State of Kerala and Custodian of Vested Forests v. Hamza

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 MFA (FOREST) NO. 158 OF 2019** **OA 33/2013 OF FOREST TRIBUNAL, KOZHIKODE DTD.27.2.2016** ## **APPELLANTS/RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY (FOREST AND WILD LIFE), THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS, ARANYABHAVAN, FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. (FOREST) ## **RESPONDENT/APPLICANT:** HAMZA,S/O.YOUSUF, VARAMANGALATH, PALLIPPURAM, KUNDURKKARA-679 306. BY ADVS. S.GOPAKUMAR T.M.BINITHA SANTOSH DANIEL S THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: *Hamsa Haji (Contractor) S/o.Yusuf, Varamangalath House, H.No.XIII/388, Karakkad P.O. Kondoorkkara, PIN 679 313, Palakkad District. *The address of the respondent is corrected as per order dated 5.3.2020 in I.A.2/2020 in M.F.A.(Forest)158/2019. **Cause title of judgment is amended as per order dated 05.03.2020 in I.A.2/2020 in M.F.A.(Forest)158/2019.** Sd/ASSISTANT REGISTRAR M.F.A.(Forest).No.158 of 2019 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(Forest).No.158 of 2019 ------------------------------------------------------------Dated this the 05[th] day of January, 2023 ## **JUDGMENT** ## C.Jayachandran, J. The order impugned in this appeal is the one rendered by the Forest Tribunal, Kozhikode in O.A.No.33/2013, as per which, the Tribunal found that the scheduled property is not a 'forest' and consequently, not a 'private forest' as defined in Section 2(f) of the Kerala Private Forests (Vesting and Assignment) Act ('the Vesting Act' for short). The aggrieved appellants are the State of Kerala, along with the Custodian of Vested Forests. ## - **2.** The facts: The property scheduled in the O.A. has an extent of 7.50 acres comprised in Sy.no.83/1 of Ongallur-II Village, Ottappalam. The applicant was a cultivating tenant therein, under the jenmi, who was issued with Ext.A1 Certificate of Purchase by the Land Tribunal, Pattambi-III. The scheduled M.F.A.(Forest).No.158 of 2019 **==> picture [22 x 8] intentionally omitted <==** property is a 'paramba', wherein the applicant's predecessor was cultivating seasonal crops as on the date of vesting, i.e 10.5.1971, and much prior to that date. The area was also planted with cashew, few of which have perished. The applicant's predecessor was not holding any land in excess of the ceiling limit prescribed under the Kerala Land Reforms Act. The four boundaries of the scheduled properties are private holdings. The property is not a private forest to which the Madras Preservation of Private Forests Act, 1949 ('the M.P.P.F. Act' for short) did not apply. On such premise, the petitioner seeks exclusion under 2(f)(1)(i); and alternatively, for exemption under Sections 3(2) and 3(3) of the Vesting Act. **3.** The respondents filed statement opposing the relief sought for, contending that the scheduled property forms part of 'Chovallurmanakkad Malavaram', notified as a private forest vide V.F.C.no.71, which has a total extent of 69.57 hectares. The M.P.P.F. Act was applicable to the scheduled property and the same became vested with the Government by virtue of Section 3 of the Vesting Act, as on 10.5.1971. The O.A. is M.F.A.(Forest).No.158 of 2019 **==> picture [22 x 8] intentionally omitted <==** preferred after 34 years from the date of notification and hence barred by law of limitation. The respondent Department filed an additional counter statement to incorporate a plea of res judicata on the strength of an order in O.A. No. 84/1977, alleged to have been preferred by the applicant's predecessor. The O.A. was dismissed by the Tribunal, which order was confirmed by the High Court as per the judgment dated 30.1.1986. **4.** The evidence in the case consists of Ext.A1 purchase certificate, supported by the oral evidence of applicant, as PW1. On behalf of the respondents, Exts.B1 to B4 were marked and the Forest Range Officer concerned was examined as RW1. The commissioner's report and plan were marked as Exts.C1 and C1(a) respectively. **5.** The Tribunal placed reliance upon an unreported judgment of this Court in **K.M.Abdu v. State of Kerala** [M.F.A.No.3/2007 decided on 14.3.2013] to find that the scheduled property is not a 'forest' and hence not a 'private ## M.F.A.