Green Acres Amusement Pvt. Ltd. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945** **RP NO. 513 OF 2023** **AGAINST THE JUDGMENTIN MFA (FOREST) NO.26 OF 2013 OF HIGH COURT OF KERALA DATED 10.03.2023** **REVIEW PETITIONER/APPELLANT IN MFA(FOREST):** **GREEN ACRES AMUSEMENT PVT. LTD., SAROJA ESTATE, MANANTHAVADY, REPRESENTED BY ITS MANAGING DIRECTOR HABEEB MOHAMMED, S/O GULAM MOHAMMED, THAVINJAL, MANANTHAVADY, WAYANAD, PIN - 670644** **BY ADVS. K.B.GANGESH S.SREEKUMAR (SR.)(S-571)** ## **RESPONDENTS/RESPONDENTS IN MFA(FOREST):** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE CONSERVATOR AND CUSTODIAN OF VESTED FORESTS, OLAVAKKODE CIRCLE, PALAKKAD DISTRICT, PIN - 678002** - **3 THE DIVISIONAL FOREST OFFICER, WAYANAD DISTRICT, PIN - 670645** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON** - **02.02.2024, THE COURT ON 18.03.2024 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. & C.JAYACHANDRAN, J.** **======================= Review Petition No.513 of 2023 ======================== Dated this the 18[th] day of March, 2024** ## **ORDER** ## **C.Jayachandran,J.** **A Division Bench of this Court dismissed M.F.A.(Forest) No.26/2013 by judgment dated 10.03.2023. The appellant seeks review of the said judgment. The Review Petition was sought to be amended by filing I.A No.1/2023, which was allowed. As per the amended Review petition, review is essentially premised on the following grounds, which we will deal with, one after the other:** ## **2. Map prepared in 1971 is not considered.** **Along with the application to amend the Review Petition, a map is produced, supported by an application(I.A No.2/2023) to receive additional document under Order XLI, Rule 27 of the Code. In** ## **Review Petition No.513 of 2023** -: 2 :- **the light of the map produced, the ground urged is that the entitlement of the State to claim a land as a forest can only be based on the said plan prepared by the custodian, immediately after the Kerala Private Forests (Vesting and Assignment Act, 1971 (the Vesting Act, for short) came into force, as enjoined therein under Section 6 of the Act. It is urged that the said map has become part and parcel of the judgment in the earlier O.A No.364/1976, wherefore, neither the Tribunal, nor the Division bench of this court, can sit in judgment to decide as to whether its predecessor in office has committed an error. It is contended that the property which was notified in 1976, which was the subject matter of O.A 364/1976, was the only private forest out of the entire extent of property. The rest of the property was clearly shown in the map as occupied land, after a full survey conducted in respect of the entire** ## **Review Petition No.513 of 2023** -: 3 :- **properties. It is submitted that the contention of the respondents in the earlier O.A, i.e., O.A No.364/1976 that there is no further vested forest except the extent notified in 1976, ought to have been considered by the Forest Tribunal in the present proceedings. Though this aspect was specifically urged in the appeal before this Court, the said contention was not accepted, which amounts to an error apparent on the face of the record, is the submission. It is further submitted that the notification under the 1971 Act was issued after conducting a full and proper survey and the counter statement filed by the respondents in O.A No.364/1976 specifically stated that every developed area planted with cardamon and coffee prior to 1971 was excluded from the survey of vested forest. That contention was specifically quoted by the Tribunal in its order in O.A No.364/1976. Therefore, according to the review** ## **Review Petition No.513 of 2023** **==> picture [33 x 9] intentionally omitted <==** **petitioner, there is a clear error of jurisdiction, when the Tribunal, as also, this Court concluded that what was decided in O.A No.364/1976 regarding the map pertaining to vested forest is wrong. It is urged that the status of properties as per the map prepared statutorily cannot be revised repeatedly, as per the whims and fancies of the officers.** **3. We do not find any merit in the above contention based on the map. Primarily, we notice that the map was not produced before the Tribunal, or this Court in appeal. The same is produced for the first time, not even along with the Review Petition, but when the Review Petition is sought to be amended. The claim that the map is part and parcel of the judgment in O.A No.364/1976, is liable to be rejected on two grounds. Firstly, the plan is not seen marked as an exhibit in the** ## **Review Petition No.513 of 2023** -: 5 :- **judgment in O.A No.364/1976. Secondly, the records in a concluded O.A is not liable to be taken stock of, unless the same is called for and relied upon by any of the parties to the** _**lis**_ **.** **4. Even going by the map produced, the contention is only that the property, which was not notified as vested forest in 1976, was shown as occupied land, in the survey. Even if such a contention is accepted, we are of the opinion that there is nothing to show that part of such land, which was shown as occupied land, was not having the characteristics of vested forest as on 10.05.1971. In this regard, it is relevant to note that though Section 6 of the Vesting Act mandates demarcation of boundaries “as soon as may be after the appointed day”, it is settled that the vesting of a private forest in the Government in terms of Section 3 is not dependent upon such demarcation of** ## **Review Petition No.513 of 2023** -: 6 :- **boundaries, or for that matter, issuance of notification under Rule 2A of the Rules. The law laid down in this regard in** _**Jojy Jacob v. State of Kerala [2011(1) KLT 79]**_ **has already been relied upon by the Division Bench in the judgment under review. We therefore, reject the contention based on the map produced in the review.** **5. The second ground urged in the amended Review Petition pertains to Ext A14 and A15 documents, which are Government Orders passed by the respondent State, permitting conversion of 100 Acres and 130 Acres respectively into coffee plantation. Here, we cannot but find that Exts A14 and A15 assume significance only in the context of the extent of land covered by the earlier notification under the Vesting Act. Exts A14 and A15 are to be understood as confined to 212.10 Hectares notified as vested forest as per the** ## **Review Petition No.513 of 2023** -: 7 :- **earlier notification, which lead to O.A No.364/1976. It is also relevant to note that Ext A14 and A15 orders are issued under the Kerala Land Utilisation Order and the Kerala Land Reforms Act. A perusal of Exts A14 and A15 would not suggest any inference that, baring the extent covered therein - which is 100 Acres and 130 Acres respectively -, the rest of the extent which is the subject matter of the Original Application is a plantation. Therefore, the contentions raised based on the second ground also will stand rejected.** **6. The third ground is again raised based on the map, which we have already dealt with and hence, not addressed again.** **7. The fourth ground urged is again based on the map/sketch and relying upon Section 6 of the Vesting Act and Rule 2A of the Vesting Rules. The** ## **Review Petition No.513 of 2023** -: 8 :- **point urged is that, in view of the mandate under the two provisions above referred, the subsequent notification of the year 2001 has no legs to stand, especially taking into account the purpose of the Vesting Act, 1971 as an agrarian reform for the distribution of land to the landless. We notice that this contention was neither raised before the Tribunal, nor in the appeal before this Court. We cannot endorse the submission that the delay in issuing the notification, by itself, would render the same illegal. In the counter statement preferred by the respondent State, it is specifically stated that the extent notified by the subsequent notification was omitted to be included in the earlier notification, which contention was accepted by the Tribunal and this Court in appeal. We do not find any reason to digress from the same, so long as the extent notified by the subsequent notification is impressed with the characteristic** ## **Review Petition No.513 of 2023** -: 9 :- **features of a vested forest, more so in the absence of any evidence to the contrary. The contention will therefore stand repelled.** **8. Ground Nos. V and VI are based on two decisions of the Hon'ble Supreme Court as regards the purpose of the Vesting Act, 1971 and the delay in issuing the subsequent notification. Insofar as the argument based on Section 6 and 11 is concerned, Section 6 has already been dealt with in the judgment under review, besides referring the same in this Order. As regards Section 11, assignment to be made within two years is stipulated to be “as far as may be”. These provisions cannot be pressed into service to advance the interest of a private limited company in respect of lands, which are impressed with the characteristics of a forest and which have already vested with the Government on the date on which the Vesting Act came into force,** ## **Review Petition No.513 of 2023** -: 10 :- **dehors any demarcation under Section 6, or for any matter, under Rule 2A of the Vesting Rules. We notice, at the risk of repetition, that no contra evidence as regards the nature of the forest land or regarding the exclusion or the exemption claimed for under the Act, is forthcoming.