KOYA Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appeal is filed by the applicant in OA 1386 of 1974 of the Forest Tribunal, Palghat. THE Original Application filed by the applicant under S. 8 of the Act 26 of 1971 was dismissed by the Tribunal.

(2.) THE case of the applicant is that be obtained the property in 1972 by virtue of an assignment deed, that be and his assignors are holding lands less than the ceiling area under the Kerala Land Reforms Act and that they are entitled to a declaration that the property had not vested in the government.

(3.) THUS after remand the only question to be considered is as to whether the applicant is entitled to exemption under S. 3 (2) of the act. Applicant claims right over the property under Ext. Al dated 13-1-1972. This is long after the commencement of Act 26 of 1971. On 10-5-1971 applicant was not the owner of the property. Nor his assignor was a party before the tribunal. The assignor was examined as a witness. While considering whether the applicant is entitled to claim exemption under S. 3 (2) of the Act it has necessarily to be considered as to whether he has any locus standi to file the application at all. S. 3 (1) of the Act provides that with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall, by virtue of the Act, stand transferred to and vested in the government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. Under s. 3 (2) of the Act, it is open to the owner of any private forest to claim exemption on satisfying the Tribunal that the property was under his personal cultivation and that he does not have properties in excess of the ceiling limits under the Kerala Land Reforms Act. S. 2 (c) defines the 'owner'. The owner in relation to a private forest, includes a mortgagee, lessee or other person having right to possession and enjoyment of the private forest. In view of the remand order, the applicant cannot contend that the property is not a private forest coming within the purview of the Act. On the appointed day, the applicant was not the owner of the property as he admittedly obtained possession of it much later as per Ext. Al. The owner as defined under the Act does not include an assignee or transferee. As on the appointed day the applicant did not have any right over the property he could not have claimed exemption under S. 3 (2) of the Act. The person who is entitled to file a petition claiming benefit under s. 3 (2) or 3 (3) is the person who had right over the property. At the time when the property had vested in the State, the applicant did not have any right. As the property, being a private forest, had already vested in the State the person who had right over the property on the appointed day alone could have claimed exemption under S. 3 (2) or 3 (3) of the Act. Such a right is not conferred on the assignee under the Act. The assignment after the property bad vested in State has no validity, as S. 3 (1) clearly stipulates that the right title and interest of the owner shall stand extinguished. It is only the owner who is given the right to claim exemption under S. 3 (2) or 3 (3 ). As the applicant did not have any right as he was not the owner of the property at the time when it vested in the State, he cannot have any locus standi to file the petition on the ground that he obtained assignment from the person who had right over it. 5. Even on merits the applicant does not have a case worthy of consideration. The case of the applicant is that he bad cultivated the property with tapioca, ginger and paddy. Cultivation of ginger and paddy is not at all mentioned in the application. There is no reliable evidence to hold that the property was cultivated with any agricultural crops. In the absence of reliable evidence that the property was subjected to personal cultivation the tribunal was justified in holding that the applicant is not entitled to exemption under S. 3 (2) of the Act. We find no merits in the appeal and hence the same is dismissed. . .