R.N.KRISHNARAJ v. STATE OF KERALA and OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **WEDNESDAY, THE 17[TH] DAY OF NOVEMBER 2021 / 26TH KARTHIKA,** ## **1943** **OP(FT) NO. 2 OF 2021** **AGAINST THE ORDER DATED 04.01.2021 IN I.A.NO.316 OF 2020 IN O.A.NO.27 OF 2015 OF THE FOREST TRIBUNAL, KOZHIKODE PETITIONER:** - **R.N.KRISHNARAJ, AGED 70 YEARS S/O. LATE R. NARAYANASWAMY GOWDER, NO. 11/461 (NEW 41/868) GOWDER BUILDINGS, GOWDER MANDIR POST BOX NO. 16, HARIKKARA STREET, PALAKKAD 678 001 REPRESENTED BY POWER OF ATTORNEY HOLDER SRI. M MUHAMMED RAFI, AGED 50 YEARS, S/O. LATE P.M. MUHAMMED HANEEFA RAWTHAR, 9/71, G.V.C. ROAD, PARAKKUNNAM, PALAKKAD 678 001. BY ADV K.P.BALAGOPAL** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST AND WILDLIFE), SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 THE CONSERVATOR OF VESTED FORESTS AND CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD 678 002.** - **3 K.A. PRABHAKARAN, S/O. LATE APPUCHAMY, MANIKUTTY HOUSE, KALLEKKAD, PIRAYIRI, PALAKKAD 678012.** - **4 K.A. CHANDRASEKHARAN, S/O. LATE APPUCHAMY, MANIKKUTTY HOUSE, KALLEKKAD, PIRAYIRI, PALAKKAD 678 012.** - **5 K.A. KOMALAVALLY, D/O. LATE APPUCHAMY, MANIKKUTY HOUSE, KALLEKKAD, PIRAYIRI, PALAKKAD 678 012. BY ADV SRI.G.S.REGHUNATH SRI NAGARAJ NARAYANAN - SPL GP (FORESTS)** **THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(FT)No.2 of 2021 2 ## **JUDGMENT** ## **Anil K. Narendran, J.** The petitioner is the applicant in O.A.No.27 of 2015 on the file of the Forest Tribunal, Kozhikode, an application filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, for a declaration that two items of properties comprised in Sy.Nos.4/25 and 4/24 of Pirayiri Village in Palakkad Taluk (Re.Sy.Nos.358/5 and 358/10 part) having an extent of 2.5 Acres and 1 Acre, respectively, are not private forest, as defined under the said Act. The petitioner has also sought for an alternative relief that he is entitled to the benefit under Sections 3(2) and 3(3) of the said Act. In this original petition filed under Article 227 of the Constitution of India, the petitioner is challenging Ext.P4 order dated 04.01.2021 of the Forest Tribunal, Kozhikode, whereby I.A.No.316 of 2020 in O.A.No.27 of 2015 filed by the petitioner to remit the report of the Advocate Commissioner to identify the property in O.A.Nos.540 of 1976 and 10 of 1996, on the basis of old survey number stands rejected, for the reason stated therein. O.P.(FT)No.2 of 2021 3 2. On 01.02.2021, when this original petition came up for admission, it was submitted by the learned counsel for the petitioner that, before the Tribunal, the matter is posted to 02.02.2021 for trial. Having regard to the nature of the contentions raised, this Court directed the Forest Tribunal to defer trial of the matter for a period of one month. On 23.02.2021, the learned Government Pleader took notice for respondents 1 and 2. Urgent notice on admission by speed post was ordered to respondents 3 to 5. The interim order granted on 01.02.2021 was extended for a further period of one month. The said interim order, which was extended from time to time, is still in force. 3. A counter affidavit has been filed by respondents 3 to 5, opposing the relief sought for in this original petition. 4. Heard the learned counsel for the petitioner, the learned Special Government Pleader for respondents 1 and 2 and also the learned counsel for respondents 3 to 5. 5. The issue that arises for consideration in this original petition is as to whether any interference is warranted on Ext.P4 order dated 04.01.2021 of the Forest Tribunal, O.P.(FT)No.2 of 2021 4 Kozhikode, in I.A.No.316 of 2020 in O.A.No.27 of 2015, whereby the application made by the petitioner to remit the report of the Advocate Commissioner to identify the property in O.A.Nos.540 of 1976 and 10 of 1996 on the basis of old survey number stands rejected, for the reasons stated therein. 6. The learned counsel for the petitioner would contend that the Tribunal passed the impugned order without properly appreciating the case of the petitioner that for a proper disposal of the matter it is highly essential that the identification of the property has to be made on the basis of the old survey number. 7. Per contra, the learned counsel for respondents 3 to 5 would submit that the reasoning of the Tribunal in the impugned order is neither perverse nor patently illegal, warranting interference under Article 227 of the Constitution of India. 8. I.A.No.316 of 2020 is one filed by the petitioner seeking an order to remit the report of the Advocate Commissioner in order to identify the property in O.A.Nos.540 of 1976 and 10 of 1996 on the basis of old survey number. In O.P.(FT)No.2 of 2021 5 the impugned order, the Tribunal noticed that, in the first report filed by the Advocate Commissioner, P.V. Beena, on 21.11.2016, it is stated that the OA schedule property has already been restored to the legal heirs of Appuchami, the predecessor in interest of the applicant. Again, another Commission application was filed as I.A.No.68 of 2019, stating that the earlier application filed by the petitioner to remit the report filed by the Advocate Commissioner on 21.11.2016 was closed when the OA was dismissed. Adv.Shahanas was appointed as the Advocate Commissioner in I.A.No.68 of 2019, who inspected the property and submitted report. In that report also, it was specifically stated that the property claimed by the petitioner has already been restored to his predecessor in interest, in the earlier OA. It was thereafter, that the petitioner filed the present interlocutory application, I.A.No.316 of 2020, seeking an order to remit the report of the Advocate Commissioner to identify the properties in the earlier Oas, on the basis of old survey number. 9. In the impugned order dated 04.01.2021, the Tribunal noticed that, the property claimed by the petitioner O.P.(FT)No.2 of 2021 6 has already been restored by the Forest Department. In the report of Adv.P.V. Beena and that of Adv.Shahanas, the properties were identified on the basis of the documents produced by both sides and also the documents pertaining to restoration of the property in the earlier OAs. The assistance of Taluk Surveyor was also availed by the Advocate Commissioner. When both the reports are concurrent with respect to the fact that the property in the present OA has already been restored, the Tribunal found no valid grounds for directing the Commissioner to measure the properties in the earlier OAs again on the basis of old survey number. It was in such circumstances, the Tribunal by impugned order dismissed I.A.No.316 of 2020. In the said order, the Tribunal found that the petitioner has not made out sufficient grounds to remit the report of the Advocate Commissioner, at this stage. The Tribunal observed that, if during the evidence stage, any such need is necessary for the effective disposal of the case, the Tribunal is not powerless to get such a report. Therefore, the right of the petitioner is safeguarded in the impugned order of the Tribunal. O.P.(FT)No.2 of 2021 7 10. 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 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. 11. 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 O.P.(FT)No.2 of 2021 8 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 confidence in the functioning of the tribunals and courts subordinate to the High Court. 12. 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 O.P.(FT)No.2 of 2021 9 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 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. 13. 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 O.P.(FT)No.2 of 2021 10 manifest failure of justice or the basic principles of 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. 14. 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 with settled principles of law. O.P.(FT)No.2 of 2021 11 15. 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 failure of justice or the basic principles of natural justice have been flouted. 16. Viewed in the light of the law laid down in the O.P.(FT)No.2 of 2021 12 decisions referred to surpa, conclusion is irresistible that no interference is warranted on Ext.P4 order dated 04.01.2021 of the Forest Tribunal in I.A.No.316 of 2020 in O.A.No.27 of 2015, since it cannot be said that while issuing such an order, the Tribunal has committed manifest error or that the reasoning of the Tribunal is palpably perverse or patently unreasonable. Therefore, we find no reason to interfere with the impugned order of the Tribunal dated 04.01.2021 in I.A.No.316 of 2020 in O.A.No.27 of 2015. 17. This original petition fails and the same is accordingly dismissed. Since the original application is of the year 2015, the Forest Tribunal, Kozhikode, shall dispose of O.A.No.27 of 2015, as expeditiously as possible, at any rate, within a period of five months from the date of production of the certified copy of this judgment. Sd/- **ANIL K. NARENDRAN JUDGE** Sd/- **P.G. AJITHKUMAR JUDGE** **yd** O.P.(FT)No.2 of 2021 13 ## **APPENDIX** ## **PETITIONER EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE COMMISSION REPROT FILED BY HE ADVOCATE P.V. BEENA DATED 21/11/2016. EXHIBIT P2 TRUE COPY OF THE COMMISSION REPROT ALONG WITH PLAN FILED BY ADV. SHAHANAS ON 23/11/2019. EXHIBIT P3 TRUE COPY OF THE PETITION IN I.A. NO. 316/2020 IN O.A. NO. 27/2015 DATED 23/11/2020 FILED BY THE PETITIONER BEFORE THE FOREST TRIBUNAL, KOZHIKODE. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 4/1/2021 IN I.A. NO. 316/2020 IN O.A. NO. 27/2015 OF THE FOREST TRIBUNAL, KOZHIKODE.** **RESPONDENTS 3 TO 5 EXHIBITS:** **EXHIBIT R3(A) TRUE COPY OF THE ORDER IN O.A.NO.540/1976 DATED 04.11.1989 OF THE FOREST TRIBUNAL, PALGHAT. EXHIBIT R3(B) TRUE COPY OF THE JUDGMENT IN M.F.ANO.713 OF 1989 PASSED BY THIS HON'BLE COURT DATED 24.11.1989. EXHIBIT R3(C) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED TO RESPONDENTS 3 TO 5 BY THE DIVISIONAL FOREST OFFICER, PALAKKAD DATED 07.01.2011. EXHIBIT R3(D) TRUE COPY OF THE RECEIPT GIVEN BY RESPONDENTS 3 TO 5 TO DIVISIONAL FOREST OFFICER, PALAKKAD DATED 07.01.2011. EXHIBIT R3(E) TRUE COPY OF THE JUDGMENT AND DECREE IN O.S.NO.581/2007 DATED 11.04.2008 OF THE COURT OF THE MUNSIFF (PRINCIPLA), PALAKKAD. EXHIBIT R3(F) TRUE COPY OF THE EXCHANGE DEED DATED 28.01.2013 ENTERED INTO BETWEEN THE LEGAL HEIRS OF SAITHU MOHAMMED RAWTHER** 14 ## O.P.(FT)No.2 of 2021 ## **AND THESE RESPONDENTS.** **EXHIBIT R3(G) TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY DFO, PALAKKAD DATED 03.03.2015.** **EXHIBIT R3(H)** **TRUE COPY OF THE THANDAPPER ACCOUNT (NUMBER 10882) IN THE NAME OF PARTY NO.1 ISSUED FORM VILLAGE OFFICE, PIRAYIRI.** **EXHIBIT R3(I) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 13.06.2016 ISSUED FROM VILLAGE OFFICE, PIRAYIRI.** **EXHIBIT R3(J)** **EXHIBIT R3(K) EXHIBIT R3(L)** **EXHIBIT R3(M)** **TRUE COPY OF THE SKETCH PREPARED BY DIVISION SURVEYOR.** **TRUE COPY OF THE SKETCH.** **TRUE COPY OF THE TAX RECEIPT IN THE NAME OF THE WIFE OF SAITHU MOHAMMED RAWTHER ISSUED FROM VILLAGE OFFICE, PIRAYIRI DATED 09.06.2016.** **TRUE COPY OF THE OA NO.27/2015 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE (CAMP), PALAKKAD DATED 20.08.2015.**