MFA (Forest) No.156 of 2011

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944** ## **MFA (FOREST) NO. 156 OF 2011** **AGAINST THE ORDER IN OA 74/1998, 75/1998, 76/1998, 77/1998,** **78/1998 AND 79/1998 DATED 2.2.2011 OF FOREST TRIBUNAL, KOZHIKODE** ## **NAME AND FULL ADDRESS OF THE APPELLANTS:** - 1 M.K.HARINDRANATHAN, AGED 52 YEARS, S/O.LATE M.K.KUMARAN, RESIDING AT, SARASWATHI NIVAS, P.O.NELLIKODE,, KOZHIKODE DISTRICT. - 2 MRS.SAJEE DEVI, AGED 52 YEARS W/O.DR.SUBRAMANIAM, RESIDING AT NAYANAM,, KUNNAMANGALAM, KOZHIKODE DISTRICT. - 3 M.K.BHOOPENDRANATH, AGED 41 YEARS S/O.LATE M.K.KUMARAN, RESIDING AT, SARASWATHI NIVAS, P.O.NELLIKODE, KOZHIKODE DISTRICT. - 4 M.K.SRASWATHY, AGED 72 YEARS W/O.LATE M.K.KUMARAN, RESIDING AT, SARASWATHI NIVAS, P.O.NILLIKODE,, KOZHIKODE DISTRICT. - 5 K.NARENDRANATH, S/O.LATE M.K.KUMARAN RESIDING AT SARASWATHI NIVAS, P.O.NILLIKODE, KOZHIKODE DISTRICT. - 6 MRS.SOUDAMINI, AGED 54 YEARS W/O.VINAYA BHUSHAN, RESIDING AT VINAYA SOUDHAM,, P.O.MANGATTIRI, TIRUR, MALAPPURAM DISTRICT. BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH ## **NAME AND ADRESS OF PERSONS IMPLEADED AS RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY SRI. NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FOREST) **2** ## M.F.A.No.156 of 2011 THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.No.156 of 2011 **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A.No.156 of 2011** **------------------------------------------Dated this the 04[th] day of January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The wife and children of one M.K. Kumaran are before us in appeal from an order of the Forest Tribunal, rejecting an application filed under S.8 of the Kerala Private Forest (Vesting and Assignment) 1971, (for brevity, the Vesting Act). The mother has filed O.A.No.77/1998, concerned with 7.5 acres of land in Sy.No.184 of Kunnathidavaka Village, Vythiri Taluk, Wayanad District, and the children, five of them, filed the other applications concerned with 15 acres each in the very same survey number. The properties are lying contiguous and as one whole and is a part of the larger extent purchased by M.K.Kumaran, which larger extent was known as Lakkadi Estate. The purchase by M.K.Kumaran was also with due sanction issued by the Collector of the then Malabar District, as required under the Madras Preservation of Private Forest Act, 1949 (for brevity, the MPPF Act). M.K.Kumaran died on 3.1.1971, and the M.F.A.No.156 of 2011 **4** properties devolved on his legal heirs, the applicants herein. The total extent purchased by M.K.Kumaran lying in Sy.No.184 of Kunnathidavaka village was 485.29 acres, of which 52.50 acres was alienated by M.K.Kumaran in favour of third parties. The application was filed seeking a declaration of exemption under the Vesting Act; each applicant claiming 1/6th right over the properties held by M.K.Kumaran. It was asserted that the applicants and their predecessor-in-interest were holding the scheduled property under a valid registered deed executed before the appointed day and each applicant is entitled to hold 15 acres of land, which is entitled to be exempted under S.3(3) of the Act; which extent comes within the ceiling limit of each of the applicants prescribed under the Kerala Land Reforms Act. M.K.Kumaran was also stated to have effected seasonal and other cultivations in the property when he was holding the land and later his eldest son, the applicant in O.A.No.74/98, was looking after the affairs of the entire property which subsequently was discontinued due to financial stringency. 2. The Divisional Forest Officer, South Wayanad Division, filed separate counter affidavits alleging limitation and challenging the M.F.A.No.156 of 2011 **5** ownership as also the cultivation asserted over the property. The properties were demarcated and surveyed and included under V.F.C item No.89 which was notified on 08.07.77. It was alleged that the boundaries shown in the schedule to the application do not tally with the boundaries of the properties in the field and there is no clear demarcation of physical boundary, to separate the disputed property from the adjoining vested forest. There was no cultivation in the property and the applicants held properties in other parts of the State. 3. Once the application was rejected by the Forest Tribunal, against which an appeal was filed before the High Court, wherein a remand was made directing _de novo_ consideration. On remand, the commission reports Exts. C1 to C3 were remitted for the purpose of identifying the property on which there was coffee plantation. Exts. C6 to C8 report and sketches were then produced before Court after physical inspection. The Tribunal raised issues on whether the land is a private forest and the applicant’s entitlement, for exemption under Ss. 3(2) or (3) of the Vesting Act. The Tribunal found that, though there was coffee plantation found in a portion of the property, there was nothing to show that the same was actually made by the M.F.A.No.156 of 2011 **6** applicants or their predecessors. While finding that the scheduled lands come within the definition of private forest, it was found that there was nothing to show personal cultivation in the property as on the appointed day. 4. Learned Counsel Sri. V.V.Surendran, appearing for the appellants, would contend that the predecessor-in-interest of the applicants had obtained clear felling permit in the year 1961, and later, was also granted sanction for selective felling of trees. The land purchased by M.K.Kumaran itself was called Lakkadi Estate clearly indicating the status as of a plantation. It is also argued that the division effected between the parties is on the basis of the decision of the Hon'ble Supreme Court reported in _[1991 Supp (2) SCC 665 P.N.Godavarman Tirumulpad and others v. State of Kerala and others]_ . It is pointed out from the commission report that the entire lands scheduled in the application is cultivated with coffee and _nelli_ trees as is evident from the commission report. The learned Special Government Pleader Sri. Nagaraj Narayanan, however points out that the Commissioner was not examined and the age of the coffee plants, as reported cannot be reckoned for reason of lack of expertise on the M.F.A.No.156 of 2011 **7** Commissioner to assess the age of plants. It is argued that the Commissioner was not examined by the applicants, who had the burden to prove the cultivation as on the appointed day. There is absolutely no claim for exemption, argues the Special Government Pleader. 5. At the outset, we have to notice that the decision in _P.N.Godavarman Tirumulpad (supra)_ has no application to the above case. Therein, in a suit for partition of the assets belonging to a _Kovilakam_ comprising 112 members, a preliminary decree was passed. Before the final decree was passed, the Vesting Act came into force with effect from 10.5.1971. Therein, the question was as to the division to be effected and the shares to be determined. As far as the shares are concerned, the State contended that there were only 112 members at the time of initiation of the partition suit, while the claim filed before the Civil Court, was for allocation of 3015 acres to 201 family members; at the rate of 15 acres for each member, the 15 acres fixed for each member was to bring the holding within the ceiling limit under the Kerala Land Reforms Act. The Hon’ble Supreme Court specifically noticed that, but for sub-section (3) of S.3, the entire M.F.A.No.156 of 2011 **8** private forest would have vested in the State Government and the family members of the _Kovilakam_ would have had no ground to stand. Hence, only on the intention to cultivate having been found, was the partition directed to be made to the 112 members from the total 1688 acres identified and demarcated by the Custodian. In the present case, we have to first find the intention to cultivate and also the ceiling limit as per the Kerala Land Reforms Act. 6. We have to first look at the specific claim of exemption raised by the applicants and decide on the nature of the property. Admittedly, the entire properties purchased by M.K.Kumaran was a private forest governed by the MPPF Act, especially since on the specific admission of the applicants, the purchase was made after sanction from the District Collector; which would not have been required, if it were otherwise. There is also ample evidence as revealed from the notification and the commission report that the properties are bounded on all sides by vested forest. As per the notification, only an extent of 418.73 acres of land in Sy.No.184 stood vested in the Government and there was no dispute regarding the exemption to 66.56 acres. The applicants also have confined their M.F.A.No.156 of 2011 **9** claim to the 82.5 acres in Sy.No.184, as exempted under S.3 (2) or (3) of the Vesting Act. Undoubtedly the schedule lands are private forest lands governed by the MPPF Act. 7. As we noticed above, after remand, the applicants took out a commission after remitting Exts.C1 to C3, specifically for ascertaining the location of the coffee planted area. Ext.C6 report and Exts.C7 and C8 sketches were filed. The Commissioner identified and demarcated the coffee planted area in Ext.C7 sketch and Ext.C8 is the enlarged sketch of the coffee planted area. The coffee planted areas comes to 12.6885 hectares and it includes portions of the property in plots A, B, C and F in Ext.C7 plan. The Tribunal declared the exemption on the ground that it was not proved that the coffee plantation was actually made by the applicants or the predecessor; according to us, quite an erroneous approach. In Ext.C1, it is clearly indicated that the area shown with light violet colour in the plan is a coffee planted area, wherein shade trees were also observed between the coffee plants. It was clearly reported that the age of the coffee plants varied from 25 to 30 years. The report was filed in the year 1999, after inspection in the same year. There was no challenge to the commission report by the M.F.A.No.156 of 2011 **10** respondent State, either by way of an objection filed or seeking cross examination of the Commissioner. Considering the age reported by the Commissioner, it can be safely assumed that there was cultivation in the said property as on 10.5.1971, the appointed day under the Vesting Act. The learned Special Government Pleader would contend that it was for the applicant to examine the Commissioner and that having not been done, there is no proof of age of the coffee plants. However, we have to notice that in the context of no objection having been filed, and the Tribunal also having not raised any doubt regarding the report before judgment, the age of plants reported by the Commissioner can be accepted. 8. In fact, the remand was also for the purpose of verifying the exact location of the property, in which there was coffee plantation. We have already looked at the sketches produced as Exts.C7 and C8, clearly demarcating the portion where there is coffee plantation which is around 31 acres. As far as the balance extent is concerned, both Exts.C1 and C6 report finds that there is no cultivation in the said portion. In Ext.C1, it was specifically noticed that the area shown in light green colour are wooden areas, wherein forest trees existed. M.F.A.No.156 of 2011 **11** However, in the portion which is coloured yellow, being the balance properties, there were seen newly planted _nelli_ plants of height about one foot; obviously newly planted and definitely not of the appointed day. In the absence of any cultivation in the remaining properties, there can be no exemption granted to the same. However, the Tribunal went wrong in not having exempted the property demarcated in Ext.C6 as having covered with coffee plantation which also is said to be existing for 25 to 30 years. We, hence, declare the said extent coloured green in Ext.C6 as exempted under the Vesting Act. The appeal stands partly allowed. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE uu