C. N. Jolly v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 18[TH] DAY OF OCTOBER 2022 / 26TH ASWINA, 1944 MFA (FOREST) NO. 174 OF 2012** **AGAINST THE ORDER/JUDGMENTOA 11/2003 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **APPELLANT:** C.N.JOLLY D/O.NARAYANAN, CHOONDIPURAKKAL, ANAKKAL DESOM, KANIPPAYYUR AMSOM, THALAPPALLY TALUK. BY ADVS. SRI.J.JULIAN XAVIER SRI.FIROZ K.ROBIN ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS ARANYBHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. BY ADVS. SPECIAL GP SR I M. P.MADHAVANKUTTY SHRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 18.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A(Forest) No.174 of 2012** **2** K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ. -------------------------------------------M.F.A.(Forest) No.174 of 2012 -------------------------------------------Dated this the 18[th] October, 2022 ## JUDGMENT ## K.Vinod Chandran,J. The applicant herein sought exclusion under Section 2(f)(1)(i) and exemption under S.3(2) & (3) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act) to the scheduled property. The applicant purchased the land from one Lalitha as per Ext.A1 document. The prior sale deeds were produced as A3, A4 and A5 respectively of the years 1982, 1965 and 1944. The applicant examined her husband as PW1, another individual as PW2 and the Village Officer as PW3. Other than the aforesaid title deeds, she also produced A2 ownership certificate of the year 2001 and the extracts of the registers maintained by the Village Office, Malampuzha-I. The respondents examined two witnesses, the Forest Range Officers, through whom were marked B1 notification dated 13.11.1992 and B2 & B3 sketches. The court marked the Commission Report as C1 and plan furnished by the Commissioner as C2. **M.F.A(Forest) No.174 of 2012** **3** 2. At the first instance, the Tribunal after trial, dismissed the application finding that the Madras Preservation of Private Forest Act, 1949, (for brevity MPPF Act) applied to the schedule properties, the exclusion under S.2(f)(1)(i) of the Vesting Act was not available and refused to consider the exemption under S.3(2) and (3) for reason of the applicant being only an assignee from the person who held the land as on the appointed day of the Vesting Act, i.e. 10.5.1971. On an appeal, in M.F.A. No.105/2006, a limited remand was made directing reconsideration of the exclusion claimed under Clause (C) to S.2(f)(1)(i) and also the exemption under S.3(2) & (3) relying on the decision of a Full Bench in _Parameswara Sastrigal v. State of Kerala 2008 (2) KLT 461._ 3. The Tribunal noticed the limited remand and examined exclusion and exemption under the Vesting Act elaborately. The Tribunal held, relying on the decisions of this Court that under Clause (C), the land should be principally cultivated with cashew and other fruit bearing trees or with any agricultural crop prior to the appointed day; which agricultural crop has to be considered as one confined to trees similar to fruit bearing trees, which necessarily does not include even trees having nuts or seeds. It was found form the pleading that **M.F.A(Forest) No.174 of 2012** **4** there was no specific cultivation claimed as on 10.5.1971. The only assertion was regarding tapioca and plantain having been cultivated in the property when the applicant purchased the property, which was long after the appointed day. The evidence of PW2 was completely discarded as inspiring no confidence. The description in the village register was looked at to find that it would indicate paddy cultivation which was neither a claim raised by the applicant nor permitted under clause (C) of S.2(f)(1)(i). Having rejected the claim for exclusion, the aspect of exemption was considered. It was categorically found that the applicant failed to establish any cultivation as on the appointed day which alone could absolve the land under sub section (2) of S.3. Again on the exemption under S.3(3), there was nothing produced to establish even an intention to cultivate the property as on 10.5.1971, but for the description in the registers of the Village Office. The trees found in the properties were 15 to 20 years old; obviously those sprouted or planted after the appointed day. The Tribunal further found the applicant having not established the possession of properties below the ceiling limit of the Kerala Land Reforms Act. The application stood rejected, from which, the appeal is filed. **M.F.A(Forest) No.174 of 2012** **5** 3. Having gone through the order in M.F.A. No.105/2006 dated 29.9.2009, we fully agree with the Tribunal that there was only a limited remand made in so far as consideration of exclusion under clause (C) of S.2(f)(1)(i) and exemption under S.3(2) & (3). In fact, the Division Bench found that on the basis of the evidence adduced, it cannot be said that the land was cultivated with fruit bearing trees or any other agricultural crops. However, the document being an extract of the 'Adangal Register' issued by the Village Officer, Malampuzha, was not seen considered, for the same having not been produced at the time of trial. The appellant explained that the request for a copy was declined by the village office and later she obtained it under the provisions of the Right to Information Act. The definition of the word ' _punja'_ in the law lexicon; _“land that cannot be easily watered by artificial means, depending chiefly on the falling rains for irrigation and therefore unfit for the cultivation” (sic)_ , was noticed. It was pointed out that such lands are lands in which crops other than paddy can be cultivated. It was hence the exclusion claimed was directed to be considered specifically under clause (C) of S.2(f)(1)(i). Relying on the Full Bench decision, the exemption claimed was also directed to be considered. **M.F.A(Forest) No.174 of 2012** **6** 4. The Tribunal noticed three decisions of this Court to understand the meaning of other agricultural crops as found in S.2(f) (1)(i)(C). _State of Kerala v. Amalgamated Malabar Estate Pvt Ltd 1979 KLT 829_ observed that the word “agricultural crop” used in S.2(f)(1)(i)(C)of the Vesting act can only be a similar crop as cashew or other fruit bearing trees; the legislature having given clear indication of the crops that will come under the words employed. _State of Kerala v. Moosahaji 1984 KLT 494_ as Full Bench decision, also refused to understand the words “other fruit bearing trees” in a very wide sense to include even trees bearing nuts or seeds which may botanically or technically be called a fruit bearing tree. _State of Kerala v. Malayalama Plantations 1980 KLT 976_ understood the mention of cashew or fruit bearing trees followed by other agricultural crops to be treated in a restricted sense. The Tribunal relied on _1979 KLT short note 4 (case No.7)_ to hold that clause (A) of S.2(f)(1)(i) takes in cultivation of paddy and the agricultural crop as found in sub-clause (C) does not include paddy cultivation. We bow to the trite propositions as brought forth from the aforesaid decisions and we fully endorse the findings of the Tribunal. 5. Contrary to what has been found by the Tribunal, the **M.F.A(Forest) No.174 of 2012** **7** pleading as to the cultivation carried on in the property, is rubber, as discernible from the application under Section 8, available in the records, even prior to 10.5.1971. The assertion before the Tribunal, in the box, was only with respect to cultivation of tapioca and plantain, which is with reference to the year 1984 when Ext.A1 was executed; the purchase deed of the applicant. Nothing was produced to prove the rubber plantation in the land as on the appointed day. In any event the specific plea of the applicant in the earlier appeal and that affirmed in the remand order, as alive for consideration, was a claim under clause (C) and not clause (B); the latter of which takes within its cover, rubber plantation. 6. After remand, PW2 and PW3 were examined and the extract of the registers of the village office were marked as Exts. A6 & A7. The various statements made by PW2 to support the case of the applicant was disbelieved by the Tribunal, rightly so. PW2 was a not a neighbor, neither residing or having properties near the scheduled lands. He admitted in cross examination that he has not entered the property and he could not even speak on the boundaries of the scheduled property. We agree with the Tribunal that PW2 cannot be believed to understand the nature of the property, more so when he **M.F.A(Forest) No.174 of 2012** **8** has no case that he had been privy to the cultivation carried out in the property as on the appointed day, i.e: 10.05.1971. 7. The specific remand made was for the production of the extracts of the 'Adangal Register' which was produced as Exts.A6 and A7, which shows the proprieties in one Sy.No. ss ' _sthira punja_ ' (Ext.A6) and the properties in the other Sy.Nos as ' _asthira punja_ ' (Ext.A6). The definition of ' _punja_ ' has already been extracted herein above from the Law Lexicon. ' _Punja_ ' lands are dry lands on which cereals and pulses are cultivated and not necessarily paddy. ' _Sthira punja_ ' and ' _asthira punja_ ' can be roughly transliterated as 'stable and unstable punja lands' which again is with reference to perennial water sources and intermittent availability of water; which makes the cultivation stable or unstable depending upon the availability of water. We have to emphasize that there is absolutely no pleading with respect to any cultivation of cereals or pulses in the property and that too as on 10.05.1971 and that is not to say that the property had either rubber or fruit bearing trees. The description of the property in the register of the village office does not necessarily indicate the nature of the cultivation carried out in the property, which has to be established by sufficient evidence on the ground, as on the appointed **M.F.A(Forest) No.174 of 2012** **9** day. There is no cashew, fruit bearing trees or any other agricultural crop, viz: any other similar trees, which could substantiate the claim of exclusion under clause (C) of Section 2(f)(1)(i) of the Vesting Act. The remand order was not to examine the existence of rubber, as on the appointed day, coming under clause (B) of Section 2(f)(1)(i) and was specifically under clause (C). The village register showed the description of the cultivation in the property or the nature of cultivation, as paddy, that is normally done in the property which is quite different from that pleaded and later digressed from. There was no claim of paddy cultivation in the property at any time; which claim is under clause (A) of Section 2(f)(1)(i). We affirm the finding of the Tribunal that there is no exclusion proved, under the Vesting Act. 8. Now we c0me to the question of whether there is any valid exemption as claimed in the property. Both the exemptions under sub-clause (2) and (3) of S.3 of the Vesting Act requires satisfaction of three conditions. Under sub-section (2), the applicant should prove that himself or his predecessor in interest as on the date of 10.5.1971 was an owner of the property as has been defined in S.2(c) of the Vesting Act; i.e., a person who has rightful legal possession of the property. The next requirement is actual cultivation and the third **M.F.A(Forest) No.174 of 2012** **10** condition is proof regarding the properties including that for which exemption is claimed, falling within the ceiling limit under the Land Reforms Act. As far as the exemption under sub-section (3), the applicant should be holding a property by virtue of a registered deed and should have an intention to cultivate the land as also proof of possession of lands, not in excess of the ceiling limit under the Land Reforms Act. 9. There is absolutely no cultivation established in the property as on the appointed day and hence the claim of exemption does not fall under S.3(2). Considering the question under sub-section (3), again there is nothing to prove an intention to cultivate the property as on 10.05.1971, at which point the applicant was not the owner of the property. The predecessor in interest was not examined nor was any other witness proffered nor any substantive evidence produced regarding the intention to cultivate, of the person who held the property as on the appointed day. Intention to cultivate cannot be just an intention harbored in the mind of the owner of the property and it should be demonstrated by activities carried on in the property or attendant circumstances; which alone could substantiate a real intention as spoken of for the purpose of exemption under the **M.F.A(Forest) No.174 of 2012** **11** Vesting Act. _Parameswara Sastrigal (supra)_ looked at how the intention to cultivate can be inferred in a land on which exemption is claimed under S.3(3). The intention cannot be one merely declared but has to be proved on the basis of the activities carried out in the property, clearly putting forth an intention to cultivate the same. The decision of the Hon'ble Supreme Court in _Joseph v. State of Kerala 2007 (2) KHC 619_ was also relied on. In the cited decision it was held that the same has to be gathered not only from the fact situation existing at a particular time, but also from the subsequent conduct. The activities in the property must be systematic and not sporadic and there should be clear conduct discernible of development of land for making it fit for cultivation, preceding to and subsequent to the date of vesting. In the present case, there is a claim raised in the application of rubber plantation in the whole of the property not proved by any valid evidence. We also notice that there is no evidence produced regarding the properties owned and possessed by the applicant to prove that he does not have lands in excess of the ceiling limit under the Land Reforms Act; which in any event is inconsequential for reason of the applicant having not established either a cultivation or intention to **M.F.A(Forest) No.174 of 2012** **12** cultivate; which are mandatory requirements as per the statute. We find no reason to interfere with the order of the Tribunal and the appeal stands rejected. The parties are left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C. JAYACHANDRAN, JUDGE** uu