IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 OP(C).No. 788 of 2010(O) ------------------------ CMA.105/2007 of DISTRICT COURT, PALAKKAD .................... PETITIONER(S) :- ----------------------- JOSEPH VARGHESE, AGED 43 YEARS, S/O.VARGHESE, MADATHIL HOUSE, KARIMKAYAM P.O., MANGALAM DAM, ALATHUR TALUK, PALAKKAD. BY ADV. SRI.JOHNSON VARIKKAPPILLIL SRI.AJEESH K.SASI RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, PALAKKAD. 2. FOREST RANGE OFFICER, ALATHUR RANGE, REPRESENTED BY GOVERNMENT PLEADER. SPECIAL GOVERNMENT PLEADER MR.P.M.POULOSE THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt S.S.SATHEESACHANDRAN, J. ---------------------------------------- O.P.(Civil) No.788 of 2010 ---------------------------------- Dated this the 19th day of November 2010 J U D G M E N T Confiscation order passed over a motor vehicle allegedly involved in a forest offence under the provisions of the Kerala Forest Act by the authorized officer was challenged by the petitioner/appellant, owner of that vehicle, before the District Judge, Palakkad, preferring an appeal under Section 61D of the above Act. That appeal was dismissed for default vide Ext.P3 order. Impeaching the correctness of Ext.P3 order petitioner has filed this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel appearing for the petitioner and also the learned Special Government Pleader (Forests) for respondent No.2. The dismissal of the appeal filed under Section 61D of the Forest Act without deciding it on merits, is not legal and so much so, challenge against O.P.(Civil) No.788 of 2010 -: 2 :- Ext.P3 order by way of writ petition invoking the extraordinary jurisdiction of this Court is maintainable is the submission of the learned counsel for the petitioner relying on M.K.Raghvan v. Dist. Judge [1988(1) KLT 201]. The District Judge while exercising powers over an appeal preferred under 61D of the Forest Act is acting as a persona designata and therefore duty bound to decide the appeal on its merits whether or not the appellant addressed arguments on the challenges canvassed against the impugned orders passed by the authorised officer is the submission of the counsel. The learned Special Government Pleader pointing out that the appeal had been dismissed under Ext.P3 judgment nearly two years ago, submitted that the challenge against order passed dismissing the appeal for default at this stage by way of writ petition is not entertainable. It is further submitted that till date the petitioner/appellant has not availed the remedy provided under the Code of Civil Procedure which enable him to move a restoration application if at all he was aggrieved by the dismissal of appeal for O.P.(Civil) No.788 of 2010 -: 3 :- default. 3. Section 61D of the Kerala Forest Act which provide a right of appeal to an aggrieved person against the confiscation order passed under Section 61A of the above Act before the District Judge does not in any way indicate in hearing of such appeal, the District Judge is acting as a persona designata and not as a civil court. The Act merely confers jurisdiction on the District Judge to decide the appeal against the confiscation order. When jurisdiction is so conferred on a civil court unless the Statute spells out that such confirmation of jurisdiction has the effect of notifying the judicial officer as a persona designata all adjuncts of judicial authority attached to such court would follow, and so much so, the District Judge empowered under the Section in deciding the appeal is exercising the authority as a civil court. I find no merit in the argument canvassed by the learned counsel for the petitioner that on the absence of the appellant on the hearing date the appeal can be decided only on merits but cannot be dismissed for default. Procedure for hearing O.P.(Civil) No.788 of 2010 -: 4 :- and disposal of the appeal as covered by the Code of Civil Procedure will follow in the case of disposing an appeal under Section 61D of the Forest Act as well, and no doubt, in the event of absence of the appellant, the only course is to dismiss the appeal for default as covered by Order XLI Rule 17 of that Code. On such dismissal for default, as in the case of any other civil appeal, it is open to the petitioner to seek his remedies by moving an appropriate application as provided under Order XLI Rule 19 of the CPC. If any such application is moved by the petitioner with petition to condone delay, no doubt, it has to be disposed of on its merits, in accordance with law. Reserving the right of the petitioner to move application for restoration of appeal dismissed for default, if so advised, the original petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. Jvt