Visalakshi v. State of Kerala and Custodian of Vested Forests

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 MFA.No. 99 of 2004(E) -------------------OA.50/2000 of FOREST TRIBUNAL, KOZHIKODE .................... APPELLANT(S): RESPONDENTS. -------------------------- 1. THE STATE OF KERALA, REP. BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. CUSTODIAN OF VESTED FORESTS, OLAVAKKODE, PALAKKAD DISTRICT. BY GOVERNMENT PLEADER, SRI. M.P. PRAKASH RESPONDENT(S): APPLICANT. ------------------------- VISALAKSHI, W/O.SUBRAMANIAM, KUNNUMMEL HOUSE, THANNUR II, VILLAGE, ALATHUR TALUK, PALAKKAD DIST. ADV. SRI.K.P.BALAGOPAL THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON 16/10/2009 DELIVERED THE FOLLOWING: ## **K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - - -** ## **M.F.A. NO: 99 OF 2004** **- - - - - - - - - - - - - - - - - - - - - - - - - - - -** **Dated this the 16[th] day of October, 2009.** ## **JUDGMENT** ## **Joseph Francis J.** This appeal is filed by respondents 1 and 2 in O.A. No: 50 of 2000 on the file of the Forest Tribunal, Kozhikode. The respondent herein is the applicant in that O.A., which was filed under Section 8 of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (for short 'the Act') for a declaration that the petition schedule property is not private forest vested with the Government and that the applicant is entitled to get the benefit of Section 3(2) and 3(3) of the Act. 2. The case of applicant is as follows in brief. The applicant claims title over 4 acres in survey No:184B/1 in ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** Tholanur amsom, Kuthanoor-II Village, Alathur Taluk in Palakkad District. Applicant's case is that the property was taken on oral lease from Gopalan Nair, Orrakam Devaswom and she has obtained purchase certificate No.331/83 from the Deputy Collector, Land Tribunal No.III. Thrissur as per order dated 20.7.82 in S.M. 9/1982. Her case is that ever since the land was taken on lease, she was cultivating the property with tapioca, green gram, black gram etc. The land was also used for raising seedlings for the adjacent paddy fields. 3. On 17.11.2000 the possession of the applicant was disturbed by the forest officials. There is no proper publication as envisaged in Rule 8A(2) of the Vesting and Assignment Rules. As such there is no bar of limitation. The land does not contain any forest growth. The land was possessed with permission to cultivate by the applicant and the applicant has lands within the ceiling limit. Hence the applicant has prayed for a declaration that the land is not ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** a private forest and she is entitled to get the benefit of Sec.3(2) and 3(3) of Act 26/71. 4. In the counter affidavit filed by the Divisional Forest Officer, Nenmara on behalf of the appellants/respondents, the case of the respondents is that the disputed property forms part of a large extent of malavaram known as “Choolannur bit III Malavaram' lying contiguous with other forest areas of more than 100 acres, which fell within the purview of the erstwhile M.P.P.F. Act 1949. The property is vested with the Government under Section 3(1) of the Act from 10.5.1971. The area was surveyed, demarcated and notified as vested forest, vide VFC item No.183/3 and as per notification No.D.138377 dated 10.10.1979 as per the Government notification No.82044/FS2/76 AD dated 11.1.77 and published in Kerala Gazette No.4 dated 25.4.1977. The copy of the notification was published on different offices and in two Malayalam dailies as required. ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** 5. The property was not cultivated and there are several forest trees such as Maruthu, Mahagoni, Veppu etc. The applicant has not produced any document to prove her ownership and possession over the area. There is no registered deed of transfer of the property prior to 1971 and no sanction was obtained from the District Collector. All sort of alienation of the M.P.P.F. Area without prior sanction of the District Collector as required under Section 3(1)(A) of the M.P.P.F. Act is prohibited and is illegal and void. The boundaries shown are not correct. The purchase certificate is not binding on the respondents. The alleged cause of action is false and the application is barred by limitation. The application is therefore liable to be dismissed. 6. In the Forest Tribunal, PW1 and RW1 were examined and Exts. A1to A12, B1, B2, C1 and C2 were marked. The Forest Tribunal, on considering the evidence, allowed that petition and declared that the disputed property is not a private forest vested with ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** the Government and that the applicant is also entitled to get benefits of S.3(2) of the Act. Against that order, respondents 1 and 2 filed this appeal. 7. Heard the learned counsel for the appellants and the learned counsel for the respondent. 8. The learned counsel for the appellants submitted that Ext.A1 purchase certificate issued by the Land Tribunal in the name of the applicant is not conclusive evidence establishing the title envisaged under Section 3(2) of the Act, where as the learned counsel for the respondent supported the order of the Forest Tribunal. 9. Ext.B1 is the copy of the notification issued by the Forest Department dated 10.10.1979 and the petition schedule property is shown as survey No.184B/1P. The Forest Range Officer of Alathur was examined as RW1. RW1 deposed that the survey number of the disputed property is 184/B1 and that as per Ext.B1 notification the ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** survey number of vested property is 184/B1 part. He however does not depose about it being part of property governed by the MPPF Act. The applicant was examined as PW1. PW1 deposed that the petition schedule property originally belonged to Oorakam Devaswom in jenm and she had obtained seven acres of property on lease from Oorakam Devaswom and she purchased the landlord's right as per Ext.A1 purchase certificate dated 26.3.83 from the Land Tribunal Thrissur. That purchase certificate was given to PW1 on the basis of suo moto proceedings No.9/1982. The property shown in Ext.A1 is seven acres in Survey No.184 of B1. PW1 deposed that she was cultivating the property with black gram, tapioca etc. for the last forty years. PW1 deposed that she has no property in excess of the ceiling limit. Exts. A2 to A9 are the basic tax receipts issued in the name of PW1 for the years 1988 to 2002. PW1 deposed that out of seven acres obtained by her as per Ext.A1, she sold three acres of property to one Kunhappan as per Sale Deed dated ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** 14.3.1984. Ext.A13 is the copy of that sale deed. Ext.A11 is the basic tax receipt dt.14.3.1975 and Ext.A12 is the basic tax receipt dated 26.2.83 in the name of PW1 in respect of the property purchased as per Ext.A1. The petition schedule property is the remaining seven cents after selling three acres to Kunhappan. 10. The learned counsel for the appellants submitted that as per the description in the O.A. Schedule the eastern boundary is Nilam of applicant, southern boundary is paramba of Raman, the western boundary is Nochur - Perigottukurissi Road and the northern boundary is Kunjan Paramba. As per Ext.A1 purchase certificate the eastern boundary of the property covered by that document is property of Visalakshi, southern boundary is forest property, western property is Kunjappan's property and northern property is forest property. The learned counsel for the appellants submitted that the O.A. schedule property is not the property covered by the Ext.A1 purchase certificate. That argument cannot ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** be accepted in view of the Ext.CI Commission report by which the disputed property was identified with reference to Ext.A1 purchase certificate and survey measurements. 11. An advocate commissioner was deputed from the Forest Tribunal for identifying the disputed property. The Advocate Commissioner inspected the property with the help of the Taluk Surveyor and filed Ext.C1 report and Ext.C2 plan. In Ext.C1, it is stated that the property lies in \Survey No.184/B1, having an extent of four acres and it forms a part of the slope of hillock, which is having a scatty distribution of original forest growth. The Commissioner reports that of the whole of the disputed property, only three acres are cultivable and in that cultivable portion, there was no standing crops at present. But remnants of heaps and bunds used for cultivating tapioca was seen. There is no thick forest growth in the vicinity except the portion planted by the department which lies west of the disputed property. ## **M.F. A. NO: 99 OF 2004** **==> picture [14 x 9] intentionally omitted <==** 12. The learned counsel for the appellants relied on the decision reported in **State of Kerala and another V. C. J Alexander** (ILR 1993(1) Kerala Series 731) and argued that since Ext.A1 purchase certificate was issued from the Land Tribunal without issuing notice to the Government, it is not conclusive and as such the purchase certificate has no bearing on the right of the Government on the disputed land. 13. The learned counsel for the respondent invited our attention to the decision reported in **Muhammed Basheer v. State of Kerala** (2002 (1) KLT SN 4 Case No.4), in which it was held that: “Purchase certificate is issued under S.72-K of the Kerala Land Reforms Act. It is attributed with statutorily conclusiveness as regards title and possession. Therefore, Ext.A1 creates a title in respect of the holding covered by the said certificate with statutory conclusiveness. Therefore, such certificate is the conclusive proof :10: ## **M.F. A. NO: 99 OF 2004** of possession as well. Unless that certificate is set aside by a competent authority or in a court of law, the statutory conclusiveness in terms of S.72K(2) has to be honoured and a person claiming on the basis of such purchase certificate has to be taken as in possession of the properties. In such circumstances, as a result of Ext.A1 it is conclusively proved that the appellant was in possession of the property as cultivating tenant from a date prior to 1.4.1964. In such circumstances, it cannot vest in Government under S.3 of the Act.” PW1 does not admit that it was issued without notice to the government. 14. Since Ext.A1 purchase certificate was issued in the name of the applicant it conclusively proves that the applicant was in possession of the disputed property as a cultivating tenant prior to 1.4.1964 and as such that property cannot vest in the Government under Section 3 of the Act. Therefore, the Forest ## **M.F. A. NO: 99 OF 2004** **==> picture [20 x 9] intentionally omitted <==** Tribunal is justified in allowing the petition on finding that the disputed property is not a private forest vested with the Government. Since the disputed property is under the personal cultivation of the applicant and is within the ceiling limit, the applicant is entitled to get the benefit under Section 3(2) of the Act. 15. Accordingly this appeal is dismissed. The order of the Forest Tribunal in O.A. No. 50 of 2000 is confirmed. The parties are directed to suffer their respective cost in this appeal. ## **K. M. JOSEPH, JUDGE** ## **M. L. JOSEPH FRANCIS, JUDGE** dl