IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 WP(C).No. 36332 of 2008(A) -------------------------- (OA.NO.58/2001 OF FOREST TRIBUNAL, KOZHIKODE) .................... PETITIONER: ------------------- GREEN ACRES AMUSEMENTS (P) LTD., SAROJA ESTATE, MANANTHAVADY, REPRESENTED BY THE MANAGING DIRECTOR. BY ADV. MR.M.C.JOHN. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. CONSERVATOR AND CUSTODIAN OF VESTED FORESTS, OLAVAKODE CIRCLE, PALAKKAD. 3. DIVISIONAL FOREST OFFICER, MANANTHAVADY, WAYANAD. 4. FOREST TRIBUNAL, KOZHIKODE. R1 TO R4 BY GOVERNMENT PLEADER MR. M.P. PRAKASH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2010, THE COURT ON 24/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.36332/2008-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTIFICATION NO. B3-3881/2001 DTD. 07/05/2001. EXT.P.2: COPY OF THE COUNTER AFFIDAVIT IN O.A. 364/1976. EXT.P.3: COPY OF THE O.A. 58/2001. EXT.P.4: COPY OF THE ADDITIONAL COUNTER AFFIDAVIT DTD. 24/08/2004. EXT.P.5: COPY OF THE I.A. 258/2008 ALONG WITH AFFIDAVIT AND NOTIFICATION. EXT.P.6: COPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER IN I.A. 258/2008. EXT.P.7: COPY OF THE AFFIDAVIT AND PETITION I.A. 297/2008. EXT.P.8: COPY OF THE ORDER DTD. 18/11/2008 IN I.A. 297/2008 IN O.A. NO. 58/2001. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 36332 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of March, 2010. JUDGMENT The petitioner assails Ext.P8 order, by which a prayer to cross examine the deponent of a counter affidavit was declined by the Forest Tribunal. 2. The petitioner was the applicant in O.A. 58 of 2001 before the fourth respondent. The application became necessary when the second respondent published a notification under Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 in respect of 164.540 hectors of plantation comprised in Sy. Nos. 88/1A, 1E, E2, 1C2, A, 1C1, 1D in Thavinjal village, Wayanad. Copy of the notification is produced as Ext.P1. In fact 164.540 Hcts. forms part of a larger extent of 1004.24 Acres. On an earlier occasion, the second respondent had notified 523 acres from the above extent under the relevant Act and Rules. The predecessor in WPC.36332/2008. 2 interest of the petitioner had filed O.A. 364 of 1976 and had succeeded to some extent. The custodian contended that the limited extent of 211.70 Hcts. has been surveyed and taken as vested forest. It was thereafter that the draft notification was issued covering the same area. 3. The petitioner would point out that after the application was filed by him the respondents have been filing counter affidavits after counter affidavits taking inconsistent pleas thereby causing confusion to what exactly is the defence of the respondents in the matter. It was under these circumstances that he was forced to file the application seeking to have the deponent of the counter affidavit cross examined by him. 4. Learned Government Pleader appears on behalf of the respondents. He submits that the prayer is too premature and order XIX Rule 2 CPC has no application to the facts of the case. Through the counter affidavit, the State was only setting up a case and the evidence stage had not reached. Order XIX comes into play only when an WPC.36332/2008. 3 affidavit is filed as a piece of evidence and not when a counter affidavit is filed as an objection to a petition. It was also pointed out that no prejudice is caused to the petitioner by the impugned order, because its rights are safeguarded by the same order. 5. There seems to be considerable force in the submission made by the learned Government Pleader. May be that the it has filed several I.As taking inconsistent stands. But the Tribunal can always insist that the State should limit its defence to any one of the defence taken through the counter affidavits. One shall not forget that the defence can take inconsistent averments also. But it is not necessary to consider those aspects in the present context. Obviously the State will have to confine its defence to any one or two particulars. If inconsistent pleas are taken by the State, it is their worry and that may prove detrimental to them. Of course, the petitioner can say that the State should specify its defences and the court can order so. WPC.36332/2008. 4 6. Order XIX Rule 2 CPC as rightly pointed out by the learned Government Pleader cannot have application in the present context. That can have application only when evidence is furnished by way of an affidavit. That stage has not reached. But however, it is open to the Tribunal to direct the State to specify its defence. Further, the petitioner will have the opportunity to cross examine the witnesses put forward by the State in their defence. Though the reasoning given by the Tribunal may not be fully correct, that does not mean that the order has to be set aside. The fact remains that the prayer of the petitioner is premature. There is no merit in the petition and it is liable to be dismissed. Accordingly, it is dismissed. However, the Tribunal may insist that the State specifies its defence in the matter. P. BHAVADASAN, JUDGE sb.