Kerala High Court
Chief Secretary And Ors. vs Mathai Kuriakose And Ors. on 19 February, 1988
Equivalent citations: AIR1989KER113, AIR 1989 KERALA 113, ILR (1988) 2 KER 494, (1988) 2 KER LT 221, (1988) 22 REPORTS 28, (1988) ILR(KER) 2 KER 494, (1988) 1 KER LJ 628
JUDGMENT
1. If this second appeal is illustrative of the general pattern of the conduct of litigation relating to forest areas, it should cause much anxiety and concern for all connected with conservation of the forests obligated by the Constitutional scheme. The facts speak for themselves.
2. The State has filed this second appeal. It arises out of a suit for injunction in which it and its officials were defendants. The respondents-plaintiffs, three in number, are encroachers in about six acres of forest area, quite close to a timber depot of the Forest Department. There suit for injunction restraining the State Government and its officials from acting against them has been decreed by the Courts below. The State Government has therefore come up in second appeal.
3. The suit was filed with a specific allegation that the area encroached upon was revenue puramboke and not reserve forest area. Encroachment was equated with possession; and possession should be protected by courts. That appears to be the pattern of the plea in this and other cases. In the written statement, it was contended that the area was a reserve forest. (The statutory consequences of that plea appear to have been missed by the courts below).
4. On the side of plaintiff, four witnesses including the plaintiff were examined An advocate commissioner appointed in that behalf submitted a report and plan. Exts. A1 and A2 are judgments of the Additional First Class Magistrate's Court, Moovattupuzha, the former dt. 16-4-1970 in C. C. 130/1969 and the latter dt. 29-6-1972 in C. C. 193/1970. They evidence infructuous exercise of the forest officials to prosecute the encroachers. The plaintiffs had approached this Court by filling O. P. 787 of 1973 seeking to prevent the forest officials from taking steps against them. This court disposed of that writ petition by Ext. A3 judgment dt. 25-3-1975, directing the Conservator of forest to consider the nature of the land and enquire into entitlement of the petitioners to the benefits of G. O. (P) 289 Agri 7-6-1968. The plaintiffs apparently were pessimistic about the result of the enquiry- They filed the suit. In the plaint, they referred to an order of the Conservator passed on 10-5-1976, and alleged that, based on such a report, the forest officials were likely to take action against the plaintiff.
5. Defendants contended that in pursuance of the directions of this Court, an enquiry had been conducted by the Conservator of Forest and that the plaintiffs were found liable to be evicted. It was also claimed that on 7-6-1976, the plaintiffs were actually evicted and that a mahazar in that behalf had been prepared by the forest officials. The suit for injunction was of no avail in the above circumstance, was the further contention of the defendants.
6. The plaintiffs gave up their case about the area being revenue puramboke. It was later contended that the area encroached upon was a part of the reserve forest area Even when the substratum of the plaint had thus been demolished by the stand of the plaintiffs, the trial Court granted an injunction. It held that relief could be granted on a different plea. Reliance was placed on a decision of this Court in Lakshmikutty Amma v. Narayana Pillai Velayudha Pillai, AIR 1968 Kerala 57 and the decision in Indermal v. Ramprasad, AIR 1970 Madh Pra 40.
7. The trial Court further held that the defendants were entitled to protection of G.O. (P) 289 Agri. dt, 7-6-1968, though that document was not before that Court, and though the plaint did not contain any relief based thereon. That Court noted a mahazar filed before the Court indicating the eviction of the defendants in 1976; but it refused to act on it on the ground that the mahazar had not been proved. (Its existence had been admitted by the plaintiffs themselves).
8. The appellate Court endorsed that view.
9. It is under the above auspices that the State Government has come up in second appeal before this Court.
10. The question for consideration is whether having regard to the above facts, the Courts below were justified in decreeing the suit for injunction.
