K. J. Usha, K. J. Beena & K. J. Shan v. State of Kerala and Custodian of Vested Forest, Olavakkode, Palakkad

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 1[ST] DAY OF DECEMBER 2022 / 10TH AGRAHAYANA, 1944 MFA (FOREST) NO. 148 OF 2011 AGAINST THE ORDER/JUDGMENTOA 45/2008 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONERS:** - 1 K.J.USHA , W/O.POULOSE, KANIATTIL HOUSE CHIRAYIL, BATHERI, WAYANAD DISTRICT. - 2 K.J.BEENA W/O.VARGHESE KADUNGAMALAYIL HOUSE, THAYAMPALLI,, MANATHAVADY. - 3 K.J.SHAN, KURITHIKKULAM HOUSE PERIYA VILLAGE, VARAYAL DESOM, P.O.VARAYAL,, VIA THALAPUZHA, DISTRICT WAYANAD. BY ADVS. SRI.M.C.SEN (SR.) A.C.Venugopal SMT.VIDHYA. A.C ## **RESPONDENTS:** - 1 STATE OF KERALA , THE CHIEF SECRETARY TO THE GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FOREST OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **OTHER PRESENT:** S.SREEKUMAR (SR.) ## **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 01.12.2022,** ## **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(F) No.148 of 2011** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No. 148 of 2011 --------------------------------------------Dated this the 01[st] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal is by the original applicants who claimed exemption over 3.03 acres of land in Sy.No.1/1A1A of Peria Village in Mananthavady Taluk, Wayanad District. The applicants claimed that their mother who died in 2003, obtained an oral lease of the property from one A.K. Kaderkutty, after which the entire land was brought under cultivation, both of long duration and seasonal crops and also fruit bearing trees. The owner of the property obtained Ext.A1 purchase certificate with respect to the said property and the same was excluded from the ceiling proceedings of the Taluk Land Board, against Kaderkutty, the original owner of the property. It was also contended that other properties owned by the mother of the applicants lying to the north of the scheduled property was acquired by the Government for the Elephant Corridor project at Kottiyoor. The acquisition was under **3** ## **M.F.A.(F) No.148 of 2011** the Land Acquisition Act for which compensation was paid to the mother of the applicants. The applicants also had a prayer before the authorities to acquire the subject land also for the purpose of elephant corridor since there was incessant intrusion of elephants into the cultivated land causing wide spread destruction. However, rather than acquisition, the Forest Department had attempted take over of the lands on an allegation of vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971 ( for brevity 'the Vesting Act); clearly to deprive the appellants of the compensation eligible on acquisition. 2. The Divisional Forest Officer resisted the application alleging limitation, denying the tenancy of the mother of the applicants and also possession and cultivation asserted by the applicants. According to the respondents the land is comprised in 159.20 hectares of land in Periya Village notified on 08.07.1977; with the subject properties included under VFC item No.9 and 10. The scheduled property is part of a huge m _alavaram_ (slope of a hill) having an extent of more than 100 acres, governed by the Madras Preservation of Private Forests Act, 1949 (for brevity the MPPF Act), which according to the **4** ## **M.F.A.(F) No.148 of 2011** respondents was encroached by the mother of the applicants. 3. On the question of limitation, the Tribunal held in favour of the applicants finding that the date of notification has not been clearly established and that this Court had directed the applicants to approach the Tribunal; having refused to consider their claim of exemption under the Vesting Act, in a writ petition. The Tribunal also raised issues as to (i) whether the property is a private forest, (ii) whether the applicants or their predecessor was in possession and cultivation of the lands, (iii) whether it stands vested in the Government and (iv) whether the applicants are entitled to a declaration under S.8. The Tribunal refused to rely on the commission report regarding cultivation noticed, on the premise that, but for the presence of 8 coconut trees and 12 cashew trees aged 40 to 45 years there is nothing otherwise produced in evidence to prove that these plants were planted by the predecessor. The applicants' contention regarding the conclusive proof offered by the purchase certificate and the proceedings of the Land Board were negatived relying on a Division Bench decision of this Court in _**Thresiamma v. State of Kerala 2002(2) KLT short note case No.37**_ **5** ## **M.F.A.(F) No.148 of 2011** which found the earlier decision in _**Muhammed Basheer v. State of Kerala 2002( 1) KLT short note case No.4**_ to have not considered the earlier decisions of coequal benches. Ext.A1 purchase certificate hence was found to be inadequate to prove the exclusive possession and ownership as on the appointed day. The Tribunal also refused to take into account the commission report filed before the Taluk Land Board, on the directions of a learned Single Judge of this Court, for the reason that the same was not brought in evidence before the Taluk Land Board and was not considered by the Board while disposing of the ceiling case. Exts.A3 to A19 documents produced were also found to be not relevant to prove either possession or nature of cultivation in the property. Though 3.03 acres were claimed in the application the purchase certificate was issued only with respect to 2 acres. The commission report also indicated that there is no boundary demarcation on the western and southern side of the property; thus clearly raising a doubt as to the location and identity of the property. Reliance was also placed on the Full Bench decision of this Court in _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ to hold that, it is the bounden ## ## **6** duty of the applicant under S.8 of the Vesting Act to prove that the subject land is not a private forest and that it is not liable to be vested in the Government. The claim under S. 3(2) and 3(3) of the Act was refused to be considered especially for reason of the ownership having not been established. 4. Sri. S Sreekumar, learned Senior Counsel appearing for the applicants, relied on _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260],**_ the decision in an appeal filed from the decision of this Court, referred above. The Hon'ble Supreme Court held that the purchase certificate issued under S.72K of the Land Reforms Act is conclusive proof of title and it enables exemption under the Vesting Act. The Tribunal erroneously failed to consider the documents produced by the applicants which, though after the appointed day under the Vesting Act, proves the continued occupation of the lands by the mother of the applicants and then by the applicants themselves, on whom the property devolved. The evidence produced clearly established the title and possession of the applicants and their predecessor, especially when they were continuously agitating their rights in the various forums **7** ## **M.F.A.(F) No.148 of 2011** under the Land Reforms Act and also the Vesting Act. The Tribunal egregiously erred in eschewing the commission report which speaks of not only the various cultivation in the property but also notices the age of the long duration trees, fruit tress and plantation crops like coffee and cardamom. The learned Senior Counsel would urge this Court to also look at the commission report filed by the Commissioners appointed by a learned Single Judge of this Court which was also produced before the Taluk Land Board, as directed by the learned Single Judge. The appeal according to the learned Senior Counsel has to be allowed and declaration as prayed for granted. 5. Sri Nagaraj Narayanan resists the reliance placed on _**Muhammed Basheer**_ (2019 supra) on the ground that the learned Judges failed to notice two earlier judgments of coequal benches in _**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 both the earlier decisions their Lordships held, the proceedings of the Taluk Land Board to be not conclusive proof of exemption under the Vesting Act and held it to be only a piece of evidence. The proceedings **8** ## **M.F.A.(F) No.148 of 2011** before the Taluk Land Board according to the Special Government Pleader has more credence insofar as cultivation is concerned than a purchase certificate issued under Section 72K of the Land Reforms Act. It is argued that the private forests are exempted from vesting under the Land Reforms Act as per S. 3(1)(vii) of that Act and hence the purchase certificate cannot be conclusive of the cultivation in the land, even if it is held to be proof of title; and it is in fact _non est_ . In any event, the fixity of tenure entitled to a cultivating tenant under the Land Reforms Act is not on the basis of the cultivation carried on in the property. What is germane under the Land Reforms Act is only the possession by way of a tenancy and the right to cultivate; which is discernible from the definition of a cultivating tenant. While the Land Reforms Act does not require cultivation for the purpose of vesting, the Vesting Act enables a declaration of exemption under S. 3(2) or an exclusion under S.2(f)(1(i), only if there is cultivation or a clear discernible intend under S.3(3). On the facts of the present case it is pointed out that the boundaries have not been clearly demarcated and the extent of the property also differs in the purchase certificate, from ## ## **9** that claimed in the application. It is argued that the Commissioner had no expertise to determine the age of the trees or plants found in the property. The acquisition of right by the predecessor in interest is alleged to be an oral lease, which is not proved either by oral testimony or production of documents. 6. The applicants alleged that their mother obtained a lease from one A.K. Kaderkutty before 1963 and was continuing in possession of the said property, with agricultural activities carried on therein. True, there is no evidence with respect to oral lease. PW1, the son of the lessee, was not born when the oral lease had commenced nor even on the appointed day under the Vesting Act. But, the purchase certificate Ext.A1 produced is of the year 03.03.1977, and the claim for fixity of tenure and the right to purchase accrues under the Land Reforms Act, only if the tenancy is prior to 01.04.1964. Coupled with this is the fact that S.72K of the Land Reforms Act provides that the purchase certificate issued by the Land Tribunal is conclusive proof of title of the property, scheduled in the certificate. We would, a little later, consider the decision in _**Muhammed Basheer**_ (2019 supra), while considering **10** ## **M.F.A.(F) No.148 of 2011** the aspect of cultivation and exemption. But, it cannot be doubted for a minute that Ext.A1 purchase certificate issued for the very same land is conclusive proof of title and possession of the same as on 01.04.1964. We also have to notice Ext.A2 certified copy of the order of the Land Tribunal, Mananthavadi which led to the issuance of Ext.A1. 7. Now we come to Ext.A4, which is the copy of the proceedings of the Chairman of the Taluk Land Board, Mananthavadi, wherein the property covered by the purchase certificate was allowed exemption from the ceiling limit of Kaderkutty, the declarant in the said proceedings. In Ext. A4 the applicants' mother is impleaded as R.200 and her claim along with some others were initially rejected. However she, along with some others approached this Court in C.R.P 135/1990, in which, she is revision petitioner No.5 as seen from Ext.A3 order. Two lawyers from Thalassery were appointed as Commissioners and the report of inspection was filed before the Taluk Land Board as directed in Ext. A3. The report and plan submitted by the Commissioners were specifically noticed in Ext. A4 proceedings, in page 22, and it was also observed that some of the improvements in some holdings, even at that ## ## **11** time was more than 30 to 35 years. The claim of all the revision petitioners in C.R.P 135/90 was accepted by the Taluk Land Board and the benefit of deemed tenancy conceded to them, finding such lands to be in their possession and enjoyment. It has thus been clearly established that the property was in the possession and ownership of the mother of the applicant as on the appointed day under the Vesting Act. 8. We also notice the land tax receipts produced at Exts.A11 to A13, property tax and building tax receipts issued by the local body, Exts.A14 and A15, which further establish the continued possession and occupation of the lands by the applicants and their predecessor-in interest without any interference from third parties or the Forest Department. Ext.A18 is the possession certificate issued by Village Officer, Peria with respect to the same property in Sy.No.1/1A1A. The possession of the property after the appointed day also has been clearly established by the evidence led before the Tribunal. 9. With regard to the boundaries, the application shows Thalassery Taluk boundary on the north and on the other boundaries, ## ## **12** Kaderkutty's land. The purchase certificate Ext.A1 also shows plantations (' _thottam'_ in the vernacular) on three sides and Joseph's property on the west. The Commissioner's report Ext.C1 also finds that Thalassery taluk, in Kannur District lies on the northern boundary of the petition schedule property. It is also observed that since there is no boundary demarcation on the western and southern side of the properties, such boundaries cannot be specified. Obviously the properties of Kaderkutty was lying contiguous, as is indicated from the purchase certificate and the application, which is the reason of such observation made by the Commissioner. On the eastern side the Commissioner clearly notices boundary demarcation with shallow channels. The Commissioner has also produced a sketch of the property prepared on inspection, which was carried out along with the respondent. 10. The Commissioner was examined as CW1 and he had deposed in accordance with the report which is also in support of the applicants. In cross-examination, it was specifically stated that no work memo was given to the Commissioner by either parties. Hence the ## ## **13** specific contest regarding the boundaries was never brought to the notice of the Commissioner, before inspection nor was he asked to verify it, by the respondent. The Commissioner also deposed in crossexamination that the Surveyor measured the property and demarcated it, in his presence. He categorically stated that except on the northern boundary, he was not aware of the owners of the properties lying on the other boundaries. The question regarding identity is one raised in the appeal without the same having been properly agitated before the Tribunal. 11. We cannot but observe that the finding of the Tribunal that there can be no reliance placed on the commission report, Ext. C1, is clearly erroneous. We have to also make it clear that the commission reports produced before the Taluk Land Board, was perused by the Taluk Land Board while disposing of the ceiling proceedings as seen from Ext. A4 proceeding. But we have to also observe that the Commissioners who prepared the report filed before the Taluk Land Board was not examined before the Tribunal nor do we see the reports from the records of the case. Be that as it may, Ext.C1 commission ## ## **14** report, is quite comprehensive according to us and after noticing the boundaries and the extent which is clearly stated to be 1.2263 hectares, lying in field No.1/1A1A pt in Periya Village, it has also been stated to contain a single storied tiled house facing north. The residential building is numbered as TP VI/761 which has the characteristics of a human dwelling. The house is stated to be not electrified though wiring work is completed. The approach to the house is through a cut road and runs around 1½ km away from the main road leading to the courtyard of the said house. On the western side of the courtyard there is a firewood shed and near it there exist an old pond which appears to have been used for agricultural purposes. On the north eastern side is a dilapidated cattle shed and on the south eastern side, a well is situated. These are all very clear signs of human habitation. 12. The cultivation in the property as observed by the Commissioner, is available in paragraphs 4 and 5 of the report, which needs to be extracted herein below: “4.The petition schedule property lays in different Taks. There are boundary marks for the taks with laterate stones. There are lot of trees and plants throughout the land. There are 8 ## **15** coconut trees aged 40-45 years (about 110 cm in circumference) laying on northern part of the land. 3 coconut trees of the same age are perished and 3 of them are laying destroyed in the land. The remnants of about 9 coconut trees were found at various parts of the land. The said coconut trees appears to be destroyed by elephant's attack. Some coconut trees and areacanut trees of the same age were also found in the adjacent land outside the northern boundary of the petition schedule property. There are nearly 250 arecanut trees aged about 20-30 years (20 to 30 mts high) in the property. There are 6 jackfruit trees aged about 30-35 years and 6 jack fruit trees aged 20-30 years laying on various sides. 7 Mango trees aged 30-40 years and 7 mango trees aged 20-30 years also seen in the land. There are 12 cashewnut trees aged about 4045 years and 6 cashewnut trees aged 25-30 years in the land. 5. There are about 800 coffee plants laying on all sides of the land. Some of the coffee stumps are 50 cm in circumferences. About 200 of the coffee plants appears to be aged about 40 years. There are 300 coffee plants aged 20-30 years and 300 coffee plants aged 10 to 20 years. Nearly 100 pepper vines aged more than 30 years are present in some of the coffee plants, areacanut trees and other trees. There are about 10 fruit bearing orange plants aged more than 30 years, about 25 Narakam plants, 15 coco plants aged 30-40 years, 2 nelli, (aged ## **M.F.A.(F) No.148 of 2011** ## **16** about 30 years), 5 champa, (aged 25 years) 25 rubber trees (aged 30-40 years), 4 silver oak (aged 20 to 30 years) 5 coriander plants (aged 30 years), 1 gramboo, 8 elam plants throughout the property. The age of the trees and plants are approximate and to ascertain the exact age proper scientific, assistance is necessary. There are some other shrubs in the property. In the northern side of the property there is appearance of regular visit of elephants. There is thick forest outside the boundary of the petition schedule property.” 13. The learned Special Government Pleader had specifically raised a contention that the Commissioner was not an expert. However no such contest was made when the Commissioner was in the box. In cross-examination the Commissioner was asked about the improvements in the property, which was asserted to have been verified personally and it was also testified that the age noticed was approximate. Even the above extract shows that the Commissioner admitted to have not received any scientific assistance; but that need not necessarily lead to the age noticed to be completely eschewed. There was also no specific contest to the age noticed in the report, in the **M.F.A.(F) No.148 of 2011** **17** cross examination of the Commissioner. The age noticed ranges from 20 to 35 to 40 years as seen from the extracts herein above, when the inspection was in the year 2010. The height of certain trees and the girth were specifically noticed and all the cultivation were such as which would enable an exemption under S.3(2) or even an exclusion under clauses (B) and (C) of S.2(f)(1)(i) of the Vesting Act. In the totality of the circumstances as noticed by us herein above, we are convinced that the applicants are entitled to exemption for the property claimed under the Vesting Act. We make it clear that the applicant would be entitled to possess such properties as demarcated in the sketch prepared by the Surveyor in the presence of the Commissioner to the extent of 1.2263 hectares. 14. Now we have to notice the decisions of the Hon'ble Supreme Court relied on by both sides. _**Muhammed Basheer**_ (2019 supra) declared that the purchase certificate issued under the Land Reforms Act operate as an exemption under the Vesting Act. _**Kunjanam Antony & Popular Estates**_ were concerned with the proceedings of the Taluk Land Board; which was held to be a piece of evidence in **18** ## **M.F.A.(F) No.148 of 2011** adjudicating the dispute under the Vesting Act. Even the Division Benches of this Court before and after the Division Bench decision of this Court in _**Muhammed Basheer,**_ accepted that the purchase certificate was a valid piece of evidence under the Vesting Act also. Here, we have seen the purchase certificate, Ext. A1, issued pursuant to Ext. A2 proceedings of the Land Tribunal. Ext. A2 has Kadarkutty as the respondent and fixes the purchase price on the basis of the fair rent, of tenancy. Ext. A4 proceedings of the Taluk Land Board has been dealt with by us in the earlier paragraph, the presence of the mother of the applicants as a respondent, and the claim having been allowed, again in the proceedings against the declarant, Kaderkutty. In addition to this, is the Commissioner's report, the continued possession, occupation and enjoyment of the properties as also the cultivation noticed in the report; which relates back to the appointed day under the Vesting Act. The property, on admission of the applicants, the observations of the Commissioner and the acquisition made of adjacent properties for an Elephant Corridor, indicates the vegetation being ravaged by elephants; a plausible explanation for the cultivation from the appointed day being **19** ## not evident in the property. Despite these odds there were noticed trees and plants which were planted as on the appointed day. There is sufficient evidence to declare the exemption as prayed for in the applications. The MFA is allowed with the declaration under S.8 as to the extent specified above. The parties shall bear their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** jma