** **9. Ground No.(VII) pertains to the following observation in page No.2 of the judgment in O.A No.364/1976.** **“.... All the developed areas planted with cardamon and coffee prior to 10.05.1971 are excluded from the survey of vested forest.”** **We notice that the above quoted portion of the judgment only refers to the contentions of the respondent State in their counter statement in O.A** ## **Review Petition No.513 of 2023** -: 11 :- **No.364/1976. In other words, the review petitioners are essentially relying on an alleged admission on the part of State officials in their counter affidavit in the earlier O.A. This court is not called upon to answer the said claim again, inasmuch as the so relied admission has already been pressed into service and answered by the Tribunal, as also, by the Division Bench of this court in the judgment under review. Further, we cannot come to any conclusion even from the admission that all the occupied land shown in the map were developed areas planted with cardamon and coffee, prior to 1971. In case the entire area left out of the notification, which was the subject matter of O.A No.364/1976, was actually planted with cardamom and coffee as on 10.05.1971, there would have been some evidence forthcoming, which could have been placed before the Tribunal. In case there was such extensive coffee and cardamom** ## **Review Petition No.513 of 2023** -: 12 :- **plantations in existence as on 10.05.1971, documentary, oral or other material evidence showing the existence of such plantation could have been adduced before the Forest Tribunal, which is sadly lacking in the instant case.** **10. We may however notice that, out of the 1004.24 Acres(406.41 Hectares), an extent of 211.70 Hectares in re-survey No.88/1A and 0.40 Hectares in re-Survey 88/2 of Thavinjal amsom was the subject matter of notification of the year 1976 involved in O.A No.364/1976. It could thus be seen that there was no notification issued with respect to the remaining extent of 194.31 Hectares. The present notification of the year 2001 is with respect to 160.1330 Hectares, forming part of 194.31 Hectares, as could be seen from Ext B1 notification, as modified by Ext B3 erratum notification. This** ## **Review Petition No.513 of 2023** -: 13 :- **notification was issued on the premise that the extent of 160.133 Hectares was omitted to be notified at the time of the earlier notification of the year 1976. The above aspects are referred only to point out that the pleadings of the parties, including the above relied admission, as also, the findings in O.A No.364/1976, has to be confined to and understood in the context of 212.10 Hectares(211.70 + 0.40), which was the subject matter in O.A No.364/1976. One another aspect assumes significance in this regard. 27 Acres of land was exempted in O.A No.364/1976 as ancillary land required for the purpose of plantation, which obviously establish the existence of plantation, is one among the grounds raised in the review. Here again, this court emphasise that the existence of the plantation and the exemption afforded for ancillary land has to be understood as limited to the above referred 212.10 Hectares. By any stretch** ## **Review Petition No.513 of 2023** **==> picture [39 x 9] intentionally omitted <==** **of imagination, it cannot be construed that the extent remaining out of 406.41 Hectares (1004.24 Acres), that is to say 194.3 Hectares, is remaining as a plantation. The status of the said extent was not the subject matter at all in O.A No.364/1976, wherefore, the ground urged on that premise can only be dismissed.** **11. Finally, we also notice that none of the contentions now urged in the Review Petition are seen urged before the Tribunal, or for the matter, before the Division Bench of this Court, except the one pertaining to the so-claimed admission in the counter affidavit preferred by the respondent forest officials in the earlier O.A No.364/1976. New grounds urged, that too on the basis of new documents produced for the first time in the review, are not liable to be taken into account or** **Review Petition No.513 of 2023** -: 15 :- **relied upon to upset a judgment rendered in the appeal.** **In the circumstance, the review petition will stand** **dismissed.** **Sd/-** **ANU SIVARAMAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** skk/vdv