Kerala High Court
Rosamma Joseph vs State Of Kerala on 6 December, 2010
Author: T.R. Ramachandran Nair
Bench: C.N.Ramachandran Nair, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RP.No. 334 of 2008()
1. ROSAMMA JOSEPH, AGED 70 YEARS,
... Petitioner
2. GEORGE JOSEPH, AGED 49 YEARS,
3. JOSEPH JOSEPH, AGED 55 YEARS,
4. THOMAS JOSEPH, AGED 47 YEARS,
5. JACOB JOSEPH, AGED 42 YEARS,
6. ANNAMMA ROY, AGED 36 YEARS,
7. THRESSIAMMA JOSE, AGED 36 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. CUSTODIAN-EX-OFFICIO SPL.SECRETARY,
For Petitioner :SRI.VIJU THOMAS
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :06/12/2010
O R D E R
C.N.Ramachandran Nair &
T.R. Ramachandran Nair, JJ.
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R.P. No.334 of 2008 in M.F.A.No.197/2007
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Dated this the day of February, 2009.
O R D E R
T.R.Ramanchandran Nair, J.
In this review petition, the petitioners who are appellants in M.F.A.No.197/2007 seek to review the judgment dated 23.11.2007 in the appeal. Along with the appeal, the petitioners had filed C.M.Appl. No.2227/2007 to condone the delay of 31 years, 2 months and 26 days in filing the appeal. It was dismissed by the Division Bench after finding that sufficient grounds have not made out to condone the delay.
2. The petitioners are the wife and children of late Shri Joseph who was an applicant in O.A.No.348/1974 before the Forest Tribunal, Palakkad seeking exemption from the Kerala Private Forest (Vesting & Assignment) Act, 1971 in respect of 2 acres of land. The application was rejected by the Tribunal on 27.3.1976 for want of documentary evidence to prove his claim. He did not challenge the same by filing an appeal, and died on 23.3.1990.
3. In the review petition, the petitioners are relying upon certain documents to show that the same will support the claim. It is averred in the review petition that the property in question is under their enjoyment and RP 334/08 in MFA 197/07 -2- are cultivated mainly with rubber (300 in number). There are jack fruit trees, mango trees and other crops in the said property.
4. When the review petition came up for admission on 27.3.2008 this court passed an interim order directing the Custodian of Vested Forests to make an enquiry as to why the award was not implemented by taking possession of the property. He was directed to make a local inspection of the area and report as to the claim of cultivation, etc. in the property.
5. Pursuant to the same, the Custodian of Vested Forests filed a report on 22.5.2008. In the report the claim of the petitioners that they are in peaceful possession and enjoyment of the property, was disputed. It is stated that they are residing away from the disputed property. The property is a mixed plantation of rubber and other miscellaneous species. The land is having natural vegetation with trees of forestry species. It is an isolated bit of forest. Regarding the planting of rubber trees, the report states that the applicant had planted rubber trees here and there without felling trees and without causing much disturbance to the natural vegetation. It is pointed out that there are no bonafides in filing the review petition. The Tribunal had dismissed O.A.No.348/1974 filed by the predecessor-in- interest of the petitioners after finding that he had failed to establish his RP 334/08 in MFA 197/07 -3- ownership and right of possession over the property prior to the commencement of the Act.
6. The petitioners thereafter filed I.A.No.1906/2008 to appoint an Advocate Commissioner to inspect the property, claiming that the petitioners are still in possession of the property and are still enjoying the usufructuous from the property. This court by order dated 29.9.2008 granted the prayer and appointed an Advocate Commissioner. Accordingly, the Commission has filed a report on 22.10.2008 after conducting a local inspection with notice to both parties.
