E. J. Abraham (deceased) and others v. Government of Kerala and Custodian of Vested Forests and Conservation of Forests, Vested Forests, Palghat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 17[TH] DAY OF OCTOBER 2022 / 25TH ASWINA, 1944** **RP NO. 970 OF 2019** **AGAINST THE ORDER/JUDGMENTMFA 17/2012 OF HIGH COURT OF KERALA PETITIONER'S/APPELLANTS:** |1|E.J.ABRAHAM(DIED)| |---|---| |2|JOSEPH E.ABRAHAM, AGED 68 YEARS, S/O.E.J.ABRAHAM,| ||THENARUVI ESTATE, KOOMBARA. .P.O.,VIA KOODARANJI,| ||KOZHIKODE (DT), PIN- 673 604.| |3|MRS.ALICE ABRAHAM (DIED), W/O.LATE E.J.ABRAHAM| |4|MRS.KATHRIKUTTY MATHEW, AGED 67 YEARS,| ||D/O.LATE E.J.ABRAHAM, KURUVINAKUNNEL, THIDANAD.P.O.,| ||KOTTAYAM (DT), PIN -686123.| |5|ANNAMMA ABRAHAM, AGED 63 YEARS, THENARUVI ESTATE,| ||WITH PERMANENT ADDRESS, KOOMBARA.P.O., (VIA),| ||KOODARANJI, KOZHIKODE(DT), PIN -673 604.| |6|MRS.ELIZABETH GEORGE, AGED 61 YEARS, D/O.LATE| ||E.J.ABRAHAM, 2A, NARIUMPARAMBIL COURT, CHITTOOR ROAD,| ||ERNAKULAM, COCHIN -682 018.| |7|MRS.THRESSIAMMA BINOY LOUIS, AGED 60 YEARS, D/O.LATE| ||E.J.ABRAHAM NO.3, LONG BEACH, APARTMENTS, IVTH SEA| ||WARD ROAD, VALMIKI NAGAR, THIRUVANNIYUR, MADRAS| ||-600041.| |8|MRS.CICILY JOSEPH, AGED 58 YEARS, D/O.LATE| ||E.J.ABRAHAM, C302, SAROJINI NAGAR, NEW DELHI -110023.| |9|MRS.LUCY ABRAHAM, AGED 57 YEARS, D/O.LATE| ||E.J.ABRAHAM, WITH PERMANENT ADDRESS THENARUVI ESTATE,| ||KOOMBARA.P.O., VIA KOODARANJI, KOZHIKODE(DT), PIN-| ||673 604.| |10|MR.JOHN ABRAHAM, AGED 55 YEARS, S/O.LATE E.J.ABRAHAM,| ||WITH PERMANENT ADDRESS, THENARUVI ESTATE,| ||KOOMBARA.P.O., VIA, KOODARANJI, KOZHIKODE (DT), PIN| ||-673 604.| |11|MR.GEORGE ABRAHAM AGED 54 YEARS, S/O.LAGE| ||E.J.ABRAHAM, THENARUVI ESTATE, KOOMBARA.P.O., VIA-| **R.P.No.970/2019** **2** KOODARANJI, KOZHIKODE (DT), PIN -673 604. 12 NIRMALA CHANDY, AGED 69 YEARS, D/O.LATE E.J.ABRAHAM, 3E SEA SHELLS, 1ST SEA WARD ROAD, VALMIKI NAGAR, THIRUVANNIYUR, MADRAS -600 041. 13 RITA ABRAHAM, AGED 50 YEARS, D/O.LATE E.J.ABRAHAM, WITH PERMANENT ADDRESS THENARUVI ESTATE, KOOMBARA.P.O., VIA KOODARANJI, KOZHIKODE, PIN -673 604. BY ADVS. PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN ## **RESPONDENTS/RESPONDENTS:** - 1 THE GOVERNMENT OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, TRIVANDRUM, PIN -695 001. - 2 CUSTODIAN OF VESTED FORESTS AND CONSERVATION OF FORESTS, VESTED FORESTS, PALAGHAT, PIN -678 001. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **R.P.No.970/2019** **3** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ. --------------------------------------------** **R.P No.970 of 2019 in M.F.A No.17 of 2012 ------------------------------------------Dated this the 17[th] October, 2022** **==> picture [76 x 10] intentionally omitted <==** ## **K.Vinod Chandran,J.** The review petition is filed for review of the order dated 15.07.2019. The very first ground raised for review is that _'the judgment is against law, the weight of evidence and probabilities of the case, and vitiated by a non exercise of jurisdiction vested in this_ _Hon'ble Court by law'_ ( _sic)_ . At the outset, we have to say that we are not considering an appeal and there can be no rehearing of the matter, in the guise of a review. The contours of review is very well defined; to correct errors apparent on the face of the record, as has been held in _State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612_ . The learned Counsel for the review petitioner hence put forth before us two grounds. That there is no requirement to specifically mention S.3(2) of the Vesting Act in the application filed under S.8 as evident from the form prescribed under the Rules. That the claim as **R.P.No.970/2019** **4** of now survives on the 50 acres and not confined to the 10 acres as has been understood in the judgment under review. **2.** The case before the Tribunal had a checkered career, commencing with O.A. No.163/1976 before the Forest Tribunal, Kozhikode. There were two earlier remands, one considered by the Forest Tribunal, Palakkad, and then by the Tribunal at Kozhikode, the last of which was renumbered as O.A. No.64/2000, and which stood dismissed on 31.10.2001. The applicants claimed exclusion and exemption of 20.23 hectares (50 acres) of land under the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act). The exclusion was claimed under S.2(f)(1)(i)(B) of the Vesting Act. The exemption was claimed under S.3 of the Vesting Act. **3.