Jayadevan Thampan v. State of Kerala — 1980 DIGILAW 264 (KER)

JUDGMENT P.C. Balakrishna Menon, J. 1. The applicants in O. S. No. 45 of 1979 on the file of the Forest Tribunal, Kozhikode are the appellants. The application before the Forest Tribunal was one under S.8 of the Kerala Private Forests Vesting and Assignment Act 1971, hereinafter referred to as the Act, for a declaration that the 25 acres of land in R. S.15/A of Modancherry Village, Kozhikode Taluk, described in the 'C' schedule to the application do not vest in the Government under S.3, of the Act, for the reason that the land aforesaid is entitled to exemption under Clauses (2) and (4) of S.3. The application was rejected by the Forest Tribunal on 24-3-1980 in consequence of an earlier order dated 13-3-1980 dismissing I. A. No. 222 of 1979 filed by the applicants to condone the delay in filing the application under S.8 of the Act. The application was held to be barred by limitation under the amended R.3 of the Kerala Private Forests (Tribunal) Rules, 1972 which requires an application under S.8 to be filed within 60 days from the date on which the act which gives rise to the dispute was done. The petitioners challenge the vires of this Rule in so far as it prescribes a period of limitation for an application under S.8 of the Act. 2. The relevant provisions of the Act are the following: "S. 7. Constitution of Tribunals.- (1) The Government may, by notification in the Gazette constitute one, or more than one Tribunal for the purposes of this Act. (2) The Tribunal shall consist of a single person who is, or has been or is qualified to be appointed as, a District Judge. (3) Where more than one Tribunal is constituted under sub-s.(1), the Government shall also define the areas within which each Tribunal shall exercise jurisdiction. (4) The Tribunal shall decide all matters within its competence and may review any of its decisions in the event of there being a mistake on the face of the record or correct any arithmetical or clerical error therein. (4A). Subject to the provisions of sub-s.(4) and S.8A, the decision of the Tribunal on any matter within its jurisdiction shall be final and conclusive. (5) The Tribunal shall follow such procedure as may be prescribed. 8. (4A). Subject to the provisions of sub-s.(4) and S.8A, the decision of the Tribunal on any matter within its jurisdiction shall be final and conclusive. (5) The Tribunal shall follow such procedure as may be prescribed. 8. Settlement of disputes.- (1) Where any dispute arises as to whether- (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may apply to the Tribunal for decision of the dispute. (2) any application under sub-s.(1) shall be in such form as may be prescribed. (3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and - (a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; (b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause [a], or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be to the person in possession thereof immediately before the appointed day." x x x 17. Power to make Rules.- [1] the Government may, by notification in the Gazette, make rules to carry out the purposes of this Act. [2] In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- [a] all matters expressly required or allowed by this Act to be prescribed. [b] any other matter which has to be or may be, prescribed. [2] In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:- [a] all matters expressly required or allowed by this Act to be prescribed. [b] any other matter which has to be or may be, prescribed. [3] Every rule made under this section shall be laid as soon as may be after it is made before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and, if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule." R.3 of the Kerala Private Forests (Tribunal) Rules, 1972 as it originally stood is as follows: "3. Application to the Tribunal.- An application under S.8 shall be in Form 'A' and shall be presented to the Tribunal within sixty days from the date on which the act which gives rise to the dispute was done: Provided that the Tribunal may entertain an application presented beyond the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not presenting the application within that period." The above rule was amended by adding an Explanation dated 11-1-1977 and published in Kerala Gazette dated 25-1-1977 as per which the proviso was substituted by an explanation as follows: "Explanation:- For the purpose of this rule, the date on which the act which gives rise to the dispute was done, shall be the date of publication of the notification under sub-r.(2) of R.2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974, in respect of the land to which the dispute relates." R.2A introduced by a notification of the Government dated 11-1-1977 and published in the Kerala Gazette dated 25-1-1977 to the Kerala Private Forests (Vesting and Assignment) Rules 1974, is in the following terms: "2A. Demarcation of boundaries:- (1) Demarcation of private forests in pursuance of S.6 of the Act shall be effected by erecting cairns along the boundaries. (2) A notification specifying the details of the private forest, the boundaries of which have been demarcated such a survey and subdivision number if available and local name and describing its boundaries shall immediately be published simultaneously in the Village Office, Panchayat Office, Office of the Forest Tribunal, Range Office, Office of the Divisional Forest Office and the office of the Custodian. (3) The fact that a notification has been published under sub-r.(2) shall be published in two or more newspapers having circulation in the locality." R.3 of the Kerala Private Forests Tribunal Rules, 1972 as it originally stood contained a proviso empowering the Tribunal to condone delay in presenting the application on satisfaction that there was sufficient cause for not presenting the application within the period provided for in the Rule. This proviso was deleted and an Explanation substituted in its place by notification of Government No. 82055/PB 52-1/76/AD dated 11-1-1977 and published in the Kerala Gazette No. 4 dated 25-1-1977. By this amendment of the Rule, a power to condone delay in filing an application under S.8 that the Tribunal had earlier under the Rule has been taken away. 3. In the present case, the notification under R.2A(2) of the Kerala Private Forests Vesting and Assignment Rules 1974 was published on 8-7-1977 and the application under S.8 of the Act was filed on 7-5-1979 with a petition I. A. No 222 of 1979 to condone the delay in presenting the application on certain grounds mentioned in the I. A. As earlier stated I. A. No. 222 of 1979 to condone delay and the main application O.A. No. 45/1979 under S.8 of the Act, are both dismissed by the Forest Tribunal. Dismissal of the main application is for the reason that the petition to condone delay had been earlier dismissed. 4. The principal question for our consideration is as to whether R.3 of the Kerala Private Forests (Tribunal) Rules 1972 (hereinafter referred to as the Tribunal Rules) fixing a time limit for an application under S.8 is within the jurisdiction of the Government to issue or whether as contended by the learned Counsel for the appellants, the said Rule is ultra vires and void. S.7 clause (5) of the Act provides that the Tribunal shall follow "such procedure as may be prescribed " The rule making power is found in S.17 which is extracted above. There is no specific provision either in S.7 or in S.17 empowering the Government to fix a time limit for the presentation of an application under S.8 of the Act. But the contention on behalf of the respondents is that the fixation of a period of limitation is only a matter of procedure within the meaning of S.7 clause (5) and such Rules as to procedure can be issued by the Government by virtue of the powers delegated to it under S.17 of the Act. We find it difficult to accept this argument that the fixation of a time limit for an application under S.8 of the Act is only a matter of procedure of the Tribunal before whom the application is to be filed. A similar question arose before the Supreme Court in the decision reported in M/s. Bharat Barrel and Drum Mfg. Co. Private Ltd. and another v. The Employees' State Insurance Corporation ( AIR 1972 SC 1935 ). In that case, the Supreme Court was concerned with the validity of R.17 of the Rules framed by the Bombay Government under the Employees State Insurance Act 1948, as it then stood R.17 provides for a time limit of 12 months from the date on which the cause of action arose or the claim became due for an application to be filed in Court. The Rule was issued by the Bombay Government in exercise of the powers under S.96(1)(b) of the Act relating to "the procedure to be followed in proceedings before such Courts and the execution of orders made by such Courts". The validity of the Rule was questioned before the Supreme Court. In Para.3 of the decision, the Supreme Court referring to various decisions of different High Courts on this question stated that those decisions also held that the scheme of the Act was such that the Legislature did not and could not have intended to confer any power upon the State Government to make rules prescribing a period of limitation for applications under S.75(2) of the Employees State Insurance Act 1948. After considering the question whether the law relating to limitation is substantive or procedural or partly substantive and partly procedural, the Supreme Court at page 1938, observed as follows: "It does not therefore appear that the statement, that substantive law determines rights and procedural law deals with remedies is wholly valid, for neither the entire law of remedies belongs to procedure nor are rights merely confined