Raroth Vysyan Aleema Mannankandy v. State of Kerala and The Custodian of Vested Forests Olavakkode, Palakkad

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** # **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944 MFA (FOREST) NO. 77 OF 2008** **AGAINST THE ORDER/JUDGMENT IN OA 7/2006 OF FOREST TRIBUNAL, KOZHIKODE DATED 26.12.2007** ## **PETITIONER:** RAROTH VYSYAN ALEEMA MANNANKANDY HOUSE, PO.KUNHOME,, VELLAMUNDA VIA., , WYNAD. BY ADV SRI.V.V.SURENDRAN ## **RESPONDENTS:** 1 STATE OF KERALA CHIEF SECRETARY, THIRUVANANTHAPURAM 2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST **THIS MFA (FOREST) HAVING BEEN FINALLY HEARRD ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest) No.77 of 2007 **2** **K.VINOD CHANDRAN & C. JAYACHANDRAN, JJ ----------------------------------------------------------------M.F.A.(Forest) No.77 of 2008 ---------------------------------------------------Dated this the 15[th] day of November, 2022** ## **J U D G M E N T** ## **K. Vinod Chandran,J** The applicant before the Forest Tribunal impugn the order refusing to grant declaration of exclusion or exemption under the Kerala Private Forests [Vesting and Assignment] Act, 1971 (for brevity 'the Vesting Act'), to 2.50 acres of land in Re.Sy. No.677/1 of Thondarnad Village in Manathavadi Taluk. It was contended before the Tribunal that 3 acres of property was purchased by the applicant by virtue of Exts.A1 and A2 sale deeds and the payment of tax was evidenced by Exts.A3 and A4. A sketch was produced under Rule 3 of Kerala Private Forests (Tribunal) Rules, 1972 as, Ext.A5, Ext.A6 was the 'adangal abstract' issued by the Village Officer, Ext.A7 was a pattayam issued under the Kerala Land Reforms Act and Ext.A8 was produced to establish and trace the title; which was a ' _marupattom karar_ ' of 1965. 2. The Tribunal found that Ext.A8 has not been proved to be of the property and so was Ext.A7 not proved to be a purchase certificate M.F.A.(Forest) No.77 of 2007 **3** issued with respect to the property on which exclusion and exemption was alternatively claimed. There was no clarity regarding the title as claimed by the applicant flowing from Ext.A8. The Tribunal though found the aspect of limitation in favour of the applicant raised serious doubts about the identity of the property as asserted by the appellant, to which, title was claimed by the applicant. The commission report was looked into, to find that there was no cultivation either to substantiate the contention under S.2(f)(1)( i) (A) to (D) or the claim of exemption under s. 3(2) & (3) of the Vesting Act. The property was found to be one covered by Madras Preservation of Private Forests Act, 1949 (for brevity, the MPPF Act) and the contention regarding the purchase certificate being conclusive was also rejected. 3. Sri. V.V Surendran, learned Counsel for the appellant/applicant relied on _State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]_ to argue that the purchase certificate issued under Section 72K is conclusive proof of title and such lands are exempted under the Vesting Act. The decisions in _Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]_ and _State of Kerala v. Popular Estates [(2004) 12 SCC 434]_ were under Chapter III of the Land Reforms Act while _Mohammed Basheer_ (supra) specifically looked at S.72K of the Land Reforms Act coming under Chapter II. The Purchase Certificate M.F.A.(Forest) No.77 of 2007 **4** issued under S.72K, according to him, is conclusive proof of the land being not a private forest, and the exemption under S.3(vii) of the Land Reforms Act would not definitely be applicable. It was argued that the definition of private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase Certificate being statutorily conclusive as per S.72K, there is a presumption that the property is not a private forest. Though the Government is not in an adversary position, they have a right to file an appeal from the order of the Tribunal, as noticed in _Mohammed Basheer_ (supra). The Government has not filed any appeal from the proceedings before the Land Tribunal, which led to the issuance of the purchase certificate. Learned Counsel would add that issuance of purchase certificate in favour of the applicant's father was very much pleaded in the original application and a copy of the same was also produced along with the O.A. But the original could not be produced since it was deposited before a bank. It was argued by the learned Counsel that Ext.A7 though was a copy, if a remand is made, the original will be produced, which is deposited in a bank as against a mortgage. It was also contended that in this case, the applicant has produced the sketch as required under Rule 3 to which some sanctity has to be attached by the Tribunal, especially the same having been M.F.A.(Forest) No.77 of 2007 **5** provided for in the Tribunal Rules of 1972. On such premise, the appellant/applicant seeks the O.A. to be allowed or in the alternative, to remand the matter for consideration afresh by the Land Tribunal in the light of _Mohammed Basheer_ (supra). **4.** The learned Special Government Pleader [Forests] Sri.Nagaraj Narayanan at the outset argued that the original of the purchase certificate was not produced and there cannot be a remand at this stage to fill up a crucial lacuna. It was pointed out, from a number of decisions of this Court 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 position has been affirmed by two decisions of the Hon'ble Supreme Court in _Kunjanam Antony_ and _Popular Estates_ (both supra) _. Mohammed Basheer_ (supra) was a subsequent decision of the Hon'ble Supreme Court which, it is argued, is _per incurium_ . It is pointed out that _Mohammed Basheer_ (supra) noticed _Kunjanam Antony_ (supra) but distinguished it on the ground that the earlier decision did not consider the conclusiveness of a purchase certificate issued under S.72K of the Land Reforms Act. In fact in _Kunjanam Antony_ (supra) the applicant raised the contention that the land alleged to have vested under the Vesting Act, had been exempted M.F.A.(Forest) No.77 of 2007 **6** from the ceiling proceedings under the Land Reforms Act by the Taluk Land Board, on the ground that it was a rubber plantation. That was a better ground since, therein, a statutory authority had found that the property was cultivated, which absolves it from vesting under the Vesting Act. Even then it was held to be only a piece of evidence and not conclusive. _Popular Estates_ (supra) also considered an exemption granted by the Taluk Land Board, on the ground of the land being a plantation and the Supreme Court noticed that the consideration for exemption from ceiling limit under the Land Reforms Act cannot operate as _res judicata_ since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act. 5. It was argued that the enquiry of the Land Tribunal under the Land 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 M.F.A.(Forest) No.77 of 2007 **7** 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 thereof, 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 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. 6. Further, it is pointed out that S.3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter is contained the provisions regarding deemed tenants and S.13, which M.F.A.(Forest) No.77 of 2007 **8** speaks of rights of tenants to fixity of tenure. The definition of private forests under both enactments exclude cultivated lands and waste lands which are not enclaves within wooded areas. S.72, which speaks of vesting of landlord’s 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 without any cultivation specified in clause (ii) to (iv), 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 as on the appointed date and the applicant before the Tribunal failed to establish that he possesses land below the ceiling area under the Land Reforms Act. It is also pointed out that Section 105 of the Kerala Land Reforms Act provides M.F.A.(Forest) No.77 of 2007 **9** for an authorised officer, not below the rank of a Revenue Inspector to obtain information from any person relating to the extent of land held by such person and his family members and such other particulars as prescribed for the purpose of implementing the provisions of the Land Reforms Act. The authorised officer merely collects the information to bring into effect the provisions of this Act and it does not necessarily place the Government in an adversary position before the Land Tribunal. It is also urged that the private forests under the Vesting Act includes those under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act _de hors_ a notification. The learned Special Government Pleader would also rely on an unreported decision of this Court in MFA No.12 of 1980 dated 10.01.1986. 7. We have no doubt that we are bound by _Mohammed Basheer_ (supra) which clearly found that the land on which a purchase certificate has been issued under the Land Reforms Act, is conclusive under s.72-K of that Act and is hence exempted under the Vesting Act. However in the present case the issue is not merely of a purchase certificate having been obtained, but the applicant having failed to prove the identity of the property in relation to the purchase certificate. The Tribunal raised three grounds; one on limitation, the M.F.A.(Forest) No.77 of 2007 **10** other of exclusion from s.2(f) and last, exemption under Ss. 3(2) & (3) of the Vesting Act. On limitation, it was found that the notification was not published as required under the Rules and that it was not proper to non suit the applicant merely on that ground. We find no reason to interfere with same nor is any appeal filed by the State from that finding. 8. The specific case of the applicant was that he obtained the property having an extent of three acres; 1½ acres each by Ext.A1 in 1980 & Ext.A2 in 1990. The vendor of the said documents was one Kesavan Nair and even when the transfer was effected it was cultivated with coffee, coconut, arecanut, jack fruit, mango, cashew, pepper etc. Kesavan Nair is said to have obtained the purchase certificate in _suo motu_ proceedings bearing no. SM 6443/75, a copy of which certificate is produced as Ext.A7. Kesavan Nair is asserted to have obtained the land from one Krishnan Nair who obtained half of the property in 1953 and the other half by way of lease in 1957 from Bagawathikavu Devaswom. While tracing the title as aforesaid it was also contended that Kesavan Nair had given possession of the one and a half acres of property which Krishnan Nair obtained in 1953, back to Krishan Nair as per a _marupattam karar_ in the year 1965 produced as Ext.A8. The Tribunal found that the boundaries of the scheduled M.F.A.(Forest) No.77 of 2007 **11** property, in the application, does not tally with the boundaries shown in Ext.A8. Ext.A8 was with respect to a property having an extent of 5 acres in Re.Sy.No. 677/1 of Thondarnad Amsom and the boundaries on the east, north and south were the remaining properties and on the west a road and a survey stone. The schedule of the property in the OA, on the three sides showed private holdings and on the west undisputed developed land of the applicant and not a road. There was absolutely no attempt taken by the applicant to show that the property scheduled was one comprised in Ext.A8. We find no reason to interfere with the fact finding made by the Tribunal even on a perusal of the aforesaid document, Ext.A8, with reference to the schedule in the application. We also notice that the oral lease from the Devaswom is not proved to have been sanctioned by the Commissioner under the Hindu Religious and Charitable Endowments Act, 1951. 9. The Tribunal further found that though Krishnan Nair was asserted to have transferred one and half acres of property in 1953 as ' _kuzhikanam_ ' and the balance property in 1963 as oral lease, there was no evidence to substantiate the same. Ext.A7 was not the original purchase certificate obtained by Kesavan Nair and was a photocopy attested by Public Information Officer and the Special Tahasildar(LR) M.F.A.(Forest) No.77 of 2007 **12** Mananthavadi, that too issued under the Right to Information Act. The applicant, now before us, contend that the property was mortgaged in a bank and the original was deposited at the bank. Definitely the applicant could have summoned the Branch Manager to produce the original, deposited with him, which was not done. We do not think that a remand is necessitated after almost 16 years from the year of inception of the original application. Even then, the Tribunal perused Ext.A7 which was issued on 17.03.1989 which also pertains to 3 acres of land in Re.Sy No.677/1 of Thondarnad Village. The boundary description in the schedule to the original application as herein above noticed, had private holdings on its three boundaries and on the west the undisputed developed land of the applicant himself. The boundary on the west of the schedule of the copy of purchase certificate showed a road which is absent in the schedule to the original application. In this context, the plan at Ext.A5 was also stated to be not proved by examining the person who prepared it. Even PW1, the daughter of the applicant did not state in evidence that the private surveyor had measured the property and prepared Ext.A5. The Tribunal hence found A7 is of no avail to the applicant to establish title over the property and Ext. A5 does not resolve the identity crisis. M.F.A.(Forest) No.77 of 2007 **13** 10. We notice that the finding with respect to the conclusive proof of purchase certificate was also decided against the applicant by the Forest Tribunal, which is not proper going by the later decision of the Hon'ble Supreme Court in _Mohammad Basheer_ (supra). We have in many a case remanded the case for consideration on the basis of _Mohammad Basheer_ (supra) which is not a permissible exercise in the present case for more than one reason. At the outset we have to notice that in all the cases, in which we made a remand; where the Tribunal peremptorily rejected the claim of exemption based solely on the purchase certificate issued under the Land Reforms Act, we had directed the Tribunal to examine whether the purchase certificate is with respect to the land on the which the declaration is sought and also whether the possession of the said land by the land owner in 1971, was within the ceiling limit under the Land Reforms Act. As we noticed above, the scheduled property had a different boundary from that shown in the purchase certificate. Even the purchase certificate issued long before the inception of the original application, had a road on its western boundary which did not find a place in the schedule to the original application. Pertinently the original purchase certificate was also not produced before the Tribunal and there is no scope for a remand at this stage. M.F.A.(Forest) No.77 of 2007 **14** 11. Regarding exclusion and exemption the Tribunal looked at the Commissioner's report Ext.C1 and plan prepared by the Village Officer Ext.C2. In C2 plan, the plots were numbered from 1 to 4. Plot no 1 was the undisputed property and plot numbers 2 to 4 were asserted to have been vested under the Vesting Act. Though the applicant had filed an objection to the commission report, the Commissioner was not examined before the Tribunal. The report indicated silver oak, coconut trees and saplings, arecanut trees, coffee plants etc. of varying age in plot No. 1 , on which there is no dispute. On plot No.2 and 4 also there were certain coffee and tree plants noticed but there is nothing in plot No.3. On the eastern boundary of the disputed property, the Commissioner noticed properties in the possession of the Forest Department and on its west the undisputed property of the applicant. The Commissioner had visited the property in the year 2007 and the age of the trees were noticed as 5 to 30 years. There were only 2 coconut trees which were aged 25-30 years; even those being planted after the appointed day of the Vesting Act, which is 10.05.1971. The witness examined on behalf of the applicant, her daughter, PW1, was put a specific question regarding the cultivation in the scheduled property as on 10.05.1971. The Tribunal recorded that she had evaded the question by stating that only her mother M.F.A.(Forest) No.77 of 2007 **15** knows and she has to ask her mother. Considering the age of the trees as indicated by the Commissioner as also the lack of knowledge of the witness examined, regarding the cultivation in the property, it was found that there is nothing to prove cultivation. 12. There was also no evidence adduced to the effect that the property was not covered under the MPPF Act, which it was the bounden duty of the applicant to establish as has been declared by a Division Bench of this Court in _State of Kerala v. Kunhiraman [1990 (1) KLT 382]_ a Full Bench in _State of Kerala v. Chandraleka [1995 (2) KLT 152 (FB)]_ and by the Hon'ble Supreme Court in _Popular Estates_ (supra). The claim of exemption under s. 3(2)& (3) has also not been established. We are afraid that there is absolutely no ground to order a remand and we reject the prayer made by the applicant. The appeal stands rejected. Parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C. JAYACHANDRAN, JUDGE** **jma**