11. The basic and fundamental principle could not be in doubt. It was laid down more than a century back by the Privy Council in Eschenchunder Singh v. Shamachurn Bhutto, (1866-67) 11 Moo App 7 (PC). The caution to the Courts was administered with great force and lucidity by that decision. The possible pandemonium in the adjudicatory process, resulting from a digression from that straightforward rule, was expressed thus :
"It will introduce the greatest amount of uncertainty into judicial proceedings if the final determination of causes is to be founded upon inferences at variance with the case that the plaintiff has pleaded, and, by joining issue in the cause, has undertaken to prove........ They desire to have the rule bserved, that the state of facts, and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from........."
The later observations as contained in Haji Umar v. Gustadji Muncherji Cooper, AIR 1915 PC89, where Viscount Haldane observed that in applying such a principle the whole of the circumstances must be taken into account and carefully scrutinised, and that the question was in ultimate analysis oneof circumstances and not of law, do not whittle down the force of the earlier observations.
12. It is therefore evident that the Court cannot grant relief to the plaintiff on a basis for which there was no foundation in the pleadings and on a plea which the defendant was not able to call upon, nor had an opportunity, to meet. If this is the general rule, that should ordinarily be applied to a case. An exceptional or extraordinary situation, should not be readily accepted Many conditions are necessary before resorting to the exceptional or extraordinary situation. An exceptional situation would arise, if, among others, the following conditions are satisfied : (1) The alternate case was one with the plaintiff could have made. (2) Such a case had been admitted by the defendant in his written statement. (3) No injustice could possibly result to the defendant by resort to suc1/2 an exceptional treatment. These are explicit from the decision of the Supreme Court in Firm Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177 relied on by the trial Court itself.
13. A recapitulation of the facts of that case, would bring home the correct legal position. The observation in a judgment cannot be read divorced from the facts. The case before the Supreme Court was one where a suit was filed for specific performance of an agreement. A payment of a substantial sum by way of advance was alleged in the plaint. The defendant, while repudiating the agreement for sale, admitted the receipt of the sum. He attempted to explain it as a borrowal of money pure and simple, without any appended agreement for sale. The concurrent findings that there was no agreement for sale as pleaded by the plaintiffs were not disturbed by the Supreme Court. The trial Court, while declining the relief of specific performance allowed a relief by way of recovery of the amount received by the defendant, as admitted in his own written statement. This direction of the trial Court was upset by the High Court on the ground that there was no specific plea, nor relief, for the return of the money. The situation, demonstrably was an unjust one, as it appeared to the Supreme Court. There was no controversy on the question of payment of money by the plaintiff and the receipt thereof by the defendant. That it was by way of borrowing was the further admission of the defendant himself. In such a situation, an obligation for repayment did arise on the admission of the defendant himself. Decreeing a repayment would be in consonance with justice, in such circumstances. Denying recovery of the amount which the defendant admitted as having been received, would be defeating the ends of justice. In such a situation, a mere technicality of there not being a specific plea and a specific relief, should not be allowed to prevail over substantial justice. This is all what the Supreme Court held by restoring the decree of the trial Court which, while refusing the specific performance, granted relief of payment back of the money paid by the plaintiff and admittedly received by the defendant
14. It is unfortunate, that the later decisions of the Supreme Court on this aspect, had escaped the notice of the Courts below. There is an elaborate discussion on that aspect in Mohan Lal v. Anandibai, (1971) 3 SCR 929 : (AIR 1971 SC 2177). The Supreme Court observed in that case :
" On the face of it, there was no justification for the trial Court to go into this question and record this finding when there were no pleadings in respect of it and, even during the course of trial, evidence was not led with the object of meeting such a plea. The first appellate Court committed a similar error in affirming this finding recorded by the trial Court."
Some of the other decisions are Kedar Lall Seal v. Hari Lall Seal, 1952 SCR 179 : (AIR 1952 SC 47), Nagubai Ammal v. B. Shama Rao, 1956 SCR 451 : (AIR 1956 SC 593), Kunju Kesavan v. M. M. Philip, I.C.S., (1964) 3 SCR 634 : (AIR 1964 SC 164) and Union of India v. Khas Karanpura Colliery Co. Ltd., (1968) 3 SCR784 : (AIR 1969 SC 125). The principle was stated that when parties had gone to trial consciously on that question that question and had given evidence, relief may not be withheld merely for the omission in the pleadings. Again, in Bibi Saddiqa Fatima v. Saiyed Mohd Mahmood Hasan, (1978) 3 SCC 299 : (AIR 1978 SC 1362), the very decisions of the Supreme Court in Srinivas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177, and Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593 were considered. After referring to AIR 1951 SC 177 supra, the case under consideration was distinguished with the observation :
"In the instant case, there is no question of giving any alternative relief to the plaintiff. The relief asked for is one and the same. The plaintiff claimed that she had acquired the property with her personal funds. The defendant successfully combated this case. He had not said anything on the basis of which any alternative relief could be given to the plaintiff. The facts of the case of Nagubai Ammal (supra) would clearly show that the decision of this Court does not help the appellant at all."
This decision rendered in 1978, had also not been brought to the notice of the Courts below. Consequently, the Courts misdirected themselves on the legal position, which turned out to the detriment to the State.
15. The admitted and proved facts would show the following: The plaintiffs are trespassers into Government land. They do not pretend to have any legal title over the lands in question. The forest officials initiated the legal proceedings to protect the forests by invoking the provisions of the Forest Act. They failed on technical grounds. The plaintiffs approached the High Court with a plea that the land was forest and that they were entitled to the benefits of the Government Order, G.O. (P) 289 of 1968. The High Court did not decide the question. It directed the authorities to look into the question after affording the plaintiffs an opportunity in that behalf. Such an opportunity was granted but not availed of. The finding of the competent official was that the plaintiffs were not entitled to the benefits of the Government Order. This fact was suppressed in the plaint and in the petition for injunction. The pleading, in the suit was an altered one; that the land in question was revenue or puramboke land and not forest land. That was disputed by the defendant. The plaintiffs could not establish that the land was puramboke land. In that situation, the defence should have been upheld and the suit dismissed.
16. The Government Order on which the plaintiff relied on had not been produced before the Court. Its contents were unknown to the Courts. There was no admission on the part of the defendant that on the basis of such a Government Order, the plaintiffs would be entitled to reliefs. The order contains very many pre-conditions and some exceptional situations. There was no material to indicate whether the pre-conditions had been satisfied or the exceptional positions were attracted When the situation was such, the only course open to the Courts is to nonsuit the plaintiffs. The principles of the decisions discussed above, would not in any way aid the plaintiffs to claim reliefs against the State and its officials.
17. The plaintiffs are disentitled to the relief of injunction for another important ground as well. They have conducted themselves in a reprehensible manner in the conduct of this litigation. They have deliberately misled the Court by suppressing material facts and by projecting false statements as true. False averments have been made in the plaint and in the petitions. Perjury has been freely resorted to. It is well settled that parties guilty of such conduct cannot get reliefs from a Court of law. The corridors of Courts are not luxury resorts for anti-social elements, with sinister designs and shady dealings.
18. The plaintiffs had invoked in 1973 the extraordinary jurisdiction of this Court under Article 226 of the Constitution and complained about an unauthorised attempt on the part of the forest officials to evict them. The writ petition is O.P. 787 of 1973. Under Ext A-3 judgment dt. 25-3-1975, this Court directed the Divisional Forest Officer to dispose of their claim. According to the Courts below, the direction issued by the High Court, had not been properly complied with. The following observations contained in para 7 of the trial Court judgment are particularly relevant in that context :
"It has to be remembered here that the plaintiffs alleged in the plaint and also in their evidence that the Conservator of Forests, Industrial Plantation Division, Perumbavoor did not make any enquiry at all and he did not give an opportunity to the plaintiffs to adduce evidence on their side and the alleged order passed by him is one cooked up by the officials for evicting them from this property. In the light of the contention, the defendant ought to have adduced strong and clinching evidence and proved the fact that a proper enquiry was held as directed by the High Court and the plaintiffs were given sufficient opportunity to prove their case. This has not been done."
