Vallvassery Mammootty and Charathangandi Kunhami (W/o Late Moidu Valluvassery) v The State of Kerala and The Custodian of Vested Forests

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** **MFA (FOREST) NO. 88 OF 2007** **OA 21/1996 OF FOREST TRIBUNAL, KOZHIKODE** ## **APPELLANTS/APPLICANTS** 1 VALLVASSERY MAMMOOTTY, S/O LATE MOIDU, P.O.THONDERNAD, VIA VELLAMUNDA, WAYANAD. 2 CHARATHANGANDI KUNHAMI WO.LATE MOIDU VALLUVASSERY, P.O. THONDERNAD, VIA.VELLAMUNDA,, WAYANAD. BY ADVS. SRI.S.M.PRASANTH DR.K.BALAKRISHNAN SRI.K.RAMAKUMAR SR. ## **RESPONDENTS/RESPONDENTS** 1 THE STATE OF KERALA & ANOTHER CHIEF SECRETARY, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS. BY ADV SRI.BABU JOSEPH KURUVATHAZHA SRI.NAGARAJ NARAYANAN SPL.GP **THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MFA(Forest) No.88 of 2007** **2** **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ---------------------------------------M.F.A.(Forest) No.88 of 2007 --------------------------------Dated : 15[th] November, 2022** ## **JUDGMENT** ## **K.Vinod Chandran, J.** **The appellants approached the Forest Tribunal under Section 8 of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, the Vesting Act). They sought a declaration in respect of 3.50 acres of land comprised in Survey No.710/2A5 of Thondangadu Village of Mananthavadi Taluk, Wayanad District. According to them, the property comprised in 10.50 acres of land, which belonged to one Sekharan Nair, was purchased by Moidu and Vazhayil Ali who carried out partition of the property; in which the former was allotted 7 acres of land and the latter 3.5 acres. The appellants are the sons and legal heirs of Moidu on whom the property devolved on the death of Moidu in** **MFA(Forest) No.88 of 2007** **3** **1986. The property was cultivated with cash crops by the father of the applicants till his death and later they continued such cultivation. They asserted that the land under cultivation was not a private forest and even if it comes within the Madras Preservation of Private Forest Act, 1949 (for brevity, the MPPF Act), it is exempted under Section 3(2)or(3) of the Vesting Act.** **2. The respondents claimed that the land covered under the MPPF Act, was a private forest comprised in 86.138 hectares. Out of the total scheduled land, one acre was claimed to be a pakka ever green forest with dense vegetation having trees with wide girth and there was no seasonal crops in the said area. The remaining two acres is treated as heterogeneous miscellaneous species plantations as on 1994. In 1977, a notification was issued excluding the said land and in 1992 cairns were put up which was destroyed by encroachers. The alleged possession of property by way of a** **MFA(Forest) No.88 of 2007** **4** **settlement deed was hit by the provisions of the MPPF Act; the transfer of which land required sanction from the District Collector.** **3. The Tribunal considered the aspect of exclusion and exemption from the Vesting Act. Ext.A1 was an assignment deed of 12.10.1970 executed by one Sekharan Nair in favour of Valluvassery Moidu and Vazhayil Ali. The specific recital was with respect to the vendor of the said deed having obtained a lease from Bhagavathikavu Devaswom which had '** _**janmam'**_ **rights in the property. There was no document produced; it was only an oral lease, which was also alleged to be prior to 1.1.1996. As per Ext.A1 deed, it was noticed that the recitals regarding an oral lease cannot be believed for more than one reason. The Tribunal observed that when the scheduled land is a private forest, for the purpose of transfer, the MPPF Act requires a consent from the District Collector which is not seen produced by the applicants. The** **MFA(Forest) No.88 of 2007** **5** **oral lease is said to have been obtained from one of the '** _**Ooralans**_ **', (hereditary administrator of a temple) of the Dewaswom, which does not bind the Devaswam. Again, it was found that a lease of Devaswam property would require sanction from the Commissioner under the the Hindu Religious and Charitable Endowments Act; which provision we notice under Section 29 of that Act. The recitals regarding an oral lease in Ext.A1 was held to be a self serving statement, without any credibility. PW1, in the box testified that the Devaswam granted the lease in the year 1969, again, contrary to the stand taken in the application and the specific provision in the Land Reforms Act. Section 74 of the Land Reforms act prohibited future tenancies in respect of any land after 01.04.1964. There was also no evidence led before the Tribunal of rent paid to the Devaswam by Sekharan Nair, as required in Ex.A1. We find absolutely no reason to interfere with the findings of the Tribunal that Ext.A1** **MFA(Forest) No.88 of 2007** **6** ## **lacks credibility.