IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 197 of 2008()
1. KAPPACHALI ASMABI, D/O.MOOSA REPRESENTED
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE CUSTODIAN OF VESTED FORESTS,
For Petitioner :SRI.R.RAJESH KORMATH
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :11/08/2008
O R D E R
M.N.KRISHNAN, J.
--------------------------
F.A.O. Nos. 197, 198, 199 & 200 OF 2008
---------------------
Dated this the 11th day of August, 2008
JUDGMENT
These appeals are preferred against the judgment of the
District Judge, Manjeri, whereby he has remanded four suits OS
182,181,184 and 183 of 2000 of the Munsiff Court, Manjeri, with a specific
direction to return the plaints to the plaintiffs for proper presentation before
the Forest Tribunal. Brief facts are necessary for understanding the
contentions of the parties. The plaintiffs in all these cases would contend
that the property described in their plaint schedule belonged to them and
they are the title holders in possession of the property and therefore the
defendants in the suit shall not interfere with their peaceful possession and
enjoyment of the property. The plaintiffs have also sought for a declaration
to that effect.
2. Now the definite contention of the forest authorities is to the
effect that it is a reserved forest and the plaint scheduled property comes
within the reserved forest notified. It is specifically contended that the
plaint scheduled property is a reserved forest land notified vide Notification
471 dated 30.10.1900 and renotified on 7.2.1926. It is also their specific
contention that the department is bound to protect it as reserved forest land
and the property comprised in R.S. 7 is reserved forest land and the
FAO No.197/08 and Conn. Cases 2
western boundary is Mundayanthode and there is no private holding
between the Mundayanthode and reserve forest. According to them the
jandas were put a little bit inside the forest only to protect it from soil
erosion on river banks etc. So the question that arises for determination in
the case is whether the plaintiffs have got title to and possession over the
property as contended by them and whether it is a part and parcel of the
reserved forest as notified by the authorities. When the matter came up
before the trial court, the trial court held that since the forest authorities has
filed an affidavit contending that it is a part and parcel of the reserved
forest, dismissed the suit as non-maintainable. It is against that decision,
the appeals were preferred before the District Judge as AS 135, 134, 137 &
136 of 2003. The learned District Judge disposed of all these appeals on
the ground that the dispute with respect to the land claimed can be agitated
only before the Forest Tribunal and directed the Munsiff to return the
plaints to the plaintiffs for presentation before the Forest Tribunal. It is
against this decision, the appeals are preferred.
3. The substantial questions of law to be considered are as
follows:
a. Has not the court below erred in holding that the appellant-
plaintiff has admitted that the civil court has no jurisdiction to try the dispute
and thereby coming to the conclusion that the suit is not maintainable
before the civil court?
FAO No.197/08 and Conn. Cases 3
b. Has not the court below lost sight of the fact that the dispute
to be resolved in the case is whether the disputed property is a Reserve
Forest which has vested in the Government under The Kerala Forest Act,
1961?
c. Is not the jurisdiction of the Forest Tribunal confined to
adjudicate the disputes coming within the ambit of Section 8 of the Kerala
Private Forests (Vesting and Assignment) Act, 1971?
d. Has not the court below failed to take note of the fact that
under Section 5 of the Kerala Forest Act, 1961, jurisdiction of the civil court
to entertain any suit against the Government to establish any right in or
over any land is barred only between the period of preliminary notification
under Section 4 of the Act and the final notification under Section 19 of the
Act?
e. Is not the principle of exclusion of jurisdiction of a forum to be
strictly construed?
f. Has not the court below lost sight of the fact that consent or
admission of the parties with respect to jurisdiction will not confer
jurisdiction on a forum when there is an inherent lack of jurisdiction in such
forum?
4. First let me consider the question regarding the reserved
forest. The provisions governing the reserved forest are Sections 4, 5, 19
and 22 of The Kerala Forest Act, 1961. What is stated therein is that
FAO No.197/08 and Conn. Cases 4
Government is competent to form any forest as a reserved forest and the
land at the disposal of the Government is defined under section 2(g) of the
Kerala Forest Act. As per Section 4, the Government can publish a
notification in the gazette declaring that it is proposed to constitute such
land as reserved forest. Section 5 deals with the bar of jurisdiction of the
civil courts. It is stated that after the notification issued under section 4 and
till a final decision is taken under section 19 of the Act declaring it as a
reserved forest, the civil courts shall not entertain any litigation. Thereafter
the Act provides the procedure to be followed by the forest officers and
appeal is provided to the District court, High court etc. Ultimately under
section 19 when that has become final, the Government can publish the
notification in the gazette specifying the limits of the forest which is
intended to be reserved. When such reserved forests are notified, nobody
can acquire right on those properties. There is no other provision under
the Kerala Forest Act 1961 dealing with the same.
5. Now, I may briefly refer to the Kerala Private Forest (Vesting
and Assignment) Act ,1971. Under Section 3 the private forest shall vest in
the Government on the date notified namely 10.5.1991. Section 8 deals
with the question that when any dispute arises as to whether any land is a
private forest or not or that any private forest or portion thereof has vested
in the government shall be only tried by the Tribunal established under the
Act for such decision. Section 13 of the Act specifically bars the jurisdiction
FAO No.197/08 and Conn. Cases 5
of the civil court to determine any issues which is to be decided by the
authority constituted under the Act.
6. I am afraid that the learned District Judge had some doubt in
his mind regarding these two enactments. It appears from the judgment of
learned Judge that the advocates also argued as if it will come under the
Vesting Act, 1971. Whatever it may be, the question to be considered in
these cases is whether the land over which the plaintiffs claim declaration
and possession are their independent property or whether it forms part and
parcel of the reserved forest notified by the Government right from 1900.
When the answer is that it is not a reserved forest or it does not come
under the notified area then necessarily the forest authorities will have
nothing to do with the same. On the contra, if it is comprised in the
reserved forest notified by the Government then necessarily the plaintiffs
shall not have any right of title or possession over the same by operation of
law. This is a matter which the court has to consider. So for that purpose
a Commission may be necessary and the property has to be identified and
demarcated with reference to the notification as well as with respect to the
documents relied upon by the plaintiffs. Thereafter the court has to
consider whether it forms part and parcel of the reserved forest or it is the
individual property of the plaintiffs in the respective cases. So I answer the
questions of law formulated as below.
a. First question of law is that the civil court has no jurisdiction is
FAO No.197/08 and Conn. Cases 6
not tenable.
b. Second question of law requires real consideration by the
court below to the effect that whether it is a part of the reserved forest or
not.
c. Third question of law that the matter has to be referred to be
presented before the forest Tribunal is incorrect for the reason that nobody
has got a case that it is a private forest.
The other questions of law are not to be answered precisely for
the reason that I have already held that the civil court has got jurisdiction
and it is for the civil court to consider whether the disputed land is a land
as claimed by the plaintiffs or forms a part and parcel of the reserved forest
issued by the notification of the year 1900. So the judgments of the
learned District Judge are set aside and the FAO are disposed of as
follows:
(i) Learned Munsiff shall issue a Commission and direct him to
identify the property with reference to the title and possession of the
plaintiffs as well as with reference to the Governmental notification as
contended by the Government.
(ii) Thereafter the learned Munsiff shall give sufficient
opportunity to the parties to file objections, if any, to the Commissioner’s
report and permit them to adduce documentary as well as oral evidence in
support of their respective contentions to establish their respective cases.
FAO No.197/08 and Conn. Cases 7
(iii) Till such time, the status quo as on today with respect to the
property regarding cutting of trees should be maintained.
(iv) Parties are directed to appear before the Munsiff, Manjeri on
27.8.08. On appearance of the parties, the Munsiff shall see that the
matter is disposed of within a time frame of six months.
M.N.KRISHNAN, JUDGE
vps