IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 20TH JANUARY 2009 / 30TH POUSHA 1930 AS.No. 500 of 1996() ----------------------------- OS.33/1991 of SUB COURT, KASARAGOD .................... APPELLANT(S): PLAINTIFFS AND DEFENDANTS 6 AND 7 ------------------------- 1. BARE HASSINAR, S/O. MOHAMMED. 2. ISUBU, S/O. MOIDINKUTTY. 3. K.ABBAS, S/O. HASSINARE 4. KUNHIPPA ALIAS ABDULKHADER, S/O. ABDULRAHIMAN. 5. HASSANAR, S/O. MOOSA 6. UPPANHI, S/O. MOOSA. NOS. 1, 3 AND 4 ARE RESIDING AT SHANTIMALE, NO.2 IS RESIDING AT UGGAMPADY, NOS. 5 AND 6 ARE RESIDING AT MUNCHIKANA, DELAMPADY VILLAGE AND POST, KASARAGOD TALUK. BY ADV. MR. K.G.GOWRI SHANKER RAI RESPONDENT(S): DEFENDANTS 1 TO 5 ------------------------ 1. THE STATE OF KERALA, REP.BY THE DISTRICT COLLECTOR, KASARAGOD. 2. THE ASSISTANT COLLECTOR, KASARAGOD DISTRICT AT KANHANGAD, P.O. KANHANGAD. 3. THE SPECIAL DEPUTY TAHASILDAR (FOREST), KASARAGOD. *4 KORAGA NAIK, S/O. RAMA NAIK, RESIDING AT MULIYAR VILLAGE, KASARAGOD TALUK AND DISTRICT , P.O. KOTOOR. A.S. NO.500/1996 *5. K.SHANKARA PATALI, S/O. SUBBA PATALI, RESIDING AT AMMU KUNJE IN MULIYAR VILLAGE AND POST, KASARAGOD TALUK. *THE NAMES OF R4 AND R5 ARE DELEETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DT. 24.3.08 ON IA. 1178/08 (VIDE ORDER SHEET.) BY GOVERNMENT PLEADER MR.GEORGE JOSEPH VADAKKEL FOR R1 TO R3 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 20/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.1570/1997 IN AS. NO.500/1996 DISMISSED 20.01.2009 SD/- P.N.RAVINDRAN, JUDGE TRUE COPY P.A. TO JUDGE TSS P. N. RAVINDRAN, J. ------------------------------ A.S.No. 500 OF 1996 ---------------------------------- Dated this the 20th day of January, 2009 J U D G M E N T The plaintiffs in O.S.No.33 of 1991 on the file of the Court of Subordinate Judge of Kasargod are the appellants in this appeal. The respondents are the defendants therein. The suit instituted by the appellants for a declaration that the proceedings initiated by defendants 1 to 3 against them and defendants 6 and 7 in FOR 75/1974-75 and FOR 70/1974-75 are null and void and to restrain defendants 1 to 3 from recovering the fine amount imposed on them in the said proceedings was dismissed by the court below. Hence, this appeal. 2. The properties described in the plaint 'A' schedule are assessed waste lands belonging the Government, which were assigned to defendants 4 and 5 under the Centrally Sponsored Scheme for Settlement of Agricultural Labourers. Item No.1 having an extent of 3 acres, situated in R.Sy.No.13/22 of A.S.No. 500 OF 1996 - 2 - Delampady Village in Kasargod Taluk was assigned in favour of the fourth defendant by Exhibit A1 order of assignment passed on 30-3-1966. Item No.2 having an extent of 3 acres situated in R.Sy.No.13/33 was likewise assigned to the fifth defendant as per order of assignment passed on 30-3-1966 by the Tahsildar, Kasargod. 3. Pursuant to the directions issued by the Tahsildar, Kasargod, the Special Revenue Inspector (Forests), Kasargod Taluk inspected the land assigned to defendants 4 and 5 on 9.10.1974 along with the Village Officer. On such inspection, they noticed that 28 trees standing in the lands assigned to the fourth defendant and 22 trees standing in the lands assigned to fifth defendant had been cut and removed by the plaintiffs and defendants 6 and 7. Plaintiffs 1 and 3 and defendants 6 and 7 were admittedly present at the site. They admitted that they had cut the trees standing in the lands assigned to defendants 4 and 5. Thereupon, proceedings were initiated against the plaintiffs A.S.No. 500 OF 1996 - 3 - and defendants 6 and 7 under the provisions of Kerala Land Conservancy Act. By Exhibit B1(a) order passed on 16-2-1975, the Deputy Tahsildar (F), Kasargod levied Rs.10,000/- being three times the seniorage value of the cut trees cut from the lands assigned to the fifth defendant as damages on