Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944 MFA (FOREST) NO.29 OF 2007 AGAINST THE ORDER DATED 14.02.2006 IN O.A.NO.29/2004 OF FOREST TRIBUNAL, KOZHIKODE APPELLANT/PETITIONER: RAMENDRAN, S/O.KANDAN, EDAYOTTIL MUDAPPALLUR, PALAKKAD. BY ADV SRI.A.R.GANGADAS RESPONDENTS/RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2 THE CUSTODIAN OF VESTED FORESTS ARANYABHAVAN FOREST COMPLEX, OLAVAKKODE, PALAKKAD. BY ADV SRI.NAGARAJ NARAYANAN, SPL. G.P. FOR FOREST THIS MFA (FOREST) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: - 2 - K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ----------------------------------------------------------- M.F.A.(Forest) No.29 of 2007 ----------------------------------------------------------- Dated this 01st March, 2023
JUDGMENT
K.Vinod Chandran, J.
The applicant claimed exemption under the Kerala Private
Forests (Vesting & Assignment) Act, 1971 (for short ‘the Vesting Act) to 2.90 Acres of land in Resurvey No.1 of Mudappallur Village, Alathur Taluk, Palakkad District. The scheduled property belonged to one Ramanadha Iyer, who assigned his 'jenmam' rights on the property to Kunju and Kandan. On a partition of the property as per the settlement arrived in O.S.No.136/93, evidenced by Ext.A2, the petitioner, who is the son of Kandan, obtained the scheduled property. The petition schedule property was in the hands of the family of the petitioner from 1959 as is seen from ExtA1. The property was also stated to have been cultivated with fugitive crops. The property did not lie on the field as a forest and the applicant did not have land exceeding the ceiling limit under the Land Reforms Act.
2. The respondents, based on a notification issued, claimed that 17.4 hectares in various survey numbers comprised in Vadakkencherry and Mudappallur Villages was vested in the - 3 -
Government, which includes the scheduled property. It was also alleged that on the very same documents, Kandan filed an earlier O.A for exemption to 5 Acres of land, which was allowed. It was contended that the present claim is on an encroached property; with reliance placed on the very same documents.
3. The Tribunal framed issues on limitation and the
entitlement to declaration for exemption under the Vesting Act. On the question of limitation it was found that there was no notification produced before the Tribunal. It was found that the applicant did not have title over the property as on the appointed day, ie.10.05.1971, under the Vesting Act. It was also found that the property could not be identified from Exts.A1 & A2 and even the Commissioner has not identified the property with reference to the documents produced.
4. Sri.A.R.Gangadas, learned Counsel appearing for the
appellant, would take us through Exts.A1 & A2 to specifically point out the property as indicated therein as Item No. 8 in Ext.A1, existing in Resurvey No.1. Item No.8 in Ext.A1 is pointed out as the property obtained by Kandan, which is a larger extent. The final decree, Ext.A2, shows the properties allotted to the share of the applicant as schedule B. Item No.2 again in resurvey No.1 having an extent of 7 Acres is said to be the larger extent, in which the present extent is comprised. The Commissioner has also noticed the property of the father lying to the
- 4 - north of the scheduled property. As far as the finding of the Tribunal that the applicant did not have title as on the appointed day, the Full Bench decision of this Court in Parameswara Sastrigal v. State of Kerala (2008 (2) KLT 461) is relied on.
5. Learned Special Government Pleader [Forest] Sri.Nagaraj
Narayanan, at the outset relied on Hamsa Haji vs. State of Kerala [(2006) 7 SCC 416] to argue that identification of the property is crucial. The boundaries in the schedule and those noticed by the Commissioner does not tally with the boundaries shown in the documents produced as Exts.A1 & A2. There was also no attempt made to correlate the resurvey number shown in Exts.A1 & A2 with the survey number in which the property was found, on inspection by the Commissioner.
6. Parameswara Sastrigal [supra] clearly holds that even a
subsequent purchaser can claim exemption under the Vesting Act, but the requirements have to be established as on the appointed day. Hence under S.3(2) the personal cultivation, which would enable an exemption would have to be that on the appointed day; ie.10.05.1971. Similarly, to establish intention to cultivate, which is the requirement under S.3(3) the same should be established as on 10.05.1971; of the owner who also should be holding the property on the strength of a registered deed. Hence to that extent the Tribunal was wrong. The
- 5 - petitioner was holding the property as per Ext.A2 dated 31.01.1994 and the document Ext.A1 was of the year 1959. Hence definitely the property was held by the family of the applicant, if the identity is discernible on the basis of a registered deed, which is Ext.A1.
7. On the identification of the property, we see that Exts. A1
& A2, in the specific items pointed out by the learned Counsel, indicate the property to be existing in resurvey No.1. However, the commission report finds the property to be situated in Alathur Taluk, Vandazhi-II Village in survey No.80/8 part. There was no attempt made by the applicant to correlate the survey number that is seen in Exts.A1 & A2 with that in which the scheduled property is existing as on the date of the application. The application shows Kandan's property only on the north of the scheduled property and on the western boundary Mangalam Village is shown. Insofar as Ext.A2, on the east and west, Kandan's property is shown and in north item No.2 of that document. As far as the commission report is concerned, it indicates Kandan's property on the north and western side. As was pointed out from Ext.A2, the petitioner's share as seen from item No.2 is 7 Acres and the 2.90 Acres is said to be part of the 7 Acres. There is absolutely no evidence led as to how the balance properties were alienated. The final decree in the partition suit is also on a settlement arrived at between the properties, without any division by metes and bounds by a court
- 6 - appointed Commissioner. We extract from Hamsa Haji (supra) :
“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]
In the totality of the circumstances, we find that there is no reason to interfere with the order of the Tribunal declining exemption. We notice that there is no notification produced before the Tribunal, but however the vesting is statutory and is automatic with the enforcement of the statute. The appeal is dismissed. Parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE sp/01/03/2023