RSA No.1792 of 2010(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1792 of 2010(O&M) Date of decision: 11.5.2010 State of Haryana ......Appellant(s) Versus Sukhpal Singh & others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Deepak Girotra, Assistant Advocate General, Haryana. Rakesh Kumar Garg, J. CM No.5526-C of 2010 and RSA No.1792 of 2010(O&M) Vide aforesaid application, prayer for condoning the delay of 335 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-respondents has been decreed and the appellant- Department was restrained from cutting and removing the trees standing in the land owned and possessed by the respondents as detailed in the head note of the plaint. Along with this application, an affidavit of Mr. M.L. Kashwan, HFS, Divisional Forest Officer, Sirsa was filed mentioning the reasons because of which the filing of the appeal was delayed. The main ground taken by the appellant reads as follows:- “That in filing the above RSA delay has been occasioned due to the reasons that the legal opinion on the judgment and decree dated 19.1.2009, passed by the learned Addl. District Judge, Sirsa was forwarded to RSA No.1792 of 2010(O&M) 2 the office of the Divisional Forest Officer, Sirsa, by the office of District Attorney, Sirsa, vide Endst. No.1125/DAS/09 dated 4.5.2009, whereby the learned District Attorney opined that the case is not fit for filing the appeal. However, it was also intimated that the limitation for filing the appeal expires on 5.6.2009. The Legal Remembrancer and Secy. To Govt. Haryana, Law and Legislative Department, vide its Memo No.28824/Co.29(317) 2003 dated 22.5.2009, further opined that it is not a fit case for filing the RSA, however, the Divisional Forest Officer, Sirsa Forest Division, Sirsa vide its letter memo No.1442 dated 3.9.2009, requested the Legal Remembrancer, that the Department wants to file RSA in this case and requested that instructions be imparted to the Advocate General, Haryana, Chandigarh for filing the RSA in the above case. The legal Remembrancer, Haryana, vide its Endst. No.50936 dated 17.9.2009 accorded the necessary sanction for filing the RSA. On receipt of the necessary sanction for filing the RSA from the Legal Remembrancer, Haryana, the Advocate General, Haryana, Chandigarh was approached and requested for preparing the RSA and filing the same and as per instructions of the Advocate General, Haryana, the relevant documents, certified copies of judgments and decrees of the lower courts below and other respective and related documents were collected and forwarded to the office of the Advocate General, Haryana and during this process delay of 335 RSA No.1792 of 2010(O&M) 3 days has been occasioned in filing the present RSA. The said delay in filing the RSA was neither willful nor malafide.” From the aforesaid submissions made in the affidavit, it is established that the present appeal has been filed by the Divisional Forest Officer, Sirsa on his own and against the advice of the Legal Remembrancer, Haryana. Learned counsel appearing on behalf of the State has also submitted 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, but admittedly, there is nothing on record to suggest that the Administrative Head of the Department i.e. Financial Commissioner & Principal Secretary to Govt. of Haryana, Department of Forest, Chandigarh, has given permission to file this appeal. It may also be noticed here that a similar case i.e. RSA No.568 of 2010 was dismissed on 29.3.2010 being barred by limitation and not maintainable for want of necessary permission by the Administrative Head of the Forest Department. In that case, it was noticed that Special Leave Petition in a similar case filed by the State of Haryana before the Hon'ble Apex Court has been dismissed. In the present application no such fact of dismissal of SLP has been disclosed. In view of the fact that there is no permission by the Financial Commissioner & Principal Secretary to Govt. of Haryana, Department of Forest, Chandigarh, to file the present appeal, I find no reason to condone the delay of 335 days in filing this appeal, which itself is not maintainable for want of permission by the Competent Authority to file the same. RSA No.1792 of 2010(O&M) 4 Thus, the application for condonation of delay as well as the appeal are dismissed. May 11, 2010 (RAKESH KUMAR GARG) ps JUDGE