to substantive law, because as already noticed rights are hidden even 'in the interstices of procedure". There is therefore no clear cut division between the two". After referring to various other decisions, the Supreme Court further observed at page 1939 as follows: "It appears to us that there is a difference between the manner in which the jurisprudential lawyers consider the question and the way in which the Judges view the matter. The present tendency is that where a question of limitation arises, the distinction between so called substantive and procedural statutes of limitation may not prove to be a determining factor but what has to be considered is whether the statute extinguishes merely the remedy or extinguishes the substantive right as well as the remedy. Instead of generalising on a principle the safest course would be to examine each case on its own facts and circumstances and determine for instance whether it affects substantive right and extinguishes them or whether it merely concerns a procedural rule only dealing with remedies, or whether the intendment to prescribe limitation is discernible from the scheme of the Act or is inconsistent with the rule making power etc." (p. 9.) Again at Para.10 the Supreme Court stated as follows: "10. Apart from the implications inherent in the tern; procedure appearing in S.96(1)(b) the power to prescribe by Rules any matter falling within the ambit of the term must be the "procedure to be followed in proceedings before such Court". The word ''in", emphasised by us, furnishes a clue to the controversy that the procedure must be in relation to proceedings in Court after it has taken seises of the matter which obviously it takes when moved by an application presented before it. The word ''in", emphasised by us, furnishes a clue to the controversy that the procedure must be in relation to proceedings in Court after it has taken seises of the matter which obviously it takes when moved by an application presented before it. If such be the meaning the application by which the Court is asked to adjudicate on matter covered by S.75(2) is outside the scope of the rule making power conferred on the Government." The question for consideration was posed at Para.12 in the following terms: "12. What we have to consider is, apart from the question that the Government on the terms of S.96(1)(b) is not empowered to fix periods of limitation for filing applications under S.75(2) to move the Court whether on an examination of the scheme of the Act, R.17 affects substantive rights by extinguishing the claim of the Corporation to enforce the liability for contributions payable by the appellant." And, after considering the relevant provisions of the Act and the Rules it was held at page 1941: "It is clear therefore that the right of the Corporation to recover these amounts by coercive process is not restricted by any limitation nor could the Government by recourse to the rule making power prescribe a period in the teeth of S.68. What S.75(2) is empowering is not necessarily the recovery of the amounts due to the Corporation from the employer by recourse to the Insurance Court but also the settlement of the dispute of a claim by the Corporation against the principal employer which implies that the principal employer also can where he disputes the claim made and action is proposed to be taken against him by the Corporation under S.68 to recover the amounts said to be due from him. While this is so there is also no impediment for the Corporation itself to apply to the Insurance Court to determine a dispute against an employer where it is satisfied that such a dispute exists. In either case neither S.68 nor S.75(2)(d) prescribes a period of limitation. While this is so there is also no impediment for the Corporation itself to apply to the Insurance Court to determine a dispute against an employer where it is satisfied that such a dispute exists. In either case neither S.68 nor S.75(2)(d) prescribes a period of limitation. It may also be mentioned that S.77 which deals with the commencement of the proceedings does not provide for any limitation for filing an application to the Insurance Court even though it provides under sub-s.(2) of that Section that every such application shall be in such form and shall contain such particulars and shall be accompanied by such fee if any that may be prescribed by rules made by the State Government in consultation with the Corporation. This was probably an appropriate provision in which the legislature if it had intended to prescribe a time for such applications could have provided Be that as it may, in our view the omission to provide a period of limitation in any of these provisions while providing for a limitation of a claim by an employee for the payment of any benefit under the regulations shows clearly that the legislature did not intend to fetter the claim under S.75(2)(d). It appears to us that where the legislature clearly intends to provide specifically the period of limitation in respect of claims arising thereunder, it cannot be considered to have left such matters in respect of claims under some similar provisions to be provided for by the rules to be made by the Government under its delegated powers to prescribe the procedure to be followed in proceedings before such Court. What is sought to be conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is seized of the matter. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale of procedure. R.17 is of such a nature and is similar in terms to S.80. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale of procedure. R.17 is of such a nature and is similar in terms to S.80. There is no gain saying the fact that if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost. Such a provision affects substantive rights and must therefore be dealt with by the legislature itself and is not to be inferred from the rule making power conferred for regulating the procedure unless that is specifically provided for. It was pointed out that in the Constitution also where the Supreme Court was authorised with the approval of the President to make rules for regulating generally the practice and procedure of the Court, a specific power was given to it by Art.145(1)(b) to prescribe limitation for entertaining appeals before it. It is therefore apparent that the legislature does not part with the power to prescribe limitation which it jealously retains to itself unless it intends to do so in clear and unambiguous terms or by necessary intendment. The view taken by the Madhya Pradesh, Madras, Punjab and Andhra Pradesh High Courts in the cases already referred to are in consonance with the view we have taken". Again at page 1942 it is held: "We however, find that S.78(2) does not delegate any power to the Government to make rules but only requires the Insurance Court to follow ''such procedure as may be prescribed by rules made by the State Government" which rules can only be made under S.96 of the Act". In the result, the rule prescribing a period of limitation was declared ultra vires and the petition presented under S.75 of the Employees' State Insurance Act, beyond the period fixed by the Rule was held as filed within time. 5. A similar question arose in the decision in Sales Tax Officer, Ponkunnam v. K. J. Abraham (AIR. 1967 SC 1923). In the result, the rule prescribing a period of limitation was declared ultra vires and the petition presented under S.75 of the Employees' State Insurance Act, beyond the period fixed by the Rule was held as filed within time. 5. A similar question arose in the decision in Sales Tax Officer, Ponkunnam v. K. J. Abraham (AIR. 1967 SC 1923). S.8(1) of the Central Sales Tax Act as it stood at the relevant time provides for a concessional rate of tax to a dealer who in the course of inter State trade or commerce sells goods to the Government or sells to a registered dealer goods of the description referred to in sub-s.(3). Sub-s.(4) of S.8 states that the provisions of sub-s.(1) shall not apply to any sale in the course of inter State trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner a declaration duly filled and signed by the registered dealer to whom the goods are sold containing the prescribed particulars in a prescribed form obtained from the prescribed authority or if the goods are sold to the Government, not being a registered dealer, a certificate in the prescribed form duly filled and signed by a duly authorised officer of the Government. Sub-s.(3) of S.13 of the Act empowers the State Government to make rules not inconsistent with the provisions of the Act and the Rules made by the Central Government to carry out the purposes of the Act. Sub-s.(4) of S.13 enumerates matters in particular and without prejudice to the powers conferred by sub-s.(3), in respect of which the State Government may make rules. R.6(1) of the Central Sales Tax (Kerala) Rules, 1957 requires a dealer to submit a return together with the requisite declarations etc. so as to reach the Assessing Authority on or before the 20th of each month and as per the first proviso to the Rule in cases of delayed receipts of declaration forms the dealer is required to submit declaration forms at any time before assessment was made. There is a second proviso to the Rule which provides that the delay in submitting the declaration forms shall not exceed three months from the date of the sale in question. There is a second proviso to the Rule which provides that the delay in submitting the declaration forms shall not exceed three months from the date of the sale in question. As per the third proviso to the Kerala R.6(1) all declaration forms pending submission by the dealers on 2nd May 1960 shall be submitted not later than the 16th February 1961. It was the validity of the third proviso to R.6 of the Kerala Rules that was considered by the Supreme Court in this decision, and at Para.6 it is stated as follows: "6. It was contended on behalf of the appellant that the assessee bad not filed the declarations in form 'C' before February 16, 1961 according to the third proviso to R.6(1) and in view of the breach of this Rule the assessee was not entitled to take advantage of the lower rate of assessment under S.8(1) of the Act. The opposite view point was put forward on behalf of the assessee and it was argued that the third proviso to R.6(1) was ultra vires of S.8(4) read with S.13(4)(c) of the Act. The decision of the question at issue therefore depends on the construction of the phrase "in the prescribed manner" in S.8(4) read with S.13(4)(c) of the Act. In our opinion, the phrase "in the prescribed manner" occurring in S.8(4) of the Act only confers power on the rule making authority to prescribe a rule stating what particulars are to be mentioned in the prescribed form, the nature and the value of the goods sold, the parties to whom they are sold, and to which authority, the form is to be prescribed But the phrase "in the prescribed manner" in S.8(4) does not take in the time element. In other words the section does not authorise the rule making authority to prescribe a time limit within which the declaration is to be filed by the registered dealer." In this view of the matter, the Supreme Court held that the third proviso to R.6(1) is ultra vires to S.8(4) read with S.13(4) of the Act. 6. In other words the section does not authorise the rule making authority to prescribe a time limit within which the declaration is to be filed by the registered dealer." In this view of the matter, the Supreme Court held that the third proviso to R.6(1) is ultra vires to S.8(4) read with S.13(4) of the Act. 6. In the decision in Commissioner of Income Tax v. Shree Padmanabhaswamy Temple Trust ( 1979 KLT 594 ), the question was whether the Shree Padmanabhaswamy Temple Trust which is a charitable trust within the meaning of the Income Tax Act was entitled to the exemption under S.11 of the Act as it then stood S.11(2) allowed the income referred to in clauses (a) or (b) of S.11(1) not to be included in the total income of the previous year subject to certain conditions being satisfied. One of the conditions is that the Assessee specifies by notice in writing to the Income Tax Officer "in the prescribed manner" the purpose for which the income is being accumulated and the period for which the income is to be accumulated. R.17 framed under the Act provides for the notice to be given to the Income Tax Officer under sub-s.(2) of S.11 in Form 10 and Form 10 in Para.2 requires the income to be exempted as per S.11 clause (2) to be deposited within six months commencing from the end of each previous year in the manner provided in S.11(2). It was this provision that came up for consideration before a Division Bench of this Court and the Division Bench at page 596 held as follows: "It will be noted that R.17 as such does not provide for any period of time within which the amount set apart for charitable purpose is to be invested in any Government security or in Post Office Savings Bank or in any financial corporations etc. Indeed, this would be outside the province of the Rule, as S.11 itself authorises only, prescribing the manner of specifying by notice to the Income Tax Officer, the purpose for which the income is being accumulated etc. These expressions, namely, "in the prescribed manner" have been held to be inadequate and incompetent to take in a time element (vide the decision of the Supreme Court in Sales Tax Officer v. Abraham (20 STC 367)). These expressions, namely, "in the prescribed manner" have been held to be inadequate and incompetent to take in a time element (vide the decision of the Supreme Court in Sales Tax Officer v. Abraham (20 STC 367)). More particularly, with respect to the identical provision with which we are here concerned, namely, S.11 of the Income Tax Act and R.17 of the Rules, it has been ruled that the time element incorporated in Form No. 10 in the matter of investment of the accumulated amounts in Government securities or Post Office Savings Banks etc. is ultra vires the provisions of the Section and the Rule (vide Second Income Tax Officer, City Circle VI, Madras v. M.C.T. Trust (102 ITR 138) decided by the Madras High Court; and Commissioner of Income Tax. Patiala v. Shri Krishna Chand Charitable Trust (98 ITR 387) decided by the Jammu and Kashmir High Court). We are in complete agreement with the principle of these two decisions. Even apart from these decisions, on the terms of the Section and the Rule, in the light of the principle expounded by the Supreme Court decision, which we have noticed, we are clearly of the opinion that the provision of a time element in Para.2 of Form No. 10 of the Income Tax Rules is clearly beyond the provisions of S.11 and R.17." 7. For the above reasons, we hold that clause (5) of S.7 of the Act which provides that "the Tribunal shall follow such procedure as may be prescribed" relates to the procedure of the Tribunal after an application under S.8 is instituted before it and it does not relate to any time limit for the presentation of the application itself. S.17 of the Act which empowers the Government by notification in the Gazette to make rules to carry out the purposes of the Act, also does not empower the delegated authority to prescribe a time limit for the presentation of an application under S.8 before the Forest Tribunal. The dispute that is contemplated by S.8 for settlement by the Forest Tribunal is as to whether any land is a private forest or not or any private forest or portion thereof has vested in the Government or not. The dispute that is contemplated by S.8 for settlement by the Forest Tribunal is as to whether any land is a private forest or not or any private forest or portion thereof has vested in the Government or not. The question for decision therefore under S.8 of the Act relates to the applicant's title to immovable property and his right to adjudication of such title when threatened cannot be taken away by a rule framed by the Government prescribing a period of limitation which is not authorised by the Act itself. Under the ordinary law of limitation title to immovable properly will be lost under Art.65 of the Limitation Act 1963 by adverse possession for a period of 12 years. By the amended R.3 of the Tribunal Rules issued by the Government, the title to immovable property is lost if the person claiming title is precluded from presenting an application under S.8 of the Act within 60 days from the date on which the act which gives rise to the dispute was done and such act according to R.2A of the Vesting and Assignment R.1974 is only a notification specifying the details of the private forest, the boundaries demarcated etc. by the Forest Authorities. By precluding an applicant to agitate his claim to title under S.8 of the Act. R.3 of the Tribunal Rules takes away the right of the owner to the land itself for the reason that the Forest Tribunal alone is given exclusive jurisdiction to decide whether any land is a private forest or not or any private forest or portion thereof is vested in the Government or not. S.13 of the Act expressly bars the jurisdiction of civil courts to decide these questions. For all these reasons, we hold that the period of limitation prescribed by R.3 of the Tribunal Rules is ultra vires and void and the Rule should be read omitting the words "and shall be presented to the Tribunal within 60 days from the date on which the act which gives rise to the dispute was done". This part of R.3 is ultra vires, void and beyond the powers of the Government. 8. This part of R.3 is ultra vires, void and beyond the powers of the Government. 8. In State of Kerala v. T. M. Peter (1980 KLT 402 : AIR 1980 SC 1438 ), the offending words in S.34(1) of the Town Planning Act (Travancore Act 4 of 1108) were ordered to be omitted in reading the section, when it was found that a part of the Section is invalid. The Supreme Court observed: "The lancet of the Court may remove the offending word, and restore to constitutional health the rest of the provision". Accordingly the Supreme Court in Para.23 of its judgment held as follows: "We hold that exclusion of S.25 of the Land Acquisition Act from S.34 of the Act is unconstitutional but it is severable and we sever it. The necessary consequence is that S.34(1) will be read omitting the words and S.25". 9. We adopt the same method as was done in the decision of the Supreme Court and hold that R.3 of the Kerala Private Forests (Tribunal) Rules, 1972 should be read omitting the words "and shall be presented to the Tribunal within 60 days from the date on which the act which gives rise to the dispute was done". The Explanation to the sub rule shall also be omitted as redundant. 10. In the view that we have taken the application O. A. No. 45 of 1979 filed by the appellants before the Forest Tribunal, Kozhikode cannot be rejected as filed out of time, and should be considered on its merits. Accordingly we set aside the decision of the Forest Tribunal in I. A. No. 222 of 1979 for the reason that the application to excuse delay in presenting the application under S.8 is unnecessary. We also set aside the decision of the Forest Tribunal, dismissing O. A. No. 45 of 1979 as filed out of time, and hold that the same is not barred by limitation. O.A No 45 of 1979 is accordingly remitted back to the Forest Tribunal, Kozhikode to be dealt with on its merits according to law, after allowing the parties to adduce evidence in proof of their respective claims The Appeals are accordingly allowed and the parties are directed to bear their respective costs.