MFA (Forest) Nos.66, 67, 68 & 69 of 2014

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ``` MFA (FOREST) NO. 66 OF 2014 ``` ``` AGAINST THE COMMON ORDER DATED 31.01.2012 IN O.A.NO.33/2008 OF FOREST TRIBUNAL, KOZHIKODE ``` ``` - PETITIONERA / APPELLANTS : ``` - `1 SANKARAN S/O.LATE ACHUTHAN,AGED 70 YEARS` - `2 KARUPPAN S/O.KUMARAN, AGED 70 YEARS` - `3 KUTTAPPA S/O.LATE KUMARAN, AGED 68 YEARS` - `4 PUSHPALATHA. D/O.LATE KUMARAN, AGED 63 YEARS` - `5 MANIKANDAN S/O.LATE KUMARAN, AGED 65 YEARS` - `6 CHANDRIKA W/O.LATE ACHUTHAN,AGED 65 YEARS` - `7 SREEREKHA D/O.LATE ACHUTHAN, AGED 55 YEARS` - `8 SREEKUMAR S/O.LATE ACHUTHAN,AGED 50 YEARS` - `9 SREEVIDYA D/O. LATE ACHUTHAN,AGED 47 YEARS` ``` ALL ARE RESIDING AT KUNNATH HOUSE, THERUMUNDASSERY AMSOM DESOM, OTTAPALAM TALUK. ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` 2 MFA(Forest) Nos.66, 67, 68 & 69 of 2014 ## `- RESPONDENTS :` - `1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT(FOREST AND WILD LIFE)SECRETARIAT, THIRUVANANTHAPURAM.` - `2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN FOREST COMPLEX, OLAVAKKODE, PALAKKAD.` ## `BY ADV.` ``` SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH MFA (FOREST).68/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) Nos.66, 67, 68 & 69 of 2014 3 # `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ``` MFA (FOREST) NO. 67 OF 2014 ``` ``` AGAINST THE COMMON ORDER DATED 31.01.2012 IN O.A.NO.36/2008 OF FOREST TRIBUNAL, KOZHIKODE ``` ## `- PETITIONER/APPELLANT :` ``` SANKARAN AGED 70 YEARS S/O. LATE ACHUTHAN,RESIDING AT KUNNATH HOUSE, CHERUMUNDASSERY AMSOM DESOM, OTTAPALAM TALUK BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` ## `- RESPONDENTS :` - `1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVEDRNMENT(FOREST AND WILD LIFE)SECRETARIAT, THIRUVANANTHAPURAM,PIN 695 001.` - `2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN FOREST COMPLEX, OLAVKKODE, PALAKKAD, PIN 678 110` ``` BY ADV. ``` ``` SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST GOVERNMENT PLEADER ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH MFA (FOREST).68/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) Nos.66, 67, 68 & 69 of 2014 4 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 MFA (FOREST) NO. 68 OF 2014 ``` ``` AGAINST THE COMMON ORDER DATED 31.01.2012 IN O.A.NO.32/2008 OF FOREST TRIBUNAL, KOZHIKODE ``` ## `- PETITIONER/APPELLANT :` ``` JANAKI AGED 62 YEARS D/O. LATE ACHUTHAN, RESIDING AT KUNNATH HOUSE, CHERUMUNDASSERY AMSOM DESOM, OTTAPALAM TALUK ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` ## `- RESPONDENTS :` ``` 1STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVEDRNMENT(FOREST AND WILD LIFE)SECRETARIAT, THIRUVANANTHAPURAM – 695 001. ``` ``` 2CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN FOREST COMPLEX, OLAVKKODE, PALAKKAD. ``` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH MFA (FOREST).66/2014, 67/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) Nos.66, 67, 68 & 69 of 2014 5 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 15[TH] DAY OF FEBRUARY 2023 / 26TH MAGHA, 1944 ``` ## `MFA (FOREST) NO. 69 OF 2014` ``` AGAINST THE COMMON ORDER DATED 31.01.2012 IN O.A.NO.31/2008 OF FOREST TRIBUNAL, KOZHIKODE ``` ## `- PETITIONERS/APPELLANTS :` - `1 KARUPPAN S/O KUMARAN,AGED 70 YEARS.` - `2 KUTTAPPA S/O LATE KUMARAN, AGED 68 YEARS.` - `3 PUSHPALATHA D/O LATE KUMARAN, AGED 63 YEARS.` - `4 MANIKANDAN S/O LATE KUMARAN, AGED 65 YEARS.` - `5 CHANDRIKA W/O LATE ACHUTHAN, AGED 65 YEARS.` - `6 SREEREKHA` ``` D/O LATE ACHUTHAN, AGED 55 YEARS.. ``` - `7 SREEKUMAR S/O LATE ACHUTHAN, AGED 50 YEARS..` - `8 SREEVIDYA D/O LATE ACHUTHAN, AGED 47 YEARS.` ``` ALLARERESIDINGATKUNNATHHOUSE, THERUMUNDASSERY AMSOM DESOM, OTTAPPALAM TALUK. ``` ``` BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN ``` MFA(Forest) Nos.66, 67, 68 & 69 of 2014 6 ## `- RESPONDENTS :` - `1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT (FOREST AND WILD LIFE) SECRETARIAT, THIRUVANANTHAPURAM.` - `2 CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN FOREST COMPLEX, OLAVAKKODE, PALAKKAD.` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.02.2023, ALONG WITH MFA (FOREST).68/2014 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MFA(Forest) Nos.66, 67, 68 & 69 of 2014 7 K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) Nos.66, 67, 68 & 69 of 2014 ---------------------------------------------------Dated this the 15[th] February, 2023 ## J U D G M E N T ## K. Vinod Chandran,J The appellants are relatives, siblings and their legal representatives, who claimed title to the properties scheduled in the respective applications, by virtue of Ext.A1 document-a partition deed executed on 07.06.1973. The scheduled properties in the applications belong to a joint family consisting of Achuthan, Shankaran, Kumaran and Janaki; siblings, children of Achuthan & Lakshmi. In O.A No.31/2018 the scheduled property has an extent of 4.12 acres which was allotted to the share of late Kumaran as item No.4 in C schedule of Ext.A1. Kumaran according to the applicants were in enjoyment of the property paying tax and effecting cultivation in the property which devolved on his wife and children, upon his death. The applicants 1 to 4 are the children of Kumaran, and the applicants 5 to 8, the legal representatives of a deceased son. O.A.No.32/2008 MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [8 x 10] intentionally omitted <==** scheduled 3.29 acres, which was allotted to the share of the applicant, one of the original siblings, as seen from B schedule in Ext.A1. O.A.No.33/2008 scheduled 10.23 acres was allotted to the share of Achuthan & his wife Lakshmi, indicated in A schedule of Ext.A1 specified as item No.10. Achuthan and his wife died and by reason of a bequest the properties devolved on the two children, Sankaran and Kumaran. Kumaran died and his legal representatives along with Sankaran are the applicants therein. O.A.No.36/2008 is filed by Sankaran again one of the original siblings to whose share 4.08 acres of land was allotted as per Ext.A1 specified as item No.6 in B schedule to that document. 2. All the applicants had similar contentions in the O.A. That, they had title and possession of the properties, held in common as on the appointed day and partitioned in 1973 as per Ext. A1. That, they were cultivating the lands as on 10.05.1971; the appointed day under the Kerala Private Forest [Vesting and Assignment] Act, 1971 [herein after, 'the Vesting Act']. That, the Forest Officials interfered with the possession of the lands as on 2008 which they did illegally and without any authority. That, the land lies as a dry land devoid of any tree growth or forest trees; having no characteristics of a forest. It MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [8 x 10] intentionally omitted <==** was claimed that the applicants were entitled to exclusion from the definition of private forest and in the alternative exemption under section 3(2) or (3) of the Vesting Act. 3. The Custodian of Forests, Palakkad resisted all the applications with identical contentions. The title, possession and enjoyment of the applicants as also the cultivation asserted in the respective lands, were denied. The disputed property was asserted to be part of 56.63 hectares coming within the purview of the erstwhile Madras Preservation of Private Forest Act, 1949 [hereafter, 'the MPPF Act']. After survey and demarcation, the private forest was notified on 10.10.1979 and included as VFC i tem No.52. The entire property lying contiguous to each other is covered with forest tree species and lies as a typical forest area. All the boundaries of the properties lying contiguously, have vested forest and the land lies encircled by vested forest. 4. The Tribunal raised issues on whether the applications are barred by limitation, the nature and lie of the properties, the exemption sought under Section 3(2) or (3) and the entitlement to the declaration. The ground of limitation was found against the State since there was nothing to prove that the notification was published MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [14 x 8] intentionally omitted <==** in accordance with the statutory rules. The definition of private forest under the Vesting Act was looked at and the binding precedents; which cast the burden of proving the scheduled lands to be not a private forest on the applicants, were specifically noticed. By virtue of the definition clause and the binding precedents as also the factual findings in the Commissioner's report, it was categorically held that the lands are covered under the MPPF Act, especially since there was no evidence of any cultivation having been carried on in the properties prior to the enactment of the MPPF Act. Having found the property to be covered under the MPPF Act, the claim of exemption was also considered. 5. The Counsel for the applicants conceded before the Tribunal that since they were not holding the properties under a registered deed as on 10.05.1971, their claim under Section 3(3) cannot stand scrutiny. Considering the claim under Section 3(2) the Tribunal found that there is no evidence adduced to establish a personal cultivation in the property as on the appointed day. It has also not been proved that the lands held by the applicants were within the ceiling limits under the Land Reforms Act, 1963. The Tribunal on the above reasoning declined the declaration of exemption sought for. MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [11 x 7] intentionally omitted <==** 6. The learned Senior Counsel for the appellants Sri.N.N.Sugunapalan, pointed out that there was no valid notification issued under the Kerala Private Forest (Vesting and Assignment) Rules, 1974. Since there was no notification, though the Custodian could at any time bring out a notification; as of now the Forest Officials cannot interfere with the possession of the lands. The above argument was addressed specifically pointing out the finding of the Tribunal regarding the notification having not been published in accordance with the statutory rules, while rejecting the ground of limitation raised by the respondent State. It is argued, despite the concession by the Counsel for the applicants before the Tribunal, that the devolution of title is clearly evidenced from the recitals in Ext.A1 document. Reliance is placed on Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 (7) KHC 644 to argue that when a document has been admitted, without any objection the contents of that document are also admitted in evidence. There cannot be any objection allowed to be raised at any later stage, if the document is admitted in evidence without any objection. Ext.A1 clearly establishes title on the applicants, respectively. Even as on the appointed day, the applicants were owners in common who had been cultivating the property. MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [12 x 7] intentionally omitted <==** 7. The learned Special Government Pleader Sri.Nagaraj Narayanan pointed out that the notification is only for the purpose of clarity regarding the demarcation of lands vested in the Government and the vesting does not depend upon it. The computation of the period of limitation also commences only from the date of a notification, which is published in accordance with statutory rules. But it does not control the vesting of the land which is automatic and statutory as per Section 3. It is pointed out that there is nothing but the partition deed to prove title and the deed does not speak of how the properties came into the family of the separate applicants. 8. Before the Tribunal, one of the original siblings PW1 was examined, who marked the partition deed as Ext.A1 and a certified copy as Ext.A1(a). RW1, the Forest Range Officer of Ottapalam marked Exts.B1 to B8, the notifications and the sketch appended. A commission was taken out and the Tribunal marked Ext.C1 report along with Exts.C1(a) to (d) plans prepared by the Commissioner. 9. The Commissioner's report indicates that the boundaries of the property scheduled in O.A.No 31/2008 is vested forest on the north and on the east and west properties scheduled in O.A.Nos.32 and 36 of 2008, the south bounded by a ‘kudiyirripu’. Likewise the MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [12 x 10] intentionally omitted <==** northern and eastern boundaries of the property scheduled in O.A.No.32/2008 are vested forests, on the west the property involved in O.A.No.31/2008 and on the south a ‘Kudiyirippu’. As far as O.A.No.33/2008, the southern boundary has a ‘Kudiyirippu’ the western boundary a rubber plantation and eastern and northern boundaries respectively the property in O.A.No.36/2008 and a vested forest. In O.A.No.36/2008 also the northern boundary is vested forest, on the east and west, properties in O.A.Nos.31 and 33 of 2008 and on the south a ‘Kudiyirippu’. The petition scheduled properties hence lie contiguously and are also contiguous to vested forests. The scheduled properties lie as a slope and is locally called the ‘Thoni Mala’. There are no boundary lines or marks to differentiate the respective scheduled properties and they lie as one, sloping from the north to the south. Except Palmira trees no other tree growth is seen in the properties and the vegetation is of forest species. The properties lying within a common boundary, reveals symptoms of seasonal cultivation on some parts. This aspect of scanty cultivation is merely observed without either the extent indicated or the location specified. The Commission was taken out in the year 2010 and we are concerned with the vesting alleged as per the enactment of 1971, MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [13 x 10] intentionally omitted <==** which occurred statutorily as on 10.05.1971. The scanty cultivation seen long after the appointed day of 10.05.1971 does not lead to any inference that there was personal cultivation in the property as on the appointed day, entitling an exemption under Section 3 (2) of the Vesting Act. 10. The next question to be considered is as to whether the scheduled lands are private lands covered under the MPPF Act . The Tribunal has found that the scheduled property is covered under the MPPF Act. We find no reason to deviate from the said finding especially considering the fact that the vested forest, as surveyed and demarcated, comprises an area exceeding 100 acres and there is nothing to show that there was cultivation carried on in the property prior to 1949; which alone would absolve the property from the application of the MPPF Act. The two Explanations under Section 1(2) of the MPPF Act would clearly indicate that only lands which were cultivated prior to 14.12.1949 are taken away from the application of the MPPF Act and even if any cultivation is commenced and continued after 14.12.1949, that would not exempt the land from the applicability of MMPF Act (see State of Kerala v. K.C.Moosa Haji 1984 KLT 494, paragraph 7 a Full Bench decision). It was held: 'The MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [12 x 10] intentionally omitted <==** question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971' ....Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area.'(Sic). 11. The question now arises as to the title which is sought to be established by reference to Ext.A1. A perusal of Ext.A1 would indicate that there is no specific recital of any registered document by which the family of the applicants came into possession of the lands partitioned as per Ext.A1. There are references to various types of leases, like kaanam and verumpattam by which the family came into possession of the properties. There is also a reference to an oral lease in Ext.A1. We are unable to place any reliance on the decision cited by the learned Senior Counsel, especially since the contents of ExtA1 does not disclose any registered document on the strength of which the applicants or their families held the properties as on the appointed day. Hence, there can be no consideration of the claim under Section 3(3) of the Vesting Act. 12. As far as the claim under Section 3(2), there is no personal MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [13 x 10] intentionally omitted <==** cultivation seen in the property or said to have been carried out on the appointed day. The deposition of PW1, who was examined on behalf of all the applicants does not speak of any cultivation. The testimony is only that his father, who died ten years back cultivated the property with modan. The deposition itself was in the year 2011 and even according to the applicants the properties were partitioned in 1973 and the separate shares were held by the different branches as seen from the partition deed of 1973, Ext. A1. This Court in Premakumari and others v. State of Kerala and another [2017(4) KLT 531], held that a partition deed makes only the division of the property, without any acquisition or conferment of title and therefore, cannot be deemed to be a valid registered document of title as envisaged in Section 3(3) of the Vesting Act. It was further held that a partition deed, to be reckoned as a valid registered document of title, should be coupled with the prior registered document, in which respect also the proof is found lacking in the given facts `.` There is no cultivation testified as carried on by any of the children. PW1 admits that there are no trees in the property except for 2 or 3 Palmirah trees and the land is full of undergrowth. We find no reason to interfere with the order impugned. MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [12 x 10] intentionally omitted <==** 13. The leaned Senior Counsel has a contention regarding the notification being not published in accordance with the statutory rules, as found by the Tribunal, which would interdict the Forest Officials from interfering with the possession of the lands, even if they are vested under Section 3. It has to be reiterated with emphasis that vesting as per the Vesting Act occurs statutorily under Section 3(1) and there is absolutely no requirement for a notification as per the statute. A notification is spoken of under the Kerala Private Forests (Vesting & Assignment) Rules 1974, under Section 2A. It speaks of demarcation of private forest in pursuance of Section 6 of the Act to be affected by erecting cairns along the boundaries. Section 6 speaks of demarcation of boundaries of the private forest vested in the Government under sub-section (1) of Section 3. Hence, even as per the statute the demarcation is to be carried out, of the private forest vested in the Government, which vesting occurs statutorily upon the enactment coming into force, without anything more. It is to proclaim the vesting, that after the demarcation as provided under Rule 2A (1), a notification has to be published as provided under sub-rule (2) of Rule 2A. The publication if statutorily made could also result in the commencement of the limitation period as provided under Rule 3 of MFA(Forest) Nos.66, 67, 68 & 69 of 2014 **==> picture [13 x 10] intentionally omitted <==** the Kerala Private Forest (Tribunal) Rules, 1972. The Tribunal's finding regarding the noncompliance of the statutory rules was only to hold that the application is maintainable and is not barred by the limitation prescribed, for reason of the publication having not been proved to be in accordance with the statutory rules. The notification hence is only for the purposes of demarcation and the intimation to all concerned about the lands vested in the Government under the Vesting Act. We reject the contention raised by the learned Senior Counsel. We dismiss the appeal, leaving the parties to suffer their respective costs. Sd/- ## K.VINOD CHANDRAN, JUDGE Sd/- C. JAYACHANDRAN, JUDGE SMA