## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 11[TH] DAY OF JANUARY 2023 / 21ST POUSHA, 1944 MFA (FOREST) NO. 34 OF 2014 AGAINST THE JUDGMENT IN OA 40/1999 DATED 28.10.2011 OF FOREST TRIBUNAL, KOZHIKODE**
## **NAME OR NAMES (WITH FULL ADDRESA/ADDRESSES) OF THE APPELLANT/APPELLANTS:**
|1|M.RAMAKRISHNAN, AGED 58 YEARS,|
|---|---|
||S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|2|MALATHI, AGED 56 YEARS|
||D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|3|RADHAKRISHNAN, AGED 54 YEARS|
||S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|4|SANTHAKUMARI, AGED 49 YEARS|
||D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|5|PREMAKUMARAN, AGED 52 YEARS|
||S/OMADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|6|GEETHA, AGED 46 YEARS|
||D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|7|SURESH, AGED 39 YEARS|
||S/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
|8|GIRIJA, AGED 33 YEARS|
||D/O MADHAVAN, THACHANAMKODU VEEDU, NECHOOR P.O,|
||PALAKKAD DISTRICT|
||BY ADVS.|
||SRI.SAJAN VARGHEESE K.|
**MFA(FT) No.34/2014**
**2**
SRI.LIJU. M.P
## **NAME OR NAMES (WITH FULL ADDRESS/KERALA ADDRESSES) OF THE PERSON/PERSONS WHO SHALL BE IMPLEADED OR BROUGHT ON RECORD AS RESPONDENT/RESPONDENTS:**
1 CHIEF SECRETARY GOVT OF KERALA, THIRUVANANTHAPURAM 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FOREST) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
**MFA(FT) No.34/2014**
**3**
**K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(FT) No.34 of 2014**
**------------------------------------------Dated this the 11[th] day of January, 2023**
## **JUDGMENT**
## **K.Vinod Chandran, J**
The applicant before the Forest Tribunal, under S.8 of the Kerala Private Forest (Vesting and Assignment)Act, 1971, (for brevity, the Vesting Act), is the appellant. The applicant sought exemption to 98 cents of property in Tarur-I Village, Alathur Taluk, Palakkad District. According to the applicant, the schedule property belonged to one Kavalappara family and the applicant was a lessee of Vaidyanatha Pattar of Pazhambalakkode Village; the lease having been taken in 1961. The properties were fenced and cultivation commenced by the applicant which was continued till the forest officials came in to the schedule property in 1999, alleging vesting, upon which the appellant approached the Forest Tribunal. It was contended that the land is not governed by the Madras Preservation of Private Forest Act, 1949, (for brevity, the MPPF Act) nor is a private forest as otherwise defined under the Act.
**MFA(FT) No.34/2014**
**4**
The lease was for a total of 3 acres 94 cents and except the scheduled land, the balance were settled in favour of his children. A purchase certificate was also produced and it was asserted that the applicant did not have any lands in excess of the ceiling limit under the Kerala Land Reforms Act.
2. The Divisional Forest Officer, Nenmara, resisted the application alleging limitation and denying the claim of title as also cultivation in the property. The property was said to be comprised within a total of 126 acres known as _Velankunnu Malavaram_ (slope of a hill) clearly governed by the MPPF Act, 1949. The entire _Malavaram_ was notified as vested forest as V.F.C. item No.181. The property was lying with the characteristics of a typical forest, full of trees and undergrowth; naturally grown, belying the contention of organized and systematic cultivation. The identity of the property, in the survey number asserted was also seriously disputed.
3. The Tribunal found the issue of limitation in favour of the
applicant, but however, denied the declaration claimed. The Tribunal noticed that three other OAs, with respect to the total properties alleged to have been leased out by the applicant and later settled in the name of
**MFA(FT) No.34/2014**
**5**
his children, filed for the same relief, was rejected. The receipts produced did not show any connection with the property and the trees in the property, by their age, as declared in the application and noticed by the Commissioner cannot be related back to the appointed day under the Vesting Act. The Tribunal, based on the remand order of this Court, found that the land is not covered under the MPPF Act, but however, is a private forest coming under S.2(f)(1)(ii) of the Vesting Act. The Tribunal found that it was not established that there was no cultivation, as on the appointed day under the Vesting Act. The commission report was also relied on to deny the declaration sought for.
4. PW1 is the applicant and PW2 is the son of the applicant. A1 to A3 are money order receipts issued to one Vaidyanatha Iyer and A4 to A7 are acknowledgement cards of postal articles send to the very same person. The claim of the applicant was that the receipts were of lease rent and the communications sent by post were with respect to the inability of the lessee to pay the rent. The money order receipts does not disclose the nature of the transaction nor are the communications send, produced before Court. The Tribunal also noticed that while PW1 stated in cross examination that on two occasions, he paid lease rent to
**MFA(FT) No.34/2014**
**6**
Vaidyanatha Pattar directly and receipts obtained with the extent of the property specifically noticed; none was produced before the Tribunal.
5. The learned Counsel for the appellant argued that the settlement deeds produced as A16 to A18 would clearly indicate from the recitals that the property was cultivated and was settled in favour of the children. It was after the settlement that the forest officials interfered with the possession and enjoyment of the property which led to the application being filed in the year 2000. The recitals in the settlement deeds which are similar were read over to us. However, merely going by the recitals of the year 1999, it cannot be assumed that there was cultivation carried on in the land as on 10.5.1971, the appointed day under the Vesting Act. Obviously, the decision in the applications filed by the children of the applicant, on whom the similar lands were settled, has become final and there is not even an appeal filed. The purchase certificate produced by the applicant as noticed by the Tribunal does not show the very same survey numbers as stated in the application. Only one of the survey numbers namely 126/6 is seen in the purchase certificate and the application. There was no attempt made by the applicant, when a Commissioner was deputed for physical inspection, to
**MFA(FT) No.34/2014**
**7**
get identified the property, with reference to the survey number as seen from the purchase certificate. It is very pertinent that the Hon'ble Supreme Court in _Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]_ regarding the identification of the property has declared so:
“ _30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eye-opener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behoves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, while entertaining applications under Section 8 of the Act.”_
6. The commission report was also examined by the Tribunal which did not disclose any personal cultivation having been carried on in the property. In fact, the declaration in the application with respect to the cultivation in the property was “20 cashew trees of 10 years age”. The Commissioner, in Ext.C1, found that the schedule property lies as a part of a hill in several levels. The northern, eastern and western
**MFA(FT) No.34/2014**
**8**
boundaries are private lands, whereas, on the southern boundary, there is existing a forest land. At the time of inspection in the year 2000, there was no cultivation carried on in the property. Stumps of trees detected in the property were specifically stated to be not cultivated, but shoots sprouted from the trees cut from the property. There were also 24 square pits, presumably dug up to plant rubber, which were found to be dug up recently. There were also bunds and mounds found in the property presumably to facilitate tapioca cultivation which was stated to be within a two year period. Three _palmirah_ trees were existing in the property having height between 25 to 40 meters which disclosed signs of recent toddy tapping. There were other trees found in the property which were naturally grown. The cashew trees were found on the fence line at the southern boundary having a growth of 15 to 20 years. When the identity of the property was verified with reference to the Field Measurement Books (FMB) and the Basic Tax Register (BTR); the boundaries as disclosed in the application and measurements were not tallying. The map produced by the forest authorities was found to approximately identify the property and confirms with the FMB, despite minor discrepancies.
**MFA(FT) No.34/2014**
**9**
From the above facts as disclosed in evidence and the lack of any substantive proof of identity of the property and cultivation as on the appointed day, we do not find any reason to interfere with the order of the Tribunal. We dismiss the appeal and leave the parties to suffer their respective costs.
**Sd/-**
**K.VINOD CHANDRAN, JUDGE**
**Sd/-**
**C.JAYACHANDRAN, JUDGE**
uu
