MFA (Forest) No. 18 of 2016

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` MONDAY, THE 27[TH] DAY OF FEBRUARY 2023 / 8TH PHALGUNA, 1944 ``` ``` MFA (FOREST) NO. 18 OF 2016 ``` ``` AGAINST THE ORDER IN O.A.NO.11/2008 OF FOREST TRIBUNAL, ``` ``` KOZHIKODE ``` ## `- APPELLANTS/RESPONDENTS 1 & 2 IN THE O.A :` - `1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.` - `2 CUSTODIAN OF VESTED FORESTS OLAVAKODE, PALAKKAD DISTRICT.` ``` BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER ``` ``` RESPONDENTS / PETITIONER & RESPONDENTS 3 & 4 IN THE O.A :- ``` - `1 RAJESH CHANDRABHAVANAM, VALAL P.O., MADAKUNNU, KALPETTA, WAYANAD – 673 121.` - `2 PRADEEPAN S/O. PALLIKKARA KRISHNAN, P.O. THARIYODE, POZHUTHANA, VYTHIRI TALUK, WAYANAD DISTRICT, PIN – 673 575.` ``` 3VILASINI W/O. LATE PUSHPANGATHAN, THOTTINPURATH HOUSE, THARIYODE, POZHUTHANA, VYTHIRI TALUK, WAYANAD, PIN – 673 575. ``` ``` BY ADVS. SRI.P.A.HARISH SRI.V.V.SURENDRAN ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON ``` ``` 27.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) No.18 of 2016 2 K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.18 of 2016 ---------------------------------------------------Dated this the 27[th] day of February, 2023 ## J U D G M E N T ## K. Vinod Chandran,J The applicant sought for a declaration of exemption for his property having an extent of 25 acres, from the Kerala Private Forests (Vesting & Assignment) Act, 1971 (for short ‘the Vesting Act), under Section 3(2) and (3). The State is aggrieved by the order passed in the application under Section 8 of the Vesting Act declaring the lands to be not private forest under that Act. 2. The 25 acres situated in Padinharathara Village, Vythiry Taluk, Wayanad District was stated to be in Sy.No.248/1A1A1A (Re.Sy.Nos.188 to 191 and 540 to 542). The father of the applicant took the property on lease by Ext.A1 document, which document was executed with the permission of the District Collector, Kozhikode. The father of the applicant was enjoying the property and had 3 MFA(Forest) No.18 of 2016 cultivated the same with coffee and pepper. The father bequeathed the property to the applicant as per Ext.A2 Will in the year 2002 and the father died in 2003. When the applicant tried to enter into the property to continue the cultivation, the Forest Officials objected to it. The cultivation in the land hence was left to waste and the coffee plants were destroyed by the neighbouring residents who cut the plants for firewood. The applicant claimed exemption on the ground of personal cultivation as on the appointed day under the Vesting Act; i.e 10.05.1971. 3. The respondents denied every contention raised by the applicant. The survey number shown in the application was found to be wrong and the application was amended after the Commission report was filed. Two extents of properties in Re.Sy.No. 541 And 542 were said to be in the possession of one Pradeepan and Vilasini; who were impleaded as the additional respondents 3 and 4. The Forest Officials through their counter affidavit resisted the claim of title, possession and cultivation in the property and also claimed the existence of land as a private forest, covered under the Madras 4 MFA(Forest) No.18 of 2016 Preservation of Private Forest Act, 1949 (for short the MPPF Act) and capable of vesting under the Vesting Act. The respondents 3 and 4 also filed counter statements asserting their absolute title over the property. Pradeepan, the additional 3[rd] respondent’s father had obtained a purchase certificate for the property of one acre extent, a portion of which was purchased form the father of the applicant. The 4[th] respondent likewise contended that the property was in the possession of her husband. 4. The Tribunal raised questions of limitation, the nature and lie of the property and the entitlement to the declaration for exemption. The Tribunal found that the property in the possession of the applicant now alleged to be vested and identified by the Commissioner as having an extent of 7.18 hectares and the properties of both the additional 3[rd] and 4[th] respondents are not included in the notification of vesting. The Tribunal considered the definition of private forest in the Vesting Act and proceeded to enquire as to whether the nature of the land can be said to be a forest. It was found from the evidence adduced, both documentary and oral, as also the 5 MFA(Forest) No.18 of 2016 Commission Report that the property in question is cultivated land and does not lie as a forest and hence would not constitute a private forest as defined under the Vesting Act. It was held that when a property is found to be not a private forest the declaration can be granted to that effect and in such circumstances, there is no question of consideration of exemption under Sections 3(2) and (3). 