Allowed

M.K.Ravi v. the Custodian Vested Forest

Kerala HC29 Nov 2023WP(C)/15861/2005

Case brief

AI extract

What is this about?

This writ petition sought restoration of agricultural land by the Custodian of Vested Forests. The High Court held that the Forest Tribunal had validly declared the land not to be private forest. Consequently, the Custodian was directed to restore possession to the petitioner as a legal heir to the original land possessor.

What did the court decide?

Directed the 1st respondent to restore possession of the land to the petitioner and respondents within two months based on the Tribunal's report.

M.K.Ravi Vs the Custodian Vested Forest — Property and Title | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 29^TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 WP(C) NO. 15861 OF 2005

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PETITIONER:

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M.K.RAVI
MOOZIKUNNUMMELHOUSE,K.B.ROAD,MEPPADI.
BYADVV.V.SURENDRAN

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RESPONDENTS:

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1 THE CUSTODIAN OF VESTED FOREST OLAVAKKODE.

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2 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.

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3M.K.AMMU
MOOZIKUNNUMMELHOUSE
K.B.ROAD,MEPPADI.
4M.K.MOHAN
MOOZIKUNNUMMELHOUSE
K.B.ROAD,MEPPADI.
5M.K.PUSHPA
MOOZIKUNNUMMELHOUSE
K.B.ROAD,MEPPADI.
6M.K.SAJEEVAN
MOOZHIKUNNUMMELHOUSE
K.B.ROAD,MEPPADI.
BYADVS.
SRI.P.A.HARISH
SRI.TPSAJAN,SR.GP.
THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON
29.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING:

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WP(C)NO.15861OF2005

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JUDGMENT

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Sri.M.K.Appu is the father of the petitioner and respondents 3 to 6.

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Sometime in the year 1991, he approached the Forest Tribunal, Kozhikode and filed O.A.No.18/91 invoking Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) seeking a declaration that 2 Acres of property comprised in Sy.No.204/1A1 of Kottappady Village, Vythiri Taluk, Wayanad District possessed by him is not a forest land and therefore not vested with the Government.

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The State of Kerala and the Custodian of Vested Forests, who

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were arrayed as respondent Nos. 1 and 2 opposed the prayer and filed objections denying the contentions.

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In the course of proceedings, a Commissioner Advocate was

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appointed to identify and measure the properties with the assistance of a Taluk Surveyor.

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On the side of the petitioner, PWs 1 and 2 were examined, and Exhibits A1 to A14 were marked. On the side of the respondents, the Forest Range Officers, Meppady, were examined as RWs 1 and 2, and Exhibits B1 and B2 were marked. The Commissioner’s Report, Plan prepared with the assistance of the Taluk Surveyor, and the interim report

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WP(C)NO.15861OF2005

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were marked as Exhibits C1 to C3.

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5. The Tribunal, after evaluation of the evidence, concluded that

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the scheduled property was used for cultivation prior to 10-5-1971 and as the property was used for cultivation prior to the scheduled day, it will not come within the definition of the term “forest” as stated in Section 2(f)(i)(ii) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. Relying

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on the Commissioner’s report, it was found that on the eastern side of the scheduled property, the property of one Ameer Hussain was situated. On the northern side, the property of one Gabriel and the Primary Health Center was situated. It was also noticed that two houses were situated on the property, and the entire property was cultivated with Pepper Vines, Murukku, and Coffee Plantation. The court also held that the property was not an enclave within a wooded area on the appointed day. The trees/plants were found to be aged about 25 years. Finally, the Tribunal, in its order dated 29.8.2001, concluded as under:-

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“35. The conclusion that is available from the discussions made above is to find that the schedule property was a cultivated land prior to the appointed day and it was not a forest liable for vesting on the appointed day. Therefore, I find that the applicant is entitled for the declaration that the schedule property is not a private forest liable for vesting under the provisions of the Act. What is vested in the Government is only a private forest defined in Sec. 2(f). As the land involved in the case is not a private forest I find that it has not vested in the Government.

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The petitioner states that the order passed by the Tribunal has

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WP(C)NO.15861OF2005

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become final.

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Immediately thereafter, Appu M.K. filed an application for restoring the possession of the land by preferring Exhibit P2 representation dated 1.7.04. However, the respondents did not initiate any action.

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While so, Appu passed away, and the petitioner and respondents 3 to 6, being the legal heirs and representatives, approached the 1st respondent seeking enforcement of the orders passed by the Tribunal and for restoring possession of the property. It is on these assertions that this writ petition is filed seeking the following reliefs:

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i) Issue a writ of mandamus or other appropriate writ, order or direction directing the 1st respondent to restore the land comprised in Sy. No. 204/1A1 of Kottappady Village in Vythiri Taluk, to the petitioner and respondents 2 to 6.

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ii) Issue any other appropriate writ or order which this Honourable court may deem just fit and proper in the facts and circumstances of the case and sufficient for the redressal of the grievances of the petitioner.

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A counter affidavit has been filed by the 1st respondent on

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19.12.2006. In the counter affidavit, it is stated that after the disposal of the matter by the Forest Tribunal, the respondents have understood that the entire area of 56.54 Acres of land in Old Sy. No. 204/1A1 in Kottappady Village, which includes the scheduled property in O.A No.18/91 filed by Sri.M.K.Appu is in the possession of M/s. Harrisons Malayalam Limited (HML) and proceedings have been initiated claiming extension as OA No.

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WP(C)NO.15861OF2005

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5/75. Out of 56.54 Acres claimed by M/s. Harrisons Malayalam Ltd., only

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50.50 Acres was vested, and the balance area of 6.04 Acres was not vested with the Government. The Forest Tribunal vide common order dated 15.12.1994 in O.A 3/75, 4/75, 5/75, 6/75, and 26/75 have exempted 1400 Hectares, including the scheduled property in O.A 18/91 to HML. M/s.Harrisons Malayalam Ltd. has filed SLP No.21521/2002, and the State has filed SLP No.24750/2003 against the order dated 31.5.2002 of this Court limiting the extension to 730.548 Acres and the same is now pending consideration before the Hon’ble Supreme Court. It is stated that in that view of the matter, the respondents are not in a position to restore the area as the scheduled property in O.A No.18/91, which is also a part of the scheduled property of O.A. 5/75 and is presently under consideration of the Hon’ble Supreme Court.

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To the counter affidavit, a reply affidavit has been filed by

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the petitioner. It is stated that the property in dispute between the Department and M/s. Harrisons Malayalam Ltd. has nothing to do with the property in respect of which the Tribunal had granted relief to the father of the petitioner herein.

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By order dated 8.12.2011, this Court directed the 1st respondent to demarcate the disputed property and file an affidavit.

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In terms of the same, a demarcation sketch, purportedly

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WP(C)NO.15861OF2005

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prepared by the Assistant Director of Survey, Forest Mini Survey, Kozhikkode, has been placed on record as Exhibit R1. It is stated that on verification of the survey sketch and the nature of the land, it has been found that the land in question is a portion of the scheduled property in O.A 5/75 filed by M/s Harrisons Malayalam Ltd, wherein a claim has been lodged seeking exemption of the entire area of 56.54 Acres of land in Sy. No.204/1A1 in Kottappady Village. It is stated that in that view of the matter, the respondents are not in a position to restore the scheduled property in O.A 18/91, which is also part of the Scheduled property in O.A

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5/75, and the dispute is now pending before this Court as MFA No.537/94.

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I find that during the pendency of the matter, the respondent State of Kerala has preferred a Review Petition before the Forest Tribunal seeking to review the order passed on 29.8.2001 in O.A 18/91. The Tribunal, after considering the facts and circumstances, rejected the Review Petition.

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I have considered the submissions advanced and perused the records. I have also gone through the copy of the Commission report and sketch, which was placed on record before the Forest Tribunal, and which have been produced before this Court by the petitioner. I find that in O.A 18/91, the Forest Tribunal, Kozhikode, after a detailed evaluation of the records, the evidence let in, and the report of the Commissioner Advocate

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WP(C)NO.15861OF2005

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had held as under:-

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a. The scheduled property was a cultivated land prior to the appointment day, and it was not a forest liable for vesting on the appointed day.

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b. The property was not an enclave within a wooded area on the appointed day.

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c. The scheduled property was used for cultivation prior to 10/5/1971.

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d. The property is included in RS 204/IAI, and two small houses are situated therein.

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e. Various trees and plants like coffee, pepper vines, plantation, and murukku were situated, and some of the plants and trees were more than 25 years of age

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f. On the eastern side of the scheduled property, the property of one Ameer Hussain is situated and on the northern side, the property of one Gabriel and the Primary Health Center is situated

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In the counter affidavit, it is stated that the property

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comprised in O.A 18/91 forms part of the property of M/s. Harrisons Malayalam Ltd. However, no such contention was raised when the matter was considered by the Forest Tribunal. Furthermore, the respondents have placed on record a sketch purportedly prepared pursuant to directions issued by this Court. However, in the said sketch, the property on the eastern and southern sides are shown as vested forests. The sketch is clearly not in respect of the 2 Acres of property possessed by the petitioner as its description does not tally with the sketch prepared by the Commissioner Advocate in the instant case and which fact was considered in detail by the Forest Tribunal. Late Appu and his family had been residing in the above property for decades, carried out cultivation and put up buildings therein. If that is the case, the contention that it forms part of the

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WP(C)NO.15861OF2005

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property of HML is clearly incorrect. It is obvious that the respondents

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have not correctly ascertained the property as per the schedule and the sketch and report prepared by the Commissioner Advocate in O.A.No. 18/1991.

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From the records, I find that the father of the petitioner had obtained an order in his favor from the Forest Tribunal in the year 2001. The Tribunal has passed an order under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971, holding that the scheduled property was “cultivated land” prior to the appointed date and that Sri. M.K.Appu was entitled to a declaration that the scheduled property is not a private forest liable for vesting under the provisions of the Act. In that view

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of the matter, the consequences are to follow. Section 8 of the Act of 1971 reads as under:

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Section 8: Settlement of disputes

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(1) Where any dispute arises as to whether-

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(a) any land is a private forest or not; or

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(b) any private forest or portion thereof has vested in the Government or not,

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the person who claims that the land is not a private forest or that the private forest has not vested in the Government, 3[may, within such period as may be prescribed, apply to the Tribunal] for decision of the dispute.

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(2) Any application under sub-section (1) shall be in such form as may be prescribed.

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WP(C)NO.15861OF2005

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(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and-

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(a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; or

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(b) such appeal having been preferred has been dismissed by the High Court,

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the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day.

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The provision clearly says that if the order passed by the

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Tribunal has become final, the custodian shall restore possession of such land to the person in possession thereof. The records before the Tribunal would clearly show that the petitioner and the other legal heirs of Sri. M.K.Appu is in possession of the land. The order passed by the Tribunal has not been varied or set aside by any superior forum. In that view of the matter, the petitioner is entitled to succeed. This writ petition is ordered, and the following directions are issued.

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a. There will be a direction to the 1st respondent to restore

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the land comprised in Survey No.204/1A1 of Kottappady Village in Vythiri Taluk in terms of the report and sketch prepared by the Advocate Commissioner in O.A.No.

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WP(C)NO.15861OF2005

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18/1991 to the petitioner and respondents 3 to 6, and in

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tune with the schedule.

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b. The needful shall be done expeditiously in any event

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within a period of two months from the date of receipt of a copy of this judgment.

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Sd/-

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RAJA VIJAYARAGHAVAN V JUDGE

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Sru

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WP(C)NO.15861OF2005

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APPENDIX OF WP(C) 15861/2005

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PETITIONER’SEXHIBITS

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EXHIBITP1TRUECOPYOFTHEORDERINO.A.18/91DATED
29.8.2001.
EXHIBITP2TRUECOPYOFTHEREPRESENTATIONDATED1.7.04.
EXHIBITP3TRUECOPYOFTHEACKNOWLEDGEMENTDATEDON
2/7/04.
ExhibitP4ATRUECOPYOFTHEORDERDATED15.12.2020IN
I.A.260/2020ANDI.A.261/2020INO.A.18/1991
OFTHEFORESTTRIBUNAL,KOZHIKODE.
EXHIBITP5THECERTIFIEDCOPYOFTHECOMMISSIONREPORTAND
PLANSUBMITTEDBYTHEADVOCATECOMMISSIONERIN
O.A18/1991BEFORETHEFORESTTRIBUNAL,
KOZHIKODEDATED15.3.1993.
RESPONDENTSEXHIBITS
EXHIBITR(1)TRUECOPYOFDEMARCATIONSKETCH.

M.K.Ravi v. the Custodian Vested Forest

Case brief

What is this about?

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M.K.Ravi v. the Custodian Vested Forest

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