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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 OP(FT) NO. 3 OF 2021**
**AGAINST THE ORDER IN OA 1045/1974 OF FOREST TRIBUNAL, PALAKKAD**
## **PETITIONERS/RESPONDENTS:**
1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST AND WILDLIFE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.
- 2 CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE,PALAKKAD-678002.
BY ADV SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
## **RESPONDENT/PETITIONER:**
VELANDY, AGED 81 YEARS, S/O. LATE THEYYAN, PUTHEN VEEDU, NOCHIPPULLY P.O., PALAKKAD, REPRESENTED BY POWER OF ATTORNEY HOLDER, R.KARNAN, S/O. LATE C.K.RAMAN, AGED 43 YEARS, CHENATH VEED, DURGA LANE PUTHUR P.O., PALAKKAD-678001.
BY ADV K.P.BALAGOPAL
## **OTHER PRESENT:**
NAGARAJ NARAYANAN- SPL.G.P
THIS OP (FOREST TRIBUNAL) HAVING BEEN FINALLY HEARD ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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**K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------O.P.(F.T.)No.3 of 2021 -------------------------------------Dated this the 18[th] day of October, 2022**
## **J U D G M E N T**
## Jayachandran, J.
**1.** O.A.No.1045 of 1974 preferred by the respondent
herein was allowed as per Ext.P1 order of the Forest Tribunal, Palakkad dated 02.08.1977. A composite application [I.A.No.85 of 2013] to amend the schedules to the O.A, as also, Ext.P1 order was filed 36 years after pronouncement of the order in the O.A. A prayer
to restore possession of the scheduled property with the amended survey numbers was also sought for in the
interim application. The same was filed on the premise that, when the forest officials came to the scheduled property for the purpose of restoration, it was found that the property is comprised in survey nos.246/7, 246/1 and 247/1 instead of the survey number 231/1,
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shown in the O.A., as also, the order. The second respondent in the O.A. [second petitioner herein] opposed the amendment sought for on various counts by filing a counter affidavit.
**2.** In support of the amendment sought for, petitioner in the O.A. filed Ext.P5 commission application to ascertain _interalia_ the correct survey number of the scheduled property, as shown within the boundaries of the O.A. The Commissioner filed Ext.P6 report indicating that the property in question is covered by survey nos.246/1 and 247/1. Ext.P7 objection
was filed by the second respondent in the O.A. [second petitioner herein] to the commission report. As per Ext.P8 order dated 16.05.2017, Ext.P3 application for amendment and restoration was disallowed by the Forest Tribunal, Kozhikode, finding that the property in question is not one included in survey no.246/7, one among the survey numbers specifically sought to be incorporated vide the amendment application. Ext.P8 order also found fault with the applicant in filing a
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composite application for amendment of the schedule to the O.A., as also, the schedule to the order. However, liberty was granted to the applicant to take further steps to identify the disputed property in O.A. by excluding the property comprised in survey no.246/7.
**3.** The applicant then filed Exts.P10 and P11 applications, the former to amend the survey number in the original application and the latter, for amendment of the order. The prayer sought is to amend Survey no.
231/1 to Survey numbers 246/1 [45.54 cents] and 247/1 [1.99 acres]. The pre-existing survey no.231/1 was sought to be deleted. Here again, the department filed a counter affidavit opposing the prayer. However, as per Ext.P13 order impugned herein dated 22.02.2019, the
Tribunal allowed the amendment application, relying
upon the self-same report of the Commissioner [Ext.P6],
on the premise that, the amendment is required to enable the applicant to enjoy the fruits of the order.
**4.** Heard Sri.Nagaraj Narayanan, learned Special
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Government Pleader [Forests] for the petitioners and Sri.K.P.Balagopal, learned counsel for the respondent.
Perused the records.
**5.** Having heard learned counsel appearing on both
sides, we are of the view that the impugned order cannot be sustained and that, the amendment sought for should not have been allowed. The maintainability of an
amendment application seeking amendment of pleadings, with a consequent amendment to the decree/order, after the decree attaining finality itself would appear to be doubtful at the outset. In this context, it is profitable to refer to the language employed in Order VI Rule 17, as also, the effect of the proviso therein; which was specifically noticed in the impugned order, but its purport completely misunderstood by the Tribunal. Order VI Rule 17 contemplates that the Court may “at any stage of the proceedings” allow either
party to alter or amend the pleadings. Emphasis is on any stage of the proceedings, thereby meaning that, a proceeding should be pending. Once the proceedings, as
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also, the decree/order has become final, it could possibly be contended that the Court has become _functus officio,_ denuding itself of the power to entertain any application, sans those which are specifically empowered by the Code. Another aspect of the issue is the effect of the proviso which mandates that, no amendment shall be allowed after the trial has commenced, except in cases where the party satisfies the test of due diligence. If such a rigor is
incorporated by virtue of a proviso introduced by the Civil Procedure Amendment Act, 2002 forbidding an
amendment after the commencement of the trial, then the indication is that an amendment sought for after the decree/order attaining finality - in this case, 36
years after such event – is surely impermissible.
**6.** However, the judgment of the Honourable Supreme Court in **Peethani Suryanarayana and Another** v. **Repaka Venkata Ramana Kishore and Others** [(2009)11 SCC 308]
would expatiate the legal position otherwise, as could be seen from the observations in paragraph nos.10, 15,
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16, 17 and 18 of the said judgment. Albeit finding a power to that effect, the Hon'ble Supreme Court held that, such wide power is circumscribed by three factors namely; (i) application must be bonafide (ii) the same should not cause injustice to the other side (iii) it should not affect the right already accrued to the defendants.
**7.** Nevertheless, it requires to be noticed that in **Peethani Suryanarayana** supra, the amendments sought for after passing the final decree was only to correct the town survey number '462' to that of '463', wherein, the Supreme Court came to the definite finding that the mistake was merely clerical and that, the identity of the property has not been changed. The circumstances which led to change of survey number, which offers a complete explanation in this regard, has been taken note of by the Supreme Court in paragraph no.9 of the judgment. The Supreme Court also found in paragraph no.18 that the case before it was not one where the land in question is being substituted by another.
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**8.** We thus notice the legal position that, unless and until an application for amendment - preferred after the decree/order attaining finality - is completely bonafide, without entailing any prejudice to the other side and not affecting the rights accrued, the amendment cannot be allowed.
**9.** Coming to the facts, the survey number [in fact the resurvey number as per the application] shown in Ext.A1 title deed is 213/1. However, in the original application, the resurvey number shown is 231/1, obviously a mistake, where the digits got interchanged. Had the amendment been one sought for to correct this mistake, there cannot be any scintilla of doubt that the same has to be allowed, _dehors_ the delay. However, in the instant case, the amendment sought for is to correct the survey number of the scheduled property as 246/1, 246/7 and 247/1, of which, survey no.246/7 was given a go-bye after filing Ext.P6 commission report. There is no explanation forthcoming as to how such a vast difference in the survey numbers occurred in the
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original application; or as to how the survey number stated in the title deed had undergone such a change. It cannot be possibly due to the resurvey effected, in as much as, Ext.A1 title deed speaks about the resurvey number and not the survey number. In the absence of a satisfactory explanation forthcoming, we are of the view that the amendment sought for could not be allowed, on the strength of a mere commission report, indicating that the scheduled properties are presently included in the survey numbers, which are sought to be incorporated by amendment. Here, we also notice the
serious objection of the forest department to the commissioner's report, vide Ext.P7. It was pointed out
by the department that the property has not been
identified by the Commissioner; that the property inspected by the Commissioner and the one shown in the
O.A. are different properties and that, the
Commissioner had neither verified the title deed nor the village records for the purpose of identifying the property. There was no reference, whatsoever, in Ext.P6
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commission report to any document which was perused or verified by the Commissioner for the purpose of identification.
**10** . Curiously enough none of these aspects is seen addressed in the impugned order, while allowing the amendment sought for.
**11.** We are also bound to take note of the objection preferred by the forest department to the amendment sought for vide Ext.P4, which are cataloged hereunder:
(i) The properties covered by the survey numbers sought to be incorporated is located 1 km away from the property comprised in survey number 231/1, shown in the schedule to the original application.
(ii) The property which is the subject matter of the original application in survey number 231/1 is lying near VFC item no – 139 of Arimanikkad Malavaram Bit-II, whereas the property in survey nos.246/7, 246/1 and 247/1 [sought to be incorporated by amendment] are lying in VFC item no.138 – Koonankadu Malavaram.
**==> picture [359 x 12] intentionally omitted <==**
no.247/1 [sought to be incorporated by amendment] two original applications were filed as O.A.Nos.1036/1974 and 1013/1974, which were
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allowed by the Tribunal.
Apart from the above, huge delay of 36 years and absence of any valid document indicating the existence of the scheduled property in the new survey numbers sought to be incorporated were also pointed out in the objection.
**12.** In the light of the above objections, none of
which is seen addressed in the impugned order, we cannot summarily reject the contention that the amendment, if allowed, will have the effect of
substituting the scheduled property with another. We
are also of the view that, without the junction of the
revenue authorities concerned in the party array, the
amendment ought not have been allowed, especially because of the vast difference between the survey
number pleaded and those sought to be incorporated by amendment.
**13.** The applicant before the Tribunal had no idea
of the lie of the property when the application was filed and the so called title deed, Ext.A1, also is a
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document executed after the appointed day of the Vesting Act. The proceedings before the Forest Tribunal itself was a fishing expedition and though successful, that having not resulted in any catch, the further
proceedings, by the nature of the amendments sought were surely incompetent. In the circumstances, this
appeal succeeds. Ext.P13 order impugned is hereby set aside. Parties to suffer their respective costs.
**Sd/-**
**K.VINOD CHANDRAN JUDGE**
**Sd/-**
**C.JAYACHANDRAN**
**JUDGE**
```
Sbna/
```
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## **APPENDIX OF OP(FT) 3/2021**
PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 2.8.1977 IN O.A.NO.1045/1974. EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.1262/1974 DATED 17.4.1974 PRODUCED BY THE APPLICANT BEFORE THE OFFICIALS OF THE FOREST DEPARTMENT WITH TYPED COPY. EXHIBIT P3 TRUE COPY OF I.A.NO.85/2013 IN O.A.NO.1045/74 DATED 19.4.2013. EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT OF THE DIVISIONAL FOREST OFFICER, PALAKKAD DATED 12.3.2014. EXHIBIT P5 TRUE COPY OF THE I.A.NO.25 OF 2015 DATED 12.2.2015 FILED BY THE PETITIONER FOR APPOINTING THE ADVOCATE COMMISSIONER. EXHIBIT P6 TRUE COPY OF THE COMMISSION REPORT DATED 22.8.2016. EXHIBIT P7 TRUE COPY OF THE OBJECTION FILED BY THE DIVISIONAL FOREST OFFICER, PALAKKAD TO THE COMMISSIONER'S REPORT DATED 22.11.2016. EXHIBIT P8 TRUE COPY OF THE ORDER DATED 16.5.2017 IN I.A.NO.85/2013 IN O.A.1045/74. EXHIBIT P9 TRUE COPY OF THE I.A.NO.92/2018 DATED 12.3.2018. EXHIBIT P10 TRUE COPY OF THE I.A.NO.93/2018 DATED 12.3.2018. EXHIBIT P11 TRUE COPY OF THE I.A.NO.94/2018 DATED 12.3.2018. EXHIBIT P12 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE DIVISIONAL FOREST OFFICER, PALAKKAD IN I.A.NO.93/2018 DATED 7.12.2018. EXHIBIT P13 TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL DATED 22.2.2019 IN IA.93 OF 2018 AND IA.94 OF 2018 IN OA.1045 OF 1974. EXHIBIT P14 TRUE COPY OF THE NOTIFICATION NO.EFL-10-311/2013 DATED 26.10.2013.