5. Learned Special Government Pleader (Forest) Sri.Nagaraj Narayanan, first of all raised serious dispute on the identity of the property. The survey numbers originally stated in the application was found to be incorrect and the correction was made only after the Commissioner filed the report. The Tribunal misled itself in considering whether the land exists as a forest especially since the property was admittedly one covered under the MPPF Act. It was pointed out that if as on 14.12.1949 a land is covered under the MPPF Act the applicability of the said enactment continues even if there is cultivation carried on therein. Reliance on the Full Bench decision of this Court in State of Kerala v. K.C.Moosa Haji [ 1984 KLT 494] is urged before us to canvass the above position. As for the dispute on 6 MFA(Forest) No.18 of 2016 identity the decision of the Hon’ble Supreme Court in Hamsa Haji v. State of Kerala [(2006) 7 SCC 416] was also pressed into service. It is pointed out that the Commission Report does not show any excessive or predominant cultivation in the property to find principal cultivation as is required under the Vesting Act. It is argued that the cultivation under Section 3(2) should also be principal cultivation and scanty growth of cash crops seen in the property, by the Commissioner would not enable such exemption. It is emphasized that the Commissioner inspected the property in 2010 and the cultivation found could not be related back to 1971, the year in which the Vesting Act came into force. The lack of principal cultivation in the property especially when the son claims interference by the Forest Officials only in the year 2003 is a crucial fact leading to an inference of there having been no principal cultivation in the property. It is pointed out that even the Commissioner noticed a number of forest species trees on the property and hence the finding that the disputed property is not lying as a forest is incorrect. 6. Sri.V.V.Surendran, the learned Counsel appearing for the 7 MFA(Forest) No.18 of 2016 respondents pointed out that the difference in survey number was only an inadvertent omission. True that the property was covered under the MMPF Act but however there is evidence of rampant cultivation carried on in the property by the father of the applicant. We were taken through the documentary evidence to show that just in the prior years and the subsequent years there was evidence of cultivation of coffee coupled with pepper, in the land. The mere existence of forest trees would not be relevant especially when the Commissioner found that there were creepers grown on the trees in the property, especially pepper, which indicate systematic cultivation using human skill and labour. It is also pointed out that for an exemption under Section 3(2), there is no requirement for principal cultivation especially when sub-section (3) allows such exemption even if the owner of the property is having the intention to cultivate the property. 7. We have given anxious consideration to the arguments addressed and the evidence let as seen from the records. We agree with the learned Special Government Pleader that the Tribunal 8 MFA(Forest) No.18 of 2016 misled itself in finding the land to be not existing with the characteristics of a forest. Admittedly, the land is covered by the MPPF Act which is evident from the permission seen to have been taken from the District Collector for executing ExA1 deed; which is evident from the recitals therein. Ext.A3 proceedings of the District Collector, prior to the execution of Ext.A1 also clearly indicates this fact. Under the MPPF Act, a private forest having contiguous area of of more than 100 acres lying within the Districts of Malabar and South Kanara would be covered under the Act and those excluded are only such lands which were cultivated prior to 14.12.1949; the date on which the MPPF Act came into force. Any cultivation carried on in the property after 14.1.2.1949 would not take away the applicability of the MPPF Act. We refer to the Full Bench Decision in Moosa Haji (supra) which held 'The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971... Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an 9 MFA(Forest) No.18 of 2016 end to such applicability to that area.' (sic). Having found that the property is covered under the MPPF Act, there is no question of looking at whether the property lies as a forest or not; which is irrelevant to find it to be a private forest under Section 2(f)(1)(i) of the vesting Act. 8. Now we come to the exclusionary clauses (A) to (D) under section 2(f)(1)(i) of the Vesting Act. Only clauses (B) and (C) speak of principal cultivation respectively of plantation crops or fruit bearing trees. In fact, even gardens and nilams (paddy land) are excluded from the definition of private forest under the Vesting Act. We agree with the learned counsel for the respondent that the personal cultivation as seen from sub-section (2) of section 3 is not one required to be a principal cultivation. We notice that the very same enactment while prescribing the exclusion under clause (B) and (C) under Section 2(f)(1)(i) specially spoke of principal cultivation, while there was no such requirement under Section 3 (2). In this context, it is also relevant that even an intention to cultivate by a person who holds the property on the strength of a registered deed is entitled to 10 MFA(Forest) No.18 of 2016 exemption under section 3(3). Cultivation in one part of the property would be one of the circumstance, coupled with other attendant circumstances, prior or subsequent to the appointed day under the Vesting Act to discern an intention to cultivate as held in Joseph v. State of Kerala [2007 (3) KLT 144 (SC)] . 9. In the present case the applicant’s father who was the person holding the property, admittedly was holding the property on the strength of a registered document, Ext.A1. As we noticed, the document specifically speak of a consent issued by the District Collector, Ext.A3. The document also speaks of the marupattom having been made for the purpose of cultivating coffee and pepper. Ext.A2 is the Will executed by the father of the applicant regarding the very same property and Ext.A4 is the death certificate. Ext.A7 is a certificate issued under the RTI Act by the Village Officer, who is the Assistant Information Officer certifying that the father of the applicant is shown as the person who paid land tax in the years 197071 and 1971-72. Ext.A9 is a notice issued under the Agricultural Income Tax Act, 1950 to the father of the applicant for the period 11 MFA(Forest) No.18 of 2016 1971, 1972 and 1973. Ext.A11 is the Coffee Account Book in the name of the applicant’s father which indicates the registration having been taken in 1964-65 and the entries in the said book commencing form 1979 onwards; the entries having been made under the heading 'raw coffee'. Ext.A13 is the communication issued by the District Statistical Officer, Kozhikode dated 15.12.1970. The said communication is a request made for the details of the coffee grown by the applicant’s father since the plantation is included for the purpose of collecting the figures of crop generated. Ext.A14 is the current account pay slip of the State Bank of Travancore, Kalpetta remitting the balance of principal and interest of crop loan availed during 1978-79. The remittance is made by the father of the applicant and the receipt is dated 16.05.1979. Ext.A12 is an invoice for purchase of coffee by one Vijaya Coffee Works dated 03.11.1972 for the season 1970-71 issued in the name of the father of the applicant. Exts. A12(a) to (c) are similar receipts dated respectively 27.05.1970, 05.07.1966 and 28.04.1969, for the seasons 1967 to 68 (Bonus), 1966 to 67 (Final) and 1967 to 68 (Final). Of course there is no reference to 12 MFA(Forest) No.18 of 2016 the specific survey number in the said documents. PW1 the applicant was examined before the Tribunal who gave oral evidence of the cultivation and marked the documents. But there was no serious cross examination on the aspect of the cultivation as on the appointed day under the Vesting Act or of the applicant's father owning any other property. The documentary evidence in the instant case establishes the coffee cultivation having been carried on by the applicant's father prior to, during and in the subsequent years of the year in which the appointed day under the Vesting Act falls. 