Kerala High Court
The State Of Kerala vs Mini on 11 January, 2022
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
Tuesday, the 11th day of January 2022 / 21st Pousha, 1943
CM.APPL.NO.1/2021 IN MFA NO. 8 OF 2021
OA 31/2010 OF COURT OF THE KERALA FOREST(VESTING AND MANAGEMENT ECOLOGICALLY
FRAGILE LANDS) TRIBUNAL, PALAKKAD
PETITIONERS/APPELLANTS:
1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO THE GOVERNMENT
OF KERALA, THIRUVANANTHAPURAM.
2. THE PRINCIPAL CHIEF CONSERVATOR OF FOREST, KERALA,
THIRUVANANTHAPURAM.
3. RANGE OFFICER OLAVAKKODE RANGE, OLAVAKKODE, PALAKKAD.
RESPONDENT/RESPONDENT:
MINI, W/O.JOSEPH, RESIDING AT KANJIRAMKUZHY, KALLADIKKODE,
MANNARKKAD TALUK, PIN- 678 956.
MINI, W/O.JOSEPH, KANJIRAMKUZHY HOUSE, KANJIKULAM (POST),
KALLADIKKODE, PALAKKAD - 678 956.
*THE ADDRESS OF THE RESPONDENT IS CORRECTED AS PER ORDER DATED
13.09.2021 IN IA NO.3/2021.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 933 days in filing the above MFA.
This Application coming again for orders upon perusing the
application and the affidavit filed in support thereof,upon perusing this
Court's order dated 14.12.2021 and upon hearing the arguments of SPECIAL
GOVERNMENT PLEADER, SHRI.NAGARAJ NARAYANAN, Advocate for the applicants
and of SARATH M.S and B.PREMNATH Advocates for the respondent, the court
passed the following:
P.T.O
ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
=========================================
C.M Application No.1 of 2021
in
M.F.A (Forest) No.8 of 2021
[arising out of the order dated 10.04.2018 in O.A No.31/2010
on the file of the Kerala Forest (Vesting & Management of
Ecologically Fragile Lands) Tribunal, Palakkad],
C.M Application No.1 of 2021
in
M.F.A (Forest) No.25 of 2021
[arising out of the order dated 25.09.2018 in O.A No.30/2010 on the file of the
Kerala Forest (Vesting & Management of
Ecologically Fragile Lands) Tribunal, Palakkad]
&
M.F.A (Forest) Nos.8 & 25 of 2021
=========================================
Dated this the 11th day of January, 2022
ORDER
CMA No.1/2021 in M.F.A(Forest) No.8 /2021 Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) appearing for the applicants in the CMA/appellants in the MFA and Sri.B.Premnath, learned counsel appearing for the sole respondent in these applications/appeals.
2. These are applications filed to condone the delay in filing the MFAs. The delay involved in the institution of MFA (Forest) No.8/2021 is 933 days. Whereas, the delay involved in the institution of MFA (Forest) No.25/2021 is 796 days. The plea for delay condonation application has been strongly opposed by Sri.B.Premnath, learned W.A Nos.8 & 25 of 2021 2 counsel appearing for the respondents. We have heard both sides in extenso and have gone through the pleadings and materials on record.
