MFA (Forest) Nos.45, 46 & 47 of 2007 (OA 8/2005, OA 9/2005, OA 10/2005) - T.J. Mathew; Francis Joseph; Alex Joseph v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022/1ST AGRAHAYANA, 1944** ## **MFA (FOREST) NO. 45 OF 2007** **OA 8/2005 OF FOREST TRIBUNAL, KOZHIKODE** **APPELLANT:** T.J.MATHEW S/O.JOSEPH THARAPPEL HOUSE, KADAPPARA, MANGALAM DAM, ALATHUR, PALAKKAD. BY ADVS. SRI.N.SUKUMARAN (Sr.) SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.N.K.KARNIS SMT.PARVATHY ANIL SRI.S.SHYAM 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. 3 THE DIVISIONAL FOREST OFFICER, FOREST OFFICE, NENMARA, PALAKKAD. 4 THE RANGE OFFICER, ALATHUR, VADAKKENCHERY RANGE, ANAKKAPARA, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS:** THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH MFA (FOREST).Nos.46 & 47/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A (Forest) Nos.45, 46 & 47 of 2007 ..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 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944** ## **MFA (FOREST) NO. 46 OF 2007** ## **OA 10/2005 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** FRANCIS JOSEPH S/O JOSEPH THARAPPEL HOUSE, KADAPPARA, MANGALAM DAM, ALATHUR, PALAKKAD. BY ADVS. SRI.N.SUKUMARAN (Sr.) SMT.PARVATHY ANIL SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.N.K.KARNIS SRI.S.SHYAM ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. 3 THE DIVISIONAL FOREST OFFICER FOREST OFFICE, NEMMARA, PALAKKAD. 4 THE RANGE OFFICER, ALATHUR, VADAKKENCHERY RANGE, ANAKKAPARA, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH MFA (FOREST).Nos.45 & 47/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A (Forest) Nos.45, 46 & 47 of 2007 ..3.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 22[ND] DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944** **MFA (FOREST) NO. 47 OF 2007** ## **OA 9/2005 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT:** ALEX JOSEPH S/O.JOSEPH THARAPPEL HOUSE, KADAPPARA, MANGALAM DAM, ALATHUR, PALAKKAD. BY ADVS. SRI.N.SUKUMARAN (Sr.) SRI.BOBBYMATHEW KOOTHATTUKULAM SRI.N.K.KARNIS SMT.PARVATHY ANIL SRI.S.SHYAM 1 STATE OF KERALA, REP. BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD. 3 THE DIVISIONAL FOREST OFFICER, FOREST OFFICE, NENMARA, PALAKKAD. 4 THE RANGE OFFICER, ALATHUR, VADAKKENCHERY RANGE, ANAKKAPARA, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS:** THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 22.11.2022, ALONG WITH MFA (FOREST).Nos.45 & 46/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A (Forest) Nos.45, 46 & 47 of 2007 ------------------------------------------------------------Dated this the 22[nd] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. These appeals are carried from the common order of the Forest Tribunal, Kozhikode in three original applications, which were jointly tried as O.A.Nos.8/2005, 9/2005 and 10/2005. As per the impugned order, the declaration sought for in respect of the scheduled properties; that the same are not private forest and alternatively, for the exemption under Sections 3(2) and 3(3) of the Kerala Private Forests (Vesting and Assignment) Act (hereinafter referred to as 'the Vesting Act' for short) were dismissed. **2.** Facts in brief:- The subject matter of O.A.Nos.8/05, 9/05 and 10/05 are 5 acres, 10 acres and 5 acres of land respectively in Sy.No.561/3 of Mangalam Dam Village (formerly Vandazhi M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** village). The scheduled properties were originally part of Nellikkalidam Estate, which was the subject matter of partition suit, O.S.56 of 1947 of the Sub Court, Palakkad. As per order in I.A.No.4946/1961 of the Sub Court, the properties were sold in public auction and the sale was confirmed in favour of one Varkey George, being the highest bidder. Ext.A1 Sale deed bearing no.324/1964 was executed in his favour. The said Varkey George applied for clear felling and sale, which was allowed by the District Collector, Palakkad as per proceedings no. D.Dis.16378/66 dated 3.11.1966 as per the provisions of the Madras Preservation of Private Forests Act, 1949 ('M.P.P.F. Act' for short). Accordingly, he clear felled the area and planted rubber, after obtaining license bearing no. C 578/66 from the Rubber Board, Kozhikode. He also planted cashew in the scheduled properties. As per Ext.A2 agreement dated 22.3.1967, Varkey George agreed to sell 135 acres of land in the said survey number to Sri. Joseph Mathew, pursuant to which possession was handed over to him. Thereafter, by virtue of Ext.A3 agreement for sale dated 14-2-1969, the said M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** Joseph Mathew put one Joseph and his son Alex in possession of 10 acres of property and by virtue of Ext.A4 agreement for sale dated 11-6-1969, the said Joseph Mathew put 1) T.J.Mathew and 2) Francis Joseph in possession of another 10 acres of land. Finally, by virtue of Exts.A5, A6 and A7 sale deeds of the year 1999, properties having an extent of 10 acres, 5 acres and another 5 acres were transferred in favour of Alex Joseph (applicant in O.A.No.9/2005), Francis Joseph (applicant in O.A.No.10/2005) and T.J.Mathew (applicant in O.A.No.8/2005) by the original owner, Varkey George. Upon enquiry made pursuant to the steps taken by Taluk Tahsildar, Alathur to take possession of the scheduled properties, it was understood that