Kerala High Court
Moidunni vs The State Of Kerala on 1 August, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE ACTING CHIEF JUSTICE MR.A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS.JUSTICE SHOBA ANNAMMA EAPEN
&
THE HONOURABLE MR.JUSTICE S.MANU
Thursday, the 1st day of August 2024 / 10th Sravana, 1946
MFA (FOREST) NO. 1 OF 2015
I.A. NO.230/1985 IN OA 1137/1974 OF FOREST TRIBUNAL, PALAKKAD.
APPELLANTS / 3RD PARTIES TO THE PROCEEDINGS:
1. MOIDUNNI, AGED 55, S/O.USSANKUTY, KALAKUNNATH HOUSE, IRUMBALASSERY
DESOM, OTTAPALAM TALUK.
2. HAMSA, S/O.USSANKUTY, KALAKUNNATH HOUSE, IRUMBALASSERY DESOM,
OTTAPALAM TALUK.
BY ADV. G.SREEKUMAR(CHELUR)
RESPONDENTS / APPLICANTS AND THE RESPONDENTS BEFORE THE TRIBUNAL:
1. THE STATE OF KERALA, REP.BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM-695001.
2. CUSOTIDAN EX OFFICIO SPECIAL SECRETARY AGRICULTURE, FOREST SPECIAL
DEPARTMENT-695001.
3. MOIDEEN(DIED), S/O.MAMMUTTY, AYYAPPANTHARA, CHALAVARA AMSOM-DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-678001.
4. NABEESA(DIED), W/O.MOIDEEN, AYYAPPANTHARA, CHALAVARA AMSOM-DESOM,
OTTAPALAM TALUK, PALAKKAD DISTRICT-678001.
5. ADDL.R5. MUHAMMED @ VAPPUTTY, S/O.MOIDEEN, AYYAPPANTHARA HOUSE,
CHALAVARA AMSOM- DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-679505.
6. ADDL.R6. SAIDALAVI, S/O.MOIDEEN, AYYAPPANTHARA HOUSE, VANIYAMKULAM
P.O., PALAKKAD DISTRICT-679522.
7. ADDL.R7. ABDUL SALEEM, S/O.MOIDEEN, AYYAPPANTHARA HOUSE,
VANIYAMKULAM P.O., PALAKKAD DISTRICT-679522. LEGAL REPRESENTATIVES
OF THE DECEASED 4TH RESPONDENTS IMPLEADED AS PER ORDER DATED
02.02.2023 IN IA 4036/2015 IN MFA 1/2016.
BY ADV.NAGARAJ NARAYANAN, SPECIAL GOVT.PLEADER FOR R1 & R2,
ADV.R.SREEHARI FOR R5 TO R7
This MFA (Forest) having come up for orders on 01.08.2024 along with
MFA(Forest) 168/2011, the court on the same day passed the following:
P.T.O.
A.MUHAMED MUSTAQUE, Acting C.J.,
SHOBA ANNAMMA EAPEN,
&
S.MANU, JJ.
----------------------------------------------------------
M.F.A. (Forest Act) Nos. 168/2011 and 1/2015
----------------------------------------------------------
Dated this the 01st day of August, 2024
Reference Order
A.Muhamed Mustaque, Acg.C.J.
This matter has been placed before us on a Reference
Order by the Division Bench. The scope of review under Section
8B of the Kerala Private Forest (Vesting and Assignment) Act,
1971 (for short "the Act") is the subject matter of the Reference.
A Full Bench of this Court in Pankajakshy Amma v. Custodian
of Vested Forest [1995 (1) KLT 358 (F.B.)] had interpreted
the power of review and taken the view that the review power is
not circumscribed by the ground referred to in Section 8B(1) of
the Act and it has a wider power as seen from Section 8B(3) of
the Act.
2. Two Division Benches of this Court had taken different
views by interpreting the above Full Bench judgment. In
Ibrahim v. Custodian of Vested Forests [2000 (3) KLT
812], one of the Division Benches, after referring to the Full
M.F.A. (Forest Act) Nos. 168/2011 and 1/2015
..2..
Bench decision, was of the view that the power of review is
circumscribed by the grounds referred to in Section 8B(1) of
the Act. Another Division Bench in Thankappan v. State of
Kerala [2002 (3) KLT 275] was of the view that the power
of review is not circumscribed by the grounds referred to
under Section 8B(1) of the Act. Both Division Benches relied
on the Full Bench judgment.
3. Apparent conflict of the interpretation of the Full
Bench as above was noted by the Division Bench in Reference.
The Division Bench even in the reference doubted the
proposition of law laid in Pankajakshy Amma v. Custodian
of Vested Forest [1995 (1) KLT 358 (F.B.)]. Accordingly,
it was placed before us.
4. We note the statutory provisions of 8B of the Act.
This was brought subsequently in the original enactment.
Section 8B was incorporated in the year 1986 with
retrospective effect from 1983. On a combined reading of the
statutory provisions 8B(1) and 8B(3), it makes clear that the
power of review referred to under Section 8B(3) of the Act is
in relation to 8B(1) of the Act and it cannot be taken as an
M.F.A. (Forest Act) Nos. 168/2011 and 1/2015
..3..
independent provision conferring power on the tribunal to
decide the review on any other ground other than the grounds
mentioned under Section 8B(1) of the Act. However, we see
that contrary view has been taken by the Full Bench. We also
prima facie satisfied with the doubt raised by the Division
Bench in Reference in the proposition of law laid down in
Pankajakshy Amma v. Custodian of Vested Forest [1995 (1)
KLT 358 (F.B.)]. In such circumstances, it is appropriate that
this matter be placed before a Larger Bench for
reconsideration of law laid down in Pankajakshy Amma v.
Custodian of Vested Forest [1995 (1) KLT 358 (F.B.)].
Sd/-
A.MUHAMED MUSTAQUE,
ACTING CHIEF JUSTICE
Sd/-
SHOBA ANNAMMA EAPEN,
JUDGE
Sd/-
S.MANU,
JUDGE
PR
01-08-2024 /True Copy/ Assistant Registrar
