IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 15TH JUNE 2009 / 25TH JYAISHTA 1931 MFA.No. 119 of 2009 E --------------------------------------- AGAINST THE ORDER DATED 08/04/2009 IN IA.17/2008 IN OA.28/2008 of FOREST TRIBUNAL, PALAKKAD .................... APPELLANT(S): APPLICANTS ----------------------------------------- 1. SHAJAN K.JOHN, AGED 45 YEARS, S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE, MUTTAMBALAM KARA, KOTTAYAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER, P.V.JOHN. 2. SHIBU K.JOHN, AGED 43 YEARS, S/O.LATE JOHN VARGHESE, KALLUPALATHINGAL HOUSE, MUTTAMBALAM KARA, KOTTAYAM DISTRICT, REP. BY HIS POWER OF ATTORNEY HOLDER, P.V.JOHN. BY ADV. SRI.BABU JOSEPH KURUVATHAZHA SRI.K.I.SAGEER RESPONDENT(S): RESPONDENTS: ------------------------------------------------- 1. GOVERNMENT OF KERALA, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, REP. BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS, FOREST HEADQUARTERS, THIRUVANANTHAPURAM. 3. THE DIVISIONAL FOREST OFFICER, MANNARKKAD FOREST DIVISION, MANNRKKAD. M.F.A.NO.119 OF 2009 4. THE FOREST RANGE OFFICER, MANNARKKAD RANGE, PALAKKAD DISTRICT. 5. THE DEPUTY FOREST RANGE OFFICER, PALAKKAYAM FOREST DEPOT, MANNARKKAD-VIA., PALAKKAD DISTRICT. BY SPL. GOVERNMENT PLEADER FOR FOREST SHRI M.P. PRAKASH. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 15/06/2009 ALONG WITH M.F.A.NO.125/09F, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- M.F.A. NOS. 119/09E & 125/09F --------------------------------------------------- Dated this the 15th June, 2009 JUDGMENT Joseph, J. Common questions arise in these Appeals and they are disposed of by a common Judgment. In both these cases, the tribunal constituted under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (hereinafter referred to as the Act), has passed interlocutory orders. In MFA. No.125/09, the tribunal has granted temporary injunction restraining the respondents from interfering with the possession and enjoyment of the petitioners/appellants over the petition schedule property till the disposal of the Original Application. But, it was ordered that the rocky portion of the petition schedule property in Survey No.428/J5 shall not be quarried for stone. It was also ordered that the appellants shall not do any act altering the nature and character of the petition MFA.119 & 125/09 2 schedule property lying in the aforesaid Survey Number and they shall not cut and remove trees therefrom and grow plants or crops therein till the disposal of the Original Application. In MFA No.119/09, the following is the interim order passed: “In the result, this application is allowed granting temporary injunction restraining the respondents from interfering with the collection of latex from the rubber trees standing in the petition schedule properties by the petitioners. However, it is made clear that the petitioners shall not do any act in the petition schedule properties altering the nature and character thereof and they shall not grow plants or crops in the petition schedule properties and cut and remove trees therefrom till the disposal of the Original Application.” The appellants are aggrieved by the portion of the order by which it is made clear that they shall not do any act in the petition schedule properties altering the nature and character thereof and they shall not grow plants or crops in the petition schedule properties and cut and remove trees therefrom till the MFA.119 & 125/09 3 disposal of the Original Application. 2. Notice was served on the respondents. We heard the learned counsel for the appellants and also Shri M.P. Prakash, learned special Government Pleader. Shri M.P. Prakash, learned Government Pleader would raise a preliminary objection. It goes to the maintainability of the Appeals. He would submit that the impugned decision being interlocutory in nature and a decision not having been finally rendered in the Original Applications, no Appeal will lie under the Statute. It is necessary to immediately refer to the Statute in question. Section 11(1) of the Act reads as follows: “11. Appeal to the High Court.-(1) The Government or any person objecting to any decision of the Tribunal may, within a period of sixty days from the date of that decision, appeal against such decision to the High Court. Provided that the High Court may admit an appeal preferred after the expiry of the period of sixty days if it is satisfied that the appellant has sufficient cause for not preferring the appeal within the aforesaid period.” MFA.119 & 125/09 4 3. He would submit that an identical provision as contained in the Kerala Private Forests (Vesting and Assignment) Act, 1971 has been judicially interpreted by this Court in three decisions and therein this Court has taken the view that an Appeal is not maintainable against an interlocutory order and it lies only against final decision. He would, therefore, commend for this Court's