the scheduled properties, along with other land in the same survey number, were surrendered by one Abdul Latheef as excess land under the Kerala Land Reforms Act in ceiling case, C.C.No.331/73/PPM of the Taluk Land Board, Pathanapuram. The final order dated 25.1.1983 was passed by the Land Board without notice to the applicants. In a petition preferred by the applicants under M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** Section 85(8) of the Land Reforms Act, the Taluk Land Board passed orders dated 21.11.1995 exempting the scheduled properties. The applicants have all along been in possession of the scheduled properties and are cultivating rubber and cashew therein. There was no notification issued declaring the area comprising of the scheduled properties as a vested forest. The scheduled properties were not private forest. Nor did the M.P.P.F. Act apply to the same immediately prior to the appointed date. On the above premise, the applicants sought for a declaration that the scheduled properties are not private forest and alternatively, for exemption under Sections 3(2) and 3(3) of the Vesting Act. **3.** The Divisional Forest Officer filed counter affidavit contending that the scheduled properties are part of a huge malavaram (slope of a hill) known as Nellikkalidam malavaram of Alathur Range, having a total extent of 1363.78 hectares, which is lying contiguously with other forest areas. The whole malavaram was governed by the erstwhile M.P.P.F. Act. Clear felling and removal of trees as claimed in the O.A. with the M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** permission of the District Collector would clearly establish that the area was governed by the M.P.P.F. Act. The scheduled properties stand vested with the Government and the same was surveyed, demarcated and notified as VFC item no.36, pursuant to notification no.1383/77 dated 10.10.79. The scheduled properties are forest lands, supported by growth of forest trees, which was encroached upon by the applicants during 1988. Rubber and cashew cultivation claims were raised after such encroachment. The agreement dated 22.3.1967 and another one dated 11.6.1969 in favour of Joseph Mathew are void for want of prior permission from the District Collector, as enjoined by the M.P.P.F. Act, 1949. The title deed of the year 1999 is invalid by virtue of Section 3(1) of the Vesting Act. The scheduled properties are bounded by vested forests on its southern, western and northern side. On such premise, the respondent sought for dismissal of the original application. **4.** The evidence in this case consists of Exts.A1 to A7 on the part of the applicants, supported by the oral evidence of Pws 1 to 3. On the part of the respondents, Exts.B1 to B4 were M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [22 x 8] intentionally omitted <==** marked, supported by the oral evidence of the Range Officer as RW1. The Commissioner's report and sketch were marked as Exts.C1 and C2. **5.** On an analysis of the facts, evidence and probabilities of the case, the Tribunal dismissed the original applications, finding that the order of the District Collector permitting clear felling, as also, the order of the Rubber Board permitting re-planting, both, were not produced and that the cultivation claimed does not answer the requirement of lands being 'principally cultivated' with rubber or cashew. The Tribunal found that the applicants failed to establish any of the exclusions under Clauses (A) to (D) of Section 2(f)(1)(i) of the Vesting Act. As regards exemption under Sections 3(2) and 3(3) of the Vesting Act, the Tribunal relied upon **Koya v. State of Kerala** [1987 (1) KLT 830] to find that the applicants, being the assignees, have no locus to claim exemption. It was also found that previous sanction of the District Collector was not obtained in terms of Section 3(1)(b) of the M.P.P.F. Act when the scheduled properties were alienated in favour of Joseph M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** Mathew in the year 1967, wherefore such alienation, as also, the transfers subsequent thereto, are void. **6.** Heard Sri.Boby Mathew Koothattukulam, learned counsel for the appellants in the appeals and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests). Perused the records. **7.** Learned counsel for the appellants contended that the Tribunal went unrealistic in insisting for production of the order for clear felling, as also, the permit to plant rubber. The proceedings number and date as per which permission was granted for clear felling is specifically pleaded in the original application. Similarly, the license number issued by the Rubber Board for planting rubber trees is also specifically stated in the O.A. That apart, an unofficial copy of both these orders were produced before the Tribunal. Finally, interlocutory applications were filed to call for the original order from the office of the District Collector, as also, the Rubber Board, who have not denied the existence of the proceedings and permit relied upon by the applicants, but only stated that the file concerned is not M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** traceable. Toeing in line with the above contentions, learned counsel invited our attention to the cross-examination of the Forest Range Officer, RW1, where he would not deny the existence of the proceedings and permit, above referred. In such circumstances, the Tribunal ought to have found that the claim of the applicants/appellants was genuine and bonafide, when assessed in the yardstick of proof by preponderance of probabilities. As regards the cultivation claimed for exclusion under Clauses (B) and (C) to Section 2(f)(1)(i) of the Vesting Act, it is the contention of the counsel for the appellants that the findings in Ext.C1 commission report were not properly appreciated by the Tribunal. At any rate, the Tribunal should have found that the applicants are entitled to the exemptions under Sections 3(2) or 3(3) of the Act is the final submission. **8.** Per contra, the learned Special Government Pleader (Forests) argued to sustain the impugned order by pointing out that the applicants were duty bound to produce the proceedings as per which their predecessor got permission to clear fell the trees, as also, the permit enabling re-planting M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** rubber in the scheduled properties. The finding of the Tribunal that the cultivation of rubber, or for that matter cashew, will not answer the requirement of “principally cultivated” as employed in Clauses (B) and (C) to Section 2(f)(1)(i), cannot be faulted at all. The learned Special Government Pleader (Forests) seeks the dismissal of the appeals. **9.** The first point which falls for consideration is whether the scheduled properties are private forests, within the meaning of the Vesting Act, which, in turn, takes us to the incidental question, whether the scheduled properties were governed by the M.P.P.F. Act immediately prior to the appointed date under the Vesting Act. While answering this question, the Tribunal placed reliance upon the pleading in the Original Applications that the applicants' predecessor-in-interest have obtained permit for clear felling from the District Collector as required under the M.P.P.F. Act, which admission is sufficient to hold that the scheduled properties were governed by the M.P.P.F. Act immediately before the appointed day. The Tribunal also relied upon the evidence tendered by PW3/Varkey George, the M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** predecessor's predecessor of the applicants , who also would admit that the M.P.P.F. Act applied to the scheduled properties as on the relevant date. On such premise, the Tribunal found that the M.P.P.F. Act applied to the scheduled properties immediately prior to the appointed day. No exception can be taken with respect to the above findings of the Tribunal and we confirm the same. **10.** Once it is found that the M.P.P.F. Act would have applied to the scheduled properties, the next question is whether the properties would qualify under any of the exclusions contemplated in Clauses (A) to (D) of Section 2(f)1(i). Inasmuch as the specific cultivation claimed in the O.As are rubber and cashew, the relevant Clauses are (B) and (C) respectively. Both under Clauses (B) and (C), the statutory requirement is principal cultivation of the specie referred therein. We reject the applicants' claim for exclusion under Clauses (B) and (C) to Section 2(f)(1)(i) for the following reasons: M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** (i) Absence of recital regarding cultivation in Exts.A2, A3 and A4 agreements:- **10(a).** As per the averments in the O.As, the scheduled properties were got clear felled by Sri. Varkey George after obtaining necessary permit from the District Collector, Palakkad, as required under M.P.P.F.Act and he planted cashew and rubber trees in the scheduled properties in terms of license no. C 578/66 issued by the Rubber Board. **10(b).** Here, it is profitable to refer to the derivation of title of the scheduled properties. The scheduled properties were part and parcel of a huge malavaram having an extent of 4200 acres in Sy no.561/3 of Vandazhi Village. This property was purchased in court auction by one Varkey George, in whose favour the sale was confirmed and Ext.A1 sale deed of the year 1964 was executed by the receiver appointed by the court. Varkey George, according to the averments in the O.A, obtained clear felling permit and the planting permit in the year 1966. As per Ext.A2 agreement for sale, the said Varkey George agreed to sell and put one Joseph Mathew in M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** possession of 135 acres out of the said 4200 acres afore referred. It is important here to note that Ext.A2 contains specific recitals as regards the permit obtained from the District Collector to clear fell the trees in the properties. Thereafter, by virtue of Ext.A3 agreement for sale, the said Joseph Mathew agreed to sell and put one Joseph and his son Alex in possession of 10 acres of property; and by virtue of Ext.A4 agreement for sale, the said Joseph Mathew agreed to sell and put 1) T.J.Mathew and 2) Francis Joseph in possession of another 10 acres of land. While Ext.A2 agreement for sale is of the year 1967, Exts.A3 and A4 agreements are of the year 1969. Finally, by virtue of Exts.A5, A6 and A7 sale deeds of the year 1999, properties having an extent of 10 acres, 5 acres and another 5 acres were conveyed in favour of Alex Joseph (applicant in O.A.No.9/2005), Francis Joseph (applicant in O.A.No.10/2005) and T.J.Mathew (applicant in O.A.No.8/2005) by the original owner Varkey George. **10(c).** While Exts.A2 to A4 agreements specifically recite the permit obtained from the District Collector for clear felling, M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** there is no recital, whatsoever, in the said documents as regards the so-claimed permit obtained from the Rubber Board for re-planting rubber, as claimed in the original applications. Nor is there any recital indicating that the said Varkey George had re-planted the scheduled properties with rubber and cashew. Absence of the recital above referred, especially when the permit from the District Collector for clear felling is specifically recited, would tell harsh upon the applicants' claim of re-planting the properties with rubber and cashew, for the purpose of exclusion under Clauses (B) and (C) of Section 2(f) (1)(i) of the Vesting Act. Simultaneous with this, we may observe that non-production of the so-claimed permit issued by the Rubber Board bearing no.C 578/1966 would worsen the applicants' claim further. (ii) Contents of Ext.C1 commission report:- **10(d).** The specific claim espoused by the applicants is cultivation of rubber and cashew. The commissioner found that there are around 2500 rubber trees in the scheduled properties, however of the age 25 years. The commissioner M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** also found that there are 200 cashew, which were aged between 30 to 40 years approximately. As regards cultivation of rubber is concerned, we may straight away dismiss the claim, since the age of the trees noted in Ext.C1 does not relate back to the appointed day under the Vesting Act, the commissioner's inspection being on 5.3.2006 and 2.4.2006. Insofar as cashew is concerned, the commissioner found 200 trees of the age between 30 to 40 years approximately. First of all, we have no clue as to how many trees are aged about 40 years. Thirty year old cashew is of no consequence since the same also does not relate back to the appointed day. Secondly, the requirement for exclusion under Clauses (B) and (C) of Section 2(f)(1)(i) is the principal cultivation of any of the particular specie referred to in clauses (B) and (C). Two hundred trees of cashew in the scheduled properties, having a total extent of 20 acres, will not satisfy the requirement of the land being 'principally cultivated' with cashew; especially when the cultivation of rubber, as on the appointed day is not substantiated. Therefore, we confirm the findings of the M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** Tribunal that the applicants are not entitled to the exclusion under Section 2(f)(1)(i) of the Vesting Act. **11.** What remains now is the claim for exemption under Section 3(2) or 3(3) of the Vesting Act. We may straight away notice that the applicants are not entitled to the exemption under Section 3(3) of the Act, for, the requirement therein is to hold the property as an owner under a valid registered document of title executed before the appointed day. In the instant case, the registered documents, vide Exts.A5 to A7, were executed only in the year 1999, whereas the agreements for sale vide Exts.A3 and A4 were unregistered. **12.** Coming to the exemption under Section 3(2), we notice that 'so much extent of the land comprised in private forests held by an owner under his personal cultivation' and within the ceiling limit alone is liable to be exempted. In the O.As, the applicants specifically claimed cultivation of rubber and cashew. The requirement of personal cultivation in the property has to be reckoned as on the appointed day, i.e., 10.5.1971. As already indicated, the solitary cultivation which M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** may relate back to that date is a few cashew trees, aged about 40 years, out of the 200 cashew aged between 30 to 40 years found by the Commissioner. Here again, there exists no evidence as to how many cashew are aged 40 years. Besides, no evidence is forthcoming as to the extent of land where the cashew were found. This data is significant, since Section 3(2) exempts only so much extent of the land held by the owner under his personal cultivation. Ext.C1 commission report speaks about the scheduled properties lying as a single block, sloping from east to west, of which the eastern extremity is cultivated with silver rock and 'murukku'. On its immediate west, pepper and rubber is planted, which portion has been described by the commissioner as the second layer of the scheduled property. Below the same areca trees are planted and it is between the areca trees that 200 cashew are also seen. This description of the scheduled property leaves no clue as to the extent covered by cashew. In such state of affairs, the benefit of the exemption under Section 3(2) of the Vesting Act cannot be extended to the applicants. M.F.A (Forest) Nos.45, 46 & 47 of 2007 **==> picture [28 x 8] intentionally omitted <==** Even when we find that the reliance placed by the Tribunal on **Koya v. State of Kerala** [1987 (1)KLT 830] to be wrong, in the light of the authoritative pronouncement of a Full Bench of this Court in **Parameswara Sastrigal.K.S. v. State of Kerala and others** [2008 (2) KHC 434 (FB)], we are left with no option, but to dismiss the above three appeals. Ordered accordingly, relegating the parties to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj