Kerala High Court
State Of Kerala vs Baburaj on 3 September, 2021
Author: Anil K.Narendran
Bench: Anil K.Narendran, M.R.Anitha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
&
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
Friday, the 3rd day of September 2021 / 12th Bhadra, 1943
CM.APPL.NO.1/2019 IN MFA(FORESTS) NO. 150 OF 2019
OA 31/2008 OF THE COURT OF THE KERALA FOREST(VESTING & MANAGEMENT OF
ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD
PETITIONERS/APPELLANTS:
1. STATE OF KERALA - REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF
KERALA, THIRUVANANTHAPURAM .
2. THE CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) AND PRINCIPAL CHIEF
CONSERVATOR OF FORESTS (EXTW), STATE OF KERALA, THIRUVANANTHAPURAM.
RESPONDENTS/APPLICANTS/SUPPL.3RD RESPONDENT:
1. BABURAJ, S/O. VELAPPAN KUTTY KALATHIL VEEDU MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK - 678 731.
2. PRADEEP KUMAR, S/O. VELAPPAN KUTTY KALATHIL VEEDU MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK - 678 731.
3. AJITH MUAR, VELAPPANKUTTY KALATHILVEEDU MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK 678 731.
4. JAYADEVAN, S/O. MADHAVAN, KALATHIL VEEDU MUTTIKKULANGARA,
PAUDUPPARIYARAM AMSOM, PALAKKAD TALUK, PALAKKAD DISTRICT- PIN- 678
731.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 494 days in filing the above MFA.
This Application coming on for orders, upon perusing the application
and the affidavit filed in support thereof, and upon hearing the arguments
of SRI.NAGARAJ NARAYANAN, SPL. Government Pleader (FOREST) for the
applicants and of M/S.KALEESWARAM RAJ, VARUN C.VIJAY, A.ARUNA, THULASI K.
RAJ, MAITREYI SACHIDANANDA HEGDE, Advocates for R1 to R3
and U.BALAGANGADHARAN Advocate for the R4, the court passed the following:
P.T.O.
"CR"
ANIL K. NARENDRAN & M.R. ANITHA, JJ.
------------------------------
C.M.Appl.No.1 of 2019
in
M.F.A.(Forest)No.150 of 2019
-----------------------------------
Dated this the 3rd day of September, 2021
ORDER
Anil K.Narendran, J.
The State of Kerala and the Custodian of Ecologically Fragile Lands have filed this C.M.Application under Section 5 of the Limitation Act, 1963, seeking an order to condone the delay of 494 days in filing M.F.A.(Forest)No.150 of 2019, an appeal filed under Section 11 of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003, against the order dated 17.03.2018 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal, Palakkad, in O.A.No.31 of 2008. The respondents herein filed that original application, under Section 10(1)(a) and (b) of the said Act, to declare that the application schedule property having an extent of 4.01 Hectors, comprised in Sy.Nos.237/A, 230, 192/D, 192/D1 and 231 of Puduppariyaram Village, is not an ecologically fragile land.
2. This C.M.Application is supported by an affidavit sworn to by the 2nd appellant, the Custodian (Ecologically M.F.A.(Forest) No.150 of 2019 2 Fragile Lands), dated 23.09.2019. Along with I.A.No.3 of 2019, the appellants have produced Ext.B1 expert report on biodiversity and floristic exploration of the application schedule property in O.A.No.31 of 2008, which is under Olavakkode Range of Palakkad Forest Division. The said report is one submitted by the Post Graduate and Research Department of Botany, Government Victoria College, Palakkad. The 2nd appellant has also sworn to an additional affidavit dated 25.01.2020, in support of this CM Application.
3. In this C.M.Application, the appellants are seeking an order to condone the delay of 494 days in filing the appeal under Section 11 of the Act, against the order dated 17.03.2018 of the Tribunal in O.A.No.31 of 2008. In the affidavit filed in support of the C.M.Application it is stated that, application for certified copy of the order of the Tribunal dated 17.03.2018 was filed on 21.03.2018. Copy was ready on 18.04.2018 and the date notified for receipt of copy was 21.04.2018, which was received on 23.04.2018. Therefore, the appeal ought to have been filed before this Court on or before 16.06.2018. The Divisional Forest Officer, by letter dated 05.12.2018, requested the learned Advocate General to take appropriate action to file appeal against M.F.A.(Forest) No.150 of 2019 3 the order of the Tribunal. In the affidavit it is stated that the concerned officials discussed the matter in the 3 rd week of July, 2018. Several clarifications were sought in relation to the location and lie of the property and also its boundaries. The draft was finalised during the 1st week of July, 2019. The appeal was finalised on 19.07.2019 and it was ready by 20.07.2019. Thereafter, further time was taken for approval and necessary procedures in the office of the learned Advocate General. In the affidavit it is stated that loss of any portion of the property in question would result in fragmentation of the surrounding forest areas, causing grave degradation to the entire area.
4. In the additional affidavit sworn to in support of this C.M.Application, it is stated that, though a copy of the order dated 17.03.2018 of the Tribunal was delivered on 23.04.2018, due to heavy workload, the District Government Pleader (Forest) could not peruse the files immediately. Later, on discussions with the officers concerned and on perusal of the files, the District Government Pleader found that there is scope for appeal and he forwarded the files along with the legal opinion to the Divisional Forest Officer, Palakkad, as per letter dated 20.09.2018. Thereafter, on discussion with the officers concerned and on M.F.A.(Forest) No.150 of 2019 4 perusal of records, the Divisional Forest Officer, as per letter dated 05.12.2018, requested the office of the learned Advocate General to file appeal and the files were received in the office of the learned Advocate General on 26.12.2018. On 01.01.2019, the files were submitted before the Special Government Pleader (Forest) for examining the scope of appeal. Thereafter, the Special Government Pleader made certain queries regarding the lie and nature of the property. The Divisional Forest Officer deputed the Forest Range Officer for necessary assistance. After several discussions, it is decided to file an appeal and the files were entrusted to the Liaison Office (Forest Department) attached to the office of the learned Advocate General, for obtaining some more back-records. Thereafter, the records were obtained and submitted before the Special Government Pleader. Because of health reasons on account of cervical disc prolapse in the neck area, for which the Special Government Pleader was wearing cervical hard collar, he could not take up the files for further action, during March and April, 2019. The High Court was on vacation from 16.04.2019 to 19.05.2019, during which period the Special Government Pleader was undergoing traditional Ayurveda treatment for neck problem and he got better only by M.F.A.(Forest) No.150 of 2019 5 the last week of May, 2019. Further, the pendency of cases and the workload relating to the hearing matters contributed to the delay in finalising the initial draft. In the meantime, several clarifications were sought by the Special Government Pleader relating to the location and lie of the property and the boundaries and many rounds of discussions had undergone with the officers concerned, before the initial draft could be finalised. The draft of the appeal was prepared during the 1st week of July, 2019 and it was ready by 19.07.2019. Thereafter, the appeal was submitted before the learned Advocate General for approval. After obtaining approval, the files were forwarded to the concerned section for filing and the appeal was filed on 22.10.2019.
