Mohammed Rafeeq v. State of Kerala & The Custodian of Vested Forest

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 16[TH] DAY OF JANUARY 2023 / 26TH POUSHA, 1944** ## **MFA (FOREST) NO. 228 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OA 8/2007 OF FOREST TRIBUNAL,** ## **KOZHIKODE** ## **PETITIONER:** MOHAMMED RAFEEQ, S/O.IBRAHIMKUTTY RESIDING AT MAMPULLY NHALIL, TRITHALA,, PALAKKAD DISTRICT. BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.J.R.PREM NAVAZ SRI.T.RAMPRASAD UNNI ## **RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST & WILD LIFE) DEPT.,, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. - 2 THE CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,, PALAKKAD DISTRICT-678 002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 16.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.228/2010** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No.228 of 2010 ------------------------------------------Dated this 16[th] January, 2023** ## **JUDGMENT** ## **Vinod Chandran, J** The appellant was the applicant before the Forest Tribunal under the Kerala Private Forest (Vesting & Assignment) Act, 1971 ( for brevity 'the Vesting Act'). As per the application, exemption from vesting was sought to 5 acres of land in Sy.No. 123/1 of Koppam Village, Ottapalam Taluk of Palakkad District. According to the applicant the property belonged to the j _enmam_ of Pulassery mana from whom the scheduled property was purchased by four brothers as per a document of 1965. The brothers were in occupation and possession of the property from its purchase and the same was cultivated with agricultural products. The applicants purchased the property in the year 1999 and continued to raise seasonal crops in the scheduled property. The forest officials prevented the workers of the applicant from entering into the property as on 20.1.2000 upon which the applicant approached this Court with an OP. The OP was disposed of with a direction to approach **MFA(Forest) No.228/2010** **3** the Tribunal within a specified time. The applicant was not able to approach the Tribunal within the time stipulated and an application was filed for extension of the same, which was allowed. There was also an interim order passed in C.M.P 4640/2002 permitting the applicant to continue the cultivation in the property. The applicant invoked S.8 of the Vesting Act to contend that the land was not covered under the MPPF Act, his assignors did not have land in excess of the ceiling limit under the Kerala Land Reforms Act and that the scheduled property was purchased by the applicant and his assignors with an intention to cultivate. 2. The DFO Palakkad resisted the application and contended that the scheduled lands form part of 185 hectares of private forest comprised in Sy.No. 123/1 of Koppam Village of Ottapalam Taluk. It was included as VFC item No.70 in the notification dt 10.10.1979 and since certain survey numbers were omitted an erratum notification was brought out on 08.01.2001. The entire area is known as Ramagirikotta vested forest governed by erstwhile Madras Preservation of Private Forests Act, (for brevity, the MPPF Act). The respondents denied title and resisted the claim for exemption under S.3(2)&(3). 3. The Tribunal raised the question of limitation, the nature **MFA(Forest) No.228/2010** **4** of the property, the exemption claimed and the eligibility to the declaration sought for. The Tribunal found the application to be filed within time since there was nothing to show the dates of publication of notification as per Rule2A(2) of the Vesting and Assignment Rules, 1974. It was found that there was nothing to show the devolution of the property and the identity of the property is not clear from the various documents produced. Specific reference was made to Ext.A6 where the _janmi_ is referred to as _Orupoovalseri Manakkal Bhavadasan Namboodiripad_ who is not the person from whom the four brothers, vendors of the applicants, purchased the property. The non production of document No.107 of 1965 which alone proves the owners having held the property as on 10.05.1971, was found to be fatal. It was also held that there was nothing to prove personal cultivation having been carried out in the property nor has the applicant discharged the burden of proving the land to be not governed by the MPPF Act. Except for the bland assertion that the owners of the property as on 10.05.1971 did not hold the lands beyond the ceiling limit, there was nothing to establish the said fact. The Tribunal dismissed the application against which the appeal is filed. **MFA(Forest) No.228/2010** **5** 4. Sri Ramaprasad Unni T learned Counsel appearing for the applicant and Sri.Nagaraj Narayanan, the learned Special Government Pleader (Forest) appearing for the State were heard. The learned Counsel for the applicant contends that the Tribunal completely misdirected itself in finding that the applicant has no locus standi. _**Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)**_ a Full Bench decision of this Court was relied on to argue that even a subsequent purchaser, has the status of owner and can invoke the provision under the Vesting Act. It is also pointed out that now the document of the year 1965 is produced and in that circumstance there can be no dispute raised with respect to the ownership of the property as on the appointed day. It is pointed out that both PW1, the applicant who purchased the property in 1999 and PW2, one of the four brothers who were in possession of the land as on 10.05.1971 has testified that there was cultivation in the property. The learned Special Government Pleader however resisted the appeal on the ground that there is absolutely no evidence regarding the entitlement for declaration under the Vesting Act. 5. _**Parameswara Sastrigal**_ (supra) held that even a person who purchased the property subsequent to the appointed date is enabled **MFA(Forest) No.228/2010** **6** to file an application under S.8 and seek a declaration of exemption. Admittedly in the present case, the applicant purchased the property by way of a registered deed, a certified copy of which is produced as Ext.A1. Also admittedly the prior document of the year 1965 was not produced before the Tribunal. Even before us only a photocopy of the certified copy is produced with the prayer for acceptance to the files. We cannot but observe that though the appellate Court is capable of receiving evidence, there is a specific procedure to be followed for production of a document, that too on grounds of the same not being available at the time of trial, despite exercise of due diligence; which also has to be proved appropriately. It is also necessary that the original of either the document or certified copy should be produced before Court. In the present case, the learned Counsel has given short shrift to such procedure and merely produced a copy, online. 6. Despite procedural irregularity we perused the copy of the deed of 1965. We find that the persons who executed the document of 1965 are the legal heirs of _Orupoovalseri Manakkal Bhavadasan Namboodiripad_ who is referred to as the owner in Ext.A6 also. The sale has been made to the four brothers Raman Kutty, Narayanan Kutty, **MFA(Forest) No.228/2010** **7** Sivadasan and Krishnan. These four brothers are the vendors in Ext.A1 deed. Sivadasan who was examined as PW2 is referred to as a 12 year old minor in the 1965 document. Hence PW2 would have been about 18 years as on the appointed day under the Vesting Act. It is also evident from comparison of the schedules of the deed of 1965 and that of 1995 (Ext. A1) that there were larger extents of property purchased in the year 1965 a portion of which alone was sold as per Ext.A1, referred to as the property situated in _Mukkannankunnu_ also known as _Velliyanikunnu_ . The said property is shown as item No.4 in the deed of 1965 which is described as ' _kadum para sthalangalum'_ (forest and rocky areas). In this context the schedule to Ext.A1 is also very relevant. In the schedule to Ext.A1 the properties are shown as 2 items , one showed as item No.1 being the rocky area and item No.2 being the forest area. Hence even in the year 1999, when the applicant purchased the property the same was described as forest and rocky area in the title deed. 7. We find no reason to approve the findings of the Tribunal declining _locus standi_ on the applicant. The applicant surely held the properties on the strength of a registered deed and even though the document of 1965 has not been produced in original we are inclined to **MFA(Forest) No.228/2010** **8** find from the copy produced that, the owner as on 10.05.1971, held the property on the strength of a registered deed. In this context we have to observe and emphasise, despite the applicant having _locus standi_ to invoke S.8 of the Vesting Act, the nature of the property, to enable it to be exempted from vesting on the basis of personal cultivation has to be established as on the appointed day. As we noticed the applicant had a claim not only under S.3(2) but also under S.3(3); the second of which only requires an intention to cultivate. 8. PW1 in his testimony spoke of having cultivated ginger and tapioca and also claimed that his predecessors-in-interest cultivated ginger and tapioca. There were rubber and paddy cultivation on the properties existing in the boundaries as admitted by PW1. The description of the property in Ext.A1, as forest, was specifically confronted to PW1 in his cross-examination and he denied knowledge of the same. PW2 is Sivadasan one of the four brothers who purchased the property in 1965. He also only spoke of rubber plantations, on the property in the east and the west which were also according to PW3, obtained by himself and his siblings and sold to other parties. PW2 does not speak of any cultivation of tapioca or ginger in the property as **MFA(Forest) No.228/2010** **9** asserted by PW1, at the time of purchase by PW1. According to PW2 there was vaga, jack fruit and panji poola cultivated in the property as on the appointed day. He does not say specifically as to the personal cultivation carried on in the 5 acres scheduled in the application. He specifically admitted that about one acre out of 5 acres is a rocky area and item No.2 in Ext.A1 was lying as a forest area. The testimony of PW 1 and PW2 does not support the claim for exemption at all. 9. Ext.C1 is the Commissioner's report which speaks of small plants of poola, jackfruit, vaga and shrubs of various types existing in the property, which is not rocky. There is said to be a _kayyala_ (mud bund) existing on the eastern boundary which separated the property from the nearby property. PW1 admitted that this was constructed by his predecessors-in-interest which was not spoken of by PW2 one of the predecessors-in interest. From the evidence of PWs1 and 2 as also perusal of the documents, the only inference possible is that the land was lying as a forest area and with rocky portions wherein no cultivation was carried out. The Commissioner also found paddy cultivation on the northern boundary and rubber plantation on the eastern and western boundaries. There was a smoke house in the property on the eastern **MFA(Forest) No.228/2010** **10** side. The property on the southern boundary and the scheduled property, according to the Commissioner lies without any cultivation and the lie and nature of both properties are similar. It was also observed by the Commissioner that except for the rocky area, there could have been rubber planted in the scheduled property, as was done in the properties on the eastern and western boundaries. It is very relevant that in the OP filed by the applicants they were permitted to cultivate the property, by an interim order and despite that, there was no cultivation seen in the property even at the time the Commissioner visited the property in the year 2008. 10. The Tribunal held that the application scheduled properties are governed by the MPPF Act. The definition of forest under S.2(f)(1)(i) includes lands within the district of Malabar and governed by the MPPF Act; which should be lands; part of forests having extent of more than 100 acres. As has been held in _**State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]**_ the burden to prove that the land is not governed by the MPPF Act is squarely on the applicant who asserts it and raises a claim before the Tribunal. But for the mere assertion made in the application there was no denial in the testimony nor any evidence **MFA(Forest) No.228/2010** **11** produced to prove the same. In that circumstance the conveyance of the property as per the deed of 1965 without the consent of the District Collector as is required under the MPPF Act, is seriously suspect in its validity. The intention to cultivate also was not proved by any attendant circumstances existing prior to and subsequent to the appointed day. We find absolutely no reason to interfere with the orders of the Tribunal and we dismiss the appeal leaving the parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** jma