10. Now the question arises as to the identity of the property. In the applications filed originally the applicant had shown the survey number as 248/1A1A1 (R.Sy.Nos.190, 191, 189 and 188). it was substituted by amendment and ‘A’ was added after 248/1A1A1 and the R.Sy.Nos.540 to 542 were also added. In fact, the communication of the Divisional Forest Officer produced as Ext.A8 indicates that the old Sy.No.248/1A1A1A corresponds to the new survey numbers 190, 540, 541 and 542. Ext.A10 certificate issued by the Village Officer indicates that the actual old survey number as seen 13 MFA(Forest) No.18 of 2016 from the records maintained in the Village Office is 248/1A1A1A and that the new Sy.Nos are 188, 189, 190, 191, 540, 541 and 542. Ext.C1 Commission Report indicates that the property and the neighboring ones lie in R.Sy.Nos.188 189, 190 and 191. The measured property in the possession of the applicant is said to be in R.Sy.No.190 which had the corresponding old Sy.No.248/part. Ext.A5 sketch prepared by the District Project Office, Wayand, also indicates the alleged vested forest as identified by the Commissioner and admittedly in the possession of the applicant, being in Sy.No.190. Though there is a slight confusion with respect to the old survey number, it is only regarding the exact subdivision, which according to the Village Officer who maintains the revenue records is correctly to be noticed as Sy.No.248/1A1A1A. There is also the dispute raised as to the application having indicated a reservoir on the scheduled properties northern boundary, which is not noticed by the Commissioner. Ext.A5 sketch prepared by the District Project Office, Wayand, shows a dam on the north western side of the property, at a distance and the ‘Full Reservoir Level’ nearer to the scheduled property in Sy.No. 190 14 MFA(Forest) No.18 of 2016 with water logged areas. Obviously this would have led to the reservoir being shown on the north of the 25 cents scheduled out of which only 7.18 hectares are found in possession of the applicant by the Commissioner. We find no reason to accept the dispute raised by the learned Special Government Pleader on the identity of the property. 11. We are of the definite opinion that the property identified by the Commissioner in Ext.C1 report belongs to the applicant and the same is entitled to exemption. We, of course, differ from the finding of the Tribunal which granted the declaration holding that the property is not lying on the field with the characteristics of a forest, since we have found that the property is covered under the MPPF Act. The records clearly establish the cultivation as on the appointed day; which has not been seriously disputed or controverted by the respondent forest department. We notice the submission of the learned Special Government Pleader that the Commission Report indicates forest trees and only scanty cultivation within the property. However, the Commission Report is of the year 15 MFA(Forest) No.18 of 2016 2010 and for 7 years at least the applicant was prohibited from entering into the property; thus laying to waste the cultivation in the property. But even then the creepers including pepper vines were found on the forest trees existing in the property. There was also scanty remnants of coffee which has to be looked at with reference to the testimony of PW1 that the coffee plants were cut and removed by the neighbouring residents on the borders for the purpose of firewood. In any event the cultivation has to be found as on the appointed day, i.e.10.05.1971. There is no requirement under the Act that cultivation should be continued seamlessly in the subsequent years which cultivation should also be evident when a Commissioner appointed in an application under Section 8 of the Vesting Act visits the property after decades. In this case, the inspection of the Commissioner was almost 40 years from the appointed day. There is enough documentary evidence to show the applicant’s father having grown coffee and pepper in the years before, during and after the year on which the Vesting Act came into force. The Forest Department does not have a case that the applicant’s father had any 16 MFA(Forest) No.18 of 2016 other property to which the documents related. We hence grant a declaration of exemption under Section 3(2) and (3) of the Act, finding personal cultivation of coffee, pepper and other cash crops as on 10.05.1971, the appointed day under the Act and also under subsection (3) since immediately after Ext.A1 deed the applicant’s father is seen to have commenced cultivation, thus clearly bringing forth an intention to cultivate the entire land. Though on different grounds, we allow the original application granting the declaration of exemption under Section 3(2) and (3) and dismiss the appeal filed by the State leaving the parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- ## C.JAYACHANDRAN, JUDGE SMA