Sainabi W/o Late K.B.M. Badsha and Others v. State of Kerala and The Custodian of Vested Forests, Olavakkode, Palakkad District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 6[TH] DAY OF DECEMBER 2022 / 15TH AGRAHAYANA,** ## **1944** ## **MFA (FOREST) NO. 47 OF 2010** **AGAINST THE ORDER IN OS 44/1999 DATED 31.07.2009 OF** **FOREST TRIBUNAL, KOZHIKODE** ## **NAME AND FULL ADDRESS OF THE APPELLANTS:** - 1 SAINABI W/O.LATE K.B.M.BADSHAH,PUTHUKKUDI ESTATE,, MUKKIL PEEDIKA,P.O.MEPPADI,WYNADU DISTRICT. - 2 SHEFI AKTHARAGED 54 YEARS S/O.LATE K.B.M.NADSHAH,PUTHUKKUDI ESTATE,, MUKKIL PEDIA,P.O.MEPPADI,WYANADU DISTRICT. - 3 DILSHADAGED 52 YEARS D/O.ALTE .K.B.H.BADSHAH,PUTHUKKUDI ESTATE,, WYNADU DISTRICT. - 4 NOUSHADAGED 49 YEARS S/O.LATE K.B.M.BADSHAH,PUTHUKKUDI ESTATE,, MUKKIL PEEDIKA.P.O.MEPPADI,WYNADU DISTRICT. - 5 ROSHANAGED 47 YEARS S/O.LATE K.B.M.BADSHAH,PUTHUKKUDI ESTATE,, MUKKIL PEEDIKA.P.O.MEPPADI,WYANADU DISTRICT. BY ADV SRI.V.V.SURENDRAN SRI. P.A.HARISH ## **NAME AND ADDRESS OF PERSONS IMPLEADED AS RESPONDENTS:** - 1 STATE OF KERALA SECRETARY,THIRUVANANTHAPURAM. **M.F.A.(F) No.47 of 2010** **2** 2 THE CUSTODIAN OF VESTED FORESTS OLAVAKKODE,PALAKKAD DISTRICT. SRI. NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FORESTS) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 06.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) No.47 of 2010** **3** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No. 47 of 2010** **--------------------------------------------Dated this the 06[th] December, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The applicants before the Tribunal, who are also the appellants, are concerned with 1.33 acres of land comprised in Rs.No.185/2 part of Kottappadi village, Vythiri Taluk, Wayanad district. The applicants contended that the husband of the 1[st] applicant and the father of the other applicants obtained the scheduled property on oral lease in 1963 from one Arakkal Pathumma. The predecessor-in-interest converted the land into a coffee plantation intermingled with other cultivations like pepper. It was contended that the property was not one covered under the erstwhile Madras Preservation of Private Forest Act, 1949 (for brevity, the MPPF Act) and was also not a private forest. The predecessor-in-interest of the applicants also obtained purchase ## **M.F.A.(F) No.47 of 2010** **4** certificate from the Land Tribunal, Kalpetta, as per the orders in S.M.C. 90/1980, under the Land Reforms Act. It was admitted that the extent shown in the purchase certificate was 2 acres, but the actual extent comes to only 1.33 acres. The husband of the 1[st] applicant possessed and enjoyed the property till his death in 1995, after which it devolved on the present applicants. The applicants, while asserting that the scheduled land was not a private forest, alternatively claimed exemption under S.3(2)of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act). 2. The D.F.O, South Wayanad Division, filed a counter affidavit resisting the application. It was asserted that 63.72 hectares in V.F.C item No.79 notified on 8.7.77 stood vested in the Government, a part of which was the scheduled lands. The title traced to Arakkal Pathumma was disputed and the proceedings in O.A.No.5/75 initiated by M/s. Malayalam Plantations was projected to deny such title. The identity was disputed for reason of the boundary descriptions in the purchase certificate having been tampered with. There were vested forest on the **5** ## **M.F.A.(F) No.47 of 2010** eastern and northern boundaries. 3. The Tribunal raised three issues; of whether the scheduled property is a private forest, whether it stands vested in the Government or is entitled to the exemption under S.3(2) of the Vesting Act. The Tribunal found based on the Full Bench decision of this Court in _State of Kerala v. Chandralekha 1995 (2) KLT 152 (FB)_ that it is the bounden duty of the applicant to prove that the scheduled property is not a private forest. The Tribunal, looking at the definition of S.2(f), found sub-clause (1) relating to lands situated in the Malabar district and that in sub-section (2) relating to those private forests in the remaining areas of the State. Sub-section (1) was found to have two limbs, (i), relating to lands on which the MPPF Act applies and that in (ii), those forest lands not belonging to the Government, situated in the Malabar district but on which MPPF Act does not apply. There was absolutely no assertion by the respondents that the scheduled land was covered under the MPPF Act and hence the consideration had to be confined to S.2(f)(1)(ii) of the Vesting Act. ## **M.F.A.(F) No.47 of 2010** **==> picture [8 x 9] intentionally omitted <==** 4. The decision in _State of Kerala v. Anglo American Direct Tree Trading Co. Ltd [1980 KLT 215]_ was looked at to understand the term forest. This Court had understood it as “ _a large tract of uncultivated land covered with trees and under woods where humans skill, labor and resources have not been spend for agricultural operations” (sic)_ . Though there was cultivation seen in the property as per the commission report, the Tribunal found that the same is not believable. The Tribunal also refused to rely on the purchase certificate and laid emphasis on the fact that the applicants were not aware of the status of the property as on the appointed day under the Vesting Act. It was found that there was no evidence to prove that the scheduled property was not a private forest as on the appointed day, thus exempting it from vesting under the Vesting Act. The benefit claimed under S.3(2) was also found to be not available for reason of the documents produced long after the appointed day and the observations in the commission report having already been found to be unbelievable. 5. The learned Special Government Pleader (Forest) Sri Nagaraj **7** ## **M.F.A.(F) No.47 of 2010** Narayanan, first pointed out that the identity of the property is not clear especially with reference to the purchase certificate as there is obvious tampering in the boundaries. Learned Counsel Sri. V.V. Surendran, in the contrary, points out Ext.A14, wherein an authenticated copy of the corrections made to the boundaries is produced. It was argued for the appellant, relying on _State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]_ that the purchase certificate issued under the Land Reforms Act, by virtue of Section 72K, is not only conclusive proof of title but the exemption is automatic under the Vesting Act. On behalf of the State _Mohammed Basheer_ (supra), was urged to be _per incuriam,_ the dictum being contrary to _Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221] and State of Kerala v. Popular Estates [(2004) 12 SCC 434]_ . It is pointed out that in the earlier decisions, the proceedings of the Taluk Land Board for exemption from ceiling limits, under the Kerala Land Reforms Act was held to be only a piece of evidence; on reliance of which alone there can be no exemption from vesting under the Vesting Act. It is also pointed out that while the Kerala Land Reforms Act, for fixity of tenure ## **M.F.A.(F) No.47 of 2010** **==> picture [9 x 9] intentionally omitted <==** on a cultivating tenant, requires only possession and a right to cultivate; the Vesting Act, for an exclusion or exemption, mandates cultivation as on the appointed day or at least an intention to cultivate clearly discernible from the attendant circumstances. Private forests are also exempted under the Land Reforms Act and hence the purchase certificate, issued with respect to a private forest governed by the Madras Preservation of Private Forests Act, 1949, is n _on est._ 6. The respondent State having not raised a contention that the property is comprised in a total extent of more than 100 acres of forest land governed by the MPPF Act, we find no reason to interfere with the finding of the Tribunal that the subject land is not a private forest coming under Clause (i) of S.2(f)(1) of the Vesting Act. Under Clause (ii) of S.2(f)(1), what is to be looked at is whether the land is a forest land which is devoid of any human labor and skill or a waste land enclosed in a wooden area. Hence for categorizing the land as a forest land, necessarily there should be forest species of trees naturally grown in the property or if it is a waste land with only undergrowth or lying ## **M.F.A.(F) No.47 of 2010** ## **9** plain, it should necessarily be covered by a wooded area. We are unable to concur with the Tribunal that Ext.C1 has to be totally eschewed. The Commissioner noticed private properties with lush cultivation of cash crops and fruit trees on all the three boundaries of the property. On the eastern boundary, a private forest was noticed containing mainly bamboo clusters in addition to trees like _chadachi, vanteak_ etc., However on the eastern boundary, there was a clear fencing separating the petition scheduled property from the forest land on its boundary. The properties on the other three boundaries were old coffee plantations which were not alleged to be private forest, even by the department. ## 7. The nature of the scheduled property was described as follows: _“With regard to the nature of the disputed property, it is mainly a coffee plantation with interminkling cultivation of Orange and pepperwines. As shade trees, silver oaks, murikku, seemakkonna, vendek, matti are seen in the plantation. The number of the trees and their girth are given below. Muikku about 50 numbers, Matti about 10 Nos., Silver oaks about_ ## **10** _40 Nos., having girth 60 cms, Vendek 1 No., aged about 18 years: There are about 70 Pepperwines aged about 20 years, and seemakkonna trees. The coffee tress found in this land are having 20 to 28 inches girth. The coffee and pepper are seen planted in a very systematic manner and it is well maintained. No Jandas are seen in and around the disputed property. The petitioners represented to me that the disputed property was planted with coffee from the year 1963, onwards but the Forest Officials disputed the same. Being not an expert, I am giving the girth of the coffee trees seen in the disputed property for assessing the age”._ The above extract from the commission report would show systematic cultivation having been made in the property. We cannot but frown upon the observations made by the Tribunal, that a bland statement regarding systematic maintenance, would not suffice. In fact, the Commissioner has spoken of the approximate age of the crops and trees, he assessed, as any ordinary reasonable person would do, and also specifically noticed the girth of the coffee plants. The girth of the coffee ## **M.F.A.(F) No.47 of 2010** **11** plants were noticed to be 20-28 inches. Even according to the respondents, it would take about 100 years for coffee plants to have the said girth in total disbelief of the age reported of the trees. However, the respondents have not examined any expert witness to put forth this aspect and the statement would only indicate that the plants were existing, as on the appointed day under the Vesting Act. We find that the commission report has clearly indicated the property to be covered with lush cultivation where human skill and labor was employed and the properties on its three boundaries also being cultivated lands. The adjacent cultivated properties, were not alleged to be private forest, even by the department. As to the private forest on the eastern boundary, the commissioner has specifically noticed that there is a fencing separating the scheduled land from the private forest, again indicating the scheduled lands being occupied and cultivated by the applicants. 8. Now we come to the dispute raised as to the boundaries in Ext.A1 purchase certificate. We find that there was a tampering in so far ## **M.F.A.(F) No.47 of 2010** **12** as the western boundary was indicated to be the northern one and _vice versa_ . However, Ext.A14 is an authenticated copy of the correction in the scheduled issued by the Land Tribunal, Kalpetta. The dispute raised by the learned Special Government Pleader on the premise that Ext.A1 purchase certificate shows own properties on the north, was that in the schedule appended to the application, such own properties are seen in the west. According to the learned Special Government Pleader, the applicants had other properties on the northern boundary which is now seen on the field, to be on the western boundary which clearly indicates that the scheduled land was encroached upon. However, the mistake that occurred in the purchase certificate has been corrected by Ext.A14 and there cannot be an allegation of encroachment raised as of now on that. In the above circumstances, Ext.A1 purchase certificate has to be taken as conclusive proof of not only title but also exemption based on _Mohammed Basheer (supra)_ . We find that the order of the Tribunal cannot be sustained. We set aside the order of the Tribunal and allow the appeal, declaring the scheduled properties in the O.A to be neither ## **13** governed by the MPPF Act, nor is it a private forest as defined under S.2(f) (i)(ii) of the Vesting Act. Appeal allowed and parties are left to suffer their respective costs. ## **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** uu