M/S. POPULAR ESTATES & POPULAR PLANTATIONS, THRISSUR v. STATE OF KERALA represented by its Principal Secretary Forest and Wildlife Department and The Custodian of Ecologically Fragile Lands (Chief Conservator of Forests), Thiruvananthapuram

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937 OP(FT).No. 1 of 2016 () ------------------------ AGAINST THE ORDER/JUDGMENT IN IA 56/2014 IN UN-NUMBERED O.A.of TRIBUNAL FOR EFL CASES/ I ADDL.DISTRICT COURT, KOZHIKODE DATED 20-08-2015 PETITIONER(S): -------------------------- M/S. POPULAR ESTATES & POPULAR PLANTATIONS, RAILWAY STATION ROAD, THRISSUR REPRESENTED BY ITS PARTNER JOHN K.PAUL. BY ADV. SRI.T.R.RAVI RESPONDENT(S): ---------------------------- 1. STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY FOREST AND WILD LIFE DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS (CHIEF CONSERVATOR OF FORESTS) THIRUVANANTHAPURAM 695 001. R BY SPL.GOVERNMENT PLEADER (FORESTS) SHRI M.P.MADHAVANKUTTY THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 1501-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FT).No. 1 of 2016 () ------------------------ ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------EXHIBIT P1. COPY OF THE IA 56/2014. EXHIBIT P2. COPY OF THE ORDER DATED 20.8.15. RESPONDENT(S)' EXHIBITS NIL TRUE COPY P.S. TO JUDGE ## **P.N. Ravindran & K. Ramakrishnan, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - O.P.(FT) No.1 of 2016 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] January, 2016** ## **JUDGMENT** ## **K. Ramakrishnan J.** This is a petition filed by the petitioner challenging Ext.P2 order passed by the Forest Tribunal, Kozhikode under Article 227 of the Constitution of India. 2. It is alleged in the petition that the petitioner is the applicant in un-numbered original application before the Tribunal for Ecologically Fragile Land Cases, Kozhikode. The original application was sought to be filed challenging the order of the second respondent in a statutory petition filed under Ecologically Fragile Lands Act and Rules. The application has been returned on several occasions to cure the defects. All the defects noted except one regarding production of original of some of the documents have been cured. Learned counsel for the petitioner had endorsed in the file that the above said defect could not be cured since proceedings were pending before this court under Kerala Private Forests (Vesting and Assignment) Act, hereinafter referred to as “the Act” for short and the original documents were produced in that proceedings and the above proceedings were ended in favour of the petitioner. The Special Leave Petition filed by the state in 2009 is still pending consideration before the Honourable OP(FT) 1/2016 2 Supreme Court. The above said proceedings are with respect to the very same land. Stating these aspects the petitioner re-presented the un-numbered application along with I.A.No.56 of 2014, produced as Ext.P1, for condoning the delay of 2050 days in re-presenting the original application. The respondents filed a counter opposing the application and after considering the rival contentions, the Tribunal dismissed the application as per Ext.P2 order which is challenged by the petitioner before this court. 3. Heard Shri T.R. Ravi, learned counsel for the petitioner and Shri M.P. Madhavankutty, learned Special Government Pleader (Forests) appearing for the respondents. 4. Learned counsel for the petitioner submitted that there is no willful laches in not re-presenting the case in time. In fact, he was under the impression that all the documents are before the same court and as such he need only produce the copies and further, since the validity of the Act has been challenged before this court, they were under the impression that if that ends in their favour, they need not proceed with the application. Since the writ petition filed before this court was dismissed and they have been given an opportunity to file an application before the appropriate authorities, I.A.No.56 of 2014 has been filed. OP(FT) 1/2016 3 5. On the other hand, learned Special Government Pleader opposed the prayers in the original petition vehemently. 6. It is an admitted fact that there was an earlier proceedings in respect of the same land when proceedings were initiated under the Kerala Private Forests (Vesting and Assignment) Act and in that proceedings the original documents have been produced by the petitioner before this court. That was ended in their favour and Special Leave Petition is pending before the Honourable Supreme Court from 2009 onwards. It is in the meantime that the present Ecologically Fragile Lands Act has been enacted. It is also an admitted fact that the validity of that Act was also challenged by some of the interested parties and that was disposed of by this court upholding the constitutional validity very recently, giving the parties an opportunity to approach the authorities under the Act to redress their grievances. It was on that basis the petitioner filed an application before the second respondent. 7. Earlier an application has been filed before the authority to exempt this land and that was dismissed and challenging that order the original application has been filed before the Forest Tribunal. It was returned for curing some defects, one among the defects being non-production of the original documents. Certain other defects were OP(FT) 1/2016 4 cured and it was re-presented with copies of the documents and again the application was returned by the office of the Tribunal to cure the defect. It was after disposal of the case pending before this court upholding the constitutional validity of the Act, that the petitioner represented the original application again with a delay condonation application stating the above reasons and that was dismissed by the Forest Tribunal. 8. The court below had found that there is no satisfying reasons given to condone the delay of 2050 days in re-presenting the application. The consideration of delay under section 5 of the Limitation Act for filing an original application or an appeal is different from the delay caused in re-presenting an application. The same strict principles need not be applied for not re-presenting an application in time. This has been considered by the Supreme Court in the decision reported in **Indian Statistical Institute v. M/s. Associated Builders and others** (AIR 1978 SC 335) and observed that the same yardsticks as required for considering the application for delay under section 5 of the Limitation Act need not be extended for considering the delay in re-presentation of the petition which has been filed in time. Following the same decision this court also reiterated the same principles in the decision reported in **Kombi and others v. Nationa** l OP(FT) 1/2016 5 **Highway Authority of India, New Delhi and others** (2013 (1) KLT 12). The court below had not applied these principles while considering the question of extension of time for re-presentation under section 148 of the Code of Civil Procedure. So, we feel that an opportunity has to be given to the petitioner to defend the case on merits and the right of the parties should not be defeated on technical grounds of delay in representation which has been caused on account of bonafide belief that they need not proceed with the case if the constitutional validity of the impugned Act is decided in their favour. But at the same time, the delay can be condoned on terms, considering the number of delay involved. So, we feel that the petition can be allowed on payment of cost of Rs.25,000/- to the Kerala State Mediation and Conciliation Centre within a week. As the documents are before this court in M.F.A.No.108/2006 (filed against O.A.No.166 of 1990 on the file of the Forest Tribunal, Kozhikode), the Registry is directed to issue certified copies of the documents applied for, on usual terms within two weeks. The petitioner is granted one month's time to produce the certified copies of the documents before the Tribunal. On condition of payment of cost as directed above and on production of certified copies of the documents within the time specified above, the Tribunal is directed to condone the delay in re-presenting the application and number the OP(FT) 1/2016 6 original application if it is otherwise in order. If the cost is not paid as directed, then the petition will stand dismissed. On production of proof of payment of cost, the Registry is directed to communicate this order to the court below at the earliest. ## **( P.N. Ravindran, Judge)** ## **(K. Ramakrishnan, Judge)** ## **kav/**