Kerala High Court

The State Of Kerala vs Mini on 13 August, 2021

MFA No.8/2021                            1 / 10

                      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                      PRESENT
                    THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
                                         &
                    THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
             Friday, the 13th day of August 2021 / 22nd Sravana, 1943
                  CM.APPL.NO.1/2021 IN MFA(FOREST) NO. 8 OF 2021
     OA 31/2010 OF THE COURT OF THE KERALA FOREST (VESTING AND MANAGEMENT OF
                  ECOLOGICALLY FRAGILE LANDS) TRIBUNAL, PALAKKAD
   PETITIONERS/APPELLANTS:

      1. THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO 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 KANJIRAMKUZHI, KALLADIKKODE,
          MANNARKKAD TALUK,
          PIN - 678 596.

        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 on for orders, upon perusing the application
   and the affidavit filed in support thereof, and upon hearing the arguments
   of SPECIAL GOVERNMENT PLEADER, for the applicants, the court passed the
   following:




                                                              P.T.O.
 MFA No.8/2021                             2 / 10




                                                                    "C.R"

                ANIL K. NARENDRAN & MOHAMMED NIAS C.P., JJ.
                  ---------------------------------------------------
                              C.M.Appln.No.1 of 2021
                                           in
                            M.F.A.(Forest)No.8 of 2021
                 ------------------------------------------------------
                     Dated this the 13th day of August, 2021

                                       ORDER

Anil K. Narendran, J.

This appeal has been filed by the State and the officials

of the Forest Department, under Section 11 of the Kerala

Forest (Vesting and Management of Ecologically Fragile Lands)

Act, 2003, against the order dated 10.04.2018 of the Kerala

Forest (Vesting and Management of Ecologically Fragile Lands)

Tribunal, Palakkad, in O.A.No.31 of 2010, an application filed

by the respondent herein under clauses (a) and (b) of sub-

section (1) of Section 10 of the said Act, seeking a declaration

that the application schedule property having an extent of

37.5 cents comprised in Survey No.2288 pt in Palakkayam

Village is not an ecologically fragile land. The Tribunal allowed

that application, by the impugned order dated 10.04.2018,

and declared that the application schedule property is not an

ecologically fragile land.

2. On 22.01.2021, the State and its officials have filed

this appeal, along with C.M.Application No.1 of 2021 filed

under Section 5 of the Limitation Act, 1963 seeking an order MFA No.8/2021 3 / 10

M.F.A.(Forest)No.8 of 2021

to condone the delay of 933 days in filing the appeal. In

C.M.Appln.No.1 of 2021, this Court issued notice to the

respondent on 01.02.2021, in his address mentioned in

O.A.No.31 of 2010.

3. The notice issued to the respondent returned with

an endorsement "not known". On 16.07.2021, this Court

noticed that the address of the respondent herein mentioned

in this appeal, which is his address mentioned in O.A.No.31

of 2010 filed before the Tribunal under Section 10 of the Act,

read with sub-rule (1) of Rule 3 of the Kerala Forest (Vesting

and Management of Ecologically Fragile Lands) Tribunal

Rules, 2007, is incomplete and that defect was not notified

by the Tribunal, as provided under sub-rule (2) of Rule 3. On

16.07.2021 and thereafter on 22.07.2021, the learned

Special Government Pleader sought time to take out fresh

notice to the respondent in his correct address. Today, the

learned Special Government Pleader seeks further time,

since he is yet to get the correct address of the respondent.

4. Rule 3 of the Kerala Forest (Vesting and

Management of Ecologically Fragile Lands) Tribunal Rules,

2007, deals with application to the Tribunal. As per sub-rule

(1) of Rule 3, every application under Section 10 shall be MFA No.8/2021 4 / 10

M.F.A.(Forest)No.8 of 2021

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. As per the proviso to sub-rule (1) of Rule 3, 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.

5. In column (a) of the application in 'Form A', the

applicant has to furnish name or names with full address of

claimants/applicants and also name or names with full

address of person/persons who shall be impleaded or

brought on record as respondent/respondents.

6. As per sub-rule (2) of Rule 3 of the Tribunal

Rules, 2007 an application, which is found defective on

scrutiny, may be returned for re-submission after curing

defects within a specified time not exceeding two weeks by

the Tribunal. As per Rule 4, which deals with issue of notice,

when an application has been duly presented to the Tribunal,

it shall issue a notice in 'Form B' along with a copy of the MFA No.8/2021 5 / 10

M.F.A.(Forest)No.8 of 2021

application and the documents each to the respondent

directing him to appear before the Tribunal on the day

specified in the notice to defend his case.

7. By virtue of the mandate of sub-rule (1) of Rule 3

of the Tribunal Rules, 2007, every application filed before the

Tribunal under Section 10 of the Kerala Forest (Vesting and

Management of Ecologically Fragile Lands) Act, in 'Form A',

shall contain name/names with full address of claimants/

applicants and also person/persons impleaded or brought on

record as respondent/respondents. An application which is

found defective on scrutiny shall be returned by the Tribunal,

as per the mandate of sub-rule (2) of Rule 3, for re-

submission after curing defects, within the time specified by

the Tribunal, not exceeding two weeks. Thus, when an

application made under sub-rule (1) of Rule 3 in 'Form A' is

lacking in any particulars made mention thereof, the

consequence stipulated in sub-rule (2) of Rule 3 of the

Tribunal Rules, 2007 is that, the said application has to be

returned for curing the defects. As per the mandate of Rule

4, the Tribunal shall issue notice when an application under

Section 10 of the Act has been duly presented to the MFA No.8/2021 6 / 10

M.F.A.(Forest)No.8 of 2021

Tribunal. Thus, a combined reading of sub-rules (1) and (2)

of Rule 3 makes it clear that the requirements stated therein

are to be scrupulously followed to achieve the salutary

purpose behind enacting the said Rules. They must be held

to be mandatory and compliance to be made without any

exception by the Tribunals, while entertaining an application

under Section 10 of the Act.

8. The absence of full and correct address of

claimants/applicants and also respondent/respondents in the

orders of the Tribunal, on applications filed under Section 10

of the Act, would result in the filing of appeals before this

Court, under Section 11 of the Act, with incomplete or

incorrect address of respondent/respondents. Absence of full

and correct address of respondent/respondents has resulted

in considerable delay in completing service of notice in large

number of C.M.Applications and appeals pending before this

Court. Pendency, a bane of the judicial system, can be

considerably reduced, if such delays occurring on account of

the delay in completing the service of notice or such allied

defects are noticed at the threshold itself by the Tribunals.

9. Chapter IV of the Rules of the High Court of

Kerala, 1971, deals with service of notices. As per sub-rule MFA No.8/2021 7 / 10

M.F.A.(Forest)No.8 of 2021

(1) of Rule 51, unless otherwise ordered, every notice shall

be sent, in the first instance, to the address of the

respondent given in the memorandum of appeal or petition,

as the case may be, by means of registered post,

acknowledgment, prepaid. An acknowledgment purporting to

be signed by the respondent shall be deemed to be sufficient

proof of service of such notice. As per sub-rule (2) of Rule

51, where the postal article containing the notice is received

back by the Court with an endorsement purported to have

been made by a postal employee to the effect that the

respondent or his agent had refused to take the delivery of

postal article containing the notice when tendered to him,

the Court shall declare that the notice had been duly served

on the respondent. As per the proviso to sub-rule (2) of Rule

51, where the notice was properly addressed, prepaid and

duly sent by registered post, acknowledgment due, the

declaration referred to in sub-rule (2) shall be made

notwithstanding the fact that the acknowledgment having

been lost or mislaid or for any other reason, has not been

received by the Court within thirty days from the date of

issue of the notice.

MFA No.8/2021 8 / 10

M.F.A.(Forest)No.8 of 2021

10. In Sali Mohan v. Kolazhi Grama Panchayath,

Thrissur and others [2015 (4) KHC 261 : 2015 (3) KLT

799] this Court held that a postal article with incomplete or

indefinite address, without specifying some definite place for

delivery, such as a particular house or building, or a

particular post box, or a particular number in a street, along

with the name of the locality where the addressee resides or

carries on business or employed, cannot be termed as one

'properly addressed' in order to draw a presumption as to

service of document by post, under Section 27 of the

General Clauses Act, 1897, or Section 26 of the

Interpretation and General Clauses Act, 1125, or under

Section 16 or Section 114 of the Evidence Act, 1872. This

Court held further that, for drawing a presumption under the

proviso to sub-rule (2) of Rule 51 of the Rules of the High

Court of Kerala, 1971 that the notice had been duly served

on the respondent, one of the essential circumstances is that

the notice was 'properly addressed'. Paragraphs 18 and 19 of

the said judgment read thus;

"18. As I have already noticed, Section 27 of the General Clauses Act, 1897 as well as Section 26 of the Interpretation and General Clauses Act, 1125 do not lay down an inflexible or conclusive presumption as to MFA No.8/2021 9 / 10

M.F.A.(Forest)No.8 of 2021

service of notice by registered post. It only states that, a presumption as to service of document by post can be drawn if the circumstances enumerated in Section 27 of the Central Act or Section 26 of the State Act are present, unless the contrary is proved. One of the essential circumstances for drawing such a presumption as to service of document by post is that, the registered postal article should be 'properly addressed'. A postal article with incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the addressee resides or carries on business or employed, cannot be termed as one 'properly addressed' in order to draw a presumption as to service of document by post, under Section 27 of the Central Act or Section 26 of the State Act, or under Section 16 or Section 114 of the Evidence Act.

19. Similarly, for drawing a presumption under the proviso to sub-rule (2) of Rule 51 of the Rules of the High Court of Kerala, that the notice had been duly served on the respondent, one of the essential circumstances is that the notice was 'properly addressed'. If the postal article containing the notice issued by this Court contain only an incomplete or indefinite address, without specifying some definite place for delivery, such as a particular house or building, or a particular post box, or a particular number in a street, along with the name of the locality where the respondent resides or carries on business or MFA No.8/2021 10 / 10

M.F.A.(Forest)No.8 of 2021

employed, it cannot be termed as a notice 'properly addressed' to the respondent, in order to draw a presumption under the proviso to sub-rule (2) of Rule 51, that the notice had been duly served on such respondent."

11. Registrar (District Judiciary) shall communicate a

copy of this order to the Tribunals under the Kerala Forest

(Vesting and Management of Ecologically Fragile Lands) Act,

2003, to ensure strict compliance of the mandatory

provisions under Rules 3 and 4 of the Kerala Forest (Vesting

and Management of Ecologically Fragile Lands) Tribunal

Rules, 2007, in every application filed under Section 10 of

the said Act.

12. The learned Special Government Pleader seeks

further time to take fresh steps in the correct address of the

respondent.

Four weeks' time granted. List on 13.09.2021.