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2017 Supreme(Ker) 1309
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. HARILAL, A.M. BABU, JJ.
STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM AND ORS. - APPELLANTS
Vs.
K.C. PURUSHOTHAMAN S/O. CHELLEN - RESPONDENT
M.F.A. (Forest) No. 128, 129 of 2014 and Cross Objection No.125 of 2017
Decided On : 08-12-2017
For the Appellant : Sri. Nagaraj Narayanan
For the Respondents: Sri. S.K. Balachandran, Smt. N.D. Deepa, Sri. V.K. Nandakumaran
Headnote:
Vesting Act - Private Forest - Section 8 of Kerala Private Forests (Vesting and Assignment) Act, 1971 - Section 3(2) or 3(3) - [Section 2(f)(1)(i) of the Vesting Act] - The court analyzed the definition of 'private forest' under the Vesting Act and emphasized the conditions to be satisfied for a land to fall under the private forest category. The court highlighted the relevance of previous decisions and the incorrectness of the tribunal's enquiry based on dictionary meanings of 'forest'. The judgment influenced by the interpretation of the Vesting Act and previous court decisions led to the setting aside of the tribunal's orders and remittance for a fresh enquiry.
Fact of the Case:
The appellants were respondents in O.A. No. 20 of 2010 and O.A.No.21/2010 on the files of the Forest Tribunal, Kozhikode. The respondents sought a declaration that the petition schedule property is not a private forest and that they are entitled to get the exemption under Section 3(2) or 3(3) of the Vesting Act. The respondents claimed exclusive possession and cultivation of the land, while the State of Kerala and others denied the claims, asserting that the land was a vested forest as per notification No. 4713/77B dated 08.07.1977.
Finding of the Court:
The court found that the tribunal's enquiry was conducted contrary to the scheme under sections 2 and 3 of the Vesting Act. It emphasized the conditions to be satisfied for a land to fall under the private forest category and highlighted the incorrectness of the tribunal's enquiry based on dictionary meanings of 'forest'. The court set aside the tribunal's orders and remitted the original applications for a fresh enquiry.
Issues: The main issue was the determination of whether the application schedule property fell under the private forest category as defined under section 2(f)(1)(i) of the Vesting Act. The court also addressed the incorrectness of the tribunal's enquiry and the relevance of previous court decisions in reaching its decision.
Ratio Decidendi: The court's decision was influenced by the interpretation of the Vesting Act and previous court decisions, emphasizing the conditions to be satisfied for a land to fall under the private forest category. The court highlighted the incorrectness of the tribunal's enquiry based on dictionary meanings of 'forest' and set aside the tribunal's orders, remitting the original applications for a fresh enquiry.
Final Decision: The impugned orders passed by the tribunal in both original applications were set aside and the Original Applications were remitted back to the tribunal for fresh enquiry as contemplated under section 2(f)(1)(i) of the Vesting Act. The tribunal was directed to dispose of the applications afresh, after conducting a proper enquiry and affording an opportunity to both parties to adduce further evidence.
Harilal, J.
Since these appeals are filed on the very same ground and a common question of law, emerges for consideration in both appeals, there appeals are heard together and disposed of accordingly, by this common judgment.
M.F.A.(Forest) No.128 of 2014
2. The appellants are the respondents in O.A. No. 20 of 2010 on the files of the Forest Tribunal, Kozhikode. The aforesaid O.A. was filed by the respondents herein under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (for short 'the Vesting Act'), seeking a declaration that the petition schedule property is not a private forest and that the respondent is entitled to get the exemption under Section 3(2) or 3(3) of the Vesting Act. The parties are referred to as in the original application.
3. According to the averments in the application, the application schedule property, having an extent of 05 acres situated in Sy.No.19 of Thondarnad Village, Mananthavady Taluk, Wayanad District belonged to him and he is in exclusive possession and enjoyment of the said land. It is further alleged that originally the application schedule property belonged to one Puraloth Kunhi Mammed Haji, who orally transferred the property to the applicant before 1963 and from 1963 onwards the land was in his possession and he was doing cultivation in the property. Later on, an unregistered marupattam deed was also executed by the said Kunhi Mammed Haji, in his favour on 30th August, 1963. The application schedule property is not a forest land, as contemplated under the Vesting Act, as on the appointed day and the property was in his personal cultivation and continued to be so, till the date of filing the application. According to him, the entire property is now fully covered with plantations like coconut tree, areca-nut, coffee, pepper vines, medical crops etc. The property does not have characteristics of forest and the M.P.P.F. Act is not applicable to the land. It was possessed and cultivated by the applicant and his predecessor for cultivation and they have actually cultivated the same from the period before 1963. But, recently, the respondent Forest officials made an attempt to obstruct the peaceful possession of the property just prior to the filing of the application. It is also averred that there had been no valid and proper notification. With the above averments, the applicant sought for a declaration, as referred above.
4. The respondents/State of Kerala and others filed counter affidavit, denying the entire averments and claims in the application. According to the respondents, the application schedule property forms a part of huge 'malavaram' known as “Peradasserymala Elamala” having an extent of 16.36 hectares and the said 'malavaram' was notified as a vested forest, as per notification No. 4713/77B dated 08.07.1977. The application schedule property falls in VFC item No. 103 in the said notification. It is further contended that there was no cultivation in the property as on 10.05.1971 and the application schedule property was a vested forest, as on 10.05.1971. The marupattam deed is not a registered one and has no legal validity and the documents produced by the applicant do not relate to the application schedule property. The application schedule property was not under the personal cultivation of the applicant before the appointed day and the said land was a private forest, as contemplated under Section 2(f)(1) of the Vesting Act, as on the appointed day. In the absence of any kind of cultivation under Section 3(2) and registered deed required under Section 3(3) of the Vesting Act, the application schedule property was a private forest, as on the appointed day and the said land is not entitled to get exemption under Sections 3(2) or 3(3) of the Vesting Act.
M.F.A.(Forest) No.129 of 2014
5. The appellants are the respondents in O.A.No.21/2010 on the files of the Forest Tribunal, Kozhikode and this appeal is filed challenging the legality and correctness of the
