IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 11TH NOVEMBER 2009 / 20TH KARTHIKA 1931 RP.No. 375 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN MFA.343/2003 Dated 02/01/2009 .................... REVIEW PETITIONER(S): APPELLANT ------------------------------- V.S.JOSEPH, S/O.SEBASTIAN, VELUMANNIL, VAKERI P.O., SULTHAN BATHERI, WAYANADU DISTRICT. BY ADV. SRI.V.V.SURENDRAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM. 2. THE CUSTODIAN OF VESTED FOREST, OLAVAKKODE, PALAKKAD. SPL.GOVT. PLEADER(FOREST)SRI. M.P. PRAKASH THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- R. P. No. 375 OF 2009 in M. F. A. No. 343 of 2003 -------------------------------------------- Dated this the 11th day of November, 2009 O R D E R Ramachandran Nair, J. Review Petition is filed to review the judgment in M.F.A. wherein this Court has confirmed the finding of the Forest Tribunal that entire 1.67 acres of land claimed by the review petitioner is vested forest. Since the finding of the Tribunal confirmed by this Court was based on data gathered by the Commissioner on inspection and based on information available in the Commissioner's report which was controverted by the review petitioner, we sought a report from the Divisional Forest Officer, pertaining to the present condition of the property. The Divisional Forest Officer has filed a detailed report with a sketch showing the location of the review petitioner's property with reference to the property of other land owners. It is seen from the report of the DFO that out of 1.67 acres of land claimed by the review petitioner only 67 cents stand cultivated with arecanut, coconut, coffee, 2 teak, etc. The balance 1 acre is seen cultivated with teak trees which are around 49 years old. Besides this there are various trees in the one acre of land which are Karimaruthu, Thanni, Veetti, Venga, Vellachadachi, etc. It is seen from the order of the Forest Tribunal that it has also noted the availability of a house in the 67 cents of property cultivated by the review petitioner. However, in the absence of any records pertaining to old number given to the building prior to renumbering made in 1980s, the Tribunal concluded that the building would have been constructed after the appointed day, that is, 10.5.1971. So far as the age of the cultivated plants like coffee, arecanut, coconut, etc., we notice that the Tribunal has made an estimation about probable year of planting and concluded that crop would have been raised by the review petitioner after the vesting by the operation of the statute. Counsel for the review petitioner submitted that forest department has not raised any claim of vesting in respect of balance property, which is 1.33 acres, sold by the review petitioner to one Sri. Sukumaran. Besides he has pointed out that property is surrounded by roads and on the north one Sukumaran is residing in the property sold by the review petitioner, which was part of 3 acres of land in respect of which he obtained patta. 3 The latest sketch produced by the DFO along with his report shows that the factual position stated by the review petitioner is correct. Beyond Sukumaran's property, the property belongs to one Pulikunnel Gopi and on the eastern side the property belongs to one Khader and Moodakutty. It is a fact that petitioner is residing in the house with his family where he has electricity connection and telephone connection. Neighbouring properties are occupied by other persons against whose property forest department has no claim of vesting. We are of the view that the Tribunal dismissed the claim petition and this Court confirmed it only based on the conclusion drawn about the date of completion of construction of the house and the cultivation of the property. In fact, patta applied for by the petitioner was also granted by the Tribunal and department has no contest against the character of 1.33 acres of land sold by the petitioner from out of the very same property covered by the very same patta. Even though learned Spl. Government Pleader contended that the patta granted will not bind the forest department, and will not go against operation of the Private Forest Vesting and Assignment Act, we feel on facts review petitioner has a case for 67 cents of land, which stand distinguished from the remaining one acre of 4 land, which is covered by forest trees and teak trees whether planted or or spontaneous growth. On the facts stated above, we are of the view that the judgment of this Court confirming the award of the Tribunal requires modification in respect of 67 cents of land referred above and marked in the sketch prepared and produced by the DFO. We therefore allow the review petition in part by declaring that 67 cents of land marked in the sketch prepared and produced by the DFO is not vested forest, which the review petitioner is entitled to retain. However, the one acre of land which has forest trees as well as planted trees, will continue to be treated as vested forest. The Custodian of Vested Forests will mark the boundaries, if the boundaries are not clear, so that there will not be any further encrochment of forest land. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 5