State of Kerala represented by Chief Secretary v Sudhangada and others (MFA No. 34 of 2006 and CO No. 30 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **MFA.No.34 OF 2006** **AGAINST THE ORDER DTD 23.1.2004 IN OA 8/2001 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY ADVS.** **SMT.SUSEELA R.BHAT, SPL. G.P.FOR FOREST SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** ## **RESPONDENTS/APPLICANTS:** - **1 SUDHANGADA, W/O.LATE M.R.CHILPRAKASH, MAZHIKUNNATH HOUSE, NOTHUPULLY P O, MUNDAR, PALAKKAD.** - **2 PREETHA, D/O. -DO- -DO-** - **3 PREEJA, D/O. -DO- -DO-** **R1 BY ADV. SRI.A.R.GANGADAS** **THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2019, ALONG WITH CO.30/2007, THE COURT ON 27-08-2019 DELIVERED THE FOLLOWING:** **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** **:-2-:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **C.O.No.30 OF 2007 IN MFA. 34/2006** **ORDER IN OA 8/2001 DATED 23-01-2004 OF FOREST TRIBUNAL, KOZHIKODE** ## **MFA 34/2006 OF HIGH COURT OF KERALA** ## **PETITIONERS/RESPONDENTS:** - **1 SUDANGADA, W/O.LATE CHILPRAKASH, MAZHIKUNNAM HOUSE, NOTHUPULLY P O, MUNDAR, PALAKKAD.** - **2 PREETA, D/O. LATE CHILPRAKASH -DO- -DO-** - **3 PREEJA, D/O. LATE CHILPRAKASH -DO- -DO-** **BY ADV. SRI.A.R.GANGADAS** ## **RESPONDENTS/APPELLANTS:** **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-3-:** **2 CUSTODIAN OF VESTED FORESTS ARANYABHAVAN, OLAVAKKOD, PALAKKAD.** **SMT.SUSEELA R.BHAT, SPL. G.P.FOR FOREST SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2019, ALONG WITH MFA.34/2006, THE COURT ON 27-08-2019 DELIVERED THE FOLLOWING:** ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-4-:** **A.HARIPRASAD & T.V.ANILKUMAR, JJ. --------------------------------M.F.A.No.34 of 2006 & C.O.No.30 of 2007 ---------------------------------Dated this the 27[th] day of August, 2019** ## **J U D G M E N T** ## **A.HARIPRASAD, J.** Heard the learned Special Government Pleader for the appellants and learned counsel for respondents. 2. State of Kerala is aggrieved by the finding of the Forest Tribunal, Kozhikode, in O.A.No.8/2001, whereby the Tribunal directed to grant exemption in respect of 2.82 acres of land on the eastern side of the total extent of 9.43 acres situated in Survey Nos.284/2 and 282/1 in MundoorII Village in Palakkad Taluk and District, from vesting under the Kerala Private Forest (Vesting and Assignment) Act, 1971, [in short, 'the Vesting ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-5-:** Act']. The Tribunal reasoned out that 2.82 acres of land out of 9.43 acres is allowable to be possessed by the respondents under Section 82 of the Kerala Land Reforms Act, 1963 (in short, 'the KLR Act'). 3. The short facts relevant for disposal of the case are as follows; The applicant claimed that 9.43 acres of land in the afore-mentioned survey numbers of Mundoor-II Village in Palakkad Taluk and District originally belonged to Kongod Valiya Nair's family in Jenm. One Kumaran Nair had kanam right over the property. Kumaran Nair assigned his kanam right to one Ramakrishna Vaidyar as per Ext.A1 document of the year 1947. After the death of Ramakrishna Vaidyar, his rights on the property devolved upon his wife, son Chilprakash and two daughters. It is the case that the daughters of Ramakrishna Vaidyar released their rights in favour of his son Chilprakash. ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-6-:** Later, Chilprakash died and his wife, who is the applicant, and his children are entitled to hold the property. Ramakrishna Vaidyar's wife had executed a Will in favour of Chilprakash and his wife-the applicant. The applicant and her family were possessing the property and enjoying the same. When it was sought to be disturbed by the Forest officials, on 11.2.1992 they preferred O.A.No.17/1992 before the Forest Tribunal. The application was rejected for want of notification under the Vesting Act. Then the applicant/ respondent filed O.S.No.611/1996 before the Munsiff's Court, Palakkad, seeking a permanent prohibitory injunction against the forest officers. The suit was later dismissed on the basis of decision of a Full Bench of this Court in **Bhargavi Amma v. State of Kerala [1997(2) KLT 513 (F.B.)]** . Again on 20.11.2000, the Forest officials ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-7-:** threatened the respondents that they would be planting forest species in the property. Hence, the respondents approached the Forest Tribunal seeking a declaration that the application schedule properties are not private forests vested in the State Government under Section 3(1) of the Vesting Act. 4. The appellants filed a counter statement disputing the allegations in the original application. According to them, the disputed land is a private forest vested in the Government under Section 3(1) of the Vesting Act. It forms part of Oduvangad forest having an extent of 108.85 hectors in Mundoor village. The area was surveyed, demarcated and notified as Vested Forest Committee (VFC)Item No.29 vide notification No.B-4 10548/96 dated 10.2.1997. That notification is produced as Ext.B1. They also contended that the notification ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-8-:** was duly published as required under the relevant rules. The application is barred by limitation. The applicant or his predecessors have not done any cultivation in the property. They have no intention to cultivate. The Forest Department had planted teak trees in the property. It had become a teak plantation. About 9,500 teak trees are standing in the disputed area. Except on the east, all other boundaries are vested forests. Hence the application is liable to be dismissed. 5. Applicant gave evidence as PW1 and the Forest Officer was examined as RW1. Exts.A1 to A4 and Exts.B1 to B3 were marked on the side of the contesting parties. Ext.C1 is the commission report and Ext.X1 is the third party document produced to show that the applicant's husband Chilprakash obtained the entire rights over the property by way of a release deed. ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-9-:** 6. It is contended by the learned Special Government Pleader that the reasoning adopted by the Forest Tribunal is erroneous and it goes against the principles laid down in various binding precedents. On a perusal of the impugned order of the Tribunal, we find that the Tribunal entered a clear finding that the disputed land is a private forest vested in the Government under Section 3(1) of the Vesting Act. Thereafter, it went on to find that the applicant had established her intention to cultivate the land on 10.5.1971, the appointed day of the Vesting Act. And therefore, she was entitled to get exemption of a certain area from the statutory vesting under Section 3(1) of the Vesting Act. The Tribunal also found from Exts.A3 and A4 proceedings before the Taluk Land Board, Palakkad, that the family consisting of the applicant could have held 18 acres of land under Section 82 of the ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-10-:** KLR Act and they were in actual possession of only 15.18 acres. Therefore, the Tribunal entered a finding that to reach upto 18 acres, the applicant's family could be allowed to hold 2.82 acres of land out of the disputed area. 7. This finding is strongly opposed by the learned Special Government Pleader. _Per contra_ , the learned counsel for the respondents submitted that the Tribunal is justified in finding that the respondents were intending to cultivate the land as on 10.5.1971. 8. In order to appreciate the contentions raised by both sides, we deem it fit to extract Section 3 of the Vesting Act. ## **“3. Private forests to vest in Government.--** (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-11-:** ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumberances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished. (2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto. **Explanation -** For the purposes of this subsection, “cultivation” includes cultivation of trees or plants of any species. (3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-12-:** exceed the extent of the ceiling are applicable to him under Section 82 of the said Act.” 9. The specific case of the appellants is that the disputed property is part of a large extent of area called 'Oduvangadu Malavaaram'. Total extent of the property is 108.85 hectors. Survey demarcation in respect of this Malavaaram was completed in the year 1979. Ext.B1 is the notification in respect of this property issued under the Vesting Act. Specifically it is stated by RW1 that the disputed property falls within VFC Item No.29. Ext.B1 is the notification and Ext.B2 is the sketch pertaining to the entire extent of 108.85 hectors. Admittedly, the property is situate in Palakkad District which was a part of the erstwhile Malabar District. From Section 1(2) of the Madras Preservation of Private Forest Act, 1949, (in short, 'the MPPF Act'), it can be seen ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** **:-13-:** that the MPPF Act applied to the disputed land along with other adjoining areas. Going by the definition of private forest, in Section 2(f)(1)(i) of the Vesting Act, the land can be said to be a private forest. If that be so, the Tribunal is justified in finding that the disputed property is a private forest vested under Section 3(1) of the Vesting Act. 10. Going by the pleadings in the application it can be seen that the applicant has claimed exemption under sub-sections (2) and (3) of Section 3 of the Vesting Act. When testified as PW1 in chief examination, the applicant deposed that during the life time of her husband, he intended to plant rubber in the area so as to make it a rubber plantation. But there is no other material except her oral evidence to show that as on 10.5.1971 or any date prior to or immediately subsequent to that ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-14-:** date, they had taken any step to cultivate rubber. The learned Special Government Pleader relying on **Joseph & anr. v. State of Kerala & anr. (2007(2)** **KHC 619)** , contended that the Supreme Court has clarified in paragraph 16 of the above _cited_ decision, the words “intend to cultivate” occurring in Section 3(3) of the Vesting Act in the following words; “16. Several questions arose for consideration before the High Court. The High Court indisputably had a limited role to play. We, as at present advised, are not inclined to accept the submission of Mr. Iyer that sub-ss. (2) and (3) of S.3 of the 1971 Act would operate in the same field. In our opinion, both operate in different fields. However, on a plain reading of the impugned order passed by the High Court, we are of the opinion that the High Court was not correct in its view in regard to its construction of S.3(3) of the 1971 Act. The Tribunal, while exercising its power under S.8 of the 1971 Act, had taken into consideration ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-15-:** the