** **4. Ext.A2 partition deed between Moidu and Ali was effected on 28.3.1983 and the property was described as Oodapparakunnu; a hillock, indicating the probability of it being a forest land. Ext.A5, of the year 1996 and Ext.A6 dated 17.4.1971, a photocopy, are land tax receipts, were held to be not proof of title. The tax payment as rightly found by the Tribunal does not in any way establish the title of the person who paid it and Ext.A6 was also a photocopy. There was no explanation as to why the original was not produced. Ext.A7 is a sketch produced by the applicant purportedly in conformity with Rule 3(2) of the Kerala Private Forests (Tribunal) Rules, 1972. The Tribunal looked at the sketch to find that there was no identification of the scheduled land possible from the sketch and even went to the extent of saying that it was a clear attempt to mislead the Tribunal; thus presumably a trumped up sketch. We** **MFA(Forest) No.88 of 2007** **7** **also see from the order of the Tribunal that the person who prepared the sketch was not examined before the Tribunal. Again, we confirm the findings of the Tribunal with respect to Exts.A2, A5, A6 and A7.** **5. The applicant then raised a contention regarding Section 7D of the Land Reforms Act, which was negatived by the Tribunal. The Tribunal noticed that the lease was alleged to have been made in the year 1969 by PW1, in the box. As per Section 7D, the occupation of such land for not less than two years, within a period of 12 years, immediately preceding the 11[th] day of April 1967 was to be established. When the lease is of 1969, there is no question of application of Section 7D.** **6. The Tribunal also considered the claim of cultivation carried on in the property by the applicants and their predecessors. Though the claim was of cash crops being cultivated in the property, there was not even a single coffee or pepper vine** **MFA(Forest) No.88 of 2007** **8** **found in the property by the Commissioner. PW1, the first applicant, who testified on behalf of both the applicants changed his stand in the testimony before the Tribunal. He resiled from the earlier contention that the plantation was of coffee and pepper and also admitted that no tapioca or seasonal crops were cultivated in the property. The assertion now was of lemon grass cultivation, for which the applicants relied on the observation of the Commissioner that about 2.50 acres of the disputed property was covered with grass. The Forest Range Officer who was examined as RW1 testified, vehemently that the grass found in the property was dense due to natural propagation of seeds and the mere existence of lemon grass amongst the various varieties of grass do not prove cultivation with the aid of human skill. RW1 also asserted that the grass found were of the heterogeneous miscellaneous species, including lemon grass. These were grassy patches naturally** **MFA(Forest) No.88 of 2007** **9** **formed for the purpose of building an ideal habitat for wild herbivorous animals. These are patches commonly seen in the forest area to maintain ecological balance and are prevalent in ever green** **forests. The respondents also pointed out an elephant route and bison route through the property, which leads to the deep forest. The Tribunal found that there was no systematic growth of grass in the property and there is no cultivation as on 10.5.1971. The applicants also did not have a clear case as to the nature of cultivation carried on. The contention raised of systematic lemon grass cultivation stands negated both by the prevaricating stand of the applicant who was examined as PW1 and the actual status of the land found by the Commissioner.** **7. The Tribunal then looked at the receipts issued by the local body for payment of licence fee for distillation of lemon grass, which was in the name of Moidu, PW1's father. The Tribunal held that** **MFA(Forest) No.88 of 2007** **10** **the there is no evidence to show that the licence fee paid was for the purpose of distilling the lemon grass found in the schedule property and more pertinently, it was for the period 1976-77 and 1980-81, long after the appointed date of the Vesting Act, which was on 10.5.1971. Ext.A3 a letter sent by the DFO, Thalassery, regarding 1½ acres of property having been found to be a forest, was held to be not binding on the Custodian under the Vesting Act. The licence fee paid for distillation and the communication issued by the DFO was held to be of no avail to the applicant, since the property to which those documents related was not evident from the said documents. Ext.A4 dated 4.8.1995 by the District Collector, Wayanad, regarding demarcation, laying of cairns and ordering** _**status quo**_ **was held to be inconsequential for reason of the District Collector being not an authority entitled to enquire into the disputes arising under the Vesting Act.** **MFA(Forest) No.88 of 2007** ## **11** **8. The Commissioner had filed Ext.C1 report and Ext.C2 plan. Out of the disputed property, one acre was found to be pakka forest with trees aged about 25 to 60 years lying as a continuous stretch towards south-west of the disputed property. The said dense forest of one acre was marked specifically in the plan and the Commissioner reported trees aged about 60 years which were forest species and were naturally grown trees. The other portions of the property was reported to have been lying as grassy patches and there was no cultivation with the aid of human skill and labour, as reported by the Commissioner. For the aforesaid detailed findings as recorded by the Tribunal, we find no reason to grant exemption on the ground of cultivation of the property, which was not proved by the applicants.** **9. The total extent of the property lying within the survey sub-division measured 69.9999 hectares which comes to nearly 175 acres and hence,** **MFA(Forest) No.88 of 2007** **12** **clearly covered under the definition of 'private forest' under the MPPF Act; being within erstwhile Malabar District and lying as forest land. The Tribunal fond that the there was no exclusion possible under clause (A) to (D) of Sec.2(f)(1)(i). The lemon grass cultivation even if deemed to be an agricultural activity, there was no evidence of the same having been carried out in 1971, as on the appointed day. It was noticed that RW1, Range Officer deposed that PW1 along with his men attempted to trespass into the vested forest and destroyed cairns put up by the forest officials, against which two crimes were registered as O.R. Nos.5 and 6 of 1992, which pendency of cases was admitted by PW1. The contention regarding the dense forest of one acre being retained as such for the purpose of firewood used in distillation of lemon grass, was rejected for reason of the systematic lemon grass cultivation having not been established. Thus the contention that the said area** **MFA(Forest) No.88 of 2007** **13** **be excluded as an ancillary area was also rejected. The exclusion having been declined, the Tribunal turned to the contention of exemption under Section 3(2) & (3) which was rejected for reason of there being no cultivation in the land, which was remaining as forest and grassy patches as on the appointed day. We find absolutely no reason to exempt the property under Section 3(2)&(3) .** **10. Faced with the above situation, Sri. S.M. Prasanth, the learned counsel for the appellant argued that the predecessors-in-interest of the applicants was issued with a purchase certificate under the Land Reforms Act, produced as Ext. A1, in this MFA. Learned Counsel relied on** _**State of Kerala v. Mohammed Basheer [(2019) 4 SCC 260]**_ **to argue that the purchase certificate issued under Section 72K is conclusive proof of title and such lands are exempted under the Vesting Act. The decisions in** _**Kunjanam Antony v. State of Kerala [(2003) 3 SCC 221]**_ **and** _**State of Kerala v. Popular**_ **MFA(Forest) No.88 of 2007** **14** _**Estates [(2004) 12 SCC 434]**_ **were under Chapter III of the Land Reforms Act while** _**Mohammed Basheer**_ **(supra) specifically looked at S.72K of the Land Reforms Act coming under Chapter II. The Purchase Certificate issued under Section 72K, according to him, is conclusive proof of the land being not a private forest, and the exemption under Section 3(1)(vii) of the Land Reforms Act would not definitely be applicable. It was argued that the definition of private forests under the Land Reforms Act is different and distinct from that under the Vesting Act. The issuance of a Purchase Certificate being statutorily conclusive as per Section 72K, there is a presumption that the property is not a private forest. Though the Government is not in an adversary position, they have a right to file an appeal from the order of the Tribunal, as noticed in** _**Mohammed Basheer**_ **(supra). The Government has not filed any appeal from the proceedings before the Land Tribunal,** **MFA(Forest) No.88 of 2007** ## **15** **which led to the issuance of the purchase certificate.