3. The affidavit filed in support of the delay condonation application in MFA No.8/2021 would reveal the following aspects :
The impugned order was rendered by the Forest Tribunal in that case in O.A No.31/2010 on 10.04.2018 as per the provisions contained in the Kerala Forest (Vesting & Management of Ecologically Fragile Lands). The application for grant of certified copy of that order was made by the District Government Pleader on 18.04.2018 and the copy was ready on 11.05.2018 and the date notified to receive the copy was 16.05.2018 and the certified copy of the order was delivered on 14.05.2018. The appeal in that case should have been filed on or before 14.08.2018. Further that, the District Government Pleader after consideration of the case file and after discussion with the officials concerned, had furnished his legal opinion as per letter dated 19.06.2018 to the Range Officer concerned, who in turn has submitted the matter filed before the Divisional Forest Officer (DFO). Thereafter, the DFO after consideration of the matter and after discussion with the officers concerned, had ordered to file appeal and the office of the DFO had forwarded the case file to the office of the Advocate General, Kerala, Ernakulam requesting to file appeal as W.A Nos.8 & 25 of 2021 3 per letter dated 23.06.2018. The file was received in the office of the Advocate General on 31.07.2018. It appears that there are only two Special Government Pleader who are assigned in relation to Forest Department. That the learned Advocate General had allotted the case file to the Special Government Pleader (Forests) to examine the scope of appeal against the impugned order of the Tribunal. The Special Government Pleader (Forests) made certain queries regarding the lie and nature of the disputed property and had instructed the officials concerned to furnish the details and documents. That, due to heavy workload, he could not peruse the file immediately for preparing the appeal. Later, the Special Government Pleader had instructed the DFO to furnish the documents related to this case and sought assistance of the official, who is well conversant with the facts of this case and the DFO had then later deputed the Forest Ranger Officer, for necessary assistance and documents were furnished thereafter. While so, due to health reasons, the Special Government Pleader (Forests) was having problems in relation to cervical disc prolapse in the neck area, for which he was wearing cervical hard collar and hence, he was not in the position to take up the matter for discussion with the officials concerned upto April, 2019. This Court was on summer vacation for the period from the W.A Nos.8 & 25 of 2021 4 second week of April, 2019 upto the third week of May, 2019. The learned Special Government Pleader concerned was then undergoing traditional Ayurveda treatment for the neck problem and he could resume duty only by the last week of May, 2019. Due to the overload of work and pendency of cases, which are to be done by only two Special Government Pleaders, he was not in a position to immediately attend to the aspects regarding the filing of the appeal in this case. By that time, it appears that the respondent herein/original applicant had preferred a Writ Petition (Civil) before this Court, in which a judgment was rendered on 03.12.2020 for restoration of the very same subject property, presumably on the ground that the verdict of the Tribunal has not been challenged in appeal. Later, the respondent herein had also filed a contempt of court case, arising out of the judgment in the said W.P(C).
The learned Special Government Pleader was of the opinion that meticulous care should be observed to ascertain the correct factual aspects regarding the identity and lie of the property and its boundaries and therefore, some of the documents insisted by him were not immediately made available to him. While so, the custodian of the Ecologically Fragile Lands (EFL) by letter dated 02.12.2019 addressed to the learned Advocate General, had pointed out about the urgency of W.A Nos.8 & 25 of 2021 5 filing appeal in this case. The learned Advocate General had sent a letter dated 09.12.2019 instructing the custodian of EFL to depute the competent officer with connected records to meet the learned Special Government Pleader urgently. Thereafter, two rounds of discussion had to be undertaken by the learned Special Government Pleader (Forests) with the Divisional Forest Officer, Mannarkkad and the Range Forest Officer, Mannarkkad and the Field staff of the Forest Department during the months of December, 2019 and January, 2020 on the nature of the boundaries and the Advocate Commissioner's plan and in relation to the vegetation status reported in the expert report of the botanist. That due to these reasons, the learned Special Government Pleader could not prepare the appeal until the third week of March, 2020. By that time, countrywide lockdown was declared due to Covid-19 pandemic issues since the third week of March, 2020. Since the delay condonation application has been stoutly and very strongly opposed by Sri.B.Premnath, learned counsel appearing for the respondent, we are specifically queried to Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) about the factual aspects relating to the filing of the appeal, etc. We have been apprised by Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) that due to W.A Nos.8 & 