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2017 DIGILAW 1363 (KER)

T. A. Abdulla Hai v. State of Kerala

2017-11-01

A.M.BABU, K.HARILAL

body2017
JUDGMENT : 1. The appellant is the petitioner in I.A.342/2010 in O.A.175/1976 on the files of the Forest Tribunal, Kozhikode. The aforesaid OA was allowed as early as on 6.3.1979 and the property was restored to the petitioner through the Divisional Forest Officer, Nenmara on 25.6.2007. According to the petitioner, the custodian has committed some mistake in the restoration of possession. It is stated that the extent delivered to him is correct but instead of dividing the property comprised in Sy.No.695/2 in the east-west direction, the property is divided in the north-south direction and while doing so, half of the property delivered was a part of the property sold by him to his brother. In order to substantiate the said contention, the petitioner has produced a copy of the sketch which would prove the identity of the property restored to him on 25.6.2007. After considering the said application, the Forest Tribunal dismissed the IA on a finding that the property was restored about 4 years back and the petition has been filed after a long time. So there is no bona fides in the petition filed by the petitioner. The legality and correctness of the said finding is challenged in this appeal. 2. Heard the learned counsel for the appellant and the learned Government Pleader. 3. The learned counsel for the appellant advanced arguments assailing the findings of the Tribunal. The sum and substance of the arguments is that the Tribunal went wrong by not considering the application on merits. 4. Per contra, the learned counsel for the respondents submits that firstly, the appeal is not maintainable. Secondly, it is contended that the Forest Tribunal has no jurisdiction to consider the aforesaid IA filed by the petitioner seeking a direction to the custodian to deliver the exact property. 5. Coming to the first question, we find that the question, whether an appeal challenging an order passed in an interlocutory application filed in an Original application, is maintainable under the Kerala Private Forests (Vesting & Assignment) Act, 1971 (for short 'the Act'), stands answered by the decisions laid down in Muhammadkutty v. Forest Tribunal ( 1978 KLT 619 ) and Varkey v. State of Kerala ( 1980 KLT 632 [FB] ). In Varkey's case, a Full Bench of this Court held that every order passed by the Tribunal in a proceeding instituted before it under Section 8 of the Act is not appealable under Section 8A of the Act. The expression 'decision' used in Section 8A(i) connote only final decision rendered by the Tribunal in the dispute made mention of Section 8(i) of the Act and orders which has not been resolved or finally decided such disputes are not appealable under Section 8A(i). When applying the above decision to the instant case, we find that the impugned order under challenge in this appeal was passed on an interlocutory application only and the appeal is not maintainable before this Court. 6. Next, the question is whether the Forest Tribunal has jurisdiction and power to entertain, try or decide any application other than the application under clauses (a) or (b) Section 8(1) of the Act. Section 8 of the Act deals with settlement of dispute. Sub-section (i) of the said Section specifies the kinds of disputes that may be brought before the Forest Tribunal for decision. The dispute may be of two kinds; (a) whether any land is a private forest or not (b) whether any private forest or any portion of a private forest has vested in the Government or not. A claimant may file application within the prescribed period for the said purpose only. It follows that the Forest Tribunal has no jurisdiction to consider any dispute other than what is stated under (a) and (b) of Section 8 of the Act. 7. In the above view, we find that the Forest Tribunal has passed the impugned order without jurisdiction. The Forest Tribunal ought to have dismissed the application for want of jurisdiction. Therefore, the finding is not binding on any of the parties. The appeal is devoid of merits and the same is dismissed. 8. This appeal was pending before this Court, since 2012. Having regard to the said fact, the appellant is at liberty to seek appropriate remedies in accordance with law and this order will not stand in the way of such proceedings.