Puthiyambra Pennukka v. State of Kerala and The Custodian of Vested Forests (MFA (Forest) No. 168 of 2006)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 MFA (FOREST) NO. 168 OF 2006** **AGAINST THE ORDER DATED 23.03.2006 IN O.A.NO.21/2004 OF THE** **FOREST TRIBUNAL, KOZHIKODE** **APPELLANT/APPLICANT:** **MRS.PUTHIYAMBRA PENNUKKA, AGED 77 YEARS, W/O.KORAPPAN, KALLULLATHODU, P.O. THALAYAD, UNNIKULAM, KOZHIKODE DISTRICT.** **BY ADV SRI.V.V.SURENDRAN** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** - **2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY ADVS. SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST GOVERNMENT PLEADER** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.[F] No.168 of 2006 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ ---------------------------------------------M.F.A.[F] No.168 of 2006 ---------------------------------------------Dated this the 1[st] of November, 2022** ## **JUDGMENT** ## **K. Vinod Chandran,J** **The appeal is by the applicant before the Tribunal. The applicant alleged that 1.30 Acres of unsurveyed land in Kedavoor Village of Kozhikkode Taluk is not a private forest and alternatively claimed exemption under S.3(2) of the Kerala Private Forests [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act']. After filing of the commission report, the schedule was amended to substitute 1.30 Acres with 1.56 Acres. It was alleged that the said land is part of 3.57 Acres of land taken on lease from the original landlord, Mallikasseri Kovilakam, which original lease was of 3.57 Acres. There was no document produced to substantiate the lease and the same was urged to be an oral lease. The respondent refuted the lease and asserted that the land came under the Madras** M.F.A.[F] No.168 of 2006 **3** **Preservation of Private Forest Act, 1949 [for brevity, 'the MPPF Act']. The applicant was alleged to be an encroacher, who planted certain cashew trees in the property, which lies contiguous to the vested forest and on which grows trees of different specie.** **2. The Tribunal framed three issues; (i) limitation, (ii) the declaration sought for and (iii) the exemption claimed. On the question of limitation the Tribunal found in favour of the applicant; which we find no reason to interfere with. The claim of ownership was asserted on the basis of Ext.A1 Purchase Certificate issued by the Land Tribunal No.4 Koduvalli on 02.11.1977. The Tribunal found that the Certificate of Purchase is not valid proof of title and that the Purchase Certificate issued under the Kerala Land Reforms Act is not binding on the Forest Tribunal, which is empowered to decide only disputes arising under the Vesting Act as provided in Section 8. The decision in** _**Thressiamma v. Custodian of Vested Forests [2002**_ M.F.A.[F] No.168 of 2006 **4** _**(1) KLJ 361]**_ **was relied upon. The applicants relied on a contrary decision in** _**Mohammed Basheer v. State of Kerala [2002 (1) KLT SN Case No.4],**_ **of a coequal bench. The Tribunal found that earlier to** _**Mohammed Basheer**_ **[supra], there were a number of judgments of the jurisdictional High Court, in which the position in** _**Thressiamma**_ **[supra], as to the absolute proof, offered by a Purchase Certificate issued under the Land Reforms Act, was negated. The Tribunal followed the earlier decisions to reject the proof offered of title through Ext.A1 Certificate of Purchase. The further evidence also did not prove the oral lease, nor even the possession of the property as on the appointed day of the Vesting Act, found the Tribunal. PW1, the son of the applicant, was found to be incompetent to speak either on the title or the cultivation in the property as on the appointed day. The title to the property having not been proved, the Tribunal found absence of** _**locus standi**_ **on the applicant and rejected the contention of exclusion and exemption.** M.F.A.[F] No.168 of 2006 **5** **3. Learned Counsel for the appellant Sri.V.V.Surendran argued that even a subsequent assignee is entitled to file an application under S.8 as has been held in** _**Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461)**_ **. Further it was pointed out that the judgment of the Division Bench in** _**Mohammed Basheer**_ **, as pointed out by the applicant before the Tribunal, was upheld by the Hon'ble Supreme Court in** _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]**_ **. The Hon'ble Supreme Court has found that issuance of a Purchase Certificate under S.72K of the Land Reforms Act is conclusive proof of exemption under the Vesting Act.** **4. The learned Special Government Pleader {Forests} Sri.Nagaraj Narayanan pointed out a number of decisions of this Court to contend that a purchase certificate issued under the Land Reforms Act would only be a piece of evidence and not conclusive proof of the cultivation carried on in the subject property. The enquiry under the Land** M.F.A.[F] No.168 of 2006 **6** **Reforms Act is not comprehensive to verify the nature of the cultivation and its extent. Often claims are accepted, based on the reports made by the Revenue Inspectors, who only look at the aspect of possession and not necessarily cultivation. The learned Special Government Pleader pointed out that S.53 of the Land Reforms Act enables a cultivating tenant entitled to fixity of tenure under S.13 to purchase the right, title and interest of the land owner and intermediaries, in respect of the land held by him. S.13, a non obstante clause, speaks of the rights of tenants to fixity of tenure. S.72K by sub-section (1) provides for issuance of Certificate of Purchase to the cultivating tenant, upon which the right, title and interest of the land owner and the intermediaries, in respect of the holding or part there of, to which the Certificate relates, vests in the cultivating tenant, free of all encumbrances created by the land owner or the intermediaries. Sub-section (2) of S.72K also mandates the Certificate of Purchase** M.F.A.[F] No.168 of 2006 **7** **to be conclusive proof of the assignment to the tenant, of the right, title and interest of the land owner and the intermediaries. According to the learned Special Government Pleader this is only conclusive proof of title and not proof of cultivation. In this context, the learned Special Government Pleader also took us to the definition clause of cultivating tenant [S.2(8)]; defined as a tenant who is in actual possession of land, entitled to cultivate the land comprised in his holding. The Land Reforms Act does not require actual cultivation for enabling fixity of tenure or issuance of Purchase Certificate; which is required to be proved under the Vesting Act as on the appointed day to absolve the property of the vesting.** **5. Further it is pointed out that S.3(1) (vii) exempts leases of private forests from the operation of Chapter II, in which are the provisions regarding deemed tenants and S.13, which speaks of rights of tenants to fixity of tenure.** M.F.A.[F] No.168 of 2006 **8** **S.72, which speaks of vesting of landlords rights in Government provides that all right, title and interest of the landlord, owners and intermediaries in respect of holdings held by cultivating tenants [including kudiyirippus and kaaraymas] entitled to fixity of tenure under S.13 and in respect of which Certificates of Purchase under sub-section (2) of S.59 have not been issued, shall vest in the Government free from all encumbrances. Hence, the vesting occurs only of lands, where fixity of tenure can be claimed under S.13; which is not applicable to leases of private forests. Hence even if there is a lease as claimed by the applicant herein, if it is of a private forest, there could not have been any vesting under the Land Reforms Act for reason of the exemption under S.3(1)(vii). If there is no vesting, then of course the Purchase Certificate issued is questionable. There is absolutely no proof offered of the cultivation carried on in the property and the applicant before the Tribunal failed to establish that he possesses** M.F.A.[F] No.168 of 2006 **9** **land below the ceiling area under the Land Reforms Act.** **6.** _**Parameswara Sastrigal**_ **[supra] is an authority for the proposition that even a person who acquired the properties after the appointed day, could initiate the proceeding before the Forest Tribunal under S.8 of the Vesting Act. The claim of exemption hence has to be considered afresh but however with reference to the appointed day. As far as the conclusive proof offered by the Purchase Certificate, we cannot but follow the judgment of the Hon'ble Supreme Court in** _**Mohammed Basheer**_ **[supra], from which paragraphs 21 and 22** **are extracted hereunder:** _**“21. To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72-K. Subsection (2) of Section 72-K of the Land Reforms Act clearly states that the certificate of purchase issued under subsection (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or**_ M.F.A.[F] No.168 of 2006 **10** _**portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the - State under sub section (2) of Section 3 of the KPF Act.**_ _**22. In Kunjanam Antony v. State of Kerala [Kunjanam Antony v. State of Kerala, (2003) 3 SCC 221] , relied on by the learned Senior Counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities. In this judgment, the statutory conclusiveness of title under sub-section (2) of Section 72-K of the Land Reforms Act has not been considered. Apart**_ M.F.A.[F] No.168 of 2006 **11** _**from the above, it was held that the certificate of purchase is also a piece of evidence which cannot be totally discarded. In the instant case, the respondent has established that he is the owner and in possession of the land on the appointed day on the basis of certificate of purchase and other materials placed on record.”**_ **7. We are bound by the aforesaid dictum of the Hon'ble Supreme Court. The purchase certificate, if relating to the scheduled property, has to be found to be conclusive proof for exemption of the land from vesting, under the Vesting Act and also conclusive proof of title. On the above reasoning the question regarding exemption under S.3(2) of the Vesting Act will have to be considered afresh and in that circumstance the proof offered by the Purchase Certificate also ought to be considered. We make it clear that the consideration shall be on the basis of the evidence already led and there shall not be any amendment of pleadings or further evidence led before the Tribunal.** M.F.A.[F] No.168 of 2006 **12** ## **The appeal is allowed remanding the matter** **to the Tribunal. Parties to suffer their respective** **costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** sp