Research › Search › Judgment

Kerala High Court · body

2013 DIGILAW 574 (KER)

Kurien E. Kalathil v. State of Kerala

2013-07-09

A.V.RAMAKRISHNA PILLAI, THOTTATHIL B.RADHAKRISHNAN

body2013
JUDGMENT : Thottathil B. Radhakrishnan, J. This original petition is filed invoking Article 227 of the Constitution of India seeking relief, which is essentially, interlocutory in nature, in connection with a matter pending before the Forest Tribunal constituted under the provisions of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, for short, "EFL Act". 2. The reason that had compelled the petitioner to file this petition is that the Government had not issued any notification following the orders issued by the High Court on the administrative side regarding transfer and posting of judicial officer to Tribunal at Kollam. By now, we are told that a notification has been issued and the request of the petitioner for interim relief can be considered at that end. The learned Tribunal will, therefore, expedite consideration of the request of the petitioner. 3. Since it is noted that the work of the judicial officers posted on transfer to such Tribunals sometimes gets delayed, owing to misunderstanding of the real effect of the relevant laws, we deem it appropriate to consider the jurisdictional issue in relation to such Tribunals in re its constitution in terms of the relevant laws. 4. Section 9(1) of the EFL Act provides that the Government may, by notification in the gazette, constitute one or more Tribunal for the purpose of that Act. Sub-section 2 of Section 9 provides that the Tribunal shall be a Judicial Officer not below the rank of a District Judge. Where more than one Tribunal is constituted, the Government shall define the areas within which each Tribunal shall exercise jurisdiction. In exercise of powers conferred by Section 9 of the EFL Act, the Government constituted the Tribunals for the purpose of that Act as per SRO.No.533/2007, GO(P) No. 35/2007/F&WLD dated 8.6.2007 and designated the First Additional District Court Judges specified in column 2 of the Schedule in that notification as Forest Tribunals to perform the functions under the said Act with jurisdiction over the areas specified in column 3 thereof. Four Tribunals were thus constituted. The First Additional District Court Judges of Palakkad, Kozhikode, Kottayam and Kollam were designated to exercise jurisdiction as conferred on each of those Tribunals in terms of that notification. Four Tribunals were thus constituted. The First Additional District Court Judges of Palakkad, Kozhikode, Kottayam and Kollam were designated to exercise jurisdiction as conferred on each of those Tribunals in terms of that notification. This means that the Government by notification constituted four Tribunals in terms of Section 9 of the EFL Act and designated the First Additional District Court Judges noted above as the Judicial Officer not below the rank of a District Judge to be the Tribunal. Once the Tribunals have come into being in terms of that notification, all that happens is that a Judicial Officer not below the rank of a District Judge in the State Judicial Service, who is posted as the First Additional District Judge of Palakkad, Kozhikode, Kottayam or Kollam automatically becomes the person appointed for the respective Tribunals. The Tribunal is the office of the Judicial Officer posted there and that officer will carry out the duties and functions of the Tribunal. Such appointment has been made by designation as per the notification. Therefore, it is not necessary for any particular Judicial Officer to be further clothed with any notified power to act as the Tribunal. No fresh notification is necessary following every transfer order of Judicial Officers. 5. Section 7 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, for short, "V&A Act", provides that the Government may, by notification n the gazette, constitute one or more than one Tribunal for the purpose of that Act and that the Tribunal shall consist of a single person who is, or has been, or is qualified to be appointed as a District Judge. Different notifications were issued by the Government from time to time in exercise of power under that Act. With the passage of time, the High Court noted that the work of the Forest Tribunal at Palakkad is very light and it does not provide full time work for a District Judge. Different notifications were issued by the Government from time to time in exercise of power under that Act. With the passage of time, the High Court noted that the work of the Forest Tribunal at Palakkad is very light and it does not provide full time work for a District Judge. The High Court informed that fact to the Government and also that most of the work pending before the Tribunal is from Kozhikode area and that the High Court, after considering the matter in detail, is of the opinion that the Forest Tribunal at Palakkad be shifted to Kozhikode so as to enable the High Court to appoint the Tribunal concurrently as Additional District Judge, Kozhikode, and to assign him regular judicial work pending before the District Court, Kozhikode. This fact is reflected in the Explanatory Note to SRO.No.64/92, GO(Ms.)No.3/92/F&WLD dated 21.1.1992. The Government examined the matter and accepted the proposal of the High Court to abolish the Forest Tribunal at Palakkad and to constitute the same at Kozhikode. By that notification, the Government, in supersession of the earlier notification, in exercise of the powers conferred under sub-section 1 of Section 7 of V&A Act, constituted with effect from 1.2.1992, a Forest Tribunal at Kozhikode with jurisdiction all over the State. The Government had accepted the High Court's opinion so as to enable the High Court to appoint the Tribunal concurrently as Additional District Judge, Kozhikode. This, read in conjunction with Section 7 of the V&A Act, clearly shows that once the Tribunal is so constituted as per that notification, no further notification is necessary when a Judicial Officer, who is a District Judge, is posted to the Tribunal. Such posting and transfer on the administrative side by the High Court will amount to an appointment, for all intents and purposes, to that Tribunal. As in the case of EFL Act, the Tribunal is the office and the person who is posted there, who is also a District Judge borne in the State Higher Judicial Service, is the person who will carry out the duties and functions of that Tribunal. The transfer and posting of judicial officers in that cadre is within the administrative domain of the High Court. The transfer and posting of judicial officers in that cadre is within the administrative domain of the High Court. Therefore, the principles stated in the preceding paragraphs regarding EFL Act and the consequences of transfer and posting of judicial officer will apply on all fours as regards Tribunal under the V&A as well. 6. For the aforesaid reasons, it is hereby declared that (i) Following general transfers or other transfer orders of Judicial Officers in the Subordinate Judiciary from time to time, the person manning any Tribunal constituted in terms of Section 9 of the EFL Act, on transfer, will handover charge as may be ordered by the High Court in its proceedings on the administrative side and such handing over charge of the Tribunal is sufficient to clothe the person in-charge to discharge all functions and powers in terms of the EFL Act and a Judicial Officer who is appointed as the First Additional District Judge of the respective stations noted above would, upon such transfer and posting and assumption of charge, automatically stand as the Judicial Officer manning that particular Tribunal under the EFL Act. No further notification is necessary for that person to discharge functions under that Act. On such transfer and posting, he will take charge also as the Officer of the Tribunal and discharge duties and responsibilities contemporaneous with the functions as First Additional District Judge in the respective stations. (ii) Following general transfers or other transfer orders of Judicial Officers in the Subordinate Judiciary from time to time, the person manning the Tribunal constituted in terms of Section 7 of the V&A Act, on transfer, will handover charge as may be ordered by the High Court in its proceedings on the administrative side and such handing over charge of the Tribunal is sufficient to clothe the person in-charge to discharge all functions and powers in terms of the V&A Act and a Judicial Officer who is appointed as the Additional District Judge, Kozhikode would, upon such transfer and posting and assumption of charge, automatically stand as the Judicial Officer manning that Tribunal under the V&A Act. No further notification is necessary for that person to discharge functions under that Act. On such transfer and posting, he will take charge also as the Officer of the Tribunal and discharge duties and responsibilities contemporaneous with the functions as Additional District Judge, Kozhikode. No further notification is necessary for that person to discharge functions under that Act. On such transfer and posting, he will take charge also as the Officer of the Tribunal and discharge duties and responsibilities contemporaneous with the functions as Additional District Judge, Kozhikode. This original petition is ordered accordingly.