25 of 2021 6 heavy overload of work and due to Covid-19 pandemic issues, the office of the Advocate General was also working partially and steps could not be taken to file the appeal during the heavy pandemic period. Further that when the drafting of the appeal had started, his personal staff was found tested with Covid-19 and the said staff had been quarantined. The learned Special Government Pleader was also treated as primary contact, etc. and that the office of the Advocate General was working only with skeleton staff. Further, the learned Special Government Pleader (Forests) has pointed out that the Government has also issued orders that the Government personnel may function only on a minimal basis and that such orders of the Government has also been forwarded by this Court on the administrative side in relation to the functioning of the staff attached to the Court, etc. Further, we see that the partial lockdown was upto the last week of May, 2020. Due to shortage of staff, more particularly, stenographers, drafting work could not be completed. Further that the matter was again taken up by the learned Special Government Pleader. At that point of time, due to heavy workload faced by the learned Special Government Pleader, the file was directed to be submitted before the learned Senior Government Pleader in the second week of August, 2020 and he also W.A Nos.8 & 25 of 2021 7 found that several factual clarifications are required to know the details of the location, lie and boundaries of the scheduled property. In order to get a clarity, the learned Senior Government Pleader had visited the scheduled property on 25.10.2020 along with the Forest Range Officer- cum-Liaison Officer. At that point of time, the learned Senior Government Pleader has found that there is scope for appeal. The preliminary appeal was drafted on 30.12.2020 and the final draft was ready on 06.11.2020. Thereafter, time was taken for approval and necessary procedures in the office of the Advocate General and after complying with the necessary procedural formalities, the appeal was filed [MFA (Forest)No.8/2021] on 22.01.2021. Whereas, the sole respondent has filed a counter affidavit and an additional counter affidavit to strongly oppose the plea for delay condonation application. We have also gone through the affidavits filed by the respondent in this case. The learned Special Government Pleader would point out that certain crucial aspects have not stated in the affidavit filed in support of the delay condonation application and that the present forest division was faced with a series of man and animal conflict issues and the DFO and the sub-ordinate officers were always on the guard to intervene in such situation, as the local people were getting agitated. Further that the W.A Nos.8 & 25 of 2021 8 organizational structure of the Forest Department is such that, the forest officers concerned have to deal not only with the aspects relating to litigation, but also in relation to various other duties like protection, perambulation, detection of offences, dealing with vital issues of man and animal conflict, etc.
4. The delay involved in MFA (Forest) No.8/2021 is 933 days i.e. for the period from 14.08.2018 upto 22.01.2021. The national lockdown issues came up by the second/third week of March, 2020. The period from 14.08.2018 (the date on which the appeal should have been filed in the first case) upto 15.03.2020, commencement of lockdown issues, etc. would come to about 619 days. The Apex Court has issued the initial order in March, 2020 in Suo Motu Writ (Civil) No.3/2020 titled 'In Re Cognizance for Extension of Limitation', whereby orders have been passed in the matter of extension of limitation as well as for exclusion of time and for condonation of delay, etc. The said extended period was upto 02.10.2021. A Two Judge Bench of the Apex Court has recently rendered order dated 04.01.2022 in SLP (Civil) No.17927/2021, wherein it has been inter-alia ordered in para.2 thereof that, even as held by the Apex Court in the subsequent orders referred to therein, even the period of limitation could have been extended and/or condoned W.A Nos.8 & 25 of 2021 9 by the Tribunal/Court is excluded and/or extended even upto 02.10.2021. Further, a Three Judge Bench of the Apex Court has very recently passed an order dated 10.01.2022 in Miscellaneous Application No.21/2022 in Miscellaneous Application No.665/2021 in Suo Motu Writ Petition (C) No.3/2020 in the matter of cognizance for extension of limitation. The initial order rendered in March, 2020 by the Apex Court, will stand restored and in continuation with the subsequent order dated 08.03.2021, 27.04.2021 & 23.09.2021, it is directed that the period from 15.03.2020 upto 28.02.2022 shall stand excluded for the purpose of limitation, as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings, etc.
5. After hearing both sides, we are of the view that the period of delay involved in this case at least from 15.03.2020 should have to be treated liberally and quite distinctively from the period prior thereto, as far as the condonation of delay in this case is concerned. This is on account of Covid-19 pandemic issues and various orders passed by the Apex Court in the matter as referred to hereinabove. Further, the Full Bench of this Court has also passed such similar orders in the matter of extension of limitation, etc. due to Covid-19 pandemic issues.
6. In order to ascertain as to whether these appeals have some W.A Nos.8 & 25 of 2021 10 substance in the matter or whether the State is litigating only for the sake of technical litigation, we had also heard both sides on those issues as well. We have also perused through a detailed order rendered by a Division Bench of this Court on 10.12.2021 in C.M Application No.1/2020 in a similar case in MFA (Forest) No.127/2020 involving the Forest Department. In that case, we are apprised by the learned Special Government Pleader (Forest) that the appeal in that case was filed after the commencement of the Covid-19 pandemic issues and the total delay involved in that case was 1230 days and the delay involved from the date on which the appeal ought to have been filed upto the commencement of the Covid-19 pandemic issues was about 969 days. The Division Bench of this Court, after considering various case laws, held that the appeal should not be dismissed at the admission stage merely on account of delay issues and that the interest of justice could be sub-served by directing that the delay involved in that case, will stand condoned subject to payment of cost of Rs.6000/- by the applicants therein to the respondent therein, which was directed to be paid within two weeks. A Division Bench of this Court has held as follows in para.16 of the order dated 10.12.2021 in C.M Application No.1/2020 in MFA No.127/2020 as follows :
W.A Nos.8 & 25 of 2021 11 "16. In M.C.Mehta v. Kamal Nath [(1997) 1 SCC 388] a Two-JudgeBench 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.
Out 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."
7. We have also perused through a detailed judgment of a Division Bench of this Court in the case in Niyamavedi v. Union of India [2003 KHC 1338 = 2004 (1) KLJ 68 = AIR 2004 Ker.81], wherein in successive litigations on the same matter, the State had lost althroughout from the Forest Tribunal, this Court both in appeal and review as well as before the Apex Court in the SLP. Later, in contempt proceedings the land was also restored back to the claimant by the Forest Department. Later, member of the local public had agitated, stating that the successful litigation in favour of the applicant therein was on account of collusion. Later, certain public interest litigations objected to the enjoyment of the land by the claimant and W.A Nos.8 & 25 of 2021 12 urge that fraud has been committed in the process, etc. and had approached this Court by filing a petition before this Court to review and re-call the impugned verdict of this Court. The Division Bench of this Court has held as follows in para Nos.8 & 14 thereof, which reads as follows :
"8. We may indicate the issue raised in O.P.No 20946 of 1997 is a classic struggle between members of the public who would like to preserve forest and those charged with administrative responsibilities and the property grabbers. Necessity for preserving natural resources such as rivers, forests, seashores, air etc. for the purpose of protecting the ecosystem was highlighted by the apex court in M.C.Mehta v. Kamalnath and others (1997 (1) SCC 388). The apex court held as follows:
"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."
State in order to preserve and manage ecological balance on the land has issued the Kerala Forest(Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001. State has also issued notification on preservation of trees in the land which was handed over to the applicant. Under the Forest (Conservation) Act, 1980 no forest land could be used for non forest purposes without the prior approval of the Central Government. We are therefore of the view that State Government or the Forest Department have no power to hand over evergreen forest to the applicant in order to get over the contempt of court proceeding. The course adopted by the State would have far reaching consequences and the State will be divested of evergreen forest. On facts we are convinced what has been handed over to the applicant is not the land he had claimed in O.A.No.247 of 1979 on the strength of document No.2685 of 1968 but evergreen forest. We are therefore inclined W.A Nos.8 & 25 of 2021 13 to allow R.P.No.496 of 2000 and review the judgment of this court in C.C.C. No.274 of 1997. Consequently O.P.No.20946 of 1997 and O.P.No.18447 of 1997 would also stand allowed. Possession given on the basis of Exts. A 12 and A 13 of the forest land to the applicant would stand set aside. State would take immediate steps to take possession of the land which has already been handed over to the applicant.
XXX XXX XXX XXX XXX XXX
14. We are of the view, the above mentioned vital facts were not taken into consideration by the Division Bench while examining the question whether delay could be condoned or not though these facts were made known to the court when the delay petition came up for consideration. The Division Bench has proceeded as if there was a delay of more than 7 years, 8 months and 26 days in filing the petition. It may be noted that if it all there was delay, the delay was only from 14, 1983 onwards, that means there was a delay of only three years. Since we are convinced that material facts were suppressed before the Tribunal and before this court and that fraud has been practiced by the applicant by misrepresenting facts we are inclined to suo motu condone the delay in filing R.P.No.17 of 1991. We do so in exercise of powers conferred under Art.215 of the Constitution of India. The decision of the Supreme Court in M.M.Thomas v. State of Kerala (2000 (1) SCC 666) and the decision of the Division Bench of this court in State of Kerala v. Joseph (2002 (2) KLT 847) lend support to our decision. Since we have condoned the delay suo motu, R.P.No.17 of 1991 would stand restored. Consequently the dismissal of the second review petition is of no consequence."
8. Taking into account the necessities of the public interest involved in that case, the Division Bench of this Court had condoned the delay and had re-called the impugned verdict and had considered the matter afresh. We are apprised by the learned Special Government Pleader that the said verdict of this Court rendered on 10.07.2003 in the case in Niyamavedi v. Union of India [2004 (1) KLJ 68], was also W.A Nos.8 & 25 of 2021 14 the subject matter of consideration of an SLP filed by the claimant which was rejected by the Apex Court in the case in Hamza Haji v. State of Kerala & anr. [2006 (7) SCC 416]. We have gone through the verdict of the Division Bench of this Court in Niyamavedi's case supra, only to appreciate that in cases where public interest is involved, especially in relation to Forest Land, etc., then this Court can condone the delay for good grounds and in public interest, etc. Hence, after hearing both sides, we are of the view that taking into account the aspects made out in this appeal, it may not be right and proper for this Court to reject the appeal at the threshold merely on account of rejection of the delay condonation application. We have also gone through the recent judgment rendered by a Three Judge Bench of the Apex Court on 08.12.2021 in the case in The Director of Indian System of Medicine & anr. v. Dr.Susmi.C.T & anr. in the Civil Appeal, arising out of SLP (Civil) Nos.24214-24221 of 2019 reported in [2021 SCC online 1188], wherein it has been observed by the Apex Court in para.23 that the approach of the High Court in that case to dismiss the original petition filed by the State on account of delay and laches, in as much as the said petition was filed by the State, on account of the delay therein, cannot be appreciated by their Lordships of the Apex Court and that the W.A Nos.8 & 25 of 2021 15 approach of the High Court to put it mildly is rather cavalier, etc. Due to various reasons, the State litigative machinery, may not necessarily be very efficient, in many a case. Where, there is substance in their appellate or further litigative proceedings, it is not as if the delay condonation is to be made rather mechanically, but larger issues of public interest could also be taken into account. That does not mean that the State should be given freedom to sleep over the rights and approach the Court at any time they desire. In such case, the delay condonation application will have to be considered subject to payment of costs. The cost that was directed to be paid by the Division Bench in the case in MFA No.127/2020, as per order dated 10.12.2021 mentioned hereinabove for the period of 969 days after excluding the Covid period was Rs.6,000/-. In MFA No.8/2021, the delay period after excluding the period commencing from second week of March, happens to be 619 days. Hence, we are of the firm view that it will be against public interest, if we shut out the appeal of the State illimine, at this stage, merely on account of delay and the ends of justice would be subserved if the delay involved in this case is condoned subject to payment of cost of Rs.6,000/- by the applicants to the respondent herein within a period of two weeks. Hence, it is ordered that the delay involved in filing MFA W.A Nos.8 & 25 of 2021 16 No.8/2021 will stand condoned, subject to the appellants/applicants herein paying cost of Rs.6,000/- to the respondent, which they may pay either directly to the respondent or to the learned counsel for the respondent herein, within two weeks and shall obtain receipt evidencing payment of such cost.
