Kerala High Court
Thresiamma Varghese vs State Of Kerala on 11 October, 2017
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE A.M.BABU
THURSDAY, THE 21ST DAY OF DECEMBER 2017/30th Agrahayana, 1939
MFA.(FOREST) No. 146 of 2017 ()
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(AGAINST THE ORDER IN I.A.NO.13/17 IN O.A.NO.9/2017 DATED 11.10.2017 OF THE KERALA FOREST
(VESTING AND MANAGEMENT OF ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD
APPELLANT(S)/PETITIONERS:
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1. THRESIAMMA VARGHESE, W/O. BABY THOMAS, AGED 63 YEARS, PARAMTHOTTIL
HOUSE, KANJIRAPUZHA PO, MANNARKAD TALUK, PALAKKAD 678 591.
2. AKHILA BABY, D/O. BABY THOMAS, AGED 28 YEARS, PARAMTHOTTIL HOUSE,
KANJIRAPUZHA PO, MANNARKAD TALUK, PALAKKAD 678 591.
3. ARUB BABY, D/O. BABY THOMAS, AGED 29 YEARS, PARAMTHOTTIL HOUSE,
KANJIRAPUZHA PO, MANNARKAD TALUK, PALAKKAD 678 591.
BY ADV. SRI.P.BABU KUMAR
RESPONDENT(S)/RESPONDENTS:
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STATE OF KERALA
REPRESENTED BY ADDITIONAL CHIEF SECRETARY, FOREST & WILDLIFE
DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.
R BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
THIS MISC. FIRST APPEAL HAVING COME UP FOR ADMISSION ON 21-12-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
"CR"
K.HARILAL & A.M.BABU, JJ.
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MFA (Forest) No.146 of 2017
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Dated 21st December, 2017
JUDGMENT
A.M.BABU, J.
We admit the appeal. The learned special government pleader has taken notice for the respondents.
2. A property which measures 0.8215 hectare was notified as an ecologically fragile land. The notification was issued under Sec.3 (2) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act (for short 'the Act'). The appellants claiming themselves to be the owners of the said property filed an original application before the tribunal constituted under the Act. The application was numbered O.A 9/2017. The same was accompanied by an interlocutory application. The said application was numbered I.A 13/2017. It was filed under Sec.5 of the Limitation Act to condone the delay in filing the original application.
3. The appellants contended as under in I.A 13/2017. 2 MFA (Forest) No.146 of 2017 The notification under Sec.3 (2) of the Act was issued on 5.9.2012. No notice was given to them when their property was notified as an ecologically fragile land. They came to know about the notification only on 28.2.2017. Therefore there happened to be a delay of 1498 days in filing the original application.
4. The respondents opposed I.A 13/2017. They disputed that the appellants came to be aware of the notification only on 28.2.2017. It was also contended that a criminal case was registered against the appellants as OR 1/2012 for having felled trees from the notified property. Therefore, according to the respondents, the appellants were aware of the notification in 2012 itself.
5. No evidence was adduced in the interlocutory application. The tribunal dismissed the said application holding that the delay of 1498 days in filing the original application was not explained by evidence. Dismissal of I.A 13/2017 was followed by the dismissal of the original application as time barred.
3 MFA (Forest) No.146 of 2017
6. We heard Sri.P.Babu Kumar and Sri.Nagaraj Narayanan, the learned counsel for the appellants and the learned special government pleader for forest cases respectively.
7. It seems everybody including the tribunal was under an impression that an application under Sec.10 of the Act should be filed within a specified time from the date of issuance of the notification under Sec.3 (2) of the Act. But the Act does not prescribe any period of limitation within which shall be filed an application under Sec.10. However, rule 3 (1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Tribunal Rules (for short 'the Tribunal Rules') prescribes a period of limitation. We extract below rule 3(1) and its proviso.
Every application under section 10 shall be made in "Form A"
and shall be accompanied by a fee of five hundred rupees with such number of copies of the application and the documents as are necessary to be served on the respondents, within 3 months from the date of decision of the custodian or within 6 months from the date of communication of compensation under section 8, as the case may be, submitted before the tribunal.
4 MFA (Forest) No.146 of 2017
Provided that, in the case of petitions already disposed of by the custodian, the application shall be submitted within three months from the date of notification of these Rules.
8. A notification could be issued under the Act either under Sec.3 (2) or under Sec.4 (1). What rule 3 (1) provides is that an application under Sec.10 shall be filed within three months from the date of decision of the custodian in cases where notification was issued under Sec.3(2). It shall be filed within six months from the date of communication of fixing of compensation under Sec.8 if the notification was one issued under Sec.4 (1) of the Act. In the instant case we are only concerned with the notification under Sec.3(2) of the Act. The decision referred to in rule 3 (1) of the Tribunal Rules is not the decision of the custodian to issue notification under Sec.3(2). That is clear from the proviso to rule 3(1). The proviso states that in the case of petitions already disposed of by the custodian, the application shall be submitted within three months from the date of notification of the Tribunal Rules. That means the 5 MFA (Forest) No.146 of 2017 decision referred to in rule 3 (1) is the decision of the custodian on any petition filed by the owner of the land or any other aggrieved person. A combined reading of rule 3 (1) and its proviso suggests that in cases where a notification was issued under Sec.3 (2) of the Act, the application under Sec.10 shall be filed within thirty days from the date of decision of the custodian and in cases where the petitions were disposed of by the custodian before the Tribunal Rules came into force, the application under Sec.10 shall be filed within three months from the date of notification of the Tribunal Rules.
