Saradha w/o Narayanan Chettiar and Gokuldas s/o Saradha v. State of Kerala and Conservator of Forest, 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 THURSDAY, THE 16[TH] DAY OF FEBRUARY 2023 / 27TH MAGHA, 1944** **MFA (FOREST) NO. 56 OF 2014** **AGAINST THE ORDER IN OA NO.39/2011 DT 30.01.2014 OF THE FOREST** ## **TRIBUNAL KOZHIKODE** ## **APPELLANTS/PETITIONERS:** - 1 SARADHA W/O. NARAYANAN CHETTIAR, PALAKKAL @ KALLINGAL HOUSE, KADAMBUR AMSOM, VADAKKUMPURAM DESOM P.O., KADAMBUR, AMBALAPPARA, OTTAPPALAM TALUK. - 2 GOKULDAS S/O. SARADHA, PALAKKAL @ KALLINGAL HOUSE, KADAMBUR AMSOM, VADAKKUMPURAM DESOM P.O., KADAMBUR, AMBALAPPARA, OTTAPPALAM TALUK. BY ADVS. SRI.P.R.VENKATESH SMT.ASHA P.KURIAKOSE ## **RESPONDENTS:** - 1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, (FOREST & WILD LIFE), GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. - 2 CONSERVATOR OF FOREST CUSTODIAN OF VESTED FOREST, ARANYA BHAVAN, FOREST COMPLEX, OLAVAKODE, PALAKKAD-678 002. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 16.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A (Forest) No.56 of 2014** **::2::** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A (Forest) No.56 of 2014** **------------------------------------------Dated this 16[th] February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal is from an order of the Forest Tribunal under the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for brevity 'the Vesting Act'). The applicants are mother and son who claimed under one Narayanan Chettiar who was the husband and father of the applicants. The properties scheduled had _janmam_ in Thekkiniyedath Keerangattu Mana who conceded _kanam_ rights, based on which in 1961 a partition was effected, in which was allotted Item No.1 in the schedule to Narayanan Chettiar. Item No.2 in the schedule was allotted to the share of the brother of Narayanan Chettiar who died issueless and on his death a partition was effected in the year 1971 between his brothers. Narayanan Chettiar also obtained purchase certificate. In the year 2009 the properties devolved on the applicant. The applicants contended that the scheduled property lies as a garden land, cultivated with dry crops as on 10.05.1971 and has absolutely no characteristics of a forest. The boundaries are also garden lands and the scheduled properties were ## **M.F.A (Forest) No.56 of 2014** **==> picture [18 x 8] intentionally omitted <==** brought under cultivation prior to 1971. Alternatively declaration of exemption from vesting under S.3(2) & (3) were also claimed. 2. The Divisional Forest Officer, Palakkad alleged that the scheduled property forms part of a huge malavaram called _Koonanmala_ , which vested with the Government under S.3(1) and was notified as on 10.10.1979. The scheduled property was asserted to be a typical forest area having predominant tree growth of forest species clearly attracting the provisions of the Vesting Act. It was stated to be a land governed under the Madras Preservation of Private Forests Act, 1949 (for brevity 'the MPPF Act'). The title, possession and cultivation in the property as claimed by the applicants were disputed. It was further alleged that the applicants are trying to encroach into forest areas and grab properties for themselves. While resisting the claim of exemption a preliminary objection regarding limitation was also raised. 3. The Tribunal raised the issues on limitation, lie and nature of property and the entitlement of a declaration of exemption under S.3(2) or (3). The Tribunal found limitation in favour of the applicant and held that the application is maintainable, despite the delay occasioned. It was found that the application scheduled property is governed by the MPPF Act, especially when no contra evidence was urged and the notification clearly showed the vested area having an extent of 478.78 ## **M.F.A (Forest) No.56 of 2014** ## **::4::** hectares. The Tribunal first considered the claim of exclusion under clauses (A) to (D) of S.2f(1)(i) and found it to be not sustainable. Exemption under S.3(2) & (3) was also declined despite finding clear title on the applicant. 4. The specific claim in the application was for exemption on the ground of the scheduled land having been held under a valid registered document with intention to cultivate the said lands. Though the title was proved based on a registered document there was nothing to show that the predecessor-in-interest nurtured an intention to cultivate the property. The 2[nd] applicant the son of the person who held the property as on the appointed day was examined as PW1 in the year 2013, who spoke of his father having cultivated the property 25 years back. The cultivation was testified to be in 1988, long after the appointed day in 1971. The mother, the 1[st] applicant did not mount the box. The Commissioner also found no signs of cultivation. It was also held that the applicants failed to establish that they held properties below the ceiling limit. 5. Sri.P.R Venkatesh, 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 **M.F.A (Forest) No.56 of 2014** ## **::5::** 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 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. 6. The learned Special Government Pleader [Forests] Sri.Nagaraj Narayanan at the outset asserted that the identity of the property was not established and relied on _**Hamsa Haji vs. State of Kerala**_ [(2006) 7 SCC 416]. Further he pointed out a number of decisions **M.F.A (Forest) No.56 of 2014** ## **::6::** 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 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 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 **M.F.A (Forest) No.56 of 2014** ## **::7::** Reforms Act cannot operate as _res judicata_ since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act. 7. 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 obstante clause, speaks of the rights of tenants to fixity of tenure. S.72K by subsection (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. Subsection (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 **M.F.A (Forest) No.56 of 2014** ## **::8::** 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. 8. 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 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 **M.F.A (Forest) No.56 of 2014** ## **::9::** 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 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 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. **M.F.A (Forest) No.56 of 2014** ## **::10::** 9. Even _de hors_ the purchase certificate the applicants and their predecessor-in-interest were found to be holding the properties on a valid title deed. Exts.A1 is the partition deed in the family of the predecessor-in-interest of the applicants, where he appears as party No.8. Ext.A2 is the partition effected between the brothers, on the death of another brother, which is of the year 1971 specifically 06.04.1971. In addition to this, S.72K of the Kerala Land Reforms Act makes a purchase certificate conclusive proof of title to the property. _**Mohammed Basheer**_ (supra) also declared that when there is a purchase certificate issued in favour of the holder of the property there is an automatic exemption under the Vesting Act. However in the present case what has been specifically urged by the learned Special Government Pleader is the identity of the property not being discernible from the purchase certificate and the survey number having not been correlated. The decision of the Hon'ble Supreme Court in _**Hamsa Haji**_ (supra) held so: “30. We thus confirm the decision of the High Court and dismiss the appeal with costs. We hope that this judgment will act as an eyeopener to the Forest Tribunals and the High Court exercising appellate jurisdiction in dealing with claims (obviously now they are belated claims) for exemption or exclusion under Section 8 of the Act. It behooves the Forest Tribunals and the appellate court to carefully scrutinise the case of title and possession put forward by claimants as also the identities of the lands sought to be claimed, ” while entertaining applications under Section 8 of the Act. [underlining by us for emphasis] ## **M.F.A (Forest) No.56 of 2014** ## **::11::** Identity of the property hence is a crucial issue and one of the foundational issues to be resolved before a declaration is granted. 10. The purchase certificate shows two items of properties which are stated to be garden lands existing in Sy.No. 57/3,4 - 2.18 acres and 57/4,5 - 0.85 acres both in Pulaparamsery Desam. The nature of the property is shown as garden lands but however there are no boundaries indicated in the purchase certificate. There are no survey numbers shown in the schedule to Exts. A1 and A2 deeds. The Commissioner on inspection of the property found that the Survey Numbers were lying in R.S 432 of Sreekrishnapuram 2 village and the total extent found is 2 acres. Item No.2 is seen on the field to have an extent of 82 cents as against the 85 cents seen in the purchase certificate. There should have been at least a correlation in the survey number shown in the purchase certificate which should have been done with reference to the Revenue Officers. 11. We agree with the Tribunal that the land is covered under the MPPF Act being part of _Koonanmala Malavaram_ having a total extent of 478.78 acres, situated within the erstwhile Malabar District. We are also of the opinion that there is no sustainable claim of exemption under Section 3 (2) or (3) as discernible from the testimony or the commission report and there is total absence of a factual evidence of personal **M.F.A (Forest) No.56 of 2014** **==> picture [24 x 8] intentionally omitted <==** cultivation or intention to cultivate as on 10.05.1971. We are persuaded to make a remand only considering the dictum in _**Mohammed Basheer**_ (supra) of the exemption under the Vesting Act being available automatically, if the land is one on which a purchase certificate is issued. Hence for the limited purpose of identification of the property with reference to the purchase certificate we remand the matter. We make it clear that there cannot be any further evidence adduced on the other aspects and the remand is limited to correlating the survey number by production of some material through the revenue officials and some material including the proceeding of the Land Tribunal from which the boundaries of the property would be discernible. If the identity is not ascertained necessarily the declaration would have to be declined. We remand the matter for the limited purpose. The appeal is allowed. Parties to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** **jma**