MFA (Forest) No.132 of 2007

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN`** ## **`&`** ## **`THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN`** ``` WEDNESDAY, THE 14[TH] DAY OF NOVEMBER 2022 / 18TH KARTHIKA, ``` ``` 1944 ``` ## **`MFA (FOREST) NO. 132 OF 2007`** ``` AGAINST THE JUDGMENT DATED 27.04.2006 IN OA 68/1998 OF FOREST TRIBUNAL, KOZHIKODE ``` ## **`APPELLANTS:`** - **`1 AMMU. W/O.PATTU`** - **`2 SANATHA KUMARI, D/O.PATTU`** - **`3 KRISHNANKUTTY, S/O.PATTU`** - **`4 SWAMINATHAN, S/O.PATTU`** - **`5 MURALI, S/O.PATTU`** - **`6 SARADA, D/O.PATTU`** - **`7 SUGUNA, D/O.PATTU`** - **`8 VIJAYAN, S/O.PATTU`** ## **`ALL RESIDING AT ATAPPARA, KOTTAKKADUVEEDU, ELAVANCHERRY, CHITTOOR TALUK.`** ## **`BY ADV SRI.A.R.GANGADAS`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM.`** - **`2 THE CUSTODIAN OF VESTED FORESTS ARANYABHAVAN FOREST COMPLEX, OLAVAKKODE, PALAKKAD.`** ## **`BY ADV.SRI.NAGARAJ NARAYANAN, SPL.G.P. [FOREST]`** ``` THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 14.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) No.132/2008 **2** K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------M.F.A.(Forest) No.132 of 2007 ----------------------------------------------Dated this the 09[th] November, 2022 ## JUDGMENT ## K.Vinod Chandran, J. The original application, from which the appeal arise, was one filed under S.8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act). The applicants sought a declaration that 5.33 Acres of scheduled land comprised in Survey No.107D/6 of Elavnacheri Village, Chittur Taluk, Palakkad District is not a private forest and alternatively claimed exemption under s.3(2)&(3) of the Vesting Act. The Tribunal rejected the application and the appeal is by the applicants. 2. The applicants contend that the scheduled property belonged to the family of one Karunakara Menon, from whom Pattu, the predecessor of the applicants, obtained an oral lease and on his death it devolved on the legal heirs, the applicants. The property was said to have been cultivated with black gram, pea and tapioca by the predecessor-in-interest and the legal heirs also obtained Purchase Certificate under the Land Reforms Act. The respondent disputed the MFA(Forest) No.132/2008 **3** oral lease and cultivation and resisted the purchase certificate as not binding on them. The land, lying contiguously with vested forest, was asserted to have been notified on 20.05.1985; which makes the application barred by limitation. 3. Earlier, the Tribunal rejected the application and in an MFA, a remand was made, but not interfering with the finding of the Tribunal that the application was barred by limitation. On remand the Tribunal framed three issues; (i) whether the land is a private forest, (ii) whether the applicants are entitled to declaration of exclusion and (iii) whether the exemption claimed under S.3(2)&(3) is allowable. The Tribunal found that even as per the notification marked as Ext.B1, the total extent is below 100 acres and hence, it does not come under the definition of private forests in S.2(f)(1)(i) of the Vesting Act. However, the land was covered under the definition of private forest under S.2(f)(1)(ii) of the Vesting Act. The examination of the claim hence was confined to that of exemption under S.3. On title, Ext.A1 was held to be not conclusive and this Court in the order of remand, declined to accept Ext.A1 as conclusive proof under the Vesting Act. A2 and A3 tax receipts were long after the appointed date. It was found that there was no evidence to prove the title of the property, for which ground also declaration was MFA(Forest) No.132/2008 **4** declined and it was also noticed that there was nothing produced to prove personal cultivation by them. 4. Sri. Gangadas, learned Counsel for the appellant/applicant relied on State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260] to argue that the purchase certificate issued under Section 72K is conclusive proof of title and such lands are exempted under the Vesting Act. The decisions in Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221] and State of Kerala v. Popular Estates [(2004) 12 SCC 434] were 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. The Purchase Certificate issued under S.72K, according to him, is conclusive proof of the land being not a private forest, and the exemption under S.3(vii) of the Land Reforms Act would not definitely be applicable. It was argued that the definition of private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase Certificate being statutorily conclusive as per S.72K, there is a presumption that the property is not a private forest. 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 MFA(Forest) No.132/2008 **5** proceedings before the Land Tribunal, which led to the issuance of the purchase certificate. 