Custodian of Vested Forests, Palakkad v. P.V. Kunhiraman and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE THE AG.CHIEF JUSTICE MR.ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 1ST DAY OF FEBRUARY 2018/12TH MAGHA, 1939 WA.No. 73 of 2015 IN WPC. 12072/2010 AGAINST THE JUDGMENT IN WP(C) 12072/2010 of HIGH COURT OF KERALA APPELLANTS/RESPONDENTS IN THE WPC - 1 CUSTODIAN VESTED FOREST - PALAKKAD. - 2 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. - 3 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS THIRUVANANTHAPURAM. - 4 THE CUSTODIAN OF ECOLOGICALLY FRAGILE LANDS AND CHIEF CONSERVATOR OF FORESTS(WILDLIFE) THIRUVANANTHAPURAM. BY SPL.GOVERNMENT PLEADER SRI NAGRAJ NARAYAN RESPONDENTS/PETITIONERS IN THE WPC: 1. P.V. KUNHIRAMAN - S/O.AMMALU AMMA, KRIPALAYAM, PULLENGODE, KALIKAVU P.O., MALAPPURAM DISTRICT-676525. 2. P.V.KUNHIKRISHNAN 3. P.V.NANIKUTTY 4. P.RAMACHANDRAN ANIMANAL, P.O.ATAKKUNDU, KALIKAVU, MALAPPURAM-676525. 5. P.NIRMALA D/O.LATE K.PADMANABHAN NAIR, -DO-. 6. P.PADMAJA 7. K.GIRIJA,KRIPALAYAM, PULLENGODE P.O., MALAPPURAM-676525. ## W.A.No.73/2015 2 8. M.K.PRABHAKARAN NAIR -DO-. 9. K.ACHUTHANKUTTY 10. K.RAMAKRISHNAN 11. K.VENUGOPAL -DO-. R1-R11 BY ADV. SRI.T.SETHUMADHAVAN (SR.) R1-R11 BY ADV. SRI.PUSHPARAJAN KODOTH - R1-R11 BY ADV. SRI.K.JAYESH MOHANKUMAR - R1-R11 BY ADV. SMT.VANDANA MENON THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **ANTONY DOMINIC, Ag. C.J. & DAMA SESHADRI NAIDU, J.** -----------------------------------------Writ Appeal No. 73 of 2015 -----------------------------------------Dated: 01[st] February, 2018 ## **J U D G M E N T** ## **Antony Dominic, Ag.C.J.** The claim made by the party respondents that 80 Acres of forest is exempted from vesting in the State under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as 'Act' for short) has given rise to this litigation. By the judgment under appeal, the learned Single Judge upheld the claim and directed its demarcation and return to the respondents, in pursuance to Ext.P1 order passed by the Custodian of Vested Forests, in the purported exercise of his powers under Section 3(3) of the Act. It is this judgment which is challenged before us. 2. The facts of the case are that, Pullangode W.A.No.73 of 2015 2 Rubber and Produce Company Limited (hereinafter referred to as 'Company' for short), had in its possession about 4000 acres of land of which more than 2000 acres was developed into plantation. According to the party respondents, the total area included 1630 acres of land, leased out by their predecessor to the Company as early as on 01.05.1910. The area that was developed by the lessee Company included portions of the leasehold area also. They say that, O.S. No.69 of 1949 was filed before the Sub Court, Thalassery, for partition of the aforesaid property and that in I.A. No.734 **/** 1956 final decree was passed on 13.07.1966 allotting 57.5 acres to each of the sharers from the family. 3. On implementation of the Act, private forests, including portions of the area leased out by the predecessor of the party respondents, got vested in the State under Section 3 of the Act with effect from 10.05.1971. Thereupon, the Company, being the W.A.No.73 of 2015 3 lessee, in its capacity as owner as defined in the Act, filed O.A. No.1288/1974 before the Forest Tribunal, Palakkad, which was transferred to the Forest Tribunal, Manjeri, which renumbered it as O.A. No.86/1976. In that O.A. the Company claimed that 1502.53 acres of land comprised in several survey numbers in Eranad Taluk are not private forests and are exempted from vesting under the Act. The Forest Tribunal dismissed the application by its order dated 09.06.1978. The Company challenged the order of the Tribunal before this Court in M.F.A No.426/1978. A Full Bench of this Court, in its common judgment dated 22.03.1984, exempted 80 acres of land towards 'wind-belt' and as the source of firewood for smokehouses. Both sides filed appeals before the Supreme Court and the appeals were disposed of by judgment in **State of Kerala v Pullangode Rubber & Produce Co.Ltd.** (1999(3) KLT 334) where the area exempted was reduced to 28.40 acres of land for W.A.No.73 of 2015 4 ancillary purposes. 4. It is seen that in the proceedings before the Apex Court, on behalf of the respondents, an attempt was made to get themselves impleaded, but, however, the application was rejected on the ground that the claim raised had no relation to the issues in the appeals. The order further shows that the applicants were given the liberty to adopt such proceedings in law, as are available to them against both the State and the Company. 5. Thus the proceedings instituted by the Company, in its capacity as owner, attained finality with the judgment of the Apex Court. In the meanwhile, in 1974, applications were to be made by the party respondents, and in some cases by their predecessors, claiming exemption of forest land under Section 3(3) of the Act, which provided for exemption from vesting of land intended for personal cultivation. On these applications, the Custodian of W.A.No.73 of 2015 5 Vested Forests passed Ext.P1 order dated 12.02.1976, whereby a total extent of 80 acres of land was ordered to be exempted from vesting. It was also ordered that the parties will respectively identify the exact area they want to return and that these areas will be surveyed and demarcated at their respective costs. Subsequently, one of the petitioners in Ext.P1 approached this Court by filing O.P. No.5204/1981 and seeking a direction to the Custodian of Vested Forests to pass orders as contemplated under Rule 6 of the Kerala Private Forests (Exemption from Vesting) Rules, 1974. By Ext.P2 judgment dated 28.02.1983, that Original Petition was disposed of directing the custodian to complete the work as expeditiously as possible, at any rate within six months from the date of receipt of a copy of that judgment. 6. The directions in Ext.P1 judgment were not complied with and instead Ext.P3 memo dated W.A.No.73 of 2015 6 12.04.1988 was filed by the Government before this Court, inter alia stating that the petitioner in the Original Petition had expressed his inability to identify the land over which he raised claim and that this fact was evidenced by a letter addressed by him to the Custodian dated 15.11.1984. The memo further refers to M.F.A. No.426 of 1978 and the pendency of Civil Appeal No.4253 of 1984 filed by the Company before the Apex Court and an order of status quo passed in the appeal. It was while so that the Supreme Court disposed of the appeals by Ext.P5 judgment dated 27.07.1999. Subsequently, the party respondents submitted Exts.P6 and P7 applications seeking implementation of Ext.P1 order of the Custodian. They also approached this Court by filing W.P.(C) No.27696 of 2003, which was disposed of by Ext.P8 judgment dated 03.09.2003 directing disposal of the representations in the light of Ext.P1 order and the Apex Court judgment. Subsequently also W.A.No.73 of 2015 7 representations were filed including Exts.P11 and P12. Finally, Ext.P13 order dated 7.1.2004 was passed rejecting the claim of the respondents and taking the view that Ext.P1 order was not in accordance with law. This order was again challenged before this Court in W.P.(C) No.8783 of 2004. The writ petition was disposed of by Ext.P14 judgment dated 15.9.2008 quashing Ext.P13 and directing implementation of Ext.P1 order by demarcating the properties exempted thereunder and to put the petitioners in possession of the same. The State challenged Ext.P14 judgment in W.A. No.318 of 2009. By Ext.P15 dated 27.5.2009 a Division Bench of this Court disposed of the appeal setting aside Ext.P14 judgment of the learned Single Judge and directed consideration of the representations in the light of Ext.P1 order. Accordingly, the matter was again considered and Ext.P16 order dated 15.10.2009 was passed by the Custodian of Vested Forest taking the W.A.No.73 of 2015 8 view that Ext.P1 order is not in conformity with law and is unsustainable. This was followed by Ext.P17 notification dated 29.06.2009, whereby it was notified for the information of the public that ownership and possession of the land, including the land in question, have been vested in the Government of Kerala, free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the commencement of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. 7. It was in the aforesaid circumstances, the present writ petition was filed by the party respondents seeking to quash Exts.P16 and P17 and to direct the appellants to demarcate and re-convey the property ordered to be re-conveyed to them as per Ext.P1 order. By the judgment under appeal, the learned Single Judge framed the following three issues for consideration: W.A.No.73 of 2015 9 - “ (i) Whether the first respondent could re-open the issues that had already been concluded in Ext.P1 order issued by his predecessor in office? - (ii) Whether Ext.P5 judgment of the Supreme Court had any bearing on the petitioners' claim for exemption, that had been accepted by the first respondent in Ext.P1 order? - (iii) Whether Ext.P17 notification is legally sustainable? 8. In so far as the first issue is concerned, the learned Single Judge held that the 1[st] respondent/Ist appellant/Custodian of Vsted Forest could not re-open the issues concluded by Ext.P1 order. As regards the second issue, the learned Single Judge was of the view that the lands covered by Ext.P1 order are to be treated as lands that are not vested in the Government and that the right of the party respondents over the said land have to be recognised by directing the first appellant to put them in possession of such lands. As regards the validity of W.A.No.73 of 2015 10 Ext.P17 notification, mentioned in Issue No.3, the learned Single Judge held in favour of the party respondents, placing reliance on the principles laid down by a Division Bench of this Court in **State of Kerala** v. **Kumari Varma** (2011 (1) KLT 1008). Accordingly, the appellants were directed to put the party respondents in possession of the land covered by Ext.P1 order after demarcating the same, within a period of three months from the date of receipt of the certified copy of the judgment. It is this judgment which is impugned before us. 9. The main thrust of the arguments raised by the learned Government Pleader was that Ext.P1 order issued by the Custodian of Vested Forests is a void order and therefore the Government is under no obligation to implement the same. According to him, while passing Ext.P1 order, the Custodian has not taken into account the fact that in order to sustain a claim of a person for exemption from vesting under W.A.No.73 of 2015 11 Section 3(3) of the Act, he should prove both the possession of the land in respect of which claim is raised and his intention to cultivate the same. To substantiate the plea that these basic elements are required to sustain a claim under Section 3(3), the learned Government Pleader placed reliance on various judgments of this Court and of the Apex Court, including **State of Kerala** v **Thomas** (1987 (1) KLT 530), **Shakuntala Devi** v **Kamla and others** (2005) 5 SCC 390, **Hamza Haji** v **State of Kerala** (2006 (3) KLT 941) and **Joseph** v **State of Kerala** (2007 (3) KLT 144 (SC). 10. He also raised a contention that an application under Section 3(3) of the Act providing that nothing contained in the vesting provision under Section 3(1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before 10.5.1971 and intended for cultivation by him, which W.A.No.73 of 2015 12 together with other lands held by him to which Chapter III of the Kerala Land Reforms Act,1963 is applicable, does not exceed the extent of the ceiling area applicable to him under Section 82 of the Land Reforms Act, confers a right to claim exemption from vesting in favour of the owner alone. It was argued that the term 'owner' which has been defined in Section 2(c) as including a mortgagee/lessee or other person having right to possession and enjoyment of the private forest. It was contended that admittedly the land in question was under lease to the company and the lessee company in its capacity as owner under Section 2(c) approached the Tribunal constituted under Section 8 and contested till the Supreme Court its claim for exemption from the vesting provisions in the Act. The Government Pleader contended that the lessee as owner having agitated its claim that the land in question is not a private forest as defined under Section 2(f), the W.A.No.73 of 2015 13 original landlord again cannot maintain a claim for exemption under Section 3(3) for the reason that they neither held the land nor did they have any intention to cultivate the land. Relying on the judgment of this Court in O.P.No.13710 of 1997, the learned Government Pleader further contended that the power of the Custodian under the Kerala Private Forests (Exemption from Vesting) Rules, 1974 was confined to a stage up to the publication of notification under Section 6 of the Act. According to the learned Government Pleader, long before Ext.P1 order was passed by the Custodian on 12.2.1976, notification under Section 6 of the Act was issued which was the subject matter of the O.A. filed by the lessee company in 1974. Therefore, according to him, Ext.P1 is an order passed without jurisdiction. All these arguments were contradicted by the learned Senior Counsel appearing for the party respondents. According to him, Ext.P1 order has not been W.A.No.73 of 2015 14 challenged by the State until now. By Ext.P1 order the right of the party respondents for exemption from vesting under Section 3(3) and the extent of land exempted also has been indicated. This order was directed to be implemented by this Court in Ext.P2 judgment and their claim for demarcation of the property was repeatedly ordered by this Court in Exts.P8 and P15 judgments. It is stated that, therefore, the respondents are duty bound to implement Ext.P1 and on that basis demarcate and put the party respondents in possession of a total extent of 80 acres of land. 11. We have considered the submissions made. 12. According to us, the plea of the learned Government Pleader that Ext.P1 order is void and therefore, is liable to be ignored for the aforesaid reasons is only to be rejected. Law is trite that even a void order should be declared to be void and unenforceable by a superior judicial forum. See in W.A.No.73 of 2015 15 this connection the judgment in **Cochin College v Ajith Kumar, K. and another** (ILR 2014(4) Ker.532). 13. In so far as this case is concerned, as early as on 12.2.1976, the Custodian of Vested Forests upheld the entitlement of the party respondents for exemption of land under Section 3(3) of the Act. Despite the lapse of more than 25 years, that order has not been challenged by the appellants. That order was directed to be implemented by this Court and even that judgment has attained finality. In such a factual situation, even if it is assumed that the grounds urged had substance, the Government cannot now seek to wriggle out of its obligations arising out of the intra party judgments which are attained finality. Therefore, the contention raised by the learned Government Pleader is rejected. 14. But, however on other grounds, we feel that the judgment of the learned Single Judge has to be W.A.No.73 of 2015 16 interfered with. 15. As we have already seen, Ext.P17 is a notification issued under the provisions of the Kerala Forests (Vesting and Management of Ecologically Fragile Lands), Act 2003 (hereinafter referred to as EFL Act for short). This Act came into force with effect from 2.6.2000. Section 3 of the Act provides that notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree or order of any court or tribunal or in any custom, contract or other documents, with effect from the date of commencement of the Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. Sub section 2 provides that the lands vested in the W.A.No.73 of 2015 17 Government shall be notified in the gazette and the owner shall be informed in writing by the Custodian and the notification shall be placed before the Advisory Committee constituted under Section 15 for perusal. 'Ecologically fragile lands' have been defined in Section 2(b) and it includes any forest land or any portion thereof held by any person and lying contiguous or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation. The term 'forest' has been defined in Section 2(c) as any land principally covered with naturally grown trees and undergrowth and includes any forest statutorily recognised and declared as reserved forest, protected forest or otherwise. 16. It was in view of Section 3 of the Act read with Section 2(b) and (c) that the forest land is now vested in the Government as ecologically fragile land. This notification was interfered with by the learned W.A.No.73 of 2015 18 Single Judge following the principles laid down by this Court in **Kumari Varma** v **State of Kerala** ([2006] 6 SCC 505). Kumari Varma was a case where the land was initially treated as vested forest under the Act. In the proceedings before the Tribunal, the land was found to be a plantation as on the appointed day, viz. 10.5.1971. Despite the order of the Tribunal finding the land to be not a private forest and in spite of the obligation of the Custodian to restore the owner in possession thereof, the land was not restored to its owner. Subsequently on the coming into force of the EFL Act of 2003, notification was issued under Section 3(2). It was in this background that the writ petition was filed. A Division Bench of this Court took the view that having regard to the binding judgment of the Forest Tribunal which was upheld by this Court, the Custodian had the obligation to restore the owners in possession of the land and that the Custodian having failed to do so and W.A.No.73 of 2015 19 thus effectively prevented the owners from continuing the agricultural operations in the land, cannot take advantage of the natural tree growth and on that basis declare the land to be an ecologically fragile land. To our mind, this judgment, which is now pending in appeal before the Apex Court, having been rendered in totally incomparable factual situation, cannot be of any assistance to the party respondents. 17. As we have already stated, even according to them, the land claimed by the respondents, is a part of 594.78 acres of virgin forest (referred to as uncultivated jungle in N.S.No.1041 and 1042 in paragraph-29 of the Full Bench judgment in **State of Kerala** v **Moosa Haji** (1984 KLT 494 (F.B.). Even today, the land continues to be a virgin forest. Therefore, in so far as the land involved in this case is concerned, both as on 10.5.1971 and thereafter, the land was never a plantation as in the case of Kumari W.A.No.73 of 2015 20 Varma. Therefore, there was no question of the State preventing the owners from continuing agricultural operation of the land and taking advantage of the natural growth in the land subsequent to 10.5.1971 and notify the