High Court of KeralaSingle Judge2020-06-08Writ petition disposed of with directions to co...

Swaminadhan v. Forest Range Officer, Alathur Forest Range Office, Anakkapparam/Anchumoorthimangalam, Palakkad; Divisional Forest Officer; Chief Forest Conservator, Eastern Circle

Case / Petition Number:WP(C).No.22453 OF 2017(F)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.G. Arun
Judgment Date: 2020-06-08
Court Decision / Holding: Writ petition disposed of with directions to the competent respondents to consider the application for restoration submitted by the petitioner and to pass orders in accordance with law within four months from receipt of a copy of the judgment. Court clarifies that it has not pronounced on the merits of restoration or entitlement to cut trees, dehors the Section 5(1) notification of the Trees Act.
Final Disposition: Writ petition disposed of with directions to consider the restoration application within four months; no decision on merits regarding restoration or trees; subject to Trees Act considerations.

Parties to the Case

Appellants / Petitioners

Swaminadhan

Respondents

Forest Range Officer, Alathur Forest Range Office, Anakkapparam, Anchumoorthimangalam P.O., Palakkad-678602
Divisional Forest Officer, Divisional Forest Office, Ayinampadam, Nenmara P.O., Palakkad-678508
Chief Forest Conservator, Eastern Circle, Olavakkod P.O., Palakkad-678002

Legal Representation & Advocates

Counsels for Petitioners

• Sri P. Babu Kumar

Counsels for Respondents

• Sri Sandesh Raja.K., Special Government Pleader (Forest)

Case Synopsis & Summary

Swaminadhan, the petitioner, purchased 6 acres 93 cents of land from Kasu in 1981 and pursued his title through possession, mutation, and tax payments, following a notification under the Kerala Private Forests (Vesting and Assignment) Act, 1971. Kasu had previously challenged vesting before the Forest Tribunal (O.A.278/1976), and the original application was allowed in his favour by Ext.P3; the State’s appeal in MFA No.336/79 was dismissed, as reflected in Ext.P3(a). After these events, the petitioner obtained a possession certificate and sought restoration of the property, arguing that Exts.P3 and P3(a) validate his claim and that restoration should be in his favour as the successor in title. He also sought permission to cut rubber trees, asserting that Trees Act restrictions should not hamper a rubber plantation. The Forest Department’s Special Government Pleader contends that Ext.P1 is only a lease and suggests restoration should be to Kasu or his legal heirs, citing Section 8A(4) of the Act. The petitioner relies on a Full Bench decision in K.S. Parameswara Sastrigal v. State of Kerala and Others to argue that a subsequent purchaser may apply for restoration. The court ultimately holds that permission to cut rubber trees cannot be granted until restoration proceedings are resolved, leaves the title/entitlement issue open for consideration under law, and disposes the petition with directions to complete restoration proceedings within four months, while reserving merits under the Trees Act. It clarifies that the decision does not decide the merits beyond restoration and the effect of Trees Act is to be considered separately.

Provisions of Law Cited

Kerala Private Forests (Vesting and Assignment) Act, 1971Section 8A(4) of the Kerala Private Forests (Vesting and Assignment) Act, 1971Kerala Preservation of Trees Act, 1986Section 5(1) of the Kerala Preservation of Trees Act, 1986

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Exts.P3 and P3(a) support restoration and that, having perfected title through possession, mutation and tax payments, he is entitled to restoration. He argues that the Trees Act prohibition should not bar a rubber plantation and seeks a permit to cut rubber trees; relies on Ext.P1 as a lease but asserts his rights flow from prior possession and statutory restoration rights.

