State of Kerala and Custodian of Vested Forest v. Abraham Isaac

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **MONDAY, THE 6[TH] DAY OF FEBRUARY 2023 / 17TH MAGHA, 1944 MFA (FOREST) NO. 28 OF 2015** ## **AGAINST THE ORDER IN OA 1/2008 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO KERALA, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FOREST, ARANYIA BHAVAN, FOREST COMPLEX OLAVAKKODE, PALAKKAD-2. BY ADV.NAGARAJ NARAYANAN, SP. GOVERNMENT PLEADER [FORESTS] ## **RESPONDENT/APPLICANT:** ABRAHAM ISSAC, S/O.ISSAC, RESIDING AT KAKKATTUPARA, PARAKKOD, NEAR KALLEKKAD BLOCK OFFICE, KALLEKKAD, PALAKKAD-678 015, REP. BY POWER OF ATTORNEY HOLDER MARIAMMA, W/O.ABRAHAM ISSAC. BY ADVS. V.R.KESAVA KAIMAL C.DEVIKA RANI KAIMAL(D-63) THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 06.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.F.A [F].28/2015 2 **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ -----------------------------------M.F.A[F].No.28 of 2015 -------------------------------------Dated this the 6[th] day of February, 2023** ## **J U D G M E N T** ## **Jayachandran, J.** **1.** The order impugned is one of the Forest Tribunal, Kozhikode in O.A.No.1 of 2008, which allowed the declaration sought for that the scheduled property is not a private forest which vested in the Government under Section 3(1) of the Kerala Private Forest (Vesting and Assignment) Act, 1971 ['the Vesting Act', for short]. The aggrieved State, along with the Custodian of Vested Forest, are the appellants. **2.** Facts: The scheduled property has an extent of 6.75 cents comprised in survey no.3/22 of Vadakkenthara M.F.A [F].28/2015 3 Village. The subdivision was subsequently amended as 366/14. The title to the scheduled property is originally traced to one Krishna Iyer, who cultivated different variety of agricultural crops. One Pappathi took 27.75 cents of land [of which, the scheduled property forms part] on lease/verumpattom. Thereafter, she carried out cultivation therein including coconut, paddy, plantain, tamarind etc. As per Ext.A2 sale deed of the year 1980, the said Pappathi assigned her rights to one Mohammed, who, in turn, assigned his rights to one Hamsa as per Ext.A3 sale deed of the year 1984. The applicant purchased the said 27.75 cents from Hamsa as per Ext.A4 sale deed of the year 1993. Ever since the purchase, the applicant was cultivating the said land. Later, the applicant sold 18 cents out of the said 27.75 cents at the eastern side and constructed a residential building in three cents, wherein the applicant and his family are residing. The remaining property is scheduled in the O.A. There is a M.F.A [F].28/2015 4 thatched shed constructed in the scheduled property, where, one of the daughters of the applicant and her family are residing. Due to various constraints and difficulties, the applicant started construction of another house in the scheduled property. However, the forest officials, on 15.06.2007, required the applicant to remove the shed, on the premise that the scheduled property is a vested forest under Act 26 of 1971. No proper notification in terms of the Statute was issued. The scheduled property is a dry land and not a private forest. The same was not governed by the Madras Preservation of Private Forests Act, 1949 ['M.P.P.F Act', for short]. The scheduled property is lying interspersed among households and paddy lands and the same was being cultivated by the applicant's predecessors-ininterest as on 10.05.1971. There was clear intention to cultivate the scheduled property as on the appointed day. Fugitive and other agricultural products like coconut, plantain, tapioca, mango etc, M.F.A [F].28/2015 5 were cultivated. On such pleadings, a declaration that the scheduled property is not a private forest was sought for. The applicant also claimed exemption under Section 3(2) of the Vesting Act. **3.** The Divisional Forest Officer concerned filed counter affidavit contending that the disputed property is part of a vested forest by name 'Kurichimala malavaram', having a total extent of 43.8220 hectares, which was governed by the erstwhile M.P.P.F Act. After survey and demarcation in the year 1976, the area, of which the scheduled property was a part, was notified as V.F.C. item no.163 as per Ext.B1 notification. Thus the disputed land forms part of the property vested with the Government under the Vesting Act. The scheduled property is bounded on its east and south by vested forest. The same was not brought under any cultivation as on 10.05.1971. On such premise the respondents sought for dismissal of the O.A. M.F.A [F].28/2015 6 **4.** The power of attorney holder of the applicant was examined as PW1, one Aramughan as PW2 and the Village Officer concerned as PW3. Exts.A1 to A7(d) were marked through them. On behalf of the respondents, the Forest Range Officer concerned was examined as RW1, through whom, Ext.B1 notification and Ext.B2 survey sketch were marked. The Commissioners reports were marked as Exts.C1 and C2 and Ext.C2(a) is the plan attached. **5.** On an analysis of the facts and evidence, the Tribunal, by placing reliance on Ext.A2 document of the year 1980 found that the scheduled property was lying as a paramba, with a thatched hut, well and coconut trees therein. The Commissioner's reports and plan were relied upon to hold that the scheduled property has no characteristic features of a forest, with no forest trees therein. The Commissioner reported the existence of a thatched shed, as also, the remnants of an old shed in the scheduled M.F.A [F].28/2015 7 property. PW2 was relied to hold that the scheduled property was a cultivated land at the relevant time. Though the application of the M.P.P.F Act was found in favour of the respondent, the Tribunal, taking stock of the above referred facts and circumstances, held that the scheduled property is not a private forest and granted the declaration sought for in favour of the applicants. **6.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests), on behalf of the appellants and and Sri.V.R.Kesava Kaimal, on behalf of the respondents. Perused the records. **7.** Learned Special Government Pleader assailed the impugned order on the premise that the Tribunal wrongly placed reliance upon the judgment of this Court in **K.M.Abdu v. State of Kerala** [MFA No.3/2007], which decision was held not applicable on facts by a Division Bench of this Court in **State of Kerala v. Purushothaman** [2018(2) KLT 25]. M.F.A [F].28/2015 8 According to the Special Government Pleader, the very premise based upon which the Tribunal proceeded is erroneous, wherefore, the order impugned cannot be sustained. The enquiry as to whether the scheduled property has the characteristics of a forest itself is not contemplated under the Vesting Act and therefore, bad in law. The Tribunal should have ascertained whether the scheduled property would answer the definition of a private forest under the Vesting Act. If the answer to the same is in the affirmative, the Tribunal should have examined whether the applicant is entitled to any of the exemptions under Section 3 of the Act, which procedure, if followed, would have resulted in the dismissal of the O.A. is the submission of the learned Special Government Pleader. **8.** Per contra, learned counsel for the respondent/applicant argued in support of the impugned order. Apart from harping on the grounds M.F.A [F].28/2015 9 which the Tribunal found in favour of the applicant, learned counsel pointed out that the fate of the O.A. would not have undergone any change, even if the course suggested by the learned Special Government Pleader was followed, for, the respondent/applicant is entitled to either the exclusion to Section 2(f)(1)(i), or at any rate, the exemption under Section 3(2) of the Vesting Act. According to the learned counsel, the order impugned warrants no interference. **9.** Having heard the learned counsel appearing on both sides, we agree with the learned Special Government Pleader and endorse his contentions as regards the course adopted by the Tribunal, which however would not make any difference in the result of the litigation, since we are allowing the O.A, but on different grounds. After taking stock of the various factual parameters, the Tribunal found application of the M.P.P.F Act to the scheduled M.F.A [F].28/2015 10 property. However, the Tribunal found that the scheduled property is not a forest, so as to constitute a private forest, but was only a paramba, cultivated with fugitive crops, as claimed by the applicant. Obviously, the Tribunal toed in line with the course adopted in **K.M.Abdu** supra. As regards the exemption under Section 3(2) and 3(3), again, the Tribunal placed reliance upon **K.M Abdu** supra and found that, to claim exemption, the applicant should first admit that the scheduled property is a private forest. In as much as the scheduled property was not found to be a private forest, the claim for exemption does not arise was the conclusion of the Tribunal. We cannot accept the above findings for the following reasons. **10.** Primarily, **K.M Abdu** supra was a decision rendered in a case, where the scheduled property fell under Section 2(f)(1)(ii), whereas, in the instant case, the scheduled property falls under M.F.A [F].28/2015 11 Section 2(f)(1)(i), which aspect was implicit in the finding of the Tribunal that the M.P.P.F Act would have applied to the scheduled property immediately before the appointed day. It appears that the Tribunal has therefore misdirected itself in following **K. M. Abdu** supra. Once the Tribunal finds the applicability of the M.P.P.F Act, the Tribunal ought to have ascertained whether the scheduled property falls under any of the exclusions in clauses (A) to (D) of Section 2(f)(1)(i); or whether the applicant is entitled for the exemptions under Section 3(2) or 3(3) of the Act. This exercise is not seen done by the Tribunal, wherefore, we cannot uphold its findings. We notice that the course adopted by the Tribunal is squarely in the teeth of a Bench decision of this Court in **Purushothaman** supra, where a similar order of the Tribunal was set aside. M.F.A [F].28/2015 12 **11.** However, the issue does not end there. We have to see whether the applicant is entitled to any of the 'exclusions' or 'exemptions' afore-referred, based on the evidence on record. In this context, we are of the opinion that, many of the factual parameters taken stock of by the Tribunal are highly relevant. Ext.A2 sale deed of the year 1980 has been rightly relied upon by the Tribunal to find that the scheduled property was a paramba as early as in 1980. The recitals in Ext.A2 clearly indicates the existence of a thatched hut, a well and coconut trees in the 27.75 cents of land, of which, the scheduled property was a part. The boundaries in Ext.A2 indicates a public road on the western side and barren land on all other sides. Similar are the recitals in Exts.A3 and A4, of which the latter is the applicant's title deed. The Tribunal found that Exts.A2 to A4 proves applicant's title to the scheduled property, with which finding, we fully concur. M.F.A [F].28/2015 13 **12.** The Tribunal then drew support from the Commissioners report, which also spoke about a well and thatched shed, and more importantly, the remnants of an old shed in the scheduled property. The evidence adduced by PW2, an independent witness aged 57 years at the time of examination, was relied upon to find cultivation in the scheduled property as on the appointed date. PW2 who was residing adjacent to the scheduled property deposed that the scheduled property was subjected to cultivation ever since his childhood. PW1, the wife and power of attorney holder of the applicant deposed in support of the applicant's claim in the O.A. **13.** It was on the strength of the above evidence on record that the Tribunal found that the scheduled property was a cultivated land as on the appointed day. No exception can be taken to the above findings of the Tribunal. M.F.A [F].28/2015 14 **14.** All what we need to see is whether the scheduled property is liable to be exempted under Section 3(2) or 3(3) of the Vesting Act. Going by the pleadings claiming cultivation of fugitive crops, there is no scope for any exclusion under clauses (A) to (D) of Section 2(f)(1)(i). However, we are of the opinion that the applicant is entitled to exemption under Section 3(2), in as much as, it is established that he was holding the property as an owner and the property was under his personal cultivation. We also find that the existence of the thatched shed would also enable exemption under Section 3(2), since it answers the description of 'building or structure standing thereon'. **15.** We, therefore confirm the impugned order, however refusing the declaration that the scheduled property is not a private forest, but finding exemption under Section 3(2) of the Vesting Act. The O.A. is allowed as indicated above and the present M.F.A [F].28/2015 15 appeal stands dismissed. The parties shall bear their respective costs. **Sd/-** **K.VINOD CHANDRAN JUDGE** **Sd/-** **C.JAYACHANDRAN** **JUDGE** Sbna/