Pottanmeechi Bhaskaran vs State Of Kerala
2021 Latest Caselaw 2173 Ker

MFA.No.139 OF 2006                    1


               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                THE HONOURABLE MR. JUSTICE A.HARIPRASAD

                                      &

             THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

 WEDNESDAY, THE 20TH DAY OF JANUARY 2021 / 30TH POUSHA, 1942

                              MFA.No.139 OF 2006

 AGAINST THE ORDER/JUDGMENT IN OA 6/2004 DATED 28-04-2006 OF
                 FOREST TRIBUNAL, KOZHIKODE


APPELLANT/S:

                     POTTANMEECHI BHASKARAN
                     AGED 50 YEARS, S/O.LATE RAMAN,, POTTANMEECHI
                     HOUSE, ELUMBLASSERY P.O.,, KARAKURISSI VIA,
                     OTTAPPALAM TALUK,, PALAKKAD DISTRICT.

                     BY ADV. SRI.K.P.BALAGOPAL

RESPONDENT/S:

         1           STATE OF KERALA
                     THE CHIEF SECRETARY, GOVERNMENT OF KERALA,,
                     THIRUVANANTHAPURAM.

         2           CUSTODIAN OF VESTED FORESTS
                     ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,,
                     PALAKKAD.

                     R1-2 BY SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR
                     FOREST

     THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON
20.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 MFA.No.139 OF 2006                         2


              A.HARIPRASAD & P.V.KUNHIKRISHNAN, J
              ---------------------------------------------------------
                     MFA (FOREST) No. 139 of 2006
                        --------------------------------------
                Dated this the 20th day of January, 2021


                                  JUDGMENT

A.Hariprasad J,

Appellant, aggrieved by the order passed in OA No.

6/2004 by the Forest Tribunal, Kozhikode has approached

this Court with an appeal under Sec. 8A of the Kerala Private

Forests (Vesting and Assignment) Act, 1971 (in short 'the

Act').

2. Respondents raised a contention that 34 cents of

land included in survey No. 57A/1A1A of Elambulassery

Amsom of Karimpuzha II Village of Ottapalam Taluk in

Palakkad district is a private forest vested under Sec.3 of the

Act. Therefore, the appellant approached the Forest Tribunal

under Sec. 8 of the Act alleging that the above land is not a

private forest and therefore, it is not vested under the Act.

According to him, the property originally belonged to the

Elambulassery Moopil Sthanam. The land was demised in

kanam right in favour of a tharavad by name 'Tharuvara'. It is

also contended that in a partition among the members of the said

tharavad, the petition schedule property along with other items

was allotted to the share of one Devaki Amma.

3. The case of the appellant is that his father Raman took

a lease of the property from Devaki Amma in 1957 under a rent

deed. Rent fixed was Re.1/- per year. In 1964, kanam right

belonging to Devaki Amma was purchased by one Ramachandran

Nair. Later, he purchased jenm right from the Moopil Sthanam.

Appellant purchased the jenm right from Ramachandran Nair,

along with the kanam right over the disputed property.

Appellant's father had cultivated seasonal crops in 40 cents of

land including the disputed land. Pepper, ginger, turmeric,

plantain etc. were cultivated in the property. Appellant planted

Irul, Vaka and other trees for providing support to pepper vines.

Jack trees and mango trees were also standing in the property.

On one portion, rubber plantation was also carried out. Disputed

property was never a forest. The Madras Preservation of Private

Forests Act, 1949 (for short, the MPPF Act) did not apply to the

property. State/respondents opposed the application on the

ground that an extent of 160.85 hectares of private forest

comprised in various survey nos. of Karimpuzha II village,

including the disputed property, had been vested in the

Government w.e.f. 10.5.1971 under Sec. 3 of the Act. Before such

vesting, the area was governed by the erstwhile MPPF Act.

4. The respondents clearly understood that the disputed

property lies in survey No.57A/1A1A forming part of the vested

forest lying contiguous to a huge malavaram locally known as

Pombramala. After vesting, the whole malavaram was

demarcated, surveyed and notified. Ext. B1 is the copy of the

notification and Ext.B2 is the sketch showing the vested lands.

The original application filed after 25 years after the publication

of Ext.B1 is hopelessly barred by limitation. Appellant is not the

owner of the property and he is not in possession of the same.

The document relied on by him was executed 18 years after the

vesting of the land with the Government.

