Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944 MFA (FOREST) NO. 2 OF 2010 AGAINST THE ORDER/JUDGMENT IN OA 39/1997 OF FOREST TRIBUNAL, KOZHIKODE PETITIONERS:
1 VARKY,S/O.ELANJIKKAL PAULY, KIZHAKKE KOTHAMANGALAM.1ST APPELLANT IS RECORDED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT AS PER ORDER DATED 12/01/23 IN IA 3/2022. 2 THOMAS SO.ELANJIKKAL PAULY KIZHAKKE KOTHAMANGALAM. (DIED) 3 SAROJINI SARO PAUL (DIED) WO.PAUL, KIZHAKKE KOTHAMANGALAM. 4 M.V.ANNIE WO.JOSEPH(DIED) BALURAMALA PADINHARATHALA,, PUTHENPEEDIKA, ANTHIKAD,THRISSUR. 5 SUPP.APPL. BEENA JOY. D/O.LATE SAROJINI @SARO PAUL,, AGED 68 YEARS, PADIKKALA HOUSE, K.S.R.A 15, VAKAYIL LANE, KIZHAKKUMPATTUKAVALA, THRISSUR - 680 005. 6 SUPPL.APP.6. MARY CHERIAN D/O.CHERIAN, D/O.LATE SAROJINI @ SARO PAUL AND W/O.P.V.CHERIAN, AGED 63 YEARS, PALATHINGAL HOUSE, P.O.ARANATTUKARA - 680 618. THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT ARE IMPLEADED AS SUPPLEMENTAL APPELLANTS 5 & 6 AS PER ORDER DATED 7 ADDL.APPL.7. BASTIAN JOSEPH, S/O.M.V.ANNIE, AGED 58 YEARS, CHIRAMAL PADINJARATHALA, HOUSE NO.38, 6TH STREET, MCLRA, THRISSUR - 680 020. 8 SUPPL.APPL.8.JIJO JOSEPH, S/O.M.V.ANNIE, AGED 55 YEARS, CHIRMAL PADINJARATHALA, HOUSE NO.22, EAST FORT, THRISSUR - 680 005. 9 SUPPL.APPL.9. SUMITHAT NISHIL, D/O.DR.JACOB PADIKKALA, AGED 40 YEARS, VII/232/1, PADIKKALA HOUSE, KEERANKULANGARA ROAD, EAST FORT, THRISSUR - 680 005. 10 SUPPL.APPL.10. FEMITHA VARKEY W/O.VARKEY PAUL, AGED 36 YEARS, MALIAKEL HOUSE, POST KUZHUPPILLY - 682 501, ERNAKULAM. THE LEGAL REPRESENTATIVES OF DECEASED 4TH APPELLANT IS
IMPLEADED AS SUPPLEMENTAL APPELLANT 7 TO 10 AS PER ORDER
DATED 12.01.2023 IN IA 4/2022 IN MFA 2/2010. BY ADVS. M.C.JOHN S.SANTHY P.VISHNU PRASAD T.P.ELDHOSE P.L.MARY TREASA D.NARENDRANATH RESPONDENTS:
1 STATE OF KERALA CHIEF SECRETARY,SECRETRIAT, THIRUVANANTHAPURAM. 2 CUSTODIAN OF VESTED FORESTS ARNYA BAHAVAN, FOREST COMPLEX, OLAVAKKODE,, PALAKKAD. 3 ADDL.R 3.SUNU JOHNSON,S/O.LATE THOMAS, AGED 36 YEARS, PUTHUPUTIKAL HOUSE, PUTHENCHIRA.P.O., VELOOPADAM - 680 303, THRISSUR. 4 ADDL.R4. PAUL THOMAS,S/O.LATE THOMAS, AGED 33 YEARS, ELENGIKAL HOUSE, DINHA ROAD, P.O.NELLIKUNNU- 680 005. LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT ARE IMPLEADED AS ADDL. RESPONDENTS 3 AND 4 AS PER ORDER DATED ADDL RESPONDENTS 3 AND 4 ARE RECORDED AS THE LEGAL
REPRESENTATIVES OF THE DECEASED 3RD APPELLANT AS PER ORDER
DATED 12/1/2022 IN IA 3/2022. 5 ADDL. R5.JOSHY PAUL,S/O.LATE SAROJINI @ SARO PAUL, AGED 64 YEARS, PALATHINGAL HOUSE, P.O.ARANATTUKARA - 680 618, THRISSUR - 680 005. THE LEGAL REPRESENTATIVES OF THE DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDITIONAL RESPONDENT 5 AS PER ORDER DATED 6 ADDL. R6. NAMITHA. A. JOSEPH W/O.ANUP JOSEPH, AGED 42 YEARS, 3A, 304, WHISPERING PALMS, LOKHANDWALA TOWNSHIP, KANDIVILI EAST, MUMBAI- 400 101. THE LEGAL REPRESENTATIVE OF DECEASED 4TH APPELLANT IS IMPLEADED AS ADDITIONAL RESPONDENT 6, AS PER ORDER DATED 12.01.2023 IN IA 4/2022 IN MFA 2/2010.
THIS MFA (FOREST) HAVING BEEN FINALLY HEARD ON 12.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ. ------------------------------------------- MFA(Forest) No.2 of 2010 ------------------------------------------- Dated this 12th January, 2023
JUDGMENT
Vinod Chandran, J The applicants before the Forest Tribunal are the appellants.
The Tribunal declined the declaration sought under S.8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971 (herein after the 'Vesting Act'). The applicants were concerned with 12 acres 80 cents in Sy.No.204/2 of Akathethara Village, Palakkad Taluk and District. The applicants had purchased the property by assignment deeds Exts.A12 to A15; the vendors in which purchased it in Court proceedings. The scheduled property at present lies as a rubber plantation and it was the contention that it is either excluded from S.2(f) of the Act or exempted under S.3(2) or (3) of the Vesting Act. It was alleged that without a notification under the Act, obstruction was caused to the possession in the year 1988, again without demarcation of boundaries. The applicants traced the title of the property to one Makkal Tharavad the members of
which filed a partition suit in which a receiver was appointed and later the properties sold through the Receiver. This was subsequently attached in a suit for money and again sold in court auction. It was argued that the person in possession of the property as on 10.05.1971, the appointed day under the Vesting Act, purchased and possessed it for the purpose of planting trees and supply of fuel requirements as also other agricultural activities. As on 10.05.1971 there was no tree growth in the property.
2. The DFO Palakkad resisted the application asserting
demarcation and notification of the scheduled lands as VFC Item No.32 produced as Ext.B2 and B3; respectively published in 1977 and an erratum notification published in the year 1997. The disputed property forms part of a larger extent of 1000 acres of vested forest clearly governed by the Madras Preservation of Private Forests Act, 1949 (for brevity 'the MPPF Act).
3. Twice the application was rejected by the Tribunal and
remanded in appeal. At first the Tribunal dismissed the application finding it to be hit by limitation. In MFA 981/1988 this Court found that the Tribunal failed to examine the notification, its date of publication and
also the question whether it was notified in accordance with the provisions of law; which alone would enable the Tribunal to consider whether the application was filed within the time prescribed or not. An open remand was made upon which again the Tribunal though found the ground of limitation in favour of the applicants; rejected the claim for declaration. In MFA 570/1998 the applicants raised the contention that the purchase made by the predecessor-in-interest from the receiver appointed in the partition suit was for the purpose of establishing a factory and evidence led would indicate that it was a factory site. It was also argued from the definition clause, that a factory site is excluded in view of clause (B) as well as (D), with explanation. The learned Judges found that the Tribunal had not decided the question whether the specific exclusion claimed, entitled the applicants to a declaration and again made an open remand, in which the Tribunal rejected the application, from which order the appeal arises.
4. The Tribunal raised two issues, that of exclusion under
S.2(f)(1(i) and exemption either under S.3(2) or 3(3) of the Vesting Act. The Tribunal found, based on the permission granted by the District Collector to the Receiver at the time of sale of property in the year 1960
that the scheduled lands are governed by the MPPF Act. The Tribunal on an examination of the clauses under (A) to (C) found that there was no case for the applicants that, the scheduled land was used, as a garden land or nilam (clause (A)), or was a plantation ( Clause (B)) or cultivated with fruit bearing trees (Clause (C)). It was also found that the explanation to clause (B) would not be applicable since there was no cultivation in the property and no buildings found to exist as on the appointed day. As far as clause (D) is concerned again the total absence of construction in the land dis-entitled any claim on that account too. The exemptions too were considered and rejected since personal cultivation or an intention to cultivate had not been established in evidence. It was found that Parameswara Iyer, the promoter of a company by name 'Malabar Iron and Steel Works, Palakkad' had purchased the property with the intention of establishing a factory in the said land. Neither was the factory established nor was any cultivation carried out.
5. We heard Sri.M.C John learned Counsel appearing for the appellant and the Special Government Pleader (Forest) Sri. Nagaraj Narayanan appearing for the respondents.
6. Before the Tribunal the applicants examined PWs 1 to 5
and marked Exts.A1 to A24 documents. The respondent examined RW1 to RW3 and marked Exts.B1 to B5. Three commission reports were marked as Exts.C1, C3 and C4 and Ext.C2 plan accompanied Ext.C1 Commission report.
7. PW1 was the power of attorney of applicants who marked
the documents and traced the title of property to Makkal Tharavad as revealed from the documents. Originally there was a partition suit in the Tharavad which led to a Receiver being appointed for the properties. The suit was numbered as O.S 22/1952 and by Ext.A1 sale deed the Receiver appointed by the Court sold the properties to one Parameswara Iyer who was the Director of 'William Powell & Sons Ltd., Calcutta' and the promoter of 'Malabar Iron and Steel Works'. Ext.A1 was dated 26.09.1960 and by Ext.A2 the District Collector, Palakkad permitted the alienation under S.3(1)(a) of the MPPF Act and the rules and regulations made thereunder r/w S.119 of States Reorganisation Act 1956 and Clause 4(1) of the Kerala Adaptation of Laws Order, 1956. Ext.A2 specifically cautioned the purchaser that the trees standing in the property can be cut, only with separate permission. Ext.A3 dated 27.10.1960 is the clear felling permit granted to S.Parameswara Iyer the
purchaser. Ext.A3 specifically by clause (9)(3), returned document No.
recital specifically spoke of the purchase having been effected for starting and establishing a factory in iron and steel under the name and style of 'The Malabar Iron and Steel Works'. The intention of the purchase is also evident from Ext.A7 report of the Receiver dated 09.09.1960. Hence it cannot at all be said that Parameswara Iyer who purchased the property in 1960, purchased it with the intention to cultivate the said land.
8. Subsequent to the purchase, O.S No. 50/1961 was filed by
a Bank in which the properties purchased were mortgaged, the plaint in which is produced as Ext.A4. Parameswara Iyer was the 1 st defendant in the said suit which was decreed as on 31.12.1964, the judgment and
decree in which are produced as Exts.A5 and A6. The decree was assigned by the Bank to third parties in whose name sale certificate was issued on 22.02.1978 produced as Ext.A8. It is the said third parties, assignees of the Bank who sold different extents of the properties purchased in O.S No.50/1961, by assignment deeds Exts.A12 to A15, in favour of the applicants 1 to 4. PW1 in his cross examination categorically admits that he has no direct knowledge about the property
and the court proceedings prior to 1979 and his testimony is based on the documents produced in the application. PW1 denies the specific suggestion in cross examination that there was no cultivation prior to 1979 but does not speak of the nature of cultivation carried on.
9. PW2 is the Advocate Commissioner who marked Exts.C1 to
C4 which reports will be discussed later. PW3 claims to be a person residing in the neighbourhood who also had properties near the scheduled property, which were sold. According to PW3, a Company was started in 1960 and after about one and half years the same was stopped. He testified that when he saw the property, the company was not demolished. Again he did not speak of the specific construction found in the property, but for stating that there were a number of buildings in the property. PW4 is another resident in the neighbourhood who spoke of machineries including a lathe having been erected in the property. PW5 is a retired Headmaster who is residing in the locality for the last 52 years. According to him the land was lying with undergrowth when it was in the possession of one Kesava Menon. Parameswara Iyer purchased the property in a court proceeding for the purpose of starting an Iron and Steel Company. He also speaks of an entrance with a gate
erected on pillars.
10. The oral testimonies of witnesses though speaks of the
intention to establish a company, there is no specific deposition of any company having been established or buildings constructed in the property. There is also no substantive evidence led as to constructions having been made and a factory having been commenced; which activities can only be carried out with permissions and sanctions of the
local body and other statutory authorities. As was noticed by the Tribunal, there is no case for the applicants that as on the appointed day any exclusion is available under clause (A) or (C) of S.2(f)1(i). As far as the Explanation under clause (B) it specifically refers to lands used for construction of office buildings, godown, factories, quarters for workmen, hospital, schools and play ground which are ancillary to the cultivation of plantation crops specified in clause (B). There is no claim raised of any plantation crops having been cultivated in the property by the applicants and in that circumstances the Explanation to clause (B) would not be applicable. Clause (D) is a stand alone provision, excluding sites of buildings and the appurtenant lands required for convenient enjoyment of such buildings. There is no building proved to be existing in
the property as on 10.05.1971, the appointed day under the Vesting Act.
11. As has been rightly found by the Tribunal, there is no
dispute regarding the applicability of MPPF Act to the scheduled lands. Admittedly the purchase was made by Parameswara Iyer, the predecessor-in-interest who was the owner of the land as on the appointed day, on the strength of Ext.A2 sanction issued by the District Collector under the MPPF Act. After purchase, the said owner had also obtained clear felling permission as per Ext.A3 again a requirement under the MPPF Act. We have seen from the documents produced by the applicants that the purchase itself was made for the purpose of commencing a factory of iron and steel. There is absolutely no proof regarding the establishment of the factory or at least of the construction of buildings for such a purpose. The purchase was made in 1960 and the properties mortgaged to the bank, which bank had initiated proceedings for recovery of the amounts due to it, by a suit in 1961. The properties were purchased by the assignees of the decree in the year 1978 and it was in 1979 the present applicant obtained title and possession of the properties. Hence as on the appointed day the title and possession of the properties were on Parameswara Iyer who purchased the property in a
court sale with the intention to establish a factory. The proof of such intention having fructified by at least construction of building is totally absent in the above case. We cannot but agree with the Tribunal, that there is no valid claim of exclusion under clause (A) to (D) of S.2f(1)(i).
12. As for exemption under S.3(2) or (3) there is no claim of
any cultivation or intention to cultivate the property. At the risk of repetition we have to notice that the intention of the purchase made in the year 1960 by Ext.A1 was specifically for the establishment of the factory; which intention does not statutorily permit exemption from the Vesting Act. We have also looked at the Commission reports. Ext.C1 noticed the boundaries and produced a sketch prepared on physical inspection. The inspection conducted on 04.11.1997 indicated a fence of seema poola on the boundaries and rubber trees of 20 years existing on the southern and western portions of the property. Again the very same Commissioner visited the property on 27.11.1997 and reported in Ext.C3, rubber trees in the property having 17 to 20 years. The age of the rubber trees, as spoken of in the reports cannot be related back to the appointed day under the Vesting Act. Ext.C4 report was based on an inspection carried out on 04.02.2006. However the inspection carried out, as
indicated from the report is of the neighbouring property, which is said to have been purchased by the third parties from Malabar Iron and Steel Company. In the property purchased by George, Beena and Omana which is not a part of the scheduled land, there were remnants found of a furnace, which again does not aid the applicants herein who were not concerned with those properties. In fact the gate mentioned by PW5 is said to be existing, in the neighbouring property inspected as per Ext.C4.
We find no reason to interfere with the order passed and the rejection of the declaration, claimed on the ground of exclusion and exemption, does not at all appeal to us. The appeal would stand dismissed leaving the parties to suffer their respective costs. Sd/- K.VINOD CHANDRAN, JUDGE Sd/- C.JAYACHANDRAN, JUDGE jma