John v. State of Kerala — 1995 DIGILAW 9 (KER)

Judgment :- Petitioner No.1 is the husband of one Annamma Kurian. The petitioners claim that along with nine others they purchased a total extent of 334 acres of un surveyed land in Ernad Taluk that belonged to Ayiramnazhi Kovilakam. The said 334 acres were private forests and vested in the Government under S.3 of the Kerala Private Forests (Vesting and assignment) Act, 1971, hereinafter called the 'Vesting Act'. That the lands were forests that vested in the State, is clear from the allegations in the Original Petition and especially from the allegations in para.30 thereof. This is also clear from the fact that Annamma Kurian and petitioner No. 2 approached the Forest Tribunal under S.8 of the Vesting Act and the said applications were dismissed. The appeals filed by Annamma Kurian and petitioner No. 2 before this court under S.8A of the Vesting Act was also dismissed by this court by judgment dated 24-7-1984. These facts are pleaded in para.31 of the Original Petition. It is therefore clear that the subject matter of this Original Petition arc lands which are vested in the State under S.3 of the Vesting Act, 2. The petitioners have approached this court praying for the issue of a writ of mandamus directing respondent No. 4 to submit a report to respondent No. 3 in compliance with the alleged direction issued by respondent No. 3. There is also a prayer for direction to respondent No. 3 to restore possession of an extent of properties to petitioner No. I (presumably since Annamma Kurian is dead) and another extent to petitioner No. 2, on the basis of a survey plan, which has been submitted by a Surveyor attached to the office of the 41h respondent and for issue of a further direction to the 3rd respondent to initiate action against the 4th respondent for not complying with the directions of the 3rd respondent. In effect, what the petitioners seek is a direction to be issued to the Conservator of Forests and Custodian of Vested Forests to restore to them an extent of 50 acres of Private forests that have vested in the State under S.3 of the Vesting Act. In effect, what the petitioners seek is a direction to be issued to the Conservator of Forests and Custodian of Vested Forests to restore to them an extent of 50 acres of Private forests that have vested in the State under S.3 of the Vesting Act. It is seen that the petitioners have made representations to the Minister for Forests in an attempt to get relief and their complaint appears to be that action is not being taken in the light of their representations before the Minister. It has also to be noted that the petitioners have no case that the lands were not surveyed as private forests under the Vesting Act or that they have applied in time and at the time of the survey under the Kerala Private Forests (Exemption from Vesting) rules, 1974 even assuming that the said Rules can have any application to a case like the present. 3. The petitioners mainly relied on Ext. P1 executive order stated to have been issued by the Government enabling production of what is called corroborative evidence like tax receipts, patta chits, panchayat registration, records showing purchase of land from jenmi or any oilier documentary evidence to be accepted as sufficient proof to establish that land is in the occupation of a person from a date prior to 1-1-1977. In my view, Ext. P1 Government Order cannot affect a forest which has vested in the Government under S.5 of the Vesting Act. It cannot certainly apply to a case, where a claim had been made under S.8 of the Vesting Act and the said claim had been rejected by the Forest Tribunal constituted under that Act. In this case, admittedly Annamma Kurian and petitioner No. 2 had approached the Forest Tribunal and their applications had been rejected. They had also filed appeals before this Court as M.F.A.Nos. 316/84 and 319/94 which had been dismissed by this court by judgment dated 24-7-1984. The order Ext. P1 in my view cannot prevail over the orders of the Forest Tribunal in the present case. Moreover, Ext. P1 only says that certain documents can be considered as evidence of occupation. Any occupation so called, of a private forest that has vested is of no avail to bring about a divesting of the forest lands. 4. The order Ext. P1 in my view cannot prevail over the orders of the Forest Tribunal in the present case. Moreover, Ext. P1 only says that certain documents can be considered as evidence of occupation. Any occupation so called, of a private forest that has vested is of no avail to bring about a divesting of the forest lands. 4. That apart, the vesting of private forests in the State has occurred under a statute enacted for that purpose. By S.3(1) of the Vesting Act, a statutory vesting of all forest lands coming within that Act is postulated and this vesting is notwithstanding anything contained in any other law for the time being in force. The said vesting also extinguishes the interests of the owner or any other person in any private forest. In the face of this statutory vesting the only method prescribed by the Vesting Act is for a person to approach the Forest Tribunal constituted under the Act by invoking S.8 of that Act and to gel an adjudication as to whether the land held by him on the appointed day was a private forest or not. Of course, an exemption even in respect of private forests in certain cases is also provided for by S.3(2) of the Act. The question whether the land is liable to be excluded from vesting has also to be decided only by the Forest Tribunal on the scheme of the Vesting Act. In that view, the Government order Ext. P1 cannot prevail over the statutory vesting or enable any authority to recognise a claim in respect of a private forest which comes with in the purview of the Vesting Act. There is no power in the executive to lake the land out of the vesting provided by the Vesting Act. An order like Ext. P1 cannot in any way affect the consequences brought about by the Vesting Act. In that view, I have no doubt that the petitioners cannot invoke Ext. P1 order for the purpose of getting over the vesting under S.3(1) of the Vesting Act or to claim back the vested forest by relying on so called corroborative evidence referred to in Ext. P1 Government Order. In other words, Ext. P1 Government Order cannot prevail over the vesting under S.3(1) of the Vesting Act and an adjudication of the Forest Tribunal under the Vesting Act. P1 Government Order. In other words, Ext. P1 Government Order cannot prevail over the vesting under S.3(1) of the Vesting Act and an adjudication of the Forest Tribunal under the Vesting Act. The petitioners cannot therefore build up any case based on Ext. P1. 5. One of the prayers made by the petitioners is for the issue of a writ of mandamus directing the Custodian of Vested Forests to lake immediate steps for restoring possession of the forest lands of the petitioners. In my view, this prayer is misconceived and cannot be granted. Neither the 2nd respondent, the Chief Conservator of Forests nor the 3rd respondent, the Custodian of Vested Forests have any authority to restore the land vested in the Government under S.3(1) of the Vesting Act. In my view, even the provisions of the Kerala Private Forests (Exemption from Vesting) Rules, 1974 may be inconsistent with the scheme of the Vesting Act and especially S.8 and 8A of the Act. But I need not go into that question in this Original Petition, since the petitioners have no case that they had applied under those Rules within the time prescribed, claiming any exemption from the survey. Moreover the scope of the said Rules, in my view, are confined to making a claim at the time of survey and the boundaries being demarked under S.6 of the Vesting Act and cannot have any operation in a case like this where the claim is sought to be made after the lands have been demarcated and notified as private forests long ago. Here, the petitioners raised no claim at the stage of survey and demarcation under S.6 of the Vesting Act. Anyway, the petitioners have no case that they have invoked the power under the Kerala Private Forests (Exemption from Vesting) Rules, 1974 within the time prescribed. It is clear from R.3 of the Rules therein that the application to the. custodian in Form No. I prescribed by the said Rules, should have been made on or before the 251h of August, 1974. The petitioners have no case that they had moved the concerned Authority within time. 6. It is clear from R.3 of the Rules therein that the application to the. custodian in Form No. I prescribed by the said Rules, should have been made on or before the 251h of August, 1974. The petitioners have no case that they had moved the concerned Authority within time. 6. In my view, no power can be exercised by the Custodian for restoration of a private forest to a claimant since the power to restore or adjudicate on a claim is exclusively vested with the Forest Tribunal under S.7 of the Vesting Act to be worked out under Ss.8 and 8A of that Act. It has also to be noticed mat, there is no provision in the Act enabling the State or its officers to restore any forest land to any person once it has vested under S.3 of the Vesting Act. The only power is under S.10 of the Act. Ss.10 and 11 of the Act have now become difficult of implementation - even according to the State in the Malabar Devaswom case - in view of the Forests (Conservation) Act, 1980 enacted by the Parliament, Even the assignment under S.10 of the Act can now be made only in strict compliance with the Forests (Conservation) Act, 1980. (See in this connection the decisions of the Supreme Court reported in Slate of Madhya Pradesh v. M/S. Krislmadas Tiktiram UT 1994 (6) SC 576) and State of Andhra Pradesh v. M/s.Anupama Minerals (TT 1994 (6) SC 577)). It is therefore clear that no direction can be issued to respondents 2 and 3 to restore any land to the petitioners as prayed for by them. In that view, the petitioners are not entitled to any of the reliefs prayed for. Thus on a consideration of relevant aspects, I find that the petitioners are not entitled to any relief in this Original Petition. The Original Petition is dismissed.