State of Kerala represented by the Principal Secretary (Forest & Wildlife), Thiruvananthapuram v. George S/o John; Saramma W/o George; Aniyan S/o John

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN ``` ``` & ``` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023/ 4TH PHALGUNA, 1944 ``` ``` MFA (FOREST) NO. 94 OF 2015 ``` ``` AGAINST THE ORDER IN O.A.NO.69/2009 OF FOREST TRIBUNAL, ``` ``` KOZHIKODE ``` ## `- PETITIONER/APPELLANT :` - `1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY,(FOREST & WILD LIFE), THIRUVANANTHAPURAM.` - `2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.` ``` BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOREST ``` ## `- RESPONDENTS/PETITIONERS :` ``` 1GEORGE S/O.JOHN, KAVILPADATH HOUSE, CHENNAMPALLIYAL, KUNDUVAMPADAM, PALAKKAD, PIN - 678 633. ``` - `2 SARAMMA W/O.GEORGE KAVILPADATH HOUSE, CHENNAMPALLIYAL,KUNDUVAMPADAM, PALAKKAD - 678 633.` - `3 ANIYAN S/O.JOHN, KAVILPADATH HOUSE, CHENNAMPALLIYAL,KUNDUVAMPADAM, PALAKKAD. 678 633.` ``` BY ADVS. SRI.D.KRISHNA PRASAD V.R.KESAVA KAIMAL SMT.MINI V.MENON SMT.S.SANTHY SRI.P.VISHNU PRASAD ``` ``` THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 23.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **M.F.A (Forest) No.94 of 2015** **::2::** ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------------------------M.F.A (Forest) No.94 of 2015** **------------------------------------------------------Dated this the 23[rd] day of February, 2023** ## **JUDGMENT** ## **K.Vinod Chandran, J.** The applicants were concerned with 1.90 acres of property comprised in a total extent of 12.70 acres which was purchased by the applicants as per three separate documents marked as Exts.A2, A4 and A6 in the year 1979. The properties belonged in janmam to Njarakkottu Mootha Nair Sthanam which was outstanding in the possession of Kayarat Puthan Veedu on a kanam demise. The said family assigned their rights to one Kandayi in 1961 as per Ext.A9. Kandayi enjoyed the property, along with his brother Kunju, and after the latter's death along with his legal representatives. Together they assigned the land to the applicants. An extent of 4.69 acres of land situated to the north of the application scheduled property was notified as vested forest under the Kerala Private Forest (Vesting & Assignment) Act, 1971 (for short the Vesting Act) against ## **M.F.A (Forest) No.94 of 2015** ## **::3::** which Kandayi approached the Forest Tribunal under Section 8 of the Vesting Act. By Ext.B3 order the Tribunal declared the land to be not capable of vesting. The remaining extent of land measuring 6.11 acres situated on the north of the property scheduled in the earlier O.A also belong to the applicants, on which there was no vesting alleged. 2. The applicants contended that the disputed property is not comprised within an area governed by the Madras Preservation of Private Forest Act, 1949 (for short the MPPF Act) and even as on 10.05.1971 the property was planted with cashew nut trees. In 1961, when Kandayi purchased the property it was a dry land having few trees which were removed to raise the cashew plantation, which was commenced long prior to 10.05.1971. It was specifically alleged that the possession and enjoyment of the property was disturbed by the Forest Department in the year 2009, alleging vesting. The applicant alternatively claimed exemption under Section 3(2) and (3) of the Vesting Act. 3. The Divisional Forest Officer, Palakkad filed counter statement resisting every ground raised by the **M.F.A (Forest) No.94 of 2015** **==> picture [23 x 8] intentionally omitted <==** applicants. According to him, the application scheduled property was notified as vested forest on 18.03.1978 and the whole malavarm vested with the government with effect from 10.05.1971. The applicants hence ought to have approached the Tribunal far earlier and as of now the application is barred by limitation. The predecessor-ininterest did not include this property in the earlier notification and hence he is deemed to have waived his right to apply for a declaration on this property. As on 10.05.1971 the property was a pakka forest land and there existed no cultivation thereon. The identity, title and possession of the applicants were seriously disputed. 4. The Tribunal raised issues on limitation, the nature of the property and the entitlement to the declaration of exemption under Section 3(2) and (3) of the Vesting Act. The aspect of limitation was found in favour of the applicant since there was no notification in accordance with the statutory rules. It was found that that there was no pleading regarding the land being governed by the MPPF Act. From the Commission Report it was found that the application scheduled property does not have the characteristics of a ## **M.F.A (Forest) No.94 of 2015** **==> picture [23 x 8] intentionally omitted <==** forest and hence would not come within the definition of a private forest under Section 2(f)(1)(ii). 5. The learned Special Government Pleader Sri.Nagaraj Narayanan argued on the ground of limitation especially pointing out the earlier proceeding under the Vesting Act. It is argued that at the earlier instance the owners had not sought for declaration on the presently scheduled properties, which was comprised in the larger extent owned by them. Hence, the owners should be deemed to have waived their rights with respect to the said property, which cannot be revived in the hands of the assignees, the applicants herein. 6. The learned Counsel for the applicants, Sri.V.R.Kesava Kaimal however sought to uphold the order of the Tribunal. The learned Counsel would also specifically draw our attention to the purchase certificates produced as Exts.A3 and A5 before the Tribunal and that produced in the appeal, with I.A.No.1 of 2023. It is argued that the decision of the Honble Supreme Court in State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260] squarely applies to absolve the property from vesting. On the specific ground ## **M.F.A (Forest) No.94 of 2015** ## **::6::** raised by the State it is pointed out that the notification with respect to the presently scheduled property came later to the order in the earlier application. 7. The ground of limitation cannot be accepted especially since the notification was not published in accordance with the statutory rules. We also have to notice that the dispute in the earlier proceeding before the Tribunal was settled by Ext.B3 order, which was dated 16.11.1977. The presently scheduled properties were notified, even according to the respondents, only by Ext.B1 dated 18.03.1978. The interference to the possession and enjoyment of the land, according to the applicants, was made by the Forest Officials on 20.11.2009. Hence, there was no reason for the predecessor-in-interest who had held the larger extent within which was comprised the presently scheduled property, to seek a declaration with respect to the property which is the subject matter of dispute in the present O.A. 8. As far as the coverage under the MPPF Act, it has been specifically found by the Tribunal that the disputed property is stated to be a part of palamala malavaram, the **M.F.A (Forest) No.94 of 2015** ## **::7::** total extent of which has not been specified in the counter statement. RW1, the Forest Range Officer, deposed that the total vested forest would come to 93.89 acres and along with the exempted areas it would come to 200 acres. However, the testimony was not supported by any pleading and even Ext.B1 notification indicated only an extent of 28.6571 hectares having been notified as vested. The Tribunal was hence perfectly correct in holding that the land is not covered under the MPPF Act. 9. The Tribunal then considered the definition of private forest under 2(f)(1)(ii) which deals with private forest within the district of Malabar not governed by the MPPF Act. Insofar, the definition clause under Section 2(f)(1)(ii) relying on State of Kerala v. Anglo American Direct Tea Trading Co. Ltd. [1980 KLT 215], it was held that the term has to be understood in common parlance. The Tribunal looked at the Commission Report and the plan, Exts. C1 and C2 to find that the scheduled property and the larger extent within which it is comprised is fully cultivated. The properties scheduled in A2, A4 & A6 was identified by the Commissioner and it lies on the field without any ## **M.F.A (Forest) No.94 of 2015** ## **::8::** demarcation and has mud bunds on the three boundaries, except on the south, where there is a water channel. The property predominantly lies as a rubber plantation, which is about six to seven years of age and there existed fruitbearing trees, coconut, jack fruit, mango and plantains in the disputed property. There was also a residential building in the property in which the applicants 1 and 2 were residing. There were no forest species found in the property and the land does not have the characteristics of a forest. 10. Two independent witnesses were examined on behalf of the applicants, PWs. 2 and 3, both persons owning lands near to the scheduled property, testified to actual cultivation having been carried out in the scheduled property. The Tribunal also noticed Ext.B3 order with respect to the property to the north of the presently scheduled properties, which was found to be a cashew plantation. Ext.A10 to A12 proceeding of the Land Board also was taken note of, to find that the ceiling proceedings against the predecessor-in-interest, Kandayi, the declarant therein, were dropped. It was found that the property has no characteristics of a private forest and there is rampant ## **M.F.A (Forest) No.94 of 2015** ## **::9::** evidence of human skill, labour and resources having been used for agricultural operations. The finding of the Tribunal is to the effect that the disputed land does not lie as a private forest and we also see from the evidence led that there is ample proof of cultivation in the property. 11. In addition to the above we reckon the purchase certificates produced as Exts.A3 and A5 and that produced along with present appeal in I.A.No.1/2023. The purchase certificates clearly indicate the lands having been found enabled for fixity of tenure under the Land Reforms Act. Section 72K of the the Land Reforms Act, makes the purchase certificate conclusive proof of title to the lands. In Mohammed Basheer (supra) it was held that the purchase certificate automatically exempts lands under the Vesting Act. 12. We hence uphold the order of the Tribunal and dismiss the appeal, leaving the parties to suffer their respective costs. We also direct the Registry to return the original purchase certificates, Exts. A3 & A5 and the one produced in the appeal by I.A. No. 1 of 2023 as aslo the original **M.F.A (Forest) No.94 of 2015** ## **::10::** proceedings of the Land Tribunal produced as Exts. A10 to A12 to the learned Counsel for the respondent, after getting due acknowledgement and ensuring that the copies of the documents are available in the records, which shall be retransmitted to the Tribunal. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- **C.JAYACHANDRAN, JUDGE** **SMA** ## **M.F.A (Forest) No.94 of 2015** ## **::11::** ## `APPENDIX` ``` RESPONDENT ANNEXURES :- ``` ``` Annexure A1CERTIFICATE OF PURCHASE BEARING NO. 14/1980 ISSUED BY THE LAND TRIBUNAL, SREEKRISHNAPURAM DATED 15.09.1980 ```