MFA (Forest) No.101 of 2017 & 95 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022/8TH AGRAHAYANA,** ## **1944** ## **MFA (FOREST) NO.101 OF 2017** **AGAINST THE ORDER DATED 31.10.2015 IN O.A.NO.21/2002 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS:** - **1 A.K.RAJU, S/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** - **2 A.K.KASUMANI, D/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** - **3 A.K.MANIKANDAN, S/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** - **4 A.K.RUGMINI, D/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** - **5 A.K.UNNIKRISHNAN, S/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** - **6 A.K.PREMAN, S/O.LATE KUNJIRA, RESIDING AT PACHATHIRI (H), THENUR AMSOM DESOM, PALAKKAD TALUK.** **BY ADV SRI.M.P.MADHAVANKUTTY** **RESPONDENTS:** - **1 GOVERNMENT OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM - 695 001.** ## **M.F.A.(F) No.101 of 2017** ## **& 2** ## **95 of 2018** - **2 THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, PALAKKAD - 678 002.** - **3 BINIL A.M, AGED 43 YEARS, S/O.MANGODAN, RESIDING AT ARIYAKORA HOUSE, 314, THENUR, THENUR P.O, PARALI-1, PALAKKAD-678612.** - **4 CHANDRAN A.M, AGED 47 YEARS, S/O.MANGODAN, RESIDING AT ARIYAKORA HOUSE, 314, THENUR, THENUR P.O, PARALI-1, PALAKKAD-678612.** - **5 BALAN, AGED 55 YEARS, S/O.MANGODAN, RESIDING AT ARIYAKORA HOUSE, 314, THENUR, THENUR P.O, PARALI-1, PALAKKAD-678612.** - **6 KUNCHANKUTTY, AGED 57 YEARS, S/O.MANGODAN, RESIDING AT ARIYAKORA HOUSE, 314, THENUR, THENUR P.O, PARALI-1, PALAKKAD-678612.** - **7 THANKA, AGED 48 YEARS, D/O.CHINNA, RESIDING AT ARIYAKORA HOUSE, 314, THENUR, THENUR P.O, PARALI-1, PALAKKAD-678612.** - **ADDL.R3 TO R5 IMPLEADED AS PER ORDER DATED 29.11.2022 IN I.A.NO.1/2019.** **BY ADVS.R.T.PRADEEP** - **SMT.M.BINDUDAS SRI.K.C.HARISH** **BY SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH MFA (FOREST) NO.95/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(F) No.101 of 2017 & 3 95 of 2018** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 29[TH] DAY OF NOVEMBER 2022 / 8TH AGRAHAYANA, 1944 MFA (FOREST) NO.95 OF 2018** **AGAINST THE ORDER DATED 30.10.2015 IN O.A.NO.21/2002 OF THE FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 GOVERNMENT OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD.** **BY SRI.NAGARAJ NARAYANAN, SPL. GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS:** - **1 A.K.RAJU, S/O.LATE KUNJIRA, RESIDING AT PACHATHIRI(H), THENUR AMSOM DESOM, PALAKKAD TALUK - 678 613.** - **2 S.K. THANKAMANI, -DO- [DIED] 3 A.K KASUMANI, -DO-** - **4 A.K MANIKANDAN, -DO-, -DO5 A.K RUGMINI, -DO-, -DO-** - **6 A.K. UNNIKRISHNAN, -DO-, -DO-** **M.F.A.(F) No.101 of 2017 & 4** **95 of 2018** **7 A.K PREMAN, -DO(NO LEGAL HEIRS OF APPLICANTS 1 AND 3 TO 7 APPLICANT STATEMENT OF COPIES).** **BY ADV SRI.M.P.MADHAVANKUTTY** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 29.11.2022, ALONG WITH MFA (FOREST) NO.101/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(F) No.101 of 2017 & 5 95 of 2018** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No.101 of 2017 & 95 of 2018 --------------------------------------------Dated this the 29[th] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** **Both the applicants and the State are aggrieved with the order of the Forest Tribunal. The applicants challenge the order to the extent it refused to grant exemption to plot 'a' demarcated by the Commissioner. The State challenge the order granting exemptions to plots 'b', 'c(i)' & 'c(ii)' which according to the State is not properly identified with reference to the survey numbers shown in the documents produced in evidence. The applicants were concerned with a property in Survey No.7/2A1,3A (new 84/3) in Parli-I Village Palakkad Taluk and District. The applicants claimed cultivation of coconut, mango, cashew and different types of trees** **M.F.A.(F) No.101 of 2017 & 6 95 of 2018** **including teak and mainly used for green manure and planted with seasonal crops like tapioca and ginger etc. The property originally belonged to Mannur Nair Veedu, who had** _**jenmam.**_ **The father of the applicants Kunjira had obtained verumpattam right, to do cultivation in the year 1955-1956. The family of the** _**jenmi**_ **[landlord] partitioned the properties in 1960 and the scheduled property was allotted to one Pappilu Nethiar, under whom Kunjira continued his tenancy. Kunjira also constructed a residential house in the property, which belonged to him and situated on the eastern boundary of the scheduled property.