State of Kerala and Custodian of Vested Forests v. Mayan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 24TH DAY OF JULY 2019 / 2ND SRAVANA, 1941 MFA(FOREST) No.47 of 2019** **AGAINST THE ORDER DATED 17-01-2006 IN OA 7/2005 of FOREST TRIBUNAL, KOZHIKODE.** ## **APPELLANTS/RESPONDENTS :** - **1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD.** **BY SPL.GOVERNMENT PLEADER SRI.NAGARAJ NARAYANAN.** ## **RESPONDENTS/APPLICANTS :** - **1 MAYAN, S/O. VELAYUDHAN, PULLOPARAMBIL, MANGALAM DAM VILLAGE, ALATHUR TALUK, PALAKKAD DIST.(DIED) - 678 706.** - **2 MUNDAN, S/O. VELLA, ODUKOOR, MANGALAM DAM VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT. (DIED) - 678 706.** - **3 CHOORAN,S/O. VELAN, PANNIKOLAMBU, MANGALAM DAM VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 706.** - **4 ISMAIL, S/O. ABDULKHADER, KIZHAKUMURI, VANDAZHI VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 684.** M.F.A (Forest) No.47 of 2019 2 - **5 LEELA, W/O. APPUKUTTAN, KIZHAKKUMURI, VANDAZHI VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 684.** - **6 VELLACHI, W/O. APPULUTTAN, NELLIKODE, VANDAZHI VILLAGE, ALATHUR TALUK, PALAKKAD DISTRICT - 678 684.** **LEGAL REPRESENTATIVE OF RESPONDENT NO.1 :** - **7 KALYANI, W/O MAYAN, HOUSE NO.XII, AKAMPADAM, POTHUNDI (P.O), NENMARA PALAKKAD - 678 508.** **LEGAL REPRESENTATIVE OF RESPONDENT NO.2 :** - **8 CHELLA, CHURAKKODE HOUSE, CHITTADI (PO), ODUKUR, PIN - 678 706** - **9 CHINNA, W/O. KRISHNAN, CHIRAKKODE HOUSE, CHITTADI, ODUKUR - 678 706.** - **10 DEVU, W/O. VARGHESE, 4 CENT COLONY, KANNAMKOTTUKULAM, CHITTADI - 678 706.** - **BY ADV. SRI.MANUEL KACHIRAMATTAM FOR RESPONDENTS 3 TO 6 AND 8 TO 10.** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A (Forest) No.47 of 2019 3 ## A.HARIPRASAD & SHIRCY.V, J J. -------------------------------------- M.F.A (Forest) No.47 of 2019 -------------------------------------- Dated this the 24th day of July, 2019 ## J U D G M E N T ## A.HARIPRASAD, J Heard the learned Special Government Pleader and learned counsel appearing for the respondents. 2. This appeal is filed by the State and Custodian of Vested Forests, challenging the order passed by the Forest Tribunal, Kozhikode in O.A No.7 of 2005 dated 17-01-2006. 3. The respondents approached the Forest Tribunal constituted under the provisions of Kerala Private Forest (Vesting & Assignment) Act, 1971 (in short ' the Vesting Act'), seeking a declaration that the properties scheduled to the application are not private forest under the vesting Act M.F.A (Forest) No.47 of 2019 4 or in the alternatively to get a declaration that the lands are liable to be exempted under Sections 3(2) and 3(3) of the Vesting Act. 4. According to the case pleaded in the application, the scheduled properties originally belonged to one M.V.Joseph. He surrendered the same to Government as excess land as provided in Section 80 of the Kerala Land Reforms Act, 1963 ( in short 'KLR Act'). This fact was decided by the Taluk Land Board, Alathur. It is also contended by the applicants/respondents that item Nos.1 to 6 properties were assigned to them as per the proceedings of the District Collector, Palakkad. Thereafter, the respondents cultivated the properties. According to them, the State has no right over the properties. 5. The State filed a counter statement contending that an extent of 1.363.78 hectares of land in Sy.Nos. 561/3 part and 584/2 part was governed by the Madras Preservation of Private Forests Act, 1949 (in short 'M.P.P.F Act') and it had vested in the Government as on 10-05- M.F.A (Forest) No.47 of 2019 5 1971 as per Section 3(1) of the Vesting Act. The vested land was surveyed, demarcated and notified. The petition schedule properties come within the notified vested forest. The vested area is locally known as Nellikkalidam malavaram. There are forest trees viz; teak, rosewood, irul, venga, chadachi etc. present in the petition schedule properties. The applicants/respondents are not entitled to get any relief as claimed in the petition. 6. The Forest Tribunal considered evidence adduced by the applicants/respondents before it. PW1 is the power of attorney holder of the applicants/respondents. Exts.A1 to A46 and Exts.C1 and C2 Commissioner's report and plan were also considered. 