Petitioner challenging vesting of her one-acre property under Kerala Private Forest Act. Court held vesting applies by operation of law for exempted extents totaling the whole forest. Exception for cultivation did not apply. Vesting declaration stands. No Objection Certificate rejection upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942
WP(C).No.8020 OF 2019(B)
PETITIONER/S:
BRIJITH.P.M AGED 53 YEARS D/O MICHAEL, PULLIKKATTIL (HOUSE) POMBRA, P.O, KARAKKURUSSY, PALKKAD DISTRICT, KERALA 678 595.
BY ADVS. SRI.SANTHARAM.P SMT.REKHA ARAVIND SMT.AMRUTHA RAJ SRI.PAUL P. ABRAHAM
RESPONDENT/S:
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DISTRICT-678 595.
R1 BY GOVERNMENT PLEADER
OTHER PRESENT:
SPL.GP.(FORESTS) SANDESH RAJA K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 23-06-2020, THE COURT ON 11-11-2020 DELIVERED THE
FOLLOWING:
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JUDGMENT
Dated this the 11th day of November , 2020
The petitioner had purchased 1 Acre of landed property in Sy.No.157/13 of Pombra Desom, Elambulassery Village (Karimpuzha-2), Ottappalam Taluk, Palakkad District, as per Ext.P1 sale deed dated 21.07.1992. The vendor had purchased the property from one Krishna Varyar as per Ext.P2 document dated 31.05.1980. According to the petitioner, the property was part of a larger extent of 4 Acres purchased by Krishna Varyar in the year 1935. While Krishna Varyar was in possession and enjoyment of his property, the Forest Officials had put up boundary stones (jendas) in the year 1975 on the premise that the
property had vested with the Government, as provided under Section 3 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for
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short 'the Act'). The claim of vesting was only with respect to 3 Acres and the balance 1 Acre was excluded, since that portion was principally cultivated with cashew trees. Thereupon, Krishna Varyar approached the Forest Tribunal claiming exemption under Section 8 of the Act. By Ext.P4 order, the Tribunal exempted the 3 Acres under Section 3(2) of the Act and the property was restored to the possession of Krishna Varyar in the year 1980. The property purchased by the petitioner under Ext.P1 is the balance 1 Acre originally exempted by the Forest Department, while fixing the jendas in the year 1975. The petitioner had been paying land tax on the strength of his title till 2012-13. Tax was not accepted thereafter, citing objection by the Forest Department that, the petitioner's property forms part of vested forest. Thereupon, the
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petitioner approached the Forest Officials for 'No Objection Certificate'. By Ext.P9 communication, the petitioner was informed that the 1 Acre covered by Ext.P1 being vested forest, NOC cannot be granted. Hence, the writ petition.
2. The prayer in this writ petition is for a declaration that the property purchased by her under Ext.P1 document is not vested forest and to direct the second respondent to issue NOC. It is contended on behalf of the petitioner that the forest officials having excluded the 1 Acre from the purview of vesting in the year 1975 itself, rejection of the petitioner's request for NOC, on the mistaken assumption that the property is part of vested forest, is unsustainable. It is contended that Krishna Varyar had sought exemption for only 3 Acres, since the forest officials themselves had excluded the balance 1 Acre. That
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survey of the area proposed to be notified as vested forest, which is a pre-requisite for issuing notification under Section 3(1), has so far not been conducted.
3. The learned Special Government Pleader submitted that the 1 Acre covered by Ext.P1 is part and parcel of the larger extent of vested forest notified by the Custodian of Vested Forests, vide Annexure R2(a) notification dated 18.03.1978. It is submitted that the property is included as serial No.24 in the notification. It
is contended that the very fact of the predecessor-in-interest of the petitioner having confined his request for exemption to 3 Acres indicates that the balance 1 Acre was admittedly vested forest.
4. Section 3 of the Act reads as follows:
“3. Private forests to vest in Government.- (1) Notwithstanding anything
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contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the state of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-sections (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation.- For the purposes of this sub-section, "cultivation" includes cultivation of trees or plants of any species.
(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act.
(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of subsection (2) or sub-section (3), be deemed to
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be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be "other dry lands" specified in Schedule II to the said Act.”
Section 8 of the Act, dealing with settlement of disputes, provides for submission of application before the Tribunal by persons, who claim their land to be not private forest or that the private forest has not vested in the Government. Therefore, going by the scheme of the Act vesting takes place by the operation of law and hence, with effect from 10.05.1971, the appointed day, the right, title and interest of all persons whose property has so vested, will stand extinguished. The remedy available to the aggrieved person is to submit an application for exemption under Section
8. In the instant case, the application for exemption was filed only with respect to 3 Acres and that much extent alone was exempted.
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Consequently, the balance 1 Acre, which the petitioner purchased under Ext.P1, continues to be vested forest. The contention that the forest officials had demarcated and put up jendas only with respect to 3 Acres, cannot survive in the light of Annexure R2(a) notification. Therefore, the respondents were justified in refusing to issue NOC to the petitioner. The materials produced and the contentions urged on behalf of the petitioner are not sufficient to compel this court to grant the reliefs sought.
In the result, the writ petition is dismissed.
Scl/11.11.2020
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE DOCUMENT NO.2659/92 OF SRO KATAMBAZHYPURAM, PALAKKAD DATED, 21.7.1992.
EXHIBIT P2 TRUE COPY OF THE DOCUMENT NO.1370/1980 OF SRO KATAMBAZHYPURAM, PALAKKAD DATED 31.5.1980. EXHIBIT P3 TRUE COPY OF APPLICATION IN O.A.561/75 FILED BEFORE THE FOREST TRIBUNAL, PALAKKAD.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.7.1978 IN O.A.561/75 ON THE FILES OF THE FOREST TRIBUNAL, PALAKKAD.
EXHIBIT P5 TRUE COPY OF THE REQUISITION DATED 26.10.78 BY THE DIVISIONAL FOREST OFFICER, PALAKKAD.
EXHIBIT P6 TRUE COPY OF RELEASE REPORT DATED 29.5.1980 BY THE FOREST RANGE OFFICER, THENKARA RANGE. EXHIBIT P7 TRUE COPY OF THE REPLY G2 NO.5314/2011 DATED 1.10.2012 TO RTI QUERY ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P8 TRUE COPY OF COMMUNICATION DATED 27.11.2014 ISSUED BY THE 2ND RESPONDENT TO 4TH RESPONDENT. EXHIBIT P9 TRUE COPY OF COMMUNICATION 8.10.2018 ISSUED BY 2ND RESPONDENT.
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EXHIBIT P10
TRUE COPY OF THE SCHEDULE IN ORDER DATED 25/7/1978 IN O.A. 561/75 ON THE FILES OF THE FOREST TRIBUNAL, PALAKKAD.
RESPONDENT'S EXHIBITS
ANNEXURE R2(a) TRUE COPY OF RELEVANT EXTRACT OF THE NOTIFICATION DATED 18.03.1978
ANNEXURE R2(b) TRUE COPY OF SKETCH PREPARED BY THE ASSISTANT DIRECTOR OF MINI SURVEY
3 issues framed by the court
Whether the petitioner's one acre property remains vested forest since exemption under Section 8 was granted only for the remaining three acres.
Whether the placement of boundary stones (jendas) for only a portion of the land defeats the statutory operation of vesting for the entire forest extent.
Whether the High Court should grant a declaration of non-vested status and direct issue of a No Objection Certificate.
2 provisions across 1 enactments
Briji P.M.
Principal Secretary Forest and Wild Life
Divisional Forest Officer Athira Nagar
V.G. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
