P. Kunja and Dilipkumar K.V. v. State of Kerala and The Custodian of Vested Forests

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE ANIL K. NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE G. GIRISH ``` ``` FRIDAY, THE 22[ND] DAY OF MARCH 2024 / 2ND CHAITHRA, 1946 ``` **==> picture [138 x 11] intentionally omitted <==** ``` AGAINST THE ORDER DATED 09.01.2024 IN IA 188/2023 IN OA NO.44 OF 2018 OF FOREST TRIBUNAL, KOZHIKODE ``` ## **`PETITIONERS/APPLICANTS 1 & 3/APPLICANTS 1 & 3:`** ``` 1P. KUNJA AGED 75 YEARS W/O. LATE VELLA, WARD NO. 1/404, NHARAKODE HOUSE, KUMMANKODE, NOCHUPPULLY POST, PALAKKAD DISTRICT, PIN - 678592 ``` ``` 2DINESH KUMAR K.V AGED 36 YEARS S/O. LATE VELLA, WARD NO. 1/404, NHARAKODE HOUSE, KUMMANKODE, NOCHUPPULLY POST, PALAKKAD DISTRICT, PIN - 678592 ``` ``` BY ADV K.P.BALAGOPAL ``` ## **`RESPONDENTS/RESPONDENTS/RESPONDENTS/APPLICANT NO.2:`** ``` 1STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001 ``` ``` 2THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD, PIN - 678002 ``` 2 O.P.(FT) No.2 of 2024 ``` DILIPKUMAR K.V., 3 AGED 44 YEARS, S/O. LATE VELLA, WARD NO. 1/404, NHARAKODE HOUSE, KUMMANKODE, NOCHUPPULLY POST, PALAKKAD DISTRICT, PIN - 678592 ``` ``` SRI NAGARAJ NARAYAN - SPL GOVERNMENT PLEADER (FOREST) ``` ``` THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 O.P.(FT) No.2 of 2024 ## **J U D G M E N T** ## G. Girish, J. Applicants 1 and 3 in O.A.No.44 of 2018 of the files of the Forest Tribunal, Kozhikode has filed this petition under Article 227 of the Constitution of India challenging Ext.P8 order passed by the said Tribunal refusing to remit back the commission report prepared in that case. 2. The Original Application before the Forest Tribunal is one filed under Section 8(1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 seeking a declaration that the property scheduled thereunder is not a private forest vested with the Government. An Advocate Commissioner deputed from the Tribunal had conducted local investigation and filed Ext.P3 report and sketch dated 01.06.2020. On 15.11.2023, the petitioners filed Ext.P5 I.A to remit back the above commission report and plan and to call for fresh report and plan. The Forest Tribunal dismissed the above I.A., as per Ext.P8 order dated 09.01.2024. It is the said order of the Forest Tribunal, which is under challenge in this petition. 3. Heard the learned counsel for the petitioner and the learned Special Government Pleader representing the respondents. 4. The impugned order declining the request of the petitioner to remit back the commission report, has been passed by the Forest Tribunal on the basis of the observation that the attempt of the petitioner is to protract the matter indefinitely, without taking appropriate steps in time. It is also observed in the impugned order that though so many facts are 4 ## O.P.(FT) No.2 of 2024 stated in the application for not filing the I.A. for remitting back the commission report, there was no evidence on record to substantiate those contentions apart from the affidavit filed along with the interlocutory application. There is also a superficial remark in the impugned order that the reasons stated in the interlocutory application to remit the commission report and sketch, were having no foundation. 5. It is true that the petitioner has made the request for remitting back the commission report for a further enquiry, after a period of about three years from the date of filing of the said commission report before the Tribunal. However, the impugned order of the Forest Tribunal does not reveal that the said Tribunal had fixed any time for filing objections to the commission report, or that the petitioners failed to take pre-trial steps during the time when the case was having a specific posting for the same. 6. Ext.P5 application filed by the petitioners would reveal that the commission report and plan were challenged by the petitioners stating the reason that the Commissioner has not identified the property scheduled in the Original Application. It is also alleged that the Commissioner has neglected to report on aspects, which were very crucial to the foundation of the case. A detailed objection to the commission report and plan is also seen filed by the petitioners. The impugned order of the Forest Tribunal does not contain any indication about the above objections or the reasons why those objections were found to be untenable. On the other hand, the Forest Tribunal is seen to have brushed aside all those challenges raised by the petitioners by an omnibus remark 5 O.P.(FT) No.2 of 2024 that the reasons stated in the interlocutory application to remit the commission report and sketch, are having no foundation. 7. When a party to the proceedings challenges the commission report and plan, it is incumbent upon the Court or Tribunal concerned to afford an opportunity to him to adduce evidence in an enquiry to be conducted on the acceptability of the commission report and plan. The Advocate Commissioner who prepared the report, and the Surveyor who prepared the plan might be required to be examined in respect of the findings and indications in the commission report and plan, for ascertaining whether there are sufficient reasons for directing a further enquiry in that matter as provided under Order XXVI Rule 10 Sub-Rule (3) of the Code of Civil Procedure. As far as the present case is concerned, the impugned order of the Forest Tribunal does not reveal whether there was any occasion for the said Tribunal to have the Advocate Commissioner examined, touching any of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation, in accordance with the provisions contained in Order XXVI Rule 10 Sub-Rule(2) of the Code of Civil Procedure. Having regard to the nature of the challenge raised by the petitioners against the commission report and plan, the examination of the Advocate Commissioner, and if necessary, the Surveyor who prepared the plan, is inevitable for arriving at a correct decision on the request of the petitioners to remit back the commission report and plan. 6 O.P.(FT) No.2 of 2024 8. It has been held by a Division Bench of this Court in **Laly Joseph @ Laly Sebastian v. K. U. Francis [2023 (3) KHC 678]** , after articulating the law on the point on the basis of various decisions of this Court, that if there are cogent reasons, there is absolutely no legal embargo in appointing a fresh commission even without setting aside the earlier commission report. Paragraph No.10 of the aforesaid order reads as follows: “10. The present dilemma has arisen in the matters relating to the appointment of the Commissioner for local investigation. It is true that there is no specific mention about setting aside the report under Order XXVI Rule 10(3) of the Code, as it only refers to conduct further 'enquiry'. There is no embargo, according to us, for setting aside a commission report if the Court is totally dissatisfied with the commission report. It is also open for the Court to remit the commission report for further inquiry, so also to appoint a fresh commission without setting aside the earlier commission report. The Court can very well appreciate both reports and decide accordingly at the time of the trial. We find a similar view has been taken by the learned Single Judge in _K.L.D. & M.M. Board Ltd. v. Achuthan_ , 2001 (2) KLT 440 and _Joy Cherian v. George Cherian_ , 2009 (2) KHC 969. The power given to the Court to 'conduct further enquiry' on being 'dissatisfied' with the report can be exercised in such manner as the Court may choose to do so for any cogent reasons.” 9. As far as the present case is concerned, it has to be looked into whether the additional matters sought to be ascertained by the petitioners by a remittal of the commission report are relevant in the backdrop of the objection that the Advocate Commissioner failed to identify the property scheduled in the Original Application. So also, the 7 ## O.P.(FT) No.2 of 2024 Tribunal has to ascertain whether the matters sought to be enquired into by the Commissioner are already there in the Commission Report forming part of the records. If the Tribunal arrives at an affirmative finding with regard to the relevancy of the additional matters sought to be ascertained, and a finding of ‘no’, on the question as to the availability of those matters in the Commission Report which is already there, then there would be no justification in declining the request of the petitioners to remit back the commission report and plan. The impugned order is seen passed by the Forest Tribunal without adverting to the above vital aspects which are relevant in arriving at a correct decision on this matter. 10. When viewed in the above perspective, the dismissal of the application filed by the petitioners for the remittal of the commission report, stating the reason that the above application is intended to protract the matter indefinitely, cannot be justified. At the same time, if the commission report and plan, which are on record, already contain the particulars which the petitioner seek to ascertain and report, then the Tribunal need not allow the application since the Advocate Commissioner cannot be directed to conduct a further enquiry on the same aspects, which he had already reported, unless the Tribunal is dissatisfied with the earlier report of the Advocate Commissioner. As far as the present case is concerned, the impugned order does not contain any indication that the particulars which the petitioners seek to ascertain through a further enquiry by the Commissioner, are already there in the commission report forming part of the record, or that there is no reason to be dissatisfied 8 ## O.P.(FT) No.2 of 2024 with the findings of the Advocate Commissioner in the above report and plan. In the above circumstances, the Tribunal is bound to permit the petitioners to adduce evidence in Ext.P5 application (I.A.No.188 of 2023) in support of their contention that a further enquiry by the Advocate Commissioner is necessitated in the facts and circumstances of the case. If upon an evaluation of the above evidence adduced by the petitioner, the Tribunal is satisfied that a further enquiry by the Advocate Commissioner and a report in respect of the matters sought to be ascertained by the petitioners, are necessary, the Tribunal has to pass orders accordingly. As a conclusion to the above discussion, we deem it appropriate to dispose of this Original Petition as follows : - (i) The order dated 09.01.2024 passed by the Forest Tribunal, Kozhikode in I.A.No.188 of 2023, is hereby set aside. - (ii) The Tribunal is directed to afford opportunity to the petitioners to adduce evidence in I.A.No.188 of 2023, including the examination of Advocate Commissioner and Surveyor, if deemed necessary, as to the need to have a further enquiry through the Advocate Commissioner, in the light of the objections raised by the petitioners. - (iii) If the Tribunal, after an evaluation of the above evidence, finds that a further enquiry by the Advocate Commissioner, and a report, as to the additional matters sought to be ascertained through him, are necessitated for the just disposal of the case, appropriate orders shall be passed in that regard. - (iv) It is made clear that we have not expressed any opinion, as to the merits of the contentions put forward by the 9 O.P.(FT) No.2 of 2024 petitioners in I.A.No.188 of 2023 to remit back the commission report. **Sd/-** **Sd/G. GIRISH, JUDGE** vgd 10 O.P.(FT) No.2 of 2024 ``` APPENDIX OF OP(FT) 2/2024 ``` ## **`PETITIONERS’ EXHIBITS`** - **`EXHIBIT P1 TRUE COPY OF THE O.A. NO. 44/2018 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE`** - **`EXHIBIT P2 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST AND 2ND RESPONDENTS IN ORIGINAL APPLICATION NO. 44/2018 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE`** - **`EXHIBIT P3 TRUE COPY OF THE COMMISSIONER'S REPORT WITH SURVEY PLAN DATED 1.6.2020 IN O.A. NO. 44/2018`** - **`EXHIBIT P4 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS 1 AND 2 TO THE ADVOCATE COMMISSIONER'S REPORT`** - **`EXHIBIT P5 TRUE COPY OF THE I.A. NO. 188/2023 IN O.A. NO. 44/2018, FILED BY THE PETITIONERS UNDER ORDER XXVI RULE 10 OF THE CODE OF CIVIL PROCEDURE, BEFORE THE FOREST TRIBUNAL, KOZHIKODE ON 15.11.2023 TO REMIT THE ADVOCATE COMMISSIONER'S REPORT AND SURVEY PLAN AND TO CALL FRESH REPORT AND PLAN`** - **`EXHIBIT P6 TRUE COPY OF OBJECTIONS TO THE ADVOCATE COMMISSIONER'S REPORT FILED BY THE APPLICANTS IN O.A. NO. 44/2018 ON 15.11.2023`** - **`EXHIBIT P7 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE 1ST AND 2ND RESPONDENTS HEREIN IN I.A. NO. 188/2023 IN O.A. NO. 44/2018 BEFORE THE FOREST TRIBUNAL, KOZHIKODE`** - **`EXHIBIT P8 TRUE COPY OF THE ORDER DATED 9.1.2024 IN I.A. NO. 188/2023 IN O.A. NO. 44/2018 OF THE FOREST TRIBUNAL KOZHIKODE`**