IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 33748 of 2009(K) ------------------------------------------ PETITIONER(S): --------------------------- V. KOMALAVALLY NETHIAR, AGED 42 YEARS, W/O. GOPALAN NAIR, KAMMUNDA HOUSE, VALAD, THALAPUZHA, MANNATHAVADY, WAYANAD. BY ADV.MR.SHAJI JOSEPH RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, FOREST AND WILD LIFE (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, OFFICE OF THE DIVISIONAL FOREST OFFICER, MANANTHAVADI, WAYANAD. R1 & R2 BY GOVERNMENT PLEADER MR. K. SANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON 1/03/2010 DELIVERED THE FOLLOWING: Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 33748 of 2009-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010. JUDGMENT Aggrieved by Ext.P2 notification issued under Kerala Private Forest vesting and Assignment Act, 1971 and the order passed by the Government, Ext.P3, by which the Government rejected the request of the petitioner to exclude the petitioner’s property from the notification, this writ petition has been filed. 2. By Ext.P3, the Government took the view that the remedy of the petitioner is only under Section 8(1) of the Kerala Private Forest (Vesting & Assignment) Act, to approach the Forest Tribunal if the person claims that the land is not a private forest or that the private land has not vested in Government. 3. According to the petitioner, 10 acres of land comprised in R.S. No.240 of Valad Village was obtained by her as per Ext.P1 partition deed of the year 1972. Ext.P1(a) is the document No.258/1910 by which the petitioner’s predecessor in title Shri Ananthan @ Moopile Nair obtained various items of properties. According to the petitioner, Ext.P2 notification dated 8.7.1977 adversely affected her right and she could not challenge it at wpc 33748/2009 2 the appropriate time, since she was a minor. It is averred that her property is cultivated with coffee, pepper, etc. 4. Heard learned counsel for the petitioner and learned Govt. Pleader. In the counter affidavit filed by the second respondent, the averment that the property is in the possession of the petitioner, is denied. It is averred that the notification is dated 8.7.1977, wherein item No.90 is the property claimed by the petitioner. It was taken over by the Forest Department under the provisions of the Act and now it is under the possession and control of the Government from the date of notification. It is further pointed out that the writ petition is filed after a long delay of 32 years and therefore the same cannot be entertained in view of the inordinate delay. It also stated that the petitioner’s remedy was to approach the Tribunal. 5. In the reply affidavit, the petitioner contends for the position that the petitioner has got a remedy under the Kerala Private Forests (Exemption from Vesting) Rules, 1974 which was not considered by the Government. 6. Learned counsel for the petitioner submitted that the petitioner may be allowed to move the Custodian under the Kerala Private Forests (Exemption from Vesting) Rules, 1974. Learned Govt. Pleader contended that in the light of the Kerala Private Forests (Tribunal) Rules, 1972 no wpc 33748/2009 3 application seeking exemption can be considered by the Custodian now, as the remedy was to approach the Tribunal at the relevant time. 7. True that Rule 3 of the Kerala Private Forests (Exemption from Vesting) Rules, 1974 provides a remedy to the person who claims exemption, by filing an application before the Custodian. It is specified in Rule 3(b) itself that the application shall be filed on or before the 25th August, 1974 in Form No.1. In that view of the matter itself, the rule cannot be invoked at this distance of time. In the decision of this Court in O.P.No.13710/97, it was held by this Court that “any power to entertain an application under that rule cannot be exercised after a demarcation has been made and notified on the terms of Rule 2A of the Vesting Rules— Jurisdiction to decide whether an owner of a land is entitled to have exemption either under Section 3(2) or under Section 3(3) of the Vesting Act, is solely with the Tribunal.” 8. Learned Govt. Pleader pointed out that even under the Kerala Private Forests (Tribunal) Rules, the petitioner has to file application before the Tribunal within sixty days from 6th August, 1981 or from the date of publication of the notification under sub-rule (2) of Rule 2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974 in respect of the land to which the dispute relates, whichever is later, and as the said period is wpc 33748/2009 4 over, the remedy of the petitioner is no longer subsists. Hence, the petitioner cannot, at this distance of time, move the Tribunal also. The writ petition is filed three decades after the notification. In that view of the matter, the writ petition fails and the same is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/