** **2. The respondents contended that the property lies as a part of vested forest known as '** _**Ayyermala'**_ **in VFC item No.126/1 to 5, lying contiguous and having a total extent of 372 hectares. '** _**Ayyermala'**_ **is notified on 10.10.1979 as vested forest and the scheduled property is included as item No.126/4. The respondents asserted that the property is a forest** **M.F.A.(F) No.101 of 2017 & 7 95 of 2018** **land, the boundaries in the schedule does not tally with that in the documents and the survey numbers are also not correctly shown. Originally the Tribunal dismissed the application and there was a remand made in an MFA filed by the applicants. After remand, PW4 was examined and the present incumbent in the office of the Range Officer was examined as RW2.** **3. The Tribunal framed the issues of limitation, whether the scheduled property is a private forest and whether it is entitled to the exemption under S.3(2) or 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 [for brevity, the Vesting Act]. Limitation was found in favour of the applicants. The Tribunal, on an examination of the definition of private forest under S.2(f) of the Vesting Act, found that the property situated in Malabar District, is governed by the Madras Preservation of Private Forests Act, 1949 [for brevity, 'the MPPF Act'], lies contiguous to an area** ## **M.F.A.(F) No.101 of 2017 & 8 95 of 2018** **extending to more than 100 Acres and hence is a private forest as defined under the Vesting Act. Examining exclusion under Clauses (A) to (D) of S.2(f)(1)(i), it was found that the applicants did not have a case under Clause (A) or (B) and the fugitive cultivation claimed by them in the application does not qualify the case to be considered under Clause (C). There is also no claim under Clause (D) of a building in the scheduled land. Since there was no registered document claimed by the applicants, exemption under S.3(3) was found to be not possible. On S.3(2) the Tribunal relied on the documents produced to find the predecessor-ininterest to be the owner who had continued cultivation in the property till 2001, in which year he died. The Commissioner appointed had conducted inspection in the year 2003 and heavy reliance was placed on the report to find cultivation for the purposes of exemption under Section 3(2). The** **M.F.A.(F) No.101 of 2017 & 9 95 of 2018** **Commissioner had bifurcated the properties into four and demarcated it separately as plot 'a' 'b', 'c(i)' & 'c(ii)'. The Tribunal accepted the claim of exemption on plots 'b', 'c(i)' & 'c(ii)' and rejected it insofar as plot 'a' is concerned.** **4.Sri.M.P.Madhavankutty, learned Counsel** **appearing for the applicants, contended before us that the Tribunal has gone wrong in rejecting the claim as against plot 'a', which is having the larger extent. He also supports the exemption granted to the other three bits of properties. According to him, the properties are lying afar from** _**Ayyarmala**_ **and it cannot be said to be included in the larger extent said to have been notified as** _**Ayyarmala**_ **. The finding of the Tribunal regarding the bifurcation of the Malampuzha Canal was seriously challenged. According to the learned Counsel, clause (iii) of sub-section (2) of S.1 of the MPPF Act was added, only in the year 1954 and the word 'Malabar District' was** **M.F.A.(F) No.101 of 2017 & 10 95 of 2018** **substituted for 'State of Madras' in the year 1956 in clause (iii). The explanation added in the year 1954 specifically relates to clause (iii) and not to clause (i), which deals with properties characteristically lying as private forests in the Districts of Malabar and South Kanara. The Malampuzha Canal and road came into existence long before, in the year 1946-1950 and hence the bifurcation itself separates the scheduled properties from** _**Ayyarmala**_ **and as on the appointed day it cannot be considered to be lying contiguous to private forest having extent of more than 100 Acres. Further, it is pointed out that Ext.A21 patta has been issued by the Land Tribunal, Palakkad-I and the scheduled properties are comprised in the land scheduled in the Purchase Certificate. Reliance is placed on** _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]**_ **to argue that the purchase certificate is conclusive proof of the exemption under the Vesting Act.** **M.F.A.(F) No.101 of 2017 & 11 95 of 2018** **5. Sri.Nagaraj Narayanan, learned Speciual Government Pleader, however points out that even in the case of exclusion from the ceiling limits under Chapter III of the Land Reforms Act; entitled to a cultivating tenant, the Hon'ble Supreme Court has held in** _**State of Kerala v. Popular Estates [(2004) 12 SCC 434]**_ **and** _**Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]**_ **that the proceedings of the Land Board is only a piece of evidence and not conclusive proof of cultivation. As far as purchase certificate is concerned, it was argued that the same is entitled to a cultivating tenant, the definition of whom, under the Land Reforms Act, is a tenant who is in actual possession of a land, which he is entitled to cultivate. While the Land Reforms Act only requires an entitlement to cultivate, the Vesting Act clearly requires cultivation to be proved either for exclusion under Clauses (A) to (C) of S.2(f)(1)(i) or for exemption under S.3(2). The intention to** **M.F.A.(F) No.101 of 2017 & 12 95 of 2018** **cultivate under S.3(3), has to be clearly discernible from the attendant circumstances of the land. It is pointed out that the Purchase Certificate produced is not the original and that the survey numbers do not tally with the application. The Commissioner's report also does not clearly indicate the survey numbers in which the different plots are situated and there is no co-relation made to the survey numbers or the boundaries in the Purchase Certificate.** **6. The Tribunal has found that the scheduled properties are governed by the MPPF Act, 1949, especially since they lie contiguous to 372 hectares of private forests called** _**Ayyarmala**_ **. The MPPF Act was of the year 1949 and the** _**Malampuzha**_ **Canal and the road were constructed in the year 1947-1950. Clause (iii) of S.1(2) of the MPPF Act apply to private forests situated in the Malabar District and having a contiguous area exceeding 100 Acres; which the State has been empowered to declare as forest for the** **M.F.A.(F) No.101 of 2017 & 13 95 of 2018** **purpose of that Act. In fact, earlier the private forests under the Districts of Malabar and South Kanara having a contiguous area of 100 Acres, fell under clause (i) and those private forests situated in other areas in the State of Madras fell under Clause (iii). It is after the State's reorganization order that the words 'State of Madras' was substituted with 'Malabar District'; virtually superfluous insofar as the private forests having a contiguous area of more than 100 Acres in the entire Malabar District fell under clause (i). An Explanation, is one by way of abundant caution, to clarify the anomaly if any, in a substantive provision. “** _**It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory**_ **M.F.A.(F) No.101 of 2017 & 14 95 of 2018** _**provision.” (sic-S.Sundaram Pillai vs V.R.**_ _**Pattabiraman AIR 1985 SC 582).**_ **The instant Explanation cannot be said to be applicable only to clause (iii) since it clarifies the definition of 'prvate forests' a word employed similarly in clauses** **(i) to (iii) of Section 1(2) of the MPPPF Act. It only clarifies that, if the contiguous nature of a forest land is bifurcated by man-made constructions; that alone would not make it separate or distinct from the private forests, which was lying contiguously prior to such developmental activities. It has also to be noticed that the land lying as contiguous and having an extent of more than 100 Acres can be excluded or exempted only on the basis of the cultivation specified in the enactment and not on the basis of any artificial man-made bifurcation being affected in the area by constructions. We hence uphold the order of the Tribunal finding the area to be governed by the MPPF Act, lying contiguous and** **M.F.A.(F) No.101 of 2017 & 15 95 of 2018** **having an extent of more than 100 Acres comprised in the larger extent called** _**Ayyarmala**_ **.** **7. On the question of ownership, the Tribunal relied on the various documents produced by the applicant. Ext.A1 is a document dated 10.04.1961, which is a receipt given by the landlord to the father of the applicant. Exts.A2 to A16 are receipts issued by the Village Office, Parli-I for remittance of basic tax. Ext.A5 is the receipt of the year 1970 and the others, in the subsequent years after the appointed day; ie: 10.05.1971. The Tribunal has found the ownership to be proved based on the above documents, which is perfectly in order. We also, fully agree with the Tribunal's finding regarding the applicants' having not even raised a claim with respect to exclusion under clauses (A) to (D) of S.2(f)(1)(i). The description of the tree growth available in the area, as discernible from the application; though refers to coconut, mango, cashew** **M.F.A.(F) No.101 of 2017 & 16 95 of 2018** **and teak, the main crop is said to be for green manure and seasonal crops. As to the cultivation, the Tribunal has clearly noticed the Commissioner's report. It is on the basis of the cultivation noticed therein, that exemption has been granted to plots 'b' 'c(i)' & 'c(ii)' and the lack of it, which resulted in the rejection of such declaration to plot 'a'.** **8. The contention raised by the applicants now in the appeal is with respect to the purchase certificate produced as Ext.A21. We have to immediately notice that the same is only a true copy, obtained under the RTI Act, which cannot be admitted in evidence or relied on by the Tribunal. However, if the original or an authenticated copy is produced, the Tribunal will have to look at whether the properties now scheduled are included in the properties scheduled in the purchase certificate. We have to notice from the purchase certificate produced at Ext.A21 that survey numbers noticed are 7/1A(1),** **M.F.A.(F) No.101 of 2017 & 17 95 of 2018** **1B and 3A and the total extent of the properties in the said survey numbers is shown to be 5 hectares 59Ares. The extent of the properties in the schedule has been disclosed in the application filed before the Tribunal as 3.08 acres. The Commissioner has also not identified the property with reference to the survey numbers or the boundaries in the purchase certificate. Hence though cultivation has been found by the Commissioner, in three demarcated plots, it is not clear as to whether the said properties are covered by the properties scheduled in the Purchase Certificate. We reiterate that, if and only if the applicants produce an authenticated copy or the original, then necessarily the question to be dealt with would be confined to the identity of the property. It goes without saying that if the property scheduled is found to be comprised in the property scheduled under the purchase certificate necessarily going by the dictum in** _**Mohammed Basheer(supra)**_ **the** **M.F.A.(F) No.101 of 2017 & 18 95 of 2018** **lands scheduled will have to be exempted under the Vesting Act; ie: only lands which are already demarcated by the Commissioner.** **9. On the above reasoning we remand the matter for the limited consideration of identity with reference to the survey numbers and the boundaries within which the property is situated. As we held in the earlier paragraphs, the finding of the Tribunal regarding the property being governed by the MPPF Act, and the ownership of the appellants, based on the documents produced and also on the basis of the purchase certificate; if an original or authenticated copy is produced are upheld. The cultivation found in plots 'b' 'c(i)' & 'c(ii)' is also upheld. On remand, the applicant would be entitled to take out a Commission to identify the property with reference to the survey numbers shown in the application and in the purchase certificate, which should necessarily tally. We make it clear the applicants cannot be** ## **M.F.A.(F) No.101 of 2017 & 19 95 of 2018** **permitted to make any amendment to the survey number or boundaries shown in the application. As far as plot 'a' is concerned, in addition to identity, the applicants claimed that there is systematic teak plantation, which can also be ascertained and reported before the Tribunal; if necessary with the assistance of an expert. We make it clear that the remand is limited to the above aspect and the verification of the identity with respect to survey numbers and the boundaries of plots 'b' 'c(i)' & 'c(ii)'.** **10. We notice from the records that Ext.C2 Commission Report was found missing from the records of the Forest Tribunal. The learned Counsel for the applicant has handed over a copy of the certified copy, which we mark as Ext. X1 in the above proceedings and direct the Registry to incorporate a copy, in the records which are sent back to the Tribunal. If the applicants have the certified copy** **M.F.A.(F) No.101 of 2017 & 20 95 of 2018** **of Ext.C2, it shall be produced before the Tribunal, which shall be treated as the reconstructed, Ext.C2, otherwise the copy enclosed in the records and marked before this Court as Ext.X1 shall be treated as the reconstructed document; which is not disputed by either parties. The MFAs are allowed with the limited remand as above. Parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE Sd/-** **C.JAYACHANDRAN, JUDGE** **sp**