IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 FAO.No. 197 of 2008 ---------------------------- AS.135/2003 OF DISTRICT COURT, MANJERI, OS.182/2000 OF MUNSIFF COURT, MANJERI. .................... APPELLANT/ APPELLANT/ PLAINTIFF: ------------------------------------------------------ KAPPACHALI ASMABI, D/O.MOOSA, REPRESENTED BY KAPPACHALI MOHAMMED IQBAL, S/O.MOOSA, MAMPAD AMSOM DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.R.RAJESH KORMATH. RESPONDENTS/ RESPONDENTS/ DEFENDANTS: --------------------------------------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR, MALAPPURAM. 2. THE CUSTODIAN OF VESTED FORESTS, KOZHIKODE, KOZHIKODE DISTRICT. BY SPL. GOVT. PLEADER SRI. PRAKASH. M.P. THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 11/08/2008, ALONG WITH F.A.O. NOS.198/2008, 199/2008 & 200/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O. NO. 197/2008: ORDER ON I.A. NOS. 3241/2008 & 3242/2008 IN F.A.O. NO. 197/2008 DISMISSED 11/08/2008. SD/- M.N.KRISHNAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. prv. M.N.KRISHNAN, J. -------------------------- F.A.O. Nos. 197, 198, 199 & 200 OF 2008 --------------------- Dated this the 11th day of August, 2008 JUDGMENT These appeals are preferred against the judgment of the District Judge, Manjeri, whereby he has remanded four suits OS 182,181,184 and 183 of 2000 of the Munsiff Court, Manjeri, with a specific direction to return the plaints to the plaintiffs for proper presentation before the Forest Tribunal. Brief facts are necessary for understanding the contentions of the parties. The plaintiffs in all these cases would contend that the property described in their plaint schedule belonged to them and they are the title holders in possession of the property and therefore the defendants in the suit shall not interfere with their peaceful possession and enjoyment of the property. The plaintiffs have also sought for a declaration to that effect. 2. Now the definite contention of the forest authorities is to the effect that it is a reserved forest and the plaint scheduled property comes within the reserved forest notified. It is specifically contended that the plaint scheduled property is a reserved forest land notified vide Notification 471 dated 30.10.1900 and renotified on 7.2.1926. It is also their specific contention that the department is bound to protect it as reserved forest land and the property comprised in R.S. 7 is reserved forest land and the FAO No.197/08 and Conn. Cases 2 western boundary is Mundayanthode and there is no private holding between the Mundayanthode and reserve forest. According to them the jandas were put a little bit inside the forest only to protect it from soil erosion on river banks etc. So the question that arises for determination in the case is whether the plaintiffs have got title to and possession over the property as contended by them and whether it is a part and parcel of the reserved forest as notified by the authorities. When the matter came up before the trial court, the trial court held that since the forest authorities has filed an affidavit contending that it is a part and parcel of the reserved forest, dismissed the suit as non-maintainable. It is against that decision, the appeals were preferred before the District Judge as AS 135, 134, 137 & 136 of 2003. The learned District Judge disposed of all these appeals on the ground that the dispute with respect to the land claimed can be agitated only before the Forest Tribunal and directed the Munsiff to return the plaints to the plaintiffs for presentation before the Forest Tribunal. It is against this decision, the appeals are preferred. 3. The substantial questions of law to be considered are as follows: a. Has not the court below erred in holding that the appellant- plaintiff has admitted that the civil court has no jurisdiction to try the dispute and thereby coming to the conclusion that the suit is not maintainable before the civil court? FAO No.197/08 and Conn. Cases 3 b. Has not the court below lost sight of the fact that the dispute to be resolved in the case is whether the disputed property is a Reserve Forest which has vested in the Government under The Kerala Forest Act, 1961? c. Is not the jurisdiction of the Forest Tribunal confined to adjudicate the disputes coming within the ambit of Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971? d. Has not the court below failed to take note of the fact that under Section 5 of the Kerala Forest Act, 1961, jurisdiction of the civil court to entertain any suit against the Government to establish any right in or over any land is barred only between the period of preliminary notification under Section 4 of the Act and the final notification under Section 19 of the Act? e. Is not the principle of exclusion of jurisdiction of a forum to be strictly construed? f. Has not the court below lost sight of the fact that consent or admission of the parties with respect to jurisdiction will not confer jurisdiction on a forum when there is an inherent lack of jurisdiction in such forum? 