Kerala High Court
* 1. P.Noorudheen vs State Of Kerala
Author: K.Harilal
Bench: K.Harilal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.HARILAL
MONDAY, THE 23RD DAY OF JUNE 2014/2ND ASHADHA, 1936
WP(C).No. 28791 of 2010 (O)
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OA.NO. 558/1976 OF FOREST TRIBUNAL, KOZHIKODE
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PETITIONERS:
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* 1. P.NOORUDHEEN,( D I E D) - LR'S IMPLEADED:
PALLATH HOUSE, THRIKKALLUR, THACHAMPARA,
PALAKKAD DISTRICT.
** 2. P.HAMZA, ( D I E D) - LR'S IMPLEADED:
PALLATH HOUSE, THRIKKALLUR, THACHAMPARA,
PALAKKAD DISTRICT.
*SUPPLEMENTAL PETITIONERS IMPLEADED:
3. THITHYKUTTY, M/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
4. JASEERA, W/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
5. MUHAMMAD FAHIM (MINOR),
S/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
6. FATHIMA FIDA, (MINOR),
D/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
7. FAYIDA (MINOR),
D/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
Kss ..2/-
..2....
WPC.NO.28791/2010 (O)
8. AYISHA FAIHA (MINOR),
D/O.LATE NOORUDEEN,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
(PETITIONERS 3 TO 8 ARE MINORS REPRESENTED BY THEIR
GUARDIAN THE MOTHER THE 2ND PETITIONER)
*ARE IMPLEADED AS SUPPLEMENTAL PETITIONERS 3 TO 8
(LEGAL HEIRS OF 1ST PETITIONER) AS PER ORDER DATED
30/01/2014 IN I.A.NO.1249/2014 IN WPC.
**9. SAIFUNEESA, W/O.LATE P.HAMZA,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
10. ADIL.P.,S/O. LATE P.HAMZA,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
11. AMINA P,D/O.LATE P.HAMZA,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
12. AJSAL.P., S/O. LATE P.HAMZA,
PALLATH HOUSE, THRIKKALLUR,
THACHAMPARA, PALAKKAD DISTRICT.
**ARE IMPLEADED AS SUPPLEMENTAL PETITIONERS 9 TO 12
(LEGAL HEIRS OF 2ND PETITIONER) AS PER ORDER DATED
30/01/2014 IN IA.NO.1256/2014 IN WPC.
BY ADVS.SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
RESPONDENTS:
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1. STATE OF KERALA, REPRESENTED BY
THE CONSERVATOR OF VESTED FORESTS, KOZHIKODE.
2. THE CUSTODIAN AND CONSERVATOR OF VESTED FORESTS,
KOZHIKODE.
R1 & R2 BY SPL.GOVERNMENT PLEADER (FOREST)SRI.M.P.MADHAVANKUTTY
SRI.M.P.PRAKASH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 23-06-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Kss
WPC.NO.28791/2010 (O)
APPENDIX
PETITIONER'S EXHIBITS:
EXT.P1: COPY OF THE JUDGMENT DATED 14/06/1979 IN O.A.NO.588/1976
OF THE FOREST TRIBUNAL, PALAKKAD.
EXT.P2: COPY OF THE JUDGMENT DATED 4/08/2000 IN MFA 222/1989 OF
THIS HON'BLE COURT.
EXT.P3: COPY OF THE ORDER DATED 4/07/2008 IA NO.944/2008 IN MFA
NO.222/1989 OF THIS HON'BLE COURT.
EXT.P4: COPY OF THE APPLICATION, IA NO.250/2008 INOA NO.588/1976
FILED BY THE PETITIONERS BEFORE THE FOREST TRIBUNAL.
EXT.P5: COPY OF THE APPLICATION, IA NO.251/2008 IN O.A.NO.558/1976
FILED BY THE PETITIONERS BEFORE THE FOREST TRIBUNAL.
EXT.P6: COPY OF THE APPLICATION, IA NO.350/2008 FILED BY THE
PETITIONERS BEFORE THE FOREST TRIBUNAL.
EXT.P7: COPY OF THE STATEMENT DATED 21/08/2009 SUBMITTED BY THE
PETITIONERS BEFORE THE FOREST TRIBUNAL.
EXT.P7(A): COPY OF COUNTER AFFIDAVIT OF THE RESPONDENT.
EXT.P8: COPY OF THE JUDGMENT DATED 2/03/2010 IN WPC.NO.2529/2010.
EXT.P9: COPY OF THE ORDER OF THE FOREST TRIBUNAL, KOZHIKODE
DATED 25/05/2010 IN I.A.250/08 INI O.A.558/76.
RESPONDENT'S EXHIBIT:
EXT.R2(A): COPY OF THE ORDER DATED 22/09/1988 IN I.A.NO.318/1997 INI
O.A.NO.558/76.
/TRUE COPY/
P.A.TO JUDGE
Kss
K.HARILAL, J.
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W.P.(C).No.28791 of 2010
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Dated this the 23rd day of June, 2014
J U D G M E N T
The petitioners are the successors in interest of one Rugmini Varassair, who filed O.A.No.588 of 1976 before the Forest Tribunal, Palakkad under Sec.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short 'the Act'), claiming exemption in respect of 7 acres of land under Secs. 3(1) and 3(2) of the Act. According to the original first applicant, the said 7 acres of land is comprised in Sy.No.96/3 of Nochippully village of Palakkad Taluk as stated in column No.'C' of the prescribed application and as also stated in the schedule attached to the application. The respondents in the application resisted the same by filing a counter affidavit. However, after trial, the Tribunal allowed the application as per order dated 14/06/1979 granting relief under Secs.3(1) and 3(2) of the Act. Subsequently, the respondents filed a review petition as I.A.No.318/87 W.P.(C).No.28791 of 2010 2 before the Tribunal to review the order dated 14/06/1979. After consideration, the Tribunal allowed the review petition as per order dated 22/09/1998 setting aside the order dated 14/06/1979 and allowing the O.A finding that the disputed property is not a private forest on the appointed day and it did not vest in the state. The respondents then filed MFA 222/89 before this Court challenging the order passed in the review petition. This Court dismissed the above MFA as per judgment dated 04/08/2000.
2. Thereafter, the department has taken steps for survey and demarcate the property for restoration of the same to the party. Long after the disposal of the MFA by this Court, the original first petitioner filed I.A.Nos.189/2005 and 190/2005 for amending the survey number of the property mentioned in the order dated 14/06/1979 in the O.A and also for amending the survey number mentioned in the original application respectively contending that the correct survey number of the property W.P.(C).No.28791 of 2010 3 is 93/2. During the pendency of these petitions, the petitioners 2 and 3 got impleaded in the petitions contending that they purchased the entire right of the original first applicant in the O.A. After enquiry, the Tribunal dismissed I.As.189/2005 and 190/2005 as per common order dated 01/03/2008 finding that the Tribunal has no jurisdiction to allow amendments after merging the order of the Tribunal with the judgment of this Court in the MFA. Thereafter, the petitioners filed I.A 944 of 2008 in MFA 222 of 1989 before this Court. This Court disposed the above I.A., directing the petitioners to move before the Tribunal. This Court held that, even though judgment is merged with the appeal, the Tribunal is allowed to deal with the petition for amendment of the schedule as it requires checking the averments. The petitioners were directed to move the Tribunal for amendment of the schedule again.
3. Thereafter, the petitioners filed I.A.Nos. 250/2008, 251/2008 and 350/2008. I.A.Nos.250/2008 and 251/2008 were filed for amending the order of the Tribunal and the W.P.(C).No.28791 of 2010 4 application in O.A respectively. I.A.No.350/2008 was filed for appointing a commissioner advocate to identify the petition schedule property properly with the assistance of a Taluk Surveyor, Palakkad to file a detailed report and plan for the fair and proper adjudication of the matter in issue involved in the amendment application. Thereafter, the Tribunal heard the matter in detail and dismissed all the I.As by the common order under challenge. The legality and propriety of the findings under which all the applications are dismissed are under challenge in this writ petition.
4. The learned counsel for the petitioners advanced arguments challenging the findings in the impugned order. According to the petitioners, what is sought to be amended is only a correction in the survey number as well as the name of the village. In the original application, the survey number was shown as 96/3. But, while executing the decree, forest officials themselves realised the fact that actual survey numbers are 93/2 and 91/4 of Pudupariyaram No.1 village in Palakkad Taluk. Thus, the W.P.(C).No.28791 of 2010 5 amendment is sought for on the basis of verification of the revenue records by the forest officials themselves. As far as the boundaries or extent of the property is concerned, there is no difference at all. Therefore, the identity of the property is not in dispute. In that view, the amendment sought to be made is only a correction. Similarly, in the original application, the village was shown as Nochippully Village; but Nochippully was a Desom only in Pudupariyaram-1 village. Thus, the correct village in which the disputed property lies is Pudupariyaram No.1 village. The survey number was not correctly incorporated in the said petition due to inadvertent clerical mistake and consequently, the same has crept in the order passed by the Tribunal also. Hence, the amendments as regards survey number and name of the village are sought both in the original application as well as the decree passed thereunder.
5. Per contra, the learned Special Govt. Pleader advanced arguments to justify the findings under which the W.P.(C).No.28791 of 2010 6 Tribunal dismissed the application. According to the learned Special Govt. Pleader, the amendment sought to be made as regards the survey number and name of the village will change the identity of the property in dispute itself. Therefore, the Tribunal can be fully justified in rejecting the application. Since, the amendment was sought for in the decree it may fetch far reaching consequences, by changing the identity of the property itself. According to the Special Govt. Pleader, Sy.Nos. 93/2 and 91/4 are lying about 1 k.m away from the Sy.No. 96/3. Sy.Nos.93/2 and 91/4 are still forest area containing huge teak trees. These trees are very valuable trees and the attempt of the petitioner is to grab the forest wealth by way of making an amendment in the order obtained by them.
6. Heard both sides and I have given my anxious consideration to rival contentions raised at the Bar. The question that emerges for consideration in this writ petition is, whether there is any illegality or impropriety in any of the findings under which the Tribunal disallowed the I.As W.P.(C).No.28791 of 2010 7 filed by the petitioner ?
7. Going by the records, in column No.C, it is specifically stated that 7 acres of property is in Sy.No.96/3 of Mundoor Amsom, Nochippully Desom in Palakkad Taluk. The four boundaries of the said 7 acres of property are specifically described. As per the schedule, the boundary at the north is Chundipillyparambu, at the east is Kalakudiyiruppu, at the south is Cherumala and at the west is Manarkkad paramba. The schedule also contained the side measurements as 95 x 88 (6 feet koles). But, now in the amendment application, the petitioners have stated that, on verification of the revenue records at the time of execution of the decree, it is learnt that the correct survey number of the property is 93/2 and 91/4 of Nochippully desom of Pudupariyaram village in Palakkad District. According to the respondents, the amendment sought to be made in the decree would change the identity of the property itself. As regards the amendment sought for in the name of village as Nochippully village, it is seen that, W.P.(C).No.28791 of 2010 8 Exts.A2 to A7 tax receipts, on which, the petitioners claim their right and title, are seen issued from Nochippully Village office. So, the amendment in the name of village may be a mistake.
8. But, as regards the survey number, the present amendment goes against their earlier pleadings. As rightly contended by the respondents, if the amendment sought for is allowed, it may substitute the identity of the property. In the above view, I am of the opinion that the identity of the property in view of the amendment sought to be incorporated must be decided at first before considering the question of amendment. It is pertinent to note that I.A.No.350/08 was filed for appointing an experienced Advocate Commissioner to identify the petition schedule property properly with the assistance of the Taluk Surveyor, Palakkad and to file a detailed report and plan for the fair and proper adjudication of the matter. In my view, it is proper to allow the said application at first to decide the question of identity of the petition schedule property. If the W.P.(C).No.28791 of 2010 9 Commissioner finds that the property comprised in Sy.No.93/2 and 91/4 of Nochippully Desom of Pudupariyaram No.1 village is a different one, certainly, the amendment cannot be allowed. But, if the Commissioner finds that the property comprised in above survey number is one which lies within the four boundaries specifically described in the application in OA, certainly, the amendment can be allowed.
9. In view of the above findings, the common order under challenge passed by the Tribunal is set aside and I.A.No.350 of 2008 will stand allowed. The other two applications I.A.Nos.250/08 and 251/08 will stand restored on the files but the same shall be considered after getting the commission report as to the identity of the property. The tribunal shall pass an order appointing a senior Advocate as Commissioner. The Commissioner must be assisted by a competent surveyor. The identity of the property must be ascertained on the basis of the schedule attached with the order sought to be executed and records W.P.(C).No.28791 of 2010 10 in the possession of forest department. It is also made clear that the parties are at liberty to make amendment in the work memo to be given to the commissioner so as to get the identity of property more clearly. The tribunal shall pass orders afresh on I.A.Nos.250/2008 and 251/2008 after considering the commission report also.
This writ petition is allowed in part.
K.HARILAL, JUDGE.
Stu //True copy// P.A to Judge