Manjha Ebrayi v. Custodian of Vested Forests Olavakkode & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA,** ## **1944** **MFA (FOREST) NO. 160 OF 2012** **AGAINST THE ORDER IN OA 13/2007 DATED 5.5.2010 OF FOREST** **TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. 2 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER ## **RESPONDENT/APPLICANT:** MANJHA EBRAYI S/O.ASSAN, P.O.LAKKIDI, ARAMALA, WAYANAD 679301. BY ADV SRI.P.K.RAMKUMAR THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **M.F.A (Forest) No.160 of 2012 2** K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. -----------------------------------------M.F.A (Forest) No.160 of 2012 ----------------------------------------Dated this the 19[th] December, 2022 ## JUDGMENT ## K.Vinod Chandran, J. The application under S.8 of the Kerala Private Forest (Vesting and Assignment)Act, 1971, (for brevity, the Vesting Act) was concerned with 1 acre of land in Sy.No.326/1B2 of Kunnathidavaka Village, Vythiri Taluk, Wayanad District. It was contended that the property belongs to one Alliyil Nair, from whom, the father of the applicant took it on lease, in the year 1954. The lessee also resided in the property with his family and cultivated the same. The property was entrusted to the applicant, orally, by his father in 1963, and he continued residence and cultivation in the property. 2. The Divisional Forest Officer, resisted the application on grounds of limitation, absence of _locus standi_ and statutory vesting. It was argued that an extent of 26.25 acres of private forest including ## **M.F.A (Forest) No.160 of 2012 3** the scheduled property vested with the government, which after survey and demarcation, was included as V.F.C. item No.91. The title, possession and cultivation in the property were denied. It was also pointed out that, the lease in the name of the applicant's father was not established through any document and if at all it is to be believed, there ought to have been sanction from the District Collector under the Madras Preservation of Private Forest Act, 1949 (for brevity, the MPPF Act). The identity of the property was also seriously challenged on the ground that the boundaries seen in the schedule to the application differs from that seen on the field. 3. The learned Special Government Pleader, Sri.Nagaraj Narayanan, seriously contested the identity of the property, which as per the purchase certificate produced, is only 50 cents. It is also argued that _State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260],_ which found a purchase certificate issued under the Kerala Land Reforms Act, is _per incuriam_ going by the decisions in _State of Kerala v. Popular Estates [(2004) 12 SCC 434]_ and _Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]_ . In any event, the identity has to ## **M.F.A (Forest) No.160 of 2012 4** be clearly established as has been declared in _Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]_ . Sri. P.K.Ramkumar, learned Counsel for the respondent, relied on Ext.A9 produced by the applicant to contend that the land was transferred to the revenue department for assignment, and hence, there is no vesting under the Vesting Act. It was argued that the purchase certificate produced clearly establish the title as also the cultivation and is entitled to be exempted from vesting going by the authoritative pronouncement of the Hon'ble Supreme Court in _Mohammed Basheer (supra)._ 4. We have perused the records of the case, from which we find that many of the documents in original produced on the side of the applicant were returned to the applicant. However, the learned Counsel for the respondent produced the said documents before us. We will first deal with the contention of the learned Counsel regarding Ext.A9. Ext.A9 is an order issued by the Government of Kerala which has transferred certain properties to the District Collector, Kozhikode, being vested forest land, readily available for assignment. The said exhibit does not in any manner aid the ## **M.F.A (Forest) No.160 of 2012 5** applicant. This is a natural consequence of vesting under the Vesting Act, since the private forest vested are assigned for the purpose of carrying on cultivation; especially when the object of the enactment was agrarian reform. 5. As far as the vesting is concerned, there are three types of properties indicated in the Vesting Act; private forest within the district of Malabar having an extent of more than 100 acres on which MPPF Act applies, other private forests within the district of Malabar to which the MPPF Act does not apply and any private forest in the remaining areas within the State of Kerala. As far as those covered under the MPPF Act, within the Malabar area, there are exclusions provided under Clauses (A) to (D) of S.2(f)(1)(i) and to the said lands as also the lands to which MPPF Act does not apply and that situated in other parts of the State, there is an exemption enabled either under sub-section (2) or (3) of S.3. In the present case, the property is situated within the district of Malabar, but the extent spoken of by the respondent is only 26.25 hectares of private forest including the scheduled properties. Hence, obviously, the total extent does not ## **M.F.A (Forest) No.160 of 2012 6** exceed 100 acres and what applies is S.2(1)(ii) of the Vesting Act. The land is within the district of Malabar, but on which MPPF Act does not apply. 6. The Tribunal raised issues on limitation, title, liability to vesting and entitlement for declaration of exclusion or exemption. The possession of the property is said to have been obtained by the father by a lease and then perfected through the _suo motu_ proceedings initiated by the Land Tribunal, Kalpetta. Ext.A4 is the copy of the order dated 05.06.1989 in S.M.C.No. 239/89 and Et.A5 is the purchase certificate issued. Ext.A7 series are land tax receipts but all relating to periods after the appointed day under the Vesting Act. The Tribunal also found that the survey number of the property is not clear from the tax receipts. However, Ext.A11 copy of relevant page of the Basic Tax Register issued by the Village Officer, Kunnathidavaka, indicates that the property in the survey number as shown in the schedule was held by Alliyil Nair as _Jenmam_ . Though the oral lease is not clearly established, Exts.A4 and A5, the proceedings of the Land Reforms Act and the purchase certificate issued clearly establish the ## **M.F.A (Forest) No.160 of 2012 7** title. S.72K of the Land Reforms Act also makes the purchase certificate issued under that Act to be conclusive proof of title. We also have to notice _Mohammed Bahseer (supra)_ which found the purchase certificate issued under the Land Reforms Act to be conclusive proof of exemption from vesting, on the ground of cultivation, even under the Vesting Act. It is pertinent to note that both _Popular Estates (supra)_ and _Kunjanam Antony (supra)_ were with respect to the ceiling proceedings under Chapter III of the Land Reforms Act and the decision in _Kunjanam Antony (supra)_ was specifically noticed in _Mohammed Bahseer (supra)_ and distinguished. 7. Despite our finding as above, based on _Mohammed Bahseer (supra)_ , we cannot but frown upon certain findings of the Tribunal, which we find to be clearly erroneous. Cultivation was found in the property on the sole evidence of PW1 and the reasoning was that the respondent did not disprove his testimony. In fact, it is for the person who asserts the fact to prove the same through substantive evidence and not by oral evidence alone. Similarly, further support was garnered from the fact that the adjacent property of one Unniyamma ## **M.F.A (Forest) No.160 of 2012 8** was declared to be exempted from vesting; which is not at all a relevant aspect to enable the schedule property from being absolved of vesting. We merely notice the same to caution the Tribunal especially in the circumstance of our remanding the matter to clearly identify the property. 8. As we noticed, the property scheduled is 1 acres of land while Ext.A5 purchase certificate is only with respect to 50 cents. The Commissioner has stated in Ext.C1 that there are two plots in the schedule, of which, plot 1 in Ext.C1 is the _pattayam_ land and plot 2 is the land claimed to be in the possession of the applicant. However, we do not see any such demarcation of plots as 1 and 2 in either Ext.C2 report or Ext.C2(a) plan. Further, Ext.C1 report is only with respect to the number of trees found in the property, the age of which is also indicated. In fact, the Commissioner does not indicate the girth of the trees or refer to the expertise of the Commissioner to assess the age of the trees found in the property. Plot 1 as is seen from Ext.C1 contains fruit bearing trees, pepper vines and coffee which definitely are those planted with human skill and effort. However, the **M.F.A (Forest) No.160 of 2012 9** demarcation being not evident, and especially since the claim can only be to 50 cents of property as covered by Ext.A5 purchase certificate, we find it necessary to remand the matter to the Tribunal for fresh consideration. We make it clear that the applicant cannot be permitted to amend the application. The remand is confined to the identification of the property which is covered by the purchase certificate on which alone exemption can be claimed. On such identification being made, it goes without saying that the property would stand exempted going by the binding declaration in _Mohammed Bahseer (supra)_ , on the strength of Ext.A5 purchase certificate. The appeal is allowed to the limited extend and the parties are left to suffer their respective costs. Sd/- ## K.VINOD CHANDRAN, JUDGE Sd/- ## C.JAYACHANDRAN, JUDGE **uu**