THOMAS JACOB Vs. STATE OF KERALA

JUDGEMENT

(1.) Applicant in O.A. No.36 of 2004 before the Forest Tribunal, Kozhikode is the appellant. He is one of the Directors of M/s. Poabs Estate Private Limited. He sought before the learned Tribunal a declaration that scheduled properties measuring 3.80 hectares of land in R.Sy.No.164/5(old survey no.861/5) and 3.52 hectares of land in R.Sy.No.164/6 (old survey No.861/6) possessed by the Company in Nelliampathy village are not part of a private forest, invoking Section 8 of the Kerala Private Forest (Vesting & Assignment) Act,1971 (for short 'Act No.26 of 1971'). The O.A. was dismissed by the impugned order dated 07.03.2006 which is under challenge in this appeal.

(2.) Appellant's case is that scheduled properties measuring an extent of 18 acres are coffee and cardamom plantations, forming part of an aggregate area of 1009 acres in Nelliampathy village owned by the erstwhile Karuna Plantations Limited. This estate was formerly called as 'Seethargundu Estate'. After purchase of this estate, the appellant's Company renamed it as 'Poabs Estate limited'. Karuna plantations Limited purchased 1009 acres planted with coffee and cardamom on 15.04.1979 under Ext.A2 sale deed. Its predecessor purchased the estate from Amalgamated Coffee Estate Limited under Ext.A1 sale deed dated 28.08.1969. The ownership of the appellant over the scheduled properties is evident not only from the prior title deeds produced by him but also from Ext.A5 compromise decree in A.S. Nos.6 & 7 of 2000 on the file of the District Court, Palakkad, passed on the basis of Ext.A4 M.O.U. dated 17.07.2003 entered into between parties, when a dispute of ownership over the properties arose between Karuna Plantations Limited and Palakapandy Estate, which is a neighbouring plantation.

(3.) It is contended by the appellant that the entire estate had been cultivated with coffee and cardamom much prior to 1949, even before coming into force of Madras Preservation of Private Forests Act, 1949( for short, 'M.P.P.F. Act') and consequently, no part of scheduled properties came to be vested as per the provisions of Act No.26 of 1971. It is further stated that, when the respondents claimed the entire estate to be part of a private forest and consequently disputes arose, Karuna Plantations Limited, which is the predecessor of appellant filed O.A.No.573 of 1976 before Forest Tribunal, Palakkad, for a declaration that 919 acres owned by the plantation are not private forests. In M.F.A.Nos. 574 of 1989 and 106 of 1990 challenging the order in O.A. No.573 of 1976, this Court declared 830 acres to be not private forests holding that only balance 89 acres out of the total 919 acres claimed in the O.A. were available for vesting under Act No.26 of 1971. It is contended that since there was no dispute with respondents over the remaining 90 acres out of 1009 acres, scheduled properties which formed part of 90 acres were not made the subject matter in O.A. No.573 of 1976. Before 1009 acres came to be included in Nelliampathy village, 919 acres and 90 acres respectively were lying in Payyalore village and Muthalamada village. It is contended by the appellant that after the disposal of M.F.As., scheduled properties which have a total area of 18 acres were measured out and demarcated by Survey Department, Thiruvananthapuram in the presence of Forest Officials and a sketch indicating that the scheduled properties were part of Seethargundu Estate was prepared. Thereupon, the respondents without any rhyme or reason started obstructing the appellant's free enjoyment and possession of scheduled properties, denying the Company's right and therefore, this O.A. was filed for a declaration that scheduled properties are not part of the vested private forests under the provisions of the Act No.26 of 1971. It is alternatively prayed that in case the properties are found to be private forests, the appellant may be granted the benefit of exemption under Sections 3(2) and 3(3) of Act No.26 of 1971.