P.K. Jameela Balan 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 21[ST] DAY OF FEBRUARY 2023 / 2ND PHALGUNA, 1944 MFA (FOREST) NO. 229 OF 2009** **AGAINST THE JUDGMENT IN O.A NO.43/1999 OF FOREST TRIBUNAL,** **KOZHIKODE** ## **- APPELLANT/1ST APPLICANT :** **P.K.JAMEELA BALAN RESIDING AT 'JANANI', PARAKKUNNAM, PALAKKAD TALUK, PALAKKAD DISTRICT.** **BY ADVS. SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SMT.DHANYA P.ASHOKAN SRI.GILBERT GEORGE CORREYA SRI.O.V.MANIPRASAD SRI.SOJAN MICHEAL T.KRISHNANUNNI (SR.)(K/280/1973)** ## **- RESPONDENTS :** **1 STATE OF KERALA CHIEF SECRETARY TO GOVERNMENT OF KERALA,, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS ARANYA BHAVAN, OLAVAKKODE,, PALAKKAD DISTRICT. 3 P.K.JAYASINGH SO.BHASURA DEVI RESIDING AT 'JANANI', PARAKKUNNAM,, PALAKKAD TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST SMT.O.V.BINDU SPL.GP(FOREST)-SRI.NAGARAJ NARAYANAN** **THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 21.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MFA(FOREST) No.229 of 2009 **- 2 -** K. Vinod Chandran & C.Jayachandran, JJ. ---------------- ------------------------------------MFA(F) No.229 of 2009 ----------------------------------------------------Dated, this the 21[st] day of February, 2023 ## O R D E R ## K.Vinod Chandran, J. The impugned order of the Tribunal in the above appeal is one delivered after a remand by this Court in an M.F.A. The applicant before the Tribunal invoked Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short 'the Vesting Act') and sought for a declaration that 25 acres of land in Re.Sy.No.289/A1 of Kattuseri Village, Alathur taluk, Palakkad District was entitled to exemption under Section 3(2) or (3) of the Vesting Act. The Tribunal found that the applicant had title over the property which was also governed by the Madras Preservation of Private Forests Act, 1949 (for short 'the MPPF Act'). However, the applicants failed to prove the intention to cultivate the property as on the appointed day, even though the MFA(FOREST) No.229 of 2009 **- 3 -** Commissioner found some cultivation at the time of inspection. Before the High Court, in the appeal field, the applicant claimed that 10 acres of the total land held by the applicant was surrendered under the Land Reforms Act, 1964. It was the contention of the appellant that the surrender was necessitated only because the land was cultivable lands and not a private forest, the later of which is entitled to be exempted from the ceiling area under the Land Reforms Act. 2. The Division Bench, in the appeal filed, found that before the Tribunal the Forest Officials themselves conceded the claim of exemption regarding 6.62 acres and the balance was only 8.38 acres of land, 10 acres having been allegedly surrendered under the Land Reforms Act. It was found that the appellant had not produced the Land Board's order, on perusal of which alone, it could be ascertained as to whether the 10 acres was surrendered for reason of exceeding the ceiling limit. It was found that since title is established, assuming that the scheduled land is a private forest, the intention to cultivate has to be looked at based on the decision of the Hon’ble Supreme Court in MFA(FOREST) No.229 of 2009 **- 4 -** _**Joseph v. State of Kerala**_ [2007(3) KLT 144 SC]. The matter was remanded to adjudicate the dispute regarding 8.38 acres of land. The parties were also given liberty to adduce further evidence before the Tribunal. The applicant examined PW2 after remand and the respondent RW2. No other documents were produced than those already produced before the Tribunal. The Tribunal framed two issues as to whether the scheduled land is a private forest under Section 3(1) of the Act and whether it is entitled to a benefit under Section 3 (3) of the Vesting Act. 3. In the impugned order it was found from Ext.A1 that the property conveyed therein is described as _kaduparamba_ (forest land) in Sy.No 289/A1. Ext.A1 also speaks of a sanction under the MPPF Act from the District Collector and hence it is undisputed that the property is governed by the MPPF Act. It was found from the exclusions provided under Section 2(f)(1)(i) of the Vesting Act that there should be either a paddy cultivation, a plantation crop or fruit bearing trees or a building in the property to exclude the land from the definition of private forest. It was found that there was a residential building in the MFA(FOREST) No.229 of 2009 **- 5 -** disputed property, which existed in 6.62 acres and the cultivation was centered around this; which extent was not included in the notification for vesting. Hence the exclusions under clauses (A) to (D) were not applicable to the balance lands. On a perusal of the Commission Report, it was found there was only one cashew nut tree noted in the disputed land which was also said to be aged 20-25 years. The certificates evidencing cultivation were all later to the appointed day. The evidence of the witnesses also did not support the case of the applicant. The order of the Land Board by which the applicant claimed surrender of 10 ares was not produced. It was held that the scheduled land was a private forest and there was nothing to evidence an intention to cultivate. 