State of Kerala v. Chellamma (deceased) and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022 / 26TH KARTHIKA, 1944 MFA (FOREST) NO. 140 OF 2007** **AGAINST THE ORDER DATED 29.03.2007 IN O.A.NO.3/1999 OF THE** ## **FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/RESPONDENTS:** - **1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM.** - **2 CUSTODIAN OF VESTED FORESTS OLAVAKKODE, PALAKKAD DISTRICT.** **BY SRI.NAGARAJ NARAYANAN, SPL.GOVERNMENT PLEADER BY ADV.SRI.DEEPAK B.** ## **RESPONDENTS/APPLICANTS:** - **1 CHELLAMMA, W/O.LATE RAMASWAMY CHETTIAR (DIED) IT IS RECORDED AS PER ORDER DATED 12/2/2021, VIDE IA 1/2020, THAT THE 1ST RESPONDENT DIED** - **2 K.R. BALAKRISHNAN, S/O. RAMASWAMY CHETTIAR.** - **3 K.R. JAYALAKSHMI D/O. RAMASWAMY CHETTIAR.** - **4 K.R. CHANDRAN SO. RAMASWAMY CHETTIAR.** - **5 K.R.RAGHAVAN SO.RAMASWAMY CHETTIAR.** **(THE RESPONDENTS ARE RESIDING AT KARIMPUZHA THERUVU, KARIMPUZHA AMSOM, DESOM, OTTAPALAM TALUK. THE RESPONDENTS ARE REPRESENTED BY THEIR POWER OF ATTORNEY HOLDER MOHAMMED, S/O. MOIDEEN, VALLIKKADAN, POMBRA DESOM, ELUMBULASSERY AMSON, OTTAPALAM TALUK)** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.JIBU P THOMAS** **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON** - **17.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.F.A.(Forest) No. 140 of 2007 **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. --------------------------------------------M.F.A.(Forest) No.140 of 2007 --------------------------------------------Dated this the 17[th] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** **The State is in appeal against an order of the Forest Tribunal, which declared the properties scheduled in the O.A filed before it under S.8 of the Kerala Private Forests [Vesting and Assignment] Act, 1971 [for brevity, 'the Vesting Act'] were not private forests as on the appointed day. A consequential direction was also given to restore the property to the applicants.** **2. The applicants are the wife and children of one Ramaswamy Chettiar, who had obtained possession and title of the property by Exts.A2 & A3 assignment deeds of the S.R.O, Parli. It was asserted that the properties having been obtained in 1957 and 1960, the predecessor-ininterest had cultivated the same, took loans for the purpose of cultivation, on the mortgage of the** M.F.A.(Forest) No. 140 of 2007 **3** **properties and as on the appointed day it did not remain as a private forest. The applicants also claimed that the scheduled properties were not covered by the Madras Preservation of Private Forests Act, 1949 [for brevity, 'the MPPF Act']. The respondents argued that the disputed properties are part of a huge malavaram (slope of a hill) called the Kozhikkodan malavaram measuring 10.95 hectares, the whole of which stands vested in the Government. The properties stood notified as VFC Item No.78 of a notification dated 29.07.1977. It was argued that the application is barred by limitation, the scheduled lands are full of undergrowth and not cultivated as on 10.05.1971 as also bounded on three sides partly by vested forests. The** _**locus standi**_ **of the applicants to seek a declaration was also challenged on the ground that they were not owners of the properties as on the date of vesting.** **3. The Tribunal found that the application is not barred by limitation, especially noticing that the notification was not published as provided** M.F.A.(Forest) No. 140 of 2007 **4** **in the Kerala Private Forests [Vesting and Assignment] Rules, by publishing it in six offices and two newspapers. Even the date of publication was not disclosed and evidence of RW1 was termed as casual; without testifying on any of the details of the publication. We find no reason to interfere with the said ground. The ground of** _**locus standi**_ **we see from the order, was not considered. Definitely the same was not worthy of consideration, especially when the predecessor-in-interest of the applicants owned the land as on the appointed day.** **4. On the question of proof of exclusion under S.2(f), the Tribunal found that though the properties are situated within the erstwhile Malabar District, there was no inclusion under the MPPF Act claimed by the respondents. Despite the clear averment in the original application that the disputed properties were not covered under the MPPF Act; there was no denial by the DFO in the counteraffidavit. On the contrary, it was stated in the counter-affidavit that the extent of Kozhikkodan malavaram is 10.98 hectares, which falls below 100** M.F.A.(Forest) No. 140 of 2007 **5** **Acres. The MPPF Act applied only to private forests having a contiguous area exceeding 100 Acres. In such circumstances, we affirm the finding of the Tribunal with regard to the scheduled lands being not covered under the MPPF Act.** **5. The Tribunal then examined the question as to whether the scheduled lands come under the definition of S.2(f)(1)(ii) of the Vesting Act and can be termed a forest area. The Tribunal referred** _**-**_ **to** _**State of Kerala v. Anglo American Direct Tea Trading Co.Ltd. (1980 KLT 215)**_ **, which held that the term private forest is used in the sense of lands kept for agricultural purposes and on which human skill labour and resources have been spent. The Tribunal examined the oral and documentary evidence to prove the assertion of the applicants that the lands were held under fugitive cultivation before and on the appointed day. Applicants admittedly were the legal heirs of Ramaswamy Chettiar, who obtained the properties by Exts.A2 & A3, respectively in the years 1957 and 1960. As per Ext.A2 he purchased 8 items of properties in 1957** M.F.A.