environmental
Constitutionalism, the UNEP has further noted [UNEP, Global
Judicial Handbook on Environmental Constitutionalism (3rd
Edn., 2019), p. 7.] :
“Courts matter. They are essential to the rule of law.
Without courts, laws can be disregarded, executive
officials left unchecked, and people left without
recourse. And the environment and the human
connection to it can suffer. Judges stand in the breach.”
60. The above discussion puts into perspective our decision
in the present appeals, through which we shall confirm the
directions given by NGT in its impugned judgment [T.N.
Godavarman Thirumulpad v. Union of India, 2016 SCC
OnLine NGT 1196] . The role of courts and tribunals
cannot be overstated in ensuring that the “shield”
of the “rule of law” can be used as a facilitative
instrument in ensuring compliance with environmental
regulations.”
(emphasis supplied)
FACTUAL BACKGROUND
40. Between the years 1950-1959, a revision of survey and settlement
of village Kompally took place. It was concluded on 17.11.1960. An
application was stated to have been filed by Respondent No. 1 (Original
Plaintiff), invoking Section 87 of the Andhra Pradesh (Telangana
Area) Land Revenue Act, 1317 F. (hereinafter referred to as “A.P.
Land Revenue Act, 1317 F.”), seeking rectification of survey error. It
was so filed on the premise that the Plaintiff actually owned the suit
land. The suit land consists of 106.34 Acres and the Schedule reads
thus – Village Kompally, District Warangal, Survey Number 171/3 to
171/7 admeasuring 106.34 Acres. This application did not surface
for nearly a decade and a half, for the reasons known to the Plaintiff.
41. A notification being Gazette No. 85-B was published in the Andhra
Pradesh Gazette on 11.11.1971 by the State Government, under
Section 15 of the A.P. Forest Act, declaring the land, which was
part of the earlier proceedings of the revenue department dated
17.11.1960, as reserved forest. It was done on the premise that the
lands were forest lands and, therefore, they were accordingly declared
as reserved forest.
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42. Rather strangely, the application so filed by the Plaintiff was rejected
by the Revenue Authority only on 10.01.1975. The revision filed by
him was allowed by remitting the matter to the Joint Collector. Suffice
it is to state that despite the findings rendered, neither the Forest
Department nor the Forest Settlement Officer was arrayed as a party
to these proceedings before the revenue department. It is also seen
that the order of the Revenue Authority and the Revisional Authority
were passed much after the declaration under Section 15 of the A.P.
Forest Act, vesting the lands in the State by giving them the status
of a reserved forest.
43. On 07.07.1981, the Joint Collector, Warangal allowed the application
of the Plaintiff. Realising that the said order will not give the Plaintiff
benefit of any sort, he filed an application before the Government
seeking denotification of the land declared as reserved forest’, which
was rightly dismissed on 01.09.1984.
44. A suit was filed by the Plaintiff on 23.04.1985 in OS No. 56 of 1985
on the file of I Additional Sub-Judge, Warangal seeking a declaration
of title and permanent injunction. In the said suit the Defendant no.
1 was the District Collector representing the Revenue Department
with the Defendant no. 2, Forest Officer representing the Forest
Department. Quite surprisingly, neither the Forest Settlement Officer
nor the State of Andhra Pradesh, Forest Department was made a
party defendant. The trial court while granting title to the plaintiff
declined the incidental relief of injunction.
45. On appeal, the High Court, by giving adequate reasons reversed the
said finding of the trial court qua the declaration, and confirmed the
findings on injunction by dismissing the suit in toto. Ultimately, it was
held that the suit property is forest land. The proceedings concluded
under the A.P. Forest Act, though not specifically challenged, and
that too without the proper and necessary parties, were found to be
just and proper.
46. The trial court and the High Court in first appeal have given factual
findings against the plaintiff. Only two witnesses were examined,
one on each side. The trial court took note of the fact that there
is material evidence to show that the suit land is a part of the
reserved forest. The plaintiff was not at all in possession of the
suit land. The suit was also held as barred under Section 5 of the
A.P. Forest Act.
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47. The High Court, being the final court of fact and law, went ahead and
held that the plaintiff had miserably failed to show his title to the suit
property. The Plaintiff did not have any personal knowledge about
the manner of his succession to the suit property. Even as per his
own evidence, he is not the absolute owner of the suit property, being
a co-owner. The documents relied on by him, more particularly the
decision of the revenue authorities, do not establish both title and
possession. A detailed discussion was made on the effect of Section
15 and 16 of the A.P. Forest Act, along with the documents marked
on behalf of defendants. It took note of the fact that though a portion
of the property was sold as per the evidence of the Plaintiff, there
is no proof.
48. Immediately after the judgment of the High Court dated 20.07.2018,
a review was filed on behalf of the plaintiff on 18.11.2018. Shockingly,
Defendant No. 1, who filed a common written statement along with
the Defendant No. 2 and, thus, took a stand that the suit property is
a forest land which becomes part of a reserved forest area, in line
with the stand taken by the Defendant No. 3, who was impleaded
pending the first appeal, constituted a committee on 12.07.2019 on
an application said to have been filed by the Plaintiff in the year 2017,
which was obviously pending the first appeal.
49. More surprisingly, the District Forest Officer did not appear before the
Committee and based upon a report submitted, it was held that the
suit property is required to be excluded in favour of the plaintiff. This
was done despite the fact that the District Collector, who was a party
to the suit, took a specific stand, and in view of the judgment which
attained finality, that the suit land is forest land, the District Collector
has got no jurisdiction at all to deal with it in any manner especially
in the light of Section 15 and 16 of the A.P. Forest Act. We do not
wish to say anything more on this, though wisdom has dawned upon
defendants again, as could be seen from the affidavit filed by the
State before this Court reiterating the original stand.
50. The aforesaid decision was taken by the District Collector after the
judgment of the First Appellate Court. It was accordingly marked as
a court exhibit in the review. Thereafter, it was taken up for hearing
and disposed of on 19.03.2021. The Learned Judge who delivered
an elaborate judgment in the first appeal was transferred to Andhra
Pradesh on establishment of the High Court at Amravati. The review
came to be filed before another Learned Judge. The impugned order
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was passed in the purported exercise of the power of review, by
virtually reversing all the findings rendered in the appeal, while placing
reliance upon evidence which on the face of it was inadmissible and,
therefore, void from its inception, rendered by an authority which had
absolutely no jurisdiction at all.
51. While doing so, the High Court in review jurisdiction once again
reconsidered the evidence produced by the Defendants. In the process,
the High Court fixed a heavy onus on the Defendants ignoring the fact
that on the earlier occasion the Plaintiff had miserably failed to prove
his title. Incidentally, it was held that Section 5 of the A.P. Forest Act
which speaks about the bar of a suit can only be applied during the
pendency of proceedings under the A.P. Forest Act and not thereafter.
Despite no challenge either to the proceedings under the A.P. Forest
Act and that too in the absence of proper and necessary parties, an
adverse inference was drawn by taking note of the statement made
by DW-1 who was only a Forest Officer and, therefore, not having
any direct connection with the action taken. Various admissions
made by the plaintiff in his deposition were conveniently ignored.
The High Court went on to criticize the conflicting stand taken by
two wings of the State while ignoring the fact that Defendant No. 1
had absolutely no say.
SUBMISSIONS OF THE APPELLANTS
52. Ms. Aishwarya Bhati, Learned Additional Solicitor General, appearing
for the appellants, submitted that the Forest Conservation Act, 1980
defines a forest which is inclusive of all types of forests. The extensive
inclusion would take in its sweep even the private forests. Revenue
records do not confer title. The High Court clearly exceeded its
jurisdiction in review by entertaining a re-hearing and virtually acted
as an appellate court. The Respondents did not satisfy the court on
the title, which finding has not been touched.
SUBMISSIONS OF THE RESPONDENTS
53. Mr. Neeraj Kishan Kaul, Learned Senior Counsel appearing for the
respondents, vehemently contended that the proceedings before the
Forest Settlement Officer have become final. Even the trial court has
held that the plaintiff had title. Once title is proved, possession has to
follow. As there is an error apparent on the face of record, the power
of review has been exercised correctly. The finding that Section 5 of
the A.P. Forest Act, has got no application is correct, as there is no
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attempt to interdict the proceedings. As there is no apparent perversity,
this Court need not interfere with the impugned order.
DISCUSSION
54. We have already recorded the facts in detail. It is a classic case where
the officials of the State who are expected to protect and preserve
the forests in discharge of their public duties clearly abdicated their
role. We are at a loss to understand as to how the High Court could
interfere by placing reliance upon evidence produced after the decree,
at the instance of a party which succeeded along with the contesting
defendant, particularly in the light of the finding that the land is forest
land which has become part of reserved forest.
55. There is a distinct lack of jurisdiction on two counts – one is with
respect to an attempt made to circumvent the decree and, the
second is in acting without jurisdiction. The land belongs to the
Forest Department and therefore, Defendant No. 1 had absolutely
no role in dealing with it in any manner. Proceeding under the A.P.
Land Revenue Act, 1317 F. has got no relevancy or connection with
a concluded proceeding under the A. P. Forest Act. The proceeding
under the A. P. Forest Act was concluded on 11.11.1971. Thereafter,
without any jurisdiction, an order was passed under Section 87 of
the A.P. Land Revenue Act, 1317 F.
56. The High Court on the earlier occasion had given a clear finding that
even at the time of declaration under the A.P. Land Revenue Act, 1317
F, these lands were not shown as private lands by the defendant,
among other factual findings. It is indeed very strange that the High
Court which is expected to act within the statutory limitation went
beyond and graciously gifted the forest land to a private person who
could not prove his title. While disposing of the first appeal, the High
Court exercised its power under Order XLI Rule 22 of the CPC 1908
for partly reversing the trial court decree. Even otherwise, there were
concurrent findings in so far as dismissal of the suit for injunction is
concerned. In our considered view, the High Court showed utmost
interest and benevolence in allowing the review by setting aside
the well merited judgment in the appeal by replacing its views in all
material aspects.
57. Let us alternatively examine the question of maintainability of a suit
for the relief of declaration. The suit filed is not maintainable as the
plaintiff has not challenged the proceedings under Section 15 of
142 [2024] 5 S.C.R.
Digital Supreme Court Reports
A. P. Forest Act. These have become final and conclusive in view
of the express declaration provided under the statute in Section
16 of A. P. Forest Act. Rather, the plaintiff filed an application for
denotification before the Government which was rejected. Neither the
State Government, which rejected the said application, nor the Forest
Settlement Officer has been made as party defendants in the suit,
with the State arrayed as respondent represented by the Principal
Secretary, Forest Department, at a later stage in the appeal. Though,
the Forest Officer of the Forest Department may be an interested party,
the authority who otherwise could answer is the Forest Settlement
Officer. He is the one who concluded the proceedings. In any case,
the said exercise is irrelevant as the Plaintiff could not prove his
title nor does there lie any relevance to the action taken under the
A.P. Land Revenue Act, 1317 F. Furthermore, there is no specific
challenge to the concluded proceedings under the A. P. Forest Act.
The Plaintiff has merely asked for declaration of title and permanent
injunction restraining the Defendants from interfering with possession.
58. We, thus, conclude that the impugned judgment does not stand the
legal scrutiny as it is ridden with both factual and legal errors.
59. Accordingly, the appeal stands allowed. The impugned judgment
stands set aside by restoring the judgement rendered in A.S. No. 145
of 1994. We consider it appropriate to impose cost of Rs. 5,00,000/-
each on appellants and respondents to be paid to the National Legal
Services Authority (NALSA) within a period of two months from the
date of this judgment. The appellant State is free to enquire into the
lapses committed by the officers in filing collusive affidavits before
the competent court, and recover the same from those officers who
are responsible for facilitating and filing incorrect affidavits in the
ongoing proceedings. The Contempt Case No. 624 of 2021 pending
before the High Court is directed to be closed. I.A. No.65196/2021
is dismissed. All other pending applications stand closed.
Headnotes prepared by: Divya Pandey Result of the case:
Appeal allowed.