question which arose before it, _viz.,_ as to whether the appellants herein had intention to cultivate the land on the appointed day. Appointed day having been defined in the 1971 Act, the relevant aspect was the situation as it existed on that day, i.e., on 10.05.1971. For the purpose of attracting sub-s. (3) of S.3 of the 1971 Act, it was not necessary that the entire area should have been cultivated for arriving at a decision as to whether the owner of the land had the intention to cultivate or not. Also, it was required to be considered having regard to the activities carried on by the owner from the day of purchase till the appointed day. For the said purpose, subsequent conduct of the owner of the land was also relevant. Development of the land by plantation of rubber plants is not in dispute. The Explanation appended to S.3(2) of the 1971 Act clearly suggests that cultivation would include cultivation of trees or plants of any species. Intention to cultivate by the owner of the land, we think, has to be gathered not only in regard to the fact situation obtaining at a particular time but also with regard to the subsequent conduct of the parties. If the ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-16-:** activity in regard to cultivation of land or development thereof is systematic and not sporadic, the same also may give an idea as to whether the owner intended to cultivate the land. The words 'intend to cultivate' clearly signify that on the date of vesting the land in question had not actually been cultivated in its entirety but the purchaser had the intention of doing so. Such intention on the part of the purchaser can be gathered from his conduct in regard to the development of land for making it fit for cultivation preceding to and subsequent to the date of vesting.” **==> picture [402 x 12] intentionally omitted <==** material to hold that the applicant or her predecessor had ever intended to cultivate the property. We fail to understand how the Tribunal entered a finding that the applicant had manifested her intention to cultivate the property as on 10.5.1971. **==> picture [402 x 10] intentionally omitted <==** ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-17-:** possible, which is borne out from the averments in the application, as to whether the applicant could have claimed the benefit under Section (2) of the Act, we find no satisfactory evidence to find that the applicant or her predecessor was cultivating the property as on 10.5.1971, the appointed day of the Vesting Act. During her cross examination PW1 deposed that she was undertaking seasonal cultivations in the property at the time of commencement of the Vesting Act. Although she deposed that she had been cultivating paddy in the dry land (“modan”), no document is produced to establish this fact. It is to be appreciated in the background of the assertive evidence given by RW1 that the applicant or her predecessors in title never cultivated the property and it remained a private forest. 13. It is also pointed out by the learned ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-18-:** Special Government Pleader that in Exts.A3 and A4 proceedings before the Taluk Land Board, Palakkad, in order to get exemption from the ceiling limit, the applicant and her predecessor had shown this property as a private forest. Therefore, it is contended that the applicants are not entitled now to contend that the property is not a private forest. Even if we take a view that there is no rule of estoppel operating against the respondents, we find that the Taluk Land Board exempted the property from their account on the basis of their plea that the disputed property was a private forest and if only the applicant succeeded in proving that she held the property within the ceiling limit, the Tribunal could have granted any relief to her. For that it must be established by the applicant that the property was qualified to be exempted either under Section 3(2) or Section 3(3) ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-19-:** of the Act. In the absence of any reliable evidence to find either that the applicants were cultivating the property as on 10.5.1971 or that the applicant or her predecessor intended to cultivate a property on the above date, we do not find any reason to hold that the respondents are entitled to claim any exemption under Section 3(2) or Section 3(3) of the Act. 14. The reasoning of the Tribunal mentioned in paragraph 11 is without any appreciation of evidence or consideration of the legal principles. Therefore, we find no reason to approve the finding of the Tribunal that the applicant is entitled to get exemption of 2.82 acres of land under Section 3(3) of the Act. 15. Respondents by way of a cross objection challenged the finding of the Tribunal that the entire property is a private forest. Having regard ## **M.F.A.No.34 of 2006 & C.O.No.30 of 2007** ## **:-20-:** to the nature of evidence as discussed above, we find no reason to accept the contentions in the cross objection, since the materials would go to show that the entire property is a private forest. So we find no merit in the cross objection. In the result, the appeal is allowed. The impugned order passed by the Tribunal is set aside. The original application is hereby dismissed. The cross objection also stands dismissed. All pending interlocutory applications are closed. Sd/- **A.HARIPRASAD JUDGE** Sd/- **T.V.ANILKUMAR** **JUDGE** ami/