Roy Kuriyan K.K. and Anitha Roy Kuriyan v Government of Kerala and 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** **FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 MFA (FOREST) NO. 49 OF 2016** **OA 28/2013 OF FOREST TRIBUNAL, KOZHIKODE DTD.30.12.2015** ## **APPELLANTS/APPLICANTS:** 1 ROY KURIAN K.K. S/O K.K. KURUVILLA, KAITHAKATTU VEEDU, MKK NAIR NAGAR, THRIPUNITHURA P.O, ERNAKULAM DISTRICT AND NOW RESIDING AT FLAT NO 605-C, KANCHANJUNGA APARTMENTS, CIVIL LINE ROAD, PALARIVATTOM, KOCHI 682 025 2 ANITHA ROY KURIAN K.K W/O ROY KURIAN K.K, KAITHAKATTU VEEDU, MKK NAIR NAGAR, THRIPUNITHURA P.O, ERNAKULAM DISTRICT AND NOW RESIDING AT FLAT NO 605-C, KANCHANJUNGA APARTMENTS, CIVIL LINE ROAD, PALARIVATTOM, KOCHI 682 025 BY ADVS.SRI.M.RAMESH CHANDER(SR.) SRI.MATHEWS K.UTHUPPACHAN SRI.JOSEPH KODIANTHARA (SR.) SRI.SHARAN SHAHIER SRI.TERRY V.JAMES ## **RESPONDENTS/RESPONDENTS:** 1 THE GOVERNMENT OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY (FOREST AND WILD LIFE) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM PIN 695 001. 2 THE CUSTODIAN OF VESTED FOREST ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT PIN 678 002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 03.03.2023, ALONG WITH MFA (FOREST).30/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 9] intentionally omitted <==** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944 MFA (FOREST) NO. 30 OF 2017** **OA 28/2013 OF FOREST TRIBUNAL, KOZHIKODE DTD.30.12.2015** ## **APPELLANTS/RESPONDENTS:** 1 GOVERNMENT OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, FOREST & WILDLIFE DEPARTMENT, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST ## **RESPONDENTS/APPLICANTS:** 1 ROY KURIAN.K.K. S/O.K.K.KURUVILLA, KAITHAKKATTU VEEDU, MKK NAIR NAGAR, THRIPUNITHURA P.O, ERNAKULAM. 2 ANITH ROY KURIAN K.K. KAITHAKATTU VEEDU, -DO- -DO-, NOW RESIDING AT FLAT 605-C, KANCHANJUNGA APARTMENTS, CIVIL LINE ROAD, PALARIVATTOM, KOCHI-682 025. BY ADVS.SRI.M.RAMESH CHANDER(SR.) SRI.MATHEWS K.UTHUPPACHAN SRI.SHARAN SHAHIER SRI.TERRY V.JAMES **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 03.03.2023, ALONG WITH MFA (FOREST).49/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 9] intentionally omitted <==** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(Forest)Nos.49 of 2016 & 30 of 2017 ------------------------------------------------------------Dated this the 03[rd] day of March, 2023 ## **COMMON JUDGMENT** ## C.Jayachandran, J. These two appeals stem from the order of the Forest Tribunal, Kozhikode in O.A. No.28/2013, which partially allowed an application under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act' for short), seeking a declaration that the scheduled property is not a vested forest. The total extent of the scheduled property was 1 acre and 24.5 cents, of which, relief was granted only with respect to 55 cents. The appeal first above referred is preferred by the State of Kerala and the Custodian, challenging grant of relief as afore-referred, whereas the appeal second above referred is by the applicants, challenging the refusal of relief in respect of the remaining extent of 69.5 cents, forming part of the scheduled property. ## M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 8] intentionally omitted <==** ## - **2.** The facts: The scheduled property (124.5 cents) is comprised in Sy.no.1511/2 of Thiruvillamala Village, which originally belonged to one Rajasree of Kavasseri House. As per document no. 1240/1989 of the S.R.O. Pazhayannur, the scheduled property was sold to one Hassanar, who sold the same to one C.V. Chacko as per document no. 19/2004. Chacko sold the property to one Rukmini Devi vide document no. 2536/2006, who in turn sold it to one Ashraf, from whom the applicants purchased the same as per document no. 2651/2008 of the same S.R.O. Tapioca and other tuber crops were raised in the scheduled property prior to 10.5.1971. The scheduled property was developed as a full-fledged rubber plantation. The rubber trees are aged 40 years. There is a well and a residential house in the scheduled property. The property has no characteristic features of a forest. The possession was sought to be disturbed by the Forest Officials on 7.7.2013, claiming that the scheduled property is a vested forest. There was no notification as required by the statute. M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 8] intentionally omitted <==** The applicants are entitled to the benefit of exclusion, as also, exemptions under Section 3(2) and 3(3) of the Vesting Act. On such premise, declaration as indicated above was sought for. **3.** The Divisional forest Officer filed counter statement contending that the scheduled property is a vested forest forming part of 'Cheerakuzhi' malavaram of Vadakkancherry range. The entire malavaram has an extent of 22.94 hectares. The original extent of Cheerakuzhi malavaram was more than 100 acres earlier, of which, 22.94 hectares got vested. The Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F. Act' for short) was applicable to the schedule property. The applicants have encroached into the scheduled property. The present application, filed 33 years after publication of notification, is barred by limitation. The applicants were not the owners on the appointed day; nor was the scheduled property under their personal cultivation as on the said date. The age of rubber trees is much less than 20 years and the disputed property was covered by forest trees as on the M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 9] intentionally omitted <==** appointed day. Sale deed no.2651/2008 does not cover the scheduled property and therefore, the applicants have no title to the same. The respondents sought for dismissal of the O.A. **4.** The evidence consists of Exts.A1 to A16(a), supported by the oral evidence of the 2[nd] applicant and another as PW1 and PW2 respectively. On behalf of the respondents, the Forest Range officer concerned was examined as RW1 and Exts.B1 to B7 documents were marked. The commissioner's report and plan were marked as Exts.C1 and C1(a) respectively. **5.** On an analysis of the facts and evidence, the Tribunal found that Ext.A1 title deed propounded by the applicants covers only 55 cents forming part of the scheduled property and that the applicants could not trace their title to the remaining 69.5 cents. Accordingly, the relief of declaration was granted/confined to the said extent of 55 cents. **6.** Heard Sri.Ramesh Chander, learned Senior Counsel, assisted by Advocate Mathews K.Uthuppachan on behalf of the appellants and Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) for respondents. Perused the records. M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 8] intentionally omitted <==** **7.** Having heard the learned counsel appearing for both parties and perused the records, we find that the judgment impugned is yet another case where the Tribunal had followed the dictum laid down in **K.M.Abdu v. State of Kerala** (M.F.A.No.3/2007). The Tribunal considered the question whether the schedule property is essentially a 'forest', so as to constitute a 'private forest'. Incidentally, the Tribunal considered the question of title and found that Ext.A1 title deed propounded by the applicants covers only 55 cents forming part of the scheduled property and that they have no title to the remaining 69.5 cents. As regards the 55 cents separately shown in Ext.C1(a) plan in orange colour, the Tribunal found that the same is a rubber plantation, with no characteristic features of a forest. The Tribunal placed reliance upon the identification of the scheduled property by the commissioner in Ext.C1 commission report to grant the relief of declaration in respect of the said 55 cents. For want of title being established, relief in respect of the remaining 69.5 cents was refused. Pertinent here to note that the Tribunal had not M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 9] intentionally omitted <==** addressed the question whether the M.P.P.F. Act applied to the scheduled property immediately before the appointed day, but only ascertained the character of the disputed property to find out whether it is a forest, following **Abdu** (supra). **8.** We are of the opinion that the course adopted by the Tribunal cannot be sustained, especially insofar as the refusal of relief in respect of 69.5 cents for want of title is concerned. We are of the definite opinion that the outcome of the proceedings cannot be determined merely on the basis of the character of the land and by answering the question whether the scheduled property is a 'forest', thus constituting a 'private forest'. We notice that the character of the land and an inquiry as to whether it constitutes a forest as on the appointed date is wholly irrelevant insofar as a private forest as defined in Section 2(f)(1)(i) is concerned. The nature and character of the land is relevant only in cases falling under Section 2(f)(1) (ii) and Section 2(f)(2) of the Vesting Act. This is for the reason that, even if a land is found to be cultivated after 14.12.1949 - the date on which the M.P.P.F. Act came into M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [22 x 9] intentionally omitted <==** force – still the property would qualify as a private forest as defined in Section 2(f)(1)(i), once it is established that the M.P.P.F. Act applied to the disputed property immediately before the appointed day. The two explanations forming part of Section 1(2) of the M.P.P.F. Act would expatiate the legal position. A five Judges Bench of this Court had occasion to consider the precise issue in **State of Kerala v. Moosa Haji** [1984 KLT 494 (F.B)] to find the legal position propounded above, the relevant findings of which are as follows:- _“7. We are unable to accept this contention. S.2(f)(1) of the Vesting Act defines 'private forest' as any land, whatever be its nature or character. If the M. P. P. F. Act was applicable to the land in 1949, and if it continued to apply to it up to 10-5-1971, that land will be a private forest for the purposes of the Vesting Act. The question is not whether there was a forest in existence in 1971; it is whether there was any land in 1971 to which the M.P.P.F. Act was applicable in 1949 and continued to be under its coverage till 1971. It is common ground that the lands involved in these appeals were all private forests as defined in the M. P. P. F. Act, in 1949. Clear felling and replanting were carried out with the permission of the District Collector. Therefore, the enquiry should be as to whether as a result of such operations the M. P. P. F. Act had ceased to apply to those areas. That will depend on the provisions of that Act, and not on the_ ## M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** _concept or even the definition of 'forest'. ….............................................................................. ….............................................................................. Clearly, once the Act was applicable to an area in 1949, nothing done by the owners or others was capable of putting an end to such applicability to that area.”_ **9.** We are of the opinion that the dictum laid down in **Abdu** (supra), without reference to the authoritative pronouncement of the larger Bench in **Moosa Haji** , insofar as it pertains to the lands governed by Section 2(f)(1)(i) of the Vesting Act, is _per incuriam._ A Division Bench of this Court in **State of Kerala v. Purushothaman** [2018 (2) KLT 25] holds similar view, though **Abdu** (supra) was not declared _per incuriam_ to the extent indicated above. **10.** In the light of the above discussion, we are of the opinion that an inquiry as to whether the scheduled property is a private forest as defined in Section 2(f)(1)(i) of the Act including the applicability, if any, of the M.P.P.F. Act is a necessary exercise, which cannot be obviated, contrary to what is suggested in paragraph nos.55 and 56 in **Abdu** (supra). M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 8] intentionally omitted <==** **11.** Coming to the facts, the very case of the respondent as espoused in the written statement is that the scheduled property is part and parcel of 'Cheerakuzhi' malavaram, having an extent of 22.94 hectares. Although it is pleaded that the total extent of Cheerakuzhi malavaram was more than 100 acres originally, of which 22.94 hectares alone got vested, no evidence in proof of the said assertion has been proffered. Ext.B1 notification and Ext.B2 sketch produced along with the written statement would only indicate an extent of 22.94 hectares, which falls short of the requisite extent of 100 acres in terms of Section 1(2)(i) of the M.P.P.F. Act. It was contended by the learned Special Government Pleader (Forests) that though the malavaram was having a contiguous area exceeding 100 acres, vesting will take place only in respect of those lands which are not liable to be excluded, wherefore, cultivated lands falling under clauses (A) to (D) to Section 2(f) (1)(i) would not vest. This does not necessarily mean that the extent of the malavaram is synonymous to the extent vested, is the argument. We accept the proposition propounded, but M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** then there should be substantive material establishing the said fact. A mere bland assertion in the written statement, that too without specifically pointing out such cultivated area, which had not vested; but still continued to be land covered under the MPPF Act, is of no moment. As a matter of fact, RW1, the Forest Range Officer concerned, would admit in crossexamination that the area of Cheerakuzhi malavaram is 22.94 hectares and he has no claim in the chief-examination that the total extent of the said malavaram is more than 100 acres. We therefore reject the contention, to find that the scheduled property was not a private forest as defined in Section 2(f)(1) (i) of the Vesting Act. **12.