Valli Ammed Haji vs Nil
2021 Latest Caselaw 6538 Ker

                         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                          PRESENT

                         THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                             &

                       THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

              WEDNESDAY, THE 24TH DAY OF FEBRUARY 2021 / 5TH PHALGUNA, 1942

                                     MFA.No.161 OF 2008

 AGAINST THE ORDER/JUDGMENT IN OA 25/2005 DATED 07-08-2008 OF FOREST TRIBUNAL, KOZHIKODE

APPELLANTs/APPLICANT No.1 IN O.A.25/05 AND APPLICANTS 2 TO 9 IN O.A.26/05.:

         1        VALLI AMMED HAJI
                  S/O LATE ALIKUTTI HAJI,PALLIVATHUKAL HOUSE, VALAD P.O., THALAPUZHA,,
                  WAYANAD DISTRICT (APPLICANT IN OA 25/2005).
         2        ALEEMA WO.LATE VALLI MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         3        AMINA D/O.LATE VALLI MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         4        ALI, S/O.LATE MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         5        AMMED ,S/O.LATE MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         6        ABOOBACKER,S/O.LATE VALLI MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         7        AYISHA D/O.LATE VALLI MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK, WAYANAD DISTRICT.
         8        AZIA, D/O.LATE MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.
         9        UMMER ,S/O.LATE VALLI MOIDU HAJI
                  VALAD AMSOM AND DESOM, MANANTHAVADY TALUK,, WAYANAD DISTRICT.


                  BY ADV. SRI.M.C.JOHN

NAME OF PERSONS WHO SHALL BE IMPLEADED OR BROUGHT ON RECORD AS RESPONDENTS/RESPONDENTS IN
O.A.25&26/05:

         1        STATE OF KERALA
                  REPRESENTED BY PRINCIPAL SECRETARY, F AND
                  WLD, THIRUVANANTHAPURAM.

         2        THE CUSTODIAN OF VESTED FORESTS
                  ARANYA BHAVAN, FOREST COMPLEX,OLAVAKODE, PALKKAD.

                  R1 BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST
                  R1 BY GOVERNMENT PLEADER FORESTS
                  R1 BY ADV. SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST

       THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24.02.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 M.F.A. (Forest) No.161 of 2008
                                    2




          A.HARIPRASAD & P.V.KUNHIKRISHNAN, JJ.
              --------------------------------------
               M.F.A. (Forest) No.161 of 2008
              --------------------------------------
          Dated this the 24th day of February, 2021

                                 JUDGMENT

P.V.KUNHIKRISHNAN, J.

The captioned appeal is filed against the common order

dated 7.8.2008 in O.A. Nos.25/2005 and 26/2005 of the

Forest Tribunal, Kozhikode. Appellants are the applicants in

the above O.As. The first appellant is the sole applicant in

O.A 25/05 and appellants 2 to 9 are the applicants 2 to 9 in

O.A 26/05. The appellants 2 to 9 are the legal heirs of the

deceased first applicant in O.A.26/05. (Hereinafter, the

parties are mentioned in accordance to their rank before the

Forest Tribunal).

2. The deceased/first applicant in O.A.26/05 is the M.F.A. (Forest) No.161 of 2008

elder brother of the sole applicant in O.A. No.25/05. The

schedule properties in the O.As are comprised in Sy.

No.374/1 of Valad Village (formerly Thavinhal Village) in

Mananthavadi (formerly in North Wayanad in Wayanad

district). The contention in the above O.As are similar and

they are summarised in brief in the following paragraph.

3. The scheduled property in O.A.25/05 is 17.75

acres of land in Sy.No.374/1 of Valad Village formerly

Thavinhal Village and the scheduled property in O.A.No.

26/05 is also 17.75 acres of land in the same survey number

in the same village. The applicants are relying on Ext.A1

and Ext.A9 documents to prove their title. According to the

applicants, the disputed property was notified as vested

forest along with 19 other properties on 4.5.2001. The

contention of the applicants is that there is no provision

empowering the respondents to notify any new area as

transferred to and vested in the Government other than the

private forest vested with the Government by operation of M.F.A. (Forest) No.161 of 2008

Section 3 (1) of the Act. Hence, the applicants contended

that the notification dated 7.5.2001 notifying the property

belonged to the applicants is illegal, ultra vires, and is

violating Article 300A of the Constitution of India. According

to the applicants, the scheduled properties have been under

the possession and cultivation of the respective applicants

long before the appointed day as per the Kerala Private

Forest (Vesting & Assignment) Act 1971 (for short the Act).

The applicants contend that the notification does not relate

to the properties belonging to the applicants covered by the

registered marupattom deed dated 29.10.1968 (Ext.A1) and

the registered sale deed dated 19.10.1966 (Ext.A9). The

total extent of properties comprised in Sy.No.374/1 in Valad

village is 677.47 acres of land belonged to Valli Alikutti Haji

and Valli Kunji Pocker Haji. The applicants in the above O.As

acquired verumpattom right over 16 acres each from the

above property and they executed the marupattom deed

dated 29.10.1968 registered with SRO, Wayanad. M.F.A. (Forest) No.161 of 2008

According to the applicants, they purchased 1.75 acres of

property each as per the sale deed dated 19.10.1966.

According to the applicants, the said properties have been

under possession of the applicants and they have been

cultivating the same with coffee, rubber etc and also

cultivated fruit bearing trees like mango trees, jack fruit

trees, and also trees like cheru, ventek, white pine etc.

According to the applicants, the schedule properties are not

private forest vested with the Government as per the Act.

The applicants also submitted that they are entitled to the

benefit of Section 3(2) and Section 3(3) of the Act. The

applicants prayed for a declaration that schedule properties

are not private forest and not vested with the Government

as per the provisions of the Act and applicants are also

entitled to the benefit of the provisions under Sections 3(2)

and 3(3) of the Act. Hence, the applications.

4. The respondents in the above applications are the

same. The Divisional Forest Officer, Wayanad North filed M.F.A. (Forest) No.161 of 2008

separate counter affidavits with similar contentions in the

above applications. In the counter affidavit, he denied the

contentions and averments in the original applications. The

respondents also contended that the applications are barred

by limitation and the applicants have no locus standi to file

applications. It is contended by the respondents that an

extent of 15 acres of private forest including the properties

mentioned in the schedule to the applications and comprised

in Sy. No.374/1 of Vallad Village in Mananthavady Taluk was

vested with the Government as on 10.5.1971 as per the

notification issued by the Custodian of Vested Forest as per

notification No. B3-3881/01 dated 4.5.01 under VFC item

No.91. The disputed properties in these applications are

private forest, which has been demarcated and notified and

as such vested in the Government under the Act. The

contention of the respondents is that the applicants have no

manner of right, title, possession, or interest over the

disputed properties. The schedule properties were governed M.F.A. (Forest) No.161 of 2008

by MPPF Act 1949 and a notification was published in

accordance to law. According to the respondents, the

descriptions of the properties in the applications are not

correct. There is a specific contention that the applicants

have not stated the boundaries of the disputed properties in

the applications and the description of the properties in the

schedule of the documents produced with the applications

do not tally with the physical boundary of the disputed

property. The disputed properties in the above applications

are contiguous and compact blocks. The respondents

submitted that the documents produced by the applicants

before the Tribunal are not connected with the disputed

property. The vested forest demarcated in Sy. No.374 does

not take in any cultivated portion and no portion of the

disputed land stood cultivated as on 10.5.1971. Therefore,

the respondents submitted that the applications were filed

with the malafide intention of grabbing and occupying vested

forest by misleading the Tribunal. Hence, the respondents M.F.A. (Forest) No.161 of 2008

prayed for dismissing the applications.

5. The applicant in O.A. No.25/05 filed I.A. No.217/06 for

a joint trial of these applications and the Tribunal allowed the

joint trial of the applications. Evidence was recorded in

O.A.25/05. The evidence consists of the deposition of PW1 and

documents marked as Ext.A1 to A15 from the side of the

applicants. On the side of the respondents, RW1 was examined

and Exts.B1 and B2 series were marked. Exts.C1 to C7 are the

commission reports and plans.

6. The following points were considered by the Tribunal.

"(1)Whether the applications are barred by limitation?

(2)Whether the schedule properties in the above applications are not private forest and are not vested with the Government under the provisions of the Act as alleged in the applications? (3)Whether the applicants are entitled for the benefits of Sec.3(2) and3(3) of the Act ? (4) Reliefs and costs ? "

7. As far as point No.1 is concerned, the Tribunal found

that the applications are not barred by limitation. But as far as

points No.2 and 3 are concerned, the Tribunal found that the

applicants failed to prove their case before the Tribunal, and

hence, the applications were dismissed. Aggrieved by the M.F.A. (Forest) No.161 of 2008

common order dated 7.8.2008 in O.A. Nos.25/05 and 26/05 of

the Forest Tribunal, Kozhikode, this Miscellaneous First Appeal is

filed.

8. Heard the learned counsel for the appellants and the

Special Government Pleader for Forest.

9. The counsel for the appellants/applicants submitted

that the order passed by the Tribunal is without considering the

contentions of the applicants. The counsel submitted that the

original applications are filed strictly in accordance with the Act

and Kerala Private Forest (Tribunal) Rules 1974 ( for short 'the

Tribunal Rules'). The counsel submitted that as per Rule 3 an

application under Section 8 is to be filed in Form A. In form A

there is no schedule prescribed. Therefore, the counsel

submitted that a schedule as per Rule 18 of the Civil Rules of

Practice is not necessary for filing an application under Section 8

of the Act. All the details necessary for deciding the case are

mentioned in the applications filed by the applicants under

Section 8 of the Act. Therefore, the counsel submitted, the

finding of the Tribunal that since there is no schedule as per Rule

18 of the Civil Rules of Practice, Kerala, is fatal is not correct. M.F.A. (Forest) No.161 of 2008

According to the counsel, Section 11 of the Tribunal Rules says

that in all proceedings before the Tribunal, the procedure

prescribed as regards the applications in the Code of Civil

Procedure 1908 or the rules made thereunder shall as far as they

can be made applicable be followed except to the extent

otherwise provided in the Act or in the Rules. The submission of

the counsel is that since a separate form is prescribed as per the

Tribunal Rules for filing an application under Section 8 of the Act,

Rule 18 of the Civil Rules of Practice, Kerala has no applicable.

Moreover, the counsel also submitted that in the light of Exts.C1

to C7, the properties are identified and the tribunal erred in

saying that the properties were not identified.

10. The Special Government Pleader for Forest submitted

that, in an application under Section 8 of the Act, the person

who prefers a claim before the Tribunal that the property is not

private forests or that it has not vested under the Act has the

burden to establish his case. The Special Government Pleader

submitted that based on Exts.A1 and A9 documents, the property

of the applicants cannot be identified. The Special Government

Pleader submitted that Exts.C1 to C7 will not help the applicants M.F.A. (Forest) No.161 of 2008

to identify the properties. Therefore, the Special Government

Pleader submitted that the applicants failed to prove the burden,

and therefore the Tribunal perfectly justified in dismissing the

applications.

11. We perused the impugned order and the available oral

and documentary evidence. As far as the finding of the Tribunal

to the effect that a schedule as prescribed in Rule 18 of the Civil

Rules of Practice is mandatory, it cannot be accepted. But it will

be convenient to the tribunals and the superior courts to decide a

claim under Section 8 of the Act, if a schedule in accordance with

Rule 18 of the Civil Rules of Practice, Kerala is produced along

with an application filed under Section 8 of the Act. While

considering an application under Section 8 of the Act, the

identification of the property is very important. The Apex Court in

Hamza Haji Vs. State of Kerala and another (2006 7 SCC

416) observed like this.

