Ramathal v. State of Kerala and Custodian of Vested Forest

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 25[TH ] DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943 O.P(FT) NO.6 OF 2021** **AGAINST THE ORDER DATED 23.04.2021 IN I.A.No.63 OF 2021 IN O.A.No.6 OF 2017 OF THE FOREST TRIBUNAL, KOZHIKODE, PETITIONER/1st RESPONDENT:** ## **RAMATHAL** **AGED 75 YEARS W/O.LATE SHANMUGHAN @ SHANMUGHA KOUNDER, MUTHALATHARA, CHAVADIYOOR, PUDUR, ATTAPPADI, REPRESENTED BY POA HOLDER MUTHUKUMAR, AGED 53 YEARS, S/O.LATE SHANMUGHAN, MUTHALATHARA, CHAVADIYOOR, PUDUR, ATTPPADI, MANNARKKAD.** **BY ADVS. V.V.SURENDRAN P.A.HARISH DONA PAUL** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 2 AND 3:** **1 THAMANDAN S/O.REASAN, ELACHIVAZHI COLONY, CHAVIDIYOOR, AGALI, ATTAPPADI - 678 581.** - **2 STATE OF KERALA** **REPRESENTED BY PRINCIPAL SECRETARY, (FOREST AND WILD LIFE), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001.** - **3 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,** **2** **O.P.(FT) No.6 OF 2021** **PALAKKAD - 678 002.** **BY ADVS. SUNNY XAVIER C.P.PRETTY** **SRI.NAGARAJ NARAYANAN- SPL GP (FORESTS)** **THIS O.P (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 25.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **3** **O.P.(FT) No.6 OF 2021** ## **J U D G M E N T** ## Anil K.Narendran, J The petitioner, who claims absolute ownership, possession and enjoyment of 1.0690 hectores (2.64 acres) of land comprised in Survey No.1125/2 of Pudur Village in Mannarkad Taluk in Palakkad district, has filed this original petition under Article 227 of the Constitution of India seeking an order to set aside Ext.P5 order dated 23.04.2021 of the Forest Tribunal, Kozhikode in I.A.No.63 of 2021 in O.A.No.6 of 2017. That Interlocutory Application was one filed by the 1[st] respondent herein to get himself impleaded as an additional respondent in O.A.No.6 of 2017. The 1[st] respondent herein is the applicant in O.A.No.50 of 2018 pending before that Tribunal, in respect of 4.25 acres of land. The application schedule property in O.A.No. 6 of 2017 forms part of the aforesaid 4.25 acres of land. By Ext.P5 order dated 23.04.2021, the Tribunal allowed I.A.No.63 of 2021. Paragraph 5 of that order reads thus: “I find, in OA 06/2017 oral evidence was recorded and when the matter is posted for hearing, the present petition is filed. Under section 8 the Tribunal can only decide whether the **4** ## **O.P.(FT) No.6 OF 2021** property is vested forest or not or any part of the property is vested in Govt. or not. The rival clams between two private individuals cannot be considered by the Tribunal. But property in this case is also involved in another case. I find, in order to avoid complications in the decision, impleadment can be allowed. It is made clear that the rival claims by parties cannot be decided in this proceeding. Similarly, the parties can be directed to face joint trial of two cases in order to avoid any further complication. The point is answered accordingly. Feeling aggrieved by Ext.P5 order of the Forest Tribunal, the petitioner is before this Court in this original petition. 2. On 06.07.2021, when this original petition came up for admission, this Court issued urgent notice on admission by speed post to the 1[st] respondent, returnable within three weeks. The learned Government Pleader took notice for respondents 2 and 3. This Court passed an interim order to the effect that final disposal of O.A.No.6 of 2017 on the file of the Forest Tribunal, Kozhikode, shall be deferred for a period of one month. The said interim order, which was extended from time to time, is still in force. **5** ## **O.P.(FT) No.6 OF 2021** 3. Heard the learned counsel for the petitioner, the learned counsel for the 1[st] respondent and also the learned Government Pleader appearing for respondents 2 and 3. 4. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P5 order dated 23.04.2021 of the Forest Tribunal in I.A.No.63 of 2021 in O.A.No.6 of 2017, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 5. Article 227 of the Constitution of India deals with power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make **6** ## **O.P.(FT) No.6 OF 2021** and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 6. In **Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329]** the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public **7** ## **O.P.(FT) No.6 OF 2021** confidence in the functioning of the tribunals and courts subordinate to the High Court. 7. In **Jai Singh v. Municipal Corporation of Delhi** **[(2010) 9 SCC 385]** , while considering the nature and scope of the powers under Article 227 of the Constitution of India, the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasijudicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater the power, greater the care **8** ## **O.P.(FT) No.6 OF 2021** and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 8. In **K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39]** the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of **9** ## **O.P.(FT) No.6 OF 2021** natural justice have been flouted. On the facts of the said case, the Apex Court held that, when the Labour Court has exercised its discretion keeping in view the facts of the case and the cases of similarly situated workmen, the High Court ought not to have interfered with the exercise of discretion by the Labour Court. 9. In **Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1]** a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict **10** **O.P.(FT) No.6 OF 2021** with settled principles of law. 10. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest **11** ## **O.P.(FT) No.6 OF 2021** failure of justice or the basic principles of natural justice have been flouted. 11. The learned counsel for the petitioner, relying on Rule 4 of the Kerala Private Forests (Tribunal) Rules, 1972, which deals with the power of Tribunal to consolidate and separate application for settlement of dispute would contend that the impugned order of the Tribunal ordering impleadment of the rival claimant of the application schedule property cannot be sustained in law. 12. Per contra, the learned counsel for the 1[st] respondent would contend that, no prejudice would be caused to the petitioner by impleadment of the said respondent and hence no interference is warranted on the impugned order. As per sub-rule (1) of Rule 4, the Tribunal may consolidate applications for settlement of disputes in respect of the same private forest in order to hold a common inquiry or may separately consider the applications so consolidated. As per sub-rule (2) of Rule 4, the Tribunal may admit any evidence, **12** ## **O.P.(FT) No.6 OF 2021** oral or documentary, adduced or produced before it in a previous proceeding if the Tribunal considers that the matter in respect of which the evidence was adduced or produced and the matter under inquiry are similar and that such evidence is applicable in the matter under inquiry. As per the proviso to sub-rule (2), the applicant in respect of whose claim such previous evidence is admitted shall be entitled to get a copy of such evidence (where it is oral) or document, as if such evidence were evidence taken in respect of his own claim. 13. In view of the provisions under Rule 4, it is well within the powers of the Tribunal to consolidate applications for settlement of dispute in respect of the same private forest, in order to hold a common enquiry or the Tribunal may even separately consider the applications so consolidated. However, there is no provision in the Kerala Private Forests (Tribunal) Rules, which enables the Tribunal to permit impleadment of a rival claimant of the application schedule **13** ## **O.P.(FT) No.6 OF 2021** property in an O.A filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act. Therefore, the Forest Tribunal committed a manifest error in allowing the application for impleadment. 14. In such circumstances, Ext.P5 order dated 23.04.2021 of the Forest Tribunal, Kozhikode in I.A.No.63 of 2021 in O.A.No.6 of 2017, to the extent of ordering impleadment of the 1[st] respondent herein as a respondent in that O.A. is set aside. The Tribunal shall consolidate the application, i.e., O.A.No.6 of 2017 filed by the petitioner and O.A.No.50 of 2018 filed by the 1[st] respondent, and the question as to whether a common enquiry has to be held or the applications so consolidated have to be separately considered is left to the discretion of the Tribunal. This original petition is disposed of as above. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **P.G. AJITHKUMAR, JUDGE** PV **14** **O.P.(FT) No.6 OF 2021** ## **APPENDIX OF OP(FT) 6 OF 2021** ## **PETITIONER'S EXHIBITS** ## **Exhibit P1** **TRUE COPY OF THE ORIGINAL APPLICATION AS OA 6;/2016 FILED BY THE PETITIONER BEFORE THE FOREST TRIBUNAL, KOZHIKODE (CAMP AT PALAKKAD) DATED 21/04/2017.** **Exhibit P2** **TRUE COPY OF THE ORIGINAL APPLICATION AS O.A.50/2018 DATED 19/10/2018 BEFORE THE FOREST TRIBUNAL, KOZHIKODE (CAMP AT PALAKKAD).** ## **Exhibit P3** **TRUE COPY OF THE IMPLEADING PETITION AS I.A.63/2021 BEFORE THE FOREST TRIBUNAL, KOZHIKODE (CAMP AT PALAKKAD) FILED BY THE 1ST RESPONDENT DATED 19/01/2021.** ## **Exhibit P4** **TRUE COPY OF THE COUNTER FILED BY THE PETITIONER DATED 15/02/2021 BEFORE THE FOREST TRIBUNAL, KOZHIKODE (CAMP AT PALAKKAD).** **Exhibit P5** **TRUE COPY OF THE ORDER IN I.A.63/2021 IN O.A.6/2017 ON THE FILE OF THE FOREST TRIBUNAL, KOZHIKODE.**