land as an ecologically fragile land. 18. This, therefore, means that so long as the land is vested in the State as an ecologically fragile land, the ownership thereof stands absolutely vested in the State. This statutory intervention, which took place from 2[nd] of June 2000, when the EFL Act came into force implemented, prohibits the State from parting with the land in question. For that reason itself, the party respondents could not have sought implementation of Ext.P1, at this distance of time. 19. Yet another reason which prevents us from upholding the judgment of the learned Single Judge is the Forest (Conservation) Act, 1980. Forest Conservation Act came into force with effect from 21[st] October 1980. Section 2 of the Forest (Conservation) W.A.No.73 of 2015 21 Act provides that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order provided in clauses (I) to (iv) of Section 2 which reads as under: (i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation 20. Admittedly, the land in question is a forest land and therefore, parting thereof and carrying on any activity thereon is not only prohibited but also a non-forest activity which is impermissible except with W.A.No.73 of 2015 22 the prior approval of the Central Government. Consequently, even if the learned Single Judge had thought it fit to grant reliefs to the party respondents, the maximum that was possible was to direct the State to seek the prior approval of the Central Government in terms of Section 2 of the Forest (Conservation) Act, 1980 and to pass further orders depending upon the order of the Central Government. Instead of adopting such a course, we find that the learned Single Judge has directed implementation of Ext.P1 order under Section 3(3) and thus, to put the party respondents in possession of 80 acres of virgin forest. This was clearly impermissible. 21. We also find is that even going by Ext.P1 order passed by the custodian of Vested Forests, that a local inspection could not be conducted prior to the order because even though the parties concerned were directed to point out the area for which the exemption was claimed by them, they failed to do so. W.A.No.73 of 2015 23 Apparently for that reason, the Custodian has directed that “the parties will respectively identify the exact areas which they want to return. This will be surveyed and demarcated at their respective costs”. In Ext.P2 judgment in O.P.No.5204 of 1981, this Court directed the Custodian to complete the work as expeditiously as possible and at any rate within six months. A reading of Exts.P1 and P2 orders would therefore show that it was the obligation of the parties before the Custodian to identify the exact areas which they wanted to return. Once the parties had identified the area they wanted to return, thereafter survey and demarcation as ordered by the Custodian had to be completed. It was this work which was directed to be completed in Ext.P2 judgment of this Court. In Ext.P3 memo dated 12.4.1988 filed by the learned Government Pleader in O.P.No.5204 of 1981 it is stated that “it is submitted that the petitioner has expressed his inability to W.A.No.73 of 2015 24 identify the land over which he raises his claim. This fact is evidenced by a letter addressed to the custodian by the petitioner dated 15.11.1984”. Although after the judgment was rendered by the Apex Court in 1999, the respondents seem to have filed various representations, in none of the representations, do they have a claim that they have even attempted to identify the land claimed to be returned to them. In the pleadings in the writ petition from which this appeal arises also, there is no such averment. The question of survey and demarcation arises on the basis of Ext.P1 order only after identification of the claimed land is completed. That has not been done till date. 22. From the submissions made before us by the learned Senior Counsel, the reason for the failure of the respondents to identify the land is that the land in question is thick forest and that the land has not been identified by the claimants is an admitted fact. As we W.A.No.73 of 2015 25 have already said, going by the terms of Ext.P1 order, the obligation of the appellants to survey and demarcate the land arises only after identification; and identification of the land having not been done, according to us, the appellants are under no obligation to survey and demarcate the land. The direction of the learned Single Judge to the contrary cannot be sustained and is liable to be set aside. For all these reasons, we are of the view that the judgment under appeal cannot be sustained. The appeal is allowed and the writ petition will stand dismissed. Sd/- ANTONY DOMINIC ACTING CHIEF JUSTICE sd/- DAMA SESHADRI NAIDU JUDGE Jjj/css/