Kerala High Court
Roy George vs State Of Kerala on 22 March, 2021
Equivalent citations: AIRONLINE 2021 KER 553
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
W.A.No.518/2021 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943
WA.No.518 OF 2021
AGAINST THE ORDER/JUDGMENT IN WP(C) 21815/2012(B) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 ROY GEORGE
S/O. GEORGE JOSE MANDAMALA ESTATE, LAKKIDI P.O,
KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.
2 RONNIE GEORGE,
S/O. GEORGE JOSE MANDAMALA ESTATE, LAKKIDI P.O,
KUNNATHIDAVAKA VILLAGE, VYTHIRI TALUK, WAYANAD DISTRICT.
BY ADV. SMT.NISHA JOHN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PRINCIPAL SECRETARY, FOREST AND WILD
LIFE DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 THE CUSTODIAN OF VESTED FORESTS,
OLAVAKODE PALAKKAD PIN 678 008.
3 THE DIVISIONAL FOREST OFFICER,
SOUTH WAYANAD DIVISION, KALPETTA, WAYANAD 673 121.
4 THE DEPUTY DIRECTOR,
SURVEY AND LAND RECORDS, CIVIL STATION, KALPETTA,
WAYANAD 673 121.
SRI. SANDESH RAJA, SPL. GOVERNMENT PLEADER
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 22.03.2021, THE
COURT ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.518/2021 :2:
Dated this the 22nd day of March, 2021.
JUDGMENT
SHAJI P. CHALY, J.
Petitioners 2 and 3 in W.P.(C) No. 21815 of 2012 are the appellants herein, challenging the judgment of the learned Single Judge dated 15.09.2020, whereby the following reliefs sought for in the writ petition were declined:
1. Declare that after the expiry of 30 years from the date of commencement of the Kerala Private Forest (Vesting and Assignment) Act, 1971, no land can be demarcated and notified under Section 6 of the Act and Rule 2A of the Rules as the same is barred by limitation.
2. Declare that no portion of the petitioners property in Block No. 25 of re survey No. 198 of Kunnathidavaka village is liable to be demarcated and notified as left out vested forest at this distance of time.
3. Restrain the respondents, their subordinates and representatives from interfering in any manner with the petitioner's peaceful possession and enjoyment of the properties concerned.
At the outset it is made clear that the first writ petitioner died during the pendency of the writ petition; however it was not brought to the notice of the court even at the time of disposal of the writ petition.
2. Brief material facts for the disposal of the appeal are as follows:
The appellants and their mother who died while the writ petition W.A.No.518/2021 :3: was pending, were owners and in possession of different extents of property situated in Re-survey No. 198 of Kunnathidavaka Village in Vythiri Taluk. According to the appellants, the properties formed part of a larger extent of the estate known as 'Mandamala Estate' originally owned by Edavalath Kovilakath Sankara Varma Raja having a total extent of 303.92 acres comprising old Survey No. 187. In the year 1928, the land was let out to one Thengummoottil Varghese for 45 years by registered kanam deed No. 601/28 of Sub Registry Office, Vythiri. Later, his legal heirs appointed one K.N. Pothen as the power of attorney and in the year 1962, the said K.N. Pothen purchased the jenm right over the properties as per registered document No. 2818/62 of the office of the Sub Registrar, Vythiri. Thereafter, the deceased Rosamma George's husband namely George Jose purchased 50 acres as per sale deed No. 1375/63 and the late Rosamma George purchased 82.84 acres as per registered sale deed No. 198/68, from the said K.N. Pothen and thus, George Jose and Rosamma George held an extent of 132.84 acres.
3. According to the appellants, the Taluk Land Board, as per proceedings No. 205/73, exempted the entire property as plantation, evident from Ext. P1 dated 10.08.1976. Later, Rosamma George, by various sale deeds, disposed of 69.50 acres to different individuals W.A.No.518/2021 :4: and had retained only 13.34 acres as of 1976. Similarly, her husband George Jose, out of his 50 acres, transferred 35 acres as per document No. 412/74 after retaining a balance of 15 acres. The remaining properties of late Rosamma George and Sri. George Jose extending to 13.34 acres and 15 acres were brought under re-Survey No. 198 along with another 5 acres held by Sri. K.N. Pothen. George Jose obtained permission to convert 15 acres of cardamom plantation into coffee plantation, as per Ext. P2 proceedings dated 29.05.1973. In the year 1977, George Jose gifted his 15 acres to his son, the second petitioner, as per registered sale deed No. 114/77. That apart as per document No. 3384/79, the jenm right held by Sri. K.N. Pothen over the said property was also purchased by the first appellant. Later, the sale transactions were carried out by the appellants as well as late Rosamma George. According to the appellants, the tax was being paid by the respective owners towards the plantation, revenue, as well as the local body.
