C. Sundaran v. State of Kerala & The Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 9[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944 MFA (FOREST) NO. 115 OF 2006** ## **AGAINST THE AWARD IN OA 37/2003 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT:** C.SUNDARAN, S/O.CHANGARATHU AYYAPPAN, CHANGARATHU VEEDU, ELAMBULASSERY POST,, KARAKURUSSI VIA., OTTAPPALAM TALUK. BY ADVS. SRI.SHAJI THOMAS SRI.JEN JAISON ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, OLAVAKKODE, PALAKKAD. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 07.11.2022, THE COURT ON 09.11.2022 DELIVERED THE FOLLOWING: M.F.A.(Forest) 115/2006 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A.[FOREST] No.115 of 2006 -------------------------------------Dated this the 9[th] day of November, 2022** ## **J U D G M E N T** ## **Jayachandran, J.** **1.** O.A.No.37 of 2003 preferred by the applicant [appellant herein] was dismissed by the Forest Tribunal, Kozhikode, finding that the schedule property is a private forest, which vested with the Government as on 10.05.1971 and that the applicant is not entitled to the exemptions under Sections 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act 1971 ['Vesting Act', for short]. In this appeal, the aggrieved applicant impugns the judgment dated 19.09.2005 in the above O.A. M.F.A.(Forest) 115/2006 3 ## _**2.** Facts in brief:_ Machingal Nair Veedu had jenom rights over the scheduled property originally. As per an oral lease of the year 1957, applicant's father obtained the scheduled property, along with other items, from the said Nair tharawad. Certificate of purchase was issued by the Land Tribunal in favour of the applicant's father/lessee. Upon his death, the properties devolved upon his legal heirs, which was partitioned by and between them in the year 2001. The petition schedule property is part of the properties described in schedule A of the partition deed, set apart to the share of the applicant. The property was cultivated with pepper by the applicant's father. The applicant planted rubber, jack, cashew and coconut trees. There was seasonal cultivation as well. The scheduled property is not a private forest and therefore, did not vest in the Government. No notification was issued or published. On such premise, the applicant sought for a declaration that M.F.A.(Forest) 115/2006 4 the scheduled property is not a private forest; and alternatively prayed for exemptions under Section 3(2) or 3(3) of the Vesting Act. **3.** Counter affidavit was filed by the Divisional Forest Officer, contending that the scheduled property is a part of vested forest and that, there was no cultivation therein prior to 1971. The scheduled property was part of a huge malavaram by name Pombramala, having a total extent of 160.85 hectors, to which the Madras Preservation of Private Forests Act, 1949 ['M.P.P.F. Act', for short] applied. The same was notified as a vested forest under V.F.C. item No.80, vide notification no.D.1383/77/dated 10.10.1979. The notification was duly published. Applicant has no title to the schedule property and the same was not held under his cultivation before 10.05.1971. On such premise, respondents in the O.A. sought for dismissal of the same. M.F.A.(Forest) 115/2006 5 **4.** The evidence in this case consists of Exts.A1 to **==> picture [448 x 44] intentionally omitted <==** documentary, whatsoever, was adduced on the part of the respondents. The commission reports and survey plan were marked as Exts.C1 to C3. **5.** On an analysis of the facts, evidence and probabilities of the case, the Tribunal dismissed the original application on the strength of the findings referred to earlier in its judgment. **6.** In this appeal, the appellant/claimant seeks to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure by producing the purchase certificate (original) dated 9.8.1976 issued by the Land Tribunal, Sreekrishnapuram in favour of applicant's father. **7.** Heard Sri.Shaji Thomas, learned counsel appearing for the applicant and Sri.Nagaraj Narayanan, learned M.F.A.(Forest) 115/2006 6 Special Government Pleader (Forests). **8** . Learned Counsel for the appellant/applicant relied on _State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]_ to argue that the purchase certificate issued under Section 72K is conclusive proof of title and such lands are exempted under the Vesting Act. The decisions in _Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]_ and _State of Kerala v. Popular Estates [(2004) 12 SCC 434]_ were under Chapter III of the Land Reforms Act while _Mohammed Basheer_ (supra) specifically looked at S.72K of the Land Reforms Act coming under Chapter II. The Purchase Certificate issued under S.72K, according to him, is conclusive proof of the land being not a private forest, and the exemption under S.3(vii) of the Land Reforms Act would not definitely be applicable. It was argued that the definition of private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase M.F.A.