K. Pradeep Kumar v State of Kerala and Principal Chief Conservator of Forest (Custodian of Ecologically Fragile Lands), Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **THURSDAY, THE 28[TH] DAY OF OCTOBER 2021/6TH KARTHIKA, 1943** **MFA NO. 16 OF 2019** **AGAINST THE COMMON ORDER DATED 25/09/2017 IN OA 30 OF 2015 OF KERALA FOREST (VESTING & MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD** **APPELLANT:** **K.PRADEEP KUMAR, AGED 41 YEARS S/O. AMMINI AMMA, KRISHNA NIVAS, KANIYARAKKOD P.O., THIRUVILWAMALA, THRISSUR DISTRICT.** **BY ADVS.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM 695 001.** **2 THE PRINCIPAL CHIEF CONSERVATOR OF FOREST (CUSTODIAN OF ECOLOGICALLY FRAGILE LAND), THIRUVANANTHAPURAM 695 001.** **R BY SRI.NAGARAJ NARAYANAN, SPL.GP.** **THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION** **ON 28.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** -2- M.F.A.No.16 of 2019 ## **JUDGMENT** ## Anil K. Narendran, J. The appellant is the applicant in O.A.No.30 of 2015 on the file of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands), which was one filed under Section 10 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, seeking a declaration that the application schedule property having an extent of 2.03 Acres in Re.Sy.No.1502/1 of Thiruvilwamala Village in Thrissur District, is not an ecologically fragile land coming under the purview of that Act. The appellant filed O.A.No.30 of 2015 before the Forest Tribunal, along with I.A.No.190 of 2015, an application filed under Section 5 of the Limitation Act, 1963, to condone the delay of 559 days in filing that O.A. The Tribunal by the order dated 25.09.2017, dismissed I.A.No.190 of 2015 on the ground that in an original proceedings, Section 5 of the Limitation Act has no application. Feeling aggrieved, the appellant is before this Court in this appeal filed under Section 11 of the Act. -3- M.F.A.No.16 of 2019 2. This appeal was filed along with an application for condonation of delay of 383 days, which was allowed by a separate order of this date. After condoning the delay, as agreed by the learned counsel on both sides, this appeal was finally heard. 3. The question that arises for consideration in this appeal is as to whether the order dated 25.09.2017 of the Forest Tribunal in I.A.No.190 of 2015 in O.A.No.30 of 2015 warrants interference in this appeal filed under Section 11 of the Act. 4. Heard the learned counsel for the appellant and also the learned Special Government Pleader for the respondents. 5. In **Thresiamma Varghese and others v. State of Kerala [2018 (1) KHC 327 : 2018 (1) KLT 508]** a Division Bench of this Court noticed that the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for brevity, ‘the Act’) does not prescribe that an application under Section 10 of the Act should be filed before the Tribunal within a specified time from the date of issuance -4- M.F.A.No.16 of 2019 of the notification under sub-section (2) of Section 3. However, sub-rule (1) of Rule 3 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules, 2007 (for brevity ‘the Tribunal Rules’) prescribes a period of limitation. As per sub-rule (1) of Rule 3, 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. As per the proviso to sub-rule (1) of Rule 3, 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. A notification could be issued under the Act either under sub-section (2) of Section 3 or under sub-section (1) of Section 4. What sub-rule (1) of Rule 3 provides is that an application under Section 10 shall be filed within three months from the date of decision of the -5- M.F.A.No.16 of 2019 Custodian in cases where notification was issued under subsection (2) of Section 3. It shall be filed within six months from the date of communication of fixing of compensation under Section 8 if the notification was one issued under subsection (1) of Section 4 of the Act. 6. In **Thresiamma Varghese** the Division Bench found that the decision referred to in sub-rule (1) of Rule 3 of the Tribunal Rules is not the decision of the Custodian to issue notification under sub-section (2) of Section 3. That is clear from the proviso to sub-rule (1) of Rule 3. The proviso states 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 the Tribunal Rules. That means the decision referred to in sub-rule (1) of Rule 3 is the decision of the Custodian on any petition filed by the owner of the land or any other aggrieved person. A combined reading of sub-rule (1) of Rule 3 and its proviso suggests that in cases where a notification was issued under subsection (2) of Section 3 of the Act, the application under Section 10 shall be filed within thirty days from the date of -6- M.F.A.No.16 of 2019 decision of the Custodian and in cases where the petitions were disposed of by the Custodian before the Tribunal Rules came into force, the application under Section 10 shall be filed within three months from the date of notification of the Tribunal Rules. 