RSA No.568 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.568 of 2010 (O&M) Date of decision: 29.3.2010 Divisional Forest Officer ......Appellant(s) Versus Ram Kumar ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ajay Ghangas, Additional Advocate General, Haryana for the appellant. Rakesh Kumar Garg, J. (Oral) CM No.3925-C of 2010 CM is allowed. Affidavit of Mr. Maha Singh, IAS, Financial Commissioner & Principal Secretary to Government, Haryana, Forest Department is taken on record. CM No.1587-C of 2010 and RSA No.568 of 2010 Mr. Maha Singh, Financial Commissioner & Principal Secretary to Government, Haryana, Forest Department and Mr. R.K. Dhankar, Divisional Forest Officer, Yamunanagar are present in Court. Vide aforesaid application, prayer for condoning the delay of 225 days in filing this appeal has been made by the appellant-State which is challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent has been decreed and the appellant-Department was restrained from cutting and removing the trees standing in the land owned and possessed by the respondent as detailed in the head note of the plaint. Along with this application, an affidavit of Mr. R.K. Dhankar, Divisional Forest Officer, Yamunanagar was filed wherein the reasons have RSA No.568 of 2010 (O&M) 2 been mentioned because of which the filing of the appeal was delayed. The main ground taken by the appellant reads as follows:- “That earlier the present case was declared not fit for filing RSA by Legal Remembrancer vide Letter No.26351 dated 8.5.2009, which was received in this office on 18.5.2009. Thereafter the deponent wrote a letter No.1900 dated 9.9.2009 to Ld. Legal Remembrancer, Haryana for declaring the case fit for filing RSA. Ultimately the present case was declared fit for filing RSA by Legal Remembrancer vide letter No.51794 dated 29.7.2009, addressed to A.G. Haryana, which was received in this office on 7.10.2009. Thereafter, a requirement of relevant document of this case was made by Advocate General Haryana to the deponent. Accordingly certified copies of judgment and decrees were obtained and supplied to Advocate General Haryana, Chandigarh along with letter dated 6.11.2009. Thereafter fair typed copies of judgments were got prepared and whole documents for filing RSA were submitted in the office of Advocate General, Haryana on 14.1.2010. Hence due to above whole process there is delay of 225 days in filing of this RSA, which is not knowingly and un-intentional, but bonafide due to time consumed in official process of obtaining prior approvals and permission from the higher authorities. Hence for just and proper decision of the case the delay in filing of this RSA may be condoned, otherwise, the appellant/deponent shall suffer irreparable loss and injury and it will cause great RSA No.568 of 2010 (O&M) 3 prejudice to the rights of the appellants/State of Haryana.” Thus, noticing the fact that Legal Remembrancer, Haryana and Advocate General, Haryana, found that the appeal to be unfit, this Court vide order dated 11.3.2010 directed the State of Haryana to file an affidavit to state as to on what basis/legal opinion, this regular second appeal was filed. On 18.3.2010, an affidavit of Mr. Maha Singh, IAS, Financial Commissioner & Principal Secretary to Government, Haryana, Forest Department, Chandigarh was filed which was taken on record. The relevant paragraph of the aforesaid affidavit reads as follows:- “That these judgments were sent by PCCF, Haryana vide letter dated 17.12.2008 to DFO(T) Yamunanagar for his guidance in such matters. Accordingly DFO (T) Yamunanagar requested LR, Haryana vide letter dated 9.9.2009 to file RSA against the judgment and decree dated 1.4.2009 passed by Ld. District Judge, Yamunanagar. The LR, Haryana while agreeing with the report of DFO (T) Yamunanagar issued instructions to AG, Haryana vide letter dated 24.9.2009 for filing RSA. Accordingly AG, Haryana filed the present RSA.” On noticing the aforesaid averment, the learned State Counsel was asked to show the advice of Legal Remembrancer where he had agreed with the report of DFO (T) Yamunanagar. However, the State counsel was unable to show any such record and in fact, he had submitted that there was no such legal opinion of the Legal Remembrancer. The State of Haryana was also directed to make available the record with regard to filing of this appeal. The Financial Commissioner & Principal Secretary to Government, Haryana, Forest Department, Chandigarh was RSA No.568 of 2010 (O&M) 4 also directed to be present in Court. On 25.3.2010, Mr. Maha Singh, IAS, Financial Commissioner & Principal Secretary to Government, Haryana, Forest Department, Chandigarh who was present in Court, categorically stated that while filing this appeal, no permission was sought from him to file this appeal before this Court being the Administrative Head of the Department. He also submitted that even the factum of dismissal of the Special Leave Petition in similar case filed by the State of Haryana before the Hon'ble Apex Court was not brought to his notice. However, it was argued by the learned State counsel that as per provisions of the Law Department Manual, the Administrative Department can file an appeal even if the Legal Remembrancer/Advocate General, Haryana has opined such a case not fit for appeal. Because of the aforesaid categoric stand taken by Mr. Maha Singh, IAS, that no permission was sought from him, he was asked to file an affidavit which has been filed by him vide CM No.3925-C of 2010. In view of the admitted fact that there is no permission/sanction to file this appeal either by the Advocate General/Legal Remembrancer of the State of Haryana or the Financial Commissioner & Principal Secretary, Department of Forest, State of Haryana, (Head of the Department), the learned State counsel is unable to argue with regard to maintainability of this appeal. Thus, I find no reason to condone the delay in filing the appeal which itself is not maintainable. Thus, the application for condonation of delay as well as the appeal are dismissed. March 29, 2010 (RAKESH KUMAR GARG) ps JUDGE