** The Tribunal found by Annexure D order that there can be no dispute as to the property being covered under the Madras Preservation of Private Forest Act, 1949 (for brevity, MPPF Act); clearly established by Exts.P5 and P7 proceedings respectively dated 29.1.1963 and 8.4.1969 of the District Collector, Kozhikode, which are respectively the sanction for sale under the MPPF Act and the clear felling permit of the property covered under Ext.P1; registered sale deed. The Tribunal first examined the claim under S.2(f)(1)(i)(B) and **R.P.No.970/2019** **5** found that there is cultivation of rubber in the property covered by Ext. P1, to an extent of 40 acres, most of which stood destroyed in a forest fire; which were not replanted since the department interfered with the possession. However, the Tribunal found that despite the documents proving the rubber plantation in 40 acres, in the property covered by Ext.P1 title deed, there is no identification of the said property, on the ground. Since there was no identification of 40 acres covered by Ext.P1 and no material produced to conclude actual cultivation in the remaining land; ie: 10 acres, prior to or as on 10.05.1971, the claim for exclusion was declined. Considering the claim under S.3(3), it was found that the applicants have a registered document of title executed before the appointed day, Ext.P1, and Exts.P5 and P7 were again relied on to find the intention to cultivate. However, since there was no convincing evidence regarding the liability of the applicant under S.84 of the Kerala Land Reforms Act, 1963; ie: whether the lands in possession of the applicants were in excess of the ceiling limit, the application was dismissed finding that the exemption under S.3(3) cannot be granted. **4.** An appeal was filed by the applicants in which Annexure E judgment was passed. There was a limited remand in so **R.P.No.970/2019** **6** far as the enquiry regarding the extent of land possessed by the appellants, to determine if there are lands in excess of the ceiling limit provided under the Land Reforms Act. It was clearly indicated that: _“The questions whether appellants are possessing excess land, what is the extent they are entitled to be exempted under S.3(3) are only to be considered”(sic)_ . A review was filed which was disposed of by Annexure F in which the Division Bench clarified that the findings in favor of the review petitioners are not disturbed and that if they are entitled to get exemption, it shall not be confined to S.3(3), but claim under S.3(2) can also be considered. The operative portion of the order in review reads: _'If they are entitled to get exemption under Section 3(2) or 3(3), the identification of land and possession of land beyond ceiling area etc. are to be considered on remand and remand order is not confined to their claim under Section 3(3) only'(sic)._ The Tribunal passed the order, on the above remand, which was impugned in the instant MFA, the judgment in which is attempted to be reviewed by the petitioners. **5.** On remand, the original application was dismissed by the Tribunal finding that the applicants were not entitled to the benefit of either S.3(2) or S.3(3) of the Vesting Act since they had in **R.P.No.970/2019** **7** their possession lands exceeding the ceiling limit under the Land Reforms Act. In appeal, this Court found that there were only two issues remanded for consideration as per Annexure D; (1) whether the appellants were in possession of land beyond the ceiling limit and (2) what was the extent of land they were entitled to get exempted under S.3(3) of the Act. Later it was clarified in the review petition as per Annexure E; that the exemption claimed may be either under 3(2) or 3(3). It was categorically found that the Appellate Court was bound by the limited remand made by a coequal bench and that though the exclusion under S.2(f)(1)(i)(B) was found in their favor, the question of identity of the property covered under Ext.P1 stood against them. There was no remand on the question of exclusion of the 40 acres of land covered by Ext.P1 which land stood unidentified. As far as the claim for exemption, the Tribunal, on remand, found that it could be considered only under sub section (3) of S.3 of the Vesting Act and whatever be the exemption claimed, the ceiling limit under the Land Reforms Act will have to be satisfied. It was found by the Tribunal that there was no claim raised under S.3(2) of the Act and the claim was only under S.3(3). Even after the remand, there was no amendment sought to incorporate the claim under S.3(2). The **R.P.No.970/2019** **8** learned Counsel for the review petitioner vehemently argued that the Form under S.8 does not prescribe the provision to be noticed and the recital in the application would suffice. We agree with the said contention and notice the recital in the application, which is as follows: _“The land is dispute has been fully planted with Rubber prior to 10-5-71 as per the planting licence issued by the Rubber Board after obtaining clear falling permission from the Dist. Collector under the M.P.P.F. Act and as such the area in dispute is not a private forest. But it is a planted area and has not vested in the Government. But a substantial number of Rubber Trees has been destroyed by wild fire last year and when the applicant started his planting and agricultural operations on 1-5-76, the workers were prevailed by the forest officials stating that the land is dispute is a vested forest. And as such a dispute has arisen whether the land is dispute is a private forest or a plantation and whether it is vested in the Govt.”_ **6.** From the above extract the claim is one of exclusion and not exemption. It is also to be noticed that the wild fire, asserted by the applicants, occurred after the appointed day and there should be evidence of cultivation as on the appointed day; which the **R.P.No.970/2019** **9** Tribunal has inferred, relying on the documents produced. It has to be emphasized that the total schedule land were 50 acres, and the specific pleading was that 40 acres were planted with rubber, most of which trees were gutted in a fire, later to the appointed day. Hence, with respect to the balance 10 acres, there was no pleading of cultivation and the claim was only that it was intended for cultivation, the applicants having held the lands as per a registered document; which is a claim under Section 3(3). **7.** The misunderstanding, on which the review is filed, is that the applicants believe that the issue with respect to 40 acres is still open for consideration; which is not, since the appellate order at Annexure D made a limited remand only with respect to claim under S.3(3), which was later clarified as being applicable to S.3(2) also. This is a claim of exemption, confined to the 10 acres which was not planted as on the appointed day and the claim with respect to 40 acres was one of exclusion under Section 2(f)(1)(i)(B) of the Vesting Act; the 40 acres being cultivated with rubber as on the appointed day. With respect to 40 acres, the Tribunal found that there is documentary proof of a cultivation and it was in that circumstances, the claim on the balance 10 acres was considered under S.3(3), the **R.P.No.970/2019** **10** requirement of which is only an intention to cultivate and not actual cultivation itself. In fact, on the balance 10 acres, even the applicant does not claim cultivation and the claim under S.3(2) does not survive. According to us, the judgment under review clearly found the limited remand and refused to reopen settled issues in Annexure E as clarified in Annexure F orders of this Court, by a coequal bench. The review petitioner cannot agitate the cause in a review from the impugned judgment, which was rendered on the terms delineated by Annexures E and F orders of a coequal bench. The identification of land and question of possession of land beyond ceiling area, as directed in Annexure F; the clarification order issued, does not relate to the 40 acres since the remand was only on the question of exemption and not exclusion. **8.** One other relevant circumstance is the fact that the Tribunal has already passed order dated 14.11.2019 allowing exemption under S.3(3) and holding that it is applicable to the 10 acres only. The Tribunal has found that after excluding the four major children the family consists of 9 minors and would be entitled to an additional standard acre from that determined earlier. It is to be pertinently observed that on the latest remand and on the just **R.P.No.970/2019** **11** previous one; ie: covered by orders dated 14.11.2019 and 30.01.2010, there are no steps taken to identify the 40 acres on which exclusion was claimed. In fact the review itself is filed on the premise that the judgment in review erroneously confined the earlier remand by Annexure E, as clarified by Annexure F, to the claim on 10 acres. If the review petitioners understood the remand by Annexure E, as clarified by Annexure F, to be one, also with respect to the 40 acres and its identification, some steps ought to have been taken, which we find to be totally absent from the order dated 30.01.2010. **9.** For all the above reasons we find no valid ground to review the judgment in M.F.A. 17/2012. The review petition stands dismissed. No order on costs. **Sd/-** ## **K.VINOD CHANDRAN, JUDGE** **Sd/-** ## **C. JAYACHANDRAN, JUDGE** **uu**