IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 7TH JANUARY 2011 / 17TH POUSHA 1932 WA.No. 1883 of 2010 ------------------------ AGAINST THE JUDGEMENT IN OP.17866/1994 DATED 4.1.2002 .................... APPELLANT/PETITIONER: -------------------------- THE BOMBAY BURMAH TRADING CORPORATION LTD., A COMPANY REGISTERED UNDER THE COMPANIES ACT 1956, HAVING ITS REGISTERED OFFICE AT WALLACE BUILDING, WALLACE STREET, FORT, BOMBAY-400 001, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER DIVAKARAN NOORKATH. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENTS/RESPONDENTS: ----------------------------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS HAVING ITS OFFICE AT PARYAVARAN BHAVAN, CGO COMPLEX, LODHI ROAD, NEW DELHI-110 001. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, AGRICULTURE (FORESTS SPECIAL) DEPARTMENT HAVING ITS OFFICE AT SECRETARIAT, TRIVANDRUM-695 001. 3. THE CUSTODIAN, VESTED FORESTS, STATE OF KERALA, HAVING OFFICE AT OLEVAKODE, PALAKKAD-678 002. R1 BY SRI.T.P.M.IBRAHIM KHAN, ASST. SOLICITOR GENERAL R2 & R3 BY SPECIAL GOVERNMENT PLEADER SRI.P.M.PAULOSE THIS WRIT APPEAL HAVING COME UP FOR ORDRS ON 07/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & Thomas P. Joseph, J. ------------------------------------------ W.A. No.1883 of 2010 & C.M.Appln.No.924 of 2010 ------------------------------------------ Dated this the 7th day of January, 2011 JUDGMENT J.Chelameswar, C.J. This writ appeal is filed with a delay of 2911 days. Therefore C.M.Appln.No.924 of 2010 is filed with the prayer as follows: “For the reasons stated in the accompanying affidavit, it is respetfully prayed that this Honourable Court may be pleased to condone the delay of 2911 days in filing the accompanying Writ Appeal.” 2. A short affidavit in support of the application is filed in a valiant effort to explain the delay. The relevant portion of the affidavit reads as follows: “2. The accompanying writ appeal is filed challenging the judgment dated 4.1.2002 in O.P.No.17866/1994. There is a delay of 2911 days in filing the Writ Appeal. The delay occurred under the following circumstances. 3. The petitioner/appellant had filed another Writ Petition as W.P.(C) 16623/2005, seeking exemption with respect to certain land held by it, under the provisions of the Kerala Private Forests (Vesting & Assignment) Act, 1971. The petitioner bonafide believed that in the event of it getting relief in the said petition, it was not necessary to challenge the judgment impugned herein. But the said Writ Petition No.16623/2005 was dismissed on 14.6.2010. In the circumstances, it has become necessary for the petitioner/appellant to challenge the judgment in both WP(C) Cont. Case (C) No.1883 of 2010 2 No.16623/2005 as also O.P.No.17866/1994. It is therefore respectfully submitted that the delay in filing the accompanying writ appeal was neither wilful nor intentional and that there has been no wilful laches or negligence in the matter. It is also respectfully submitted that unless the delay is condoned and the matter decided on the merits, the petitioner/appellant will be put to irreparable injury, hardship and loss.” 3. In other words, O.P.No.17866 of 1994 was filed seeking a writ of mandamus against respondents 2 and 3 therein restraining the said respondents from taking possession of the land of the petitioner under the Kerala Private Forests (Vesting and Assignment) Act, 1971 on various grounds. The said writ petition was dismissed by judgment dated 4.1.2002. Challenging the correctness of the said decision the instant writ appeal is preferred with the delay as already noticed. The explanation offered by the appellant is that in the year 2005 the appellant filed another writ petition, W.P.(C) No.16623 of 2005 seeking exemption with reference to the land which formed the subject matter of litigation in the writ petition mentioned earlier. The appellant is under a 'bona fide belief' that in the event of his success in the second writ petition (W.P.(C) No.16623 of 2005) he need not question the correctness of the judgment in O.P.No.17866 of 1994. 4. To say the least, the above understanding of the appellant has nothing to do with law. Assuming for the same of argument that Cont. Case (C) No.1883 of 2010 3 the appellant is entitled in law for that kind of understanding or belief, the fact remains that the second of the above mentioned writ petition came to be filed atleast three years after the dismissal of the first writ petition. 5. In the circumstances, condoning the delay in the instant appeal would be an absolute subversion of the judicial process. Therefore, the application is dismissed. Consequently, the writ appeal also is dismissed. J.Chelameswar, Chief Justice Thomas P. Joseph, Judge vns