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2023 Supreme(Online)(KER) 45248
HIGH COURT OF KERALA
K VINOD CHANDRAN, C. JAYACHANDRAN, JJ
GOVERNMENT OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM – Appellant
Versus
ROY KURIAN K.K. – Respondent
MFA (FOREST) NO. 49 OF 2016 | MFA (FOREST) NO. 30 OF 2017 | OA 28/2013
For the Appellants/Petitioners: SRI.M.RAMESH CHANDER(SR.), SRI.MATHEWS K.UTHUPPACHAN, SRI.JOSEPH KODIANTHARA (SR.), SRI.SHARAN SHAHIER, SRI.TERRY V.JAMES
For the Respondents: SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
Possession before the appointed day under the Vesting Act can determine whether land qualifies as a private forest, regardless of its current condition.
Headnote:(A) Kerala Private Forests (Vesting and Assignment) Act, 1971 - Section 8 - Private Forest - The appeal arises from a declaration that the property is not a vested forest - The Tribunal partially allowed the application under the Vesting Act while the State disputed the relief granted. (Paras 1-8)
(B) The importance of title and possession in determining characterization as a private forest was examined, with previous decisions on the matter referenced. No evidence was presented that the scheduled property, developed into a rubber plantation, retained characteristics of a forest as defined under the applicable regulations. (Paras 9-12)
(C) The refusal of relief concerning land title was deemed inappropriate; it was necessary to examine if the scheduled property constituted a private forest under the Vesting Act. Past possession of the land was established. (Paras 13-16)
Findings of Court:
The property is found not to be a private forest and thus does not vest in the government.
Result: Appeals allowed in part.
| Table of Content |
|---|
| 1. facts underlining the appeals and background of the property (Para 1 , 2 , 3) |
| 2. arguments over title and extent of the property. (Para 4 , 5 , 6) |
| 3. court considers applicable law and definitions regarding forest classification. (Para 7 , 8) |
| 4. applicability of previous decisions to present case. (Para 9 , 10 , 11) |
| 5. court finds in favor of the applicants based on possession evidence. (Para 12 , 13 , 14 , 15 , 16) |
C.Jayachandran, J.
These two appeals stem from the order of the Forest Tribunal, Kozhikode in O.A. No.28/2013, which partially allowed an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short), seeking a declaration that the scheduled property is not a vested forest. The total extent of the scheduled property was 1 acre and 24.5 cents, of which, relief was granted only with respect to 55 cents. The appeal first above referred is preferred by the State of Kerala and the Custodian, challenging grant of relief as afore-referred, whereas the appeal second above referred is by the applicants, challenging the refusal of relief in respect of the remaining extent of 69.5 cents, forming part of the scheduled property.
2. The facts:-
The scheduled property (124.5 cents) is comprised in Sy.no.1511/2 of Thiruvillamala Village, which originally belonged to one Rajasree of Kavasseri House. As per document no. 1240/1989 of the S.R.O. Pazhayannur, the scheduled property was sold to one Hassanar, who sold the same to one C.V. Chacko as per document no. 19/2004. Chacko sold the property to one Rukmini Devi vide document no. 2536/2006, who in turn sold it to one Ashraf, from whom the applicants purchased the same as per document no. 2651/2008 of the same S.R.O. Tapioca and other tuber crops were raised in the scheduled property prior to 10.5.1971. The scheduled property was developed as a full-fledged rubber plantation. The rubber trees are aged 40 years. There is a well and a residential house in the scheduled property. The property has no characteristic features of a forest. The possession was sought to be disturbed by the Forest Officials on 7.7.2013, claiming that the scheduled property is a vested forest. There was no notification as required by the statute. The applicants are entitled to the benefit of exclusion, as also, exemptions under Section 3(2) and 3(3) of the Vesting Act. On such premise, declaration as indicated above was sought for.
3. The Divisional forest Officer filed counter statement contending that the scheduled property is a vested forest forming part of 'Cheerakuzhi' malavaram of Vadakkancherry range. The entire malavaram has an extent of 22.94 hectares. The original extent of Cheerakuzhi malavaram was more than 100 acres earlier, of which, 22.94 hectares got vested. The Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F. Act' for short) was applicable to the schedule property. The applicants have encroached into the scheduled property. The present application, filed 33 years after publication of notification, is barred by limitation. The applicants were not the owners on the appointed day; nor was the scheduled property under their personal cultivation as on the said date. The age of rubber trees is much less than 20 years and the disputed property was covered by forest trees as on the appointed day. Sale deed no.2651/2008 does not cover the scheduled property and therefore, the applicants have no title to the same. The respondents sought for dismissal of the O.A.
4. The evidence consists of Exts.A1 to A16(a), supported by the oral evidence of the 2nd applicant and another as PW1 and PW2 respectively. On behalf of the respondents, the Forest Range officer concerned was examined as RW1 and Exts.B1 to B7 documents were marked. The commissioner's report and plan were marked as Exts.C1 and C1(a) respectively.
5. On an analysis of the facts and evidence, the Tribunal found that Ext.A1 title deed propounded by the applicants c
