M.F.A (Forest) No.70 of 2014

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 9[TH] DAY OF FEBRUARY 2023 / 20TH MAGHA, 1944 MFA (FOREST) NO. 70 OF 2014** **AGAINST THE JUDGMENT IN OA 15/1996 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONERS/APPELLANTS(LEGAL HEIRS OF THE DECEASED** ## **APPLICANT:** - 1 M.K.SATHYAN, S/O.LATE KUNJAN, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. - 2 M.K.SAHADEVAN, S/O.LATE KUNJAN, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. - 3 M.K.ARUMUGHAN, S/O.LATE KUNJAN, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. - 4 M.S.SUDHEER BABU, S/O.M.K.SUDEVAN, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. - 5 PANKAJAKSHI, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. - 6 KAMALAM, METTUNGAL HOUSE, MUTTIKULANGARA P.O., PALAKKAD. BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## **RESPONDENTS:** 1 THE CHIEF SECRETARY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. - 2 THE CUSTODIAN EX-OFFICIO SPECIAL SECRETARY TO GOVT., AGRICULTURE (FOREST SPECIAL DEPARTMENT) BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 09.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A (Forest) No.70 of 2014** **2** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) No.70 of 2014 ------------------------------------------Dated this 09[th] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The applicant was before the Forest Tribunal seeking exemption from vesting under the Vesting Act. The applicant was concerned with two extents of property lying contiguously on which the applicant had been issued with purchase certificate under Kerala Land Reforms Act. The concerned property was situated in two survey numbers; 59 cents in 93/4 and 3.09 acres in 93/5 of Muttikulangara village, Puduppariyaram amsom, Palakkad district. The applicant claimed that he is in actual possession of the scheduled property which he took on lease from one Krishnankutty who had _janmam_ on the property. The applicant was in possession and cultivating the property for the last 45 years, when on 28.12.1995 the forest officials obstructed the cultivation alleging vesting under Kerala Private Forests(Vesting & Assignment) Act, 1971 (for short 'the Vesting Act'). It was claimed that the scheduled land is a dry land not part of the area covered under the Madras Preservation of Private Forests Act, 1949 (for short 'the MPPF Act'). The land situates **M.F.A (Forest) No.70 of 2014** **3** without any boundaries abutting a forest and there are no trees existing in the property. It was also argued that on the three sides of the property there are residential houses. The land was asserted to be brought under cultivation prior to 10.05.1971 and liable to be excluded from the definition of private forest and if not so excluded entitled to exemption based on the cultivation as on the appointed day. 2. The respondent filed a counter affidavit alleging that the character and nature of the property shows it to be a forest land never brought under cultivation at any point of time. The respondent also denied the title and possession of the property. It was admitted that the areas were demarcated and surveyed in 1997 and the property had been notified then. It was also asserted that the property was a private forest as defined under the Vesting Act. 3. PW1 and PW2 were examined on behalf of the applicant, who marked Exts.A1 to A12. The Forest Range Officer is examined as RW1, who marked Exts.B1 to B4 notifications. The Court marked Ext.C1 and C2 being the commission report & plan filed in the case. 4. The Tribunal, found that PW1 the applicant's son could not have spoken of the lease obtained by his father, especially since he was aged 44 years and he would have had no personal knowledge of the lease which was obtained by his father about 45 years back. Ext. A12 partition **M.F.A (Forest) No.70 of 2014** ## **4** deed by which the lessor of the father of the applicant had obtained the lease was looked into to find that there is nothing to show that the property belongs to Kallampatta Krishnankutty, the lessor of the property as seen from the application. However, it was noticed that one Krishnan is the owner of the property who as on the date of Ext.A12 was aged 21 years; who would have been only aged 12 years as on the year of lease, 1951; which makes the story of lease unbelievable. The purchase certificate was held to be not binding on the Custodian. The land revenue receipts did not clearly show the extent of the lands and admittedly the applicant had other properties, the details of which were not produced before the Tribunal. The Tribunal assumed that the tax receipts produced were with respect to other properties. PW2 the alleged neighbour was disbelieved since his evidence was tutored and though he spoke of cultivation in the scheduled property; there were no signs of that seen by the Commissioner. Ext.C1 report of the Commissioner and Ext.C2 were looked into to find that the property comprised in 93/5A is a vested forest land which encloses the scheduled land, while the property in 93/4B is not claimed to be a private forest with reference to Ext.B1 notification of the year 1997. It was found that Commissioner's plan and Ext.B1 tallies, thus clearly establishing the fact that the entire land lies as a forest land. The threshing yard shown in the northern side though **M.F.A (Forest) No.70 of 2014** **5** would have been used minimally for threshing; there is no sign of paddy cultivation as of now or as on the appointed day. The minimal extent required for a threshing ground would not enable exemption of the entire land. The Tribunal found the land lying as a private forest enabled vesting under the Vesting Act. 5. Sri. Binoy Vasudevan, 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 **M.F.A (Forest) No.70 of 2014** **6** 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. 6. 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 **M.F.A (Forest) No.70 of 2014** **7** 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 _resjudicata_ since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act. 7. 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 subsection (1) provides for issuance of Certificate of Purchase to the cultivating tenant, upon which the right, title and interest of the land **M.F.A (Forest) No.70 of 2014** **8** owner and the intermediaries, in respect of the 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. Subsection (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) which defined tenant as a person 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. 8. 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 excludes cultivated lands and waste lands which are not enclaves within wooded areas. S.72, which speaks of **M.F.A (Forest) No.70 of 2014** **9** vesting of landlord’s 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. 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 Land Reforms Act. The **M.F.A (Forest) No.70 of 2014** ## **10** 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 wrongly issued with a purchase certificate under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act _de hors_ a notification. 9. The Tribunal, according to us, found Ext.A12 to show the allotment of the scheduled land is on another person, different from that shown in the application and that he was a minor at the time of the lease claimed. The name shown in the application of the lessor is Krishnan with his family name and the name in Ext.A12 is also Krishnan, to whom the land was allotted as per the partition deed. Though the lessor was only12 years since they were family properties, the guardian of the minor child could have definitely granted the lease. In any event, the title on the land is established by the production of the purchase certificate, the extent of which tallies with the schedule and was found on the field by the Commissioner. As far as the title is concerned, Ext.A1 issued under the Kerala Land Reforms Act is conclusive as per S.72K of the Kerala Land Reforms Act. We are unable to countenance the argument otherwise raised by the learned Special Government Pleader especially looking at the binding precedent of the Hon'ble Supreme Court in _**Mohammed**_ **M.F.A (Forest) No.70 of 2014** **11** _**Basheer** (_ supra _)_ _**.**_ In _**Mohammed Basheer** (_ supra _)_ the Hon'ble Supreme Court found that the lands on which a purchase certificate has been issued under S.72K, automatically absolves the property from vesting. In this context we also have to say that the finding of the Tribunal that the purchase certificate will not bind the Custodian cannot be accepted especially when the Government had the power to file an appeal from the issuance of the purchase certificate. 10. PW1 clearly stated that the property exists as a garden land with only grass growing in it. It was also stated that the property was cultivated as on 10.05.1971. PW2 is a labourer who was born and brought up in the area and was 66 years old at the time of giving evidence in the year 1998. He was acquainted with the property and spoke of the boundaries. He also spoke of cultivation having been carried out in the property and the property also being used as a threshing ground. He specifically spoke of having been acquainted with the applicant for the last 28 years and spoke of the vegetation in the property which was fugitive crops till eight years back. It was also deposed that the property only contains grass as of now. We cannot accept the Tribunal’s assumption that he was tutored; without any basis. 11. The Commission report and plan also were looked into by us. The plan indicates vested forest on the length of the eastern and **M.F.A (Forest) No.70 of 2014** **12** western boundaries which is as per the basic tax records. (BTR). On the southern end there are private properties on all the three boundaries. The Commission report also speaks of the absence of trees in the property and though there is no cultivation, some grass and shrubs were the only vegetation in the property. We have to notice that the Tribunal has not looked at the crucial question as to whether the scheduled lands are private forest coming under S.2(f)(1)(i) or (ii) of the Vesting Act. Admittedly the property is in the Malabar District. But there is no claim in the counter affidavit that the property is covered under the MPPF Act nor is it claimed that the vested forest has a total extent of more than 100 acres. Hence the consideration has to be necessarily under S. 2(f)(1)(ii), upon which the property would have to be found lying as a forest for enabling vesting under the Vesting Act. The Commissioner’s report does not indicate the property to be lying as a forest land. There are no trees in the property and there are only shrubs and grass existing in the property as of now. Even as per the application the respondent contended that the possession of the property was interfered with in the year 1995 by the forest officials. PW2 deposed that for eight years the property is lying as barren and before that there was fugitive cultivation in the property. 12. The lease of the property and intention to cultivate is very clear from the purchase certificate issued. We have also placed **M.F.A (Forest) No.70 of 2014** **13** reliance upon _**Mohammed Basheer**_ (supra). The totality of the circumstances would persuade us to set aside the order of the Tribunal finding the scheduled land to be not a private forest coming under the Vesting Act. The claim of fugitive cultivation in the property as on the appointed day is probablised by the fact that there are no forest trees existing in the property. The appeal is allowed and the original application is also allowed declaring the property to be not a private forest capable of being vested under the Vesting Act. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** **jma**