7. In **Thresiamma Varghese** the Division Bench noticed that there are provisions in the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act and in the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (for brevity, ‘the EFL Rules’) under which applications could be filed before the Custodian by an aggrieved person. Under clause (b) of sub-section (3) of Section 19 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 Section 3 of the said ordinance shall be scrutinised by the Custodian _suo motu_ or on an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in -7- M.F.A.No.16 of 2019 accordance with the provisions of the Act. Under Chapter V of 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 clause (b) of sub-section (3) of Section 19 of the Act or under Chapter V of the EFL Rules, an application under Section 10 of the Act shall be filed within three months from the date of the decision of the Custodian, as provided under sub-rule (1) of Rule 3 of the Tribunal Rules. If the Custodian has taken the decision before the Tribunal Rules came into force, the application under Section 10 shall be filed within three months from the date of notification of the said Rules as provided by the proviso to sub-rule (1) of Rule 3. But there is no provision in the Act compelling the owner of the land to approach the Custodian before the Tribunal is approached. Going by the scheme of the Act, the owner can approach the Tribunal under Section 10, without approaching the Custodian. When the owner so comes to the Tribunal with -8- M.F.A.No.16 of 2019 - an application under Section 10, sub rule (1) of Rule 3 of the - Tribunal Rules and the proviso to the said sub rule can have no application. Sub-rule (1) of Rule 3 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 C ustodian is not approached and he had no occasion to take any decision, an application under Section 10 is not barred by reason of the period of limitation prescribed under sub-rule (1) of Rule 3. Therefore, the Division Bench held that a period of limitation is prescribed by sub-rule (1) of Rule 3 of the Tribunal Rules for an application under Section 10 of the Act in 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 any decision as he had no occasion to take any decision. The Division Bench observed that this is indeed an anomaly, but the anomaly is created by the rule itself. 8. In the case on hand, the appellant did not approach the Custodian for any relief, either under the Act or -9- M.F.A.No.16 of 2019 under the EFL Rules. Therefore the Custodian did not have an occasion to take a decision. Therefore, as held by the Division Bench in **Thresiamma Varghese** , sub-rule (1) of Rule 3 of the Tribunal Rules prescribing a period of limitation has no application to the application filed by the appellant under Section 10 of the Act. 9. In the application filed by the appellant under Section 10 of the Act, i.e., O.A.No.30 of 2015, the filing of I.A.No.190 of 2015 was quite unnecessary. Therefore, the order dated 29.09.2017 of the Forest Tribunal in I.A.No.190 of 2015 and the consequent dismissal of O.A.No.30 of 2015 are liable to be set aside and we do so. 10. In **Sharda Devi v. State of Bihar [(2003) 3 SCC 128]** , in the context of Section 30 of the Land Acquisition Act, 1894 the Apex Court held that, where no period of limitation for the exercise of any statutory power is prescribed, the power can be exercised only within a reasonable period. What is the reasonable period in a given case shall depend on the facts and circumstances of each case. The Apex Court reiterated the said principle in **Meher** -10- M.F.A.No.16 of 2019 **Rusi Dalal v. Union of India [(2004) 7 SCC 362]** and **P.K. Sreekantan v. P. Sreekumaran Nair [(2006) 13 SCC 574]** . 11. Therefore, an applicant has to file an original application under Section 10 of the Act before the Forest Tribunal within a reasonable period. As held by the Division Bench in **Thresiamma Varghese** , what is the reasonable period can be decided in some cases at least only after trial. What ought to be the reasonable period being dependent on the facts and circumstances of each case, it is desirable to decide the question after collection of evidence. The respondents will certainly have a right to oppose the original application on the ground that the applicant did not approach the Forest Tribunal within a reasonable time. In the result, this appeal is disposed of by setting aside the order dated 29.09.2017 of the Forest Tribunal in I.A.No.190 of 2015 and the consequent dismissal of O.A.No.30 of 2015. O.A.No.30 of 2015 is remitted back to the Forest Tribunal for disposal afresh, in accordance with law. The Forest Tribunal shall also decide the question as to -11- M.F.A.No.16 of 2019 whether O.A.No.30 of 2015 filed by the appellant under Section 10 of the Act is one filed within a reasonable period. Both parties shall appear before the Forest Tribunal on **02.12.2021** . **Sd/-** **ANIL K. NARENDRAN, JUDGE** **Sd/-** **P.G. AJITHKUMAR, JUDGE** AV/2/11