IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH SEPTEMBER 2009 / 16TH BHADRA 1931 OP.No. 8453 of 2001(F) --------------------------------- PETITIONER(S): ---------------------- MOHAMMED KHANI, S/O.ASSANAR RAWTHER, VADUKATHARA, PUTHIYANKOM POST, ALATHUR TALUK, PALAKKAD DISTRICT. BY ADV. MR.SAJAN VARGHEESE K. RESPONDENT(S): -------------------------- 1. THE CONSERVATOR OF FORESTS & CUSTODIAN OF VESTED FORESTS, OLAVAKKODE CIRCLE, PALAKKAD. 2. THE DIVISIONAL FOREST OFFICER, NEMMARA, PALAKKAD. *ADDL. R3 TO R10 ARE IMPLEADED. 3. UMMA SALAMBI, W/O. SHEIK MUHAMMED RAWTHER, NOOLIDAMPARA, MANJALOOR, ALATHUR. 4. NIZAMUDHEEN, S/O. SHEIK MUHAMMED, DO. DO. 5. MIRSHAD BEEGUM, DO. DO. 6. ABDUL LATHIF, FO. DO. 7. MUHAMMED SHERIEF, DO. DO. 8. MUHAMMED RAFI, DO. DO. 9. JAHEER HUSSAIN, DO. DO. 10. ZAINABI, DO. DO. *ADDL. R3 TO R10 ARE IMPLEADED AS PER ORDER DT. 07.09.2009 IN IA. NO.2726/2006 R1 & R2 BY GOVERNMENT PLEADER R3 TO R10 BY ADV. MR.JACOB SEBASTIAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 07/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON IA. NO.929/2005 IN OP. NO.8453/2001 DISMISSED 07.09.2009 SD/- S.SIRI JAGAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 17.7.1979 PASSED IN O.A. NO.207/1976 ON THE FILE OF FOREST TRIBUNAL, PALAKKAD. P2:- COPY OF THE DEED NO.296/1981 OF KUZHALMANNAM S.R.O. P3:- COPY OF THE DOCUMENT NO.466/1982 OF KUZHALMANNAM S.R.O. P4:- COPY OF THE NOTICE DTD. 27.11.1997 ISSUED BY THE 2ND RESPONDENT. P5:- COPY OF THE REPRESENTATION DTD. 14.8.2000 FROM THE PETITIONER TO THE RESPONDENTS. P6:- COPY OF THE FEW POSTAL ACKNOWLEDGMENT CARDS SHOWING SERVICE OF EXT.P5 TO THE PETITIONERS IN EXT.P1. P7:- COPY OF THE COMMUNICATION DTD. 7.12.2000 SENT BY THE IST RESPONDENT TO THE PETITIONER. TRUE COPY P.S. TO JUDGE tss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 8453 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 7th September, 2009. J U D G M E N T This matter relates to restoration of possession of certain properties, which were taken over as vested in the State of Kerala under the Kerala Private Forests (Vesting and Assignment) Act. The same was taken over from one Sri. K.M. Saidappa Rawther, who is no more. He originally filed O.A. No. 207/1976 before the Forest Tribunal, Palakkad challenging the orders of vesting. After his death, his legal heirs came on record to prosecute the O.A. Ultimately, the O.A was allowed and the land in question was directed to be restored to the petitioners in the O.A. The original owners sold the property and from the assignees, the petitioner purchased the same by Ext. P3 sale deed. Thereafter, the petitioner sought restoration of possession of the property in terms of Ext. P1 order of the Forest Tribunal. That was rejected by Ext. P7 order by the 1st respondent on the ground that the property can be restored only to the petitioner in the O.A or his legal heirs and not to subsequent purchasers. It is under the above circumstances, the petitioner has approached this Court seeking the following reliefs: “(i) call for the records relating to Ext. P7. ii) issue a writ of certiorari or other appropriate writ, order or direction quashing the communication Ext. P7. (iii) issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to handover possession of the property dealt with in Ext. P1 to the petitioner herein forthwith.” 2. The respondents contest the original petition on two grounds. First is that as per Section 8(3)(b) of the Kerala Private Forests (Vesting and Assignment) Act, possession can be restored only to the O.P. No. 8453/01 -: 2 :- person in possession immediately before the appointed day and not to anybody else. The second is that subsequently, the land has been notified under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Ordinance, which has subsequently become an Act and therefore the property cannot be restored to the petitioner in any event. 3. I have considered the rival contentions in detail. 4. The question as to whether the land exempted from the purview of the Kerala Private Forests (Vesting and Assignment) Act can be be restored to subsequent purchaser had been the subject matter of a decision by this Court in O.P.No.6688/2003, in which a learned Judge of this Court had held as follows: “3. Heard the learned counsel on both sides. Restoration is resisted by the official respondents, relying on Section 8(3) of the Act. The said provision reads as follows: “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 (a) No appeal has been preferred against the decision of the Tribunal within the period specified therefor; or (b) such appeal having been preferred has been dismissed by the High Court, 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.” Going by the said Section, the land can be restored only to the original applicant. But, by way of concession, they are willing to hand it over to the legal heirs. They are not willing to deliver possession of the property to the assignees of the original applicant. I feel that the above stand taken by the respondents is plainly perverse. If the literal interpretation is accepted, then the custodian will have to go the heavenly abode of Venkitachala Patter to hand over the property to him, as no one else is entitled to get possession of the property. By Ext. P1 deed, the petitioners O.P. No. 8453/01 -: 3 :- have obtained all the rights of Venkitachala Patter in the property. Therefore, they are entitled to get restoration of the property. It is declared so. Respondents 1 to 3 are directed to deliver possession of the property, covered By Ext. P 2, to the petitioners within three months from the date of production of a copy of this judgment.” I fully agree with that decision. Therefore, the respondents cannot now take the stand that the property cannot be restored to the petitioner since he is only a subsequent assignee of the land. 5. However, even then, in view of the subsequent developments, I do not think that I can direct the respondents to restore possession to the petitioner, insofar as a notification has been issued under the Ordinance, which was subsequently become an Act. Therefore, I dispose of this original petition without prejudice to the right of the petitioner to workout his remedies against the notification under the Kerala Forests (Vesting and Management of Ecologically Fragile Lands) Act before the appropriate forum as envisaged under the Act, with the finding that if the petitioner succeeds in the proceedings under that Act, the fact that he is a subsequent purchaser shall not be a ground to deny restoration of the land to him. Sd/- S. Siri Jagan, Judge. Tds/