BRIJITH P.M. Vs. PRINCIPAL SECRETARY

JUDGEMENT

(1.) The petitioner had purchased 1 Acre of landed property in Sy.No.157/13 of Pombra Desom, Elambulassery Village (Karimpuzha-2), Ottappalam Taluk, Palakkad District, as per Ext.P1 sale deed dated 21.07.1992. The vendor had purchased the property from one Krishna Varyar as per Ext.P2 document dated 31.05.1980. According to the petitioner, the property was part of a larger extent of 4 Acres purchased by Krishna Varyar in the year 1935. While Krishna Varyar was in possession and enjoyment of his property, the Forest Officials had put up boundary stones (jendas) in the year 1975 on the premise that the property had vested with the Government, as provided under Section 3 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short 'the Act'). The claim of vesting was only with respect to 3 Acres and the balance 1 Acre was excluded, since that portion was principally cultivated with cashew trees. Thereupon, Krishna Varyar approached the Forest Tribunal claiming exemption under Section 8 of the Act. By Ext.P4 order, the Tribunal exempted the 3 Acres under Section 3(2) of the Act and the property was restored to the possession of Krishna Varyar in the year 1980. The property purchased by the petitioner under Ext.P1 is the balance 1 Acre originally exempted by the Forest Department, while fixing the jendas in the year 1975. The petitioner had been paying land tax on the strength of his title till 2012-13. Tax was not accepted thereafter, citing objection by the Forest Department that, the petitioner's property forms part of vested forest. Thereupon, the petitioner approached the Forest Officials for 'No Objection Certificate'. By Ext.P9 communication, the petitioner was informed that the 1 Acre covered by Ext.P1 being vested forest, NOC cannot be granted. Hence, the writ petition.

(2.) The prayer in this writ petition is for a declaration that the property purchased by her under Ext.P1 document is not vested forest and to direct the second respondent to issue NOC. It is contended on behalf of the petitioner that the forest officials having excluded the 1 Acre from the purview of vesting in the year 1975 itself, rejection of the petitioner's request for NOC, on the mistaken assumption that the property is part of vested forest, is unsustainable. It is contended that Krishna Varyar had sought exemption for only 3 Acres, since the forest officials themselves had excluded the balance 1 Acre. That survey of the area proposed to be notified as vested forest, which is a pre-requisite for issuing notification under Section 3(1), has so far not been conducted.

(3.) The learned Special Government Pleader submitted that the 1 Acre covered by Ext.P1 is part and parcel of the larger extent of vested forest notified by the Custodian of Vested Forests, vide Annexure R2(a) notification dated 18.03.1978. It is submitted that the property is included as serial No.24 in the notification. It is contended that the very fact of the predecessor-in-interest of the petitioner having confined his request for exemption to 3 Acres indicates that the balance 1 Acre was admittedly vested forest.