MFA (Forest) No.102/2007 & 147/2007, State of Kerala v. Umbakkattu Damodaran & Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ## & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 MFA (FOREST) NO. 102 OF 2007 AGAINST THE ORDER/JUDGMENT IN OA 10/2000 OF FOREST TRIBUNAL, KOZHIKODE ## PETITIONERS: - 1 STATE OF KERALA CHIEF SECRETARY, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. SRI NAGARAJ NARAYANAN SPECIAL G.P(FOREST) ## RESPONDENTS: - 1 UMBAKKATTU DAMODARAN, HOUSE NO.10/87, PERIA P.O., MANNTHAVADY,, WAYANAD. - 2 KAMALAKSHI W/O DAMODARAN, UMBAKKATTU HOUSE, PERIA P.O., 37TH MILE,, THALAPPUZHA VIA, 670644. - 3 RAVEENDRAN U.D. S/O DAMODARAN UMBAKKATU HOUSE, PERIYA P.O., 37TH MILE,, THALAPPUZHA VIA-670644. - 4 BALAN U.D -DO- - 5 PURUSHOTHAMAN U.D. -DO- - 6 OMANA U.D. W/O ALIAS, THODIYAN HOUSE, PERIA P.O.,, 37TH MILE, THALAPPUZHA-670644. - 7 LALITHA W/O MOHANAN KARUVAKKAL HOUSE KOODARANJI VIA, POOVARANTHODE P.O. KOZHIKODE DIST. MFA(Forest) No.102/2007 & 147/2007 **2** - 8 SADANANDAN U.D. SO DAMODARAN UMBAKKATTU HOUSE, PERIYA P.O.,, 37TH MILE, THALAPPUZHA VIA, 670644. BY ADV SRI.K.M.FIROZ THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 07.11.2022, ALONG WITH MFA (FOREST).147/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.102/2007 & 147/2007 **3** IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 7[TH] DAY OF NOVEMBER 2022 / 16TH KARTHIKA, 1944 ## MFA (FOREST) NO. 147 OF 2007 AGAINST THE ORDER/JUDGMENTOA 10/2000 OF FOREST TRIBUNAL, KOZHIKODE ## PETITIONER/S: - 1 STATE OF KERALA CHIEF SECRETARY,THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FPRESTS OLAVAKKODE, PALAKKAD DISTRICT. SRI. NAGARAJ NARAYANAN, SPECIAL G.P (FOREST) ## RESPONDENTS: - 1 UMBAKKATTU DAMODARAN HOUSE NO. 10/87, PERIA P.O. MANANTHAWADY.(DIED), REPRESENTED BY LRS - 2 KAMALAKSHI W/O. DAMODARAN UMBAKKATTU HOUSE, PERIA P.O. 37 TH MILE,, THALAPPUZHA VIA 670 644. - 3 RAVEENDRAN U.D. UMBAKATTU HOUSE DO..DO.. - 4 BALAN U.D. DO..DO.. - 5 PURUSHOTHAMAN U.D. DO...DO.. - 6 OMANA U.D. W/O. ALIAS THODIYAN HOUSE, PERIA P.O., DO..DO.... - 7 LALITHA W/O. MOHANAN KARUVAKKAL HOUSE, KOODARANJ VIA, POOVANTHODE P.O., KOZHIKODE. MFA(Forest) No.102/2007 & 147/2007 **4** 8 SADANANDAN U.D. UMBAKKATTU HOUSE DO..DO.... BY ADVS. SRI.K.M.FIROZ DR.K.B.MUHAMED KUTTY SR. THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 07.11.2022, ALONG WITH MFA (FOREST).102/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MFA(Forest) No.102/2007 & 147/2007 **5** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.102 of 2007 & 147 of 2007 ---------------------------------------------------Dated this the 07[th] November, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** Two appeals are filed by the State; one against the order refusing to review the earlier order of the Forest Tribunal and the other against the original order, on which the review was sought. 2. We will first consider M.F.A.No.102/2007, which is against the rejection of the application for review. The original order of the Tribunal was dated 22.05.2002, and the review was filed by I.A.No. 195/2006, with a delay of 1259 days. The Tribunal rejected the application for more than one reason. It was held that a review under S.8B can only be sought till 31.03.1987 and there is no question of the Forest Tribunal accepting an application under S.8B, after 31.03.87, condoning the delay occasioned. It was held that S.151 of C.PC speaks of inherent jurisdiction of Civil Courts and even the Civil Courts have no inherent jurisdiction to condone delay, other than conferred by statutes. The ground raised under S.5 of the Limitation Act was upheld, finding the Forest Tribunal to be entitled to condone the delay, but however, finding that the instant review goes beyond the MFA(Forest) No.102/2007 & 147/2007 **==> picture [8 x 10] intentionally omitted <==** specific provision under S.8B. The power of review was one under the specific statutory provision and not one under Order 47 Rule 1 of CPC. The power of review under S.7(4) was only with respect to correction of mistakes on the face of the record or correction of arithmetical or clerical errors, under which the above case does not fall. 3. We are in perfect agreement with the grounds on which the review application was rejected. We specifically notice the decision in _State of Kerala v. Thomas Sebastian 1997 (2) KLT 819_ . S.8B was noticed to find that it is restricted to cases in which orders were passed prior to introduction of S.8B, which was on 19.11.1983, and not to subsequent orders. Therein, the review was from an order subsequent to 19.11.1983, but one passed before 31.03.1987, on which specific date, the review application was moved. The Division Bench found that the words 'such decisions' occurring in S.8B, in the context of the preamble, show that the review applications can be filed only in respect of orders passed prior to 19.11.1983. As we noticed, in the present case, the order against which the review was filed was of 22.05.2002. 