STATE OF KERALA Vs. INDIRA

JUDGEMENT

(1.) This is an appeal filed against the judgment and decree dtd. 30/06/2012 in O.S.No.76/2008 on the file of Subordinate Judge's Court, Palakkad. The suit for compensation/damages has been decreed. Defendants 1 to 7 are the appellants and the plaintiffs and the eighth defendant, the respondents herein. The parties in this appeal will be referred to as described in the suit.

(2.) The plaintiffs through their power of attorney, allege in the plaint that property having a total extent of 46.35 acres situated in re-survey no.551, Vandazhi Village, Alathur Taluk, Palakkad district, was purchased by them during the period 1999-2000 by various registered documents. The property purchased by the plaintiffs was the subject matter in O.A.No.331, 333, 334 and 336 of 1976 on the file of the Forest Tribunal, Palakkad. These OAs filed under Sec. 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (the Vesting and Assignment Act), were originally allowed by the Forest Tribunal, Palakkad, holding that the property was liable to be excluded from the provisions of the Vesting and Assignment Act. This order was set aside by this Court in M.F.A.Nos.127,128, 142 and 443 of 1980 and the matter remanded to the Forest Tribunal for a fresh consideration. After remand, the Forest Tribunal as per order dtd. 31/07/1988 again allowed the OAs exempting the property from the purview of the Vesting and Assignment Act. Against this order of the Forest Tribunal, the defendants therein took up the matter in appeal by filing M.F.A.No.374/1987. This Court by judgment dtd. 31/01/1997 confirmed the order of the Forest Tribunal and dismissed the appeal. Against the decision, Special Leave Petition No.10913/1997 was filed before the Apex Court. By order dtd. 01/12/1997 the SLP was dismissed. However, defendants 1 to 5 did not immediately restore possession of the property to the applicants. On the other hand, possession was handed over only on 14/01/1999 as per the order of this Court in O.P.No.6566/1998.

(3.) The 4th defendant filed written statement contending that after the order dtd. 1/12/1997 in SLP No.10913/1997 by which the order of the Forest Tribunal exempting the disputed land from the Vesting and Assignment Act was confirmed, there was some official formalities to be completed before restoration of the property to its owners and so the handing over was slightly delayed. The property was restored to the predecessors-in-interest of the plaintiffs on 14/1/1999. The property was a portion of forest land predominantly supporting natural vegetation and lying contiguous to vested forest, coming under the definition of an EFL under the Ordinance. The land was not under cultivation as on 2/6/2000. As the land came within the definition of an EFL, it was notified on 20/10/2000 and the same was published in the Gazette on 2/1/2001. The allegation that rubber saplings had been planted in the property during 1999 is incorrect and false. The property was never cultivated till June, 2000. The power of attorney holder of the plaintiffs had encroached into the forest area adjoining their property and constructed a shed thereon. This was detected by the staff of Alathur Forest Range and on 29/8/2000 a case was registered against him as O.R.No.32/2000. The attempt of the plaintiffs was to encroach upon the vested forest situated adjacent to their property. Their attempt was to take the property out of the ambit of Sec. 3(1) of the Ordinance. The 5th defendant was duty bound to inform the Village Officer that the property owned by the plaintiffs has been notified as EFL. Pursuant to the notification, the action of the Village Officer in cancelling the possession certificate issued to the plaintiffs is just and legal. When the property was restored to the predecessors-in-interest of the plaintiffs, it was full of small trees and bushes. Many types of butterflies and birds were seen in the schedule property. The property clearly came within the ambit of Ordinance 6/2000. The plaintiffs had not started any operation in the schedule land as on 2/6/2000. However, immediately after the promulgation of the Ordinance, the plaintiffs hurriedly planted rubber saplings in the property in a phased manner with the intention to take it out of the purview of the Ordinance. This was objected to by the officials under the defendants, who apprised the plaintiffs of the fact that the land on which the planting operation was being done is a land coming under the purview of the Ordinance. The plaintiffs then filed O.P.No.24844/2000 alleging that the defendants were trying to disturb their enjoyment and possession of the property under the cover of the Ordinance and secured Ext.A11 injunction order in CMP No.41944/2000 dtd. 30/8/2000, by which the defendants were restrained from interfering with the plaintiffs' possession and enjoyment of the property. After obtaining the injunction order, the plaintiffs went on developing the property into a rubber plantation as a result of which neither the defendants nor their officials could prevent the same. The notification issued on 20/10/2000 was deleted by the Principal Chief Conservator of Forest and Custodian of Forest (EFL) pursuant to judgment dtd. 9/1/2004 in W.P.(C)No.18214/2004. The Select Committee constituted by the Legislative Assembly under the Chairmanship of the then Forest Minister had inspected the property to check whether the notification had been properly made. Thereafter physical verification was conducted by the Divisional Forest Officer and recommendation submitted for deleting certain properties wrongly notified by the notification. The power to divest as per the Ordinance was vested with the Forest Tribunal under Ss. 9 and 10 of the Ordinance and hence the reason why the 2nd defendant rejected the representation of the plaintiffs to de-notify the land. The property held by the plaintiffs is a portion of forest land predominantly supporting natural vegetation and lying contiguous to the vested forest and therefore, clearly coming under the definition of EFL as contemplated under Sec. 2(a)(1) of the Ordinance. Hence the inclusion of the land under the Ordinance was just and proper. The allegation that the plaintiffs had planted rubber saplings in the disputed property in July, 1999 is incorrect. The officials of the defendants did go to the property during the 3rd week of August, 2000, when the plaintiffs started making preparations for planting the saplings. Though the defendants had advised the plaintiffs against the move, as their land came within the definition of EFL, the latter, did not heed to their instructions and went on developing the property into a rubber plantation. Hence, if at all they had sustained any loss as alleged by them, the defendants are not liable for the same. Further, the property has been sold by the plaintiffs to third parties. The suit is without any bonafides and hence liable to be dismissed with costs.