Rajan vs Custodian of Vested Forest and Chief Forest Conservator

RAJAN vs Custodian of Vested Forest and Chief Forest Conservator

Type Court Judgment Court Kerala Decided Apr 09, 2021

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Citation: sooperkanoon.com/1706774
Court: Kerala High Court
Judge: Honourable Mr. Justice P.B.Suresh Kumar
Decided On: Apr 09, 2021
Case Number: WP(C)/18889/2017

Parties & Advocates

Appellant / Petitioner

RAJAN

Respondent

Custodian of Vested Forest and Chief Forest Conservator

Excerpt

.....order of the forest tribunal, the property can be formally restored to the petitioner forthwith.5. in reply to the submission made by the learnedspecial government pleader as regards the property covered by ext.p6 order, the learned counsel for the petitioner submitted that the petitioner is prepared to accept 3.23 acres of property covered by ext.p17 order in compliance of the direction contained in ext.p6 order of the forest tribunal. if that be so, there cannot be any impediment at all for the official respondents in preparing a mahazar for the purpose of w.p.(c) no.18889 of 2017 ..7.. enabling the petitioner to make use of the property as its full owner.6. as regards the properties covered by ext.p1order, the learned counsel for the petitioner relies on section 8(3)(b) of the act to contend that being a person in lawful possession of the property, he is entitled to formally receive back the property. section 8(3) of the act reads thus: “8. settlement of disputes. xxxxx xxxxxxxxxx(3) 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 beendismissed 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.”w.p.(c) no.18889 of 2017 ..8.. going by the provision aforesaid, the person entitled torestoration is the person who was in possession before the appointed day, viz, 10.05.1971. admittedly, the father of the petitioner was in possession of the property before the appointed day. since the father of the petitioner was.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943 WP(C).No.18889 OF 2017(I) PETITIONER: RAJAN, S/O.KOMBAN, VATTAKATTUPARAMBIL HOUSE,MALAMPADATHU, KUTHANOOR AMSOM, ERUMAYOOR PO,ALATHUR TALUK, PALAKKAD-678 546. BY ADV. SRI.P.BABU KUMAR RESPONDENTS:
1 CUSTODIAN OF VESTED FOREST AND CHIEF FOREST CONSERVATOR EASTERN CIRCLE, OLAVAKKODE, PALAKKAD-678 002. 2 ASST. DIRECTOR FOREST MINI SURVEY, VANASHREE, ARAKKINAR PO, MANTHOTTAM, KOZHIKODE DISTRICT-673 028. 3 ADDL.TAHZILDAR TALUK OFFICE, ALATHUR PO,ALATHUR TALUK, PALAKKAD-678 541. 4 THE SUPREND OF SURVEY OFFICE OF THE SUPERINTENDENT OF SURVEY, CIVIL STATION, PALAKKAD-678 001. 5 THE DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, NENMARA PO, CHITTOOR TALUK, PALAKKAD-678 508. 6 TALUK SURVEYOR TALUK OFFICE, ALATHUR-678 541.
W.P.(C) No.18889 of 2017 ..2.. 7 ADDL.R7. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 8 ADDL.R8. THE DIRECTOR, SURVEY BHAVAN, COTTON HILL ROAD, VAZHUTHAKKAD, THIRUVANANTHAPURAM-695 014. 9 ADDL. CHIEF SECRETARY, FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1-6 BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) SRI. MANURAJ GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.18889 of 2017 ..3.. W.P.(C) No.18889 of 2017 --------------------------------------

JUDGMENT

The deceased father of the petitioner was holding

three items of properties. When the Kerala Private Forests (Vesting and Assignment) Act, 1971 (the Act) came into force, there was a dispute as to whether those three items of properties have been vested with the Government in terms of the provisions of the Act. The father of the petitioner, in the circumstances, instituted O.A.No.860 of 1975 before the Forest Tribunal, Palakkad claiming exemption of the said properties in

terms of the provisions of the Act. As per Ext.P1 order, the claim of the father of the petitioner for exemption of the properties was allowed. The case set out by the petitioner in the writ petition is that though the properties devolved on him on the death of his father and he is in possession of the same, since the properties are not formally restored to him pursuant

W.P.(C) No.18889 of 2017 ..4.. to Ext.P1 order by preparing a mahazar, he is unable to enjoy the properties by effecting mutation in the revenue records. The petitioner therefore, seeks appropriate directions in this regard in the writ petition as far as the said three items of properties are concerned.

2. Another grievance voiced by the petitioner in the writ petition is that he obtained Ext.P6 order from the

Forest Tribunal, Kozhikode in O.A.No.62 of 1991, in terms of which the Forest Tribunal declared that an item of property of the petitioner is not a vested forest. It is alleged by the petitioner that he is unable to enjoy the property covered by Ext.P6 order also, as the property covered by the order is not formally restored to him pursuant to Ext.P6 order by preparing

a mahazar. The petitioner, therefore, seeks appropriate directions in respect of the said property also in this proceedings.

3. The learned Special Government Pleader (Forests) pointed out that as stated by the petitioner, the W.P.(C) No.18889 of 2017 ..5..

properties covered by Ext.P1 order were originally held by the father of the petitioner and since he died after Ext.P1 order, the properties can be restored only to the legal representatives and though the petitioner was directed to make available the consent letters of the remaining legal representatives of his deceased father, the petitioner is taking the stand that the properties devolved on him exclusively in terms of a Will executed by his father and that the consent letter of other legal representatives cannot therefore, be insisted by the respondents for restoring the properties. According to the learned Special Government Pleader, the respondents cannot adjudicate the title of the petitioner over the properties covered by Ext.P1 order on the strength of the Will set up by the petitioner and it is on account of the said reason that the properties covered by Ext.P1 order have not been formally restored.

4. As regards the property covered by Ext.P6 order, the learned Special Government Pleader pointed out that W.P.(C) No.18889 of 2017 ..6..

though the schedule of the property in Ext.P6 order indicates that the total extent of the property is 3.26 acres, on measurement, it was found that the extent is only 3.23 acres and a restoration order has already been passed in respect of 3.23 acres of land. Ext.P17 is the restoration order issued by the competent authority in this regard. It was pointed out that if the petitioner is prepared to accept the said 3.23 acres of property in compliance of Ext.P6 order of the Forest Tribunal, the property can be formally restored to the petitioner forthwith.

5. In reply to the submission made by the learned

Special Government Pleader as regards the property covered by Ext.P6 order, the learned counsel for the petitioner submitted that the petitioner is prepared to accept 3.23 acres of property covered by Ext.P17 order in compliance of the direction contained in Ext.P6 order of the Forest Tribunal. If that be so, there cannot be any impediment at all for the official respondents in preparing a mahazar for the purpose of W.P.(C) No.18889 of 2017 ..7.. enabling the petitioner to make use of the property as its full owner.

6. As regards the properties covered by Ext.P1

order, the learned counsel for the petitioner relies on Section 8(3)(b) of the Act to contend that being a person in lawful possession of the property, he is entitled to formally receive back the property. Section 8(3) of the Act reads thus: “8. Settlement of disputes. xxxxx xxxxxxxxxx

(3) 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.”

W.P.(C) No.18889 of 2017 ..8.. Going by the provision aforesaid, the person entitled to

restoration is the person who was in possession before the appointed day, viz, 10.05.1971. Admittedly, the father of the petitioner was in possession of the property before the appointed day. Since the father of the petitioner was in possession of the property before the appointed day, according to me, going by the said provision, only the father is entitled to possession and insofar the father is no more, only the legal representatives of the father are entitled to possession. The stand taken by the official respondents that the consent of the

remaining legal representatives of the deceased father is required for the purpose of formally handing over possession of the property to the petitioner is therefore, in order. In the result, the writ petition is disposed of directing the competent among the respondents to formally restore the property covered by Ext.P6 order as also Ext.P17 proceedings forthwith, by preparing a mahazar in respect of the 3.23 acres of property mentioned in Ext.P17 proceedings W.P.(C) No.18889 of 2017 ..9..

so as to enable the petitioner to enjoy the same as its full owner after effecting mutation of the property in the revenue records. There will be a direction to the revenue officials also to effect mutation in respect of the property in the name of the petitioner. This shall be done within two months. As far as the properties covered by Ext.P1 are concerned, the petitioner is free to make available the consent letters of other legal representatives of the deceased father and in that event, the

official respondents shall restore the properties to the petitioner as directed in the case of the property covered by Ext.P6 order, after ensuring the correctness of the same.

Sd/- P.B.SURESH KUMAR JUDGE ds 09.04.2021 W.P.(C) No.18889 of 2017 ..10.. APPENDIX OF WP(C) 18889/2017 PETITIONER'S/S EXHIBITS: EXHIBIT P1 : TRUE PHOTOCOPY OF THE ORDER IN OA NO.860/75 OF FOREST TRIBUNAL PALAKKAD DATED 22-6-2016. EXHIBIT P2 : TRUE PHOTOCOPY OF THE INTIMATION ISSUED BY THE 5TH RESPONDENT DATED 27- 5-1995 EXHIBIT P3 : TRUE PHOTOCOPY OF THE ATTESTED SIGNATURE BEFORE THE 5TH RESPONDENT. EXHIBIT P4 : TRUE PHOTOCOPY OF THE ATTESTED PASSPORT SIZE PHOTOGRAPH BEFORE THE 5TH RESPONDENT DATED 2-6-1995. EXHIBIT P5 : TRUE PHOTOCOPY OF THE SURVEY SKETCH PREPARED BY THE ASST. DIRECTOR OF SURVEY, FOREST MINI SURVEY, THIRUVANANTHAPURAM. EXHIBIT P6 : TRUE PHOTOCOPY OF THE ORDER IN OA NO.62/91 BEFORE THE FOREST TRIBUNAL KOZHIKODE DATED 26-3-93. EXHIBIT P7 : TRUE PHOTOCOPY OF THE JUDGMENT IN MFA NO.1178/93 OF THIS HON'BLE COURT DATED 18-12-2000. EXHIBIT P8 : TRUE PHOTOCOPY OF THE JUDGMENT IN OS NO.108/94 DATED 11-7-2001. EXHIBIT P9 : TRUE PHOTOCOPY OF THE SKETCH PREPARED BY THE FOREST DEPARTMENT. W.P.(C) No.18889 of 2017 ..11.. EXHIBIT P10 TRUE PHOTOCOPY OF THE ORDER DATED 21.07.2017 IN WPC 18899/2017 EXHIBIT P11 TRUE PHOTOCOPY OF THE REGISTERED WILL DATED 08.01.1979. EXHIBIT P12 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE DATED 7.4.1987 EXHIBIT P13 TRUE PHOTOCOPY OF THE JUDGMENT IN W.P.

EXHIBIT P14 TRUE PHOTOCOPY OF THE CASE DETAILS

ISSUED FROM THE ENQUIRY COUNTER OF THIS HONOURABLE COURT DATED NIL EXHIBIT P15 TRUE PHOTOCOPY OF THE ADVOCATE COMMISSION REPORT DATED 1.07.1994. EXHIBIT P16 TRUE PHOTOCOPY OF THE ORDER DATED 10.3.2020 OF THE ADDL. CHIEF SECRETARY. EXHIBIT P17 TRUE PHOTOCOPY OF THE ORDER DATED 1.03.2020 OF THE CUSTODIAN OF VESTED FOREST. EXHIBIT P18 TRUE PHOTOCOPY OF THE MODEL FORM OF THE INDEMNITY BOND HANDED OVER TO THE PETITIONER.

Same Court & Year Kerala · 2021 Same Parties RAJAN vs Custodian of Vested Forest and Chief Forest Conservator Same Judge Honourable Mr. Justice P.B.Suresh Kumar