4. The case projected by the appellants before the writ court was that, under Section 6 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 ('Act, 1971' for short), the private forest in the State has to be surveyed and demarcated by erecting Cairns and a notification under Rule 2A of the Kerala Private Forests (Vesting & W.A.No.518/2021 :5: Assignment) Rules, 1974 shall be published as prescribed. Accordingly, the second respondent published the notification on 04.05.2001 in respect of the areas to be notified as vested forest in South Wayanad Division, evident from Ext. P3. According to the appellants, the properties situated in re-survey No. 198 of Kunnathidavaka village is not included in the said notification. Thereafter, Ext. P4 erratum notification was published notifying large extent of properties situated in Kunnathidavaka village, still the properties of the appellants were not included .
5. It is also the case of the appellants that the custodian of vested Forests, Olavakode, Palakkad District-the 2nd respondent, directed the Deputy Director, Survey and Land Records, Kalpetta, Wayanad District to conduct an inspection of Block No. 25 of Re-survey No. 198 corresponding to old Survey No. 187 and to submit a report in order to identify any private forest left out and notify the same. Accordingly, the Deputy Director of Survey and Land Records submitted Ext. P5 report dated 12.03.2012, and the case of the appellants was that, thereupon the Divisional Forest Officer, South Wayanad Division, informed the Deputy Director of Survey and Land Records, Kalpetta, Wayanad that steps are in progress to notify 5 acres in re-survey No. 198 as vested forest left out. Apparently, the said 5 W.A.No.518/2021 :6: acres is a property that remained together with the properties of late Rosamma George and George Jose specified above, and purchased from Sri K. N. Pothen. The appellants have raised various contentions with respect to the alleged steps taken by the respondents to notify the property in terms of Act, 1971.
6. The State as well as the Divisional Forest Officer have filed separate counter affidavit and statement respectively refuting the claims and demands raised by the appellants and also contending that the appellants are not at liberty to seek a relief so as to disable the statutory authority to duly exercise his power conferred under the Act, 1971. Various other factors were also pointed out, in fact, traversing through the facts and circumstances of the case put forth by the appellants. Anyhow, the respondents have sought for dismissal of the writ petition also stating that if and when the power is exercised by the statutory authority as provided under the Act, 1971, the appellants are left with a remedy to approach the Forest Tribunal.
7. A reply affidavit was filed and has produced additional documents, however, basically reiterating the contentions raised in the writ petition.
8. The learned single Judge, after taking into account the facts W.A.No.518/2021 :7: and figures and the legal contentions raised by the appellants, have come to the conclusion that there is a statutory vesting of private forest in the State and as such a vesting does not depend upon the issuance of a notification and that the vesing takes place by operation of law and does not get postponed to the date of notification which may be issued subsequently after following the procedure prescribed in the Act and the Rules.
9. Anyhow, after assimilating the legal situations, it was held that the appellants are not legally entitled for a declaration that there can be no demarcation and notification under Section 6 of Act, 1971 merely because of expiry of 30 years after the commencement of the Act, since if the appellants' properties are vested forest, the vesting should relate back to the appointed day by operation of law.
10. It was also found that there is no prohibition created under the Act, 1971 for issuing a notification under the Act. It was also held that the appellants are not entitled to a declaration that the property in block No. 25 of Re-survey No. 198 is not liable to be demarcated and notified as left out vested forest in a proceeding under Article 226 of the Constitution of India. However, fact remains that the remedy of the appellants are to approach the statutory Tribunal, if and when any W.A.No.518/2021 :8: such notification was left open. It is, thus, challenging the legality and correctness of the judgment, the appeal is preferred. It is also contended in the appeal that even though an application was filed to implead the legal heirs of the first petitioner in the writ petition, Mrs. Rosamma George consequent to her death, the same was dismissed holding that there is no requirement for impleading the legal heirs and for that purpose, the proceedings in the judgment need not be reopened.
11. We have heard the learned counsel for the appellants Smt. Nisha John and the learned Senior Government Pleader Sri. Tek Chand, and perused the pleadings and materials on record.
12. The learned counsel for the appellants have addressed their arguments on the basis of the deliberations made above. The subject matter of the issue revolves around the provisions of the Act, 1971. The word 'private forest' is defined under Section 2(f) of Act, 1971 as follows:
(f)"private forest" means -
(1) In relation to the Malabar district referred to in sub-section (2) of Section 5 of the state Reorganization Act, 1956 (Central Act 37 of 1956) -
(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the W.A.No.518/2021 :9: appointed day excluding -
(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation. - Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;
(ii)any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas.
Explanation. - For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;"
13. Therefore, in order to have the characteristics of a private forest, it can only be in terms of the Act, 1971. It is also clear from Section 2(f) that certain category properties are excluded from the definition of the private forest. Section 3 of Act, 1971, which deals with 'private forests to vest in Government', reads thus:
"3. Private forests to vest in Government. - (I) Notwithstanding anything contained in any other law for the time being in force, or in any W.A.No.518/2021 : 10 : contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation. - For the purposes of this sub-Section, "cultivation" includes cultivation of trees or plants of any species. (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act.
(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub- section (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be "other dry lands"
specified in Schedule II to the said Act.
14. Therefore, on a reading of Section 3, it is clear that if any property is identified as a private forest in terms of the provisions of the Act, 1971, notwithstanding anything contained in any other law for the time being in force or in any contract or other document, but subject to the provisions of sub-Sections (2) and (3) of Section 3 on and with effect from the appointed day, the ownership and possession W.A.No.518/2021 : 11 : of all private forests in the State of Kerala, by virtue of the provisions of the Act, 1971 shall be transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. Therefore, the provision makes it clear that if it is a private forest, it would vest in the Government automatically, irrespective of any encumbrances or engagements.
15. However, the learned counsel for the appellants have a case that as provided under Section 6 of Act, 1971, a demarcation is to be mandatorily done within a reasonable period from the introduction of Act, 1971 and having not done so, at this belated point of time, the respondents are not at liberty to demarcate any land so as to notify the same under the provisions of the Act, 1971. For the sake of brevity, Section 6 of Act, 1971 is extracted hereunder:
"6. Demarcation of boundaries. - (1) As soon as may be after the appointed day, the custodian shall cause the boundaries of the private forests vested in the Government under sub-section (1) of Section 3 to be demarcated.
"(2) Notwithstanding the pendency of an application under Section 8 before the Tribunal, the custodian may, if he is satisfied that any land is a private forest vested in the Government under sub-section (1) of Section 3, cause the boundaries thereof to be demarcated as if such land has vested in the Government under that sub-section."
16. On a reading of Section 6 also, we could not gather any W.A.No.518/2021 : 12 : meaning that only after demarcation of the property alone, the land would vest in the Government. On the other hand, Section 6 enables the custodian after the appointed day to demarcate the boundaries of the private forest vested in the Government in contemplation of Section 3(1) of the Act, 1971 read with Rule 2A of the rules thereto. Basically, the learned single Judge has taken note of the material provisions of the Act, 1971 and has arrived at the conclusion that the appellants are not entitled to secure the reliefs extracted above.
17. In our considered opinion, when a particular modality is prescribed under the Act, 1971 in regard to the vesting of private forest in the State Government, the appellants are not at liberty to seek relief as was sought for in the writ petition, which if granted would be contrary to law and a writ court is not normally and ordinarily expected to do that. Moreover, when a statutory authority is conferred with a power to do a particular act in a particular manner, no court is at liberty to curtail the power of the authority by invoking the discretionary jurisdiction conferred under Article 226 of the Constitution of India. It is also clear from Sections 7 and 8 of Act, 1971 that the Tribunal constituted is competent and empowered to adjudicate any dispute that arises under the Act, and a statutory framework is prescribed so as to deal with such disputes. Therefore, if W.A.No.518/2021 : 13 : at all the property is demarcated, the appellants are conferred with right, and remedy under law to approach the Tribunal constituted under the Act, 1971. Therefore, it is well settled in law that when a statutory remedy is provided under law to redress the grievances of an aggrieved person, normally that remedy shall be resorted to, rather than invoking the writ jurisdiction. However, appellants could not establish any emergent circumstances so as to exercise the discretionary power conferred on the writ court under Article 226 of the Constitution of India.
18. Further, on a reading of Sections 7 and 8 of the Act, 1971, it is clear that the Tribunal is all powerful to consider a case as that of the one put forth by the appellants in the writ petition if circumstances warrant. Therefore, we do not think, the appellants have made out any case for interference in the judgment of the learned single Judge, there being no jurisdictional error in exercising the discretionary power and other legal infirmities justifying us to do so.
19. Yet another question raised by the appellants is in regard to the dismissal of the application seeking to implead the other legal heirs of late Rosamma George, the first petitioner, in the writ petition, holding that a judgment need not be reopened for the purpose of W.A.No.518/2021 : 14 : impleading the legal heirs. In fact, we are of the opinion that the learned single Judge was right in holding so, since the deceased was duly represented by her legal heirs, the appellants, though there might be other legal heirs. We say so because in the writ proceedings the writ court was only called upon to consider certain statutory requirements of law and not any rights interse by and between the parties.
Upshot of the above discussion is that the writ appeal fails and accordingly, it is dismissed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv