Kanjirathinal Jose and others v. State of Kerala, represented by the Conservator of Forests (Vested Forests), Kozhikode and The Custodian, Vested Forests, Kozhikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938 MFA.No. 492 of 1985 ( ) ------------------------ AGAINST THE ORDER/JUDGMENT IN OA 356/1976 of FOREST TRIBUNAL, KOZHIKODE DATED 18.2.1985 APPELLANT(S): ------------ 1. KANJIRATHINAL JOSE 2. KANJIRATHINAL GEORGE (DIED) (THE CAUSE TITLE IS AMENDED BY SHOWING THE WORD “DIED” AFTER THE NAME OF THE SECOND APPELLANT AND ADDRESS OF ADDITIONAL APPELLANTS 3 TO 5, THE LEGAL HEIRS OF THE DECEASED 2ND APPELLANT ARE INCORPORATED TO THE CAUSE TITLE AS FOLLOWS AS PER ORDER DT.25.7.2014 IN IA 2097/14 IN MFA 492/1985.) ADDL.APPELLANTS 3:THOMAS, S/O. LATE GEORGE, KANJIRATHINKAL HOUSE, THONDERNAD (PO), MANANTHAADY, WYNAD DISTRICT. 4. TREESA GEORGE, D/O. LATE GEORGE, RESIDING DO 5. JOLLY GEORGE, D/O. LATE GEORGE, RESIDING DO. BY ADVS.SRI.O.RAMACHANDRAN NAMBIAR SRI.CIBI THOMAS RESPONDENT(S): -------------- 1. STATE OF KERALA REPRESENTED BY THE CONSERVATOR OF FORESTS VESTED FORESTS, KOZHIKODE 2. THE CUSTODIAN, VESTED FORESTS, KOZHIKODE R1-2 BY ADV. SRI.NAGARAJ NARAYANAN, SPL.G.P (FOREST) THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 07-122016, ALONG WITH WPC. 17844/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N. Ravindran & Dama Seshadri Naidu, JJ.** **- - - - - - - - - - - - - - - - - - - - - -- - -** **M.F.A.No.492 of 1985 and W.P.(C) No.17844 of 2008 - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] December, 2016** ## **JUDGMENT** ## **P.N. Ravindran, J.** M.F.A.No.492 of 1985 arises from the order passed by the Forest Tribunal, Kozhikode on 18.2.1985 on O.A.No.356 of 1976, an application filed by the appellants under section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1976 ('the Act' for short) for a declaration that 12 acres of land situate in R.S.No.238/1 of Thondernadu Village, North Wayanad Taluk, in Kannur District, is not a private forest vested in the State Government under the Act. After the Wayanad Revenue District was formed, the disputed lands fall within the local limits of Kanjirappally Village, Mananthavadi Taluk, Wayanad District. 2. Initially, by order passed on 6.11.1978, the Forest Tribunal, Kozhikode allowed the application and declared that the petition schedule property is not a private forest vested in the State Government. The State of Kerala and the Custodian of Vested Forests carried the matter in appeal by filing M.F.A.No.92 of 1979 in this court. By judgment delivered on 16.12.1982, after notice to and affording the MFA 492/1985 & WPC 17844/2008 2 appellants herein an opportunity of being heard, a Division Bench of this court allowed the appeal, set aside the impugned order and remanded the case to the Forest Tribunal for fresh trial and disposal. The Forest Tribunal thereafter conducted a local inspection of the disputed lands on 2.11.1983 and 5.1.1985. By judgment delivered on 18.2.1985, the Forest Tribunal held that 75 cents of land situate on the northern side of the lands covered by Ext.P1 assignment deed is not a private forest vested in the State Government. Consequently, the tribunal dismissed O.A.No.356 of 1976 in respect of the remaining extent of land. The instant appeal was thereupon filed on 16.8.1985 challenging the said order. 3. This appeal was dismissed for default by a Division Bench of this court by judgment delivered on 18.2.1991. The appellants did not move for restoration of the appeal in time. Instead, they submitted a representation dated 15.11.1993 before the Honourable Minister for Forests, wherein they prayed for an order directing the Forest officials to restore possession of the disputed lands to them after inspecting the records. Since no orders were passed on the said representation, more than four years after this appeal was dismissed for default, to be exact, on 15.2.1995, they filed O.P.No.2439 of 1995 in this court wherein they prayed for a writ in the nature of mandamus 3 MFA 492/1985 & WPC 17844/2008 commanding the Tahsildar, Mananthavady Taluk who was joined as third respondent in that writ petition, to conduct a joint verification of the disputed lands and to determine their eligibility for assignment in terms of the policy adopted by the Government to grant pattayam to persons including encroachers who were in possession of forest lands for cultivation prior to 1.1.1977. They also prayed for an order directing the Forest Range Officer, Mananthavady who was joined as the fifth respondent in the said writ petition, not to dispossess them in the meanwhile and not to demarcate and fence the disputed property. The State of Kerala filed a counter affidavit resisting the writ petition. It inter alia contended that the State of Kerala is in possession of 11.25 acres of land and therefore the question of joint verification does not arise. Though the learned single judge noticed that the petitioners being owners, do not come under the purview of the term “occupants”, the learned single judge still observed that the petitioners may submit a representation before the Government seeking the benefit granted to occupants and encroachers prior to 1.1.1977. The original petition was disposed of with the said observation. Though the appellants herein filed W.A.No.1843 of 1997, the Division Bench did not interfere with the exercise of discretion by the learned single Judge but directed that in the event of the petitioners in O.P.No.2439 of 1995 filing an 4 MFA 492/1985 & WPC 17844/2008 appropriate representation, the Government shall dispose of the same in a time bound manner. 4. Pursuant to the orders passed by the Division Bench of this court in W.A.No.1843 of 1997, the Government considered the representation dated 15.11.1993 submitted by the appellants and rejected it on the ground that the appellants are not in possession of the disputed lands. The said decision was communicated to the appellants by the Principal Secretary to Government, Forest and Wild Life Department by his letter dated 9.6.1999. The second appellant thereupon filed O.P.No.29044 of 1999 in this court challenging the Government letter dated 9.6.1999 which was produced and marked as Ext.P3 therein. In that original petition, the second appellant had also produced and marked as Ext.P4, a copy of the judgment delivered by the Forest Tribunal on 6.11.1978. The State of Kerala resisted the said writ petition. After considering the rival contentions the learned single judge dismissed O.P.No.29044 of 1999 with costs Rs.5,000/payable to the Government. The learned single judge held that so long as the judgment of the Forest Tribunal (the judgment impugned in the instant appeal) stands, the stand taken by the Government in the impugned letter cannot be said to be illegal. The learned single judge also found that the document produced and marked as Ext.P4 is 5 MFA 492/1985 & WPC 17844/2008 a mutilated copy, that it is not an order which is in existence and therefore it appears to be a forged one. The Registry was directed to take appropriate action against the writ petitioner. The petitioner in O.P.No.29044 of 1999 unsuccessfully challenged that judgment by filing W.A.No.43 of 2003 which was dismissed by judgment delivered on 10.11.2003. The said judgment has attained finality. 5. As stated earlier, this appeal was dismissed for default by a Division Bench of this court on 18.2.1991. It was without having the appeal restored to file that the appellants filed O.P.Nos.2439 of 1995 and 29044 of 1999 above referred to. Though the decisions in the said writ petitions were not in their favour, they did not even thereafter move for restoration of this appeal. Instead, they again moved the Government and the Government on their representation issued G.O.(MS) No.128/2007/Revenue dated 19.4.2007 whereby it directed the District Collector, Wayanad to take steps to assign six acres of land forming part of the lands involved in O.A.No.356 of 1976 to each of the appellants. Thereupon, the Principal Secretary to Government, Revenue Department sent a letter dated 3.11.2007 to the District Collector, Wayanad directing him to receive from the appellants property tax and to take necessary steps to give effect to the Government Order dated 19.4.2007. Thereupon, a society known MFA 492/1985 & WPC 17844/2008 6 as One Earth One Life, registered under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955 filed W.P.(C) No.17844 of 2008 challenging the aforesaid Government Order and letter which are produced and marked as Exts.P6 and P7 respectively therein. The reliefs sought in the said writ petition are as follows: “i) Issue a writ of certiorari calling for the records relating to Exts.P6 and P7 and quash the same as illegal; ii) issue a writ of mandamus directing the respondents 1 to 3 to take immediate action to prevent all non forest operations in the forest land in R.S.No.238/1 of Thodernad Village in North Wayanad Taluk and to protect the land from further encroachment. iii) issue a writ of mandamus directing the Registrar of this Honourable Court to take appropriate action against the 5[th] respondent for producing forged copy of an order of Forest Tribunal and interfering with the judicial process of this Court as directed in Ext.P4 judgment. iv) grant such other reliefs that may be deemed fit to this Honourable Court in the interest of justice.” It is contended that in view of the judgments of this court in O.P.No.2439 of 1995, W.A.No.1843 of 1997, O.P.No.29044 of 1999 and W.A.No.43 of 2003 and section 2 of the Forest Conservation Act, 1980, the appellants herein are not entitled to have the disputed lands assigned to them. The said society had also averred that though the revised judgment delivered by the Forest Tribunal in O.A.No.356 of MFA 492/1985 & WPC 17844/2008 7 1976 was subjected to challenge in M.F.A.No.492 of 1985, the said appeal was dismissed for default on 18.2.1991 and the order dismissing the appeal for default has attained finality. 