4. In this context we also specifically notice the decision of another Division Bench in _Ibrahim v. Custodian of Vested Forest_ MFA(Forest) No.102/2007 & 147/2007 **7** _2000 KHC 715_ . Considering the provision under S.8B, it was held that the grounds for review are confined to those specified therein, i.e., (i) an order based on concession not specifically authorised, (ii) failure to produce relevant data or other particulars and, (iii) an appeal could not be filed for reason of the delay in applying for and obtaining a certified copy of such order. None of these grounds are seen pleaded in the application for review. We find no reason to entertain the appeal and the same is rejected. 5. No we come to M.F.A.No.147/2007, which challenge the order passed by the Tribunal. The Tribunal raised three issues, one of limitation, the other as to whether the scheduled property is a private forest and then the entitlement for exemption under S.3(2) of the Act. The petitioner claims to be an agriculturist, depending on the scheduled property for his livelihood, which originally belonged to one A.K.Kader Kutty Sahib. The owner is said to have granted an oral lease to the applicant in the year 1957, based on which the applicant was possessing and cultivating the property. The Land Tribunal also issued a purchase certificate bearing No.84/1982. The Taluk Land Board also considered the purchase certificate issued to the applicant in the proceedings against Kader Kutty and the same was found to have been not included in the properties owned by him, for reason of MFA(Forest) No.102/2007 & 147/2007 **8** the vesting under the Land Reforms Act and issuance of the purchase certificate. The respondents asserted that the property is of VFC, item No.8 comprised in R.Sy. No.12/1A 1A measuring 160 acres and 60 cents notified as on 13.7.1978. The physical boundaries were vested forest and there was no cultivation and the land had natural growth of trees. The purchase certificate and the Taluk Land Board proceedings were held to be not binding on the respondents. 6. The Tribunal rejected the ground for limitation raised by the respondents. The Tribunal considered the purchase certificate produced as Ext.A1 and the order of the Land Tribunal as Ext.A2 in the _suo motu_ proceedings to hold that the petitioner is the owner of the properties scheduled. As to the status of the property, Exts.C1 to C4 report of the Commissioner and plans were examined. On the north and western boundaries there were private holdings with portions of the said boundaries and the entire eastern boundary being vested forest. There was no tree growth reported in the petition scheduled property and Commissioner saw only thick undergrowth and lemon grass in the scheduled property. The Tribunal examined the contention raised under S.2(f)(i) as to whether the scheduled property is one governed by the repealed Madras Preservation of Private Forests Act, 1949 (for brevity, the MPPF Act). It was held that MFA(Forest) No.102/2007 & 147/2007 **9** the respondents did not produce any documents to show that the land was one governed by the MPPF Act. Coupled with this fact, the Commissioner's report did not indicate any tree growth and reported existence of lemon grass cultivation, on which was based the finding that the scheduled land was not a private forest. The Taluk Land Boards proceedings against Kader Kutty, Ext.A6 was relied on to again reject the contentions of the respondents that the land was a private forest. It is thus that the O.A was allowed. **7.** 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 affirmed by two decisions of the Hon'ble Supreme Court in _Kunjanam Antony v. State of Kerala (2003) 3 SCC 221 and State of Kerala v. Popular Estates (2004) 12 SCC 434. State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260] ,_ a subsequent decision of the Hon'ble Supreme Court, 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 MFA(Forest) No.102/2007 & 147/2007 **10** 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 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. **8.** 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 MFA(Forest) No.102/2007 & 147/2007 **11** 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 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. MFA(Forest) No.102/2007 & 147/2007 **12** **9.** Further, it is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter 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 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. It is also pointed out that Section 105 of the Kerala Land Reforms Act provides for an MFA(Forest) No.102/2007 & 147/2007 **13** 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 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 . **10.** Sri.K.M.Firoz, learned Counsel for the respondent aapplicant, on the other hand pointed out that the decision in _Popular Estates_ and _Kunjanam (both supra)_ was 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. In the instant case also, the Tribunal verified the Taluk Land Board proceedings and found the scheduled lands to be excluded from the total extent of land of Kader Kutty. This was further fortified by the purchase certificate issued under the Land Reforms Act. The purchase certificate issued under S.72K, according to him, is conclusive proof of the land being not a private forest, which exemption under S.3(vii) of the Land Reforms Act would definitely have been examined by the Taluk Land Board. The purchase MFA(Forest) No.102/2007 & 147/2007 **14** certificate was specifically looked into to find the scheduled properties were to be covered under the said purchase certificate. 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. 11. The ground of limitation raised against the maintainability of application was rejected by the Tribunal, according to us rightly. The respondents did not state the date of publication of notification, from which date, commences the period of limitation. Looking at the evidence led, the Tribunal specifically noticed Ext. A1 purchase certificate issued by the land Tribunal and A2 certified copy of the order in the _suo motu_ proceedings of the land Tribunal which led to issuance of Ext.A1. Exts.A3 to A5 were basic tax receipts, but those were with respect to tax paid after the appointed day. Ext.A6 was the copy of the order of the Taluk Land Board, in the ceiling case pertaining to A K Kader Kutty; wherein, noticing the lease of the scheduled property the same was exempted from the ceiling limit. Ext.A1 and Ext.A2 showed the name of the real owner from whom Kader Kutty had taken the lease and eventually the applicant had MFA(Forest) No.102/2007 & 147/2007 **15** purchased the same. It was PW1's evidence that the land covered by Ext.A1 was cultivated with lemon grass from 1958 and later due to scarcity of firewood he commenced cultivation of mulberry during 1987-88, which too did not yield profits and he turned to tea cultivation. 12. The status of the property was looked at from Exts.C1 to C4, the report of the Commissioner and the plans submitted. Ext.C2 is a report in which Ext.C3 plan was produced which indicated that the southern portion of the scheduled property is in the possession and cultivation of the applicant. On the western and northern portion, there are other persons occupying the property. On the three boundaries of west, north and east there are vested forest. According to the Commissioner's report Ext.C1, there were no trees in the property and it had thick undergrowth and lemon grass cultivation. The Tribunal looking at the aspect of whether the land is forest, found that the respondents did not produce any evidence to show that the land is covered under the MPPF Act. The status of the property as revealed from the Commissioner's report also did not indicate that the land was a forest or that it was a waste land enclosed within a wooded area. The Tribunal relied on the definition of forest as declared by the Hon'ble Supreme Court in _State of Kerala v._ MFA(Forest) No.102/2007 & 147/2007 **16** _- Anglo American Direct Tea Trading Co.Ltd. 1980 KLT 215_ and that in _Bhavani Tea and produce Co. Ltd v. State of Kerala 1991 (1) KLT_ _666_ . The land was not a large tract of uncultivated land covered with trees and undergrowth where no human skill, labour and resources were spent. 13. On the question of whether the land was vested and later purchased under the Land Reforms Act the Tribunal looked at Ext.A6, the proceedings of the Taluk Land Board. It was found that if the land Tribunal had not issued a purchase certificate the Land Board ought to have treated the land as belonging to Kader Kutty in the ceiling proceedings initiated under Chapter III of the Land Reforms Act. It was also noticed that private forests were exempted from the purview of the ceiling limit under S. 81 of Land Reforms Act. Reliance was placed on a decision of this Court which found that, when the State has chosen to deal with certain lands under the Land Reforms Act and reckoned it to be included in the computation of ceiling area, it was not open to them to take a subsequent plea that the area in question was really private forests. At least this position does not hold good going by the decisions in _Kunjanam Antony & Popular Estates_ (both supra). Hence A6 cannot be relied upon solely, to find that the land is not a private forest. We cannot also uphold the MFA(Forest) No.102/2007 & 147/2007 **17** finding of the Tribunal that the respondent State will have to prove the fact that the scheduled land is one on which the MPPF Act applies. A Division Bench of this Court in _State of Kerala v_ . _Kunhiraman 1990 1 KLT 382_ and a Full Bench in _State of Kerala v. Chandralekha 1995(2) KLT 152_ as also the Hon'ble Supreme Court in _Popular Estates_ (supra), held that the burden of proof to prove that the scheduled land does not come under the definition of private forest under the Vesting Act is on the applicant, who approaches the Tribunal asserting the said fact. We hence set aside the aforesaid findings of the Tribunal. 14. In so 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_ MFA(Forest) No.102/2007 & 147/2007 **18** _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. 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._ 15. 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 MFA(Forest) No.102/2007 & 147/2007 **19** 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 matter to the Tribunal. Parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C. JAYACHANDRAN, JUDGE** uu/jma