Joseph, S/o. Devassia v. State of Kerala and 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 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 MFA (FOREST) NO.134 OF 2005** **AGAINST THE ORDER DATED 03.01.2005 IN O.A.NO.54/2000 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** **JOSEPH, S/O.DEVASSIA, CHEMMARAPPILLIL, POTTASSERI AMSOM, KANJIRAPUZHA, MANNARGHAT TALUK.** **BY ADVS. SRI.D.KRISHNA PRASAD SRI.T.P.ELDHOSE SRI.M.HARISHARMA SRI.D.NARENDRANATH** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD.** **BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST GOVERNMENT PLEADER** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA(Forest) No.134 of 2017 **2** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.134 of 2005 ---------------------------------------------------Dated this the 26[th] October, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** The appeal is by the applicant before the Forest Tribunal, which considered and allowed a petition for review filed by the Government and rejected the original application on the reasoning that the scheduled lands are covered by the Madras Preservation of Private Forest Act, 1949 [hereafter, 'the MPPF Act'] and there is no valid claim for exclusion or exemption under the Kerala Private Forest [Vesting and Assignment] Act, 1971 [hereafter, 'the Vesting Act']. 2. On the question of review, the Tribunal found that at the earlier instance, this Court has, in an MFA, found the review to be maintainable and the matter was remanded only for consideration of the evidence produced by the applicant. The earlier MFA was numbered as MFA No.995 of 1988 arising from the order in **3** MFA(Forest) No.134 of 2017 I.A.No.365 of 1987 in O.A.No.537 of 1976. The Tribunal, in the impugned order, has found that the I.A and the O.A were renumbered as I.A.No.130 of 2001 and O.A.No.54 of 2000. The earlier appeal was disposed of by a common judgment in a batch of writ petitions. The Division Bench in the common judgment in _Ibrahim v. Custodian of Vested Forests [2000 KHC 715]_ categorised the appeals into three groups. The first group contained one case in which the review was allowed based on a Commissioner's report, which was obtained after the review petition was filed. The impugned orders in the second group also relied on such subsequent Commissioner's report as also the factum of no copy application having been filed by the Government. The Division Bench found that in the second group of cases there was no pleading regarding the non-filing of a copy application and hence the review was only based on the Commissioner's report. The Division Bench found that in both the first and second group of cases the review was incompetent. However, in the third group there was a specific ground that there was delay in obtaining certified copy and hence no appeal could be **4** MFA(Forest) No.134 of 2017 filed. The appellants argued that no copy application was filed at all. The Court found that such a hyper technical contention cannot be sustained, especially since the ground was one of no appeal having been preferred for reason only of the certified copy having not been obtained in time. In the third group of cases the review application was held to be maintainable and fresh decision was directed to be taken based on the evidence already adduced by the appellants and any further evidence, if adduced. 3. The Tribunal framed two issues; (i) regarding the claim of the scheduled properties being not a private forest capable of vesting under the Vesting Act and (ii) whether there can be a claim of exemption under S.3(2) or 3(3) of the Vesting Act. The Tribunal relied on _State of Kerala v. Kunhiraman [1990 1 KLT 382]_ to hold that the burden to establish exclusion from the MPPF Act squarely lies on the applicant. There was absolutely no evidence led regarding the said issue, nor was there any pleading in the original application or the counter statement to the review petition. The applicant, who was examined as PW1, also did not speak of any such exclusion and **5** MFA(Forest) No.134 of 2017 he categorically admitted in cross-examination, his ignorance about the said fact of cultivation. Exts.A1 & A2 title deeds relied on by the applicant himself categorised the subject property as part of a _malavaram_ [slope of a hill], which was also admitted by PW1. PW1 admitted that the properties in the slope of the hill, in which was comprised the scheduled properties, had a total extent of 100 acres. The Tribunal hence concluded that the scheduled property is a private forest under the MPPF Act. The exclusion under clauses (A) to (D) of S.2(f)(1)(i) of the Vesting Act was also considered elaborately and the same found to be not applicable to the scheduled land. On the