4. Learned Senior Counsel Sri.Krishnanunni appearing for the appellant took us through the evidence and the Commission Report. It is argued at the outset that the witnesses can only speak of the intention to cultivate and it has to be discerned from the circumstances available. It was pointed out that the Commissioner has spoken of the cultivation in the MFA(FOREST) No.229 of 2009 **- 6 -** property which clearly indicates that the entire property was intended to be cultivated. The Tribunal noticed that the property lies without any demarcation and that mud bunds were constructed on the property, indicating the intention to cultivate. The testimony of RW2 is specifically read out to impress upon us the clear intention to cultivate as discernible from the nature and lie of the property, as spoken of by even the respondent's witness. 5. The Special Government Pleader Sri.Nagaraj Narayanan, however points out that Ext.A1 itself described the property as a forest. The attempt to cultivate if at all discernible is much after the appointed day. Even going by the cited decision of the Honb’le Supreme Court in _**Joseph**_ (supra), the intention can be gathered from the conduct with regard to the development of the land preceding to and subsequent to the date of vesting. In the present case, there is no circumstances pointed out immediately preceding or subsequent to the appointed day. The cultivation brought out in evidence is far after the appointed day on which no reliance can be placed. It is also pointed out MFA(FOREST) No.229 of 2009 **- 7 -** that out of 25 acres 10 acres is alleged to have been surrendered, for which there is absolutely no evidence. Even in the balance 15 acres only the property exempted from vesting, on which a residential building is situated, indicates a systematic cultivation. The disputed 8.38 acres are lying bare and cannot be held to be a cultivated land. 6. The application indicates that the applicant claimed exemption for the entire 25 acres which is said to have been purchased as per Ex.tA1. One K.V.John is said to have taken the property on _pattam_ from Kavalappara Estate who had the _janmam_ . K.V John assigned the property to the mother of the applicant by Ext.A1. After obtaining possession she had improved the area by planting rubber, coconut and other fruit bearing trees. The major portions were planted with rubber and there were also cultivation of seasonal crops done in the property. It was also claimed that the scheduled property never had the characteristics of a forest and the rubber trees in about 10 acres were destroyed due to natural reasons. It was also contended that in 1983 a huge amount was taken as loan for MFA(FOREST) No.229 of 2009 **- 8 -** improving the cultivation in the property. There was nothing stated in the application regarding surrender of 10 acres under the Land Reforms Act. In this context, we immediately notice that even according to the applicant rubber planted in 10 acres was destroyed due to natural reasons; the exact time of which not being specified. We also notice the averment in the appeal, at Ground B that the applicant did not have any excess land under the Land Reforms Act and hence the claim for exemption, in the application, was to the entire extent of 25 acres. However in Ground C while speaking of the M.F.A filed against the earlier order of the Tribunal, it is contended that in the meanwhile the no applicant surrendered 10 acres to the Government. There is claim that the surrender was under the Land Reforms Act and the order of the Land Board, directed to be produced in the earlier M.F.A, has not been produced. Hence as of now the consideration has to be confined to 8.38 acres; 6.62 acres having been not included in the notification and 10 acres having been surrendered by the applicant. The surrender cannot be understood to be under the Land Reforms Act. MFA(FOREST) No.229 of 2009 **- 9 -** 7. PW1 was the daughter of the assignee of K.V.John, who marked Ext.A1 and also admitted that there was a sanction obtained under the MPPF Act before the purchase. The testimony also indicated cultivation of rubber, cashew nut and seasonal crops. She also produced Ext.A2 series of documents which according to her proves the loan availed in the year 1969 and 1970. She spoke of the purchase have been made for the purpose of cultivation. Ext.A3 was the accounts maintained by the father of the witness, who was managing the cultivation. PW1's father died in 1991 and her mother in 1994. Ext.A4 is the certificate issued by the Tahasildar of Alathur showing the land possessed by the 1[st] applicant. She admitted that after the death of her father and mother, a care taker was looking after the property. While admitting that the excluded 6.62 acres lies to the south of the scheduled property, she claimed that similar cultivation existed in the scheduled property also. She was unable to state clearly as to the year in which the cultivation was commenced in the property. 8. PW2 is the caretaker, who is also a close relative. MFA(FOREST) No.229 of 2009 **- 10 -** According to him, he was looking after the property and was residing in the residential building situated in the property with his family. According to him, he started cultivation in the property in 1974, first paddy and then seasonal crops, and then fugitive crops as also rubber. The testimonies of PW1 & PW2 in this aspect conflicts since it was the case of PW1 that the caretaker was appointed only after the death of the father and mother, respectively in 1991 & 1994. PW2 claimed to have cultivated cashew nut, mango, coconut and arecanut; all cash crops. Some portion of the property lies as a rocky area and in some parts, there are mud bunds was the deposition. 9. Ext.C1 is the Commission Report which was prepared after inspection in the year 2000. The property was lying as a slope from the east to the west. There is a mud bund and a fence on the southern boundary and on the northern boundary there exists a fence and also a mud bund; half to half. On the western portion also there is a mud bund and on the south, there is a cliff looking down on a rocky area. When the Commissioner visited the property there was some cultivation seen in the property and MFA(FOREST) No.229 of 2009 **- 11 -** there were also trees having age between 4 to 5 years mostly forest species. There was only one cashew nut tree seen near the rocky area which was aged about 20-25 years, along with other miscellaneous trees all having the same age. A residential house existed in the southern portion of the property which also bears a number. There is a well, paved with stones, existing near the house with around 16 coconut trees surrounding the residential house which were aged 15 to 20 years. On some of the coconut trees there were pepper vines grown. In addition there existed 2 jack fruit trees, plantains, _nelli_ and _papaya_ as also a tamarind tree having 15 years age. On the east of the residential house there were 200 rubber trees existing. There was also 3 teak trees noticed in the properties. The survey sketch produced, prepared after reference to the Field Measurement Book, available in the Village Office, clearly demarcated the cultivated area, not included in the notification and the uncultivated area, shaded in different colours and having respective extent of 6.75 acres and 18.50 acres. The cultivated area is to the south and the vested area to the north of the scheduled property. MFA(FOREST) No.229 of 2009 **- 12 -** 10. RW1 & 2 categorically stated that the notification did not include the 6.62 acres, which is cultivated as noticed by the Commissioner and that the disputed property lies to the north of the undisputed cultivated land. RW2 specifically stated that there are no mud bunds in the scheduled property and that there were forest trees existing in the property. In fact in cross examination he asserted that there is no rubber plantation in the disputed property. 11. There is no dispute regarding the title of the property which had been found on the applicant’s mother as per Ext.A1. Even at the first instance the Tribunal found the title to be established. PW1 speaks of the intention to cultivate but nothing is discernible from the attendant circumstances. Exts.A2 series of documents though claimed to be of the period 1969-70, they are respectively dated 21.11.1994 and 03.02.1995 which is far after the appointed day. Ext.A4 is a certificate of the property held by the applicant and not by her mother who was holding the property as on 10.05.1971. Ext.A5 is a register of rights and liabilities issued by the District Soil Conservation Officer, MFA(FOREST) No.229 of 2009 **- 13 -** Palakkad which speaks of rubble pitched bunds, earthen bunds and gully structures having been constructed in the property. The date of commencement of the work is seen as 24.06.1968 and the date of completion 30.10.1970. Admittedly, there is a cultivated property around the residential house which has an extent of 6.62 acres, which is excluded. The entire properties lie without any demarcation and even according to the applicant about 10 acres of property which was planted with rubber got destroyed due to natural reasons. It is also admitted that 10 acres stand surrendered to the Government, though there is no clarity or proof that it was surrendered under the Land Reforms Act. The cultivated land as seen on the field was exempted from the notification itself and conceded to be not a vested forest. As we noticed the application does not raise a contention of surrender under the Land Reforms Act and we do not see the witnesses having testified so. The order remanding the case directed production of the order of the Land Board, which has not been done. It is pointed out by the learned Senior Counsel that the said order was not traceable for sheer passage of time. MFA(FOREST) No.229 of 2009 **- 14 -** However, neither the averments in the application nor the testimonies of the witnesses proffered for the applicants, indicate any such surrender having been made under the Land Reforms Act. We also noticed the averments in the appeal, which too is of a surrender, without specification as to what prompted it. We can only assume it to have been voluntarily surrendered as seen from the notification. 12. Intention to cultivate as has been held in _**Joseph**_ (supra) has to be gathered from the conduct of the owners, with regard to the development of the land preceding to and subsequent to the date of vesting. We have already seen that there was systematic cultivation around the residential building in the property to an extent of 6.62 acres, which is the southern portion of the scheduled property, totaling 25 acres. PW1 produced Ext.A3 accounts said to have been maintained by her father. In cross examination, it was admitted that though in Ext.A3, the maintenance of accounts commenced from 1964 only from 1972 expenses were shown under the head cultivation. It was also admitted that in Ext.A3 the first pages dealt with the MFA(FOREST) No.229 of 2009 **- 15 -** house construction and there was an interpolation in page 9 which was in a different ink. Here we again notice that while PW1 said that the caretaker PW2 came into the property after the death of her father and mother, in 1991 & 1994, PW2 said he commenced cultivation in the property in 1974. Even according to the respondents 6.62 acres was cultivated and if at all the testimony of PW2 is believed, he commenced cultivation from 1974. PW2 also does not say that he cultivated the land on behalf of the original owner. He claimed that he was residing in the property with his family and cultivating the land. 13. The cultivation is seen only around the residential building which property has been exempted from vesting. Though various cash crops were claimed to have been cultivated in the entire property, the Commissioner found only a solitary cashew tree on the 18.50 acres of property, with other miscellaneous trees. We find absolutely no reason to infer an intention to cultivate on the basis of the facts pleaded and the evidence led. The vested lands as per the notification B1 is only the land out of the 25 acres scheduled, which lie as a forest land, MFA(FOREST) No.229 of 2009 **- 16 -** contiguous to other vested forests. The cultivated area belonging to the petitioner was not included in the notification, though scheduled in the application. There is absolutely no evidence led to either exclude the vested land from the definition of private forest under Section 2(f)(1)(i) of the Vesting Act and the land is admittedly governed by the MPPF Act. There is no cultivation established as on 10.05.1971, the appointed day under the Vesting Act and there is no intention discernible to cultivate the land vested under the Vesting Act. We dismiss the appeal affirming the order of the Tribunal leaving the parties to suffer their respective costs. Sd/- **K.Vinod Chandran, Judge** Sd/- **C. Jayachandran,** **Judge** SMA