The Vayitri Plantations Limited v. State of Kerala & Custodian of Vested Forests, Olavakkode, Palakkad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL** **& THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY, THE 8TH DAY OF JUNE 2017/18TH JYAISHTA, 1939** **OP(FT).No. 5 of 2017 (R) -------------------------** **AGAINST THE ORDER DATED 31-1-2017 IN I.A.NO.126/2016 IN I.A.NO.52/2016 IN O.A.NO.12/2015 ON THE FILE OF THE FORST TRIBUNAL, KOZHIKODE.** ## **PETITIONER/PETITIONER/APPELLANT:** **--------------------------------** **THE VAYITRI PLANTATIONS LIMITED, 472-473, K.K. NAGAR, MADURAI, TAMIL NADU-625 020, REPRESENTED BY ITS DIRECTOR ZAFAR SALIM, S/O. M. SALIM, K.K. NAGAR, MADURAI-625 020.** **BY ADVS.SRI.K.M.FIROZ SMT.M.SHAJNA SMT.UMMUL FIDA SRI.E.C.AHAMED FAZIL** **RESPONDENTS/RESPONDENTS/RESPONDNETS:** **------------------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SERCRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE CUSTODIAN OF VESTED FORESTS, OLAVAKODE, PALAKKAD DISTRICT-678 001.** **BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **THIS OP (FOREST TRIBUNAL) HAVING COME UP FOR ADMISSION ON 08-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(FT).No. 5 of 2017 (R)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 - A TRUE COPY OF THE ORIGINAL APPLICATION NO.12/2015 ON THE FILES OF THE FOREST TRIBUNAL, KOZHIKODE, SUBMITTED BY THE PETITIONER.** **EXT.P2 - A TRUE COPY OF THE COUNTER AFFIDAVIT IN O.A.NO.12/2015 ON THE FILES OF THE FOREST TRIBUNAL, KOZHIKODE, FILED BY THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD FOREST DIVISION.** **EXT.P3 - A TRUE COPY OF THE AMENDMENT APPLICATION IA NO.52/2016 SUBMITTED BY THE PETITIONER IN NO.12/2015 ON THE FILES OF THE FOREST TRIBUNAL, KOZHIKODE.** **EXT.P4 - A TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE DIVISIONAL FOREST OFFICER, SOUTH WAYANAD IN EXT.P3 AMENDMENT APPLICATION IA NO.52/2016 IN NO.12/2015 ON THE FILES OF THE FOREST TRIBUNAL, KOZHIKODE.** **EXT.P5 - A TRUE COPY OF THE ORDER PASSED BY THE HONOURABLE FOREST TRIBUNAL IN IA NO.52/2016 IN NO.12/2015 ON THE FILES OF THE FOREST TRIBUNAL, KOZHIKODE, DATED 6/8/2016.** **EXT.P6 - A TRUE COPY OF THE ORDER DATED 31-3-2017 PASSED IN I.A.NO.126/2016 REVIEW IN I.A.NO.52/2016 IN O.A.NO.12/2015 PASSED BY THE HONOURABLE FOREST TRIBUNAL, KOZHIKODE.** **//TRUE COPY//** **P.S. TO JUDGE** ## _**K. HARILAL & P. SOMARAJAN., JJ.**_ _**--------------------------------------------------------O.P.(F.T.) No.5 of 2017-R ---------------------------------------------------------Dated this the 8[th] day of June, 2017**_ ## _**JUDGMENT**_ ## _**Harilal, J.**_ The petitioner is the original petitioner in O.A. No.12/2015 on the files of the Forest Tribunal, Kozhikode. He has filed I.A. No.52/2016 seeking to amend the said Original Application based on the difference in the extent of land subsequently demarcated and claimed by the Government. In the Original Application, a declaration was sought for in respect of 20 Hectares of land claimed by the Government; whereas in the application seeking amendment, he wanted to amend the extent of property to 45.6025 Hectares which was demarcated _**O.P.(F.T.) No.5 of 2017**_ -: 2 :- and claimed subsequently by the Government. In view of the subsequent claim of the Government, he has filed the aforesaid application seeking the said amendment. 2. The Tribunal dismissed the said application on a finding that the right to approach the Tribunal or cause of action for a petition under Sec.8(1) of the Kerala Private Forest (Vesting and Assignments) Act arises only after the publication of the notification under Rule 2A of the Kerala Private Forest (Vesting & Assignment) Rules, 1974. In the instant case, such a notification was not made with respect to 45.6025 Hectares. So, the Interlocutory Application for amending the application is premature and on that premises dismissed the application. The said finding is under challenge in this OP(FT). 3. Aggrieved by the order dismissing the amendment application, though the petitioner had preferred I.A.No.126/2016, to review of the aforesaid order, the learned Tribunal dismissed the _**O.P.(F.T.) No.5 of 2017**_ -: 3 :- said application by Ext.P6 order holding Ext.P5 impugned order. 4. Heard the learned counsel for the petitioner and the learned Special Government Pleader (Forest) appearing for the respondents. 5. In view of the submissions made at the Bar, the only question to be considered is whether the Tribunal is justified in finding that a notification under Rule 2A of the Private Forest (Vesting and Assignment) Rules read with Sec.6 of the Kerala Private Forest (Vesting and Assignments) Act is a condition precedent for maintaining an application before the Tribunal. This question was answered negatively by a Full Bench of this Court in the decision reported in _**Bhargavi Amma v. State of Kerala [1997 KHC 406 = 1997(2) KLT 513]**_ and the crux of the decision is extracted below: “13. Having given our anxious consideration to the scheme and the relevant provisions of the Act, we are of the view that the Tribunal’s jurisdiction _**O.P.(F.T.) No.5 of 2017**_ -: 4 :- is all comprehensive and admits of no restriction in regard to disputes coming under sub-sections (2) and (3) of Section 3, which are comprehended by clauses (a) and (b) of Section 8 whether it pertained to notified or nonnotified properties. A dispute is what it is under the Act and not that it should also have originated subsequent to or as a consequence of the notification published under Rule 2A r/w. Section 6 of the Act, whose scope and purpose seem to have been over emphasised to dilute the wide reach of Section 8 and unsettle generally the very scheme of the Act itself. What Section 6 enjoins upon the custodian is to demarcate boundaries of private forests vested with the Government under sub-section (1) of Section 3. He could do so even when an application under section 8 is pending before the Tribunal, if he was satisfied the land is vested forest, which without anything more showed that the publication of the notification is not a condition precedent to entertain the _**O.P.(F.T.) No.5 of 2017**_ -: 5 :- application by the Tribunal. In other words, the existence of dispute is not to be found from whether there was or not a notification, but from the allegation in the petition that show its existence and it is barred by the relevant rules as to form and limitation. The Tribunal’s jurisdiction is not conditioned by the notification even in whose absence it could entertain the application, if it disclosed a dispute under clauses (a) and (b) of Section 3 for its adjudication. We also wish to point out that in several other decisions too this court had taken a consistent view that without entering on a finding whether a notification had been issued and if so it was valid and proper, dismissal of the application filed under Section 8 treating them as relating to nonnotified properties and hence beyond the Tribunal’s jurisdiction, was held to be bad and the Tribunal was directed to entertain the applications and dispose them on merits. We agree, that was rightly said”. _**O.P.(F.T.) No.5 of 2017**_ -: 6 :- The proposition that can be culled out from the above paragraph is that the said notification is not a condition precedent for maintaining an application. It follows that such a notification is not necessary to maintain an application seeking amendment in the application filed earlier also. 6. In the above view, Exts.P5 and P6 orders will stand set aside and Ext.P3 Interlocutory Application for amending Ext.P1 application will stand allowed. The Forest Tribunal is directed to proceed further in this respect. This OP(FT) is disposed of accordingly. ## _**Sd/-**_ _**(K.HARILAL, JUDGE)**_ Sd/- _**(P. SOMARAJAN, JUDGE)**_ ## _**Nan/**_ ## _**//true copy//**_ ## P.S. To Judge