IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 23RD SEPTEMBER 2009 / 1ST ASWINA 1931 WP(C).No. 26151 of 2009(O) -------------------------- OA.31/2009 of FOREST TRIBUNAL, KOZHIKODE .................... PETITIONERS: --------------- 1. KAMARU MARATH KUNHIMON @ KAMARUDDIN, S/O. KUNHIMON, 2. KUNHIMON HYDROSE, S/O. S.M.KUNHIMON, 3. HUSSAIN M.K., S/O. KUNHIMON, 4. MAIMOONA SAID MOHAMMED, W/O. SAID MOHAMMED ABDULLA, 5. M.K.SAID MOHAMMED, S/O. KUNHIMON, (PETITIONERS 1 TO 4 REP. HEREIN BY THEIR POWER OF ATTORNEY HOLDER, THE 5TH PETITIONER), ALL ARE RESIDING AT MELATHAYIL HOUSE, VYLATHOOR, CHAVAKKAD, THRISSUR DISTRICT. BY ADV. MR.T.C.SURESH MENON MR.NIMOD A.R. RESPONDENTS: --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST & WILD LIFE), THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN FOR R1,2 SPECIAL GOVERNMENT PLEADER (FOREST) MR.P.M.POULOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.26151 of 2009 - O --------------------------------- Dated this the 23rd day of September, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To call for the records leading to the issue of Ext.P8 order by the Forest Tribunal, Kozhikode and set aside the same. ii) To allow I.A.No.179/2009 in O.A.No.31/2009 on the file of the Forest Tribunal, Kozhikode. 2. Petitioners are the applicants in O.A.No.31 of 2009 on the file of the Forest Tribunal, Kozhikode. The application has been filed under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971, hereinafter referred to as the Act, in respect of 6.11 acres of land which has been notified by the Government as reserve forest. In the above application, petitioners have moved an interlocutory application seeking an interim injunction to restrain the respondents, forest officials, from conducting auction of the rubber trees situate in the property covered by the proceedings and slaughtering of those trees. The application was opposed to by the respondents by filing written objections. The Forest Tribunal after hearing both sides dismissed the application vide Ext.P8 order. Propriety and W.P.(C).No.26151 of 2009 - O 2 correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice being given the Special Government Pleader (Forests) has entered appearance for the respondents. Respondents have also filed a counter statement. I heard the counsel on both sides. 4. The learned counsel for the petitioners submitted that there is no dispute that the property involved is a cultivated land with rubber trees. Though the application moved by the predecessor of the petitioners had been dismissed by the Forest Tribunal holding that the land is a forest land and that decision confirmed in appeal by this Court, it is submitted by the learned counsel for the petitioners, on the review application moved by the petitioners, they have been permitted to canvass their rights by filing a proper application as provided under the Act before the Forest Tribunal. Accordingly, a petition has been filed before the Forest Tribunal. Inviting my attention to Joseph v. State of Kerala (2007 (3) KLT 144), learned counsel for the petitioners contended that the previous application happened to be W.P.(C).No.26151 of 2009 - O 3 dismissed holding the predecessor of the petitioners had not been cultivating the land. However, as on the date, it is practically conceded that it is a cultivated land with rubber plantation. That circumstance enures in favour of the petitioners to contend that the land is not a reserve forest and so much so, there is a fair chance for them to get favourable orders in their application. Learned counsel for the petitioners invited my attention to the observations made by the Apex Court in the above decision to contend that cultivation over the property has to be gathered with regard to the development of the land and where the land involved is found to be cultivated, it is a circumstance indicating that it is not a forest land. If during the pendency of the application filed by the petitioners before the Forest Tribunal, the trees are auctioned and slaughtered then irreparable injury would be caused to them, is the submission of the learned counsel and so much so, it was canvassed that till the disposal of the application, appropriate orders have to be passed by this Court in modification of Ext.P8 order passed by the Forest Tribunal to maintain the status quo. Vehemently opposing the reliefs claimed in the petition learned Special Government Pleader W.P.(C).No.26151 of 2009 - O 4 (Forests) submitted that petitioners being pendente lite transferees over the properties cannot have a better right than what had been claimed by their predecessors which had been negatived by the Forest Tribunal which was sealed with finality in appeal by this Court. In Ext.P3 order passed in the review petition filed by the present petitioners seeking a review of the judgment rendered by this Court in dismissing the appeal preferred by their predecessors, according to the learned Special Government Pleader, submitted that no rights had been reserved or conferred by this Court enabling them to agitate the cause once again before the Forest Tribunal. Ext.P3 order explicitly makes it clear, according to the counsel, that petitioners, if they have any right, can move an application before the Forest Tribunal, and nothing more. Ext.P3 order, it is submitted, does not confer on them any right to reopen the issues which have become final. It is further contended by the learned Special Government Pleader (Forests) that vesting of the forest land takes place not on the date of notification but on the appointed day under the Act and so much so, there is no merit in the submission canvassed by the petitioners that at present the land W.P.(C).No.26151 of 2009 - O 5 is a cultivated land. Previous application moved by the predecessors of the applicants had been dismissed holding that on the date of vesting it was not a cultivated land. So much so, it is submitted no interference with Ext.P8 order passed by the Forest Tribunal invoking the visitorial jurisdiction vested with this Court is called for in the present case. 5. Perusing Ext.P8 order passed by the Forest Tribunal with reference to the submissions made by the learned counsel for the petitioner and the learned Special Government Pleader and also the statutory provisions applicable, I find considerable force in the submissions made by the learned Special Government Pleader. The relief sought for by the petitioner, no doubt, is a discretionary relief and it can be granted only on satisfaction that the petitioners are entitled to claim such an equitable relief from the court or Tribunal. Petitioners are undisputedly pendente lite transferees over the properties involved in the proceedings. Whether they can independently agitate the rights over the land involved once an adverse decision had been rendered against their predecessor is a matter over which I need not express any opinion. As the disputes involved W.P.(C).No.26151 of 2009 - O 6 are before the Forest Tribunal I refrain from making any observation on the disputed issues as such observations are likely to influence the Forest Tribunal which is yet to consider the claim of the petitioners. Suffice to state, on the facts and circumstances presented, there is no scope for interference with Ext.P8 order passed by the Forest Tribunal. Having regard to the disputes covered by the application, I find that an expeditious disposal is necessary to give a quietus to the whole controversy. I direct the Forest Tribunal to give the application top priority in hearing and dispose it expeditiously, but after giving reasonable opportunity to both sides to lead evidence in support of their respective case, at any rate, within a period of six months from the date of receipt of a copy of this judgment. With the above direction/observation, the writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-