"We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eye-

opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and M.F.A. (Forest) No.161 of 2008

the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.

(emphasis supplied)

12. For deciding the identity of the property, a schedule

showing the survey number, extent, boundaries, and other

features of the property to identify the same is necessary. The

main dispute, in this case, is about identity of the property. In

such a situation, the schedule showing the boundaries and other

details of the property is necessary for deciding an application

under Section 8 of the Act. But it is true that as per Form A of

the Tribunal Rules, a schedule is not mandatory. Moreover, there

is no column in Form A of the Tribunal Rules to furnish the

boundaries of the property. According to us, some amendment is

necessary to Form A in the Kerala Private Forests (Tribunal) Rules

1972 by adding a column to furnish the details similar to Rule 18

of the Civil Rules of Practice, Kerala. The rule making authority

has to consider this argument. The Registry will forward a copy of

this judgment to the Chief Secretary, State of Kerala for taking

appropriate steps in this regard.

M.F.A. (Forest) No.161 of 2008

13. Now coming back to this case, the Tribunal dismissed

the original applications mainly for the reason that the petition

schedule properties are not properly identified. The Tribunal tries

to identify the property with the help of Exts.A1 and A9 along

with Exts.C1 to C7. It will be better to extract the findings of the

Tribunal. The relevant portions are extracted herein.

"10. It is the case of the applicants that they obtained 16 acres each of property in Sy. No.374 of Valad Desom as per document No.2670/68, which is produced as Ext.A1. It is contended that the applicants have been cultivating the said properties with coffee, cardamom, cashew nut tree etc., from the date of purchase on 29.10.1968.

Their further contention is that the applicants acquired right and possession over 1.75 acres each as per sale deed No.3066/66. The said document is marked as Ext.A9. So, identification of the property with respect to Exts.A1 and A9 are important. It is clear from the discussion made above that the boundaries of the properties were not stated in the application. It is also not stated in the application that as to whether the entire properties are lying as a single plot or as different plots. While deposing as PW1, the applicant in O.A.25/05 stated that the properties mentioned in Ext.A1 is lying in 5 plots and the property in Ext.A9 is lying in 3 plots. In order to identify the property, the applicants have taken out a commission. The commissioner inspected the properties on many occasions and filed Exts.C1, C3, C4 and C6 reports and Exts.C2 series, C5 series and C7 plan before the court. Ext.C1 report dated 5.10.06 would show that the commissioner was unable to identify the property with the help of Exts.A1 and A9 documents, since the Taluk M.F.A. (Forest) No.161 of 2008

Surveyor, who was deputed to assist the Commissioner told him that survey of the properties mentioned in Exts.A1 and A9 documents would take about 30 days and the Surveyor has not measured the property. Ext.C1 report would also show that the Commissioner has identified the property as per descriptions in the documents and as narrated by the parties. Ext.C2 series are only rough sketches drawn by the Taluk Surveyor. Thus, it is clear from Exts.C1 report and C2 series that the Commissioner has not identified properties with respect to Exts.A1 and A9 documents and revenue records. Ext.C3 is another report filed by the same Commissioner. In Ext.C3 report also, the Commissioner has not identified the properties with respect to the documents.

Ext.C3 report would also show that the Commissioner has reported the existence of more coffee plants than what he was reported in Ext.C1 report, in the property. Ext.C3 report would also show that the Commissioner has not identified the property with the help of the documents. Ext.C4 is the report dated 26.3.07 filed by the Commissioner. Ext.C4 would show that the Commissioner has inspected the property together with the Taluk Surveyor as per the direction of the Tribunal to take the side measurements of the properties mentioned in Ext.A1 document. Ext.C5 series are the plans prepared by the Taluk Surveyor noting the side measurements of the plots mentioned in Ext.A1 document. On going through Ext.C4 report it is clear that the Commissioner has not located and identified the properties based on Ext.A1 document and revenue records. In para 3 of the report, the Commissioner has stated that he has enclosed site plans. (4 numbers) showing the side measurements and extent of the properties covered by Ext.A1 document prepared by the Taluk Surveyor, Mananthavady. He also stated in Ext.C4 that there was an error in describing the plots No.1 and 3 in Ext.C1 report, wherein he has stated that item M.F.A. (Forest) No.161 of 2008

Nos.1 and 3 properties in the said document is

properties in Ext.A1 document are lying together. Ext.C4 report would also show that the properties were not located and identified with respect to the title deed and other revenue records. Ext.C6 is another report filed by the same Commissioner consequent to the direction of the Tribunal to take the side measurements of the property mentioned in Ext.A9 document. Ext.C6 report would show that the Commissioner has taken side measurements of the three plots mentioned in Ext.A9 document with the help of Taluk Surveyor. Ext.C7 is the plan prepared by the Taluk Surveyor. It is also clear from Ext.C6 that the Commissioner has not located and identified the property mentioned in Ext.A9 with the help of title deed and revenue records.

11. Identification of the property is important, since the respondent has a case that the extent of 15 hectares of property in Sy. No.374 of Valad Village is vested forest as per Sec.3(1) of the Act. According to the respondents, the said property vested with the Government has been identified with the help of V.F.C.plan and notified as vested forest. Ext.B1 was produced as the copy of the notification and Ext.B2 series are the periphery sketches of the vested forest. According to the respondents, the said property is the V.F.C item No.91 attached to Ext.B1 notification. Ext.B3 also is the copy of the notification No.B3-3881/01 dated 4.5.01 with the explanatory note. RW1, the Forest Range Officer, Periya Forest Range, gave evidence before the Tribunal that the properties mentioned in these applications are included in the said V.F.C item No.91. The list of properties vested with the notification attached to Ext.B1 would show that as per V.F.C. Item No.91, 15 hectares of property in Sy.No.374 part of Valad Village was vested with the Government u/s 3(1) of the Act. Thus, it is important to locate and identify the property claimed by the applicants to show that the same is not vested with the Government. It is clear from M.F.A. (Forest) No.161 of 2008

Exts. A1 and A9 that the applicants in these O.As have acquired right and possession over 17.75 acres of property each and they have been making cultivations therein. But it is not clear whether the said property has been included in the vested forest or not, as per V.F.C item No.91. The respondents have not shown the location of the Schedule property in Ext.B2 series. So, in order to hold that the properties covered by Exts.A1 and A9 are a vested forest and are not vested with the Government, the identification of the property is necessary. From the above discussion, it is clear that the applicants have not established the location and identification of the property covered by Exts. A1 and A9 documents. Without identifying the properties properly, it cannot be held that the said properties are or are not vested with the Government.

12. At this juncture, the ruling of the Full Bench of the Hon'ble High Court of Kerala reported in 1995 (2) KLT 152 (Full Bench) (State of Kerala v.Chandralekha) is important. In the said ruling, the Hon'ble High Court held that the person who 'prefers a claim before the Tribunal that the property is not private forest or that has not vested under the Act has the burden to establish his case'. From the above, it is clear that the applicants in these O.As have failed to establish that the properties involved in these O.As are not private forest and have not vested under the Act in the Government. Since, the applicants have failed to prove their case before the Tribunal, I can only hold that the applicants are not entitled for the declaration that the property mentioned in the applications are not private forest and have not vested in the Government. Therefore, point Nos.2 and 3 are found against the applicants."

14. We expressed our opinion to the counsel for the

appellant that, there is no reason to interfere with the above M.F.A. (Forest) No.161 of 2008

finding by the Tribunal. This case was heard in part on

27.01.2021. Thereafter, this matter again came up for

consideration today. Today, the counsel for the appellants filed

an application as I.A. No.1/2021 to accept certain additional

documents. According to the counsel, the properties have been

surveyed by a competent surveyor and the surveyed sketch is

produced along with the above interlocutory application as X-

series. The true copy of the schedule as described in the title

documents relied by the applicants is also produced and marked

as Annexure-A & Annexure-B. The documents were produced

with a petition under Order 41 Rule 27 (b), Civil Procedure Code.

In the facts and circumstances of this case, we are taking a

liberal view so that if the appellants have got a good case, it

should not be rejected on technical grounds. We are allowing

I.A. No.1/2021 and accepting the sketch and other documents

invoking the powers under Order 41 Rule 27(b) Civil Procedure

Code. We don't want to make any observation about the

evidentiary value of the same. The counsel for the appellant

submitted that in the light of the documents produced in I.A.

No.1/2021, if this Court is inclined to remand the matter to the M.F.A. (Forest) No.161 of 2008

lower court, the parties may be allowed to adduce further

evidence and also may be allowed to file a petition to appoint a

new Commissioner to identify the property based on their title

documents. The Special Government Pleader submitted that the

available evidence is not enough to prove the identity of the

petition schedule property. The Special Government Pleader

submitted that if this Court is remanding the matter to the lower

court, there may be a direction to inspect the property by the

Commissioner with the assistance of Taluk surveyor and Forest

Mini surveyor. According to us, in the interest of justice, it is

better to remand the matter to the Tribunal for allowing the

parties to adduce further evidence. We make it clear that a de

nova trial is not necessary. If an application for issuing a fresh

commission is filed within two weeks from the date of the

appearance of the parties, before the tribunal, after remand, the

tribunal will allow the same and issue necessary direction to the

Commissioner to inspect the property with the assistance of Taluk

surveyor and Forest mini-surveyor. The tribunal will direct the

commissioner to inspect the property and submit a report

immediately so that the above original applications can be M.F.A. (Forest) No.161 of 2008

decided expeditiously.

15. Therefore, this Miscellaneous First Appeal is allowed in

the following manner:

1. The common order dated 7.8.2008 in O.A. Nos.25/05 and

26/05 of the Forest Tribunal, Kozhikode is set aside and the matter is

remanded to the Tribunal for fresh disposal.

2. The parties will appear before the Tribunal on 26.3.2021. The

Registry will return the LCR forthwith.

3. Within two weeks from the date of appearance of the parties,

if an application is filed for issuing a fresh commission to identify the

property, the Tribunal will allow the same and direct the Commissioner

to inspect the property with the assistance of Taluk surveyor and

Forest mini-surveyor.

4. If a commission application is filed and the same is allowed as

mentioned above, the Tribunal will direct the commissioner to submit

the report positively within two months from the date of that order.

5. After getting the commission report, the Tribunal will allow the

parties to adduce further evidence if any, and thereafter will finally

dispose of the original applications as expeditiously as possible at any

rate within three months from the date of receipt of a copy of the

Commission report.

M.F.A. (Forest) No.161 of 2008

6. The Registry will forward a copy of this judgment to the

Chief Secretary, State of Kerala to take appropriate action based on

the observations in paragraph 12 of this judgment.

Sd/-

A. HARIPRASAD,

JUDGE

Sd/-

P.V.KUNHIKRISHNAN,

JUDGE

al/-+.

M.F.A. (Forest) No.161 of 2008

APPENDIX

PETITIONERS EXHIBITS :NIL

ANNEXURE A : TRUE COPY OF THE APPLICATION DATED 06.01.2018

UNDER RTI ACT BEFORE THE 2ND RESPONDENT.

ANNEXURE A1 : TRUE COPY OF THE REPLY DATED 22.01.2018.

ANNEXURE A2: TRUE COPY OF THE REPLY DATED 05.02.2018.

ANNEXURE A3: TRUE COPY OF THE REPLY DATED 09.02.2018.

RESPONDENTS EXHIBITIS : NIL

TRUE COPY

P.S TO JUDGE

AL/-