5. In the objection filed by the 1 st respondent dated 30.01.2020 it is contended that, the appellants have not offered reasonable explanation for the inordinate delay in filing the appeal. Though it is stated in the affidavit that the matter was taken up for discussion in the 3 rd week of July, 2018, that the draft could be finalised only on 19.07.2019 and that, several clarifications were sought in relation to the location, lie and boundaries of the property, no documents have been placed on record in support of such a claim. The 1 st respondent would point M.F.A.(Forest) No.150 of 2019 6 out that, as evident from Annexure A1 partition deed of the year 1970, the property in question is a cultivated land. O.A.Nos.1193 of 1974 and 1194 of 1974 filed by Late Madhavan and Late Karthiyayini, the predecessors-in-interest, before the Forest Tribunal, Palakkad, seeking exemption under the Kerala Private Forest (Vesting and Assignment) Act, 1971 were allowed, vide Annexure A6 common order dated 13.12.1977. M.F.A.No.217 of 1978 filed by the State against Annexure A6 common order ended in dismissal vide Annexure A7 judgment dated 28.06.1984. Till 2007, the restoration did not take place. In Annexure A9 letter dated 21.05.2007 of the Forest Conservator, Olavakkode, addressed to the father of the 1 st respondent, it is stated that the property would be restored as and when survey proceedings are completed. It is thereafter that a notification was issued in the year 2008, notifying the property as ecologically fragile land. By the impugned order, the Tribunal allowed O.A.No.31 of 2008, after noticing that the property in question was the subject matter of previous proceedings. It is only to delay the restoration process and to harass the respondents that multiple legal proceedings are being initiated against them, one after another. The respondents are put to great prejudice by the M.F.A.(Forest) No.150 of 2019 7 filing of the appeal with inordinate delay. In the affidavit filed in support of this C.M.Application no sufficient explanation is offered by the appellants and as such, the appeal is liable to be dismissed. In the additional objection filed by the 1 st respondent dated 08.02.2020 it is contended that, other than providing some more dates on which the files were transferred from one office to another, no other solid explanation was offered by the appellants as to how the delay of 494 days had occurred. A close reading of the affidavit makes it explicitly clear that the lethargy on the part of the authorities in completing the procedure alone is the real reason for such an inordinate delay.
6. Heard the learned Special Government Pleader for the appellants, the learned counsel for the 1 st respondent and also the learned counsel for the 4th respondent. Despite service of consolidated notice in the C.M.Application and the appeal, none appears for respondents 2 and 3.
7. The Limitation Act, 1963 was enacted by the Parliament to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. Section 5 of the Act deals with extension of prescribed period in certain cases. As per Section 5, any appeal or any M.F.A.(Forest) No.150 of 2019 8 application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. As per Explanation to Section 5, the fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
8. It is well settled that the Law of Limitation is founded on public policy to ensure that the parties to a litigation do not resort to dilatory tactics and seek legal remedy without delay. In an application filed under Section 5 of the Limitation Act, the court has to condone the delay if sufficient cause is shown. Adopting a liberal approach in condoning the delay is one of the guiding principles, but such liberal approach cannot be equated with a licence to approach the court-at-will disregarding the time limit fixed by the relevant statute. The acts of negligence or inaction on the part of a litigant do not constitute sufficient cause for condonation of delay. Therefore, in the matter of condonation M.F.A.(Forest) No.150 of 2019 9 of delay, sufficient cause is required to be shown, thereby explaining the sequence of events and the circumstances that led to the delay.
9. In Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107 : AIR 1987 SC 1353], in the context of Section 5 of the Limitation Act, 1963, a Two-Judge Bench of the Apex Court held that, the expression 'sufficient cause' employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, that being the life-purpose for the existence of the institution of courts.
10. In Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649] a Two-Judge Bench of the Apex Court while summerising the principles applicable while dealing with an application for condonation of delay held that, the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play. The Apex Court held further that, there is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one M.F.A.(Forest) No.150 of 2019 10 warrants strict approach whereas the second calls for a liberal delineation. [See: Para.21]
11. In Esha Bhattacharjee, after summerising the principles applicable while dealing with an application for condonation of delay, the Apex Court added some more guidelines taking note of the present day scenario, that an application for condonation of delay should be drafted with careful concern and not in a half-hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. [See: Para.22]
12. In Rafeek and another v. K. Kamarudeen and another [2021 (4) KHC 34] a Division Bench of this Court held that, though the expression 'sufficient cause' employed in Section 5 of the Limitation Act, 1963 is adequately elastic to enable the courts to apply the law in a meaningful manner, which subserves the ends of justice, as held by the Apex Court in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107], M.F.A.(Forest) No.150 of 2019 11 the concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play, as held by the Apex Court in Esha Bhattacharjee v. Raghunathpur Nafar Academy [(2013) 12 SCC 649]. Inordinate delay, which attracts doctrine of prejudice, warrants strict approach, whereas, a delay of short duration or few days, which may not attract doctrine of prejudice, calls for a liberal delineation. An application for condonation of delay should be drafted with careful concern and no court shall deal with such an application in a routine manner.
13. The learned counsel for the 1st respondent contended that the property in question was exempted from the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971, vide Annexure A6 common order dated 13.12.1977 in O.A.Nos.1193 of 1974 and 1194 of 1974. Though M.F.A.No.217 of 1978 filed by the State ended in dismissal, vide Annexure A7 judgment dated 28.06.1984, the restoration of the property in question did not take place. In the year 2008, the property was notified as an ecologically fragile land, under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003. Seeking a declaration that the property M.F.A.(Forest) No.150 of 2019 12 in question is not an ecologically fragile land, O.A.No.31 of 2008 was filed before the Tribunal, which was allowed by the order dated 17.03.2018. With the sole intention to delay the process of restoration, in terms of Annexure A6 common order of the Tribunal under the Act of 1971, and also to harass the respondents, the land in question was notified as ecologically fragile land in the year 2008. Though the Tribunal by order dated 17.03.2018 in O.A.No.31 of 2008 declared that the property in question is not an ecologically fragile land under the Act of 2003, in order to delay the restoration process, the present appeal has been filed with an inordinate delay of 494 days.
14. In State of Kerala and others v. N. Madhavan Nair [2010 (1) KHC 480], a decision relied on by the learned counsel for the 1st respondent, a Division Bench of this Court dismissed W.A.No.2528 of 2009 filed by the State of Kerala and others against the judgment of the learned Single Judge in W.P. (C)No.4500 of 2005 dated 19.06.2008, which was one filed along with an application for condonation of delay, imposing a cost of Rs.25,000/-. The respondent in that appeal, a disabled ex- serviceman who lost his leg during war, filed W.P.(C)No.4500 of 2005 for assignment land. On the request of the writ petitioner, M.F.A.(Forest) No.150 of 2019 13 Government, vide Ext.P3 order dated 10.5.1999, directed the District Collector, Thiruvananthapuram, to assign him 50 cents of land. The District Collector, vide Ext.P4 dated 12.6.2002, identified the land and forwarded to the Government the proposal to assign that land to the writ petitioner. However, the Government returned the proposal stating that the land identified by the District Collector is surplus land surrendered by a declarant under the Kerala Land Reforms Act, 1963, which cannot be assigned to the writ petitioner, as that land has to be assigned to landless agricultural labourers. In the writ petition the grievance of the writ petitioner was that, even after the lapse of nine years the alternate land is not identified and assigned to him, in terms of Ext.P3 order dated 10.5.1999. Before the learned Single Judge the Government have no case that the land identified by the District Collector for assignment to the writ petitioner has already been assigned to agricultural labourers, as contemplated under the Kerala Land Reforms Act.
14.1 The learned Single Judge held that, since the writ petitioner's entitlement for assignment of 50 cents of land under Ext.P4 is not disputed by the Government, and since the District Collector has not identified any other land for assignment as an M.F.A.(Forest) No.150 of 2019 14 alternative to his earlier proposal, there was no justification for the Government to decline permission to the District Collector to assign the land referred to in Ext.P4. Accordingly, the writ petition was disposed of by the judgment dated 19.06.2008, directing the District Collector to locate and assign alternative land and if the same is not possible within two months, then the District Collector will assign the land referred to in Ext.P4 to the writ petitioner, within a further period of one month.
14.2. On 04.11.2009, the State and others filed W.A.No.2528 of 2009 against the judgment dated 19.06.2008 in W.P.(C)No.4500 of 2005, along with C.M.Application No.1180 of 2009 for condonation of delay. In the affidavit filed in support of the C.M.Application, the explanation of the State was that after receipt of the order of the learned Single Judge on 22.07.08, the Government directed the District Collector and the Village Officer to submit necessary report and find out suitable land for assigning to the writ petitioner. Thereafter, the Government has taken a stand not to assign land to the writ petitioner. Accordingly, the State filed writ appeal challenging the order of the learned Single Judge directing the District Collector to locate and assign alternative land or the land mentioned in Ext.P4 to M.F.A.(Forest) No.150 of 2019 15 the writ petitioner.
14.3. The Division Bench noticed that, though the Government has, as long back as in the year 1999, taken a decision to help a war victim by assigning land, no proper and immediate action has been taken thereof forcing the writ petitioner to approach this Court and seek appropriate remedy. After the judgment of the learned Single Judge, some efforts have been made to implement the order, thereby the decision of the Government in the year 1999 was not questioned at any point of time. In the writ appeal it was stated that, the Government have returned the proposal on the ground that surplus land taken over possession under the provisions of the Kerala Land Reforms Act can be assigned only to landless agricultural labourers and as such, the decision is being reviewed. However, before the Division Bench, no records in this respect were placed showing the reason for the change of mind of the Government. In that view of the matter, the Division Bench found that the explanation offered by the Government for condonation of delay and even on merit, there is absolutely no case for the Government and that, the writ petitioner is being harassed for the whims and fancies of the official respondents. M.F.A.(Forest) No.150 of 2019 16 Therefore, the Division Bench dismissed the application for condonation of delay. In view of the same, the Division Bench found that the writ appeal is also devoid of merits. As such the Division Bench dismissed the writ appeal with a cost of Rs.25,000/- to be paid to the respondent, within four weeks.
15. In Government of Kerala and another v. Jacob Thomas Arikupuram and others [2019 (4) KHC 625] a Division Bench of this Court had occasion to consider the scope and ambit of the Kerala Private Forest (Vesting and Assignment) Act, 1971 and the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003. On a scrutiny of the preamble to the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001, the Ecologically Fragile Land Act of 2003 and also the Vesting Act of 1971, the Division Bench held that the Ecologically Fragile Land Act is intended for conservation of biological diversity and biological resources. The State came for with this enactment with an avowed object of preserving tropical forests in the western ghats, which has been declared a bio-diversity hot spot by the International Union for Conservation of Nature and Natural Resources. On the other hand, the Vesting Act of 1971 was M.F.A.(Forest) No.150 of 2019 17 enacted for vesting in the Government of private forest in the State of Kerala for the purpose of assignment thereof to the agriculturists and agricultural labourers for cultivation. In short, the Vesting Act is mainly focusing on distribution of private forests to the agriculturists and agricultural labourers for cultivation. In contra-distinction, the object of the Ecologically Fragile Land Act is to preserve and conserve bio-diversity treating the natural resources as public trust, vital to the economic and social development of humanity. Therefore, the Vesting Act and the Madras Preservation of Private Forests Act, 1946 overlap on each other to some extent. Whereas, the intention prompted the State to legislate the Ecologically Fragile Land Act is quite different from the Vesting Act. The Division Bench found that the Ecologically Fragile Land Act is an independent enactment, not interlinked with the Vesting Act, as the legislative intention for enacting the law is quite different from that of the Vesting Act.
16. In Conservator and Custodian of Forest and others v. Sobha John Koshy and another [AIR 2021 SC 1009 : 2021 (2) KHC 170] a Three-Judge Bench of the Apex Court was dealing with a case in which the land in question, M.F.A.(Forest) No.150 of 2019 18 situated at Pannu Valley in Wayanad District, was originally vested in the Government under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971. An application was filed before the Tribunal under Section 8 of the said Act for a declaration that the said land is not a vested forest. The Tribunal, vide its order in O.A.Nos.67 and 68 of 1975, rejected the claim. After prolonged litigation, the Division Bench of this Court allowed M.F.A.No.934 of 1990, vide judgment dated 10.02.1998 and it was declared that the land in question is exempted from the provisions of the Vesting Act, on the ground that it was proved that the area was cultivated with plantation and crop. After the above judgment of the Division Bench, the Custodian of Forest could not restore possession of the land to the applicants since the same was encroached into by some tribals and it became impossible to evict them from those lands.
16.1. The applicants filed W.P.(C)No.3340 of 2004 before this Court, seeking restoration of the land or to pay compensation as assessed by the Tahsildar in Ext.P10 communication dated 02.03.2005. That writ petition was disposed of by judgment dated 19.01.2007 by directing the respondents therein to pay the writ petitioners compensation for M.F.A.(Forest) No.150 of 2019 19 the land ordered to be restored to them as per the judgment of the Division Bench in M.F.A.No.934 of 1990, in respect of the lands covered by O.A.Nos.67 and 68 of 1975. In the said judgment, the learned Single Judge found no merit in the contention that the land in question is an ecologically fragile land and there is a proposal to notify the same under the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act, 2003.
16.2. The judgment of the learned Single Judge was under
challenge in W.A.No.1757 of 2007 filed by the Custodian of Forest and others. After the judgment of the learned Single Judge, the land in question was notified as an ecologically fragile land under the Ecologically Fragile Land Act of 2003. The Division Bench vide judgment dated 05.06.2008 dismissed W.A.No.1757 of 2007, holding that the land in question will not come under the Ecologically Fragile Land Act, as even according to the Government, the land is not restored, which is occupied by the tribals and it was cultivated with cardamon and pepper. Therefore, the Division Bench fully agreed with the view of the learned Single Judge.
16.3. The Conservator of Forest and others challenged the M.F.A.(Forest) No.150 of 2019 20 judgment of the Division Bench before the Apex Court, by filing S.L.P.(C)No.27651 of 2008. Before the Apex Court, it was contended that, vide notification dated 03.04.2007 issued under Section 3 of the Ecologically Fragile Land Act of 2003, the property in question has already been vested in the State, for which no compensation is payable in view of the provisions under Section 8(2) of the said Act. After considering the rival contentions, the Apex Court found that when the very same land having been declared as ecologically fragile land under the Ecologically Fragile Land Act of 2003, the right and entitlement of the applicants in O.A.Nos.67 and 68 of 1995 under the Vesting Act, 1971 is lost, in view of Section 3 of the Ecologically Fragile Land Act. But the right on the land lost by the applicants under Ecologically Fragile Land Act shall in no manner wipe out their right to enjoy possession and yield of the land during the period prior to the enactment of the Ecologically Fragile Land Act, which right was established by the judgment of the Division Bench dated 10.02.1998 in M.F.A.No.934 of 1990. Since the applicants were kept out of the possession of the property and denied enjoyment of land after 1971, the Apex Court held in its judgment dated 10.02.2021 in Civil Appeal No.414 of 2021 M.F.A.(Forest) No.150 of 2019 21 arising out S.L.P.(C)No.27651 of 2008 that it is just and proper, even if the applicants are not compensated for the value of the land, they need to be compensated for the benefits arisen out of the land in question, for the period they were kept out the possession by the action of the Custodian of Forest and others, treating it be vested land under the Vesting Act of 1971, which did not find favour by the Division Bench of the High Court in its judgment in M.F.A.No.934 of 1990.
17. As held by the Division Bench of this Court in in Jacob Thomas [2019 (4) KHC 625], the Ecologically Fragile Land Act of 2003 is an independent enactment, not interlinked with the Vesting Act of 1971, as the legislative intention for enacting the law is quite different from that of the Vesting Act. The Vesting Act is mainly focusing on distribution of private forests to the agriculturists and agricultural labourers for cultivation. On the other hand, the object of the Ecologically Fragile Land Act of 2003 is to preserve and conserve bio-diversity treating the natural resources as public trust, vital to the economic and social development of humanity. As held by the a Three-Judge Bench of the Apex Court in Sobha John Koshy [AIR 2021 SC 1009], when the very same land having been declared as ecologically M.F.A.(Forest) No.150 of 2019 22 fragile land under the Ecologically Fragile Land Act of 2003, the right and entitlement of the applicants under the Vesting Act of 1971 is lost, in view of Section 3 of the Ecologically Fragile Land Act of 2003. However, the right on the land lost by the applicants under the Ecologically Fragile Land Act of 2003 shall in no manner wipe out their right to enjoy possession and yield of the land during the period prior to the enactment of the Ecologically Fragile Land Act, which right was established by the judgment of the Division Bench of the High Court, in a proceedings under the Vesting Act of 1971. In that view of the matter, merely for the reason that the application schedule property in O.A.No.31 of 2008 having an extent of 4.01 Hectors, which was the subject matter of the proceedings under the Vesting Act of 1971, was notified in the year 2008 as an ecologically fragile land, under the provisions of the Ecologically Fragile Land Act of 2003, the respondents in this appeal/applicants before the Tribunal cannot contend that the present appeal filed under Section 11 of said Act, along with an application for condonation of delay, is with the sole intention to harass them and to delay the restoration process under the Vesting Act of 1971. We make it clear that, we have not expressed any opinion on the status of the application M.F.A.(Forest) No.150 of 2019 23 schedule property as on the appointed date, either under the Vesting Act of 1971 or the Ecologically Fragile Land Act of 2003.
18. In Post Master General v. Living Media India Ltd.
[(2012) 3 SCC 563], another decision relied on by the learned counsel for the 1st respondent, a Two-judge Bench of the Apex Court reiterated the law laid down in Commissioner of Wealth Tax, Bombay v. Amateur Riders Club [(1994) Supp. 2 SCC 603] that, there is a point beyond which even the courts cannot help a litigant even if the litigant is Government, which is itself under the shackles of bureaucratic indifference. The law of limitation binds everybody. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also.
18.1. The office of the Chief Post Master General filed SLPs against the judgment dated 11.09.2009 of the Division Bench of the Bombay High Court in L.P.A.Nos.418 and 1006 of 2007, arising out of the judgment of the learned Single Judge dated 28.03.2007 in W.P.(C)Nos.22679-80 of 2005 and W.P.(C)No.4985 of 2006. The 1st respondent, Living Media India Ltd., submitted M.F.A.(Forest) No.150 of 2019 24 an application to the Postal Department seeking permission to post December 2005 issue of Reader's Digest magazine containing the advertisement of Toyota Motor Corporation in the form of a booklet with calendar for the year 2006 at concessional rates in New Delhi. By the letter dated 08.11.2005, the Postal Department denied grant of permission for mailing the said issue at concessional rates on the ground that the booklet containing advertisement with calendar is neither a supplement nor a part and parcel of the publication. On 17.11.2005, the 1st respondent submitted another application seeking the same permission, which was also denied by the Postal Department by the letter dated 21.11.2005. The 1st respondent, being aggrieved by the decision of the Postal Department filed writ petitions before the High Court. The learned Single Judge allowed both the writ petitions. Being aggrieved, the Postal Department filed appeals. The Division Bench dismissed both the appeals, thereby upholding the judgment of the learned Single Judge. Challenging the said judgment, the Postal Department filed SLPs before the Apex Court, along with an application for condoning the delay of 427 days in filing the SLPs. The learned Senior Counsel for the respondents seriously objected to the conduct of the Postal M.F.A.(Forest) No.150 of 2019 25 Department in approaching the Apex Court after enormous and inordinate delay of 427 days. In view of the fact that the application for condonation of delay in filing the SLPs dated 10.02.2011 does not contain acceptable and plausible reasons, the Apex Court permitted the Postal Department to file a better affidavit explaining the reasons for the same. Pursuant to the same, an affidavit has been filed on 26.12.2011. In paragraph 20 of the judgment, the Apex Court extracted the entire statement placed in the form of 'better affidavit' by the officer of the Postal Department.
18.2. The Apex Court noticed that, as stated in the 'better affidavit', the Department was aware of the date of the judgment of the Division Bench as 11.09.2009. Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day. There is no explanation for not applying for the certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied for only on 08.01.2010, i.e., after a period of nearly four months. In spite of affording another opportunity to file 'better affidavit' by placing M.F.A.(Forest) No.150 of 2019 26 adequate material, neither the Department nor the person-in- charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter before the Apex Court by taking appropriate steps. The persons concerned were well aware or conversant with the issues involved, including the prescribed period of limitation for taking up the matter by way of filing SLP. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. Though, in a matter of condonation of delay, when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, the claim on account of impersonal machinery and inherited bureaucratic M.F.A.(Forest) No.150 of 2019 27 methodology of making several notes cannot be accepted, in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. It is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the Apex Court held that the Postal Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the Apex Court dismissed the appeals on the ground of delay.
M.F.A.(Forest) No.150 of 2019 28
19. In State of Bihar v. Deo Kumar Singh [2019 SCC OnLine SC 1314 - Order dated 09.05.2019 in S.L.P.(C) Diary No.13348 of 2019], another decision relied on by the learned counsel for the 1st respondent, a Two-Judge Bench of the Apex Court was dealing with a case in which the respondent/writ petitioners, were appointed as Jan Sevak/VLW on 23.2.1999, in the pay scale of Rs.1,200-30-1,800. The writ petitioners claimed that they are entitled for replacement scale of Rs.4,000-6,000 as they were appointed in the scale of Rs.1,200-30-1,800 of which Rs.4,000-6,000 is replacement scale, which was arbitrarily denied to them, by the State of Bihar. The learned Single Judge of the Patna High Court found that the issues involved in all the three writ petitions are squarely covered by the order dated 13.07.2007 in C.W.J.C.No.11879 of 2004, which was affirmed by the Division Bench on 13.05.2011, in LPA No. 959 of 2007. Accordingly, the writ petitions were disposed of in terms of those orders. State of Bihar filed appeal against the order of the learned Single Judge of the Patna High Court, before the Division Bench, along with an application for condonation of delay of 367 days. The Division Bench dismissed that application, on the ground that no sufficient cause was shown for condonation of M.F.A.(Forest) No.150 of 2019 29 delay. Thereafter, with a delay of 728 days, State of Bihar filed SLP before the Apex Court. The reason given for seeking condonation of delay was as follows;
"State is filing the present Special Leave Petition after obtaining all the sanctions from the respective Departments and took time to receive the affidavit and vakalatnama from the concerned Department, hence there is delay in filing the present matter."
The Apex Court noticed that, no details of the delay of 728 days have been given as if there is an inherent right to seek condonation of delay by the State Government. The law of limitation apparently does not apply to the State Government according to its conduct. Such condonation of delay is no more admissible on the pretext of Government working lethargy as clear from the judgment in Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563]. The Apex Court strongly deprecated the casual manner in which the Division Bench of the Patna High Court and the Apex Court were approached; the objective possibly being to get a certificate of dismissal, which is complete wastage of judicial time. Accordingly, the Apex Court dismissed SLP on delay and imposed a cost of Rs.20,000/- on the petitioners, to be recovered from the officers responsible for the delay.
M.F.A.(Forest) No.150 of 2019 30
20. In State of Madhya Pradesh v. Bherulal [(2020) 10 SCC 654] a Two-Judge Bench of the Apex Court was dealing with an SLP filed by the State of Madhya Pradesh against the judgment of the High Court of Madhya Pradesh (Indore Bench), arising out of the judgment dated 12.02.2018 in S.A.No.65 of 2001. The SLP was filed along with an application to condone the delay of 663 days. The explanation given in the application for condonation of delay, as set out in paras 3 and 4, was that the delay occurred "due to unavailability of the documents and process of arranging documents" and due to "bureaucratic process". After referring to the law laid down in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107] and Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563], the Apex Court found that the object of filing SLP along with an application to condone the delay of 663 days appears to be to obtain a certificate of dismissal from the Apex Court to put a quietus to the issue and thus, to say that nothing could be done because the higher Court has dismissed the appeal. It is to complete the formality and save the skin of officers, who may be at default, such a process is followed. Looking to the period of delay and the causal manner in which the application is worded, M.F.A.(Forest) No.150 of 2019 31 the Apex Court dismissed the SLP as time barred imposing a cost of Rs.25,000/- on the State, which has to be recovered from the officers responsible for the delay in filing the SLP.
21. In Deputy Conservator of Forests v. Timblo Irmaos Ltd. [order dated 18.12.2020 in S.L.P.(C) Diary No.19059 of 2020], another decision relied on by the learned counsel for the 1st respondent, the Special Leave Petition against the judgment dated 07.02.2019 of the High Court of Bombay, Goa Bench in M.C.A.No.248 of 2016 was filed with a delay of 462 days. M.C.A.No.248 of 2016 was dismissed for non-prosecution on 03.09.2014. An application for restoration was filed before the High Court on 05.01.2016, along with an application for condonation of delay. That application was dismissed by the order dated 07.02.2019, which was sought to be challenged before the Apex Court, by filing an SLP with a delay of 462 days. Before the High Court, it was claimed that the petitioner should not suffer for the fault of the counsel. The High Court opined that such substantial delay could not be condoned by mere shifting of blame on the counsel as the parties are required to keep track of the matter and there is negligence despite numerous opportunities. The matter is further aggravated by filing an SLP M.F.A.(Forest) No.150 of 2019 32 with a delay of 462 days and once again the excuse is of change of counsel. A Three-Judge Bench of the Apex Court, after referring to the law laid down in Collector, Land Acquisition v. Katiji [(1987) 2 SCC 107], Post Master General v. Living Media India Ltd. [(2012) 3 SCC 563] and also Deputy Conservator of Forests v. Timblo Irmaos Ltd. and others [order dated 18.12.2020 in S.L.P.(C) Diary No.19059 of 2020], dismissed the SLP as time barred and imposed cost of Rs.15,000/- on the petitioners, for wastage of judicial time, which was directed to be recovered from the officers responsible for the delay.
22. In State of Uttar Pradesh v. Sabha Narain [order dated 12.04.2019 in S.L.P.(C) Diary No.25743 of 2020] a Three-Judge Bench of the Apex Court was dealing with an application filed by State of Uttar Pradesh and others to condone the delay of 502 days in filing SLP against the judgment of the Allahabad High Court dated 12.04.2019 in Writ-C No.2966 of 1997, a writ petition filed under Article 226 of the Constitution of India by Sabha Narain, against Annexure A3 order dated 16.09.1974 of the Prescribed Authority declaring certain land as surplus. A review application was filed against Annexure A3 M.F.A.(Forest) No.150 of 2019 33 order, which was rejected by the Chief Revenue Officer, Mirzapur, vide order dated 16.01.1996. Thereafter, an appeal was filed and the same was also dismissed by the Additional Commissioner, Varanasi Division, vide order dated 23.09.1996. Before the High Court the learned Standing Counsel for the State could not point out any provision under which proceedings, which had attained finality after the order dated 04.07.1963, could be re-opened under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960. Before the Apex Court, the explanation given in the application for condonation of delay gave only a saga of moving of file from one place to other that too with long interludes. The Apex Court observed that the above explanation shows the casual manner in which the petitioner State has approached the Court without any cogent or plausible ground for condonation of delay. In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record. After referring to the decision in State of Madhya Pradesh v. Bherulal [(2020) 10 SCC 654], the order dated 11.01.2021 of a Two-Judge Bench in State of Odisha v. Sunanda Mahakuda [2021 SCC OnLine SC 384 - S.L.P.(C) Diary No.22605 of 2020] and the decision in Office of the Chief Postmaster General v. M.F.A.(Forest) No.150 of 2019 34 Living Media Ltd. [(2012) 3 SCC 563], the Apex Court observed that, despite these decisions there seems to be a little change in the approach of Government and Public Authorities. Looking to the period of delay and the casual manner in which the application has been worded, the Apex Court dismissed the SLP as time barred, imposing a cost of Rs.25,000/- on the petitioners, for wastage of judicial time.
