MFA (Forest) Nos. 165 & 166 of 2012

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944** **MFA (FOREST) NO. 165 OF 2012** **AGAINST THE ORDER/JUDGMENT IN OA 29/2008 OF FOREST TRIBUNAL,** **KOZHIKODE** ## **PETITIONERS:** - 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST AND WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY SRI. NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FOREST) ## **RESPONDENT:** KESAVAN S/O LAKSHMI AMMA, KAVEETIL PADINJARATHIL HOUSE, VADANAMKURUSSY, ONGALLUR-2 VILLAGE-679 124. BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K. THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 10.01.2023, ALONG WITH MFA (FOREST).166/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.165 & 166/2012** **2** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN TUESDAY, THE 10[TH] DAY OF JANUARY 2023 / 20TH POUSHA, 1944 MFA (FOREST) NO. 166 OF 2012 AGAINST THE ORDER/JUDGMENT IN OA 28/2008 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONERS:** - 1 GOVERNMENT OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN SPL. G.P. FOR FOREST ## **RESPONDENT:** RAMAKRISHNAN S/O KODIYAL ITTICHIRI AMMA, THOTTEKKOT HOUSE, VADANAMKURUSSY, ONGALUR-2 VILLAGE, PALAKKAD DISTRICT-679 124. BY ADVS. SRI.LIJU. M.P SRI.SAJAN VARGHEESE K. THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 10.01.2023, ALONG WITH MFA (FOREST).165/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.165 & 166/2012** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No.165 & 166 of 2012 ------------------------------------------Dated this 10[th] January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J** Both the appeals are from the common order of the Forest Tribunal granting a declaration under S.3(2) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity 'the Vesting Act'), for the respective properties scheduled in the two applications. The application scheduled property was comprised in a larger extent belonging in _janmam_ to the family of one Sankaran Nair, on whose death there was a partition in the family in the year1984. Even prior to the partition, the property was jointly possessed and enjoyed by the wife and children of Sankaran Nair. After his demise, a purchase certificate was issued in the name of the wife of Sankaran Nair, Lakshmikutty. By the partition, 'E' schedule property was allotted to the applicant in O.A No. 29/2008. The application schedule properties were comprised in item Nos. 6 to 9 in E schedule property, a part of which in item No.7 was sold **MFA(Forest) No.165 & 166/2012** **4** by the applicant in O.A No. 29/2008 to the applicant in O.A No. 28/2008, in the year 2008. The predecessor-in-interest of the applicants who held the property as on the appointed day was the same and the properties lying adjacent were existing as garden lands and not forest lands. There was fugitive cultivation carried on in the property by Sankaran Nair and after his demise, his legal representatives. The owner of the property did not have lands exceeding the ceiling limits under the Kerala Land Reforms Act; asserted the applicants. 2. The Custodian of Vested Forests, Eastern Circle, Palakkad resisted the application pointing out that the scheduled lands were comprised within a total extent of 69.57 hectares, part of a huge _malavaram_ known as _Chovvllurmanakkad_ . The properties were notified as VFC item No.71 on 10.10.1979, being a part of the erstwhile Madras Preservation of Private Forest Act, 1949 (for brevity 'the MPPF Act'). The property exists on the field as a typical forest with miscellaneous undergrowth and forest species trees. The claim for exemption was stoutly denied. 3. We heard Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.Sajan Varghese K learned Counsel **MFA(Forest) No.165 & 166/2012** **5** for the applicant. 4. On a joint trial PWs1 and 2 were examined who proved Ext.A1 to A6 documents. RW1 was examined on behalf of the Forest Department producing and proving Exts.B1 to B3. Commission report Ext.C1 was accompanied with Ext.C1(a) plan and there was a subsequent commission report Ext.C2. 5. The Tribunal raised four issues of limitation, the nature and status of the property, the claim of exemption under S.3(2)&(3) and entitlement for a declaration under the Vesting Act. On the question of limitation it was found that there was no proof of the date of publication of notification, in accordance with the statutory rule. We find no reason to differ from the finding of the Tribunal on that aspect. 6. The Tribunal then examined the issue whether the land is governed by the MPPF Act. Admittedly it was lying within the Malabar district and was comprised within a total extent of more than 100 acres. _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ and _**2014(3)KHC782 Kunhiraman P.V v. Custodian**_ were relied on to find the burden, to prove that the land is not governed by the MPPF Act, to be squarely on the applicants. There was no proof offered by the applicants **MFA(Forest) No.165 & 166/2012** **6** on this aspect and the land scheduled was rightly held to be governed by the MPPF Act. 7. As to the exclusion under S.2(f)(1)(i), the Tribunal examined each of the clauses entitling exclusion from the definition of forest under the Vesting Act. Under clause (A), the land be garden land or nilam, under clause (B), plantation and under clause (C), cultivated with fruit bearing trees. The decision of this Court defining agricultural crops _**(State of Kerala v. Amalgamated Malabar Estate Pvt. Ltd [1979 KLT 829]**_ and fruit bearing trees ( _**State of Kerala v. Moosa Haji [1984 KLT 494] & State of Kerala v. Malayalam Plantations [1980 KLT 976]**_ were referred to. The claim of the applicant was that the property was cultivated with _moden,_ pulses, tapioca _and koorka,_ which cannot be included in either of the clauses. There was also no claim of a building existing in the property, for beneficial enjoyment of which the lands were required to be excluded; as is the requirement under clause (D). The Tribunal has rightly considered the exclusion clauses and denied a declaration on that ground. 8. On the question of title, the Tribunal found Ext.A6 to be a **MFA(Forest) No.165 & 166/2012** **7** _Kanam_ assignment deed of 1107 Malayalam Era executed between Narayanan Namboothiripad and Sankaran Nair. Hence the property was held on the strength of a registered deed as on the appointed day. Ext.A2 is the partition deed by which applicant in OA 29/2008 received the schedule lands, a portion of which was assigned to the applicant in O.A 28/2008.More importantly Ext.A3 purchase certificate, under the Land Reforms Act, was issued in the name of Lakshmikutty Amma, the wife of Sankaran Nair and the mother of the applicant in O.A 29/2008. The applicants and their predecessor-in-interest were holding the properties on the strength of registered deeds. The predecessor-in-interest is an owner as on the appointed day under the Vesting Act holding the land by virtue of the registered deed and the applicants are respectively the assignee and the legal heir of the original owner. The applicants are entitled to file an application under S.8 of Vesting Act as held in ## _**Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461).**_ 9. On the question of cultivation it was categorically pleaded by the applicants that they were cultivating the property with tapioca, modem, pulses etc., even prior to the appointed date; which was testified by PW2 who had direct knowledge of the said fact. He deposed that from **MFA(Forest) No.165 & 166/2012** **8** the time he was 8 years old he was working in the property and had direct knowledge of the cultivation carried on therein. The Commissioner who carried out inspection filed Ext.C1 report, wherein it was observed that the properties were lying as a garden land and there were evident signs of earlier cultivation. Ext.C2 report also spoke of the land lying as a garden land on which there were platforms and bunds erected with human effort to carry on fugitive cultivation. Even in the deed of 1107, Ext.A6; the property was described as _paramba_ meaning garden land. In the schedule of Ext.A6 the property was described as garden land which tallies with the description of the Commissioner as disclosed from the commission report; prepared after site inspection. Ext.A5 extract of the basic tax register also shows the description of the property as garden lands. The commission report showed rubber estates and coconut garden on three sides of the property and vested forest on the western boundary, off the property scheduled in O.A No.29/2008 and private properties on all the sides of the property scheduled in O.A No. 28/2008. The Tribunal found that the above facts would clearly disclose the intention to cultivate of the applicants. 10. In addition to the above, as we noticed, the wife of **MFA(Forest) No.165 & 166/2012** **9** Sankaran Nair, the predecessor-in-interest of the applicants had obtained a purchase certificate under the Kerala Land Reforms Act. The purchase certificate issued under S.72K of the Kerala Land Reforms Act is conclusive proof of title. The Hon'ble Supreme Court in _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]**_ held that the lands on which the purchase certificate has been issued are automatically exempted under the Vesting Act. As far as the ceiling limit is concerned when the predecessor-in-interest of the applicants obtained a purchase certificate for the scheduled lands under the Kerala Land Reforms Act necessarily the holdings were within the ceiling limit. We find no reason to interfere with the impugned order and reject the appeals leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** jma