Contentions of Respondents

The respondents maintain Ext.P1 is merely a lease and restoration must be to Kasu or his legal heirs, not the petitioner. They invoke Section 8A(4) and contend restoration must be to the person who was in possession immediately before the appointed day; since Kasu is deceased, restoration should be to his heirs. The petitioner's failure to implead the heirs is highlighted, and the department emphasizes that restoration procedures, including Ext.P13 and Ext.P17-like steps, must be followed before granting permission to cut trees.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
K.S. Parameswara Sastrigal v. State of Kerala and Others	M.F.A.No.359 of 2000	Mentioned Only	Cited by counsel to support the proposition that a subsequent purchaser can seek restoration; the court does not adopt the proposition as a binding ruling in this decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 08TH DAY OF JUNE 2020 / 18TH JYAISHTA, 1942** ## **WP(C).No.22453 OF 2017(F)** ## **PETITIONER/S:** **SWAMINADHAN, AGED 62 YEARS S/O VELAYUDHAN,CHATHANKODU HOUSE, CHITHALI P.O.,ALATHUR TALUK, PALAKKAD DIST. BY ADV. SRI.P.BABU KUMAR** ## **RESPONDENT/S:** |**1**|**FOREST RANGE OFFICER**| |---|---| ||**ALATHUR FOREST RANGE OFFICE,**| ||**ANAKKAPPARA,ANCHUMOORTHIMANGALAM P.O.,**| ||**PALAKKAD-678602.**| |**2**|**DIVISIONAL FOREST OFFICER**| ||**DIVISIONAL FOREST OFFICE,**| ||**AYINAMPADAM, NENMARA P.O.,**| ||**PALAKKAD-678508.**| |**3**|**CHIEF FOREST CONSERVATOR**| ||**EASTERN CIRCLE, OLAVAKKODU P.O.,**| ||**PALAKKAD 678002.**| ||**R1 BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)**| **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22453 OF 2017(F)** ..2.. ## **JUDGMENT** Dated this the 8th day of June 2020 The petitioner had purchased 6 acres and 93 cents of land from one Kasu, who had been in possession and enjoyment of the property and had been cultivating the property. The purchase was effected on 26.08.1981 under Ext,P1 document. In the meanwhile, the Forest Department had issued notification under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (herein after referred to as 'the Act' for short), with respect to the property in question. Kasu had challenged the notification before the Forest Tribunal by filing O.A.No.278 of 1976 and the original application was allowed in his favour as per Ext.P3 order. The State challenged the order before this Court in M.F.A.No.336 of 1979. The appeal was dismissed as per Ext.P3(a) judgment dated 28.09.1984. In the meanwhile, the petitioner had obtained possession certificate and had **WP(C).No.22453 OF 2017(F)** ..3.. effected mutation in his name. Thereafter, the petitioner made an application before the Forest Department for restoration of the property. The application was processed and recommended for favourabe consideration, since the legal heirs of Kasu had not raised any claim with respect to the property. 2. The Forest Department had also issued a notification under Section 5(1) of the Kerala Preservation of Trees Act, 1986 (the 'Trees Act' for short) prohibiting cutting of any tree from the property, except trees which constitute danger to life or property; or trees, which are dead, diseased or windfallen. Thereupon, the petitioner made a request before the authorities, seeking permission to cut and remove the rubber trees in the property. The request having been rejected, the writ petition is filed seeking a direction to the 1[st] respondent to issue permit for cutting and removing the trees. **WP(C).No.22453 OF 2017(F)** ..4.. 3. The specific case of the petitioner is that, having purchased the property under Ext.P1 and having perfected his title by acquiring possession certificate, remitting tax and by effecting mutation, the 1[st] respondent is bound to restore the property to the petitioner, in pursuance of Exts.P3 and P3(a). It is also contended that, the property being a rubber plantation, the prohibition under Section 5(1) of the Trees Act will not hamper the petitioner's right to cut the trees. 4. The learned Special Government Pleader submits that Ext.P1 is only a lease agreement and the petitioner's claim of having perfected his title is doubtful. It is submitted that going by Section 8A(4) of the Act, the property has to be restored to the person in possession immediately before the appointed day. The person in possession, being Kasu, the restoration should be in favour of Kasu and since Kasu is no more, in favour of his legal heirs. It is submitted that at best the petitioner could make **WP(C).No.22453 OF 2017(F)** ..5.. an application for restoration along with documents evidencing surrender of the rights of the legal heirs of Kasu in the petitioner's favour. It is pointed out that the petitioner ought to have atleast impleaded the legal heirs of Kasu as parties to this writ petition. 