IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 20TH FEBRUARY 2009 / 1ST PHALGUNA 1930 MFA.No. 8 of 2004(E) -------------------- OA.61/1999 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANTS/ RESPONDENTS: ------------------- 1. THE STATE OF KERALA, GOVT.OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT. BY SPL.GOVERNMENT PLEADER, SRI.M.P.PRAKASH (FORESTS) RESPONDENT/ APPLICANT: ------------------------ A.MEERAN SAHIB, S/O. MUTHUKUTTY @ AHAMMEDKUTTY, THENODE HOUSE, VAVULLIYAPURAM, THARUR-II VILLAGE, KAVASSERI. ADV. SRI.P.VIJAYA BHANU FOR R1 SRI.BIJU ZACHARIA. M FOR R1 THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20/2/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ------------------------------ M.F.A.No.8 OF 2004 ------------------------------- Dated this the 20th day of February, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents, in O.A.No.61/99 before the Forest Tribunal, Kozhikode, are the appellants. The respondent herein was the applicant. 2. The brief facts of the case are the following: The property scheduled to the Original Application originally belonged to Poovullimana. The applicant's father got it along with other properties under Kanam Karippanayam as per a registered document bearing number 650/1947 of Sub Registrar's Officer, Alathur. The applicant's parents died, while he was a minor. All the legal heirs of his parents being minors, all the properties, including the scheduled property, were being managed by the paternal uncles of the petitioner. When they started holding the said property as their own property, the applicant filed O.S.No.56/1975 before the Sub Court, Palakkad, M.F.A. No.8/2004 2 seeking recovery of possession and partition. The suit was decreed. Ext.A2 is the final decree in the said suit. The scheduled property was allotted to his share. It was never a private forest and there was no notification covering the property concerned. While so, the officials of the forest department interfered with the possession and cultivation of the property by him in 1999. Therefore, the Original Application was filed on the above pleadings, seeking reliefs stated therein. 3. The respondents resisted the application by filing a counter affidavit. According to them, it is a private forest, which is part of Chaprakkunnu Malavaram comprised in VFC item No.245 and the notification covering the property was published on 10.10.1979 after demarcating the same during 1975-76. The notification was published as required under the rules. The present application is therefore barred by limitation. The State was not a party to O.S.No.56/1975, therefore the decree therein will not bind the State. The scheduled property was never brought under cultivation. There is luxurious tree growth there. So, they prayed for dismissal of the application. M.F.A. No.8/2004 3 4. The Tribunal found that the application is not barred by limitation. It was also found that the scheduled property is not private forest. 5. In fact, the applicant claimed that the scheduled property was not private forest. Alternatively, it was pleaded that if it is private forest, he is entitled to get exemption under Section 3(2) & (3) of the Kerala Private Forests (Vesting and Assignment) Act 1971 (hereinafter referred to as “the Act”). Since the Tribunal found that the disputed property is not private forest, it did not consider whether the applicant is entitled to get the benefit of sub-sections (2) & (3) of Section 3 of the Act. 6. We heard the learned Special Government Pleader for the appellants and also the learned counsel for the respondent. We were taken through the evidence in this case, which consists of the oral evidence of PWs 1 and 2 from the side of the applicant and RW1 from the side of the respondents. From the side of the applicant Exts.A1 to A6 were marked and from the side of the M.F.A. No.8/2004 4 respondents B1 and B2 were also marked. Apart from them, Ext.C1, Commissioner's report and Ext.C2, plan prepared by the Commissioner, were also marked. 7. The total extent of the property covered by the schedule is 4.65 acres in Re-survey No.75/IB 3. Going by the schedule to Ext.A2, it is clear that the disputed property is described under the heading of vested forest. Ext.A2 being a decree in the suit filed by the applicant, we are of the view that the applicant cannot be heard to say that the said property is not private forest covered by the Act. Therefore, the finding of the Tribunal on that point is liable to be set aside and we do so. The next point to be considered is whether the applicant is entitled to get the protection available under Sub-sections 2 & 3 of Section 3 of the Act. We notice that the Tribunal has not considered the above point. Therefore, the matter requires to be remitted to the Tribunal for fresh consideration of the matter, in accordance with law. The learned Government Pleader has got a case that the Tribunal has not entered a finding that the disputed property is part of the scheduled property in Ext.A1. If the said point is M.F.A. No.8/2004 5 raised by the State before the Tribunal, the Tribunal shall reconsider the said aspect also, based on the evidence on record. In the result, the Miscellaneous First Appeal is allowed. The order of the Forest Tribunal, in O.A.No.61/99 dated 14.5.2002, is set aside and the matter is remitted to the Tribunal for fresh disposal, in accordance with law, in the light of the observations made herein above. The Tribunal shall endeavour to dispose of the matter, as expeditiously as possible. (K.BALAKRISHNAN NAIR, JUDGE) (M.L.JOSEPH FRANCIS, JUDGE) ps