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 position has been affirmed by two decisions of the Hon'ble Supreme Court in Kunjanam Antony and Popular Estates (both supra). Mohammed Basheer (supra) was a subsequent decision of the Hon'ble Supreme Court which, 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 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 MFA(Forest) No.132/2008 **6** 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. 6. 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 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 MFA(Forest) No.132/2008 **7** holding or part thereof, 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. 7. Further It is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter is contained the provisions regarding deemed tenants and S.13, which speaks of rights of tenants to fixity of tenure. The definition of private forests under both enactments exclude cultivated lands and waste lands which are not enclaves within wooded areas. S.72, which speaks of vesting of landlord’s rights, in Government, provides that all right, MFA(Forest) No.132/2008 **8** 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 without any cultivation specified in clause (ii) to (iv), 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 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 MFA(Forest) No.132/2008 **9** 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. It is also urged that the private forests under the Vesting Act includes those under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act de hors a notification. The learned Special Government Pleader would also rely on an unreported decision of this Court in MFA No.12 of 1980 dated 10.01.1986. 8. We have no doubt that State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260] is conclusive on the aspect of title and also exemption under the Vesting Act. However in the present case, the difficulty, in so far as, the High Court in M.F.A. NO.120/2001, interpartes refused to accept the claim of conclusive proof offered by Ext.A1 purchase certificate. This Court, said so in the judgment while remanding the matter. 9. This Court having concluded the issue inter-partes, it was not open for the Tribunal to further consider the binding nature of Ext.A1, as rightly found by the Tribunal. In that circumstance, we have to look at the evidence in so far as the exclusion and exemption are concerned. As we noticed, though the Tribunal found that the MFA(Forest) No.132/2008 **10** scheduled land is not a private forest coming under sub-clause (i) of S.2(f)(1); it was found to be covered under sub-clause (ii), hence the land is a private forest for the purposes of the Vesting Act. The Tribunal found that it was the duty of the applicant to prove that the property is not a private forest as held in State of Kerala v. Kunhiraman 1990 (1) KLT 382. The said decision is with respect to exclusion under S.2(f)(1)(i) and the proof regarding the property not being covered under the MPPF Act. As far as the other sub-clauses (ii) and (iii) of S.2(f)(1), also it is the duty of the applicant to prove that it is not a private forest which can be done by carrying out a local inspection of the property by a Commissioner and also establishing a cultivation in the property as on the appointed day. A commission was taken out and the report is marked as Ext.C1, which the Tribunal found gives a clear picture about the disputed property. It is clearly indicated that the disputed property is bounded on all sides by vested forest, although on the northern and eastern boundaries there are private holdings as well. The disputed property lies without any demarcation from the vested forest on all its sides, however there is a compound wall separating the disputed property from the private holdings making it clear that the scheduled property lies contiguously with the private forest and as a single continuous forest land. On the MFA(Forest) No.132/2008 **11** actual status of the land, the Commissioner reports that the property is full of rock pieces and rocky patches making cultivation an unviable proposition. There are also no trees in the property and the Commissioner reported that there is no symptom of any cultivation in the disputed land. The fact that the property lies contiguously with the private forest on its boundaries and has rocky patches making it unviable for cultivation clearly brings it within the definition of private forest under S.2(f)(1)(ii) of the Vesting Act. 10. There is no semblance of cultivation carried out in the property at the time of inspection nor is there any attempt to prove such cultivation having been carried out as on the appointed day. Considering the entire circumstances, we are of the opinion that the order has to be upheld and the appeal rejected. We do so and while rejecting the appeal, leave the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** sp/uu