5. Before the Tribunal, PW1 and RW1 testified. Exts.A1 to

A5 and B1 and B2 were marked. Exts.C1 and C2 are the

Commissioner's report and plan.

6. Tribunal, after considering the evidence found that the

appellant has no title to the disputed property. Such a person,

according to the Tribunal, is not entitled to call upon the Forest

Tribunal to decide whether or not the disputed property was a

private forest as on 10.5.1971. Thus, the application was

dismissed.

7. Heard Sri.K.P.Balagopal, learned counsel for the

appellant and Sri.Nagaraj Narayanan, learned special

Government Pleader.

8. Learned counsel for the appellant pointed out that the

Forest department has no case that notification Ext.B1 covers

land included in survey No.57A/1A1A of Karimpuzha II village.

The Tribunal in para No.6 entered the following finding.

"Point No.1. The period of limitation for filing petition u/s 8 of the Vesting Act is 60 days from 6.8.81 or from the date of publication of the notification, whichever is later. (vide rule 3 of the Kerala Private Forests (Tribunal) Rules). Respondents have produced Ext.B1 which is a certified copy of the notification issued by the second respondent. The Forest Range Officer who has given evidence as RW1 has deposed that the disputed property is comprised in V.F.C. item No.80 of Ext.B1 notification. The disputed property is admittedly comprised in Sy.No.57A/1A1A of Karimpuzha -II village. The said survey number is not shown in Ext.B1 notification under V.F.C. item No.80. RW1 had no go but to concede in cross-examination that the survey number of the disputed property, namely, 57A/1A1A, was not shown in Ext.B1 under V.F.C. item No.80. Ext.B1 notification under V.F.C. item No.80 does not take in the disputed property. Therefore the original application is not barred by limitation. No evidence has been produced to prove the publication of the notification satisfying the requirements in rule 2A(2) and (3) of the Kerala Private Forests (Vesting and Assignment) Rules. For that reason as well, I hold that the original application is not barred by limitation."

9. Although, it found that the claim of the appellant is not

barred by limitation, there is a clear finding that survey

No.57A/1A1A of Karimpuzha II village could not be seen from

Ext.B1 notification under V.F.C. item No.80. It is also pointed out

that the Forest Range Officer when testified for the respondents

as RW1 candidly admitted that survey number of the disputed

property viz., 57A/1A1A was not shown in Ext.B1 under V.F.C.

item No.80. In other words, Ext.B1 notification does not take in

the disputed property. However, the Tribunal went on to examine

the right, title and possession claimed by the appellant to enter a

finding that he failed to establish any valid title to file an

application under Sec. 8 of the Act.

10. After hearing the learned counsel on both sides and on

examination of the pleadings, evidence and the Commissioner's

report, we find that the Tribunal's finding that survey

No.57A/1A1A of Karimpuzha II Village is not included in Ext.B1

notification is correct. There is no satisfactory explanation on the

side of the State for not including the survey number of the

disputed item in V.F.C. item No.80. We find that the Tribunal has

correctly analyzed the evidence to enter a finding that the case

set up by the appellant is incongruous and he failed to establish

any title to the property.

11. Learned counsel for the appellant contended that he

has no grievance that the department has dispossessed him.

Stated differently, he asserts that the appellant is still in

possession of the property.

12. Learned special Government Pleader submitted that it

could be a mistake in not notifying the survey number since,

57/1A1A does figure in Ext.B1 notification. On a perusal of the

Commissioner's plan and report, it can be seen that there are

private properties, at least on three sides of the disputed

property. From the plan submitted by the Commissioner, it can be

seen that on the northern side of the disputed property, there is a

private property, whereas from the report, it is seen that on the

north of the disputed property, it is a vested forest. When this is

pointed out, learned counsel for the appellant submitted that on

the north also, the properties included in another original

application filed before the same Tribunal is situate. However,

omission to notify survey No.57A/1A1A of Karimpuzha II Village

is fatal to the case of the respondents. Despite the fact that the

appellant failed to establish his title and possession, we are of the

view that the Tribunal should not have dismissed the application.

But it should have found that going by Ext.B1 notification, the

disputed land is not a private forest vested under Sec. 3 of the

Act.

In the result, the appeal is allowed. The OA schedule

property is found to be not covered by Ext.B1 notification.

Therefore, the original application is allowed to the extent

declaring that the disputed land is not a private forest vested in

the Government.

sd/-

A.HARIPRASAD JUDGE

sd/-

P.V.KUNHIKRISHNAN JUDGE SKS