(Forest) 115/2006 7 Certificate being statutorily conclusive as per S.72K, there is a presumption that the property is not a private forest. Though the Government is not in an adversary position, they have a right to file an appeal from the order of the Tribunal, as noticed in _Mohammed Basheer_ (supra). The Government has not filed any appeal from the proceedings before the Land Tribunal, which led to the issuance of the purchase certificate. Learned counsel would hasten to add that issuance of purchase certificate in favour of the applicant's father was very much pleaded in the original application and a copy of the same was also produced along with the O.A. But the original could not be produced since it was deposited before the Sreekrishnapuram Service Co-operative Bank. On such premise, the appellant/applicant seeks the O.A. to be allowed or in the alternative, to remand the matter for consideration afresh by the Land Tribunal in the light of **Mohammed Basheer** supra. M.F.A.(Forest) 115/2006 8 |**9.**The learned Special Government Pleader [Forests]| |---| |Sri.Nagaraj Narayanan pointed out a number of| |decisions of this Court to contend that a purchase| |certificate issued under the Land Reforms Act would| |only be a piece of evidence and not conclusive proof| |of the cultivation carried on in the subject| |property. The position has been affirmed by two| |decisions of the Hon'ble Supreme Court in_Kunjanam_| |_Antony_<br> and _Popular Estates_<br> (both supra)_._ _Mohammed_| |_Basheer_<br> (supra) was a subsequent decision of the| |Hon'ble Supreme Court which, it is argued, is _per_| |_incurium_. It is pointed out that _Mohammed Basheer_| |(supra) noticed<br> _Kunjanam Antony_<br>(supra) but| |distinguished it on the ground that the earlier| |decision did not consider the conclusiveness of a| |purchase certificate issued under S.72K of the Land| |Reforms Act. In fact in_Kunjanam Antony_<br> (supra) the| |applicant raised the contention that the land alleged| |to have vested under the Vesting Act, had been| |exempted from the ceiling proceedings under the Land| M.F.A.(Forest) 115/2006 9 Reforms Act by the Taluk Land Board, on the ground that it was a rubber plantation. That was a better ground since, therein, a statutory authority had found that the property was cultivated, which absolves it from vesting under the Vesting Act. Even then it was held to be only a piece of evidence and not conclusive. _Popular Estates_ (supra) also considered an exemption granted by the Taluk Land Board, on the ground of the land being a plantation and the Supreme Court noticed that the consideration for exemption from ceiling limit under the Land Reforms Act cannot operate as _res judicata_ since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act. **10.** It was argued that the enquiry of the Land Tribunal under the Land Reforms Act is not comprehensive to verify the nature of the cultivation and its extent. Often claims are accepted, based on the reports made by the Revenue Inspectors, who only M.F.A.(Forest) 115/2006 10 look at the aspect of possession and not necessarily cultivation. The learned Special Government Pleader pointed out that S.53 of the Land Reforms Act enables a cultivating tenant entitled to fixity of tenure under S.13 to purchase the right, title and interest of the land owner and intermediaries, in respect of the land held by him. S.13, a non obstante clause, speaks of the rights of tenants to fixity of tenure. S.72K by sub-section (1) provides for issuance of Certificate of Purchase to the cultivating tenant, upon which the right, title and interest of the land owner and the intermediaries, in respect of the holding or part thereof, to which the Certificate relates, vests in the cultivating tenant, free of all encumbrances created by the land owner or the intermediaries. Sub-section (2) of S.72K also mandates the Certificate of Purchase to be conclusive proof of the assignment to the tenant, of the right, title and interest of the land owner and the intermediaries. According to the learned Special M.F.A.(Forest) 115/2006 11 Government Pleader this is only conclusive proof of title and not proof of cultivation. In this context, the learned Special Government Pleader also took us to the definition clause of cultivating tenant [S.2(8)]; defined as a tenant who is in actual possession of land, entitled to cultivate the land comprised in his holding. The Land Reforms Act does not require actual cultivation for enabling fixity of tenure or issuance of Purchase Certificate; which is required to be proved under the Vesting Act as on the appointed day to absolve the property of the vesting. **11.** Further, it is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter is contained the provisions regarding deemed tenants and S.13, which speaks of rights of tenants to fixity of tenure. The definition of private forests under both enactments exclude cultivated lands and waste lands which are not enclaves within wooded areas. S.72, which speaks M.F.A.(Forest) 115/2006 12 of vesting of landlord’s rights, in Government, provides that all right, title and interest of the landlord, owners and intermediaries in respect of holdings held by cultivating tenants [including kudiyirippus and kaaraymas] entitled to fixity of tenure under S.13 and in respect of which Certificates of Purchase under sub-section (2) of S.59 have not been issued, shall vest in the Government free from all encumbrances. Hence, the vesting occurs only of lands, where fixity of tenure can be claimed under S.13; which is not applicable to leases of private forests. Hence even if there is a lease as claimed by the applicant herein, if it is of a private forest without any cultivation specified in clause (ii) to (iv), there could not have been any vesting under the Land Reforms Act for reason of the exemption under S.3(1)(vii). If there is no vesting, then of course the Purchase Certificate issued is questionable. There is absolutely no proof offered of the cultivation carried on in the property as on the M.F.A.(Forest) 115/2006 13 appointed date and the applicant before the Tribunal failed to establish that he possesses land below the ceiling area under the Land Reforms Act. It is also pointed out that Section 105 of the Kerala Land Reforms Act provides for an authorised officer, not below the rank of a Revenue Inspector to obtain information from any person relating to the extent of land held by such person and his family members and such other particulars as prescribed for the purpose of implementing the provisions of the Land Reforms Act. The authorised officer merely collects the information to bring into effect the provisions of this Act and it does not necessarily place the Government in an adversary position before the Land Tribunal. It is also urged that the private forests under the Vesting Act includes those under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act _de hors_ a notification. The learned Special Government Pleader would also rely on an unreported decision of this Court in MFA No.12 of M.F.A.(Forest) 115/2006 14 1980 dated 10.01.1986. **12.** Having elaborately referred to the contentions of both parties as regards the conclusive proof offered by the Purchase Certificate, we cannot but follow the judgment of the Hon'ble Supreme Court in _Mohammed Basheer_ (supra), from which paragraphs 21 and 22 are extracted hereunder: _“21. To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72-K. Sub-section (2) of Section 72-K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent - has been in possession of the land as a cultivat_ M.F.A.(Forest) 115/2006 15 _ing tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our - view, the land in question is exempted from vest - ing in the State under sub section (2) of Section 3 of the KPF Act._ _22. In Kunjanam Antony v. State of Kerala [Kunjanam Antony v. State of Kerala, (2003) 3 SCC 221] , relied on by the learned Senior Counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities. In this judgment, the statutory conclusiveness of title under sub-section (2) of Section 72-K of the Land Reforms Act has not been considered. Apart from the above, it was held that the certificate of purchase is also a piece of evidence which cannot be totally discarded. In the instant case, the respondent has established that he is the owner and in possession of the land on the appointed day on the basis of certificate of purchase and other materials placed on record._ 13. We are bound by the aforesaid dictum of the Hon'ble Supreme Court. We allow I.A.No.1/22 preferred under Order 41 Rule 27, for, the additional document M.F.A.(Forest) 115/2006 16 produced is the original purchase certificate, which certainly impacts the applicant's claim under the Vesting Act. The purchase certificate if relating to the scheduled property has to be found to be conclusive proof for exemption of the land from vesting, under the Vesting Act and also conclusive proof of title. On the above reasoning the question regarding exemption under S.3 of the Vesting Act will have to be considered afresh and in that circumstance the proof offered by the Purchase Certificate also ought to be considered. The third requirement as to the applicants having lands, not in excess of the ceiling limit under the Land Reforms Act also has to be verified. We make it clear that the consideration shall be on the basis of the evidence already led and there shall not be any amendment of pleadings or further evidence led before the Tribunal. We also affirm the finding of the Tribunal against exclusion which is not liable to be reopened on this limited remand. M.F.A.(Forest) 115/2006 17 The appeal of the applicant is allowed remanding the matter to the Tribunal. Parties to suffer their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/ M.F.A.(Forest) 115/2006 18 ## **APPENDIX OF MFA (FOREST) 115/2006** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF PURCHASE CERTIFICATE NO.234 DATED 30/03/1976 ISSUED BY THE SREEKRISHNAPURAM LAND TRIBUNAL.