(Forest) No. 140 of 2007 **6** **and as per Ext.A3, 9 items in 1960. There were two items scheduled in the O.A, of which the first item was found to be item No.9 in Ext.A3 and the second item scheduled, item No.7 in Ext.A2. Exts.A2 & A3 are** _**kanam**_ **assignment deeds executed long before the appointed day and there is clear recital in the said document that there was cultivation in the property, at the time of conveyance. Ramaswamy Chettiar had also the liability to pay rent to the original owners, which again probabalise the contention of cultivation by Ramaswamy Chettiar.** **6. The Tribunal looked at Exts.A4 to A11 documents, which evidenced transactions with the Bank, further validating the contention of cultivation. Ext.A4 is a registered continuing mortgage bond executed by Ramaswamy Chettiar in favour of the President of a Co-operative Society, which make mention of the mortgaged properties and include Exts.A2 & A3 title deeds. Item No.10 in the A schedule to Ext.A4 is item No.2 in the O.A and item No.22 in the same schedule of Ext.A4 is item No.1 in the O.A. Ext.A4 mortgage deed is of the** M.F.A.(Forest) No. 140 of 2007 **7** **year 1962 long before the appointed day and though there was no mention of the purpose for which the loans were taken, the vocation of the mortgagor was shown as 'agriculture'. PW2, the son of Ramaswamy Chettiar, testified that the properties were purchased for the purpose of cultivation and the same was cultivated after taking loan from Mangalamkunnu Service Co-operative Bank. Ramsawamy Chettiar died in the year 1969 and PW2 was a major as on the appointed day, whose vocation is shown as 'weaving' in the deposition. Ramaswamy Chettiar had executed various documents and there were also documents executed affirming the mortgage made by the said Ramaswamy Chettiar. Exts.A5 & A6 are documents confirming the deposit of title deeds, executed by the applicants, all of whom were major members of the family as on 14.05.1973, after the death of Ramaswamy Chettiar. Therein the vocation of the various parties are shown as 'agriculture' and 'weaving', making it clear that atleast some of the legal heirs continued the agricultural operations of their predecessor-in-interest. Ext.A7** M.F.A.(Forest) No. 140 of 2007 **8** **to A9 respectively dated 31.01.1963, 04.01.1965 & 02.01.1964 are documents by which cash credit facility was availed from the very same Cooperative Society by Ramaswamy Chettiar. They specifically speak of the facility having been availed for agricultural purposes and the vocation of the borrower is shown as agriculture. Ext.A10 is a chitty recovery deed of 24.12.1961, in which three persons have joined together and their vocations are shown clearly in the document. The first party to the said document is one B.Karuppan Chettiar carrying on 'business', the 2[nd] party K.N.Lakshmanan Chettiar carrying on 'weaving' and Ramsawamy Chettiar engaged in 'agriculture'. A11, another document executed by Ramaswamy Chettiar also indicates that the cash credit having been availed for agricultural purposes. We find the reliance placed on these documents by the Tribunal to be perfectly valid to find the vocation of the owner of the property scheduled in the O.A; which vocation was continued atleast by some of his legal heirs after his death.** M.F.A.(Forest) No. 140 of 2007 **9** **7. The Tribunal also relied on the oral evidence adduced on behalf of the applicants. PW1 was the power of attorney holder of the applicants, however, PW2, the 2[nd] applicant, was also examined, who spoke of his personal knowledge of the property having been cultivated by his father before the appointed day, which was continued by the heirs. PW3 & PW4 are nearby residents, who asserted that they had been employed in agricultural activities in the said property by Ramaswamy Chettiar. They were aged respectively, 63 and 65 in 2007, when they testified before Court; hence major adults during the life time of Ramaswamy Chettiar and also on the appointed day. It was also deposed that the agricultural operation in the property ceased when the forest authorities obstructed it. According to PW3, for about 25 to 30 years, there was no cultivation in the land. PW4 says that for the last 20 years there is no agricultural operations carried on in the property, which justifies the undergrowth in the property, as reported by the Commissioner. The learned Tribunal found that there** M.F.A.(Forest) No. 140 of 2007 **10** **is ample evidence to show cultivation as on the appointed day. The status of the property as reported by the Commissioner, which is pursuant to an inspection conducted in 2000, when the cultivation in the land had ceased with the advent of the Vesting Act, is inconsequential. We are in perfect agreement with the findings of the Tribunal, which enabled the declaration granted of the scheduled lands being not private forests; perfectly in order.** **We uphold the order of the Tribunal and dismiss the appeal leaving the parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **sp/17/11/2022**