6. It appears, that prompted the appellants to file M.J.C.No.470 of 2009 to have M.F.A.No.492 of 1985 restored to file. Notwithstanding the fact that the application was filed more than 18 years after the appeal was dismissed for default, a Division Bench of this court allowed M.J.C.No.470 of 2009 by order passed on 23.7.2010 and restored M.F.A.No.492 of 1985 to file. The appeal was again dismissed for default by another Division Bench of this court on 4.10.2010. It was restored to file on 8.10.2010 on application filed in that regard. The appeal was thereafter heard and dismissed on the merits by yet another Division Bench of this court by judgment delivered on 13.12.2012. The appellants herein thereupon filed R.P.No.392 of 2013 seeking a review of the said judgment. While the said review petition was pending, appellant No.2 passed away on 13.12.2013. Thereupon, his legal heirs got themselves impleaded in the review petition. The review petition was heard and allowed by a Division Bench of this court by order passed on 12.2.2014. Thereupon, the legal heirs of the deceased second appellant got themselves impleaded as additional appellants 3 to 5 in the appeal as per order 8 MFA 492/1985 & WPC 17844/2008 passed on 25.7.2016 in I.A.No.2097 of 2014. The instant appeal and the writ petition have accordingly come up before us for final hearing today. 7. We heard Sri O.Ramachandran Nambiar, learned counsel for the appellants in M.F.A.No.492 of 1985, Smt. Daisy Thambi, learned counsel appearing for the petitioners in W.P.(C) No.17844 of 2008 and Sri Nagaraj Narayanan, learned Special Government Pleader for Forests, appearing for the State of Kerala and its officers. We have also gone through the pleadings and the materials on record including the applications filed by the appellants in the appeal to receive documents into additional evidence as also the application filed by them praying for the appointment of an Advocate Commissioner to inspect the disputed lands. The materials before us disclose that the appellants had filed O.A.No.356 of 1976 before the Forest Tribunal, Kozhikode praying for a declaration that the disputed lands having an area of 12 acres is not a private forest vested in the State Government. They had in the application filed under section 8 of the Act, averred that the disputed lands were purchased in the name of the first appellant (Kanhirathingal Jose) as per assignment deed dated 14.7.1976, that later it was orally partitioned between the first appellant and the second appellant and the oral partition was later 9 MFA 492/1985 & WPC 17844/2008 confirmed by Ext.P2 gift deed dated 4.9.1972. The appellants had in the application filed by them under section 8 of the Act, averred as follows: “The applicants possess 12 acre of agricultural land in R.S.No.38/1 in Thondernadu Amsom, Thonder Desom of North Wynaad Taluk in Cannanore District. This 12 acres of land was purchased in the name of the applicant No.1 for and on behalf of the applicant number 2 also who is his brother as per registered assignment deed No.2717 of 1967. The said 12 acres of land was orally partitioned between the brothers and 6 acres each were in the possession and enjoyment of the respective owners. The oral partition effected between the applicants Nos.1 and 2 was later confirmed by a gift deed executed by the applicant No.1 in favour of No.2 registered as Document No.2290 of 1972 of S.R.O. Manantoddy. Eversince the purchase, the properties involved in this application was in the separate possession and enjoyment of the applicants and they have planted the same with pepper, jack trees, mango trees, tapioca, turmeric, etc and other yearly crops were cultivated and land revenue being paid to the Government. The applicants or their family have no other lands other than these involved in this application. The pepper vines, jack trees and mango trees in these properties are yielding and aged 8 years. Lands not cultivated with permanent crops were cultivated with yearly crops like tapioca, turmeric (Manhal) etc. Now the Forest Authorities are preventing the applicants from carrying on agricultural operations in the area. The land involved in this 10 MFA 492/1985 & WPC 17844/2008 application are not Forest lands liable to be vested with the Government under the Kerala Private Forests (Vesting and Assignment) Act. In any view of the matter since the applicants and their family have no other lands and the lands involved in this application are intended for their personal cultivation and the same is within the ceiling limits under the Kerala Land Reforms Act the area is not liable to be vested with the Government.” 