Unknown vs By Adv.Sri.C.P.Mohammed Nias on 31 May, 2016

[Cites 5, Cited by 0]

Kerala High Court

Unknown vs By Adv.Sri.C.P.Mohammed Nias on 31 May, 2016

These appeals arise from a common order dated 31.5.2016 passed by the Tribunal for E.F.L. Cases, I Additional District Court, Kozhikode in O.A.No.9/2012, 10/2012 and 11/2012. In fact, M.F.A.(Forest) 84/2016 arises from the order in O.A.9/2012, M.F.A.(Forest) 85/2016 arises from the order in O.A.10/2012 and M.F.A.(Forest) 86/2016 arises from the order in O.A.11/2012. The respective claimants before the Tribunal in the said original applications are the appellants herein. The respondents in all these appeals were the respondents before the Tribunal.

2. The facts for consideration of these appeals are as follows:

One A.K. Khadarkutty was in possession of about 1871.99 acres of land in Peria village of Mananthavady taluk. Out of the said property, an extent of 75 acres of land was taken on lease by one Puthiya Veettil Anandan as per document No.524/1967 of SRO Thalassery. It is also the M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 2 case that thereafter the said Puthiya Veettil Anandan died in the year 1968. On his death, the right in the property devolved upon his wife Kousalya Anand, and children Jeevan Anand, Rajeev Anand, Madhu Anand, Vinu Anand and Jayakrishnan. The District Collector, as per proceedings No.D.Dis.22062/70.(G2) dated 22.12.1970 granted clear felling permit in respect of 60 acres of land out of the above 75 acres of land. Thereafter the Kerala Private Forest (vesting and assignment) Act 1971 came to be enacted and the entire 75 acres of land was declared to be vested in Government. Then, the then owners filed OA 74/1991 before the Forest Tribunal, Kozhikode, alleging that the property was not vested. As per the order dated 26.3.1993, it was ordered that out of the 75 acres, 45 acres of land were not liable to be vested under Section 3 (3) of the Act 1971. Thereon, 45 acres of land was restored to the then owners by virtue of proceedings dated 6.3.1998. It is the case of the appellant in MFA 84/2016 is that he purchased 7.5 acres from the above referred Rajeev Anand M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 3 as per sale deed dated 14.1.1999 registered as document No.145/1999 of SRO Mananthavady. Another 7.5 acres was purchased from Vinu Anand and Jayakrishnan as per document No.1747/2000 of SRO Mananthavady. The appellant in M.F.A. 85/2016 purchased 15 acres of land from Rajeev Anand, the power of attorney holder of his brother Jeevan Anand as per sale deed dated 14.1.1999 registered as document No.147/1999 of SRO Mananthavady. The appellant in MFA 86/2016 purchased 15 acres of land from Rajeev Anand as per sale deed 14.1.1999 registered as document No.146/1999 of SRO Mananthavady.

3. Now, a notification was issued in respect of 18.2 hectares of land comprised in resurvey No.8/1 A1A2 of Peria village of Mananthavady taluk as ecologically fragile land. As there was some mistake in respect of the southern boundary of the property, an erratum notification was published. The stand of the State is that as the land is M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 4 ecologically fragile land, it is vested in the government as per the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. The right, title and interest over the property is vested in the government, free from all encumbrances as per the said Act. It is also the contention that the properties have been in the absolute possession and control of the State with effect from 2.6.2000, the appointed day. Since the question to be considered in all these applications was one and the same, the tribunal ordered a joint trial and dismissed the applications. Challenge is against the said order of dismissal.

4. When these appeals came up for hearing, the learned counsel appearing for the appellants submitted before this court that here is a case where earlier a challenge was raised in respect of vesting under the earlier Act i.e. Kerala Private Forests (Vesting and Assignment) Act, 1971. When there was earlier an order of a competent court regarding the nature of the property and a finding to M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 5 the effect that it was not liable to be vested, to circumvent such a judicial order, a new notification cannot be issued for the vesting of the same property. In support of the said contention, the learned counsel appearing for the appellants drew our attention to the decision of a Division Bench of this court in State of Kerala v. Kumari Varma [2011 (1) KLT 1008]. It is submitted before us that when court found land cultivated with cardamom and exempted it under Vesting Act 1971, it cannot be treated as ecologically fragile land merely because it is lying contiguous or encircled by a reserve forest or vested forest. Apart from the said argument, the learned counsel also argued before this court that on facts also, it is brought out that there was coffee plantation. When there was coffee plantation, and immediately before the Act, 1971 was promulgated, it was cleared for cultivation and 45 acres were exempted from vesting, then it can be said that the exempted extent cannot be considered as an ecologically fragile land. In support of M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 6 the said contention, it is also brought to our notice that the court appointed Commissioner also reported that there was coffee plants. The nature of the property was detailed in the commission report as well as in the expert report. When there is admittedly signs of plantation and when the contention of the forest department that it is only in 1998 it handed over the property and from 2000 onwards it is again in their hand, then that much signs itself will be an indication that, it is not an ecologically fragile land and cannot be vested in the Government.

5. The learned Special Prosecutor submitted before this court that, later, another Division Bench of this court in Planters Forum v. State of Kerala [2015 (2) KLT 783] held that the judgments delivered under 1971 Act by virtue of Section 3 (1) are not binding but their relevancy as an evidence cannot be impeached. The submission of the learned Prosecutor is that this court can look into the earlier judgment but cannot be treated as res judicata on M.F.A.(FOREST) Nos.84, 85 & 86 of 2016 7 the issue of whether it is a forest land or not.

6. In these cases, the appellants are raising two aspects for consideration; one is that, it is a coffee estate and as such it will not come either under the definition of b

Unlock Advanced Research with PRISMAI

Kerala High Court