State of Kerala & Custodian of Vested Forests v. Kunnath Madhavi Amma & K.M. Girija

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 21[ST] DAY OF DECEMBER 2022/30TH AGRAHAYANA, 1944 MFA (FOREST) NO. 163 OF 2008** **OA 125/1993 OF FOREST TRIBUNAL, KOZHIKODE DTD.10.6.2008** ## **APPELLANTS/RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS, ARANYA BHAVAN FOREST COMPLEX, OLAVAKKODE, PALAKKAD DISTRICT. BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER (Forest) ## **RESPONDENTS/APPLICANTS:** 1 KUNNATH MADHAVI AMMA, ERANHOLY P.O., NEAR CHUNGAM, (DIED), REP. BY LR, THE 2ND RESPONDENT. 2 K.M.GIRIJA D/O. KRISHNAN NAIR NEAR CHUNGAM, ERANCHOLI P.O., KANNUR DISTRICT. BY ADV K.V.SOHAN **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 21.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest)No.163 of 2008 ..2.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------M.F.A.(Forest).No.163 of 2008 ------------------------------------------------------------Dated this the 21[st] day of December, 2022 ## **JUDGMENT** ## C.Jayachandran, J. This case has a chequered history. The legal representatives of one Krishnan Nair filed O.A. No. 125/1993 before the Forest Tribunal, Kozhikode under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act ('the Vesting Act' for short), seeking a declaration that the scheduled property is not a private forest and hence not vested with the Government. Alternatively, exemption under Section 3(3) of the Vesting Act was also sought for. The O.A. was dismissed on 6.10.1995 as barred by limitation, challenging which M.F.A. No. 673/96 was filed before this Court. The same was allowed and the case was remanded to the Forest Tribunal for fresh consideration on merits. Before the Tribunal, PW1 was examined, through whom Exts.A1 to A5 were marked. The Forest Range Officer was examined as RW1, who marked Exts.B1 to B3. The Commissioner's report and sketch were marked as Exts.C1 and C2. The O.A. was again dismissed on 7.4.2000. M.F.A.(Forest)No.163 of 2008 ..3.. M.F.A. No.824/2000, which was filed challenging the order of dismissal, was allowed and O.A. again remanded. After remand, the 2[nd] applicant filed I.A. to record the death of the 1[st] applicant, as also, that the 2[nd] applicant is the sole legal representative, which was allowed. PW2 was examined after the second remand through whom Exts.A6 and A7 were marked. The respondents did not adduce any further evidence. By virtue of the impugned order, the relief of declaration sought for has been refused, but the applicant was found entitled to the benefit of exemption under Section 3(3) of the Vesting Act. The aggrieved respondent/Forest Department is in appeal. ## 2. Facts in brief: The applicants are the wife and daughter respectively of the said Krishnan Nair. The scheduled property is 35.67 acres comprised in re. sy. no. 176/2A 2A 3A 2A of Periya Village. The prayer was one for declaration that the scheduled property is not liable to be vested and are exempted from vesting under the Vesting Act. The applicants traced title to the scheduled property as follows: M.F.A.(Forest)No.163 of 2008 ..4.. An extent of 350 acres, of which the scheduled property was a part, was taken on lease for a period of 99 years by one Vadakkedath Joseph as per Document No.164/1945. He transferred his rights to Glen Leven Estate Ltd. as per Document No.1777/1950. The Estate transferred its rights to Krishnan Nair (under whom the present applicants claim) and one Anandan, with respect to 100 acres out of the 350 acres above referred, as per Ext.A1 Document No.333/1967, which specifically recites permission from the District Collector, obviously under the Madras Presrvation of Private Forests Act, 1949 (M.P.P.F. Act, for short). Anandan died and the 100 acres above referred was partitioned by and between his legal heirs and Krishnan Nair, vide Ext.A2 document of the year 1969, as per which, 50 acres - described as schedule A to the said document - was set apart to the share of Krishnan Nair. Krishnan Nair died on 21.8.1992 and his rights over the said 50 acres (of which the scheduled property is a part) devolved upon the applicants, his legal heirs. The provisions of the Vesting Act do not apply to the scheduled property, inasmuch as, the same was brought under cultivation long prior to the coming into force of the said Act. There is no valid notification M.F.A.(Forest)No.163 of 2008 ..5.. of vesting with respect to the scheduled property. On such premise, the applicants sought for a declaration, as also, exemption in the lines indicated above. 3. Opposing the application, the Divisional Forest Officer filed counter affidavit contending inter alia that Krishnan Nair, during his life time has not filed any application seeking exclusion or exemption under the Vesting Act and that notification was duly issued on 08.07.1977, declaring 66.9975 hectares, including the scheduled property, as vested with the Government under the Vesting Act. As many as 17 O.As were filed in respect of the same area by the assignees of the erstwhile owner, Glen Leven Estate. The subject matter of the said O.As. encompasses a total extent of 454.41 acres. The disputed land is a vested forest, contiguous to vested forest on its northern side and bounded by private plantations on other sides. The plantations were excluded at the time of survey and demarcation for the purpose of vesting. The vested forest area under re. survey no. 176/2A 2A 3A 2A was never cultivated. The area supports natural growth of forest species trees. On such premise, the Department seeks dismissal of the O.A. M.F.A.(Forest)No.163 of 2008 ..6.. 4. The evidence adduced before and after the remand consists of Exts.A1 to A7, supported by the oral evidence of PW1, on the part of the applicants. Exts.B1 to B3 were marked through RW1, the forest range officer. The Commissioner's report and plan were marked as Exts.C1 and C2 respectively. 5. On an analysis of the facts, evidence and probabilities of the case, the Tribunal declined the declaration sought for under Section 3(2), but allowed exemption under Section 3(3) of the Vesting Act, with respect to 15 acres of land, forming part of the scheduled property. The Tribunal found that out of the 35.67 acres of scheduled property, 20 acres stood exempted as a cardamom plantation as noticed in Ext.A7 judgment of the High Court, wherefore, exemption from vesting is granted in respect of 15 acres only. 6. Heard Sri.Nagaraj Narayanan, learned Special Government Pleader (Forests) and Sri.K.V.Sohan, learned counsel for the respondents. Perused the records. M.F.A.(Forest)No.163 of 2008 ..7.. 7. Learned Special Government Pleader argued that exemption under Section 3(3) is not specifically pleaded. Ext.A4 certificate under the Cardamom Act and Ext.A5 proceedings of the Tahsildar, both, were discounted by the Tribunal, in the context of exclusion under Section 2(f)(1)(i)(B) of the Vesting Act, whereas, the self-same documents were taken stock of for the purpose of granting exemption under Section 3(3), which course adopted is hardly sustainable. The requirements of Section 3(3) of the Vesting Act and the question whether the evidence adduced would satisfy the said requirements has not been considered at all in the impugned order. It is not clear whether the exempted 15 acres forms part of the 20 acres of the cardamom plantation or whether it is the remaining extent out of 35 acres, is the final submission of the learned Special Government Pleader. 8. Refuting the above arguments, learned counsel for the respondents/applicants submitted that absence of a specific pleading for relief under Section 3(3) is inconsequential, inasmuch as exemption is pleaded broadly. As regards Exts.A4 and A5, the submission is that the same should have been M.F.A.(Forest)No.163 of 2008 ..8.. reckoned for the purpose of exclusion as well, since the discrepancy in the survey number in those documents was obviously a mistake. The evidence on record abundantly satisfies the requirements of Section 3(3) of the Vesting Act, wherefore, absence of a detailed discussion in the impugned order, is not of any moment. Finally, the learned counsel pointed out that there is no confusion with respect to the exempted 15 acres, inasmuch as, the Tribunal specifically took note of the 20 acres, forming part of the scheduled property, being exempted as a plantation after referring to Ext.A7 judgment. The order impugned is only to be sustained is the final submission of the learned counsel. 9. Having heard the learned counsel appearing on both sides, we are of the opinion that the order impugned warrants no interference. The following facts are either not disputed; or established by evidence: The extent of property obtained by the applicants by way of succession from Krishnan Nair is 50 acres in survey no.176/2A 2A 3A 2A of Periya Village. Out of the said extent, 15 acres of land was exempted from vesting by the forest officials M.F.A.(Forest)No.163 of 2008 ..9.. themselves, which area is clearly demarcated in Ext.C2 plan as coffee plantation. The remaining extent of 35.67 acres is the subject matter of O.A., scheduled therein. We notice that although cultivation of the scheduled property long before the introduction of the Vesting Act is claimed in the O.A., the nature of cultivation, especially in respect of 20 acres as cardamom, is not pleaded. Nevertheless, Exts.A6 and A7 documents would demonstrate the same, which aspect will be discussed in detail here below shortly. That apart, as pointed out by the learned counsel for the respondents/applicants, if the discrepancy in Exts.A4 and A5 documents is liable to be treated as a mistake, the said documents would directly vouch cultivation of cardamom in 20 acres, as also, its exemption as a plantation under the Kerala Land Reforms Act. 10. We will straight away consider whether the discrepancy in Exts.A4 and A5 - as regards the survey number - is a mistake or not. As indicated earlier, the scheduled property is comprised in survey no.176/2A 2A 3A 2A. Ext.A5 is the proceedings of the Tahsildar, North Wynad dated 29.4.75, as per which, a cardamom estate admeasuring 20 acres in M.F.A.(Forest)No.163 of 2008 **==> picture [29 x 8] intentionally omitted <==** R.S.no.17/2A 2A 3A 2A 2 is registered in the name of the said Krishnan Nair. Ext.A4 is the certificate of registration of a registered owner, issued under the Cardamom Act, 1965, wherein also, the extent and survey number is the same as stated in Ext.A5. Thus, it could be seen that instead of R.S.no.176, what is stated in Exts.A4 and A5 is R.S.no.17. The digit '6' is missing. The same is a mistake according to the respondents/applicants, whereas Exts.A4 and A5 refer to a different property altogether, is the contention of the appellants/respondents. 11. We will straight away refer to Ext.A6 order of the Taluk Land Board, which throw some light into this aspect. As could be seen from Ext.A6, the applicants' predecessor Krishnan Nair had a case, as far back as in 1976, that the survey number stated in Exts.A4 and A5 was a mistake. The relevant portion in page no.2 of Ext.A6 proceedings of the Taluk Land Board is extracted herein below:- - “......There is difference in the survey number as 17/2A 2A 3A 2A 2 instead of 176/2A 2A 3A 2A shown as held by the family in the draft statement. He even admitted that the survey M.F.A.(Forest)No.163 of 2008 ..11.. number has been incorrectly entered in the registration certificate for cardamom. ….....” 12. It is pertinent to note that there was no contention then that the property in Re. Sy. no.17 is a different one. In the context of Ext.A6 proceedings for the purpose of determination of ceiling, land if any owned by Krishnan Nair in Re. Sy. no. 17 (if at all such a re.survey number exist in Periya Village) would have been pointed out. The same can be taken as one circumstance suggesting that Re.Sy.no.17 is a mistake. 13. We will now refer to the evidence of PW1, the sister's son of said Krishnan Nair. In re-examination, he would state that re.survey number stated in Exts.A4 and A5 is a clerical mistake. In the cross-examination with permission thereafter, it was elicited from PW1 that application was given to correct the survey number in Exts.A4 and A5 and that the same is pending. The same question was put to RW1 – the Forest Range Officer - during cross-examination. RW1 deposed that he was not aware whether there exists re.survey no.17 in Periya Village. Though he would state that Exts.A4 and A5 is not concerned with the scheduled property, he would state M.F.A.(Forest)No.163 of 2008 **==> picture [29 x 8] intentionally omitted <==** that he cannot say anything to the suggestion that survey number 17 stated in Exts.A4 and A5 is a clerical mistake. 14. In the above referred state of affairs, as borne out from records, we are of the opinion that re.survey no.17 stated in Exts.A4 and A5 is nothing, but a mistake. We should necessarily notice that Exts.A4 and A5 are in the name of the applicants' predecessor Krishnan Nair. If he had actually and factually owned any property with Re.Sy.no.17, the same would have been reflected in Ext.A6 proceedings of the Land Board for the purpose of ceiling. Neither does the Forest Department point to any such land in that survey number in the present proceedings; despite raising an issue of the wrong survey number noted in the documents. We reiterate that our finding is in the yardstick of preponderance of probability, which definitely leans in favour of construing the same only as a mistake. It is so done. 15. We therefore find that, out of 35.67 acres, Exts.A4, A5, A6 and A7 would amply demonstrate the 20 acres were cultivated with cardamom, which stood exempted under the Land M.F.A.(Forest)No.163 of 2008 **==> picture [29 x 8] intentionally omitted <==** Reforms Act. The question now arises as to whether the same would amount to principal cultivation of the scheduled property for the purposes of 'exclusion' under Section 2(f)(1)(i)(B). 16. In State of Kerala v. Suseela Devi Amma [1987 (1) KLT SN 58 (C.No.80)] the Division Bench of this Court held that a land cannot be said to be used principally for growing any category of trees, if number of such trees, when compared with the extent, is small. It is the principal user of the plot as a whole that is to be regarded as a test. In Ammukunhi Amma and others v. State of Kerala and others [2016 (3) KHC 52] another Division Bench held that by the term 'principally cultivated', the cultivation meant has to be to a substantial extent and that occurrence of cultivation here and there in a large extent of property is not sufficient. In an unreported case, M.F.A.No.78/1983, a Division Bench held that unless there were at least half the usual number of plants per acre of the respective species, area could not be considered as principally planted with those crops. Ammukunhi Amma (supra) was followed in State of Kerala & others v. N.Rajagopal [2018 (5) KHC 128]. M.F.A.(Forest)No.163 of 2008 ..14.. 17. Coming to the facts herein, cultivation of cardamom found in respect of 20 acres, out of 35.67 acres, cannot be taken as cultivation here and there in a large extent of property as referred in Ammukunhi Amma (supra). The commissioner inspected the property only in the year 1998, as also, on several dates thereafter, including 25.9.1999. She has not reported any cultivation. However, the commissioner reported that roads claimed to have been constructed by the applicants within the estate was seen in the disputed area. The fact that the Commissioner has not reported any cultivation at the time of his visit cannot be taken stock of to find that the cultivation claimed by the applicants were not there in the scheduled property as on the date of vesting, 10.5.1971. Admittedly, the property was not in the possession of the applicants at least from the date of Ext.B1 notification. 18. In the absence of there being no specification of the number of cardamom trees standing at the scheduled property as on the date of vesting, all what can be considered is cultivation of cardamom in 20 acres of land as certified in M.F.A.(Forest)No.163 of 2008 **==> picture [29 x 8] intentionally omitted <==** Exts.A4 and A5 documents. We feel persuaded to lean in favour of the conclusion that cultivation of 20 acres, out of total 35.67 acres, with cardamom, amounts to principal cultivation of the crop in the scheduled property. At any rate, the same can safely be reckoned to find the intention for cultivation of the balance extent as well, for the purpose of exemption under Section 3(3) of the Vesting Act. There is no dispute that the applicants' predecessor was holding the property under a valid registered document of title (Ext.A2) of the year 1969, which is prior to the appointed day. Cultivation of cardamom in respect of 20 out of 35.67 acres is already found. Therefore it is only logical and reasonable to hold that the applicants' predecessor Krishnan Nair had the intention to cultivate the remaining 15 acres as well. We take note of the fact that out of 50 acres obtained by Krishnan Nair under Ext.A2 document, 15 acres were exempted as a coffee plantation and 20 acres, to have been cultivated with cardomom. Thus, 35 acres, out of the total 50 acres, is seen cultivated with cardamom and coffee. We garner strength from the above circumstance also, to find the intention of Krishnan Nair to cultivate the remaining extent as well. M.F.A.(Forest)No.163 of 2008 **==> picture [29 x 8] intentionally omitted <==** We are therefore of the opinion that exemption under Section 3(3) of the Vesting Act is fully justified, for which reason, this appeal fails and the same is dismissed, leaving the parties to bear their respective costs. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj