MERCHISTON ESTATE Vs. STATE OF KERALA

JUDGEMENT

(1.) The applicant in OA No. 100 of 1980 on the file of the Forest Tribunal, Palakkad, is the appellant in this appeal. The application was filed under S.8 of the Private Forests (Vesting And Assignment) Act, 1971 (Act 26/1971) for short 'the Act' praying for a declaration that the disputed items of land are outside the scope of Act 26/71 or alternatively exempting them from the operation of its vesting operations. The Forest Tribunal by an order dated 16.4.1983 rejected the said application and the applicant filed an appeal before this court in MFA No. 359 of 1983. This Court by judgment dated 4.8.1988 set aside the orders of the Tribunal and remanded the matter back for fresh consideration and disposal as the Tribunal did not take into consideration the inspection report dated 26.5.1980 prepared by the Forest Tribunal. This Court while remanding the matter observed thus:

(2.) The Forest Tribunal after the remand while holding that the applicant has title to the disputed property held that the disputed areas are private forest and are vested with the Government under the provisions of Act 26/1971. It further held that the applicant is not entitled for any relief either under S.3(2) or under S.3(3) of the said Act. Hence, this MFA.

(3.) Before we venture to discuss the merits of the application we will consider the value of the local inspection report to which advertence was made by the Forest Tribunal. In Ayisha v. Kunhathutty ( 1973 KLT 57 ) it was held that the purpose of local inspection is not to bring fresh evidence on record or to substitute it for evidence but is only to assist in the appreciation of the evidence. Similar view was taken by another learned Judge in Abdullakutty v. Land Tribunal, Beypore ( 1974 KLT 4 ) when he observed that the local inspection must only be for the purpose of enabling the authority to assess the already existing evidence in the case. In State of Kerala v. Nanu ( 1991 (2) KLT 251 ) a Division Bench after posing a question to itself "If at one stage when the Tribunal makes an inspection of the property for good reasons and if the Tribunal finds that there is no wild forest tree growth in the area in question and also there is no indication that there was forest tree growth in the property, can the court ignore it on the principle that the local inspection should not be used to contradict the legally admitted evidence" answered it by saying that "such an understanding of the law will be against realities and it will be superficial and hypertechnical. The prime devoir of the Court is to do justice between the parties and in that process, if a court forgets indubi table facts, which it has seen by its marked eyes, on local inspection it would be an abjurement and abnegation of reality." From the above it is clear that the local inspection report though cannot be used as evidence it can be used by the authority for assessing the already existing evidence in the case. The local inspection report can be used for the better appreciation of the said evidence on record.