M.Moideen vs State Of Kerala

K.Vinod Chandran,J.

The applicant before the Forest Tribunal is in appeal. The Tribunal, by the impugned order, found that the applicant was unsuccessful in proving that the scheduled property was not a private forest as on 10.05.1971 and that the claim regarding exemption cannot be sustained, since he was not the owner of the land as on the appointed day of the Kerala Private Forest [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act].

Sri.V.V.Surendran, learned Counsel for the applicant, submitted that the Commissioner's report clearly demarcated 93 cents from the total area scheduled as the disputed property. The objection to the commission report filed by the Department clearly indicated the same to be the only disputed property around which cairns were erected and the objection was only regarding the extent, which, as claimed by the Department, was 1.03 Acres as against the measured 93 cents. Learned Special Government Pleader Sri.Nagaraj Narayanan resisted the appeal and sought for upholding the order passed.

The Tribunal framed three issues, (i) of limitation, (ii) applicability of the Madras Preservation of Private Forest Act,1949 [for brevity, 'the MPPF Act'] and (iii) the claim of exemption under S.3(2) or 3(3) of the Vesting Act. The ground of limitation was found in favour of the applicant, since there was absolutely no proof offered, of the publication having been made as statutorily prescribed. We find no reason to interfere with the same. With respect to the applicability of the MPPF Act, after referring to the Commissioner's report it was specifically held that there was no proof offered that the area was not covered under the MPPF Act, which even according to a binding precedent in State of Kerala v. Kunhiraman [1990 (1) KLT 382] was the bounden duty of the applicant. The exclusion under Clause (A) to (C) of S.2(f)(1)(i) was also found to be not substantiated with any evidence. As for the claim of exemption, it was found that the applicant being a subsequent assignee, cannot maintain the application under S.8 of the Vesting Act.

On the ground of limitation, we hold the Tribunal's finding to be unassailable. As for a subsequent assignee being not entitled to file an application under S.8; we have to just notice a Full Bench decision in Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461). In this context, we would have remanded the matter but for the clear admission made by the respondents as revealed from the records of the case. Further we cannot but notice that the Commissioner's report with respect to the cultivation found, does not sustain the claim raised of the scheduled property being cultivated as on 10.05.1971; the appointed day of the Vesting Act. It is also pertinent that the application though indicates the title being traced to one Varikkayil Jose, who is alleged to have obtained possession of the properties based on a verumpattam right; no documents were produced to prove the same. We are of the opinion that a remand is not necessitated due to the abject failure of the applicant to prove essentially required facts and also for the obvious admissions made by the Department.

In the Counter Affidavit filed by the Divisional Forest Officer, Nilambur (South) Division it was clearly stated that 3 Acres of land, which is the subject matter in O.A.No.7/2004, has some portions which is part of vested forest and notified as per the notification published vide No.82055/FS2-1/76 AD dated 11.01.1977 as per the Vesting Act. It is also stated that the land in question has been demarcated and separated by erecting temporary cairns and the mini survey team of the Department is conducting survey in the boundaries of the vested forest including this area to re-fix the survey stones for erecting permanent cairns. The Counter Affidavit is dated 16.02.2004.

A commission was taken out by the applicant and the Commissioner conducted inspection of the properties between 29.03.2004 and 30.11.2004; altogether six days. The Commissioner had filed an interim report seeking the services of an expert for surveying and demarcating the disputed property. A retired Village Officer was engaged by him on the directions of the Court. The Commissioner identified the property scheduled with reference to Deed No.1222/99 of the SRO, Melattoor produced by the applicant and also with reference to the forest demarcation plan, prepared by the respondent. The forest demarcation plans and those prepared by the retired Village Officer was also produced along with the report. On a perusal of the records of the Village Office, Kerala Estate Village, the scheduled land was found to be in survey No.37/2 in Block No.157 of that village, which survey number in two blocks had an extent of 2.9600 hectares. The survey plan was also produced along with the commission report. The petition schedule property was shown in yellow in the survey plan. The disputed land was shaded red in the plan prepared by the retired Village Officer. According to the Commissioner, at the time of inspection, the respondent pointed out areas on the eastern side of the property, which was the part of vested forest, which also stood demarcated from the undisputed area. It was categorically stated that there was no physical demarcation seen on the ground and with the help of the retired Village Officer the total extent was surveyed and the disputed property of 93 cents claimed by the respondent was found to be lying in the eastern side of the property possessed by the petitioner.

An objection was filed to the above Commission report, in which the only objection was with respect to the extent of the disputed property, as shown in the survey sketch of the retired Village Officer, which, according to the Department, is 1.03 Acres. There was also objection with respect to the age of standing trees in the property. In the teeth of the admissions made by the Department, initially at the time of Counter Affidavit and also in the objection to the commission report as to the disputed property being only 1.03 Acres, we are of the opinion that no useful purpose would be served in remanding the case for consideration as to whether there is a valid claim of exemption under S.3(2) & 3(3) of the Vesting Act. Even the Department claims only a portion of the property as vested forest, notified under the Vesting Act. Hence, only that portion notified, which is categorised as the disputed property by the Commissioner would be vested in the Government as on the appointed day. The balance properties are not included in the notification and hence the same has to be restored to the possession of the applicant, if the same is not already in his possession.

MFA allowed to the above extent. Parties to suffer their respective costs.