** **11. The learned Special Government Pleader [Forests] Sri.Nagaraj Narayanan pointed out a number of decisions of this Court to contend that a purchase certificate issued under the Land Reforms Act would only be a piece of evidence and not conclusive proof of the cultivation carried on in the subject property. The position has been affirmed by two decisions of the Hon'ble Supreme Court in** _**Kunjanam Antony**_ **and** _**Popular Estates**_ **(both supra)** _**. Mohammed Basheer**_ **(supra) was a subsequent decision of the Hon'ble Supreme Court which, it is argued, is** _**per incurium**_ **. It is pointed out that** _**Mohammed Basheer**_ **(supra) noticed** _**Kunjanam Antony**_ **(supra) but distinguished it on the ground that the earlier decision did not consider the conclusiveness of a purchase certificate issued under S.72K of the Land Reforms Act. In fact in** _**Kunjanam Antony**_ **(supra) the applicant raised the** **MFA(Forest) No.88 of 2007** **16** **contention that the land alleged to have vested under the Vesting Act, had been exempted from the ceiling proceedings under the Land Reforms Act by the Taluk Land Board, on the ground that it was a rubber plantation. That was a better ground since, therein, a statutory authority had found that the property was cultivated, which absolves it from vesting under the Vesting Act. Even then it was held to be only a piece of evidence and not conclusive.** _**Popular Estates**_ **(supra) also considered an exemption granted by the Taluk Land Board, on the ground of the land being a plantation and the Supreme Court noticed that the consideration for exemption from ceiling limit under the Land Reforms Act cannot operate as** _**res judicata**_ **since both private forests and plantations are exempted under the ceiling limit of the Land Reforms Act.** **12. It was argued that the enquiry of the Land Tribunal under the Land Reforms Act is not comprehensive to verify the nature of the** **MFA(Forest) No.88 of 2007** **17** **cultivation and its extent. Often claims are accepted, based on the reports made by the Revenue Inspectors, who only look at the aspect of possession and not necessarily cultivation. The learned Special Government Pleader pointed out that Section 53 of the Land Reforms Act enables a cultivating tenant entitled to fixity of tenure under Section 13 to purchase the right, title and interest of the land owner and intermediaries, in respect of the land held by him. Section 13, a** _**non obstante**_ **clause, speaks of the rights of tenants to fixity of tenure. Section 72K by sub-section (1) provides for issuance of Certificate of Purchase to the cultivating tenant, upon which the right, title and interest of the land owner and the intermediaries, in respect of the holding or part thereof, to which the Certificate relates, vests in the cultivating tenant, free of all encumbrances created by the land owner or the intermediaries. Sub-section (2) of Section 72K also mandates the** **MFA(Forest) No.88 of 2007** ## **18** **Certificate of Purchase to be conclusive proof of the assignment to the tenant, of the right, title** **and interest of the land owner and the intermediaries. According to the learned Special Government Pleader this is only conclusive proof of title and not proof of cultivation. In this context, the learned Special Government Pleader also took us to the definition clause of cultivating tenant [S.2(8)]; defined as a tenant who is in actual possession of land, entitled to cultivate the land comprised in his holding. The Land Reforms Act does not require actual cultivation for enabling fixity of tenure or issuance of Purchase Certificate; which is required to be proved under the Vesting Act as on the appointed day to absolve the property of the vesting.** **13. Further it is pointed out that Section 3(1)(vii) exempts leases of private forests from the operation of Chapter II, in which Chapter is** **MFA(Forest) No.88 of 2007** **19** **contained the provisions regarding deemed tenants and Section 13, which speaks of rights of tenants to fixity of tenure. The definition of private forests under both enactments exclude cultivated lands and waste lands which are not enclaves within wooded areas. Section 72, which speaks of vesting of landlord’s rights, in Government, provides that all right, title and interest of the landlord, owners and intermediaries in respect of holdings held by cultivating tenants [including kudiyirippus and kaaraymas] entitled to fixity of tenure under Section 13 and in respect of which Certificates of Purchase under sub-section (2) of Section 59 have not been issued, shall vest in the Government free from all encumbrances. Hence, the vesting occurs only of lands, where fixity of tenure can be claimed under S.13; which is not applicable to leases of private forests. Hence even if there is a lease as claimed by the applicant herein, if it is of a private forest without any cultivation** **MFA(Forest) No.88 of 2007** **20** **specified in clause (ii) to (iv), there could not have been any vesting under the Land Reforms Act for reason of the exemption under Section 3(1) (vii). If there is no vesting, then of course the Purchase Certificate issued is questionable. There is absolutely no proof offered of the cultivation carried on in the property and the applicant before the Tribunal failed to establish that he possesses land below the ceiling area under the Land Reforms Act. It is also pointed out that Section 105 of the Kerala Land Reforms Act provides for an authorised officer, not below the rank of a Revenue Inspector to obtain information from any person relating to the extent of land held by such person and his family members and such other particulars as prescribed for the purpose of implementing the provisions of the Land Reforms Act. The authorised officer merely collects the information to bring into effect the provisions of this Act and it does not necessarily place the Government in an** **MFA(Forest) No.88 of 2007** ## **21** **adversary position before the Land Tribunal. It is also urged that the private forests under the Vesting Act includes those under the Land Reforms Act and as on 10.05.1971 there is a vesting under the Vesting Act** _**de hors**_ **a notification.** **14. As far as the conclusive proof offered by the Purchase Certificate, we cannot but follow the judgment of the Hon'ble Supreme Court in** _**Mohammed Basheer**_ **(supra), from which paragraphs 21 and 22 are extracted hereunder:** _**“21.To sum up, the certificate of purchase was issued by the Land Tribunal, under sub-section (1) of Section 72-K. Sub-section (2) of Section 72-K of the Land Reforms Act clearly states that the certificate of purchase issued under subsection (1) shall be a conclusive proof of the assignment to the tenant of the right, title and interest of the landlord and the intermediaries, if any, over the holding or portion thereof to which the assignment relates. Thus whatever right, title and interest, the landlord had in the land, has been assigned in favour of the respondent under the certificate of purchase. Therefore, it can safely be concluded that the**_ **MFA(Forest) No.88 of 2007** **22** _**respondent is the owner of the land as he has legal title to hold the said land. As noticed above, the certificate is also a conclusive proof of the fact that the respondent has been in possession of the land as a cultivating tenant right from the date of vesting of the land under the Kerala Land Reforms Act. In our view, the land in question is exempted from - vesting in the State under sub section (2) of Section 3 of the KPF Act.**_ _**22.In Kunjanam Antony v. State of Kerala [Kunjanam Antony v. State of Kerala, (2003) 3 SCC 221], relied on by the learned Senior Counsel for the appellants, it has been held that the order of the Thaluka Land Board is a piece of evidence so far as the proceedings under the Kerala Private Forests (Vesting and Assignment) Act, 1971 are concerned, but it cannot be treated as binding on the authorities. In this judgment, the statutory conclusiveness of title under sub-section (2) of Section 72-K of the Land Reforms Act has not been considered. Apart from the above, it was held that the certificate of purchase is also a piece of evidence which cannot be totally discarded. In the instant case, the respondent has established that he is the owner and in possession of the land on the appointed day on the basis of**_ **MFA(Forest) No.88 of 2007** **23** _**certificate of purchase and other materials placed on record.**_ **15. We are bound by the aforesaid dictum of the Hon'ble Supreme Court. The purchase certificate, if relating to the scheduled property has to be found to be conclusive proof for exemption of the land from vesting, under the Vesting Act and also conclusive proof of title. On the above reasoning the question regarding exemption under Section 3 of the Vesting Act will have to be considered afresh and in that circumstance the proof offered by the Purchase Certificate also ought to be considered. The third requirement as to the applicants having lands, not in excess of the ceiling limit under the Land Reforms Act also has to be verified. We make it clear that the consideration shall be on the basis of the evidence already led and there shall not be any amendment of pleadings or further evidence led before the Tribunal except production and marking** **MFA(Forest) No.88 of 2007** **24** **of the purchase certificate. We also affirm the finding of the Tribunal against exclusion which is not liable to be reopened on this limited remand.** **The appeal of the applicants is allowed remanding the matter to the Tribunal. The Registry shall return the original of the purchase certificate produced here, in this appeal as Annexure A, to the learned Counsel for the applicants and keep an attested copy, as attested by the Advocate, in the records of the above case. Parties to suffer their respective costs.** **Sd/-** **K.VINOD CHANDRAN, JUDGE** **Sd/-** **C.JAYACHANDRAN, JUDGE** **Mrcs/16.11 xxx**