IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 22ND SEPTEMBER 2009 / 31ST BHADRA 1931 WP(C).No. 32222 of 2008(J) -------------------------- AGAINST THE ORDER DATED 13.8.2008 IN I.A.NO.131/2008 IN OA.14/2007 of FOREST TRIBUNAL, KOZHIKODE .................... PETITIONER(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARRY (FOREST AND WILDLIFE), THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY GOVERNMENT PLEADER SRI.M.P.PRAKASH RESPONDENT(S): --------------- 1. RADHAKRISHNA MENON, S/O. KOCHOTTIL DEVAKI AMMA, AGED 68 YEARS, PENSIONER, KRISHNA PRABHA, ANGADIPURAM, PERINTHALMANNA. 2. SATHIRATNAM, D/O. CHENGARA PUTHEN VEETTIL DAKSHAYANI AMMA, SWASTHOM, POOJA NAGAR, PUTHUR AMSOM DESOM, PALAKKAD. 3. SATHIDARAN, S/O. MELEKULANGARA LAKSHMIKUTTY AMMA,PENSIONER, PERINTHALMANNA AMSOM DESOM, MALAPPURAM DISTRICT. 4. JANARDHANAN, S/O. KOLANI KAMALAKSHI AMMA, BUSINESS, PULLASSERI DESOM, KARAKURUSII VILLAGE, MANNARKKAD TALUK. 5. VIJAYAKUMAR, S/O. CHENGOLATH JANAKI AMMA, GOVERNMENT EMPLOYEE, RATNA VIHAR, SEKHARIPURAM, PUTHUR, PALAKKAD. 6. RAJEEV, S/O. THNDAYAMPARAMBIL RAVEENDRAN, BUSINESS, EZHAKKAD MUNDUR II VILLAGE, PALAKKAD TALUK. ADV. D.KRISHNAPRASAD FOR R1-R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.32222/08 APPENDIX PETITIONERS EXHIBITS: EXT.P1: COPY OF THE MEMORANDUM IN I.A.NO.14 OF 2007. EXT.P2: COPY OF COUNTER AFFIDAVIT FILED BY THE PETITIONERS HEREIN IN O.A.NO.14 OF 2007. EXT.P3: COPY OF I.A.NO.131/2008 IN O.A.NO.14/2007 ALONG WITH SUPPORTING AFFIDAVIT. EXT.P4: COPY OF OBJECTION FILED BY THE RESPONDENTS TO I.A.NO.131/2008. EXT.P5: COPY OF ORDER DATED 13.8.2008 IN I.A.NO.131/2008 IN O.A.NO.14/2007. /TRUE COPY/ P.A. TO JUDGE S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.32222 OF 2008 () ----------------------------------- Dated this the 22nd day of September, 2009 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the records, leading to Ext.P5 order dated 13.8.2008 in I.A.No.131/2008 in O.A.No.14/2007 of the Forest Tribunal, Kozhikode, and to set aside the same by issuance of an appropriate writ, direction or order. 2. Petitioners are the respondents in O.A.No.14 of 2007 on the file of the Forest Tribunal, Kozhikode. The respondents in the writ petition have filed the above O.A. seeking a declaration that the properties scheduled in the petition as 'D' and 'E' are not private forest liable to be vested under Act 26 of the Kerala Private Forest (Vesting & Assignment) Act, 1971, and they are entitled to the benefit of Sections 3(2) and 3(3) of WPC.32222/08 2 the above Act, with a further direction for restoration of the property to the applicants divested from statutory vesting. Parties are hereinafter referred to as the 'petitioners' and 'respondents' as ranked in the O.A. for the sake of convenience. The respondents in the O.A., the petitioners herein filed objections contending that the claim of the petitioners is unsustainable. Thereupon, the applicants moved Ext.P3 application seeking directions/orders from the Forest Tribunal to compel the production of the documents and files described in their petition. To that application also, the respondents in the O.A. filed objection. Ext.P4 is their objection. The Forest Tribunal, after hearing both sides, allowed Ext.P3 application directing the respondents to produce the documents and files stated in Ext.P3 application. Ext.P5 of the copy of that order. Propriety ad correctness of Ext.P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned Special Govt.Pleader and the learned counsel for the respondents/applicants in the O.A. WPC.32222/08 3 The learned Special Govt.Pleader, inviting my attention to Order XI Rule 14 of the Code of Civil Procedure submitted that production of documents can be ordered by the court only where it is satisfied that such production is essential for adjudication of any matter in question in such suit or proceeding. Reliance is also placed on India Foils Ltd. v. The 5 th Industrial Tribunal, West Bengal and others (AIR 1972 Calcutta 308) to contend that only on such satisfaction, that the documents are essential for resolving any disputes in a suit or proceedings, the court can order for production of documents. The learned Special Govt.Pleader further submitted that vesting of the forest had taken place on the appointed day, that is, on 10.5.1971, and so much so, the documents, which are sought for by the applicants, which relate to some correspondence by the forest officials, at a much later point of time, has no relevance in determining the question whether there was a vesting of the properties scheduled in the petition on the appointed day. To sustain that submission, reliance is placed on State of Kerala and another v. Popular Estates and another ((2004) 12 SCC 434) and also Ranga Sesha Hills (P) Ltd. v. State of WPC.32222/08 4 Kerala (1991 (2) KLT 49). With out adverting to the legal principles applicable, the Forest Tribunal simply expressing a view that the respondents in the O.A., the Government and Forest officials have not claimed any privilege over the documents, which are sought to be produced, according to the leaned Special Govt.Pleader, the