State Of Kerala Represented By Chief Secretary To Government Of Kerala, Thiruvananthapuram v. Mini, W/o. Joseph
2021-08-13
ANIL K.NARENDRAN, MOHAMMED NIAS C.P.
body2021
DigiLaw.ai
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 subsection (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 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.
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 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 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.
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 resubmission 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 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.
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 (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. 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 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'.
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 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.