claim of exemption under S.3(2)&(3) of the Vesting Act it was found that Exts.A1 & A4 were documents executed after the appointed day and hence there is no _locus standi_ to claim exemption under S.3(2) or 3(3) of the Vesting Act. It was also found that Exts.A2 & A5, though executed prior to the appointed day under the Vesting Act, there is no evidence as to permission of the District Collector having been obtained for execution of the said documents, especially when the properties are said to be covered under the MPPF Act. **6** MFA(Forest) No.134 of 2017 4. Learned Counsel for the appellant Smt.Santhi argued that the Tribunal ignored Exts.A3 & A6, purchase certificates, issued by the Land Tribunal, which proves that the scheduled property was held by the purchaser and also cultivated. Learned Counsel relied on _State of Kerala v. Mohammed Basheer (2019 1 KHC 950)_ to argue that the Purchase Certificate issued under the Land Reforms Act is conclusive proof, not only of title, but also of the factum of cultivation, as held by the Hon'ble Supreme Court. The learned Counsel also relied on _Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461),_ a Full Bench decision of this Court to assail the finding of the Tribunal that an assignee, subsequent to the appointed day, cannot raise a valid claim of exemption before the Tribunal. 5. The learned Special Government Pleader Sri Nagaraj Narayanan argues that the review was proper and the ground urged, is permissible under S.8B of the Vesting Act. The earlier order was totally erroneous since it proceeded merely on the interested testimony of the applicant. A number of decisions of this Court were also pointed out to contend that a purchase certificate issued under **7** MFA(Forest) No.134 of 2017 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 enquiry 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 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 there of, 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 **8** MFA(Forest) No.134 of 2017 to the tenant, of the right, title and interest of the land owner and the intermediaries. According to the learned Special Government Pleader this is only conclusive proof of title and not proof of cultivation. In this context, the learned Special Government Pleader also takes 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. There is absolutely no proof offered of the cultivation carried on in the property and the applicant before the Tribunal failed to establish that he possesses land below the ceiling area under the Land Reforms Act. 6. _Parameswara Sastrigal_ [supra] is an authority for the proposition that even a person who acquired the properties after the appointed day, could initiate the proceeding before the Forest Tribunal under S.8 of the Vesting Act. The claim of exemption hence **9** MFA(Forest) No.134 of 2017 has to be considered afresh but however with reference to the appointed day. As far as the conclusive proof offered by the Purchase Certificate, we cannot but follow the judgment of the Hon'ble Supreme Court in _Mohammed Basheer_ [supra]. 7. On the contentions raised by the learned Special Government Pleader, we have to just notice the decision of the Hon'ble Supreme Court _Mohammed Basheer_ [supra], 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. Subsection (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 cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our_ MFA(Forest) No.134 of 2017 **10** _view, the land in question is exempted from vesting 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._ 8. Going by the underlined portion, we cannot but find ourselves bound by the aforesaid dictum of the Hon'ble Supreme Court. Ext.A1 _patta_ hence has to be found to be conclusive proof for exemption of the land from vesting, under the Vesting Act; if it relates to the scheduled land. As far as the finding regarding title, it cannot but be said that Ext.A1, if pertains to the property and is a Certificate issued under S.72K is conclusive proof of title. On the **11** MFA(Forest) No.134 of 2017 above reasoning the question regarding exemption under S.3(2) or (3) of the Vesting Act will have to be considered afresh and in that circumstance the proof offered by the Purchase Certificates also ought to be considered. We make it clear that the findings of the Tribunal regarding inclusion under the MPPF Act and the findings regarding the exclusion under Clauses (A) to (D) of S.2(f)(1)(i) not being proved, stand upheld in this judgment, and is not open for consideration on remand. 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. The appeal is allowed remanding the matter to the Tribunal. Parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C. JAYACHANDRAN, JUDGE** **sp**