Kerala High Court
Shaiju vs The State Of Kerala on 16 August, 2012
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 11TH DAY OF AUGUST 2017/20TH SRAVANA, 1939
MFA.No. 65 of 2013 (A)
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AGAINST THE ORDER IN OA 3/2009 of FOREST TRIBUNAL, KOZHIKODE
DATED 16-08-2012
APPELLANT/APPELLANT:
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SHAIJU,
S/O.K.J.ELIAS,KUZHIYELIL HOUSE, THACHAMPARA VILLAGE,
MANNARKKAD TALUK, PALAKKAD DISTRICT,
REP.BY THE POWER OF ATTORNEY HOLDER,
K.J. ELIAS, S/O.LATE JACOB, KUZHIYELIL HOUSE,
THACHAMPARA VILLAGE, MANNARKKAD TALUK,
PALAKKAD DISTRICT,
NOW RESIDING AT KUZHIYELIL HOUSE, ELAVANCHERRY P.O.,
NEMMARA VIA, CHITTUR TALUK, PALAKKAD DISTRICT.
BY ADVS.SRI.SAJAN VARGHEESE K.
SRI.LIJU. M.P
RESPONDENT(S)/RESPONDENTS:
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1. THE STATE OF KERALA
REP.BY THE PRINCIPAL,
SECRETARY(FOREST AND WILD LIFE),
THIRUVANANTHAPURAM-695001.
2. CUSTODIAN OF VESTED FORESTS, "ARANYA BHAVAN",
FOREST COMPLEX,OLAVAKKODE, PALAKKAD-678002.
3. THE DIVISIONAL FOREST OFFICER,
NEMMARA, PALAKKAD DISTRICT-678508.
R1-3 BY SRI.NAGARAJ NARAYANAN,SPL.GOVT. PLEADER(FOREST)(B/O)
THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11-
08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OKB
"C.R."
K.HARILAL & P. SOMARAJAN, JJ.
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M.F.A (Forest) No.65 of 2013
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Dated this the 11th day of August, 2017
JUDGMENT
Somarajan, J.
Challenging the order dated 16/8/2012 in O.A.No.3/2009 of the Forest Tribunal, Kozhikode the applicant came up with this Miscellaneous First Appeal.
2. The Original Application was filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short, "the Vesting Act") for a declaration that the petition schedule property is not a private forest vested in the Government and that the applicant is entitled to the benefit of Sections 3(2) and 3(3) of the Vesting Act. The claim made by the appellant is based on the acquisition of interest over the property, from one Pettammal, on 31/10/1961. The property originally belonged to Vengunad Kovilakam, according to the applicant. On the death of MFA (Forest).65/13 :2:
Pettammal, her right, interest and title over the property devolved on her son Nagappan Chettiar. His son, one Arumughan, obtained pattayam over the property by virtue of an SM proceedings initiated by Kollengode Land Tribunal and hence claimed exclusive title and right over the property. Their further case is that the property was cultivated with groundnut and tapioca.
3. The respondents contested the application mainly on the reason that the petition schedule property having an extent of 1.87= cents would form part of "Akamalavaram", having a total extent of 5820 hectares and it was notified as vested forest as per Notification No.D1383/77 dated 10/10/77 and disputed the right, title and interest claimed by the appellant. It was also submitted that it is situated in Elavancheri Village in Nenmara at Palakkad and that it was within the purview of Madras Preservation of Private Forests Act, 1949 till the appointed day.
4. The Forest Tribunal, on consideration of the pleadings and evidence tendered by both parties and also MFA (Forest).65/13 :3:
on appreciation of the evidence, found that the applicant failed to establish his right over the property and, resultantly, dismissed the application by the impugned order.
5. Several questions were mooted by the learned counsel appearing for the appellant/applicant regarding the application of Section 8, besides the application of Sections 3(2) and 3(3) of the Vesting Act. It was submitted that the Forest Tribunal did not have jurisdiction to go into the question of title of property involved as it is primarily within the jurisdiction of the Civil Court and it is not permissible for the Forest Tribunal to usurp the jurisdiction of Civil Court. There may not be any quarrel with respect to the legal position that the jurisdiction of the Tribunal is restricted to what is envisaged under Section 8 of the Vesting Act. In order to resolve the dispute, it is necessary to consider what actually is the jurisdiction vested with the Forest Tribunal as envisaged under Section 8 of the Vesting Act. Section 8 of the Vesting Act is extracted MFA (Forest).65/13 :4:
below for reference:
"Settlement of disputes.-- (1) Where any dispute arises as to whether--
(a) any land is a private forest or not; or
(b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, (may, within such period as may be prescribed, apply to the Tribunal) for decision of the dispute. (2) Any application under sub-section (1) shall be in such form as may be prescribed.
(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and-
(a) no appeal has been preferred against the decision of the Tribunal within the period specified thereof; or
(b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the MFA (Forest).65/13 :5:
appointed day]".
(emphasis supplied)
6. On a mere perusal of Section 8 of the Vesting Act, prima facie it appears that the jurisdiction of the Tribunal is restricted to decide whether any land is a private forest and whether such land is vested with the Government. But, the wording used in sub section (1) of Section 8 of the Vesting Act is that "the person who claims that the land is not a private forest or that the private forest has not vested in the Government may apply to the Tribunal for decision of the dispute". This would show that the person who claims that the land is not a private forest or that the private forest has not vested in the Government alone can apply under Section 8 of the Vesting Act for a decision whether the land is a private forest and whether such private forest or any portion thereof has vested in the Government or not. Necessarily the person who claims that the land is not a private forest should be understood in reference to the definition given to the expression "person"
under Section 2(d) of the Vesting Act, wherein an inclusive MFA (Forest).65/13 :6:
definition is given, which is extracted below for reference:
"2(d)- "Person" includes a company, a religious or charitable institution of a public nature, a trust, a Hindu undivided family, a Marumakkathayam tarwad or tavazhi, an Aliyasanthana family or branch and a family governed by the Kerala Nambudiri Act, 1958 (27 of 1958)".
7. The expression "person" is not defined under Section 2(d) of the Vesting Act, but the section says that the expression "person" includes a company, a religious or charitable institution of a public nature, a trust etc. without specifying what actually amounts to the said expression "person". But Section 2(c) of the Vesting Act would give us what actually amounts to the expression "person" which is extracted below for reference.
"2(c)-"owner", in relation to a private forest, includes a mortgagee, lessee or other person having right to possession and enjoyment of the private forest."
It defines the expression "owner" in relation to a private forest and it says that it includes a mortgagee, lessee or other person having right of possession and enjoyment of MFA (Forest).65/13 :7:
the private forest. In Section 8 of the Vesting Act, the expression "owner" is not incorporated. But, in Section 2
(c) of the Vesting Act the expression "owner" in relation to a private forest is defined. A conjoint reading of Sections 2(c), 2(d) and 8 of the Vesting Act would show that the expression "person" used under Section 8 of the Vesting Act stands for "owner" as defined under Section 2(c) of the Vesting Act, which is an inclusive definition and would take in an owner, a mortgagee, a lessee or any other person having right of possession and enjoyment of the private forest. This would show that only an owner or a mortgagee or a lessee or any person having right of possession and enjoyment over a private forest can exhaust the remedy under Section 8 of the Vesting Act. Necessarily, he must show and prove, to the satisfaction of the Tribunal, that he is an owner or a mortgagee or a lessee or a person having right of possession and enjoyment of the private forest in order to maintain an application under Section 8 of the Vesting Act. To that extent, the Forest Tribunal is MFA (Forest).65/13 :8:
empowered to exercise the jurisdiction under Section 8 of the Vesting Act. In other words, the question whether he is the owner of the property or a mortgagee or a lessee or a person having right of possession and enjoyment of the private forest is squarely within the jurisdiction of the Forest Tribunal and the Forest Tribunal is expected to consider the dispute whether the property is a private forest and whether it was vested with the Government, only after satisfying the competency of the person in maintaining an application under Section 8 of the Vesting Act.
8. On coming to the competency of the present appellant in maintaining an application under Section 8 of the Vesting Act, he relied on Exts.A2 to A15 documents, in particular Exts.A7 to A15. Ext.A15 is the oldest document- a tax receipt. It seems to be so strange that the column in which the survey number or the extent of property has to be entered is left vacant in Ext.A15 document. It is not ascertainable from Ext.A15, what is the extent of the MFA (Forest).65/13 :9:
property covered, the survey number, nature or thandaper number, etc. Nothing was mentioned anywhere in the document with respect to the extent of property or its nature or survey number or any identifying factor. Further, this document is prepared by using pencil with date 31/10/1961. In short, Ext.A15 did not have even the value of a scrap of paper. In Ext.A14, another tax receipt, also nothing was mentioned with respect to the property, any identifying details, extent, or survey number, though it is dated 30/9/1972. Two numbers were incorporated in that document as 230 and 239, which may be in reference to the Thandaper account of some immovable properties. But, that is also not disclosed in Ext.A14 document. In Ext.A13, another tax receipt, also nothing was mentioned with respect to the survey number, or extent of the property and the relevant column is left vacant. In all other documents, Exts.A7 to A12, nothing was mentioned with respect to any immovable property, the survey number or extent of property. If it is an unsurveyed land, MFA (Forest).65/13 :10:
that also was not mentioned. So, we could not attach any legal sanctity to Exts.A7 to A15 documents.
9. Then comes the next document, the SM proceedings initiated by the Land Tribunal for assigning 1.87= cents of property comprised in survey No.321/8 (present Sy. No.328/A). Two crucial aspects were brought to our notice by the learned counsel appearing for the appellant that, it is not clear what actually prompted the Land Tribunal to initiate SM proceedings and on what basis such SM proceeding was initiated in the absence of any evidence to show either ownership or leasehold right or mortgage right or any right to possess and enjoy the property in question by the applicant or his predecessor-in- interest. On the other hand, prima facie, it appears that it has been obtained with the connivance of the officer, who issued Ext.A21 certificate. The survey number noted in the SM proceedings is 321/8 having an extent of 1.87= cents of property. At this juncture, it is relevant to go into the petition schedule description wherein the property MFA (Forest).65/13 :11:
description was given as property comprised in survey No. 321/8 (Old Sy.No.273/1) in Elavancheri Village having an extent of 1 Acre 50 cents. This would show that this property was having an old Survey number, viz., 273/1. This survey number did not find a place anywhere in Exts.A7 to A15 documents, which are the documents mainly relied on by the applicant, in order to show his alleged interest over the property. All other documents are the subsequent ones after the issuance of Ext.A21 purchase certificate including the possession certificate alleged to have been issued by the same Village Officer. Needless to say that SM proceeding was initiated after the appointed day. The appellant obtained the property from the above said Arumukhan under Ext.A2 assignment deed on 19/7/2008. At that time, the appellant was aged only 20 years and his father, who claimed to be the Power of Attorney holder under Ext.A1, had given oral evidence as P.W.1. As discussed earlier, there is nothing to show and nothing to bring the appellant within the exhaustive MFA (Forest).65/13 :12:
definition of "owner" or "person" as defined under Section 2(c) and (d) of the Act. So there is utter failure on the part of the appellant to prove his competency to maintain an application under Section 8 of the Vesting Act.
10. On coming to the merits of the case, the case advanced by the appellant is that he was actually possessing the property and used to cultivate the property even prior to the appointed day. But, there is no much dispute with respect to the fact that it is situated in Elavancheri Village in Nenmara, Palakkad. According to the respondents, this property forms part of the large extent of 5820 Hectares, popularly known as "Akamalavaram", situated in Palakkad District, and it was notified as vested forest as per Notification No.D1383/77 dated 10/10/77. The fact that it was part of a malavaram prior to the appointed day, situated in Palakkad Village, would certainly bring the matter within the ambit of the Madras Preservation of Private Forests Act. If that be so, the appellant has to establish the exemption carved out MFA (Forest).65/13 :13:
under Section 2(f)(1)(i) of the Vesting Act for which the appellant claims that he is doing cultivation of groundnut and tapioca in that property. Clause (c) to Section 2(f)(1)
(i) is extracted below for reference.
"(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop".
The question mainly mooted is that groundnut and tapioca would come under the purview of agricultural crops. But, the question that has to be considered at first is, whether the land was cultivated with cashew or other fruit bearing trees or principally cultivated with any other agricultural crops as on the appointed day. No scrap of paper is produced and no evidence is adduced to show that the land was cultivated with either cashew or other fruit bearing trees or any agricultural crops as on the appointed day, except the interested testimony of the Power of Attorney holder as P.W.1. So, we do not have any hesitation to concur with the findings of the Forest Tribunal in dismissing the application. Resultantly, the present appeal MFA (Forest).65/13 :14:
fails and deserves only a dismissal. We do so.
In the result, this appeal is dismissed. No costs.
Sd/-
K.HARILAL, Judge.
Sd/-
P.SOMARAJAN, Judge.
okb.
//True copy//