M.F.A. (Forest) No. 116 of 2014. Case: Raveendranadhan and Ors. Vs State of Kerala and Ors.. High Court of Kerala (India)
| Case Number | M.F.A. (Forest) No. 116 of 2014 |
| Counsel | For Appellant: N.N. Sugunapalan, Sr. Adv., C.A. Joy, Laisa B. Jose and S. Sujin, Advs. and For Respondents: Nagaraj Narayanan, Special Government Pleader |
| Judges | Antony Dominic and V. Shircy, JJ. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rules 27, 27(1); Kerala Land Reforms Act, 1963 - Section 82; Kerala Private Forests (Vesting and Assignment) Act, 1971 - Sections 2, 2(a), 2(f), 2(f)(1), 2(f)(1)(i), 2(f)(1)(i)(C), 3, 3(2), 3(3), 5, 6, 7, 8; Madras Preservation of Private Forests Act, 1949 - Sections 2, 2(a), 2(f)(1), 2(f)(1)(i), 2(i) |
| Judgement Date | January 09, 2017 |
| Court | High Court of Kerala (India) |
Judgment:
V. Shircy, J.
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Challenge in this appeal is to the legality of the impugned common order of dismissal dated 31.10.2013 rendered by the learned Forest Tribunal, Kozhikode in O.A. Nos. 51/2009, 52/2009 and 53/2009. The Original Applications were filed under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (hereinafter referred to as the Vesting Act), for a declaration that the application scheduled properties are not private forest vested in the Government under the Vesting Act and the appellants/petitioners are entitled to the benefits under Sections 3(2) and 3(3) of the Vesting Act.
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The material facts in brief for disposal of the appeal are as follows: The appellants have alleged that all the properties scheduled in the applications originally belonged to their common ancestor Chathu Nair as puthravakasam thavazhi and on his demise the properties devolved upon his children viz Subhadra Amma, Sakunthala Amma, Sarojini Amma, Viswanathan Nair and Vasu Nair. The properties are lying contiguously and are in Survey Nos. 334/8, 337/1 & 2 of Erimayoor Village. After the death of Chathu Nair, his children partitioned the properties as per partition deed No. 1284/1972 of SRO, Alathur. As per the partition deed, Item B schedule property was allotted to Subhadra Amma. Her legal heirs are the appellants 1 to 7. O.A. No. 51/2009 was filed by them. D schedule property in the partition deed was allotted to the share of Sakunthala Amma and C schedule property was allotted in favour of Sarojini Amma (9th appellant). O.A. No. 52/2009 was filed by Sakunthala Amma (8th appellant). O.A. No. 53/2009 was filed by Sarojini Amma. According to the appellants, the properties belong to them as per the partition deed and they also purchased jenmam rights over the same. While the properties were in their possession and enjoyment, the officials of the Forest Department on 29.7.2009 prevented them from enjoying the properties alleging that it is the forest land. But no forest species or trees are in the properties, even though the properties are lying in the bed of a small hillock. The entire property is known by name Cheruvaparambu. The properties are being cultivated by the members of the family of the appellants and it is not a forest land as defined under the Vesting Act and it is not coming under the Madras Preservation of Private Forests Act, 1949 (for short 'MPPF Act'). The lands are abutting to the paddy land and used for fugitive cultivation. No notification as envisaged under Rule 2A(2) of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 (for short 'the Vesting Rules') was published regarding the disputed land. Hence, they have filed the applications for a declaration that the properties in question are not forest lands and they are entitled to get the benefit under Sections 3(2) and 3(3) of the Vesting Act.
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The Divisional Forest Officer refuted their claim contending that the properties scheduled in the applications form part of Malavaram known as Erattode Muringamala Malavaram having a total extent of 121.46 hectares of land and is vested with the Government by virtue of the vesting act with effect from 10.5.1971. The properties are part of a contiguous tract of Erattode Muringamala which leads to Choolannur Peafowl Sanctuary and is near to drought affected Palakkad gap which forms catchments area for Gayathripuzha and Bharathapuzha. That part of forest is highly sensitive and is of high ecological value and the inhabitants residing around this region are fully dependent on the springs, nullas and streams originate from these hill tracts. The ground vegetation along the slopes of rocky outcrops in these forests are the typical habitat of many endemic, rare and endangered species of flora and fauna. Hence, the protection of this land is of utmost importance for the preservation of the edaphic climatic and other environmental factors of this region. So, the properties scheduled in the applications are private forest attracting the provisions of the Vesting Act and the appellants are not eligible for exemption under the provisions of the Vesting Act. The respondents have also raised a contention that the claim is barred by limitation.
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The court below conducted trial of all these cases together treating O.A. No. 51/2009 as the leading case. PWs. 1 to 5 were examined and Exts.A1 to A4 were marked on the side of the appellants. Exts.C1 to C1(3) series were also marked. RW1 was examined and Exts.B1 to B6 were marked on the side of the respondents. After evaluating the evidence, the learned Forest Tribunal dismissed all the applications on the finding that the properties involved are forest lands and the appellants are not entitled to get the properties exempted from vesting under Sections 3(2) and 3 (3) of the Vesting Act. The said findings of the learned Forest Tribunal is assailed in this appeal.
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Heard the learned counsel for the appellants as well the learned Special Government Pleader (Forest).
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The definite case of the appellants is that the properties scheduled in the applications are not private forests as defined under the Vesting Act. At the outset, it is to be noted that the respondents have raised a contention that the applications filed by the appellants are barred by limitation as per Section 3 of the Kerala Private Forest (Tribunal) Rules, but the said contention has been rightly held otherwise as the respondents did not produce documents to conclude that the notification as provided under Rules 3(2) and 3(3) of the Forest Tribunal Rules have been published in the Village Office, Panchayat Office, Office of the Forest Tribunal, Range Office, Office of the Divisional Forest Officer and in the Office of the Custodian of the forest as well in two or more newspapers having circulation in the locality simultaneously as contemplated in the above Rules. As publication of the notification was not made in respect of the properties involved, the learned Land Tribunal has rightly held that the claim raised by the appellants are not barred by limitation.
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The appellants claimed their title over the properties scheduled in the applications on the basis of partition...
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