The appellate Court too had the same feeling. The following is the extract from the appellate judgment :
"In support of the defendants' case that the plaintiffs were evicted by them on 7-6-1976 they have produced Ext. A-4 which is the copy of the order dated 10-5-1976. The plaintiffs case is that they have not been informed of the intended enquiry, to be conducted by the Conservator of Forests, Industrial Plantation Circle, Perumbavoor. in compliance with the order of the Hon'ble High Court in O.P. 787/73. In Ext. A-4 order it is stated that as directed by the Hon'ble High Court the enquiry was fixed to be conducted on 27-10-1975 with due registered notices to the plaintiffs and they were asked to be present in the office of the Enquiry Officer with the relevant records to prove their claim. It is further stated in Ext. A-4 order that in fact the plaintiffs appeared before the Enquiry Officer and gave a statement which was recorded by him. But the alleged recorded statement of the plaintiff is not seen attached to or referred to in Ext. A-4 order. The plaintiffs would allege that they have not been given any notice regarding the enquiry said to have been made by the Conservator of Forests, Industrial Plantation Circle, Perumbavoor as directed by the Hon'ble High Court. In the light of the allegations of the plaintiffs, the defendants should have produced the postal receipt or acknowledgment of_ evidencing" the issue of notices to the plaintiffs and also the statements of the plaintiffs alleged to have been recorded by the enquiry officer, No such documents have been produced by the defendants to prove their case that the enquiry was made after giving due notice and after hearing the plaintiffs regarding their claim. The defendants who contend that the plaintiffs were actually evicted in pursuance of Ext. A4 order have also not cared to produce and prove the mahazar said to have been prepared at the time of the alleged eviction of the plaintiffs from the plaint schedule property. Under these circumstances it is hard to believe that a proper and legal, enquiry was conducted by the forest authorities in compliance with the order of the Hon'ble High Court in O.P. 787/73 and that in pursuance of that order of enquiry the plaintiffs were actually evicted as contended by the defendants."
The relevant averment in the plaint reads : (Vernacular matter omitted).
P.W. 1 while giving evidence, stated as follows :
(Vernacular matter omitted) In cross-examination, he was asked a pointed question about the issue of notice by the Divisional Forest Officer as directed in the judgment disposing of the writ petition. He answered emphatically in the negative. The question and answer read :
(Vernacular matter omitted)
19. The appellant State Government filed a petition C.M.P. 13447 of 1982 before this Court for production of additional evidence. By order dt. 2-2-1988 that petition has been allowed. The documents produced along with the petition have been marked Exts. B-1 and B-8.
20. The notice of hearing dt. 21-9-1975 issued by the Conservator of Forests is Ext. El. The postal acknowledgment slips signed by the three plaintiffs are marked as Exts. B-2, B-3 and B-4. Ext. B-l is signed by P.W. 1 himself. Ext. B-5 is the proceedings of the Conservator of Forests, dated 10-5-1976. Exts. B-6 to B-8 are postal acknowledgment slips signed by the plaintiffs. Ext. B-6 is signed by P.W. 1 himself.
21. These documents will conclusively establish that the Conservator of Forests had conducted an enquiry in strict compliance with the direction contained in the judgment of this Court, Ext. A-3. Yet, a false statement was made about the absence of such a notice in the plaint. That false statement was repeated from the witness box by P.W. 1. The plaintiffs would not be entitled to continue the occupation of the land, once a fresh order is passed by the forest authorities in compliance with Ext. A-3, unless that order has been duly and successfully challenged. There has not been any challenge at all to Ext. B-5 proceedings of the Conservator of Forests. It has become final and binding on the plaintiffs. The only plea on which that result was sought to be avoided, namely, the plea of absence of a prior notice of hearing, is not available in the light of the irrefutable evidence on record. (By a separate order, the plaintiffs are directed to show cause why action should not be initiated against P.W. 1 for the offence disclosed prima facie.)
22. It would then follow that further action taken, namely, the eviction as evidenced from the mahazar prepared by the forest officials in that behalf, is correct.
23. The unclean hands, the false plea and the free perjury -- all disqualify the plaintiffs from seeking the relief of injunction with its historic base of equity and justice.
24. There is yet another reason which would justify denial of any relief to the plaintiffs. In his evidence, the plaintiff admits that he does not know whether the land encroached is a forest land or a revenue puramboke land. His admission reads :
(Vernacular matter omitted) When the plaintiff himself is not sure whether the land in respect of which he claims relief is forest land or revenue puramboke, no relief based on the Government order, G.O.(P) 289 of 1968 could be granted, as the claimant is indefinite and unclear about the nature of the very land. The conditions of the Government Order cannot, obviously, be taken as complied with when the plaintiffs are supremely vague on the basic conditions contained in that order.
25. Unfortunately, these aspects have not been clearly brought to the notice of the Courts below, and such aspects, relevant and fundamental, have been overlooked by those Courts. The result was a manifestly erroneous and unjust decision.
26. The Courts below also failed to critically evaluate the evidence of the witnesses. Apart from the plaintiffs, only three other witnesses have been examined. P.W. 2 is the Commissioner. His evidence shows how indefinite and ambiguous his impressions are A mere estimate of the stone wall or a hut, would not be a satisfactory evidence for the age of the encroachment. He readily admits how he based some of his observations on the information supplied by [he plaintiff. No representative of the State and none of the officials was present at the time of the inspection of the Commissioner. P.W. 3 is a person who is residing one kilometer away from the property. Ordinarily he cannot be familiar with the property or its possession or enjoyment. The only base claimed by him to have familiarity with the area, is his role as an arbitrator in case of disputes. No details of any such visits are given. The claim is founded on an artificial and casual circumstance; it does not give any credibility to his evidence. P.W. 4 was vague in his evidence on material points. He could not contradict whether the plaintiffs have not been evicted This is evident from the question and answer :
(Vernacular matter omitted) It is significant that the question and answer occur in the chief examination. Later, he pleads ignorance as to who put up the stone wall and how old that stone wall was. It would appear that the Courts below were not given any assistance in relation to the critical analysis of the evidence on the side of the plaintiffs. Having regard to the materials in the case, no Court can grant a decree to the plaintiffs in the light of the pleadings, in the light of the evidence and in the light of the legal principles.
27. Suits by encroachers against the State Government should not be encouraged by Courts of law for yet another paramount consideration. An encroacher into the forest area is a self-proclaimed of fender of the Constitution of India; for, after the amendment of the Constitution in 1976, protection of the forest is a constitutional obligation of the State; and more than that, conservation of the forest wealth, is a Fundamental Duty on the part of every citizen. Principles of ordinary law relating to injunction as between private individuals (as was the case in Damodaran v. Verghese, 1986 Ker LT 319 or the earlier decision in Vasudeva Kurup v. Ammini Amma, 1964 Ker LJ 634), could not therefore be invoked when the injunction sought for is by a trespasser as against the State and particularly in relation to forest area. The Calcutta High Court has adopted such an approach in Preeti Singha Roy v. Calcutta Tramways Co., (1978) Ltd, AIR 1986 Cal 305. The decision K.C. Alexander's case, AIR 1968 SC 1165, was distinguished in that case. The Court warned against a small section of people being allowed to thwart or render nugatory the benefit to millions of people. Section 6 of the Specific Relief Act, 1963 (which corresponds to Section 9 of 1877 Act) does not confer the right of suit for disturbed possession as against the Government. That is obviously to serve a salutary purpose. The State as an institution needs effective protection, when it has necessarily to manage its affairs through human agencies, which sometimes may include persons without necessary involvement and commitment.
28. The grant of injunction in favour of those who break the law and trek into the prohibited forest area would subvert the Rule of Law. The Supreme Court of America frowned upon the violators of law, particularly those who do so with the assistance of antisocial elements. That Court emphasised that the mere fact that by virtue of baseless legal proceedings, the violators managed to continue in their ill got position is no ground to exercise a discretion in their favour. (See Immigration and Naturalisation Service v. Rios Pineda, (1985) 85 Law Ed 2d 452 : 471 US 444). In England too, Courts have expressed against infringing activity, even when such infringing activity was popular. A far more fundamental reason for discouraging violation of law was indicated in that case. A softer attitude, according to the Court, would produce undesirable results; the "poor trader would be deterred by the threat of a fine; the rich trader would consider breaking the law is a profitable exercise." (See Stoke-on-Trent City Council v. B & Q (Retail) Ltd., (1984) 2 All ER 332). The Supreme Court of India pointed out the nexus between the destruction of the Rule of Law and the disobedience of the laws. The Court observed :
"We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws."
(See A.P. Christians Medical Educational Society v. Govt. of A.P., AIR 1986 SC 1490 at P. 1497). A Court of law, will be committing the same grievous error, if its decision is one which in effect shields those who disobey the law.
29. If, as in the present case, persons find it profitable to freely and wantonly encroach upon forest area, and thereafter wield pressures against possible legal action of the Govt to recover possession of such area for the Govt., it would deal a death-knell to the Rule of Law itself. These larger, and in a sense perennial considerations, also strongly demand a denial of relief to the plaintiffs in the case.
30. In the light of the above discussion, the second appeal will stand allowed with costs throughout, separate set.
31. Some of the circumstances indicative of the total inadequacy of the State machinery in defending the forests have already been given. In a sense, ever since the encroachment started, such indifference and ill-equipment on the part of the Forest Department in defending its stand in accordance with the legal procedure, is eloquent and evident. Though, it is now too late in the day to lament over, the judgments, Exts. A-1 and A-2 by the Criminal Court which acquitted the accused in the cases registered by the forest officials, had not been properly studied and further remedies thought of or sought for. It is not clear whether a competent public prosecutor had appeared on behalf of the complainant State in those cases. Ext. A-1 judgment of the Crl. Court dt 16-8-1970 refers to the failure of the prosecution to show that the area involved was a reserve forest. A similar failure referred to in Ext. A-2 judgment of the Criminal Court rendered two years later, reveals that there was no improvement in the prosecution machinery of the State as regards forest offences. In a way, a helplessness on the part of the forest officials ill-equipped in the conduct of the criminal cases is very much apparent. It is too much to expect of them, the professional skill needed in a Court of law. It is doubtful whether the requisite professional skill was either available or was actually displayed sincerely and devotedly.
32. When the writ petition seeking an interim relief against the action of the forest officials was admitted by this Court, the same indifference continued. Interim injunction was initially granted from 28-3-1973 till 6-4-1973. The Government Pleader entered appearance on 5-4-1973. The interim injunction was extended until further orders on 6-4-1973. No endeavour was made either by the Forest Department or by the Law Department to bring to the notice of the Court the true facts and the emergent situations in relation to the protection of the forest. The result was the pendency of the writ petition, the petitioners being in a happy position to see the forest officials. No counter-affidavit had been filed before this Court even by 25-3-1975, when Ext. A-3 judgment was delivered by this Court.
33. The B diary in the trial Court will show how callously negligent the defence in the present case has been. Though the State and its officials were served by July 1976, no written statement was filed till 24-1-1977. As noted earlier when the Commissioner went to inspect the property, no representative of the State and none of the forest officials accompanied him. (The Commissioner states how the Jenda had not been shown to him by anybody. The plaintiff could not, naturally, be expected to point out to the Commissioner. The forest officials who would know the existence and the location of the Jenda, were, for reasons unknown, absent). Stranger still is the conduct of the officials who did not make available the relevant records including the crucial records now produced before this Court, to counsel appearing on behalf of the State. The entries in the appendix of the trial Court judgment-- "Defence Exhibits-- NIL; Defence witnesses: NIL" -- are indeed eloquent about the gross negligence in the conduct of the case. Was it an inspired indifference or a conspired conduct? is a matter for the State -- if it be serious and sincere in the protection of forest wealth --to enquire.
