KUMARI VARMA Vs. STATE OF KERALA

JUDGEMENT

(1.) Leave granted.

(2.) These are cross appeals by the applicant before the Forest Tribunal and the respondent therein, the State of Kerala. The appeals arise from the final adjudication made in O.A. No.90 of 1979 filed by the applicant therein claiming exemption from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for short "the Vesting Act") in respect of the land scheduled to that application. Going by the application it will be seen that the applicant claimed that the lands in RS No.292/1A of Naduvil Village belonging to the applicant, was a cardamom plantation before the appointed day, namely, 10.05.1971; that the forest authorities are proceeding as if the entire land had vested in the State under the Vesting Act and the application scheduled land was liable to be declared as not having vested in the State, as per the Vesting Act. The application was resisted by the State and the forest authorities. But, it was stated that a portion of the land was planted with cardamom. The land was part of what was called the Koliyat Estate consisting of about 700 acres and a substantial part of the Estate fell within the State of Karnataka when the reorganisation of states took place with effect from 1.11.1956. According to the applicant the area that fell within the State of Kerala was 348 acres and the whole of it had been planted with cardamom prior to the appointed day and it was on that basis that the application was filed under Section 8 of the Vesting Act.

(3.) The application was made only sometime in September 1979. The application was dismissed by the Forest Tribunal on the ground that it was barred by limitation, the vesting having taken place on 10.5.1971. That dismissal was set aside in appeal by the High Court which remanded the Application O.A. No.90 of 1979 to the tribunal for an investigation and disposal on merits in accordance with law. Some evidence was adduced including the filing of a report by a Commissioner. By order dated 22.3.1990, the tribunal dismissed the application on a finding that the land was not put under cultivation prior to the appointed day, namely, 10.5.1971 and that it was a forest to which The Madras Preservation of Private Forests Act applied and hence it was a forest in terms of the Act and it had vested in the State under the Vesting Act. This order was again challenged by the applicant before the High Court in M.F.A. No.658 of 1990. The High Court took the view that what was called for was a proper identification of the land which had been planted with cardamom prior to the appointed day since it would be seen from the pleadings that some portion of the land was cultivated with cardamom even going by the objections filed by the State and the forest officials before the forest tribunal. After setting aside the commission report and plan that was marked in evidence, the High Court directed the Forest Tribunal to issue a fresh commission, to have the property identified with particular reference to the portions, if any, in which cardamom was planted prior to the appointed day and to dispose of the application afresh. Both sides were given opportunity to adduce evidence.