Forest Range Officer Meppady and State of Kerala v Velakkattu Moideeen and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **WEDNESDAY, THE 31ST DAY OF JANUARY 2018 / 11TH MAGHA, 1939** ## **RSA.No. 1066 of 2017** ## **AGAINST THE JUDGMENT & DECREE DATED 09-08-2017 IN AS 74/2003 of SUB COURT, SULTHAN BATHERY** **AGAINST THE JUDGMENT & DECREE DATED 25.7.2001 IN OS 285/1998 of MUNSIFF COURT, KALPETTA** ## **APPELLANTS/APPELLANTS/DEFENDANTS** **1 FOREST RANGE OFFICER MEPPADY, P.O, MEPPADY, KOTTAPPADI AMSOM DESOM, VYTHIRI TALUK.** - **2 STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, WAYANAD, CIVIL STATION, KALPETTA NORTH P.O, WAYANAD DISTRICT.** **BY ADV.SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** ## **1. VELAKKATTU MOIDEEN** - **S/O. ABOOBACKER, KODUVALLY AMSOM, DESOM OF KOZHIKODE TALUK - 673 572.** ## **2. THAYYIL NABEESA,** - **W/O. CHOLASSERI SOOPI, P.O, VALLARMALA, VELLARIMALA AMSOM DESOM OF VYTHIRI TALUK - 673 577.** ## **3. VALAKKATTU AMINA,** - **D/O. KIZHAKKODANCHALIL HASSAN HAJI, P.O KODUVALLY, KODUVALLY AMSOM DESOM, KOZHIKODE TALUK - 673 572.** **2** **RSA.No. 1066 of 2017** ## **4. K.C MAMUKOYA,** **S/O. HASSAN HAJI, KIZHEKKOTTUMCHALIL VEEDU, P.O. KUNNAMANGALAM, KOZHIKODE DISTRICT (DIED) - 673 571.** ## **5. BEEVI HAJUMMA,** **W/O. LATE K.C AHAMMEDKUTTY HAJI, AMBATTAKKAL HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT - 673 571.** ## **6. AYSHAKUTTY,** **D/O.LATE K.C AHAMMEDKUTTY HAJI, THAZHETTAKKAYIL HOUSE, KUNNAMANGALAM, KOZHIKODE DISTRICT - 673 571** ## **7. JAMEELA,** **D/O. LATE K.C AHAMMEDKUTTY HAJI, AMBATTAKKAL HOUSE, P.O.KUNNAMANGALAM, KOZHIKODE DISTRICT - 673 571.** ## **8. KHADEEJA,** **W/O.LATE K.C MAMUKOYA, KIZHEKKOTTUMCHALIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT - 673 571.** ## **9. SULAIKHA,** **D/O. LATE K.C MAMUKOYA, KIZHEKKOTTUMCHALIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT - 673 571.** ## **10. MUHAMMED,** **S/O. LATE K.C MAMUKOYA, KIZHEKKOTTUMCHALIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT - 673 571.** ## **11. SABNA,** **D/O.LATE K.C MAMUKOYA, KIZHEKKOTTUMCHALIL HOUSE, KUNNAMANGALAM P.O., KOZHIKODE DISTRICT - 673 571.** ## **R1-R3,R5-R11 BY ADV. SRI.P.K.RAMKUMAR** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **A. HARIPRASAD, J.** ## **------------------------------R.S.A.No.1066 of 2017** ## **---------------------------------------------Dated this the 31[st] day of January, 2018** ## **JUDGMENT** The appeal is admitted on the following substantial questions of law: 1. Is the judgment and decree of Munsiff Court, Kalpetta in O.S No.285/1998 and A.S. No.74/2003 of the Sub Judge, Sulthanbathery decreeing the suit finding that the plaintiffs are having title and possession of the plaint schedule properties is a finding without jurisdiction ? 2. Whether the suit is barred in view of Section 13 of the Kerala Private Forests ( Vesting & Assignment) Act, 1971 ? 3. Whether the finding of the court below that the plaint schedule properties are not vested forest without considering the copy of the notification produced by the state before the appellate court and the finding of the appellate court without taking judicial notice of the notification produced by the State in the appeal is perverse, illegal and in violation of the settled principles laid down by the Hon'ble High Court. **RSA No.1066/2017** **2** 2. Heard the learned Special Government Pleader appearing for the appellant State and the learned counsel appearing for the respondents. 3. Respondents filed a suit for permanent prohibitory injunction. The plaint averments in brief are as follows: Plaintiffs are jointly cultivating the plaint schedule property. They claimed title to the plaint schedule property by virtue of Exts.A5, A13 and A19 purchase certificates issued by the Land Tribunal concerned. According to them, themselves and their predecessors in title have cultivated the property by planting coffee, arecanut trees, pepper vines etc. The defendants are the Forest Range Officer, Meppadi and the State of Kerala, represented by the District Collector, Wayanad. The plaint schedule properties are not part of any vested forest. The defendants have no manner of right over the plaint schedule property. When they tried to meddle with the right and possession of the plaintiffs, they approached the civil court seeking a relief of injunction against the defendants from trespassing into plaint schedule properties, committing any act of waste and interfering with the plaintiffs' peaceful possession **RSA No.1066/2017** **3** and enjoyment of the properties. 4. The defendant-State filed a written statement contending that the suit is not maintainable in view of Sections 8 and 13 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (In short, the Vesting Act). The documents on which the plaintiffs rest their claim have been obtained by manipulation with a view to grab the forest land. Plaintiffs never possessed or enjoyed the plaint schedule properties. It is vested with the Government as per Section 3 of the Vesting Act. The entire area falls under Resurvey No.1171 of old Muppainadu Village, which is now in the Vellarimala Village. Plaintiffs have no manner of right, title, interest or possession over the said area of land. Steps have already been taken to notify the area. In respect of some lands, disputes were pending before Forest Tribunal, Kozhikode. The matter has been concluded by the Forest Tribunal and the order of the Forest Tribunal has become final. The suit is liable to be dismissed as the trial court has no jurisdiction to entertain the same by virtue of the provisions in the Vesting Act. 5. The court below, after marking documents and **RSA No.1066/2017** **4** examining witnesses, decreed the suit against the State. It was so found mainly that no documents were produced to show that the property was part of a private forest vested with the Government under the provisions of the Vesting Act. 6. In appeal preferred by the State, the lower appellate court agreed with the trial court and dismissed the appeal, finding that there was no material produced to show that the property is a vested forest. 7. Learned Special Government Pleader contended that both the courts went wrong in deciding the dispute without any jurisdiction. 8. From the plaint, it is evident that the plaintiffs claimed independent right over the property and they have explicitly averred that the properties are not part of a private forest as claimed by the defendants. Whereas in the written statement, the State has raised a specific contention that the plaint schedule property is part of a private forest vested under the provisions of the Vesting Act and the plaintiffs have no manner of right, title or possession over the same. It is their further case that steps have been taken to demarcate the **RSA No.1066/2017** **5** property. These rival contentions certainly give rise to an issue as to whether the property claimed by the plaintiffs is a private forest coming under the purview of the Vesting Act. 9. Certain provisions in the Vesting Act are relevant for our purpose. Section 2(f) defines a “private forest” in the following words: “private forest” means (1) in relation to the Malabar district referred to in sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)- (i) any land to which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding- (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964); (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. **RSA No.1066/2017** **6** **Explanation** .- Lands used for the construction of office buildings, godowns, factories, quarters for work-men, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; C). lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act,1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas. **Explanation.-** For the purposes of this clause, a land shall be deemed to be a waste land **RSA No.1066/2017** **7** notwithstanding the existence thereon of scattered trees or shrubs. 10. Section 3 of the Vesting Act, in explicit terms, declare that private forest shall vest in the Government. It reads thus: ## **Private forests to vest in Government.** - (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, 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 in any private forest shall stand extinguished. (2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. **Explanation** .- For the purposes of this sub-section, **RSA No.1066/2017** **8** “cultivation” includes cultivation of trees or plants of any species. (3) Nothing contained in sub-section (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 the appointed day and intended for cultivation by him, which 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 are applicable to him under Section 82 of the said Act. (4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or subsection (3), be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act. 11. Learned Special Government Pleader placed reliance on Section 13 to raise a contention that when such questions are raised, the civil court loses jurisdiction to decide those questions and a Tribunal constituted under the Vesting Act alone can **RSA No.1066/2017** **9** ## decide such questions. Section 13 of the Vesting Act reads thus: 13. **Bar of jurisdiction of civil court-** Except as otherwise provided in this act, no civil court shall have jurisdiction to decide or deal with any question or to determine any matter which is, by or under this Act, require to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer. 12. It creates a complete bar in adjudicating or dealing with any question or to determine any matter which is or by under the Vesting Act required to be decided or dealt with or to be determined by the Tribunal. 13. In this regard, Section 8(1) is also relevant, which reads thus: Settlement of disputes.- - (1) Where any dispute arises as to whether- - (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be **RSA No.1066/2017** **10** prescribed apply to the Tribunal for decision of the dispute. 14. On a plain reading of the above Section, it is clear that whether a land is a private forest or not, is a dispute, which has to be decided by the Tribunal and it falls within the exclusive jurisdiction of the Tribunal. 15. From the above provisions, it is clear that the civil courts did not have inherent jurisdiction to decide the questions. 16. The reasoning of the courts below that there was no demarcation of the property as private forest, is of no consequence going by the dictum in **Ranga Sesha Hills (P) Ltd. v. State of Kerala [1991 (2) KLT 49]** . In that case, a Division Bench of this Court lucidly illustrated the legal principles in following words: 5. Learned counsel for the appellant would have it that though the appointed day is declared to be 10th May 1971, in the eyes of law vesting does not as a matter of fact take place on that day, but takes place only when notification as contemplated in S. 6 of the Act or Rule 2A of the Assignment Rules is published in the gazette or newspapers and as long as such a notification has not been published, law cannot **RSA No.1066/2017** **11** recognise a dispute within the meaning of S. 8. Learned counsel seeks reliance on Rule 3 of the Tribunal Rules which says, inter alia, that an application under S. 8 shall be presented within 60 days from 6th August 1981 or from the date of publication of the notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 in respect of the land to which the dispute relates, whichever is later. Learned counsel for the appellant would argue that cause of action for application is the publication of notification which takes the land of an owner and as long as notification has not been issued, application under S. 8 cannot be instituted. Having bestowed our careful attention to the argument we are not able to agree with the same. 6. By virtue of sub-section (1) of S.3 of the Act, vesting takes place, by operation of law on 10th May 1971. No provision in the Act postpones the vesting to any day subsequent to the appointed day. Issuance of notification is something which must follow ordinarily the demarcation of boundaries. S. 6(1) indicates that demarcation of boundaries is the duty of custodian who has to perform it “as soon as may be after the appointed day”. It is therefore futile to contend that vesting is postponed till the Custodian of vested **RSA No.1066/2017** **12** forests demarcates the boundaries and issues notification after providing for exemption of such lands as may attract sub-sections (2) or (3) of S. 3. 7. Sub-section (1) of S. 8 is clear, unambiguous and categoric in its terms. Where any dispute arises as to whether any land is a private forest or not, or any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may within such period as may be prescribed apply to the Tribunal for decision of the dispute. The expression “dispute” has not been defined in the Act. It must therefore receive its ordinary meaning. According to the appellant 81.22 acres of private forest belonging to him has not vested in the State for the reason that it is entitled to be exempted under sub-section (2) or (3) of S. 3 of the Act and since notification has not been issued so as to include the land in his possession he is now constrained to come to court. The State is taking steps to assign the land to persons eligible for the same. The question of assignment arises only after vesting. There can be no assignment without vesting. This would mean that the State and the Custodian of Vested Forests have taken the stand that the land has vested. The Contention of the appellant is that the **RSA No.1066/2017** **13** land has not vested. Certainly this state of affairs proves the existence of a dispute. Learned counsel for the appellant concedes before us that the Custodian has issued a notification as contemplated in Rule 2A of the Assignment Rules taking in several tracts of private forests in Kozhikode taluk. His contention is that the land dealt with in the subject matter of the writ petition is not included in the notification. This certainly amounts to raising a dispute. There is a notification dealing with private forests in Kozhikode taluk. Obviously the State has taken the stand that the land involved in the writ petition is comprised in the notification while the appellant takes the contrary stand. There is certainly a dispute on the question whether the notification takes in the land or not and whether the land has vested or not. The pre-condition for filing an application contemplated in S. 8(1) has certainly arisen in the case. It is therefore open to the appellant before us to move the Forest Tribunal by an appropriate application, subject to other conditions of the Act and the relevant Rules. 17. From the above discussion, it is clear that the courts below were incompetent in law to deal with the questions involved in the litigation. Hence, I am of the view that the suit should have been dismissed by the trial court so that the parties **RSA No.1066/2017** **14** could have approached the Tribunal for redressal of their grievance. It is made clear that the plaintiffs' rights, if any, over the property shall be allowed to be agitated before the Tribunal and none of the observations contained in the judgments of the courts below will be a bar for the Tribunal to decide the questions arising in the dispute. 18. Considering the facts and circumstances and the questions of law involved, I am of the definite view that the substantial questions of law have to be decided in favour of the appellants. In the result, the appeal is allowed. The impugned judgments and decrees of the courts below are set aside. The suit is dismissed, giving liberty to the plaintiffs/respondents to approach the Forest Tribunal concerned for redressal of their grievance. All pending interlocutory applications will stand dismissed. Sd **/A. HARIPRASAD JUDGE** JV