the plaintiffs and defendants 6 and 7 and directed them to pay the amount within ten days. By Exhibit B2(a) dated 1-2-1975 passed in relation to the trees cut and removed from the lands assigned to the fourth defendant, the Deputy Tahsildar levied Rs.16,900/- as fine and directed the plaintiffs and defendants 6 and 7 to remit the said sum within ten days. 4. The plaintiffs and defendants 6 and 7 carried the matter in appeal. By order passed on 29-12-1975 the Assistant Collector, Kasargod dismissed the appeal arising from Exhibit B1(a). They carried the matter in revision to the District Collector. By Exhibit B1(c), the District Collector confirmed the order passed by the Deputy Tahsildar and the Assistant A.S.No. 500 OF 1996 - 4 - Collector. In respect of Exhibit B2(a) order also, the plaintiffs and defendants 6 and 7 filed appeal and revision and they were also dismissed. Thereafter, they moved the Board of Revenue and by order passed on 3-2-1984, the Board of Revenue dismissed the revision petition. Challenging the said order passed by the Board of Revenue, the plaintiffs and defendants 6 and 7 jointly filed O.P.No.4443 of 1984 in this Court, wherein they contended that the Government have no right over the trees cut and removed by them. A learned Single Judge of this Court after examining the files held that the findings entered by the officials are just and proper. O.P.No.4433 of 1984 was accordingly dismissed by judgment delivered on 10-11-1988. O.S.No.33 of 1991 was filed long thereafter on 7-2-1991. 5. The plaintiffs contended that the Government have no right over the land and the trees standing therein. They contended that in the proceedings that culminated in O.P. No.4443 of 1984, the Government had suppressed the fact that A.S.No. 500 OF 1996 - 5 - it had no right over the land or the trees and that the proceedings were initiated and continued on the premise that the land and the trees belonged to the Government. The plaintiffs contended that the initiation of the proceedings under the Kerala Land Conservancy Act is null and void and without jurisdiction for the reason the Government had no right over the land or the trees. 6. Defendants 1 to 3 resisted the suit contending inter alia that as the orders passed under the Kerala Land Conservancy Act have become final, the suit is barred by res- judicala. Defendants 1 to 3 also contended that defendants 4 and 5 have not remitted the land value or occupied the land. The trial court, on analysis of the evidence, oral and documentary available in the case, held that the challenge to the proceedings initiated under the Kerala Land Conservancy Act is without merit. It was held that in view of the judgment of this Court in O.P.No.4443 of 1984 wherein the validity of the proceedings A.S.No. 500 OF 1996 - 6 - initiated against the plaintiffs and defendants 6 and 7 was upheld, the plaintiffs are not entitled to the reliefs prayed for. The suit was accordingly dismissed. 7. Sri. K.G.Gowri Sankar Rai, the learned counsel appearing for the appellants contended that the orders passed against the plaintiffs and defendants 6 and 7 under Kerala Land Conservancy Act were not in conformity with the provisions of the said Act. He also contended that the Government had no right over the lands assigned to defendants 4 and 5 or the trees standing therein. The learned counsel also relied on the decision of this Court in Muhammed Haji V. Kunhunni Nair [1993(1) KLT 227] in support of his contentions. Per contra, the learned Government Pleader appearing for defendants 1 to 3 contended that as the plaintiffs and defendants 6 and 7 admittedly have no right over the land or the trees and as the land belonged to the Government, they are not entitled to the reliefs prayed for. A.S.No. 500 OF 1996 - 7 - 8. The pleadings and the evidence on record disclose that the plaintiffs and defendants were proceeded