K. Kurian v State of Kerala and Custodian of Vested Forest (MFA (Forest) No. 71 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN** **TUESDAY, THE 8[TH] DAY OF NOVEMBER 2022 / 17TH KARTHIKA, 1944 MFA (FOREST) NO.71 OF 2007** **AGAINST THE ORDER DATED 21.11.2006 IN O.A.NO.37/2004 OF THE** **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** **K.KURIAN, AGED 52 YEARS, S/O.CHACKO, KARIKULATH HOUSE, MONCY BHAVAN, GANDHI NAGAR, KELPETTA P.O., VYTHIRI TALUK, WYNAD DISTRICT.** **BY ADVS. DR.K.B.MUHAMED KUTTY (SR.) SRI.K.M.FIROZ SMT.M.SHAJNA** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON** **08.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest) No. 71 of 2007 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ --------------------------------------------M.F.A.(Forest) No.71 of 2007 --------------------------------------------Dated this the 8[th] November, 2022** ## **JUDGMENT** ## **K. Vinod Chandran,J.** **Appeal is filed by the applicant before the Tribunal, seeking declaration that the scheduled property is not liable to be vested under the Kerala Private Forests [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act']. The scheduled property had an extent of 2 Acres, comprised in Survey No.76/1A1F of Vellamunda Village, Mananthavadi Taluk, Wayanad District.** **2. The applicant claimed that the property belonged to** _**‘janmam’**_ **of Mangalasseri tharavad and the landlord leased it out orally in 1963 to one Kannan. The lessee carried on seasonal and lemon grass cultivation and obtained a Certificate of Purchase in the year 1972. The petitioner purchased** M.F.A.(Forest) No. 71 of 2007 **3** **the property in 1996 from the legal heirs of Kannan. The respondents disputed the oral lease, refused to be bound by the Purchase Certificate, denied cultivation and asserted trespass by the applicant.** **3. The Tribunal found, based on** _**State of Kerala v. Kunhiraman [1990 (1) KLT 382]**_ **and** _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ **that it is the bounden duty of the applicant to prove that the property is not a private forest. It was held that there was no proof regarding that, adduced in evidence. There was also no evidence of any cultivation enabling exclusion under Clauses (A) to (B) of S.2(f)(1)(i) of the Vesting Act. The report of the Commissioner also did not support the claims raised by the applicant. Having found that the property is governed by the Madras Preservation of Private Forest Act, 1949 [for brevity, 'the MPPF Act'] it was also held that neither is it liable to be excluded on the ground of cultivation nor can there be any exemption claimed under S.3(2)&(3).** M.F.A.(Forest) No. 71 of 2007 **4** **The Purchase Certificate was refused to be considered since it was held to be inconclusive proof of title in** _**State of Kerala v. Alexander [1993 (1) KLT SN 4 Case No.4]**_ **.** **4. Sri. K.M.Firoz, 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** M.F.A.(Forest) No. 71 of 2007 **5** **private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase Certificate being statutorily conclusive as per S.72K, there is a presumption that the property is not a private forest. It is also argued that Ext.B2 plan would indicate that the area is occupied and planted. 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.** **5. 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** M.F.A.(Forest) No. 71 of 2007 **6** **affirmed by two decisions of the Hon'ble Supreme Court in** _**Kunjanam Antony**_ **and** _**Popular Estates**_ **(both supra)** _**. Mohammed Basheer**_ **(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** _**Kunjanam Antony**_ **(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**_ **(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 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** M.F.A.(Forest) No. 71 of 2007 **7** **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.** **6. 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 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** M.F.A.(Forest) No. 71 of 2007 **8** **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 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** M.F.A.(Forest) No. 71 of 2007 **9** **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.** **7. 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 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** M.F.A.(Forest) No. 71 of 2007 **10** **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 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** M.F.A.(Forest) No. 71 of 2007 **11** **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 1980 dated 10.01.1986.** **8. A Division Bench of this Court in** _**Kunhiraman**_ **(supra) and a Full Bench in** _**Chandralekha**_ **(supra) categorically found that the burden of proof lies on the applicant to establish that the property on which declaration is sought under the Vesting Act is not covered under MPPF Act nor is it a private forest. The said view has been affirmed by the Hon'ble Supreme Court in** _**Popular Estate**_ M.F.A.(Forest) No. 71 of 2007 **12** **(supra). As far as the coverage under the MPPF Act, the respondents had specifically contended that the disputed property lies contiguous with the forest area exceeding 100 Acres as per Ext.B2 sketch, in which B4 is the disputed property. There is no contra evidence offered by the applicant. As far as Clauses (A) to (D) of S.2(f)(1)(i) the Tribunal elaborately considered the issue with reference to the evidence led as also the commission report. It was found that the pleading was only with respect to cultivation of lemon grass and seasonal crops and hence Clauses (A) to (D) were not applicable. Though the applicant alleged that he had planted 1500 coffee plants, the Commissioner did not detect even a single coffee plant. The Commissioner reported thorny bushes, weeds and trees of forest specie. There was also no trace of any seasonal cultivation or of lemon grass. The only indication or probability of human skill having been employed in the property is the existence of three mud bunds, which does not necessarily lead to an** M.F.A.(Forest) No. 71 of 2007 **13** **inference of cultivation. We are afraid that the order of the Tribunal with respect to the applicant being not entitled to the exclusion under S.2(f)(1) (i) under the MPPF Act cannot be interfered with.** **9. The Tribunal also found that the** **applicants not being the owners as on 10.05.1971 are not entitled to the declaration sought for.** _**Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)**_ **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. 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), from which paragraphs 21 and 22 are extracted hereunder:** _**“21. To sum up, the certificate of purchase was issued by the Land Tribunal, under subsection (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**_ M.F.A.(Forest) No. 71 of 2007 **14** _**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 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.**_ M.F.A.(Forest) No. 71 of 2007 **15** _**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.**_ **10. We are bound by the aforesaid dictum of the Hon'ble Supreme Court. 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** M.F.A.(Forest) No. 71 of 2007 **16** **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.** **The appeal of the applicants is allowed remanding the matter to the Tribunal. Parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/09/11/2022**