application for production of the documents was ordered and that is liable to be set aside as improper and unsustainable under law. On the other hand, the learned counsel appearing for the applicants contended that the properties involved, which are claimed to be vested forest under Act 26 of the Kerala Private Forest (Vesting & Assignment) Act, 1971, long before the appointed day of vesting, that is, even from 1940 onwards are rubber plantations and there was no vesting of such lands as forest under the Act or otherwise. It is further submitted that as the entire burden is on the applicants to show that there was no vesting of the lands as forest, it is of vital importance and significance for the applicants to cause production of whatever materials that is available even in the custody of the Forest officials, and so much so, the documents and files sought for under Ext.P3 application cannot be stated as having no WPC.32222/08 5 relation to the disputes arising for adjudication in the application. The learned counsel for the applicants further submitted that under the Right to Information Act, the Government and Forest officials cannot claim any protection in respect of the documents sought for, and so much so, the objections raised to withhold the production of the documents, which were repelled by the court below as meritless under the imputed order, have to be treated as unworthy of any merit. Inviting my attention to Ext.P4, the objection raised to Ext.P3 application, it is submitted that the challenges canvassed against Ext.P5 order to impeach the correctness of the order passed for production of the documents by the Forest Tribunal were not agitated before the Forest Tribunal, nor any such case canvassed at the time of hearing of the petition. So much so, according to the learned counsel, no interference with Ext.P5 order is called for invoking the visitorial jurisdiction vested with this Court. 4. Order XI Rule 14 of the CPC, which is significant for resolving the challenges raised in the petition read thus: WPC.32222/08 6 14. Production of documents:- It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.” Perusing Ext.P5 order, I find the learned Forest Tribunal has not examined the question whether the documents and files sought for by the applicants “relate to any matter in question in the original application” calling for adjudication by the court. On a mere asking by the party, for production of the documents by the opposite party, the court cannot pass an order for such production and such an order can be passed only on satisfaction that such production of documents is essential and of utmost importance in resolving any of the issues arising for adjudication in the suit or proceedings. So much so, it is apparent that Ext.P5 order has not been passed in compliance with the essential requirements to be satisfied under Order XI Rule 14 of the CPC. In examining the merit of WPC.32222/08 7 Ext.P3 application moved by the applicants as rightly contended by the learned Special Government Pleader, the court is expected to consider as to what is the relevance of the entries recorded by any Forest officials in the files or communication sent to the Government, two decades after the vesting of the lands. The question to be resolved in the application is whether there was vesting of the lands as on the appointed day. In judging that question, communication of the Forest officials or entries in their files, at a much later point of time, normally, will not have much significance. I do not want to express any opinion on that question since that is a matter to be looked into and considered by the Forest Tribunal, if at all raised in the adjudication of the disputes covered by the application. I also do not find any merit in the submissions made by the learned counsel for the applicants that the supply of documents sought for can be claimed by any party under the Right to Information Act. Obtaining information by resolving to that Act and the right conferred thereunder to any party is different from the right of a party in a proceeding or suit to compel production of documents from the opposite party by orders of the court. That can be done only where the WPC.32222/08 8 court is satisfied that the production of the documents is necessary for resolving any of the disputes involved in the suit or proceedings. Setting aside Ext.P5 order, I direct the Forest Tribunal to examine the question afresh taking note of the observations made above and in accordance with law, and pass appropriate orders on Ext.P3 application. Whatever be the orders on Ext.P3 application, I make it clear that at the time of trial, that order will not stand in the way of the applicants in summoning the Forest officials for production of the files and documents. It is open to the court to examine such files, but is not the parties unless permission is accorded by the court. Subject to the above observations, this writ petition is disposed directing the Forest Tribunal to consider Ext.P3 application afresh and pass appropriate orders on such application. S.S.SATHEESACHANDRAN JUDGE prp