C.K. Pavithran v. State of Kerala and Custodian of Vested Forest, Avanya Bhavan, Forest Complex, Olavakkode, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** ## **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA, 1944** ## **MFA (FOREST) NO. 136 OF 2008** ## **AGAINST THE ORDER IN OA 6/2006 OF FOREST TRIBUNAL, KOZHIKODE** ## **PETITIONER:** C.K.PAVITHRAN S/O.CHETTIYATTIL KUNJI RAMAN,, PULLUT VILLAGE, KODUNGALLUR TALUK,, THRISSUR. BY ADVS. SALIM V.S. V.T.RAGHUNATH(K/704/1979) A.M.FOUSI(K/204/2015) ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA,, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FOREST AVANYA BHAVAN, FOREST COMPLEX,, OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **2** ## **M.F.A.(F) No.136 of 2008** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No. 136 of 2008 --------------------------------------------Dated this the 06[th] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal is concerned with 5.1763 hectares of land in Re.Sy No. 605/part in Kallamala Village, Mannarkkad Taluk of Palakkad District; which was declined exemption under the Kerala Private Forests(Vesting and Assignment) Act, 1971, (for brevity the Vesting Act). The appellant purchased the fixity of tenure on the said lands, under the Land Reforms Act, purportedly evidenced by purchase certificate issued by the Land Tribunal, Agaly, produced as Ext.A5. The validity of the purchase certificate was challenged by a third party, in a suit which stood dismissed; the appeal filed against which also was dismissed. A remand made in a revision filed before the High Court also ended in the dismissal of the suit which had not been challenged further. The appellant applied for receiving land tax to the Tahsildar, ## **M.F.A.(F) No.136 of 2008** **3** Mannarkkad upon which he was informed by a notice dated 29.01.2002, that the land is in a vested forest area. The appellant then approached the Munsiffs Court, Mannarkkad with a suit for declaration against the vesting, which stood rejected for lack of jurisdiction, with liberty reserved to approach the appropriate forum. Then the instant application was filed. 2. The respondents claimed that the property is comprised in a larger extent of 100 acres notified as vested forest by notification No.1383/77 dated 10.10.1979, along with other properties in the area known as _Kallamala malavaram_ (slope of a hill) coming within different survey numbers inside the Agali Range. The land in the survey number indicated in the application was held to be included in the notification within VFC item Nos.22 and 102. The Department challenged the ownership and possession of the property, which was asserted to come within the purview of erstwhile Madras Preservation of Private Forests Act (for brevity the MPPF Act) and resisted the application on the grounds of limitation, _locus standi_ , absence of cultivation and the **4** ## **M.F.A.(F) No.136 of 2008** allegation of encroachment into forest land. 3. The Tribunal framed four issues, of limitation, whether the subject property is a private forest and whether the subject property is entitled to an exemption under S.3(2) and consequential declaration as sought for. The Tribunal found the application to be barred by limitation especially when the applicant had clearly indicated in the application about the intimation from the Tahsildar regarding the property being a vested forest, when the notification itself was long before. The Tribunal considered the other issues together and found the identity of the property, on which exemption was claimed, having not been established before the Tribunal. There was no commission taken out from the Tribunal but the reports of the Commissioners in two suits were produced in evidence. The first of such reports was in the suit filed by a third party challenging the purchase certificate issued to the applicant. The Tribunal refused to look into the same for reason of the report having not been proved through the Commissioner who prepared it. The other commissioner's report was one filed in the suit ## **M.F.A.(F) No.136 of 2008** **5** filed by the applicant himself seeking a declaration against vesting, which stood rejected for lack of jurisdiction. The Commissioner who prepared the report was examined before the Tribunal. The Tribunal found that there was disparity in the details of the property as spoken of in the application, the purchase certificate and the commission report Ext.A1. The Tribunal found that the application itself did not have a schedule of the properties and boundaries were not stated. The identity having not been established, the declaration sought was declined. 4. Sri V.T Raghunath learned Counsel appearing for the appellant would put forth only two arguments before us; regarding the conclusive proof of the purchase certificate issued under the Land Reforms Act and the presumption that arises from S.4 of the Evidence Act. It is also pointed out that there was a provision for appeal from the purchase certificate, even by the Government, which was not availed of. The Government cannot turn against the purchase certificate and challenge its veracity in another proceedings. The learned Counsel would rely on _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC**_ ## **M.F.A.(F) No.136 of 2008** **==> picture [8 x 9] intentionally omitted <==** _**260]**_ to urge that the purchase certificate issued under the Land Reforms Act, by virtue of Section 72K, is not only conclusive proof of title but the exemption is automatic under the Vesting Act. 5. The learned Special Government Pleader (Forest) Sri.Nagaraj Narayanan would at the outset point out that the denial of declaration by the Tribunal was not doubting the veracity of the purchase certificate. The applicant failed to establish the identity of the property on which the declaration was sought, with reference to the property covered by the purchase certificate. As to _**Mohammed Basheer**_ (supra)., the learned Special Government Pleader would argue that the dictum in the said case was contrary to _**Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221] and State of Kerala v. Popular Estates [(2004) 12 SCC 434]**_ . It is pointed out that in the earlier decisions above cited, the proceedings of the Taluk Land Board for exemption from ceiling limits, under the Kerala Land Reforms Act was held to be only a piece of evidence; on reliance of which alone there can be no exemption from vesting under the Vesting Act. It is also pointed **7** out that while the Kerala Land Reforms Act, for fixity of tenure on a cultivating tenant, requires only possession and a right to cultivate; the Vesting Act for an exclusion or exemption mandates cultivation as on the appointed day or at least an intention to cultivate clearly discernible from the attendant circumstances. Private forests are also exempted under the Land Reforms Act and hence the purchase certificate, issued with respect to a private forest governed by the Madras Preservation of Private Forests Act, 1949, is n _on est._ 6. _**Mohammed Basheer**_ (supra) and the binding declaration as to the exemption under the Vesting Act for a property on which purchase certificate has been issued under the Kerala Land Reforms Act, cannot be differed from. We bow to the above proposition but however, cannot find application of the dictum to the instant case, since the declaration sought for was declined by the Tribunal, for reason of the identity of the property having not been established. But before that, though no arguments were addressed, we have to definitely look at the question of limitation as coming forth in the above case. The notification ## **8** under the Vesting Act was dated 10.10.1979 and the DFO Agali Range who was examined as RW1 testified that the publication was made as per the statutory mandate under sub rule (2) & (3) of R.2A of the Kerala Private Forests (Vesting and Assignment) Rules, 1974. The application was filed long afterwards, but the Tribunal had not found the application to be barred by limitation counting the period from the date of notification. It was the admitted position of the applicant that, as on 29.01.2002, he was informed by the Tahsildar, in response to an application for receipt of land tax, that the property was a vested forest. A suit was filed before the Munsiffs Court Mannarkkad seeking declaration against vesting on 28.10.2002 which was rejected by Ext.A10 order on 20.02.2006 after which the instant application was filed before the Tribunal on 17.03.2006. The Tribunal found that even after notice of vesting, the suit was filed after about 9 months. Rule 3 of the Kerala Private Forest (Tribunal) Rules, 1972 require an application to be moved under S.8, before the Tribunal constituted within 60 days from 06.08.1981 or from the date of publication of notification. The date **9** ## **M.F.A.(F) No.136 of 2008** of publication of notification, as we saw, was in 1979 and even if the same is not reckoned, the applicant admitted to have been informed of the vesting by a communication dated 29.012002, in which event, he ought to have approached the Tribunal within 6 months from that date. True, he filed a suit before the Munsiffs Court which Court did not have jurisdiction. Even if the period spent in that Court, is excluded by virtue of S. 14 of the Limitation Act 1963 the application cannot be entertained by the Tribunal, since the limitation period reckoned from the date of knowledge expired four months before the suit was instituted in the wrong forum. We find no reason to interfere with the order of the Tribunal regarding limitation. 7. Despite the finding on limitation, the Tribunal considered the dispute agitated and found the identity of the property on which the exemption is claimed having not been established. In the application, which we see from the records, the description is confined to the extent, of 5.1763 hectares, the Re.Sy.No. 605/pt and the location, being: VillageKallamala, Taluk-Mannarkad, District Palakkad. As rightly noticed by the ## **M.F.A.(F) No.136 of 2008** ## **10** Tribunal there were no boundaries stated in the application. A5, is the purchase certificate under the Land Reforms Act. Therein, the Sy. No is shown as 1841/pt(17C) in AgalyVillage, Mannarkad Taluk, Palakkad District. The Sy.No. and the village differs and there was no correlation made to the Sy.No. available in the purchase certificate and that stated in the application. Further despite the purchase certificate having been produced, which is dated 20.04.1978. the applicant does not say from which date the applicant came into possession of the lands. However the purchase certificate being conclusive proof of title, when the same is issued under the Kerala Land Reforms Act it could be presumed that the possession of the lands as on 01.04.1964 is established especially since the purchase certificate is issued in the name of the applicant himself. However the identity of the property covered by the purchase certificate having not been correlated to the property on which the declaration is sought, the identity remains elusive. The Hon,ble Supreme Court in _**Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]**_ held so: “ _30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment_ ## **M.F.A.(F) No.136 of 2008** ## **11** _will act as an eye-opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.”_ ## _[underlining by us for emphasis]_ 8. Again there was no commission taken out from the Tribunal to identify the property on the field, with reference to the description of the property as available from the purchase certificate. The extent claimed in the application is 5.1763 hectares, equivalent to 12.79 acres and the property shown in the purchase certificate Ext.A5 is an extent of 10 acres. We also agree with the Tribunal that the commission report in the suit, filed by the third party cannot be relied on, for reason of the same having not been proved through the person who prepared it. Exts.A1 and A2 are the certified copies of the commission report and sketch in the suit filed by the applicant against the vesting. The property was said to have an extent of 12.79 acres lying in 605/pt with the plantation of JPJ plantations on the east and south, a ## **M.F.A.(F) No.136 of 2008** ## **12** pathway on the west and vested forest and private properties on the north. However the village in which the property is found has not been stated in the report. There was cultivation found in the property as seen from the commission report and the approximate age of the various trees are stated to be between 2 years to 30 years. The inspection was in the year 2004 and the cultivation hence could have been commenced only in 1974, after the appointed day. 9. PW1, was the Commissioner who prepared and submitted Ext.A1 report. PW2 is the applicant, who testified that his father took the land on _pattam_ 45 years back and that the land was entrusted to him to carry on cultivation. Though it has been testified that various agricultural operations were carried on, PW2 does not specify the date from which such operations were carried on in the subject property or the cultivation as on the appointed day. PW3 is a resident of _Kallamala,_ who also claimed acquaintance with PW1. He testified that the cultivation in the said property was available from 30 years back, which again is after the appointed day. ## ## **13** 10. We find that the identity of the property is not discernible from the application and that there was no attempt to establish before the Tribunal that the property on which the purchase certificate was issued is the property on which the exemption was claimed. Even the commission report Ext.A1 refers to a different survey number than that seen from the purchase certificate and the extent also differs. The witnesses also failed to establish or even testify to the essential requirements for exemption, which is cultivation as on the appointed day. We find no reason to interfere with the order of the Tribunal and we dismiss the appeal leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** jma