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1988 DIGILAW 116 (KER)

JOSEPH v. STATE OF KERALA

1988-02-26

G.VISWANATHA.IYER

body1988
Judgment :- 1. Petitioner filed an application under S.8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Act). This application was treated as time barred and rejected by the Tribunal. That was by the order Ext. P2 Petitioner challenges the order Ext. P-2, which is dated 9th September, 1987. 2. Petitioner's contention is that he is in possession of certain land in Sy. No. 1905 of Agali Village, part of which had been notified as having vested under the Act by the notification Ext. P-1. R.3 of the Kerala Private Forests (Tribunal) Rules, 1972 as it stood prior to 6-8-1981, required an application under S.8 of the Act to be presented within 60 days from the date on which the act which gave rise to the dispute was done. There was an explanation to the Rule which stated that the date on which the act which gave rise to the dispute was done shall be the date of publication of the notification under sub-rule (2) of R.2A of the Rules framed under the Act, in respect of the land to which the dispute relates. 3. This rule was amended on 6-8-1981 to make the period as 60 days from 6th August 1981 or from the date of publication of the notification under R.2A (2) of the Rules in respect of the land to which the dispute relates, whichever is later. In other words, in cases where a notification had been issued earlier, an outer limit of sixty days from 6-8-1981 was specified, and in the case of notifications yet to be issued, a time limit of 60 days from the date of that notification was stipulated. Petitioner's application was filed some time in 1987. According to him there was no valid notification in respect of his lands. 4. When the petition was filed, the office of the Tribunal made a note that the notification in respect of the land bad been issued on 10-10-1979 and published on 14-12-1981. The Tribunal took the view that if there was a notification earlier than the aforesaid amendment to the rule, the application should have been filed on or before 6-10-1981. On the other band, if there were no notification at all as contended, the cause of action for filing the petition had not arisen. The Tribunal took the view that if there was a notification earlier than the aforesaid amendment to the rule, the application should have been filed on or before 6-10-1981. On the other band, if there were no notification at all as contended, the cause of action for filing the petition had not arisen. The Tribunal however, noted that there was a notification in this case published on 14-12-1981 and therefore, the petitioner should have filed his application within 60 days from 14-12-1981, The application was filed out of time, and was therefore rejected. 5. It must be noted at this stage that the application filed by the petitioner was not registered as a petition. It was rejected even at the preliminary stage as time barred. 6. S.8A of the Act provides that any decision of the Tribunal may be appealed against within a period of 60 days from its date. This court, to which the appeal lies, is however, given the discretion to extend the time for filing the appeal on sufficient cause being shown. The petitioner has not chosen to file an appeal; but has challenged the order in question by filing this petition under Art.227 of the Constitution of India 7. Counsel contends that the order in question is not one subject to appeal under S.8A as according to him it is not a final order. He placed reliance on the decision of the Full Bench of this Court in Varkey v. Stale of Kerala 1980 KLT. 632. 8. S.8A makes any decision of the Tribunal liable to appeal to this court. Any decision in this context means a decision determining the rights of parties, or a decision which is otherwise the final order in the proceeding, so far as the Tribunal is concerned. It has to be read in the context of the section as one not pertaining to mere interlocutory orders, which are merely procedural in character and which may not affect the rights or the liabilities of parties or which may not bring about any finality to the proceedings before the Tribunal. This is the way in which analogous provisions have been read and understood by the Supreme Court in Shankarlal v. Shankarlal AIR.1965 SC.507 and Central Bank of India v. Gokal Chand AIR. 1967 SC. 799. 9. This is the way in which analogous provisions have been read and understood by the Supreme Court in Shankarlal v. Shankarlal AIR.1965 SC.507 and Central Bank of India v. Gokal Chand AIR. 1967 SC. 799. 9. Varkey's case relied on was one where an application filed for rectification of a mistake under S.152 of the Code of Civil Procedure was rejected by the Tribunal and that order was sought to be appealed against. This court stated that in rejecting such an application, it could not be said that the Tribunal has passed an order deciding the dispute between the parties over again. The appeal was not therefore maintainable in law. 10. The position here is totally different. Petitioner's application stands rejected on the ground that it was time barred. So far as the Tribunal is concerned, all the proceedings before it have come to an end. Nothing further remains to be done on the application. Petitioner's right has been adjudicated upon as being time barred. The reason why the Tribunal rejected the application is immaterial, so long as the decision rendered is one which is final and conclusive, and not liable to be reopened by the Tribunal. In such cases, the decision is open to appeal under S.8A of the Act. It is not an interlocutory order as contended by the petitioner in which case the Tribunal will continue to be in seizin of the proceedings initiated. 11. Since the order Ext. P-2 is one made appealable under S.8A, the proper remedy of the petitioner is to file an appeal, which will be dealt with in the normal course by a Division Bench of this Court. When such a remedy is available it is only proper that the petitioner resorts to the said remedy. I decline to entertain this petition under Art.227. The Original Petition is dismissed leaving the petitioner open to pursue his remedy under S.8A of the Act. Issue photo copy of the judgment on usual terms. Dismissed.