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2017 DIGILAW 41 (KER)

SHAJEER v. STATE OF KERALA, REP BY THE CHIEF SECRETARY TO GOVERNMENT

2017-01-06

SHAJI P.CHALY

body2017
JUDGMENT : By Ext.P1 judgment, the Forest Tribunal, Manjeri ordered restoration of property to the petitioner's father. The matter was taken up in appeal before this Court in M.F.A No.610 of 1983, and finally before the Supreme Court, which all ended in dismissal. According to the petitioner, even though Ext.P1 order is confirmed, no action is initiated to restore the property to the petitioner. In that constrained circumstances, petitioner approached this Court by filing a writ petition and secured Ext.P2 judgment, by which this Court directed the respondents to restore possession to the petitioner and finalize the proceedings within six months from the date of receipt of a copy of the judgment. The said judgment is dated 02.09.2013. It is the contention of the petitioner that in spite of the directives issued by this Court in Ext.P2, as well as the earnest efforts of the petitioner, the matter did not attain a finality, which constrained the petitioner to approach this Court by filing this writ petition. 2. Third respondent has filed a statement refuting the allegations and statements made by the petitioner. Ext.P1 order and the consequential judgment delivered by this Court and the Apex Court is admitted by the 3rd respondent. However, it is submitted, evident from Ext.R3(c), a Mahazar was prepared and the property is handed over to the petitioner. This is stoutly opposed by the petitioner stating that even though a Mahazar was prepared, the encroachers in the property were not removed, and the property is not actually handed over free of encumbrance to the petitioner. It is also contended that the respondents are duty bound to hand over the property without any encumbrance, since the property was taken away from the petitioner without any encumbrance. I find force in the contention. 3. Learned Special Government Pleader also submitted that after the re-survey, the property is not vested with the Forest Department, and is shown as a private land. This is also recorded. 4. In that view of the matter, and since the encroachers who are mentioned in Ext.R3(c) are not parties to this writ petition, it is only appropriate that the 2nd respondent Custodian is directed to receive a representation from the petitioner, and consider the same in accordance with law, after providing an opportunity of hearing to the encroachers who are mentioned in Ext.R3(c). Needless to say, the order passed by the Forest Tribunal as per Ext.P1, and confirmed by this Court in M.F.A, and subsequently by the Apex Court should be carried out in letter and spirit. 5. I think it is only appropriate at this juncture to quote the anxiety expressed by this Court in paragraph 2 of Ext.P2 judgment "Despite the lapse of two decades after the finalization by the Apex Court, no positive step has been taken which made the petitioner to approach this Court by way of this writ petition". Now, more than three years elapsed from the date of the said judgment and still the possession is not restored. The inaction, laches and lapses on the part of the officials can only be viewed as a continued, criminal, reckless, and willful negligence on the part of the officials. The legal system is basically sustained on the faith of the people, which in turn is founded on the delivery of speedy and quality justice by all concerned. 6. In this regard, I am reminded of the view expressed by the Apex Court in 'P. Sambamurthy and others v. State of Andhra Pradesh and another' [ (1987) 1 SCC 362 ] in paragraph 4, which reads as follows: "4. x x x x x x x x x x x x x x x x x x It is a basic principle of the rule of law that the exercise of power by the executive or any other authority must not only be conditioned by the Constitution but must also be in accordance with law and the power of judicial review is conferred by the Constitution with a view to ensuring that the law is observed and there is compliance with the requirement of law on the part of the executive and other authorities. It is through the power of judicial review conferred on an independent institutional authority such as the High Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death knell of the rule of law. Now if the exercise of the power of judicial review can be set at naught by the State Government by overriding the decision given against it, it would sound the death knell of the rule of law. The rule of law would cease to have any meaning, because then it would be open to the State Government to defy the law and yet to get away with it. x x x x x x x x x x x x x x x x x x x". 7. Therefore, the 2nd respondent is directed to take a decision within two months from the date of receipt of a copy of this judgment, and restore possession of the property in accordance with the terms of Ext.P1. The writ petition is disposed of accordingly.