34. No serious attempt was made even at the appellate stage by the Government Pleader appearing there, to advert to these aspects, and endeavour to protect the interests of the Government. Even at the time when the second appeal was argued, the learned Government Pleader did not have all the records necessary for an effective conduct of the appeal. (That is the indication of the style in which the Law Department has been arranging the conduct of cases even at the stage of the High Court. Such a conduct is not an exceptional experience in this case. The attempt of this Court to alert that Department about its duties would appear to be an exercise in futility). A petition CM P. 13347 of 1982 for production of additional documents (which have now been marked and which are of crucial significance) was filed in 1982, but defectively. (Adequate copies were not "fifed at that time). The defect was noted by the office of the High Court and notified. It is unfortunate that the office of the Advocate General was not alive to the necessity of curing the defect. The responsibility was all the more great as the documents had such crucial relevance in the case. The further factors are that the case was one filed on behalf of the State and one in which it had lost in the Courts below, wherein the non-production of the very documents, had been specifically commented upon by those Courts. Even in the course of the final arguments before this Court, no indication of the filing of such a petition was available. The task of shifting all the records in the case, and picking up this defective petition, and subjecting it to further processing, was assigned to the Court. The State Government should not have left it entirely for the Court. The learned Government Pleader who owned nonavailability of the relevant records at the time of final arguments (five years had elapsed by then after the filing of the appeal: time enough for collecting the necessary records, even if that elementary duty in the conduct of the litigation had been neglected all through, earlier), had argued the case, with the help of the records of the Court There are inherent limitations in such an exercise, having regard to the exacting nature of the professional attention required in an area of a restricted jurisdiction like the second appeal.
35. Right from the beginning therefore, the conduct of the legal proceedings before the Courts of law, presents a sordid sight of helpless strategy and of possible insincere fight. In either case, the result would be extremely tragic, except in exceptionally providential circumstances.
36. During some anterior period, proceedings under Article 226 were freely resorted to, by those who illegally trespassed into forest area. Due to a variety of reasons, (some of which have been indicated even in the preamble to some of the related enactments. The Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986, Act 36/86 to wit)' the defence put up by the State had not been effective. (See for example O.P. 5357 of 1974 referred to in Damodaran v. Verghese, 1986 Ker LT 319 and many of its kind).
37. The State appears to be lukewarm even in relation to matters before the highest Court in the land. The proceedings in S.L.P. (Civil) 8356 of 1987 and in particular the order dt. 10-9-1987 therein, would prima facie indicate how the State defaulted in arranging appearance before that Court at one stage. (That was a case where, while disposing of a writ petition O.P. No. 3251 of 1985, this Court had drawn the attention of the Government on the desirability of issuing uniform Rules as visualised in the Government order dt. 25-9-1972. The judgment had been affirmed by the Division Bench, by judgment dt. 23-12-1986). A Division Bench of this Court had occasion to refer to the official lapses in the conduct of forest cases. (See the observations of Thomas, J. on behalf of the Division Bench in M.F.A. No. 315 of 1980 and M.EA. No. 316 of 1980 as also the observations of the Division Bench (Sukumaran and Thomas, JJ.) in M.F. A. 144 of 1980, the special leave petition from which was dismissed by the Supreme Court by its order dt. 21-9-1986. Similar observations occur in M.F.A. 618 of 1980, which was also disposed of by a Division Bench. It would appear that the repeated observations of the Court and suggestions for tightening up the protection operation of the forest wealth have had no effect. On the contrary, it would appear that the Executive Government, invariably, is only eager for the distribution of forest area, adopting sometimes subtle devices in that behalf. This is the position irrespective of the time and clime of socio-political conditions; and irrespective of the composition or complexion of the Government, whether it is darkish blue or crimson hue. Governments acquiesce in such outwardly invisible transformation of the green cover into rugged areas. (After allotment of the forest area and exposure thereof to unscientific cultivational