** The remaining question to be addressed is whether the scheduled property is a private forest as defined under subclause (ii) to Section 2(f)(1), as per which, any forest not owned by the Government, to which the M.P.P.F. Act did not apply, including waste lands which are enclaves within wooded areas is a private forest. Here, we endorse the dictum in **Abdu** (supra) that the disputed land should necessarily be a 'forest' ## M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** to constitute a 'private forest' under Section 2(f)(1)(ii). The specific case propounded in the O.A. is that the scheduled property is not a forest, with any characteristic features thereof, but has been developed as a full-fledged rubber plantation and that the rubber trees are aged 40 years, which assertion is seen reiterated in the affidavit in lieu of the chief examination preferred by the 2[nd] applicant/PW1. This claim of the applicants is amply supported by Ext.C1 commission report. The commissioner identified a total extent of 8.5 acres, over which the applicants are claiming title by virtue of Ext.A1 and two other documents, namely, document nos.2620 and 2621 of 2008 of the S.R.O. Pazhayannur and found 1200 rubber trees planted in the said area. In page no.2 of Ext.C1, there is specific reference to the age of the rubber trees as more than 40 years. The commissioner visited the property in the year 2013 and therefore a reference to the age of more than 40 years would certainly relate back to the appointed day, 10.5.1971. The Commissioner specifically found that apart from the rubber trees and three coconut trees, he could not M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 8] intentionally omitted <==** find any other trees in the scheduled property, though he found little bushes, which appeared dried up. A perusal of Ext.C1 commission report would amplify that the scheduled property is not a forest, with any characteristic features thereof. We therefore find that the requirement of the disputed land being a 'forest' to fall within the definition of Section 2(f) (1)(ii) is also not satisfied. **13.** The next point to be ascertained is whether the declaration sought for in the O.A. is liable to be refused for want of title being established over 69.5 cents of land forming part of the scheduled property. The Tribunal found that Ext.A1 provides title only to 55 cents and that no title deed is produced in support of the remaining 69.5 cents. **14.** We notice that the question of paramount title, as distinguished from possessory title, is not as relevant for the purpose of ascertaining whether the disputed property is a private forest or not, as in the case of an exemption under Section 3(2) or 3(3) of the Act. The Vesting Act provides for vesting of 'private forest' in the Government for assignment to M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 8] intentionally omitted <==** agriculturists and agricultural labourers for cultivation. As indicated already, private forest is defined in Section 2(f). An applicant under Section 8 of the Vesting Act has two options: the first one, to establish that the disputed property is not a private forest as defined in Section 2(f); and the second, to establish that he is entitled to either of the exemptions under sub-sections (2) or (3) of Section 3 of the Act. Exemption under Sections 3(2) and 3(3) presupposes that the disputed land is a private forest, but liable to be exempted for reason of 'personal cultivation' in the case of Section 3(2) and 'intention to cultivate' in the case of Section 3(3). In both cases, the applicant should hold the property as an owner, with an added condition for exemption under Section 3(3) that the same should be under a valid registered document of title executed before the appointed day. The term 'owner' is defined in Section 2(c) of the Act so as to include a mortgagee, lessee and other persons having right to possess and enjoy the private forests. The requirement of holding the disputed property as an owner has not been extended for the purpose M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** of ascertaining whether the disputed property is a private forest or not under Section 2(f), but the same has been limited in its application for exemptions under Section 3(2) and (3) of the Act. Finally, we notice that under Section 8(3)(b) of the Act, a Custodian remains bounden to restore 'possession' of the disputed property to the 'person in possession' of such land immediately before the appointed day. We, therefore, find that a person having possessory title, in the sense of having settled possession over the property - in contradistinction with a rank trespasser who had trespassed into the property immediately before the appointed day - is entitled to a declaration that the scheduled property is not a private forest, upon adducing satisfactory proof in that regard. **15.** Coming to the facts, we again refer to Ext.C1 commission report as regards the possession of the disputed property, including 69.5 cents over which the applicants' paramount title was found lacking. The relevant findings in Ext.C1 commission report is extracted herebelow:- “…വഹകൾ തതാഴഴെ പറയയുന്ന 4 അതതിർതതികൾകയുളതിൽ ഒരയു , . 40 പപപതാടതായതി ഒരയു റബ്ബർ പതതാടമതായതി സതിതതി ഴചെയയുന്നയു വഹകളതിൽ ## M.F.A.(Forest).Nos.49/2016 & 30/2017 ..17.. വർഷതതിൽ കകൂടയുതൽ പതായയം പതതാന്നതികയുന്ന 1200 എണയം വരയുന്ന . …..................................................................... റബ്ബർ മരങ്ങൾ ഉണ്ട് ഹർജതി ഭതാഗതയു നതിന്നയുയം ഹതാജരതാകതി തന്ന പരഖകൾ , അടതിസതാനഴപ്പെടയുതതി പനതാകതിയതതിൽ ടതി മകൂന് പരഖകൾ പകതാരമയുള വഹകളയുയം, മറ��ര 69.5 ഴസെൻറന്ന് സലവയുയം ഒന്നതിചന്ന് ഒരയു പതതാടമതായതി പമൽ കതാണതിച നതാലതതിർതതികയുളതിൽ സതിതതി ഴചെയയുന്നതതായയുയം ആയതതിൻഴറ വടകന്ന് പടതിഞതാഴറ അ�ത� വരയുന്ന കയുറചന്ന് ഭതാഗമതാണന്ന് തർകവഹകൾ എന്നയുയം മനസതിലതാകതാൻ സെതാധതിചയു. …...................................................................................................… ഇഴതതാന്നതിചന്ന് പബതാധതിപ്പെതികയുന്ന വതിപലപജന്ന് ഓഫഫീസെർ തയതാറതാകതിയ ഴസ്കെചതിൽ (പപതാൻ നമ്പർ 1 ) പച നതിറതതിലയുയം (69 5 . ഴസെൻറന്ന്) ഓറഞന്ന് നതിറതതിലയുയം (55 ഴസെൻറന്ന് ) കതാണതിച വഹകളതാണന്ന് തർകതതിൽ . ഉൾഴപ്പെട വഹകൾ ആയതതിനതാൽ പച നതിറതതിൽ ഉൾഴപ്പെട വഹകൾ ആധതാരപകതാരയം ഉള അളവയുകൾകയുളതിൽ വരതാതതയുയം എന്നതാൽ പമൽ പസതാവതിച 4 അതതിർതതികൾകയുളതിൽ ഉൾഴപ്പെടയുന്നതയുമതായ വഹകളതാണന്ന് (റബ്ബർ പതതാടയം) . …......................................................... ഇപകതാരയം 4 അതതിർതതികളതിൽ കതാണയുന്ന വഹകളതിൽ ഉളതടകയം സെയുമതാർ 1200 റബർ മരങ്ങൾ പമൽ പസതാവതിച 3.467 ഴഹക്ടർ/8 565 . ഏകർ വതിസഫീർണയം വരയുന്ന വഹകളതിൽ ഉണ്ട്. ടതി വഹകളയുയം ഒടതാഴക വഹകളയുയം തമതിൽ യതാഴതതാരയു പവർതതിരതിവയുമതിലപതാഴത (പമൽ പസതാവതിച പകതാരയം ഉള ജണ്ടകൾ ഒഴെതിചതാൽ) ഒന്നതിചയു ഒ� M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** . റബർ പതതാടമതായതി സതിതതിഴചെയയുന്നയു ഒടതാഴക വഹകളതിലയുയം ഒപര പതായതതിലയുയം തരതതിലയുയം ഉള റബർ മരങ്ങളതാണന്ന് ഉളതന്ന്. ......” **16.** It could thus be seen that the entire area of 8.565 acres, inclusive of the scheduled property which is comprised of the afore-referred 69.5 cents as well, is lying as a single compact plot in the possession of the applicants, wherein rubber trees of the same age were found. The whole property is lying as a rubber plantation. The age of rubber trees is reported to be more than 40 years in Ext.C1 report, which takes as to the period prior to the date of vesting, i.e., 10.5.1971. It is therefore safe to conclude that the applicants' predecessors-ininterest were in possession of the said 69.5 cents of land as well, along with the entire 8.565 acres held by them, which possession, the applicants are entitled to tack on by virtue of the judgment of this Court in **Parameswara Sasthrikal K.S. v. State of Kerala and Others** [2008 (2) KHC 434]. We are therefore of the opinion that the applicants are entitled to the relief of declaration in respect of said 69.5 cents as well. M.F.A.(Forest).Nos.49/2016 & 30/2017 **==> picture [28 x 9] intentionally omitted <==** In the light of the above discussion, M.F.A.(F)No.49/2016 is allowed and M.F.A.(F)No.30/2017 is dismissed. It is declared that the scheduled property is not a private forest and the same has not vested with the Government under Section 3(1) of the Vesting Act. Our findings on possessory title is only for the purpose of declaration of exclusion from vesting under the Vesting Act and cannot bind any third party who claims title to the property. The parties shall bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj