Dr. U. Chandran & Others v. Government of Kerala & Ors.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 19TH DAY OF DECEMBER 2017/28TH AGRAHAYANA, 1939 OP(FT).No. 3 of 2017 (R) ------------------------- PETITIONERS ------------- 1. DR.U.CHANDRAN, S/O.KANARAN, AGED 67 YEARS, KYPRAM VEETTIL, NANMINDA P.O., KOZHIKODE, PIN-673613 2. DR.K.K.HARIDASAN, S/O.CHERIYAKKU, AGED 67 YEARS, "HARISOBHA HOUSE", BALUSSERY P.O., KOZHIKODE, PIN-673612 3. P.HAMEED KOYA THANGAL, S/O.SYED MOHAMMED KOYA THANGAL, AGED 56 YEARS, "HASNA TURAB", VALLIKANDIPARAMBU, NALLALAM P.O., KOZHIKODE, PIN-673207 4. USSAN KOYA, AGED 70 YEARS, S/O.ABDUL KHADAR HAJI, "CHENNIYALATH HOUSE", KOLATHUR P.O., KOZHIKODE, PIN-673315 5. T.DAYANANDAN, S/O.CHERIYAKKU, AGED 64 YEARS, THEKKEDATHU HOUSE, BALUSSERY P.O., KOZHIKODE, PIN-673612 BY ADVS.SRI.T.B.SIVAPRASAD SRI.A.KOMU RESPONDENT(S)/RESPONDENTS: -------------------------- 1. GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, VESTED IN GOVERNMENT (THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS), FOREST HEAD QUARTERS, VAZHUTHAKKAD, THIRUVANANTHAPURAM,PIN-695104 OP(FT).No. 3 of 2017 (R) -2- 3. THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD DISTRICT, PIN-673121 R1-R3 BY SRI.NAGARAJ NARAYANAN, SPL.G.P. FOR FOREST THIS OP (FOREST TRIBUNAL) HAVING BEEN FINALLY HEARD ON 19-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FT).No. 3 of 2017 (R) ------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF NOTIFICATION NO.EFL 1-134/2006 DATED 4.8.2009 ISSUED BY THE 2ND RESPONDENT EXHIBIT P2 TRUE COPY OF THE LETTER DATED 28.7.2010 ISSUED BY THE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF JUDGMENT DATED 26.5.2016 IN W.P.(C) NO. 8934 OF 2013 EXHIBIT P4 TRUE COPY OF O.A.(UNNUMBERED) OF 2016 FILED BEFORE THE TRIBUNAL FOR EFL CASES EXHIBIT P5 TRUE COPY OF I.A.NO.127 OF 2016 IN UNNUMBERED O.A.OF 2016 EXHIBIT P6 TRUE COPY OF THE ORDER DATED 15.12.2016 OF THE TRIBUNAL FOR EFL CASES IN IA NO.127 OF 2016 True Copy P.S.To Judge ## **K.HARILAL & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - - - - - O.P.(FT).3 of 2017 - - - - - - - - - - - - - - - - - Dated : 19[th] December, 2017, - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## A.M.Babu, J. 1.Petitioners claim to own 5.85 acres of land at Vythiri. The same was notified as an ecologically fragile land. The notification was issued under Sec.3(2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act (for short the Act). The application of the petitioners under Sec.10A of the Act was rejected by the principal chief conservator of forest. Against the said order was filed a writ petition by the petitioners before this court, but the same was withdrawn. They thereafter filed an application under Sec.10 of the Act before the tribunal constituted under the Act. They sought a declaration that their property was not an ecologically fragile land. Along with the said application they filed an interlocutory **OP(FT).3/17** 2 application (I.A.127/2016). It was filed for condoning the delay in filing the original application. The delay, according to the petitioners, was 61 days. The tribunal found the extent of the delay to be 2372 days. The tribunal dismissed I.A.127/2016 holding that there was inordinate and unexplained delay in filing the original application. The said order of the tribunal is assailed in the present original petition filed under article 227 of the Constitution of India. - 2.We heard Sri.A.Komu and Sri.Nagaraj Narayanan, the learned counsel for the petitioners and the learned special government pleader for forest cases respectively. - 3.We need to go into the question as to what was the extent of delay and the question whether the delay was properly explained only if we find that there was any period of limitation prescribed for filing the original application. The Act does not prescribe any period of **OP(FT).3/17** 3 limitation for filing an application under Sec.10. But a period of limitation is prescribed by rule 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules (for short the Tribunal Rules). Rule 3(1) and its proviso read as under : Every application under section 10 shall be made in “Form A” and shall be accompanied by a fee of five hundred rupees with such number of copies of the application and the documents as are necessary to be served on the respondents, within 3 months from the date of decision of the custodian or within 6 months from the date of communication of compensation under section 8, as the case may be, submitted before the tribunal Provided that, in the case of petitions already disposed of by the custodian, the application shall be submitted within three months from the date of notification of these Rules. 4.Thus, under rule 3(1), an application under Sec.10 of the Act shall be filed within three months from the date of decision of the custodian if the notification was one issued under Sec.3(2) of the Act. It shall be filed within six months from the date of communication of fixing of compensation under Sec.8 if the notification was one issued under Sec.4(1) of **OP(FT).3/17** 4 the Act. The proviso to rule 3(1) deals with cases where petitions were disposed of by the custodian before the Tribunal Rules came into force. In such cases the application under Sec.10 shall be filed before the tribunal within three months from the date of notification of the Tribunal Rules. 5.The term 'custodian' is defined in Sec.2(a) of the Act to mean the principal chief conservator of forests of the state or any other officer not below the rank of a conservator of forests appointed by the government, by notification in the gazette, to exercise the powers and perform the functions of the custodian under the Act. Under Sec.19(3)(b) of the Act, notwithstanding anything contained in the ordinance which preceded the Act or in any judgment, decree or order of any court, every notification issued in respect of any land under sub-section (3) of Sec.3 of the said ordinance shall be scrutinized by the custodian suo motu or on an application made by the owner or any person having the right **OP(FT).3/17** **==> picture [7 x 9] intentionally omitted <==** of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of the Act. Under chapter V of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules (for short the EFL Rules), the custodian has the power to make a declaration by order on the application of any person aggrieved that a particular land or a portion thereof is not vested in the government under the provisions of the Act. If the custodian passes an order against the aggrieved person under Sec.19(3)(b) of the Act or under chapter V of the EFL Rules, an application under Sec.10 of the Act shall be filed within three months from the date of the decision of the custodian as provided under rule 3(1) of the Tribunal Rules. If the custodian has taken the decision before the Tribunal Rules came into force, the application under Sec.10 shall be filed within three months from the date of notification of the Tribunal Rules as provided by the proviso to rule 3(1). **OP(FT).3/17** 6 6.But there is no insistence in the Act that the owner should approach the custodian under Sec.19(3)(b) of the Act or under any of the provisions in chapter V of the EFL Rules before filing an application before the tribunal under Sec.10 of the Act. Going by the scheme of the Act, the owner can approach the tribunal under Sec.10 without at all approaching the custodian. When the owner so comes to the tribunal with his application under Sec.10, rule 3(1) of the Tribunal Rules and the proviso to the said subrule can have no application. Rule 3(1) is applicable only to cases where the custodian has taken a decision before or after the commencement of the Tribunal Rules. In cases where the custodian is not approached and the custodian had no occasion to take a decision, an application under Sec.10 is not barred by reason of the period of limitation prescribed under rule 3(1). We hold that a period of limitation is prescribed by rule 3(1) of the Tribunal Rules for an application under Sec.10 of the Act in ## **OP(FT).3/17** **==> picture [7 x 9] intentionally omitted <==** cases where the custodian has taken a decision as aforesaid, but no such period of limitation is prescribed if the custodian is not approached by the party and the custodian has not taken a decision as he had no occasion to take any decision. This may be an anomaly, but the anomaly is created by the rule itself. 7.What next we should decide is whether the original application of the petitioners filed before the tribunal was filed beyond the period of limitation. The petitioners did file an application before the principal chief conservator of forest. But their such application was one under Sec.10A of the Act. Sec.10A is a special provision for small holders of land. Thereunder, notwithstanding anything contained in Sec.10, if any owner of land which has been notified under Sec.3 of the Act and having an extent of not more than two hectares as on the 2[nd] day of June, 2000 has any dispute as to whether such land is an ecologically fragile land or not, he may file an application **OP(FT).3/17** 8 before the principal chief conservator of forests for the settlement of such dispute. An application under Sec.10A is to be filed before the principal chief conservator of forests and the petitioners filed their application before him. Admittedly the application of the petitioners was rejected by the principal chief conservator of forests. But he has no jurisdiction to reject or allow an application filed before him under Sec.10A of the Act. What he should do is to refer the dispute to the ecologically fragile lands claim dispute redressal committee constituted under Sec.10B of the Act. It is specifically provided so in subsection (2) of Sec.10A of the Act. It appears that the principal chief conservator of forests did not comply with the said mandatory requirement in Sec.10A(2) of the Act. Sec.10A(3) of the Act provides that on the reference under sub-section (2), the ecologically fragile lands claim dispute redressal committee shall after inspecting the land in dispute furnish a detailed report within six months from the date **OP(FT).3/17** 9 of receipt of the application to the principal chief conservator of forests regarding the nature of the land, trees and other vegetation on the land. There was no occasion for the said committee to conduct any inspection or to make any report as there was no reference under Sec.10A(2) of the Act. Sec.10A(4) provides that immediately on receipt of the report under subsection (3), the principal chief conservator of forests shall forward the same with his recommendations to the government and the decision of the government thereon shall be final. The decision making authority on an application under Sec.10A is the government and not the principal chief conservator of forests. In the present case the principal chief conservator of forests usurped the powers of the government and rejected the application of the petitioners. The order of the principal chief conservator of forests rejecting the application of the petitioners was an order passed without jurisdiction and therefore it is a nullity. No decision can be taken by the principal chief **OP(FT).3/17** 10 conservator of forests or the custodian on an application filed under Sec.10A of the Act. The decision can be taken only by the government. Rule 3(1) of the Tribunal Rules refers to the decision of the custodian and not that of the government. The rejection of Sec.10A application by the principal chief conservator of forests is of no consequence. The said order cannot be considered as a decision of the custodian to attract rule 3(1) of the Tribunal Rules. We find that rule 3(1) has no application to the instant case. The tribunal erred in finding that the period of limitation provided in rule 3(1) of the Tribunal Rules would apply to the application filed by the petitioners under Sec.10 of the Act. 8.Article 137 of the Limitation Act does not apply to tribunals unless it is specifically made applicable by the special statute. For the position that the Limitation Act does not apply to tribunals, we refer to the apex court in M.P.Steel Corporation v. Commissioner of ## **OP(FT).3/17** 11 Central Excise ((2015) 7 SCC 58) . We may also refer to The Kerala State Electricity Board v. T.P.Kunhaliumma (AIR 1977 SC 282) holding that article 137 of the Limitation Act applies only to courts and not to tribunals. - 9.We find that the original application of the petitioners filed under Sec. 10 of the Act is not barred by time on account of the period of limitation prescribed by rule 3(1) of the Tribunal rules. Therefore it was not at all necessary to file I.A.127/2016 to condone any delay. The order in I.A.127/2016 is liable to be set aside inasmuch as there is a finding that rule 3(1) of the Tribunal Rules is attracted and therefore the original application is barred by time. - 10.The original application of the petitioners was not numbered by the tribunal. No order rejecting the unnumbered original application is produced by the petitioners. The learned counsel for the petitioners submitted that no such order was **OP(FT).3/17** 12 passed by the tribunal. Therefore we called for a report from the tribunal to know whether any order was passed on the unnumbered original application. The learned district judge who is holding additional charge of the tribunal reported that no specific order was passed on the unnumbered application, but an endorsement was made on it that it was rejected. The said endorsement is an order and the same is liable to be set aside. We do so. 11.We have found that rule 3(1) of the Tribunal Rules and article 137 of the Limitation Act have no application to the application filed by the petitioners. But that does not mean that the petitioners can bring their application under Sec.10 at any time they wish. It is not correct to think that if no period of limitation is prescribed, the application can be brought at any time. In cases where no period of limitation is prescribed for an application, it shall be brought within a reasonable time. We may in this connection refer to three decisions of the apex ## **OP(FT).3/17** 13 court. The decisions are (i) Sharda Devi v. State of Bihar (AIR 2003 SC 942) , (ii) Meher Rusi Dalal v. Union of India (AIR 2004 SC 3491) and (iii) P.K.Sreekantan v. P.Sreekumaran Nair (AIR 2007 SC 516) . The apex court holds in Sharda Devi 's case (supra) that though no period of limitation is prescribed for making a reference under Sec.30 of the Land Acquisition Act, needless to say where no period of limitation for the exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period. It is also held that what is the reasonable period in a given case shall depend on the facts and circumstances of each case. It is so held in the other two decisions also - 12.The petitioners were to file the original application within a reasonable period. What is the reasonable period can be decided in some cases at least only after trial. What ought to be the reasonable time, being dependent on the facts and circumstances of each case, in our ## **OP(FT).3/17** 14 view, can be decided only after collection of evidence. The respondents certainly have a right to oppose the original application on the ground that it did not come within a reasonable time. The tribunal may consider the issue along with other issues. Any of our observations in this order shall not be construed as a finding whether or not the original application was filed within a reasonable period. - 13.The original petition is allowed. The order of the tribunal in I.A.127/2016 is set aside. The order rejecting the original application as time barred is also set aside. We direct the tribunal to take the original application on file if it is otherwise in order. Sd/- ## **K.HARILAL Judge** ## **Sd/-** ## **A.M.BABU Judge** Mrcs/19.12