4. First let me consider the question regarding the reserved forest. The provisions governing the reserved forest are Sections 4, 5, 19 and 22 of The Kerala Forest Act, 1961. What is stated therein is that FAO No.197/08 and Conn. Cases 4 Government is competent to form any forest as a reserved forest and the land at the disposal of the Government is defined under section 2(g) of the Kerala Forest Act. As per Section 4, the Government can publish a notification in the gazette declaring that it is proposed to constitute such land as reserved forest. Section 5 deals with the bar of jurisdiction of the civil courts. It is stated that after the notification issued under section 4 and till a final decision is taken under section 19 of the Act declaring it as a reserved forest, the civil courts shall not entertain any litigation. Thereafter the Act provides the procedure to be followed by the forest officers and appeal is provided to the District court, High court etc. Ultimately under section 19 when that has become final, the Government can publish the notification in the gazette specifying the limits of the forest which is intended to be reserved. When such reserved forests are notified, nobody can acquire right on those properties. There is no other provision under the Kerala Forest Act 1961 dealing with the same. 5. Now, I may briefly refer to the Kerala Private Forest (Vesting and Assignment) Act ,1971. Under Section 3 the private forest shall vest in the Government on the date notified namely 10.5.1991. Section 8 deals with the question that when any dispute arises as to whether any land is a private forest or not or that any private forest or portion thereof has vested in the government shall be only tried by the Tribunal established under the Act for such decision. Section 13 of the Act specifically bars the jurisdiction FAO No.197/08 and Conn. Cases 5 of the civil court to determine any issues which is to be decided by the authority constituted under the Act. 6. I am afraid that the learned District Judge had some doubt in his mind regarding these two enactments. It appears from the judgment of learned Judge that the advocates also argued as if it will come under the Vesting Act, 1971. Whatever it may be, the question to be considered in these cases is whether the land over which the plaintiffs claim declaration and possession are their independent property or whether it forms part and parcel of the reserved forest notified by the Government right from 1900. When the answer is that it is not a reserved forest or it does not come under the notified area then necessarily the forest authorities will have nothing to do with the same. On the contra, if it is comprised in the reserved forest notified by the Government then necessarily the plaintiffs shall not have any right of title or possession over the same by operation of law. This is a matter which the court has to consider. So for that purpose a Commission may be necessary and the property has to be identified and demarcated with reference to the notification as well as with respect to the documents relied upon by the plaintiffs. Thereafter the court has to consider whether it forms part and parcel of the reserved forest or it is the individual property of the plaintiffs in the respective cases. So I answer the questions of law formulated as below. a. First question of law is that the civil court has no jurisdiction is FAO No.197/08 and Conn. Cases 6 not tenable. b. Second question of law requires real consideration by the court below to the effect that whether it is a part of the reserved forest or not. c. Third question of law that the matter has to be referred to be presented before the forest Tribunal is incorrect for the reason that nobody has got a case that it is a private forest. The other questions of law are not to be answered precisely for the reason that I have already held that the civil court has got jurisdiction and it is for the civil court to consider whether the disputed land is a land as claimed by the plaintiffs or forms a part and parcel of the reserved forest issued by the notification of the year 1900. So the judgments of the learned District Judge are set aside and the FAO are disposed of as follows: (i) Learned Munsiff shall issue a Commission and direct him to identify the property with reference to the title and possession of the plaintiffs as well as with reference to the Governmental notification as contended by the Government. (ii) Thereafter the learned Munsiff shall give sufficient opportunity to the parties to file objections, if any, to the Commissioner’s report and permit them to adduce documentary as well as oral evidence in support of their respective contentions to establish their respective cases. FAO No.197/08 and Conn. Cases 7 (iii) Till such time, the status quo as on today with respect to the property regarding cutting of trees should be maintained. (iv) Parties are directed to appear before the Munsiff, Manjeri on 27.8.08. On appearance of the parties, the Munsiff shall see that the matter is disposed of within a time frame of six months. M.N.KRISHNAN, JUDGE vps