IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 WA.No. 1522 of 2008 ------------------------------------ AGAINST THE JUDGEMENT IN WPC.21058/2008 Dated 14/07/2008 .................... APPELLANTS/ PETITIONERS: ----------------------------------------- 1. K.T. ASAINU, KIZHAKKETHALACKKAL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 2. MARIYA, W/O. HAMSA, MARAYICKAL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 3. HAIDRAS, PALLATH HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 4. MAMMAD, PALLATH HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 5. ALAVI, KARUVATHINGAL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 6. K.V. HAIDROS, KARUVATHINGAL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. W.A.NO.1522/2008 -2- 7. UNNEEN, NEELERI, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 8. AMINA, W/O. ALAVI, MALAYIL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 9. HAMSA HAJI, MALAYIL HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 10. MUHAMMED, PANJALI HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 11. MUHAMMED MOLLA, S/O. CHEKKU MOLLA, KUTTIKODAN HOUSE, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. 12. MUNDAN, S/O.KUTTIKODAN KOTHA, THAZHEKKOD AMSOM, AMMINIKKAD DESOM, PERINTHALMANNA TALUK. BY ADV. SRI.M.P.ASHOK KUMAR RESPONDENTS/RESPONDENTS: ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF CONSERVATOR OF FOREST, (ADMINISTRATION AND CUSTODIAN), FOREST DEPARTMENT, THIRUVANANTHAPURAM. W.A.NO.1522/2008 -3- 3. THE DIVISIONAL FOREST OFFICER, NILAMBOOR, MALAPPURAM DISTRICT. 4. THE DISTRICT COLLECTOR, MALAPPURAM. 5. THE TAHSILDAR, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT. R1 TO R5 BY SPECIAL GOVERNMENT PLEADER SRI.RANJIT THAMPAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/10/2008, ALONG WITH W.A.NO.1930/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ----------------------------------------------------- W.A.Nos.1522 of 2008 & 1930 of 2008 ---------------------------------------------- Dated, this the 13th day of October, 2008 JUDGMENT H.L.Dattu, C.J. Ext.P29 notification issued by Conservator of Forests and Custodian of Vested Forests, Olavakkode Circle under the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 was the subject matter of the writ petitions filed by the petitioners in W.P.(C) No.21058/2008 and W.P.(C) No.35770/2007. In the first case, the learned Single Judge, by his order dated 14.7.2008 and in the second case by his order dated 5.2.2008 has relegated the petitioners to approach the Tribunal, if they are aggrieved by the notification issued by the Conservator of Forests and Custodian of Vested Forests. It is the correctness or otherwise of the orders passed by the learned Single Judge is the subject matter of these writ appeals. 2. Sri.K.Ramakumar, learned senior counsel appearing for the appellants in W.A.No.1930/2008 and Sri.M.P.Ashok Kumar, learned counsel appearing for the appellants in W.A.No.1522/2008, would submit that, the learned Single Judge was not justified in directing the petitioners/appellants to approach the Tribunal if for any reason they are aggrieved by the notification issued by the Conservator of Forests and W.A.Nos.1522, 1930/2008 -2- Custodian of Vested Forests. According to the learned counsels, Section 8 of the Act provides the type of disputes that the Tribunal can decide and according to the learned counsels, the dispute that the petitioners have raised in the writ petitions as well as in the writ appeals cannot be decided by the Tribunal constituted under Section 7 of the Act. 3. Sri.K.Ramakumar, learned senior counsel would also submit, that, the respondents, without demarcation of the lands as required under Section 6 of the Act, could not have issued the impugned notification. In support of his contention, the learned counsel takes us through the provisions of Section 6 of the Act. 4. Sri.M.P.Ashok Kumar, learned counsel appearing for the appellants in W.A.No.1522/2008 would submit that, Section 7 of the Act provides for constitution of a Tribunal and Section 8 of the Act provides for matters which can be decided by the Tribunal and according to the learned counsel, the issues raised in the writ petitions cannot be decided by the Tribunal, and therefore, the learned Single Judge was not justified in directing the appellants to approach the Tribunal, if for any reason they are aggrieved by the notification issued by the Conservator of Forests and Custodian of Vested Forests. In support of his contention, Sri.M.P.Ashok Kumar, learned counsel relies on the observation made by a Division Bench of this Court in the case of State of Kerala Vs. W.A.Nos.1522, 1930/2008 -3- Komalavally (1995 (2) KLT 26). 5. The Preamble of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity and convenience, hereinafter referred to as “Act”) provides for vesting in the Government of private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation. The Act has come into force with effect from 10th day of May, 1971. The Act defines the expressions 'appointed day', 'owner', 'private forest', 'Tribunal' etc. The expression 'appointed day' means the 10th day of May, 1971. The expression 'owner' is defined under Section 2 ( c) of the Act to mean in relation to a private forest, includes a mortgagee, lessee or other person having right to possession and enjoyment of the private forest. 6. 'Private forest' is also defined under Section 2 (f) of the Act and the same is as under: (f) “Private forest” means:-- (1) In relation to the Malabar district referred to in sub- section (2) of Section 5 of the State Re-organisation Act, 1956 (Central Act 37 of 1956)-- (i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately W.A.Nos.1522, 1930/2008 -4- before the appointed day excluding:-- (A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964): (B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market. Explanation:-- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops; ( C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings; (ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas. (2) in relation to the remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas. Explanation:--For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs: 7. Section 2 (g) defines “Tribunal”. “Tribunal” means a Tribunal constituted under Section 7. W.A.Nos.1522, 1930/2008 -5- 8. Section 3 of the Act is a relevant section for the purpose of disposal of these appeals. The said section reads as under: 3. Private forests to vest in Government:-- (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-section (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. (2). Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. Explanation:--For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species. (3). Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not W.A.Nos.1522, 1930/2008 -6- exceed the extend of the ceiling are applicable to him under Section 82 of the said Act. (4). Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) of sub-section (3) be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act. 9. The section starts with a non-obstante clause. Subject to the provisions of sub-sections 2 and 3 with effect from the appointed day the ownership and possession of all private forests in the State of Kerala stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. 10. Sub section (2) of the Act carves out an exception. It says that nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable under the provisions of Kerala Land Reforms Act. 11. Section 4 of the Act provides for vesting of private forest to be deemed to be reserved forests. W.A.Nos.1522, 1930/2008 -7- 12. Section 6 of the Act provides for demarcation of boundaries. 13. Section 7 of the Act provides for Constitution of a Tribunal by the State Government by issuing appropriate notification. 14. Section 8 of the Act provides for settlement of disputes. Under the aforesaid section, the Tribunal can decide any dispute as to whether any land is a private forest or not or any private forest or portion thereof has vested in the State Government or not. If for any reason a person claims that the land is not a private forest or that the private forest is not vested in the Government may apply to the Tribunal for a decision of the dispute within the prescribed period. That only means that, if for any reason a person is of the opinion that his lands are not private forests and by issuing a notification the lands could not have been vested in the State Government, he can definitely raise a dispute before the Tribunal as provided under Section 8 of the Act. 15. In the instant case, a notification is issued by the State Government and in the notification it is stated that the lands of the petitioners stands vested with the State Government by virtue of the provisions of the Act. The stand of the petitioners before this Court is that the lands in question are not private forests and it is under their W.A.Nos.1522, 1930/2008 -8- personal cultivation and therefore the Act cannot be made applicable for them. In our opinion, this is a dispute and this dispute can be resolved by the Tribunal on a dispute raised by the parties. In that view of the matter, in our opinion, the learned Single Judge was justified in directing the petitioners if for any reason they are aggrieved by the impugned notification to approach the Tribunal by raising appropriate dispute. 16. Now we come to the contention of Sri.K.Ramakumar, learned senior counsel for the appellant in W.A.No.1930/2008. According to the learned senior counsel, without demarcation of the lands as required under Section 6 of the Act, the State Government should not have issued the impugned notification. In our opinion, the argument canvassed by the learned senior counsel is no more res integra, in view of what has been stated by the Apex Court in the case of State of Kerala and another Vs. Popular Estates and another, [(2004) 12 SCC 434). In the said decision, the Apex Court had at paragraphs 16 and 17 has stated that demarcation of forests under Section 6 is merely a consequential act and the vesting does not depend on the said act. 17. In view of the above discussion, in our opinion, the learned Single Judge has not committed any error whatsoever which W.A.Nos.1522, 1930/2008 -9- would call for our interference. Accordingly, while rejecting the writ appeals, we grant permission to the appellants herein to file appropriate applications before the Tribunal as provided under the Act within a month's time from today. If any dispute is raised within the time granted, the Tribunal shall decide the dispute in accordance with law, without reference to the period of limitation. 18. The interim order/status quo order passed by this Court shall continue for a further period of one month from today. Liberty is also reserved to the appellants/petitioners, if they so desire, to make appropriate applications for appropriate orders before the Tribunal. All the other contentions of the parties are left open. 16. I.A.No.858/2008 in W.A.No.1522/2008 is closed. Ordered accordingly. (H.L.DATTU) CHIEF JUSTICE (A.K.BASHEER) JUDGE MS/dk.