TaxTMI 
TaxTMI 
2010 (8) TMI 959
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....tled to constitute the same as a reserve forest. Feeling aggrieved the appellant's predecessor filed an appeal against the order of the Forest Settlement Officer under section 11 of the Act. The appeal was allowed by the first Additional District Judge, Ernakulam by common judgment dated 23.6.1980 holding that the Royal Neet of 1928 ME to which the appellant traced back his title was a genuine document and the notification issued by the Government in respect of the proposed reserve forest was without jurisdiction. 3. The State Government filed an appeal against the said appellate judgment before the High Court under section 12A of the Act. (MSA No.1/1981). The High Court allowed the second appeal and reversed the judgment of the District Judge. The order of the High Court was challenged by the appellant. This Court by order dated 25.11.2003 allowed the civil appeal filed by the appellant and remanded the matter to the High Court for fresh consideration, with the following observation : "... some decisions have also been referred, to that the jurisdiction under Section 12A of the Act is akin to Section 100 C.P.C. We feel that since the matter is fit to be remanded for fresh de....
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....order under section 11 of the said Act, would lie only if it involves a substantial question of law? (ii) If so, whether the Memorandum of appeal shall have to state the substantial question of law involved in the appeal and whether the High Court is bound to formulate the substantial question/s of law, while admitting the appeal or before posting the appeal for hearing. The relevant legal provisions 7. The answers to the questions raised depend upon the scheme of chapter II of the Act relating to Reserved forests. The relevant portions of Sections 4, 5, 6, 8, 9, 11, 12A and 83 of the Act are extracted below : "4. Notification by Government.- Whenever it is proposed to constitute any land a Reserved Forest, the Government shall publish a notification in the Gazette- x x x [c] appointing an officer (hereinafter called the Forest Settlement Officer) to inquire into and determined 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 Act." "5. Suits barred.- Except as hereinafter provide....
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....d under section 6, so far as they are ascertainable from the records of the Government and the evidence of any person likely to be acquainted with the same. 9. Powers of Forest Settlement Officer.- For the purpose of such inquiry, the Forest Settlement Officer may exercise the following powers, namely:- (a) the power to enter by himself or to authorize any officer to enter upon and land, and to survey, demarcate and make a map of the same; and (b) the powers of a Civil Court in the trial of suits." "11. Appeals from the Orders of Settlement Officer.- (1) Where a claim is rejected wholly or in part, the claimant may, within ninety days from the date of the order prefer an appeal to the District Court in respect of such rejection only. The time taken for obtaining copies of the order appealed against shall be excluded in computing the period of ninety days. (2) Whenever a claim is admitted in the first instance wholly or in part, a like appeal may be preferred on behalf of Government by the Forest Officer appointed under section 4, or other person generally or specially empowered by the Government in this behalf." "12A. Appeal to the High Court.- (1) The....
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....ctions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below. ... An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial." (emphasis supplied) 11. In Hari Shankar v. Rao Girdhari Lal Chowdhury [1962 Supp. (1) SCR 933], this court held : "A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute conferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure." (emphasis supplied) 12. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat [1969 (2) SCC 74], this court referred to the statement in Story on Constitution (of United States), Vol. 2, Article 1761 that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to pres....
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....ny order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner; (b) [omitted] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgement thereon containing the grounds on which such decision is founded and may a....
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....atived the said contention. This court held that a second appeal under section 28 of the Saurashtra Act can be entertained by a High Court within the limits prescribed by section 100 of the Code of Civil Procedure and it is not open to the parties to demand re-appraisal of the evidence by the High Court. This Court held that the scheme of Saurashtra Act did not confer any special jurisdiction upon the courts described therein, but it only intended to provide for a second appeal in terms of section 100 of the Code. This Court held that the Saurashtra Act merely declared that a second appeal will lie to the High Court against decrees or orders passed by the courts exercising jurisdiction under section 27, but thereby the essential character of a second appeal under the Code was not altered and the procedure in the trial of suit, applications and proceedings under the Act, was the procedure prescribed by the Code of Civil Procedure and therefore it had to be held that the legislature intended to confer a right of second appeal subject to the restrictions imposed by section 100 of the Code. 16. We may therefore formulate the following principles with reference to appeals : (i) An....
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....of section 12A of the Act. Section 12A of the Act. "Appeal to the High Court".- Section 100 of the Code - "Second appeal". - (1) The Government or any person objecting to any order of the District Court in an appeal under section 11 may, within a period of ninety days from the date of that order, appeal against such order to the High Court: Provided that High Court may admit an appeal preferred after the expiration of the period of ninety days aforesaid if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period. (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. ------ (2) An appeal may lie under this section from an appellate decree passed ex parte. (2) An appeal under sub-section (1) shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a fee of one hundred rupees. (3) In an appeal under thi....