8. The substance of the above averments is that the appellants have been cultivating the disputed lands with pepper, jack trees, mango trees, tapioca, turmeric, etc. and other seasonal crops. They had also contended that they were paying revenue for the disputed lands. They had further averred that they or their family members have no other lands and as they do not possess lands in excess of the ceiling limit and the lands are cultivated lands, they are entitled to a declaration that the disputed lands are not a private forest vested in the State Government. The appellants had in the application filed by them as O.A.No.356 of 1976, also stated that the disputed lands lie in Sy.Nos.259, 263 and 264 (R.S.No.238/1). Later, on application filed by the appellants as I.A.No.838 of 1977, Sy. No.263 was corrected as 262. As per the averments in the application as amended, the disputed lands lie in R.S.No.238/1 (old Sy. Nos. being 259, 262 and 11 MFA 492/1985 & WPC 17844/2008 264). 9. The State of Kerala filed a counter statement dated 26.4.1977 resisting the application. They contended that no land has been surveyed and demarcated from Sy. Nos.259, 262 and 264 as vested land, that the lands situate in R.S.No.238/1 having an area of 5.55 acres alone have been surveyed and the said lands are covered with forest trees such as chadachi, venteak, anjily and mango and jack trees which are spontaneously grown trees. They also contended that the appellants have no title or possession over the disputed lands which are in the exclusive possession of the Government ever since 10.5.1971. 10. Before the Forest Tribunal, the first applicant was examined as PW1 and the second applicant as PW2. They also produced and marked Exts.P1 to P11. Ext.P1, as stated earlier, is the document of title relied on by the appellants and Ext.P2 is the gift deed which came into existence on 4.7.1972, after the appointed day, viz.10.5.1971. The rest of the documents produced are revenue receipts evidencing payment of tax for the period commencing from 24.3.1971 and ending with 26.9.1977. The respondents in O.A.No.356 of 1976 examined three witnesses as RWs.1 to 3. 11. After considering the rival contentions, the Forest Tribunal 12 MFA 492/1985 & WPC 17844/2008 came to the conclusion that the only point that arises for consideration is whether 12 acres included in the petition is liable to be exempted or excluded. The Forest Tribunal thereafter proceeded to hold, relying on the tax receipts, that as the Government had accepted tax, it conclusively proves that the petition schedule property was not a private forest as on 10.5.1971. The Forest Tribunal held that if the Government had treated the petition schedule property as a private forest vested in the Government, it would not have collected revenue from the applicants after 10.5.1071. That order was successfully challenged by the State of Kerala in this court by filing M.F.A.No.92 of 1979. By judgment delivered on 16.12.1982 a Division Bench of this court allowed the appeal and remanded O.A.No.356 of 1976 to the Forest Tribunal for fresh trial and disposal with the following observations: “5. We feel that the better course to be adopted for disposing this appeal is to remit the case back to the Tribunal with liberty to both sides to call additional evidence in support of their respective case. We say so because the order is seen primarily based on the fact that the revenue was collected even after 105-1971 and also on the absence of a detailed discussion about the oral evidence adduced in the case. In the result, we set aside the order of the Tribunal and allow this appeal and remit back the case to the Tribunal for expeditious disposal after giving opportunity to both parties to 13 MFA 492/1985 & WPC 17844/2008 call fresh and additional evidence.” 12. After remand, PW1 was recalled and examined. The appellants also examined the Village Assistant of Thondarnadu Village Office, who at the time of examination was working as Village Officer of Thondarnadu Village Office as PW3. They also produced and marked tax receipts evidencing payment of tax during the period from 15.3.1980 to 7.3.1983 as Exts.P12 to P17. Possession certificates to show that each of them are in possession of 6 acres of land in Sy. No.238/1 were produced and marked as Exts.P18 and P19. The Forest Tribunal, after notice to the parties conducted a local inspection on 2.11.1983 and on 5.1.1985. After considering the rival contentions in the light of the inspection notes, it held that the appellants are entitled to relief only in respect of 75 cents forming