7. Heard learned counsel for the petitioners and learned Special Govt. Pleader appearing for the Forest Department. Learned counsel for the petitioners submitted that going by the Annexures produced along with the review petition and the report of the Commissioner, it can be seen that the disputed property is not forest land at all and therefore, the rejection of the application for condonation of delay is not justified. It is therefore prayed that the judgment of this court may be reviewed and the matter may be considered on merits. Learned Govt. Pleader strongly opposed the prayer pointing out that there is long delay of 31 years and more in filing the appeal, the deceased applicant never cared to file an appeal at the relevant RP 334/08 in MFA 197/07 -4- point of time and the petitioners have approached this court without any sufficient grounds. It is pointed out that the facts stated in the report of the Custodian of Vested Forests and the report of the Advocate Commissioner are against the case of the petitioners that there is a rubber plantation which is being cultivated and enjoyed by them. It is pointed out that the entire property is not a cultivable land as such. There are yielding rubber trees and some other trees are not having any yield and they are not being tapped also. It is not in a scientific manner and the petitioners are not residing nearby also. A reading of the report of the Commissioner shows the following:
8. There is no identified pathway leading to the property and to reach the property one has to walk one and a half k.m. towards up from the left side of Kanjirapuzha - Irumbakachola Road. There is no motorable road to reach the site. The Commissioner noted that the property is covered by all types of trees. The number of rubber trees available in the property is
302. It contained the following other trees also: Tamarind - 1, Jack tree - 40, Mango tree - 18, Bamboo - 1, Pongalyam - 58, Maruthu - 1, Padachi - 10, Murikku - 4, Coconut rree - 5, Thanni - 4, Cotton tree - 8, Angili - 1, Rosewood - 7, Irul - 15, Vaka - 6 and Vatta - 5. All the trees are mixed. RP 334/08
in MFA 197/07 -5- The Commissioner further reported that the jack trees are having an age of about 30 years, Rosewood about 40 and Coconut tree about 30 years. Twenty numbers of rubber trees are in an age of 20 to 30 years. The rubber trees are of the age of 35 years, according to the petitioners and 20 years by the Forest officials. The Commissioner noted that these trees are not seen tapped in recent times and other rubber trees are smaller in size. In a few trees tapping marks are seen made. But no coconut shells are seen placed on the bottom of the rubber trees for collecting latex. The property is surrounded by rubber plantations stated to be held by other persons. Some photographs of the property have also been produced. The Commissioner also stated that no residential building is seen in the property. A dilapidated shed was seen fallen on the ground. It had a measurement of 7 = meters in length and 3 meters in width which cannot be used for any residential purposes.
9. We have seen the photographs of the property also produced along with the Commission Report. The rubber trees are not seen tapped as evident from the report and the photographs. Various other trees are seen in between the rubber trees also. Going by the report of the Commissioner and the photographs, it can be seen that there are no agricultural activities in RP 334/08 in MFA 197/07 -6- the property. Therefore, the case of the petitioners that they are enjoying the property and are taking usufructuous from the property is only a tall claim.
10. Even though the petitioners contend that the documents produced as Annexures to the review petition will establish the claim, we find that these documents have come into existence after the notified date and are not sufficient to prove the claim, which was based on an oral entrustment alone. The proceedings of the Land Tribunal granting patta cannot bind the Government, as the Forest Department is not made a party in the proceedings before the Land Tribunal. Thus, we are satisfied that the petitioners have not made out any case for reviewing the judgment. The delay admittedly is 31 years, 2 months and 26 days in filing the appeal. The Tribunal had assessed the oral and documentary evidence produced by the applicant to conclude that he had failed to establish his ownership and right of possession over the property prior to the commencement of the Act. This aspect is considered by this court while dismissing C.M.Appl. No.2227/2007. There are no grounds to allow the application for review. The reports of the Custodian of Vested Forests and that of the Advocate Commissioner were called for, since the petitioners asserted that they are in enjoyment of the property and are cultivating it. But the reports show to the RP 334/08 in MFA 197/07 -7- contrary.
For all these reasons, we dismiss the review petition. No costs.
( C.N.Ramachandran Nair, Judge.) (T.R. Ramachandran Nair, Judge.) kav/