State of Kerala represented by Principal Secretary (Forest & Wildlife), Government of Kerala; Custodian of Vested Forests, Aranya Bhavan, Forest Complex, Olavakkode, Palakkad - 2 v Augusty s/o Mathayi

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN MONDAY, THE 23[RD] DAY OF JANUARY 2023 / 3RD MAGHA, 1944** ## **MFA (FOREST) NO. 131 OF 2014** ## **AGAINST THE ORDER/JUDGMENTOA 42/2010 OF FOREST TRIBUNAL, KOZHIKODE** ## **PETITIONERS:** - 1 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY (FOREST & WILDLIFE), GOVERNMENT OF KERALA,THIRUVANANTHAPURAM. - 2 CUSTODIAN OF VESTED FORESTS - ARANYA BHAVAN, FOREST COMPLEX, OLAVAKKODE,PALAKKAD - 2. BY SRI NAGARAJ NARAYANAN, SPL.G.P FOREST ## **RESPONDENT:** AUGUSTY S/O.MATHAYI, NARAGATHMAKAL OF VELLATHODEIRUMBAKACHOLA, KANJIRAPUZHA, MANNARKKADTALUK - 678 591. BY ADV SRI.VINOD KUMAR.C THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 23.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MFA(Forest) No.131/2014** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------MFA(Forest) No. 131 of 2014 ------------------------------------------Dated this the 23[rd] day of January, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J** The applicant is concerned with 1 acre 20 cents in Sy.No.2059/4 presently in Palakkayam Village, Mannarkad Taluk, Palakkad District. The applicant obtained a total extent of 7 acres situated in Agali and Potassery village, which was obtained on leasehold rights, based on which, he claimed fixity of tenure and obtained a purchase certificate under the Kerala Land Reforms Act. The Forest Officials raised a dispute with respect to 4 acres of the said property, alleging vesting under the Kerala Private Forest(Vesting & Assignment) Act, 1971 (for brevity 'the Vesting Act'), against which a declaration was sought in OA No. 492/76 before the Forest Tribunal constituted under that Act. The OA was allowed considering the nature and characteristics of the property and later a settlement was made by the applicant, equally in favour of his sons, in the year 2000. Even after the declaration obtained from the Tribunal, the Forest Department persisted with their **MFA(Forest) No.131/2014** **3** objection regarding the northern bit of the property, when the applicant's son Mathews filed OA No. 12/2008 to protect his rights over the property. A Commission was also taken out, but on the report being filed it was realised that there was a defect in the survey number mentioned in the earlier OA. OA No.12/2008 was hence withdrawn as not pressed with liberty and the father himself filed a petition to correct the survey number in OA No. 492/76 which stood allowed. Admittedly the 4 acres settled in the name of the applicant's sons have been exempted from vesting under the Vesting Act. 2. It was still later, that the Forest Officials proceeded against the 1 acre 20 cents, now notified, which was part of the 3 acres earlier left out and forming a part of the larger extent of 7 acres. The applicant moved the present application and contended that the Commission report in the earlier OA, ie, OA 12/08, which was not pressed, reports on the remaining 3 acres also and hence is sufficient to bring forth the aspect of cultivation in the property now sought to be vested. The applicant contended that the application scheduled property does not satisfy the definition of a private forest and is not covered by the Madras Preservation of Private Forests Act, 1949 (for brevity 'the MPPF Act'). The land was put under cultivation even prior to 10.05.1971, the **MFA(Forest) No.131/2014** **4** appointed day and in any event the applicant is entitled to exemption under S.3(2) or (3) of the Vesting Act. 3. The Divisional Forest Officer, Mannarkad, resisted the application asserting vesting under a notification dated 10.10.1977 of the lands which form part of a larger extent called _Anakkaranam Malavaram._ The respondents also disputed the title, possession and cultivation in the property and alleged that the application under S.8 is hopelessly time barred. 4. The Tribunal found the question of limitation in favour of the applicant and held the application to be maintainable. We find no reason to interfere with the said aspect since the Tribunal's finding was based on the fact that there was no evidence adduced by the respondents regarding the publication of the notification as contemplated under the statutory rules. The Tribunal having examined the scope and ambit of the Vesting Act, found that the scheduled property lies within Malabar District and is a part of a _Malavaram_ having a contiguous area exceeding 100 acres thus governed by the MPPF Act. As to the identity of the property, the Tribunal relied on Annexure A3 and A3(a) the Commission report and the sketch of the property filed in OA 12/2008. It was found that even according to the deposition of RW1 there is no private forest **MFA(Forest) No.131/2014** **5** on the four boundaries of the application scheduled property and that the property is a part of the 7 acres of land held by the applicant. The claim of cultivation, as raised by the applicant, was also found to be existing as on the appointed day. The finding of the Tribunal being that the property was not a private forest, despite finding the land to have been cultivated with fugitive crops as on 10.05.1971, it was found unnecessary to go into the question of whether an exemption has to be granted under S.3(2) or 3(3) of the Vesting Act. 5. Sri. Nagaraj Narayanan, learned Special Government Pleader (Forest) challenged the reliance placed on the earlier Commission report and pointed out that the identity of the property scheduled, is not clearly discernible, specifically with reference to the purchase certificate. The survey number noticed by the Commissioner and that indicated in the purchase certificate differs. Learned Counsel Sri. C Vinod Kumar appearing for the respondent on the other hand points out that the mistake is an inadvertent one and the order in the earlier OA clearly indicated that the property which was lying as one compact holding of 7 acres was in Sy.No.2059, while the survey number shown by mistake in the purchase certificate is 2052. The Village Officer was examined before the Tribunal who also stated from the records that **MFA(Forest) No.131/2014** **6** the survey number shown in the purchase certificate is a mistake. 6. We have seen the Commission report filed in OA No.12/2008. Admittedly only 2 acres was the subject matter of OA 12/2008 and the reliance placed on the Commission report, is on the premise that the entire 7 acres were inspected and the nature and lie reported by the Commissioner. We see from the report, as also the testimony of the Commissioner (PW2) that different shades were given to the property which is not seen from Ext.A3(a) sketch produced in the OA; which is a photocopy. We also find difference in the boundaries as spoken of in the Commission report, from that indicated in the purchase certificate, at least on two sides; the north and the east. It is also pertinent that the purchase certificate shows a different survey number, the original of which was produced as Ext.A1. It is not for the Village Officer to rectify the mistake in the purchase certificate by way of oral testimony on a reference to the records found in the village office. The Land Tribunal has to make suitable amendments in the purchase certificate. 7. We refer to the decision of the Hon'ble Supreme Court in _**Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416]**_ which held so: **MFA(Forest) No.131/2014** **7** “ _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.”_ ## _[underlining by us for emphasis]_ 8. The identity of the property is very crucial, insofar as determining entitlement to a declaration under S.8 of the Vesting Act. The Commission report relied on was in another OA, which was not pressed by the applicant therein. The property in the said OA was also a different one, though it existed as one compact holding, along with the property scheduled herein, as on the appointed day under the Vesting Act. It is only appropriate that the matter be remanded back to the Tribunal and the applicant also be directed to rectify the purchase certificate, for which purpose the Tribunal would also hand back the original, on an application made by the applicant, for the purpose of such correction. It is also made clear that, while considering the matter afresh, the Tribunal has to keep in mind that the entire property of 7 acres was owned and possessed by the applicant as on 10.05.1971, the appointed day under the Vesting Act. The adjudication as to whether there is a **MFA(Forest) No.131/2014** **8** cultivation or an intention to cultivate, if the scheduled land is found to be a private forest, has to depend upon the cultivation or the intention to cultivate, as on the appointed day under the Vesting Act. The earlier order with respect to the exemption granted to 4 acres definitely assumes significance in considering the intention to cultivate. The Tribunal shall restore the OA to its file and consider the matter afresh and permit the applicant to take out a Commission as also enable rectification of the purchase certificate, if applications are filed for the same. All questions are left open and the matter shall be considered based on the evidence already led and that adduced before the Tribunal after remand. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** jma