Kerala High Court
P.Balasubramaniam vs The State Of Kerala
Author: C.T.Ravikumar
Bench: Thottathil B.Radhakrishnan, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
FRIDAY, THE 2ND DAY OF MARCH 2012/12TH PHALGUNA 1933
WP(C).No. 17793 of 2008 (R)
-----------------------------------
OA.56/1977 of FOREST TRIBUNAL, PALAKKAD
............
PETITIONER(S):
-------------------
P.BALASUBRAMANIAM,
S/O.P.K.PARASURAMA IYER, RESIDING AT, 9/2
M.I.G.FLAT, MAHALAKSHMI COLONY, 11TH AVENUE
ASHOK NAGAR, CHENNAI-600 083.
BY ADVS.SRI.T.C.SURESH MENON
SRI.JIBU P THOMAS
SRI.P.S.APPU
RESPONDENT(S):
---------------------
1. THE STATE OF KERALA, REPRESENTED BY
THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT
THIRUVANANTHAPURAM.
2. THE CUSTODIAN-EX-OFFICIO SPECIAL
SECRETARY, AGRICULTURE (FOREST SPECIAL, DEPARTMENT)
THIRUVANANTHAPURAM.
3. THE DEVISIONAL FOREST OFFICER,
NEMMARA, PALAKKAD DISTRICT.
R1 & R2 BY GOVT. PLEADER SRI. M.P. MADHAVAN KUTTY
R3 BY SRI.M.P.PRAKASH,SPL.GP FOR FOREST
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02-03-2012, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
svs
W.P.(C). NO. 17793/2008
APPENDIX
PETITIONER'S EXHIBITS:
P1: COPY OF THE ORDER IN O.A. NO.56/77 ON THE FILE OF THE FOREST
TRIBUNAL, PALAKKAD DATED 24/07/80.
P2: COPY OF THE JUDGMENT IN M.F.A.621/80 ON THE FILE OF THIS
HONOURABLE COURT DATED 05/03/86.
P3: COPY OF THE JUDGMENT IN O.P.1912/92 ON THE FILE OF THIS
HONOURABLE COURT DATED 30/03/92.
P4: COPY OF THE JUDGMENT IN O.P.17121/94 OF THE FILE OF THIS
HONOURABLE COURT DATED 25/09/06.
P5: COPY OF THE APPLICATION PUT IN BY THE PETITIONER
DATED 31/01/2007.
P6: COPY OF THE COUNTER STATEMENT FILED BY THE RESPONDENTS
DATED JUNE, 2007.
P7: COPY OF THE ORDER IN I.A. 27/07 IN O.A.56/77 ON THE FILE OF
THE FOREST TRIBUNAL, KOZHIKODE DATED 30/01/2008.
RESPONDENT'S EXHIBITS: NIL
ANNEXURE R3(a):COPY OF NO.B2-721/92(1)K.DIS. DATED 27/01/1993.
ANNEXURE R3(b):COPY OF THE SURVEY SKETCHES OF FIELD
NO.301/2 & 305/2.
ANNEXURE R3(c):COPYOF THE SURVEY SKETCHES OF FIELD NO.301/14.
ANNEXURE R3(d):COPY OF NOTIFICATION NO.1383/77 DATED 10/10/1997
(VFC ITEM NO.192, PAGES 1, 46 & 47).
/TRUE COPY/
P.A. TO JUDGE.
svs
Thottathil B.Radhakrishnan
&
C.T.Ravikumar, JJ.
= = = = = = = = = = = = = = = = = = = = = = = = WP(C).No.17793 of 2008-R = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 2nd day of March, 2012 Judgment Thottathil B.Radhakrishnan, J.
1.The petitioner and others filed O.A.No.56 of 1977 before the Forest Tribunal, Palghat. That led to an order dated 24th July, 1980 which, in turn, was subjected to an appeal before this Court as M.F.A.No.621 of 1980. That was decided as per judgment dated 5th March, 1986 in favour of the applicants before the Tribunal. Obviously, they were entitled to restoration of possession.
2.Petitioners filed a couple of writ petitions before this Court to direct the Custodian to restore the lands to them. When the last among those matters came up as O.P.No.17121 of 1994, the State and the Conservator took the stand that WPC17793/08 -: 2 :- there is some ambiguity in the schedule to the petition which generated the proceedings before the Tribunal leading to unavoidable impossibility to comply with the directions to restore possession to the petitioners.
3.During the proceedings in O.P.No.17121 of 1994, the petitioner pointed out that there is an inadvertent mistake in the schedule to O.A.No.56 of 1977. The mistake was in survey numbers and not with reference, either to the description, or to the extent.
4.The learned single Judge was of the view that the apparent mistake has to be appropriately rectified by amending the schedule to the application before the Tribunal and until that is done, no effective orders could be passed in the matter of restoration of land. The petitioner was ordered to move the State and the Custodian after the needful is done before the Forest Tribunal. WPC17793/08 -: 3 :-
5.On the basis of the aforesaid judgment, the petitioner moved the Tribunal for amendment of the schedule to the Original Application whereby rectifying the defect. The Tribunal took the view that its order having merged with the appellate decision of this Court, it is not within jurisdiction of the Tribunal to carry out the so- called rectification. This is challenged by the petitioner by filing an original petition under Articles 226 and 227 of the Constitution.
6.When the writ petition in hand came up, the learned single Judge doubted as to whether the matter could be considered by a single Judge or whether that has to come to the Bench which hears the MFAs arising from the decisions of the Forest Tribunal. This is how the matter is now before the Division Bench.
WPC17793/08 -: 4 :-
7.Be it under Section 152 or under any other provision in the Code of Civil Procedure and even if the application is only for rectification of a clerical error which is apparent on the face of the record, the doctrine of merger which, by this time, stands well established, would advise that the rectification of the schedule to the proceedings which stands merged by the appellate decision of this Court in M.F.A.No.621 of 1980, could have been only from this Court, unless, of course, this Court in a request made in that appeal, directs the Forest Tribunal to consider any particular issue based on such an application.
For the aforesaid reasons, we affirm the order impugned, leaving it open to the petitioner to move this Court in M.F.A.No.621 of 1980 with appropriate application as may be permissible in law, including with any application for condonation of delay, if there is any such delay. WPC17793/08 -: 5 :- We clarify that we have not expressed anything on the merits of the matter, including on the sufficiency of any cause that may be shown for condonation of delay or for any application for correction, rectification, amendment etc. The writ petition ordered accordingly.
Sd/-
Thottathil B.Radhakrishnan, Judge.
Sd/-
C.T.Ravikumar, Judge.
Sha/070312