operations oblivious of soil conservancy considerations, the area becomes so.) Only recently, a Division Bench of this Court strongly disapproved of a virtual vending of precious forest area (vide W.A. No. 54 of 1986). In that case, initially there was a transfer of forest area to the Revenue Department from the Forest Department, and for a seemingly social utility. purpose: for distribution among the landless Harijans. If the Harijans find it difficult to utilise the land properly, what harm is there for others to purchase the area, and 'develop' it? Such was the stance of a Member of the Legislative Assembly, who could persuade the Government to approve of such alienation (contrary to the Rules), despite protest from a Collector who was well informed in his work. If alienation is permitted in one case, why should others be discriminated? Thus ran the arguments of others. A single Judge of this Court was persuaded by the prima facie impressive logic. The Division Bench, however, rules that equality could not be claimed in illegality. The Government was directed to review the unjustified approval of alienation of the area to undeserved persons. The slow transformation of the reserve forest area into a private property, thus slyly and subtly achieved is demonstrated by the case. Yet another Division Bench had occasion to refer to a forest Mafia operating in various forest offices and even in the Secretariat. Three prominent newspapers of Kerala wrote leading articles, demanding meaningful and effective measures for the protection of the forests. A series of articles about the activities of the 'Forest Mafia' have been published only recently. If despite all these, no improvement in the forest protection is visible or felt, certain inferences could readily be made.
38. The fate and future of the forest wealth of the Nation should not be left to a feeble force with a fragile equipage. This is an aspect, which the Central Government, which has now concurrent jurisdiction under Article 246(2) and entry 17- A of List III of VIIth Schedule of the Constitution, could view with some concern. Defending a litigation involving substantial areas of the forest in the manner done in the present case, is somewhat similar to the entrustment of many square miles of forest area with a forest guard unarmed even with a pen-knife as against marauders equipped with sophisticated weapons and speedy conveyances. Such a scene where forest officials were overpowered by armed gangsters has (been) described by this Court in the judgment in Tharu v. State, 1985 Ker LT 310. A massive supplementation of the vigil in relation to the forest on the ground would appear to be inevitable in the existing circumstances (sic) refurnishing of the existing arrangement , if not evolving an altogether new legal defence system, for intelligently and imaginatively dealing with the forest cases throughout the State, should be thought of without any further waste of time. The facts of the present case and the experience of the Court in relation to very many cases involving the forest, would justify indication of these views, while disposing of this second appeal.
39. Once the forest wealth is denuded and the wild life destroyed (P. W. 3 has given evidence how he used to place the gun inside the hut put up by P.W. 1), and the biotic factors which sustain the ecology and the environment disappear, desertification is bound to spread. The unusual recent phenomenon of High Ranges thirsting for even potable water, and the unprecedented uncomfortable warmth even in the coldest months, should be eye-openers to all including the Government. One would wish: If only some little time and some portion of the money as is now spent for the exercises connected with the recurring and alternate drought and flood reliefs, are devoted for finding out enduring solutions for this problem. If the dry condition spreads and the desertification overpowers the existing greenery, it may be too late to rectify matters. Even those who now resort to perenation and pressure for the allotment and distribution of forest land, will not thereafter evince much interest, when the land is barren, and cultivation a disheartening loss. Few would rush to claim distribution of pattas over the desert lands. It is to be hoped that the authorities concerned would look at the problem with the objectivity and seriousness it demands. It is unnecessary to direct (as is quite often done, with doubtful resultant follow up action) a copy of the judgment to the State Government as it is already a party, the winning appellant in the second appeal. The Central Government, is, however, not a party to the case. In relation to matters made mention of in this paragraph, the Central Government has a great constitutional and legal (if not financial and administrative) responsibility. A copy of the judgment will therefore be forwarded to the Secretary to Government, Ministry of Environment, Government of India. New Delhi.