Southern Plantations Ltd. Arunagiri Estate v. The State of Kerala and The Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944** ## **MFA (FOREST) NO. 25 OF 2012** **AGAINST THE ORDER DATED 07.09.2011 IN O.A.NO.280/1976 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANT/APPLICANT:** **M/S.SOUTHERN PLANTATIONS LTD. ARUNAGIRI ESTATE, VYTHIRI-673576, WAYANAD DISTRICT.** **BY ADVS.SRI.S.SREEKUMAR (SR.) SMT.NISHA JOHN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM.** - **2 THE CUSTODIAN OF VESTED FORESTS CHANDRANAGAR, PALAKKAD.** **BY SRI.NAGARAJ NARAYANAN, SPL.G.P. [FOREST]** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **M.F.A.(Forest) No.25 of 2012** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------M.F.A.(Forest) No.25 of 2012 ------------------------------------------Dated this the 23[rd] of January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J** **The appeal is against the order under S.8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for brevity 'the Vesting Act'). The appellant, a plantation, sought for exempting 226 Acres of land, in its ownership, which was claimed to be a cardamom plantation. To understand the specific case of the appellant, the multiple litigations which preceded the present order of the Forest Tribunal, has to be first looked at. Initially, the appellant approached the Forest Tribunal, Calicut with O.A.No.19 of 1975, claiming exclusion of 242 Acres from vesting, which was also claimed to be cardamom plantation. In the said O.A,** **M.F.A.(Forest) No.25 of 2012** **3** **the respondent Forest Department filed a Counter Affidavit admitting the plantation as claimed, which they submitted was excluded from vesting and asserted that the Department had not taken possession of the same. The learned Tribunal found that the application is superfluous and the idea of the petitioner is to grab additional extent of forest lands under the pretext that it is plantation. It was categorically found that the applicant had no cause of action, but still the Divisional Forest Officer [DFO] was directed to submit a plan, locating the 242 Acres, so as to avoid any further disputes regarding identity. The DFO submitted a plan Ext.C1, which was appended to the order of the Tribunal dated 03.06.1976, which granted the relief under S.8 in respect of 242 Acres as identified in Ext.C1 plan; on consent of the respondents.** **2. Later, a subsequent notification regarding the forest land in the possession of the** **M.F.A.(Forest) No.25 of 2012** **4** **applicant was published, upon which the applicant filed O.A.No.280 of 1976 before the Forest Tribunal, Kozhikkode. Here it has to be noticed that the applicant, as per the title deed Ext.A9, had purchased 668 Acres of land from another, also engaged in plantations, of which 242 Acres stood exempted as per the order in O.A.No.19 of 1975. In O.A.No.280 of 1976 the claim was with respect to 426 Acres, which was claimed to be an eucalyptus plantation [200 Acres] and the remaining, again a cardamom plantation [226 Acres]. The said application was dismissed by the Forest Tribunal, upon which the applicants filed MFA No.603 of 1978 before this Court. A Division Bench of this Court in the appeal found that there was no justification to exclude the area claimed to be covered by eucalyptus trees. The learned Judges also noticed the attempt of the appellants to make a somersault by resiling from the earlier assertion of eucalyptus plantation to one planted with cardamom; which claim made in a** **M.F.A.(Forest) No.25 of 2012** **5** **miscellaneous petition was rejected. It was categorically held, relying on State of** _**Kerala v. Moosa Haji [1984 KLT 494**_ **(FB)], that the denial of exclusion from vesting of the 200 Acres alleged to be planted with eucalyptus was perfectly in order. Having confirmed the said finding of the Tribunal, the Division Bench also found that even with respect to the balance 226 Acres, there was little merit in the contentions raised. Despite that, only in the context of the Tribunal, having declined an adjournment sought by the applicant and the attempt of the applicants to produce some documents for the first time before this Court, the Division Bench remanded the matter for a fresh disposal on condition of payment of cost of Rs.2,000/- to the Government. It was categorically observed that the remand was only with respect to 226 Acres, which was claimed to be a cardamom plantation; distinctly apart from the 200 Acres claimed as eucalyptus plantation. An appeal was filed by the applicant** **M.F.A.(Forest) No.25 of 2012** **6** **before the Hon'ble Supreme Court, which was tagged along with another appeal raising the very same ground of exemption on the strength of eucalyptus plantation. The judgment of the High Court denying exclusion to the eucalyptus plantation was upheld and remand order was directed to be considered expeditiously.** **3. On remand, the Forest Tribunal again considered the issue raised and by an elaborate order rejected the O.A with compensatory costs on 19.07.1997. A further appeal was filed by the appellants, in which the claim regarding 200 Acres of eucalyptus plantation was found to have attained finality; the same having been rejected by the Hon'ble Supreme Court. The claim regarding the cardamom plantation was allowed and it was declared that the 226 Acres of land planted with cardamom is exempted from vesting. An appeal was filed before the Hon'ble Supreme Court by the State, in which it was found that the impugned judgment set aside the** **7** ## **M.F.A.(Forest) No.25 of 2012** **findings of the Forest Tribunal, on very cursory and cryptic observations. It was observed that the High Court ought to have considered the evidence recorded, which was not done. However, while disposing off the appeal, the order of the Forest Tribunal also was set aside and the case was remanded to the Forest Tribunal, giving liberty to both parties to adduce fresh evidence; obviously on that aspect alone. At the stage of the present remand, out of the 426 Acres, the surviving claim is only with respect to 226 Acres.** **4. We heard learned Senior Counsel Sri.S.Sreekumar instructed by Smt.Nisha John for the appellant-applicant and learned Special Government Pleader [Forest] Sri.Nagaraj Narayanan for the State.** **5. We cannot, but, notice the claim in the instant application filed, which was with respect to 200 Acres covered by eucalyptus trees and coffee plants in the remaining area; not cardamom. The** **M.F.A.(Forest) No.25 of 2012** ## **8** **description of land involved in the application recites the history of 226 Acres having been originally planted with cardamom, but subsequently uprooted in 1973-1974 for raising coffee plantation, after which coffee was actually cultivated in that extent. Though the land is said to have been planted with coffee as on 1973-1974, what is relevant under the Vesting Act, is the cultivation as on the appointed day of that Act; ie. 10.05.1971. Admittedly, the 226 Acres now projected as excluded, distinct and different from the earlier extent of 242 Acres, was also claimed to have been planted with cardamom as on the appointed day. We pause here to notice that even when O.A.19 of 1975 was moved, without even any notification, the claim was only with respect to 242 Acres of cardamom plantation. There was no whisper about another 226 Acres planted with cardamom as on 10.05.1971, in which land coffee was planted in the year 1973-1974. The contention taken up in the course of the proceedings before the** **M.F.A.(Forest) No.25 of 2012** **9** **Appellate Courts, stands belied by this very fact; which obviously was an afterthought in the year 1976, immediately after the earlier O.A was allowed on consent, with an observation that the O.A itself was superfluous and there was an attempt to grab forest lands not really put under any cultivation.** **6. The Tribunal, in the instant proceedings, framed a single issue as to whether the applicant is entitled to get exclusion from vesting under clauses (A) or (B) of S.2(f)(1)(i) of the Act. The argument raised, again with respect to 200 Acres of land, rightly stood rejected by the Tribunal as having been concluded in the earlier proceedings. With respect to the 226 Acres, the contention of the applicant was that the cardamom planted in the said area had to be uprooted for reason of the plants being afflicted with a disease, which could also spread to the 242 Acres replanted as on 1969-1970. It was also contended that the area was converted into coffee plantation in 1973-1974.** **M.F.A.(Forest) No.25 of 2012** ## **10** **7. PW1, the then Director of the Company and PW2, his son, was examined, the latter after remand. The Tribunal specifically noticed the fact that in O.A.No.19 of 1975, there is no claim regarding any other extent, but for the 242 Acres having been planted with cardamom. PW1, who filed the earlier application, pleaded ignorance about that. PW1's testimony regarding the yield from the property and his statement of the time of the commencement of plantation and the period within which there could be collection of yield were quite incongruous, and he was disbelieved. PW1's testimony further indicated that there was cardamom plantation as on 10.05.1971 only in 242 Acres, which was also supported by Ext.A5 Certificate. Exts.A9 & A10 title deeds were found to be insufficient to prove cardamom cultivation as on the appointed day. The Tribunal pertinently noticed that there was no commission taken out to inspect the property on the field and that the description in revenue records** **M.F.A.(Forest) No.25 of 2012** **11** **would not be conclusive proof as to the nature of the land. The argument regarding the land being not covered under the Madras Preservation of Private Forest Act, 1949 (for brevity 'MPPF Act') was rejected, especially noticing the extent lying contiguously, the major portion of which was private forest. The loan availed by the petitioner was also insufficient to find actual cardamom plantation in the land as on the appointed day, nor was the recovery proceeding initiated sufficient to establish that fact.** **8. Reliance was also placed on the evidence led by the respondents through RW1, the Forest Surveyor attached to the South Wayanad Division and Exts.B1 to B3 periphery sketches prepared by him. The total area of the land in Survey No.329/4C1B shown was 136 Hectares, which was admitted to be correctly computed by a Drafts-man to be of only 133.6647 Hectares. RW2, Forest Range Officer marked Ext.B4 notification and testified that the disputed** **M.F.A.(Forest) No.25 of 2012** **12** **property was not fit for cardamom cultivation and there were no signs of a plantation having existed, which can be inferred only if there is existence of a bungalow, labour lines or other buildings. The Tribunal categorically found that the claim of exclusion from S.2(f)(1)(i) has not been established.** **9. The learned Senior Counsel appearing for the appellant, in support of the contention that the property is not covered by the MPPF Act, 1949, takes us to the recitals in Ext.A9, a deed executed in 1943, prior to the enactment of the MPPF Act in 1949. What is attempted to be argued is that since the lands were cultivated prior to the MPPF Act, the Act does not apply to the said lands. It is pointed out that the Act applies only to private forests in the Districts of Malabar and South Canara having a contiguous area exceeding 100 Acres as per S.1(2)(i) of the MPPF Act and the Explanation clearly excludes any land which was brought under fugitive or other** **M.F.A.(Forest) No.25 of 2012** **13** **cultivation prior to 14.12.1949. We are unable to countenance the said argument since Ext.A2 has three schedules of properties numbered as A to C, the last of which, C schedule, includes the areas described in A & B schedules also. The recital is insofar as the lands in the possession of the owners, prior to 11.09.1915 being planted with estate produce. We also have to look at the A schedule property, which is said to be the 688 Acres and 53 cents separately described in that schedule. The 'particulars of property' shown in the document, describe it as '** _**portion of premises known as Perinthathayi Mala excluding the paddy fields, marsh and the hill in the centre, which is described in the B schedule below'**_ **. Both A & B schedules as seen from the western boundary in the A schedule and the eastern boundary in B schedule, are referred to as 'High Peak Estate'. The total properties covered by C schedule is 1178 Acres and 53 cents and from the recitals it cannot be assumed that the entire lands,** **M.F.A.(Forest) No.25 of 2012** **14** **more fully described in the schedule to Ext.A9, has been brought under cultivation prior to 14.12.1949.** **10. In fact it is specifically stated and testified by PW1 that when the purchase was made on 30.11.1943, as per Ext.A9, the MPPF Act was not in force and hence no permission from the Collector was taken. It is also admitted that in 1961-1962 eucalyptus trees were planted in 200 Acres after obtaining permission under the MPPF Act. The lands scheduled in Ext.A9 are situated within the District of Malabar and there can be no assumption that the entire lands were brought under cultivation prior to the enactment of the MPPF Act. What remained as private forest as on 14.12.1949 would be covered under the MPPF Act.** **11. In this context, the evidence of PW1 assumes relevance, which was found by the Tribunal to be incongruous. PW1 claimed that, apart from the 200 Acres cultivated with eucalyptus, 226 Acres were cultivated with cardamom. He changes his deposition,** **M.F.A.(Forest) No.25 of 2012** ## **15** **that it is 248 Acres and that is the figure applicable as on the date of purchase. Then again, he says that the cardamom in the 226, 248 Acres were afflicted with a disease and in 1969-1970 the entire area was replanted with cardamom. It was then deposed that PW1 had cultivated cardamom only in 226 Acres and then he prevaricates to say that apart from the 200 Acres the balance 448.80 Acres was cultivated with cardamom. He also deposed that in 1964-1965 the cardamom plantation in 240 Acres was abandoned and only certain portions in 248.80 Acres was replanted. It was also his testimony that coffee was planted in lands where there was no cardamom cultivation, quite contrary to the statements in the application. In the further testimony, again the witness makes conflicting statements as to the extent which was brought under cardamom cultivation.** **12. PW1 admitted that cardamom registration was obtained in 1967, only with respect to 242 Acres and that on 10.05.1971; answering a Court question,** **M.F.A.(Forest) No.25 of 2012** **16** **it was admitted that cardamom plantation was only in 242 Acres, which was then corrected as 226 Acres as on 10.05.1971. Ext.A5 is the cardamom registration obtained by the appellant, which shows only 242 Acres having been brought under cardamom cultivation in the year 1967. In this context, we also have to refer to Ext.A4, the 25[th] Annual Report of the Board of Directors of the appellant company for year 19691970, presented in the meeting held on 21.12.1970. The division of the total area of 688 Acres shown under the 'Acreage Statements' shows cardamom plantation in 287 Acres, eucalyptus in 150 Acres and area under development being 251 Acres. This was quite proximate to the appointed day under the Vesting Act, which is 10.05.1971. We fully agree with the Tribunal that the testimony of PW1 is incongruous and in fact admits to cardamom being planted only in 242 Acres.** **13. Ext.A5, the registration obtained in 1967, also speaks of cardamom plantation in 242** **M.F.A.(Forest) No.25 of 2012** ## **17** **Acres, which stood excluded under the Vesting Act as has been found in O.A.No.19 of 1975. The subsequent contention taken by the appellant of another cardamom plantation in 266 Acres, having been afflicted with disease, for reason of which the plaints were uprooted and coffee planted in 19731974 is established to be false. Quite pertinent is the fact that the appellant did not take out a commission before the Tribunal. Out of the 688 Acres in the possession of the appellant, 242 Acres were excluded earlier and the identity of the said property is discernible from the plan appended to the order in O.A.No.19 of 1975. With respect to O.A.No.19 of 1975, PW1 was questioned in crossexamination and there is no denial of the same. To a suggestion whether O.A.No.19 of 1975 was filed, PW1 feigned ignorance and also stated that he does not know whether anybody else from the Company had filed the same. He said that he can recall the same, only if he is shown the order in the said case. In fact,** **M.F.A.(Forest) No.25 of 2012** **18** **in the application there was specific reference to the exclusion of 242 Acres vide: order dated 03.06.1976 in O.A.No.19 of 1975. The Special G.P confronted the witness with the original application, specifically the portion where the verification was made by PW1. The applicant answered that probably somebody in the Company would have made the statement. It is fairly well established that PW1 was stating falsehood in the box, especially after having verified the application. The application itself was filed in the year 1976 and the deposition was taken on 28.09.1978; the witness aged 48, at the time of deposition.** **14. It was the bounden duty of the applicant to have taken out a commission and identified the 260 Acres out of the 688 Acres; distinctly apart from the 242 Acre exempted earlier and also 200 Acres of eucalyptus plantation, found to have vested in the State. We are constrained to observe that the applicants have persisted in their** **M.F.A.(Forest) No.25 of 2012** **19** **attempt to encroach upon vested lands, which attempt was deprecated by the Tribunal even in the year 1975. As we noticed, in the year 1975 the only claim of the applicant was the cardamom plantation in 242 Acres out of the total property of 688 Acres covered by A schedule in Ext.A9. It was subsequently, that further contentions were taken with respect to eucalyptus plantation in 200 Acres and coffee plantation in 226 Acres, which had also been cultivated with cardamom prior to planting coffee. If as on the appointed day, another 226 Acres, apart from the 242 excluded, was cultivated with cardamom, definitely the appellant would have raised such contention at that point itself; even if the cardamom planted in that area was afflicted with a disease. The contention taken of 200 Acres being cultivated with eucalyptus, was held to be not enabling exclusion from vesting, by the Hon'ble Supreme Court. As far as the 226 Acres, we find the cardamom plantation to have been not proved and the** **20** **M.F.A.(Forest) No.25 of 2012** **very contention raised, being false and a fraudulent** **one.** **We dismiss the appeal with costs of the** **respondent State.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/24/01/2023**