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2022 Supreme(Ker) 692
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, C. JAYACHANDRAN, JJ.
Geethakumari C., D/o. Late Sethumadhavan Nair & Ors. - Petitioners
Versus
The Chief Secretary, Government of Kerala, Trivandrum & Ors. - Respondents
O.P.(FT) Nos. 6 & 10 of 2019
Decided On : 26-09-2022
For the Petitioner: Rajesh Sivaramankutty, Sri. Mobin Jacob.
For the Respondent: Dinesh Mathew J. Muricken, Nagaraj Narayanan - Spl.GP.
Point of Law : Custodian is merely conferred with a power to restore and not necessarily to decide on any interse disputes regarding title.
Headnote:
Kerala Private Forest (Vesting and Assignment) Act, 1971 - Section 3 (2) and (3), 8(3)(b), 8(1) - Seeking review of the order - Rejection of an application for amendment - Whether an assignee can get benefit of exemption under Section 3(2) & (3), if his predecessor in interest had that right on appointed day - Legal heirs of assignor could take appropriate remedies before the Civil Court and this is not an issue to be agitated before Custodian. (Para 7).
Findings of the Court :
Court leaves legal heirs of assignee to approach Custodian for restoration of property, which shall be considered, bearing in mind, observations made by us herein above. The legal heirs of original assignor, if intending to raise a dispute on title, could raise it in appropriate proceedings before Civil Court. Court make it clear that the role of Custodian is only to make the restoration as a consequence of declaration made by Tribunal and it does not empower Custodian to decide on genuineness of document, especially when same is a registered deed produced before Custodian.
Result : Petition disposed of.
JUDGMENT :
K. Vinod Chandran, J.
Both the Original Petitions arise from a proceeding initiated before the Forest Tribunal, by one Sethumadhavan Nair; now expired. The present dispute is between the legal heirs of Sethumadhavan Nair and the legal heirs of his assignee. O.P (F.T) No. 6 of 2019 is against rejection of an application for amendment, filed by the legal heirs of Sethumadhavan Nair, for altering the extent of the property which was the subject matter of O.A.No.63 of 1975, later renumbered as O.A.No.59/2000. The learned Tribunal found that the order declaring the subject lands to be exempted under Section 3 (2) (3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Act of 1971) was affirmed in an appeal before this Court and the principle of merger, restrains the Tribunal from entertaining a review of its judgment in the O.A. The Tribunal, according to us, rightly found that when the order of the Tribunal has merged with the order in the MFA, there can be no review sought for before the Tribunal. Reliance was also placed on the Full Bench decision of this Court in Thomas v. Kunjamma 2005 (4) KLT 286. O.P. (FT) No.6/2019, hence, has to be rejected, leaving open the remedy if any, before the Division Bench of the High Court, which disposed of MFA No.166/2004.
2. O.P.(FT) No.10/2019 is filed against Ext.P14 order of the Tribunal which rejected the application filed by the legal heirs of Sethumadhavan Nair to review Ext.P8 order.
3. We have heard the learned Senior Counsel Sri. Sethumadhavan for the petitioners, Sri. Dinesh Mathew Murikkan for the party respondents and Sri. Nagaraj Narayanan, learned Special Government Pleader (Forests) appearing for the State.
4. As rightly pointed out by the learned Senior Counsel, the proceedings before the Tribunal had a checkered history which has to be noticed at the outset. On the Act of 1971 coming into force, the department took a stand that the properties belonging to Sethumadhavan Nair was a private forest which stood statutorily vested in the State. Sethumadhavan Nair filed O.A.No.63/1975 before the Forest Tribunal, Palakkad which was allowed by order dated 11.08.1977. On 21.07.1980, by Deed No.2685/1980 of SRO Alathur, produced as Ext.R2(b), Sethumadhavan Nair assigned the property to Sara Philip. Sara Philip sold the property to one Mathunny as per Ext.R2(c), in the year 1981. In the year 1987, by I.A.No.236/1987, the department again approached the Tribunal seeking review of the order dated 11.08.1977. The same was allowed and by order dated 06.12.1988, the O.A. stood dismissed. Against the dismissal, the legal heirs of Sethumadhavan Nair and Mathunny jointly filed an appeal before the High Court. Noticing that the legal heirs/assignees of Sethumadhavan Nair were not impleaded in the review sought for in the above I.A., M.F.A.No.601/1989 so filed was also allowed on merits and the matter was remanded back to the Tribunal. Before the Tribunal, the matter was renumbered as O.A.No.59/2000, which stood allowed by order dated 27.12.2002. This was confirmed by Ext.P2 in M.F.A.No.166/2004. Hence, as of now, the declaration under Section 3(2) & (3) of the Act of 1971 has become final.
5. At this juncture, the legal heirs of Mathunny approached the Tribunal with an application for restoration of the properties. The Divisional Forest Officer filed Ext.P7 objection to that application. The Tribunal rejected the objection and directed the Custodian to restore the property to the applicants therein, by Ext.P8 order. Ext.P8 order was sought to be reviewed in an I.A, on the ground that the legal heirs of Sethumadhavan Nair were not impleaded in the proceedings before the Tribunal. The learned Senior Counsel took us through the provisions of the Act of 1971, specifically Section 8, which speaks of settlement of disputes. According to the learned Senior Counsel, the nature of the dispute is very clearly delineated in the clauses under Section 8(1) and restoration as