23. In State of Odisha v. Sunanda Mahakuda [2021 SCC OnLine SC 384] the SLPs were filed after a delay of 1954 days in respect of impugned order dated 12.03.2015 of the learned Single Judge and a delay of 545 days qua the order dated 19.04.2019 in Writ Appeal. The Writ Appeal was preferred after a delay of 783 days and was found not to have been properly explained. The SLPs were filed after contempt proceedings were initiated on 13.05.2019, on dismissal of the Writ Appeal. In paragraph 2 of the application for condonation of delay, the delay was explained as follows;
"2. ... The delay is neither intentional nor wanton but for the reasons mentioned above. In case delay is not condoned, the petitioner would be put to irreparable loss and hardship. On the other hand, no prejudice whatsoever would be caused to the Respondent if delay is condoned. In the interest of justice, the delay in re-filing be condoned." M.F.A.(Forest) No.150 of 2019 35
The Apex Court noticed that, a reading of the application for condonation of delay shows that there is no reason much less sufficient and cogent reason assigned to explain the delay and the application has also been preferred in a very casual manner. The Government machinery has acted in an inefficient manner or it is a deliberate endeavour. In either of the two situations, the Court ought not to come to the rescue of the petitioner. No doubt, some leeway is given for Government inefficiency but with the technological advancement now the judicial view prevalent earlier when such facilities were not available has been over taken by the elucidation of the legal principles in Office of the Chief Postmaster General v. Living Media Ltd. [(2012) 3 SCC 563] and State of Madhya Pradesh v. Bherulal [(2020) 10 SCC 654]. In the present case, the State Government has not even taken the trouble of citing any reason or excuse nor any dates given in respect of the period for which condonation is sought. The objective of such an exercise has also been elucidated in the decision in Bherulal, where such cases have been categorised as "certificate cases". Looking to the period of delay and the casual manner in which the application has been worded, the Apex Court dismissed the SLPs as time barred, M.F.A.(Forest) No.150 of 2019 36 imposing a cost of Rs.25,000/-.
24. The learned Special Government Pleader (Forest) would rely on the public trust doctrine, since the property in question has been notified as ecologically fragile land under the provisions of the Ecologically Fragile Land Act of 2003. The learned Special Government Pleader would point out that, loss of the application schedule property having an extent of 4.01 Hectors would result in fragmentation of the surrounding forest areas, causing grave degradation to the entire area. The learned Special Government Pleader would submit that, in the decisions relied on by the learned counsel for the 1 st respondent, the Apex Court was dealing with cases in which Special Leave Petitions were filed along with application for condonation of delay, without stating sufficient cause, with an object to obtain a certificate of dismissal from the Apex Court to put a quietus to the issue and to save the skin of the officers, who have been negligent in defending the litigation. Considering the cause shown in the affidavit filed in support of the C.M.Application and the additional affidavit dated 25.01.2020, the delay in filing the appeal may be condoned.
25. In M.C. Mehta v. Kamal Nath [(1997) 1 SCC 388] M.F.A.(Forest) No.150 of 2019 37 a Two-Judge Bench of the Apex Court, while considering the doctrine of public trust, which extends to natural resources, observed that, the public trust doctrine primarily rests on the principle that certain resources like air, sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The said resources being a gift of nature, they should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. Our legal system - based on English common law - includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
26. In Intellectuals Forum v. State of A.P. [(2006) 3 M.F.A.(Forest) No.150 of 2019 38 SCC 549] a Two-Judge Bench of the Apex Court, in the context of balancing of conservation of natural resources vis-à-vis urban development, observed that the responsibility of the State to protect the environment is now a well-accepted notion in all countries. It is this notion that, in international law, gave rise to the principle of 'State responsibility' for pollution emanating within one's own territories. Corfu Channel case - United Kingdom of Great Britain and Northern Ireland v. Albania [(1949) ICJ Rep. 4 : (1949) 43 AJIL 491]. This responsibility is clearly enunciated in the United Nations Conference on the Human Environment, Stockholm 1972 (Stockholm Convention), to which India was a party. The relevant clause of this declaration in the present context is Para.2, which states that, the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.
27. In State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772] a Two-Judge Bench of the Apex Court observed that, there cannot be any two opinions that natural resources are the assets M.F.A.(Forest) No.150 of 2019 39 of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources. Article 48A of the Constitution of India requires that the State shall endeavour to protect and improve the environment and safeguard the forests and wildlife of the country. Similarly, Article 51A enjoins a duty upon every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife, and to have compassion for all the living creatures. In view of the constitutional provisions, the doctrine of public trust has become the law of the land. The said doctrine rests on the principle that certain resources like air, sea, water and forests are of such great importance to the people as a whole that it would be highly unjustifiable to make them a subject of private ownership.
28. In State of Assam v. Susrita Holdings Pvt. Ltd. [(2014) 11 SCC 192], a decision relied on by the learned Special Government Pleader (Forest), a Two-Judge Bench of the Apex Court was dealing with a case in which the Division Bench of the High Court of Gauhati, by order dated 02.02.2012 in M.C.No.5 of 2012, rejected the application for condonation of delay of 442 days in filing writ appeal against the judgment of M.F.A.(Forest) No.150 of 2019 40 the learned Single Judge dated 06.08.2010 in W.P.(C)No.4147 of 2010, on the ground that the time lag between 02.02.2011 and 22.11.2011 has not been convincingly explained by the State. Before the Apex Court, it was contended that the order dated 06.08.2010 of the learned Single Judge in W.P.(C)No.4147 of 2010, requiring the Registrar of Co-operative Societies, Panbazar and the Deputy Registrar of Co-operative Societies and Ex-officio Liquidator, Cachar Tea Farming and Industrial Co-operative Society Ltd. (under liquidation), Silchar, to take necessary follow up steps for execution of the sale deed conveying the immovable property referred to therein, in favour of the 1 st opposite party, as well as the registration of the said document, is violative of the principles of natural justice, inasmuch as the State was not afforded with an opportunity to file their affidavits on merits. The order in this perspective is unsafe to be acted upon, since enormous amount of public revenue is involved. The Apex Court, after referring to the law laid down in G. Ramegowda v. Special Land Acquisition Officer [(1988) 2 SCC 142] observed that the malfunctioning of the State Government regarding the unpardonable lackadaisical attitude towards pursuing matter in the court of law cannot be the reason for loss M.F.A.(Forest) No.150 of 2019 41 of public property, which involves public money and causes loss to the public exchequer. Therefore, the Apex Court found it fit to exercise its discretionary power to condone the delay in filing the writ appeal in the interest of public at large as the High Court has failed to do so. Accordingly, the Apex Court condoned the filing delay before the High Court in the larger interest of public. The Apex Court has made it clear that this decision should not set as precedent to justify inordinate delay on the part of the State Government to file appeals or other legal proceedings required to be filed within the period of limitation prescribed in law.
29. In Executive Officer, Antiyur Town Panchayat v. G. Arumugam (dead) by Legal Representatives [(2015) 3 SCC 569] a Two-Judge Bench of the Apex Court was dealing with an appeal filed by the Executive Officer of Antiyur Town Panchayat challenging the order of the High Court of Tamil Nadu declining to condone the delay of 1373 days in filing the appeal against the judgment dated 14.11.2000 in A.S.No.108 of 1999 on the file of the Subordinate Judge, Bhavani, a suit filed by the 1st respondent as O.S.No.267 of 1992 on the file of the Additional District Munsiff, Bhavani, for declaration and possession of the suit property. The trial court dismissed the suit by judgment M.F.A.(Forest) No.150 of 2019 42 dated 11.07.1997. In A.S.No.108 of 1999, the First Appellate Court decreed the suit by judgment dated 14.11.2000. No steps were taken by the Executive Officer, at the relevant time to file Second Appeal. When steps for eviction were taken in execution, application for certified copy of the judgment and decree was filed on 26.10.2004 and after obtaining certified copy and necessary sanction and completing other procedural formalities, the Second Appeal was filed on 05.01.2005 along with an application for condonation of delay. By the impugned order, the High Court declined to condone the delay since the delay was not properly explained. Before the Apex Court, it was pointed out that Sri.K.V. Ramaswamy, who was working as the Executive Officer at the relevant time, was suspended with effect from 12.07.2002 on allegations of corruption. On going through the records, the Apex Court found that the delay had occasioned only on account of the deliberate lapses on the part of the Executive Officer, at the relevant time. The Apex Court noticed that, as held in State of Nagaland v. Lipok AO and others [(2005) 3 SCC 752], the Court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there has been an attempt on the part of M.F.A.(Forest) No.150 of 2019 43 the Government officials or public servants to defeat justice by causing delay, the Court, in view of the larger public interest, should take a lenient view in such situation, to condone the delay, however, huge may be the delay, and have the matter decided on merits. Accordingly, the Apex Court condoned the delay of 1373 days in filing the Second Appeal and remitted the matter to the High Court for further consideration, in accordance with law.
30. In State of Manipur and others v. Koting Lamkang [(2019) 10 SCC 408], a Three-Judge Bench of the Apex Court was dealing with a case in which the High Court of Manipur at Imphal by the judgment and order dated 27.11.2017 declined to condone the delay of 312 days in preferring a Regular First Appeal. The condonation was sought by the appellants with the projection that they made a bona fide mistake in preferring the appeal against the impugned order and decree dated 18.07.2016 before the wrong forum, i.e., the learned District Judge, Imphal West. That court however did not entertain the appeal on the ground that it has no pecuniary jurisdiction to entertain the appeal. Accordingly, Judl. Misc. Case No. 32 of 2017 was disposed of by the learned District Judge on M.F.A.(Forest) No.150 of 2019 44 28.07.2017 permitting the appellant to file appeal before the High Court of Manipur. The time spent by the appellant in the wrong forum was 44 days (15.06.2017 to 28.07.2017). The learned Judge of the High Court found that the delay was not explained for the other days. The condonation application was accordingly rejected with the observation that there is no explanation for the time taken by the appellants between 18.07.2016 and 15.06.2017. On that basis, RFA was not entertained on merits.
30.1. Insofar as the refusal by the High Court to condone the delay of 312 days in the RFA preferred by the State of Manipur and others, the Apex Court noticed that, it is apparent that the appellants did prefer the appeal at first instance on 15.06.2017 before the learned District Judge. But since it was before the wrong forum and was filed after a delay of about eleven months and there is no explanation for the time taken by the State between 18.07.2016 and 15.06.2017, the delay in filing the RFA before the High Court was not condoned. In fact, the High Court found that the State has not shown as to what prevented them from preferring the appeal before the District Judge (wrong forum), until 15.06.2017. The High Court has also M.F.A.(Forest) No.150 of 2019 45 said that the latitude in applying the standards of 'sufficient cause' test is not attracted, in the instant case. The Apex Court found that, while concluding as above, it was necessary for the High Court to be conscious of the bureaucratic delay and the slow pace in reaching a Government decision and the routine way of deciding whether the State should prefer an appeal against a judgment adverse to it. Even while observing that the law of limitation would harshly affect the party, the High Court felt that the delay in the appeal filed by the State, should not be condoned. Regard should be had in similar such circumstances to the impersonal nature of the Government's functioning, where individual officers may fail to act responsibly. This in turn, would result in injustice to the institutional interest of the State. If the appeal filed by the State are lost for individual default, those who are at fault, will not usually be individually affected. On the facts of the case, the Apex Court found that, under the decree passed against the defendants, i.e., the State of Manipur, the Director General of Police and the Commandant of 8th Battalion of Manipur Rifles, the appellants are to vacate and handover the Schedule "C" and "D" land, which is projected to be an area of strategic importance by the appellants. Therefore, the Apex Court felt that M.F.A.(Forest) No.150 of 2019 46 it is necessary for making available to the appellants a legal forum, which could consider their challenge to the decree obtained by the plaintiff from the Civil Judge (Senior Division), Chandel, in O.S.No.4 of 2015.
30.2. The Apex Court noticed that the delay to the extent of 44 days, in moving before the wrong court was found to be satisfactorily explained in the impugned judgment [State of Manipur v. Koting Lamkang - 2017 SCC OnLine Mani 123]. As regards the failure of the State to adequately explain the remaining period of delay, the Apex Court opined that, the interest of justice would be better served, if the appellants' challenge to the decree of the trial court is allowed to be examined on merit, by the first appellate court. If the merit of the defendant's RFA is not permitted to be examined by the appellate court, the State will have no opportunity to address their grievances before a higher court. The Apex Court observed that if consideration of the RFA is not permitted on strategically sensitive case involving security, in the ultimate analysis, the public interest is likely to suffer. The first appeal should therefore be considered on merit, instead of the State being non-suited, on the ground of delay. Therefore, to avoid injustice to the State's M.F.A.(Forest) No.150 of 2019 47 interest and considering the special circumstances in the matter at issue, the Apex Court deemed it appropriate to exercise its jurisdiction under Article 136 of the Constitution of India and interfered with the impugned order of the High Court of Manipur. The delay in filing RFA was condoned, subject to payment of costs of Rs.50,000/- by the appellants in the High Court. In the result, RFA preferred by the appellants was directed to be restored and considered on its own merits. Considering the rival contentions on possession being taken over/not taken over and the execution proceedings stated to have been concluded on 11.07.2018, the issue of possession and finalisation of the execution was made subject to the final decision of the High Court, in R.F.A.No. 5 of 2017.
31. In this C.M.Application, the appellants are seeking condonation of the delay of 494 days in filing the appeal under Section 11 of the Ecologically Fragile Land Act of 2003, against the order dated 17.03.2018 of the Tribunal in O.A.No.31 of 2008. The application for certified copy of the order was filed on 21.03.2018, copy was ready on 18.04.2018, the date notified for receipt of copy was 21.04.2018, which was received on 23.04.2018. Therefore, an appeal under Section 11 of the Act M.F.A.(Forest) No.150 of 2019 48 ought to have been filed before this Court on or before 16.06.2018.
32. The specific stand taken in the additional affidavit dated 25.01.2020, which is one sworn to by the Additional Principal Chief Conservator of Forests and the Custodian of Ecologically Fragile Lands, is that the office of the learned Advocate General was requested to file appeal against the order of the Tribunal in O.A.No.31 of 2008, vide letter dated 05.12.2018, and the files were received in the office of the learned Advocate General on 26.12.2018. Though the files were submitted before the Special Government Pleader (Forest) for examining the scope of appeal, on 01.01.2019, after obtaining approval from the learned Advocate General, the appeal was filed on 22.10.2019. Therefore, there occurred a delay of 300 days in filing the appeal, after the files were received in the office of the learned Advocate General. The health issues of the learned Special Government Pleader on account of cervical disc prolapse in the neck area, for which he was wearing cervical hard collar, who had undergone traditional Ayurveda treatment when the High Court was on vacation from 16.04.2019 to 19.05.2019, who got better only by the last week of May, 2019, is stated as one of M.F.A.(Forest) No.150 of 2019 49 the reasons for the delay in filing the appeal. In the additional objection, the 1st respondent has not raised any dispute as to the health issues of the learned Special Government Pleader. During the course of arguments, the learned Special Government Pleader submitted that he is prepared to produce before this Court medical records relating to his health issues and the treatment he had undergone.
33. The stand taken in the objection and additional objection filed by the 1st respondent is that, the appellants have not offered reasonable explanation for the inordinate delay in filing the appeal. Though it is stated that there were various discussions and several clarifications were sought by the learned Special Government Pleader in relation to the location, lie and boundaries of the property, no documents have been placed on record to substantiate the said fact. In the additional affidavit, other than providing some more dates on which the files were transferred from one office to another, no other explanation was offered by the appellants as to how the delay of 494 days had occurred. The lethargy on the part of the authorities in completing the procedure alone is the real reason for such an inordinate delay.
M.F.A.(Forest) No.150 of 2019 50
34. In the additional affidavit sworn to by the Custodian of Ecologically Fragile Lands, who is conversant with the facts of the case as disclosed from the relevant records (as stated in paragraph 1 of that affidavit), it is stated that, due to heavy work load, the District Government Pleader (Forest) could forward the files along with the legal opinion to the Divisional Forest Officer, Palakkad, only vide letter dated 20.09.2018. Thereafter, the Divisional Forest Officer, on perusal of the files and after discussions with the officers concerned, requested the office of the learned Advocate General to file appeal, vide letter dated 05.12.2018. In the additional affidavit of the Custodian of Ecologically Fragile Lands, it is further stated that, on 01.01.2019, the files were submitted before the Special Government Pleader for examining the scope of appeal, who made certain queries regarding the lie and nature of the property. The Divisional Forest Officer deputed the Forest Range Officer for necessary assistance. After several discussions, it was decided to file appeal and the files were entrusted to the Liaison Office for obtaining some more back-records. The records were obtained and submitted before the Special Government Pleader. In addition to health issues of the Special Government Pleader, M.F.A.(Forest) No.150 of 2019 51 the pendency of cases and the work load relating to the hearing matters contributed to the delay in finalising the initial draft. The draft of the appeal was prepared during the 1 st week of July, 2019 and it was ready by 19.07.2019. Thereafter, the appeal was submitted before the learned Advocate General for approval. After obtaining approval, the files were forwarded to the concerned section for filing and the appeal was filed on 22.10.2019.
35. Though the explanation offered in the affidavit filed in support of C.M.Application and that contained in the additional affidavit dated 25.01.2020 is not fully satisfactory, the appellants have succeeded in showing to a certain extent, reasonable and acceptable explanation for the delay in filing the appeal against the order of the Tribunal dated 17.03.2018 in O.A.No.31 of 2008. Therefore, it cannot be said that, in the said affidavits filed in support of C.M.Application the Custodian of Ecologically Fragile Lands offered explanation for the delay in a casual manner, without any cogent or plausible ground for condonation of delay.
36. As observed by the Apex Court in M.C. Mehta v.
Kamal Nath [(1997) 1 SCC 388] the public trust doctrine primarily rests on the principle that certain resources like air, M.F.A.(Forest) No.150 of 2019 52 sea, waters and the forests have such a great importance to the people as a whole that it would be wholly unjustified to make them a subject of private ownership. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. In Intellectuals Forum v. State of A.P. [(2006) 3 SCC 549] the Apex Court observed that the responsibility of the State to protect the environment is now a well-accepted notion in all countries. In State (NCT of Delhi) v. Sanjay [(2014) 9 SCC 772] the Apex Court observed that, there cannot be any two opinions that natural resources are the assets of the nation and its citizens. It is the obligation of all concerned, including the Central and the State Governments, to conserve and not waste such valuable resources.
37. Along with I.A.No.3 of 2019, an application filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 the appellants have produced Ext.B1 expert report by the Post Graduate and Research Department of Botany, Government Victoria College, Palakkad, on biodiversity and floristic M.F.A.(Forest) No.150 of 2019 53 exploration of the application schedule property in O.A.No.31 of 2008, which is under Olavakkode Range of Palakkad Forest Division. In view of the provisions under Order XLI, Rule 27 of the Code, which deals with production of additional evidence in appellate court, a party to an appeal shall not be entitled to rely on additional evidence, whether oral or documentary, in the appellate court, unless and until the conditions stipulated in clauses (a), (aa) and (b) of sub-section (1) of Section 27 are satisfied, and allowed to be produced by the appellate court, after recording the reason for its admission.
38. A Three-Judge Bench of the Apex Court in State of Manipur and others v. Koting Lamkang [(2019) 10 SCC 408] condoned the delay of 312 days in preferring a Regular First Appeal by the State of Manipur, the Director General of Police and the Commandant of 8th Battalion of Manipur Rifles, since as per the decree they have to vacate and handover the Schedule "C" and "D" land, which is projected to be an area of strategic importance by the appellants. As regards the failure of the State to adequately explain the remaining period of delay, the Apex Court opined that, the interest of justice would be better served, if the appellants' challenge to the decree of the M.F.A.(Forest) No.150 of 2019 54 trial court is allowed to be examined on merit, by the first appellate court. The Apex Court observed that if consideration of the RFA is not permitted on strategically sensitive case involving security, in the ultimate analysis, the public interest is likely to suffer. Therefore to avoid injustice to the State's interest and considering the special circumstances in the matter at issue, the Apex Court condoned the delay in filing RFA, subject to payment of costs of Rs.50,000/-.
39. As already noticed, the object of the Kerala Forest (Vesting and Management of Ecologically Fragile Land) Act is to preserve and conserve bio-diversity treating the natural resources as public trust, vital to the economic and social development of humanity. In the affidavit filed in support of C.M.Application, which is one sworn to by the Custodian of Ecologically Fragile Lands, it is stated that, loss of any portion of the property in question would result in fragmentation of the surrounding forest areas, causing grave degradation to the entire area. Therefore, the interest of justice would be better served, if the appellants' challenge to the order of the Tribunal dated 17.03.2018 in O.A.No.31 of 2008 is allowed to be examined on merit, in the appeal filed under Section 11 of the Kerala Forest M.F.A.(Forest) No.150 of 2019 55 (Vesting and Management of Ecologically Fragile Land) Act. If consideration of the appeal on merit is not permitted, involving a land notified as ecologically fragile land, the public interest is likely to suffer.
40. In such circumstances, we deem it appropriate to allow this C.M.Application, thereby condoning the delay of 494 days in filling the appeal, on payment of a cost of Rs.10,000/- by the appellants to the 1st respondent, who has opposed this C.M.Application by filing counter affidavit. The appellants shall pay cost to the 1st respondent, within one month from the date of receipt of a certified copy of this order, failing which this C.M.Application will stand dismissed and consequently the appeal will also stand automatically dismissed as barred by limitation.
Since health issues of the learned Special Government Pleader is stated as one of the reasons for the delay in filing the appeal, we do not propose to order recovery of the said amount paid towards cost, from the officers responsible for the delay.
Sd/-
ANIL K. NARENDRAN, JUDGE Sd/-
M.R. ANITHA, JUDGE
yd
03-09-2021 /True Copy/ Assistant Registrar