State of Kerala and Custodian of Vested Forests, Olavakkode v. Meenakshi Kuttyamamma and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 30[TH] DAY OF NOVEMBER 2022 / 9TH** **AGRAHAYANA, 1944** **MFA (FOREST) NO. 224 OF 2010** **AGAINST THE ORDER IN OA 13/2008 DATED 17.04.2010 OF** **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY,GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE,PALAKKAD DISTRICT. BY SRI.NAGARAJ NARAYANAN, SPECIAL GOVERNMENT PLEADER (FOREST) ## **RESPONDENT/APPLICANT:** 1 MEENAKSHI KUTTYAMMA D/O.ANIYATHPAROL KALYANI AMMA,, 'MEENA' HOUSE, MELOOR ROAD, AMBALAPPARA PO,, OTTAPALAM VIA, PALAKKAD DISTRICT. 2 SHRI.BALAKRISHNAN.A.P. S/O.DECEASED MEENAKSHIKUTTY AMMA, AGED 72 YEARS, RESIDING AT MEENA HOUSE, MELOOR ROAD, AMBALAPPARA.P.O., OTTAPPALAM, PALAKKAD DISTRICT. 3 SMT.INDIRA.A.P., D/O.DECEASED MEENAKSHIKUTTY AMMA, AGED 67 YEARS, RESIDING AT MEENA HOUSE, MELOOR ROAD, AMBALAPPARA.P.O., OTTAPPALAM, PALAKKAD DISTRICT. 4 SHRI.SYAMSUNDAR S/O.PREDECEASED SON OF LATE DR.GOVINDAN, AGED **2** **M.F.A.(F) No.224 of 2010** 40 YEARS, RESIDING AT MEENA HOUSE, MELOOR ROAD, AMBALAPPARA.P.O., OTTAPPALAM, PALAKKAD DISTRICT. 5 SHYLASH, S/O.PREDECEASED SON OF LATE DR.GOVINDAN, AGED 40 YEARS, RESIDING AT MEENA ROAD, AMBALAPPARA.P.O., VIA OTTAPPALAM, PALAKKAD DISTRICT. ADDL. RESPONDENTS 2 TO 5 ARE IMPLEADED AS LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT AS PER ORDER DATED 13/10/2017 IN IA 3726/16 IN MFA 224/10. BY ADVS. KUM.NIHARIKA HEMA RAJ SMT.C.DEVIKA RANI KAIMAL THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 30.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.F.A.(F) No.224 of 2010** **3** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No.224 of 2010 --------------------------------------------Dated this the 30[th] day of November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The appeal is by the State and the main ground urged is with respect to the identity of the property not having been correctly elicited by the Tribunal. The learned Special Government Pleader(Forest) Sri. Nagaraj Narayanan, specifically referred to _Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]_ and the emphasis laid therein to carefully scrutinize the identity of the lands, on which exemption is claimed. The learned Special Government Pleader also refers to the commission report filed by the Commissioner appointed in this appeal, in which the boundaries noted on the property does not tally at all. We also heard Smt. Niharika Hema Raj, learned Counsel appearing for the respondents. 2. There were three properties scheduled in the original application; A schedule being 4 acres 32 cents in Sy.No.136/2 of **M.F.A.(F) No.224 of 2010** **4** Ambalappara (II) Village, B Schedule, of 83 cents in Re.sy.No.141/4 of the same village and C schedule, 62 cents in ReSy. No.74/3 of Thrikkadiri Village, all belonging to Ottapalam Taluk; totaling 5 acres 77 cents. According to the applicant, A and B scheduled properties were allotted to her share in a partition of 1959, evidenced by Ext.A1 deed. The said properties are respectively item, Nos. 3 and 2 in the D schedule to Ext.A1. C schedule property was obtained by the applicant as per the final decree in a partition suit O.S.No.52/1962 of the Sub Court, Ottapalam, a copy of which decree was produced as Ext.A2. C schedule property is item No.5 of F schedule to the final decree. The Tribunal, on a verification of Ext.A1 and the specific items of property referred to from the said document, found that item Nos.2 and 3 in the D schedule are the properties respectively scheduled as B and A in the application. Though the extent and Re.sy Nos. tally, we see that the boundaries have not been co-related. Similarly, the Tribunal looked at A2 decree and item No.5 in F schedule to co-relate with C schedule in the application. Again the Sy.No and the extent is the same, but however the boundaries are not co-related. 3. The boundaries shown in the application and Exts.A1 and A2 **M.F.A.(F) No.224 of 2010** **5** documents with respect to all the three schedule properties are different. True, there could have been subsequent conveyance made of the properties on the boundaries and it could be said that the boundaries shown in the application are those that exist as on the date of the application. However, this does not absolve the applicant from clearly tracing the title of the present holder of the properties, on the boundary, if there is gross discrepancy. Exts.A3 and A4 are the purchase certificates of the scheduled properties. Ext.A3 was found to have included the properties scheduled as A and B to the application. However, there are no boundaries seen from the purchase certificate though the property having an extent of 4.32 acres comprised in Sy.No.126/2 and the property having 83 cents comprised in Sy.No.143/4 are included in the purchase certificate. Ext.A4, likewise, includes 60 cents of properties in Sy.No.74/3 purportedly that shown in C schedule again without any boundaries indicated in the said purchase certificate. 4. The Tribunal also looked at the commission report at Ext.C1 and Ext.C2 series of plans. According to the Commissioner, A schedule has vested forest on all the boundaries with a private land **6** noticed on the southern boundary along with vested forest. The Commissioner has also reported that the major portion of the property is rocky and it slopes from north to south. Only a teak tree aged about 5 years was seen on the southern side of the property. There was no other vegetation seen in the property at the time of inspection on 21.3.2009. The Tribunal found that since there were no forest species trees in the property, the claim can be accepted. We cannot endorse the said finding especially since the cultivation has to be found as on the appointed day of the Kerala Private Forests (Vesting and Assignment) Act, 1971 [for brevity, the Vesting Act] , which is 10.5.1971. Moving further, B schedule property had a vested forest on the north and private lands on all the other boundaries, as noticed by the Commissioner. The property was said to be lying contiguously with the property of the applicant on all the boundaries except at the north. The Commissioner noticed teak plantation in the said property along with other trees such as palm tree, _panhipoola_ , _kanjiram_ etc which were asserted to be planted by the applicant in person. The boundaries of the C schedule property, also as per the commission report, indicated vested forest on the south and private **M.F.A.(F) No.224 of 2010** **7** lands on the other boundaries. There is no vegetation seen in the property and on the eastern boundary, a rubber plantation is seen. In the application, the specific assertion is that the scheduled lands are under paddy cultivation and planted with teak, as plantation, and also that there are no forest species trees in the property. We also have to notice that the boundaries seen in the commission report, Ext.A1 and A2 documents and the application does not tally at all. It is in this circumstance that we have to look at the commission report which is filed before this Court. 5. When the ground of no proper identification of the scheduled properties was raised by the appellant State, the respondents took out a commission in the appeal itself. The Commissioner has filed a report dated 7.4.2001 confined to A scheduled property. The Commissioner has specifically indicated the boundaries as per the partition deed, as described in the O.A. and that found on the field during inspection. On A schedule property, it has been observed that on the eastern side there is no property comprised in Sy. Nos.142/2 and 141/1; found on field inspection, as is indicated from the partition deed. Similarly, the very same Sy.Nos. indicated on the **8** southern boundary in the partition deed were not detected on field inspection, as per the partition deed. There is a mountain range on the western boundary of A scheduled property which was not seen on field inspection nor was there a house as indicated in the application. In the application, on the northern boundary, a rubber plantation was shown which was not seen on actual inspection. 6. Sketch No.1 is the copy of the true extract of the sketch of field No.136 taken from the village office, Kadamallur. The periphery sketch of V.F.C item No.58 produced by the Range Forest Officer along with a work memo was produced as sketch no.2. 'A' schedule property is marked therein as A, B, C, D, E, F, G, H, I, J, K. While in the application, the Sy.No. of A schedule is shown as 136/2. On field inspection, an extent of 24 cents denoted as ABK was seen to be situated in Sy.No.140. 'A' schedule was also found to be extremely rocky with around 11 teak trees and no distinguishing features from the nearby property, admitted to be lying contiguously with vested forests on its boundaries. Schedule 'A' property was found to be rocky and sloping form north to south with only sparse teak trees. **M.F.A.(F) No.224 of 2010** **9** ## 7. We notice _Hamsa Haji (supra)_ and the following paragraph. “ _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 eye-opener 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 behoves 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.”_ In the above context we find the Tribunal to have erroneously declared A scheduled land to be excluded from the definition of private forest under the Vesting Act. 8. The Tribunal had placed heavy reliance on the deposition of PW1, who was the son in law of the applicant. The Tribunal found that the said witness was 28 years old as on the appointed day and it was testified that he had married the daughter of the applicant on 19.2.1971. He spoke of all the scheduled properties being covered by the purchase certificates. He also testified that there was paddy ## **10** cultivation in the scheduled properties without specifying the property on which such cultivation was carried out. It was also deposed that there were some teak trees planted in B schedule proprieties along with other trees. It was also stated that just prior to the filing of O.A., i.e. in 2008, there was interference in the agricultural activities carried on in the property. However, it is to be observed that no such paddy cultivation is seen reported by the Commissioner. 9. It is to be specifically noticed that the objection raised by the State specifically before this Court was against the identification of A schedule property and the Commissioner was deputed to only verify the identity of that property with reference to A schedule in the application and Ex.A1 title deed. There was no such objection taken before this Court regarding B and C schedule properties, of which, the learned Special Government Pleader submits, the difference in the boundaries is clearly discernible from the report filed before the Tribunal itself. In that circumstance, we have to refer to the report of the Commissioner submitted before the Forest Tribunal. The learned Special Government Pleader again raised specific objections **M.F.A.(F) No.224 of 2010** **11** regarding the eastern and western boundaries of B Schedule, on which, there was shown a road and a colony respectively, in the application. In fact, even in the commission report, on the eastern boundary, the other properties of the petitioner and a pathway is shown. Hence, there is no such anomaly existing in the application as pointed out by the State. However, on the west, a colony is shown whereas after the field inspection, the Commissioner reported a garden land with tea plantation in the possession of the petitioner. The commission report indicates that, on the three boundaries of the property, i.e., the east, south and west, there are private lands and on the east, there is also a pathway. The nature and characteristics of B schedule also indicates a cultivated land. The property as we noticed lies contiguously with the other properties of the applicant, except on the north, where there is a vested forest. The entire property was observed by the Commissioner as teak plantation and other vegetation such as palm tree, panhipoola, kanjiram etc.; in consonance with the testimony of PW1. Similar tea plantation is seen on the western, eastern and southern boundary also. There is also a paddy field on the southern boundary which is also in the possession **M.F.A.(F) No.224 of 2010** **12** of the applicant on the north. A _kayyala_ (mud bund) is seen on the northern boundary, after which is the vested forest. Considering the characteristics of the property, this Court is of the opinion that there is no reason to interfere with the finding of the Tribunal with respect to B schedule property. 10. As far as C schedule property is concerned, the boundaries differ considerably. The eastern boundary as noticed in the commission report and the application is the same; a land possessed by one Ayyappan Kutty. On the south, a vested forest is noted by the Commissioner, but the application indicates a public road. Likewise, on the north and west of the property, two houses are indicated whereas only vacant land is indicated by the Commissioner. As far as the characteristics of the property, it is said to be existing with thorny bushes and plants, the age of which is stated to be less than a year. Though symptoms of seasonal cultivation is noticed, there is no explicit nature of the same indicated. The Commissioner also states that there is no vegetation in the property except thorny bushes. Hence for reason of the identity, not having been elicited properly, as also the conditions of exemption not being satisfied, the order of the **13** Tribunal with respect to C schedule property will stand reversed. The appeal is partly allowed reversing the declaration made by the Tribunal with respect to A and C schedule properties. The declaration with respect to B schedule property stands affirmed. Ordered accordingly. Parties are left to suffer their respective costs. Sd/- **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** uu