(Forest).No.158 of 2019 ..5.. forest' as defined in Section 2(f)(1(i) of the Vesting Act. Inasmuch as the scheduled property is not a private forest, the applicant's entitlement for exemption under Section 3(2) or 3(3) of the Vesting Act does not arise for consideration, is the further finding of the Tribunal. **6.** Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forest) and Sri.S.Gopakumar and Smt.T.M.Binitha, learned counsel for the respondent/applicant. Perused the records. **7.** Having heard the learned counsel appearing for the respective parties, we cannot approve the course adopted by the Tribunal in the impugned order by relying upon **K.M.Abdu** (supra). As rightly pointed out by the learned Special Government Pleader, the disputed property in **Abdu** (supra) was one falling under Section 2(f)(1)(ii) of the Vesting Act, whereas the scheduled property herein is one falling under Section 2(f)(1)(i) of the Act. A similar order of the Tribunal was subjected to scrutiny and set aside by a Division Bench of this M.F.A.(Forest).No.158 of 2019 ..6.. Court in **State of Kerala and another v. K.C.Purushothaman** [2018 (2) KLT 25], the relevant findings of which are extracted hereinbelow:- _“_ _**16.** In the light of the definition of S.2(f)(1)(i) of the Vesting Act and the decision of this Court in K.C.Moosa Haji's case (supra) we find that the tribunal absolutely went contrary to the scheme under S.2(f)(1)(i) of the Vesting Act and the decision of this Court and erroneously conducted an enquiry on the basis of the meaning of 'forest' in various dictionaries. In short, the tribunal has conducted an enquiry on the basis of an incorrect understanding as regards the definition of 'private forest'. In the light of the decision in K.C.Moosa Haji's case (supra), we have no hesitation to hold that even if the disputed land has no characteristics or features of a forest as defined in various dictionaries referred to by the tribunal, that land also would fall under 'private forest' as defined under S.2(f)(1)(i) of the Vesting Act, if the MPPF Act was applicable to that land before the appointed day and the land does not fall under the clauses (A) to (D) of the said section and thereby once it was a private forest._ _17. The above view is supported by the decision of this Court in Menon A.K. and others v. State of_ M.F.A.(Forest).No.158 of 2019 ..7.. _Kerala and others [2013 (3) KHC 200], wherein this Court held as follows: “The only question is whether the MPPF Act was applicable to the said land in 1949. If that be so and if it continued to apply to the land up to 10.5.1971, that land will be a private forest for the purpose of the Vesting Act unless it falls under the exclusion (A) to (D) of S.2(f) (1)(i). The fact whether there was a forest in existence as on 10.5.1971 is not all a material aspect”. So it can be safely concluded that the fact whether the land falling within the dictionary meaning of the word 'Forest' was in existence as on 10.5.1971 is not at all a material aspect. The alteration of nature or character of the land before 10.5.1971 will have no effect in the application of Vesting Act, in respect of that land. In the light of the above decision also we find that in order to fall within the ambit of 'private forest' as defined in the Vesting Act the characteristics and features of forest as defined in various dictionaries are not required and there cannot be any enquiry on the basis of such dictionary meaning. The decision laid down by another Division Bench of this Court in Abdu's case (supra) had no application in the instant case, particularly when the application schedule property is one falling under S.2(f)(1)(i) of the Vesting Act and the disputed property in the above decision was one falling under section 2(f)(1)(ii). In other_ M.F.A.(Forest).No.158 of 2019 ..8.. _words, the tribunal placed reliance on a decision which was not applicable to the instant case and conducted enquiry on the basis of the proposition laid down in that decision. We make it clear that the decision in Abdu's case (supra) is obitter with respect to the property falling under S.2(f)(1)(i) of the Vesting Act._ _**18.** In the above analysis, in M.F.A.(Forest) No.128 of 2014, we find that the entire findings, whereby the Tribunal declared that the application schedule property is not a “private forest” within the meaning of Section 2(f) of the Vesting Act are illegal and unsustainable.”_ **8.** The facts, and more importantly, the course adopted by the Tribunal in the impugned judgment is at par with the judgment scrutinized in **Purushothaman** (supra). For the same set of reasons as extracted above, with which we respectfully agree, the impugned order cannot be sustained on the reasons set out therein, to conclude that the scheduled property is not a private forest. M.F.A.(Forest).No.158 of 2019 ..9.. **9.** However, the issue does not end there. We notice that the applicant has been issued with Ext.A1 purchase certificate by the Land Tribunal, Pattambi in respect of the scheduled property and therefore, entitled to the benefit of the dictum laid down by the Hon'ble Supreme Court in **State of Kerala and another v. Mohammed Basheer** [(2019) 4 SCC 260]. The relevant findings of the Hon'ble Supreme Court are extracted hereinbelow:- “ _19. ….........It is evident from Section 74 of the Land Reforms Act that any tenancy after 01.04.1964 is prohibited. Any tenancy created after that date is invalid. The Land Tribunal initiating proceedings under Section 72-B in favour of the cultivating tenant would be considering the possession of a tenant as on the said date which is far earlier than the KPF Act. Possession and title under the certificate of purchase have to relate back to a date prior to the date of vesting under the Land Reforms Act, i.e. 01.04.1964. Therefore, there is no question of vesting of the land in the Government under the KPF Act which has come into force subsequent to the date of Land Reforms Act. As noted above, the certificate of purchase issued under the Land Reforms Act is attributed with statutory conclusiveness as regards ownership/title_ M.F.A.(Forest).No.158 of 2019 ..10.. _under sub-section (2) of Section 72-K. The certificate issued by a competent Land Tribunal after finding that the tenant was in possession of the property as a cultivating tenant is a conclusive proof of possession as well._ _**20** . In the instant case, certificate of purchase has been issued in favour of the respondent after enquiry by the Land Tribunal. Though the State Government is not a party to this order, there was no bar for it to challenge this order under Section 102 of the Land Reforms Act. No appeal has been filed challenging the certificate of purchase either by the Government or by any other person. Thus, the certificate of purchase has become final._ _**21** . To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72-K. Sub-section (2) of Section 72-K of the Land Reforms Act clearly states that the certificate of purchase issued under sub-section (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase._ M.F.A.(Forest).No.158 of 2019 **==> picture [28 x 8] intentionally omitted <==** _Therefore, it can safely be concluded that the respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from vesting in the State under sub-section (2) of Section 3 of the KPF Act.”_ **10.** We find that the contentions of the appellant State is squarely in the teeth of the judgment in **Mohammed Basheer** (supra). As held by the Hon'ble Supreme Court the possession and title under a certificate of purchase will relate back to a date prior to the date of vesting under the Kerala Land Reforms Act, i.e., 1.4.1964, wherefore, no question of vesting under the Vesting Act arise. Ext.A1 certificate of purchase is not only attributed with statutory conclusiveness as regards ownership/title, but is also conclusive proof of possession of the property in the hands of the applicant, as a cultivating tenant. Inasmuch as the scheduled property is incapable of being vested with the Government in terms of Section 3 of M.F.A.(Forest).No.158 of 2019 **==> picture [28 x 8] intentionally omitted <==** Vesting Act, as held in **Mohammed Basheer** (supra), the applicant is entitled to exemption from vesting. **11.** Albeit disagreeing with the reasons found in favour of the respondent by the Tribunal, we confirm the impugned order, relying upon **Mohammed Basheer** (supra). In the result, this appeal fails and the same is hereby dismissed, leaving the parties to suffer their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj