OP(FT) No.4 of 2021 (Forest Tribunal, Kozhikode) State of Kerala v. SulaiKha (d/o Abdullakutty Haji) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 26[TH] DAY OF SEPTEMBER 2022 / 4TH ASWINA, 1944** **OP(FT) NO. 4 OF 2021** ## **AGAINST THE ORDER/JUDGMENT IN OA 89/2016 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONERS:** 1 STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY (FOREST AND WILD LIFE), THIRUVANANTHAPURAM 2 CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD-678 002. BY ADVS. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS:** 1 SULAIKHA, D/O ABDULLAKUTTY HAJI, RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. 2 BASURA, D/O MOHAMMED, RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. 3 MUHAMMED, S/O MOIDHEENKUTTY RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. OP(FT) 4/21 2 - MUHAMMED IBRAHIM, S/O MUHAMMED, RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM - 4 DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. - 5 SHABNA, D/O AHAMMED, RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. - 6 ASAMBI, D/O AHAMMED, RESIDING AT CHEMBRASSRI, ERNNAD, MANCHERI, MALAPPURAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER MUHAMMEDKUTTY, ULLANAM (PO) THUDISSERRY, PIN-676 303. BY ADV R.RAMADAS - THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION - ON 26.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(FT) 4/21 3 ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------O.P.(F.T.) No.4 of 2021** ------------------------------------- **Dated this the 26[th] day of September, 2022** **J U D G M E N T** ## Jayachandran, J. 1. The applicants in O.A.No.89/2016 before the Forest Tribunal, Kozhikkode preferred a petition for amendment of the application/plaint vide I.A.No.246/2020. The Tribunal, as per order dated 16.10.2021 allowed the same, which is impugned in this Original Petition. 2. Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) and Sri.R.Ramdas, learned counsel for the respondents. Perused the records. 3. Learned Special Government Pleader contended that the order impugned is bad in law, inasmuch as the amendment sought for alters the very nature of 4 OP(FT) 4/21 the suit, besides causing serious prejudice to the defence set up by the respondents in the O.A (petitioners herein). Learned counsel would submit that out of the total extent of 69 acres, the applicants in the O.A propounded a specific claim with respect to 28.50 acres that it was planted with rubber, whereas no such claim was made with respect to the remaining property, especially about the cultivation therein, or for that matter, the specific specie with which it was cultivated. Now, by virtue of the amendment, the applicants are propounding a claim that the rest of the land was also cultivated with rubber plantation, a plea in stark deviation from their earlier claim. The applicants are attempting to do away the effect of the admission made by them in the plaint, thereby causing serious prejudice to the respondents in the O.A. Learned Special Government Pleader pointed out that in the Original Application, the 'planted area' was shown to be nil, which is sought to be shown as 38.5 acres, by virtue of the instant amendment. 5 OP(FT) 4/21 Learned Special Government Pleader finally pointed out that the proposed amendment alters the nature of the relief sought for from an exception under Section 3(2) or (3) to an exclusion under Section 2(f)(1)(B). 4. _Per contra_ , learned counsel for the applicants in the O.A (respondents herein) submitted that the nature of the suit is not subjected to any change by virtue of the instant amendment. The case pleaded by the applicants in the original plaint essentially remains the same and all what is sought to be supplemented by virtue of the amendment is certain further particulars in respect of the facts very much pleaded in the plaint. By virtue of the amendment, the fact that one of the partners of Kottopadam Plantation by name Smt.Sreemathi applied for removal of standing trees for rubber plantation on 19.2.1965 is sought to be added. This is on the basis of a permission/sanction issued by the District Collector dated 2.4.1965. Similarly, 6 OP(FT) 4/21 another fact that Janaki Aamma applied for permission to plant rubber trees before the Officer, Rubber Board, Perinthalmanna is also sought to be incorporated. The same was allowed vide permit No.669 of the said Board. Again, the factum of a mortgage of the subject land by the said Janaki Amma with the Kerala Financial Corporation is sought to be incorporated. Upon committing default, the property was put in auction vide proceedings in O.P No.46/1980 and that the same was purchased by Ashraff Ali is also sought to be incorporated. These are all, in essence, facts in supplementation/ elaboration of the existing pleadings in the plaint, besides, being supported by adequate documents. There is no alteration in the nature of the suit, in the reliefs sought for, or for that matter, any withdrawal of the alleged admission made in the original plaint, submits the learned counsel. 5. Having heard the learned counsel appearing on both sides, this Court finds substantial merit in 7 OP(FT) 4/21 the contentions raised by the learned counsel for he respondents herein. As rightly pointed out by the learned counsel, the additional facts sought to be incorporated are only in elaboration of existing pleadings. We take note that the applicants in the Original Application had specifically claimed that there were cultivation in the remaining area as well, over and in addition to the 28.50 acres. It is true that the specific specie of cultivation was not mentioned. The fact that it was cultivated with rubber has specific relevance, in the context of S.2(f)(1)B of the Kerala Private Forest Vesting and Assignment Act, 1971. However, so long as the additional pleading that the disputed area was also cultivated with rubber trees is sought to be established on the strength of documents issued by the appropriate authority, which are more than 30 years old, we are only persuaded to confirm the order passed by the Forest Tribunal, allowing the amendment application. The application by Smt.Sreemathi, a partner of Kottopadam Plantation 8 OP(FT) 4/21 for removal of standing trees, followed by an application by Janaki Amma for permission to plant rubber trees are all supported by documents, which are specifically pleaded in the amendment application. In the case of the former, the sanction given by the Collector is dated 2.4.1965, vide letter No.D.Dis.6630/1965 and in the case of latter, permission was granted vide permit No.669 of the Regional Rubber Board, Perinthalmanna. It is true that the mortgage with the Kerala Financial Corporation is not referred to in the original plaint. However, the fact that Asharaff Ali purchased the property in auction has been referred to in the original plaint. The mortgage with the Kerala Financial Corporation, the factum of committing default in the matter of repayment of loan and the culmination of that proceedings, whereby the auction was fixed in the name of Asharaff Ali are only facts in furtherance of the essential facts pleaded in the plaint. We note that O.P No.46/1980 of the District Court, OP(FT) 4/21 9 Thiruvananthapuram is very much pleaded in the original plaint. 6. It is true that the applicant seeks to incorporate the extent of the planted area as 38.52 acres as against “nil” shown in the original application. Here also, we are inclined to take a liberal view, for, we are not of the opinion that the applicant should be pinned down to a mistake in filling up the requisite data in the prescribed format. All what is being permitted is an amendment of the pleading, which the applicant is bound to establish during the course of trial, wherefore, we find no prejudice being caused to the official respondents in the O.A. Per contra, if the amendment is not allowed, serious prejudice will be caused to the applicant, since he will be denuded of his claim with respect to 38.52 acres of land. We also find little merit in the contention that by virtue of the proposed amendment, the applicant alters the nature of the relief from an exemption OP(FT) 4/21 10 under Section 3(2)/(3) to that of an exclusion under Section 2(f)(1)B. We fully recognize that the nature of the claims under Section 3(2), or for that matter Section 3(3), is different from the exclusion contemplated under Section 2(f)(1)B. However, we find that, so long as such relief of exclusion flows from the pre-existing pleadings in the O.A., the amendment cannot be refused for having the effect of altering the nature of the relief sought for. We specifically note that the applicant had pleaded about cultivation in the schedule property and by virtue of the amendment, he only seeks to specify the same to be rubber cultivation. Here again, we find that no prejudice is caused to the official respondents by permitting the amendment, for, the exclusion claimed is again to be established in evidence by the applicant, the burden invariably being on him. 7. We take note of the following settled legal position considering an application for amendment of the plaint as expatiated in a recent judgment of the OP(FT) 4/21 11 Hon'ble Supreme Court in **Life Insurance Corporation v. Sanjeev Builders Private Limited (CA 5909/2022** ] : “9. Where the amendment is sought before commencement of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment should be allowed.” 8. Having bestowed our attention to the attendant facts and circumstances, we find no illegality or infirmity with the order passed by the Forest Tribunal. We also approve the finding of the Tribunal that the additional pleadings are necessary OP(FT) 4/21 12 to determine the real question in controversy between the parties, one of the vital criteria culled out in Order-VI Rule-17, while considering an amendment application. As could be seen from the language employed in Order-17 that all such amendments 'shall' be made, which makes it imperative to favour amendment applications being allowed, unless of course it takes away a clear admission to the benefit of the defence; or in a case where a clear prejudice is caused to the defence. We find no such situation occurring in the given facts. 9. In the result, this Original Petition would stand dismissed. ## **Sd/-** ## **K.VINOD CHANDRAN JUDGE** ## **Sd/-** ## **C.JAYACHANDRAN JUDGE** jg OP(FT) 4/21 13 ## **APPENDIX OF OP(FT) 4/2021** |PETITIONER EXHIBITS|| |---|---| |EXHIBIT P1|TRUE COPY OF THE OA 89/2016 PRESENTED ON| ||13.5.2016 BEFORE THE FOREST TRIBUNAL KOZHIKODE| ||(CAMP PALAKKAD)| |EXHIBIT P2|TRUE COPY OF THE COUNTER STATEMENT DATED| ||16.5.2017 IN OA 89/2016 WITH TYPED COPY AGAIN| |EXHIBIT P3|TRUE COPY OF THE IA 246/2020 DATED 10.7.2020| ||FILED BY THE APPLICANT IN OA 89/2016| |EXHIBIT P4|TRUE COPY OF THE COUNTER FILED BY THE WILDLIFE| ||WARDEN, SILENT VALLEY DIVISION ON BEHALF OF THE| ||RESPONDENT O 27.8.2020| |EXHIBIT P5|TRUE COPY OF THE ORDER DATED 16.10.2020 OF THE| ||FOREST TRIBUNAL IN IA NO 246/2020 IN OA NO| ||89/2016| |RESPONDENT EXHIBITS|| |Exhibit R1(A)|TRUE COPY OF THE JUDGMENT DATED 21/10/2014 IN| ||W.P(C) 11893/2011| |Exhibit R1(B)|TRUE COPY OF THE ORDER DATED 06/07/2001 IN E.A.| ||6/97 IN E.A. 2/97 IN E.P1/92 IN O.P 46/1980 OF| ||THE DISTRICT COURT, THIRUVANANTHAPURAM| |Exhibit R1(C)|TRUE COPY OF THE AFFIDAVIT FILED BY THE WILDLIFE| ||WARDEN, SILENT VALLEY DIVISION, MANNARKKAD,M| ||PALAKKAD ON BEHALF OF THE RESPONDENTS DATED| ||OCTOBER, 2017| |Exhibit R1(D)|TRUE COPY OF THE COMMUNICATION DATED 11/08/2008| ||FROM WILDLIFE WARDEN, MANNARKKAD TO K.M. ASHRAF| ||ALI| |Exhibit R1(E)|TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT| ||COLLECTOR, PALGHAT DATED 09/10/1970| |Exhibit R1(F)|TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT| ||COLLECTOR, PALAKKAD DATED 02/04/1965| |Exhibit R1(G)|TRUE COPY OF THE PROCEEDING OF THE DISTRICT| ||COLLECTOR DATED 19/08/1996| |Exhibit R1(H)|TRUE COPY OF THE POSSESSION AND ATTACHMENT| ||CERTIFICATE DATED 08/10/1970 ISSUED TO JANAKI| ||AMMAL| |Exhibit R1(I)|TRUE COPY OF THE PROCEEDINGS OF THE ASSISTANT| ||DEVELOPMENT OFFICER, REGIONAL RUBBER BOARD,| ||CALICUT DATED 21/09/1968 ALONG WITH ENCLOSURES|