acceptance the said view. In Muhammadkutty v. Forest Tribunal (1978 KLT 619), a Division Bench of this Court considered Section 8A(1) of the Private Forests (Vesting and Assignment) Act, 1971 and held as follows: “4. No doubt, use of the word “any” before the word “decision” shows that every decision is appealable. But, that does not mean that every order passed in the proceeding by the Tribunal is appealable. Several orders may have to be passed in a proceeding before the final act of decision. They may have something or other to do with that final act of decision also. But, they are only orders leading up to the decision and are not themselves decisions so as to come within the term “any MFA.119 & 125/09 5 decision”. If it was every order that was intended, that could have been specifically mentioned in S.8A (1). That was not done. That also is significant. The word “decision” as used in S.8A(1) is used in the same sense in which it is used in the preceding S.8. When so interpreted, as “decision” contemplated by that section should have decided the claim referred to in S.8(1) the use of the word “any” before the word “decision” cannot enlarge the scope of the word “decision” so as to take in it orders passed by the Tribunal prior to the act of decision on the claim made in the application. 5. A decision presupposes a contest between the parties. The decision of the Tribunal contemplated by S.8A(1) is that on the dispute made mention of in the preceding section, 8(1) of the Act. Orders passed prior to reaching that decision do not resolve or decide in any manner the dispute raised by the claim. Consequently, they are not the decisions contemplated by S.8A of the Act. That is clear from a reading of the provisions of Ss.8and 8A together. The conclusion, therefore, is that only the decision adjudging the claim made in the application filed under S.8(1) of the Act is MFA.119 & 125/09 6 appealable under S. 8A(1) of the Act and not each and every order passed by the Tribunal in the course of that proceeding leading up to that decision.” 4. That was a case where the tribunal had refused to remit the Commissioner his Report for furnishing certain additional details about the land or in the alternative for the tribunal to make a local inspection of the land. Section 8A(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 reads as follows: “8A. Appeal to the High Court.-(1) The Government or any person objecting to any decision of the Tribunal may, within a period of sixty days from the date of that decision, appeal against such decision to the High Court: Provided that the High Court may admit an appeal preferred after the expiration of the period of sixty days aforesaid, if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the said period.” MFA.119 & 125/09 7 This decision came to be referred, with approval by a Full Bench of this Court in Varkey v. State of Kerala (1980 KLT 632). That was an application filed purportedly under Section 152 of the Code of Civil Procedure for amendment of the decision rendered by the tribunal in the dispute raised under Section 8(1) of the Act. It is necessary to refer to paragraphs 3 and 4 of the said decision which read as follows: “3. S. 8A of the Act provides that the Government or any person objecting to any decision of the Tribunal may, within a period of sixty days from the date of that decision, appeal against such decision to the High Court. The scope of the section was considered by a Division Bench of this Court in Muhammadkutty v. Forest Tribunal (1978 KLT 619) and it was held that every order passed by the Tribunal in a proceeding instituted before it under S.8 of the Act is not appealable under S.8A and that the expression “decision” used in S.8A(1) connotes only the final decision rendered by the Tribunal in the dispute made mention of in S.8(1) of the Act and that orders which do not resolve or finally decide such dispute are not MFA.119 & 125/09 8 appealable under S.8A(1). This decision was followed by another Division Bench of this Court in Unnumbered M.F.As. of 1978 against I.A.Nos.195 and 202 of 1978, to which one of us (Eradi, J. as he then was) was a party. We are in respectful agreement with the aforesaid view. 4. The order now sought to be appealed against is one passed in an application filed purportedly under S.152 of the Civil Procedure Code for amendment of the decision already rendered by the Tribunal in the dispute raised under S.8(1) of the Act. In rejecting the said application, it cannot be said that the Tribunal has passed an order deciding that dispute over again. Such being the position, we consider that the Office is right in raising the objection that the appeal is not maintainable in law. The M.F.A. is accordingly rejected on the ground that an appeal does not lay under S.8A of the Act.” In fact, a Division Bench of this Court has taken the same view in the decision in Damodaran Nambiar v. Government of Kerala (1979 KLT (DB) SN.14 Case No.24). That is referred with MFA.119 & 125/09 9 approval by the Full Bench. 5. Learned counsel for the appellants, Shri Babu Joseph Kuruvathazha, however, in the teeth of these decisions would submit that the Division Bench in Muhammadkutty v. Forest Tribunal (1978 KLT 619) was in error. He would submit that the same error is repeated by the Full Bench. He would also submit that surely some meaning must be assigned to the word “any”. He would also point out that under Section 12 of the Act, powers are conferred on the tribunal as are available to a civil court and, therefore, the appeal is maintainable. He would also point out that there is a different Statute. 6. It is to be noticed that the words which have been employed in Section 8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971, as far as is relevant, are pari materia with the words to be found in Section 11 of the Act in so far as an Appeal can be maintained against any decision. As far as conferment of powers on the tribunal under Section 12 of the Act is concerned, we notice that the tribunal under the Kerala MFA.119 & 125/09 10 Private Forests (Vesting and Assignment) Act, 1971 is having the same powers. Therefore, it cannot by itself advance their case. Secondly, it is to be noted that both Acts related to forests or are analogous to matters arising from disputes as to such lands. 7. It is to be further noted that it is an established principle that when the interpretation of a statutory provision falls for consideration before a Court, it may consider whether the legislature was writing on a clean slate or whether the matter has received the attention of the Courts. If it is a matter where the Courts have spoken, it is indeed a wise principle of interpretation to appreciate that the legislature which must be taken to be knowing the state of the law, when it makes a law which is pari materia with the law judicially interpreted, and it repeats the same words, then it should be taken that the legislature has accepted the interpretation placed by the Courts on such a law. 8. Lastly and more importantly, we would also notice the MFA.119 & 125/09 11 nature of the decision that the tribunals are called upon to make under the Act. Section 10 of the Act provides for the disputes which the tribunals are called upon to deal with. Section 10 being relevant, is extracted hereunder: “10. Settlement of disputes by the Tribunal - (1). Where any dispute arises as to whether - (a) any land is an ecologically fragile land or not; or (b) any ecologically fragile land or portion thereof has vested in the Government or not; or (c) the compensation determined under section 8 is insufficient or not, the person who claims that the land is not4 an ecologically fragile land or that the ecologically fragile land has not vested in the Government, or that the compensation is not sufficient, may within five years from the date of commencement of this Act or within six months from the date of the notification under sub-section (1) of section 4 declaring the land to be an ecologically fragile land or the date of communication of compensation under section 8, as the case may be, or within such time as the Government may notify MFA.119 & 125/09 12 in this behalf, apply to the Tribunal for settlement of the dispute.” 9. Therefore, a tribunal can render a final decision as to whether any land is an ecologically fragile land or not. It can render a final decision as to whether any ecologically fragile land or a portion thereof is vested with the Government or not. Again, it can decide as to whether the compensation determined under Section 8 is insufficient or not. Therefore, it is not as if the word “any” is superfluous. It may be true that when a Court is to construe a Statute conferring appellate jurisdiction, it must generally lean in favour of the interpretation which leads to a wider jurisdiction being vested with the Appellate court. But, here also, we see no reason why we should disagree with the view taken by this Court in two Bench decisions and the Full Bench and as already noted, which has received the legislative recognition by the repetition of the very same words. As a matter of fact, it is to be noted that in Muhammadkutty v. Forest Tribunal (1978 KLT 619), the Division Bench had reasoned that if it was every order that was intended that could have been MFA.119 & 125/09 13 specifically mentioned in section 8A(1) and that was not done. More than two decades after this judicial exposition, when the legislature repeats the very same language, we see no reason why we should take a different view. Therefore, we find that both these Appeals are not maintainable and we dismiss the same. However, we make it clear that this will be without prejudice to any other remedy the appellants have in law. There will be no order as to costs. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge