K.K. Abdul Latheef & others 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** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 MFA (FOREST) NO. 105 OF 2005** **AGAINST THE ORDER IN OA Nos. 52, 53 & 54/2001 OF FOREST** ## **TRIBUNAL, KOZHIKODE** ## **APPELLANTS:** - 1 K.K.ABDUL LATHEEF, S/O KADER HAJI, KAMMALIKUKNNATH HOUSE, TAMARASSERY P.O.,, KOZHIKODE DIST. - 2 JAFFER E.K. S/O. KUNHAHAMED HAJI EDAVANAKKUNNUMMAL, MENJANIAM P.O. PERAMBRA,, KOZHIKODE. - 3 N.P.KUNHAHMAD NJANIAMBATH S/O. MOIDEEN MENJANIAM P.O. PERAMBRA, KOZHIKODE. (DIED. LRs ARE IMPLEADED) - 4 MRS.KUNHAMI UMMA C.P. W/O. KUNHAMMED MENJANIAM P.O. PERAMBRA, KOZHIKODE. - 5 MADATHIL MOOSA S/O. KUNHIMOIDEEN MENJANIAM, P.O. PERAMBRA, KOZHIKODE. - SAFIYA KABEER, W/O KABEER, VAYAPPURATH, - 6 KARIYATHANKAVU - RAMLA BASHEER, W/O BASHEER, CHANGARATH HOUSE, - 7 PANNIKKOTTUR P.O., PALANGAD - JASMIN LATHEEF, W/O ABDUL LATHEEF, - 8 KAMMALIKUKNNATH HOUSE, KADAVOOR P.O., THAMARASSERI - SOUDA MOIDEEN KOYA, W/O MOIDEEN KOYA, - 9 CHUNDENKUZHIYIL HOUSE, MANGAD - SHAHINA ISMAIL, W/O ISMAIL, ANAPPARA, - 10 KANTHAPURAM, POONUR APPELLANTS 2 & 4 ARE RECORDED AS LRs AND ADDITIONAL APPELLANTS 6 TO 10 ARE IMPLEADED AS TEH Lrs OF DECEASED 3RD APPELLANT AS PER ORDER DATED 21.2.2007 IN I.A. NO.364/2007 M.F.A.Nos.105 of 2005 & 33 of 2006 **2** BY ADVS.SRI.V.V.SURENDRAN SRI.P.A.HARISH ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS A BHAVAN, FOREST COMPLEX,OLAVAKKODE,PALAKKAD DIST. BY ADVS.SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH MFA (FOREST).33/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.Nos.105 of 2005 & 33 of 2006 **3** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 MFA (FOREST) NO. 33 OF 2006** **AGAINST THE ORDER IN OA Nos. 52, 53 & 54/2001 OF FOREST** **TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS/APPLICANTS:** 1 K.K.ABDUL LATHEEF KAMMALIKUNNATH, THAMARASSERI P.O.,, KOZHIKODE DISTRICT. 2 JAFFER E.K. SO.KUNJAHAMMED HAJI EDAVANAKUNNUMMAL, MENJANIAM P.O.,, PERAMBARA, KOZHIKODE(OA 52/2001). 3 E.K.JAFFER SO.N.P.KUNJAHAMMED HAJI EDAVANAKUNNUMMAL, MENJANIAM P.O.,, PERAMBARA, KOZHIKODE(O.A.53/2001). 4 N.P.KUNHAMMED NJANIAMBATH S/O.MOIDEEN, MENJANIAM P.O., PERAMBRA,, KOZHIKODE DISTRICT. (DIED. LRs IMPLEADED) 5 KUNHAMI UMMA C.P. WO.KUNHAMMED MENJANIAM P.O., PERAMBRA, KOZHIKODE. 6 MADATHIL MOOSA SO.KUNHI MOIDEEN W/O.MUNHAMMED, MENJANIAM P.O.,, PERAMBRA, M.F.A.Nos.105 of 2005 & 33 of 2006 **4** KOZHIKODE(OA.54/2001) - 7 JAFFER E.K., S/O KUNAHAMMED HAJI, AGED 30 YEARS, RESIDING AT EDAVANAKUNNUMMAL, MENJANIAM P.O., PERAMBRA, KOZHIKODE - 8 SAFFIA KABEER, W/O KABEER, VAYAPPURATH, KARIYATHANKAVU - 9 RAMLA BASHEER, W/O BASHEER, CHANGARATH HOUSE, PANNIKKOTTUR P.O., PALANGAD - 10 JASMIN LATHEEF, W/O ABDUL LATHEEF, KAMMALIKUKNNATH HOUSE, KADAVOOR P.O., THAMARASSERI - 11 SOUDA MOIDEEN KOYA, W/O MOIDEEN KOYA, CHUNDENKUZHIYIL HOUSE, MANGAD - 12 SHAHINA ISMAIL, W/O ISMAIL, ANAPPARA, KANTHAPURAM, POONUR ADDITIONAL RESPONDENTS 7 TO 12 ARE IMPLEADED AS THE LRs OF DECEASED 4TH RESPONDENT AS PER ORDER DATED 28.3.2007 IN I.A. NO.640/2007 BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.11.2022, ALONG WITH MFA (FOREST).105/2005, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.Nos.105 of 2005 & 33 of 2006 **5** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.Nos.105 of 2005 & 33 of 2006 ---------------------------------------------------Dated this the 1[st] day of November, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** Appeals are by the State and the applicants before the Forest Tribunal; which impugn the common order of the Tribunal in three Original Applications. It is not clear as to how the three OAs were clubbed together, since the common aspect is only that the property scheduled lies in the same village and is part of the same _malavaram_ (slope of the hill). Be that as it may, since a common order was passed, we feel it appropriate that the appeals be disposed of by one judgment, especially since the grounds are almost similar. 2. In O.A. No.52/2001, the property scheduled has an extent of 10 acres comprised in R.S. No.509 of Thondernad Village and that in O.A. No.53/2001, is situated in the same village and Sy. No., but the extent is 7.5 acres. O.A. No.54/2001 has scheduled two plots, the first, of 17 acres in Survey No.1130 and the second, in two bits; Bit-A comprised of 3 acres and Bit-B comprised of 1.15 acres, both in survey No. 1134. The petitioners sought declaration of exclusion from the Madras Preservation of Private Forest Act (for brevity, the MPPF M.F.A.Nos.105 of 2005 & 33 of 2006 **6** Act), specifically under S.2 (f)(1)(i) (B) to (D). It was asserted that all the above said lands were planted with cardamom, coffee and pepper as on the appointed day. The properties in O.A. Nos. 52, 53 and 54 of 2001 were said to be owned by one Kunhami, who on oral lease gave possession of the properties for cultivation to those who later obtained purchase certificate and then sold the properties to the present applicants or their vendors. 3. The Tribunal raised two issues for consideration; one, whether the petition scheduled properties were private forests as on 10.5.71, and whether the applicants are entitled to the declaration sought for. The Tribunal found on the basis of _State of Kerala v. Kunh iraman 1991 KLT 382_ that the burden was on the applicant, to prove that the scheduled property was not included under the MPPF Act, and hence not coming under the definition of private forest under S.2(f) of the Kerala Private Forest (Vesting and Assignment) Act (for brevity, the Vesting Act). With respect to plot II in O.A.No.54 of 2001, the Tribunal found that those were _patta_ lands assigned to the cultivators and hence they are not private forests; against which the State has filed appeal. As for the claim for exclusion, it was found that the applicants took no steps to prove that the properties were not covered under the MPPF Act or that they were not comprised within M.F.A.Nos.105 of 2005 & 33 of 2006 **7** forest areas of 100 acres lying contiguously. The Commission Report, the sale deeds etc produced also indicated the location to be a _malavaram_ (slope of a hill) and had vested forest for boundaries. Against this overwhelming evidence on the part of the applicant, the only evidence was the oral assertion of PW1. The Tribunal relied on _State of Kerala v. Chandraleksha 1995 (2) KLT 152_ to hold that mere denial of the property not being comprised under the MPPF Act would not enable proof of that fact; nor would it shift the onus of proof on the State. As far as the inclusion under Clause (B) to (D), it was found that there was nothing to show the status of the property as on the appointed day and that all the documents produced were with respect to periods long after the appointed day. The purchase certificates were found to be not conclusive proof of neither the title of the property nor the cultivation as on the appointed day. It was also held that the applicant being subsequent assignee, lack _locus standi_ to claim exemption under S.3(2) or 3(3) of the Vesting Act. 4. Learned Counsel for the appellant Sri.V.V.Surendran argued that even a subsequent assignee is entitled to file an application under S.8 as has been held in _Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)_ . Further it was pointed out that the Hon'ble Supreme Court in _State of Kerala v. Mohammed Basheer_ M.F.A.Nos.105 of 2005 & 33 of 2006 **8** _[ (2019) 4 SCC 260]_ found that issuance of a Purchase Certificate under S.72K of the Land Reforms Act is conclusive proof of exemption under the Vesting Act. 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 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 M.F.A.Nos.105 of 2005 & 33 of 2006 **9** 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 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. 6. Further It is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which are the provisions regarding deemed tenants and S.13, which speaks of rights of tenants to fixity of tenure. S.72, which speaks of vesting of landlords 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 M.F.A.Nos.105 of 2005 & 33 of 2006 **10** 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, 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. 7. As far as the State's appeal is concerned, the Tribunal clearly found that plot No.II scheduled in O.A. No.54/2001 lies in two bits and they are _patta_ lands. Bit-A measuring 3 acres was assigned to one Ambrose by the Tahsildar under A8 _patta_ dated 4.9.1980. Bit-B measuring 1.15 acres was assigned to one Velu under Ext.A9 _patta_ dated 11.2.1980. Exts. A8 and A9 _pattas_ were granted in pursuance of the proceedings under the Land Assignment Act. It was on this basis that the property scheduled as Plot-II was held to be not a private forest as on 10.5.1971, being government land. Obviously, the M.F.A.Nos.105 of 2005 & 33 of 2006 **11** property is not covered under the definition of private forest under the Vesting Act and the declaration excluding such land from the definition is only proper. We find no reason to interfere with the same and reject the appeal of the State. 8. As far as the remaining properties in O.A.No. 54/2001 and those scheduled in OAs 52 & 53 of 2001, there was no proof at all that they do not lie contiguous to forest areas having extent of 100 acres or more. Ext.C2 report indicated that the boundary of the properties inspected were vested forests. The sale deeds produced in the various OAs; A1, A2 A4 and A5 (Plot-I in O.A.No. 54/2001) indicates the slope of the hill in which the property is located to be known by the name Peethal mala, Koli mala or Kolipata mala. Similarly, Exts.A32 and A39 sale deeds produced respectively in O.A.Nos. 52 & 53 of 2001 are located in an area known as Manapatt mala. The documents produced by the applicant themselves shows that the properties exist in a _malavaram_ and hence are part of forest lands. 9. The claim of cultivation under Clause (B) and (C) of S.2(f)(1) (i) was minutely examined by the Tribunal. The documents produced; being cardamon registration certificates, plantation tax receipts, basic tax receipts and certificate of coffee registration were all documents which came into existence after 1971. There was M.F.A.Nos.105 of 2005 & 33 of 2006 **12** absolutely no evidence of cultivation in the properties as on 10.5.1971. The report of the joint commission carried out only showed stray presence of coffee and cardamom and pepper vines which does not satisfy the requirement of principal cultivation as mandated under Clause (B). As far as Clause C is concerned, there was no contention raised of cultivation of any fruit bearing trees in the property. Examining the claim under Clause (D), it was found that a building is seen from the Commission report, the exact location; whether it is in Plot-I or Plot-II of O.A 54/2001, was not specified. The building, though the exact location is not identified, was a cardamom drying unit and Ext.A1 relating to Plot-I in O.A.No.54/2001, being a registration of the property with the Cardamom Board was one of the year 1977, long after the appointed day. There is no evidence of such registration having been taken as on the appointed day. As far as the building in O.A.No. 52/2001, the age of the same was assessed to be 5 years as on the date of inspection, which was in the year 2004. We find no reason to interfere with the said findings of the Tribunal. _10. 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 M.F.A.Nos.105 of 2005 & 33 of 2006 **13** 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], 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 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_ M.F.A.Nos.105 of 2005 & 33 of 2006 **14** _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._ 11. 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(2) 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. The appeal of the applicants is allowed remanding the M.F.A.Nos.105 of 2005 & 33 of 2006 **15** matter to the Tribunal. Parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C. JAYACHANDRAN, JUDGE** uu