Sree Devi v. State of Kerala and 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 ``` ``` OP(FT) NO.5OF 2024 ``` ``` AGAINST THE ORDER DATED 09.01.2024 IN I.A.NO.184 OF 2023 IN OA NO.37 OF 2019 OF FOREST TRIBUNAL, KOZHIKODE ``` ``` PETITIONER/PETITIONER IN I.A.NO.184 OF 2023/PETITIONER IN ``` ``` I.A.NO.185OF 2023/APPLICANT IN O.A.NO.37 OF 2019: ``` ``` SREEDEVI, AGED 74 YEARS, D/O VELAYUDHAN, MUTTIYAMKAD VEED, KANHIKULAM POST, KALLADIKODE, PALAKKAD, PIN – 678596 ``` ``` BY ADVS. SARATH M.S. B.PREMNATH (E) ``` ## **`RESPONDENTS/RESPONDENTS IN I.A.NO.184 OF 2023/RESPONDENTS IN`** ``` I.A.NO.185OF 2023/RESPONDENTS IN O.A.NO.37 OF 2019: ``` - **`1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY (FOREST & WILDLIFE), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM – 695001`** ``` 2THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD, PIN - 678002 SRI NAGARAJ NARAYAN - SPL GOVERNMENT PLEADER (FORESTS ) ``` ``` THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON 22.03.2024 DELIVERED THE FOLLOWING: ``` 2 O.P.(FT) No.5 of 2024 **CR** ## **J U D G M E N T** ## G. Girish, J. The applicant in O.A.No.37 of 2019 of the files of the Forest Tribunal, Kozhikode has filed this petition under Article 227 of the Constitution of India challenging Ext.P7 order passed by the said Tribunal refusing to re-open evidence and 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, or in the alternative, a declaration that the said property is eligible for exemption under Section 3(2) of the aforesaid Act. An Advocate Commissioner deputed from the Tribunal had conducted local investigation and filed a report and sketch. During the course of trial, after the examination of the applicant, the Advocate Commissioner, and witness for respondent, an amendment application was filed for incorporating the old survey numbers 230/4 and 230/5 in the property schedule. The above amendment application was allowed by the Forest Tribunal at a stage when the evidence in the case was closed. The respondents filed additional counter statement along with a survey sketch of the property 3 O.P.(FT) No.5 of 2024 comprised in Survey No.230. In the above circumstances, the applicant filed I.A.No.184 of 2023 for re-opening the evidence, and I.A.No.185 of 2023 to remit back the commission report for the purpose of ascertaining and reporting the land comprised in the aforesaid survey numbers, on the basis of the forest sketch and Field Measurement Book produced by the respondents. Aggrieved by the dismissal of the above applications, the petitioner is here before this Court with 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 re-open the evidence and 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, and that on several earlier occasions the evidence was re-opened at the request of the petitioner. There is no other reasoning in the impugned order for rejecting the request of the petitioner in this regard. 5. It is true that the petitioner has made the request for reopening evidence and to remit back the commission report for a further enquiry in respect of the land comprised in the survey numbers incorporated in the schedule by way of amendment, at the 4 O.P.(FT) No.5 of 2024 fag end of the trial. It is also true that the respondents filed additional counter statement along with a sketch in view of the amendment made by the petitioner to the schedule of property forming part of the Original Application after the closure of the evidence. But once the amendment has been allowed and certain new particulars have been incorporated into the schedule of properties, the Tribunal cannot shut the doors against the petitioner, and say the reason that it is intended to protract the matter indefinitely, when a request is made to re-open the evidence to bring in additional particulars related to the new aspects incorporated by way of amendment. Of course, it is true that as per Order XXVI Rule 10(3) of the Code of Civil Procedure, 1908, the Tribunal is expected to remit back the commission report and order further enquiry, if only it is dissatisfied with the proceedings of the Commissioner. However, when a party requests for further enquiry on the basis of the new aspects brought out in the pleadings by way of amendment, and seeks to have a commission report on the matters related to such new aspects which are relevant for the just disposal of the case, the court is expected to allow such application even though the commission report which is already on record does not contain anything objectionable for the court to be dissatisfied. 5 O.P.(FT) No.5 of 2024 6. 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 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 R.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.” 7. As far as the present case is concerned, it has to be looked into whether the additional matters sought to be ascertained 6 O.P.(FT) No.5 of 2024 by the petitioner by a remittal of the commission report are relevant in the backdrop of the recent amendments made in the Original Application. So also, the 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 denying an opportunity to the petitioner to have the additional matters enquired into and reported by an Advocate Commissioner. 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. 8. When viewed in the above perspective, the dismissal of the applications filed by the petitioner for re-opening the evidence and for remittal of the commissioner report, stating the reason that the above applications are 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 7 O.P.(FT) No.5 of 2024 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 petitioner seeks to ascertain through a further enquiry by the Commissioner, are already there in the commission report forming part of the record, and hence, there is no scope for a further enquiry. In the above circumstances, the Tribunal is bound to re-open evidence and to permit the petitioner to adduce evidence in I.A.No.185 of 2023 in support of his contention that a further enquiry by the Advocate Commissioner is necessitated in view of the new aspects incorporated by way of amendment, after the closure of evidence on the first spell. 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 petitioner, 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 : 8 O.P.(FT) No.5 of 2024 - (i) The order dated 09.01.2024 passed by the Forest Tribunal, Kozhikode in I.A.No.184 of 2023 and I.A.No.185 of 2023 in O.A.No.37 of 2019, is hereby set aside. - (ii) The Tribunal is directed to re-open the evidence and afford opportunity to the petitioner to adduce evidence in I.A.No.185 of 2023, including the examination of Advocate Commissioner, if deemed necessary, as to the need to have a further enquiry through the Advocate Commissioner, in respect of the matters incorporated through the recent amendment of the original application. - (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 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 petitioner in I.A.No.185 of 2023 to remit back the commission report. **Sd/-** **Sd/-** **G. GIRISH, JUDGE** jsr/vgd 9 O.P.(FT) No.5 of 2024 ``` APPENDIX OF OP(FT)5/2024 ``` ## **`PETITIONER’S EXHIBITS`** ``` EXHIBIT P1TRUE COPY OF THE O.A. NO.37/2019 FILED BY THE PETITIONER DATED 10.7.2019 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE ``` ``` EXHIBIT P2TRUE COPY OF THE COUNTER STATEMENT IN O.A. NO.37/2019 DATED 19.8.2020 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE ``` ``` EXHIBIT P3TRUE COPY OF THE I.A. NO.184/2023 IN O.A. NO.37/2019 DATED 6.11.2023 FILED BY THE PETITIONER ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE ``` ``` EXHIBIT P4TRUE COPY OF THE I.A. NO.185/2023 IN O.A. NO.37/2019 DATED 6.11.2023 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE FILED BY THE PETITIONER ``` ``` EXHIBIT P5TRUE COPY OF THE COUNTER OF THE RESPONDENTS IN I.A. NO.184/2023 IN O.A. NO.37/2019 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE DATED 10.11.2023 ``` ``` EXHIBIT P6TRUE COPY OF THE COUNTER OF THE RESPONDENTS IN I.A. NO.185/2023 IN O.A. NO.37/2019 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE DATED 13.11.2023 ``` ``` EXHIBIT P7CERTIFIED COPY OF THE ORDER DATED 9.1.2024 IN I.A. NO.184/2023 AND I.A. NO.185/2023 IN O.A. NO.37/2019 OF THE FOREST TRIBUNAL, KOZHIKODE ``` ``` EXHIBIT P8TRUE COPY OF THE ADDITIONAL COUNTER IN O.A. NO.37/2019 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE DATED 19.8.2023 ``` ``` EXHIBIT P9TRUE COPY OF THE COMMISSION REPORT OF THE ADVOCATE COMMISSIONER SUBMITTED IN O.A. NO.37/2019 ON THE FILE OF FOREST TRIBUNAL, KOZHIKODE DATED 16.9.2020 ```