part of the disputed lands. The Forest Tribunal accordingly allowed O.A.No.356 of 1976 in part and declared that a portion of the disputed lands measuring 75 cents, situate on the northern end of the vested forest and adjoining the exempted area situate on the southern side of the river is not liable to be vested. The application was dismissed in all other respects. The Forest Tribunal has, in coming to the conclusion that 75 cents is not a vested forest, also held that there is no evidence as regards the actual extent of the land situate on the northern side which has not been 14 MFA 492/1985 & WPC 17844/2008 included within the vested forest and therefore, only a rough estimate can be made. 13. It is relevant in this context to note that the four boundaries of the disputed lands are not set out in the application filed by the appellants under section 8 of the Act. It is no doubt true that the form prescribed under the Kerala Private Forest Tribunal Rules does not require the boundaries to be specified in the application but it provides for a brief description of the lands involved in the petition with extent. The appellants did not for reasons best known to them, set out the four boundaries of the disputed lands. It is relevant in this context to note that as per the recitals in Ext.P1 assignment deed, the northern boundary of the disputed lands is river and survey stone. On the western boundary lies the lands belonging to the vendor company, viz. Kuttanad Gardens Limited; on the east lands belonging to Thomman and on the south the lands left with the vendor. In Ext.P2 gift deed also, the northern boundary is shown as river and survey stone. The Forest Tribunal has in the notes of local inspection prepared after the local inspection conducted on 2.11.1983 stated that between the river and the vested forest the basement of a house is seen. In the notes of local inspection prepared after the local inspection conducted on 5.1.1985 it is stated that the entire area claimed by the applicants has 15 MFA 492/1985 & WPC 17844/2008 not been taken as a vested forest and a portion adjoining the river has been left out. Ext.P6 Government Order produced in W.P.(C) No.17844 of 2008 whereby the Government directed the District Collector, Wayanad to take steps to assign the disputed lands to the appellants, discloses that northern boundary is land belonging to Youseff. In that Government Order, the river is shown as the western boundary. The appellants have along with I.A.No.2096 of 2014 an application filed by them in this court for appointment of an Advocate Commissioner, produced a sketch showing the location of the disputed lands, prepared by a retired Head Surveyor of the Forest (Survey) Department. As per the said sketch, the river runs along the western boundary of the disputed lands. 14. It is evident from the materials on record that the documents which are pressed into service to claim assignment of Government land and to claim relief from this court relate to some other property and not the property covered by Ext.P1 assignment deed. The first appellant's case is that the disputed property was purchased by him on behalf of his brother the second appellant as per Ext.P1 assignment deed. In Ext.P1 assignment deed the river is shown as the northern boundary and not as the western boundary. Even in the Government Order whereby the District Collector was directed to take steps to 16 MFA 492/1985 & WPC 17844/2008 assign the disputed lands to the appellants, the river is shown as the western boundary. It is thus evident that the documents which are pressed into service to claim relief relate to some other property and not the disputed lands. For reasons best known to them, the appellants did not move the Forest Tribunal for the appointment of an Advocate Commissioner to have the disputed lands identified with reference to the documents of title. As per Ext.P1 assignment deed the vendor company itself owned the land situate on the western side of the land assigned thereunder. We are therefore not persuaded to accept the submission of the learned counsel for the appellants that the appellants should be given an opportunity at this distance of time to have the disputed lands identified with the assistance of an Advocate Commissioner and Surveyor and afforded another opportunity to adduce evidence to show that the disputed lands are not a private forest vested in the State Government. 15. The application before the Forest Tribunal was filed in the year 1976. It was allowed in the first instance by order passed on 6.11.1978. Relief was granted by that order on the short ground that the appellants had, even after 10.5.1971, paid land tax and the Government had accepted payment of land tax without demur. The said order was set aside by this court on the ground that payment of 17 MFA 492/1985 & WPC 17844/2008 land tax and its acceptance by the Government is not decisive. Even after remand, the appellants did not for reasons best known to them, apply for the appointment of an Advocate Commissioner to identify the disputed lands with reference to the documents of title. Even after remand, apart from producing additional receipts evidencing payment of land tax for the period after 10.5.1971 and producing two certificates to show that each of them are in possession of only 6 acres of land, the appellants did not take steps to prove the state of affairs as on 10.5.1971. It is evident from the Government Order produced and marked as Ext.P6 in W.P.(C) No.17844 of 2008 that the application for assignment was in respect of lands other than the lands covered by Ext.P1. Ext.P6 Government Order specifically recites that the river forms the western boundary of the disputed lands and that the lands on the other three sides are cultivated lands. The boundaries therein do not tally with the boundaries set out in Ext.P1 assignment deed. We are therefore of the opinion that the Government Order cannot be relied on to decide the issue arising for consideration, viz. as to whether on 10.5.1971, the disputed land was a private forest vested with the State Government. 16. It is now well settled by a series of decisions of this court that the burden of proving the fact that Madras Preservation of Private 18 MFA 492/1985 & WPC 17844/2008 Forests Act did not apply to the disputed lands or that the disputed lands are not private forests is on the applicants. Apart from the ipse dixit of the appellants, there is no material on record to substantiate their contention that the Madras Preservation of Private Forests Act did not apply to the disputed lands or that it was principally cultivated with agricultural crops as on 10.5.1971. The Forest Tribunal has after the local inspection and that too without properly identifying the lands, noticed that 75 cents on the northern portion of the disputed lands is not part of the notified forest. Though that part of the order cannot in our opinion be sustained, since the State of Kerala has not challenged the order passed by the Forest Tribunal, we do not deem it appropriate to interfere with the said finding. On an over all view of the matter, we are of the opinion that the appellants have not made out a case warranting interference with the impugned order. The applications to receive additional evidence and for the appointment of an Advocate Commissioner are also in our opinion without any merit. The appellants were not serious in prosecuting the matter. They did not apply for the appointment of an Advocate Commissioner in the initial stages. In any case, at least after the appeal filed by the State was allowed and the case was remanded to the Forest Tribunal, they ought to have taken steps in that regard. The appellants cannot, more than four decades MFA 492/1985 & WPC 17844/2008 19 after 10.5.1971 apply for the appointment of an Advocate Commissioner to ascertain the state of affairs as on 10.5.1971. 17. There is also yet another reason why we are not persuaded to grant the relief prayed for in I.A.No.2096 of 2016. As stated earlier, the instant appeal was dismissed for default on 18.2.1991. It was restored to file only on 23.7.2010 more than 18 years and 8 months after it was dismissed for default. It was again dismissed for default on 4.10.2010 and restored to file on 8.10.2010. At those stages the appellants did not apply for the appointment of an Advocate Commissioner. It was only on 18.7.2014 such an application was filed. The application is in our opinion highly belated. The case set out in the affidavit filed in support of the application is that the river forms the western boundary of the disputed lands. One of the reliefs sought in the application is to direct the Advocate Commissioner to ascertain whether there is a river on the boundary of the property of the appellants or whether the river is in the property comprised in R.S.Nos.238/5 and 238/6. As stated earlier, in the document of title, Ext.P1, the river is shown as the northern boundary of the disputed lands. Such being the situation, the appellants cannot pretend to be unaware of the existence of a river on the northern boundary of the disputed property. The averments in the affidavit filed in support of 20 MFA 492/1985 & WPC 17844/2008 I.A.No.2096 of 2016 would show that the appellants are laying claim to a parcel of land different from the disputed lands. It is evident that the property involved in the instant appeal has not been properly identified by the appellants. If that be so, we are left wondering as to how the Government, even assuming it had the power to pass an order of assignment in favour of the appellants, could have passed such an order. We are therefore of the considered opinion that no relief can be granted to the appellants in M.F.A.No.492 of 1985. 18. We shall now consider whether there is any merit in the contention raised by the petitioners in W.P.(C) No.17844 of 2008. The main contention raised in the said writ petition is that in view of the judgments of this court in O.P.No.2439 of 1995, W.A.No.1843 of 1997, O.P.No.29044 of 1999 and W.A.No.43 of 2003 and the provisions contained in the Forest Conservation Act, 1980, the Government cannot assign the disputed lands to the applicants in O.A.No.356 of 1976. It is also contended that they are not entitled to the benefit of the Government order which contemplates assignment of lands to encroachers into private forests. The decision taken by the Government to assign lands to those persons who were in occupation of forest land prior to 1.1.1977 discloses that it applied only to lands situate in Kollam, Pathanamthitta, Idukki, Ernakulam and Thrissur MFA 492/1985 & WPC 17844/2008 21 revenue districts having a total area of 28588.15 Acres. The said Government order was subjected to challenge in a writ petition filed in this court. A Full Bench of this court considered the validity of the Government order and upheld it in _**Natural Lovers Movement**_ v _**State of Kerala and others (**_ AIR 2000 Ker.131). A reading of the said judgment would show that it was after obtaining the consent of the State Government under the Forest Conservation Act, 1980 that the Government decided to assign 28,588.15 acres of land, situate in Kollam, Pathanamthitta, Idukki, Ernakulam and Thrissur revenue districts after joint verification by the Revenue and Forest Departments. The purpose of the Government order was to settle lands on persons who had trespassed into forest lands. The petitioners cannot be said to be persons who are trespassers in occupation of forest lands prior to 1.1.1977. They were owners in occupation immediately prior to 10.5.1971. As their lands have vested in the State Government by virtue of the provisions contained in section 3 of the Act with effect from 10.5.1971, they cannot claim assignment of the very same lands on the plea that they are encroachers prior to 1.1.1977. Apart from the above, the disputed lands are not situate in Kollam, Pathanamthitta, Idukki, Ernakulam or Thrissur revenue districts. The said fact also in our opinion disentitles them to have the 22 MFA 492/1985 & WPC 17844/2008 disputed lands assigned. 19. Further, as stated earlier, the applicants are not sure about the identity, location and lie of the lands. There is no material whatsoever to show that the application for assignment was made in respect of the lands covered by Ext.P1. Even assuming that the application was made in respect of other lands, having regard to the scope of the Government order which provided for assignment of lands to those who had trespassed before 1.1.1977, as the consent of the Central Government has not been obtained for such assignment in Wayanad District, the applicants cannot claim assignment. In short, the applicants are not qualified or eligible for assignment of forest lands in Wayanad district which have vested in the State Government by virtue of the provisions contained in the Act. We are, therefore, of the considered opinion that the decision taken by the Government to assign six acres of land to each of the applicants is without the sanction or authority of law and is liable to be set aside. The Government have in the statement dated 14.6.2010 filed by the Deputy Secretary to Government, Revenue Department stated that so long as Ext.P1 order of the Forest Tribunal stands, meaning thereby the order passed by the Forest Tribunal on 18.2.1985 in O.A.No.356 of 1976, which is impugned in M.F.A.No.492 of 1985, Exts.P6 and P7 23 MFA 492/1985 & WPC 17844/2008 Government orders cannot be implemented. In the view that we have taken, we are of the opinion that necessarily, therefore, W.P.(C) No.17844 of 2008 will have to be allowed and the impugned orders set aside. For the reasons stated above, we dismiss M.F.A. No.492 of 1985, allow W.P.(C) No.17844 of 2008, set aside Ext.P7 Government order and Ext.P8 Government letter produced and marked therein and restrain the Government from assigning the lands involved in O.A.No.356 of 1976 on the file of the Forest Tribunal, Kozhikode to the applicants before the Forest Tribunal or their successors-in-interest. If on the strength of the Government orders referred to above, the appellants are in possession of the disputed lands or lands other than the disputed lands, the Government shall take appropriate steps as are required in law to recover/resume possession of the said lands. No costs. ## **(P.N. Ravindran, Judge)** ## **(Dama Seshadri Naidu, Judge)** ## **kav/**