CMA No.1/2021 in MFA(Forest) No.25 /2021 The delay involved in this case is upto 796 days. The total involved in this case is for the period from 24.10.2018 upto 15.02.2021 is 796 days. The period involved from 24.10.2018 upto 15.03.2020 (the date of commencement of the Covid-19 pandemic issues, etc., will come to about 477 days.
2. Here also, detailed factual aspects are stated by the State in their affidavit filed in support of the delay condonation application. The respondent has also strongly and stoutly opposed the plea for delay condonation application by filing counter affidavit. The factual aspects in this case for delay condonation is broadly similar to the former case. Paras 3 to 7 of the affidavit dated 08.02.2021 filed by the State in support of the delay condonation application in MFA (Forest) No.25/2021 reads as follows :
W.A Nos.8 & 25 of 2021 17
"3. The impugned order in the above case was passed on 25.09.2018 and application for the certified copy was originally filed on 10.10.2018 and the certified copy was delivered based on the said application. Subsequently the same was placed before the District Government Pleader and the certified copy was communicated to the Divisional Forest Officer. The Divisional forest Officer has sought for legal opinion of the Advocate General. While so the Divisional Forest Officer sought for conference with the Special Government Pleader (Forests). As the Special Government Pleader was held up with long pending works, appointment for conference could be fixed only in July 2019.
4. While so, the writing in the certification on the certified copy of the order got mutilated by spreading of ink through contact with moisture and the dates on which the certified copy was ready and delivered got mutilated and could not be seen. Hence the Divisional Forest Officer had to apply through the Government Pleader for a fresh certified copy. Hence fresh certified copy of the order was applied for on 25.07.2019 and the copy of the order was ready on 13.08.2019 and date notified for appearance to receive the copy was fixed as 17.08.2019. The certified copy of the order was received on 13.08.2019. Thereafter, the Divisional Forest Officer again sought the legal opinion of the Special Government Pleader, EFL Tribunal, Palakkad vide letter dated 09.10.2019 and the Special Government Pleader vide letter dated 07.11.2019 addressed to the Divisional Forest Officer gave legal opinion stating that it is fit case for filing appeal on the ground that the EFL Tribunal ought to have dismissed the OA 30/2010 on the ground of absence of jurisdiction. Consequently, the Divisional Forest Officer vide letter dated 28.11.2019 forwarded the case to the Advocate General Office for follow up and requested the Advocate General to take urgent steps to file appeal before the Honourable High Court.
5. Thereafter, the Advocate General on 05.12.2019 allotted the file to Special Government Pleader (Forests) to examine the scope of appeal against the impugned judgment. On receipt of the file the Special Government Pleader (Forests) made certain queries regarding the lie and nature of the disputed property and orally instructed to furnish details and documents. Further the Special Government Pleader (Forests) vide letter dated 29.02.2020 had requested Divisional Forest Officer, Mannarkkad to furnish the certain documents including the depositions of witnesses and the entire back file of the OA. Further assistance of the officer who was conversant with the fact of the case was also sought by the Special Government W.A Nos.8 & 25 of 2021 18 Pleader (Forests) and the DFO deputed the Range Forest Officer for necessary assistance and documents were furnished thereafter by the Range Forest Officer vide letter dated 18.03.2020. The Special Government Pleader (Forests) had sought for a conference with the Range Forest Officer during April, 2020 in the matter.
6. While so due to Covid 19 pandemic complete lockdown commenced from 24.03.2020 which was in force up to the last week of May, 2020. Thereafter also there were restrictions in the number of staffs in the government offices including Advocate General's Office. Due to day to day work and shortage of stenos, the drafting work had accumulated. The Special Government Pleader was not in position to draft the appeal.Due to heavy work load as per the direction of the Special government Pleader the file were submitted before the Senior Government Pleader attached with him in the 2 nd week of August, 2020. He perused the file and several clarifications were sought by the Senior Government Pleader from the officers concerned in relation to the location and lie and boundaries of the schedule property. In order to get more clarity, on 25.10.2020 the Senior Government Pleader visited the schedule property along with Forest Range Officer/Liaison officer attached with Forest Liaison Office, Advocate General Office and found that there is ample scope for appeal. After rounds of discussion, the preliminary draft of the appeal was ready by the 2nd week of January, 2021 and the final draft was ready by the last week of January, 2021. Thereafter, time was taken for approval and necessary procedures in the Advocate General Office and for complying with the procedures in filing the appeal including getting the signature.
7. The disputed area is protected as Private Forest and has been finally adjudicated as private forest and having all the features of 'forest' as defined under the Forest Conservation Act as defined in Godavarman Thirumulpad vs. Union of India (1997 (2) SCC 267). The land in dispute had already been the subject matter of litigation under the Kerala Private Forests (Vesting & Assignment) Act and has been found to be private forest by this Honourable Court. The OA was filed by the applicant supressing these facts and by resorting to fraudulent involved."
3. Similar factual aspects are highlighted in the counter affidavit filed by the respondent to oppose the delay condonation W.A Nos.8 & 25 of 2021 19 application. The learned Special Government Pleader has also pointed out that certain crucial aspects relating to previous litigations involving the predecessors-in-interest of the applicant/claimant has not been disclosed in the original application before the Tribunal. Further that, it is pointed that it has been asserted in the written statement filed by the respondents in the original application before the Tribunal that the scheduled property, is not a ecologically fragile land, but the said property is a vested forest. Further that, in the written objections filed before the Tribunal to the Advocate Commissioner's report in this case, the details of the previous litigation has also been highlighted. It has been asserted by the respondents that the subject property is a vested forest and not an ecologically fragile land and the application for restoration filed as to the provisions of the law relating to the ecologically fragile lands itself is not maintainable, etc. Further that, the subject property in this case and the subject property involved in MFA (Forest) No.25/2021 and the subject property involved in MFA (Forest) No.8/2021 are owned by spouses and both the said properties have same survey numbers, etc.
4. Taking into account the overall aspects of the facts of the case, we are inclined to hold that it may not be right and proper for this W.A Nos.8 & 25 of 2021 20 Court to altogether shut the case of the State by dismissing this appeal at this stage, merely on delay issues. Taking into account the various aspects of the case, we feel that the ends of justice would be subserved by ordering that the delay involved in this case, will stand condoned subject to payment of cost of Rs.5,000/- (Rupees Five Thousand only) to the respondent herein. The said cost amount may be paid either directly to the respondent herein or through the learned counsel for the respondent herein, within a period of two weeks.
With these observations and directions, both the delay condonation applications in these two appeals, will stand disposed of. MFA (Forest) No.8/2021
& MFA (Forest) No.25/2021 Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) presses that this Court may immediately admit these appeals and may consider the stay applications and may grant the stay order. That otherwise, the Divisional Forest Officer, etc. have been summoned to personally appear in the contempt proceedings before the learned Single Judge, arising out of the contempt case, COC No.294/2021 arising out of W.P(C) No.16640/2020, in which it was directed that the subject property involved in these MFAs should be restored by the Forest Department to the claimant, in as much as the verdict of the Tribunal W.A Nos.8 & 25 of 2021 21 has not been interdicted by stay, etc. by the appellate court.
2. Sri.B.Premnath, learned counsel appearing for the respondent in these two cases would submit on the basis of instructions that his party will not press for the contempt proceedings, until orders are passed on the stay applications. Accordingly, it is ordered that the further proceedings in that contempt case will stand deferred, until orders are passed by this Court in the present stay applications.
3. Both sides will make available copies of the original applications, written statements, copy of the Advocate Commissioner's report as well as written objections filed to the Advocate Commissioner's report, in these two cases etc., within ten days.
List on 08/02/2022.
Hand Over Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
VIJU ABRAHAM, JUDGE
vgd
11-01-2022 /True Copy/ Assistant Registrar