9. There are provisions in the Act and in the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules (the EFL Rules for short) under which applications could be filed before the custodian by an aggrieved person. Under Sec.19 (3) (b) of the Act, notwithstanding anything contained in the ordinance which preceded the Act or in any judgment, decree or order of any court, every notification issued in respect of any land under 6 MFA (Forest) No.146 of 2017 sub-sec (3) of Sec.3 of the said ordinance shall be scrutinized by the custodian suo motu or on an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of the Act. Under chapter V of the EFL Rules, the custodian has the power to make a declaration by order on the application of any person aggrieved that a particular land or a portion thereof is not vested in the government under the provisions of the Act. If the custodian passes an order against the aggrieved person under Sec.19 (3) (b) of the Act or under chapter V of the EFL Rules, an application under Sec.10 of the Act shall be filed within three months from the date of the decision of the custodian as provided under rule 3 (1) of the Tribunal Rules. If the custodian has taken the decision before the Tribunal Rules came into force, the application under Sec.10 shall be filed within three months from the date of notification of the said Rules as provided by the proviso to rule 3 (1). 7 MFA (Forest) No.146 of 2017
10. But there is no provision in the Act compelling the owner of the land to approach the custodian before the tribunal is approached. Going by the scheme of the Act, the owner can approach the tribunal under Sec.10 without at all approaching the custodian. When the owner so comes to the tribunal with an application under Sec.10, rule 3 (1) of the Tribunal Rules and the proviso to the said sub-rule can have no application. Rule 3(1) is applicable only to cases where the custodian has taken a decision before or after the commencement of the Tribunal Rules. In cases where the custodian is not approached and he had no occasion to take any decision, an application under Sec.10 is not barred by reason of the period of limitation prescribed under rule 3(1). We hold that a period of limitation is prescribed by rule 3 (1) of the Tribunal Rules for an application under Sec.10 of the Act in cases where the custodian has taken a decision as aforesaid, but no such period of limitation is prescribed if the custodian is not approached by the party and the custodian has not taken any decision as he had no occasion 8 MFA (Forest) No.146 of 2017 to take any decision. This is indeed an anomaly, but the anomaly is created by the rule itself.
11. In the present case the appellants did not approach the custodian for any relief either under the Act or under the EFL Rules. Therefore the custodian did not even have an occasion to take a decision. Therefore rule 3 (1) prescribing a period of limitation has no application to the application filed by the appellants under Sec.10.
12. Article 137 of the Limitation Act does not apply to tribunals unless it is specifically made applicable by the special statute. The apex court has held that the Limitation Act is not applicable to tribunals. The decision is M.P.Steel Corporation vs Commissioner of Central Excise ((2005) 7 SCC 58). We also place reliance on the decision in The Kerala State Electricity Board vs T.P.Kunhaliumma (AIR 1977 SC 282) holding that article 137, Limitation Act, applies only to courts and not to tribunals.
13. As neither rule 3 (1) of the Tribunal Rules nor 9 MFA (Forest) No.146 of 2017 article 137 of the Limitation Act is applicable to the application of the appellants filed under Sec.10 of the Act, the filing of I.A 13/2017 was quite unnecessary. The order in I.A 13/2017 and the consequent dismissal of OA 9/2017 are liable to be set aside. We do so.
14. But the appellants cannot take their sweet time to file the original application. In cases where no period of limitation is prescribed for an application, it shall be brought within a reasonable time. We may in this connection refer to the decisions of the apex court in Sharda Devi vs State of Bihar (AIR 2003 SC 942), Meher Rusi Dalal vs Union of India (AIR 2004 SC 3491) and P.K.Sreekantan vs P.Sreekumaran Nair (AIR 2007 SC 516). The apex court holds in Sharda Devi (supra) that though no period of limitation is prescribed for making a reference under Sec.30 of the Land Acquisition Act, needless to say where no period of limitation for the exercise of any statutory power is prescribed, the power can nevertheless be exercised only within a reasonable period. It is also held that what is the 10 MFA (Forest) No.146 of 2017 reasonable period in a given case shall depend on the facts and circumstances of each case. It is so held in the other two decisions also.
15. The appellants were to file their original application within a reasonable period. What is the reasonable period can be decided in some cases at least only after trial. What ought to be the reasonable period being dependent on the facts and circumstances of each case, it is desirable to decide the question after collection of evidence. That not, the appellants may not be able to prove that they become aware of the notification only on 28.2.2017. The respondents do have a right to oppose the original application on the ground that it did not come within a reasonable time. The tribunal may consider the issue along with other issues.
16. The appeal is allowed. The order of the tribunal in I.A 13/2017 and the order in O.A 9/2017 are set aside. The case is remitted back to the tribunal for disposal anew in accordance with law. We leave the parties to suffer their 11 MFA (Forest) No.146 of 2017 respective costs in the appeal. The parties shall appear before the tribunal on 1.2.2018.
sd/-
K.HARILAL Judge sd/-
A.M.BABU Judge sks/21.12.2017 True copy P.A. to Judge