5. The learned counsel for the petitioner relies on a Full Bench decision of this court in _**K.S.Parameswara Sastrigal**_ v. _**State of Kerala and Others [M.F.A.No.359 of 2000]**_ to contend that even a subsequent purchaser can make an application for restoration, since he steps into the shoes of the owner, as defined under Section 2(c) of the Act. The learned counsel also draws attention to Ext.P17 to point out that in similar situation, when the legal heirs of the person who had obtained favourable orders from the Forest Tribunal did not stake claim for restoration, the application for restoration made by the subsequent purchaser was processed by the Forest Department and paper notification issued, calling for objections, if any, **WP(C).No.22453 OF 2017(F)** ..6.. against such restoration. It is submitted that in the case of the petitioner also, the same procedure could be adopted by the Department and the property restored to him. Attention is also drawn to Ext.P13; an inter-departmental communication recommending consideration of petitioner's request. 6. Having heard the submissions, I am of the considered opinion that the prayer for permission to cut and remove rubber trees from the property cannot be allowed, until orders are passed on the application for restoration submitted by the petitioner. The claim of the petitioner, of having perfected his title, as well as his entitlement for restoration, is left open to be considered by the authorities. Of course, while effecting such consideration, the authorities shall look into the recommendation in Ext.P13 as also the procedure evidenced by Ext.P17 notification. **WP(C).No.22453 OF 2017(F)** ..7.. In the result, the writ petition is disposed of, directing the competent among the respondents to consider the application for restoration submitted by the petitioner and to pass orders in accordance with law, within an outer limit of four months from the date of receipt of a copy of this judgment. It is made clear that this Court has not rendered any decision on the merits of the petitioner's claim, either for the purpose of restoration or with respect to his entitlement to cut and remove trees from the property, _dehors_ the notification under Section 5(1) of the Trees Act. SB/08/06/2020 **Sd/V.G.ARUN JUDGE** **WP(C).No.22453 OF 2017(F)** ..8.. ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE PHOTOCOPY OF THE REGISTERED LEASE DEED DATED 26.8.1981.** - **EXHIBIT P2 TRUE PHOTOCOPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL DATED 15.10.1997.** - **EXHIBIT P2(A) TRUE PHOTOCOPY OF THE PURCHASE CERTIFICATE ISSUED BY THE LAND TRIBUNAL DATED 26.7.1985.** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER DATED 12.4.1979 OF FOREST TRIBUNAL, PALAKKAD.** - **EXHIBIT P3(A) TRUE PHOTOCOPY OF THE JUDGMENT DATED 28.9.1984 IN MFA NO 336/79 OF THIS HON'BLE COURT.** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE TAX PAID RECEIPT DATED 7.7.2016.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE TAX PAID RECEIPT IN THE YEAR 2014.** - **EXHIBIT P6 TRUE PHOTOCOPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, KUZHALMANNAM DTD.28.11.2013.** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE THANDAPER REGISTER OF THE PROPERTY KEPT IN THE VILLAGE OFFICE, KUZHALMANNAM WHICH PETITIONER OBTAINED UNDER THE R.I.ACT DATED 18.8.2014.** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE NOTICE SENT BY THE 1ST RESPONDENT** - **EXHIBIT P9 TRUE PHOTOCOPY OF THE ORDER DATED 12.11.2014.** - **EXHIBIT P10 TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 18.7.2016.** **WP(C).No.22453 OF 2017(F)** ..9.. **EXHIBIT P11** **TRUE PHOTOCOPY OF THE REPLY SENT BY THE 1ST RESPONDENT DATED 26.7.2016.** **EXHIBIT P12** **TRUE PHOTOCOPY OF THE ORDER DATED 15.10.2016 PASSED BY THE 3RD RESPONDENT.** **EXHIBIT P14 TRUE PHOTOCOPY OF THE LETTER DATED 10.1.2019** **EXHIBIT P15 TRUE COPY OF THE LETTER DATED 6.12.2018** - **EXHIBIT P16 TRUE PHOTOCOPY OF THE REPLY AND DOCUMENTS** **EXHIBIT P17 TRUE PHOTOCOPY OF THE ADVERTISEMENT APPEARED MANORAMA DAILY IN THE MONTH OF FEBRUARY 2018** **EXHIBIT P18 TRUE PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER** **EXHIBIT P19 TRUE PHOTOCOPY OF THE OR NO.33/2013** // True Copy // P.A to Judge