The Forester, Parappa Section Forest, Parappa, Delampady; The Forest Range Officer, Kasaragod; The District Collector, Kasaragod v. K. Narayana Bhat

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.HARILAL THURSDAY, THE 31ST DAY OF JULY 2014/9TH SRAVANA, 1936 RSA.No. 590 of 2006 (C) ------------------------ AS 75/2002 of SUB COURT, KASARAGOD OS 78/2001 of ADDL.MUNSIFF COURT, KASARAGOD APPELLANTS/APPELLANTS IN THE AS/DEFENDANTS:: ------------------------------------------------------------------------ 1. THE FORESTER, PARAPPA SECTION FOREST, P.O. PARAPPA, DELAMPADY. 2. THE FOREST RANGE OFFICER, KASARAGOD. 3. THE DISTRICT COLLECTOR, KASARAGOD. BY SRI.M.P.MADHAVAN KUTTY, SPL. GOVT. PLEADER (FOREST) RESPONDENT(S)/RESPONDENT IN THE A.S/PLAINTIFF:: -------------------------------------------------------------------------- K. NARAYANA BHAT, S/O. KESHAVA BHAT, RESIDING AT KAJE HOLEKARE, DELAMPADY VILLAGE POST PANJIKALLU, KASARAGOD TALUK AND DISTRICT. BY ADV. SRI.JACOB E SIMON BY ADV. SMT.P.VANI THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.590/06-C ## **APPENDIX** ## **APPELLANTS' ANNEXURES:-** A1:TRUE COPY OF NOTIFICATION NO.C4-21437/00 A2:TRUE COPY OF ERATTUM NOTIFICATION **RESPONDENTS' ANNEXURES:-** NIL _//TRUE COPY//_ _P.A. TO JUDGE_ _OKB/-_ ## **K.HARILAL, J.** ## **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** ## **R.S.A. No.590 of 2006** **_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _** Dated this the 31[st] day of July, 2014 ## **JUDGMENT** The appellants herein are the defendants in O.S.No.78/01 on the files of the Munsiff's Court, Kasaragod, as well as the appellants in A.S.No.75/02 on the files of the Court of Subordinate Judge, Kasaragod. The appellants are officials of the Forest Department in various ranks. The above O.S. was one for a permanent prohibitory injunction and for damages. After considering the evidence on record, the Munsiff's Court decreed the suit as prayed for. Feeling aggrieved, though the appellants had preferred above Appeal Suit before the Sub Court, the learned Judge also dismissed the appeal confirming the findings under which the trial court decreed the suit. This Regular Second Appeal is filed challenging the concurrent findings of the courts below on various grounds. 2. The averments in the plaint in a nutshell are as follows:The parties are referred to as in the original suit. Item Nos.1 to 3 of the plaint A schedule property along with other properties belong to the plaintiff and the said property was purchased by **R.S.A.590/06 :2:** the plaintiff as per registered sale deed dated 5-6-1991 and item No.4 of the plaint A schedule property was registered as per sale deed dated 6-6-1991 and item No.5 of plaint A schedule property was registered as per sale deed dated 5-6-1991. The plaintiff has been in possession and enjoyment of A schedule property along with other properties and since the date of the said sale deeds he has been enjoying the said property without any interruption. There are improvements like coconut plants, cashew plants, timber plants and other valuable timber trees in the A schedule property and there is a house also. The plaint A schedule property is enclosed by fence and mud compound wall and a reserved forest is situated adjacent to the A schedule property. The defendants have absolutely no manner of right, title or possession over A schedule properties. Some workers of the first defendant had come to A schedule property one month back and tried to remove coconut plants planted by the plaintiff in the A schedule property. They had threatened that they would cut and remove the timber trees and other valuable trees in the A schedule property and on 16-2-2001 the first defendant along with some workers tried to trespass into the property and they unlawfully removed 20 coconut plants planted in the A schedule property. They had also tried to cut and remove other **R.S.A.590/06 :3:** valuable trees in the property. The plaintiff sent a registered notice dated 19-1-2001 calling upon the defendants not to interfere with his peaceful possession and enjoyment of the A schedule property. The plaintiff sustained damage on account of the unlawful action of the defendants. Hence they filed the above suit for damages and also for permanent prohibitory injunction restraining the defendants from trespassing into the plaint A schedule property and from cutting and removing the trees standing in the A schedule property. The trial Court decreed the suit directing the defendants to pay an amount of Rs.4,200/- to the plaintiff as damages with interest @ 9% per annum from the date of decree till realisation of the amount. 3. The defendants filed a written statement contending that the suit is not maintainable under the bar of jurisdiction provided under Section 13 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003, (for short 'the Act). The plaintiff has no right or possession over A schedule property and there is no cause of action for filing the suit. As per Ordinance No.6/2000 (now 16/2001) (Vesting and Management of Ecologically Fragile Lands Ordinance) the ownership and possession of ecologically fragile lands held by any other person or any other form of right over them shall **R.S.A.590/06 :4:** stand transferred to and vested with the Government free from all encumbrance and the right, title and interest of the owner or any other persons shall stand extinguished with effect from 2-6-2000. Item Nos.1 to 4 in A schedule property is an ecologically fragile land as per Section 3(1) of the above said Ordinance. Hence the ownership and possession of A schedule property excluding item No.5 stand transferred and vested with the Government of Kerala with effect from 2-6-2000. The defendants have never tried to destroy anything in the property and the defendants are not liable to pay any damages. 4. On the above pleadings, the plaintiff was examined as P.W.1 and Exts.A1 to A7 were marked. The Forester of Parappa was examined as D.W.1 and no document had been produced. Exts.C1 to C3 were marked as Court exhibits. After considering the rival contentions, the trial court decreed the suit directing the defendants to pay an amount of Rs.4,200/- to the plaintiff as damages together with interest and also passed a permanent prohibitory injunction restraining the defendants from trespassing into the A schedule property and from cutting and removing any trees standing therein. In appeal, the Appellate Court also confirmed the findings of the trial court and dismissed the appeal. **R.S.A.590/06 :5:** 5. The learned Special Government Pleader advanced arguments challenging the concurrent findings of the courts below under which the suit had been decreed and confirmed in appeal. According to the Special Government Pleader, a civil court has no jurisdiction to try the suit in view of Section 13 of the Act. Hence the decree passed by the trial court and confirmed by the Appellate Court is a nullity. The learned Special Government Pleader, to fortify the above argument, drew my attention to Sections 3 and 13 of the said Act and further submitted that under the notification under Section 3 of the said Act a property which would come under the definition of 'ecologically fragile lands' under Section 2(b) would automatically stand vested in Government from the date of notification and in consequence of the notification the owner of the property loses his right and possession over the property. Therefore, in the instance case, the plaintiff has no right over the property at the time when the trees were cut and removed. To substantiate the above contention, the learned Special Government Pleader cited **A.K. Balan v. P.K. Kesavan and Another (2006 KHC 1019)** and to fortify the argument put forward under Section 13 of the Act, the learned Government Pleader further cited **Kiran Singh and Others v. Chaman** **R.S.A.590/06 :6:** **Paswan and Others (1954 KHC 475)** , **P. Murukankutty v. Amarnath Shetty (2007 (1) KHC 29)** and **Abdul Gafur and Another v. State of Uttarakhand and Others (2008 KHC 5225)** . The sum and substance of the argument is that both the decrees passed by the lower courts are a nullity in as much as the same is vested with the jurisdiction. The courts below failed to note that the clause under Section 3(1) of the Act is automatic and not conditional. 6. Per contra, the learned counsel for the respondent advanced arguments to justify the concurrent findings of the courts below. According to him, there is no evidence to show that the plaint schedule properties are ecologically fragile lands coming under the definition of Section 2(b) of the Act and by the notification said to have been effected under Section 3, these properties would stand automatically vested in Government. In the absence of evidence, the courts below can be justified in decreeing the suit granting damages to the plaintiff. The learned counsel further drew my attention to Exts.C1 and C2 reports filed by the Commissioner, which would show that the plaint schedule properties are not forest lands as defined under Sections 2(b) and 1(c) of the Act. More specifically, the Commissioner has reported that 21 coconut trees have been cut **R.S.A.590/06 :7:** and removed from the plaint schedule property. Further, the learned counsel drew my attention to the oral evidence given by D.W.1, which would show that he was totally unaware about the notification and proceedings said to have been made under the notification taking over the possession of the property by the Government. 7. Heard both sides and I have given my anxious consideration to the rival submissions at the Bar. Going by the concurrent findings of the courts below, obviously the courts below held that Exts.A1 to 6 conclusively prove that the plaintiff is the absolute owner in possession of the plaint schedule property and he was in possession and enjoyment of the property from 1991 onwards. The above finding is supported by Exts.C1 and C2 reports filed by the Commissioner. The Commissioner reported that he had identified and measured the suit property on the basis of the FMB and with the help of the Village Chainman and Village Assistant. There was no dispute as to the identification. The Commissioner has prepared the plan of the plaint A schedule property and categorically reported the details of the building and all other improvements including cultivation made by the plaintiff in the A schedule property. More importantly, the Commissioner has reported **R.S.A.590/06 :8:** that 21 coconut trees have been cut and removed and those trees were found lying by the side of coconut leaves, and those leaves have not completely dried up. In the above view, the ownership and possession of the plaintiff over the plaint A schedule property stands unchallenged. So the question to be considered is whether the plaint schedule property was an ecologically fragile land notified under Section 3 of the Act. 8. Going by the evidence on record, it could be seen that no document had been produced by the defendants to prove that plaint A schedule property is an ecologically fragile land as defined under Section 2(b)(1) of the Act and the said property stands in Government by a notification under Section 3 of the Act. The learned Special Government Pleader contends that the vesting of property under the notification is automatic and unconditional. It is true. But, I am of the opinion that the defendants could have produced a copy of the notification covering the plaint schedule property by which plaint A schedule property stood vested with the Government. That apart, the statutory mandate under Section 3(2) is that, the land vested in Government under Section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the **R.S.A.590/06 :9:** Advisory Committee constituted under Section 15 for perusal. Needless to say, the defendants could have produced the notification in the Gazette and the further evidence to show that the plaintiff had been informed in writing by the custodian indicating the vesting of property with the Government. Therefore, in the absence of evidence to show the notification, though the Special Government Pleader cited the decisions referred above, to show the nature of automatic vesting, I find that these decisions have no application in the instance case. 9. In the above view, I confirm the concurrent findings of the courts below that the defendants miserably failed to prove that plaint A schedule property is an ecologically fragile land vested in the Government under Section 3 of the Act. The above view is further supported by the commission report which would show the coconut plantations and cultivations. Going by the commission report, plaint A schedule property can never be treated as a forest land unless and until documentary evidence is produced to show the same. 10. Coming to the question of jurisdiction, the learned Special Government Pleader submits that the impugned decree passed by the trial court and confirmed by the Appellate Court is a nullity due to bar of jurisdiction under Section 13 of the Act. **R.S.A.590/06 :10:** Section 13 of the Act mandates that 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, required to be decided or dealt with or to be determined by the Tribunal, the custodian or any other officer. On a factual analysis of the evidence on record, prima facie I find that the suit will not come under the bar of jurisdiction under Section 13 as there is no evidence to show that plaint A schedule property is an ecologically fragile land notified under Section 3 of the Act. The bar of jurisdiction under Section 13 is applicable to those properties which are notified under Section 3 of the Act. 11. The learned counsel drew my attention to para 6 of the decision reported in **Kiran Singh** 's case (supra) and para 13 of the decision reported in **Abdul Gafur** 's case (supra). It is a fundamental principle, well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. But the said principle cannot be applied to the facts of the instance case as there is no evidence to show that the plaint A schedule property is an ecologically fragile land and the dispute involved in the instance case would **R.S.A.590/06 :11:** be determined by the Tribunal specifically constituted for the specific purpose contemplated under Section 12 of the Act. 12. But, on the other hand, in view of the facts of the instance case, the decisions cited by the learned counsel for the respondents are squarely applicable. In **Gurbax Singh v. Financial Commissioner and Another (1991 Supp. (1) SCC** **167)** , the Apex Court held as follows:- “It is true that where the special tribunal or authority acts ultra vires or illegally, the civil court has by virtue of Section 9 of the Civil Procedure Code power to interfere and set matters right. As was laid down by the Judicial Committee of the Privy Council in Secretary of State v. Mask and Co., if the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil courts have jurisdiction to examine those cases. This rule was reiterated by the Supreme Court in State of Kerala v. N. Ramaswami Iyer and Sons. In the instant case the second respondent's civil suit against Budha Singh for declaration of possession was not against any order passed by any officer under the Act. That decree, even if it was not declared collusive could not have collaterally affected the auction sale order.” 13. When applying the above proposition to the instance case, I find that the provisions of the Kerala Forest (Vesting and **R.S.A.590/06 :12:** Management of Ecologically Fragile Lands) Act, 2003, have no application as no evidence had been adduced to prove that the disputed land is notified under the said Act. But the forest authorities acted illegally and proceeded against the plaintiff. If that be so, by virtue of Section 9 of the C.P.C., the civil court has the power to interfere and grant relief to the plaintiff. In short, I also concur with the finding that the civil court has jurisdiction to try the instance case and the present suit will not come under the bar of jurisdiction accrued under Section 13 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. 14. The learned counsel further drew my attention to Annexures A1 and A2 produced along with the Memorandum of the Regular Second Appeal. Annexure A1 is a notification dated 12-7-2001 and Annexure A2 is a true copy of the erratum notification. Apparently, I find that Annexures A1 and A2 are photocopies which cannot be admitted in evidence in a civil suit and those documents are required to be tested and proved in accordance with the provisions under the Evidence Act. Even if those documents are taken at its face value, the same cannot be used to find that the petitioners' property is an ecologically fragile land as certain extent of properties in different survey **R.S.A.590/06 :13:** numbers alone are notified as ecologically fragile lands. The entire properties in those survey numbers are not notified as ecologically fragile lands. However, Annexures A1 and A2 are not admissible in this R.S.A. 15. In the light of the above discussion, I concur with the findings of the courts below and there is no illegality or impropriety in any of the findings. Similarly, I do not find any kind of perversity in the appreciation of evidence from which those findings have been arrived at. The Regular Second Appeal is dismissed accordingly. Sd/- **(** _**K.HARILAL, JUDGE)**_ okb.