against for unauthorised cutting of trees from the lands assigned to defendants 4 and 5. The assignment was made on 30-3-1966. The trees were cut during the first week of October 1974 and the appellants were caught red handed by the Special Revenue Inspector. In fact, the first plaintiff conceded before the Special Revenue Inspector that he had cut the trees. Though he contended that he had remitted the value of the trees, no evidence was produced before the Special Revenue Inspector. From Exhibit B1 and B2 files, it is seen that the first plaintiff had, in unequivocal terms, conceded that he and others had cut the trees standing in the lands assigned to defendants 4 and 5. The Special Deputy Tahsildar, the Deputy Collector and the District Collector who passed the original, appellate and revisional orders under the Kerala Land Conservancy Act took note of the fact that the plaintiffs had no right over the land or A.S.No. 500 OF 1996 - 8 - the trees standing therein. The order passed by the Special Deputy Tahsildar discloses that though the plaintiffs and defendants 6 and 7 were given notice, calling upon to appear before him, only plaintiffs 1 to 3 appeared before him. The files also disclose that the plaintiffs and defendants 6 and 7 who had admittedly received notice of the hearing did not avail the opportunity. In fact, they admitted that they had cut and removed trees from the lands assigned to defendants 4 and 5. The orders passed by the Special Deputy Tahsildar, Assistant Collector and District Collector and the Board of Revenue were also upheld by this Court in O.P. No.4443 of 1984. 9. According to the appellants, defendants 1 to 3 had in in O.P.No.4433 of 1984 falsely contended that the lands belonged to the Government. In my opinion, the only question to be decided is whether the plaintiffs and defendants 6 and 7 had any right over the lands, which were assigned to defendants 4 and 5 or the trees standing therein. The plaintiffs and A.S.No. 500 OF 1996 - 9 - defendants 6 and 7 admittedly have no right over the land. The files disclose that the case of the appellants is that they had paid the value of the trees to the defendants 4 and 5. Defendants 1 to 3 on the other hand contended that assignees did not occupy the land and therefore, the land continued to be Government land. The plaintiffs and defendants 6 and 7 admittedly have no right over the land. In paragraph 8 of the judgment delivered on 10-11-1988 in O.P.No.4433 of 1984, this Court held that appellants have no proprietary right over the land and the trees. In fact, their only claim was that they have paid the value of the trees, but no documentary evidence was adduced before the court below to prove the said claim. 7. From the materials on record, it cannot be said that the initiation of proceedings against the plaintiffs and defendants 6 and 7 under the provisions of Kerala Land Conservancy Act is in any way illegal. Exhibits B1 and B2 disclose that the plaintiffs and defendants 6 and 7 had admitted the fact that they had cut A.S.No. 500 OF 1996 - 10 - and removed the trees from Government land which had been assigned to defendants 4 and 5. Further this Court has in O.P.No.4433 of 1984 upheld the orders passed against the plaintiffs and defendants 6 and 7. This Court had also held that plaintiffs and defendants 6 and 7 have no proprietary right over the land and the trees. Even in the suit, the claim put forward by the plaintiff is that they have paid the value of the trees. They have however, not been able to prove such payment. In the light of the findings of this Court in O.P.No.4433 of 1984, the appellants cannot claim or be granted the reliefs prayed for. For the reasons stated above, I hold that there is no merit in this appeal. The appeal fails and is accordingly dismissed. No costs. Sd/- P.N. RAVINDRAN, JUDGE skr // True copy // P.A. to Judge.