Santhamma v. Ratnam Amma and Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.HARIPRASAD & THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 03RD DAY OF MARCH 2021 / 12TH PHALGUNA, 1942 ## OP(FT).No.1 OF 2018(R) [AGAINST THE ORDER DATED 05-12-2016 IN I.A.NO.283/2012 & I.A.NO.137/2013 IN O.A. NO.26/1977 OF FOREST TRIBUNAL, KOZHIKODE] ## PETITIONER/PETITIONER: SANTHAMMA AGED 62 YEARS, W/O. CHANDRAMOHAN, RESIDING AT SREERANGAM, PANAMANNA, ANANGANADI VILLAGE, OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679501. BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN ## RESPONDENTS/RESPONDENTS: 1 RATNAM AMMA W/O. GOVINDAN, NAIR, PATTAYIL KIZHAKKETHIL, KIZHUR, OTTAPALAM TALUK, PALAKKAD DISTRICT, PIN-679501. 2 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM, PIN-695036. 3 CUSTODIAN EX-OFFICIO SPECIAL SECRETARY (FOREST SPECIAL) DEPARTMENT, THIRUVANANTHAPURAM, PIN-695001. R2-3 BY SHRI.SANDESH RAJA K. SPL.G.P.(FOREST) THIS OP (FOREST TRIBUNAL) HAVING BEEN FINALLY HEARD ON 03.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(F.T.)No.1 of 2018 2 ## JUDGMENT Dated this the 3rd day of March 2021 ## A. Hariprasad J. The 1[st] respondent filed O.A.No.26 of 1977 before the Forest Tribunal, Kozhikode under Section 8 of the Kerala Private Forests (Vesting and Assignments) Act, 1971, in short (‘the vesting Act’) for a declaration that the properties scheduled to the application are not private forests. The aforementioned Original Application was heard and disposed of by the Tribunal along with O.A.No.25 of 1977 filed by one Sreedevi Amma. As per a common order dated 30.4.2018 (Ext.P4), those applications were allowed. Thereafter, the 1[st] respondent sold the property to one Hamsa as per Ext.P5 assignment deed. Hamsa, in turn, assigned the property to the petitioner as per Ext.P6. Noticing some mistakes in the description of the property, Hamsa executed a rectification deed in the name of the petitioner incorporating certain additional survey numbers pertaining to the properties involved in the assignment deed. O.P.(F.T.)No.1 of 2018 3 2. The petitioner approached the Forest Tribunal by filing Ext.P11 application requesting the Tribunal to amend the description of the property with reference to survey numbers. It is the petitioner’s case that, there is no change in the boundaries or extent. Exhibit P13 is the counter statement filed by the Divisional Forest Officer, Palakkad opposing Ext.P11 application. After hearing both sides, the Tribunal passed the impugned order which is marked as Ext.P15. The Tribunal, after elaborately considering the contentions, opined that, Section 152 of the Code of Civil Procedure (for short ‘the Code’) cannot be invoked to allow the amendment as requested by the petitioner. Feeling aggrieved by the same, the petitioner has approached this Court. 3. Heard the learned counsel for the petitioner and the learned Special Government Pleader for respondents 2 and 3. 4. The learned counsel for the petitioner submitted that, the Tribunal should have allowed the application as there could be no change in the O.P.(F.T.)No.1 of 2018 4 identity of the property mentioned in Ext.P4 order passed by the Forest Tribunal. It is also pointed out that, by virtue of the amendment, the petitioner is not claiming any larger extent than that is covered by Ext.P4. 5. Per contra, the learned Special Government Pleader submitted that, the application is mischievous and the amendment now sought for will not come within the purview of Section 152 of the Code. 6. The Kerala Private Forests (Tribunal)Rules, 1972 deals with the powers of the Forest Tribunals. Rule 11 therein says this: _“All proceedings before the Tribunal, the procedure prescribed as regards applications in the Code of Civil Procedure, 1908, or the rules made thereunder shall, as far as they can be made applicable, be followed, except to the extent otherwise provided in the Act or in these Rules.”_ There is no provision either in the Vesting Act or under the above Rules which interdicts an application under Section 152 of the Code. But the question to be decided is whether Ext.P11 application can be said to be one falling under Section 152 of the Code. For clarity, Section 152 of the Code is quoted hereunder: _“152.Amendment of judgments, decrees or orders.- Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising_ O.P.(F.T.)No.1 of 2018 5 _therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”_ It is clear from the provision that, what is intended to be covered by the amendment in the above Section is only a clerical or arithmetical mistake in judgments, decrees or orders. Likewise, the errors arising therein from any accidental slip or omission may also be corrected. It is clear that, an application for correction as provided under Section 152 of the Code can be made at any time by any of the parties before the court either of its own motion or on the application of any of the parties. As observed by the Hon’ble Supreme Court in Srihari (Dead) Through Lr.Smt.Ch.Niveditha Reddy v. Syed Maqdoom Shah and Others [2015(1)SCC 607], the basis of Section 152 of the Code is founded on the maximum “actus curiae neminem gravabit.” A learned Single Judge of this Court in Raman Nadar Velayudhan Nadar v. Janaki Karthi and Others [2011(2) KHC 634] has extensively explored the scope of Section 152 of the Code and given a detailed discussion of the court’s powers under the above provision. O.P.(F.T.)No.1 of 2018 6 7. The learned Special Government Pleader pointed out that the amendment sought for is not very innocuous since the property exempted under Section 3(2) of the Vesting Act as per Ext.P4 order passed by the Forest Tribunal is only the land included in Survey No.1/9 of Ottappalam Taluk, Madambam amsom, Kezhoor desom. The schedule to Ext.P4 clearly shows that, two items of properties are included in Survey No.1/9. In Ext.P11 application, a lot of survey numbers are sought to be added by way of amendment under Section 152 of the Code. It is evident that, Ext.P10 letter issued by the Divisional Forest Officer, Palakkad on 2.2.2013 is the basis for filing Ext.P11 application. In Ext.P10, the Divisional Forest Officer has informed the petitioner that, her request for restoration cannot be granted because on verification, it was found that, the property claimed by her is situated in Survey Nos.1/9,3/5,5/2,6/1, 2,3,4 & 6 of Trikkadeeri-I village. Therefore, the petitioner approached the Tribunal on the basis of Ext.P10 by seeking an amendment. 8. The learned Special Government Pleader O.P.(F.T.)No.1 of 2018 7 vehemently argued that, Ext.P10 will not confer any right on the petitioner to claim properties which is not covered by Ext.P4 order. Moreover, in Ext.P4, the exemption was granted on the basis of a purchase certificate issued by the Land Tribunal, Sreekrishnapuram which is marked as Ext.A2 in the original proceedings. Exhibit A2 would show that, date of purchase certificate is 11.8.1977. The contentions raised by the petitioner that, Ext.P3 is the purchase certificate under which the predecessor-in-title of the petitioner derived title cannot be sustained because Exhibit P3 shows a different date namely 2.3.1977. It is, therefore, contended by the Special Government Pleader that, the petitioner cannot raise any claim based on Ext.P3 to contend that, that was referred to by the Tribunal for granting exemption under Section 3(2) of the Vesting Act. 9. Placing reliance on the decision in Srihari (Dead) Through Lr.Smt.Ch.Niveditha Reddy v. Syed Maqdoom Shah and Others [2015(1)SCC 607], the learned Government Pleader contended that the attempt on the O.P.(F.T.)No.1 of 2018 8 part of the petitioner is to lay a claim in respect of other lands not covered by the original application. According to him, Section 152 of the Code cannot be utilized to amend the entire decree if it does not come within the purview of Section 152 of the Code. To buttress the above proposal, paragraph 12 of the said decision is relied on: _“12. From the language of Section 152 of the Code, as quoted above, and also from the interpretation of the section given in the case of State of Punjab v. Darshan Singh (supra), the section is meant for correcting the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission. It is true that the powers under Section 152 of the Code are neither to be equated with the power of review nor can be said to be akin to review or even said to clothe the Court under guise of invoking after the result of the judgment earlier rendered. The corrections contemplated under the section are of correcting only accidental omissions or mistakes and not all omissions and mistakes. The omission sought to be corrected which goes to the merits of the case is beyond the scope of Section 152. In Bijay Kumar Saraogi (supra) also it has been reiterated that Section 152 of the Code can be invoked for the limited purpose of correcting clerical errors or arithmetical mistakes in judgments or accidental omissions.”_ 10. The learned Forest Tribunal has considered the matters in extenso. Having regard to the rival O.P.(F.T.)No.1 of 2018 9 submissions, we are of the view that the Tribunal is perfectly justified in dismissing the application for amendment sought for by the petitioner. We find no reason to interfere with the well reasoned order passed by the Tribunal. Therefore, this Original Petition is dismissed. Sd/- A.HARIPRASAD JUDGE Sd/- pkk ZIYAD RAHMAN A.A. JUDGE O.P.(F.T.)No.1 of 2018 10 ## APPENDIX ## PETITIONER'S/S EXHIBITS: - EXHIBIT P1 TRUE COPY OF THE PARTITION DEED NO. 946/1971 DTD. 5.5.1971. - EXHIBIT P2 TRUE COPY OF THE ORDER IN O.A NO. 2873/1975 OF SREEKRISHNA PURAM LAND TRIBUNAL DTD. 13.09.1976. - EXHIBIT P3 TRUE COPY OF THE PURCHASE CERTIFICATE IN OA NO. 2873/1975 OF SREEKRISHNAPURAM LAND TRIBUNAL DATED 02.03.1977. - EXHIBIT P4 TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL IN O.A. NO. 25/77 & O.A. NO. 26/77 DATED 30.4.1980. - EXHIBIT P5 TRUE COPY OF THE SALE DEED NO. 2401/1984 DTD. 25.07.1984. - EXHIBIT P6 TRUE COPY OF THE SALE DEED NO. 2266/1993 DATED 24.06.1993. - EXHIBIT P7 TRUE COPY OF THE CORRECTION DEED EXECUTED BY THE VENDOR ON 03.03.1994. - EXHIBIT P8 TRUE COPY OF THE TAX RECEIPT DATED 06.09.2012. - EXHIBIT P9 TRUE COPY OF THE AUTHORIZATION DATED 27.1.2012. - EXHIBIT P10 TRUE COPY OF THE LETTER OF DIVISIONAL FOREST OFFICER, PALAKKAD DATED 2.2.2013. - EXHIBIT P11 TRUE COPY OF IA NO.283/2012 BEFORE THE FOREST TRIBUNAL DATED 20.06.2013. - EXHIBIT P12 TRUE COPY OF I.A.NO. 137/2013 SEEKING TO CORRECT THE ORIGINAL APPLICATION DATED 20.06.2013. - EXHIBIT P13 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENTS 2 AND 3 AGAINST EXT P11 DTD. MAY 2013. - EXHIBIT P14 TRUE COPY OF THE REPORT AND PLAN SUBMITTED BY THE COMMISSIONER IN O.A.NO. 26/1977 DATED 22.08.16. O.P.(F.T.)No.1 of 2018 11 EXHIBIT P15 TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL, KOZHIKODE IN I.A.NO.283/2012 & I.A NO. 137/2013 IN O.A.NO. 26/1977 DATED 5.12.2016. //TRUE COPY// P.S. TO JUDGE