6. The Forest Tribunal in its cryptic order found thus : “ 7. Point Nos.2 and 3 : Petitioners contend in the petition that the petition schedule properties were taken as excess land from one M.V.Joseph as per the order of the Taluk Land Board, Alathur and M.F.A (Forest) No.47 of 2019 6 that the same were distributed to the petitioners as per the proceedings of the District Collector, Palakkad. Respondents in their pleadings did not deny the said contention in the petition. The power of attorney holder of the petitioners deposed as PW1 that 19.5 acres of land inclusive of the petition schedule properties was taken by the government from M.V.Joseph as excess land as ordered by the Taluk Land Board and that the government assigned portions of the said land to 25 persons including the petitioners. The said evidence of PW1 was not challenged in cross-examination. Petitioners produced documents to prove the said contentions. Those documents were not challenged by the respondents. Petitioners produced Exts.A3, A10, A19, A29 and A37 deeds of assignment executed in favour of petitioners 1, 2 and 4 to 6 respectively by the government. Petitioners produced and marked the receipts evidencing remittance of the purchase money. The deed of assignment in favour of the 3rd M.F.A (Forest) No.47 of 2019 7 petitioner was not produced. PW1 said that the said document could not be produced as the same was destroyed by termites. The fact that item No.3 in the petition schedule was assigned to the third petitioner was not disputed by respondents. Ext.A17 receipt proves the payment of purchase money by the third petitioner in respect of the land assigned by the government. Petitioners proved that the petition schedule properties were taken by the government as excess land and that the government assigned those land to petitioners. 8. The land taken by the government from a person as excess cannot be private forest. Respondents cannot validly contend that a land surrendered as excess land and which has been assigned to landless persons by the government is vested forest. In this connection I may refer to two decisions of the Hon'ble High Court of Kerala; (1) State of Kerala v. Joseph (2005(4) KLT Short Note Case No.117) and (2) Noorjahan v. State of Kerala M.F.A (Forest) No.47 of 2019 8 (1988(2) KLT 925).The petition schedule properties are not therefore private forest lands. Petitioners are entitled to the declaration sought.” 7. On the above reasoning, the Tribunal found that the claim of the applicants/respondents under Sections 3(2) and 3(3) of the Vesting Act was not available as the petition schedule properties were found to be not a private forest. For those reasons, the declaration sought for was granted. 8. This appeal was filed with a delay of 4772 days. When notices in the delay condonation petition were issued to the applicants/respondents, some of them appeared in person and submitted that they have no interest in the petition schedule properties. The appellants/respondents have a definite case that the power of attorney holder, who entered appearance on behalf of the applicants/respondents, had played a fraud not only on the parties to the proceedings, but also on the court. The averments in the affidavit filed in support of the petition M.F.A (Forest) No.47 of 2019 9 under Section 5 of the Limitation Act for condonation of the aforementioned delay in filing the appeal, it has been explicitly mentioned by the Officer, who sworn to the affidavit, that facts were misrepresented before the Tribunal and wrong facts were stated for obtaining an order ostensibly in favour of the applicants/respondents. Learned counsel for the respondents/applicants contended that they have no interest in the property. 9. It is also pointed out by the learned Special Government Pleader that the foundation of the respondents' claim viz; the District Collector's order of assignment of excess land has been invalidated by G.O (Rt.) No.72/2001/F&WLD dated 28/02/2001 and the patta holders were directed to surrender the land. That order was challenged before this Court in O.P No.14863 of 2001. But this Court dismissed the challenge by judgment dated 18-01-2002. Aggrieved by the said order, some of the parties filed a writ appeal as W.A No.450 of 2002. A Division M.F.A (Forest) No.47 of 2019 10 Bench of this Court directed the parties to approach the Forest Tribunal within a time stipulated and thereafter they approached the Tribunal with this application. All these facts were not brought to the notice of the Tribunal, which resulted in the aforementioned order. 10. It is also pointed out by the learned Special Government Pleader that there was a direction to the Tribunal for a time bound disposal of the case. According to him, this prompted the Tribunal to dispose of the case in a hasty manner without affording an opportunity to the appellants/respondents to adduce evidence. It is further pointed out that the notification issued under the Vesting Act was produced before the Tribunal, but it was not scrutinized by it at the time of disposal of the case. 11. After considering the grounds raised in the appeal memorandum and on hearing the learned counsel on both sides, we are of the view that the Tribunal's order is not sustainable either in law or on M.F.A (Forest) No.47 of 2019 11 facts in the light of the material infirmities attached to it. We are of the view that the appellants/respondents should have been given an opportunity to produce the entire materials to show that the application schedule properties are private forest vested as per the provisions of the Vesting Act. It is also seen that fraud has been played not only on the parties to the proceedings, but also on court, which led the Tribunal to pass the impugned order. Therefore, we have no hesitation to set aside the order passed by the Forest Tribunal and remand the case for deciding the matter afresh after affording the parties a reasonable opportunity of producing material evidence and being heard. We also make it clear that if the appellants/respondents so choose, they may be allowed to file an additional counter statement in the matter and produce the relevant documents. In the result, the impugned order is set aside and the matter is remanded, so that the Forest Tribunal, Kozhikode shall try O.S No.7 of M.F.A (Forest) No.47 of 2019 12 2005 again after affording the parties an opportunity to file additional counter statement, if any and adduce fresh evidence, if any. The Forest Tribunal shall, on receipt of the judgment and records from this Court, issue fresh notices to the respondents/applicants directing them to appear before the Tribunal on 30th September, 2019. It is also made clear that the appellants/respondents shall enter appearance on the aforementioned date without any notice. The case shall be disposed in four months from the date of appearance of all parties. A. HARIPRASAD, JUDGE. SHIRCY.V, JUDGE amk M.F.A (Forest) No.47 of 2019 13 The Paragraph 8 of the Judgment in MFA (Forest) 47/19 is modified and stands substituted as follows vide order dated 27-09-2019 in R.P 767 of 2019 in MFA (Forest) 47/2019. This appeal was filed with a delay of 4772 days. When notices in the delay condonation petition were issued to the applicants/respondents, some of them appeared in person and submitted that their power of attorney holder one Mr.Thomas encroached upon the property belonging to them and respondents were not allowed to occupy any piece of land at any point of time. The appellants have a definite case that the power of attorney holder, who entered appearance on behalf of the claimants (petitioners herein) had played fraud not only on the parties to the proceedings, but also on the court. In the affidavit filed in support of the petition under Section 5 of the Limitation Act for condonation of the aforementioned delay M.F.A (Forest) No.47 of 2019 14 in filing the appeal, it has been explicitly mentioned by the Officer concerned that facts were misrepresented before the Tribunal and wrong facts were stated for obtaining an order ostensibly in favour of the respondents. In fact, the respondents also did not derive any benefit out of the proceedings. Sd/Deputy Registrar.